State v. Spencer

2025 UT App 171

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DERRICK JOSEPH SPENCER,
Appellant.

Opinion
No. 20230215-CA
Filed November 20, 2025

Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 191906071

Melissa J. Townsend, Freyja Johnson,
Hannah K. Leavitt-Howell, and Heather Ellison,
Attorneys for Appellant
Derek E. Brown and Marian Decker,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.

ORME, Judge:

¶1 After Derrick Joseph Spencer had sex with Casey, 1 the
minor sister of his best friend, he was convicted of rape of a
child—an offense requiring proof that the victim was “younger
than 14 years old” at the time of the crime. On appeal, Spencer
argues the district court erred in denying his directed verdict
motion based on the lack of evidence of Casey’s age. And he raises
several ineffective assistance claims regarding the performance of

1. We employ the pseudonym used by the parties in their briefing.
State v. Spencer

his trial counsel. We disagree with Spencer’s arguments and
affirm his conviction.

BACKGROUND 2

¶2 Casey’s brother (Brother) and Spencer were best friends,
whose families were also close. One night, Spencer, who was 19
or 20 years old at the time, was drinking at Casey and Brother’s
home. Because Brother was too drunk to go downstairs to his own
bedroom, he went to bed in an upstairs room, while Spencer
decided to sleep on the couch. Casey was in her own room when
Spencer entered and asked her to vape with him. The two then
went downstairs to retrieve a vaping device from Brother’s
bedroom. In Brother’s room, Spencer showed Casey “tricks” with
the vape smoke as they talked. Casey’s grandmother
(Grandmother), whose own bedroom was nearby, came in and
told Casey to go to bed. Casey went back to her bedroom for a
while but returned to Brother’s room when Spencer asked her to.

¶3 When Casey returned to Brother’s room, Spencer started to
tickle her, touching her “bottom” and “chest.” When Casey felt
something hard against her legs, Spencer told her, “Oh, it’s like a
boner,” and asked her if she wanted to have sex. Casey, who had
not even kissed anyone before, was surprised but not
uninterested. She went upstairs to “get ready,” putting on the
“most adult” underwear she owned.

¶4 When Casey once again returned to Brother’s room,
Spencer was in bed. He told her to turn the lights off and take her
clothes off. Casey complied, then got into bed with Spencer and

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Brown, 2025 UT App 31, n.1, 566 P.3d 737 (quotation simplified).

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State v. Spencer

found he had removed his pants and underwear. He asked Casey
to straddle him, which she did, and asked if he could put his penis
in her vagina. She agreed, but Spencer struggled to do so, as he
did not use a condom or lubricant. Spencer asked Casey to help
him by “sitting down on his penis.” Doing so hurt Casey. Spencer
asked if she was “okay” and told her that it would “get better.”
He then grabbed her hips and moved her up and down.

¶5 Grandmother interrupted by knocking on the bedroom
door and asking, “What’s going on in there?” Casey hid under the
covers while Spencer spoke with Grandmother, whom he
eventually convinced to leave. Spencer then asked Casey if they
could try a different position and put her on her hands and knees
while he knelt behind her. He asked Casey to help guide his penis
to her vagina. This was “very uncomfortable” for Casey. When
Grandmother came back a third time, Casey hurriedly started
dressing and Spencer suggested that she climb through the
window and return to her room. Casey did not want to exit
through the window because it was cold outside and she did not
have shoes, so she hid in the closet and finished dressing.
Eventually, Spencer left Brother’s room, and Casey snuck back to
her own bedroom.

¶6 “[A] while later,” “like a couple of months” by Casey’s
estimation, she noticed a change in her vaginal odor. Concerned,
she asked her mother (Mother) to take her to a doctor and told
Mother about having sex with Spencer. Mother made an
appointment with a gynecologist. At the appointment, Casey
expressed worry that she might have contracted a sexually
transmitted infection (STI). Casey did not have an STI, but after
Mother privately explained to the doctor what had allegedly
happened between Casey and Spencer, the doctor reported the
information to the police.

¶7 A detective (Detective) interviewed Casey at the Children’s
Justice Center. Casey was reluctant to speak with Detective at

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State v. Spencer

first, but she eventually told her that she had sex with Spencer and
mentioned “being on her knees at one point, and that’s really all.”
Casey did not share any other details with Detective because she
was “ashamed” and did not “want anyone to get in trouble.”
Detective next spoke with Spencer, who denied having sex with
Casey. Spencer was charged with unlawful sexual activity with a
minor, but the charge was later amended to rape of a child—a
first-degree felony.

¶8 Prior to trial, the State filed a motion for discovery, which
the court granted. Spencer did not do the same. A one-day jury
trial was held on August 30, 2022. During the State’s opening
statement, the prosecutor presented a detailed account of what
had occurred on the night in question. Apparently, Casey had
provided the prosecutor with more information than she had
divulged to Detective. Spencer’s counsel (Counsel) objected,
stating, “Most of what was just mentioned in the opening was not
provided to us in any way.” Counsel argued that the State should
have provided Casey’s more detailed statements in advance of
trial. The court acknowledged that there was an “unequal
opportunity to discuss things with the named victim” but
observed that Spencer had not filed a discovery request. Counsel
asked for a continuance and then a mistrial based on “[d]iscovery
violations,” but the court denied the motions and the trial
proceeded.

¶9 Three witnesses testified for the State: Casey, Mother, and
Detective. Casey testified that she was 18 years old at the time of
trial. When asked what season it was when she had sex with
Spencer, she said she did not know but remembered that it was
“cold.” She testified that she went to the doctor “a couple of
months” later. The State refreshed her recollection with her
medical records, which showed that the doctor’s appointment
was on May 25, 2018. The State also asked Casey, “So in between
the time—well, around the time that you went to the doctor—
maybe a little bit before that—did you have a birthday?” Casey

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State v. Spencer

said she did and that she had sex with Spencer before her
birthday. She testified that she remembered the incident was
before her birthday because she wondered if Spencer would care
that it was coming up and whether he would “care about, like, me
as a person other than the encounter we had.”

¶10 Detective testified about interviewing Casey. She
recounted that Casey was “[v]ery closed off” and did not give a
detailed account of the incident. Detective also testified about her
conversation with Spencer, saying, “He said, no, he wouldn’t
have sex with her because she was 14.”

¶11 Mother testified about the relationship between her family
and Spencer’s. She also testified that Casey became very
emotional one night and disclosed that she had sex with someone.
Mother explained that Casey could not “bring herself to say the
person,” so Casey typed Spencer’s name on Mother’s phone.
Mother further testified about taking Casey to the doctor’s
appointment and telling the doctor about the sexual encounter.

¶12 After the State rested, Counsel moved for a directed verdict
on the ground that the State had not “presented a prima facie case
to establish [the] alleged victim’s age.” Counsel pointed out that
there was no evidence of Casey’s actual birth date. The court
noted that although the State’s evidence required “stringing a
number of inferences together,” “the standard for a directed
verdict is whether a prima facie case has been made and whether
there is . . . some believable evidence produced for each and every
element of the crime.” The court then denied Spencer’s motion,
stating, “I certainly can’t say that there’s not an inference that she
was 13 at the time that she’s alleging this happened.”

¶13 During the State’s closing argument, the prosecutor
presented a timeline via a demonstrative exhibit, as follows:

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State v. Spencer

January 2018 (age 13) Defendant has sexual intercourse
with [Casey].

[Casey] has a birthday. [Casey] turns 14 years old.

May 24, 3 2018 (age 14) [Casey] visits the doctor. Doctor
makes a report to DCFS.

June 7, 2018 (age 14) [Casey] is interviewed at [the]
Children’s Justice Center by
Detective[.]

The prosecutor argued that Casey’s “birthday was significant to
her . . . in 2018. She turned 14. And she testified about how she
wondered if the defendant would care that she had turned 14.”
During the defense’s closing argument, Counsel asserted, “The
[S]tate telling you that she testified that she was 13 is not in
evidence.” Counsel further argued, “What we’ve heard in the
trial was [Casey] testifying about a birthday. It wasn’t clear
when that birthday was. And the only timeline we have is that
she went to the doctor sometime in May.” During rebuttal
argument, the prosecutor referred to the “rough timeline” that
had been developed and stated, “In January of 2018, the
defendant had sex with [Casey]. [Casey] had a birthday at
some point during the time between January of 2018 and May of
2018.” Counsel objected to the mention of January 2018, arguing
that this date was not in evidence. The court sustained the

3. This date is one day off from what the evidence established. See
supra ¶ 9.

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State v. Spencer

objection. Counsel did not object to any of the prosecutor’s other
statements.

¶14 The jury was instructed that it should not consider the
attorneys’ arguments as evidence. During deliberation, the jury
submitted a question to the court, asking, “What is [Casey’s] date
of birth?” The court responded, “You must rely upon your
recollection of the evidence presented.” Thereafter, the jury found
Spencer guilty of rape of a child.

¶15 At sentencing, the State mentioned that it had “explored
the potential for some other alternative . . . for this case, some
other alternative either at sentencing or some kind of post-trial—
something creative there.” But the State explained it had changed
its mind after speaking with Casey. The court sentenced Spencer
to six years to life in prison.

¶16 Spencer then filed a motion for a new trial, arguing,
among other things, that the district court erred in denying
his directed verdict motion. The court acknowledged that the
“record of this case is already replete with the court’s concerns
over the state of the evidence of the victim’s age presented by the
State.” Nevertheless, the court concluded that “the undisputed
and credible evidence appears to support no other logical
conclusion than that these acts occurred prior to her 14th
birthday.” The court further stated, “The combination of her age
at the time of trial, the statement that this occurred in 2018, the
evidence that this caused her to see a doctor in May of 2018, and
that this occurred prior to her birthday (even without any
evidence of what her actual birthdate is or any precise evidence
as to when this occurred) supports the jury’s conclusion.” Spencer
appeals.

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State v. Spencer

ISSUES AND STANDARDS OF REVIEW

¶17 Spencer argues that the district court erred in denying his
directed verdict motion. “When an appellant challenges the
denial of a motion for a directed verdict based on the sufficiency
of the evidence, the applicable standard of review is highly
deferential” and we will uphold the denial if, “when viewed in
the light most favorable to the State, some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” State v. Hawkins,
2016 UT App 9, ¶ 32, 366 P.3d 884 (quotation simplified), cert.
denied, 379 P.3d 1181 (Utah 2016).

¶18 Spencer also argues that Counsel provided ineffective
assistance in three respects. “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. Perkins, 2024 UT App 101, ¶ 11, 554 P.3d
363 (quotation simplified).

ANALYSIS

I. Directed Verdict Motion

¶19 Spencer was charged under Utah Code section
76-5-402.1(1), which, at the time, required the State to prove that
he had “sexual intercourse with a child who is under the age of
14.” Spencer argues that the district court applied the wrong
standard in denying his directed verdict motion and that even
under the correct standard, the State failed to prove that Casey
was under 14 at the time of the crime.

¶20 We begin by reminding the reader of the correct standard
for denying a directed verdict motion. “The defendant must show

20230215-CA 8 2025 UT App 171
State v. Spencer

that, when viewed in the light most favorable to the State, no
evidence existed from which a reasonable jury could find beyond a
reasonable doubt that the defendant committed the crime.” State
v. Ngoy, 2025 UT App 106, ¶ 8, 574 P.3d 1023 (emphasis in original;
quotation otherwise simplified), petition for cert. filed, Aug. 20,
2025 (No. 20250947).

¶21 But in arguing for a directed verdict, Counsel suggested
that the State had not “presented a prima facie case to establish
[the] alleged victim’s age.” The district court responded that
although the evidence required “stringing a number of inferences
together,” “the standard for a directed verdict is whether a prima
facie case has been made and whether there is . . . some believable
evidence produced for each and every element of the crime.”
Accordingly, the court denied Spencer’s motion, stating, “I
certainly can’t say that there’s not an inference that she was 13 at
the time that she’s alleging this happened.”

¶22 Spencer argues that the court articulated an incorrect
directed verdict standard that lowered the State’s burden to prove
Casey’s age. But to the extent the district court articulated an
incorrect standard (and then applied it in denying Spencer’s
directed verdict motion), Counsel invited the error when he
argued that the State had not made a “prima facie” showing that
Casey was under 14. See Somer v. Somer, 2020 UT App 93, ¶ 14, 467
P.3d 924 (noting that “an error is invited when counsel encourages
the district court to make an erroneous ruling” by manifesting
“some sort of affirmative representation . . . that the court is
proceeding appropriately,” and stating that “where a party makes
an affirmative representation encouraging the court to proceed
without further consideration of an issue, an appellate court does
not consider the party’s objection to that action on appeal”)
(quotation simplified). We thus cannot say the district court
committed reversible error in using the “prima facie case”
standard that Counsel invited it to use.

20230215-CA 9 2025 UT App 171
State v. Spencer

¶23 And even under the correct standard, Spencer cannot show
that he was entitled to a directed verdict. To succeed on a directed
verdict motion, Spencer was required to “show that, when viewed
in the light most favorable to the State, no evidence existed from
which a reasonable jury could find beyond a reasonable doubt
that [he] committed the crime.” Ngoy, 2025 UT App 106, ¶ 8
(emphasis in original; quotation otherwise simplified). But Casey
was 18 years old at the time of trial on August 30, 2022. She
testified that while she did not remember the exact time of year
when she had sex with Spencer in 2018, she remembered “it being
cold” enough that she did not want to climb out the window of
Brother’s room to avoid Grandmother discovering her with
Spencer. Casey testified that she went to the doctor “a couple of
months” after the sexual encounter, and evidence was presented
that the appointment was on May 25, 2018. She also testified that
she had sex with Spencer before her birthday as she remembered
thinking about her birthday “coming up” and wondering
whether Spencer knew or cared. 4

¶24 We share the district court’s puzzlement as to why the
State did not present direct evidence of Casey’s exact birth date.
But viewed in the light most favorable to the State, the evidence
did allow a reasonable jury to find beyond a reasonable doubt that
Casey was 13 when the sex occurred and thus that Spencer was
guilty of rape of a child.

II. Ineffective Assistance of Counsel

¶25 Spencer also argues that Counsel provided ineffective
assistance in three respects. First, he faults Counsel for inviting
the district court’s application of an incorrect directed verdict
standard. Second, he argues that Counsel should have objected to
what he views as the prosecutor’s repeated misrepresentations of

4. There is no dispute that the relevant birthday is the one when
Casey would have turned 14 years old.

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State v. Spencer

the evidence regarding Casey’s age during closing argument.
And finally, he argues that Counsel should have filed a discovery
request seeking pretrial statements made by Casey.

¶26 “To prevail on an ineffective-assistance-of-counsel claim, a
defendant must show both that counsel’s performance was
objectively deficient, and a reasonable probability exists that but
for the deficient conduct defendant would have obtained a more
favorable outcome at trial.” State v. Reid, 2018 UT App 146, ¶ 19,
427 P.3d 1261 (quotation simplified), cert. denied, 432 P.3d 225
(Utah 2018). “A defendant’s inability to establish either element
defeats a claim for ineffective assistance of counsel.” Id.

¶27 Here, we do not consider whether Counsel’s performance
in any of these respects was deficient because Spencer has not
shown that he was prejudiced thereby. See id. ¶ 20. “To
demonstrate prejudice, a 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.”
Id. (quotation simplified). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. (quotation simplified).

¶28 We address the prejudicial effect of each of Spencer’s
ineffective assistance claims in turn.

A. Directed Verdict Standard

¶29 Spencer suggests that, to the extent that Counsel invited
any error in the legal standard the district court applied in
denying his directed verdict motion, see supra ¶ 22, this
constituted ineffective assistance. Again, to be entitled to a
directed verdict, “the defendant must show that, when viewed in
the light most favorable to the State, no evidence existed from which
a reasonable jury could find beyond a reasonable doubt that the
defendant committed the crime.” State v. Ngoy, 2025 UT App 106,

20230215-CA 11 2025 UT App 171
State v. Spencer

¶ 8, 574 P.3d 1023 (emphasis in original; quotation otherwise
simplified), petition for cert. filed, Aug. 20, 2025 (No. 20250947). As
discussed, the State presented evidence from which the jury could
conclude that Casey was 13 when she had sex with Spencer. See
supra ¶¶ 23–24. Even absent Counsel’s invitation for the court to
apply the incorrect “prima facie” standard, Spencer cannot show
that the court would have directed the verdict in his favor. Thus,
Spencer cannot show prejudice on this claim.

B. Prosecutor’s Closing Argument

¶30 Spencer also argues that Counsel should have objected or
moved for a mistrial when the prosecutor “repeatedly
misrepresented the evidence” regarding Casey’s age during
closing argument. He argues had Counsel done so, the court
would have struck the statements from the record or granted a
mistrial. We disagree.

¶31 Spencer points to the fact that during deliberation, the jury
submitted a question to the court, asking, “What is [Casey’s] date
of birth?” He argues that this shows that the jury did not find the
evidence of Casey’s age to be “unequivocal.” And he argues that
the court’s answer, which instructed the jury to rely on its
“recollection of the evidence presented,” did not rectify this issue
because the State’s other evidence of her age was sparse. But as
we have discussed, there was sufficient evidence presented at trial
from which the jury could determine that Casey was 13 at the time
of the rape. See supra ¶¶ 23–24. The jury was instructed that the
attorneys’ opening statements and closing arguments were not to
be considered as evidence. And we assume that juries follow the
directives of the district court. See State v. Mendoza, 2025 UT App
46, ¶ 24, 568 P.3d 265 (“Jurors are presumed to have followed a
trial court’s instructions.”) (quotation simplified), cert. denied, 570
P.3d 661 (Utah 2025). In any event, because there was evidence
from which Casey’s age could be inferred, the prosecutor’s
statements were proper. See State v. Haynes, 2025 UT App 75, ¶ 66,

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State v. Spencer

571 P.3d 1197 (“Prosecutors have considerable freedom to discuss
properly admitted evidence and reasonable inferences that may
be drawn from it.”) (quotation simplified), cert. denied, Sept. 10,
2025 (No. 20250823). Thus, there is no reasonable likelihood that
an objection or a mistrial motion based on those statements would
have been successful.

C. Discovery Motion

¶32 Finally, Spencer argues that Counsel should have filed a
discovery motion seeking pretrial statements made by Casey.
Spencer argues that had Counsel done so, there is a reasonable
likelihood that the defense could have arranged a favorable plea
deal for him. Even assuming for the sake of argument that
Counsel should have filed such a motion, failure to do so did not
prejudice Spencer.

¶33 Spencer posits that the State would have been willing to
offer a plea deal to shield Casey from having to “testify about
details she was reluctant to speak about at trial.” And he suggests
that the State’s “unusual step” of considering a potential
post-conviction plea arrangement as discussed at sentencing
indicates the State’s willingness to have done so before trial. But
the State never framed the “creative” “alternative” it considered
after trial and before sentencing as a plea agreement per se. And
it decided not to explore such an alternative after speaking with
Casey.

¶34 Ultimately, Spencer “must show a substantial likelihood of
a different result as a demonstrable reality and not merely as a
speculative matter.” State v. Green, 2023 UT 10, ¶ 107, 532 P.3d 930
(quotation simplified). But both the notion and the contours of the
plea deal he suggests the State would have offered are entirely
speculative. And Spencer does not argue that Counsel’s filing of
a discovery motion would have benefited him in any other way.
Accordingly, on this basis, we cannot conclude that Counsel’s

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State v. Spencer

failure to file a discovery request that would have encompassed
Casey’s pretrial statements prejudiced Spencer.

¶35 In sum, Spencer has not shown that he was prejudiced by
Counsel’s inviting the district court’s application of an incorrect
directed verdict standard, failure to object to the prosecutor’s
statements during closing argument, or failure to file a discovery
motion. Accordingly, his ineffective assistance claims fail. 5

5. Spencer has also filed a motion under rule 23B of the Utah Rules
of Appellate Procedure seeking remand to develop the record in
support of two additional claims of ineffective assistance. “A rule
23B remand is available only upon a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.” State
v. Haynes, 2025 UT App 75, ¶ 24, 571 P.3d 1197 (quotation
simplified), cert. denied, Sept. 10, 2025 (No. 20250823). Spencer
points to his own declaration in which he stated that Brother, who
was facing domestic violence charges, told him that Casey “had
agreed to lie to police to help him.” He also attached a declaration
from his mother in which she states that her “domestic partner,”
Spencer’s father, was having an affair with Mother at the time of
the rape. Spencer’s mother stated that she informed Spencer’s
prior counsel of the affair, and this attorney later passed the
information along to Counsel. She also declared that she informed
Counsel that Casey had made a false police report to protect
Brother. Spencer argues that Counsel was deficient in not
investigating these allegations and that the information could
have changed the outcome of his trial by casting doubt on the
veracity of Casey’s claim that Spencer had sex with her. But
neither declaration asserts that Counsel did not investigate these
family dynamics. Moreover, it certainly would have been
reasonable for Counsel to decide that dragging these extraneous
details into trial would do more harm than good to Spencer’s case.
(continued…)

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State v. Spencer

CONCLUSION

¶36 The district court correctly denied Spencer’s motion for a
directed verdict, as there was sufficient evidence from which the
jury could infer that Casey was under the age of 14 at the time of
the rape. And because Spencer cannot show that he was
prejudiced by any of the alleged deficiencies in Counsel’s
representation, his ineffective assistance claims fail.

¶37 Affirmed.

See State v. Raheem, 2024 UT App 29, ¶ 35, 546 P.3d 331 (“Defense
counsel’s decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.”) (quotation
simplified), cert. denied, 550 P.3d 997 (Utah 2024). See also Burke v.
State, 2015 UT App 1, ¶ 20, 342 P.3d 299 (“An attorney can avoid
activities that appear distractive from more important duties.”)
(quotation simplified), cert. denied, 352 P.3d 106 (Utah 2015). Thus,
even if true, the facts in these declarations do not support a
determination that Counsel was ineffective, and we deny the
motion for remand.

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