State v. Navarrete

2025 UT App 151

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MIGUEL ANGEL NAVARRETE,
Appellant.

Opinion
No. 20230036-CA
Filed October 17, 2025

Third District Court, West Jordan Department
The Honorable Chelsea Koch
No. 161400358

Erick Grange, Attorney for Appellant
Derek E. Brown and Ginger Jarvis,
Attorneys for Appellee

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

HARRIS, Judge:

¶1 Miguel Angel Navarrete went to trial on three counts of
sexually abusing his stepdaughter (Bella 1). At the conclusion of
the State’s case, the court dismissed one of the counts, and the jury
eventually acquitted Navarrete on another one. But the jury
convicted him on the third count, and he now appeals that
conviction, raising two challenges. First, he asserts that the trial
court committed plain error in its jury unanimity instruction.
Second, he claims that the court should have directed a verdict in
his favor because Bella’s testimony was inherently improbable.
We reject Navarrete’s arguments and affirm his conviction.

1. A pseudonym.
State v. Navarrete

BACKGROUND 2

¶2 In 2015, eight-year-old Bella lived with her mother
(Mother), three sisters, one brother, and Navarrete, who was
Mother’s longtime partner. At the time, Bella had known
Navarrete for years and referred to him as her “stepdad.” Late
that year, just before Christmas, Bella told her father (Father) and
stepmother that Navarrete had been sexually abusing her. Father
contacted police, and sometime later—after Bella had turned
nine—she was interviewed at the Children’s Justice Center (CJC).

¶3 At that interview, Bella stated that her “mom’s boyfriend
touches [her] a lot.” She then described the first such incident—
referred to in this opinion as “the broom incident”—which she
said occurred when she was in the living room watching
television; she said that, at the time, her brother was at a friend’s
house and Mother was asleep. She said that Navarrete “started
getting drunk” and came into the living room and asked Bella if
she knew where the broom was. While they were still in the living
room, Navarrete touched her “butt” and her “front part” “inside
[her] underwear.” Bella said that, immediately thereafter, she and
Navarrete went downstairs into her brother’s bedroom to look for
the broom, at which point Navarrete put her on her brother’s bed
“standing up” and again touched her “butt” and her “front part”
“inside [her] underwear.”

¶4 Bella also described a second incident—referred to here as
“the second incident”—which she described as having happened
when Mother and some of Bella’s siblings left the house to drive
relatives to an aunt’s house. At the time, only one of Bella’s sisters

2. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Kufrin,
2024 UT App 86, n.1, 551 P.3d 416 (cleaned up).

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State v. Navarrete

was home, but she was showering downstairs. Bella was again in
the living room watching television, and Navarrete came inside
the house and “started grabbing [her] and . . . touching [her],”
again touching her “butt” and her “front part.”

¶5 Later in the interview, Bella mentioned a third incident—
referred to here as “the birthday incident”—which she described
as having taken place at her sister’s birthday party. Again, she
stated that Navarrete touched her “butt” and her “front part.”

¶6 Officers then contacted Navarrete, who was cooperative
and agreed to speak to them; he denied that he had ever touched
Bella inappropriately.

¶7 After concluding its investigation, the State charged
Navarrete with three counts of aggravated sexual abuse of a child,
all first-degree felonies, with one count for each of the three
separate incidents Bella described in the CJC interview.

¶8 The case proceeded toward trial and, after some delays,
trial was scheduled to begin on October 4, 2022. In advance of that
trial setting, the State filed proposed jury instructions and
proposed verdict forms with the court and served them on
Navarrete’s attorney (Counsel). One of the State’s proposed
instructions—later labeled Instruction 30—told the jury that
Navarrete was charged with three counts and that evidence had
been presented indicating that Navarrete had committed the
offenses “both by touching [Bella’s] genitals and by touching
[Bella’s] buttocks.” And it told jurors that they could not convict
Navarrete unless they “unanimously agree[d]” that the State had
proved that Navarrete committed abuse “on that occasion in at
least one of those two specific ways AND [they] unanimously
agree[d] on the specific way or ways in which [Navarrete]
committed the offense.” Relatedly, the State’s proposed verdict
forms differentiated between the three charged counts and gave
them labels (e.g., “the time he got the broom”) and asked the jury

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State v. Navarrete

to “unanimously” and specifically decide, for each count, whether
Navarrete had touched Bella “[o]nly on her genitals,” “[o]nly on
her buttocks,” or “[o]n both her genitals and her buttocks.”

¶9 The October 4 trial ended in a mistrial when an insufficient
number of jurors appeared for jury duty. The trial was then
rescheduled and set to begin just two weeks later, on October 18.

¶10 At that trial, which lasted three days, the State presented
seven witnesses: Bella, Mother, Father, three police officers, and
an expert witness who discussed the practice of forensic
interviewing and other related areas. During her direct
examination, Bella testified about the abuse. Consistent with her
CJC interview—a video of which was apparently not played for
the jury 3—Bella described the broom incident as having begun in
the living room while she was alone watching a movie. Bella
recounted that Navarrete came inside from drinking with his
friends and asked her “where the broom was” and that, after she
told him she did not know, Navarrete put her on the table and
started kissing her and touching her “butt and [her] vagina”
under her clothing. But in contrast to her CJC interview, Bella’s
direct-examination description of the broom incident ended in the
living room—she did not testify, in response to the State’s
questioning, that a subsequent touching had occurred downstairs
in her brother’s bedroom.

¶11 Bella went on to testify that, after the broom incident, she
told Mother that Navarrete had touched her. As Bella described
it, Mother was quite concerned and “started crying,” and then
began “yelling and crying to” Navarrete and “start[ed] getting
[into] an argument” with him. Bella testified that her older sisters
heard the commotion and asked what happened, and that she told

3. During both direct and cross-examination, the attorneys appear
to have been working off a transcript of the CJC interview.

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State v. Navarrete

them too. She said that Mother then left the house with Bella and
her siblings, and that they all stayed in a hotel that night.

¶12 Bella also described the second incident, which she
testified happened after Mother “left with [Bella’s] sisters” to
drive relatives to the airport. This testimony differed somewhat
from her CJC interview, in which she described relatives being
taken to an aunt’s house, not the airport.

¶13 When the prosecutor asked Bella if she could remember
any other incidents of abuse, Bella stated that she could not. In
particular, Bella offered no testimony about the birthday incident.

¶14 During cross-examination, Counsel asked Bella about the
abuse she had described, and he attempted to impeach Bella by
pointing out certain inconsistencies between her trial testimony
and her CJC interview. Counsel asked Bella directly whether
abuse during the broom incident occurred “only” in the living
room or whether it also occurred elsewhere. Bella initially
responded that it had only occurred in the living room. Later,
however, Counsel came back to the subject, and this time he
specifically asked whether Bella remembered “any event
happening downstairs in [her] brother’s bedroom.” Bella again
stated that she didn’t “remember that,” but then said, “Yeah, I do
remember actually.” She then stated that she had gone downstairs
that day to check to see if the broom was in her brother’s room
and that while she was in her brother’s room, Navarrete “grabbed
[her] and put [her] on” her brother’s bed and “started touching
[her] again.” 4

4. In its brief, the State acknowledges that, with regard to the
broom incident, Bella “described the same assault happening both
in the living room and also downstairs.” But then the State asserts
that Bella later “correct[ed]” her testimony and stated “that it only
(continued…)

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State v. Navarrete

¶15 Later, Mother testified as part of the State’s case-in-chief,
and she gave a different version of events related to the broom
incident. She acknowledged that she had taken Bella to a hotel
that night. But she denied that Bella had ever told her that
Navarrete had touched her inappropriately, and she stated that
she took Bella to the hotel simply because she “got upset” after
seeing Navarrete touch Bella’s face and just wanted to avoid “any
problems.” Mother stated that, after she returned from the hotel,
Navarrete told her that she “should never think that he would
harm [her] daughter.” And with regard to the second incident,
Mother testified that she had never left Bella alone with Navarrete
while she drove relatives to the airport. And she offered her view
that Navarrete “[had] been a great father and stepfather.”

¶16 At the conclusion of the State’s case, Counsel moved for a
directed verdict on the third count, the one involving the birthday
incident. The State did not oppose that motion, and the court
dismissed that charge.

¶17 Counsel also moved for a directed verdict on the other two
counts. Regarding those charges, Counsel’s argument, in its
entirety, was as follows:

With regard to the other counts, I’ll just note
that . . . in each instance the State’s own witness,
[Mother], . . . disputes the factual events as laid
down by [Bella] in the first instance.

[Mother] indicated that in fact [Bella] never
disclosed abuse to her, but rather a completely
different turn of events happened where [Mother]

happened in the living room.” The State provides no record
citation for this assertion and, as Navarrete accurately points out
in his reply brief, this assertion is factually incorrect and is
unsupported by the record.

20230036-CA 6 2025 UT App 151
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had witnessed [Navarrete] touching [Bella] on the
cheek, [she took] issue with that, and then went and
stayed at a hotel.

With regard to the second count, [Bella]
indicated that she was alone at home, and that
directly contradicted [Mother’s] testimony, which
said she never left her at home alone taking the
other sisters to the airport but leaving [Bella] alone
with [Navarrete].

So that’s it, Judge.

In this brief argument, Counsel made no assertion that Bella’s
testimony was inherently improbable and gave no indication that
he was asking the court to disregard it. After entertaining a brief
response from the State, the trial court denied the motion, stating
that the State had presented evidence from which “the jury could
reasonably find that each of the elements were satisfied.”

¶18 Next, the defense presented its case, and Counsel called
three witnesses: Bella’s older sister (Sister), Navarrete, and an
expert witness who testified about child abuse investigation
protocol and interview techniques. Sister offered her view that
Navarrete was a “[r]eally great guy, feeding us, had a roof over
our head, making sure we had shoes, clothes and just an amazing
guy.” But Sister did corroborate Bella’s testimony that, after the
broom incident, Bella disclosed to her that Navarrete had touched
her inappropriately.

¶19 Navarrete then took the stand in his own defense. During
his testimony, he denied ever inappropriately touching Bella.
Indeed, he denied ever being alone with Bella or her sisters. He
did acknowledge that, on occasion, he tickled Bella’s stomach and
kissed her face, and he stated that he was aware that Bella didn’t
like that contact. He testified that it was some of this sort of

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unwanted contact that caused Mother and Bella to stay in a hotel
on the night of the broom incident.

¶20 After the evidentiary presentations were completed, the
court discussed jury instructions with the attorneys, outside the
presence of the jury. The court began the discussion by noting that
it had in its possession the State’s proposed instructions
(submitted in advance of the previous trial date) and its own stock
instructions, but that it did not have any proposed instructions yet
from the defense. The court asked Counsel if he intended to
submit any proposed instructions, and a discussion ensued about
some additional instructions, none of which involved jury
unanimity. At the conclusion of that discussion, the court asked,
“All right, anything else that we need to address here?” In
response, Counsel stated, “No, . . . I don’t think so.”

¶21 The court then directed the parties’ attention to the verdict
forms that the State had submitted, and it asked whether those
forms had been revised to reflect the dismissal of the birthday-
party count. The State indicated that it had “re[done] the verdict
form to remove the third count” and that it had also “slightly
changed the wording.” The court then asked Counsel if he had
“had a chance to look at that,” and Counsel said he had.

¶22 After this discussion, the court instructed the jury. Those
instructions included Instruction 30, which stated (in relevant
part) as follows:

Counts 1 and 2 charge [Navarrete] with
Aggravated Sexual Abuse of a Child. Evidence was
introduced that the defendant may have committed
the offense in each count both by touching [Bella’s]
genitals and by touching [Bella’s] buttocks.

You may not find [Navarrete] guilty on each
count unless you unanimously agree that the

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prosecution has proven that [Navarrete] committed
Aggravated Sexual Abuse of a Child on that
occasion in at least one of those two specific ways
AND you unanimously agree on the specific way or
ways in which the defendant committed the offense.

¶23 The attorneys then offered closing arguments. During the
State’s argument, the prosecutor described the two incidents as
(1) “the one that led to this blow out argument between
[Navarrete] and [Mother] where they all went to a hotel” and
(2) the second time when Bella was alone with Navarrete. The
prosecutor made no mention of the fact that Bella had described
two separate touchings in connection with the broom incident.
And during Counsel’s argument, Counsel likewise made no
mention of the fact that Bella had described two touchings in
connection with the broom incident. That is, neither attorney
made any effort to draw any distinction between parts of the
broom incident.

¶24 Thereafter, the jury began its deliberations, and it was
given two verdict forms. One was a general verdict form that
asked the jury to check “guilty” or “not guilty” on each of the two
counts, with one count described as “the time he asked for the
broom” and the other count described as “the second time.” The
other was labeled “Special Verdict Form,” and it asked the jurors
to provide additional detail if they found Navarrete guilty of
either count. In particular, this form asked the jury to
“unanimously” determine, for each “guilty” count, whether
Navarrete touched Bella “[o]nly on her genitals,” “[o]nly on her
buttocks,” or “[o]n both her genitals and her buttocks.”

¶25 After deliberation, the jury acquitted Navarrete on the
count regarding the second incident. But the jury convicted
Navarrete on the count regarding the broom incident. And it
found that, with regard to that incident, Navarrete had touched
Bella “on both her genitals and her buttocks.”

20230036-CA 9 2025 UT App 151
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¶26 Later, the trial court held a sentencing hearing, and the
court noted that it had “struggled with . . . the inconsistencies in
[Bella’s] testimony that were brought to light by both [sides],
candidly, at trial.” The court also offered its view that “the jury
struggled with that as well.” For this and other reasons, and in
“the interest of justice,” the court sentenced Navarrete to a prison
sentence of six years to life (rather than fifteen years to life).

ISSUES AND STANDARDS OF REVIEW

¶27 Navarrete now appeals his conviction, and he presents two
issues for our review. First, he argues that the trial court provided
the jury with erroneous instructions regarding jury unanimity. He
acknowledges that this issue is unpreserved, and 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).

¶28 Second, Navarrete challenges the court’s denial of his
directed verdict motion on the broom incident count. In
particular, he asserts that Bella’s testimony was inherently
improbable and should not have been included in the court’s
assessment of whether sufficient evidence existed to support a
conviction. “We review a trial court’s ruling on a motion for
directed verdict for correctness.” State v. Gonzalez, 2015 UT 10,
¶ 21, 345 P.3d 1168. But as we explain below, we review here only
Navarrete’s challenge to the court’s denial of his general
insufficiency claim; any claim that Bella’s testimony was
inherently improbable is unpreserved for our review, and—with

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State v. Navarrete

regard to this claim—Navarrete does not ask us to apply any of
the exceptions to our preservation rules. 5

ANALYSIS

I. Jury Unanimity: Plain Error

¶29 We turn first to Navarrete’s assertion that the trial court
committed plain error in instructing the jury about its obligation
to render a unanimous verdict. Specifically, Navarrete argues that
the court “failed to properly instruct the jury that it must
unanimously agree about which act applied to Count 1 and failed
to conclusively link Count 1 to a specific act or incident.”
Navarrete acknowledges that his challenge is unpreserved. But he
asks us to review this issue for plain error, which is one of the
three established exceptions to our preservation rules. 6 See State v.
Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443.

¶30 To succeed on a plain error claim, an appellant must show
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. Cesspooch, 2024 UT App 15, ¶ 7, 544 P.3d
1046 (cleaned up), cert. denied, 550 P.3d 994 (Utah 2024). Thus, to
prevail here, Navarrete must prove not only that there was an

5. Navarrete filed a motion asking this court to resolve this case in
expedited fashion without a written opinion, asserting that the
issues presented in this case are uncomplicated issues of law. We
have, of course, acted to resolve this appeal with dispatch, but we
have elected to resolve it with this written opinion, and to that
extent we deny Navarrete’s motion.

6. Navarrete does not assert that Counsel rendered ineffective
assistance by not objecting to Instruction 30 and the verdict forms.

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State v. Navarrete

error in the jury unanimity instructions, but also that the error was
“so obviously and fundamentally faulty that the trial court should
have stepped in . . . without specifically being asked to do so.”
State v. Skinner, 2020 UT App 3, ¶ 30, 457 P.3d 421. For the reasons
discussed, we conclude that—on this record—Navarrete has not
demonstrated that any error was so obvious as to warrant sua
sponte trial court intervention.

¶31 The Utah Constitution states that “[i]n criminal cases the
verdict shall be unanimous.” Utah Const. art. I, § 10; see also Utah
R. Crim. P. 21(b) (“The verdict shall be unanimous.”). The
purpose of the jury unanimity requirement is to mandate “the full
concurrence of all empaneled jurors on their judgment as to the
criminal charges submitted for their consideration.” State v.
Hummel, 2017 UT 19, ¶ 25, 393 P.3d 314. It is not enough “if a jury
unanimously finds only that a defendant is guilty of a crime.”
State v. Mendoza, 2021 UT App 79, ¶ 9, 496 P.3d 275 (cleaned up).
Rather, “the jury must be unanimous on all elements of a criminal
charge.” Id. (cleaned up). The jury must not only be unanimous to
the elements, but “jury unanimity means unanimity as to a
specific crime.” Hummel, 2017 UT 19, ¶ 28 (cleaned up).

¶32 Navarrete first asserts that the jury unanimity
instructions and the accompanying verdict forms were erroneous.
And on that score, Navarrete’s argument has some force.
Navarrete points out that, during Bella’s cross-examination
testimony, she testified that the broom incident contained two
different touchings, one upstairs in the living room and the other
downstairs in her brother’s bedroom. Navarrete therefore asserts
that the jury should have been instructed that “it must
unanimously agree about which act applied to Count 1.”
Essentially, Navarrete maintains that the jury should have been
given an instruction identical or similar to Model Utah Jury
Instruction CR432, which is prescribed for situations in which
there is “evidence of more occurrences than charges” and
instructs juries that they “must be unanimous as to which

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occasion and which act [the defendant] committed for each
count.” See Model Utah Jury Instructions 2d CR432 (2024)
(cleaned up), https://legacy.utcourts.gov/MUJI/?cat=2 [https://per
ma.cc/3KGE-E4SF] [hereinafter MUJI 2d]. We agree with
Navarrete that, given Bella’s testimony about the broom incident,
an instruction like this was supported by the evidence, and that—
had Navarrete asked for it—such an instruction should have been
given.

¶33 But this is not a case—like many others in this area—in
which the parties and the court simply ignored the jury unanimity
issue. Instead of asking for the unanimity instruction prescribed
for situations in which there is “evidence of more occurrences
than charges,” the State asked the court to give a different
unanimity instruction, namely, the one prescribed for situations
in which a defendant stands accused of committing a “single
offense in more than one way.” See MUJI 2d CR430 (cleaned up).
This model instruction—as well as Instruction 30, which was
patterned after the model instruction—instructs jurors that they
cannot convict unless they “unanimously agree that the
prosecution has proven that [the defendant] committed [the
crime] in at least one of those specific ways AND [they]
unanimously agree on the specific way in which the defendant
committed the offense.” Id. This instruction was also supported
by the evidence, given Bella’s testimony that, during the broom
incident, Navarrete touched her on her vagina and her buttocks.

¶34 Under the circumstances, it was not error for the court to
have given Instruction 30. It is a correct statement of the law, it
comes directly from the Model Utah Jury Instructions, and it was
supported by the evidence at trial. Any error, then, was not in the
giving of Instruction 30 but, instead, in the failure to have given a
second and separate unanimity instruction, similar to Model Utah
Jury Instruction CR432, stating that the jury needed to be
unanimous “as to which occasion and which act [the defendant]
committed for each count.” MUJI 2d CR432.

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¶35 Assuming for purposes of discussion that the absence of a
second unanimity instruction was in fact erroneous, the question
presented here is whether any such error should have been
obvious to the trial court under the circumstances, such that the
court was obligated to intervene sua sponte and give such an
instruction. Under the circumstances, we cannot conclude that
any error here was that obvious.

¶36 As an initial matter, we note that the parties, during trial,
did not frame the broom incident as one that included multiple
touchings. During her direct-examination testimony, Bella told
the jury only about the living-room touching; she did not mention
the downstairs-bedroom touching. Information about the
downstairs touching came out only during cross-examination,
when Counsel attempted to impeach Bella by pointing out
inconsistencies between her trial testimony and her CJC interview
statements, including that she had told the CJC interviewer about
the downstairs touching. And in their arguments at trial, neither
side emphasized—or even mentioned—the fact that there was
evidence of two touchings during the broom incident; instead,
both sides framed that incident as a monolithic event that
potentially involved touching of both Bella’s genitals and
buttocks. Given the framing the parties put on the events, it would
not have been obvious to the trial court that the “more occurrences
than charges” jury instruction was warranted. Id.

¶37 Moreover, and significantly, our analysis here is informed
by our “invited error” caselaw. “When an error is invited by an
appellant, we will not review it even for plain error.” State v. Popp,
2019 UT App 173, ¶ 23, 453 P.3d 657 (cleaned up). And this makes
sense: after all, one of the three elements of a plain error claim is
“obvious” error, and when the parties ask a trial court to take a
particular action, any error in that action will usually not be
obvious to the court. At a minimum, it seems unfair to hold the
court responsible for an error that the parties asked it to make.

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¶38 In this vein, we have noted that our supreme court’s
definition of what constitutes “invited error” varies depending on
the context, and that “in the context of jury instructions, our
supreme court has held that an instruction is not subject even to
plain error review if counsel, in response to a question from the
court about whether counsel has any objection to the instruction,
answers in the negative.” Id. (cleaned up). In Popp, for instance,
we held that any error in jury instructions had been invited when
“the court gave both attorneys a copy of the instructions and a
chance to look them over, and then asked generally if anyone had
any objection to any of them,” and the defendant’s “attorney
stated plainly, on the record, that he did not.” Id. ¶ 24. Other cases
with similar facts exist. See, e.g., State v. Hamilton, 2003 UT 22, ¶ 55,
70 P.3d 111 (holding that any error in jury instructions was invited
where “[b]oth the prosecutor and defense counsel . . .
affirmatively indicat[ed] that they had no objections to the
instructions”); State v. Ramos, 2018 UT App 161, ¶ 23 n.9, 428 P.3d
334 (holding that any error was invited when counsel stated that
he had no “issue with th[e] instruction”). Indeed, in State v.
Holsomback, the State, defense counsel, and the court “worked
together to compile [the] instructions,” and at the end of the
process, the court asked defense counsel if there were any
objections to the instructions, and she responded, “No. Not really.
I think they’re mostly MUJIs.” 2022 UT App 72, ¶ 37, 513 P.3d 82.
And with regard to the specific instruction at issue on appeal,
defense counsel stated that she was “fine with that.” Id. Finally, at
the end of the process, “the court asked the parties whether there
was ‘anything else’ to discuss regarding the instructions,” and
defense counsel stated, “I think that’s it.” Id. (cleaned up). Under
those circumstances, we concluded that any error in the jury
instructions was invited and that plain error review was therefore
inappropriate. See id.

¶39 The facts of this case are quite similar to the invited error
cases we just described. During the jury instruction conference in

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this case, the court began by noting that it had in its possession
the State’s proposed instructions and its own stock instructions,
but that it did not have any proposed instructions yet from the
defense. The court asked Counsel if he intended to submit any
proposed instructions, and a discussion ensued about some
additional instructions. At the conclusion of that discussion, the
court asked, “All right, anything else that we need to address
here?” In response, Counsel stated, “No, . . . I don’t think so.”

¶40 And with regard to the verdict forms, the court discussed
with the attorneys the forms that had been submitted by the State,
and it asked whether those forms had been revised to reflect the
dismissal of the count related to the birthday incident. The State
indicated that it had “re[done] the verdict form to remove the
third count” and that it had also “slightly changed the wording.”
The court then asked Counsel if he had “had a chance to look at
that,” and Counsel responded in the affirmative. Thus, even after
an extended discussion about the instructions and the verdict
forms, and after having every opportunity to suggest instructions
and lodge objections, Counsel effectively signed off on the
instructions-and-verdict-forms package.

¶41 We need not necessarily conclude that the invited error
doctrine applies here in order to conclude that any error in this set
of jury instructions was not, and should not have been, obvious to
the trial court. 7 As far as the trial court was concerned, the
attorneys had discussed the matter and had handled jury
unanimity issues to their satisfaction. They both signed off on the
instructions and the verdict forms. On this record, we think it

7. Indeed, the State does not argue that the invited error doctrine
applies here, although it does argue that the jury instructions and
verdict forms did not contain any obvious error. And we stop
short of concluding that the doctrine applies here, because such a
conclusion is unnecessary to our ultimate determination that any
error was not obvious to the court.

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would be unfair to the trial court to ascribe to it plain error
because it opted not to jump in, without being asked, and amend
jury instructions that the parties had agreed upon. In this
situation, any errors in the jury instructions are better ascribed to
the attorneys and not to the trial court. 8

¶42 Accordingly, Navarrete’s plain error claim founders on the
second element, because he has not demonstrated that any error
in the jury instructions and verdict forms was, or should have
been, obvious to the trial court under the circumstances. On that
basis, we reject his claim.

II. Directed Verdict Motion

¶43 Next, Navarrete challenges the trial court’s denial of his
directed verdict motion on the broom incident count. In
particular, he asserts that Bella’s testimony was inherently
improbable and should not have been included in the court’s
assessment of whether sufficient evidence existed to support a
conviction. While Navarrete certainly preserved a general

8. Perhaps for this reason, our recent jury unanimity caselaw has
arisen in the context of ineffective assistance claims, and not in the
context of plain error claims. See, e.g., State v. Baugh, 2024 UT 33,
¶ 15, 556 P.3d 35; State v. Alires, 2019 UT App 206, ¶ 15, 455 P.3d
636. Indeed, in some of these cases, we have expressly rejected
plain error claims, even while proceeding to evaluate claims of
ineffective assistance on the merits. See, e.g., State v. Carrick, 2020
UT App 18, ¶¶ 33–35, 38–39, 458 P.3d 1167 (declining plain error
analysis because counsel invited any error, but still analyzing the
merits of an ineffective assistance of counsel argument); State v.
Popp, 2019 UT App 173, ¶¶ 24–25, 453 P.3d 657 (finding the plain
error exception “inapplicable” to the improper jury instruction
claim, but still evaluating the issue under an ineffective assistance
of counsel argument). But we need not do so here, because
Navarrete does not raise an ineffective assistance claim.

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State v. Navarrete

insufficiency challenge, he did not preserve for appellate review
the separate but related assertion that Bella’s testimony was
inherently improbable and should not have been considered in
assessing his directed verdict motion, and he does not ask us to
review that part of his challenge under any applicable exception
to our preservation rules. We therefore do not consider the merits
of that part of his challenge, and we reject his general insufficiency
challenge on the merits.

¶44 In State v. Robbins, our supreme court held that “inherently
improbable” testimony cannot support a verdict, and that such
testimony can therefore be excluded from consideration in
assessing whether sufficient evidence supports a verdict. See 2009
UT 23, ¶ 16, 210 P.3d 288. In situations like this one, where a
defendant raises a Robbins claim in connection with a directed
verdict motion, “our analysis has two parts.” State v. Barnes, 2023
UT App 148, ¶ 19, 542 P.3d 108, cert. denied, 544 P.3d 459 (Utah
2024). First, we must analyze whether the evidence Navarrete
claims is inherently improbable “is of such a poor quality that it
should be disregarded.” State v. Jok, 2021 UT 35, ¶ 30, 493 P.3d 665.
Second, we must undertake the sufficiency analysis, considering
only the evidence remaining after any inherently improbable
evidence has been excluded. See State v. Mayorga, 2024 UT App
182, ¶ 28, 561 P.3d 1184, cert. denied, 568 P.3d 261 (Utah 2025); see
also Jok, 2021 UT 35, ¶ 30 (“If the court determines that the
challenged piece of evidence should be disregarded, it must then
determine if sufficient evidence remains under which a
reasonable jury could have convicted.”).

¶45 But before we engage in that exercise, we must examine the
extent to which Navarrete has preserved his claim. “A Robbins
inherent-improbability claim is subject to a separate preservation
requirement.” Mayorga, 2024 UT App 182, ¶ 29. Such a claim must
be separately preserved; simply moving for directed verdict
based on insufficiency of the evidence is often not sufficient to
preserve a Robbins claim for appellate review. See State v. Doyle,

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State v. Navarrete

2018 UT App 239, ¶ 19, 437 P.3d 1266 (“Robbins may be a
component of an insufficiency challenge, but not every
insufficiency challenge raises a Robbins issue.”). A Robbins claim
“introduces a new legal theory” separate from simple
insufficiency, and it asks a court to review the sufficiency of the
evidence “only after [certain] testimony is ignored as inherently
improbable.” Id. (cleaned up). And to preserve that theory for
appellate review, a defendant must raise it to the trial court with
enough specificity to allow the court to make a ruling on it. See
Mayorga, 2024 UT App 182, ¶ 29 (“To preserve any issue for
appellate review, the issue must be specifically raised such that
the issue was sufficiently raised to a level of consciousness before
the trial court.” (cleaned up)); see also State v. Skinner, 2020 UT App
3, ¶ 29, 457 P.3d 421 (“A defendant who wants a trial court to
disregard a witness’s testimony under Robbins before, or in
connection with, undertaking a sufficiency-of-the-evidence
review must make that request known to the trial court so that the
court has an opportunity to rule on the issue.”).

¶46 In this case, by making a directed verdict motion at the
close of the State’s evidence and asserting that the evidence was
insufficient, Navarrete certainly preserved a general insufficiency
argument for appellate review. But in making that motion,
Navarrete did not specifically preserve a Robbins claim for our
review. As already noted, see supra ¶ 17, Navarrete’s directed
verdict motion was brief, and in it there was no assertion that
Bella’s testimony was inherently improbable or that it should be
disregarded in any insufficiency analysis. To the contrary,
Counsel pointed out only that critical parts of Bella’s testimony
had been refuted by Mother’s testimony. There is simply no
indication, in either the motion or in the trial court’s eventual
ruling, that any party intended for the court to consider whether
Bella’s testimony should be evaluated under Robbins.

¶47 Thus, the conclusion is inescapable that Navarrete failed to
preserve any Robbins claim for appellate review. And Navarrete

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State v. Navarrete

does not ask us to review this claim under any of our established
exceptions to our preservation rules. We therefore decline to
consider the merits of Navarrete’s Robbins claim. See State v.
Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (“A failure to preserve an
issue in the trial court generally precludes a party from arguing
that issue in an appellate court, absent a valid exception.”).

¶48 As noted, however, Navarrete did preserve for our review
a general insufficiency claim. It is somewhat unclear, from his
briefing, whether Navarrete intends to advance a general
insufficiency challenge on appeal. But assuming he intends to
advance such a challenge, it fails on its merits.

¶49 The universe of evidence to be considered in any such
general insufficiency challenge necessarily includes Bella’s
testimony, as well as all other evidence presented at trial. See
Mayorga, 2024 UT App 182, ¶ 35. And that evidence is easily
sufficient to support a verdict convicting Navarrete with regard
to the broom incident. We will uphold a trial court’s denial of a
sufficiency challenge “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. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d
1168 (cleaned up). Here, the evidence in the record, when viewed
in a light favorable to the State, is enough to support a conviction.
Bella testified that Navarrete put her on the table and started
kissing her and touching her “butt and [her] vagina” under her
clothing. And Sister at least partially corroborated that testimony,
telling the jury that Bella told her later that evening that Navarrete
had touched her inappropriately. Although much of this
testimony was contradicted by Mother, we agree with the trial
court that, based on this evidence, “the jury could reasonably find
that each of the elements [of the charged crime] were satisfied.”

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State v. Navarrete

¶50 Accordingly, we reject Navarrete’s challenge to the trial
court’s denial of his directed verdict motion regarding the
sufficiency of the evidence.

CONCLUSION

¶51 Navarrete has failed to show that the trial court committed
obvious error regarding the unanimity instruction, and for that
reason he has not met the requirements for plain error. Navarrete
failed to preserve for appellate review any claim that Bella’s
testimony was inherently improbable and, on that basis, we do
not address that argument in connection with a sufficiency-of-the-
evidence analysis. And when considering Bella’s testimony in that
analysis, sufficient evidence exists to support Navarrete’s
conviction. We therefore reject Navarrete’s appellate arguments
and affirm his conviction.

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