State v. Gallegos

2009 UT 42
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20070212
Plaintiff and Appellee,
v.
F I L E D
James M. Gallegos,
Defendant and Appellant. 	July 21, 2009
---
Third District Court, Salt Lake
The Honorable Stephen L. Henriod
No. 061902109
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray,
Paul G. Amann, Asst. Att’ys Gen., Salt Lake City,
for plaintiff
Kenneth R. Brown, Ann Marie Taliaferro, Salt Lake
City, for defendant
---
WILKINS, Justice:
¶1 	Defendant James M. Gallegos asks us to reverse his
criminal convictions for two counts of enticing a minor over the
internet, alleging several points of error below. 	Specifically,
Gallegos argues that Utah’s Internet Enticement Statute (the
enticement statute) is unconstitutionally vague, both facially
and as applied to him. 	Gallegos also contends that the trial
court erred in reversing a pretrial decision to allow him to
present a voluntary termination affirmative defense.
Additionally, Gallegos argues that the trial court erred in
denying his motion to suppress statements he made regarding the
destruction of his computer and in excluding his proposed expert
testimony on relevancy grounds. 	Finally, Gallegos argues that
the cumulative damage of these errors warrants a vacation of his
sentence or a remand for a new trial. 	We disagree and,
therefore, affirm.

No. 20070212 	2
BACKGROUND
¶2 	In March 2006, Lieutenant Jessica Eldredge of the
Internet Crimes Against Children Task Force (ICAC) was conducting
an undercover operation on the internet in search of child
predators. 	Eldredge was posing as a thirteen-year-old girl named
“Chantel,” and included an age-appropriate photograph on her
profile page. 	On March 16, 2006, Eldredge entered Yahoo! Utah
chatroom and waited for someone to contact “Chantel.”
¶3 	Several individuals contacted Chantel that day,
including Gallegos. 	When Gallegos inquired about Chantel’s age,
she told him that she was thirteen years old. 	Gallegos informed
Chantel that he was a 28-year-old male from Clearfield and stated
that he was “to[o] old” for her. 	Despite this acknowledgment,
their online dialogue continued, eventually progressing to a
discussion in which Gallegos proposed that Chantel provide him
sexual favors in exchange for the use of his car. 	Shortly after
this discussion, the conversation ended.
¶4 	Eldredge returned to the Yahoo! chatroom on March 23,
2006. 	Sometime after Eldredge signed on, Gallegos contacted
Chantel and resumed their conversation. 	Eventually, Gallegos and
Chantel engaged in a graphic sexual conversation. 	This time,
however, the conversation culminated in an agreement to meet in
the parking lot of Union Middle School for the proposed sexual
activity. 	Before signing off of the chatroom, Gallegos confirmed
their plans, saying, “ok see you there . . . make sure you show
up . . . cause I am . . . .”
¶5 	After Eldredge logged off her computer and briefed the
ICAC team, eight officers went to various locations near Union
Middle School to wait for Gallegos to arrive. 	At approximately
10:30 p.m., one of the officers spotted Gallegos’ car near the
school. 	Other officers also noticed Gallegos approach the
school, then slow down as he passed the parking lot. 	The
officers then saw Gallegos turn around and pass the school two
more times. 	At this point, Gallegos apparently spotted some of
the officers parked by the school and sped off into a residential
neighborhood. 	The officers chose to not pursue the car and,
instead, returned to police headquarters.
¶6 	After obtaining a photograph of Gallegos, six officers
drove to the Ogden address that appeared on his driver license.
The officers verified that the home belonged to Gallegos’ wife
and knocked on the door. 	Gallegos’ wife informed them that
Gallegos had moved out and gave them his current address in

3 	No. 20070212
Clearfield, Utah. 	The officers then proceeded to Gallegos’
Clearfield apartment.
¶7 	While the officers were still en route to Clearfield,
Gallegos, who had been tipped off by his wife, telephoned
Eldredge and told her that he “was really scared” and “didn’t
know what to do.” 	He also asked if he was “going to go to jail.”
Eldredge told him that she did not know whether he would be
arrested and asked him to meet her at his apartment. 	Gallegos
complied and per his request, met the officers at the clubhouse
of his apartment complex.
¶8 	When Gallegos arrived, Eldredge directed him where to
park, and an SUV and a police vehicle pulled in directly behind
him with their back lights flashing. 	Eldredge then instructed
Gallegos to get out of his car while keeping his hands visible.
As he got out of the car, six to seven officers walked toward him
and began surrounding him. 	Some of the officers had police vests
on, while others simply wore badges around their necks. 	After
officers patted him down for weapons, Gallegos placed his car
keys and other items inside his car. 	Eldredge then asked him for
his computer. 	Gallegos responded that because he was afraid, he
had thrown it out at a friend’s garbage can. 	At this point,
officers read Gallegos his Miranda rights, and he invoked his
right to remain silent and his right to an attorney.
¶9 	Gallegos was subsequently charged with two felony
counts of enticing a minor over the internet in violation of Utah
Code section 76-4-401 (2008). 	The case proceeded to trial, and
Gallegos filed a motion to dismiss on the grounds that the
enticement statute was unconstitutional both facially and as
applied to him. 	The trial court denied the motion. 	Gallegos
also filed a motion to suppress the computer statements based on
Miranda violations. 	The trial court again denied the motion,
concluding that Gallegos was not being interrogated at the time
he made the statements. 	Gallegos then proposed using a voluntary
termination defense, which the trial court initially stated “was
perfectly legitimate”; at the close of the trial, however, the
trial court refused to give a jury instruction based upon
voluntary termination. 	Finally, the State filed a motion in
limine to exclude Gallegos’ expert witness, Dr. Peter Byrne,
arguing that his testimony was irrelevant. 	The trial court
granted the motion. 	Gallegos now appeals each of those
decisions, arguing that the cumulative damage of these errors
warrants a vacation of his sentence or a remand for a new trial.
STANDARDS OF REVIEW

No. 20070212 	4
¶10 	Gallegos first argues that Utah’s internet enticement
statute is unconstitutionally vague. 	Constitutional challenges
to statutes present questions of law, which we review for
correctness. 	See State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d
1171. 	Gallegos next contends that the trial court erred in
failing to present a voluntary termination instruction for the
jury. 	“A trial court’s refusal to give a jury instruction
presents a question of law, which [this court] review[s] for
correctness, giving no particular deference to the trial court.”
State v. Quada, 918 P.2d 883, 885 (Utah Ct. App. 1996).
¶11 	Gallegos next argues that the trial court erred in
denying his motion to suppress the statements he made about his
computer based on Miranda violations. 	Because of the “importance
of uniformity in Utah courts’ application of Fifth Amendment
Miranda protections . . . [we] review for correctness trial
courts’ custodial interrogation determinations.” 	State v. Levin,
2006 UT 50, ¶ 16, 144 P.3d 1096.
¶12 	Finally, Gallegos avers that the trial court erred in
excluding his proposed expert testimony on relevancy grounds. 	A
trial court’s denial of a party’s presentation of expert
testimony under Rule 702 of the Utah Rules of Evidence is
reviewed under an abuse of discretion standard. 	See State v.
Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794. 	“Under this standard, we
will not reverse [a decision to admit or exclude expert
testimony] unless the decision exceeds the limits of
reasonability.” 	Id. (alteration in original) (internal quotation
marks omitted).
ANALYSIS
I. 	CONSTITUTIONALITY OF UTAH’S INTERNET ENTICEMENT STATUTE
¶13 	Gallegos claims that the enticement statute under which
he was charged is unconstitutionally vague both facially and as
applied to him because it does not put him, nor anyone else, on
notice of the point at which the crime is completed. 	See Utah
Code Ann. § 76-4-401 (2008). 	Until now, this court has not had
the opportunity to examine the constitutionality of the
enticement statute. 	Instead, the last word came from the court
of appeals in State v. Ansari, where the court noted, albeit in
dicta, that “the terms of the [enticement] statute are
sufficiently precise . . . . 	Accordingly, we would conclude that
[the statute] is not unconstitutionally vague.” 	2004 UT App 326,
¶ 45 n.6, 100 P.3d 231. 	Although the court of appeals used
strong language suggesting it would uphold the statute as

5 	No. 20070212
constitutional, this case presents an issue of first impression
for this court.
¶14 	“A statute may be unconstitutional either on its face
or as applied to the facts of a given case.” 	State v. Herrera,
1999 UT 64, ¶ 4 n.2, 993 P.2d 854. 	“When asserting an as-applied
challenge, the party claims that, under the facts of his
particular case, the statute was applied . . . in an
unconstitutional manner.” 	Ansari, 2004 UT App 326, ¶ 27
(omission in original) (internal quotation marks omitted). 	In
contrast, when a party presents a facial challenge, he seeks to
“‘vindicate not only his own rights, but those of others who may
be adversely impacted by the statute in question.’” 	Id. (quoting
City of Chicago v. Morales, 527 U.S. 41, 55-56 (1999)).
Furthermore, in asserting a facial challenge, the party avers
that “the statute is so constitutionally flawed that no set of
circumstances exists under which the [statute] would be valid.”
Id. (alteration in original) (internal quotations marks omitted).
However, if a “statute . . . is clear as applied to a particular
complainant [it] cannot be considered impermissibly vague in all
of its applications and thus will necessarily survive a facial
vagueness challenge.” 	State v. MacGuire, 2004 UT 4, ¶ 12 84 P.3d
1171. 	In other words, if Gallegos’ as-applied challenge of the
enticement statute fails, so does his facial attack.
¶15 	When a party raises a vagueness challenge, courts look
at two factors to determine constitutional validity. 	“A statute
is impermissibly vague if it either (a) ‘fails to provide people
of ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits’ or (b) ‘authorizes or even encourages
arbitrary and discriminatory enforcement.’” 	Ansari, 2004 UT App
326, ¶ 42 (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)).
¶16 	Under the first prong of the vagueness test, Gallegos
argues that the statute does not provide notice because a person
of ordinary intelligence cannot know whether the offense is
complete when the person actually meets the minor, takes any step
to meet the minor, or whether the “chat alone” is sufficient.
The meaning of the statute, however, is not subject to the
confusion Gallegos suggests. 	Pursuant to the plain language of
the statute, a person is guilty of enticing a minor over the
internet if he or she “knowingly uses a computer to solicit,
seduce, lure, or entice . . . a minor or a person the defendant
believes to be a minor to engage in any sexual activity which is
a violation of state law.” 	Utah Code Ann. § 76-4-401. 	The words
used to describe the proscribed conduct are both commonly used

1 Moreover, any concern about lack of notice is “ameliorated
by the fact that [the enticement statute] contains a scienter
requirement,” i.e., that the person must “knowingly” solicit a
minor. 	Hill v. Colorado, 530 U.S. 703, 732 (2000).
No. 20070212 	6
and clearly defined. 1 	In fact, “[t]he likelihood that anyone
would not understand any of [these] common words seems quite
remote,” Hill, 530 U.S. at 732; see also United States v.
Dhingra, 371 F.3d 557, 562 (9th Cir. 2004) (holding that “the
terms ‘persuade,’ ‘induce,’ ‘entice,’ and ‘coerce,’ . . . have a
plain and ordinary meaning”), and Gallegos cannot simply “inject
doubt as to the meaning of words where no doubt would be felt by
the normal reader.” 	MacGuire, 2004 UT 4, ¶ 18 (internal
quotation marks omitted).
¶17 	Accordingly, contrary to Gallegos’ position, we see
nothing in the enticement statute that suggests the offense is
completed only if a meeting occurs. 	Instead, the statute is
clear that the crime is committed as soon as the defendant
“solicits” or “entices” a minor to engage in unlawful sexual
activity. 	Nothing more is required. 	The crime is committed at
the keyboard.
¶18 	Gallegos also argues that if this court concludes that
the “chat alone” constitutes the crime, then the enticement
statute violates the First Amendment. 	While we have not
addressed this specific issue, courts in other jurisdictions have
analyzed whether the federal version of the enticement statute
violates the First Amendment. 	Overwhelmingly, courts have
concluded that it does not. 	See, e.g., United States v.
Tykarsky, 446 F.3d 458, 473 (3rd Cir. 2006) (“There is no First
Amendment right to persuade minors to engage in illegal sex
acts.”); State v. Colosimo, 142 P.3d 352, 356 (Nev. 2006)
(holding that Nevada’s internet enticement statute does not
violate the First Amendment).
¶19 	Utah’s enticement statute prohibits an individual from
“solicit[ing], seduc[ing], lur[ing], or entic[ing]” a known minor
to actually engage in unlawful sexual activity. 	Utah Code Ann.
§ 76-4-401(2)(b)(ii). 	We conclude that such speech is not
afforded First Amendment protections.
¶20 	Under the second prong of the test, whether the statute
has the potential to be applied in an arbitrary or discriminatory
manner, we conclude that it does not. 	It is true that Eldredge
testified at trial that many individuals contact “Chantel” and
request sex from her, but that those individuals are not
arrested. 	Gallegos argues that this testimony suggests that he
would not have been arrested had he not driven to Union Middle

2 Eldredge testified at the preliminary hearing as follows:
Q: [H]ave you ever set up a meeting with somebody, they
have not shown up, and then you’ve gone to arrest them?
A: Not unless they came and then got away.
Q: The actual meetings [sic] pretty important, correct?
A: Yes.
Q: And going to the meeting is pretty important?
A: Yes.
3 Gallegos also argues that he did not know he was speaking
to a thirteen-year-old girl, but instead thought he was actually
talking to a homosexual male. 	Whether this is true is a
credibility question for the jury to decide based on the
testimony and evidence presented.
7 	No. 20070212
School, 2 and, therefore, something more than “cybersex” with a
minor is required. 	Because the “something more” is not defined
in the enticement statute, Gallegos argues that law enforcement
can arbitrarily enforce the law. 	We disagree.
¶21 	We conclude that the enticement statute is specific
enough to prevent arbitrary enforcement because the discretion to
prosecute individuals under the statute is properly limited to
those who “solicit, seduce, lure, or entice” a known minor 3 to
engage in unlawful sexual activity. 	Whether and whom to arrest
is ultimately a problem of resource allocation and the difficulty
associated with proving the intent element of the crime. 	That
is, law enforcement may more aggressively pursue those
individuals who actually arrange a meeting because in those cases
it is easier to prove the individual’s intent to engage in the
proscribed conduct. 	Accordingly, variation in enforcement of the
enticement statute may occur because it is simply easier to
prosecute those individuals who actually arrange a meeting, not
because the statute itself is impermissibly vague.
¶22 	In sum, we conclude that the enticement statute is not
unconstitutionally vague because it affords the average person
reasonable notice of what conduct is proscribed and is specific
enough to avoid arbitrary and discriminatory enforcement.
Moreover, because Gallegos engaged in conduct that was clearly
proscribed by the statute, he “cannot complain of the vagueness
of the law as applied to the conduct of others.” 	Ansari, 2004 UT
App 326, ¶ 44 (internal quotation marks omitted). 	Accordingly,
both his facial and as-applied challenges fail.
II. 	VOLUNTARY TERMINATION INSTRUCTION

No. 20070212 	8
¶23 	Utah Code section 76-2-307 provides for an affirmative
defense of voluntary termination. 	Specifically, section 76-2-307
states, in part:
It is an affirmative defense to a
prosecution . . . that prior to the
commission of the offense, the actor
voluntarily terminated his effort . . .
and either:
(1) gave timely warning to . . . law
enforcement . . . or the intended victim; or
(2) wholly deprives his prior efforts of
effectiveness in the commission.
Utah Code Ann. § 76-2-307 (2003). 	“A defendant is entitled to a
[voluntary termination] instruction . . . if there is a
reasonable basis in the evidence to justify giving the requested
instruction.” 	State v. Dumas, 721 P.2d 502, 506 (Utah 1986). 	We
have already concluded that the crime is complete when an
individual solicits a minor via the internet to engage in
unlawful sexual activity. 	In this case, there is simply no
evidence to suggest that Gallegos voluntarily terminated the
online conversation prior to the commission of the crime, and it
is irrelevant that he drove away from Union Middle School because
no additional step beyond solicitation is required by the
enticement statute. 	Accordingly, the voluntary termination
instruction is inapplicable, and the trial court correctly denied
Gallegos’ request to present it to the jury.
III. 	MOTION TO SUPPRESS
¶24 	Gallegos next argues that the trial court erred in
denying his motion to suppress certain incriminating statements
he made to Eldredge prior to his arrest. 	Specifically, Gallegos
contends that he was subjected to custodial interrogation and,
therefore, Eldredge violated his Miranda rights when she
questioned him regarding the location of his computer. 	Moreover,
Gallegos argues that admitting the statements at trial was not
harmless error because the jury would not have reached the same
verdict without the incriminating statements. 	Again, we
disagree.
¶25 	The Fifth Amendment to the United States Constitution
guarantees that a person shall not be “compelled in any criminal
case to be a witness against himself.” 	U.S. Const. amend. V.
We protect this right by excluding from a
defendant’s criminal trial any incriminating
statement that the defendant made to police

4 The trial court did not analyze whether Gallegos was in
“custody.” 	Instead, it limited its analysis to whether
interrogation occurred.
9 	No. 20070212
officers while under custodial interrogation
if the officers did not give a Miranda
warning. . . . 	[C]ustodial interrogation
occurs where there is both (1) custody . . .
and (2) interrogation. 	These two elements
are interrelated.
State v. Levin, 2006 UT 50, ¶¶ 33-34, 144 P.3d 1096 (footnote
omitted). 	Each element is discussed individually below.
A. 	Custody 4
¶26 	Custody occurs when an individual’s “freedom of action
is curtailed to a degree associated with formal arrest.” 	Id.
¶ 35 (internal quotation marks omitted). 	The inquiry is
objective, and “[a] suspect may understand himself . . . to be in
custody based either on physical evidence or on the nature of the
officer’s instructions and questions.” 	Id. 	In Salt Lake City v.
Carner, this court set out a four-factor test to determine
whether a defendant is in custody for the purpose of Miranda
protections: “(1) the site of the interrogation; (2) whether the
investigation focused on the accused; (3) whether the objective
indicia of arrest were present; (4) the length and form of
interrogation.” 	664 P.2d 1168, 1171 (Utah 1983).
¶27 	We conclude that Gallegos was, in fact, in custody at
the time he made the statements to Eldredge. 	As to the site of
the interrogation, it is true that Gallegos requested to meet
officers at the clubhouse of his apartment building and that he
went there voluntarily. 	At first blush, this suggests a public
environment, which weighs against a finding of custody. 	See
Levin, 2006 UT 50, ¶ 39 (“Places that are confined or isolated
are more likely to indicate custody than those that are public
and open.”). 	However, when police officers pulled their cars
directly behind him with the flashing lights on, the location
transformed from one of a public and open nature to one of
confinement. 	Moreover, while the apartment clubhouse may be a
public place during the day, at four o’clock in the morning it
takes on an isolated character.
¶28 	The second factor, the focus of the investigation,
clearly weighs in favor of a finding of custody. 	Gallegos had
spoken to his wife, who informed him that police in SWAT gear had
been at the apartment looking for him. 	Gallegos was, therefore,
clearly aware that the investigation focused on him.

No. 20070212 	10
¶29 	The third factor, the presence of indicia of arrest,
also weighs in favor of a finding of custody. 	While no guns were
drawn, Gallegos was surrounded by “six to seven” officers, some
of whom wore police vests, while others wore badges. 	His car was
surrounded by police cars with their lights on, and he was
frisked and asked to remove the contents of his pockets,
including his car keys. 	Moreover, while not physically
restrained, the placement of the police cars and the removal of
his car keys made any movement practically impossible.
¶30 	Finally, as to the length of the interrogation, this
factor weighs against a finding of custody. 	Eldredge only asked
a few questions about the whereabouts of his computer, and then
quickly placed Gallegos under arrest. 	On balance, we conclude
that Gallegos was in custody for the purposes of Miranda
protections because a reasonable person in his position would not
have felt free to leave.
B. 	Interrogation
¶31 	After the custody determination is made, we must next
decide “whether the incriminating statement was the product of
interrogation.” 	Id. ¶ 37. 	“Interrogation is ‘either express
questioning or its functional equivalent’ and it incorporates any
‘words or actions on the part of police officers that they should
have known were reasonably likely to elicit an incriminating
response.’” 	State v. Low, 2008 UT 58, ¶ 70, 192 P.3d 867
(quoting Levin, 2006 UT 50, ¶ 37 (emphasis omitted)).
¶32 	We conclude that Gallegos was interrogated for the
purposes of Miranda. 	Eldredge initiated direct questioning about
the key piece of evidence the police would eventually need--
Gallegos’ computer. 	Her statements were not questions normally
attendant to arrest and custody, nor were they simply agreements
with Gallegos’ voluntary statements. 	See State v. Dutchie, 969
P.2d 422, 426 (Utah 1998); State v. Yoder, 935 P.2d 534, 545-46
(Utah Ct. App. 1997). 	Instead, Eldredge should have known that
questioning Gallegos about the whereabouts of the computer would
likely elicit an incriminating response from him. 	We therefore
conclude that Gallegos was also interrogated for the purpose of
Miranda analysis. 	Accordingly, the trial court erred in
admitting the statements about the computer at trial.
C. 	Harmless Error
¶33 	Although the trial court erred in admitting the
incriminating statements at trial, we conclude that the error was
harmless. 	In this case, there was an abundance of other evidence

5 This conclusion is bolstered by the fact that the computer
statement evidence was used minimally at trial. 	In over 300
pages of trial transcripts, references to the statements Gallegos
made about his computer--including closing argument--comprise
roughly one page total. 	The majority of the State’s case focused
on the content of the transcript, as well as other evidence
suggesting that Gallegos believed Chantel was thirteen years old.
6 The PPG report states, “Taking all of the validity
observations into account, it appears that this administration of
the [PPG] is an invalid representation of [Gallegos’] sexual
arousal pattern.”
11 	No. 20070212
presented to the jury suggesting Gallegos’ guilt. 	Most
importantly, the jury had a transcript of the sexually graphic
online conversation between Gallegos and Chantel. 	The jury also
heard evidence that Gallegos arranged to meet with Chantel and
actually drove to the proposed meeting place. 	Moreover, the jury
heard evidence that Gallegos called Eldredge and told her he was
scared and asked if he was going to be arrested. 	In light of
this overwhelming evidence of Gallegos’ guilt, we conclude that
any error in admitting the statement was harmless beyond a
reasonable doubt. 5
IV. 	MOTION TO EXCLUDE PROPOSED EXPERT TESTIMONY
¶34 	Gallegos argues that the trial court erred in excluding
the testimony of Dr. Peter Byrne, who should have been permitted
to testify that “based upon the psychosexual testing he
administered, it was his expert opinion that [the defendant] was
not a ‘pedophile’ and not attracted to children.” 	Moreover,
Gallegos contends that Dr. Byrne’s testimony was relevant under
rule 401 of the Utah Rules of Evidence to establish a pertinent
character trait, that is, that Gallegos was not a pedophile. 	The
State, on the other hand, argues that whether Gallegos is a
pedophile is simply not proper character evidence as contemplated
by rule 404(a)(1). 	More importantly, because the penile
plethysmograph (PPG) that formed the basis of Dr. Byrne’s
testimony was “invalid,” the State contends that the test is also
irrelevant under rule 401. 6
¶35 	Under the Utah Rules of Evidence, expert testimony is
admissible if “specialized knowledge will assist the trier of
fact . . . to determine a fact in issue.” 	Utah R. Evid. 702. 	By
attempting to introduce Dr. Byrne as an expert witness in this
case, Gallegos sought to demonstrate to the jury that he was not
a pedophile, but was instead sexually attracted to age-
appropriate females. 	Specifically, Gallegos sought to introduce

No. 20070212 	12
the results of a PPG administered by Dr. Byrne as “character
evidence” of his purported non-pedophilia under rule 404(a)(1).
¶36 	Rule 404(a)(1) states that the accused may introduce
“pertinent” character trait evidence. 	Pertinent has been held to
mean “relevant.” 	Cf. United States v. Staggs, 553 F.2d 1073,
1075 (7th Cir. 1977). 	See also Utah R. Evid. 404(a)(1).
¶37 	This court held in State v. Miller, 709 P.2d 350 (Utah
1985), that psychological expert testimony regarding sexual
offenders who abuse children is relevant evidence:
Rule 404(a), Utah R. Evid., specifically
permits an accused to offer “evidence of a
pertinent trait of his character,” for the
purpose of “proving that he acted in
conformity therewith on a particular
occasion.” 	The [expert] testimony . . . , in
conjunction with the proffered testimony from
the appellant, would have been relevant to a
pertinent trait of his character, namely, the
incongruity of his personality traits with
those of individuals capable of and likely to
commit sexual offenses against children.
Id. at 353.
¶38 	Under the Miller rule, we hold that the trial court
erred in determining that the proffered expert testimony was
irrelevant. 	Nevertheless, we further hold that the error was
harmless. 	As discussed in detail above, the evidence that all
the elements of enticement were in fact committed was virtually
uncontroverted. 	Evidence of the defendant’s lack of sexual
interest in children would not likely have addressed any of the
actual acts he undertook, which were entirely sufficient to
sustain the conviction notwithstanding his intent in undertaking
them.
V. 	CUMULATIVE ERROR
¶39 	Gallegos’ cumulative error argument is without merit.
A reviewing court will reverse a jury verdict
under the cumulative error doctrine only if
the cumulative effect of the several errors
undermines . . . confidence that a fair trial
was had. 	If, however, we determine that a
defendant’s claims do not constitute errors
on the part of the trial court, then it

13 	No. 20070212
follows that the requirements of the
cumulative error doctrine are not met.
State v. Killpack, 2008 UT 49, ¶ 56, 191 P.3d 17 (omission in
original) (internal quotation marks omitted). 	We have held that
two of the errors alleged by Gallegos do not constitute error.
The nature of the two remaining errors is insufficient to reach
the cumulative error standard; they do not undermine confidence
that Gallegos received a fair trial. 	Accordingly, this claim
also fails.
CONCLUSION
¶40 	We conclude that the enticement statute is not
unconstitutionally vague because it affords the average person
reasonable notice of what conduct is proscribed and is specific
enough to avoid arbitrary and discriminatory enforcement.
Accordingly, Gallegos’ facial and as-applied challenges fail.
Additionally, because the statute requires no additional step
beyond solicitation, that is no meeting is necessary, we also
conclude that the trial court correctly denied the voluntary
termination instruction. 	Furthermore, although Gallegos was
subjected to custodial interrogation and thus Miranda rights
attached to the statements he made about his computer, admission
of those statements at trial was harmless error because there was
ample additional evidence of Gallegos’ guilt. 	Finally, while the
trial court erroneously ruled that proposed expert testimony as
to Gallegos’ non-pedophile character was irrelevant, that error
was likewise harmless. 	Thus, because two of the alleged errors
were not in fact errors and because the remaining two errors do
not rise to the level of cumulative error, Gallegos’ cumulative
error challenge also fails. 	Affirmed.
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¶41 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Judge Bench concur in Justice Wilkins’
opinion.
¶42 	Justice Nehring does not participate herein; Utah Court
of Appeals Judge Russell W. Bench sat.