State v. Ngoy

2025 UT App 106

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MAP TOUCH NGOY,
Appellant.

Opinion
No. 20221005-CA
Filed July 10, 2025

Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 181910498

Erick B. Grange, Attorney for Appellant
Derek E. Brown, John J. Nielsen, and Andrew F.
Peterson, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN M. HARRIS
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Map Touch Ngoy appeals his conviction of two counts of
aggravated sexual abuse of a child. He argues that the trial court
erred in denying the directed verdict motion he made at trial
based on insufficient evidence. He additionally argues that the
court plainly erred in admitting certain expert testimony. We
disagree and affirm.
State v. Ngoy

BACKGROUND

¶2 In October 2018, the police were called after twelve-year-
old Mary 1 disclosed to her parents that Ngoy, her grandmother’s
husband, had sexually abused her the previous year. As a result
of the allegations, the State charged Ngoy with two counts of
aggravated sexual abuse of a child for touching Mary’s breasts
and genitals. 2 See Utah Code § 76-5-404.1.

¶3 At trial, the State called Mary as its first witness, and she
testified as to the abuse by Ngoy. She explained that when her
family had first come to live with her grandmother and Ngoy (and
several other extended family members), she and her three
siblings would sleep on the floor of the “upstairs living room.”
Mary stated that once, in the middle of the night, she was in that
room, asleep on her back, when Ngoy came in and began touching
her. She recalled that Ngoy first “rubbed up and down [her] legs”
and then “proceeded to put his hands under [her] shirt.” She
stated that Ngoy unclipped her bra, moved her shirt and bra out
of the way, and began “to kiss and rub” her breasts with “[h]is
hands and his mouth.” According to Mary, Ngoy also removed
the upper part of her leggings and “touched [her] vaginal area.”
She additionally testified that “throughout” the episode, Ngoy
“kissed [her] mouth.” Mary stated that the episode ultimately
ended by Ngoy pulling her pants back up and putting her shirt
down and then retreating to the kitchen.

1. A pseudonym.

2. Ngoy was charged with a third count of aggravated sexual
abuse of a child based on conduct alleged by Mary’s younger
sister. However, the jury acquitted Ngoy on that charge, and thus,
only the charges corresponding to Mary’s allegations are at issue
in this appeal.

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State v. Ngoy

¶4 Although Mary acknowledged that in the darkness of the
room she could not see Ngoy but “was only able to feel him,” and
that he never said anything, she explained how she nonetheless
knew it was Ngoy: “Because he has no teeth and when he kissed
me on my lips I didn’t feel [any] teeth.” She related that during
the episode, she “tried to pretend that [she] wasn’t in that
situation and that it was all a dream.” And she said that she did
not report the abuse to anyone right away because she “was afraid
that no one would believe [her].”

¶5 The State thereafter presented its remaining witnesses,
including a forensic interviewer (Expert) who had experience
testifying “as an expert about child disclosures and about
Children’s Justice Center interviews.” During questioning
regarding how a forensic interview generally proceeds, the
following exchange about the likelihood of delayed disclosure
occurred:

Q. Okay. Do children always report abuse right
away?

A. No.

Q. Have you done interviews with children who
have disclosed abuse but delayed a substantial
period of time before disclosing?

A. Yes.

Q. How common is that?

A. It’s very common. Delayed disclosure is
something that is very common, particularly with
sexual abuse. There’s research that indicates that as
much as up to 60 to 80 percent of abuse is either
disclosed after a significant delay or never
disclosed. But certainly we see and I’ve seen in my

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State v. Ngoy

experience, children who delay the disclosure
anywhere from, you know, it could be several
weeks to several years.

The questioning then turned to the discussion of possible reasons
for a delayed disclosure of abuse.

¶6 When the State rested its case, Ngoy made a motion for a
directed verdict. He argued, among other things, that the State
had not submitted sufficient evidence to support Mary’s
identification of him as her abuser where Mary never saw him but
only relied on her lack of feeling teeth for her identification. The
trial court, recognizing that it must “view the evidence in a light
most favorable to the State,” denied the motion.

¶7 The defense then presented its witnesses, and closing
arguments were given. Thereafter, the jury deliberated and
returned a guilty verdict on both charges concerning Mary. Ngoy
now appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Ngoy argues that the identity evidence produced by the
State at trial was insufficient and, thus, the court erred in denying
his motion for a directed verdict. “A trial court’s ruling on a
motion for a directed verdict is a question of law, which we
review for correctness, giving no particular deference to the trial
court’s legal conclusions.” State v. Hirschi, 2007 UT App 255, ¶ 15,
167 P.3d 503 (quotation simplified); see also State v. Stricklan, 2020
UT 65, ¶ 30, 477 P.3d 1251. Nonetheless, “a defendant has a
substantial burden on appeal to show that the trial court erred in
denying a motion for directed verdict.” Stricklan, 2020 UT 65, ¶ 30
(quotation simplified). The defendant “must show that, when
viewed in the light most favorable to the State, no evidence existed
from which a reasonable jury could find beyond a reasonable

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State v. Ngoy

doubt that the defendant committed the crime.” Id. (quotation
simplified).

¶9 Additionally, and in the alternative, Ngoy argues that
Expert should not have been allowed to give statistical probability
testimony about the likelihood of delayed disclosure of sexual
abuse. Ngoy concedes that this issue was not preserved for
appeal, but he relies on the plain error exception to the appellate
preservation rule. “To prevail under plain error review, a
defendant must demonstrate three elements: (1) that an error
occurred, (2) that the error should have been obvious to the trial
court, and (3) that there is a reasonable likelihood that the
outcome would have been more favorable to the defendant in the
absence of the error.” State v. Milligan, 2012 UT App 47, ¶ 6, 287
P.3d 1 (quotation simplified).

ANALYSIS

I. Sufficiency of the Evidence

¶10 Ngoy argues that the trial court erred in denying his
motion for a directed verdict based on an asserted insufficiency of
the evidence, specifically, that there was insufficient evidence that
Ngoy abused Mary. See generally Utah R. Crim. P. 17(o) (“At the
conclusion of the evidence by the prosecution, or at the conclusion
of all the evidence, the court may issue an order dismissing any
information or indictment, or any count thereof, upon the ground
that the evidence is not legally sufficient to establish the offense
charged therein or any lesser included offense.”). In reviewing the
denial of a motion for a directed verdict based on a claim of
insufficiency of the evidence, “we will uphold the trial court’s
decision if, upon reviewing the evidence and all inferences that
can be reasonably drawn from it, we conclude that some evidence
exists from which a reasonable jury could find that the elements
of the crime had been proven beyond a reasonable doubt.” State
v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation simplified).

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State v. Ngoy

We ultimately conclude that this condition was satisfied in the
instant case.

¶11 We acknowledge that “identification of the defendant as
the person who perpetrated the crime charged is an essential
element that must be proven beyond a reasonable doubt.” State v.
Granados, 2019 UT App 158, ¶ 25, 451 P.3d 289 (quotation
simplified), cert. denied, 462 P.3d 800 (Utah 2020). It is also well-
settled that a jury’s determinations may be based on reasonable
inferences but not on speculation. Salt Lake City v. Carrera, 2015 UT
73, ¶ 11, 358 P.3d 1067. “[T]he difference between an inference and
speculation depends on whether the underlying facts support the
conclusion. A jury draws a reasonable inference if there is an
evidentiary foundation to draw and support the conclusion. In the
case of speculation, however, there is no underlying evidence to
support the conclusion.” Id. ¶ 12.

¶12 Ngoy argues that there are numerous reasons why Mary’s
identification was not reliable evidence to support the jury’s
conclusion that Ngoy was Mary’s abuser, thus making the jury’s
conclusion pure speculation. He first analogizes to the dangers of
eyewitness and earwitness identification and argues that an
identification based on touch is “an even more unreliable method
to identify a person.” Relatedly, he argues that Mary’s perceptual
abilities would have been “significantly decreased from the stress
of the alleged incident,” further increasing the unreliability of her
identification. But while these points may have been valid factors
for the jury to consider in weighing Mary’s identification
testimony, their mere existence does not preclude the jury from
ultimately crediting the identification and relying on that
identification in reaching a guilty verdict.

¶13 Indeed, despite the dangers generally inherent in
eyewitness identification, criminal convictions are frequently
based on admissible identifications by the crime victim or other
eyewitnesses, see Utah R. Evid. 617(b) (providing that the

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State v. Ngoy

admissibility of eyewitness identification turns on whether,
considering certain enumerated factors, it is shown that the jury
could “reasonably rely on the eyewitness identification”), and the
very cases cited by Ngoy establish that even earwitness
identification may, under certain circumstances, be adequate to
sustain a conviction, see State v. Booker, 709 P.2d 342, 345 (Utah
1985) (“[A] voice identification alone is considered insufficient to
support a conviction unless shown to be especially reliable.”
(emphasis added)); State v. Silva, 2000 UT App 292, ¶ 15, 13 P.3d
604 (“For identification by voice of a person to be sufficient to
sustain a conviction, the identifier must either be familiar with the
voice of the person identified or that person’s voice possesses
some peculiar characteristic which could not be easily mistaken.”
(emphasis added) (quotation simplified)). Thus, the relevant
question is not whether a type of identification is, by definition,
reliable, but, instead, whether the circumstances surrounding a
specific identification make it such that a jury could reasonably
rely upon it.

¶14 Regarding the specific circumstances present here, Ngoy
argues that a lack of peculiarity of the touch and Mary’s lack of
familiarity with Ngoy render Mary’s identification unreliable.
Specifically, Ngoy argues that (1) “not having teeth is common”
and “is not a peculiar characteristic sufficient to identify a person”
and (2) no particular familiarity with the touch involved was
established at trial because the State presented “no evidence that
[Mary] was familiar with Ngoy kissing her on the lips or
anywhere” and no evidence that she generally “could distinguish
between a kiss on the lips from a person with teeth and a kiss on
the lips from a person without teeth.” 3

3. Ngoy also argues that Mary’s identification is unreliable under
the circumstances here because Mary “failed to initially identify
Ngoy even by sight at trial.” But this characterization strikes us as
(continued…)

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State v. Ngoy

¶15 As to the peculiarity of the touch, we disagree. We think it
reasonable for a jury to infer—absent any suggestion of a break-
in or an intruder—that the universe of potential abusers was
limited to those individuals residing in the household. Likewise,
it would be reasonable for a jury to infer that toothlessness was a
relatively unique characteristic among the individuals living in
the house, the vast majority of whom were children or young
adults. Thus, we are convinced that toothlessness would, under
the circumstances present here, amount to a unique and highly
reliable identifying feature and that the jury could therefore
reasonably rely on an identification based on that feature.

¶16 As to familiarity, we agree with Ngoy that the State did not
present any evidence that Mary, who had recently come to live

somewhat misleading. The referenced exchange during Mary’s
direct examination is as follows:
Q. . . . So when you met your [grandmother], was
Map Ngoy already her husband when you met her?
A. Yeah.
Q. Do you see Map Ngoy today?
A. No.
Q. So asking about [your grandmother’s] husband,
do you see him today?
A. Yes.
Q. Okay. Could you tell us where he’s sitting and
something that he’s wearing?
A. He’s sitting to my left with a black blazer and
black tie.
It seems quite likely that the initial “No” response was due to
confusion as to what was being asked, not from any actual
struggle Mary had in recognizing Ngoy in the courtroom. And at
any rate, it is unclear how a delay in visual identification at trial—
following several years of no contact—would impact the
reliability of Mary’s identification via touch at the time of the
abuse.

20221005-CA 8 2025 UT App 106
State v. Ngoy

with Ngoy, was familiar with his touch or specifically how,
considering her youth and likely inexperience, she could tell that
the person who kissed her was toothless. And certainly, more
specific testimony as to what exactly Mary felt during the kissing
and the details of how she was able to know that the person
kissing her was toothless would have been helpful to the jury.
Indeed, as Ngoy points out, Mary’s testimony that she did not feel
teeth could also lead to an alternative reasonable inference that
the person had teeth but that Mary just did not feel the teeth during
the kissing. Nonetheless, “the fact that we can identify an equally
plausible alternative inference is not nearly enough to set [a]
verdict aside.” State v. Ashcraft, 2015 UT 5, ¶ 25, 349 P.3d 664
(quotation simplified).

¶17 We recognize that our task on appeal is not to weigh
competing inferences that flow from the evidence presented but
to, instead, simply assess “whether the jury’s verdict is reasonable
in light of all of the evidence taken cumulatively, under a standard
of review that yields deference to all reasonable inferences
supporting the jury’s verdict.” Id. ¶ 24. Because we determine
that, under these circumstances, toothlessness is a unique
characteristic that would render an identification based thereon
sufficiently reliable for the jury to consider, and because Mary’s
identification cleared the bar—albeit maybe not by much—of
“some evidence” from which a reasonable jury could infer that
Ngoy was the perpetrator, see State v. Montoya, 2004 UT 5, ¶ 29, 84
P.3d 1183 (quotation simplified), we must affirm. 4

4. Although the State argues that Mary’s identification was
sufficient evidence to support Ngoy’s conviction, it also points to
other circumstantial evidence that it argues also supports the
conviction, namely, Ngoy’s “silence in the face of an accusation”
and Mary’s younger sister’s separate allegations of inappropriate
touching by Ngoy. But we do not consider these factors in our
(continued…)

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State v. Ngoy

II. Expert Testimony

¶18 Ngoy argues that the trial court plainly erred in allowing
Expert to testify that “[t]here’s research that indicates that as
much as up to 60 to 80 percent of abuse is either disclosed after a
significant delay or never disclosed.” Ngoy asserts that such
testimony “invited a numerical conclusion that [Mary] was telling
the truth rather than allowing the jury to decide the truth based
on the evidence.” In doing so, he relies on holdings in both State
v. Rammel, 721 P.2d 498 (Utah 1986), and State v. Iorg, 801 P.2d 938
(Utah Ct. App. 1990).

¶19 Nearly identical expert testimony and appellate argument
were recently addressed by this court in State v. Garcia-Cardiel,
2024 UT App 174, 561 P.3d 692, cert. denied, 564 P.3d 959 (Utah
2025). There, the State’s expert had testified “about some research
that suggests that 60 to 80 percent of all abuse is not reported at
all or not reported until adulthood.” Id. ¶ 20 (quotation
simplified). On appeal, the defendant challenged this testimony,
arguing that “it was plain error for the trial court not to exclude
it” because it “resemble[d] the inadmissible probability evidence”
given in Rammel and Iorg. Id.

¶20 In considering this argument, the Garcia-Cardiel court
determined that the expert testimony at issue did not run afoul of

sufficiency assessment. The accusation of abuse was vague at best
(Mary’s father testified that he—in a language in which he was
not fluent—told Ngoy “to keep his hands off [his] kids” and that
Ngoy seemed “pretty confused about what [he] was talking
about”), and it is unclear whether Ngoy was given any real
opportunity to respond (Mary’s father testified that he “just
walked away” after confronting Ngoy). And where the jury
acquitted Ngoy of the charge based on alleged abuse of Mary’s
sister, it is unlikely that the jury credited those allegations in
arriving at its guilty verdict.

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State v. Ngoy

Rammel and Iorg because the testimony “was neither anecdotal
nor used to bolster [an individual’s] truthfulness.” Id. ¶ 22. The
court reasoned that the expert’s statistical evidence “came not
from his experience interviewing victims but from research he
was familiar with as an expert in the field.” Id. The court also
reasoned that the expert “never testified specifically about” the
victim disclosures from that case or “weigh[ed] in on another
witness’s credibility”; instead, the expert “spoke only in general
terms about delayed reporting of child abuse.” Id. Thus, the court
concluded, the expert testimony “was admissible under Utah law,
and there was no error when the trial court did not exclude it.” Id.

¶21 Although Ngoy acknowledges that Garcia-Cardiel “appears
to be on point” and would suggest the trial court did not plainly
err in allowing Expert’s probability testimony, Ngoy asserts that
that case “is wrong and should be overturned because it
contradicts established Utah precedent.” Specifically, Ngoy
suggests that although this established precedent may allow
“testimony that an event is ‘common,’” it does not allow
“testimony that something is ‘statistically more likely’ to occur.”
(Quoting State v. Nunez-Vasquez, 2020 UT App 98, ¶¶ 63, 66, 468
P.3d 585, cert. denied, 474 P.3d 945 (Utah 2020).)

¶22 We do not agree with Ngoy’s reading of Utah appellate
precedent. While some precedent to which Ngoy refers has
indeed treated as inadmissible certain testimony setting forth
statistical probabilities, it has not established that statistical
testimony is per se inadmissible. See Rammel, 721 P.2d at 501
(“Even where statistically valid probability evidence has been
presented . . . courts have routinely excluded it when the evidence
invites the jury to focus upon a seemingly scientific, numerical
conclusion rather than to analyze the evidence before it and
decide where truth lies. Probabilities cannot conclusively
establish that a single event did or did not occur and are
particularly inappropriate when used to establish facts not susceptible to
quantitative analysis, such as whether a particular individual is

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State v. Ngoy

telling the truth at any given time.” (emphasis added) (quotation
simplified)); State v. Burnett, 2018 UT App 80, ¶ 43, 427 P.3d 288
(“Not even properly qualified experts are permitted to offer
statistical evidence, anecdotal or otherwise, that informs the jury,
even indirectly, that a witness is more or less likely to be telling the
truth on a particular occasion. . . . The part of [the expert witness’s]
testimony in which he informed the jury that only a small
percentage of sexual abuse allegations are fabricated, and in
which he discussed some of the techniques he uses as an expert to
distinguish between cases involving true allegations and cases
involving fabricated allegations, was categorically inadmissible.”
(emphasis added) (quotation simplified)), cert. denied, 432 P.3d
1232 (Utah 2018); State v. Wright, 2013 UT App 142, ¶¶ 36–37, 304
P.3d 887 (determining that the admission of certain “quasi-
statistical information” in the expert’s testimony was harmless
“even assuming for purposes of appeal that [the testimony] . . . was
inadmissible” (emphasis added)), cert. denied, 312 P.3d 619 (Utah
2013); Iorg, 801 P.2d at 941 (determining that a police officer’s
testimony was not more probative than prejudicial when it was
based on “her anecdotal statistical experience with late reporting
in sexual abuse cases” (emphasis added) (quotation simplified));
see also State v. Francis, 2025 UT App 104, ¶ 82 (“[W]hile Utah
appellate decisions have expressed hesitancy about allowing
experts to rely on concrete statistics, we don’t understand there to
be a rule categorically prohibiting every reference to any
statistic.”).

¶23 And in State v. Nunez-Vasquez, 2020 UT App 98, 468 P.3d
585, cert. denied, 474 P.3d 945 (Utah 2020), this court affirmed the
admission of the challenged expert testimony, distinguishing
from certain prior cases—some of which concerned statistical
expert testimony—by explaining, “In those cases, the problem
with the testimony was that it focused directly on the veracity of
another witness’s testimony.” Id. ¶ 66. The Nunez-Vasquez court
determined that the testimony challenged in that case, however,
was permissible “because [the expert] did not opine as to the

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veracity of [the victim’s] testimony.” Id. Thus, Nunez-Vasquez also
fails to support any assertion that statistical evidence is per se not
allowed.

¶24 In sum, we determine that Garcia-Cardiel is directly on
point, that it does not contradict prior Utah precedent, and that it
controls our decision here. We accordingly decline Ngoy’s
invitation to overturn it. Based on Garcia-Cardiel and as explained
above, we conclude that Expert’s probability testimony was
admissible and that, therefore, Ngoy’s plain error argument fails.

CONCLUSION

¶25 Because the State presented some evidence from which a
reasonable jury could determine that Ngoy committed the
charged crimes, we must uphold the trial court’s decision denying
the directed verdict motion. Additionally, the court did not
plainly err in allowing the State’s expert witness to share
probability testimony. Affirmed.

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