Martin v. State

2024 UT App 89

THE UTAH COURT OF APPEALS

JOSHUA DEE MARTIN,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20210311-CA
Filed June 21, 2024

Fourth District Court, Provo Department
The Honorable M. James Brady
No. 180401438

Joshua Dee Martin, Appellant Pro Se
Sean D. Reyes and Mark C. Field,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

LUTHY, Judge:

¶1 Joshua Dee Martin was convicted of sexually abusing his
sisters-in-law. His direct appeal to our supreme court was
unsuccessful. Following that appeal, Martin filed a petition, and
then an amended petition (the Petition), for post-conviction relief
in the district court, alleging claims of ineffective assistance of
counsel. The district court granted summary judgment against
Martin on his ineffective assistance claims and denied the
Petition. Martin now appeals the denial of the Petition. Because
we conclude as to each of Martin’s ineffective assistance claims
that his trial counsel (Trial Counsel) and/or his appellate counsel
(Appellate Counsel) performed sufficiently, we affirm the district
court’s decision.
Martin v. State

BACKGROUND 1 0F

¶2 Martin was charged with four counts of aggravated sexual
abuse of a child for sexually abusing his young sisters-in-law, A.L.
and N.L. State v. Martin, 2017 UT 63, ¶ 6, 423 P.3d 1254. The
charges stemmed from abuse that the girls first reported in
October 2012. The girls’ mother (Mother) testified at an
evidentiary hearing that she first learned of the abuse when N.L.
told her about it during a televised religious conference for the
family’s church. In Mother’s words, she and N.L. were alone and
“in the middle of [watching] October General Conference on a
Sunday afternoon session.” 2 Mother said that she and N.L. were
1F

the only ones in the room when N.L. “looked up” and said, “Jesus
told me I could tell you the secrets in my heart.” N.L. then
revealed that Martin, who was then twenty-seven years old, “had
been touching her privates.” N.L. was eight years old at the time
of this disclosure.

1. Because Martin has already undergone a trial, a direct appeal,
and post-conviction relief proceedings before the district court,
the record before us is extensive. We limit this Background section
to a review of basic facts relevant to this opinion, and we provide
additional facts relevant to this opinion as appropriate in the
Analysis section that follows.

2. “Semi-annually [The Church of Jesus Christ of Latter-day
Saints, headquartered in Salt Lake City,] holds a religious meeting
called a general conference . . . . These conferences are strictly
religious in character and are for the purpose of giving doctrinal
instruction to regional leaders and members of the church.”
Corporation of the President of the Church of Jesus Christ of Latter-day
Saints v. Wallace, 573 P.2d 1285, 1286 (Utah 1978). The conferences,
which each currently consist of five two-hour public sessions, are
held during the first weekend of April and the first weekend of
October. They “are communicated by radio and television [and
the internet] throughout the world.” Id.

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Martin v. State

¶3 On October 7, 2012, the day of N.L.’s disclosure, Mother
gave a written report to the police. In that report, she indicated
that on the day of the report, A.L. had also revealed allegations of
abuse against Martin, including that every time A.L. saw Martin,
he would “hug[] her and put[] [his] hands down [her] pants if no
one else [was] there.” A.L. was ten years old at the time of this
disclosure. The girls’ father (Father) also gave a written report, on
or before October 23. In it, he said that Martin had admitted
during a phone call that he had inappropriately touched at least
one of the girls.

¶4 Both girls were interviewed at the Children’s Justice Center
(CJC). The State designated as an expert witness the CJC forensic
interviewer who had interviewed A.L. but not N.L. (Expert).
Before trial, Trial Counsel filed a motion to exclude Expert’s
testimony under rules 403, 608, and 702 of the Utah Rules of
Evidence. At a hearing on the motion, Trial Counsel explained
her 3 argument under each of these rules. “[T]he district court
2F

ruled that [Expert] was qualified as an expert on why child
victims of sexual abuse often make incomplete initial disclosures
and disclose additional details and facts pertaining to their sexual
abuse over time.” Id. ¶ 10. “The court also allowed [Expert] to
testify regarding common behaviors . . . of children who have
been abused.” Id. (cleaned up).

¶5 During a jury trial held in July 2015, Expert testified on
those subjects. She also, however, impermissibly testified that
“from [her] interviews with [A.L. and N.L.], the information that
they seemed to say to [her] seemed credible.” She then clarified
that she “only interviewed one child.” Trial Counsel indicated to
the court that the bolstering statement was impermissible and
asked that it be stricken and a curative instruction be given to the
jury. The trial court granted the motion and struck the statement,

3. Two attorneys—a woman and a man—represented Martin at
trial. In his briefing, however, Martin uses female pronouns and
appears to reference only his female counsel. Accordingly, we
likewise employ female pronouns in reference to Trial Counsel.

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Martin v. State

and it also instructed the jury, “In one answer of [Expert’s]
testimony she commented directly on her opinion of the
credibility of a particular witness in this case. This was improper
and the answer has been stricken from the record. [Expert] is not
qualified to give any opinion regarding the credibility of any
particular witness in this case.”

¶6 A.L. and N.L. also testified at trial. N.L. testified that on
October 7, 2012, she and A.L. were playing bingo in their living
room while watching the General Conference of The Church of
Jesus Christ of Latter-day Saints when “Elder Packer[ 4] said that
3F

we shouldn’t keep secrets, because our body’s like a temple, and
if you’re keeping bad secrets then you’re hurting your temple.”
So, she explained, “[she] just decided to tell.” According to N.L.,
Mother “was fixing dinner” in the kitchen at the time and N.L.
went there to tell Mother about the abuse. For her part, A.L.
testified that she did not recount any specific incidents of abuse to
anyone on October 7 and that “the first person” she described her
allegations to was one of the CJC interviewers.

¶7 Mother also testified and agreed that N.L.’s disclosure
happened during the afternoon session of the conference, but she
said that “Elder Scott” 5 was speaking at the time. She also testified
4F

on cross-examination, when asked about her written report to
police, that she did not remember A.L. saying that Martin put his
hands down her pants every time he saw her when no one else
was around.

¶8 Father testified as well. Under cross-examination, he
acknowledged that, notwithstanding what he had said in his

4. A prominent leader in The Church of Jesus Christ of Latter-day
Saints, who is also referred to as President Packer.

5. Another prominent leader in The Church of Jesus Christ of
Latter-day Saints.

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Martin v. State

report to police, Martin had not affirmatively admitted to
molesting the girls.

¶9 During closing argument, Trial Counsel discussed topics
such as witness “coaching,” “inconsistencies in [the girls’]
accounts,” “the impossibility of [the] allegations,” “fabrication,”
and credibility. Regarding inconsistencies, Trial Counsel said:

[Y]ou’ve heard a lot of testimony regarding the
inconsistencies in [A.L.’s and N.L.’s] accounts of
what they’re claiming happened with my client
[Martin].

There are a lot of minor inconsistencies, and
I’m not going to go through all of those with you.
You guys have been taking notes. You can rely on
your own memories and your own notes regarding
those minor inconsistencies, but there are a number
of major inconsistencies, or what we believe to be
major inconsistencies.

She then described how A.L. had repeatedly changed her
descriptions of how many incidents of abuse Martin had
perpetuated against her, the order of those incidents, and the
details associated with those incidents. She highlighted that many
details in A.L.’s narrative had changed over time as A.L. reported
them to different sources and then testified at trial. Trial Counsel
then discussed inconsistencies in N.L.’s narrative as well. After
this, she said, “So these are not minor . . . inconsistencies. These
are major points, major changes in this testimony. We would ask
that you consider that as you review the evidence in the case.
Now, and again, it’s not mere incomplete or partial disclosures.
These are major changes.” She then discussed other topics—like
“the impossibility of [the] allegations”—that further supported
the defense’s theory of “suggestibility, fabrication, [and]
coaching.”

20210311-CA 5 2024 UT App 89
Martin v. State

¶10 The jury convicted Martin on all four charges. See State v.
Martin, 2017 UT 63, ¶ 14, 423 P.3d 1254. Martin appealed, and our
supreme court affirmed his convictions. See id. ¶ 5. The supreme
court determined that Trial Counsel’s “defense strategy at trial
was to undermine the credibility of A.L. and N.L.,” including “by
highlighting inconsistencies in their disclosures and testimony
about his sexual abuse.” Id. ¶ 8. And the supreme court discussed
various inconsistencies that Trial Counsel had highlighted. See id.
¶ 9.

¶11 The supreme court also addressed Martin’s argument that
the district court had “made a variety of errors in admitting expert
testimony by [Expert].” Id. ¶ 2. As to Martin’s argument that “the
district court erred in allowing [Expert] to testify extensively
about child memory and recall,” id. ¶ 24 (cleaned up), the
supreme court determined that this argument was unpreserved,
see id. ¶¶ 25–26. But the supreme court also stated that “what Mr.
Martin characterizes as [Expert’s] extensive testimony about child
memory formation and recall amounted to brief remarks” that did
not “call[] for expertise in the mechanisms of memory retrieval
and recall” but “simply described trends and tendencies that were
readily observable by a forensic interviewer with [Expert’s] level
of training and experience.” Id. ¶ 27 (cleaned up). The supreme
court concluded, “When her testimony is viewed in context, we
do not believe that [Expert] sought to testify to psychological or
neuroscientific matters beyond the scope of her expertise.” Id.

¶12 The supreme court then tackled Martin’s argument that
“the district court should not have allowed [Expert] to testify
regarding reasons why children will give differing disclosures of
alleged abuse because this testimony was unhelpful, misleading
and unfairly prejudicial and invaded the province of the jury.” Id.
¶ 28 (cleaned up). It determined that the district court did not
abuse its discretion in concluding that Expert’s testimony would
be helpful to the jury. See id. ¶ 30. It acknowledged that “there are
powerful arguments why the expert testimony that the district
court allowed in this case—testimony about the typical behaviors
of child sex abuse victims and the manner in which they make

20210311-CA 6 2024 UT App 89
Martin v. State

disclosures about their abuse—should be excluded in particular
cases,” but it reasoned, “Mr. Martin submitted no meaningful
data or other evidence to show the district court that the testimony
the district court allowed was prejudicial, unreliable, or
unhelpful. Nor has he cited or sought to apply any of the myriad
cases directly analyzing this nuanced and challenging problem
before the district court or on appeal.” Id. ¶ 31. It concluded, “Both
at the district court level and before this court, therefore, Mr.
Martin has failed to carry his burden of persuasion that admitting
this testimony was an abuse of discretion.” Id.

¶13 Finally, as relates to Expert, the supreme court discussed
her improper bolstering statement, which Martin contended was
grounds for a mistrial. See id. ¶¶ 33–34. The court determined that
the statement was “plainly improper” but that Martin “waived
any claim for relief on appeal” respecting it “because the district
court struck [Expert’s] answer and gave Mr. Martin all the relief
he sought—a curative instruction stating that [Expert] was not
qualified to speak to the credibility of the children and that her
comments to that effect had been stricken from the record.” Id.
¶ 34. The court stated, “Mr. Martin accordingly waived a mistrial,
and we will not now give him a greater remedy than he sought at
trial.” Id.

¶14 After Martin’s unsuccessful direct appeal, he filed and then
amended a petition for relief under the Post-Conviction Remedies
Act (PCRA). In the Petition, Martin asserted seven claims of
ineffective assistance of counsel. Six of these applied only to Trial
Counsel, while one applied to both Trial Counsel and Appellate
Counsel. The State moved for summary judgment on each of these
claims. The district court determined that none of the complained-
of “actions or inactions” of Trial Counsel and Appellate Counsel
were “objectively unreasonable,” so it determined that addressing
prejudice as to the claims was “not necessary.” Because it
concluded that none of the decisions in question amounted to
ineffective assistance, the court granted summary judgment for
the State and dismissed the Petition. Martin now appeals that
decision.

20210311-CA 7 2024 UT App 89
Martin v. State

ISSUE AND STANDARD OF REVIEW

¶15 Martin asserts that the district court erred by granting the
State’s motion for summary judgment and denying the Petition.
“We give no deference to the district court in reviewing its grant
of summary judgment or its order denying a petition for post-
conviction relief.” Jones v. State, 2020 UT App 125, ¶ 18, 473 P.3d
1190. “We will affirm the grant of summary judgment when the
record shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.” Id. (cleaned up); see also Utah R. Civ. P. 56(a).

ANALYSIS

¶16 Martin asserts that the district court improperly granted
summary judgment to the State on the claims of ineffective
assistance of counsel that he raised in the Petition. 6 “In the context
5F

of a summary judgment motion in a PCRA proceeding premised
on a claim of ineffective assistance of counsel, [the petitioner]
bears the burden of proving [the] underlying legal claims of
ineffective assistance of counsel.” Jackson v. State, 2015 UT App
217, ¶ 13, 359 P.3d 659 (cleaned up). “When the State files its
motion for summary judgment, it bears the initial burden of
showing that it is entitled to judgment and that there is no genuine
issue of material fact that would preclude summary judgment in

6. Martin was represented by attorneys from the Utah County
Public Defender Association both at trial and on direct appeal.
Because of this, Martin was not precluded from raising claims of
ineffective assistance as to Trial Counsel in the Petition despite not
raising them in his direct appeal. See Menzies v. State, 2014 UT 40,
¶ 212, 344 P.3d 581 (“[B]oth the common law and the PCRA allow
a petitioner who had the same counsel on appeal and at trial”—
including counsel from the same office or firm—“to raise
ineffective assistance claims for the first time in post-conviction
proceedings.”), abrogated on other grounds by McCloud v. State, 2021
UT 51, 496 P.3d 179.

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Martin v. State

its favor.” Id. (cleaned up). “Once the State makes that showing,
the burden of proof then shifts to [the petitioner,] the nonmoving
party.” Id. (cleaned up). And because Martin, as the petitioner,
“bears the burden of proving ineffective assistance, he cannot rest
on his allegations alone but instead must set forth specific facts
showing that there is a genuine issue for trial.” Id. (cleaned up);
see also Utah Code § 78B-9-105(1)(a) (“[T]he petitioner has the
burden of pleading and proving by a preponderance of the
evidence the facts necessary to entitle the petitioner to relief.”).

I. The Strickland Standard

¶17 Two of Martin’s assertions of error amount to general
misunderstandings about how claims of ineffective assistance of
counsel are evaluated. We therefore begin by explaining the test
for proving ineffective assistance of counsel and why the district
court did not err in its approach to applying that test in this case.

¶18 To succeed on a claim of ineffective assistance of counsel,
an appellant must satisfy both prongs of the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under
the first prong, “the defendant must show that counsel’s
performance was deficient,” which is accomplished by showing
“that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687–88. Under the second prong, “the
defendant must show that [counsel’s] deficient performance
prejudiced the defense.” Id. at 687. Prejudice is “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different,” thus
“undermin[ing] confidence in the outcome.” Id. at 694. “Because
failure to establish either prong of the test is fatal to an ineffective
assistance of counsel claim, we are free to address [a defendant’s]
claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342
P.3d 182.

¶19 In assessing whether the first prong of the Strickland test is
met—i.e., whether counsel’s performance was deficient—courts
“afford[] a strong presumption that counsel’s actions were within

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Martin v. State

the broad range of conduct considered a sound trial strategy.”
State v. Hutchings, 2012 UT 50, ¶ 18, 285 P.3d 1183 (cleaned up).
Martin demonstrates an initial misunderstanding regarding this
aspect of the Strickland test.

¶20 Martin contends that the district court erred by making
assumptions about possible strategic reasons Trial Counsel and
Appellate Counsel proceeded as they did while providing his
defense. He asserts that “assumptions go both ways” and that it
“can be argued” that, instead of having been based on strategic
reasons, Trial Counsel’s and Appellate Counsel’s actions might
instead reflect “unprofessional preparations, an inability to adapt
to new information and focusing on inflexible tactics.” But when
reviewing counsel’s performance, courts are “required not simply
to give the attorneys the benefit of the doubt, but to affirmatively
entertain the range of possible reasons [they] may have had for
proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 196
(2011) (cleaned up). Indeed, “given the strong presumption of
competence, [a reviewing court] need not come to a conclusion
that counsel, in fact, had a specific strategy in mind.” State v. Isom,
2015 UT App 160, ¶ 37, 354 P.3d 791 (cleaned up), cert. denied, 364
P.3d 48 (Utah 2015). Instead, the court “need only articulate some
plausible strategic explanation for counsel’s behavior.” Id.
(cleaned up). Thus, rather than erring “by assuming why [Trial
Counsel and Appellate Counsel] did what [they] did,” as Martin
contends, the district court was properly applying the first prong
of the Strickland test when it explored and articulated possible
strategic reasons for their behavior.

¶21 Martin’s second misunderstanding is tied to the notion that
reviewing courts are free to address an ineffective assistance claim
“under either prong” of the Strickland test. Honie, 2014 UT 19, ¶ 31.
Martin appears to believe that because a court need not “find
counsel’s performance deficient before examining prejudice,” a
defendant need only prove prejudice to prevail on an ineffective
assistance claim. This belief is evident from his contention that the
district court erred when it did not consider the purported
prejudice he suffered in connection with Trial Counsel’s and

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Martin v. State

Appellate Counsel’s conduct and rule in his favor based on that
prejudice, even though the court determined that Martin’s Trial
Counsel and Appellate Counsel did not render deficient
performance at all. Martin’s position is untenable.

¶22 While a court may address an ineffective assistance claim
under only one prong of the Strickland test when its purpose is to
show that the claim fails, a court must address both prongs of the
Strickland test before it determines that an ineffective assistance
claim is successful. See id. Therefore, while Martin is correct that a
court need not “find counsel’s performance deficient before
examining the prejudice,” a court must find counsel’s
performance deficient before it rules in a defendant’s favor. And
a court need not analyze prejudice at all if it first finds no deficient
performance. It is the reviewing court’s prerogative to analyze
either prong first, and the court may end its inquiry when it deems
one prong unmet. The court here found that as to each of Martin’s
allegations of ineffective assistance, Trial Counsel and Appellate
Counsel did not perform unreasonably, thus defeating his claims
on the prong of deficient performance. At that point, the court had
no obligation to analyze prejudice as to any of Martin’s claims.

II. Martin’s Claims of Ineffective Assistance

¶23 Having determined that the district court did not err in its
general approach to applying the Strickland test to Martin’s claims
of ineffective assistance, we turn to a review of the court’s specific
rulings on each of Martin’s claims. In the Petition, Martin raised
seven claims of ineffective assistance. We examine each one to
determine whether the district court correctly granted summary
judgment. 76F

7. On appeal, Martin takes issue with several aspects of the district
court’s reasoning in granting summary judgment to the State.
Some of Martin’s arguments apply to only one claim of ineffective
assistance, while others apply to multiple claims. And it is not
(continued…)

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Martin v. State

A. The Details Surrounding N.L.’s Disclosure

¶24 Martin first contends that Trial Counsel was ineffective for
failing to cross-examine N.L. regarding the identify of the
television broadcast speaker and the content of the talk that
prompted her disclosure of abuse, failing to cross-examine
Mother on this subject, failing to seek judicial notice that the talk
did not happen as described, and failing to argue fabrication on
this point in closing argument. Here Martin refers to N.L.’s
testimony that on October 7, 2012, she and A.L. were playing
bingo in their living room while watching the conference when
the following occurred: “Elder Packer said that we shouldn’t keep
secrets, because our body’s like a temple, and if you’re keeping
bad secrets then you’re hurting your temple. So I just decided to
tell.” According to N.L., Mother “was fixing dinner” in the kitchen
at the time and N.L. went there to tell Mother about the abuse.
Mother agreed that this happened during the afternoon session of
the conference, but when asked who the conference speaker was,
she said, “Elder Scott.” Additionally, at an earlier evidentiary
hearing, Mother had testified that she and N.L. were the only ones
in the room watching the conference when N.L. “looked up and
just said Jesus told me I could tell you the secrets in my heart” and
then reported that “[Martin] had been touching her privates.”

¶25 Martin stated in his memorandum supporting the Petition
that when he heard N.L.’s trial testimony, he “immediately

entirely clear from his briefing whether Martin’s claims of error
call into question the district court’s resolution of all seven
ineffective assistance claims that Martin brought in the Petition.
But Martin is proceeding pro se, and “appellate courts are
generally lenient with pro se litigants, extending every
consideration that may reasonably be indulged.” Chaparro v.
Torero, 2018 UT App 181, ¶ 33, 436 P.3d 339 (cleaned up). Because
we “may, in the interests of justice, overlook inadequacies in the
briefing and reach the merits” of a pro se appellant’s arguments,
id., we elect to review all seven claims of ineffective assistance of
counsel that Martin raised in the Petition.

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searched the Church’s website on his [phone] and informed [Trial
Counsel] that the girl’s detailed and specific story of the
prompting she received was fabricated.” Martin further asserted,
“President Packer . . . was the second speaker on Sunday morning,
which would mean that he gave his remarks at around 10:45 am.
President Packer’s address . . . [had] no reference . . . to ‘secrets,’
‘bodies,’ or ‘temples.’” Regarding Mother’s description of these
events, Martin stated, “Elder Scott was the second speaker during
the Sunday afternoon session, so he would have spoken around
2:45 pm. His address . . . had nothing whatsoever to do with
‘secrets’ or ‘bod[ies],’ although there are several references to
temples.” (Alteration in original.) Martin continued, “There is the
possibility that an 8-year old . . . might be confused as to the
identity of the speaker who discussed human bodies being
temples and not keeping secrets, but a review of all of the talks . . .
reveals that not one speaker addressed those issues.” Martin
contended, “Choosing to ignore the clearly fabricated story of
how the alleged sexual abuse came to light was not within the
wide range of reasonable professional assistance of defense
counsel and it was certainly not sound trial strategy.” Therefore,
Martin insisted, Trial Counsel performed deficiently by not cross-
examining N.L. and Mother on this subject, by not seeking judicial
notice that the talk N.L. referred to did not occur as described, and
by not arguing fabrication on this point in closing argument.

¶26 The district court determined that Trial Counsel’s actions
in this regard were “not objectively unreasonable.” Among the
reasons it provided were that Trial Counsel “could have decided
that cross-examining N.L. and [Mother] merely to point out that
people listening to General Conference may be confused on the
identity of the speakers was not persuasive,” that Trial Counsel
planned to and did highlight other inconsistencies during cross-
examination and closing argument, and that Trial Counsel “could
have decided that arguing about who raised the topic [was] not as
significant as other aspects of the case.” Considering the calculus
Trial Counsel faced at the time, the court stated that “counsel is
bound by the reasonable time [constraints] of the court process”
as “[c]ross-examination cannot go on forever” and that Trial

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Counsel “may have reasonably concluded that without showing
that the content referred to by the witness was not addressed by
any speaker, cross examination of the witnesses would only
establish that the witness was confused as to which speaker
addressed the topic.” Accordingly, the court reasoned, Trial
Counsel “could have reasonably weighed the trial’s time
[constraints], the time required to research all topics raised at the
conference and the potentially limited impact of a witness[’s]
confusion in identity of a speaker and concluded not to pursue
that line of inquiry.”

¶27 Martin now contends that the court erred in “carelessly
insist[ing] that [Trial Counsel] should or would [put] time
adherence over [her] client[’s] interests.” He takes issue with the
court’s references to time constraints in resolving both this alleged
ground of ineffective assistance and other grounds he has
asserted. He declares that “it is absurd to have to say that an
innocent man will be convicted because his attorney just didn’t
have the time to research new evidence brought up at trial or the
time to properly cross-examine witnesses.”

¶28 We do not read these and other time-related statements by
the district court as condoning a defense attorney’s inadequate
research or neglect of a client’s interests. Instead, we view the
court’s analysis as properly considering the realities of trial when
evaluating attorney performance. The case law is clear that a
review of attorney performance is to be undertaken “in light of all
the circumstances” present when a defendant’s counsel made the
decision in question. Strickland v. Washington, 466 U.S. 668, 690
(1984); see also Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d 182 (“[W]e
examine the reasonableness of trial counsel’s conduct in light of
the particular facts of the case, viewed as of the time of counsel’s
conduct.”). And decisions made in the “real-time context of trial,”
State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (cleaned up), may
involve considering the time constraints inherent in the trial
setting. In preparing for and performing at a trial, “defense
lawyers have limited time and resources, and so must choose
from among countless strategic options. Such decisions are

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particularly difficult because certain tactics carry the risk of
harming the defense by undermining credibility with the jury or
distracting from more important issues.” Dunn v. Reeves, 594 U.S.
731, 739 (2021) (cleaned up).

¶29 We agree with the district court that Trial Counsel could
have reasonably decided against highlighting the particular
inconsistencies Martin refers to. Specifically, we agree that Trial
Counsel could have reasonably determined that focusing on these
inconsistencies would not be especially persuasive to the jury and
could have reasonably elected to highlight other discrepancies in
the evidence over these.

¶30 Even if Trial Counsel demonstrated that N.L.’s
identification of the speaker and content of the talk was wrong,
Trial Counsel could have reasonably concluded that the jury
would likely not place much weight on an eight-year-old child’s
inability to correctly match one of many speakers to the content
of a certain talk. And even if Trial Counsel could show that no
speaker addressed the specific topic N.L. identified, it is not
unreasonable to believe that an eight-year-old potentially
distracted by bingo misheard, misremembered, or derived a
unique interpretation from a religious address. Accordingly, Trial
Counsel could reasonably believe that taking further action with
regard to N.L. on this point would not be productive.

¶31 And Trial Counsel could reach a similar conclusion
concerning Mother. Mother did not testify as to a particular
message but rather that N.L. simply said, “Jesus told me I could
tell you the secrets in my heart.” Therefore, whether Mother could
correctly recall the speaker was likely of little importance to the
jury. And Trial Counsel could not show that Mother’s
identification of the speaker did not match Mother’s description
of the content of the speaker’s talk since Mother alleged no
specific content.

¶32 For these reasons, Trial Counsel did not perform
deficiently by not seeking judicial notice of the content of the

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various talks given in order to show that neither the speaker N.L.
identified nor any of the other speakers talked about one’s body
being a temple and not keeping secrets. Trial Counsel could have
reasonably concluded that doing so would not be effective
because Mother did not point to any actual statements in the
conference and the jury could reasonably believe that N.L.’s
mischaracterization of the content of a talk did little to suggest
fabrication of her allegations of assault.

¶33 While the discrepancies between N.L.’s account and
Mother’s account could lend some limited support to an
allegation of fabrication, we do not see deficient performance in
Trial Counsel’s decision not to highlight those discrepancies
where she chose to highlight other inconsistencies—ones directly
related to the alleged incidents of abuse—during cross-
examination and closing argument. First, we note that the jury
would likely give little weight to an eight-year-old and an adult
remembering differently who was speaking or who was in which
room listening at a given time during the conference. And while
the jury might make slightly more of the difference between N.L.
testifying that she told Mother of the abuse in the kitchen while
Mother was preparing dinner and Mother implying that N.L.
disclosed the abuse in the living room when she and Mother were
alone watching the conference, it was not unreasonable for Trial
Counsel, in cross-examining N.L., to instead focus her
questioning regarding the conference-time disclosure on what
N.L. told Mother that day about the abuse. Specifically, Trial
Counsel highlighted the fact that the abuse N.L. reported that day
did not include an incident she revealed later. And in closing
argument, Trial Counsel walked through a series of what she
characterized as “major inconsistencies,” including differences
between which incidents the girls reported when and to whom,
and differences in their descriptions of the incidents. Trial
Counsel acted reasonably in focusing on these discrepancies and
characterizing them as major, where they related specifically to
Martin’s alleged actions. Competent counsel could conclude that
these were likely to have a greater bearing on the jury’s
determination of Martin’s guilt than the details Martin now

20210311-CA 16 2024 UT App 89
Martin v. State

focuses on regarding the conference speaker and topic because
they addressed what Martin was alleged to have done and
whether the girls fabricated those allegations. We therefore
cannot say that Trial Counsel acted unreasonably by using the
time at trial to highlight other discrepancies in the witnesses’
testimonies than the conference-related ones.

B. The Date of A.L.’s First Disclosure

¶34 Second, Martin asserts that Trial Counsel provided
ineffective assistance by failing to confront Mother and Father on
cross-examination with the contradiction between, on the one
hand, their accounts that A.L. told them on October 7 of specific
instances of abuse by Martin and, on the other, A.L.’s trial
testimony denying that she told her parents on October 7 about
any abuse. Martin asserts that Trial Counsel compounded this
error because she recast A.L.’s testimony as a failure to recall telling
her parents on October 7 about abuse by Martin rather than as a
denial that she told her parents on October 7 about the abuse and
because Trial Counsel failed to highlight in closing argument this
inconsistency between A.L.’s and her parents’ testimonies.

¶35 Martin’s argument on this point refers to the following
testimony Trial Counsel elicited from A.L. during cross-
examination:

Q. . . . [W]hen you first described these events, this
was the day . . . of General Conference, and [N.L.]
had said some things to [Mother]. Did you talk to
your family at all that day about what happened?

A. No.

Q. Okay, did you ever talk to them before being
interviewed . . . [at] the CJC?

A. No.

20210311-CA 17 2024 UT App 89
Martin v. State

Q. Okay, so you don’t recall talking to [Mother] or
[Father] about anything?

A. No, I didn’t.

Q. Okay, so you don’t recall telling them that the
first time this occurred was in the church parking lot
in a vehicle with [Martin]; you don’t remember
telling them that?

A. I didn’t tell them that.

This contrasts with testimony from Mother and Father, who both
agreed that on October 7 A.L. did disclose details about a specific
incident of abuse.

¶36 As an initial matter, we note that Martin is wrong that Trial
Counsel compounded any error that might have occurred here.
A.L.’s testimony in question clearly expresses A.L.’s denial—as
opposed to lack of recollection—that she told her parents of
specific instances of abuse on October 7, and Trial Counsel’s
phrasing of questions did not negate that.

¶37 As for whether Trial Counsel provided ineffective
assistance for failing to cross-examine Mother and Father about
this discrepancy and to highlight the discrepancy in closing
argument, we conclude that she did not. That this discrepancy
came in through cross-examination cuts against Martin’s
argument; Trial Counsel herself elicited the testimony showing
yet another discrepancy. Had Trial Counsel chosen to cross-
examine Mother and Father on this point, she would have risked
eliciting testimony softening the discrepancy. For example, the
following testimony by A.L., which preceded that quoted above,
could suggest that on October 7 she perhaps acknowledged to
Mother that abuse had occurred but that she did not tell Mother
the details of the abuse:

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Martin v. State

Q. . . . [W]ho did you first tell about these incidents
that occurred as you’ve described with [Martin]?
Did you tell [Mother], did you tell your sister; who
did you first tell?

A. Well, she asked me if he did anything, but I didn’t
really tell her.

Q. Sorry to interrupt you. When you say “she,” are
you referring to [Mother] or—

A. Yeah, [Mother].

Q. Okay. Okay.

A. I think it was . . . the girl at the CJC.

Q. Okay, so that’s the first person you described all
of this to?

A. Yeah.

If Trial Counsel had cross-examined Mother and Father about
what, if anything, A.L. disclosed on October 7, that may have
prompted the State to potentially elicit through cross-examination
of A.L. a clarification that she had made some sort of disclosure to
Mother on October 7, thereby narrowing the discrepancy between
A.L.’s and her parents’ testimonies. By instead simply eliciting
contradictory testimony from A.L., Trial Counsel was able to lay
a potentially sharp discrepancy bare before the jury. We cannot
say that this was an unreasonable trial strategy. Nor, for the
reasons we have given regarding the reasonableness of Trial
Counsel’s decision to focus in closing argument on discrepancies
regarding the incidents of abuse themselves, can we say that Trial
Counsel performed unreasonably by not specifically highlighting
this disclosure-related discrepancy during closing arguments.

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Martin v. State

C. Mother’s and Father’s Written Police Statements

¶38 Third, Martin argued in the Petition that Trial Counsel
provided ineffective assistance by not adequately confronting
Mother and Father on cross-examination with the inconsistencies
between their trial testimonies and their earlier handwritten
statements to police and by failing to have these statements
admitted and to use them in closing argument.

¶39 Mother gave a written report to the police on October 7.
Father gave a written report on or before October 23. Mother’s
statements in her written report contained several allegations that
were later contradicted at trial, including allegations discussed
above regarding what A.L. disclosed that day and A.L.’s
declaration that every time she saw Martin he would “hug[] her
and put[] [his] hands down [her] pants if no one else [was] there.”
At trial, Mother testified that she did not remember A.L. saying
that. Father also made statements in his police report about what
A.L. had disclosed, and he further said that Martin had admitted
during a phone call that he had inappropriately touched at least
one of the girls. At trial, Father testified that Martin did not
affirmatively admit touching either girl inappropriately.

¶40 Martin asserts on appeal that the district court addressed
only Trial Counsel’s failure to seek admission of these written
police reports into evidence and neglected to address Trial
Counsel’s failure to adequately confront Mother and Father about
them on cross-examination or to highlight these issues in closing
argument. Martin is wrong. The court specifically listed all three
of the actions Martin claimed Trial Counsel should have taken
and then analyzed the appropriateness of how Trial Counsel
chose to use the statements:

Martin argues that [Trial Counsel] provided
ineffective assistance of counsel by (1) failing to
introduce the written statements . . . into evidence,
(2) failing to adequately confront [Mother] and
[Father] about inconsistencies between these

20210311-CA 20 2024 UT App 89
Martin v. State

written statements and trial testimony, and (3) not
pointing out inconsistencies between these
statements and trial testimony to the jury. The
[c]ourt finds that none of the actions or inactions by
[Trial Counsel] was objectively unreasonable.

. . . [Trial Counsel] handed [Mother’s]
October 7, 2012 written statement to [Mother] while
she was on the stand and asked her to read it silently
to herself. [Trial Counsel] then proceeded to
question her about the contents of the document.
And she admitted that some of the things written
she did not recall. [Trial Counsel] also addressed
[Father’s] trial testimony that Martin never
affirmatively admitted he touched A.L. and N.L.
with a separate written statement that contradicted
this testimony.

[Trial Counsel] addressed inconsistencies in
testimony with the evidence available . . . at the
time. [Trial Counsel] could have also reasonably
determined that if the written statements were
placed in evidence, the other accusatory
information would have been available for the jury
to review when deliberating. [Trial Counsel] could
have reasonably decided to let the witnesses’
testimony speak for itself, rather than have the
inculpating information available for review by the
jury during deliberation. The [c]ourt finds [Trial
Counsel’s] actions were not objectively
unreasonable . . . .

The court clearly determined that Trial Counsel was reasonable in
her strategy of how to use the written police statements and did
not perform deficiently by not taking the three actions Martin
wishes she had.

20210311-CA 21 2024 UT App 89
Martin v. State

¶41 We agree with the district court that Trial Counsel pursued
an acceptable strategy regarding this evidence. Showing
discrepancies between the reports and trial testimony through
cross-examination, rather than seeking admission of the
documents, permitted Trial Counsel to highlight only the aspects
of the reports that were helpful to Martin. Trial Counsel was
thereby able to cast the credibility of key witnesses of the State
into doubt while avoiding putting before the jury other
statements in the reports that may have been inculpatory. Trial
Counsel was not ineffective for choosing a route other than
admission of the documents. See State v. Nelson, 2015 UT 62, ¶ 16,
355 P.3d 1031 (“We give trial counsel wide latitude in making
tactical decisions and will not question such decisions unless there
is no reasonable basis supporting them.” (cleaned up)).

¶42 And while Martin would have liked Trial Counsel to have
dug deeper in cross-examination, Trial Counsel did highlight
important discrepancies between the written reports and trial
testimony through that process. For example, the jury heard Trial
Counsel refer specifically to the written report to impeach
Mother’s statement that she didn’t recall A.L. saying Martin
would put his hand down her pants whenever other people were
not around. And Trial Counsel explicitly referred to Father’s
written statement when confronting him about what he alleged
A.L. revealed on October 7. Additionally, Trial Counsel referred
to Father’s written statement when questioning Father about his
phone call with Martin, during which questioning Father
acknowledged that Martin did not admit to molesting the girls.
Based on all this, we do not find Trial Counsel’s performance
constitutionally defective in her cross-examination on this point.

¶43 We also do not see deficient performance in Trial Counsel
not raising this point in closing argument. Trial Counsel’s closing
argument covered a wide range of evidence and discussed topics
such as witness coaching, fabrication, inconsistencies,
impossibility, and credibility. In reviewing Trial Counsel’s closing
argument, it is clear that Trial Counsel made a strategic decision
to highlight the evidence she believed was most helpful to

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Martin v. State

Martin’s defense and to cast doubt on the evidence she found
most incriminating. That she and Martin had a difference of
opinion over whether a particular piece of evidence should have
been mentioned in closing argument is not a sufficient reason for
us to conclude that Trial Counsel performed deficiently. See
Strickland v. Washington, 466 U.S. 668, 689 (1984) (“It is all too
tempting for a defendant to second-guess counsel’s assistance
after conviction . . . . There are countless ways to provide effective
assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.”).
Trial Counsel’s closing statement constituted a robust defense of
Martin, and she did not perform deficiently by making it without
reemphasizing this particular point.

D. Expert’s Testimony on Children’s Incomplete Disclosures and
Unpredictable Behaviors as a Result of Sexual Abuse

¶44 Fourth, Martin asserts that both Trial Counsel and
Appellate Counsel provided ineffective assistance for not making
“an adequate, reasoned and supported argument” for excluding
Expert’s testimony as to the reasons children make incomplete or
inconsistent disclosures about sexual abuse and as to children’s
symptoms that are consistent with sexual abuse. We disagree and
conclude that neither Trial Counsel nor Appellate Counsel
performed deficiently in this regard. 87F

8. Martin attached Appellate Counsel’s primary brief to the
original version of his petition but not to the Petition as amended.
Because of this, the district court found that “Martin failed to
produce evidence of what [Appellate Counsel] presented and
argued on appeal” and that, accordingly, the court was “without
sufficient evidence to determine if [Appellate Counsel’s]
representation was objectively unreasonable.” However, rule 65C
of the Utah Rules of Civil Procedure, which governs PCRA cases,
see Utah R. Civ. P. 65C(a), provides that “[a]ll records in the
criminal case under review, including the records in an appeal of
(continued…)

20210311-CA 23 2024 UT App 89
Martin v. State

¶45 Before trial, Trial Counsel filed a motion to exclude
Expert’s testimony. Trial Counsel argued that Expert was
insufficiently qualified to give her proffered testimony, that the
testimony would not be helpful to the jury, that the probative
value of her testimony was substantially outweighed by a danger
of unfair prejudice, and that the testimony would amount to
impermissible bolstering of A.L.’s and N.L.’s testimony. Over
these objections, the district court ruled that Expert “was qualified
as an expert on why child victims of sexual abuse often make
incomplete initial disclosures and disclose additional details and
facts pertaining to their sexual abuse over time,” as well as on
“common behaviors . . . of children who have been abused.” State
v. Martin, 2017 UT 63, ¶ 10, 423 P.3d 1254. Expert then testified at
trial “about the reasons children make incomplete or inconsistent
disclosures about sexual abuse[] and explained that children
respond to sexual abuse by demonstrating a wide and largely
unpredictable array of behaviors.” Id. ¶ 22. She “identif[ied] some
common behavioral changes that occur in child victims of sexual
abuse” but also testified that “these changes are not to be expected
in every case and ultimately are not reliable indicators of whether
abuse has, or has not, occurred.” Id.

¶46 On direct appeal following Martin’s conviction, Appellate
Counsel largely restated Trial Counsel’s arguments, contending
that Expert’s “testimony about the typical behaviors of child sex
abuse victims and the manner in which they make disclosures
about their abuse” was “unhelpful, misleading and unfairly
prejudicial and invaded the province of the jury.” Id. ¶¶ 28, 31
(cleaned up). Our supreme court concluded that based on the

that conviction, are deemed part of the trial court record in the
petition for post-conviction relief,” id. R. 65C(n)(3). We interpret
this rule to mean that regardless of whether Martin’s original
petition or the Petition as amended included Appellate Counsel’s
briefing, we may consider Appellate Counsel’s briefing since that
briefing was among the records in the criminal case under review.
Accordingly, we address Martin’s claim of ineffective appellate
assistance on its merits.

20210311-CA 24 2024 UT App 89
Martin v. State

arguments forwarded by Trial Counsel and Appellate Counsel,
there was “no error in the court’s permitting this testimony.” Id.
¶ 30.

¶47 The supreme court then also observed, however, that there
were other “powerful arguments”—ones not made by Trial
Counsel or Appellate Counsel—for “why the expert testimony
that the district court allowed in this case . . . should be excluded
in particular cases.” Id. ¶ 31. Specifically, it noted that “some other
jurisdictions—though by no means all—have categorically
excluded this testimony in the face of evidence showing that the
testimony is unreliable, is essentially beyond the scope of any
credible scientific or therapeutic method, or poses an undue risk
of improperly influencing a jury’s assessment of credibility.” Id.
And the supreme court cited cases from two such jurisdictions.
See id. (citing first Sanderson v. Commonwealth, 291 S.W.3d 610, 614
(Ky. 2009), and then Commonwealth v. Dunkle, 602 A.2d 830, 832,
834 (Pa. 1992), superseded by statute as recognized by Commonwealth
v. Jones, 240 A.3d 881 (Pa. 2020)). Then the supreme court
acknowledged the split in extra-jurisdictional authority and cited
a case from yet another jurisdiction, see id., which recognized that
“a majority of the jurisdictions . . . deem admissible expert
testimony that a particular complainant has exhibited behavioral
characteristics identified as those of sexual assault victims—so
long as the expert does not offer an ultimate conclusion on the
issue of sexual abuse or opine directly on the complainant’s
veracity,” State v. Favoccia, 51 A.3d 1002, 1015 n.26 (Conn. 2012).
Importantly, the supreme court also cited State v. Kallin, 877 P.2d
138 (Utah 1994), which held that “[e]xpert testimony that [certain
behavioral] symptoms are consistent with sexual abuse, subject to
appropriate limitations and instructions to the jury, may enable
the jury to assess the probative relevance of the evidence in light
of all other evidence,” id. at 141, quoted in Martin, 2017 UT 63, ¶ 31.
Finally, the court concluded that because “Martin submitted no
meaningful data or other evidence to show the district court that
the testimony the district court allowed was prejudicial,
unreliable, or unhelpful” and because Martin had not “cited or
sought to apply any of the myriad cases directly analyzing this

20210311-CA 25 2024 UT App 89
Martin v. State

nuanced and challenging problem before the district court or on
appeal,” he had “failed to carry his burden of persuasion that
admitting this testimony was an abuse of discretion.” Martin, 2017
UT 63, ¶ 31.

¶48 Martin now argues that Trial Counsel’s and Appellate
Counsel’s failure to cite extra-jurisdictional case law excluding
similar testimony as well as to cite peer-reviewed studies casting
doubt on the reliability of such testimony amounted to deficient
performance that prejudiced his defense. In considering this claim
of ineffective assistance, we first emphasize our obligation to
make “every effort . . . to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland v. Washington, 466 U.S. 668, 669
(1984). We further emphasize that notwithstanding the extra-
jurisdictional authority on the issue cited by our supreme court,
at the time of Trial Counsel’s and Appellate Counsel’s challenged
conduct, Expert’s testimony was clearly admissible under
controlling Utah law—specifically, Kallin and its progeny.

¶49 In Kallin, a pediatrician who had examined a child rape
victim testified at trial. See 877 P.2d at 140. The defendant argued
that the pediatrician had “improperly testified that the victim fit
the profile of a sexually abused child.” Id. at 141. In considering
this argument, our supreme court discussed its previous decision
in State v. Rimmasch, 775 P.2d 388 (Utah 1989), superseded by rule as
recognized in State v. Maestas, 2012 UT 46, 299 P.3d 892, saying that
in that case it had “held inadmissible an expert opinion that an
alleged child abuse victim had been abused if the opinion was
based, even in part, on conformance of a victim’s behavior to a
child sexual abuse profile if there was no scientific evidence
establishing the scientific accuracy of the profile in identifying
child sex abuse victims.” Kallin, 877 P.2d at 140. The Kallin court
determined that the pediatrician’s “testimony was not
inconsistent with Rimmasch” because “she did not testify that the
victim had in fact been sexually abused or raped, and she did not
rely on a psychological profile.” Id. at 141 (cleaned up). Instead,

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Martin v. State

the court noted, the pediatrician “testified only that the victim’s
behavior was consistent with symptoms that might be exhibited
by one who had been sexually abused” and did not “testify to any
kind of sexual abuse profile as such, nor did she testify that the
symptoms manifested by the victim demonstrated that she had
been sexually abused.” Id. The court continued, “She likewise did
not testify that all sexually abused children exhibit fixed
psychological or physical symptoms not otherwise present in
children who have not been abused.” Id. It explained, “Rather, her
testimony was limited to the conclusion that the victim’s
symptoms were ‘consistent with’ sexual abuse. On cross-
examination she also testified that the victim’s symptoms were
consistent with causes other than sexual abuse . . . .” Id.

¶50 The court reasoned, “Evidence that an alleged victim
manifests certain physical symptoms that are consistent with
sexual abuse is not based on a psychological sexual abuse profile.
The foundation for such testimony is based on the experience and
observations of those who work with abused children.” Id. The
court acknowledged that “[e]vidence that certain behavioral
symptoms are consistent with sexual abuse does not prove
directly the ultimate legal conclusion that the child was abused,
and cannot be admitted for that purpose” because “such
symptoms are also consistent with a number of causes other than
sexual abuse.” Id. But the court ultimately held that “the
manifestation of certain behavioral symptoms may have some
probative value as circumstantial evidence” and that “[e]xpert
testimony that such symptoms are consistent with sexual abuse,
subject to appropriate limitations and instructions to the jury, may
enable the jury to assess the probative relevance of the evidence
in light of all other evidence.” Id.

¶51 Utah’s appellate courts have since reaffirmed and applied
Kallin’s holding. See State v. Loose, 2000 UT 11, ¶ 11, 994 P.2d 1237
(holding that under Kallin “the trial court did not err” in allowing
a social worker’s expert testimony that “he had seen some of the
behaviors he saw in [the victim] in other children who had been
sexually abused”); State v. Burnett, 2018 UT App 80, ¶¶ 27‒31, 427

20210311-CA 27 2024 UT App 89
Martin v. State

P.3d 288 (concluding that because Kallin allows experts to “testify
that a victim’s behavior is consistent with sexual abuse,” an
expert’s testimony to that effect was admissible and “trial counsel
was not ineffective for failing to object to these portions of [the
expert’s] testimony” (cleaned up)), cert. denied, 432 P.3d 1232
(Utah 2018); State v. Christensen, 2016 UT App 225, ¶¶ 28‒29, 387
P.3d 588 (relying on Kallin to hold that because an expert did not
testify “based on a psychological profile” or to “the ultimate legal
conclusion that [the victim] was sexually assaulted,” his
testimony that several of the victim’s “symptoms were consistent
with” post-traumatic stress disorder was admissible), cert. denied,
390 P.3d 725 (Utah 2017).

¶52 Under Kallin and its progeny, Expert’s testimony that,
based on her experience, A.L.’s and N.L.’s symptoms were
consistent with sexual abuse was clearly admissible—so long as
Expert did not testify as to a certain psychological profile or to the
ultimate conclusion that A.L. or N.L. had been sexually assaulted.
And Expert’s testimony complied with those conditions:

At trial, [Expert] . . . testified about the reasons
children make incomplete or inconsistent
disclosures about sexual abuse . . . and explained
that children respond to sexual abuse by
demonstrating a wide and largely unpredictable
array of behaviors. While she did identify some
common behavioral changes that occur in child
victims of sexual abuse . . . [,] she stated that these
changes are not to be expected in every case and
ultimately are not reliable indicators of whether
abuse has, or has not, occurred.

State v. Martin, 2017 UT 63, ¶ 22, 423 P.3d 1254. Martin does not
even argue that Expert’s testimony ran afoul of Kallin. In other
words, Martin’s claim of ineffective assistance amounts to a
contention that to perform competently, Trial Counsel and
Appellate Counsel were required to argue for overturning Kallin.

20210311-CA 28 2024 UT App 89
Martin v. State

¶53 While Utah courts have not previously ruled on the issue,
among courts that have, the “general rule” is that defense
counsel—whether trial or appellate counsel—“cannot be deemed
ineffective for failing to raise an argument contrary to controlling
law.” Ruth Moyer, Counsel as “Crystal Gazer”: Determining the
Extent to Which the Sixth Amendment Requires that Defense Attorneys
Predict Changes in the Law, 26 Geo. Mason U. C.R. L.J. 183, 194
(2016); see also, e.g., Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir.
2002) (“We have rejected ineffective assistance claims where a
defendant faults his former counsel not for failing to find existing
law, but for failing to predict future law and have warned that
clairvoyance is not a required attribute of effective
representation.” (cleaned up)); Green v. Johnson, 116 F.3d 1115,
1125 (5th Cir. 1997) (stating that “there is no general duty on the
part of defense counsel to anticipate changes in the law” and that
“counsel is not ineffective for failing to raise a claim that Texas
courts have rejected repeatedly”); Commonwealth v. Baumhammers,
92 A.3d 708, 728–29 (Pa. 2014) (noting that the appellant was
“suggesting that his counsel erred by failing to argue for a change
in settled law” and holding that because “[t]rial counsel’s
performance is evaluated under the standards in effect at the time
of trial,” his counsel could not “be held ineffective for failing to
request a jury instruction that was affirmatively prohibited by
Pennsylvania law at the time of trial”); State v. Febles, 115 P.3d 629,
637 (Ariz. Ct. App. 2005) (explaining that “there is a difference
between ignorance of controlling authority and the failure of an
attorney to foresee future developments in the law” and holding
that appellate counsel’s “failure to predict future changes in the
law” was not ineffective (cleaned up)). Even the United States
Supreme Court has explained, in the context of the procedural
default bar to federal habeas review of state court convictions, 9 8F

9. Procedural default is the sanction imposed on a federal habeas
petitioner for failure to properly exhaust state remedies. See
Martinez v. Ryan, 566 U.S. 1, 9 (2012). An exception to the doctrine
of procedural default exists when the petitioner can “show[] cause
for the default and prejudice from a violation of federal law,” and
(continued…)

20210311-CA 29 2024 UT App 89
Martin v. State

that “[i]t will often be the case that even the most informed
counsel will fail to anticipate a state appellate court’s willingness
to reconsider a prior holding.” Smith v. Murray, 477 U.S. 527, 536
(1986).

¶54 To be sure, a portion of our supreme court’s opinion in
Martin’s direct appeal could be read as an indication that the court
might be willing to reconsider Kallin. See Martin, 2017 UT 63,
¶¶ 31‒32. But the court had given no such indication when Trial
Counsel moved for exclusion of Expert’s testimony or when
Appellate Counsel was arguing Martin’s direct appeal. In
conformity, therefore, with the requirement that we resist “the
temptation to second-guess trial counsel’s [or appellate counsel’s]
decisions with the benefit of hindsight,” Honie v. State, 2014 UT 19,
¶ 32, 342 P.3d 182, we, like other courts before us, decline to
classify clairvoyance—at least under the circumstances presented
here—as a component of attorney competence. 10 Hence, Martin’s
9F

one such cause for default is the “[i]nadequate assistance of
counsel at initial-review collateral proceedings.” Id. at 9–10. In
Smith v. Murray, 477 U.S. 527 (1986), the Supreme Court, when
addressing whether cause for a procedural default had been
shown, held that defense counsel’s failure in that case to argue for
overruling established precedent was not “an error of such
magnitude that it rendered counsel’s performance
constitutionally deficient under the test of [Strickland].” Id. at 535.

10. The leading commentator on this issue has observed that while
some courts “have reiterated a per se rule that counsel can never
be expected to be ‘clairvoyant,’” other courts have followed a
more nuanced rule. Ruth Moyer, Counsel as “Crystal Gazer”:
Determining the Extent to Which the Sixth Amendment Requires that
Defense Attorneys Predict Changes in the Law, 26 Geo. Mason U. C.R.
L.J. 183, 195 (2016). For example, the Sixth Circuit has taken a
“foreshadow[ing]” approach, under which “counsel’s failure to
raise an issue whose resolution is clearly foreshadowed by existing
decisions might constitute ineffective assistance of counsel.” Lucas
(continued…)

20210311-CA 30 2024 UT App 89
Martin v. State

ineffective assistance claim based on Trial Counsel’s and
Appellate Counsel’s failure to marshal extra-jurisdictional
authority and peer-reviewed studies in a bid to obtain an
overruling of Kallin and its progeny fails.

E. A Limiting Instruction for Expert’s Testimony

¶55 Fifth, Martin argues that Trial Counsel provided
ineffective assistance in neglecting to request—after the district
court denied his motion to exclude Expert as an expert witness—
a limiting instruction stating that (1) Expert’s testimony was based
on her own experience and not on research or clinical data,
(2) there is no generally accepted profile or set of characteristics
common to child victims of molestation, (3) Expert was not

v. O’Dea, 179 F.3d 412, 420 (6th Cir. 1999) (emphasis added). And
the Third Circuit weighed a number of factors before holding that
a defendant’s trial counsel performed deficiently by not
anticipating the United States Supreme Court’s decision in Batson
v. Kentucky, 476 U.S. 79 (1986), which overturned precedent by
holding that prosecutors could no longer use peremptory
challenges to exclude potential jurors for racial reasons. See
Government of the Virgin Islands v. Forte, 865 F.2d 59, 61‒63 (3d Cir.
1989). Among the factors the Third Circuit considered were the
fact that Batson was pending in the Supreme Court at the time of
the defendant’s trial, “Batson-like objections were being made at
the time in other cases,” a Batson-like objection “would have
required little effort and would not have been a reprehensible or
unprofessional act,” and—most significant to the Third Circuit—
the defendant had asked his counsel to make a Batson-like
objection “to preserve his rights under a case then pending in the
Supreme Court.” Id. at 63.
We need not decide whether Utah should employ a per se
approach, a foreshadowing approach, a multi-factored approach,
or some other approach to this issue because given the state of
Utah law at the time, Trial Counsel’s and Appellate Counsel’s
conduct was reasonable under any reasoned approach to an
attorney’s obligation to predict changes in the law.

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Martin v. State

testifying as to the girls’ truthfulness and legally could not do so,
(4) Expert’s testimony was not evidence of Martin’s guilt, and
(5) the jury could only consider Expert’s testimony in deciding if
the girls’ conduct was consistent with children who had been
molested. Martin bases this argument on two sources of authority:
(1) our supreme court’s mention of limiting instructions in Kallin
and (2) model jury instructions from another state that Martin
admits apply to evidence that is impermissible in Utah. Given this
limited authority, we deem unpersuasive Martin’s argument that
Trial Counsel provided constitutionally ineffective assistance for
not requesting this limiting instruction.

¶56 Again, in Kallin, our supreme court stated, “Expert
testimony that [certain behavioral] symptoms are consistent with
sexual abuse, subject to appropriate limitations and instructions
to the jury, may enable the jury to assess the probative relevance
of the evidence in light of all other evidence.” State v. Kallin, 877
P.2d 138, 141 (Utah 1994). This statement does not require counsel
to seek in every instance a limiting instruction in the face of such
testimony, particularly as the Kallin court found no error in the
lower court’s admission of such testimony despite not indicating
that a limiting instruction was given there. See id.

¶57 Additionally, the model jury instruction Martin points to is
from California. Martin admits that the Utah Model Jury
Instructions lack such an instruction and that the California
instruction he refers to relates to evidence that is not admissible
in Utah. We are not convinced that Trial Counsel provided
constitutionally ineffective assistance for failing to rely on such a
tenuous source for a limiting instruction. Again, we “must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Strickland
v. Washington, 466 U.S. 668, 689 (1984). And we are not convinced
that competent counsel could only have interpreted the legal
landscape on this point as requiring a limiting instruction and that
Trial Counsel performed deficiently for not seeking one.

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Martin v. State

¶58 Instead of seeking a limiting instruction, Trial Counsel
chose to extensively cross-examine Expert. During this cross-
examination, Trial Counsel was able to obtain Expert’s agreement
that the children she interviews could be lying, that she cannot tell
when children are lying, that children could be coached before an
interview on what to say and she would not know, that children
can be “over-reactive or mistaken about sex and sexual abuse,”
that it is possible for children to believe a false accusation after it
is repeated to them enough, that abused children sometimes
exhibit no behavioral changes, that children sometimes exhibit
symptoms associated with sexual abuse even in the absence of
sexual abuse, and that “there is absolutely no way to determine
from a child’s behavior” if abuse occurred. Trial Counsel’s
decision to limit the effect and scope of Expert’s testimony
through thorough cross-examination rather than through a
limiting instruction was a reasonable trial strategy. Thus, Trial
Counsel did not perform deficiently by choosing this route.

F. Expert’s Testimony on Memory Function and Recall

¶59 Sixth, Martin asserts that Trial Counsel provided
ineffective assistance by not objecting when Expert testified to
things she was not permitted to testify about. In his memorandum
supporting the Petition, Martin specified that he was referring to
testimony regarding “memory function and recall” in children.

¶60 However, our supreme court specifically disclaimed
Martin’s characterization of Expert’s testimony related to memory
and recall:

[W]hat Mr. Martin characterizes as [Expert’s]
“extensive[]” testimony about child “memory
formation and recall” amounted to brief remarks
that (1) children sometimes forget information and
then remember it later, (2) the more children talk
about events the more they remember about them,
and (3) children’s memories are malleable and
suggestible. None of these statements called for

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Martin v. State

expertise in the mechanisms of memory retrieval
and recall. Instead, these statements simply
described trends and tendencies that were readily
observable by a forensic interviewer with the
expert’s level of training and experience. When her
testimony is viewed in context, we do not believe
that [Expert] sought to testify to psychological or
neuroscientific matters beyond the scope of her
expertise.

State v. Martin, 2017 UT 63, ¶ 27, 423 P.3d 1254. Because Trial
Counsel could have reasonably viewed this testimony just as our
supreme court viewed it and, thus, believed that the objection
Martin wishes she had made would have been futile, and because
no other purpose related thereto—such as to ensure the issue’s
preservation for appeal—needed to be served, Trial Counsel acted
reasonably in choosing to forgo such an objection. See State v.
Carter, 2023 UT 18, ¶ 44, 535 P.3d 819 (stating that the “futility [of
a particular action] can sometimes be a helpful way to describe
why an attorney’s decision was reasonable”).

G. Expert’s Improper Bolstering

¶61 Seventh, Martin argues that Trial Counsel provided
ineffective assistance by not requesting a mistrial when Expert
improperly bolstered the girls’ credibility. This claim relates to the
italicized language in the following exchange between Expert and
Trial Counsel during cross-examination:

Q. Okay, now just to be clear, you have absolutely
no professional opinion in this case whether these
girls are telling the truth, correct?

A. I can’t tell you if they’re telling the truth or not.

Q. It’s a—it’s a real possibility that they’re lying,
correct?

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Martin v. State

A. I don’t—from my interviews with them, the
information that they seemed to say to me seemed
credible.

Q. Okay, but—

A. Or at least not them. I only interviewed one child,
but that’s—

Q. But you just admitted that you can’t tell from an
interview whether they’re telling the truth or not,
correct?

A. Correct.

(Emphasis added.)

¶62 Martin is correct that the statement at issue was not
permissible. State v. Martin, 2017 UT 63, ¶ 34, 423 P.3d 1254
(“[E]ven though [Trial Counsel] arguably elicited this testimony
through cross-examination, we agree that it was plainly
improper.”); see also State v. Ramsey, 782 P.2d 480, 485 (Utah 1989)
(“[A]n expert may not express an opinion as to a child’s
truthfulness with respect to statements of child sex abuse.”).

¶63 However, we are not convinced that seeking a mistrial was
the only reasonable action Trial Counsel could take to remedy this
error. A “trial court should not grant a mistrial except where the
circumstances are such as to reasonably indicate that a fair trial
cannot be had and that a mistrial is necessary to avoid injustice.”
State v. Butterfield, 2001 UT 59, ¶ 46, 27 P.3d 1133 (cleaned up).
And “a mistrial is not required where an improper statement is
not intentionally elicited, is made in passing, and is relatively
innocuous in light of all the testimony presented.” State v. Allen,
2005 UT 11, ¶ 40, 108 P.3d 730. We believe that this last scenario
describes the circumstances here and, therefore, that Trial
Counsel could have reasonably believed that the court would not
have granted a mistrial based on Expert’s single objectionable

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Martin v. State

statement. See generally State v. Whytock, 2020 UT App 107, ¶ 43,
469 P.3d 1150 (“[W]e do not think [the defendant’s] trial attorneys
performed deficiently by failing to seek a mistrial, a remedy they
could have reasonably concluded was unlikely to be awarded.”),
cert. denied, 481 P.3d 1043 (Utah 2021).

¶64 Rather than seeking a mistrial, Trial Counsel indicated to
the court that the objectionable statement here was impermissible
and sought that the statement be stricken and that a curative
instruction be given to the jury. The district court took these steps,
instructing the jury:

You have heard testimony yesterday from [Expert],
forensic interviewer for the [CJC]. In one answer of
her testimony she commented directly on her
opinion of the credibility of a particular witness in
this case. This was improper and the answer has
been stricken from the record. [Expert] is not
qualified to give any opinion regarding the
credibility of any particular witness in this case.

Martin asserts that the curative instruction was “ineffective and
poorly worded.” But it correctly stated that Expert could not
opine on witness credibility, and we see no reason to believe it
was ineffective, see State v. Lee, 2014 UT App 4, ¶ 25, 318 P.3d 1164
(“We presume that a jury followed the instructions given it unless
the facts indicate otherwise.” (cleaned up)).

¶65 We do not view this as a case where the inadmissible
testimony likely had much impact because the statement was
bookended by clear declarations that Expert could not determine
generally whether the children she interviewed were telling the
truth or, more specifically, whether A.L. and N.L. were telling the
truth. Accordingly, the jury likely did not give much weight to
Expert’s inadmissible statement, and the curative instruction
presumably had the effect of correcting any small impact of the
statement. Trial Counsel could have reasonably believed as much

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Martin v. State

and determined that striking the offending statement and giving
the curative instruction were sufficient to counter any possible
harm. She could also have reasonably believed that the district
court felt this way and would not grant a mistrial. Accordingly,
Trial Counsel did not perform deficiently in pursuing the course
she did.

III. Cumulative Error

¶66 Finally, Martin asserts that the district court failed to
consider his argument of cumulative error.

¶67 “[A] court must make three determinations before
reversing a verdict or sentence under the cumulative error
doctrine: it must determine that (1) an error occurred, (2) the error,
standing alone, has a conceivable potential for harm, and (3) the
cumulative effect of all the potentially harmful errors undermines
its confidence in the outcome.” State v. Martinez-Castellanos, 2018
UT 46, ¶ 42, 428 P.3d 1038. “If the court determines that either a
party’s claim did not amount to an error, or that the claim was an
error but has no potential to cause harm on its own, the claim
cannot weigh in favor of reversal under the cumulative effects
test.” Id.

¶68 As we have explained, the district court correctly
determined as to each of Martin’s claims that Martin did not
receive ineffective assistance because Trial Counsel and Appellate
Counsel performed acceptably. Because there were no errors to
accumulate, there was no error in the court’s failure to address
cumulative error.

CONCLUSION

¶69 The district court did not err in granting summary
judgment denying the Petition. The court correctly applied the
legal standard applicable to claims of ineffective assistance of
counsel, each of Martin’s claims of ineffective assistance fail under

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Martin v. State

the deficient performance element of the Strickland test, and there
were accordingly no errors to accumulate. We therefore affirm.

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