State v. Underwood

2026 UT App 76

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SHAUNE JOHNSON UNDERWOOD,
Appellant.

Opinion
No. 20240158-CA
Filed May 14, 2026

Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 201800215

Dylan T. Carlson, Debra M. Nelson, Benjamin Miller,
and Wendy M. Brown, Attorneys for Appellant
Derek E. Brown and Alexandra Herlong,
Attorneys for Appellee

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

CHRISTIANSEN FORSTER, Judge:

¶1 A jury convicted Shaune Johnson Underwood of sexually
abusing two of his female family members, Grace and Summer, 1
based on conduct alleged to have occurred decades earlier.
Underwood raises two issues on appeal. First, he contends that
his trial counsel (Counsel) rendered ineffective assistance by
failing to argue that rule 807 of the Utah Rules of Evidence, the
residual hearsay exception, permitted admission of certain
statements made by a now-deceased family member during the
police investigation. Second, he argues that the trial court plainly

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State v. Underwood

erred by failing to disregard the victims’ testimony as inherently
improbable and insufficient to support the convictions. We affirm.

BACKGROUND 2

¶2 The charges in this case stem from allegations that
Underwood sexually abused both Grace and Summer over an
extended period of time when they were young children. The
alleged abuse occurred many years before the investigation and
trial. Each reported the abuse to law enforcement in 2020. Both
testified at trial and described repeated incidents of sexual abuse
occurring over multiple years. The State’s case relied on Grace’s
and Summer’s testimony.

¶3 During the police investigation of Underwood, an officer
interviewed Underwood’s brother (Brother). According to a
proffer provided by Counsel, Brother told the officer it was
“impossible” for the abuse to have happened in the way that the
victims had reported. He also called Grace “a big liar” and
expressed his belief that Underwood “didn’t do anything to
[Grace].” Brother died prior to trial and was unavailable to testify.

¶4 Before trial, Counsel sought the admission of Brother’s
statements to police expressing disbelief about Grace’s
allegations. Counsel asserted that the victims’ delay in reporting
the abuse was purposeful and prejudicial such that Brother’s
statements should be admitted at trial as a remedy and to support
Underwood’s defense. Counsel acknowledged that Brother’s
statements qualified as hearsay, but he argued that Brother’s
report to police was reliable, necessary, and important to the
defense. Counsel did not specifically cite rule 807 of the Utah
Rules of Evidence, the residual hearsay exception, to support his
admissibility argument. The trial court denied the request because

2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Maese, 2010 UT App 106, n.2, 236 P.3d 155.

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State v. Underwood

Counsel had cited no rule of evidence or other legal authority to
allow the admission of hearsay.

¶5 Underwood’s defense at trial was that he never abused
Grace or Summer. In support, Counsel cross-examined the
victims about alleged inconsistencies in their accounts in an
attempt to undermine the credibility of their allegations. To
support his claims that it was impossible for the abuse to have
unfolded in the ways alleged by the victims, Underwood also
presented evidence that he has a very small penis and that he
suffered from erectile dysfunction.

¶6 During the defense’s case-in-chief, Counsel renewed the
motion to admit Brother’s hearsay statements from his police
interview. Counsel argued that Brother’s statements were
recorded in a police report, which is admissible evidence.
Alternatively, Counsel argued that Brother’s statements were
admissible under rule 806 of the Utah Rules of Evidence to
impeach Grace’s testimony. The trial court denied Counsel’s
renewed motion, concluding that despite being part of a police
report, Brother’s statements were hearsay and that the statements
lacked sufficient indicia of reliability because Brother was not
subject to cross-examination and the jury could not meaningfully
assess the basis for his opinion.

¶7 In closing argument, the State focused on the lasting
impact of childhood sexual abuse, emphasizing that the victims,
now in their forties, still carried wounds from the abuse that
occurred when they were young children. The prosecutor
reviewed the testimony provided by the victims and addressed
the defense’s erectile dysfunction and small-penis arguments,
asserting that Underwood’s alleged conditions did not prevent
the abuse from occurring. During his closing, Counsel argued that
the State failed to meet its burden of proof, pointing to
inconsistencies in the victims’ testimony over time regarding the
duration and frequency of the alleged abuse. Counsel highlighted
Underwood’s erectile dysfunction and small penis size as
evidence contradicting the allegations, arguing the physical

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State v. Underwood

limitations would have made the described abuse impossible.
Counsel also noted the decades-long delay in reporting the abuse
and questioned the credibility and motivation of the victims.

¶8 The jury convicted Underwood as charged. He now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Underwood raises two issues on appeal. First, he contends
that Counsel was constitutionally ineffective for failing to cite the
residual hearsay exception under rule 807 of the Utah Rules of
Evidence as a basis to admit Brother’s statements to police. When
raised for the first time on appeal, an ineffective assistance of
counsel claim presents a question of law, which we evaluate for
correctness. See State v. Bedell, 2014 UT 1, ¶ 20, 322 P.3d 697.

¶10 Underwood next contends that the trial court plainly erred
by not sua sponte dismissing the charges against him at trial on
the basis that there was not sufficient evidence presented to the
jury to convict, where the victims’ testimony was inherently
improbable and could not support a guilty verdict. “When a jury
verdict is challenged on the ground that the evidence is
insufficient, we review the evidence and all inferences which may
reasonably be drawn from it in the light most favorable to the
verdict.” State v. Hirschi, 2007 UT App 255, ¶ 15, 167 P.3d 503
(quotation simplified). “And we will not reverse a jury verdict if
we conclude that some evidence exists from which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177,
299 P.3d 892 (quotation simplified). Thus, “we may reverse a
verdict only when the evidence, so viewed, is sufficiently
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime of which he or she was convicted.” State v.
Graves, 2019 UT App 72, ¶ 17, 442 P.3d 1228 (quotation
simplified).

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State v. Underwood

ANALYSIS

I. Ineffective Assistance of Counsel

¶11 Underwood first argues that Counsel provided ineffective
assistance of counsel by failing to argue that Brother’s out-of-court
statements to police were admissible under rule 807 of the Utah
Rules of Evidence, the residual hearsay exception. To prevail on
this claim, Underwood must satisfy the two-pronged test set out
in Strickland v. Washington, 466 U.S. 668 (1984), by showing that
(1) “[C]ounsel’s performance was deficient” and (2) “the deficient
performance prejudiced the defense.” Id. at 687.

¶12 To establish deficient performance, Underwood must
show that Counsel’s actions “fell below an objective standard of
reasonableness.” Id. at 688. When analyzing performance, “a court
must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id.
at 689. “Furthermore, we give wide latitude to trial counsel to
make tactical decisions and will not question such decisions
unless there is no reasonable basis supporting them.” State v.
Gallegos, 2020 UT 19, ¶ 34, 463 P.3d 641 (quotation simplified).

¶13 To establish prejudice, Underwood “must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “To evaluate prejudice under Strickland,
we assess counterfactual scenarios—that is, what would have
happened but for the ineffective assistance.” State v. Bell, 2025 UT
App 169, ¶ 23, 581 P.3d 1030 (quotation simplified).

¶14 Underwood cannot prove that Counsel provided
ineffective assistance by failing to cite rule 807 when moving to
admit Brother’s statements that Grace’s allegations were
impossible and that she was lying, because Counsel substantively
argued what rule 807 requires and because the statements were
likely not admissible under rule 807.

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A. Counsel substantively argued what rule 807 requires.

¶15 Hearsay is an out-of-court statement offered “to prove the
truth of the matter asserted in the statement.” Utah R. Evid. 801(c).
Barring some exception, hearsay is inadmissible at trial. Id. R. 802.
As relevant here, rule 807 permits a hearsay statement to be
introduced at trial, even if not covered by a specific hearsay
exception, when “(1) the statement has equivalent circumstantial
guarantees of trustworthiness; (2) it is offered as evidence of a
material fact; (3) it is more probative on the point for which it is
offered than any other evidence that the proponent can obtain
through reasonable efforts; and (4) admitting it will best serve the
purposes of these rules and the interests of justice.” Id. R. 807(a).

¶16 In moving for the admission of Brother’s hearsay
statements concerning Grace’s character for truthfulness, Counsel
did not cite any particular rule of evidence that would justify their
admission. Nevertheless, he substantively argued that the
statements should be admitted because they were made to police
and were therefore reliable, that the statements were necessary to
the defense, and that excluding the statements would be
fundamentally unfair. And the trial court rejected those
arguments, concluding that the statements lacked sufficient
indicia of reliability because Brother was not subject to cross-
examination and the jury could not meaningfully assess the basis
for Brother’s statements.

¶17 Underwood’s claim of deficient performance rests on
Counsel’s failure to formally cite rule 807 as a basis to admit
Brother’s statements; he does not contend that Counsel failed to
raise the substantive argument. But defense counsel does not
perform deficiently by failing to cite a particular rule when the
substance of the argument has been considered and rejected. “The
reasonableness of counsel’s challenged conduct must be judged
on the facts of the particular case, viewed as of the time of
counsel’s conduct.” State v. Ray, 2020 UT 12, ¶ 31, 469 P.3d 871
(quotation simplified).

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B. Rule 807 likely would not have applied.

¶18 Moreover, even if Counsel had expressly invoked rule 807,
thereby making the argument more explicitly, Brother’s hearsay
statements were unlikely to satisfy the rule’s requirements. Rule
807 “was intended for use in those rare cases where, although the
out-of-court statement does not fit into a recognized exception, its
admission is justified by the inherent reliability of the statement
and the need for its admission, and is therefore to be used rarely
and construed strictly.” State v. Buttars, 2020 UT App 87, ¶ 33, 468
P.3d 553 (quotation simplified). Brother’s statements do not meet
this high bar.

¶19 First, Brother’s statements do not carry the “circumstantial
guarantees of trustworthiness” necessary to qualify for admission
under the residual exception. See Utah R. Evid. 807(a)(1). Brother
provided no foundation for his conclusions that Grace was lying
and that her allegations were impossible. And the circumstances
giving rise to the statements further undermine their reliability.
Brother made the statements to police during an investigation into
serious allegations against his family member, Underwood.
Given that Brother was living with Underwood and was
estranged from Grace, Brother had every incentive to protect
Underwood from criminal charges and no reason to benefit
Grace. 3

3. Underwood suggests that Brother’s statements should be
considered inherently reliable for the same reasons that
statements against interest are considered inherently reliable. See
Utah R. Evid. 804(b)(3). That is, Underwood argues that Brother’s
testimony is reliable because had he lied to police, he could have
faced criminal liability. See Utah Code § 76-8-306(2)–(3). But even
assuming for argument only that this is so, Brother’s statements
still do not meet all the requirements to be admitted as a statement
against interest. Among other things, a statement against interest
must be “supported by corroborating circumstances that clearly
(continued…)

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State v. Underwood

¶20 Second, the statements were not “more probative” than
other reasonably available evidence. See id. R. 807(a)(3). At trial,
Brother’s ex-girlfriend testified that Grace was “dishonest” and
that she had a history of “stealing and lying.” And Underwood
presented evidence in the form of both lay and expert testimony
suggesting that the allegations of abuse would not have been
possible given his very small penis and erectile dysfunction.

¶21 Third, admitting the statements would not have served
“the interests of justice.” Id. R. 807(a)(4). Underwood claims that
admission of Brother’s statements was critical to his ability to
present a complete defense because the statements were “reliable
and relevant evidence that went to a key component of the case—
the credibility of his accusers.” But Underwood fails to grapple
with the reality that, had Brother been alive and permitted to
testify at trial, he generally would not have been permitted to
testify that Grace was lying when she made the allegations against
Underwood or that her allegations were impossible in the sense
Underwood advances.

¶22 Utah law prohibits lay witnesses from offering opinions on
the truthfulness of another witness on a particular occasion. See
id. R. 608(a); State v. Cegers, 2019 UT App 54, ¶ 23, 440 P.3d 924.
While Brother could have potentially shared his opinion about
Grace’s “general character for truthfulness,” Cegers, 2019 UT App
54, ¶ 24 (emphasis added), the statements at issue are narrower
than that—they concern Grace’s truthfulness as it specifically
relates to the allegations. Thus, admitting the statements would
have run counter to Utah law and would have undermined, not
promoted, justice.

¶23 In sum, Counsel did not perform deficiently because he
made the substantive argument that Brother’s hearsay statements

indicate its trustworthiness.” Utah R. Evid. 804(b)(3)(B). Given
that Brother provided no foundational evidence to support the
trustworthiness of his statements, this requirement has not been
met.

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State v. Underwood

were admissible. And in any event, Counsel’s failure to
specifically invoke rule 807 as a basis for admitting Brother’s
hearsay statements did not prejudice Underwood because the
statements were unlikely to satisfy the rule’s requirements.
Accordingly, Underwood’s ineffective assistance claim fails.

II. Inherent Improbability

¶24 Underwood argues the trial court plainly erred by failing
to sua sponte disregard the victims’ testimony as being inherently
improbable. He contends that had the court properly excluded the
testimony, there would have been “no other evidence against
him” and, thus, the evidence would have been insufficient to
support a conviction.

¶25 To demonstrate that the trial court committed plain error,
Underwood “must show that (1) an error exists; (2) the error
should have been obvious to the trial court; and (3) absent the
error, there is a reasonable likelihood of a more favorable
outcome.” State v. Skinner, 2020 UT App 3, ¶ 30, 457 P.3d 421
(quotation simplified). Where, as here, the alleged error is the
failure to sua sponte disregard witness testimony as inherently
improbable, to prevail on a claim of plain error, the defendant
must show that the testimony “was so obviously and
fundamentally faulty that the trial court should have stepped in
and excluded that testimony from the equation without
specifically being asked to do so.” Id.

¶26 The proper test to determine whether testimony is
“inherently improbable” is “whether the testimony could support
a conviction or whether reasonable minds must have entertained
a reasonable doubt that the defendant committed the crime for
which he or she was convicted.” State v. Jok, 2021 UT 35, ¶ 19, 493
P.3d 665 (quotation simplified). Our supreme court has
“identified three factors that merit consideration under an
inherently improbable analysis: material inconsistencies, patent
falsehoods, and lack of corroborating evidence.” Id. ¶ 32. But
while these factors “are beneficial, they are not controlling.” Id.

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State v. Underwood

¶ 36. Ultimately, testimony may be deemed inherently
improbable only where the testimony, when weighed “in light of
the other evidence, . . . run[s] so counter to human experience that
it renders the testimony inappropriate for consideration in
sustaining a finding of guilt.” Id. (quotation simplified).

¶27 Underwood claims the victims’ testimony in this case was
inherently improbable because it contained material
inconsistencies and lacked corroboration. As concerns the alleged
inconsistencies in Grace’s testimony, Underwood points to the
following: Grace was unable to remember what time of day
certain abuse occurred; Grace was unable to remember specific
details about what Underwood’s apartment looked like; Grace
initially reported that the abuse had gone on for ten years, but at
trial she stated it had lasted for only six years; Grace’s pretrial
statement about the location where the initial abuse took place
was different from her account at trial; and the frequency with
which Grace initially claimed the abuse had occurred was both
impossible and contradicted her other statements. And as to
Summer’s testimony, Underwood contends that Summer’s initial
report about the number of times she had been abused was not
consistent with her claim at trial that she could not tell “exactly”
how many times. Similarly, Underwood notes that while Summer
recounted during the preliminary hearing that Underwood’s
penis was erect when he abused her, when testifying at trial, she
claimed that she did not remember if it was erect.

¶28 While Underwood has identified some instances where the
victims’ testimony was less than consistent, we do not think that
these discrepancies amount to material inconsistencies
warranting application of the narrow inherent improbability
doctrine. See State v. Doyle, 2018 UT App 239, ¶ 17, 437 P.3d 1266
(“The inherent improbability doctrine has very limited
applicability . . . .”). This is so for multiple reasons.

¶29 First, “[t]he mere fact that a witness’s account changes
between her initial interview with police and her testimony at trial
is by itself insufficient” to establish material inconsistency. State v.

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State v. Underwood

Carrell, 2018 UT App 21, ¶ 53, 414 P.3d 1030. To be materially
inconsistent, “the witness’s testimony at trial must be internally
inconsistent; the fact that a witness’s trial testimony is somewhat
at odds with other evidence in the case, including . . . that
witness’s own prior statement, is not enough to render that
testimony ‘inherently improbable.’” Id. (emphasis added).
Indeed, the question of “which version of a witness’s conflicting
account to believe” is nothing more than a “garden-variety
credibility question[],” State v. Hughes, 2024 UT App 168, ¶ 33, 560
P.3d 188 (quotation simplified), cert. denied, 564 P.3d 957 (Utah
2025), which is exactly “the type of question we routinely require
juries to answer,” State v. Prater, 2017 UT 13, ¶ 39, 392 P.3d 398; see
also State v. Barnes, 2023 UT App 148, ¶ 27, 542 P.3d 108 (“[I]t
would be a rare case in which defense counsel could identify no
inconsistencies in the account given by the State’s main witness.”).
Thus, where the victims’ trial testimony was internally consistent,
any inconsistencies between the victims’ pretrial statements and
their trial testimony did not render the latter testimony inherently
improbable but instead raised a credibility issue to be resolved by
the jury. See Prater, 2017 UT 13, ¶ 39.

¶30 Second, many of the alleged inconsistencies concern
“peripheral issues or details.” See State v. Hernandez, 2024 UT App
127, ¶ 14, 557 P.3d 639 (quotation simplified), cert. denied, 561 P.3d
691 (Utah 2024). The time of day during which Grace was abused,
specific details about what Underwood’s apartment looked like,
and where the abuse first took place “have little bearing on the
jury’s ultimate determination of [Underwood’s] guilt.” State v.
Kamrowski, 2015 UT App 75, ¶ 17, 347 P.3d 861 (quotation
simplified). Inability to remember “mere[] details supporting [a]
primary assertion” are not material “but instead are within the
range of normal, but flawed, human recollection—something that
juries are capable of sorting through.” State v. Fletcher, 2015 UT
App 167, ¶ 9, 353 P.3d 1273. This is especially true in this case,
where the victims were testifying about abuse that occurred
decades earlier, when they were young children.

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¶31 Third, Underwood’s assertion that Grace’s testimony was
“glaringly false” rests on disputed factual premises and
competing inferences. According to Underwood, Grace’s initial
report made to the police that she was abused “every day of her
life” was apparently false on its face given that the two never lived
together. But testimony is “apparently false” only if “its falsity is
apparent, without any resort to inferences or deductions.” State v.
Robbins, 2009 UT 23, ¶ 17, 210 P.3d 288 (quotation simplified). The
fact that Underwood and Grace did not live together does not
mean that Underwood was not able to abuse her daily. This
conclusion requires an inference that lack of physical proximity
equated to an inability to commit the abuse; but once inference is
required, testimony is no longer inherently improbable as a
matter of law. 4

¶32 For all these reasons, neither Grace’s nor Summer’s
testimony was inherently improbable. Consequently, the trial
court did not plainly err by not excluding it sua sponte.

CONCLUSION

¶33 Underwood has not shown that Counsel performed
deficiently by failing to specifically invoke rule 807 of the Utah
Rules of Evidence when moving for the admission of Brother’s
hearsay statements. Moreover, Underwood cannot show that
Counsel’s supposed deficiency caused him prejudice, because
even had Counsel specifically invoked rule 807, Brother’s hearsay
statements were unlikely to satisfy the rule’s requirements.
Finally, Underwood has not shown that the trial court plainly
erred by not sua sponte excluding the victims’ testimony as
inherently improbable. Affirmed.

4. And at trial, when asked how often the abuse occurred, Grace
responded, “If I was around him, it was daily, every day I was
around him.”

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