Id. ‚*A+ witness need not physically point out a
defendant so long as the evidence is sufficient to permit the
inference that the person on trial was the person who committed
the crime.‛
Id. (alteration in original).
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2015 UT App 160
State v. Isom
I would ask that you put yourself in her little shoes
and think of how you would describe the offenses
that occurred to you, how you would be able to
help others understand what you experienced,
where you were when it happened, where it
happened. Why are these people continuing to ask
me these questions? Why do I have to talk about
things that make me feel uncomfortable? Put
yourself in her shoes and use your own adult logic
to think about when you were her age and how
much ability you had, cognitively, to express
yourself. . . . I won’t suggest to you that this is an
easy process because it’s not and the evidence is
challenging, but I would, again, urge you to look at
this through [the child]’s eyes and walk in her
shoes. Try to figure out whether or not [the child]
was intentionally trying to lie to you, really, about
anything of significance.
¶27 ‚To determine whether a prosecutor’s remarks are ‘so
objectionable as to merit a reversal,’ we must determine whether
the remarks ‘call to the attention of the jurors matters which they
would not be justified in considering in determining their
verdict.’‛ State v. Campos,
2013 UT App 213, ¶ 50,
309 P.3d 1160
(quoting State v. Valdez,
513 P.2d 422, 426 (Utah 1973)). While
‚*c+ounsel for both sides have considerable latitude in their
arguments to the jury,‛ Valdez, 513 P.2d at 426, a prosecutor
‚exceed*s+ the bounds of propriety‛ by ‚unfairly appeal*ing+ to
the sympathies,‛ ‚passions[,] and prejudices of the jury,‛ State v.
Todd,
2007 UT App 349, ¶¶ 19–20,
173 P.3d 170 (citation and
internal quotation marks omitted). ‚*T+he determination of guilt
must not be the product of fear or vengeance but rather
intellectually compelled after a disinterested, impartial and fair
assessment of the testimony that has been presented.‛
Id. ¶ 21
(citation and internal quotation marks omitted). Arguments
designed to appeal to passion or prejudice inappropriately
‚divert the jury from its duty to decide the case on the
evidence.‛
Id. ¶ 18 (citation and internal quotation marks
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State v. Isom
omitted). ‚The jury’s guilty verdict must be based on an
impartial determination that the State proved each element of
the charged crimes beyond a reasonable doubt.‛ Campos,
2013
UT App 213, ¶ 53. Appeals to the ‚passions of the jury *or] the
jury’s duty to society,‛ may constitute prosecutorial misconduct.
Id.
A. Plain Error
¶28 Isom did not preserve his prosecutorial-misconduct claim
at trial. ‚Generally, where a defendant has not preserved a
prosecutorial misconduct claim, appellate review is limited to a
determination of whether it was plain error for the trial court not
to have intervened.‛ State v. Redcap,
2014 UT App 10, ¶ 34,
318
P.3d 1202. To demonstrate plain error, a defendant must
establish that (1) the trial court committed error, (2) the error
should have been obvious to the court, and (3) the error
prejudiced the defendant. State v. Dunn,
850 P.2d 1201, 1208–09
(Utah 1993). ‚To establish that an error should have been
obvious to the trial court, [an appellant] must show that the law
governing the error was clear at the time the alleged error was
made.‛ State v. Dean,
2004 UT 63, ¶ 16,
95 P.3d 276 (citing State v.
Eldredge,
773 P.2d 29, 35–36 (Utah 1989)). Thus, an obvious error
is one that contravenes ‚settled appellate law,‛ Ross, 951 P.2d at
239, or ‚the plain language of the relevant statute,‛ State v. Low,
2008 UT 58, ¶ 41,
192 P.3d 867. An error is prejudicial if ‚absent
the error, there is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently, our confidence
in the verdict is undermined.‛ Dunn,
850 P.2d at 1208–09.
¶29 We have been ‚hesitant to set a rule which would require
a trial judge to intervene in closing argument whenever the
judge believes a misstatement of the evidence . . . has occurred.‛
State v. Palmer,
860 P.2d 339, 344 (Utah Ct. App. 1993). Because
the ‚line which separates acceptable from improper advocacy is
often difficult to draw,‛ State v. Hopkins,
782 P.2d 475, 480 (Utah
1989), obvious error exists only if the law was ‚sufficiently clear
or plainly settled,‛ Dean,
2004 UT 63, ¶ 18, and ‚the prosecutor’s
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State v. Isom
comments were so obviously improper that the trial court had
an opportunity to address the error,‛ State v. Calliham,
2002 UT
86, ¶ 62,
55 P.3d 573.
¶30 We do not agree with Isom that settled appellate law
required the trial court to intervene in the prosecutor’s closing
argument. At first blush the prosecutor’s remarks do appear to
fall squarely within the proscription against inviting jurors to
step into the shoes of the victim or the victim’s family members.
After all, the prosecutor invited jurors to ‚look . . . through the
child’s eyes and walk in her shoes.‛ But Isom’s appellate
challenge ignores the distinction between a victim and a witness.
True, the child appeared at trial in the dual roles of victim and
witness, but the prosecutor’s argument addressed the child
primarily as a witness. In light of the child’s obvious difficulty in
testifying publicly, the prosecutor urged the jurors to ‚*t+ry to
figure out whether or not [the child] was intentionally trying to
lie to you, really, about anything of significance.‛
¶31 We are not persuaded that the challenged statement
called the jurors’ attention to matters which they were not
justified in considering when reaching their verdict. See Todd,
2007 UT App 349, ¶ 21. The prosecutor’s argument did not invite
jurors to ‚find *Isom+ guilty out of vengeance or sympathy for
the victim,‛ see Campos,
2013 UT App 213, ¶ 52, or otherwise
abdicate their position of neutrality. Rather, it invited them to
assess the child’s credibility as a witness in light of her age.
Accordingly, ‚the invitation [was] not an improper appeal to the
jury to base its decision on sympathy for the victim but rather a
means of asking the jury to reconstruct the situation in order to
decide whether a witness’[s] testimony is plausible.‛ See United
States v. Kirvan,
997 F.2d 963, 964 (1st Cir. 1993).
¶32 In addition, even if the trial court erred by not sua sponte
intervening, the error was not obvious. See Dunn,
850 P.2d at
1208–09. As we noted above, the prosecutor’s statements were
not ‚so obviously improper‛ as to rise to the level of reversible
prosecutorial misconduct. See State v. Larsen,
2005 UT App 201,
20130740-CA 11
2015 UT App 160
State v. Isom
¶ 5,
113 P.3d 998 (quoting Calliham,
2002 UT 86, ¶ 62). Thus, even
if in this case the prosecutor’s statement ran afoul of Campos, any
error the court committed in declining to sua sponte intervene
would not have been obvious. See Dunn,
850 P.2d at 1208–09.
¶33 In sum, any impropriety in the prosecutor’s comments
was not so obvious as to require the trial court to intervene.
Accordingly, Isom has not established plain error.
B. Ineffective Assistance of Counsel
¶34 In the alternative, Isom argues that his trial counsel
rendered constitutionally ineffective assistance by failing to
object to the prosecutor’s statements. We review ineffective-
assistance-of-counsel claims raised for the first time on appeal
for correctness. State v. Lucero,
2014 UT 15, ¶ 11,
328 P.3d 841.
¶35 To succeed on an ineffective-assistance-of-counsel claim,
an appellant must show that (1) ‚counsel’s performance was
deficient in that it ‘fell below an objective standard of
reasonableness’‛ and (2) ‚counsel’s performance was prejudicial
in that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’‛ Menzies v. Galetka,
2006 UT 81, ¶ 87,
150 P.3d
480 (quoting Strickland v. Washington,
466 U.S. 668, 688, 694
(1984)). An appellant must rebut ‚a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.‛ Strickland,
466
U.S. at 689 (citation and internal quotation marks omitted).
Therefore, any ambiguities or deficiencies in the appellate record
‚simply will be construed in favor of a finding that counsel
performed effectively.‛ State v. Litherland,
2000 UT 76, ¶ 17,
12
P.3d 92. ‚*P]roof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.‛ Allen v.
Friel,
2008 UT 56, ¶ 21,
194 P.3d 903 (alteration in original)
(citation and internal quotation marks omitted).
20130740-CA 12
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State v. Isom
¶36 Isom has failed to establish ineffective assistance of
counsel. First, as we noted above, the prosecutor’s closing
statement did not constitute obvious misconduct. Accordingly,
whether an objection would have been sustained remains
speculative. ‚Failure to raise futile objections does not constitute
ineffective assistance of counsel.‛ State v. Kelley,
2000 UT 41,
¶ 26,
1 P.3d 546.
¶37 Second, even if the prosecutor’s closing statement had
impermissibly appealed to the ‚passions of the jury *or+ the
jury’s duty to society,‛ State v. Campos,
2013 UT App 213, ¶ 53,
309 P.3d 1160, conceivable strategic reasons supported trial
counsel’s decision not to object. Given the ‚strong presumption
of competence, we need not come to a conclusion that counsel, in
fact, had a specific strategy in mind.‛ State v. Tennyson,
850 P.2d
461, 468 (Utah Ct. App. 1993) (citing Strickland,
466 U.S. at 689).
‚Instead we need only articulate some plausible strategic
explanation for counsel’s behavior.‛
Id.
¶38 In State v. Haga, we identified several legitimate, strategic
reasons for trial counsel not objecting to an improper closing
argument.
954 P.2d 1284, 1289 (Utah Ct. App. 1998). First, trial
counsel could reasonably have believed that objecting would call
attention to the improper statements and suggest to the jury that
‚they were damaging when counsel felt they were not.‛
Id.
Second, trial counsel might also have sensed that ‚the jury was
weary and inattentive to the prosecutor and that objecting would
only serve to focus their attention on [the] remark[].‛
Id. Finally,
trial counsel’s decision not to object could have been motivated
by concern that an objection would create ‚antipathy to the
defense if the jury perceived that counsel’s repeated objections
were only prolonging the proceedings.‛
Id. And many other
strategic reasons may support trial counsel’s decision not to
object to the prosecutor’s closing argument. See, e.g., State v.
Winward,
941 P.2d 627, 635–36 (Utah Ct. App. 1997) (approving
counsel’s tactical decision not to object to improper closing
argument to avoid suggesting that counsel was ‚hiding
something from the jury‛); West Valley City v. Rislow,
736 P.2d
20130740-CA 13
2015 UT App 160
State v. Isom
637, 638 (Utah Ct. App. 1987) (holding that even though some of
the prosecutor’s closing argument was ‚improper,‛ trial counsel
could still decide not to object to avoid ‚emphasiz*ing+ the
negative aspects of the case to the jury‛).
¶39 Here, Isom’s trial counsel could have had similar
concerns. Reasonable counsel might have worried that an
objection would backfire, resulting in no curative instruction
while making the defense appear unsympathetic to a
sympathetic witness. Furthermore, reasonable trial counsel
could have recognized that, despite the prosecutor’s unfortunate
phrasing, in effect the prosecutor merely invited the jury to
weigh the child’s credibility in light of the actual circumstances
of her report of the abuse.
¶40 In sum, Isom has not established deficient performance of
his trial counsel and thus his ineffective-assistance-of-counsel
claim fails.
IV. Confrontation Clause
A. The Whiteboard Barrier
¶41 Isom contends that ‚the placement of a white board
barricade between [the child] and . . . Isom in the courtroom in
plain view of the jury . . . violated . . . [his] right of
confrontation.‛3 In particular, Isom argues that ‚*p+lacing a
white board . . . between him and [the child] deprived him of the
right to confront [the child] and unduly suggested [that Isom]
was dangerous and compromised the safety of the witness.‛ The
State responds that Isom ‚demonstrates no error in the use of the
whiteboard, because the right to face-to-face confrontation can
3. Isom asserts that the whiteboard barrier violated his federal
and state constitutional rights to confrontation. But because Isom
presents no independent state constitutional analysis, we
address only his federal constitutional claim. See State v.
Martinez,
2013 UT 23, ¶ 18 n.3,
304 P.3d 54.
20130740-CA 14
2015 UT App 160
State v. Isom
be abridged even absent a defendant’s misbehavior.‛ The State
further argues that even if the trial court erred in placing the
whiteboard barrier between the child and Isom, any error was
harmless beyond a reasonable doubt.
¶42 ‚Whether testimony was admitted in violation of a
defendant’s right to confrontation is a question of law, which we
review for correctness.‛ State v. Calliham,
2002 UT 86, ¶ 42,
55
P.3d 573.
¶43 On direct examination, the child initially refused to testify
about Isom’s abuse. When asked to explain who else lived with
her mother, the child responded, ‚I forgot‛ and ‚I don’t know.‛
The child testified that she knew Isom and acknowledged that
something had happened that made her feel ‚bad‛ about him.
But when asked why she felt bad about Isom, she responded
that she ‚forgot.‛ When the prosecutor sought details, the child
repeatedly said, ‚I forgot.‛ The child acknowledged that she had
spoken with the prosecutor before the trial about what had
happened at her mother’s house, but she refused to testify about
what happened, stating that the events were hard to talk about.
When asked if she would try to discuss what had happened, she
responded, ‚No.‛
¶44 After the child repeatedly stated that she did not
remember and would not discuss the abuse, the prosecutor
requested a recess. The court met in chambers with Isom, his
trial counsel, and the prosecutor. The court later made a record
of the discussion, noting that the prosecutor had asked to place a
‚rolling white board‛ between the child and Isom. The
prosecutor argued that the child was ‚having difficulties talking
about intimate details and the view of [Isom] is complicating
that.‛ The court agreed to placing the whiteboard barrier
between Isom and the child ‚to see if it *was+ possible to elicit
testimony from the child under those circumstances.‛
¶45 Trial counsel objected, arguing that because Isom was not
acting inappropriately, placing the barrier would violate his
20130740-CA 15
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State v. Isom
‚right to confront his witness.‛ Trial counsel also argued that
placing the barrier might induce the jurors to draw an adverse
inference against Isom.
¶46 The trial court agreed that Isom had ‚maintained absolute
decorum‛ during the trial. The court nevertheless overruled trial
counsel’s objection and ordered the barrier placed between the
child and Isom so as not to block the court’s or trial counsel’s
views of either the child or Isom. After returning to the
courtroom, the trial court explained to the jury that with ‚child
witnesses, sometimes, sensitivities require the [c]ourt to exercise
some discretion in moving things around.‛ The trial court then
instructed the jury not to ‚draw any adverse inference for the
*c+ourt’s exercise of its housekeeping powers.‛
¶47 Even with the whiteboard barrier in place, the child did
not testify with any specificity about the abuse. As before, when
the prosecutor asked the child whether Isom had done anything
‚bad‛ to her, she responded, ‚I forgot‛ and, ‚I don’t remember.‛
The child also testified that she forgot telling her father about the
abuse. She claimed not to know why she was testifying and not
to remember discussing her testimony with her father or the
prosecutor. The child never did testify in court concerning the
abuse.
¶48 The Confrontation Clause guarantees a criminal
defendant’s right to confront the prosecution’s witnesses:
In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses
against him . . . .
U.S. Const. amend. VI. The Confrontation Clause generally
guarantees the right to a face-to-face confrontation with adverse
witnesses. E.g., Crawford v. Washington,
541 U.S. 36, 59 (2004).
However, if ‚the State makes an adequate showing of necessity,
the state interest in protecting child witnesses from the trauma of
testifying . . . is sufficiently important to justify the use of a
special procedure that permits a child witness . . . to testify . . . in
20130740-CA 16
2015 UT App 160
State v. Isom
the absence of face-to-face confrontation.‛ Maryland v. Craig,
497
U.S. 836, 855 (1990). ‚If an error does occur, we must determine
whether . . . the error was nonetheless ‘harmless beyond a
reasonable doubt.’‛ State v. Chavez,
2002 UT App 9, ¶ 17,
41 P.3d
1137 (quoting Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986)).
¶49 Assuming without deciding that the trial court erred in
placing the whiteboard barrier between the child and Isom, we
conclude that any error was harmless beyond a reasonable
doubt. ‚When assessing an error’s harmfulness, we look, in part,
to ‘the overall strength of the State’s case’: ‘*t+he more evidence
supporting the verdict, the less likely there was harmful error.’‛
State v. Benson,
2014 UT App 92, ¶ 30,
325 P.3d 855 (alteration in
original) (quoting State v. Hamilton,
827 P.2d 232, 240 (Utah
1992)).
¶50 Here, because the child’s testimony—even with the
whiteboard barrier in place—‚was entirely favorable‛ to Isom,
‚the error was harmless.‛ In re P.G.,
2015 UT App 14, ¶ 18,
343
P.3d 297. After the trial court placed the whiteboard barrier
between the child and Isom, the child did not incriminate Isom.
The child did not acknowledge the abuse or discuss any details
of the abuse, and repeatedly answered the prosecutor’s
questions by saying, ‚I forgot‛ and, ‚I don’t remember.‛ In
short, the child testified both with and without the barrier in
place that she did not remember anything about the abuse.
¶51 Furthermore, other admissible evidence established
Isom’s guilt. In the video of the child’s CJC interview and in her
testimony later via closed-circuit television, the child described
the abuse in detail. Trial counsel fully cross-examined the child
about her trial testimony and her CJC interview. And Isom’s
friend testified that Isom admitted to abusing the child.
¶52 Finally, to the extent that the whiteboard barrier may
have induced the jury to draw negative inferences about Isom,
the trial court addressed this concern by instructing the jury ‚to
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2015 UT App 160
State v. Isom
draw no adverse inference to either party from this re-
arrangement of the furniture.‛
¶53 In sum, any possible error was harmless beyond a
reasonable doubt. The child’s testimony behind the barrier did
not incriminate Isom, sufficient alternative evidence supported
Isom’s convictions, and the trial court instructed the jury not to
draw adverse inferences from the presence of the whiteboard
barrier. Accordingly, Isom’s constitutional claim fails.
B. The Closed-Circuit-Television Testimony
¶54 Isom also contends that the child’s testimony via closed
circuit television (CCTV) violated rule 15.5(b) of the Utah Rules
of Criminal Procedure in two respects: (1) the State failed ‚to
establish and the court [failed] to find [that] the use of CCTV
was necessary,‛ and (2) the presence of the child’s father’s
girlfriend in the interview room, with whom the child interacted
throughout her CCTV testimony, risked ‚the malevolent
coaching of a child witness.‛
¶55 After placement of the whiteboard barrier failed to elicit
the child’s testimony, the prosecutor suggested that the child
testify by CCTV. The court ordered a recess to set up the
necessary technology. When proceedings resumed, the child, the
prosecutor, trial counsel, and the child’s father’s girlfriend—
whom the child referred to as ‚Mom‛—assembled in an
interview room where the child’s testimony was broadcast to the
jury through CCTV.
¶56 The trial court explained to the jury ‚that the presence of
the witness in the open court was, perhaps, too intimidating for
the young lady to continue on with her testimony.‛ The
prosecutor reminded the trial court that rule 15.5(b) of the Utah
Rules of Criminal Procedure required the court to advise the
child ‚that *Isom+ is present in the *c+ourtroom and can listen to
the testimony.‛ The trial court told the child that Isom ‚is in the
courtroom with me.‛ The child initially remained reluctant to
discuss the details of the abuse. When the prosecutor asked the
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State v. Isom
child why it was hard for her to testify, she responded, ‚Is
[Isom+ watching me?‛ The prosecutor told the child that Isom
was in the courtroom. ‚Watching me?‛ she asked. The trial court
stated, ‚[T]he record will reflect that [Isom] is watching.‛ The
child’s father’s girlfriend told the child, ‚It’s okay. You’ll be all
right, sweetie. Just answer the questions, okay?‛ The child then
described multiple instances of abuse in detail.
¶57 Isom first contends that the child’s CCTV testimony
violated rule 15.5(b) of the Utah Rules of Criminal Procedure on
the ground that the State failed ‚to establish and the court
[failed] to find [that] the use of CCTV was necessary.‛ The State
responds that Isom did not preserve his claim and does not
assert on appeal any exception to the preservation requirement.
¶58 Rule 15.5(b) of the Utah Rules of Criminal Procedure
governs the use of CCTV testimony:
In a criminal case concerning a charge of child
abuse or of a sexual offense against a child, the
court, upon motion of a party and for good cause
shown, may order that the testimony of any victim
or other witness younger than 14 years of age be
taken in a room other than the court room, and be
televised by closed circuit equipment to be viewed
by the jury in the court room.
Utah R. Crim. P. 15.5(b). This rule requires the State ‚to provide
proof that testifying in [d]efendant’s presence would cause the
child witnesses to suffer emotional or mental strain or cause
them to be unreliable witnesses.‛ State v. Bhag Singh,
2011 UT
App 396, ¶ 12,
267 P.3d 281. Isom argues that because ‚[n]o such
proof [of emotional or mental strain] was presented, and no
findings were made by the trial court,‛ the trial court erred in
permitting the child to testify by CCTV.
¶59 ‚*T]o preserve an issue for appeal, the issue must be
presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.‛ 438 Main St. v. Easy Heat,
20130740-CA 19
2015 UT App 160
State v. Isom
Inc.,
2004 UT 72, ¶ 51,
99 P.3d 801 (citation and internal
quotation marks omitted). Among other things, this standard
requires that the issue be ‚specifically raised.‛ See
id. (citation
and internal quotation marks omitted).
¶60 Isom did not preserve his rule 15.5(b) claim. Isom argues
that he preserved this claim when he objected to the whiteboard
barrier. But if a party ‚makes an objection at trial based on one
ground, this objection does not preserve for appeal any alterative
grounds for objection.‛ State v. Low,
2008 UT 58, ¶ 17,
192 P.3d
867. In In re P.G., we considered whether ‚the juvenile court
could only allow [the child] to testify from the child witness
room if it first made a formal finding of necessity.‛
2015 UT App
14, ¶ 17,
343 P.3d 297. We concluded that the defendant there
did not preserve his claim, because ‚although the juvenile court
did not make a finding of necessity before it allowed [the child]
to testify from the child witness room, [the defendant] did not
object to the room’s use on that basis.‛
Id. This precedent
governs here. Although Isom objected to the placement of the
whiteboard barrier, he did not object to allowing the child to
testify by CCTV. Id.; see also Low,
2008 UT 58, ¶ 17; State v.
Winfield,
2006 UT 4, ¶ 14,
128 P.3d 1171 (‚Generally speaking, a
timely and specific objection must be made [at trial] in order to
preserve an issue for appeal.‛ (alteration in original) (citation
and internal quotation marks omitted)). And Isom does not
claim the benefit of any exception to the preservation rule.
Accordingly, we do not reach the merits of this claim.
¶61 Isom next contends that the trial court erred in allowing
the child’s father’s girlfriend to sit with the child during her
CCTV testimony, because ‚no evidence shows *the girlfriend]
was a therapist or counselor.‛ The State again responds that
Isom did not preserve his claim and on appeal asserts no
exception to the preservation rule.
¶62 Rule 15.5(b) of the Utah Rules of Criminal Procedure
imposes mandatory conditions on the use of CCTV testimony. It
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2015 UT App 160
State v. Isom
requires that ‚[a]ll of the following conditions shall be
observed‛:
Only the judge, attorneys for each party and the
testifying child (if any), persons necessary to
operate equipment, and a counselor or therapist
whose presence contributes to the welfare and
emotional well-being of the child may be in the
room during the child’s testimony.
Utah R. Crim. P. 15.5(b)(1). Isom argues that because the child’s
father’s girlfriend was neither a ‚person*+ necessary to operate
equipment‛ nor ‚a counselor or therapist,‛ the trial court erred
in permitting the child’s father’s girlfriend to sit, and interact,
with the child throughout the CCTV testimony.
¶63 This claim fails for the same reason that Isom’s first rule
15.5(b) claim failed: Isom did not preserve it. Isom again
contends that his trial counsel’s objection to the use of the
whiteboard barrier preserved this CCTV claim. But as noted, ‚if
a party makes an objection at trial based on one ground, this
objection does not preserve for appeal any alternative grounds
for objection.‛ Low,
2008 UT 58, ¶ 17. And Isom does not claim
the benefit of any exception to the preservation rule. See Winfield,
2006 UT 4, ¶ 14. Accordingly, we do not reach the merits of this
claim.
V. Leading Questions
¶64 Isom contends that ‚the trial court abused its discretion
by permitting the prosecutor to excessively use leading
questions.‛ He argues that the prosecutor’s ‚unfettered leading
questions‛ were ‚excessive, and created evidence due to their
excessive suggestive nature and the prosecutor’s repeated
affirmation of desired testimony.‛ The State responds that
‚*g+iven *the child+’s age and her demonstrated difficulty in
relating the sensitive and embarrassing details of her abuse,
[Isom] has not shown that the trial court abused its discretion in
allowing leading questions.‛
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2015 UT App 160
State v. Isom
¶65 A leading question suggests its answer. ‚The vice in a
leading question is that it in effect puts words in the witness’s
mouth so the testimony is really that of the questioner and not
the witness.‛ State v. Ward,
347 P.2d 865, 867 (Utah 1959). ‚This
usually occurs in so framing a question that it assumes a fact to
be true, or in reciting a fact and merely seeking affirmation from
the witness, or in so phrasing the question as to suggest the
desired answer.‛
Id. ‚Questions calling for a ‘yes’ or ‘no’ answer
are not leading unless they are unduly suggestive under the
circumstances.‛ People v. Pearson,
297 P.3d 793, 825 (Cal. 2013).
¶66 ‚The allowance or exclusion of leading questions is
within the discretion of the trial court. A ruling on the use of
leading questions will therefore be overruled only if the trial
court has abused its discretion.‛ State v. Ireland,
773 P.2d 1375,
1377 (Utah 1989). Rule 611(c) of the Utah Rules of Evidence
governs the circumstances under which the trial court should
allow leading questions:
Leading questions should not be used on direct
examination except as necessary to develop the
witness’s testimony. Ordinarily, the court should
allow leading questions:
(1) on cross-examination, and
(2) when a party calls a hostile witness, an
adverse party, or a witness identified
with an adverse party.
Utah. R. Evid. 611(c).
¶67 ‚Leading questions may be necessary to develop the
testimony of a child, especially one who is testifying about a
sensitive and embarrassing subject.‛ State v. Kallin,
877 P.2d 138,
144 (Utah 1994). Nevertheless, because leading questions may
inadvertently or intentionally shape the witness’s testimony to
conform to the questioner’s version of the facts, trial judges
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State v. Isom
should ‚exercise tight control over the use of leading questions.‛
Id.
¶68 In State v. Kallin, our supreme court held that the
prosecutor appropriately used leading questions to develop the
victim’s testimony.
877 P.2d 138, 144 (Utah 1994). There, the
eleven-year-old victim had trouble testifying; ‚she was in tears
for most of the direct as well as cross-examination.‛
Id.
Eventually, an abuse coordinator sat with her.
Id. The trial judge
‚did not give the prosecutor license to testify for the witness. The
prosecutor did not describe the alleged rape by leading
questions, and although some of the questions asked were
suggestive, the witness described the events in her own words.‛
Id.
¶69 State v. Ireland provides another example of the
appropriate use of leading questions with a child-sexual-abuse
victim.
773 P.2d 1375 (Utah 1989).
In light of the victim’s use of dolls to demonstrate
that defendant had sodomized him, the
prosecutor’s careful use of leading questions, and
the trial court’s considered opinion that leading
questions were necessary to develop the victim’s
testimony, we do not believe that the allowance of
leading questions was error.
Id. at 1377.
¶70 Isom argues that ‚[t]he prosecutor intentionally shaped
and created evidence that conformed to the *S+tate’s version of
the facts with repeated, highly suggestive leading questions to
the child until [the] desired responses were obtained.‛ He argues
that ‚*n+o evidence shows the child was distraught or
distressed‛ and that the prosecutor led the child ‚with respect to
where they lived, who lived in the house, which rooms were
involved, and all aspects of the events.‛ Isom characterizes the
direct examination as involving ‚questions provid*ing+ expected
answers regarding every aspect of the abuse: touching, private,
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State v. Isom
with clothes ‘on’ or ‘off,’ lying down, inside, outside.‛ He asserts
that ‚*i+t took the prosecutor two separate rounds of leading
questioning to establish that [Isom] had abused [the child] with
his hand or digits when the first attempt did not implicate
abusive touching.‛ Finally, Isom asserts that ‚*l+eading questions
were repeated, sometimes multiple times, whenever [the child]
gave an unwanted answer, until a desired response was elicited.
[The child] never answered with more than a few words, and
never in her own words.‛
¶71 We agree that the examination Isom describes would
cross the line into impermissible leading questioning. But his
description bears little resemblance to the examination contained
in the record.
¶72 Like the abuse victims in Kallin and Ireland, the child
struggled to testify about the details of her abuse. Before and
after placement of the whiteboard barrier, the child repeatedly
stated that she did not want to talk, or even try to talk, about the
abuse and responded to questions about it by answering, ‚I
don’t remember‛ and, ‚I forgot.‛ The prosecutor properly used
leading questions to set the stage for discussing the child’s
abuse. But the child described the abuse in response to
nonleading questions. The child first acknowledged the abuse in
response to the prosecutor’s question, ‚Do you remember
anybody touching you in a way that you didn’t like?‛ The child
responded, ‚My private.‛ The prosecutor continued, ‚Who
touched you on your private?‛ The child responded, ‚Jace.‛ The
prosecutor continued with more nonleading questions:
Prosecutor: ‚One time or more than one time?‛
Child: ‚More.‛
Prosecutor: ‚More than two times or just two
times?‛
Child: ‚More than two times.‛
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Prosecutor: ‚Where were you when he touched
you?‛
Child: ‚At his house.‛
Prosecutor: ‚In what room?‛
Child: ‚Living room.‛
The prosecutor then explored the nature of the abuse with more
nonleading questions:
Prosecutor: ‚How did Jace touch you? What part of
his body touched you? Did his nose touch you?‛4
Child: ‚No.‛
Prosecutor: ‚No? What part of his body was
touching you?‛
Child: ‚His private.‛
Prosecutor: ‚His private was touching your
private?‛
Child: ‚Yes.‛
¶73 After more foundational questions (all nonleading), the
prosecutor further explored the details of the abuse:
Prosecutor: ‚When he was touching your private
with his private, were your clothes on, off or some
other way?‛
4. This is a leading question. But Isom was not convicted of
touching the child with his nose.
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State v. Isom
Child: ‚Off.‛
Prosecutor: ‚Okay. How did your clothes get off?
Do you remember? Did you take your clothes off
or did someone else take your clothes off or how
did that happen?‛
Child: ‚He took them off.‛
Prosecutor: ‚Jace did? Was that yes? Can you say
yes?‛
Child: ‚Yes.‛
Isom describes this exchange as the prosecutor ‚direct*ing+ *the
child] to say yes.‛ In fact, the prosecutor was simply ensuring
that the child’s answer was clear and audible, as demonstrated
by the next question: ‚Okay. Say yes in this microphone so we
can record it, okay?‛ Thus, the prosecutor instructed the child to
answer ‚yes‛ not to lead her, but to ensure that her original
nonverbal response would be captured on record.
¶74 The child gave further detail of the abuse in response to
the prosecutor’s nonleading questions such as these: ‚On the
bed, okay, and were you sitting or standing or lying or what
were you doing?‛ ‚Were your clothes on or off?‛ ‚Okay, how
did they get off?‛ ‚After he told you to take your clothes off,
then, what would happen?‛ ‚Did he touch you with any other
part of his body?‛ ‚Where were his hands when he was
touching you with his private?‛ And so on.
¶75 We are baffled at how Isom could describe this
examination as consisting of a series of ‚leading, suggestive, yes-
or-no questions‛ or could conclude that the child never
answered in her own words. We hold that the prosecutor used
leading and nonleading questions properly. Indeed, he elicited
the facts of the charged offenses almost exclusively with
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State v. Isom
nonleading questions. See State v. Kallin,
877 P.2d 138, 144 (Utah
1994); State v. Ward,
347 P.2d 865, 867 (Utah 1959). We discern no
error here.
VI. Character Evidence
¶76 Isom contends that his trial counsel was constitutionally
ineffective for failing to object under rule 404(b) of the Utah
Rules of Evidence to Isom’s friend’s testimony about Isom’s
drug use; to Isom’s interest in sexual ‚threesomes‛ and
bestiality; to Isom’s supposed urination fetish; and to the child’s
mother’s participation in bestiality.5 In the alternative, Isom
contends that the trial court plainly erred by not excluding this
evidence sua sponte under rule 404(b).
¶77 At trial, Isom’s friend testified—without objection from
trial counsel or intervention by the trial court—to Isom’s drug
use; to his interest in sexual ‚threesomes‛ and bestiality; to his
supposed urination fetish; and to the child’s mother’s
participation in bestiality. Isom’s friend testified that these
admissions occurred during the same conversation in which
Isom admitted that he and the child’s mother had sexually
abused the child. Isom’s friend testified that he and Isom had
been ‚good friends‛ and ‚drug addicts.‛ Isom’s friend stated
that he and Isom had ‚smoked some spice‛ at the time Isom
admitted to him that Isom and the child’s mother had abused the
child.
¶78 Isom’s friend testified that during this conversation, Isom
invited him to participate in a sexual threesome with Isom and
the child’s mother, something Isom’s friend had done with Isom
and Isom’s prior girlfriend. Isom’s friend testified that while he
5. ‚A person commits the crime of bestiality if the actor engages
in any sexual activity with an animal with the intent of sexual
gratification of the actor.‛ Utah Code Ann. § 76-9-301.8(1)
(LexisNexis 2012).
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State v. Isom
and Isom discussed the offer, Isom showed his friend digital
‚pictures‛ and ‚clips‛ of the child’s mother having sex with a
dog. Finally, Isom’s friend testified that Isom told him about one
occasion when Isom was having sex with the child’s mother
while the child was ‚on top of him as well.‛ Isom said, according
to his friend, that the child ‚*t+old her mommy that [Isom] peed
on her‛ during this sexual encounter with the child’s mother.
Isom’s friend testified that he understood Isom to mean that
Isom had ejaculated on the child.
¶79 Rule 404(b) sets forth the limitations on the use of
evidence of crimes, wrongs, and other-acts evidence:
(1) Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in
order to show that on a particular occasion the
person acted in conformity with the character.
(2) This evidence may be admissible for another
purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
Utah R. Evid. 404(b).
A. Ineffective Assistance of Counsel
¶80 Isom contends that his trial counsel was constitutionally
ineffective for ‚failing [to] object to the State introducing
character evidence regarding use of drugs, interest in adult
sexual threesomes and bestiality, . . . a possible urination fetish,‛
and evidence that the child’s mother ‚had engaged in sex with a
dog.‛ The State responds that Isom has not shown that his trial
counsel was deficient in not objecting to the testimony and that
‚*e+vidence of ‘a supposed urination fetish’ is misinterpreted
and relates to the charged crimes, not other acts.‛ We review
ineffective-assistance-of-counsel claims raised for the first time
on appeal for correctness. State v. Lucero,
2014 UT 15, ¶ 11,
328
P.3d 841.
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State v. Isom
¶81 To succeed on an ineffective-assistance-of-counsel claim,
an appellant must show (1) that ‚counsel’s performance was
deficient in that it ‘fell below an objective standard of
reasonableness’‛ and (2) that ‚counsel’s performance was
prejudicial in that ‘there is a reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.’‛ Menzies v. Galetka,
2006 UT 81, ¶ 87,
150 P.3d 480 (quoting Strickland v. Washington,
466 U.S. 668, 688,
694 (1984)). An appellant must rebut ‚a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.‛ Strickland,
466
U.S. at 689 (citation and internal quotation marks omitted).
Therefore, any ambiguities or deficiencies in the appellate record
‚simply will be construed in favor of a finding that counsel
performed effectively.‛ State v. Litherland,
2000 UT 76, ¶ 17,
12
P.3d 92. ‚*P]roof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.‛ Allen v.
Friel,
2008 UT 56, ¶ 21,
194 P.3d 903 (alteration in original)
(citation and internal quotation marks omitted).
¶82 We conclude that trial counsel’s decision not to object to
Isom’s friend’s testimony about sexual ‚threesomes‛ and
bestiality was supported by a reasonable trial strategy: to
impeach Isom’s friend. Isom’s friend testified that Isom had
admitted to him that Isom had abused the child. Trial counsel’s
strategy was to impeach the friend with friend’s additional,
more far-fetched claims. After allowing the jury to hear all of the
details of Isom’s friend’s testimony, trial counsel called Isom and
the child’s mother to testify. Both denied engaging in sexual
‚threesomes,‛ bestiality, and child sex abuse. Trial counsel then
argued that Isom’s friend’s testimony was so ‚shocking‛ and
‚outrageous‛ that it could not be believed. Trial counsel
emphasized that the prosecutor was ‚relying on‛ and putting
‚most of his faith‛ in Isom’s friend’s testimony. Trial counsel
asked the jury to consider Isom’s friend’s testimony about child’s
mother ‚and animals and those type of things, and if you think
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State v. Isom
that that’s not true, then you can disregard the rest of his
testimony.‛
¶83 Trial counsel’s decision not to object to Isom’s friend’s
testimony about Isom’s drug use also may have been a
legitimate exercise of professional judgment. Isom’s friend was a
convicted drug addict, a fact that trial counsel used to further
undermine his credibility. Isom’s friend testified that he and
Isom had been ‚good friends‛ and ‚drug addicts.‛ He testified
that he and Isom had ‚smoked some spice‛ at Isom’s home on
the day Isom revealed the abuse to his friend. In closing, trial
counsel emphasized that Isom’s friend ‚was high‛ during his
conversation with Isom and that, because he ‚was high,‛ Isom’s
friend took what Isom had told him and ‚blew it up‛ into an
unbelievable story. Trial counsel thus could reasonably have
concluded that objecting to Isom’s friend’s description of his and
Isom’s shared drug use would undermine the strategy of
impeaching Isom’s friend’s salacious testimony as the product of
his drug use. Furthermore, Isom admitted to past drug use when
he testified.
¶84 Finally, trial counsel’s decision not to object to Isom’s
friend’s testimony about Isom’s ‚supposed urination fetish‛
does not establish deficient performance. Isom’s friend explained
at trial that what Isom now describes as a reference to a
‚supposed urination fetish‛ was in fact a reference to Isom’s
having ejaculated during the sexual abuse of the child. In any
event, this testimony related to the crimes charged, not to other
acts, regardless of whether Isom’s statement was referring to
ejaculation or urination. Rule 404(b) ‚applies only to evidence
that is extrinsic to the crimes charged.‛ Lucero,
2014 UT 15, ¶ 14
n.7 (citation and internal quotation marks omitted). Thus,
whether referring to ejaculation or urination, Isom’s statement to
his friend could reasonably be read not as a reference to an
‚other act,‛ but to the very act charged.
¶85 In sum, we conclude that trial counsel’s decision not to
object to the challenged testimony ‚falls within the wide range
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State v. Isom
of reasonable professional assistance.‛ Strickland,
466 U.S. at 689
(citation and internal quotation marks omitted). Isom’s
ineffective-assistance-of-counsel claim accordingly fails.
B. Plain Error
¶86 Isom contends that the trial court plainly erred in
admitting the challenged evidence in violation of rule 404(b) of
the Utah Rules of Evidence. The State responds that Isom ‚has
not shown that the trial court erred, let alone plainly erred, in
not sua sponte striking the testimony.‛
¶87 To demonstrate plain error, a defendant must establish
that (1) the trial court committed error, (2) the error should have
been obvious to the court, and (3) the error is harmful. State v.
Dunn,
850 P.2d 1201, 1208–09 (Utah 1993). To establish that an
error should have been obvious to the trial court, an appellant
‚must show that the law governing the error was clear at the
time the alleged error was made.‛ State v. Dean,
2004 UT 63, ¶ 16,
95 P.3d 276 (citing State v. Eldredge,
773 P.2d 29, 35–36 (Utah
1989)). Thus, an obvious error is one that contravenes ‚settled
appellate law,‛ Ross, 951 P.2d at 239, or ‚the plain language of
the relevant statute,‛ State v. Low,
2008 UT 58, ¶ 41,
192 P.3d 867.
An error is prejudicial if ‚absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant, or
phrased differently, our confidence in the verdict is
undermined.‛ Dunn, 850 P.2d at 1208–09.
¶88 Furthermore, a trial court is ‚not required to constantly
survey or second-guess *a+ nonobjecting party’s best interests or
trial strategy and is not expected to intervene in the proceedings
unless the evidence would serve no conceivable strategic
purpose.‛ State v. Bedell,
2014 UT 1, ¶ 26,
322 P.3d 697 (alteration
in original) (citation and internal quotation marks omitted).
Consequently, where ‚defense counsel was not ineffective for
failing to object to the State’s use of . . . 404(b) evidence, there
was no plain error on the part of the district court in not
intervening to foreclose the State’s use of the evidence.‛
Id.
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State v. Isom
¶89 Under these principles, Isom cannot establish plain error.
As noted above, see supra ¶¶ 82–83, trial counsel’s decision not to
object to the testimony Isom now challenges on appeal served
conceivable strategic purposes. Consequently, the trial court did
not obviously err in admitting it.
¶90 In sum, we conclude that the trial court did not plainly err
when it did not intervene sua sponte to prevent the jury from
hearing the challenged testimony.
VII. Cumulative Error Claim
¶91 Finally, Isom cursorily contends that ‚the cumulative
effect of the errors in this case warrants reversal‛ of his
convictions. The State responds that because Isom ‚has not
demonstrated any single error, the cumulative error doctrine is
inapplicable.‛
¶92 Under the cumulative-error doctrine, we ‚will reverse
only if the cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.‛ State v. Dunn,
850 P.2d
1201, 1229 (Utah 1993) (omission in original) (citation and
internal quotation marks omitted). Here, Isom has failed to carry
his burden of demonstrating error in any of his claims. But even
if Isom had demonstrated some error, cumulative-error analysis
‚cannot be conducted in a vacuum, ignorant of the other
evidence demonstrating guilt.‛ State v. Perea,
2013 UT 68, ¶ 105,
322 P.3d 624. As we have noted, more than sufficient evidence
supported Isom’s convictions. Accordingly, Isom’s cumulative-
error claim fails.
CONCLUSION
¶93 The judgment of the district court is affirmed.
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