State v. Sombra-Delgado

2025 UT App 83

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MOISES RAMON SOMBRA-DELGADO,
Appellant.

Opinion
No. 20220673-CA
Filed May 30, 2025

Third District Court, Salt Lake Department
The Honorable Linda M. Jones
No. 181905951

Sarah J. Carlquist, Attorney for Appellant
Derek E. Brown and Tera J. Peterson,
Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1 Moises Ramon Sombra-Delgado was charged with two
counts of aggravated sexual abuse of a child and one count of
sexual abuse of a child after his niece’s parents reported to the
police that she had been abused by Sombra-Delgado several years
earlier. A jury acquitted Sombra-Delgado of the sexual abuse
charge but convicted him of both counts of aggravated sexual
abuse. Sombra-Delgado appeals his convictions, arguing that his
trial counsel (Counsel) was ineffective for failing to object to
testimony from the State’s expert witness that he asserts was
inadmissible as anecdotal statistical evidence. Because Sombra-
Delgado has not established that Counsel provided ineffective
assistance, we affirm his convictions.
State v. Sombra-Delgado

BACKGROUND 1

The Abuse

¶2 Maggie 2 lived with her family in a duplex from when she
was in kindergarten through sixth grade. When they were living
in the duplex, Maggie’s paternal aunt (Aunt) and her husband,
Sombra-Delgado, moved into the other half of the duplex. At that
time, Sombra-Delgado and Aunt had no children together, but
Sombra-Delgado had two children from a previous relationship
who would occasionally stay with Aunt and Sombra-Delgado.
Maggie spent a lot of time with Aunt and would sleep over at
Aunt’s side of the duplex “all the time.” When she spent the night
at Aunt’s, Maggie typically slept in “the girl’s room,” which was
one of two bedrooms downstairs. The girl’s room was painted
pink and had two beds, one raised like a bunk bed and one regular
bed with a canopy over it.

¶3 One night, when Maggie was approximately nine or ten
years old and sleeping in the canopy bed in the girl’s room, she
woke up to Sombra-Delgado’s hand “under [her] pants and [her]
underwear.” Sombra-Delgado was “rubbing [her] vagina,” and
he also put a finger inside her vagina. He asked her “if it feels
good” and told her not to tell Aunt what happened. Maggie was
“shocked and confused” as to what was happening and did not
say anything to Sombra-Delgado because she “couldn’t react”
and “felt like [she] was just frozen.” Maggie did not report the
incident to anyone at the time.

1. “On appeal from a jury verdict, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, presenting conflicting evidence only as necessary to
understand issues raised on appeal.” State v. Rogers, 2020 UT App
78, n.2, 467 P.3d 880 (cleaned up).

2. A pseudonym.

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¶4 A few weeks later, Maggie and a friend (Friend) were
sleeping over at Aunt’s house in the girl’s room. Maggie was
sleeping in the canopy bed and again woke up to Sombra-
Delgado’s hand “under [her] pants and underwear, rubbing [her]
vagina the same way,” and he put his finger inside her vagina.
Maggie again froze while this was happening and did not tell
Friend, Aunt, or anyone else about the incident at the time.

¶5 Right before Maggie started fifth grade, Aunt gave birth to
her and Sombra-Delgado’s son. Several weeks after the birth,
Sombra-Delgado left Aunt and moved out of the duplex.

¶6 Maggie did not tell anyone about the abuse until she was
fifteen years old. She first disclosed the abuse to her father
(Father) while at her paternal grandmother’s (Grandmother)
house after he defended women speaking up as part of the
#MeToo movement to Grandmother, who thought the women
were all lying. Father’s defense of the women encouraged Maggie
to tell Father about the abuse. After Maggie disclosed the abuse to
Father, they immediately went home and her parents called the
police. A police officer interviewed Maggie at her house later that
evening to “get an initial report of some basic information[] of
what occurred and what needs to be done.”

¶7 A few months later, a detective interviewed Maggie at the
Children’s Justice Center (the CJC). After the interview, the State
charged Sombra-Delgado with two counts of aggravated sexual
abuse of a child for the two bedroom incidents and one count of
sexual abuse of a child related to a different incident involving
Maggie. 3

The Pretrial Proceedings

¶8 Prior to trial, the State gave notice that it intended to call an
expert witness (Expert) to testify about “child abuse

3. Because the jury acquitted Sombra-Delgado of sexual abuse of
a child, we do not include any facts related to that charge.

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State v. Sombra-Delgado

accommodation, forensic interviews, and counter-intuitive
behavior in children.” Counsel moved to exclude Expert, arguing
that Expert’s testimony was inadmissible because it would rely on
prohibited anecdotal probabilities and improperly bolster
Maggie’s testimony. However, Counsel later withdrew the
motion after reaching an agreement with the State that limited
Expert’s testimony. As part of the agreement, the State had
“outlined . . . the nature of the questions” and “gave examples of
specific questions” that it was planning to ask Expert. Counsel
agreed not to object unless the State asked questions outside of
those identified in the agreement.

¶9 Counsel also moved under rule 412 of the Utah Rules of
Evidence to admit evidence that Maggie had reported allegations
of sexual abuse by a different individual, her teacher, to law
enforcement several years before she disclosed the abuse by
Sombra-Delgado. When Maggie was “around 11 years old,” she
was interviewed at the CJC (the 2014 CJC Interview) because a
teacher had allegedly “groped [her] and a few other students.”
During the 2014 CJC Interview, Maggie disclosed inappropriate
touching by her teacher but did not disclose any abuse by Sombra-
Delgado, even though the interviewer asked her at the end of the
interview if there was “anything else that [he] need[ed] to know.”
Counsel sought to admit evidence from the 2014 CJC Interview to
support the defense theory that Maggie “had [the] opportunity to
disclose the allegations years ago” but did not disclose them
because “she had not decided to fabricate the allegations” until
later when Sombra-Delgado was in the middle of a child custody
battle with Aunt; and to impeach Maggie’s claim that “she finally
felt comfortable enough to come forward” after seeing Father’s
reaction to the #MeToo movement.

¶10 The State argued that evidence from the 2014 CJC
Interview should not be admitted on several grounds: (1) it was
irrelevant, (2) it did not make any fact more or less probable
because “the interview and conduct alleged in” the 2014 CJC
Interview were “very different than the conduct that [was]

20220673-CA 4 2025 UT App 83
State v. Sombra-Delgado

alleged” in this case, and (3) it may not have occurred to Maggie
to “disclose the abuse” by Sombra-Delgado at that time. The
district court ultimately granted Counsel’s rule 412 motion and
allowed Counsel to introduce Maggie’s statements from the 2014
CJC Interview at trial.

The Jury Trial

¶11 The case proceeded to a three-day jury trial. The State
called seven witnesses. Maggie testified about the abuse by
Sombra-Delgado as described above. She also testified during
cross-examination that she believed Sombra-Delgado had
abandoned Aunt after she had their baby and that it upset her.
Maggie’s parents also testified, confirming that Maggie often slept
over at Aunt’s house and that she disclosed the abuse to them
after the discussion of the #MeToo movement at Grandmother’s
house. Her parents also testified that Maggie became a “very
challenging” and “very angry” child when she was nine or ten
and stopped going over to Aunt’s house. But once she disclosed
Sombra-Delgado’s abuse, her behavior and attitude immediately
“began to improve.”

¶12 The State also called the police lieutenant (Lieutenant) who
conducted the 2014 CJC Interview. Lieutenant testified that at the
end of the interview he asked Maggie if there was “anything else
that [he] need[ed] to know” or “she needed to tell [him],” but he
did not specifically ask her if anything had happened outside of
school. The State next called the officer who interviewed Maggie
at her home and the detective who investigated where Sombra-
Delgado lived so he could be arrested after charges were filed.

¶13 The State also called Expert to testify. Expert explained
that, as a blind expert, he was not familiar with the case or parties,
had not read any of the reports, and was going to be testifying
generally about forensic interviews and the Forensic Interview

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State v. Sombra-Delgado

Training (FIT) guideline. 4 Expert described the FIT guideline as “a
flexible guideline” “that allows the interviewer to ask some
questions verbatim” but also “provides questions that are very
flexible” to “follow the child’s lead through their disclosure.” He
explained that the sections of a FIT interview are ground rules,
rapport building, episodic memory practice, transition,
“exploring the allegation,” “separating incidents,” then follow-up
after a scheduled break. During the follow-up section, the
interviewer asks the child if something similar has ever
“happened with them with someone else.” After the follow-up
section, there is a section called “what happened after,” followed
by a closing section where the interviewer thanks the child and
asks the child “if there’s anything else that the child thinks they
should know.”

¶14 The State asked Expert whether it was possible that a child
abused by multiple people “would disclose some abuse and not
other abuse?” Expert stated it was possible but also testified about
interviews where children have disclosed abuse from people not
previously discussed in the interview or mentioned that they
were abused by another person but declined to talk in detail about
it.

¶15 On cross-examination, Expert agreed with Counsel that
“sometimes children don’t disclose because there’s actually
nothing for them to disclose.” Counsel then asked a string of
hypothetical questions about delayed disclosure:

Q. Sometimes it could be a situation where a parent
or guardian or someone has gotten a child to say

4. Expert testified that FIT interviews are “a developmentally
sound, developmentally sensitive and legally sound method of
gathering factual information regarding allegations of abuse . . .
conducted by a . . . competently trained neutral professional
utilizing research and practice, [and] uniform techniques as part
of a larger investigative process.”

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State v. Sombra-Delgado

things or they believe will say things for whatever
motive or reason, whether it’s a divorce, custody
battle, whatever it be, and that person hopes that the
child will disclose something and the child doesn’t.

A. I would say that’s very rare, but it has occurred.

....

Q. Sometimes a child might have a delayed
disclosure because they made the disclosure in
retaliation against someone to correct a perceived
wrong? Is that fair?

A. Well, again, I think I would say that that’s rare in
my experience, but can—

Q. Can happen. Sometimes they might make a
delayed disclosure because they want to belong to a
certain group, they want a feeling of belonging, of
an acceptance into a group of people who have been
victimized. Is that fair?

A. Again, I would say rare but could occur.

Q. Okay. Sometimes they do it to get attention from
loved ones such as parents or siblings or a boyfriend
or a girlfriend. Rare, but it happens?

A. In my experience very rare, but it can happen.

Counsel also elicited testimony from Expert that “[f]alse
allegations do happen.”

¶16 In the State’s closing, the prosecutor walked through the
evidence of the allegations and emphasized the behavioral issues
that Maggie had starting when she was nine or ten. The State also

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emphasized that Maggie’s reasons for not disclosing the abuse—
“embarrassment and . . . shame [and] not knowing what to do”—
aligned with Expert’s testimony about some of the reasons
children may delay disclosure of abuse.

¶17 Counsel argued in his closing that Maggie’s account of the
abuse had “[m]assive inconsistencies” and no corroboration.
Counsel argued that Maggie fabricated the allegations because
she had the opportunity to disclose the abuse years earlier during
the 2014 CJC Interview and that she wanted Father’s passion that
he expressed to Grandmother directed toward her. Counsel also
emphasized Expert’s testimony that not all abuse allegations are
true.

¶18 After deliberation, the jury convicted Sombra-Delgado of
two counts of aggravated sexual abuse of a child but acquitted
him on the count of sexual abuse of a child. See supra note 3. Later,
the court sentenced Sombra-Delgado to two concurrent sentences
of ten years to life.

ISSUE AND STANDARD OF REVIEW

¶19 Sombra-Delgado now appeals his convictions, and he
argues that Counsel provided ineffective assistance by failing to
object to specific portions of Expert’s testimony. “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.” State v. Popp, 2019 UT
App 173, ¶ 19, 453 P.3d 657 (cleaned up).

ANALYSIS

¶20 The Sixth Amendment to the United States Constitution
affords criminal defendants “the right to the effective assistance
of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)

20220673-CA 8 2025 UT App 83
State v. Sombra-Delgado

(cleaned up). To demonstrate Counsel provided ineffective
assistance, Sombra-Delgado must show “(1) that his counsel’s
performance was objectively deficient, and (2) that the deficient
performance prejudiced the defense.” State v. Marquina, 2018 UT
App 219, ¶ 36, 437 P.3d 628 (cleaned up), aff’d, 2020 UT 66, 478
P.3d 37; see also Strickland, 466 U.S. at 687 (articulating the two-
pronged test for evaluating claims of ineffective assistance of
counsel). “Both elements must be present” to demonstrate
ineffective assistance, and “if either is lacking, the claim fails and
the court need not address the other.” State v. Powell, 2020 UT App
63, ¶ 19, 463 P.3d 705 (cleaned up). Because Sombra-Delgado has
not demonstrated Counsel’s performance was deficient, we need
not address whether he has demonstrated prejudice. See State v.
Ray, 2020 UT 12, ¶ 45, 469 P.3d 871.

¶21 For Sombra-Delgado to establish deficient performance he
“must show that trial counsel’s representation fell below an
objective standard of reasonableness when measured against
prevailing professional norms.” State v. Weaver, 2023 UT App 154,
¶ 20, 541 P.3d 958 (cleaned up). “Our scrutiny of counsel’s
performance must be highly deferential, and we must consider
whether counsel’s assistance was reasonable considering all the
circumstances, beginning with the assumption that the
challenged action might be considered sound trial strategy.” State
v. Herrera, 2025 UT App 1, ¶ 17, 563 P.3d 416 (cleaned up).

¶22 Sombra-Delgado contends Counsel was ineffective for
failing to object to what he asserts was inadmissible anecdotal
statistical evidence regarding delayed disclosures. Namely,
Sombra-Delgado argues Counsel was ineffective when he failed
to object to four of Expert’s answers given in response to questions
Counsel asked on cross-examination. The first question asked by
Counsel that Sombra-Delgado asserts elicited an inadmissible
response was a long, compound question at the beginning of
cross-examination:

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State v. Sombra-Delgado

Sometimes it could be a situation where a parent or
guardian or someone has gotten a child to say things
or they believe will say things for whatever motive
or reason, whether it’s a divorce, custody battle,
whatever it be, and that person hopes that the child
will disclose something and the child doesn’t.

Expert responded, “I would say that’s very rare, but it has
occurred.”

¶23 Later during the cross-examination, Counsel asked Expert
three questions in succession, and Sombra-Delgado argues the
answers to all three questions contained inadmissible, anecdotal
statistical evidence. Each question began with the word,
“Sometimes,” and then posed a possible reason a child might
delay disclosure: retaliation, to gain a sense of belonging, or for
attention. In response to each of the three questions, Expert
acknowledged that each reason was a possible explanation for a
delayed disclosure but testified that it was “rare” or “very rare”
in his experience for any of those reasons to be the cause of
delayed disclosure. Sombra-Delgado argues that Counsel was
ineffective for not objecting to each of Expert’s responses to the
four questions. We disagree.

¶24 Utah courts have long “recognized that delayed discovery
and reporting are common in child sexual abuse cases.” State v.
Wright, 2013 UT App 142, ¶ 35, 304 P.3d 887 (cleaned up); see also
State v. Bair, 2012 UT App 106, ¶ 47, 275 P.3d 1050; State v. Hoyt,
806 P.2d 204, 209 (Utah Ct. App. 1991). Expert testimony stating
that delayed disclosure is “common” and identifying some
possible reasons for delayed disclosure “is entirely proper.” State
v. Burnett, 2018 UT App 80, ¶ 9 & n.4, 427 P.3d 288. And because
testimony that something is common is permissible, it logically
follows that testimony that something is uncommon is likewise
permissible.

20220673-CA 10 2025 UT App 83
State v. Sombra-Delgado

¶25 During direct examination, Expert testified that delayed
disclosure was common, and he discussed some of the reasons a
child may delay disclosure of sexual abuse. This testimony was
admissible. See id. And it raised no objection from Counsel during
trial, nor does Sombra-Delgado allege on appeal that Counsel was
ineffective for not objecting to it. Therefore, when Expert testified
on cross-examination about certain reasons for a child to delay
disclosure being “rare” or “very rare,” Counsel could have
reasonably believed that Expert’s testimony was admissible
because the term “rare” is an antonym of “common” and a
synonym of “uncommon.” 5 See Common, Merriam-Webster
Thesaurus, https://www.merriam-webster.com/thesaurus/comm
on [https://perma.cc/M5CK-QXPL]; see also Uncommon, Merriam-
Webster Thesaurus, https://www.merriam-webster.com/thesaur
us/uncommon [https://perma.cc/786E-8GJT]. Thus, Counsel did
not perform deficiently here, because any objection to Expert’s
answers was unlikely to be successful.

¶26 Additionally, even if we assume that objections to Expert’s
answers would have been sustained, Sombra-Delgado has not
shown that Counsel rendered ineffective assistance by not
objecting. “Legal objections are an inherently strategic business.”
State v. Hart, 2020 UT App 25, ¶ 29, 460 P.3d 604. “[J]ust because

5. Sombra-Delgado argues on appeal that by answering that a
reason for delayed disclosure was “very rare,” Expert’s
“testimony purported to establish to a ‘high statistical probability’
that an alleged victim . . . would not fabricate a claim of abuse.”
However, we see no reason to distinguish between Expert’s
answers of “rare” and “very rare” as neither term was presented
with any numbers, statistics, or efforts to quantify the likelihood
that an alleged victim would lie. Indeed, “rare” means something
is “seldom occurring.” See Rare, Merriam-Webster,
https://www.merriam-webster.com/dictionary/rare [https://perm
a.cc/3GUZ-UKQD]. Thus, the difference between Expert’s
testimony that something is “very rare” as opposed to “rare” is of
little consequence.

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State v. Sombra-Delgado

counsel can make an objection does not mean counsel must make
an objection to avoid rendering ineffective assistance.” Id.

¶27 When Counsel asked Expert about possible defense-
friendly reasons for delayed disclosure during cross-examination,
Expert answered all of the questions in the affirmative. Indeed,
Counsel was successful in obtaining Expert’s agreement that all
of Counsel’s proposed scenarios were possible. Getting Expert to
make these concessions on cross-examination was essential to
Sombra-Delgado’s defense that this was not a case of typical
delayed reporting but instead a case where Maggie delayed
reporting because she fabricated the allegations to retaliate
against Sombra-Delgado for his treatment of Aunt and to feel like
she was a part of the #MeToo movement. And Counsel
emphasized the concessions from Expert during his closing
argument.

¶28 Furthermore, Sombra-Delgado does not argue that
Counsel was ineffective because he asked Expert the four
questions. He argues only that Counsel was ineffective by failing
to object to Expert’s answers. Thus, Counsel would have had to
decide—for each of the four answers—whether to object and ask
the court to instruct the jury to disregard Expert’s answer to
Counsel’s question after the jury heard the answer. And by
objecting and requesting a curative instruction after the jury heard
Expert’s answer, Counsel would risk drawing attention to the fact
that Expert stated that Counsel’s proposed reasons for delayed
disclosure were “rare” or “very rare,” potentially undermining
the fact that Expert had agreed that Counsel’s proposed reasons
were possible. 6 See State v. King, 2024 UT App 151, ¶ 33, 559 P.3d
96 (holding that objections and motions to strike after a witness
has answered a question “invoke the pink-elephant paradox: by

6. Moreover, it likely would have been quite awkward—and
therefore memorable—for the jury to watch Counsel object
repeatedly to the answers to his own questions, especially where
the answers were for the most part responsive.

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State v. Sombra-Delgado

being told not to think about a thing, jurors may actually be more
likely to think about that thing”).

¶29 Because objecting after an answer is given can draw
unwanted attention to unfavorable testimony, Utah courts have
consistently held that “decisions regarding whether to move to
strike and seek a curative instruction are highly strategic ones”
that we “loathe to second-guess.” Id.; see also State v. Popp, 2019 UT
App 173, ¶ 50, 453 P.3d 657 (“[A] curative instruction may actually
serve to draw the jury’s attention toward the subject matter . . .
and further emphasize the issue the instruction is attempting to
cure.”); State v. Garrido, 2013 UT App 245, ¶ 26, 314 P.3d 1014
(“Choosing to forgo a limiting instruction can be a reasonable
decision to avoid drawing attention to unfavorable testimony.”).
Therefore, Counsel could have reasonably determined to not
object to Expert’s answers after the jury heard them because
objecting would have drawn additional attention to the fact that
the proposed scenarios were “rare” or “very rare” and
undermined the fact that Expert acknowledged the scenarios
were possible. See State v. Wall, 2025 UT App 30, ¶ 41, 566 P.3d 833
(holding it was reasonable for counsel not to object to testimony
where “it would have drawn additional attention” to the
testimony); Popp, 2019 UT App 173, ¶ 50; Garrido, 2013 UT App
245, ¶ 26. Thus, for this additional reason, Sombra-Delgado has
not demonstrated that Counsel performed deficiently by choosing
not to object to Expert’s testimony.

CONCLUSION

¶30 Sombra-Delgado has not demonstrated that Counsel
provided constitutionally ineffective assistance by failing to object
to Expert’s answers to his questions on cross-examination. We
therefore affirm Sombra-Delgado’s convictions.

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