State v. Burnett

2018 UT App 80

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
REVERE BURNETT,
Appellant.

Opinion
No. 20150684-CA
Filed May 3, 2018

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 111905901

Lori J. Seppi, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

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

HARRIS, Judge:

¶1 A jury convicted Revere Burnett of six criminal charges,
including rape and aggravated sexual abuse of a child. Burnett
contends on appeal that he received ineffective assistance of
counsel during his trial, because his attorney failed to object to
the testimony of the State’s expert psychiatrist. After review, we
conclude that much of the expert’s testimony was proper, and
that objection to most of it would therefore have been futile.
However, we agree in part with Burnett’s arguments, and
conclude that his trial counsel was indeed ineffective for failing
to object to that part of the expert’s testimony in which the
expert inappropriately bolstered the victim’s credibility.
Accordingly, we reverse Burnett’s convictions and remand the
case for a new trial.
State v. Burnett

BACKGROUND1

¶2 In 2010, after sixteen years of marriage, Burnett and his
wife (Mother) divorced, and Mother was awarded sole legal
custody of their three teenage children: Victim, her sister (Sister),
and her brother (Brother). The divorce decree granted Burnett
parent-time with all three children. In May 2011, less than a year
after the divorce, Burnett raised the possibility of increasing the
quantity of his parent-time with the children. Within days of
Burnett broaching that subject, then-fifteen-year-old Victim
disclosed to Mother that Burnett had sexually abused and raped
her for many years.

¶3 After investigating the matter, the State charged Burnett
with committing various crimes upon Victim, including five
counts of aggravated sexual abuse of a child, first degree
felonies, see Utah Code Ann. § 76-5-404.1(4) (LexisNexis 2017);
two counts of rape of a child, first degree felonies, see id. § 76-5-
402.1; and two counts of sodomy upon a child, first degree
felonies, see id. § 76-5-403.1.2

¶4 At trial, Victim testified that Burnett first started abusing
her when she was “about three or four years old” and that the

1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly.” State v. Dozah, 2016 UT App 13,
¶ 2, 368 P.3d 863.

2. The State later amended its information against Burnett,
adding four additional counts of aggravated sexual abuse of a
child based on additional allegations that Burnett had also
abused Sister and Brother. The jury acquitted Burnett of those
charges. Those charges and acquittals are not at issue in this
appeal.

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abuse continued until she was “[a]bout 11.” She did not
“remember every single incident,” but could recall several
incidents with specificity. Victim described Burnett digitally
penetrating her vagina and anus. She further described Burnett
forcing her to manually and orally stimulate him. And she also
testified that Burnett raped her on more than one occasion, both
vaginally and anally.

¶5 Victim testified that, during the years Burnett abused her,
she often felt physically ill, even when the abuse was not
actually happening. She experienced headaches, nausea, upset
stomach, occasional vomiting, and memory loss. These
symptoms progressed over time, and Victim later experienced
fainting, pseudo-seizures, hallucinations, and age regression.
Eventually, Victim was diagnosed with conversion disorder, a
condition “where a person takes psychological distress and
expresses it in physical symptoms or ways.” Victim started
cutting herself when she was thirteen, and she also experienced
suicidal ideations that continued throughout the time of trial.

¶6 When asked if she had told anyone about the abuse while
it was ongoing, Victim stated that she had not. She explained
that she “didn’t know any different,” and that she did not
initially tell anyone about the abuse because she was “scared.”
She stated that Burnett told her that bad things would happen to
her family if she disclosed the abuse, and that she “wasn’t
supposed to tell anyone, that it was normal.” Eventually, Victim
told Mother, as well as Victim’s psychologist, that Burnett had
sexually abused her.

¶7 The State called Dr. David Corwin (Expert) as an expert
witness at trial.3 Expert is a psychiatrist, and is the director of

3. Prior to trial, Burnett lodged an objection to Expert’s
testimony, asserting that “[h]is testimony is not relevant to this
(continued…)

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State v. Burnett

forensic services for the pediatrics department at the University
of Utah, and is board certified in psychiatry, child psychiatry,
and forensic psychiatry. He described his practice as focused on
working with individuals who had been sexually abused as
children, and described for the jury several publications he had
authored on child sexual abuse, as well as several awards he had
received for his work with victims of child sexual abuse.

¶8 Expert readily acknowledged that he had not treated,
interviewed, or examined Victim, and that he was not offering
any opinion about whether Victim had actually been abused.
Instead, the State explored two main subjects with Expert. First,
the State asked Expert about how he, as a trained expert,
endeavors to tell the difference between cases in which the
victim is advancing truthful claims of sexual abuse, and cases in
which the abuse allegations are fabricated. Second, the State
asked Expert whether, in his experience, he was aware of certain
signs or symptoms that might alert him that a particular child
may have been sexually abused.

(…continued)
case, specifically that some persons who have conversion
disorder have been sexually abused.” Burnett asked the trial
court for a hearing to determine whether the State’s experts,
including Expert, should be permitted to testify, and the trial
court scheduled that hearing for March 5, 2014. Prior to the
hearing, the State filed a written response to Burnett’s objection,
citing State v. Kallin, 877 P.2d 138, 141 (Utah 1994), and stating
that Expert would simply testify that certain symptoms were
“consistent with” sexual abuse. At the March 5 hearing,
however, no one even mentioned Expert, and Burnett appears to
have at some point abandoned his relevance objection to
Expert’s testimony. In any event, Burnett does not argue on
appeal that he ever renewed that objection, or that he made any
other objection, to Expert’s testimony.

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¶9 With regard to the first subject, Expert began by testifying
that it is “most common” for abuse victims to delay disclosure of
the abuse, and offered many reasons for this phenomenon. For
example, a child might not know that he or she should disclose
instances of sexual abuse; a child might feel loyal to the abuser
or feel affection for the abuser; or the abuser might warn or
threaten the child. He testified that disclosure is more common
in adolescents than in children because adolescents “are
beginning to psychologically separate themselves from their
parents, and they can begin to conceive of surviving apart from
their parents.”4 In contrast, “[v]ery young children are really one
with their parents and totally dependent upon their parents.”
Significantly, he stated that divorce, and its attendant changing
family dynamics, is one event that can “release[]” children from
their previous reluctance to disclose, although he acknowledged
that there exists a “small percentage” of cases in which children
from divorced families “fabricat[e]” abuse allegations. He stated
that those are “the most difficult cases of all,” and that it is part
of his professional duties to “try to figure out which” instances
are the ones that involve fabricated allegations.

¶10 Indeed, during re-direct examination, the State asked
Expert what he looks for in “making those evaluations” in cases
“where there is a custody dispute and there are allegations of
child sexual abuse.” In response, the following colloquy
occurred between the prosecutor and Expert:

A. I look at a lot of things, because those are the
most difficult cases that a forensic expert like
myself is asked to look at. And that’s because

4. Expert’s testimony about delayed disclosure being common is
entirely proper, see State v. Wright, 2013 UT App 142, ¶ 35, 304
P.3d 887; State v. Bair, 2012 UT App 106, ¶ 47, 275 P.3d 1050, and
Burnett makes no argument to the contrary.

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the rate of both disclosure of actual sexual
abuse goes up when a family breaks up,
because the dynamics that keep it secret are
gone, but also the possibility of a
misperception, either by a child or more
commonly an adult attributing it to a child . . . .

[I]n a small percentage of cases there are either
children who have lied or parents who
somehow get their kids to say things that are
false. And even though that’s a very small
percentage in most studies of this topic, it’s
very troubling, because sexual abuse is such a
serious thing. . . .

Q. Now, in—you said that that’s a small
percentage of these cases. In those cases are the
children typically younger?

A. Yes. Yeah, the hardest cases are the three-, four-
[or] five-year-olds.

Q. So . . . to clarify, in these cases where there is an
allegation like a child sexual abuse that’s false,
it would involve children that are younger on
the—

A. Well, in terms of the divorce custody and the
possibility of influence, it’s easier to do that
with a very young child, because they are more
susceptible to being misled, in terms of
interviewing or what adults say to them. In
older kids, they are more capable of making
outright false allegations, to actually make
something up. And in the studies that have
been done, those are usually kids with an ax to
grind. They are trying to influence where they

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are living. And they usually allege garden-
variety sexual intercourse, vaginal intercourse.

Q. So what do you mean by garden variety?

A. Really simple, straightforward, as opposed to
more strange, more elaborated, more detailed
accounts.

Q. So, for example, just a disclosure that he
touched my private part, without any more
details, or he put his penis in my vagina,
without any additional details?

A. Well, that would be sort of vaginal intercourse,
put his penis in my vagina. The touching—you
know, when the allegations are less severe,
when I am trying to look at these various
hypotheses, in my mind I think, well, if this is a
false allegation why not go ahead and make a,
you know, full-blown, culpable sort of clear
description than something that’s a little
hard[er] and less easy to interpret.

Q. So [Defense counsel] asked you about false
allegations of child sexual abuse. Based on your
training and your experience and your
knowledge of the literature in your field, are
those common or are they rare?

A. I have to be a little more specific in terms of
false by the parent, false by the child. I think the
general experience is that false allegations
initiated by the children are less common than
actual allegations, . . . but they do occur.

¶11 With regard to the second subject, the State asked Expert
whether and to what extent warning signs exist that alert a

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medical professional to the possibility of sexual abuse. Expert
testified that there are a “variety” of “symptoms” and
“disorders” that are “more common among sexually abused and
traumatized children than among other children,” including
“dissociation” (the ability “to compartmentalize and keep these
very difficult experiences apart from the rest of one’s
awareness”), increased anxiety, sleep problems, nightmares,
depression, self-mutilation, hallucinations, panic disorders, and
suicidal behavior.

¶12 Expert also testified about “conversion disorder,” and
explained that there are a “continuum of symptoms” common in
patients suffering from conversion disorder, including “pseudo-
seizures,” and specifically noted that “pseudo-seizures” are “one
of the most highly correlated among the conversion symptoms”
with sexual abuse. Expert conceded that the symptoms of
conversion disorder are “not exclusive” to sexual abuse victims,
but when asked whether “a diagnosis of conversion disorder” is
“consistent with sexual abuse,” Expert responded as follows:

It would—it’s consistent with it, and in my view I
think consistent with is a pretty low bar, because a
lot of things are consistent with things. But it’s an
indicator, it’s not definitive, it doesn’t in and of
itself prove things like sexual abuse, again because
it’s correlated with other stressors and traumas as
well. Um, but it’s—it’s—it’s an indicator.

¶13 The State asked Expert a hypothetical question: “If you
had a patient that had been diagnosed with conversion disorder,
was manifesting symptoms such as depression, anxiety,
hallucination, self-mutilation and suicidal ideations, would you
be concerned about sexual abuse?” Expert answered, “Yes, very
concerned, . . . [b]ecause all of the things you have listed are
known . . . to exist at increased frequency among victims of child
sexual abuse.”

20150684-CA 8 2018 UT App 80
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¶14 Burnett testified in his own defense at trial, and generally
denied all of the allegations against him, the thrust of the
defense strategy being that Victim manufactured the allegations
against him in an effort to influence the then-pending custody
dispute with Mother. Burnett explained that he and Mother
divorced in 2010. He stated that Mother and Mother’s sister
drafted the divorce decree, to which Burnett stipulated, and that
Mother “had full legal custody” of Victim. Burnett described
Mother taking Victim to various doctors and medical
professionals “at least 30 times” in 2010 and 2011 and between
twenty and thirty times in 2012, and that Mother did not inform
him what the visits were about. Burnett stated that Mother
waited until the end of each year before informing him about the
medical bills, which were “in the thousands of dollars.”
Describing Victim’s doctor visits, Burnett testified:

[T]hey would see her, they would do tests. There
would be nothing wrong with her, and so they
would say, well “If such and such happens bring
her back and we’ll look at her again.” And sure
enough, she’s back in in a couple of days with “X”
symptom that they . . . suggested.

Burnett stated that Victim “would follow through with whatever
[Mother] wanted” and that he “never saw” any of Victim’s
symptoms.

¶15 Under the terms of the divorce decree, Burnett was not
permitted to be involved in Victim’s doctor visits. After
consulting with a divorce attorney, Burnett decided that he
wanted to amend the decree, and arranged to meet with Mother
to discuss amendment on May 11, 2011.5 Burnett received a

5. Mother also testified at trial. She explained that she sought a
protective order against Burnett based on Victim’s allegations.
(continued…)

20150684-CA 9 2018 UT App 80
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phone call that same day from a detective explaining that Victim
had leveled sexual abuse allegations against him.

¶16 During closing argument, Burnett’s counsel highlighted
the timing of Victim’s disclosures, and argued that the case
boiled down to an assessment of Victim’s credibility. Counsel
specifically argued that the allegations against Burnett were
“outright falsehoods,” and that Victim’s allegations were
fabricated in an effort to prevent Burnett from modifying the
divorce decree.

¶17 In its rebuttal argument at closing, the State also focused
on Victim’s veracity. The prosecutor argued that Expert’s
testimony “corroborates” Victim’s testimony, stating that Victim
had “no ax to grind” and could therefore be considered truthful.
The prosecutor emphasized Victim’s conversion disorder
diagnosis and pseudo-seizures, and specifically reminded the
jury that Expert “told you that [conversion disorder and pseudo-
seizures are] consistent with the trauma of being sexually
abused.” The prosecutor also referenced Expert’s testimony
about how one can separate a truthful accuser from a lying one,
and stated as follows:

Dr. Corwin also said that—[c]ounsel talked about,
you know, false allegations in child custody cases.
And he also—he said that . . . specific and unusual
disclosures were more reliable. In other words,
disclosures where there is simply, oh, he touched
my private part, that in the rare cases when there
are false allegations, that’s what you have. You

(…continued)
Although Mother equivocated somewhat, she agreed that
Victim’s allegations, as outlined in the protective order request,
surfaced around the time of the May 11, 2011 meeting.

20150684-CA 10 2018 UT App 80
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don’t have that in this case. You have a really
unusual and specific disclosure.

¶18 The jury convicted Burnett on three counts of aggravated
sexual abuse of Victim, two counts of rape of Victim, and one
count of sodomy of Victim, but acquitted Burnett of two counts
of aggravated sexual abuse of Victim and one count of sodomy
of Victim. Burnett appeals.

ISSUE AND STANDARD OF REVIEW

¶19 On appeal, Burnett argues that his trial counsel was
ineffective for failing to properly object to Expert’s testimony.6

6. Burnett also contends that his trial counsel was ineffective for
two additional reasons. First, Burnett argues that his trial
counsel was ineffective for failing to adequately impeach Victim
during cross-examination about several inconsistencies between
her preliminary hearing testimony and her trial testimony.
Second, Burnett contends that his trial counsel was ineffective
for failing to adequately investigate the case. In addition to these
claims, Burnett also filed a motion under rule 23B of the Utah
Rules of Appellate Procedure in support of additional claims
that his counsel was ineffective. See Utah R. App. P. 23B (“A
party to an appeal in a criminal case may move the court to
remand the case to the trial court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.”). As explained in this opinion,
we agree, at least in part, with Burnett’s initial contention that
his trial counsel provided ineffective assistance by not properly
objecting to portions of Expert’s testimony. We remand the case
for a new trial on that basis, and therefore have no occasion to
address Burnett’s additional challenges on appeal. Given our
resolution of this appeal, we deny Burnett’s rule 23B motion as
moot.

20150684-CA 11 2018 UT App 80
State v. Burnett

When a criminal defendant raises a claim of ineffective
assistance of counsel for the first time on appeal, there is no trial
court ruling to examine. State v. Hull, 2017 UT App 233, ¶ 12, 414
P.3d 526. We must therefore decide, as a matter of law, whether
Burnett received constitutionally ineffective assistance of
counsel. Id.

ANALYSIS

¶20 Criminal defendants “enjoy the right . . . to have the
Assistance of Counsel” for their defense. U.S. Const. amend. VI.
This right includes the right to effective counsel, Strickland v.
Washington, 466 U.S. 668, 686 (1984), and applies to privately-
retained counsel as well as counsel appointed by the court,
Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). To show that his
counsel was constitutionally ineffective, Burnett must establish
that (1) counsel’s performance was objectively deficient, and (2)
there is a reasonable probability that, but for counsel’s deficient
performance, Burnett would have received a more favorable
outcome at trial. State v. Garcia, 2017 UT App 200, ¶ 19, 407 P.3d
1061. A criminal defendant must establish both elements to
prevail on a claim of ineffective assistance of counsel. Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232.

¶21 “In evaluating counsel’s performance under the first
Strickland prong, we recognize the variety of circumstances faced
by defense counsel and the range of legitimate decisions
regarding how best to represent a criminal defendant.” Id. ¶ 39
(citation and internal quotation marks omitted). Thus, “a
defendant seeking to establish ineffective assistance of counsel
must overcome the strong presumption that trial counsel
rendered adequate assistance and exercised reasonable
professional judgment.” Id. (citation and internal quotation
marks omitted). To establish deficient performance, a defendant
must show “that counsel’s conduct fell below an objective
standard of reasonableness under prevailing professional

20150684-CA 12 2018 UT App 80
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norms.” Lafferty v. State, 2007 UT 73, ¶ 12, 175 P.3d 530 (citation
and internal quotation marks omitted).

¶22 “To establish prejudice under Strickland’s second prong, a
defendant must present sufficient evidence to support ‘a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Archuleta, 2011 UT 73, ¶ 40 (quoting Strickland, 466 U.S. at 694). A
showing of “some conceivable effect” on the outcome is
insufficient. Menzies v. State, 2014 UT 40, ¶ 91, 344 P.3d 581
(citation and internal quotation marks omitted). Rather, the
probability of a “different result must be substantial, not just
conceivable.” Id. (citation and internal quotation marks omitted).

¶23 Burnett asserts that his counsel was ineffective for failing
to challenge two different aspects of Expert’s testimony, both of
which, he claims, improperly suggested that Victim’s testimony
was truthful. First, Burnett contends that Expert’s discussion of
symptoms that appear more frequently in abuse victims created
an improper “profile” of a typical victim of sexual abuse.
Second, Burnett asserts that Expert, based on his experience in
attempting to discern truthful allegations from false allegations,
improperly suggested that Victim’s testimony was believable.
We disagree that Expert’s testimony about symptoms
constituted improper profiling, but we agree that Expert’s
testimony about statistics and methods for discerning whether
an abuse victim is truthful had the effect of improperly
suggesting to the jury that Victim was telling the truth.

A

¶24 Burnett argues that Expert’s testimony improperly
suggested to the jury “that a collection of symptoms like
[Victim’s] were likely, if not conclusively, caused by sexual
abuse.” We disagree.

20150684-CA 13 2018 UT App 80
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¶25 “[A] witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of
an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” Utah R.
Evid. 702(a). While experts may use their expertise to help the
factfinder understand issues at trial, experts cannot testify that a
particular witness has or has not told the truth. “A witness’s
credibility may be attacked or supported by testimony about the
witness’s reputation for having a character for truthfulness or
untruthfulness, or by testimony in the form of an opinion about
that character.” Id. R. 608(a). But (subject to several exceptions,
none of which are applicable here) “extrinsic evidence is not
admissible to prove specific instances of a witness’s conduct in
order to attack or support the witness’s character for
truthfulness.” Id. R. 608(b). This rule “prohibits any testimony as
to a witness’s truthfulness on a particular occasion.” State v.
Rimmasch, 775 P.2d 388, 391 (Utah 1989), superseded in part by rule
as stated in State v. Maestas, 2012 UT 46, ¶ 121 n.134, 299 P.3d 892.
And the rule is often applied in sexual abuse cases. See id. at 392–
93 (holding that a doctor’s testimony was inadmissible under
rule 608 because it opined that a witness was telling the truth on
a particular occasion: “Well, specifically, in my opinion, one does
not give this kind of information with the amount of details and
the amount of clarity unless one has experienced it.” (internal
quotation marks omitted)).

¶26 An expert’s testimony describing a sexual abuse victim’s
symptoms thus has the potential to improperly suggest that if an
individual has a symptom common with sexual abuse victims,
then that individual has been sexually abused. Stated differently:

Profile testimony that portrays the characteristics
of the typical victim of sexual abuse . . . has a
tendency to mislead and confuse a finder of fact by
suggesting that the issue to be decided is whether

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State v. Burnett

the accusing child possesses these characteristics,
rather than whether the child experienced the
specific instances of abuse described.

Id. at 402 n.13; see also Utah R. Evid. 403 (“The court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of” among other things, “unfair
prejudice, confusing the issues, [or] misleading the jury.”).

¶27 However, our supreme court has held that evidence that a
victim’s symptoms are “‘consistent with’” sexual abuse does not
amount to inadmissible “profiling” evidence, because such
evidence “does not prove directly the ultimate legal conclusion
that” a particular victim has been abused. State v. Kallin, 877 P.2d
138, 141 (Utah 1994). Such “consistent with” testimony is usually
admissible under rule 403 because “[t]he probative value of such
evidence is usually beyond the ken of a jury.” Id. Testimony
stating that certain symptoms are “consistent with” sexual abuse
“may enable the jury to assess the probative relevance of the
evidence in light of all other evidence.” Id. For these reasons,
“experts may testify that a victim’s behavior is consistent with
sexual abuse without” improperly invading the province of the
jury as factfinder. See State v. Christensen, 2016 UT App 225, ¶ 27,
387 P.3d 588 (citing Kallin, 877 P.2d at 141).

¶28 Here, Expert testified that various physical maladies (e.g.,
anxiety, sleep disorders, depression) are “more common among
sexually abused and traumatized children than among other
children.” He also testified that conversion disorder is not only
“consistent with” sexual abuse, but that it is “an indicator” of
sexual abuse. Expert further testified that he would be “very
concerned” about the possibility of sexual abuse if a patient
presented with “conversion disorder, [and] was manifesting
symptoms such as depression, anxiety, hallucination, self-
mutilation and suicidal ideations.”

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¶29 We are unpersuaded that these portions of Expert’s
testimony inappropriately suggested to the jury what result to
reach. Certainly, Expert was clear that he had not examined
Victim, and that he was not offering an opinion on whether
Victim had been sexually abused. Many of the prosecutor’s
questions were phrased in terms of whether various symptoms
were “consistent with” sexual abuse, questions that have already
been deemed proper by prior precedent. See Kallin, 877 P.2d at
141; Christensen, 2016 UT App 225, ¶ 27. And we perceive no
material difference between testimony that a particular symptom
is “consistent with” sexual abuse and testimony that a particular
symptom is “an indicator of” sexual abuse. Those two phrases
(“consistent with” and “an indicator of”) seem to us to mean
more or less the same thing: that people who have suffered
sexual abuse often exhibit that symptom, and perhaps exhibit
that symptom with a greater frequency than the general
population does, but that the mere presence of that symptom
does not necessarily mean that abuse has occurred. Even the
prosecutor’s hypothetical question does not strike us as falling
on the wrong side of the admissibility line. Asking whether
Expert would “be concerned” about the possibility of sexual
abuse if he had a patient who had been diagnosed with
conversion disorder and who was also showing signs of
depression, anxiety, hallucinations, and suicide is simply
another way of asking if those symptoms are “consistent with”
sexual abuse.

¶30 Expert stopped well short of offering an opinion that
Victim had been abused or even that Victim was in fact
experiencing any of the symptoms in question; indeed, Expert
testified that he had not interviewed Victim, he had not
reviewed her medical records, and he did not review any
investigative materials associated with the prosecution. Expert’s
testimony simply stated, in various ways, that certain symptoms

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are more commonly associated with sexual abuse victims than
with the population at large. This testimony was permissible.7
See State v. Martin, 2017 UT 63, ¶¶ 10, 30 (stating that testimony
“regarding common behaviors . . . of children who have been
abused” was permissible because it did not “improperly
invade[] the province of the jury” (internal quotation marks
omitted)); see also Christensen, 2016 UT App 225, ¶¶ 28–29
(testimony that a victim’s “symptoms were consistent with”
post-traumatic stress disorder was permissible when the witness
explained that the victim was not one of his patients, that his
testimony was not a diagnosis, and that the testimony did not
demonstrate that the victim had been assaulted). We cannot
conclude that the probative value of this testimony was
substantially outweighed by any danger of unfair prejudice. See
Utah R. Evid. 403.

¶31 Because Expert’s testimony as it related to symptoms of
sexual abuse victims was admissible, any objection from
Burnett’s trial counsel would have been futile. “Failure to raise
futile objections does not constitute ineffective assistance of
counsel.” State v. Edgar, 2017 UT App 54, ¶ 13, 397 P.3d 656
(internal quotation marks omitted) (quoting State v. Kelley, 2000
UT 41, ¶ 26, 1 P.3d 546). Therefore, Burnett’s trial counsel was

7. Such testimony is, of course, admissible only if the proper
foundation has been laid. See Utah R. Evid. 702(b) (stating that
there must be a “threshold showing that the principles or
methods that are underlying in the testimony are (1) reliable, (2)
are based upon sufficient facts or data, and (3) have been reliably
applied to the facts”). Burnett pursues no argument on appeal
along these lines, and so we presume that Expert had a reliable
scientific basis for his opinions that certain symptoms are more
prevalent among abused children than among the general
population.

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State v. Burnett

not ineffective for failing to object to these portions of Expert’s
testimony.

B

¶32 Burnett next contends that Expert’s testimony improperly
bolstered Victim’s credibility by suggesting that scientific factors
and probabilities indicated that her testimony was truthful. We
agree that this portion of Expert’s testimony crossed the line, and
conclude that Burnett’s trial counsel provided ineffective
assistance by failing to challenge that portion of Expert’s
testimony.

¶33 Our supreme court weighed in on this subject in State v.
Rammel, 721 P.2d 498 (Utah 1986). In that case, the credibility of
the prosecution’s star witness was at issue. See generally id. At
trial, that witness testified, under a grant of immunity, that the
defendant had committed the crime in question, and stated that
he knew this because he had driven the defendant away from
the crime scene in a getaway car. Id. at 499–500. This story,
however, was not the same story the witness had told to police
when he was first questioned; at that point, the witness denied
any involvement whatsoever in the criminal enterprise. Id. at
499.

¶34 In an effort to shore up the witness’s credibility, the
prosecution called a police detective to testify that “he did not
consider it unusual” for the witness to “lie to him when [he] was
first interrogated.” Id. at 500. The detective presented himself as
an expert in police interrogations, and as someone who had
“experience interviewing several hundred criminal suspects.” Id.
Based on this expertise, the detective testified that “no criminal
suspect ever admitted ‘right off the bat’ to committing a crime,”
and that “because most suspects lie when initially questioned by
police, it would not have been ‘unusual’ for [the witness] to lie
during the first police interrogation.” Id. The trial court admitted
the evidence, but the supreme court reversed, for three reasons.

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State v. Burnett

¶35 First, the court noted that any evidence that calls into
question a witness’s truthfulness “must go to that individual’s
character for veracity,” and because the detective’s testimony
“did not relate to [the witness’s] character for veracity, but
instead invited the jury to draw inferences about [his] character
based upon [the detective’s] past experience with other
suspects,” “the testimony was inadmissible.” Id. Second, the
court noted that “foundation” for the detective’s testimony “was
utterly lacking,” because “[t]here was no showing that the
anecdotal data from which the detective drew his conclusions
had any statistical validity.” Id. at 501. Finally—and most
significantly for present purposes—the court held that, even if a
proper statistical foundation had been laid, the evidence should
still have been excluded “because its potential for prejudice
substantially outweighed its probative value.” Id. The court
stated as follows:

In this case, the prosecution attempted to establish,
in effect, that there was a high statistical
probability that [the witness] lied [in his initial
interview]. Even where statistically valid
probability evidence has been presented—and [the
detective’s] testimony hardly qualifies as such—
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 telling the truth at any given time.

Id. (citations omitted); see also id. (stating that, even “assuming
statistics were available, [the] statistical likelihood of [an]

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State v. Burnett

eyewitness to err would not assist the trier of fact to determine
whether a particular eyewitness was telling the truth” (citation
omitted)); State v. Iorg, 801 P.2d 938, 941 (Utah Ct. App. 1990)
(stating that our supreme court has “continued to condemn
anecdotal ‘statistical’ evidence concerning matters not
susceptible to quantitative analysis such as witness veracity, as
one of the categories of evidence leading to undue prejudice”).

¶36 Much of Expert’s trial testimony in this case is
inadmissible under the standards set forth in Rammel, because
“its potential for prejudice substantially outweigh[s] its
probative value.” See Rammel, 721 P.2d at 501; see also Utah R.
Evid. 403. In this case, as in Rammel, the State portrayed Expert
as an expert in being able to discern truthful sexual abuse
allegations from false ones. The jury heard testimony that Expert
had published papers and articles on the subject, and that he had
presented at conferences all over the country. Expert told the
jury, at least four times, that it is only in a “small percentage” of
cases that children lie about sexual abuse, and he explained to
the jury some of the things he looks for in judging an accuser’s
credibility:

In older kids, they are more capable of making
outright false allegations, to actually make
something up. And in the studies that have been
done, those are usually kids with an ax to grind.
They are trying to influence where they are living.
And they usually allege garden-variety sexual
intercourse, vaginal intercourse.

The clear import of Expert’s testimony is that only in a “small
percentage” of sexual abuse cases—especially cases in which the
allegations emerge in tandem with a divorce in the family—are
the allegations fabricated, and that most cases of fabrication

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State v. Burnett

involve a child “with an ax to grind” and/or a child who is
making only “garden-variety” allegations.8 Even though Expert
stopped short of offering an opinion that Victim herself was
telling the truth, there is no question that, by presenting (and
later, in closing argument, emphasizing) this testimony, the
prosecution was clearly “invit[ing] the jury to draw inferences
about” Victim’s credibility “based upon [Expert’s] past
experience with other” cases and studies. See Rammel, 721 P.2d at
500. Accordingly, we see no way to meaningfully distinguish
this case from Rammel.9 This testimony was improper, and had

8. Expert’s testimony in this case is therefore materially different
from testimony held admissible in other cases, in which the
experts did not speak “in terms of probabilities” about whether a
witness was testifying truthfully on a particular occasion, and
did not attempt to offer allegedly-scientific methodologies for
determining truthfulness. See State v. King, 2010 UT App 396,
¶ 45, 248 P.3d 984.

9. If anything, the testimony presented here, with its patina of
statistical legitimacy, is potentially even more prejudicial than
the “anecdotal” statistical evidence presented in State v. Rammel,
721 P.2d 498 (Utah 1986), and State v. Iorg, 801 P.2d 938 (Utah Ct.
App. 1990). Here, Expert twice cited unnamed “studies” to
support his methodology in assessing the credibility of sexual
abuse allegations. As noted, Burnett did not object to this
testimony, and so the trial court did not ever hold a hearing to
assess the reliability of such evidence. We wonder what type of
“studies” might be done to assess the credibility of sexual abuse
accusers, and how—absent a confession by the accused—those
conducting the studies ultimately determine, in any scientific
way, whether the abuse occurred in each case. In any event,
however, even if the statistical reliability of such studies could be
shown, such evidence would still be inadmissible under Rammel
and rule 403, because even “statistically valid probability
(continued…)

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State v. Burnett

counsel made a timely objection, there is a “reasonable
probability” that the testimony would have been excluded. See
Edgar, 2017 UT App 54, ¶ 13.

¶37 “[B]efore we will reverse a conviction based on ineffective
assistance of counsel,” however, “we must be persuaded that
there was a lack of any conceivable tactical basis for counsel’s
actions.” State v. King, 2010 UT App 396, ¶ 31, 248 P.3d 984
(citation and internal quotation marks omitted). The State
suggests that Burnett’s trial counsel could have had tactical
reasons for not objecting to Expert’s testimony: in the State’s
view, counsel could have decided not to object because Expert’s
testimony supported, at least in part, defense’s theory that
Victim fabricated her allegations against Burnett. The State
asserts that Expert

repeatedly testified that the types of physical and
psychological symptoms [Victim] happened to
exhibit were common among people who
experience severe childhood trauma, not just
sexual abuse. And trial counsel drew out testimony
that divorce could be one such trauma. Even
though [Expert] testified that child sexual abuse
was a more likely cause than divorce, [Expert’s]
testimony supported the defense at least in part.

We are not persuaded, chiefly because this tactical reason could
only possibly apply to the first portion of Expert’s testimony,
discussed above, in which Expert testified that certain symptoms

(…continued)
evidence” “cannot conclusively establish that a single event did
or did not occur and [is] particularly inappropriate when used to
establish . . . whether a particular individual is telling the truth at
any given time.” Rammel, 721 P.2d at 501.

20150684-CA 22 2018 UT App 80
State v. Burnett

were more common in sexual abuse victims than in the general
population. Any tactical advantage in allowing Expert to so
testify would have been realized by Expert’s admissible
testimony; the State’s proffered tactical reason therefore offers no
possible reason for counsel not to have objected to the second
(inadmissible) portion of Expert’s testimony. We simply cannot
imagine any convincing tactical reason for counsel to have
consciously decided not to raise a Rammel objection to Expert’s
testimony regarding credibility.

¶38 And we think it rather evident that Expert’s testimony
regarding credibility was prejudicial to Burnett. Indeed, we have
already determined that the potential for unfair prejudice
substantially outweighed any probative value the testimony
might have had. In order “[t]o prevail on a claim of ineffective
assistance of counsel, [Burnett] must demonstrate that counsel’s
performance was deficient and that the deficient performance
was prejudicial—i.e., that it affected the outcome of the case.”
State v. Crespo, 2017 UT App 219, ¶ 22, 409 P.3d 99 (citation and
internal quotation marks omitted). We conclude that counsel’s
deficient performance did, in fact, prejudice Burnett. In other
words, had counsel properly challenged Expert’s testimony, we
are convinced that there is a “reasonable probability” that
Burnett would have received a more favorable outcome. See
Garcia, 2017 UT App 200, ¶ 19.

¶39 In this case, there was no confession, no third-party
eyewitnesses, and no physical evidence that Victim had been
sexually abused; the only direct evidence that abuse occurred
was Victim’s testimony. Our supreme court has described
convictions in such cases as “not strongly supported by the
record.” See Gregg v. State, 2012 UT 32, ¶ 30, 279 P.3d 396 (stating
that “[t]here was no independent physical evidence that
supported or contradicted [the victim’s] testimony, and
therefore, the conviction is not strongly supported by the
record”); see also State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct.

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State v. Burnett

App. 1995) (recognizing prejudicial error in the admission of
bolstering evidence in a child sex abuse case where “[t]here was
no physical evidence introduced, nor was there testimony from”
other witnesses, and where the “case depended on the jury’s
assessment of the victim’s credibility versus the defendant’s”
(citation and internal quotation marks omitted)); Iorg, 801 P.2d at
941–42 (recognizing prejudicial error in the admission of
bolstering evidence in a child sex abuse case where the “case
hinged on credibility”). Moreover, in this case the jury returned
a split verdict, acquitting Defendant on all charges related to
Sister and Brother, and acquitting Defendant on some of the
charges related to Victim. Our supreme court has indicated that
a split verdict can be an indication that “the jury was conflicted
about the evidence and the competing versions of events offered
by the victim and” the defendant, and that therefore the
elimination of certain evidence may very well have mattered.
State v. Richardson, 2013 UT 50, ¶ 44, 308 P.3d 526.

¶40 The important impact of Expert’s testimony was
highlighted by the State during closing argument. In discussing
the evidence in the record that might corroborate Victim’s
account, the prosecutor referred the jury to Expert’s testimony
about credibility, and reminded the jury that Victim had “no ax
to grind” and that she had offered “specific and unusual
disclosures” that Expert had indicated were “more reliable.”
This argument was the last thing the jury heard before beginning
its deliberations. The prosecution’s emphasis in closing
argument of Expert’s testimony regarding credibility is not only
an indicator that the State considered that testimony important
corroborative evidence, but also that the testimony was
important enough to make a difference. Cf. State v. Martinez, 2015
UT App 193, ¶ 22, 357 P.3d 27 (explaining, in the context of
evaluating a trial court’s decision on a criminal defendant’s
mistrial motion, that “[b]revity, vagueness, and absence from
closing arguments are among the factors that militate in favor of

20150684-CA 24 2018 UT App 80
State v. Burnett

a finding that improperly admitted evidence did not
substantially influence the verdict”).

¶41 Accordingly, we conclude that, had counsel properly
objected to Expert’s testimony regarding credibility, there exists
a reasonable probability that Burnett would have obtained a
more favorable outcome at trial.

CONCLUSION

¶42 In sexual abuse cases, assuming proper foundation is laid,
properly qualified experts are permitted to testify that certain
physical symptoms or maladies appear more frequently in
victims of sexual abuse than in the general population. In so
doing, experts may offer an opinion that symptoms are
“consistent with,” or even “an indicator of,” sexual abuse. In this
context, it is not necessarily impermissible for hypothetical
questions to be asked of such an expert about whether the expert
would be “concerned about” sexual abuse if a patient exhibited
certain symptoms, since this is simply a different way of asking
whether symptoms are “consistent with” abuse. Thus, the part of
Expert’s testimony that discussed symptoms in this way was
proper, and Burnett’s trial counsel was not ineffective by not
objecting to it.

¶43 However, 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. Such
evidence constitutes improper comment on a witness’s
credibility, and “invites the jury to focus upon a seemingly
scientific, numerical conclusion rather than to analyze the
evidence before it and decide where truth lies.” Rammel, 721 P.2d
at 501. The part of Expert’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

20150684-CA 25 2018 UT App 80
State v. Burnett

he uses as an expert to distinguish between cases involving true
allegations and cases involving fabricated allegations, was
categorically inadmissible. Counsel had no conceivable tactical
reason not to object to that testimony, and there is at least a
reasonable probability that the outcome of the trial would have
been different had the testimony been excluded. Accordingly,
Burnett received ineffective assistance of counsel.

¶44 The judgment of the trial court is reversed, and this case is
remanded for a new trial.

20150684-CA 26 2018 UT App 80