In re J.C.

2016 UT App 10

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.C.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

J.C.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20140449-CA
Filed January 22, 2016

Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1048554

Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes, Cherise M. Bacalski, and Ryan
Tenney, Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which SENIOR
JUDGE RUSSELL W. BENCH concurred.1 JUDGE J. FREDERIC VOROS JR.
concurred, with opinion.

ROTH, Judge:

¶1 J.C. was adjudicated delinquent in juvenile court for
possession of drug paraphernalia, a class B misdemeanor if
committed by an adult, see Utah Code Ann. § 58-37a-5
(LexisNexis 2012), and possession or use of marijuana, also a

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
In re J.C.

class B misdemeanor if committed by an adult, see id. § 58-37-
8(2)(a)(i), (d) (LexisNexis Supp. 2015).2 On appeal, J.C. argues
that the juvenile court committed plain error by accepting
hearsay testimony, and he challenges the sufficiency of the
evidence supporting the adjudication. We affirm.

BACKGROUND3

¶2 J.C., his brother, and three other students from their high
school left the school’s campus during a school-wide assembly.
A school resource officer (the SRO) ‚had received information‛
that students might be leaving campus during an assembly to
smoke marijuana ‚in a grove of trees‛ located near the school.
The SRO drove to a place where he could observe the area from
his vehicle through binoculars. From this location, he ‚observed
five . . . students walking down the canal trail and enter[ing] the
grove of trees.‛ Upon seeing the students, he ‚was able to
identify‛ each student by name, including J.C. Although the
SRO radioed for an additional officer to respond to the location,
he became concerned that because the students were smoking
marijuana, any evidence ‚might be destroyed by the time *he+
waited for [the additional officer to arrive+.‛ The SRO exited his
vehicle, approached the five students—who were now standing
in a circle—and said ‚don’t move.‛ All the students ran. The
SRO gave chase, stating, ‚I know your names,‛ and yelling
‚stop, police‛ multiple times. At this point, an additional officer
had arrived and also gave chase. Four of the five students were

2. Because the statutory provisions in effect at the relevant times
do not differ materially from the statutory provisions now in
effect, we cite the current version of the Utah Code Annotated
for convenience.

3. On appeal from a delinquency adjudication, we recite the facts
in the light most favorable to the juvenile court’s decision. See In
re J.F.S., 803 P.2d 1254, 1254 (Utah Ct. App. 1990).

20140449-CA 2 2016 UT App 10
In re J.C.

apprehended, with J.C. escaping. The four students were taken
back to the high school where they were subsequently
interviewed by the school principal.4

¶3 The State filed a delinquency petition against J.C. alleging
failure to stop at the command of a law enforcement officer,
possession of drug paraphernalia, and possession or use of a
controlled substance. J.C. and his brother, L.C., were tried
together on all three allegations.5 Before testimony began, the
juvenile court asked each party to ‚identify their witnesses.‛ The
State identified six witnesses in the order they would be called:
the SRO, the other responding officer, the school principal, and
the other three students who had been in the circle at the grove
of trees—J.M., N.C., and J.R. The attorney for J.C. and his brother
responded that his clients ‚would be testifying perhaps if they
choose to‛ but he did not expect to call any other witnesses.

¶4 As anticipated, the State first called the SRO, then the
other officer, followed by the school principal, and finally the
three students. The SRO testified that he smelled ‚a strong odor
of burnt marijuana‛ as he started running toward where the
students had been standing in a circle; that he ‚found a small
baggie of marijuana‛ just a few feet from where J.M. and L.C.
were apprehended; and that he discovered ‚a fresh apple pipe‛
in the location where the students were standing that had ‚burnt
marks around the top of the apple where it’s consistent that
people carved out the apple to smoke marijuana.‛ The other
officer testified that although he could ‚*not+ recall smelling any
marijuana[,] . . . *he+ did see the apple.‛

¶5 The school principal then testified about his conversation
with the four students the police had apprehended, describing

4. The four students were J.R., J.M., L.C., and N.C.

5. J.C.’s brother has also filed a notice of appeal, case no.
20140466-CA.

20140449-CA 3 2016 UT App 10
In re J.C.

what J.R., N.C., J.M., and L.C. had said to him at the school
following the incident. His testimony regarding the statements
of J.R. and N.C. included information from both that implicated
J.C. The principal testified that J.R. ‚indicated that . . . all five
[students] were there and present and that all . . . four[,]
excluding him[,] [had] taken a hit *of marijuana+.‛6 And the
principal also recounted that N.C. ‚confirmed‛ J.R.’s statements
and ‚indicated also that . . . five [students] were present‛ in the
grove of trees. But none of the information the school principal
recounted from J.M.’s or L.C.’s statements included any specific
reference to J.C.

¶6 Following the principal’s testimony, the State called the
other three students to testify.7 The testimony of each student
about what had happened in the grove of trees diverged from
the principal’s description of his interviews with each of them
after they were apprehended. In particular, all of them testified
that J.C., though part of a group that left school for the grove of
trees, had left before the circle formed and before the apple pipe
was passed around.

¶7 J.M. testified that all five students had left the school’s
campus that day and upon arriving at the grove of trees, he left
the group to use the bathroom. He recounted that when he
returned, everyone was in a circle facing each other and the
apple pipe ‚was all just set up.‛ The apple pipe was passed to
him and he ‚was going to take the hit‛ but did not because the
SRO arrived. Finally, he testified that, contrary to what the

6. ‚‘Hits’ becomes something of a term of art under these
circumstances, describing the distinctive method of smoking
marijuana, characterized by deep inhalation followed by long
retention in the lungs.‛ Provo City Corp. v. Spotts, 861 P.2d 437,
440 (Utah Ct. App. 1993).

7. The three had already been adjudicated for their involvement
in this incident.

20140449-CA 4 2016 UT App 10
In re J.C.

principal reported he had said, J.C. was not present in the circle
because ‚J.C. left . . . when [they] got there,‛ ‚*j]ust before‛ J.M.
went to use the bathroom.

¶8 N.C. also testified that all five students left the school’s
campus during an assembly and ‚went over to a grove of trees‛
where, as he had told the school principal, he had ‚taken a
couple hits‛ of marijuana from the apple pipe. He stated,
however, that J.C. ‚was with [him] at the beginning, but then he
left to the bus stop before everything happened,‛ again contrary
to what the principal said N.C. had told him earlier.

¶9 J.R. testified that all five students left the school’s campus
during an assembly but they walked in two separate groups to
the grove of trees. By the time the two groups reunited near the
canal, J.C. ‚was gone.‛ When asked about the group’s activities
in the grove of trees, J.R. denied standing in a circle, denied
seeing an apple or an apple pipe, denied passing an apple pipe
to another person, and denied smelling any marijuana. This
testimony was contrary to the principal’s testimony about what
J.R. had told him in the earlier interview.

¶10 At the end of the State’s case, J.C.’s attorney moved for a
directed verdict, ‚specifically to J.C. because beyond being seen
there by the officer and the parties,‛ according to ‚the boys who
were there . . . , he left before any of the alleged incidents
occurred.‛ The juvenile court dismissed the allegation of failure
to stop at the command of a police officer but denied the motion
as to the other two allegations. J.C.’s attorney called no
witnesses, but he renewed his motion for a directed verdict
during his closing argument. The juvenile court, however, found
the evidence against J.C. to be sufficient to support a
delinquency adjudication for possession of drug paraphernalia
and possession or use of marijuana. In its ruling from the bench,
the court indicated that it found the SRO, the other officer, and
the school principal to be ‚credible witness*es+,‛ but not ‚*t+he
young men that . . . testified.‛ Rather, the juvenile court
‚believe[d] that . . . they either had a lapse in memory or . . .

20140449-CA 5 2016 UT App 10
In re J.C.

there was some loyalty to [J.C.].‛ The court stated that although
‚*t+hey may have had their . . . [own] charges taken care of after
the fact,‛ it ‚sense[d] that there was some fudging a little bit on
what they were saying.‛

¶11 J.C. appeals the juvenile court’s delinquency adjudication
as to both allegations.

ISSUES AND STANDARDS OF REVIEW

¶12 J.C. argues that the juvenile court erred by relying on the
principal’s testimony because it was inadmissible hearsay.
Because J.C. did not preserve this issue below, he seeks review
under the plain error doctrine. ‚In general, to establish the
existence of plain error and to obtain appellate relief from an
alleged error that was not properly objected to, the appellant
must show the following: (i) [a]n 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, or phrased
differently, our confidence in the verdict is undermined. If any
one of these requirements is not met, plain error is not
established.‛ State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993)
(citations omitted).

¶13 J.C. also argues that the juvenile court erred by
concluding that there was sufficient evidence to find J.C.
delinquent. When a challenge to the sufficiency of the evidence
is raised, ‚*w+e review the juvenile court’s factual findings based
upon the clearly erroneous standard.‛ In re S.O., 2005 UT App
393, ¶ 12, 122 P.3d 686 (citation and internal quotation marks
omitted). And under the clearly erroneous standard, we will set
aside the juvenile court’s decision only when that decision is
‚against the clear weight of the evidence, or if *we+ otherwise
reach[] a definite and firm conviction that a mistake has been
made.‛ In re S.L., 1999 UT App 390, ¶ 20, 995 P.2d 17 (citation
and internal quotation marks omitted). ‚[W]e defer to the

20140449-CA 6 2016 UT App 10
In re J.C.

juvenile court because of its advantaged position with respect to
the parties and the witnesses in assessing credibility and
personalities.‛ Id. (citation and internal quotation marks
omitted). And we afford ‚wide latitude‛ to the juvenile court
‚based upon not only the court’s opportunity to judge credibility
firsthand, but also based on the juvenile court judges’ special
training, experience[,] and interest in this field
and . . . devot[ed] . . . attention to such matters.‛ In re E.R., 2001
UT App 66, ¶ 11, 21 P.3d 680 (second alteration and omissions in
original) (citation and internal quotation marks omitted).

ANALYSIS

¶14 We conclude J.C. has not demonstrated plain error in the
juvenile court’s reliance on the school principal’s testimony.
‚Plain-error review requires looking at a well-settled, three-part
test‛ that includes error, obviousness, and harmfulness. See State
v. Gailey, 2015 UT App 249, ¶ 8, 360 P.3d 805. For purposes of
this appeal, we will assume that the juvenile court erred by
admitting the school principal’s testimony. But we also conclude
that J.C. has failed to demonstrate that this error was obvious.
Because J.C. has failed to demonstrate that the error was
obvious, we need not consider the other requirements of plain
error review. See Dunn, 850 P.2d at 1209. And because the
juvenile court could properly consider the school principal’s
testimony, the evidence was sufficient to support the court’s
adjudications of delinquency.

I. The School Principal’s Testimony Was Not Plainly
Inadmissible.

¶15 J.C. argues that ‚*t+he juvenile court committed plain
error by admitting and relying upon hearsay evidence.‛ J.C.
asserts that ‚the juvenile court’s acceptance of inadmissible
hearsay, in the form of testimony from [the school principal]
about what the other boys said when he interviewed them, was
an obvious error and that without that evidence there is a

20140449-CA 7 2016 UT App 10
In re J.C.

substantial likelihood that the court would not have found J.C.
guilty.‛

A. Error

¶16 J.C. argues that the principal’s testimony about what the
students told him was hearsay and not covered by any
exception. According to J.C., while rule 801 of the Utah Rules of
Evidence provides that an out-of-court statement is not hearsay
if it ‚is inconsistent with the declarant’s testimony‛ and ‚*t+he
declarant testifies and is subject to cross-examination about [the]
prior statement,‛ Utah R. Evid. 801(d)(1), when the principal
testified at trial about what the other students said to him on the
day of the incident, none of the students had yet testified and,
therefore, the principal’s ‚statement*s+ [were] not the
statement[s] of a declarant witness inconsistent with [their]
testimony.‛ Further, J.C. asserts that because the principal’s
testimony was extrinsic evidence of the students’ prior
statements ostensibly introduced as impeachment, rule 613(b) of
the Utah Rules of Evidence applied, which provides that
‚*e+xtrinsic evidence of a witness’s prior inconsistent statement
is admissible only if the witness is given an opportunity to
explain or deny the statement and an adverse party is given an
opportunity to examine the witness about it.‚ Id. R. 613(b). J.C.
contends that ‚this *hearsay+ problem *was+ not solved by the
fact that . . . the declarants were later called as witnesses[,]
because when they were called [to testify,] the State did not
question them about their prior statements or elicit inconsistent
statements and then confront them with *the school principal’s+
testimony,‛ as required by rule 613. In sum, J.C.’s reasoning is
that the State called a non-declarant witness and introduced the
hearsay evidence prior to the declarants’ inconsistent testimony
and that when later questioning the declarants, the State did not
confront them with their prior inconsistent statements and then
give them an opportunity to explain any inconsistency. J.C.
contends that as a consequence, the State failed to establish the
required foundation for admissibility of the principal’s
testimony under rules 801(d)(1) and 613(b) and that the prior

20140449-CA 8 2016 UT App 10
In re J.C.

statements of the three students should not have been admitted
or considered.

¶17 Under the Utah Rules of Evidence, hearsay is not
admissible unless the evidence meets one of several specific
exceptions. See id. R. 802. Hearsay is defined as ‚a statement that:
(1) the declarant does not make while testifying at the current
trial or hearing; and (2) a party offers in evidence to prove the
truth of the matter asserted in the statement.‛ Id. R. 801(c). An
‚oral assertion‛ qualifies as a ‚statement,‛ id. R. 801(a), and the
role of ‚declarant‛ is limited to ‚the person who made the
statement,‛ id. R. 801(b). However, a ‚declarant-witness’s prior
statement‛ that ‚is inconsistent with the declarant’s testimony‛
is not considered hearsay and may be admitted with proper
foundation. Id. R. 801(d)(1)(A).

¶18 ‚To qualify for nonhearsay treatment under [the] rule[s],
the out-of-court statement must be (1) Inconsistent with the
witness’s in-court testimony; or (2) The witness denies
previously making the statement; or (3) The witness
acknowledges that he or she has forgotten making the
statement.‛ R. Collin Mangrum & Dee Benson, Mangrum
& Benson on Utah Evidence 711 (2014); see also Utah R. Evid.
801(d)(1). In addition, where proof of the content of an
inconsistent prior statement is offered through extrinsic
evidence, rule 613 applies: ‚Extrinsic evidence of a witness’s
prior inconsistent statement is admissible only if the witness is
given an opportunity to explain or deny the statement and an
adverse party is given an opportunity to examine the witness
about it . . . .‛ Utah R. Evid. 613(b).

¶19 Here, when the principal testified at trial about what the
other three students said to him, none of those students had yet
testified, and therefore, as J.C. contends, at that point the
principal’s ‚statement*s+ w*ere+ not the statement*s+ of a
declarant witness inconsistent with *their+ testimony.‛ In
addition, when the other student-witnesses were examined at
the end of the State’s case, they were not questioned about their

20140449-CA 9 2016 UT App 10
In re J.C.

prior statements to the principal at all, ostensibly in violation of
rule 613’s requirement that the student witnesses be afforded
‚an opportunity to explain or deny the [prior inconsistent]
statement.‛ See id. But see Edward Kimball & Ronald Boyce, Utah
Evidence Law 8-287 (2d ed. 2004) (‚Therefore, in Utah, any prior
witness statement that is inconsistent with the witness’s
testimony . . . is admissible as nonhearsay evidence if the witness
testifies at trial and the evidence is offered while the witness is
still available to explain the inconsistency.‛). On the face of the
record, therefore, there is a plausible argument that the State
failed to lay a proper foundation for the principal’s testimony
about the three students’ prior statements; and for purposes of
this appeal, we assume that it was error for the juvenile court to
admit and consider that testimony.8 But as we explain below,

8. In support of its argument that J.C. cannot demonstrate any
error by the juvenile court, the State focuses on rule 801’s
requirement to afford an ‚opportunity to test the declarant‛
through cross-examination, arguing that it is this ‚opportunity‛
that is ‚at the heart‛ of rule 801. And when this rule is coupled
with rule 613, the State reasons, ‚It is thus the opportunity to
explain and examine—and not an actual explanation and
examination—that the rule requires.‛ (Emphasis added.)
Further, the State stresses that rule 801 ‚does not mandate any
particular order for eliciting the prior inconsistent statement‛
‚nor does it mandate . . . that the party eliciting the statement
subject[] the witness to cross-examination about [the] prior
statement.‛ (Alterations in original.) The State maintains that
‚on its face‛ rule 801 ‚requires only that (1) the declarant testify
and be ‘subject to cross-examination about [the] prior statement,’
and (2) the prior statement be ‘inconsistent with the declarant’s
testimony.’‛ (Quoting Utah R. Evid. 801.) (Alteration in original.)
The State asserts that it ‚met all the requirements‛ of rule 801—
the students testified, they were subject to cross-examination,
and their prior statements were inconsistent with their
testimony—and shifts the responsibility to J.C. for any failure to
afford them an opportunity to explain their prior statements,
(continued<)

20140449-CA 10 2016 UT App 10
In re J.C.

any error would not have been obvious to the trial court under
the circumstances.

B. Obviousness

¶20 To warrant relief for plain error J.C. must establish not
only that there was an error, but that ‚the error should have
been obvious to the trial court.‛ State v. Dunn, 850 P.2d 1201,
1208 (Utah 1993); see also State v. Parker, 2000 UT 51, ¶ 7, 4 P.3d
778. An error is obvious when ‚the law governing the error was
clear at the time the alleged error was made.‛ State v. Dean, 2004
UT 63, ¶ 16, 95 P.3d 276; see also State v. Alzaga, 2015 UT App 133,
¶ 23, 352 P.3d 107. J.C. argues that the error should have been
obvious to the juvenile court because ‚the plain language of the
rules of evidence show that *the school principal’s+ testimony
was filled with statements not made by the declarant while
testifying at trial [and were] offered for their truth and not
admitted as inconsistent statements subject to cross-
examination.‛ But even if the State failed to properly lay
foundation to admit the school principal’s hearsay testimony
about the three students’ statements, it does not automatically
follow that the error should have been obvious to the juvenile
court. This is because ‚on a pragmatic level, . . . courts are not
required to constantly survey or second-guess the nonobjecting
party’s best interests or trial strategy[,]‛ but are only required to
act ‚where errors are particularly obvious or egregious and
would serve no conceivable strategic purpose.‛ State v. Labrum,
925 P.2d 937, 939 (Utah 1996). Therefore, ‚*p+lain error does not
exist when ‘a conceivable strategic purpose’ exists to support the
use of the evidence.‛ State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697
(quoting State v. Hall, 946 P.2d 712, 716 (Utah Ct. App. 1997));
Fernandez v. Cook, 870 P.2d 870, 876 (Utah 1993) (‚It is well

(<continued)
contending that it was ‚J.C. [who] chose not to cross-examine the
boys about their prior statements, [although] he was given a full
opportunity to do so.‛ We do not resolve the issue here.

20140449-CA 11 2016 UT App 10
In re J.C.

established that trial tactics and strategies are within counsel’s
prerogative and are generally left to counsel’s professional
judgment.‛); see also State v. Larrabee, 2013 UT 70, ¶ 78 n.14, 321
P.3d 1136 (Lee, J., dissenting) (noting that ‚sua sponte
intervention can interfere with the trial strategy of the parties‛).

¶21 We conclude that any error in laying appropriate
foundation for the school principal’s hearsay testimony would
not have met the standard for obviousness under the
circumstances of this case. See State v. Gutierrez, 2015 UT App 25,
¶ 12, 344 P.3d 163 (‚Because the error . . . was not obvious, the
[juvenile] court did not plainly err . . . .‛). In particular, a claimed
error will not be considered obvious to the juvenile court if the
court could reasonably have determined that trial counsel’s
actions were ‚the result of a consciously chosen strategy.‛ See
State v. Bullock, 791 P.2d 155, 158–59 (Utah 1989); see also State v.
Beck, 2007 UT 60, ¶¶ 16, 18, 165 P.3d 1225 (explaining that the
trial court’s role is ‚to protect the accused’s right to a fair trial,‛
not to ‚usurp the function of counsel‛). Evaluating the conduct
from the perspective of J.C.’s counsel, the juvenile court could
reasonably have determined that a decision not to object to the
school principal’s hearsay testimony was plausibly the result of a
sound trial strategy. See State v. Crosby, 927 P.2d 638, 644 (Utah
1996) (‚*W+e give trial counsel wide latitude in making tactical
decisions and will not question such decisions unless there is no
reasonable basis supporting them.‛); see also State v. Liti, 2015 UT
App 186, ¶ 18, 355 P.3d 1078 (citing Crosby, 927 P.2d at 644, with
approval).

¶22 In particular, counsel could have decided that the State
was in a position to cure a hearsay objection to the school
principal’s testimony if that objection were based on an
argument that there was no prior inconsistent statement on the
record because the students had not yet testified. See Utah R.
Evid. 801(d)(1)(A); see also State v. Wood, 648 P.2d 71, 91 (Utah
1982) (‚Decisions as to . . . what objections to make . . . are
generally left to the professional judgment of counsel.‛). Here,
J.C.’s counsel knew the order of the State’s witnesses and could

20140449-CA 12 2016 UT App 10
In re J.C.

have reasoned that the State would have responded to an
objection by changing the witness order to call the students
before the school principal. Because it would have encouraged
the State to cure any deficiency, counsel could have decided that
the objection would likely be pointless, and ‚*t+he failure to raise
*a+ futile objection*+ does not constitute‛ an unsound trial
strategy. See State v. Christensen, 2014 UT App 166, ¶ 10, 331 P.3d
1128 (citation and internal quotation marks omitted). In this
regard, the juvenile court could have presumed that J.C.’s
counsel had already spoken with the other student witnesses
and knew that their testimonies would be inconsistent with the
principal’s account of their prior statements. See id. ¶ 17 (noting
that appellate courts presume ‚that trial counsel ‘observed the
relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the
judge’‛ (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011))).

¶23 And J.C.’s trial counsel may also have decided that
providing the other students an opportunity to explain their
prior statements might emphasize the inconsistency in a way
that further undermined the credibility of their trial testimony.
Cf. West Valley City v. Rislow, 736 P.2d 637, 638 (Utah Ct. App.
1987) (‚Defense counsel may have believed that any objection at
this point in the proceedings would only have emphasized the
negative aspects of the case to the jury. This could have been a
legitimate exercise of judgment.‛). And counsel could have
believed that in the process of curing such an objection, the
principal’s own testimony might be reinforced and emphasized
to his client’s disadvantage.

¶24 Further, J.C.’s trial counsel’s silence may have been
informed by concerns akin to the theories of recency and
primacy, and in order to deemphasize the principal’s testimony,
he may have thought it best that it remain in the middle of the
State’s case rather than at the end where it may have been better
remembered and had more impact. See, e.g., Stewart I. Edelstein,
14 Tips for a Vigorous Defense of a Commercial Case, 6 Prac.
Litigator 7, 14 (2008) (‚Under the theory of recency, what is

20140449-CA 13 2016 UT App 10
In re J.C.

heard last has more persuasive staying power than something in
the middle of a trial.‛); John R. Overchuck & Laura Patrice
Denault, in Products Liability in Florida § 8.10 (Fla. Bar, 3d ed.
1995) (‚The principles of ‘primacy’ and ‘recency’ have long been
established and accepted as being critically important in the
decision-making process. The theory of primacy (what we first
learn about any subject we tend to believe most deeply) is
tempered by the theory of recency (we remember best what we
last learned).‛).

¶25 In sum, there were legitimate strategic reasons why an
attorney in the position of J.C.’s counsel would decline to object
under the circumstances. Although a trial court ‚may not simply
turn a blind eye‛ where the errors are ‚particularly obvious or
egregious and would serve no conceivable strategic purpose,‛ a
court is not ‚required to constantly survey or second-guess the
nonobjecting party’s best interests or trial strategy.‛ State v.
Labrum, 925 P.2d 937, 939 (Utah 1996). Thus, because there were
conceivable strategic purposes for not objecting to the school
principal’s testimony, any error would not have been obvious to
the juvenile court. See State v. Dunn, 850 P.2d 1201, 1208 (Utah
1993). Therefore J.C. has failed to establish the second
requirement of our plain error standard. See State v. Bullock, 791
P.2d 155, 158 (Utah 1989) (‚*I+f a party through counsel has
made a conscious decision to refrain from objecting . . ., we will
then decline to save that party from the error.‛).

C. Harmfulness

¶26 The final requirement an appellant must demonstrate to
establish plain error is that the error was harmful. See Dunn, 850
P.2d at 1208. An error is harmful if ‚absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.‛ Id. at 1208–09. Because J.C. has failed to
demonstrate the second requirement—that the error should have
been obvious to the juvenile court—we do not need to address

20140449-CA 14 2016 UT App 10
In re J.C.

this third requirement. Id. at 1209 (‚If any one of [the plain error]
requirements is not met, plain error is not established.‛).

¶27 Accordingly, we conclude that even if the State failed to
lay a proper foundation for admission of the principal’s
impeachment testimony regarding the statements made to him
by the other students, any error would not have been obvious to
the juvenile court because there were conceivable strategic
purposes for J.C.’s counsel to have refrained from objecting.
Because J.C. has failed to demonstrate that any error was
obvious, his plain error argument fails.

II. The Evidence was Sufficient.

¶28 J.C. contends that the evidence presented was insufficient
to sustain the juvenile court’s decision adjudicating him
delinquent of possession of drug paraphernalia and possession
or use of marijuana. We are not convinced, however, that the
decision was ‚against the clear weight of the evidence‛ or ‚that a
mistake has been made.‛ In re S.L., 1999 UT App 390, ¶ 20, 995
P.2d 17 (citation and internal quotation marks omitted). In this
case, the juvenile court used its ‚advantaged position‛ to assess
the witnesses’ ‚credibility and personalities.‛ Id. (citation and
internal quotation marks omitted). The court heard testimony
from the SRO, the other responding officer, the school principal,
and the three other students. The court found the SRO, the other
responding officer, and the school principal to be ‚credible‛
witnesses. And the principal’s testimony about the statements of
the interviewed students, which the juvenile court could
consider for their truth under Utah law,9 placed J.C. in the circle

9. The advisory committee notes to rule 801(d)(1) explain that the
Utah rule ‚deviates from the federal rule in that it allows use of
prior statements as substantive evidence‛ as well as for
impeachment. Utah R. Evid. 801(d)(1). Compare R. Collin
Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence
752 (2014) (‚An out-of-court statement inconsistent with the in-
(continued<)

20140449-CA 15 2016 UT App 10
In re J.C.

and taking a ‚hit‛ from the apple pipe. The court clearly found
the exculpatory testimony of the three students to lack probative
weight, noting that their testimony involved what the court
seemed to consider questionable ‚lapse*s+ in memory‛ or was
motivated by some form of ‚loyalty‛ to J.C., leading the court to
a ‚sense that there was some fudging . . . on what [the students]
were saying.‛10

¶29 Therefore, having concluded that the juvenile court
looked at ‚the totality of the circumstances,‛ ‚weigh*ed+ the
evidence,‛ and made ‚decisions on [the] credibility of the
witnesses,‛ we are not persuaded that its decision was ‚against

(<continued)
court testimony of the same witness is both conceptually
nonhearsay if offered only for impeachment purposes and
admissible as substantive evidence under Utah Rule
801(d)(1)(A).‛), and Edward Kimball & Ronald Boyce, Utah
Evidence Law 8-285 to -286 (2d ed. 2004) (‚The 1971 Utah Rules of
Evidence made a witness’s prior inconsistent statements
admissible both for impeachment and as substantive evidence.‛),
with Kenneth S. Broun et al., McCormick on Evidence, § 34, at 207
(7th ed. 2013) (‚Even though the statements are inadmissible
hearsay as evidence of the facts asserted, they are admissible for
the limited purpose of impeaching the witness.‛), and David P.
Leonard, The New Wigmore: A Treatise on Evidence, § 3.8.2, at 411
(2002) (‚When the evidence is offered to prove the truth of the
prior statement, it will be excluded by the hearsay rule unless
the statement is a party admission or otherwise satisfies an
exception to the rule.‛).

10. It was apparently considerations such as these that led
appellate counsel for J.C. to concede at oral argument that if the
school principal’s testimony was admissible, then the evidence
was sufficient to support J.C.’s adjudication.

20140449-CA 16 2016 UT App 10
In re J.C.

the clear weight of the evidence‛ or ‚that a mistake has been
made.‛ See id. (citation and internal quotation marks omitted).

CONCLUSION

¶30 We conclude that the juvenile court did not plainly err in
admitting the school principal’s testimony. Consequently, the
evidence presented was sufficient to support J.C.’s adjudication
for delinquency. We therefore reject both of J.C.’s claims.

¶31 Accordingly, we affirm.

VOROS, Judge (concurring):

¶32 I concur in the majority opinion. However, I think it
worth mentioning that any error, in addition to not being
obvious, was also not harmful. An error is harmful if, ‚absent
the error, there is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently, our confidence
in the verdict is undermined.‛ State v. Dunn, 850 P.2d 1201,
1208–09 (Utah 1993). J.C. has not shown a reasonable likelihood
of a more favorable outcome—nor can I imagine one—if the
witnesses had testified in proper sequence and the other boys
had been asked whether their statements to the principal
accorded with his trial testimony or their own.

20140449-CA 17 2016 UT App 10