State v. James

2026 UT App 20

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JAMES LOUIS JAMES,
Appellant.

Opinion
No. 20221106-CA
Filed February 12, 2026

Second District Court, Ogden Department
The Honorable Craig Hall
No. 211902816

Staci Visser and Ann Marie Taliaferro,
Attorneys for Appellant
Derek E. Brown and Alexandra Herlong,
Attorneys for Appellee

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

HARRIS, Judge:

¶1 A jury convicted James Louis James of three counts of
aggravated sexual abuse of his daughter, and the trial court
sentenced him to prison. He now appeals his convictions and
sentence, asserting that his trial attorney rendered ineffective
assistance in various respects. We find merit in one of James’s
arguments regarding one of the three counts, and we accordingly
reverse James’s conviction on that count and remand the case to the
trial court for further proceedings on that count. But we reject all of
James’s other arguments, including those in his motion for a remand
to the trial court for further factfinding on those arguments, and we
therefore deny that motion and affirm his convictions and sentence
on the other two counts.
State v. James

BACKGROUND 1

The Abuse

¶2 In 2021, when she was fifteen, Ashley 2 disclosed to her
mother (Mother) that James—Ashley’s father and Mother’s former
romantic partner—had sexually abused her several years earlier,
when Ashley was in elementary school. The next day Mother
reported the abuse to police, and a few days later Ashley was
interviewed at the Children’s Justice Center (CJC).

¶3 As Ashley described the events during her later trial
testimony, the abuse began when she was ten years old and
continued until she was twelve. When the abuse began, Ashley’s
parents were separated, and she spent half of each week with James
and the other half with Mother. Ashley described incidents in which
James would “rub” Vaseline “on the outside and the inside” of her
vagina. She described feeling “paralyzed” and “confused” when
James did this, and she said that “it would hurt and make [her] feel
uncomfortable.” These incidents would last for “multiple minutes,”
and James would tell Ashley that “[n]obody else [could] do it, only
him.” James would say that he needed to apply Vaseline because
Ashley had a “rash,” but Ashley only ever had a rash on her vaginal
area when she was “very young, under five” years old, and never
from age ten to age twelve. Beyond this, Ashley said that James
would sometimes “grab” and “smack” her buttocks when she was
walking upstairs and would sometimes touch her breasts.

1. “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).

2. A pseudonym.

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State v. James

¶4 Ashley described three categories of incidents in additional
detail. First, she testified that James had a swimming pool at his
house and that before she would get into the pool, James would take
off her swimming suit and “put Vaseline on [her] vagina to stop the
rash” and “protect it from the swimming pool.”

¶5 Second, Ashley testified that on “Friday mornings before
school,” after she was already dressed for the day, James would
have her take the Vaseline from the hallway closet so he could “put
it on [her]” before they left for school. Ashley said that during these
incidents, she would lie “on the hallway floor” while he rubbed the
Vaseline on her vagina.

¶6 Finally, Ashley described incidents involving showers and
baths. She testified that James would “sometimes” join her in the
shower and “stand super close to [her] and hug [her] while [they]
were in the shower,” that he would also wash her hair and scrub her
back with a luffa, but that he never touched her “private[]” areas
during the showers. He told her that they should shower together
because he wanted to “sav[e] water.” And when Ashley took a bath
instead of a shower, James would fill the tub with only an “inch” of
water—again, ostensibly to save water—making it so that “she’d
have to roll around to get all wet,” and James would sit on the toilet
watching her. Her trial testimony included no specific mention of
James touching her during these baths.

¶7 Ashley said that these incidents continued for about two
years, then ceased during her sixth-grade year. She explained that,
during that year, she attended a “DARE program” where
students learned about “sexual assault awareness and drug
awareness.” After attending the DARE program, she went home
and told James that she had learned that what had been happening
was “wrong.” And after that, the abuse “didn’t happen again.” At
that point, Ashley still did not tell anyone in her family about the
abuse, but she did tell her best friend (Friend), who told Ashley that
James’s behavior was “wrong” and “not normal” and that she

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should report it to protect her little sister from getting “hurt in the
same way.”

¶8 At some point thereafter, Ashley told Mother that she
wanted to spend more time with her. Mother reported that when
she brought Ashley’s request to James’s attention, James
responded by saying that Ashley was “an ungrateful bitch just like
her mother.” After that comment, James stopped coming to pick
Ashley up, and she instead spent nearly all of her time at Mother’s.
According to Mother, after Ashley began spending more time at
Mother’s, Ashley became “reclusive” and “distant” and “didn’t
want to leave her room.” Her grades fell and she began to sleep
more, and Mother perceived that Ashley “didn’t care about
anything.” Mother also noticed that Ashley would never take a
bath—which Mother viewed as unusual—and instead chose to
shower but would only do so at night. At some point during this
time, Ashley disclosed to Mother that “her dad was touching her
inappropriately.”

Pretrial Proceedings

¶9 After investigating Ashley’s allegations, the State charged
James with three counts of aggravated sexual abuse of a child,
all first-degree felonies. During a pretrial conference, the court
pointed out that all three of the charged counts were described
identically in the information, and it asked the attorneys for
their input on what sort of clarification should be given to the
jury about that. The State then clarified that it intended Count 1
to refer to “an incident regarding the swimming pool in
the backyard,” Count 2 to refer to “an incident as [Ashley was]
getting ready to go to school,” and Count 3 to concern “an incident
or instances regarding showering and bathing.” The court
indicated that this clarification was “helpful,” and it told the
attorneys to come up with a way to communicate that information
to the jury.

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State v. James

The Trial

¶10 The trial began a few days later, and during opening
statements, the prosecutor explained that James had been charged
with three counts of aggravated sexual abuse of a child, and the
prosecutor clarified which acts were intended to go with which
counts. He explained that Count 1 involved “a swimming pool” in
the backyard and involved James “rub[bing] some Vaseline” on
Ashley’s vagina before she got in the pool. He explained that Count
2 involved “another incident” that took place on “a Friday morning”
when Ashley was “about to head off to school” in which James
rubbed Vaseline on her vagina. And the prosecutor explained that
Count 3 involved showering and bathing, stating as follows:

You will hear about the details of the showering, how
whenever [Ashley] trie[d] to get into the shower,
[James] would go in there and say hey, let’s do this
together because we need to save water. Again, taking
a bath where he gives [her] one inch of water and tells
her go ahead, there’s your bath, roll around in it.

The State specifically mentioned that James would be “really close
to” Ashley in the shower, that he “shampooed her hair,” and that he
“gave her a hug inside the shower.” And when describing incidents
in the bath, instead of describing physical contact, the State
mentioned James only sitting “on the toilet seat and watch[ing] her.”

¶11 During trial, the State presented testimony from eight
witnesses, including Mother, Ashley, Friend, and James’s former
girlfriend (Stepmother), who all testified about the events described
above. The State’s other witnesses were Ashley’s therapist, a
forensic nurse, a CJC interviewer (Interviewer), and a detective.

¶12 Mother testified first, and she acknowledged that the
statement she gave to police during the investigation contained an
inaccuracy: it incorrectly stated that the abuse stopped when Ashley
was in fifth grade (rather than sixth). She clarified that she had been

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State v. James

confused at the time she gave her statement, because she had
confused the “maturation clinic” that Ashley had in fifth grade with
the DARE program that Ashley had in sixth grade. On cross-
examination, James’s attorney (Counsel) inquired about when
Ashley started to stay full-time with Mother, and Mother testified
that this occurred about a year after James and Stepmother ended
their relationship. Counsel also asked Mother about her initial
report to police after Ashley disclosed the abuse. Mother testified
that initially, because Ashley had yet to get “into very much detail,”
she reported that Ashley told her that the abuse “happened as long
as she could remember until she reached the fifth grade.” And
because this differed from later reports, Counsel asked if Mother
“made up things” when reporting this to police, to which Mother
responded, “That was my understanding at that point.”

¶13 On the morning of the second day of trial, the court discussed
jury instructions with the attorneys. During this discussion, the State
brought up the court’s earlier concern about “identifying which
count goes to which conduct,” and it proposed adding a version of
Model Utah Jury Instruction CR431, the instruction that addresses
“jury unanimity” in cases involving “multiple offenses with
identical elements.” See Model Utah Jury Instructions 2d CR431
(2022), https://legacy.utcourts.gov/muji/?cat=2 [https://perma.cc
/3VQQ-UCBC] [hereinafter MUJI 2d]. Counsel said he was “okay
with” that approach.

¶14 Later during that same discussion, the attorneys announced
that they had reached a stipulation regarding certain items of
evidence. In particular, Counsel wanted to be able to use the
transcript of Ashley’s CJC interview, and the State agreed to
stipulate to admission of that transcript in exchange for Counsel’s
agreement that the State could use a journal that Ashley had
developed during therapy. But while the stipulation allowed the use
of this evidence during questioning, the stipulation did not include
an agreement that the CJC interview transcript could go back with
the jury during deliberations; indeed, when the State later explained

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State v. James

these stipulations to the jury, it noted that the CJC transcript would
“not be able to go back . . . for deliberations.”

¶15 When trial resumed, Ashley took the stand. Regarding Count
3, the prosecutor asked Ashley to tell the jury “everything about
[her] taking a shower” at James’s house. After she testified about the
shower incidents, the State asked her to talk separately “about when
[she] would take a bath” at James’s house. During cross-
examination, Counsel asked questions that differentiated between
the shower incidents and the bath incidents. For instance, Ashley
clarified that during the shower incidents, James would “wash [her]
hair” and “scrub [her] back with a luffa.” Ashley stated that James
had never touched her “privates” in the shower. And Counsel asked
Ashley to confirm that during the bath incidents, James “never
touched [her] there either,” and Ashley said he did not.

¶16 Interviewer testified next. On cross-examination, Counsel
utilized the transcript of Ashley’s CJC interview. He started by
asking Interviewer about Ashley’s statements, in the interview,
about James touching her buttocks and chest. He clarified with
Interviewer that these touchings were “over the clothing.” Counsel
also used the transcript to frame questions about how the inside of
the house’s hallway looked and how James would carry Ashley into
the bathroom before showers and baths. He specifically emphasized
that when Ashley spoke to Interviewer about the shower incidents,
she described James washing her body and hair but never described
“anything about an erection or anything of that nature.” Counsel
also pointed to a part in the transcript where Ashley told
Interviewer that the abuse stopped once she learned about sexual
assault in the DARE program. And Counsel asked Interviewer, “Are
you aware that the DARE program really talks about drugs and
police and . . . safety, that kind of thing, not sexual abuse?”
Interviewer responded in the affirmative.

¶17 After that, Ashley’s therapist took the stand. It was through
her testimony that the State admitted Ashley’s therapy journal.

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State v. James

During therapy, the therapist had asked Ashley to respond to a
series of prompts to help her “open” and “soften up” when
recounting the “story that had caused [her] distress,” and Ashley
recorded her responses to these prompts in the journal. On one of
the pages of the journal, Ashley was prompted to write about the
“person that hurt” her. There she described James, his character, his
work, and his friends, but she did not mention the abuse. On the
page describing “[w]hat happened,” Ashley wrote that it was
“traumatic and kind of crazy.” She also wrote that there were good
times but with that “came bad” times, like James “showering with
[her]” and “touching [her] in [inappropriate] places.” Ashley also
wrote about learning about sexual assault in the DARE program and
about the abuse stopping after telling James what she had learned.
Other pages of the journal included Ashley’s observations about
how other people found out, what she learned from counseling, the
hardest part of her story, her safety plan, and her future—all of
which was substantially similar to her trial testimony.

¶18 The State also called Stepmother to testify. Stepmother
started dating James when Ashley was five years old, and over the
years Ashley and Stepmother became “very close” and spent a lot
of time together. Stepmother testified that during the years in
question, there were “rarely” times when James would be alone
with Ashley. Stepmother also testified that even after she and James
ended their relationship, she remained “involved” with Ashley for
another “couple years,” and she testified that Ashley had “a hard
time” with her and James’s breakup.

¶19 After the State rested its case, Counsel presented James’s
defense, and he called five witnesses: a friend and colleague of
James, James’s uncle (Uncle), James’s mother, an expert witness on
manufactured memory (Expert), and James himself.

¶20 Uncle testified about his observations of interactions between
James and Ashley, the relationship between James and Mother, and
the layout of James’s house. He also stated that he had not been on

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State v. James

speaking terms with James for the last three years and had only “just
barely started communicating” with him again. Then on cross-
examination, the State brought up a previously undisclosed
telephone conversation one of its prosecutors had with Uncle before
trial in which Uncle stated as follows: “We just barely started
communicating . . . and as much as I don’t like him, I don’t believe
that—you know, what I’m saying is I kind of thought that he did it.”
Uncle attempted to explain away his comment by stating, “Because
of the fact that we weren’t talking. I guess what I was trying to say
was I never thought he did it. What I wanted to say was I was
fighting with him, so it was his deal, you know, whatever,
whatever.” On redirect, Counsel then asked to “play another couple
of minutes of the tape immediately after that.” The State agreed, and
the jury heard the following portions of the phone call:

[Y]ou know, what I’m saying is I kind of thought that
he did it, because of—I didn’t like him.

....

First of all I want to tell you that I’ve seen
[Ashley] grow up, and [James has] been nothing but a
great dad to her. In fact, she hated to go back to
[Mother].

....

You know, she loved being with [James].

Counsel then asked Uncle to clarify what he meant by those
comments, and Uncle responded, “[W]hen [the prosecutor] was
talking to me about that, what I was getting at was that, you know,
I didn’t care what happened to [James] at this point because we were
not really talking. Then we reconciled after that, and I think I said
on that tape that, you know, that was basically why I said that. That
wasn’t that I actually thought that he’d ever done it.”

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State v. James

¶21 After the second day of trial ended, the parties and the court
finished their discussion about jury instructions. In discussing the
jury unanimity issue, the court observed that MUJI 2d CR431—a
version of which the attorneys had already agreed should be
given—requires a “description with respect” to each count. The
State and Counsel then agreed to come up with a stipulated version
of that instruction by the next morning. During this discussion,
neither the State nor Counsel asked for or mentioned MUJI 2d
CR432, a different unanimity instruction designed for situations in
which the State presents evidence of more occurrences than charges.
And the next morning, Counsel said he had “looked through” the
CR431 instruction, which was drafted by the State, and thought it
was “totally accurate.” The instruction—which was given to the jury
as Instruction 29—described the three counts as follows:

• Count 1 is based on the alleged conduct of the pool
incident occurring between December 10, 2015 to
December 10, 2018.

• Count 2 is based on the alleged conduct of the Friday
morning before school incident occurring between
December 2015 to December 10, 2018.

• Count 3 is based on the alleged conduct of the
showering/bathing incident occurring between
December 10, 2015 to December 10, 2018.

¶22 On the third day of trial, the parties discussed some
outstanding procedural matters. During this discussion, the court
asked whether both the CJC transcript and the therapy journal were
to go “into the jury room with the jury.” Counsel responded, “No.”
And the State agreed, stating, “No, . . . [t]he rules are quite clear, the
CJC video or the CJC transcript cannot go back with the jury for
deliberations.” Both attorneys did agree, however, that the therapy
journal could go back with the jury. The court then said, “The
journal will be sent back to be reviewed by the jury,” “[b]ut the CJC
transcript will not.” And the court concluded the discussion by

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State v. James

stating, “[W]e’re going to keep the CJC transcript and not have that
go back with the jury during deliberations, as everyone has agreed.”

¶23 After that, the defense presented testimony from two more
witnesses: Expert and James. Expert provided testimony on false
memory and memory malfunction. He testified about the fallibility
of memory, citing research and articles he had studied. On cross-
examination, the State pointed out that Expert had only ever
testified for defendants and had previously “testified on this exact
topic” with Counsel “on the same type of child sex assault jury trial”
about a year and a half prior. And in a further effort to impeach, the
State elicited an acknowledgment from Expert that his license had
once been temporarily suspended, almost twenty-five years earlier,
“for a boundary violation” and an “inappropriate sexual
relationship with a client.”

¶24 The last person to testify was James himself. During his
testimony, he consistently denied the allegations against him.
Counsel asked James about Ashley’s testimony about the DARE
program, and James testified that all he remembered about the
DARE curriculum was “basically” “drugs and alcohol.” With that,
the defense rested.

¶25 During closing arguments, the prosecutor began by
clarifying that the case was about three incidents: “an incident
involving Vaseline and the swimming pool,” “another incident
involving Vaseline and Friday morning [before] school,” and “the
‘saving water’ incident” that had to do with “shower[ing] and
bathing.” In recalling Ashley’s testimony about the swimming pool
incident, the State said, “[S]he talked about . . . the swimming pool
in the backyard and how before she was able to get into that
swimming pool . . . [James] would say okay, let’s come here first.”
And when describing Count 3, the State said, “[Ashley] also talked
about showers and how when she takes showers . . . [James] would
be super close to her, and he would hug her in the shower.” Also
regarding Count 3, the State said, “She talks about baths or bathing.”

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To emphasize its point on Count 3, the State began quoting directly
from the CJC transcript, even reading some excerpts that had not
been previously read or referred to during witness testimony. For
instance, the State read an excerpt in which Ashley stated that
during the bath incidents, James would put very little water in the
tub and would make her “roll around to wash [her] body” and then
“when [she] couldn’t . . . , he would . . . have to do it for [her].” And
the State read another excerpt where Ashley stated that James
“would use . . . a luffa, so it was just . . . fast, and he would do it a
lot then, but then [she] started showering at night.” Counsel lodged
no objection to the State’s recitation, during closing argument, of
CJC transcript quotes that had not been previously introduced to the
jury during witness testimony.

¶26 During his closing argument, Counsel characterized Ashley’s
account of abuse as “manufactured memories.” He posited that the
events Ashley described might have “actually happened, but not in
the way that she sa[id],” and that the incidents had “morphed” in
Ashley’s mind “from a totally innocent and appropriate action by
[James] into something criminal.” He pointed out that Ashley had
been confused about whether she learned about sexual assault in the
DARE program, and in arguing that Ashley had manufactured false
memories, Counsel referred to Interviewer’s testimony that “the
DARE program talks about drugs and police interaction” but not
“sexual issues.” He also emphasized that, during her testimony,
Interviewer confirmed that Ashley, during her CJC interview, did
not “describe any touching sexually” during the shower incidents
or say that James “had an erection” during those incidents. And in
relation to what Counsel called “the washing and the bathtub”
incidents, Counsel referenced the State’s closing argument and
recited that the State had pointed to Ashley’s statements that during
the bath incidents, James would “use a luffa” and “would wash her
back” and “her hair.” He noted that other stressful factors could
have affected Ashley’s memory, and he mentioned the breakup
between James and Stepmother (which had occurred only a few
months before Ashley disclosed the abuse). Finally, Counsel pointed

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out some of the inconsistencies between Ashley’s and Mother’s
testimony about the timeline of events (fifth grade versus sixth
grade, for instance), calling those inconsistencies a “problem” for
the State because Mother’s “significantly different story” could not
be “corroborating evidence.”

¶27 On rebuttal, the State emphasized the three different counts.
It again described the counts “[b]ased on specific disclosures,” with
Count 1 being the “swimming pool incident,” Count 2 relating to
the “Friday morning going to school incident,” and Count 3 as “the
shower and the bath” incident. In reference to the physical contact
and sexual gratification element of the charge, the prosecutor again
discussed Count 3 and asked the jury to use its “common sense”
because James “bathed [Ashley] and showered with her” and “[i]f
he bathed her, he probably bathed her entire body.”

¶28 After the jury left to deliberate, the court discussed what
evidence was to go back with the jury into the jury room. The court
said, and Counsel agreed, that “the only exhibit . . . that need[ed] to
go back . . . [was] the journal.” But despite this instruction, a copy of
the CJC interview transcript somehow ended up going back with
the jury during deliberations. And after deliberating, the jury found
James guilty as charged on all three counts.

Sentencing

¶29 A few weeks later, the court held a sentencing hearing. At the
outset of that hearing, the court indicated that it had reviewed the
presentence investigation report and the “victim impact statement,”
as well as “dozens of letters sent in from family members and
friends, both in support of [Ashley] and also in support of [James].”
When it was his turn to address the court, Counsel acknowledged
that the presumptive sentence was “15 to life” on each count, but he
pointed out that the court was “well aware” that it wasn’t “bound
by that.” In particular, Counsel noted that the court could suspend
any prison sentence and “grant probation,” and that the court could
“do whatever [it wanted] as far as sentencing [was] concerned.”

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Counsel specifically asked the court “to deviate” from the
presumptive sentence. Counsel pointed out that James had no
previous criminal record, and he argued that James was not “a
danger to himself or others,” especially considering the fact that it
had been “four or five years until this thing was presented to the
police, and he [hadn’t] committed anything.” Counsel ultimately
asked the court to sentence James to “160 days in jail” followed by
“probation” with conditions, including “any class or counseling that
is deemed necessary by the [c]ourt.”

¶30 In response, the State asked the court to impose consecutive
prison sentences of fifteen years to life. In particular, the State
argued that James had not accepted responsibility for his actions, as
exemplified by a comment James made to the probation officer
preparing the presentence investigation report in which James said,
“This whole thing was a fucking joke.” In that same vein, the State
also emphasized the probation officer’s comment that James’s
“behavior was disrespectful and unwarranted” and that he had a
“poor attitude towards the present offenses.”

¶31 Ultimately, the court sentenced James to fifteen years to life
in prison on all three counts, but it ordered that the sentences run
concurrently to one another.

ISSUES AND STANDARDS OF REVIEW

¶32 James now appeals both his convictions and his sentence,
asserting that Counsel rendered constitutionally ineffective
assistance. “When an ineffective assistance claim is raised for the
first time on appeal, it presents a question of law” that we address
in the first instance. See State v. Rivera, 2022 UT App 44, ¶ 21, 509
P.3d 257. James acknowledges that some of his ineffective assistance
claims cannot be supported by the evidence in the record, and with
regard to these claims he seeks a remand, pursuant to rule 23B of
the Utah Rules of Appellate Procedure, to enable him to supplement
the record with evidence to support the claims. “A remand under

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State v. James

rule 23B 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.
Tuinman, 2023 UT App 83, ¶ 53, 535 P.3d 362 (cleaned up).

ANALYSIS

¶33 To succeed on an ineffective assistance claim, James must
make a two-part showing: (1) that Counsel’s performance was
deficient in that it “fell below an objective standard of
reasonableness” and (2) that this deficient performance “prejudiced
the defense” such that “there is a reasonable probability that, but for
[C]ounsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668,
687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d
350; State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. Failure to prove
either component is fatal to the claim; “[u]nless a defendant makes
both showings, it cannot be said that the conviction . . . resulted from
a breakdown in the adversary process that renders the result
unreliable.” Strickland, 466 U.S. at 687. Thus, “if either is lacking, the
claim fails and this court need not address the other.” State v. Kufrin,
2024 UT App 86, ¶ 55, 551 P.3d 416 (cleaned up).

¶34 The first part of the test requires James to show that Counsel’s
performance “fell below an objective standard of reasonableness.”
Scott, 2020 UT 13, ¶ 31 (cleaned up). When determining
reasonableness, courts often look to whether the actions counsel
took were motivated by trial strategy. See id. ¶ 35 (“[T]he
performance inquiry will often include an analysis of whether there
could have been a sound strategic reason for counsel’s actions.”).
And while “the ultimate question is not whether there was a
possible strategic reason for counsel’s conduct, but instead whether
that conduct was objectively reasonable,” see id., “[i]f it appears
counsel’s actions could have been intended to further a reasonable
strategy, a defendant has necessarily failed to show unreasonable
performance,” Ray, 2020 UT 12, ¶ 34.

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¶35 If deficient performance is established, James must next show
that he was prejudiced by that performance. To establish prejudice,
he “must show that there is a reasonable probability that, but for
[C]ounsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. A defendant trying to show that there is a “reasonable
probability of a different outcome” faces “a relatively high hurdle to
overcome.” State v. Garcia, 2017 UT 53, ¶ 44, 424 P.3d 171.

¶36 In this case, James claims that Counsel rendered ineffective
assistance in ten different ways. James attempts to support the first
three claims by referencing evidence already in the record. But he
acknowledges that the other seven claims are unsupported by the
record, and with regard to these claims, he seeks an order of remand
to the trial court so that he can supplement the record to support his
claims. We first discuss the three claims that James supports with
record evidence, and we then turn to a discussion of the seven rule
23B claims. For the reasons discussed below, we reject all of James’s
claims except the jury unanimity claim regarding Count 3, and we
deny his motion for a rule 23B remand.

I. Record-Based Claims

¶37 James makes three ineffective assistance claims that are
grounded in evidence already in the record. First, he asserts that
Counsel rendered ineffective assistance by choosing to stipulate to
the admission of Ashley’s therapy journal in exchange for the State’s
stipulation to the admission of the CJC transcript. Second, he asserts
that Counsel rendered ineffective assistance at sentencing when he
argued for probation but did not specifically ask the court, in the
alternative, to impose a shorter prison sentence. And third, he
asserts that Counsel rendered ineffective assistance by not
requesting more specific jury instructions regarding unanimity. We
discuss each of these claims, in turn.

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State v. James

A. Evidentiary Stipulation

¶38 James asserts that Counsel’s assent to the stipulation that
allowed both the CJC transcript and Ashley’s therapy journal to be
admitted at trial constituted ineffective assistance because, as James
now sees it, that stipulation benefited only the State and worked to
James’s detriment. Indeed, James asserts that he gained “[n]othing
beneficial” as a result of this stipulation. In our view, the record does
not support this assertion, and we therefore decline to second-guess
Counsel’s decision to enter into the evidentiary stipulation.

¶39 An attorney’s “reasonably informed strategic choices are
almost unassailable” in a deficient performance inquiry. See
Archuleta v. Galetka, 2011 UT 73, ¶ 96, 267 P.3d 232; see also State v.
Rivera, 2022 UT App 44, ¶ 37, 509 P.3d 257 (“If it even appears
counsel’s actions could have been intended to further a reasonable
strategy, a defendant has necessarily failed to show unreasonable
performance.” (cleaned up)). Indeed, any “decision by counsel that
reasonably weighs the risks and benefits of available strategic
approaches before choosing one as preferable to others cannot
support a claim that counsel was deficient in either strategy or
performance, even if the approach did not lead to the desired
result.” State v. Franco, 2012 UT App 200, ¶ 10, 283 P.3d 1004.

¶40 Here, Counsel’s decision to enter into the stipulation James
now challenges was unquestionably a strategic one. Thus, James can
prevail on his challenge to that decision only if he demonstrates that
Counsel’s decision was objectively unreasonable. See State v. Dew,
2025 UT App 22, ¶ 64, 566 P.3d 53 (“In evaluating whether counsel
was deficient, we will not second-guess trial counsel’s legitimate
strategic choices.” (cleaned up)), cert. denied, 568 P.3d 264 (Utah
2025); see also Rivera, 2022 UT App 44, ¶ 38 (“[S]o long as counsel
could have reasonably chosen the strategy in question, and so long
as the strategy is itself reasonable, the claim must fail.”). And we
disagree with James’s contention that Counsel’s strategy here was
objectively unreasonable.

20221106-CA 17 2026 UT App 20
State v. James

¶41 To be sure, Counsel’s decision to enter into the stipulation
carried certain risks, and it is probably fair to say that not every
attorney would have chosen that strategy. But we disagree with
James’s assertion that the strategy “served no defense purpose” and
did not benefit James at all. By gaining access to the CJC transcript,
Counsel had more options in questioning Interviewer. And Counsel
used the transcript to elicit a number of clarifications from
Interviewer that Counsel believed would bolster the manufactured-
memory defense. For instance, during cross-examination, Counsel
was able to use the transcript to obtain Interviewer’s clarification
that, during the interview, Ashley stated that James only ever
touched her buttocks and chest “over the clothing.” And he was able
to clarify that when Ashley described James showering with her, she
never described “anything about an erection or anything of that
nature,” which supported Counsel’s assertion that the incidents
Ashley remembered had been innocent rather than sexual. Thus, we
see at least some benefit to Counsel’s overall defense from being able
to use the CJC transcript at trial.

¶42 Moreover, our review of the record indicates that admission
of the therapy journal—the other side of the stipulation coin—had
little (if any) negative impact on James’s position at trial. In the
journal, Ashley answered general prompts about the abuse and her
experiences thereafter to help her “open” and “soften up” by
recounting the “story that had caused [her] distress.” But the journal
contains little (if any) information that hadn’t already come into
evidence through other sources, such as Ashley’s testimony. See
supra ¶ 17. On this record, Counsel could have reasonably believed
that admission of the journal was overall neutral and did not harm
James’s case, and that admission of the CJC transcript would
provide at least some benefit to the manufactured-memory defense.

¶43 Accordingly, we cannot say that Counsel’s decision to enter
into this evidentiary stipulation was objectively unreasonable. On
this basis, we conclude that James has not demonstrated that
Counsel performed deficiently by electing to enter into it.

20221106-CA 18 2026 UT App 20
State v. James

B. Argument at Sentencing

¶44 Next, James asserts that Counsel rendered ineffective
assistance during the sentencing hearing by not specifically asking
for a shorter prison sentence. 3 He asserts that in this case, it was
unreasonable for Counsel not to specifically ask for a lesser
minimum prison sentence of six or ten years instead of fifteen. On
this record, we disagree.

¶45 While Counsel did not specifically request a lesser minimum
prison sentence, Counsel did ask the court not to impose a prison
sentence at all and to instead suspend any prison sentence and place
James on probation. As noted, see supra ¶ 29, Counsel acknowledged
the presumptive sentence of “15 to life” but also observed that the
court was not “bound by that” and that it could “do whatever [it
wanted] as far as sentencing [was] concerned.” Indeed, Counsel
made a specific request that the court “deviate from” the
presumptive minimum sentence. In this vein, Counsel asked the
court to “grant probation” instead of sending James to prison. Thus,
Counsel apparently elected to go with something of an “all-or-
nothing” strategy at sentencing.

¶46 In other contexts—most notably when assessing an
attorney’s choice to seek a lesser-included-offense instruction—we
have held that an attorney’s choice to go with an all-or-nothing
strategy is risky but not unreasonable. See State v. Devan, 2024 UT
App 193, ¶ 42, 562 P.3d 1233 (explaining that “counsel may have

3. In his opening brief, James also asserted that the trial court’s
sentence constituted plain error. But in his reply brief, James
withdrew this argument, acknowledging that because Counsel did
not specifically argue for a shorter prison sentence—and instead
chose to argue only for probation—the trial court did “not have an
obligation to consider” imposing a shorter prison sentence and
therefore could not have plainly erred by not doing so. (Citing State
v. Norton, 2021 UT 02, ¶ 108, 481 P.3d 445.)

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State v. James

perfectly valid tactical reasons to forgo the instruction and to instead
present an all or nothing defense that entails avoiding a lesser-
included offense instruction in the hopes the jury will find the
defendant totally innocent of any wrongdoing” (cleaned up)), cert.
denied, 568 P.3d 261 (Utah 2025). In our view, the same principles
apply here: the choice to take an all-or-nothing stance at sentencing
is certainly a risky ploy, but it will not be deemed deficient
performance unless the strategy is objectively unreasonable.

¶47 And here, we cannot say that Counsel’s strategy was
objectively unreasonable. While risky, Counsel’s choice to push for
the only outcome that could spare James from prison did not
constitute deficient performance. Counsel made sure that the court
was aware of its ability to “deviate from” the presumptive
minimum sentence and impose a sentence the court believed was
just. And Counsel provided the court with multiple reasons for not
sentencing James to prison, including that James had no previous
criminal record and that he was not “a danger to himself or others,”
especially considering his lack of offenses while released during the
pretrial period. Counsel’s risky approach will not be deemed
unreasonable merely because it “did not lead to the desired result.”
Franco, 2012 UT App 200, ¶ 10. On this basis, we reject James’s
second claim of ineffective assistance.

C. Jury Unanimity

¶48 In his last record-based ineffective assistance claim, James
raises a jury unanimity issue. Specifically, he asserts that because the
State turned “purported singular incidents into repeated acts on
repeated occasions,” it “ultimately gave the jury a number of
incidents and acts to choose from” when considering the charges
against James. And James points out that there was evidence
presented of multiple incidents within each category—before
entering the swimming pool, on a Friday morning before school, or
in the shower and bath—making it potentially unclear which
incident supported each count. He also argues that the State detailed

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State v. James

different types of incidents within the “shower and bath” category.
We conclude that James would have been entitled to a more specific
unanimity instruction, had he asked for one. And we conclude that
James has shown both deficient performance and prejudice
regarding Counsel’s failure to seek such an instruction regarding
Count 3. But we reject James’s similar claim regarding Counts 1 and
2 because James cannot demonstrate that, on those counts, he was
prejudiced by Counsel’s performance.

1. Correctness of the Unanimity Instructions

¶49 As an initial matter, James is correct that, in this situation, he
would have been entitled to a more specific jury unanimity
instruction had he asked for one. Utah’s constitution provides that
“[i]n criminal cases the verdict shall be unanimous.” Utah Const. art.
I, § 10. “At its most basic level, this provision requires 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. And it is “well-established”
that this requirement “is not met if a jury unanimously finds only
that a defendant is guilty of a crime.” Id. ¶¶ 26, 30 (cleaned up). Our
constitution “requires unanimity as to each count of each distinct
crime charged by the prosecution and submitted to the jury for
decision.” Id. ¶ 26 (cleaned up). Indeed, “a generic guilty verdict that
does not differentiate among various charges would fall short.” Id.
(cleaned up).

¶50 On the facts of this case, there were two potential jury
unanimity problems. First, the information charged James with
three identically worded counts of aggravated sexual abuse of a
child, and neither the counts themselves nor the probable cause
statement gave meaningful guidance regarding which acts went
with which count. This is the problem that MUJI 2d CR431—the
model instruction for cases involving multiple offenses with
identical elements—is designed to remedy. The trial court raised
this issue with the attorneys prior to trial, and the attorneys worked

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State v. James

together to create a jury instruction—modeled after MUJI 2d
CR431—that identified which acts went with which counts, and that
instruction was ultimately given to the jury. See supra ¶ 21. And the
prosecutor, during opening statement and closing argument,
repeatedly emphasized this point for jurors, reminding them on
several occasions which category of incidents went with each
charged count. In this way, the court and the attorneys solved the
first jury unanimity problem posed in this case.

¶51 But they didn’t adequately solve the second. That problem
was that the State charged James with only one count for each
category of incidents, but for each specified category the State
presented evidence that abuse occurred on multiple occasions. In
particular, Ashley testified that James abused her multiple times
before she entered the swimming pool; that he abused her multiple
times before school on Fridays; and that he abused her multiple
times while showering or bathing. Thus, the State presented
evidence of more occurrences of abuse than there were charges, and
that is the problem MUJI 2d CR432 is designed to remedy. Indeed,
this instruction is recommended for situations—like this one—in
which the “prosecution argues that [the defendant] may have
committed [a crime] more times than the number of charged
counts.” See MUJI 2d CR432 (2024). The instruction makes clear that
the jury “must be unanimous as to which occasion and which act
[the defendant] committed for each count.” Id. In this case, James
would have been entitled to a more specific unanimity instruction—
along the lines of MUJI 2d CR432—had he asked for one. See State v.
Navarrete, 2025 UT App 151, ¶ 32, 580 P.3d 379 (determining that
MUJI 2d CR432 “should have been given” where an act of abuse
labeled “the broom incident” included “two different touchings,
one upstairs in the living room and the other downstairs”).

2. Counts 1 and 2

¶52 With regard to Counts 1 and 2, we need not definitively
determine whether Counsel’s failure to ask for a more specific

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State v. James

unanimity instruction constituted deficient performance, because
we conclude that—even if it did—James has not borne his burden
of demonstrating that, with regard to Counts 1 and 2, any deficient
performance resulted in prejudice.

¶53 “Prejudice exists when there is a reasonable probability that
the case would have had a different outcome had trial counsel
not performed deficiently.” State v. Whytock, 2020 UT App 107,
¶ 28, 469 P.3d 1150. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland
v. Washington, 466 U.S. 668, 694 (1984). In this context, “prejudice
analysis is counterfactual, and so we must envision, for purposes
of our analysis, an alternative universe in which the trial went
off without the error, and then assess whether the hypothetical
trial is reasonably likely to have turned out differently from
the actual trial.” State v. Mayorga, 2024 UT App 182, ¶ 42, 561
P.3d 1184 (cleaned up), cert. denied, 568 P.3d 261 (Utah 2025).
Here, we must envision a hypothetical trial in which James
requested, and was given, a more specific jury unanimity
instruction, akin to MUJI 2d CR432, and we must ask whether it is
reasonably probable, in that trial, that the outcome would be
different.

¶54 With regard to both the “swimming pool” incidents and
the “Friday morning” incidents, Ashley did indeed testify that
more than one incident occurred. But her testimony about
these categories of incidents was entirely undifferentiated—that is,
she made no effort to distinguish between individual “swimming
pool” incidents or individual “Friday morning” incidents. Instead,
with regard to the swimming pool incidents, she testified simply
that James “would put Vaseline on [her] vagina to stop the rash”
and to “protect it from the swimming pool.” And with regard to the
Friday morning incidents, she testified that she would lie “on the
hallway floor” and that James would then “put Vaseline on [her]
vagina.”

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State v. James

¶55 In situations like this, where the evidence offers a factfinder
“no meaningful and relevant basis upon which to distinguish
the various acts underlying the charges,” it is difficult for a
defendant to demonstrate prejudice based on the mere “absence of
a jury unanimity instruction.” State v. Mottaghian, 2022 UT App 8,
¶ 66, 504 P.3d 773. In such situations, a factfinder has no evidentiary
basis upon which to differentiate between the acts in each category
and therefore has no basis upon which it might conclude that only
some, but not all, of the acts took place. Stated another way, a jury
in this situation will have “no difficulty in unanimously agreeing
that any one of the relevant criminal acts supported the charges.”
Id.; see, e.g., State v. Elton, 2026 UT App 7, ¶ 62 (concluding that a
defendant could not show prejudice arising from a lack of a more
specific jury unanimity instruction where “the evidence as to each
count was essentially identical” and, therefore, if the defendant
“was guilty of doing one of the acts—which the jury found he was—
he was guilty of them all”); Mayorga, 2024 UT App 182, ¶ 45 (stating
that there was “little differentiation upon which a factfinder could
perhaps conclude that some, but not all, of [the instances]
happened” when all five of the instances of assault “occurred on the
same evening, in the same hotel room, with the same gun, involving
the same two people, and as part of the same continuous course of
conduct”).

¶56 In this case, the swimming pool incidents Ashley
described were all indistinguishable from one another, as were the
Friday morning incidents she described. In this situation, while
James would have been entitled to a more fulsome unanimity
instruction had he asked for one, there is no reasonable probability
of a more favorable outcome with respect to Counts 1 and 2 in a
hypothetical trial in which such an instruction were given, because
on those counts “there was simply not any reasonable basis for the
jury to differentiate between” the acts Ashley described. See
Mayorga, 2024 UT App 182, ¶ 45. For this reason, we reject James’s
ineffective assistance claim regarding jury unanimity on Counts 1
and 2.

20221106-CA 24 2026 UT App 20
State v. James

3. Count 3

¶57 Our analysis with regard to Count 3 is different in several
respects. On this count, we conclude that James has borne his
burden of demonstrating both deficient performance and prejudice,
and we therefore find merit in James’s claim that Counsel rendered
ineffective assistance by not seeking a more specific jury unanimity
instruction regarding that count.

a. Deficient Performance

¶58 A line of recent Utah cases “stand[s] for the proposition that
when the State presents evidence that a defendant has committed
more criminal acts than the number of charged counts, a jury
unanimity concern may be present and an attorney may perform
deficiently by not asking for a specific unanimity instruction.” State
v. Jimenez, 2025 UT App 76, ¶ 42, 571 P.3d 834 (citing cases), cert.
denied, 581 P.3d 560 (Utah 2025). When assessing whether counsel
performed deficiently, we look to “whether there could have been a
sound strategic reason for counsel’s actions” and, ultimately,
“whether that conduct was objectively reasonable.” Scott, 2020 UT
13, ¶ 35. In this context, our supreme court has recognized that
declining to ask for an instruction along the lines of MUJI 2d
CR432—even when the facts warrant it—does not always constitute
deficient performance. See State v. Paule, 2024 UT 2, ¶¶ 68, 78, 554
P.3d 844. For instance, actions by the State, through “prosecutorial
election,” that make explicitly clear which act forms the basis of the
specific charge during the presentation of its case may obviate the
need for a specific instruction and, depending on the circumstances,
it may be reasonable for a defense attorney to rely on the State’s
identification and forgo a request for a more specific unanimity
instruction. See id. But for such a strategy to be reasonable, the State’s
“prosecutorial election” must be “clear.” See id. ¶¶ 68, 78, 82–83.

¶59 In this case, the State’s attempts to clarify the situation were
not clear enough to make it reasonable for Counsel to have forgone
a request for an instruction like MUJI 2d CR432. Here, the State’s

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State v. James

clarifications served to solve only the first unanimity problem:
indicating which category of incidents went with each count. The
State made no effort to provide any clarification about which
shower or bath act represented the act charged in Count 3, which
gave rise to the possibility that some jurors might use evidence of
the shower acts to satisfy the elements of Count 3, while others
might use evidence of the bath acts to support a conviction. See
Jimenez, 2025 UT App 76, ¶ 53 (“In the absence of a clear election
from the State, the jury is entitled to—and likely will—examine and
consider all of the supported instances of abuse in considering
whether to convict.”). Counsel could therefore not have been relying
on the State’s clarification efforts in choosing not to ask for MUJI 2d
CR432. And we are unaware of any other strategic reason Counsel
may have had for forgoing such a request. In this situation, a
reasonable attorney would have made that request, because without
an instruction like MUJI 2d CR432, the burden of proof is
“effectively lowered.” See State v. Baugh, 2024 UT 33, ¶ 40, 556 P.3d
35; accord State v. Alires, 2019 UT App 206, ¶ 25, 455 P.3d 636.

b. Prejudice

¶60 We therefore proceed to assess whether James has carried his
burden of demonstrating that Counsel’s performance prejudiced
him on Count 3. With regard to that charge, while Ashley did not
differentiate between individual shower incidents or between
individual bath incidents, she did generally differentiate the shower
incidents from the bath incidents, and she offered specific facts—
some of which were inconsistent—regarding the way each set of
incidents unfolded.

¶61 During both her CJC interview and her trial testimony,
Ashley described abuse in the shower and in the bath. Regarding
both sets of acts, Ashley said that James claimed he was trying to
“save water,” a motivation that manifested itself by James joining
Ashley in the shower and by James allowing Ashley to put only a
little bit of water in the bathtub during baths. And regarding both

20221106-CA 26 2026 UT App 20
State v. James

sets of acts, Ashley never claimed that James had an erection or that
he touched her “private” parts. But in other respects, her testimony
offered specific differences between the sets of acts. At trial, Ashley
described a specific way in which James touched her during
showers: she said that James would “sometimes” join her in the
shower and that he would “stand super close to [her] and hug [her]
while [they] were in the shower,” and that he would sometimes
“wash her hair and scrub her back with a luffa.” But during that
same trial testimony, Ashley did not describe any touching at all
during the bath incidents; instead, she said that James would just sit
on the toilet and watch her “roll around to get all wet” while trying
to bathe in the small amount of water James afforded her.

¶62 She described the events somewhat differently during her
CJC interview, parts of which came in during Interviewer’s
testimony and parts of which were read to the jury during the State’s
closing argument. 4 During the CJC interview, she indicated that
James did touch her during the bath incidents, stating that if she
couldn’t finish washing herself in the bath due to the lack of water,
James would “have to do it for [her]” and would “wash [her] body
for [her],” sometimes using “a luffa.”

¶63 Because the State did not charge the shower and bath
incidents separately but instead combined them all into one count,
we cannot resolve James’s jury unanimity claim regarding Count 3
in the same way we resolved his similar claim regarding Counts 1

4. James makes no argument challenging the prosecutor’s
introduction, during closing argument and after both sides had
rested, of parts of the CJC transcript that had not been presented or
discussed during the parties’ evidentiary presentations. That is, he
does not assert that the trial court erred by allowing the prosecutor
to do this, and he does not assert that Counsel performed deficiently
by failing to object to the State’s efforts. We therefore do not consider
whether the prosecutor’s introduction of these parts of the CJC
transcript during closing was proper.

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State v. James

and 2. On this record, there was a reasonable evidentiary basis for
the jury to potentially conclude that the shower incidents Ashley
described constituted sexual abuse but that the bath incidents did
not, or vice versa. Jurors could have reasonably concluded, based on
the factual differences between the two sets of acts and on the
inconsistencies in Ashley’s description of them, that the shower acts
occurred but that the bath acts did not, or vice versa. And given the
differences in Ashley’s description of the two sets of acts, jurors
could have also reasonably concluded that James had criminal
intent (e.g., to arouse or gratify his sexual desire) with regard to one
set of acts but not the other. Indeed, as in Jimenez, we think it
“appears entirely possible for jurors to have believed that [James]
abused [Ashley] under some of the described circumstances but not
others,” see 2025 UT App 76, ¶ 62, and that, therefore, the conviction
in this case could well have been the result of some jurors believing
James was guilty on Count 3 because he abused Ashley in the
shower but not in the bath, with others believing James was guilty
on Count 3 because he abused Ashley in the bath but not in the
shower. Accordingly, we are unable to say that there is not a
reasonable probability of a different result regarding Count 3 in a
hypothetical trial in which the jury was given a more specific
unanimity instruction.

¶64 The State resists this conclusion by positing that, given
Ashley’s trial testimony (which did not specify any actual touching
during the bath incidents), only the shower incidents could legally
satisfy the elements of the charged offense, which require that at
least some touching occur. See Utah Code § 76-5-404.1(2), (4)(h)
(2021). 5 But the State overlooks the CJC interview transcript excerpts
that the prosecutor read to the jury during his closing argument,

5. This statute was amended and renumbered after the events
involving James occurred. Compare Utah Code § 76-5-404.3, with id.
§ 76-5-404.1 (2021). We cite the previous version of the statute in the
text because it was the version in effect at the time of the events
giving rise to the charges filed in this case.

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State v. James

which do indicate that James touched Ashley in the bathtub when
he washed her after she was unable to complete the task herself due
to the lack of water. The prosecutor’s recitation of these excerpts
reached the jury’s ears without objection, and the CJC transcript
ended up (mistakenly) going back with the jury during
deliberations. Thus, correctly or not, the jury heard evidence that
James touched Ashley during the bath incidents, and on this basis
the State’s argument fails.

¶65 Accordingly, with regard to Count 3, James has carried his
burden of demonstrating that he was prejudiced by Counsel’s
deficient performance in not seeking a more specific jury unanimity
instruction akin to MUJI 2d CR432. James has therefore
demonstrated that, with regard to Count 3, Counsel rendered
constitutionally ineffective assistance, and on this basis, we reverse
James’s conviction on that count.

II. Rule 23B Motion

¶66 In addition to the claims he raises based on the appellate
record, James asks us to consider his motion, filed pursuant to rule
23B of the Utah Rules of Appellate Procedure, in which he seeks an
order remanding this case to the trial court for supplementation of
the record regarding additional claims of ineffective assistance of
counsel. Our supreme court has noted that where “the record is
silent regarding counsel’s conduct,” a defendant may not be able to
meet the burden of “pointing to specific instances in the record
demonstrating both counsel’s deficient performance and the
prejudice it caused.” State v. Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166.
Rule 23B was “specifically designed” to remedy this problem. Id.
¶ 17 (cleaned up). Under that rule, a defendant “may move the court
to remand the case to the trial court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.” Utah R. App. P. 23B(a).

¶67 To obtain a remand order under rule 23B, a movant must
make a four-part showing. First, the motion “must be supported by

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State v. James

affidavits setting forth facts that are not contained in the existing
record.” State v. Norton, 2015 UT App 263, ¶ 6, 361 P.3d 719 (cleaned
up). Second, those affidavits must contain “allegations of fact that
are not speculative.” Id. (cleaned up). Third, the allegations
contained in the affidavits “must show deficient performance by
counsel.” Id. (cleaned up). And finally, the affidavits “must also
allege facts that show the claimed prejudice suffered by the
appellant as a result of the claimed deficient performance.” Id.
(cleaned up). Importantly, the third and fourth elements require the
defendant to “present the court with the evidence he [or she] intends
to present on remand and explain how that evidence supports both
prongs of the ineffective assistance of counsel test.” State v. Mason,
2024 UT App 171, ¶ 63, 562 P.3d 1158 (cleaned up), cert. denied, 570
P.3d 658 (Utah 2025). “[I]f the defendant could not meet the test for
ineffective assistance of counsel, even if his [or her] new factual
allegations were true, there is no reason to remand the case, and we
should deny the motion.” Griffin, 2015 UT 18, ¶ 20.

¶68 James asserts that remand under rule 23B is necessary to
supplement the record to support seven additional claims of
ineffective assistance. First, he argues that Counsel provided
ineffective assistance by seeking the admission of Ashley’s CJC
interview transcript because it ended up going back with the jury
during deliberations. Second, he takes issue with Counsel’s choice
of defense strategy, accusing Counsel of choosing the manufactured
memory defense against James’s wishes and before investigating
the case. Third, James believes Counsel rendered ineffective
assistance in the manner in which Counsel addressed (or failed to
address) certain inconsistencies in the timeline of events put
forward by Ashley and Mother. Fourth, he claims that Counsel
provided ineffective assistance in not calling a “qualified expert” to
opine about the DARE program. Fifth, James argues that Counsel
provided ineffective assistance by not presenting evidence of
alternative reasons why Ashley moved out of James’s house and
how she continued to spend time there after the abuse. Sixth, he
asserts that Counsel rendered ineffective assistance in the manner in

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State v. James

which he handled Uncle’s testimony. And finally, James claims that
Counsel rendered ineffective assistance when he failed to prepare
James for the interview related to his presentence investigation
report. We examine each of these claims in turn.

¶69 With his rule 23B motion, James submitted eight affidavits.
Those affidavits were submitted by the following: (1) James himself,
(2) Stepmother, (3) a neighbor (Neighbor), (4) Neighbor’s daughter,
(5) James’s mother, (6) a juror, (7) another juror, and (8) a private
investigator (Investigator). We summarize the proffered evidence
below, as relevant to our discussion of each issue.

A. The CJC Transcript Going to the Jury

¶70 First, James asserts that Counsel’s ineffectiveness led to the
CJC transcript being sent back with the jury during deliberations.
But this claim fails because—while, as discussed above in Part I.A,
Counsel certainly sought admission of the CJC transcript for use
during trial—Counsel did not agree that the transcript should go
back with the jury during deliberations. Indeed, when the court
asked whether the transcript would be sent back with the jury,
Counsel responded, “No.” And the State agreed, stating, “No, . . .
[t]he rules are quite clear, the CJC video or the CJC transcript cannot
go back with the jury for deliberations.” And based on the
agreement between the attorneys, the court gave specific orders that
the CJC transcript was not to go back with the jury.

¶71 For reasons apparently related to an error by the court or by
court staff, the CJC transcript did in fact end up going back with the
jury during deliberations. But there is no indication—either in the
record or in the affidavits James has submitted in connection with
his rule 23B motion—that Counsel had anything to do with that
unfortunate circumstance. Thus, even assuming that the matters in
James’s rule 23B affidavits are true, James has not carried his burden
of demonstrating that Counsel performed deficiently in connection
with the CJC transcript ending up in the jury room.

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State v. James

B. Running a Manufactured-Memory Defense

¶72 Second, James argues that Counsel rendered ineffective
assistance by choosing a particular defense strategy before
investigating the case and in opposition to James’s wishes. As noted,
Counsel chose to run a defense centered around the assertion that
Ashley was not necessarily lying but had manufactured her
memories of the abuse-related events she described on the witness
stand. In this instance, James has not borne his burden of
demonstrating that this choice was unreasonable.

¶73 As a general matter, “[t]he choice of which primary defense
theory to advance is a strategic decision that will not often be
second-guessed on appeal.” State v. Wilson, 2020 UT App 30, ¶ 41,
461 P.3d 1124. As already noted, see supra ¶ 39, an attorney’s
reasonably informed strategic choices are almost unassailable in a
deficient performance inquiry. Indeed,

when considering a choice-of-strategy claim . . . , the
relevant question is not whether some strategy other
than the one that counsel employed looks superior
given the actual results of trial. Rather, the question is
whether a reasonable, competent lawyer could have
chosen the strategy that was employed in the real-time
context of trial. In making this assessment, an
appellate court must recognize that the calculations of
counsel in weighing the pros and cons of one strategy
over another are, in essence, a judgment about what is
most likely to work to the client’s benefit in a complex
trial process that requires that many choices be made.
In such cases, so long as counsel could have
reasonably chosen the strategy in question, and so
long as the strategy is itself reasonable, the claim must
fail.

State v. Florreich, 2024 UT App 9, ¶ 59, 543 P.3d 795 (cleaned up).

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State v. James

¶74 James acknowledges this caselaw, but he asserts that
Counsel’s decision to run a manufactured-memory defense was
unreasonable. In particular, he asserts that Counsel did not properly
investigate the case before selecting the defense and that Counsel
made his choice against James’s own wishes. As he now tells it,
James offered his view to Counsel that Ashley “knows that she is
not being truthful” and he urged Counsel to run a defense along
those lines instead of the manufactured-memory defense.

¶75 It is of course true that an attorney “has a duty to adequately
investigate the underlying facts of a case in order to formulate the
basis for an acceptable trial strategy.” State v. Graham, 2013 UT App
72, ¶ 15, 299 P.3d 644. But it is also true that “counsel is not obligated
to view or interpret those underlying facts exactly as his client does
when devising a trial strategy.” Id. And on the record before us—
including the rule 23B affidavits—James has not carried his burden
of demonstrating that Counsel’s choice was unreasonable.

¶76 In order to prevail on this choice-of-strategy claim, “it’s not
enough for [James] to just show that the approach Counsel took was
problematic. [He] also needs to show that Counsel should have done
something else instead.” Florreich, 2024 UT App 9, ¶ 65. And the only
alternative option James now offers is that—instead of arguing that
Ashley’s memories were manufactured—Counsel should have
argued to the jury that Ashley was purposely lying. But James
doesn’t support this suggested defense with any concrete
evidence—for instance, a recantation or an affidavit from an
eyewitness who is willing to give a contradictory account of
events—that Ashley was lying. And in the absence of any such
evidence, we agree with the State that “painting a child victim as a
liar—particularly in a sexual abuse case—can backfire at trial” and
that this is a “risk that experienced trial counsel would recognize,
but a lay defendant might not.” Counsel instead chose a strategy
that called into question Ashley’s memories without accusing her of
lying, and this approach allowed Counsel to humanize Ashley

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State v. James

without conceding guilt. On this record, we cannot say that
Counsel’s choice was unreasonable.

¶77 And we are unpersuaded by James’s assertion that Counsel
selected this strategy before adequately investigating the facts of the
case. As the State points out, James “offers no evidence of what
Counsel’s investigation actually entailed,” and he instead makes a
series of unsupported assumptions about the scope of Counsel’s
investigation and about the timing of Counsel’s choice of strategy.
Counsel chose a defense that was supported by at least some
evidence, as well as by Expert. To be sure, Expert took some hits on
cross-examination, particularly about his earlier license suspension.
But the fact that a chosen defense does not succeed is not necessarily
an indication that its choice was unreasonable. See State v. Green,
2023 UT 10, ¶ 108, 532 P.3d 930 (“As we have repeatedly stated,
simply because a lawyer’s legitimate exercise of judgment in the
choice of trial strategy or tactics does not produce the anticipated
result, does not mean that counsel was ineffective.” (cleaned up)).

¶78 For all of these reasons, we reject James’s assertion that
Counsel performed deficiently by choosing to run a manufactured-
memory defense at trial.

C. Timeline-Based Impeachment

¶79 Third, James takes issue with the manner and extent to which
Counsel chose to address various timeline-based inconsistencies in
both Ashley’s and Mother’s accounts of events. He does not contend
that Counsel entirely ignored timeline-based inconsistencies;
indeed, he acknowledges that Counsel did—at least to some
extent—explore these issues through evidentiary presentation and
cross-examination. But he asserts that Counsel should have done
more and dug deeper, and he asserts that Counsel’s failure to do so
constituted ineffective assistance. We disagree.

¶80 In his motion, James points to—among other things—the
inconsistencies in Mother’s testimony about when Ashley claimed

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State v. James

the abuse began. Investigator found that Mother had originally
reported that Ashley had told her the abuse had “happened for as
long as she could remember until she reached the fifth grade” and
that Mother had said Ashley told her that the abuse stopped in the
fifth grade when Ashley went through a sex education class. Some
of this information was inconsistent with Ashley’s later statements,
made during her CJC interview and during her trial testimony, in
which she stated that the abuse stopped in sixth grade (rather than
fifth) when she learned about sexual assault in the DARE program.

¶81 But Counsel did address the main inconsistency identified
here: the question of when Mother and Ashley claimed that the
abuse started and stopped. In particular, Counsel addressed
Mother’s main misstatement (fifth grade versus sixth grade) of the
timeline. During her trial testimony, Mother acknowledged that the
statement she gave to police during the investigation incorrectly
indicated that the abuse stopped when Ashley was in fifth grade.
Mother explained that the reason for her mix-up was because she
had confused the “maturation clinic” that Ashley had in fifth grade
with the DARE program that Ashley had in sixth grade. James takes
issue with Counsel’s choice not to further question Mother on this
same issue by asking her about other instances in which she made
similar erroneous statements about the abuse having ended in fifth
grade. But choosing not to ask additional questions about a point
already made is not necessarily an unreasonable choice, especially
given that Counsel did reemphasize the point during closing
argument, telling the jury that Mother’s story had “changed [to]
between 10 and 12” from “as long as she could remember until she
reached fifth grade,” and that the jury should disbelieve Mother’s
testimony on that basis.

¶82 In our view, the way in which Counsel chose to address the
inconsistencies in Mother’s and Ashley’s accounts about when the
abuse occurred was not unreasonable. On this basis, we conclude
that James has not demonstrated that Counsel performed deficiently
in this respect. Although further questioning “might have bolstered

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State v. James

[Counsel’s] argument to some small degree, we are unpersuaded
that there was no reasonable basis for [C]ounsel’s decision to [forgo]
additional focus on this theory.” State v. Arriaga, 2012 UT App 295,
¶ 22, 288 P.3d 588.

D. DARE Expert

¶83 Fourth, James asserts that Counsel rendered ineffective
assistance by not calling “a qualified expert” to testify that sexual
abuse is not typically included in the DARE curriculum.

¶84 James supports this claim with Investigator’s affidavit. In
that affidavit, Investigator described an interview she conducted
with a school resource officer who had “been involved with the
DARE program since the early 90’s.” During this interview, the
officer stated that he was “never . . . taught to teach as part of the
DARE curriculum” “anything about any kind of sexual abuse or
inappropriate touching,” and that “sexual abuse was not part of the
curriculum in any [junior high or elementary school] curriculum
that [he] ever saw.” He also described the DARE program as very
“curriculum based” and stated that he was taught to “stay on topic
and stay on curriculum.”

¶85 But the officer that Investigator interviewed does not purport
to be the same individual who taught the DARE class at Ashley’s
school during her sixth-grade year. Thus, while this officer
apparently has general knowledge about what the DARE program
is typically designed to include, he does not purport to know what
was actually taught to Ashley’s group during the class in question.

¶86 And general information about the DARE program was
already introduced at trial, through Interviewer’s testimony. During
Counsel’s cross-examination of Interviewer, he asked her whether
she was “aware that the DARE program really talks about drugs and
police and . . . safety, that kind of thing” and “not sexual abuse,” and
Interviewer responded in the affirmative. Thus, Counsel made
sure—through the testimony of a person who was in a position to

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State v. James

know—that the jury was aware that the DARE curriculum did not
typically include any discussion of sexual abuse.

¶87 “Whether to choose one particular expert over another is a
quintessential strategic decision that we are loath to second-guess
with the benefit of hindsight.” State v. Hamberlin, 2025 UT App 131,
¶ 37, 577 P.3d 912; see also State v. Houston, 2015 UT 40, ¶ 90, 353 P.3d
55 (categorizing as a “tactical decision[]” the choice to “call[] and
retain[]” a particular expert witness (cleaned up)). In this case, the
choice Counsel made—to introduce evidence about the DARE
curriculum through Interviewer rather than a different expert—was
not unreasonable. See Hamberlin, 2025 UT App 131, ¶ 39 (“Counsel
had vigorously cross-examined [the witness] and likely reached the
reasonable conclusion that he had made the points he needed to
make, thus reducing the need for an additional expert.”).

¶88 Accordingly, James has not shown that Counsel performed
deficiently by choosing not to call an additional “qualified expert”
to testify about the general contents of the DARE curriculum.

E. The Reasons for Ashley Moving Out

¶89 Fifth, James claims that Counsel was ineffective for not
presenting additional evidence regarding the reasons Ashley
moved out of his house, as well as evidence that—even after moving
out and after disclosing that James had abused her—Ashley
continued to spend time with James.

¶90 James supports this claim with various affidavits, including
affidavits from himself, Stepmother, Neighbor, and Neighbor’s
daughter. In those affidavits, the witnesses assert that Ashley left
James’s house and went to live with Mother not because he had
abused her but, instead, because Ashley did not like the woman
James started dating after his breakup with Stepmother. They
further assert that Ashley especially did not like the woman’s son,
whom she apparently “hated babysitting.” And in his affidavit,
James asserts that during the same time frame, he took away

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State v. James

Ashley’s phone as a disciplinary measure, which he claims “became
a huge point of contention” between them and caused their
relationship to deteriorate. Furthermore, some of the affiants aver
that Ashley continued to spend time with James even after she
disclosed the abuse and moved in with Mother, specifically noting
that she watched her younger sister at James’s house, attended her
younger sister’s birthday party with James present, and went trick-
or-treating with James and her younger sister on Halloween.

¶91 James contends that this evidence—which was largely not
introduced at trial—would have been helpful to James and would
have cast doubt on Ashley’s claims that James had abused her. We
acknowledge James’s point, and for purposes of our analysis we will
assume—without deciding—that Counsel’s failure to present this
evidence constituted deficient performance.

¶92 But even so, James’s assertion of ineffective assistance fails on
prejudice grounds. Again, in assessing prejudice, we must “consider
a hypothetical—an alternative universe in which the trial went off
without the error.” State v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86. In such
an alternative universe, the jury would have heard the evidence
explained above—that Ashley disliked James’s new girlfriend and
her son, that James’s acts of discipline angered her, and that she
continued to spend time with James after she moved out. While this
evidence would have certainly been somewhat helpful to James, we
do not see it as such a difference-maker as to create a reasonable
likelihood of a different result in a hypothetical trial in which the
jury heard this evidence. As the State points out, Ashley’s continued
contact with James after her disclosure is “not inherently
inconsistent with her testimony” that James abused her and that the
abuse stopped in sixth grade. And the evidence about the discipline
and about Ashley’s apparent antipathy toward the new girlfriend
would have certainly added some helpful context for James, but
offering the jury this alternative explanation for one detail in the
overall story is not reasonably likely to have changed the outcome.
The jury had heard Ashley’s testimony about the abuse and had also

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State v. James

already heard extensive impeachment evidence about timeline
inconsistencies and about manufactured memory.

¶93 For these reasons, even adding James’s new affidavits to the
equation, we are unpersuaded that James has demonstrated a
reasonable likelihood of a different outcome. On this basis, James
has failed to show prejudice for this claim. 6

F. Uncle’s Testimony

¶94 Sixth, James asserts that Counsel rendered ineffective
assistance in the manner in which he handled Uncle’s testimony
during and after the State’s cross-examination. In particular, he
takes issue with Counsel’s failure to object when the State utilized
undisclosed evidence to impeach Uncle and with Counsel’s decision
not to “request appropriate relief” under the circumstances.

¶95 Uncle testified as a defense witness at trial. During its cross-
examination of Uncle, the State played a previously undisclosed

6. James does not expressly make a cumulative prejudice argument.
But in our view, not even the cumulative prejudice of the jury
unanimity issue and this issue combined would be enough to result
in a reasonable probability of a different result regarding Counts 1
and 2. As an initial matter, the two issues—the lack of a more
fulsome jury unanimity instruction and the lack of additional
impeachment evidence about the reasons for Ashley’s departure
from James’s house—are analytically separate and do not lend
themselves particularly well to cumulative prejudice. The one issue
has to do with whether the jury could have differentiated the
various acts Ashley described on Counts 1 and 2, and the other has
to do with whether Ashley’s account is believable and consistent.
But more substantively, we simply do not think that there is a
reasonable probability of a different outcome on Counts 1 and 2 in
a counterfactual trial in which the jury both (a) got a better jury
unanimity instruction and (b) heard more about the reasons why
Ashley left James’s house and that she continued to see him.

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State v. James

recording of a phone call that a prosecutor had conducted with
Uncle before trial. Specifically, the State presented evidence that
Uncle, during that call, stated that he “kind of thought that [James]
did it.” Uncle attempted to explain away his comment by stating,
“Because of the fact that we weren’t talking. I guess what I was
trying to say was I never thought he did it. What I wanted to say
was I was fighting with him, so it was his deal, you know, whatever,
whatever.” At that point, even though Counsel hadn’t heard the
recording before, he did not object to the State’s use of the recording,
nor did he ask for a break or a continuance to listen to the complete
recording. Instead, he asked that a longer excerpt of the call be
played for the jury.

¶96 During the longer excerpt, Uncle stated that James had “been
nothing but a great dad” to Ashley, that Ashley “hated to go back”
with Mother, and that “she loved being with” James. And on
redirect, Counsel asked Uncle to clarify the comments referenced by
the State, and Uncle responded, “[W]hen [the prosecutor] was
talking to me about that, what I was getting at was that, you know,
I didn’t care what happened to [James] at this point because we were
not really talking. Then we reconciled after that, and I think I said
on that tape that, you know, that was basically why I said that. That
wasn’t that I actually thought that he’d ever done it.”

¶97 In his rule 23B affidavits, James presents evidence that the
recording of the phone call contains an additional statement not
played for the jury, namely, that Uncle said this: “And I know he’s
not into that. I know he would never do that to his kid. Never. That’s
how I feel.”

¶98 James takes issue with the manner in which Counsel handled
Uncle’s testimony. In particular, James criticizes Counsel for not
playing more of the recording—including the part quoted
immediately above—and for not objecting to the State’s use of the
recording or, at a minimum, asking for some sort of continuance so
that he could review the entire recording.

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State v. James

¶99 But in our view, the way in which Counsel decided to handle
Uncle’s testimony was not unreasonable. James does not contend
that Counsel, by objecting, could have somehow prevented the State
from using the recording for impeachment purposes. Counsel did
have the right to listen to the whole recording, see Utah R. Evid. 613,
and James takes issue with Counsel’s failure to do so in advance.
But Counsel reasonably addressed the negative testimony offered
by Uncle during cross-examination: he played more of the
recording, and he asked Uncle to clarify things on redirect. And in
that clarification, Uncle testified that he didn’t actually think James
had “done it.” Counsel’s choice to not play more of the recording—
which would only have served to reiterate the point Uncle made on
redirect—was therefore not unreasonable.

¶100 Thus, James has not demonstrated that Counsel performed
deficiently with regard to Uncle’s testimony.

G. Presentence Investigation Preparation

¶101 Finally, James asserts that Counsel rendered ineffective
assistance by not adequately preparing him for the interview related
to his presentence investigation report. James supports this claim
with his own affidavit, in which he avers that Counsel “did not
prepare [him] for the” interview. He claims that, because he was
unprepared, he “did not know what was going on” and so he
“unloaded on the interviewer” by expressing all his “anger and
confusion.” James acknowledges that, even with preparation for the
interview, he “would have and continue[s] to maintain [his]
innocence,” but he asserts that if he “had known what was going
on” he “would have handled [the interview] differently.”

¶102 For purposes of this discussion, we will assume—again
without deciding—that Counsel performed deficiently by taking no
action to prepare James for his presentence investigation interview.
But even given this assumption, James has failed to show that he
was prejudiced by any such deficient performance.

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State v. James

¶103 As noted, the court at the conclusion of the sentencing
hearing sentenced James to fifteen years to life in prison on all three
counts, but it ordered that the sentences run concurrently. James
asserts that, had he been adequately prepared for his interview, the
outcome of his sentencing would have been different. But the court’s
sentencing decision did not turn on James’s rudeness to the
presentence interviewer.

¶104 It is true that, at sentencing, the State emphasized the
probation officer’s comment that James’s “behavior was
disrespectful and unwarranted” and that he “ha[d] a poor attitude
towards the present offenses.” The State also mentioned James’s
comment to the interviewer that the “whole thing was a fucking
joke.” But it did so in the broader context of emphasizing that James
had failed to accept responsibility for his offenses, and by then
arguing that the court should impose “consecutive sentence[s].”

¶105 As it turned out, the court did not end up imposing
consecutive sentences; instead, it ordered that James’s sentences run
concurrently to each other. Moreover, James’s profane comments to
the interviewer aside, James acknowledges—even in his rule 23B
affidavit—that he never intended to accept responsibility for his
offenses and that he wouldn’t have done so even if he had been
adequately prepared for his interview. In context, we agree with the
State’s assertion that “the root of James’s problem was not a lack of
preparation, but his refusal to accept responsibility.”

¶106 For these reasons, in a counterfactual world in which James
had been adequately prepared for his presentence interview, we see
no reasonable likelihood of a different outcome at sentencing. Thus,
James has failed to demonstrate that he was prejudiced by Counsel’s
failure to adequately prepare him for the interview. 7

7. It is not necessary to engage in a cumulative prejudice analysis
with regard to this issue, as we did with the other two, see supra note
(continued…)

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State v. James

CONCLUSION

¶107 James raises ten different claims of ineffective assistance,
three based on the existing record and seven more in connection
with his rule 23B motion. With regard to James’s assertion that
Counsel rendered ineffective assistance regarding Count 3 by not
requesting a more specific jury unanimity instruction, we find merit
in James’s claim; we therefore reverse James’s conviction on Count
3 and remand this case to the trial court for further proceedings
regarding that count. In all other respects, we reject James’s claims
of ineffective assistance, and we therefore deny James’s rule 23B
motion and affirm his convictions and sentence on Counts 1 and 2.

6, because this claim has to do with the outcome of the sentencing
rather than the outcome of the trial. Where there is only one item
that is potentially prejudicial, a cumulative prejudice analysis is not
required. See State v. Martinez-Castellanos, 2018 UT 46, ¶ 48, 428 P.3d
1038 (stating that “a single accumulable error cannot warrant
reversal under the cumulative error doctrine”).

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