State v. Talbert

2026 UT App 97

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JARED LYNN TALBERT,
Appellant.

Opinion
No. 20240192-CA
Filed June 25, 2026

Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 221402950

Dallas B. Young, Attorney for Appellant
Derek E. Brown and William M. Hains,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

HARRIS, Judge:

¶1 A jury convicted Jared Lynn Talbert of six counts of various
sexual crimes related to actions he took toward his minor
stepchild. He now appeals his convictions, raising one argument
that goes to all six counts, and then raising two separate
arguments that each go to only one count. First, he asserts that his
trial attorney (Counsel) rendered ineffective assistance by not
objecting to the admission of what Talbert characterizes as
improper propensity evidence. Second, he challenges his
conviction on Count 2—for forcible sexual abuse—on various
grounds, all stemming from the contention that there was a
variance between the acts charged in the original information and
the acts proved at trial. Third, he challenges his conviction on
State v. Talbert

Count 6—for forcible sodomy—by asserting that the trial court
erred in denying his motion for a directed verdict on that count.
For the reasons that follow, we reject all of Talbert’s arguments
and affirm his convictions.

BACKGROUND 1

¶2 Talbert married Taylor’s 2 mother (Mother) when Taylor
was ten years old. Taylor’s relationship with Talbert didn’t start
out “the best,” but it began to improve when the family moved
into a bigger house. After living together for a few years, Mother
and Talbert had a child together. Around that same time, Mother
and Talbert “agree[d] that [Talbert] would basically take night
duty” with the young child because Mother “was struggling with
depression” and “was overwhelmed with work.” During this
time, Mother would take medicine to help her fall asleep, usually
“around eight.” As a result, Taylor would “often” spend time
with Talbert in the evening, when the two would “watch funny
videos” that Taylor had found.

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Popp, 2019 UT App 173, n.1, 453
P.3d 657 (cleaned up).

2. A pseudonym. Taylor was assigned female at birth, but during
the time of the events in question Taylor had begun the process of
transitioning to male and had requested the use of they/them
pronouns. In this opinion, when referring to Taylor, we use the
pronouns that we understand Taylor prefers.

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State v. Talbert

The Abuse

¶3 On a summer night, soon after Taylor turned fourteen,
Taylor went down to Talbert’s office in the family’s unfinished
basement to watch videos with him. Taylor sat “on his lap,” which
was a “newer thing” that had started happening as Taylor got
older. While the two were watching the videos, Talbert “undid
[Taylor’s] bra and started touching” Taylor’s bare breasts, and he
“squished” Taylor’s nipple, which “made [Taylor]
uncomfortable.” The touching stopped when Taylor “noticed it
was [midnight]” and told Talbert it was time to go to bed. Talbert
then “apologized and said that it was inappropriate of him to do
that” and “told [Taylor] not to tell [Mother].”

¶4 Another night, around that same time, Talbert and Taylor
were “in [Taylor’s] bedroom” with the door shut, and Talbert was
sitting on Taylor’s bed with his back against the headboard and
Taylor “on his lap” while Taylor “was telling him about a story
[they] had [written].” While discussing the story, Talbert “put his
hand in [Taylor’s] pants and rubbed his fingers against [their]
panties.” “And then later he went in [the panties], and [he] put his
fingers in” Taylor’s vagina. This lasted for “a few minutes,” then
Talbert “apologized again” and told Taylor “not to tell [Mother].”

¶5 Another time, Talbert and Taylor were “on [Taylor’s] bed,”
in the same position, with Taylor again “telling [Talbert] about
[the] story.” “And Talbert did the same thing, but then . . . [he]
took [Taylor’s] pants and underwear off and he lifted [Taylor’s]
hips and put his mouth” on their vagina. Taylor “didn’t like how
it felt” and “squirmed away,” and Talbert stopped.

¶6 On another occasion, Taylor was again “telling [Talbert]
about [the] story” and “he touched [Taylor] down there again,”
but this time he didn’t “rub[] on the outside . . . . He just went in.”
“[A]nd like the other time,” he took Taylor’s pants and underwear
off and put his mouth on their vagina. Taylor “rolled away, and
then [Talbert] pulled [Taylor] back” and “rubbed an object” that

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State v. Talbert

Taylor “assumed . . . was his thumb” from Taylor’s “butt to . . .
the bottom of [their] vagina.” Taylor didn’t see the object but later
said that it “felt like skin.” Taylor thought it might have been one
of Talbert’s fingers, but due to its size Taylor didn’t think it could
have been any finger other than a thumb, and Taylor “didn’t feel
a fingernail at all.” Taylor “squirmed away” again, causing
Talbert to stop, at which point Taylor “glanced at him” putting
his pants “back on.”

¶7 Taylor has since remembered other things happening, but
Taylor doesn’t remember if these occurrences were separate from
those described above because the events are “all kind of mixed
together.” Taylor remembers Talbert “pulling” their nipple,
which was “a different time” than when he “squished” their
nipple. Taylor remembers one occasion when Talbert took
Taylor’s shirt and bra off and “kissed and bit” “[t]he top half of
[their] body.” Taylor also remembers “one time [when] [Talbert]
. . . put his hand on [their] neck, and it was hard to breathe.”

¶8 In early December of that year, Mother woke up in the
middle of the night to discover that Talbert “was nowhere to be
found.” Then at about 3:00 a.m. she saw Talbert “come
downstairs, and [she] asked where he had been, and he said he
was just getting [Taylor] . . . some medicine for a cough,” which
felt odd to her because she didn’t think Taylor “seem[ed] sick.”
Mother “asked how long he had been [upstairs], and he said only
about 30 minutes.” Talbert then reassured her “that everything
was fine.” But Mother checked home security cameras and
discovered that Talbert had gone into Taylor’s bedroom at 12:35
a.m. and had not come out until 3:00 a.m.

¶9 At that point, Mother “was panicking” and decided to call
her sisters. Mother “asked them what to do,” and it was decided
that after Taylor woke up, Mother would ask Taylor if anything
inappropriate had happened. That morning, as planned, Mother
“asked [Taylor] if there was ever a time that [Talbert] was in

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State v. Talbert

[their] room and [they] felt uncomfortable or weird.” Taylor
answered in the affirmative and “started crying.” Mother then
called her sisters again and told them what she heard, and she
eventually decided to pack up a few things and leave the house
with the kids while Talbert was still sleeping.

¶10 After Mother left the house, she called the police, who told
Mother to bring Taylor to the Children’s Justice Center (the CJC),
which she did. There, Taylor was examined by a forensic nurse,
who specifically asked Taylor to “tell [her] about what happened”
the day before. Taylor stated that Talbert had not touched them
with his penis the day before but that he did touch them with his
hand. The nurse then asked Taylor to describe “other times”
Talbert had touched Taylor, and Taylor described the time they
felt the object that “could have been his thumb.” When the nurse
asked if the object “could . . . have been his penis,” Taylor
answered affirmatively. In connection with the examination,
Taylor disclosed much of the abuse described above. The nurse
“performed a physical exam” but did not find any
“abnormalities,” which the nurse did not consider surprising
because that was the case “over 90 percent of the time.”

¶11 While Taylor was being examined, Mother started
receiving text messages from Talbert that she considered
“suicidal.” Among other things, Talbert wrote to Mother, “Tell the
kids that I might not have been the man that they deserved but I
tried my best and I hope they have at least one good memory of
me.” And Talbert texted Taylor, “I’m sorry I wasn’t who you
needed me to be. Forever in my heart.” Officers went to the house
to intervene, where they convinced Talbert “to put away [a] gun”
he had retrieved. The officers then asked Talbert if there was any
truth to Taylor’s allegations, and he said there wasn’t.

The Charging Document

¶12 The State eventually charged Talbert with six sexual
crimes: two counts of object rape (Counts 1 and 3), one count of

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State v. Talbert

forcible sexual abuse (Count 2), and three counts of forcible
sodomy (Counts 4, 5, and 6). The information included a probable
cause statement that offered additional detail related to each
count. Count 2 and Count 6 are particularly relevant here.

¶13 For Count 2, the information alleged that Talbert had
committed forcible sexual abuse by touching Taylor’s “pubic
area” or “any part of [their] genitals.” The probable cause
statement recounted that Talbert had “crawled into [Taylor’s] bed
and rubbed [their] vagina over [their] clothing while [they were]
telling him more about [their] story (COUNT 2).”

¶14 For Count 6, the information alleged that Talbert had
committed forcible sodomy by “engag[ing] in [a] sexual act . . .
involving the genitals of one person and the mouth or anus of
another.” And the probable cause statement alleged as follows:

[Talbert] took his pants off and [Taylor] could feel
his penis rubbing [their] vagina all the way to [their]
anus. [Taylor] felt [Talbert] rub his penis on both
[their] vaginal and anal openings . . . . [Taylor]
pushed [Talbert] off of [them] and saw him pull up
his pants. [Taylor] disclosed another time when
[Talbert] took off [their] pants, held [Taylor] up and
started licking [their] vagina . . . .[3]

Pretrial Proceedings

¶15 At a hearing well before trial, the court informed Talbert of
his “right to have a preliminary hearing to hear the evidence.”
Talbert stated that he understood and, so advised, he made the

3. Count 6 went to the jury as being supported by the “penis to
anus” incident. Talbert does not contend that this prosecutorial
election was erroneous. For clarity, we refer to Count 6 only as it
relates to that incident.

20240192-CA 6 2026 UT App 97
State v. Talbert

decision to waive his right to a preliminary hearing. He was thus
bound over for trial on all charges.

¶16 About a month before trial, the State submitted proposed
jury instructions to the court. In one proposed instruction (the
Information Instruction), the State included most of the text of the
charging document and, for Count 2, quoted the original
information’s language that Talbert stood accused of “touch[ing]
[Taylor’s] pubic area, or any part of [their] genitals.” But in other
proposed instructions contained in the same packet, the State
proposed to offer the jury other alternatives for Count 2, including
that Talbert had “touched [Taylor’s] breast” and had taken
“indecent liberties with” Taylor. The State proposed offering
these same alternatives in a special verdict form for Count 2.

¶17 On the first day of trial, the court and the attorneys
discussed the jury instructions. In particular, the court asked
Counsel if he had any objection to the proposed Information
Instruction, and Counsel indicated that he did not. A few minutes
later, the prosecutor stated that “in looking over” the Information
Instruction, he had noticed that its description of Count 2
mentioned only genital touching and “omit[ted] ‘breasts of a
female,’” which he also noticed was inconsistent with some of the
other proposed instructions. The court and the parties discussed
the matter, and eventually the State asked the court to amend the
Information Instruction “to add ‘or breasts of a female’ in the
text.” Counsel stated that he had “[n]o objection,” and the court
granted the State’s motion. When the Information Instruction was
eventually read to the jury, it included the additional text. That is,
the jury was told that, on Count 2, Talbert stood accused of
“touch[ing] the pubic area or any part of the genitals of another or
the breast of a female.” (Emphasis added.)

Trial

¶18 At trial, the State presented evidence from Mother, Taylor,
Taylor’s father, Mother’s sister, an expert on DNA analysis, the

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State v. Talbert

nurse from the CJC, and an officer who interviewed Talbert at his
house. These witnesses testified consistently with the events
recounted above. The State also presented video evidence from
the officer’s body camera, which had captured the officer’s
interview with Talbert in its entirety.

¶19 At the close of the State’s evidence, Counsel moved for a
directed verdict. Counsel’s motion and argument, in its entirety,
was as follows:

Well, for purposes of establishing a record, we’d
move for a directed verdict at this point, and also
understanding the—I would say likelihood of it
being granted, I’ll leave it at that.

The court denied the motion, offering its view that “there [was]
some competent evidence for each of the charges in the case that
have been presented so far here in the trial.”

¶20 Talbert then testified in his own defense, denying all
allegations of sexual abuse and stating that he felt like he had been
falsely accused. He explained that on the early December day in
question, he and Taylor had had a “falling out” “regarding
[Taylor’s] desire to transition to a male,” “which [Talbert]
fervently rejected from a financial standpoint.” Talbert explained
that this dispute had made Taylor “upset,” and he suggested that
it may have led to their leveling accusations of abuse against him.

¶21 Before the final instructions were read to the jury, Counsel
and the State stipulated to the language of the elements
instructions as well as to the language of the special verdict form
for Count 2. In that same exchange, Counsel and the State also
stipulated to providing the jury with a special verdict form for
Count 6, in which the jury would be given the option of finding
Talbert guilty of a lesser-included offense (forcible sexual abuse)
instead of forcible sodomy. The court then read the stipulated
instructions to the jury.

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State v. Talbert

¶22 In the State’s closing argument, the prosecutor emphasized
the significance of Taylor’s testimony and tied specific instances
of abuse to the charged counts. As relevant here, the State asked
the jury to convict Talbert on Count 2 based on the first-described
instance of abuse, when Taylor was in Talbert’s office and he
“touch[ed] [Taylor’s] breasts.” For Count 6, the State asked the
jury to convict Talbert for the “penis to anus” incident. In
Counsel’s closing argument, he argued that Taylor had not been
a credible witness and emphasized the lack of corroborating
evidence to support Taylor’s claims.

¶23 After deliberation, the jury found Talbert guilty as charged
on Counts 1 through 5. On Count 2, the jury found that Talbert
had committed forcible sexual abuse by touching Taylor’s breast
but not by touching Taylor’s genitals. And on Count 6, the jury
acquitted Talbert of forcible sodomy, but it found him guilty of
the lesser-included offense of forcible sexual abuse.

ISSUES AND STANDARDS OF REVIEW

¶24 Talbert now appeals his convictions, and he asks us to
consider three issues. 4 First, he asserts that Counsel rendered
ineffective assistance by not objecting to the admission of
evidence of uncharged acts of abuse. “A claim of ineffective
assistance of counsel raised for the first time on appeal presents a
question of law, which we consider de novo.” State v. King, 2018
UT App 190, ¶ 11, 437 P.3d 425 (cleaned up).

¶25 Second, Talbert argues that several errors related to
Count 2 warrant reversal of his conviction on that count. All of the

4. In his initial brief, Talbert raised an additional issue: that
Counsel had rendered ineffective assistance by opting not to
object to certain testimony that Talbert characterized as improper
bolstering. But in his reply brief, Talbert withdrew this argument.
Accordingly, we need not address it.

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State v. Talbert

issues Talbert raises regarding Count 2 arise for the first time on
appeal, and when an “issue arises for the first time here on review,
our decision is not governed by any standard of review, and we
decide the matter as a question of law in the first instance.” Grewal
v. Junction Market Fairview, L.C., 2024 UT 20, ¶ 12, 554 P.3d 863
(cleaned up); see also State v. Young, 2014 UT 34, ¶ 5, 337 P.3d 227
(“Challenges to subject matter jurisdiction present questions of
law, which we review for correctness.” (cleaned up)); State v.
Thomas, 2025 UT App 145, ¶ 15, 579 P.3d 416 (“Claims for plain
error and ineffective assistance of counsel present questions of
law, which we determine in the first instance as a matter of law.”).

¶26 Third, Talbert challenges the court’s denial of his directed
verdict motion regarding Count 6. “We review the [trial] court’s
denial of a motion for directed verdict for correctness.” State v.
Dever, 2022 UT App 35, ¶ 29, 508 P.3d 158 (cleaned up).

ANALYSIS

I. Evidence of Uncharged Acts

¶27 Talbert first argues that Counsel provided ineffective
assistance by not objecting to Taylor’s testimony about certain
uncharged acts of abuse. He asserts that this testimony was
inadmissible, pursuant to rule 404(b) of the Utah Rules of
Evidence, because it didn’t directly concern any of the charged
events and because it raised the possibility of Talbert’s character
being improperly “impugn[ed]” in the eyes of the jury.
Specifically, he faults Counsel for not objecting to Taylor’s
testimony about the “under-the-clothing breast touching
incident,” the “breast fondling incident where [Talbert] allegedly
pulled [Taylor’s] nipple,” and the “breast kissing/biting incident.”
In response, the State argues that competent counsel could have
chosen to “reasonably forgo an objection” because counsel could
have reasonably believed that rule 404(b) would not have barred

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State v. Talbert

this testimony and that, therefore, an objection grounded in that
rule would have been overruled. We agree with the State.

¶28 “To demonstrate ineffective assistance, a defendant must
make a two-part showing.” State v. Broadwater, 2024 UT App 184,
¶ 34, 562 P.3d 739, cert. denied, 564 P.3d 959 (Utah 2025). First, “the
defendant must show that counsel’s performance was deficient,”
which “requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington, 466
U.S. 668, 687 (1984). Second, “the defendant must show that the
deficient performance prejudiced the defense,” which “requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. A
defendant must prove both elements to be successful. See id. And
if a claim is infirm under one of the prongs, then “the claim fails
and the court need not address the other.” State v. Nelson, 2015 UT
62, ¶ 12, 355 P.3d 1031. We choose to resolve this claim under the
deficient-performance element.

¶29 To demonstrate deficient performance, the defendant must
show that “counsel’s representation fell below an objective
standard of reasonableness.” State v. Popp, 2019 UT App 173, ¶ 26,
453 P.3d 657 (cleaned up). In evaluating the reasonableness of
counsel’s actions, courts will often look to whether the actions
counsel took were motivated by trial strategy. See State v. Scott,
2020 UT 13, ¶ 35, 462 P.3d 350 (“To be sure, the performance
inquiry will often include an analysis of whether there could have
been a sound strategic reason for counsel’s actions.”). And while
“the ultimate question is not whether there was a possible
strategic reason for counsel’s conduct, but instead whether that
conduct was objectively reasonable,” id., “[i]f it appears counsel’s
actions could have been intended to further a reasonable strategy,
a defendant has necessarily failed to show unreasonable
performance,” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871. And
the “failure to raise futile objections does not constitute ineffective

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State v. Talbert

assistance of counsel.” State v. Samora, 2021 UT App 29, ¶ 42, 484
P.3d 1206 (cleaned up).

¶30 Rule 404(b) prohibits admission of “[e]vidence of a crime,
wrong, or other act . . . to prove a person’s character in order to
show that on a particular occasion the person acted in conformity
with the character.” Utah R. Evid. 404(b)(1). This rule “does not
apply to evidence of the crime charged, because such evidence
does not implicate a person’s purported propensity to act in
conformance with the character exhibited by the evidence.” State
v. Blackwing, 2025 UT 60, ¶ 29, 582 P.3d 829. Accordingly, this rule
operates to exclude only “evidence that is extrinsic to the crime
charged.” Id. ¶ 24 (cleaned up). Evidence that is intrinsic—that is,
evidence that has “a direct relationship between the act and the
charged crime”—is “outside the scope of rule 404(b).” Id. ¶ 31.
Thus, evidence of uncharged acts is admissible if it “is directly
connected to the factual circumstances of the [charged] crime and
provides contextual or background information to the jury.” Id.
¶ 26 (cleaned up). In particular, “evidence of uncharged sexual
conduct against the same child victim that is directly connected to
the factual circumstances of the charged crime and provides
contextual or background information to the jury is admissible—
as intrinsic evidence—because showing how the perpetrator
groomed the victim bears directly on the charged sexual offense.”
State v. Newberry, 2026 UT App 2, ¶ 47, 584 P.3d 343 (cleaned up).

¶31 Here, Counsel could have reasonably concluded that the
uncharged sexual acts Taylor described at trial were directly
related to the factual circumstances of the charged crime and that
evidence of those acts was therefore not barred by rule 404(b).
Taylor’s testimony about the “under-the-clothing breast touching
incident,” the “breast fondling incident where [Talbert] allegedly
pulled [Taylor’s] nipple,” and the “breast kissing/biting incident”
describes the exact type of contextual or background evidence
that we have previously found to be admissible intrinsic evidence
beyond the scope of rule 404(b). See id. ¶¶ 47, 52. And as in

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State v. Talbert

Newberry, the evidence of each of these instances bears directly on
the charged offenses by providing circumstantial evidence of
Talbert’s grooming process with Taylor. Thus, Counsel could
have reasonably concluded that any rule 404(b) objection to the
challenged evidence would have failed, and Counsel therefore
did not perform deficiently by not lodging such an objection.

II. Count 2

¶32 Next, Talbert raises several arguments aimed at
challenging his conviction on Count 2, a count on which the jury
convicted him of forcible sexual abuse. At root, Talbert’s objection
is that the specific acts set forth in the charging document as being
connected to this charge were different from the acts the jury
ultimately convicted him of committing.

¶33 As a reminder, the original information alleged that, for
Count 2, Talbert had committed forcible sexual abuse by touching
Taylor’s “pubic area” or “genitals.” And in the probable cause
statement that accompanied the original information, the State
claimed that the act underlying Count 2 was an occasion on which
Talbert “crawled into [Taylor’s] bed and rubbed [their] vagina
over [their] clothing while [they were] telling him more about
[their] story.” By contrast, the court’s instructions gave the jury
the option of convicting Talbert on Count 2 for either touching
Taylor’s genitals or touching Taylor’s breasts. And the State’s
prosecutorial election during trial specified that the act
underlying Count 2 was the first occasion Taylor described—the
one in which they said Talbert touched their breasts while the two
were in Talbert’s basement office.

¶34 Talbert argues that these differences constitute a
“variance” between the acts charged and the acts proved, and he
asserts that this variance led to a host of problems, any of which
requires reversal of his conviction on Count 2. First, he contends
that this variance created a subject-matter-jurisdiction problem
that renders his conviction void. Second, he contends that the

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State v. Talbert

variance created procedural-due-process and notice problems
that entitle him to a new trial. And third, he asserts that this
variance created a problem of proof, contending that the State did
not present sufficient evidence to support a conviction regarding
the Count 2 acts it alleged in the charging document.

¶35 In response, the State contests Talbert’s arguments on their
merits, but it also raises three threshold issues. First, the State
contends that the original information was “effectively
amended,” which eliminated any variance between the charging
document and the acts discussed at trial. Second, the State asserts
in its brief that, by not asking for the trial to be continued, Talbert
waived the right to complain about any variance. And third, the
State notes that Talbert failed to raise any of these issues for
consideration by the trial court, and on this basis it asserts that all
of Talbert’s complaints other than subject matter jurisdiction—
which, as discussed below, can be raised at any time—are
unpreserved for our review on appeal.

¶36 We begin by addressing the State’s first threshold
argument that the charging document was effectively amended,
and we conclude that it was not. Next, we address Talbert’s
assertion that the variance created a subject-matter-jurisdiction
problem, and we conclude that it did not. After that, we address
the extent to which Talbert’s arguments were waived by his
failure to seek a continuance of the trial, and we conclude that all
but one of Talbert’s arguments were waived in this way. Finally,
we address the unwaived issue: the one concerning the
sufficiency of the evidence on Count 2. We first conclude that
Talbert failed to preserve this claim, and we then proceed to
review it for plain error and to address it through the lens of
Talbert’s argument that Counsel rendered ineffective assistance
by not asking for a directed verdict on Count 2. Ultimately, we
reject Talbert’s arguments.

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State v. Talbert

A. Amendment of the Information

¶37 We first address the State’s contention that the information
was effectively amended. After all, if this contention were correct,
then there would be no variance between the acts alleged in the
information and the acts proven at trial, and all of Talbert’s Count
2 arguments would fail. But this contention is not correct.

¶38 Indeed, the State acknowledges that “no formal [a]mended
[i]nformation” was ever “filed on the docket.” It nevertheless
argues that the information was “effectively amended” when
Talbert agreed, during the jury instruction conference, “that the
court could include breast touching” in the Count 2 jury
instructions, including the Information Instruction. The State’s
argument has some force; after all, when the court described the
pending charges to the jury, it recited that, on Count 2, Talbert
stood accused of “touch[ing] the pubic area or any part of the
genitals of another or the breast of a female.” (Emphasis added.)

¶39 But in our view, amendments to charging documents need
to be consciously made, by order or consent of the court. “It is a
fundamental principle of criminal law that a defendant is entitled
to know ‘the nature and cause of the accusation against him [or
her].’” State v. Bush, 2001 UT App 10, ¶ 14, 47 P.3d 69 (quoting
Utah Const. art. I, § 12). Indeed, “[i]n a criminal proceeding[,] the
accused is entitled to be charged with a specific crime so that he
[or she] may know the nature and cause of the accusation against
him [or her],” and “the State must prove substantially as charged
the offense it relies upon for conviction.” State v. Schroeder, 2023
UT App 57, ¶ 24, 531 P.3d 757 (cleaned up). In Utah, criminal cases
are initiated by the filing of an information. See Utah R. Crim. P.
4(a). And once filed, an information may be amended only if
certain requirements are met. See id. R. 4(d). Most fundamentally,
an information may be amended only if the court allows it. See id.

¶40 Here, no party even asked the court to amend the actual
information (as opposed to the Information Instruction). The

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State v. Talbert

entire discussion took place in the context of discussing jury
instructions, and while the State did ask the court to “amend that
to add ‘or breasts of a female’ in the text” (emphasis added), in
context the emphasized antecedent refers to the Information
Instruction and not to the charging document itself. Thus, not
only was no formal amended information filed in the docket, no
party even asked the court to amend the information, and the
court at no point ordered any such relief.

¶41 The situation might be different if, say, the court had made
an oral ruling allowing amendment of the information but, due to
a clerical error or oversight, the document was never actually
filed. At least there—as in Fahrni v. State, 473 S.W.2d 486, 502 (Tex.
App. 2015), where “the district clerk filed a supplemental clerk’s
record containing [an] amended indictment,” even though no
formal amendment was ever filed—we would have some
indication in the record that the court had considered the issue
and had actually ordered that the information be amended. But
we think it stretches informality too far to hold that, merely by
amending certain jury instructions and without actually
considering any request to amend the information, a court has
“effectively amended” the information itself.

¶42 For these reasons, we reject the State’s argument that the
information was “effectively amended” through alteration of the
proposed jury instructions, including the Information Instruction.

B. Subject Matter Jurisdiction

¶43 Next, we address Talbert’s argument that the trial court
“never acquired subject matter jurisdiction over the under-the-
clothing breast touch incident, because it was not mentioned in
the [i]nformation.” We are unpersuaded.

¶44 “A court has subject matter jurisdiction if the case is one of
the type[s] of cases the court has been empowered to entertain by
the constitution or statute from which the court derives its

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State v. Talbert

authority.” State v. Smith, 2014 UT 33, ¶ 18, 344 P.3d 573 (cleaned
up). This case—a criminal case alleging that Talbert has
committed a felony crime—is unquestionably “one of the type[s]
of cases” that the trial court was “empowered to entertain.” See id.

¶45 “Section 78A-5-102(1) of the Utah Code grants district
courts broad subject matter jurisdiction over criminal cases.” Id.
¶ 20. That statute provides district courts with “original
jurisdiction in all matters civil and criminal,” “except as otherwise
prohibited by the Utah Constitution or by statute.” Utah Code
§ 78A-5-102(1). In application of that authority, rule 4(a) of the
Utah Rules of Criminal Procedure allows the State to commence
an action by filing an information.

¶46 In light of these authorities, Talbert acknowledges that
because “the State filed a criminal information,” the “trial court
had subject matter jurisdiction over something.” (Emphasis
added.) But Talbert contends that the jurisdictional inquiry is
granular: he argues that “the subject matter jurisdiction a criminal
information confers begins and ends with what is alleged in the
information” and that because the breast-touching incident was
not specifically mentioned in the information, the trial court “had
no authority over” the breast-touching incident. As he sees it, with
regard to Count 2, the court had jurisdiction over only the genital-
touching incident and not the breast-touching incident.

¶47 This argument fails because the subject-matter-jurisdiction
inquiry is not that granular. Once an information is properly
filed—in the right court by the proper prosecuting entity—a trial
court has subject matter jurisdiction over the entire case, see Smith,
2014 UT 33, ¶ 18, and can proceed to adjudicate it, including by
making any rulings the court might be asked to make regarding
any alleged variance, such as rulings on motions raising, for
instance, concerns grounded in due process, notice, or sufficiency
of the evidence. Such concerns may, in some cases, ultimately

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State v. Talbert

prove problematic, but the issues they present do not implicate
subject matter jurisdiction.

¶48 Talbert resists this conclusion by directing our attention to
Natalie R. v. State, 2025 UT 5, 567 P.3d 550, and arguing that there
is another component—aside from simply asking whether the
case is among the class of cases the court is empowered to
entertain—to the subject-matter-jurisdiction inquiry: questions
about justiciability. The court in Natalie R. did indeed clarify that
“subject-matter jurisdiction comes in at least two stripes,” the
second of which “embodies concepts of justiciability.” Id. ¶ 22
(cleaned up). Generally speaking, justiciability is concerned with
situations in which there is no “justiciable controversy between
adverse parties.” Id. ¶ 23 (cleaned up). And it finds its voice in
“doctrines that impose limits on [courts’] jurisdiction, including
advisory opinions, feigned and collusive cases, standing,
ripeness, mootness, political questions, and administrative
questions.” Id. ¶ 22 (cleaned up).

¶49 But Talbert does not explain how any of these doctrines
operated here to deprive the trial court of jurisdiction over the
case the State filed. He does not contend that there is no justiciable
controversy between adverse parties; after all, regarding Count 2,
the State asserted that Talbert had committed forcible sexual
abuse. And Talbert makes no effort to assert that doctrines such
as mootness or ripeness are applicable here. Thus, none of the
justiciability doctrines are of any assistance to Talbert in this case.

¶50 For these reasons, the trial court had subject matter
jurisdiction over this case and was empowered to adjudicate the
State’s Count 2 allegation that Talbert had committed forcible
sexual abuse. We reject Talbert’s arguments to the contrary.

C. Waiver

¶51 We next address the State’s contention that, by failing to
ask the court for a continuance of the trial, Talbert waived his right

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State v. Talbert

to complain about the alleged variance. At oral argument before
this court, the State clarified its position on this point: it
acknowledged that, by not asking for a continuance, Talbert did
not waive his right to assert that the State had failed to present
evidence sufficient to prove the allegations it made in the
information, but it continued to maintain that Talbert had waived
any right to complain about notice-related issues, including any
argument that he was deprived of procedural due process. We
agree with the State’s clarified position.

¶52 The State’s argument is grounded in State v. Fulton, 742
P.2d 1208 (Utah 1987), a case in which our supreme court flatly
stated that “the failure of a defendant to seek a continuance” after
discovering a potential variance “negates any claim of surprise
and amounts to a waiver of any claim of variance.” Id. at 1215–16.
But that section of the opinion was dealing only with the
defendant’s claim that, as a result of the variance, “his
constitutional right to adequate notice of the time of the alleged
crime” was violated. Id. at 1213. Indeed, earlier in the opinion, the
court addressed, on the merits, the defendant’s claim that the
State had failed to present sufficient evidence of the charged
crime. See id. at 1212–13. When asked about this at oral argument
before this court, the State acknowledged that Fulton does not
support the contention that a defendant’s failure to seek a
continuance results in a waiver of the right to make a directed
verdict motion. Thus, as clarified and narrowed at oral argument,
the State’s position is that Talbert’s failure to seek a continuance
of the trial did not result in a waiver of his right to seek a directed
verdict but that it did result in a waiver of his right to complain
about notice and procedural-due-process issues.

¶53 Talbert resists this position by directing our attention to
State v. Ortega, 751 P.2d 1138 (Utah 1988), a case decided by our
supreme court the year after Fulton. In Ortega, the defendant was
charged with two counts of sexual abuse of a child, and at a
preliminary hearing, the complaining witness testified that the

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State v. Talbert

defendant had touched her inappropriately while she was under
the bed and, on a different day, on a chair. See id. at 1138–39. At
the conclusion of the hearing, the defendant was bound over for
the under-the-bed incident, but “the on-the-chair incident was
dismissed.” Id. at 1140. At the subsequent trial, however, the
complaining witness testified that the defendant had touched her
while she was on the chair; she did not testify that the defendant
had touched her while she was under the bed. See id. at 1139. At
the conclusion of the evidence, the defendant asked the court “to
dismiss the charges against him or, in the alternative, to remand
the case for another preliminary hearing because the evidence
adduced at trial varied from that which formed the basis of his
bind over to the district court.” Id. The court denied the motion,
and the jury convicted him of sexual abuse. See id. On appeal, the
State argued that the defendant had waived his right to complain
“because he did not make his motion to remand for preliminary
hearing until the close of the State’s evidence.” Id. at 1141. Our
supreme court rejected this argument, finding it significant that
“the trial testimony involved a criminal episode for which
defendant was not bound over to the district court.” Id.

¶54 We take Talbert’s point that there may be some tension
between Fulton and Ortega regarding these issues. 5 But in the end,
we view Fulton as controlling and Ortega as distinguishable on
multiple grounds. First, the Ortega court was not asked to weigh
in on whether there might be consequences that flow from a
defendant’s failure to seek a continuance after discovering a
potential variance. Indeed, in Ortega, the State attempted to chide
the defendant not for failing to file a motion to continue but,
instead, for filing an untimely motion to remand for a preliminary

5. Largely on this basis, we asked our supreme court to recall this
case so that it could provide guidance on how to interpret and
harmonize Fulton and Ortega. The supreme court declined to do
so, and thus we offer here our best assessment of how those cases
might align.

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State v. Talbert

hearing. See id. The Ortega court simply has little to say about
whether there are waiver-related consequences for a defendant
who fails to file a motion for a continuance in this context.

¶55 Second, as we pointed out in State v. Williamson, the
holding in Ortega was, at least in significant part, reliant on since-
repealed constitutional language regarding the role of
preliminary hearings. See 2024 UT App 141, ¶¶ 46–48, 558 P.3d
143 (noting Ortega’s reliance on article I, section 12 of the Utah
Constitution, a provision that was amended after Ortega to
“effectively overrule[] that portion of any case that expressly or
implicitly held that a request for a preliminary hearing is one way
in which a defendant may effectuate the right to notice”), cert.
denied, 568 P.3d 263 (Utah 2025). Indeed, we held in Williamson,
after analyzing Ortega, that a defendant who failed to request a
bill of particulars or otherwise “mak[e] a demand for the date,
place, and time of the alleged offense” had “waived his [or her]
constitutional right to adequate notice” regarding the particulars
of the pending charges. Id. ¶ 48.

¶56 For these reasons, we view Fulton as controlling law on this
point. Under the principles announced in that case, a defendant’s
failure “to seek a continuance negates any claim of surprise”
regarding any variance between the acts alleged in the
information and the acts proven at trial, including any complaints
related to notice or procedural due process. See Fulton, 742 P.2d at
1215–16; see also State v. Wilcox, 808 P.2d 1028, 1032 (Utah 1991)
(“[I]f a defendant fails to request a bill of particulars or make
demand for the date, place, and time [of the offense] . . . and a
response to either of these would have cured the claimed
deficiency, then he or she will be deemed to have waived the
constitutional right to adequate notice.”). But any such failure
does not result in a waiver of a defendant’s right to seek other
potential remedies to a variance problem, including asking for a
directed verdict or otherwise challenging the sufficiency of the
evidence presented by the State.

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State v. Talbert

¶57 In this case, Talbert did not seek a continuance as a remedy
for the variance problem. And Talbert does not argue on appeal
that Counsel rendered ineffective assistance by failing to do so.
Accordingly, under Fulton, Talbert has waived any right to
complain about notice-related issues, including any claims that
the variance impaired his right to procedural due process. We
therefore do not address the merits of those claims.

¶58 However, Talbert’s failure to seek a continuance did not
result in any waiver of other potential remedies Talbert might
have sought. In particular, and as relevant here, Talbert has not
waived his right to challenge the sufficiency of the evidence.

D. Sufficiency of the Evidence

¶59 We therefore turn to Talbert’s unwaived claim: that the
State failed to actually prove the specific act it alleged in the
information. In particular, he argues that the trial court erred
when it denied his motion for a directed verdict on Count 2
because the State presented “no evidence at all of the offense
charged in the [i]nformation,” namely, the allegation that Talbert
touched Taylor’s genitals on an occasion in which he “crawled
into [Taylor’s] bed and rubbed [their] vagina over [their] clothing
while [they were] telling him more about [their] story.”

¶60 The State’s initial response to Talbert’s argument on this
point is to assert that the argument is unpreserved for appellate
review. Thus, we first address the State’s preservation contention
and then turn to the merits of Talbert’s argument.

1. Preservation

¶61 The State acknowledges that Counsel did make a directed
verdict motion. But it argues that Counsel’s motion was brief,
generic, and half-hearted, and it posits that this “generic motion
. . . was not specific enough to preserve [Talbert’s] variance
claim.” In response, Talbert recognizes that Counsel “could have

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State v. Talbert

fleshed the arguments out more,” but he still claims that the
motion was specific enough because “the State understood that
the motion was for all counts” and because the State “opposed the
motion by citing evidence it believed was enough to get each
count to the jury.” In our view, the State has the better argument.

¶62 “Appellate courts generally will not consider an issue
unless it has been preserved for appeal.” State v. Skinner, 2020 UT
App 3, ¶ 23, 457 P.3d 421 (cleaned up). “To preserve an issue for
appeal, a party must present it to the trial court in such a way that
the trial court has an opportunity to rule on that issue.” Id.
(cleaned up). “To provide the court with this opportunity, the
issue must be specifically raised [by the party asserting error], in
a timely manner, and must be supported by evidence and relevant
legal authority.” State v. Stricklan, 2020 UT 65, ¶ 127, 477 P.3d 1251.
“A directed verdict motion that makes general assertions but fails
to assert the specific argument raised on appeal is insufficient to
preserve the more specific argument for appeal.” Skinner, 2020 UT
App 3, ¶ 23 (cleaned up). Indeed, in a related context, we have
held that “[a] generalized challenge to the sufficiency of the State’s
evidence . . . does not necessarily include an assertion that any
particular witness’s testimony is ‘inherently improbable.’” Id.
¶ 25. A specific argument like that “may be a component of an
insufficiency challenge, but not every insufficiency challenge
raises” such specific arguments. Id. (cleaned up).

¶63 In this case, Counsel’s motion for a directed verdict was
strikingly spare, stating in its entirety as follows:

Well, for purposes of establishing a record, we’d
move for a directed verdict at this point, and also
understanding the—I would say likelihood of it
being granted, I’ll leave it at that.

Counsel did not provide any supporting evidence or relevant
legal authority. And Counsel offered no indication that, as part of
his motion, he wanted to raise a variance-related objection and

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State v. Talbert

have the court analyze whether the evidence presented at trial
matched the specific acts alleged in the information’s probable
cause statement.

¶64 In responding to the motion, the State made a brief
argument that included reference to evidence presented at trial
that the State believed supported each count. As relevant to Count
2, the prosecutor argued that Taylor had “testified that [Talbert]
touched [their] breasts on . . . at least two occasions.” Counsel did
not respond to the State’s argument. And the State’s points were
supported by evidence in the record: Taylor had indeed testified
that Talbert had touched their breasts on at least two occasions.

¶65 An issue is preserved “[w]hen the specific ground for an
objection is clear from its context.” State v. Gonzalez, 2015 UT 10,
¶ 26, 345 P.3d 1168. Stated another way, the party raising the
objection must raise the relevant issue “to a level of consciousness
before the trial court such that the court has an opportunity to rule
on it.” State v. Centeno, 2023 UT 22, ¶ 54, 537 P.3d 232 (cleaned up).
That standard is not met here. Under these circumstances, and
especially in light of the fact that all parties had agreed to amend
the Information Instruction to indicate that Count 2 also covered
breast touching, the trial court had no reason to believe that
Counsel’s vague directed verdict motion was asking it to engage
with a variance-related objection. We therefore conclude that the
specific legal theory Talbert raises here on appeal—that a directed
verdict should have been granted due to a variance—was not
presented to the district court and therefore was not properly
preserved for our review.

¶66 We can, however, review even unpreserved issues on
appeal, but we must do so through the lens of one of our
established exceptions to the preservation rule. See State v. Beverly,
2018 UT 60, ¶ 22, 435 P.3d 160 (describing “three distinct
exceptions to preservation: plain error, ineffective assistance of
counsel, and exceptional circumstances” (cleaned up)). Here,

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State v. Talbert

Talbert asks us to review this unpreserved issue under two of
those exceptions: plain error and ineffective assistance of counsel.
We address each invoked exception in turn.

2. Plain Error

¶67 “To demonstrate plain error, 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.” State v. Carrera, 2022
UT App 100, ¶ 22, 517 P.3d 440. Evidence is insufficient when it
“is sufficiently inconclusive or inherently improbable such that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime for which he or she was
convicted.” Id. ¶ 29 (cleaned up). And where a “defendant is
claiming plain error in relation to his [or her] sufficiency of the
evidence challenge, the defendant must also show that the
insufficiency was so obvious and fundamental that the [trial]
court erred in submitting the case to the jury.” Id. (cleaned up).
Here, given the circumstances, Talbert cannot make that showing.

¶68 Recall that the parties, on the first day of trial, both agreed
that the Information Instruction could be amended “to add ‘or
breasts of a female’ in the text.” And when that instruction was
read to the jury less than two hours later, it included the
additional text. That is, at the outset of the trial, the jury was told
that, on Count 2, Talbert stood accused of “touch[ing] the pubic
area or any part of the genitals of another or the breast of a female.”
(Emphasis added.)

¶69 It was against this backdrop that Counsel made his brief
directed verdict motion. Given the way the case had unfolded, the
court simply wouldn’t have been thinking that there was any
dispute about whether the evidence matched the allegations
contained in the information. And Counsel gave no indication
that his motion intended to raise that legal theory. Under these
circumstances, any error on the trial court’s part was far from

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State v. Talbert

obvious, and Talbert’s plain error claim therefore fails on the
second element.

3. Ineffective Assistance of Counsel

¶70 Talbert also asserts that Counsel rendered constitutionally
ineffective assistance by not making a proper directed verdict
motion that would have informed the trial court that Counsel was
asking it to grapple with a potential variance issue. We have
already set out what the standards are for succeeding on such a
claim. See supra ¶¶ 28–29. Here, Talbert’s ineffective assistance
claim fails because Talbert has not demonstrated that Counsel
performed deficiently in this regard.

¶71 At first blush, Talbert’s argument appears to have some
force. After all, if the State has failed to prove what it said it was
going to prove in the information, a defendant might have a
strong argument for a directed verdict. It would certainly not have
been unreasonable for Counsel to have made a more specific
directed verdict motion that would have required the court to
reckon with the asserted variance issue.

¶72 But in our view, and on this particular record, it was also
not constitutionally unreasonable for Counsel to opt not to do so.
This is so for two related reasons, both having to do with how the
State would likely have reacted to Counsel making such a motion.

¶73 First, the State could have responded to the motion by
altering its prosecutorial election regarding Count 2. During
closing argument, the prosecutor asked the jury to convict Talbert
of forcible sexual abuse on Count 2 based on Taylor’s first
described instance of abuse, when Taylor was in Talbert’s office
and he “touch[ed] [Taylor’s] breasts.” This election was consistent
with the stipulated amendment to the jury instructions, in which
the parties agreed that Count 2 could include a possible breast
touch. However, as Talbert now points out on appeal, this election
was inconsistent with the acts described in the information and its

20240192-CA 26 2026 UT App 97
State v. Talbert

probable cause statement for Count 2, in which the State accused
Talbert of committing forcible sexual abuse by touching Taylor’s
“pubic area” or “genitals” on an occasion in which he “crawled
into [Taylor’s] bed and rubbed [their] vagina over [their] clothing
while [they were] telling him more about [their] story.”

¶74 But as the State points out, there was some evidence,
introduced through Taylor’s trial testimony, indicating that
Talbert touched Taylor’s pubic area or genitals on other occasions
that weren’t covered by the other charged counts. While Taylor’s
testimony was not entirely express on this point, the State asserts
that a factfinder could have drawn reasonable inferences from this
evidence sufficient to support a conclusion that Talbert had in fact
touched Taylor’s genitals. The State also maintains that a
competent attorney could reasonably believe that the evidence
supported this conclusion and, thus, reasonably opt not to raise
the variance issue, knowing that the State could simply alter its
prosecutorial election regarding Count 2 in response and focus
the jury’s attention on the other incidents of genital touching.

¶75 After a review of the record, we find the State’s position
persuasive. Taylor testified that, on one occasion, Talbert “put his
hand in [their] pants and rubbed his fingers against [their]
panties,” and that later on that same occasion Talbert “went in
[the panties]” and “put his fingers in down there.” While the
digital penetration Taylor described qualified as the basis for one
of the object rape counts, the State posits that Taylor’s associated
testimony—that, before the digital penetration, he touched them
“against [their] panties”—could qualify as a potential basis for a
finding of forcible sexual abuse. And for context, the State points
to another part of Taylor’s testimony in which Taylor stated that,
on a different occasion, Talbert “put his hand in [their] pants and
touched [them] again” but that this time he didn’t “rub[] on the
outside” first, “[h]e just went in.”

20240192-CA 27 2026 UT App 97
State v. Talbert

¶76 Talbert, in response, asserts that the cited testimony is not
clear enough as to whether Talbert actually touched Taylor’s
genitals; in particular, he posits that Taylor’s testimony that
Talbert touched the panties is not close enough. We disagree.
Especially in context, a factfinder could quite easily infer that the
touching of Taylor’s underwear described in the testimony
included an over-the-clothing touch of the genitals. At the very
least, a reasonable attorney could have thought so.

¶77 Talbert also maintains that these other incidents of genital
touching cannot fix the variance problem, because—as Taylor
described them—they did not occur on the bed while Taylor was
telling Talbert about their story (as the information’s probable
cause statement recites). Even so, the information itself (as
opposed to the probable cause statement) referenced simply a
touching of the “pubic area” or “genitals,” and it is well-settled
that time is generally not an element of a criminal offense. See State
v. Fulton, 742 P.2d 1208, 1213 (Utah 1987) (“[T]he time an offense
[i]s committed is generally not an element which the prosecution
must prove at trial.”). Counsel could therefore have reasonably
believed that there was no variance problem between the
evidence presented about this additional over-the-clothing
genital touch and the allegations set forth in the information.

¶78 Second, the State could alternatively have responded to a
more fulsome directed verdict motion by making a motion of its
own, pursuant to rule 4(d) of the Utah Rules of Criminal
Procedure, asking the court to actually amend the information to
include breast touching in Count 2. That rule allows a court to
“permit an information to be amended after the trial has
commenced but before verdict” if two conditions are met: (1) “no
additional or different offense is charged” in the amended
information and (2) “the substantial rights of the defendant are
not prejudiced.” Utah R. Crim. P. 4(d). On this record, a
competent defense attorney could have reasonably concluded
that such a motion by the State would have been granted.

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State v. Talbert

¶79 Regarding the first element, a reasonable attorney may
have been aware of State v. Peterson, 681 P.2d 1210 (Utah 1984), a
case in which our supreme court held that as long as the same
criminal statute was invoked and the same crime charged, a
midtrial amendment did not allege an additional or different
offense even where it invoked a different subsection of that same
statute. See id. at 1220–21 (noting that the amendment “did not
change the basic charge” and used the same statutory “Title and
Section” as the original information). In this situation, where the
charge would have remained the same—both the original
information and the putative amended one accused Talbert of
committing forcible sexual abuse, in violation of Utah Code
section 76-5-404—a reasonable attorney could have believed that,
pursuant to Peterson, the first element of rule 4(d) was satisfied.

¶80 As to the second element, Counsel would have known, at
the outset of the trial, that all parties had agreed that the jury
instructions—including the Information Instruction—could be
amended to indicate that Talbert could be convicted, on Count 2,
for either genital touching or breast touching. At the time that
instruction was amended, Counsel made no argument that
Talbert’s substantial rights were violated by the change. And we
note that Talbert’s primary defense—that Taylor had fabricated
the allegations in retaliation for Talbert’s lack of cooperation with
their efforts to transition to male—was equally applicable to both
genital touching and breast touching. See State v. Whitefeather, 2026
UT App 81, ¶ 27 (noting that the “primary defense was available
under either pathway,” a fact that cut against the defendant’s
argument that his substantial rights had been violated by an
amendment to the information). In short, Counsel could
reasonably have believed that he would be unable to convince the
court that Talbert’s substantial rights would be violated by an
amendment of the information.

¶81 For any of these reasons, then, Counsel could have
reasonably determined—on this record—that making a more

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State v. Talbert

detailed directed verdict motion would have been an exercise in
futility and would ultimately not have benefitted Talbert. See State
v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (“Because the
decision not to pursue a futile motion is almost always a sound
trial strategy, counsel’s failure to make a motion that would be
futile if raised does not constitute deficient performance.”
(cleaned up)). Accordingly, Talbert has not met his burden of
demonstrating that Counsel performed deficiently by not making
such a motion.

¶82 In sum, we find none of Talbert’s arguments regarding
Count 2 to be persuasive. We therefore affirm Talbert’s conviction
on Count 2.

III. Count 6 Directed Verdict

¶83 Finally, Talbert argues that “the trial court erred in denying
the motion for directed verdict on Count 6,” the count involving
the “penis-to-anus” incident in which Taylor testified that Talbert
touched their body, with one of his body parts that could have
been his penis, from their anus to their vagina. On that count,
Talbert was charged with forcible sodomy, a charge that requires
the State to prove that the incident involved the “genitals” of one
of the participants and the “mouth or anus” of the other. See Utah
Code § 76-5-403(1). Talbert asserts that the State presented
insufficient evidence that his penis was involved in the incident
in question. In response, the State first asserts that the record
contains sufficient evidence to support a reasonable inference
that, during the charged incident, Talbert used his penis—rather
than another body part—to touch Taylor’s body, including their
anus. Second, the State points out that the jury acquitted Talbert of
forcible sodomy and convicted him only of the lesser-included
offense of forcible sexual abuse, a crime that does not require
evidence that Talbert used his penis. We agree with the State on
both counts.

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State v. Talbert

¶84 First, there was sufficient evidence to support a factual
determination that Talbert used his penis to touch Taylor during
the “penis-to-anus” incident. At trial, Taylor testified that Talbert
“rubbed an object” that Taylor “assumed . . . was his thumb” from
Taylor’s “butt to . . . the bottom of [their] vagina.” Taylor testified
that they didn’t see the object. Taylor explained that it “felt like
skin” and might have been one of Talbert’s fingers, but they
“didn’t feel a fingernail at all” and, due to the object’s size, they
didn’t think it could have been any finger other than a thumb.
And after the incident, Taylor saw Talbert putting his pants back
on. Later in the trial, the jury heard clarifying evidence about this
incident from the nurse who examined Taylor at the CJC. During
that examination, Taylor described the time they felt the object
that “could have been his thumb,” and when the nurse asked if
the object “could . . . have been his penis,” Taylor answered
affirmatively.

¶85 “On a sufficiency of the evidence claim we give substantial
deference to the jury, and a sufficiency of the evidence inquiry
ends if there is some evidence, including reasonable inferences,
from which findings of all the requisite elements of the crime can
reasonably be made.” State v. Pierce, 2022 UT 22, ¶ 32, 511 P.3d
1164 (cleaned up). Applying this standard, and after examining
the evidence presented at trial, we conclude that sufficient
evidence existed upon which the jury could have concluded that
Talbert used his penis and, therefore, sufficient evidence existed
upon which the jury could have convicted Talbert of forcible
sodomy. Although Taylor testified at trial that they didn’t see the
object and assumed it was Talbert’s thumb, they didn’t feel a
fingernail and saw Talbert putting his pants back on after the
incident. The jury also heard the clarifying comments Taylor
made during the CJC examination, where Taylor told the
examining nurse that the object could have been Talbert’s penis.
On this record, it would have been fair for the jury to draw the
inference that Talbert used his penis to touch Taylor during the
incident in question.

20240192-CA 31 2026 UT App 97
State v. Talbert

¶86 But as noted, the jury didn’t actually convict Talbert of
forcible sodomy: it acquitted him of that charge and convicted
him only of the lesser-included offense of forcible sexual abuse.
And Talbert does not argue that the evidence was insufficient to
support a verdict on that lesser charge. He does, however, argue
that, at the time he made his directed verdict motion aimed at the
forcible sodomy charge, neither side had yet asked the court to
give a lesser-included-offense instruction on Count 6, and he
posits that, had the court granted the directed verdict at that point,
“there would have been no primary offense left on the board in
which to include a lesser one.”

¶87 This argument fails because—even leaving aside the
question of how the State would have responded, in the moment,
had it perceived that the court was inclined to grant the directed
verdict motion—as already noted, the State presented sufficient
evidence to support the forcible sodomy charge. For all these
reasons, we reject Talbert’s arguments regarding Count 6.

CONCLUSION

¶88 Talbert has not carried his burden of demonstrating that
Counsel rendered ineffective assistance when he chose not to
object to the admission of evidence of uncharged acts of abuse.
For various reasons, we reject his challenges to his conviction on
Count 2. And we likewise reject his argument that the court erred
in denying the motion for directed verdict on Count 6.
Accordingly, we affirm Talbert’s convictions.

20240192-CA 32 2026 UT App 97