State v. Garcia

2024 UT App 38

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERTO GARCIA,
Appellant.

Opinion
No. 20210381-CA
Filed March 21, 2024

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 201901238

Emily Adams, Freyja Johnson, and Melissa Jo
Townsend, Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1 Roberto Garcia appeals his convictions of rape of a child,
sodomy on a child, and aggravated sexual abuse of a child. He
contends that he did not receive effective assistance of counsel.
We conclude that in each asserted instance of ineffective
assistance, Garcia has failed to show either deficient performance
or resulting prejudice, and we therefore affirm.
State v. Garcia

BACKGROUND 1

Delayed Disclosure of Allegations

¶2 When Alicia 2 was fifteen years old, she told her mother
(Mother) that Garcia, Alicia’s uncle, had sexually abused her some
years earlier. Mother contacted the police, and they thereafter had
Alicia participate in a forensic interview. Based on Alicia’s
disclosures during the interview, Garcia was charged with one
count each of rape of a child, sodomy on a child, and aggravated
sexual abuse of a child—all first-degree felonies. Garcia entered
not-guilty pleas, and the case proceeded to trial.

Opening Statements

¶3 During its opening statement, the State discussed Alicia’s
forensic interview, explaining how such interviews are conducted
according to specific guidelines and procedures “to ensure that
they’re getting accurate information from the child and avoiding
suggestion in asking those questions.” The State then recounted
Garcia’s conduct that Alicia had disclosed.

¶4 Garcia’s trial counsel (Counsel) then gave his opening
statement. He told the jury that the alleged conduct did not occur
and that “it’s important to understand that there are usually two
sides to every story.” He explained that the defense would present
an expert who would testify “how memory is malleable,” “how

1. “In general we view the facts in the light most favorable to the
jury verdict and recite them accordingly. However, we recite trial
testimony to the extent it is necessary to fully understand the
issues raised on appeal.” State v. Pirela, 2003 UT App 39, n.1, 65
P.3d 307 (cleaned up), cert. denied, 72 P.3d 685 (Utah 2003).

2. We employ a pseudonym for the victim. Cf. Utah R. App. P.
24(d) (requiring in briefs that the “identity of minors . . . be
protected by use of descriptive terms, initials, or pseudonyms”).

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State v. Garcia

it’s not exact,” and “how it is basically created quite often by the
human brain,” and that this expert would help the jury “better
understand why there [are] two stories in this case.” Counsel also
said that the defense would present the testimony of several
family members who would provide “significant evidence about
how some of the claims that [Alicia] made just simply couldn’t
logically happen.”

The State’s Case

¶5 Alicia testified first, detailing the events of abuse. She
related that when she was seven years old, Garcia “would always
ask to pick [her] up” from choir. One day, after picking Alicia up
and driving to his home, Garcia took her into his room. “[H]e told
[Alicia] that [they] were going to play a new game.” She asked
him what it was called, and he told her it was called “lotion.”
Garcia “then took off [Alicia’s] clothes and laid [her] on the bed
and put a pillow over [her] face” and stuck “the tip of his penis in
and out of [her] until he [ejaculated]. Then he said that he had put
lotion on [her].” Alicia clarified that where Garcia put his penis
was “[i]nside of [her] vagina.”

¶6 Alicia testified that after this first incident, “the lotion
game” would “happen” “[a]lmost every time” that Garcia picked
her up from choir, which “was at least once or twice a week.”
Alicia testified that during these incidents Garcia would also
engage in “fingering,” which she defined as Garcia’s touching of
her clitoris with his hand.

¶7 Alicia also testified of an incident of oral sex that occurred
when she was sleeping over at Garcia’s house and watching a
movie: “[H]e told me to take my clothes off and lay on top of him.
And [then] he like positioned me to where my face was by his
penis and my vagina was by his face. And he went to go and try
to [perform oral sex on me], and I had closed my legs. And then
he had told me to [perform oral sex on him].” Alicia stated that

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when she awoke the next morning, there was “throw up all over
the bed because [she] had gotten sick.”

¶8 Alicia explained that Garcia had encouraged her to get
permission to come over for the sleepover: “[H]e had a pool pass
. . . and he told me I could go with him if I had done everything
he told me. And . . . he had said that he would take me to like
McDonald’s and like I’d get a happy meal and I’d take home the
toy, and stuff like that.” She indicated that these promised
activities would normally occur after the abuse incidents.

¶9 Alicia related two additional incidents that “made [her]
feel uncomfortable.” During the first incident, Garcia was helping
her down from a roof and, while doing so, “grab[bed] [her]
vagina.” The second incident occurred shortly after she turned
eight, when she was swimming with Garcia in a hotel pool while
waiting for other family members staying at the hotel to join them.
Alicia testified that Garcia “started touching [her] vagina and
went to go inside [her] . . . swimsuit bottoms” but she then swam
away from him.

¶10 Alicia then recounted that while Garcia was driving her
home after the swimming pool incident, he stopped at a church
and asked her if she wanted to play the lotion game again. Alicia
testified, “I told him no and that if he didn’t take me home, I’d
walk.” Alicia explained that, in response, Garcia said, “Well, if
you tell anyone about this, I’m never going to forgive you,” and,
“I’ll be so mad at you. I’ll never talk to you again. None of us will
ever talk to you again.”

¶11 The prosecutor asked Alicia about her eventual disclosure
of the abuse. Alicia explained that one day after school, when
“everything was just eating [her] up” and her past “was really
heavy on [her] mind,” she talked with her stepmother and was
able to finally disclose that Garcia had sexually abused her. Then
Alicia related that Mother, after also learning of the abuse, called
Garcia to confront him and that he denied the allegations,

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State v. Garcia

accusing Alicia of being a liar and saying that she was going to
ruin his life. Alicia said that it was “[r]eally nice” to be able to tell
someone about the abuse, but she also said it was “really scary”
because Garcia scared her. She said that she had not told anyone
earlier in order “to protect [her] family.”

¶12 Next to testify was a forensic interviewer with the
Children’s Justice Center (Expert). She testified as to how forensic
interviews with children are conducted and that they follow a
particular forensic interview technique (FIT) that addresses “what
types of questions work best with eliciting narrative from
children, and how to do so in a non-suggestive and non-leading
way.” She also identified reasons why it is “[e]xtremely common”
for children to delay disclosing sexual abuse. Expert then briefly
discussed Alicia’s forensic interview, which Expert had not
conducted but had reviewed, and identified the reasons Alicia
had given in the interview for delaying her disclosure of abuse:
“that she sometimes was bribed with a pool pass”; “[t]hat
sometimes she would receive McDonald’s”; and “that she was
really, really scared of [Garcia],” who had told her “if she told
somebody about what had happened, that she would be in
trouble.” Expert testified that these reasons were “consistent with
known reasons for delayed disclosures in sex abuse cases.”

¶13 The State also presented testimony from a detective who
was assigned to follow up on Alicia’s allegations (Detective). He
explained that he had arranged for Alicia’s forensic interview and
that he had later received a copy of the interview. When asked
whether things pertinent to his investigation were disclosed
during Alicia’s interview, Detective related the allegations Alicia
had made in the interview, including a description of the lotion
game, the oral sex incident, and the incident in the swimming
pool. Detective also related that he had spoken with Alicia and
asked her why she had delayed reporting the abuse and that she
had said “she didn’t even want to say anything” but that “she was
talking to her stepmom and her stepmom elicited it out of her.”

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State v. Garcia

¶14 Mother also testified at trial. She explained that Alicia
eventually disclosed the abuse to her and shared with her details
regarding the abuse. Mother recounted what Alicia told her about
the lotion game and its surrounding circumstances as well as the
incident in the swimming pool. Mother also explained that Alicia
said the abuse happened when she was seven years old and lasted
for “only a year” “[b]ecause [she] was baptized at eight and [she]
started knowing that it was wrong.” Mother then recounted the
various actions she had taken in response to Alicia’s disclosure,
including reporting it to police and calling Garcia to confront him
about the allegations. Mother said that, “looking back,” she now
realized that Alicia began struggling in various respects during
the time of the alleged abuse, suffering frequent stomachaches
and headaches, having nightmares, performing poorly in school,
acting out with unexplained anger, acting more withdrawn, and
starting to bite her nails and pick at her eyebrows.

¶15 Finally, the State called several other family members to
support its case. Alicia’s stepmother testified regarding Alicia’s
initial disclosure and how she urged Alicia to tell her parents what
had happened. She also confirmed that Alicia had spent time with
Garcia during the time frame of the alleged abuse, and she
testified that “[a]s [Alicia] got older, she didn’t want to go over [to
Garcia’s house] as much” and that during the period of alleged
abuse, Alicia became angry, more defiant, and less social.

¶16 Alicia’s father then testified, sharing that he remembered
“a certain summer” when Alicia “started hanging out with
[Garcia] a lot more than normal” and the two “would go to public
pools a lot more.” He also related that in the time after the alleged
abuse, Alicia had begun struggling in school and had become
more distant and less focused.

¶17 Alicia’s grandfather also testified, recounting that Garcia
had picked Alicia up from school a few times and that Garcia took
Alicia swimming a couple of those times. However, the

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State v. Garcia

grandfather had not noticed changes in Alicia’s behavior during
the time frame of the alleged abuse.

¶18 Then Alicia’s grandmother testified. She also remembered
that Garcia would sometimes pick Alicia up from school and
would sometimes take her swimming. The grandmother
remembered Alicia sleeping over at Garcia’s house and that Alicia
had thrown up during one of those sleepovers. The grandmother
further testified that the relationship between Garcia and Alicia
soured at some point when Alicia was “[s]even or eight maybe.”
The grandmother explained that initially “their interactions were
friendly” and “[t]hey seemed to really like each other” but that
she later noticed that “something was different, something was
strange” between them and “that they didn’t speak to one
another, that they didn’t say hello to one another.” The
grandmother said she asked them what was wrong but “couldn’t
get either of them to give [her] a straight answer.” The
grandmother also testified that when discussing Alicia’s
quinceañera, 3 Alicia stated, “If [Garcia] shows up, I’m calling the
police,” but that Alicia then explained she was mad at Garcia for
how he treated her aunt.

The Defense

¶19 The defense then presented its case. Counsel started by
calling a clinical psychologist “to educate . . . the jury about the
nature of human memory,” specifically about how “post-event
information . . . can interfere with the actual memory of the
original event” and create “false memories.” The psychologist
explained an experiment showing that when subjects were

3. A quinceañera is “a celebration of a girl’s fifteenth birthday that
is traditionally observed in Latin American cultures to mark her
transition to adulthood.” Quinceañera, Merriam-Webster,
https://www.merriam-webster.com/dictionary/quinceañera
[https://perma.cc/LH2H-M5FW].

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State v. Garcia

questioned, their “memory depended on the way questions were
worded.” He continued, “We’re all suggestible. And the power of
suggestion can shape, influence, or even at times implant a false
memory or false suggestion by other people. So in other words,
by suggestion a memory can be created or get incorporated into
memory whether it happened or not.” The psychologist also
referenced several ways in which “children are vulnerable to
outside influences that can lead to fabricated testimony,”
including that “children incorporate aspects of interviewer
questions into their answers in an attempt to tell the interviewer
what the child believes is being sought,” that “[r]epeated
questioning of children causes them to change their answers,”
that “[c]hildren are also susceptible to leading and suggestive
questions,” and that “[p]ositive reinforcement by the interviewer
can taint child testimony.”

¶20 On cross-examination, the State asked the psychologist
about FIT protocols for conducting child interviews, and the
psychologist acknowledged that those standards were developed
in response to some of the memory issues he had referenced and
that they were developed “[t]o reduce suggestibility in the
interview process.” But on re-direct examination, the psychologist
agreed that “even if [interviewers] used the FIT interview
method,” there is “still a possibility of contamination” of a child’s
memories.

¶21 The defense then presented the testimony of several family
members who cast doubt on various aspects of Alicia’s
allegations. Garcia’s sister testified that Garcia and Alicia were
never alone together in the hotel swimming pool. Garcia’s son
testified that he remembered Alicia sleeping over at their house
only twice and that she rarely came over. Garcia’s other son
testified that he could remember Alicia sleeping over only once
and that she slept with Garcia’s wife in the living room. Garcia’s
wife confirmed that she slept with Alicia in the living room when
Alicia slept over, and she stated that Alicia was always in her sight

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State v. Garcia

on those occasions. Garcia’s wife also remembered that during
one sleepover, Alicia “got ill” and “threw up on the couch” after
being “up until like midnight snacking on stuff.”

The State’s Rebuttal

¶22 The State recalled Expert as a rebuttal witness, explaining
that it was doing so “because there’s been a lot of discussion about
suggestibility from the defense’s [psychologist witness].” The
State had asked Expert to analyze Alicia’s forensic interview, and
it asked her questions regarding the results of that analysis.
Expert explained to the jury the various types of questions a
forensic interviewer might ask and also the two types of memory
that questions can “tap into”: recall memory and recognition
memory. She explained, “[W]e know that by using open-ended
questions, and avoiding forced choice questions, or the suggestive
or leading, we tap into recall memory. And recall memory is
typically more accurate.” Expert testified that of the 122 questions
from the substantive phase of Alicia’s forensic interview, “107
questions tapped into recall memory, while only 15 questions
tapped into recognition memory.” She also referenced studies
showing “that by the age of 10 . . . children are no more suggestible
than adults.”

Jury Instructions and Closing Arguments

¶23 The district court then read its final instructions to the jury.
These included instructions setting forth the elements for each of
the charged crimes. However, those instructions did not tie
specific incidents of alleged criminal conduct to specific charges,
nor did any jury instruction inform the jury that it had to agree as
to which alleged act satisfied the elements of each of the crimes
charged.

¶24 After the court read the jury instructions, the State made its
closing argument. The State recapped the evidence, mentioning
the lotion game incidents, the oral sex incident, the time Garcia

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State v. Garcia

helped Alicia down from the roof, and the incident in the hotel
pool. The State next addressed several of the jury instructions. In
discussing the three elements instructions, the State argued that
the rape elements had been met by the lotion game incidents, the
sodomy elements had been met by the oral sex incident, and the
aggravated sexual abuse elements had been met by the “instances
. . . while playing the lotion game” when Garcia would touch her
clitoris.

¶25 Counsel then delivered his closing argument. He reminded
the jury of the presumption of innocence and the beyond a
reasonable doubt standard, and he highlighted several
problematic issues with the State’s case: that memories “can be
manufactured in certain situations,” that the case was ten years
old, that there was no physical evidence against Garcia, and that
there was conflict between the testimony of various witnesses.

¶26 The jury found Garcia guilty on all three charges. Garcia
now appeals.

ISSUES AND STANDARD OF REVIEW

¶27 Garcia asserts three claims of ineffective assistance of
counsel. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of law.”
Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (cleaned
up).

ANALYSIS

¶28 A criminal defendant is guaranteed the effective assistance
of counsel under the Sixth Amendment to the United States
Constitution. See U.S. Const. amend. VI (“In all criminal

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State v. Garcia

prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.”); McMann v. Richardson,
397 U.S. 759, 771 n.14 (1970) (“It has long been recognized that the
right to counsel is the right to the effective assistance of counsel.”).
To secure reversal of a conviction under a claim of ineffective
assistance of counsel, a defendant must satisfy the two-part test
set forth in Strickland v. Washington, 466 U.S. 668 (1984).

¶29 “First, the defendant must show that counsel’s
performance was deficient.” Id. at 687. When applying this prong
of the test, the reviewing court “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. at
689 (cleaned up).

¶30 “Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. at 687. In other words,
“[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.

¶31 “Unless a defendant makes both showings, it cannot be
said that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.” Id. at 687.
Moreover, because both showings are required, we need not
“address both components of the [ineffective assistance] inquiry
if the defendant makes an insufficient showing on one.” Id. at 697.

I. Unanimity Instruction

¶32 Garcia first argues that Counsel rendered ineffective
assistance by not seeking a unanimity instruction on the
aggravated sexual abuse charge. While this may have amounted

20210381-CA 11 2024 UT App 38
State v. Garcia

to deficient performance, we do not agree that it was prejudicial
to Garcia under the facts of this case.

¶33 For a person to be convicted of aggravated sexual abuse of
a child, the State must prove that under circumstances not
amounting to rape, object rape, or sodomy on a child, or an
attempt to commit one of those crimes, the person “touche[d] the
anus, buttocks, pubic area, or genitalia of any child”; “touche[d]
the breast of a female child”; or “otherwise [took] indecent
liberties with a child” with the intent to “cause substantial
emotional or bodily pain to any individual” or to “arouse or
gratify the sexual desire of any individual.” Utah Code § 76-5-
404.1(2)(a). 4 The charges against Garcia included only one count
of aggravated sexual abuse, yet evidence was presented of three
different incidents, or types of incidents, that could have satisfied
this charge: (1) Garcia’s touching of Alicia’s clitoris with his hand
during the lotion game, (2) his touching of her vagina when he
helped her off a roof, and (3) his touching of her vagina in the
hotel swimming pool.

¶34 When, as here, a jury hears evidence of “more instances of
alleged abuse than the State [has] charged,” the unanimity
requirement “is not met if [the] jury unanimously finds only that
a defendant is guilty of a crime.” State v. Baugh, 2022 UT App 3,
¶¶ 14, 16, 504 P.3d 171 (cleaned up), cert. granted, 525 P.3d 1257
(Utah July 11, 2022) (No. 20220272). Instead, “the jury must agree

4. The aggravating factor for this charge was met in this case by
the particular familial relationship between Alicia and Garcia. See
Utah Code § 76-5-404.3(2)(a)(viii) (“An actor commits aggravated
sexual abuse of a child if, in conjunction with the offense
described in Subsection 76-5-404.1(2)(a), . . . the actor occupied a
position of special trust in relation to the child . . . .”); id. § 76-5-
404.1(1)(a)(iv)(U) (defining a person in a “[p]osition of special
trust” to include “an uncle”). Garcia does not challenge this aspect
of his conviction.

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State v. Garcia

on a specific criminal act for each charge in order to convict.” Id.
¶ 14 (cleaned up). Thus, the purpose of a unanimity instruction is
to convey to the jury the requirement that it “be unanimous as to
the specific acts supporting each count of conviction.” Id. ¶ 15
(cleaned up). And when the State does not identify for the jury
“which act supported each charge, the jury should [be] instructed
to agree on a specific criminal act for each charge in order to
convict.” State v. Alires, 2019 UT App 206, ¶ 22, 455 P.3d 636, cert.
denied, 466 P.3d 1076 (Utah 2020).

¶35 Although during closing arguments the State linked the
aggravated sexual abuse charge to Garcia’s touching of Alicia’s
clitoris with his hand during the lotion game, the State did not
consistently make that link during trial. And because that was just
one of three incidents (or types of incidents) of aggravated sexual
abuse for which evidence was presented at trial, Counsel’s failure
to request a unanimity instruction arguably amounted to deficient
performance. See id. ¶¶ 23, 25 (recognizing that “[w]here neither
the charges nor the elements instructions link each count to a
particular act, instructing the jury that it must agree as to which
criminal acts occurred is critical to ensuring unanimity on each
element of each crime,” and determining that under the facts of
the case the “failure to request such an instruction fell below an
objective standard of reasonableness”). Nevertheless, we are not
convinced that under the circumstances of this case any such
deficient performance was prejudicial to Garcia.

¶36 The jury convicted Garcia on the charge of rape of a child.
The only activity supporting that charge—sexual intercourse
during the lotion game—allegedly happened in conjunction with
conduct that would have also supported the aggravated sexual
abuse charge—Garcia’s touching of Alicia’s clitoris with his hand
during the lotion game. We find it highly unlikely that the jury
members who unanimously convicted Garcia of raping Alicia
would not also have convicted him of aggravated sexual abuse
based on the qualifying conduct that Alicia said occurred at the

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same time as the rape. That is, we are incredulous that the jury
that believed Alicia’s account of Garcia putting the tip of his penis
into her vagina during the lotion game incidents would not have
also believed her assertion that Garcia put his fingers on top of her
clitoris during the same incidents (or that it would not have
believed that such touching was for purposes of sexual
gratification). Therefore, we do not believe there is a reasonable
probability that had Counsel requested a specific unanimity
instruction, the outcome on this charge would have been any
more favorable to Garcia. Cf. State v. Naranjo, 2023 UT App 131,
¶¶ 48–50, 538 P.3d 1278 (concluding, in a case where there were
four alleged instances of a defendant’s failure to stop at the
command of a police officer, that failure to request a specific
unanimity instruction was harmless because there was “no
reasonable probability that members of the jury” did not agree
that, at a minimum, the defendant must have seen the officer’s
“flashing lightbar” before “proceed[ing] to drive away”). Thus,
Garcia has not shown prejudice, and this ineffective assistance
claim fails.

II. Detective’s and Mother’s Testimony

¶37 Garcia next asserts that he received ineffective assistance
when Counsel failed to object to Detective’s and Mother’s
testimony recounting Alicia’s out-of-court statements to them
about the incidents of abuse. Garcia contends that competent
counsel would have concluded that this testimony was
inadmissible hearsay or inadmissible under rule 403 of the Utah
Rules of Evidence and, therefore, that competent counsel would
have objected to it. See generally Utah R. Evid. 801(c) (defining the
term “hearsay”); id. R. 802 (“Hearsay is not admissible except as
provided by law or by these rules.”); id. R. 403 (“The court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”).

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State v. Garcia

We conclude that even if Counsel’s failure to object to this
testimony amounted to deficient performance, it did not prejudice
Garcia.

¶38 “[W]here testimony is merely cumulative, we are
disinclined to find prejudice even when the testimony was
improperly admitted.” State v. Jones, 2020 UT App 31, ¶ 35, 462
P.3d 372; see also State v. Thomas, 777 P.2d 445, 450 (Utah 1989)
(“We conclude that the trial court erred in allowing the officer to
testify to the full content of the interview. In view of the fact,
however, that the officer’s testimony was merely cumulative to
that already testified to by the victim, the error was harmless
. . . .”); State v. Soto, 2022 UT App 107, ¶ 27, 518 P.3d 157 (“[T]here
is no reasonable probability that the detective’s repetition of [the
victim’s] statements altered the outcome because [the victim]
testified at trial and recounted the same facts.”), cert. denied, 526
P.3d 827 (Utah 2022). Garcia concedes that Detective’s and
Mother’s recitations of Alicia’s accusations against Garcia were
cumulative of Alicia’s own testimony. And we agree with the
State that “Garcia makes no showing that the jury would have
acquitted him on any count if only it had not heard the
unsurprising news that [Alicia] disclosed these allegations to
family members and the authorities before trial.”

¶39 Citing cases from other states, Garcia asserts that the
repetition through inadmissible hearsay of a properly admitted
witness account “‘unfairly enhance[s] the credibility of a witness’
because a ‘jury is more apt to believe something that is repeated’”
(quoting People v. Terry, 728 N.E.2d 669, 678 (Ill. App. Ct. 2000))
and that “[w]hen the State’s case depends virtually exclusively on
the credibility of a witness, as in this case, the bolstering of the
witness’s credibility by prior consistent statements cannot be
harmless error” (quoting McCray v. State, 716 A.2d 302, 308 (Md.
Ct. Spec. App. 1998)). We acknowledge that some jurisdictions
take a somewhat different view than we have of the potentially
prejudicial effect of improperly admitted cumulative evidence.

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State v. Garcia

But our disinclination to find prejudice when improperly
admitted testimony is merely cumulative of other properly
admitted evidence is longstanding, see, e.g., State v. Collier, 736
P.2d 231, 233 (Utah 1987) (per curiam) (holding that there was no
prejudice where improper testimony “was only cumulative of the
evidence and testimony” of other witnesses), and, we believe,
well founded. Garcia’s citation of cases from other states does not
persuade us otherwise.

¶40 Garcia also emphasizes that for the wrongful admission of
cumulative testimony to not be prejudicial, the challenged
testimony must be “cumulative of other properly admitted
evidence,” Jones, 2020 UT App 31, ¶ 35 (emphasis added), and he
argues that because Alicia did not testify that she told Mother and
Detective about the alleged abuse, Mother’s and Detective’s
statements to the jury that Alicia had spoken to them about the
abuse were not cumulative of other properly admitted evidence.
In other words, Garcia attempts to draw a meaningful distinction
for ineffective assistance purposes between Mother’s and
Detective’s recitations to the jury of the fact that Alicia had spoken
to them about the abuse and Mother’s and Detective’s recitations
to the jury of what Alicia actually said about the abuse itself. We
are not persuaded that this distinction makes any difference.

¶41 For one thing, reasonable defense counsel could have
concluded that Detective’s and Mother’s statements that Alicia
spoke to them about the abuse were not hearsay because they
were not offered for their truth. Instead, reasonable defense
counsel could have concluded that those statements were offered
only to explain why Mother contacted the police and why
Detective conducted an investigation. Moreover, even were we to
conclude that Detective’s and Mother’s statements of the mere
fact that Alicia disclosed the abuse to them were hearsay, we
could not say that such testimony was prejudicial to Garcia. The
fact that Alicia, a minor, had disclosed alleged abuse to a family
member and, subsequently, to law enforcement is an essentially

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State v. Garcia

inescapable inference that anyone would draw from the simple
existence of the criminal case itself. Thus, the portion of
Detective’s and Mother’s testimony that may not have been
technically cumulative of other properly admitted evidence
created only the slightest potential for prejudice. We are not
convinced that without such testimony there is a reasonable
probability that the result of the proceeding would have been any
different. Therefore, Garcia has not shown prejudice, and this
ineffective assistance claim fails.

III. Expert’s Testimony

¶42 Finally, Garcia asserts that Counsel rendered ineffective
assistance in failing to object to two aspects of Expert’s testimony:
(1) her testimony identifying the reasons Alicia gave in her
forensic interview for having delayed her disclosure of the abuse
and (2) her testimony regarding the interview techniques
employed in the forensic interview. We do not agree that failure
to object to these lines of questioning constituted deficient
performance.

A. Reasons for Delayed Disclosure

¶43 Garcia asserts that Expert’s testimony relating statements
made by Alicia during her forensic interview was hearsay that did
not fall under any hearsay exception and that competent counsel
would have objected to this testimony. However, even if Garcia is
correct that Expert’s statements relating Alicia’s reasons for
delaying her disclosure could have supported a successful
hearsay objection, Counsel’s failure to object still did not amount
to deficient performance. A competent attorney could have
reasonably concluded that any such objection, even if sustained,
would have been an ultimately futile attempt to keep Alicia’s
reasons for delaying her disclosure from being presented to the
jury. Had the objection been made and sustained, the State could
have simply re-called Alicia to the stand and questioned her
directly as to the reasons for her delayed disclosure. And

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State v. Garcia

competent counsel could reasonably assume that Alicia’s answers
to such questioning would be largely similar to the answers she
previously provided in her forensic interview. When faced with
choosing between those reasons coming in via Expert or via
Alicia, a competent attorney could reasonably opt to have those
reasons come in through the clinical statements of a professional
rather than through the likely more emotional explanations of an
alleged child victim.

B. Interview Techniques

¶44 Finally, Garcia points to Expert’s rebuttal testimony
regarding recall memory and argues that it was deficient
performance for Counsel not to object to this testimony because
such testimony “improperly invited the jury to draw inferences
about [Alicia’s] credibility based upon Expert’s experience.”
Garcia is certainly correct that “a witness may not offer a direct
opinion of another witness’s truthfulness on a particular
occasion.” State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 984
(cleaned up). He is also correct that Expert’s testimony would
have been improper if it had “invit[ed] the jury to draw inferences
about [Alicia’s] credibility based upon Expert’s past experience
with other cases and studies.” State v. Burnett, 2018 UT App 80,
¶ 36, 427 P.3d 288 (cleaned up), cert. denied, 432 P.3d 1232 (Utah
2018). But we do not agree that Expert’s rebuttal testimony clearly
violated these rules such that it was deficient performance for
Counsel not to have objected to it.

¶45 As Garcia recognizes, Expert’s rebuttal testimony did not
evaluate any of Alicia’s responses to the forensic interview
questions but, rather, evaluated the types of questions that were
asked during the interview. The focus was on what types of
questions were asked and what type of memory each kind of
question “tapped into.” And while Expert did testify that recall
memory is “more accurate” than recognition memory and that the
vast majority of the questions in Alicia’s forensic interview were

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State v. Garcia

of the type that “tapped into recall memory,” the inferred message
was that the recall-oriented questions were less likely to influence
or distort Alicia’s memories, not that Alicia’s answers necessarily
relayed those memories accurately or truthfully. Competent
counsel could have therefore concluded that this testimony did
not amount to a direct opinion on Alicia’s truthfulness and,
accordingly, that an objection would have been futile.

¶46 In any event, the defense clearly opened the door to
Expert’s rebuttal testimony. “The idea of ‘opening the door’ is an
evidentiary principle that allows the admission of otherwise
inadmissible testimony to qualify, explain, or limit testimony or
evidence previously admitted. This concept is based on
considerations of fairness and the truth-seeking function of a
trial.” UMIA Ins. v. Saltz, 2022 UT 21, ¶ 63 n.10, 515 P.3d 406
(cleaned up). Here, the defense’s witness had raised and
discussed at length the potential creation of false memories and
had specifically asserted that there was “a possibility of
contamination” of Alicia’s memory through the forensic
interview questioning “even if [interviewers] used the FIT
interview method.” This opened the door for the State to present
Expert’s testimony in rebuttal focused on the type of questions
used in Alicia’s interview and the care taken to try to access
accurate, uncontaminated memories.

¶47 Thus, because Expert’s rebuttal testimony did not directly
opine on the truthfulness of Alicia’s interview responses, and
because the defense had opened the door to rebuttal testimony
about the interview’s possible “contamination” of Alicia’s
responses, competent counsel could have reasonably determined
that the rebuttal testimony was appropriate. Therefore, it was not
deficient performance for Counsel not to have objected to this
testimony, and Garcia’s related ineffective assistance claim fails.

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State v. Garcia

CONCLUSION

¶48 Even assuming deficient performance regarding the lack of
a unanimity instruction and the admission of Detective’s and
Mother’s challenged testimony, Garcia has failed to show that he
was prejudiced by those alleged failures. And as to Garcia’s
arguments regarding components of Expert’s testimony, he has
not established that Counsel preformed deficiently. Accordingly,
each of Garcia’s claims of ineffective assistance of counsel fail, and
we affirm.

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