State v. Christian

2025 UT App 112

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERT M. CHRISTIAN,
Appellant.

Opinion
No. 20220753-CA
Filed July 17, 2025

Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 191400703

Emily Adams and Rachel Phillips Ainscough,
Attorneys for Appellant
Derek E. Brown and William M. Hains,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 Robert Christian was convicted of three counts of sodomy
on a child and four counts of sexual abuse of a child. On appeal,
Christian challenges his convictions on three grounds: first, he
argues that the district court improperly allowed the alleged
victim to testify about non-charged acts of sexual abuse; second,
he argues that his trial counsel provided ineffective assistance by
not objecting to a photograph that was introduced at trial showing
Christian wearing a dress at his wedding; and third, he argues
that his counsel provided ineffective assistance by not objecting to
a portion of the prosecutor’s rebuttal argument. Christian has also
filed a motion requesting a remand under rule 23B of the Utah
State v. Christian

Rules of Appellate Procedure. For the reasons set forth below, we
affirm Christian’s convictions and deny his motion for a remand.

BACKGROUND 1

The Abuse

¶2 Justin 2 and his family moved into a condo in Cedar Hills in
July 2008, when he was ten years old, and they lived there until
2013. At the time that Justin’s family moved in, Christian lived in
a condo next to theirs with his wife, his children, and his mother-
in-law. Christian lived there until he moved out in 2010.

¶3 Christian started conversing with Justin as Justin “would
go to and from school.” Christian talked to Justin “about different
things” like “video games.” Justin would get home from school
around 3:30 p.m., and since his parents usually got home from
work around 6:00 or 7:00 p.m., Justin was often home alone. Justin
“felt neglected” by his family, and he felt like Christian was his
only friend. Justin soon started going over to Christian’s condo,
where the two would play video games. Christian would also
sometimes go over to Justin’s condo. Justin later explained that
they would “look at each other’s schedules and see when no one”
else was home, and the two would then “schedule little times to
meet.”

¶4 The first time that Christian made physical contact with
Justin was on Justin’s porch. Justin remembered that he was “sad
about something” and Christian “hugged” him. After that,

1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Samples, 2022 UT App 125, n.3, 521 P.3d 526 (quotation
simplified).

2. A pseudonym.

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State v. Christian

hugging “became a part of [their] relationship.” At one point,
Christian told Justin that “it would be fun” to try “on girl’s
clothes” and makeup. They did, and this kind of activity soon
“became more frequent” in their relationship. As time went on,
Christian began touching Justin in sexual ways that involved
spanking, groping, and other forms of sexual conduct.

¶5 At trial, Justin testified in particular detail about four
instances of sexual abuse. During the first of these instances,
which occurred at Justin’s condo, Justin wore “girl’s pink
underwear” and Christian “put makeup on” him. Christian then
carried Justin to the stairwell, directed Justin to lean over the
railing, spanked Justin with a belt, rubbed Justin’s buttocks,
pulled Justin’s underwear down, and continued to spank and rub
Justin’s bare buttocks.

¶6 During the second instance, which occurred in Justin’s
bedroom, Justin was wearing “the same pink underwear” while
Christian was “spooning” Justin in Justin’s bed. Christian was
behind Justin and “put his hand in the underwear.” Christian then
“grabbed” Justin’s penis and “masturbated” Justin until he
ejaculated.

¶7 During the third instance, which also occurred in Justin’s
bedroom, Christian pulled down Justin’s underwear and “licked
[his] penis.” Christian then pulled down his own underwear and
“put his penis in [Justin’s] mouth” while “thrusting in and out”
until he “ejaculated in [Justin’s] mouth.” In his testimony, Justin
said that he remembered this instance because, as he stated, “I
remember choking on his semen, and I still remember the taste.”

¶8 During the fourth instance, which again occurred in
Justin’s bedroom, Justin was again “wearing girl’s underwear,”
and Christian began by spanking his buttocks “cheek by cheek.”
Christian “pulled the underwear down” and continued spanking
Justin. Christian then “told [Justin] to get up on all fours,” at
which point Christian “put his penis in” Justin’s anus.

20220753-CA 3 2025 UT App 112
State v. Christian

¶9 In addition to these four incidents, Justin also testified in
more generalized terms that similar acts of abuse had occurred
over a two-year period between August 2008 and December 2010.
In response to questioning from the prosecutor, Justin said that
Christian “spanked” him 15 to 20 times, “groped” him 6 times,
performed oral sex on him twice, and received oral sex from Justin
twice.

¶10 Christian threatened Justin that if he told anyone about the
abuse, Christian would “spank [him] more.” This made Justin feel
“controlled” and “like [he] was a slave.”

¶11 Justin didn’t disclose Christian’s abuse to his family until
he was 18 years old. Justin later testified that he waited years to
tell anyone about the abuse because he “felt emasculated and
sexually confused.” At the time of his initial disclosure to his
family, Justin didn’t want to report the abuse to police. Justin later
participated in therapy, during which he disclosed the abuse to
his therapist. Justin subsequently reported the abuse to police.

The Charges and Pretrial Motions

¶12 The State initially charged Christian with five counts of
sodomy on a child, ten counts of sexual abuse of a child, and one
count of lewdness involving a child. After a preliminary hearing,
Christian was bound over on all counts. The State later decided to
proceed on only seven counts—three counts of sodomy on a child
and four counts of sexual abuse of a child—explaining that it was
doing so to get the “trial down to a manageable level.” The State
filed an amended information to reflect the reduced number of
charges. Alongside that amended information, the State filed a bill
of particulars setting forth facts relating to the seven counts that it
intended to prove at trial.

¶13 Before trial, Christian’s counsel (Counsel) filed a motion in
limine to exclude a photograph that showed Christian wearing a

20220753-CA 4 2025 UT App 112
State v. Christian

dress during his wedding to his current husband. 3 Counsel
argued that the photograph was not relevant to the alleged
criminal conduct and that it was unfairly prejudicial because, in
Counsel’s words, the “assumption that the State is impliedly
making is that because [Christian] is gay and dresses accordingly
on occasions, he must be the person who committed the[se]
crimes.” The district court granted the motion, excluding the
photograph “subject to the right to present [it] appropriately for
rebuttal or impeachment.”

¶14 Christian also filed a motion in limine seeking to limit the
State’s evidence to that which was described in the bill of
particulars. In that motion, Christian asserted that he had not been
given proper notice of any evidence of any other acts of alleged
abuse. In its written response, the State argued that Christian had
been given notice at the preliminary hearing that it might use such
evidence, and the State further asserted at oral argument that the
evidence was admissible under rule 404(c) of the Utah Rules of
Evidence, which permits “evidence that the defendant committed
any other acts of child molestation to prove a propensity to
commit the crime charged.” Utah R. Evid. 404(c)(1). At a
subsequent hearing, the State again argued that Justin should be
allowed to testify about other uncharged acts pursuant to rule
404(c). The day before trial, the district court issued a ruling
denying Christian’s motion. There, the court concluded that
Christian had “been provided ample notice from the very
beginning of this case that the State has evidence of other
instances of alleged child molestation that were provided in the
preliminary hearing, and that were charged in previous instances
of the Information.” The court further held that, pursuant to rule

3. As will be discussed in more detail below, Christian was
married to a woman during the years in which he lived across
from Justin’s family, but during the intervening years, he had
divorced his wife and married a man.

20220753-CA 5 2025 UT App 112
State v. Christian

404(c), the State could “introduce evidence of other alleged sexual
activity with this particular alleged victim.”

¶15 Counsel then requested a continuance because he felt he
was not “properly prepared” to address the uncharged instances
of abuse. The court denied Counsel’s request for a continuance,
explaining as follows:

Put simply, if the jury hears that these things
happened three times . . . or a total of seven times
. . . or if the jury hears that that happened ten times
or twelve times, or I think as [the prosecutor]
clarified in the most recent oral argument,
approximately twenty times, the Court does not
find that to be a qualitative difference in the jury’s
understanding of the alleged pattern of behavior
that is alleged by the defendant in this case.

So the Court does not find it prejudicial to the
defendant’s case if it was twenty times rather than
seven times—overly, unduly prejudicial; and the
Court does find it to be relevant evidence for
purposes of the alleged victim being able to describe
the story, especially in this case where the
defendant’s defense apparently will be that these
things did not happen, could not have happened,
and that the alleged victim does not properly
remember—does not accurately remember.

The Trial

¶16 At trial, the State presented its case through the testimonies
of Justin, Justin’s brother, Justin’s father, and Justin’s mother.
Justin testified to the instances of abuse described above. Justin’s
family members testified about their interactions with Christian,
changes in Justin’s behavior that they observed after the family

20220753-CA 6 2025 UT App 112
State v. Christian

moved to the condo, Justin’s disclosure of Christian’s abuse, and
Justin’s exceptional memory.

¶17 During the defense’s case, Christian called six witnesses—
himself, his ex-wife, his daughter, his ex-mother-in-law, his
current husband, and an expert. Christian testified about coming
out as gay in 2009, ending his marriage in 2010, and marrying his
current husband in 2016. He denied ever performing sexual acts
on Justin, dressing Justin in pink underwear, bringing Justin to his
family’s condo, or putting makeup on Justin. He said he knew
“[v]ery little” about Justin’s family, and he said that while he
recalled meeting Justin’s father once, he didn’t recall ever meeting
Justin or his mother. 4

¶18 Christian also testified about his work schedule during the
time of the alleged abuse. He said that when he first moved to
Cedar Hills, he worked a shift at his job in Taylorsville from 6:00
a.m. to 2:30 p.m., and he said that at some point in 2008, he
switched to a shift that had him working from 10:30 a.m. to 7:00
p.m. He added that his commute time varied depending on traffic,
and he claimed that when there was traffic, his drive home would
take roughly “an hour and a half.” Christian also said that,
sometime in 2009, he started giving a coworker (Coworker) rides

4. By contrast, Justin’s father testified in detail about an interaction
he had with Christian as Justin’s family was moving out in which
Christian came to the door, asked about Justin, and insisted that
he needed to see Justin. And Justin’s brother testified about an
incident in which he was unexpectedly home one day from
college in 2009, Christian knocked on the door during the
afternoon, and then Christian seemed surprised and “totally
afraid” when the brother answered the door. According to the
brother’s account, Christian asked if his mother was home and
then left.

20220753-CA 7 2025 UT App 112
State v. Christian

to and from work, which made his commute approximately 30
minutes longer. 5

¶19 On cross-examination, the State asked Christian about
cross-dressing. Christian admitted that he had cross-dressed on
certain occasions, namely on “a couple of Halloweens” (once in
1976, when he was in third grade, and then once again in 1996),
when “go[ing] to the clubs” after he divorced his wife, and “when
[he] got married.” Counsel did not object to these questions or
answers. 6 Christian also denied ever cross-dressing between 2008
and 2010 (which was the period in question with these charges).
During its cross-examination, the State also introduced the
photograph of Christian wearing a dress at his wedding to his
husband. Although Counsel had obtained a pretrial ruling
excluding this photograph, Counsel did not object when the State
introduced it during the cross-examination of Christian at trial.

¶20 During the defense’s case, Christian’s ex-wife, ex-mother-
in-law, and daughter all testified about their schedules during the
time of the alleged abuse. These witnesses also testified about
certain times when they had seen, heard of, or been shown

5. In conjunction with his direct appeal, Christian has raised an
additional claim relating to Counsel’s failure to call Coworker in
his motion for a rule 23B remand. We address that claim in Part
IV below.

6. During the course of the cross-examination, Counsel did object
to a few other questions relating to cross-dressing. The court
overruled some of them but sustained one of them. As indicated,
however, Counsel did not object to the questions or answers
we’ve identified above. On appeal, Christian has not asserted that
Counsel’s few objections should have constituted a standing
objection to any questions or answers about the subject of cross-
dressing.

20220753-CA 8 2025 UT App 112
State v. Christian

photographs of Christian cross-dressing. 7 Christian’s expert also
testified about Justin’s memories, particularly as they related to
Justin’s interactions with his therapist. In the expert’s view, Justin
was constructing memories, Justin’s therapist had confirmatory
bias, and Justin’s therapist had ignored “alternative explanations”
for Justin’s memories.

¶21 In closing arguments, both the prosecutor and Counsel
discussed cross-dressing. In the State’s closing, the prosecutor
said,

Even cross-dressing he took too far. He said
occasionally cross-dressing from 1976 to 2016, but
the more he talked, the more he admitted he cross-
dressed, because it started out on just Halloween,
but then he’s clubbing, right; but his testimony is
never, not once during 2008, 2009 and 2010 did I
cross-dress.

Why? Because he has to. Because he was
cross-dressing. He was abusing a little boy, and
dressing this little boy in girl’s underwear, and
dressing up himself, and in his mind he’s got to
block that out.

In the defense’s closing, Counsel discussed how cross-dressing
isn’t “as shocking as it used to be.” He argued that Justin “had
altered memories” that “stemmed from his struggles with his own
sexual orientation,” such that Christian “became a target” for
Justin “to blame for the difficulties he was having in his life.” He
then pointed to a line from Justin’s therapist’s notes (which had
been admitted during trial) stating that Justin “had difficulty
discussing details.” Counsel argued that Justin’s “testimony is not

7. Additional details about this testimony will be recounted in
Part II below.

20220753-CA 9 2025 UT App 112
State v. Christian

accurate,” and from this, Counsel asked jurors to conclude that
“the whole case is not guilty.”

¶22 In rebuttal, the prosecutor responded to the attacks on
Justin’s credibility. In doing so, the prosecutor said,

I mean, things that are just so—they’re hard to
imagine, even imagining; but how do you
describe—how do you find the ability to function
when you can feel a 45-year-old erect penis in the
back of your 11-year-old throat? Can you fault him
for having a hard time to grasp that? Can you fault
him for trying to understand how to get the words
out as he describes his neighbor’s semen hitting the
back of his throat, and what it tastes like? And I
might add, how do you make up a memory like
that? How do you make up what semen tastes like?
You don’t.

¶23 At the close of trial, the jury convicted Christian on all
seven counts.

ISSUES AND STANDARDS OF REVIEW

¶24 On appeal, Christian first argues that the district court
plainly erred by not concluding that Justin’s testimony about
uncharged instances of abuse was inadmissible under rule 403 of
the Utah Rules of Evidence. “To prevail on plain error review, a
defendant must establish that (i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable likelihood of a
more favorable outcome for the appellant.” State v. Cesspooch, 2024
UT App 15, ¶ 7, 544 P.3d 1046 (quotation simplified), cert. denied,
550 P.3d 994 (Utah 2024).

20220753-CA 10 2025 UT App 112
State v. Christian

¶25 Christian next raises two claims of ineffective assistance—
namely, that Counsel was ineffective for not objecting when the
State introduced the photograph of him in a dress at his wedding,
and that Counsel was also ineffective for not objecting to the
prosecutor’s rebuttal argument. “An ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law.” Id. (quotation simplified).

¶26 Finally, in conjunction with his opening brief, Christian has
filed a motion requesting a remand under rule 23B of the Utah
Rules of Appellate Procedure. A rule 23B remand is “available
only upon a nonspeculative allegation of facts, not fully appearing
in the record on appeal, which, if true, could support a
determination that counsel was ineffective.” Utah R. App. P.
23B(a).

ANALYSIS

I. Testimony of Other Incidents

¶27 Christian first argues that the district court plainly erred in
not concluding that Justin’s testimony about other incidents of
sexual abuse (i.e., acts that did not form the basis for any of the
seven charges) was inadmissible under rule 403. We disagree. 8

8. We think it appropriate to explain why we’re reviewing this
issue for plain error. As discussed above, Christian filed a pretrial
motion seeking to limit the State’s evidence to the offenses
described in the bill of particulars, and the bill of particulars, in
turn, detailed facts supporting the seven charges. This motion in
limine was focused on an alleged lack of notice. In response, the
State argued that Justin’s testimony about uncharged acts was
admissible under rule 404(c) of the Utah Rules of Evidence. The
district court denied Christian’s motion, explaining that Christian
(continued…)

20220753-CA 11 2025 UT App 112
State v. Christian

had “ample notice.” Counsel then requested a continuance. In
denying that request, the court opined that the evidence was
“relevant” to Justin’s ability “to describe the story” and that it
would not be “unduly prejudicial” for the jury to hear that “it was
twenty times rather than seven times.”
In his opening brief, Christian asserted that “the district
court plainly erred when it did not conduct a full analysis under
rule 404(c).” He also suggested that Counsel was ineffective for
“not raising the relevance and prejudice inquiry under the [rule]
404(c) analysis.” In the course of his plain error argument,
Christian argued that—as part of the allegedly missing rule 404(c)
analysis—the district court should have assessed whether the
evidence was inadmissible under rule 403 and that it should have
concluded that it was not. In its responsive brief, the State pointed
out that the district court had expressly ruled that Justin’s
testimony about the uncharged instances was admissible under
rule 404(c). The State then argued in the alternative that the
evidence was admissible under rules 404(c) and 403.
In his reply brief, Christian withdrew his assertions that the
court had failed to conduct “a proper analysis” under rule 404(c)
and that Counsel was ineffective for not raising such a concern.
But Christian continued to maintain that the court should have
excluded Justin’s testimony about the uncharged instances under
rule 403.
In a footnote in the reply brief, Christian suggested that the
rule 403 issue itself may have been separately preserved when the
district court ruled that the evidence was both probative and not
“unduly prejudicial.” But it was too late to make that argument.
See Coleman ex rel. Schefski v. Stevens, 2000 UT 98, ¶ 9, 17 P.3d 1122
(“[W]e will not consider matters raised for the first time in the
reply brief.”). And in the opening brief, Christian never claimed
that the rule 403 issue (as opposed to the broader rule 404(c) issue)
was independently preserved. Instead, Christian treated them
together, arguing both under a joint plain error rubric. More to the
(continued…)

20220753-CA 12 2025 UT App 112
State v. Christian

¶28 Under rule 403 of the Utah Rules of Evidence, a district
court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” This rule is “inclusionary,” meaning it
“imposes the heavy burden not only to show that the risk of unfair
prejudice is greater than the probative value, but that it
substantially outweighs the probative value.” State v. Smith, 2019
UT App 141, ¶ 35, 449 P.3d 971 (quotation simplified). District
courts have “broad discretion” when conducting this balancing.
Francis v. National DME, 2015 UT App 119, ¶ 34, 350 P.3d 615
(quotation simplified); see also State v. Beverly, 2018 UT 60, ¶ 56,
435 P.3d 160.

¶29 The backdrop for the rule 403 argument at issue here is the
rule 404(c) ruling that Christian is no longer challenging. Rule
404(c) states that “[i]n a criminal case in which a defendant is
accused of child molestation, the court may admit evidence that
the defendant committed any other acts of child molestation to
prove a propensity to commit the crime charged.” Utah R. Evid.
404(c)(1). With this rule, the “drafters of our rules of evidence
have determined, as a policy matter, that propensity evidence in
child molestation cases can come in on its own terms, as
propensity evidence, even if there is no other plausible or avowed
purpose for such evidence.” State v. Forbush, 2024 UT App 11,

point, Christian expressly claimed in his opening brief that the
district court “erred in not analyzing whether the other alleged
abuse evidence passed the rule 403 balancing test,” before then
arguing that the court plainly erred by not excluding the evidence
under rule 403. (Emphasis added.) In light of all this, we conclude
that Christian’s rule 403 argument should be reviewed only for
plain error.

20220753-CA 13 2025 UT App 112
State v. Christian

¶ 36, 544 P.3d 1 (quotation simplified), cert. denied, 550 P.3d 995
(Utah 2024).

¶30 Even so, when the State seeks to introduce evidence under
rule 404(c), the evidence “is still subject to rule 403’s balancing
test.” Id. ¶ 37 (quotation simplified); see also State v. Fredrick, 2019
UT App 152, ¶ 43, 450 P.3d 1154 (“Even though prosecutors need
not articulate a non-character purpose for evidence of previous
acts of child molestation in order to win its admission, they still
must demonstrate that the proposed evidence comports with
rules 402 and 403 of the Utah Rules of Evidence.”). And as noted,
Christian has presented this argument to us through the lens of
plain error, which means that he “must establish that (i) an error
exists; (ii) the error should have been obvious to the trial court;
and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant.” State v. Cesspooch, 2024 UT App 15, ¶ 7, 544 P.3d 1046
(quotation simplified), cert. denied, 550 P.3d 994 (Utah 2024). So
viewed, we see no basis for concluding that this evidence was
obviously inadmissible under rule 403.

¶31 Starting with the “probative value” prong of the rule 403
balancing, we’ve held that where several “acts of a sexual nature
[are] committed against a single child victim” as “part of an
ongoing pattern of abuse,” this evidence can have “considerable
probative weight.” State v. Lintzen, 2015 UT App 68, ¶ 19, 347 P.3d
433. “Indeed, the propensity value of the evidence is precisely
what makes rule 404(c) evidence so highly probative.” Fredrick,
2019 UT App 152, ¶ 45.

¶32 This leaves the other side of the rule 403 balancing—here,
the dangers of unfair prejudice and cumulative evidence—which,
as noted, must substantially outweigh the evidence’s probative
value. See Utah R. Evid. 403.

¶33 On this front, Christian first argues that the evidence was
“unfairly prejudicial” because the “repeated” allegations

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State v. Christian

“bolster[ed]” the credibility of Justin’s testimony about the
charged offenses. We see no real daylight between this argument
and a propensity argument. In other words, Christian seems to
be asserting that if the jury was allowed to hear that he
had allegedly molested Justin on other occasions, it would be
more likely to believe Justin’s testimony about the abuse at issue
in the charges. But we’ve held that when evidence is admissible
under rule 404(c), the “unfair prejudice” analysis for purposes of
rule 403 must “focus[] on prejudice other than the fact that the
evidence shows propensity to engage in reprehensible behavior
involving children.” State v. Modes, 2020 UT App 136, ¶ 21, 475
P.3d 153 (quotation simplified). This is so because, “after rule
404(c), the accused’s propensity is the reason for admission and
no longer constitutes unfair prejudice.” Forbush, 2024 UT App 11,
¶ 45 (quotation simplified). Christian has not persuaded us that
the evidence in question created any other form of unfair
prejudice.

¶34 As noted, separate from the danger of unfair prejudice, rule
403 also states that evidence can be deemed inadmissible “if its
probative value is substantially outweighed” by the danger of
“needlessly presenting cumulative evidence.” Utah R. Evid. 403.
Addressing this part of the rule, Christian suggests that when
Justin testified about other uncharged acts of abuse, this was
needlessly cumulative.

¶35 Utah’s cases have not given much separate attention to
defining the parameters of the “needlessly . . . cumulative”
component of rule 403. Id. Addressing it briefly, our supreme
court has cautioned that “it may . . . be appropriate for a district
court to take stock of the need for the evidence or the efficacy of
alternative proof before deciding whether evidence should be
excluded under rule 403 as cumulative or a waste of time.” State
v. Cuttler, 2015 UT 95, ¶ 19, 367 P.3d 981. Addressing it in more
detail, one legal encyclopedia has suggested that, as a general
matter,

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State v. Christian

Evidence is considered cumulative when it adds
nothing to what was already before the jury.
Evidence is said to be cumulative when it relates to
a matter so fully and properly proved by other
testimony as to take it out of the area of serious
dispute. Evidence properly excludable as
cumulative falls into two categories: (1) evidence
supporting an uncontested or established fact, and
(2) evidence repeating a point made by previous
evidence. Evidence repeating a point made by
previous evidence should be excluded as
cumulative only with caution, since it by definition
concerns a disputed point, and repetition of the
same evidence on a disputed point by several
witnesses is often persuasive in establishing the
truth of that evidence.

29 Am. Jur. 2d Evidence § 350 (2025). We agree with this general
view.

¶36 In this case, and particularly against the backdrop of the
court’s rule 404(c) determination, we see no basis for concluding
that the testimony in question was “needlessly . . . cumulative,”
much less obviously so as required to establish plain error. Utah
R. Evid. 403. This is so for two reasons.

¶37 First, as noted, rule 404(c) expressly contemplates that
evidence of other instances of molestation is probative for the
purpose of proving propensity. This is the reason that such
evidence is considered to be “highly probative.” Fredrick, 2019 UT
App 152, ¶ 45. As a result, even if the evidence in question could
somehow be regarded as cumulative, it wouldn’t have been
“needlessly” cumulative. Rather, it would have been
appropriately cumulative, because the evidence of the additional
incidents was admissible to show a propensity to engage in this

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State v. Christian

kind of behavior. In some sense, the cumulativeness of this
evidence was the point.

¶38 Second, we recognize the conceptual possibility that, in
some future case, and even with the added context of rule 404(c),
there might be an outer point at which the State has put on so
much of this kind of evidence that it might be “needlessly
cumulative” to allow the State to put on any more. But what
happened here fell far short of any such point. Again, the State
didn’t put on any additional witnesses to testify about any other
acts involving any other person. Instead, it only presented
testimony from Justin himself, so this issue didn’t derail the trial
through time-consuming presentation of testimony from multiple
witnesses. And even within Justin’s testimony, the exchanges
about the other incidents were relatively sparse and self-
contained. Justin was asked how many times Christian had
spanked him (he said 15 or 20), how many times Christian had
“groped” him (he said 6), and how many times the two had
performed oral sex on each other (he said 2 times each). There was
nothing needlessly cumulative about this testimony, much less so
cumulative that it would be obvious that it substantially
outweighed the evidence’s strong probative value, thereby
requiring the district court to sua sponte exclude the evidence
under rule 403.

¶39 For all these reasons, we see no error, much less obvious
error. This claim accordingly fails.

II. The Photograph

¶40 Christian next argues that he received ineffective
assistance when Counsel failed to object to the photograph of him
wearing a dress at his wedding. As Christian puts it in his brief on
appeal, allowing the jury to see a photograph of him in the dress
“primed the jury to believe the State’s case that [Christian] acted
contrary to societal norms and thus was likely to have abused
Justin,” thereby “encourag[ing] the jury to accept the State’s

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State v. Christian

theory that [Christian] was a pedophile who groomed and
assaulted Justin for years.”

¶41 To prevail on this claim, Christian “must show (1) that
counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense.” State v. Devan, 2024 UT App
193, ¶ 38, 562 P.3d 1233 (quotation simplified), cert. denied, 568
P.3d 261 (Utah 2025). To establish deficient performance,
Christian “must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Forbush, 2024 UT App 11, ¶ 25 (quotation
simplified). “The focus of this inquiry is reasonableness,” which
we judge “as of the time of counsel’s conduct.” Id. (quotation
simplified). To establish prejudice, Christian “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” State v. Draper, 2024 UT App 152, ¶ 80, 560 P.3d
122 (quotation simplified). In assessing prejudice, we “assess
counterfactual scenarios of what would have happened but for
the ineffective assistance.” Id. ¶ 109 (quotation simplified).

¶42 Christian “must establish both prongs, and if either is
lacking, the claim fails and this court need not address the other.”
Devan, 2024 UT App 193, ¶ 38 (quotation simplified); see also Honie
v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. In its responsive brief, the
State argues that Christian has not established either deficient
performance or prejudice. Because we agree with the State that
Christian has not established that he was prejudiced, we need not
address deficient performance.

¶43 As the State points out, there was a substantial amount of
testimony presented at trial about Christian’s cross-dressing.
Some of this related to Halloween events—Christian testified that
he cross-dressed on “a couple of Halloweens,” his ex-wife
testified that she saw Christian cross-dress “once” on Halloween,
his daughter testified that she saw a photograph of Christian

20220753-CA 18 2025 UT App 112
State v. Christian

“dressed up as a woman on Halloween night,” and Christian’s ex-
mother-in-law testified that she heard about Christian cross-
dressing at a “Halloween party.” Separate from the Halloween
events, Christian testified that he sometimes cross-dressed
when “go[ing] to the clubs” after he divorced his wife. And
perhaps most importantly for the issue before us, several
witnesses testified that Christian wore a dress at his wedding to
his husband. Christian testified that he did so, his daughter
testified that she was at the wedding and saw him “in the purple
dress,” and Christian’s ex-wife and Justin both testified that they
had seen a photograph of Christian wearing a dress at the
wedding.

¶44 On appeal, Christian does not argue that Counsel provided
ineffective assistance by not objecting to any of this testimony.
Rather, his claim is focused on the assertion that Counsel was
ineffective for not objecting to the introduction of the photograph
from the wedding.

¶45 We stress here that we are taking no position on Christian’s
claim, on appeal, that the evidence of him wearing the dress
would have been viewed as good or bad in a normative or societal
sense. Rather, we are taking the terms of his argument as he has
presented it to us. But even with that as the backdrop, we note
that while we agree with Christian that there may have been some
additional impact for the jury to see the picture (as opposed to just
hearing about it), we don’t agree that this difference would have
been so pronounced as to meaningfully tip the evidentiary scales
against Christian. As noted, the trial testimony about Christian’s
cross-dressing wasn’t limited to an isolated reference or two.
Rather, there were multiple references to it, from multiple
witnesses, and regarding Christian cross-dressing on multiple
occasions. As a result, the jury had already been repeatedly
prompted to imagine this very kind of image. And again,
Christian has not argued that Counsel should have objected to all
of this testimony as well.

20220753-CA 19 2025 UT App 112
State v. Christian

¶46 Moreover, as the State points out, the defense itself used
the idea of Christian cross-dressing—indeed, it used the idea of a
photograph of Christian cross-dressing—to Christian’s benefit. In
her testimony, for example, Christian’s daughter said that she
kept a photograph of Christian cross-dressing on Halloween in
her “night stand,” and in closing argument, Counsel referred to
this portion of her testimony as being “heartwarming” and
“beautiful.” In light of this, it’s now at least a touch inconsistent
for Christian to suggest on appeal that Counsel should have
sought to exclude another photograph of Christian’s cross-
dressing as being one that would prompt the jury to think he had
a propensity to sexually assault Justin.

¶47 In short, given the array of testimony that came in about
this subject at trial, we agree with the State’s suggestion that a
“hypothetical trial without the . . . photograph of Christian in a
dress would have looked nearly indistinguishable from the trial
that happened.” We accordingly reject this ineffective assistance
claim for lack of prejudice.

III. Prosecutor’s Rebuttal

¶48 In the defense’s closing argument, Counsel argued that
Justin “had altered memories” that “stemmed from his struggles
with his own sexual orientation,” and Counsel pointed to a line
from Justin’s therapist’s notes (which had been admitted during
trial) stating that Justin “had difficulty discussing details.” In
rebuttal, the prosecutor made the comments described above,
including one comment in which he asked jurors, “[H]ow do you
describe—how do you find the ability to function when you can
feel a 45-year-old erect penis in the back of your 11-year-old
throat?” as well as another in which he said, “[H]ow do you make
up a memory like that? How do you make up what semen tastes
like? You don’t.” On appeal, Christian argues that Counsel was
ineffective for failing to object to these comments, contending that
the prosecutor had improperly “asked the jury to put themselves

20220753-CA 20 2025 UT App 112
State v. Christian

in Justin’s place.” As discussed above, Christian can only prevail
on an ineffective assistance claim if he shows both deficient
performance and prejudice. We conclude that Christian has not
shown deficient performance. This is so for two reasons.

¶49 First, it’s not at all clear that such an objection would have
been meritorious. Christian claims that the prosecutor’s rebuttal
violated the principles set forth in State v. Todd, 2007 UT App 349,
173 P.3d 170. There, we explained that “a prosecutor is prohibited
from asking jurors to put themselves in the victim’s place.” Id.
¶ 19. We then held that the prosecutor in that case had committed
misconduct by asking jurors to consider what a murder victim
“might have told” them if she had been alive to testify. See id. ¶¶ 8,
19.

¶50 But as the State points out, we later recognized in State v.
Isom that there is a “distinction” between asking jurors to put
themselves in the place of a “victim” and asking jurors to put
themselves in the place of a “witness.” 2015 UT App 160, ¶¶ 30,
31, 354 P.3d 791. Isom also involved the alleged sexual abuse of a
child, and in closing argument there, the prosecutor said to the
jury,

I would ask that you put yourself in her little shoes
and think of how you would describe the offenses
that occurred to you, how you would be able to help
others understand what you experienced, where
you were when it happened, where it happened.
Why are these people continuing to ask me these
questions? Why do I have to talk about things that
make me feel uncomfortable? Put yourself in her
shoes and use your own adult logic to think about
when you were her age and how much ability you
had, cognitively, to express yourself . . . . I won’t
suggest to you that this is an easy process because
it’s not and the evidence is challenging, but I would,

20220753-CA 21 2025 UT App 112
State v. Christian

again, urge you to look at this through [the child]’s
eyes and walk in her shoes. Try to figure out
whether or not [the child] was intentionally trying
to lie to you, really, about anything of significance.

Id. ¶ 26. On appeal, we rejected the defendant’s claim that his
attorney had rendered ineffective assistance by failing to object to
the prosecutor’s argument. We suggested that the prohibition set
forth in Todd applies when a prosecutor “unfairly appeals to the
sympathies, passions, and prejudices of the jury.” Id. ¶ 27
(quotation simplified). By contrast, we held that the prosecutor in
Isom was asking the jury to assess the child-witness’s “credibility
as a witness in light of her age.” Id. ¶ 31 (emphases added). In this
sense, we concluded that the prosecutor’s argument was “not an
improper appeal to the jury to base its decision on sympathy for
the victim but rather a means of asking the jury to reconstruct the
situation in order to decide whether” the witness’s testimony was
“plausible.” Id. (quotation simplified).

¶51 The same is true here. In the portion of the rebuttal
argument at issue, the prosecutor asked the jurors to think about
how they would “describe” the abuse, and he further asked them
to consider how a person would “make up a memory like that.”
As in Isom, this seems to have been an argument about the
credibility and plausibility of Justin’s testimony, as opposed to
being an appeal to sympathy or passion. As a result, Counsel
could have reasonably decided that any objection would be futile.

¶52 Second, even if there had been some basis for objecting, we
also believe that Counsel could reasonably have decided not to do
so. Utah’s appellate courts have been wary of concluding that a
defense attorney was ineffective for not objecting to an argument
made by a prosecutor in a closing argument. According to our
supreme court, when reviewing “an attorney’s failure to object to
a prosecutor’s statements during closing argument, the question
is not whether the prosecutor’s comments were proper, but

20220753-CA 22 2025 UT App 112
State v. Christian

whether they were so improper that counsel’s only defensible choice
was to interrupt those comments with an objection.” State v.
Houston, 2015 UT 40, ¶ 76, 353 P.3d 55 (emphasis in original,
quotation otherwise simplified). And this wariness makes
jurisprudential sense. When a prosecutor makes a potentially
objectionable statement in a closing argument, it presents
something of a dilemma for defense counsel. On the one hand,
counsel can object and ask the court to instruct the jury to
disregard the statement. But there are also “many legitimate,
strategic reasons why an attorney might choose to not object to a
statement made during closing argument.” State v. Harris, 2024
UT App 191, ¶ 21, 562 P.3d 1215 (quotation simplified), cert.
denied, 564 P.3d 961 (Utah 2025). These include

the possible fear that objecting would call attention
to the improper statements and suggest to the jury
that they were damaging when counsel felt they
were not, the concern that the jury was weary and
inattentive to the prosecutor and that objecting
would only serve to focus [its] attention on the
remark, and the concern that an objection would
create antipathy to the defense if the jury perceived
that counsel’s repeated objections were only
prolonging the proceedings.

Id. (quotation simplified). Given these concerns, in many if not
most instances, defense counsel enjoys “the prerogative . . . to
swallow their tongue instead of making an objection.” State v.
Hummel, 2017 UT 19, ¶ 110, 393 P.3d 314.

¶53 Here, the statements in question alluded to testimony that
was not only damaging to the defense, but very graphic too.
Under these circumstances, we believe that Counsel could have
reasonably decided that an objection might further focus the
jury’s attention on these details and that it was accordingly better
to leave the comments alone. For these reasons, we reject

20220753-CA 23 2025 UT App 112
State v. Christian

Christian’s assertion that Counsel performed deficiently by not
objecting.

IV. Rule 23B Remand

¶54 Along with his brief, Christian has filed a motion for a
remand pursuant to rule 23B of the Utah Rules of Appellate
Procedure. That rule allows “[a] party to an appeal in a criminal
case” to file a motion asking this court to “remand the case to the
trial court for entry of findings of fact, necessary for [this] court’s
determination of a claim of ineffective assistance of counsel.”
Utah R. App. P. 23B(a). Such a motion will be granted “only upon
a nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Id. If the proffered evidence does
not “meet the test for ineffective assistance of counsel, then there
is no reason to remand the case.” State v. Samples, 2022 UT App
125, ¶ 57, 521 P.3d 526 (quotation simplified).

¶55 In his motion, Christian requests a remand to create a
record to support the claim that Counsel was ineffective for not
calling Coworker as a witness at trial. In support of his motion,
Christian has included affidavits from both Coworker and
Counsel. As explained in the motion and the affidavits, Coworker
was Christian’s romantic partner during part of the period in
which the abuse allegedly occurred—in Coworker’s affidavit, he
says that their relationship began in “late October/early
November 2009.” Christian argues that Coworker should have
been called to testify about two things: (1) their work schedules
during that period and (2) Christian’s aversion to “spanking for a
sexual purpose.” But even with the proffered affidavits, we see no
basis for concluding that Counsel performed deficiently.

¶56 As an initial matter, we note that Counsel’s decision not to
call Coworker was an informed decision. In his affidavit, Counsel
noted that he “had listed [Coworker] as a potential witness for Mr.
Christian’s trial” but that he had ultimately chosen to not call

20220753-CA 24 2025 UT App 112
State v. Christian

Coworker as a witness. As explained shortly, Counsel then gave
certain reasons why he thought Coworker’s testimony may have
been either unhelpful or even problematic.

¶57 “When reviewing an ineffective assistance claim, we must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” Forbush,
2024 UT App 11, ¶ 76 (quotation simplified), and the defendant
carries the burden of persuading us otherwise, see State v.
Schoenenberger, 2024 UT App 187, ¶ 64, 562 P.3d 1174, cert. denied,
568 P.3d 261 (Utah 2025). Moreover, “strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” Strickland v. Washington,
466 U.S. 668, 690 (1984). In light of Counsel’s affidavit, it’s clear
that Counsel was aware of Coworker’s testimony and chose not
to call him. Christian therefore faces the uphill task of persuading
us that the potential gains from this testimony were so
pronounced that Counsel simply could not have reasonably
decided not to call him.

¶58 Work Schedule. At trial, Christian testified that at the
beginning of the relevant period, he worked a shift from 6:00 a.m.
to 2:30 p.m., which caused him to get home between 4:30 and 5:00
p.m.; he also said that when he switched to a 10:30 a.m. to 7:00
p.m. shift sometime in 2009, he would get home between 9:00 and
10:00 p.m. Christian’s daughter and Justin attended the same
school, and Christian testified that he was “[a]t work” when his
daughter (and, by implication, Justin) would be coming home
from school. To somewhat varying degrees, Christian’s ex-wife,
ex-mother-in-law, and daughter also corroborated Christian’s
claim about his schedule. Christian’s ex-wife testified that she
thought Christian “[n]ever” would have had “an opportunity to
molest” Justin “in the afternoon of a weekday” and that Christian
was not home when their daughter “returned home from school.”
Christian’s ex-mother-in-law testified that she would get home
from work around 4:00 or 5:00 p.m., and she agreed with Counsel

20220753-CA 25 2025 UT App 112
State v. Christian

that the children were “usually home” but that Christian was
“usually” not home. Christian’s daughter testified that Christian
was “[a]lmost never” home when she returned from school and
that Christian usually got home around 6:45 or 7:00 p.m.

¶59 Coworker would not have added much to this testimony.
In his affidavit, Coworker stated, “Most days, we did not leave
work until about 7 or 8 p.m.” Coworker also said that he “had a
handwritten calendar from 2009 detailing [his] work scheduling,”
and he said that this calendar “support[ed]” the claim that he and
Christian “did not leave work until 7 or 8 p.m.”

¶60 But even with this potential testimony, Counsel could have
reasonably decided that the potential gains were marginal. After
all, the relationship between Christian and Coworker only began
partway through the period in which the abuse allegedly
happened. And even there, Coworker talked about their
schedules on “[m]ost days,” not “all days,” so even with this
testimony, there would have conceivably been some days in
which Christian left earlier and still could have abused Justin.
And this is also consistent with Counsel’s own understanding of
Coworker’s potential testimony. In his affidavit, Counsel stated
that Coworker’s “testimony would have been offered to support
the fact that on some unspecified work days, . . . Christian had
diminished time to be alone with the alleged victim during the
time period when the crimes were alleged to have been
committed.” Counsel further said that Coworker “was not able to
recall specific dates.” As a result, it seems unclear whether the
potential testimony would have been any more helpful than the
testimony that the jury had already heard, and it also seems that
it still would have left open the possibility for Justin’s claims to be
true.

¶61 Moreover, there would have been a potential drawback to
calling Coworker to testify. Again, Coworker said that he had a
“romantic relationship” with Christian. And this seems to have

20220753-CA 26 2025 UT App 112
State v. Christian

partially tied into why the two were driving home together and
Coworker was tracking Christian’s schedule so closely. But in his
affidavit, Counsel said that he “recall[ed] weighing the potential
benefit” of Coworker’s testimony “against the potential for
disparaging . . . Christian’s character.” According to Counsel, he
was concerned about the potential negative effects of highlighting
for the jury that Christian was engaging in this romantic
relationship while he “was married.”

¶62 In response to this concern, Christian argues in his rule 23B
filings that it “was unreasonable to worry about the jury viewing
[Christian] as unfaithful” to his ex-wife “when there was already
testimony that their marriage was struggling, and [Christian] was
gay.” But as the State points out, putting Coworker on the stand
to testify about their romantic relationship would have placed the
infidelity squarely before the jury. And this could well have been
damaging to the defense. At trial, Christian’s ex-wife not only
vouched for Christian’s character, but she also testified that they
“talked about almost everything.” She further testified that she
hadn’t seen indications of the kind of behavior Justin had
described—the pink underwear and makeup and the like. In
closing argument, Counsel referred to that as “powerful
testimony.” But if part of the defense’s pitch turned on suggesting
that it would have been hard to sneak this kind of behavior by
Christian’s ex-wife, then presenting the jury with testimony from
Christian’s extramarital partner may have undermined this
message. After all, it would have given the jury an unavoidable
visual image of a relationship that Christian had managed to hide
from her, and it would have given the prosecutor the opportunity
to explore this during cross-examination of Coworker too.

¶63 In light of the fact that the jury had already heard
testimony about Christian’s schedule from other witnesses, we
believe that Counsel could have reasonably decided that the
potential gains from Coworker’s testimony about Christian’s

20220753-CA 27 2025 UT App 112
State v. Christian

schedule (which, again, were potentially marginal) were not
worth the potential distraction or costs.

¶64 Spanking. So too with Coworker’s proposed testimony
about spanking. In Coworker’s affidavit, he stated, “During my
romantic relationship with [Christian], I asked him to spank me.
[Christian] was adamantly against engaging in that type of
behavior in our relationship. [Christian] told me that he equated
spanking to his children, and he would not engage in spanking
for a sexual purpose.”

¶65 As the State points out, if Coworker had offered this
testimony, the prosecutor could have readily countered it. After
all, it would’ve been easy enough for the State to argue that there
may have been a difference between Christian’s romantic or erotic
interests relating to his adult partner and whatever it was that was
motivating him to sexually abuse the neighbor child. In any event,
the potential drawbacks identified above of putting Coworker on
the stand would have been even more pronounced if the purpose
had been to discuss their sexual relationship. If Counsel had put
Coworker on the stand and then asked him about Christian’s
sexual interests, this would have directly focused the jury’s
attention on Christian’s extramarital sexual life. Again, this would
have further highlighted his secretiveness and infidelity as related
to his ex-wife, thereby undermining the defense’s strategy of
calling her to testify about Christian’s openness and candor
within their relationship.

¶66 Strickland recognizes that there are “countless ways to
provide effective assistance in any given case” and that “even the
best criminal defense attorneys would not defend a particular
client in the same way.” 466 U.S. at 689. For purposes of a deficient
performance analysis, “the question is not whether some strategy
other than the one that counsel employed looks superior given the
actual results of trial. It is whether a reasonable, competent lawyer
could have chosen the strategy that was employed in the real-time

20220753-CA 28 2025 UT App 112
State v. Christian

context of trial.” Forbush, 2024 UT App 11, ¶ 76 (quotation
simplified).

¶67 Under these circumstances, Counsel could reasonably
have decided that any potential gains from Coworker’s proposed
testimony weren’t worth the risks. As a result, we conclude that,
even with the proffered affidavits, Christian has not shown that
Counsel performed deficiently. We accordingly decline to order
the rule 23B remand.

CONCLUSION

¶68 For the foregoing reasons, we affirm Christian’s
convictions and deny his request for a rule 23B remand.

20220753-CA 29 2025 UT App 112