State v. Mclain

2025 UT App 150

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MICHAEL CHARLES MCLAIN,
Appellant.

Opinion
No. 20230241-CA
Filed October 17, 2025

Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 211800180

Wendy M. Brown, Debra M. Nelson, and
Benjamin Miller, Attorneys for Appellant
Derek E. Brown and Karen A. Klucznik,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

TENNEY, Judge:

¶1 Michael Mclain was charged with one count of aggravated
sexual abuse of a child, three counts of rape of a child, and one
count of attempted rape of a child. Before trial, Mclain requested
leave to represent himself, and the court granted Mclain’s request.
The case went to trial, and the jury convicted Mclain as charged.

¶2 With the benefit of appellate counsel, Mclain now
challenges his convictions on several grounds. For the reasons set
forth below, we address two of them. First, Mclain argues that the
district court did not ensure that Mclain had knowingly and
intelligently waived his right to counsel. The State concedes that
there was reversible error on this front, so we reverse Mclain’s
State v. Mclain

convictions on that basis and remand for further proceedings.
Second, Mclain argues that there was insufficient evidence to
support his conviction for attempted rape of a child. Because our
resolution of this issue would impact proceedings on remand, we
address it. As explained below, there was sufficient evidence to
support this conviction, so we reject this claim.

BACKGROUND

¶3 In April 2021, Mclain’s daughter (Daughter) reported to
authorities that Mclain had sexually assaulted and raped her
multiple times from 2009 to 2019. In June 2021, Mclain was
charged with one count of aggravated sexual abuse of a child,
three counts of rape of a child, and one count of attempted rape
of a child.

Waiver of Counsel

¶4 Mclain was found indigent and appointed counsel
(Counsel). At a hearing that was held on September 13, 2021,
Counsel informed the district court that Mclain wanted to “do”
the preliminary hearing “himself” and then have a form of
“hybrid counsel” in which Counsel would be “standing by”
moving forward. Counsel asked for a continuance so that he could
“look at” whether hybrid counsel is allowed in Utah, as well as to
“show [Mclain] what the risks are of doing his own preliminary
hearing.” The court granted the continuance.

¶5 At a subsequent hearing that was held on September 20,
2021, Counsel informed the court that Mclain “was not interested
in having” Counsel “or any other public defender” represent him.
Counsel also told the court that Mclain had written a letter
indicating that he “had some serious mental issues.” When the
court asked Mclain to comment on what Counsel had said, Mclain
told the court, “I definitely would like to represent myself in case

20230241-CA 2 2025 UT App 150
State v. Mclain

need be. I don’t think there’s anybody that can do it better than
the man doing something he didn’t do, Your Honor.” The court
responded:

All right. Well, there’s nobody who can testify better
than you can testify, but as far as taking action in
court to object to procedure or to object to evidence,
just because you’re the one who’s charged doesn’t—
and you may know more about the facts of the case
than anyone else. It’s certainly not—that does not
necessarily mean that you know more about the
law, the procedure or the rules of evidence than
someone else. And so . . . you’re going to want
someone to help you there.

Without resolving the issue of whether Mclain would represent
himself, the court continued the proceedings and scheduled
another hearing.

¶6 At the next hearing, which was held in October 2021,
Counsel informed the court that Mclain “prefers to represent
himself.” Counsel again expressed concern about Mclain’s
“mental issue.” Later that day, Counsel filed a petition for a
competency evaluation, which the court soon ordered. In January
2022, the court reviewed the evaluation and found Mclain to be
incompetent but with “a substantial probability of being restored
to competency in the foreseeable future.” Mclain subsequently
received treatment, and at a hearing in April 2022, the court found
that Mclain had been restored to competency.

¶7 At a status hearing in October 2022, Counsel reminded the
court that Mclain “wanted to do the case himself.” When the court
addressed Mclain, it expressed its understanding that he was now
“representing [himself].” In various proceedings that were held
over the next several months, the court repeatedly expressed that

20230241-CA 3 2025 UT App 150
State v. Mclain

same understanding, and Mclain continued representing himself
through the eventual trial. 1

1. As noted, at the outset of the case, Counsel requested leave to
look into the possibility of Mclain receiving “hybrid counsel” with
Counsel “standing by.” The court later allowed Mclain to
represent himself, but it clarified at an early hearing that Counsel
would still “advise” Mclain and “sit with him.” At another
hearing, the court said that Counsel could provide “assistance on
the outside” and act “as an aid in the courtroom.” Counsel filled
such a role at trial, stepping in to help Mclain with the questioning
of various witnesses and with the admission of his exhibits.
Throughout these proceedings, Counsel and the court
continued to refer to Mclain as having “hybrid counsel,” and at
various times, Counsel suggested that this was justified under a
procedure that he had found in California law. Since this case is
being remanded, we reiterate that under Utah law, a “defendant
is not entitled to a hybrid representation in a criminal case,” and
this is so because such an arrangement “creates confusion as to
who is the ultimate decision-maker,” “may lead to ethical
concerns for counsel if there is disagreement over trial strategy,”
and “presents courtroom-management challenges for the trial
judge.” State v. Grover, 2022 UT App 48, ¶ 55, 509 P.3d 223
(quotation simplified).
That said, the process that was actually followed seems
more akin to one in which Counsel was acting as “standby
counsel.” State v. Rohwedder, 2018 UT App 182, ¶ 15, 436 P.3d 324
(“Courts have traditionally appointed standby counsel to aid the
accused if and when the accused requests help, and to be available
to represent the accused in the event that termination of the
defendant’s self-representation is necessary.” (quotation
simplified)). Standby representation “does not alter a party’s pro
se status.” Id. ¶ 15 (quotation simplified). Rather, it involves a
(continued…)

20230241-CA 4 2025 UT App 150
State v. Mclain

Trial

¶8 After a preliminary hearing, Mclain was bound over on all
charges. The case later went to a jury trial.

¶9 At trial, the State’s only witness was Daughter. Daughter
testified about the events supporting the five counts as follows:

• Count 1 (aggravated sexual abuse). Daughter said that
when she was 5 years old, Mclain came into her bedroom
one night, closed the door, took her clothes off, laid her
down on her bed, and touched her breasts and vagina.
Daughter said that when she tried to push Mclain off, “he
got aggressive.” She “got really scared” and called for her
mom, at which point Mclain left the room.

• Count 2 (rape of a child). Daughter said that one evening
when she was 10 years old, Mclain came into her bedroom,
“slammed the door,” and “came really close” to her.
Daughter said that she tried to “push him off,” that she
“told him no,” and that she “stood up on [her] bed” and
went “to the other side” in an effort to get away from him.
When Daughter was asked why she reacted this way, she
said that she remembered “the first time,” and “at this age”
she now “kind of understood what was going on” and
“didn’t want it to happen again.” Daughter said that
Mclain grabbed” her, “forced [her] on the bed,” took her

situation in which a criminal defendant “invokes the right to self-
representation” but “requests help,” id. ¶¶ 13, 15 (quotation
simplified), and Utah courts have previously recognized that
standby counsel is permitted, see id. ¶ 16 (“We recognize that there
can be value in appointing standby counsel to assist a pro se
defendant who lacks adequate access to the resources necessary
to present his defense or to help the defendant with questions of
procedure and protocol in the courtroom.”).

20230241-CA 5 2025 UT App 150
State v. Mclain

clothes off except for her bra, and then “raped” her, which
she clarified meant that Mclain had “sexual intercourse”
with her. Daughter said that she “was crying and telling
him no the whole time.”

• Count 3 (rape of a child). Daughter said that on another
occasion when she was 9 or 10 years old, she was alone in
the basement one afternoon playing Xbox when Mclain
entered through the basement door, came up to her, took
her clothes off, pinned her down on the couch, and “raped
[her] again,” which she clarified as meaning that he “put
his penis in [her] vagina.” Daughter said that she initially
“froze” and “couldn’t move or fight him off,” but that in
“the middle” of the intercourse, she threw the Xbox
controller at him, at which point Mclain just “picked it up
and threw it and got really angry.”

• Count 4 (rape of a child). Daughter said that on an
occasion when she was “almost 11” years old, she was
downstairs in the basement when Mclain called her up
from the top of the stairs. She said that when she got
upstairs to the living room, Mclain forced her onto the
couch and again “rape[d]” her by putting “his penis” in her
“vagina.” Daughter said that she tried to “fight him off” by
trying to get her “legs under [him] so [she] could kick him
off” but that she “couldn’t.” She also said that she “tried to
punch him, but it didn’t work.”

• Count 5 (attempted rape of a child). After recounting the
above incidents, Daughter was asked, “Were there any
other times that something happened?” She replied, “Not
sexual intercourse or anything like that, but he did try
again.” Daughter then testified that on an occasion when
she was 11 years old, she was upstairs in her bedroom
when Mclain “came in,” “shut the door,” and “got on top
of” her. Daughter said that she was lying “on [her] bed on

20230241-CA 6 2025 UT App 150
State v. Mclain

[her] phone” and “really didn’t want it to happen again,”
so she “kneed him multiple times in the stomach and the
groin.” She said that after she kneed Mclain, he “rolled
over,” at which point she “jumped off the bed.” She said
that Mclain then “got up and slammed the door and left
the house.”

¶10 In the jury instructions, the jury was told that for purposes
of Count 5, it could not convict unless it found beyond a
reasonable doubt that Mclain had intentionally, knowingly, or
recklessly “[a]ttempted to have sexual intercourse” with
Daughter while she “was under 14 years old.” The jury was
further instructed that “[a] person is guilty of an attempt to
commit a crime if he engages in conduct constituting a substantial
step toward commission of the crime and intends to commit the
crime. Conduct constitutes a substantial step if it strongly
corroborates the actor’s intent to commit the crime.” During the
portion of closing argument in which the prosecutor addressed
Count 5, the prosecutor explained, “Throwing [Daughter] on the
bed is what I’m submitting to you is a substantial step towards
the crime. [Mclain] had done this kind of thing to her before. She
said that the reason why she was running is she was afraid that it
was going to happen again.”

¶11 The jury convicted Mclain on all five counts.

ISSUES AND STANDARDS OF REVIEW

¶12 Mclain raises several issues on appeal, but as explained
below, we need address only two of them.

¶13 First, Mclain argues that the district court erred by
allowing him to represent himself without first ensuring that he
had knowingly and intelligently waived his right to counsel.
“Whether a defendant’s waiver [of counsel] was knowing and

20230241-CA 7 2025 UT App 150
State v. Mclain

intelligent involves a mixed question of law and fact which we
review for correctness, but with a reasonable measure of
discretion given to the trial court’s application of the facts to the
law.” State v. Lee, 2024 UT App 2, ¶ 7, 542 P.3d 974 (quotation
simplified).

¶14 Second, Mclain argues that the district court erred in
submitting the attempted rape of a child charge to the jury given
that, in Mclain’s view, the evidence was insufficient to support
conviction. Mclain concedes that this issue is unpreserved, so he
asks us to review it for plain error. Because a plain error claim
“involves no lower court ruling, we decide the claim in the first
instance as a matter of law.” State v. Dew, 2025 UT App 22, ¶ 28,
566 P.3d 53, cert. denied, 568 P.3d 264 (Utah 2025).

ANALYSIS

I. Right to Counsel

¶15 “The Sixth Amendment to the United States Constitution
guarantees defendants the right to counsel in felony
proceedings.” State v. Pedockie, 2006 UT 28, ¶ 25, 137 P.3d 716.
“Defendants also have the right to waive their right to counsel.”
Id. ¶ 26. However, “because pro se defendants may often find
themselves at a serious disadvantage in our legal system, it is the
solemn duty of the trial court to ensure defendants exercise their
right of self-representation voluntarily, knowingly, and
intelligently.” State v. Lee, 2024 UT App 2, ¶ 9, 542 P.3d 974
(quotation simplified). Our cases set out two paths under which a
court can find that a defendant’s waiver was knowing and
intelligent. First, “a colloquy on the record,” in which the court
explains the disadvantages of self-representation, is “the
preferred method of determining whether a defendant is aware
of” the risks of proceeding pro se. Pedockie, 2006 UT 28, ¶ 42.
Second, “[a]bsent a colloquy on the record, a reviewing court

20230241-CA 8 2025 UT App 150
State v. Mclain

should review the record de novo to determine whether the
defendant knowingly and intelligently waived” his or her right to
counsel. Id. ¶ 45.

¶16 As discussed above, the only colloquy in which the court
appears to have discussed the disadvantages of self-
representation with Mclain occurred during the September 20,
2021, hearing. In his opening brief, Mclain argues that this
colloquy was inadequate under our caselaw. Mclain further
argues that, even if the colloquy was somehow adequate, it
occurred during a period in which he was incompetent—and,
thus, that his waiver of his right to counsel could not have been
knowing or voluntary.

¶17 In its responsive brief, the State concedes that “under the
Court’s recent precedent, a new trial is required because the
record doesn’t show Mclain’s waiver of counsel was knowing and
intelligent.” See, e.g., Lee, 2024 UT App 2; State v. West, 2023 UT
App 61, 532 P.3d 114; State v. Patton, 2023 UT App 33, 528 P.3d
1249. Having reviewed the record ourselves, we conclude that
Mclain’s arguments and the State’s concession are well-taken. We
accordingly reverse Mclain’s convictions and remand for further
proceedings. 2

2. In his opening brief, Mclain raises two additional issues that
warrant brief mention here. First, Mclain argues that the district
court improperly deprived him of several peremptory challenges
during jury selection. Second, Mclain argues that the verdict form
was flawed because it instructed the jury to deliberate on his
“guilt or innocence” with respect to each charge. In its responsive
brief, the State suggests that if we reverse on the waiver of counsel
issue, we need not address the peremptory challenge and verdict
form issues because the alleged errors are “unlikely to recur on
retrial” and “can easily be avoided on remand.” Mclain does not
(continued…)

20230241-CA 9 2025 UT App 150
State v. Mclain

II. Sufficiency of the Evidence

¶18 Mclain next argues that the court should have directed a
verdict on Count 5 (which, as explained, was for attempted rape
of a child) because, in Mclain’s view, there was insufficient
evidence to support conviction on that count. We disagree. 3

¶19 As noted, the offense at issue is attempted rape of a child.
A person commits rape of a child by having sexual intercourse
with an individual who is younger than 14 years old. See Utah
Code § 76-5-402.1(1)(a), (2). A person is guilty of an attempted
crime if he or she (1) “engages in conduct constituting a
substantial step toward commission of the crime” and (2) “intends
to commit the crime.” Id. § 76-4-101(1)(a), (1)(b)(i).

argue otherwise in his reply brief. We accordingly decline to
address those issues.

3. Unlike the peremptory challenge and verdict form issues, the
State concedes that it’s appropriate for us to address this issue,
and we agree. It’s well-settled that a directed verdict functions as
an acquittal for double jeopardy purposes. See State v. Musselman,
667 P.2d 1061, 1065 (Utah 1983) (“Once a criminal charge has
resulted in an acquittal[,] . . . the prohibition against double
jeopardy prevents that determination from ever again being
challenged. It is of no consequence that the determination was
made as a matter of law by a directed verdict of acquittal, or as a
matter of fact by the trier of fact.”); State v. Cegers, 2019 UT App
54, ¶ 18, 440 P.3d 924 (reviewing a district court’s denial of a
defendant’s motion for a directed verdict because “if the evidence
at trial was insufficient to sustain [the defendant’s] convictions,
double jeopardy may bar retrial”). Thus, if Mclain is correct that
he was entitled to a directed verdict on this count, he could not be
retried for it on remand. It’s therefore appropriate—indeed,
necessary—for us to resolve this issue.

20230241-CA 10 2025 UT App 150
State v. Mclain

¶20 In Mclain’s view, there was no evidence to show that he
did anything more than “get[] on top of” Daughter, which he
regards as insufficient to constitute a substantial step toward
attempted rape of a child. Mclain also argues that the evidence
was insufficient to show that he had the intent “to engage in
sexual intercourse, as opposed to some other sexual conduct.”
Mclain acknowledges that he did not request a directed verdict
below, but he nevertheless argues that it was plain error for the
district court to not order one sua sponte. We disagree.

¶21 As a general matter, plain error requires an appellant to
establish that “(i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e., absent
the error, there is a reasonable likelihood of a more favorable
outcome for the appellant.” State v. Draper, 2024 UT App 152, ¶ 38,
560 P.3d 122 (quotation simplified). To establish plain error with
respect to an alleged insufficiency of the evidence, “a defendant
must demonstrate first that the evidence was insufficient to
support a conviction of the crime charged and second that the
insufficiency was so obvious and fundamental that the trial court
erred in submitting the case to the jury.” State v. Holgate, 2000 UT
74, ¶ 17, 10 P.3d 346. A court evaluates whether a directed verdict
is warranted by determining whether “some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt” when the evidence
is “viewed in the light most favorable to the State.” State v.
Buranek, 2025 UT App 92, ¶ 16, 573 P.3d 440 (quotation
simplified). When viewed against this standard, we don’t believe
that it should have been obvious to the district court in this case
that there was not at least some evidence that could support the
conclusion that Mclain took a substantial step toward rape of a
child and that he did so with the requisite intent.

¶22 Under the attempt statute, “conduct constitutes a
substantial step if it strongly corroborates the actor’s mental
state.” Utah Code § 76-4-101(2). In this sense, the substantial step

20230241-CA 11 2025 UT App 150
State v. Mclain

and intent elements are somewhat intertwined. See, e.g., State v.
Smith, 2024 UT 13, ¶¶ 23–24, 548 P.3d 874 (discussing whether acts
that are “mere preparation” could constitute a substantial step
and noting that “if, in a particular case, preparatory actions are
deemed not to constitute a substantial step, it is because the
conduct in question did not strongly corroborate the actor’s intent
to commit the underlying crime under the circumstances, not
because there is a categorical rule that preparation is insufficient
as a matter of law”). It is well-established that “intent can be
proven by circumstantial evidence.” Holgate, 2000 UT 74, ¶ 21
(quotation simplified). “When intent is proven by circumstantial
evidence,” the court “must determine (1) whether the State
presented any evidence that [the defendant] possessed the
requisite intent, and (2) whether the inferences that can be drawn
from that evidence have a basis in logic and reasonable human
experience sufficient to prove that [the defendant] possessed the
requisite intent.” Id. (quotation simplified).

¶23 Daughter testified that Mclain “came in” to her bedroom
while she was alone, “shut the door,” and “got on top of” her. She
testified that she had to physically fight him off, at which point
she “jumped off the bed” and Mclain “got up and slammed the
door and left the house.” Thus, by Daughter’s account, this was
not a benign encounter, but it was instead a decidedly aggressive
one. “It is the jury’s role to determine the weight and credibility
of [the] evidence,” and juries are allowed to draw “reasonable
inferences” when doing so. State v. Mead, 2001 UT 58, ¶ 67, 27 P.3d
1115. Here, it is not obvious to us that when Daughter testified
about an encounter in which Mclain got on top of her in her
bedroom and she had to physically fight him off, a jury couldn’t
draw a reasonable inference from these facts alone that Mclain
was trying to have sexual intercourse with her.

¶24 And this is particularly so given the other facts that were
before the jury. As noted, Daughter had just testified about three
incidents in which Mclain had sexual intercourse with her.

20230241-CA 12 2025 UT App 150
State v. Mclain

Immediately after she finished testifying about those incidents,
the prosecutor asked her if there were “any other times that
something happened?” Daughter’s response was, “Not sexual
intercourse or anything like that, but he did try again.” (Emphasis
added.) After this exchange, Daughter was asked to describe the
incident that supported the attempted rape of a child charge.
While testifying about this event, Daughter said that she fought
Mclain off because she “really didn’t want it to happen again.”
(Emphasis added.)

¶25 By twice using the word “again,” Daughter expressly
linked the prior incidents of sexual intercourse to what she
thought Mclain was attempting to do in this instance. And the
prosecutor drew this same link during closing argument, telling
jurors, “Throwing [Daughter] on the bed is what I’m submitting
to you is a substantial step towards the crime. [Mclain] had done
this kind of thing to her before. She said that the reason why she
was running is she was afraid that it was going to happen again.”
Thus, Daughter expressly testified as to the link between the
incidents, and the prosecutor asked the jury to use Daughter’s
testimony about the other alleged rapes as evidence of Mclain’s
intent to have sexual intercourse with her on this occasion.

¶26 Despite all this, Mclain argues on appeal that there were
two reasons why the jury could not actually draw this link.

¶27 First, Mclain claims the district court had given an
instruction that foreclosed this. But we read the instruction in
question differently. In that instruction, the jury was told to
“consider each charge separately” and, “[f]or each crime charged,
[to] consider all of the evidence related to that charge.” The jury
was also told that its “verdict on one charge does not determine
[its] verdict on any other charge.”

¶28 But although the jury had been instructed to consider each
charge separately, that instruction didn’t preclude the jury from

20230241-CA 13 2025 UT App 150
State v. Mclain

using evidence that supported one charge as circumstantial
evidence of Mclain’s intent relating to another charge. To the
contrary, the jury was instructed to “consider all of the evidence
related to” each charge. And we note here that evidence is
sometimes used to show a defendant’s intent with respect to more
than one charge. In State v. Macleod, for example, the defendant
was charged with both rape and object rape, and we held that a
text message sent by the alleged victim stating that the defendant
“just tried to have sex with [her]” supported her account that the
defendant “made some sort of unwanted sexual advance—which
could include the alleged rape and object rape.” 2024 UT App 32,
¶ 52, 546 P.3d 366 (emphasis added), cert. denied, 558 P.3d 87 (Utah
2024). Other cases have recognized similar dynamics. See, e.g.,
State v. Simpson, 2025 UT App 32, ¶ 17, 566 P.3d 756 (discussing
the admissibility of a prior act that was admitted to show the
defendant’s “motive, intent, plan, absence of mistake, or lack of
accident” for the charged offenses of rape and object rape); State v.
Bradley, 2002 UT App 348, ¶¶ 25, 27, 57 P.3d 1139 (concluding that
evidence of prior sexual abuse with a different victim was
“admissible for the proper, non-character purpose of showing
intent under rule 404(b)” and noting that the testimony was
relevant “to demonstrate an intent similar to that of the charged
offenses” (i.e., multiple counts of aggravated sexual abuse of a
child and multiple counts of sodomy on a child) (emphasis
added)).

¶29 Mclain points to no authority holding that it would have
been impermissible for the jury to use Daughter’s testimony about
the prior incidents as evidence of his intent relating to Count 5.
And more to the point of this argument, the specific instruction
that he now focuses on didn’t expressly prohibit the jury from
doing so. Thus, we’re not persuaded that it should have been
obvious to the district court that because of this instruction, the
jury could not draw this link—and, thus, that a directed verdict
was required on Count 5.

20230241-CA 14 2025 UT App 150
State v. Mclain

¶30 Second, Mclain also claims that, even if the instructions
themselves allowed the jury to consider the prior rapes as support
for his intent with respect to the attempted rape, it should still
have been obvious to the district court that such a use would be
prohibited under rule 404(b) of the Utah Rules of Evidence.

¶31 As an initial matter with respect to this contention, Mclain
points out that the State did not provide pretrial notice under rule
404(b) of its intent to use this evidence in this manner. But as
Mclain acknowledges, rule 404(b) requires notice “[o]n request by
a defendant,” Utah R. Evid. 404(b)(2), and there was no such
request in this case.

¶32 This leaves the substance of this argument. We note here
that Mclain did not object under rule 404(b) when Daughter
expressly linked the various incidents, nor did he object to the
State’s closing argument that drew a similar link. We also note
that, on appeal, Mclain points to no authority holding that when
a defendant is charged with committing multiple acts of sexual
abuse against the same victim, rule 404(b) prohibits the State from
using those acts to establish a pattern of conduct. And we further
note that there is at least some authority suggesting that this can
be permissible. See State v. Reed, 2000 UT 68, ¶ 26, 8 P.3d 1025 (“In
cases of child abuse, including child sexual abuse, evidence of
specific instances of the defendant’s treatment of the child is
relevant to establish not merely a general disposition for violence
or ill-will towards all children, but to establish a specific pattern
of behavior by the defendant toward one particular child, the
victim.” (quotation simplified)); State v. Klenz, 2018 UT App 201,
¶ 45, 437 P.3d 504 (“Utah case law recognizes that one such proper
noncharacter purpose is demonstrating an ongoing behavior
pattern which includes the defendant’s abuse of the victim.”
(quotation simplified)).

¶33 We recognize that Mclain was representing himself, and
we further recognize that we’re now reversing his conviction

20230241-CA 15 2025 UT App 150
State v. Mclain

based on the court’s failure to ensure that Mclain had knowingly
and voluntarily waived his right to counsel. But even so, with
respect to this issue, we’re being asked to review the result of this
trial for plain error, which means that we’re reviewing the trial
that actually occurred to see if it should have been obvious to the
district court during those proceedings that there was some error
that the court needed to correct sua sponte. Here, there was no
rule 404(b) objection before or during trial, and there’s at least
some authority suggesting that evidence of this sort could be used
in the very manner that the State used it. Thus, on the record that
was before the court, we don’t believe that it would have been
obvious that the State’s use of this evidence was impermissible.

¶34 With this additional evidence added into the mix, there
was more than enough evidence to submit the attempted rape of
a child charge to the jury. Again, Daughter testified that Mclain
“came in” to her bedroom, “shut the door,” and “got on top of”
her, and she further testified that she had to fight him off. She also
testified that it appeared to her in real time that Mclain was trying
to have sexual intercourse with her “again,” meaning that his
actions and demeanor seemed similar to her to his actions and
demeanor on the prior occasions in which he had allegedly had
sexual intercourse with her. As presented to the jury, this
testimony would provide additional support for the conclusion
that when Mclain got on top of Daughter in her bedroom with
enough aggression that she had to fight him off, he was indeed
trying to have sexual intercourse with her “again,” which could
reasonably support both the substantial step and intent elements
of the charged offense.

¶35 Thus, viewing all of the evidence in the light most
favorable to the State, we conclude that there was at least some
evidence from which a jury could conclude that Mclain had
committed attempted rape of a child. Or, at least, we see no basis
for concluding that it should have been obvious to the district
court that there was not. For these reasons, we conclude that

20230241-CA 16 2025 UT App 150
State v. Mclain

Mclain has not proven that the court plainly erred by not ordering
a directed verdict sua sponte.

CONCLUSION

¶36 We conclude that Mclain did not knowingly and
intelligently waive his right to counsel, so we reverse his
convictions and remand for further proceedings. We also
conclude that the district court did not plainly err by failing to
issue a directed verdict on the attempted rape of a child charge;
as a result, double jeopardy does not bar retrial on this charge on
remand.

20230241-CA 17 2025 UT App 150