State v. Klenz

POHLMAN, Judge

Opinion First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 151100151 Gregory W. Stevens, Attorney for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and RYAN M. HARRIS concurred. POHLMAN, Judge: ¶1 Defendant Roger Glen Klenz appeals his convictions on five counts of aggravated sexual abuse of a child, all first degree felonies, and five counts of forcible sexual abuse, all second degree felonies. He argues that the trial court erred by denying his motion for a bill of particulars, admitting evidence of his alleged other bad acts, admitting into evidence a detective's statements having bearing on the credibility issues in the case, and denying his motion to arrest judgment. We affirm.

BACKGROUND

"On appeal from a criminal conviction, we recite the facts from the record in the light most favorable to the jury's verdict." State v. Pham, 2015 UT App 233, ¶ 2, 359 P.3d 1284.

The Charges

¶2 In 2015, when Defendant's daughter (Victim) was fifteen years old, she told her mother and a family friend that Defendant had sexually abused her for around eight years. Victim and Defendant had gotten into a fight earlier that day, and Victim was crying. Victim initially refused to disclose why she was upset, explaining that Defendant told her that she "couldn't tell." Eventually, the family friend asked whether Defendant had molested her, and Victim said yes. When asked whether it was "more than that," Victim answered, "[Y]eah, it was a lot more than that." ¶3 Victim reported these allegations to authorities, and Defendant was arrested and interviewed by a detective (Detective). The State charged Defendant with thirty counts of sexual offenses. Specifically, he was charged with five counts of aggravated sexual abuse of a child for conduct occurring over a seven-year period ranging from "on or about November 03, 2006 through November 02, 2013," when Victim was under the age of fourteen. He was charged with five counts of rape of a child and five counts of sodomy upon a child. The Amended Information alleged that these crimes occurred over the two-year period from "on or about November 03, 2011 through November 02, 2013," also when Victim was under the age of fourteen. Additionally, Defendant was charged with five counts of rape, five counts of forcible sodomy, and five counts of forcible sexual abuse. The Amended Information alleged that these offenses occurred over about a two-year period from "on or about November 03, 2013 through June 6, 2015," after Victim turned fourteen.

Defendant's Motion for a Bill of Particulars

¶4 Defendant filed a Motion for a Bill of Particulars and Demand for a More Definite Statement of the Date, Time and Place of the Alleged Offenses. Noting that he was charged with thirty counts of sexual offenses against Victim and asking for "more than a broad statement that the alleged crimes took place within spans of two years or seven years," Defendant asserted that he was entitled to "sufficiently precise information of the date, time and place of an alleged offense" in order to prepare a defense and to uphold his due process rights. ¶5 The trial court denied Defendant's motion, concluding that Defendant's constitutional right to notice had "already been satisfied by the information." It observed that a "'core defense'" of "'I didn't do it'" is not time-sensitive and concluded that Victim was "not required to give precise dates of each alleged offense." (Quoting State v. Taylor, 2005 UT 40, ¶ 18, 116 P.3d 360.) Thus, because Defendant was "able to prepare a defense and [was] not in danger of multiple prosecutions for the same crime," a bill of particulars was unnecessary.

The Motion in Limine About Other Bad Acts Evidence

¶6 Before trial, the State moved for the admission of evidence of four alleged incidents of other bad acts that occurred outside Box Elder County. First, when Victim was fourteen years old and staying with extended family following her grandmother's death, Defendant allegedly had sex with Victim after finding her crying on a bed and suggesting she was upset about a boy and he knew "what [would] make [her] feel better" (the funeral incident). Next, on two trips to softball tournaments when Victim was thirteen or fourteen, Defendant allegedly had sex with Victim in their hotel rooms (the softball trip incidents). Finally, when Victim was approximately thirteen years old, Defendant allegedly had sex with Victim in a van parked in a store parking lot (the parking lot incident). According to the State, the other bad acts evidence was admissible under rule 404(c) of the Utah Rules of Evidence as prior instances of sexual abuse and under rule 404(b) as it was offered for the proper noncharacter purposes of establishing Defendant's intent and of showing "Victim's credibility, . . . Defendant's method of using [Victim's] relationship with boys to justify the abuse, . . . [and that Defendant] used opportunities when he was alone with [Victim] to abuse her." ¶7 The trial court granted the State's motion to admit the other bad acts evidence, concluding that it was admissible under rule 404(c). That rule allows, "[i]n a criminal case in which a defendant is accused of child molestation," the admission of "evidence that the defendant committed any other acts of child molestation to prove a propensity to commit the crime charged." Utah R. Evid. 404(c)(1). The court stated that "this enumerated purpose from rule 404 applies to the unique events the Victim can testify to in order to establish the context and credibility of her allegations." The court similarly concluded that the evidence was relevant under rules 401 and 402. ¶8 The court then conducted a balancing analysis under rule 403. On the one hand, it concluded that the evidence of uncharged instances of sexual abuse in this case had probative value because it allowed Victim "to provide testimony about the scope and context of the abuse." On the other hand, because the jury would be determining "what, if any, events occurred based on [its] determination of credibility of the witness," there would be a limited danger of unfair prejudice given that Victim would be describing only "additional incidents of abuse." (Citing State v. Cox, 2007 UT App 317, ¶¶ 33-34, 169 P.3d 806.) Accordingly, the court found that "the balancing test of rule 403 allow[ed] for the admissibility of the evidence."

Defendant was charged only for acts that occurred within Box Elder County.

The Motion in Limine and the Interview Video

¶9 On the eve of trial, Defendant moved to exclude certain portions of the video recording of his interview by Detective on the day of his arrest. He sought to exclude portions that "constitute inadmissible opinion testimony by the interrogating Detective about the strength of the evidence, [Detective's] comparison of this case to other cases, and [Detective's] belief in the credibility of the alleged victim." Defendant asserted that allowing the jury to view these portions would "usurp [its] function" and that the probative value of the evidence was substantially outweighed by the dangers of unfair prejudice or confusing or misleading the jury. ¶10 The court heard oral arguments on the issue during trial. Defendant clarified that he objected only to the portions of the video during which Detective opined about the strength of the evidence and Victim's credibility. The State opposed redacting the video. The prosecutor explained that the video was necessary and "very compelling evidence" because it showed that Defendant never asked questions about the specific details of the alleged sexual abuse that Detective referenced during the interview and because it showed Defendant's "bizarre demeanor and behavior," which included laughing and joking. The prosecutor argued that if the defense asserted that Defendant was wrongfully accused, then the State intended to rely on the video to argue that Defendant's reactions during the interview were "very unusual" and "not the kind of behavior that [one] would expect to see from somebody who believes he's been wrongfully accused." The prosecutor also argued that redacting the video would suggest to the jury that the State had "something to hide" and asserted that all of Detective's statements were necessary to "help put things in context." ¶11 The trial court denied Defendant's objection to portions of the video. It distinguished the cases Defendant cited in support of his position because they related specifically to instances of officers accusing suspects of lying and therefore were not "persuasive" with respect to "whether or not the video should come in." The court determined that because "none of [Detective's statements in the video] talk about any type of lying or deceit" and because the statements were merely "techniques" Detective used to talk to a suspect, it would not exclude any portions of the video.

The trial court heard arguments and ruled on Defendant's motion before Detective testified.

The Trial

¶12 The case proceeded to a jury trial in 2016. Victim testified that Defendant started abusing her when she was seven years old and they lived in another state, and that it continued when they moved to Utah the next year. When asked to describe the first instance of abuse in Utah, Victim recalled that late at night while her mother was at work, Defendant came into her room and explained that he was "going to snuggle and stuff" with her. While her younger sister slept on the top bunk of the bed, Defendant touched Victim's breasts with his hands, and Victim let it happen because she thought it was normal. The touching then "escalated" to Defendant touching Victim's buttocks and vagina over her clothes. ¶13 Victim testified that this kind of touching was "common" but that Defendant also touched her under her clothes. When asked to describe one such incident, Victim said that Defendant told her he "wanted to snuggle," but then he "put his hand under [her] shirt and started taking it off and touching [her] boobs." He also "took off [her] pants and [her] underwear" and started "rubbing" her vagina. ¶14 Victim estimated that when she was younger, Defendant would come into her room and touch her "five to seven times a week," stating that all the instances of touching were "kinda all mashed [together] in [her] head." Defendant's touching [Detective] had something to actually support [Victim's] allegations when in fact [he] didn't."

For the sexual touching against Victim while she was under the age of fourteen, the State charged Defendant with aggravated sexual abuse of a child. See Utah Code Ann. § 76-5-404.1 (LexisNexis 2012). For the sexual touching after Victim turned fourteen, the State charged Defendant with forcible sexual abuse. See id. § 76-5-404.

Because the jury acquitted Defendant of the rape and sodomy charges, we do not include the details of Victim's testimony regarding those allegations.

The court instructed the jury about the other bad acts evidence at the time the evidence was admitted and in the final jury instructions.

The final jury instructions included the same admonition.

The Verdict

¶26 The jury returned a mixed verdict. It acquitted Defendant of all counts of rape of a child, rape, sodomy upon a child, and sodomy. But it found him guilty on all five counts of aggravated sexual abuse of a child and all five counts of forcible sexual abuse.

The Motion to Arrest Judgment

¶27 Defendant moved to arrest judgment on the basis of the inherent improbability and apparent falsity of Victim's testimony. In particular, he asserted that Victim's testimony was inconsistent about the frequency and number of times she was abused and that there were no specifics about the time or extent of the abuse. Defendant further contended that the evidence was insufficient to sustain the verdict given Victim's testimony and the lack of physical evidence. ¶28 The trial court denied the motion to arrest judgment. It concluded that Victim's testimony was not the only evidence of what occurred. For example, Brother testified that he suspected sexual abuse, and Brother and Victim each testified about the couch incident. The court also concluded that "Victim's testimony as to the frequency, location, and extent of the abuse was not drastically changing, but was consistent in that the abuse occurred." Indeed, "Victim's multiple disclosures were not inconsistent, but merely cumulative, and simply added more details in the later statements." (Quotation simplified.) Further, the court concluded that although there was no physical evidence of abuse, "there [was] testimony that speaks to why that is and additional corroborating evidence of [Defendant's] guilt." Accordingly, the court determined it was precluded from applying the "inherent[ly] improbable testimony theory as there [was] additional evidence supporting the jury's verdict" and could not grant Defendant his requested relief. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶29 Defendant raises three main issues on appeal. First, he contends that the trial court committed reversible error when it denied him a bill of particulars. We generally review a trial court's denial of a request for a bill of particulars for an abuse of discretion. State v. Bernards, 2007 UT App 238, ¶ 13, 166 P.3d 626. But we review the trial court's decision regarding the constitutional adequacy of the notice given to a criminal defendant for correctness. See State v. Maese, 2010 UT App 106, ¶ 6, 236 P.3d 155; see also State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991) (explaining that the reviewing court "accord[s] a trial court's conclusions of law no particular deference, reviewing them for correctness," and that "the question of the adequacy of the notice given [to a] defendant is one of law"). ¶30 Second, Defendant contends that the trial court erred in admitting (1) evidence of his alleged other bad acts and (2) Detective's statements "vouching for the alleged victim's credibility, opining about the weight of the evidence, and assessing the innocence of the defendant." "We afford district courts a great deal of discretion in determining whether to admit or exclude evidence and will not overturn an evidentiary ruling absent an abuse of discretion." State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 (quotation simplified). A trial court abuses its discretion "if its decision to admit or exclude evidence is beyond the limits of reasonability." Id. (quotation simplified). Where Defendant failed to preserve certain evidentiary issues for appeal, however, see infra ¶ 60 n.12, he seeks our review under the plain error exception to the preservation rule, see State v. Bond, 2015 UT 88, ¶ 46, 361 P.3d 104 (listing the plain error doctrine as an exception to the preservation rule). Under the plain error standard, the appellant must show the existence of an obvious and harmful error. State v. Cox, 2007 UT App 317, ¶ 10, 169 P.3d 806. ¶31 Last, Defendant contends that the trial court erred in denying his motion to arrest judgment. A trial court "may arrest a jury verdict when the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable as to an element of the crime that reasonable minds must have entertained a reasonable doubt as to that element." State v. Black, 2015 UT App 30, ¶ 12, 344 P.3d 644 (quotation simplified). We review the trial court's ruling on a motion to arrest judgment for correctness. Id.

ANALYSIS I. Bill of Particulars

¶32 Defendant first contends that the trial court "erred in denying [his] motion for a bill of particulars." He asserts that "in light of the extreme breadth of the period charged in the Amended Information at issue here and the fact that [Victim] was not a young child at the time of trial," the notice he received of the time and place of the alleged offenses was deficient and "violated his right to due process" under the Utah Constitution. He further asserts that the trial court's error prejudiced his "ability to present any particularized defense." He contends "it was impossible for [him] to assert a defense as to any of the charges that did not place him in the time and place of the alleged offenses"—suggesting that he was prevented from raising an alibi defense—and that, with one exception, "the best that [he] was able to do was to assert a general defense that he did not ever" abuse Victim. ¶33 The State counters that Defendant "received constitutionally adequate notice of the date and time of the offenses" because it was "the best information the State had as to when the crimes took place." The State asserts that the Amended with the child half of the time" during the thirty-two-month period alleged in the information, the supreme court concluded that the defendant had not shown specific harm resulting from the lack of exact dates and times in the information. Id. at 1033. ¶41 The same two rationales apply here. Time is not an element of the offenses, and Defendant does not have the "right to a charge framed so as to facilitate an alibi defense." See id. Also, an alibi defense was not "a realistic possibility" where Defendant had "continual contact" with Victim over the seven-year period alleged in the Amended Information, and thus Defendant has not shown specific harm to his defense resulting from the lack of exact dates and times. See id. ¶42 For the foregoing reasons, we conclude that the State provided Defendant with constitutionally adequate notice of the date and time of the charged offenses and that the trial court did not err in denying Defendant's motion for a bill of particulars.

The Utah Constitution also "requires the prosecution to state the charge with sufficient specificity to protect the defendant from multiple prosecutions for the same crime." State v. Wilcox, 808 P.2d 1028, 1032 (Utah 1991). Defendant does not assert that the lack of specificity in the Amended Information exposed him to multiple prosecutions for the same crime.

"When an indictment or information . . . does not provide the notice guaranteed by article I, section 12, the accused may request a bill of particulars . . . ." State v. Bell, 770 P.2d 100, 104 (Utah 1988). See generally Utah Code Ann. § 77-14-1 (LexisNexis 2017) ("The prosecuting attorney, on timely written demand of the defendant, shall within 10 days, or such other time as the court may allow, specify in writing as particularly as is known to him the place, date and time of the commission of the offense charged."); Utah R. Crim. P. 4(e) ("When facts not set out in an information are required to inform a defendant of the nature and cause of the offense charged, so as to enable the defendant to prepare a defense, the defendant may file a written motion for a bill of particulars. . . . The request for and contents of a bill of particulars shall be limited to a statement of factual information needed to set forth the essential elements of the particular offense charged."). "Entitlement to a bill of particulars as a matter of right occurs only when the information or indictment is constitutionally deficient by reason of its failure to inform of the nature and cause of the offense charged." State v. Allen, 839 P.2d 291, 298 (Utah 1992).

Shortly after the State filed the Amended Information, Defendant had access to the transcripts of interviews with Victim, her mother, and her siblings.

II. Evidentiary Issues

¶43 Defendant next contends that the trial court erred in admitting two different types of evidence. First, he contends that the court abused its discretion in admitting evidence of his alleged other bad acts. Second, he contends that the court abused its discretion in admitting Detective's statements in the interview video and at trial. We address each issue in turn. A. Other Bad Acts Evidence ¶44 Defendant contends that the trial court abused its discretion in admitting evidence of his other bad acts, namely, the funeral incident, the softball trip incidents, and the parking lot incident. For other bad acts evidence to be admissible, it must meet a three-part test that satisfies rules 404, 402, and 403 of the Utah Rules of Evidence: the other bad acts evidence (1) "must be offered for a genuine, noncharacter purpose," (2) "must be relevant to that noncharacter purpose," and (3) "the probative Detective's trial testimony. We then analyze the substance of Defendant's arguments on appeal and conclude that, even assuming the trial court erred in admitting the statements at issue, Defendant has not shown that he was prejudiced as a result. 1. Statements Made During the Interview Video ¶54 On appeal, Defendant's challenge to Detective's statements in the interview video focuses on four segments, with the emphasized portions representing those statements that Defendant contends should have been redacted. The following exchange occurred between Detective and Defendant in the first segment:

Detective: So, tell me when this has been going on?
Defendant: I don't know what you're talking about. What, . . . I mean, I give my kids hugs and kisses just like every father. I don't, I mean, we have three other kids too. I mean . . . .
. . . .
Detective: She's alleging that it was just touching up until she was 12 years old and then from there it turned into sex.
Defendant: Oh wow.
Detective: So I have some very, very specific, based on my training and experience, not-made-up, events, where she's alleging things have happened between you.
Defendant: Wow.
Detective: There's too much detail, and too much of everything else to show, there's too much trauma—

Defendant: Oh, wow.
Detective:—of what's happened. And, you know, now's your time. Have you had sex with [Victim]?
Defendant: No!
Detective: Ever?
Defendant: No!
Detective: Have you ever touched her breasts?
Defendant: I may have, when we have little spats or something like that. What do you mean . . . ? I mean, are you talking like with my wife?
Detective: Yeah.
Defendant: No.
Detective: Have you ever touched her vagina?
Defendant: No.

¶55 The second segment included the following exchange:

Detective: She's got specific allegations. And very, very detailed. And, kids aren't that way unless . . . trauma occurs. I've been a police officer for fifteen years. And I've been a sex crimes detective for three. And to get the detail that she's come up with and to be able to be consistent, to be able to ask her a question this hour, and come back this hour, and have every detail right on. Never happens.
Defendant: That or a great imagination, one of the two.

Detective: I've seen great imaginations and they always get out of control. . . . I've seen a thirteen-year-old create the novel 100 shades of gray . . . which was unfounded. Fifty shades of gray is pretty bad. But . . . you could tell he had never been sexually involved at all in his life because he had no idea how people's physical bodies worked in his disclosure. And I walked away and went, "Well, that one didn't happen," but this one [while nodding his head].

¶56 The third segment included this exchange:

Detective: At this point in time I'm going to be booking you into jail for ten counts of rape of a child—
Defendant: Geez.
Detective:—and ten counts of aggravated sexual assault of a child.
Defendant: Oh my God.
Detective: There is a chance that it will go up from there, because there is a lot of disclosure going on here—
Defendant: Wow [while shaking his head]. Geez!
Detective:—and it's very specific.

¶57 The final segment, which occurred immediately after Detective notified Defendant of the charges for which he was being arrested, proceeded as follows:

Defendant: You've got to be joking, right?
Detective: No, . . . don't kid about this. This is—

Defendant: I'm not!
Detective:—the evidence is staggering. I'll just say that.

¶58 The trial court allowed the jury to hear all of these statements but gave the jury a limiting instruction directing that Detective's statements should be considered only as an "investigative technique." 2. Detective's Trial Testimony Assessing Defendant's Credibility ¶59 Defendant's challenge to Detective's trial testimony focuses on Detective's "opinion that [Defendant's] demeanor [during the interview] was inconsistent with that of an innocent man." Detective testified that "[q]uite a few things" stuck out about Defendant's demeanor. When asked to specify, Detective stated that Defendant showed a "joviality" and "lack of defiance" and Defendant made "excited utterances of oh geez, wow." Regarding lack of defiance, Detective explained, "If somebody is innocent, . . . they're saying, there's no way this happened, you're lying, . . . this isn't true, this is false, things like that." Regarding excited utterances, Detective explained that Defendant's answers like "oh geez, or wow, things like that" were "not directed" by Detective and that those kind of answers are "[n]ot common." 3. Analysis of the Challenged Statements ¶60 Defendant contends that the trial court erred in admitting Detective's statements. He asserts that those statements improperly intruded upon the "exclusive province" of the jury because they vouched for Victim's credibility, compared the weight of the evidence to other cases, and opined that Defendant's demeanor was inconsistent with innocence. He further argues that "the admission of those statements was prejudicial," given that the State's case "hinged entirely on" the Cruz, Brother's testimony corroborated Victim's testimony about the touching. Supra ¶¶ 65-70. Victim also testified that Defendant had raped and sodomized her. But where Brother did not testify that he witnessed what appeared to be sexual intercourse, his testimony was less probative regarding those specific acts, and the jury acquitted Defendant of the rape and sodomy charges. The jury therefore did not credit Victim's testimony in its entirety, despite hearing Detective's various statements about her credibility that had equal bearing on the touching, rape, and sodomy charges. The mixed verdict in this case thus strongly suggests it was the result of a reasoned application of the law to the facts rather than prejudice engendered by improper bolstering testimony. See State v. Speer, 750 P.2d 186, 189-90 (Utah 1988) ("[T]he fact that the jury acquitted defendant of two of the four charges indicates that the verdict was a result of a reasoned application of the law, rather than prejudice engendered by the improper evidence."). ¶73 Finally, we observe that the trial court twice instructed the jury that Detective's statements "on the video are not evidence or an expert opinion concerning evidence. Instead, they are and should be considered only as [Detective's] investigative technique." "In the absence of any circumstances suggesting otherwise, courts presume that the jury follows instructions." State v. Reid, 2018 UT App 146, ¶ 53 (quotation simplified), petition for cert. filed, Sept. 24, 2018 (No. 20180784). The limiting instruction in this case thus further mitigated the risk that the jury would convict based on Detective's statements in the interview video. ¶74 In light of these circumstances, Defendant has not shown a reasonable likelihood that any error in admitting Detective's challenged statements affected the outcome of the proceedings, and our confidence in the verdict is not undermined. See Cruz, 2016 UT App 234, ¶ 42. Accordingly, we decline to reverse on this basis.

Rule 404(c) "explicitly allows" evidence of other acts of child molestation to be introduced "for the purpose of proving a defendant's propensity to commit the child molestation with which he is charged." State v. Cuttler, 2015 UT 95, ¶ 26, 367 P.3d 981 (quotation simplified); see also Utah R. Evid. 404(c)(1). As used in rule 404(c), the term "child molestation" means "an act committed in relation to a child under the age of 14 which would, if committed in this state, be a sexual offense or an attempt to commit a sexual offense." Utah R. Evid. 404(c)(3) (emphasis added). Victim testified that the funeral incident occurred when she was fourteen years old, that the softball trip incidents occurred when she was thirteen or fourteen, and that the parking lot incident occurred when she was "like 13 through 15." Because rule 404(c) may not have applied to all incidents, we will address the evidence of the other bad acts under rule 404(b).

Defendant did not preserve his objection to Detective's trial testimony. He therefore seeks our review of this issue under the rubric of plain error. To succeed on such a claim, Defendant must demonstrate (1) an error that is (2) obvious and (3) harmful. State v. Cox, 2007 UT App 317, ¶ 10, 169 P.3d 806. Like Defendant and the State, we address together whether any prejudice resulted from Detective's statements in the video and his trial testimony. We ultimately resolve these claims of error on the basis of lack of prejudice. See infra ¶¶ 63, 65, 74. We also note that, while Defendant does not seek review of the issue regarding Detective's trial testimony under the rubric of ineffective assistance of counsel, "the prejudice test is the same whether under the claim of ineffective assistance or plain error." State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699.

The rule states, "A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked." Utah R. Evid. 608(a).

See, e.g., State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct. App. 1995) (reversing a conviction because the case "hinged entirely on the credibility of the victim" and there was "not other evidence to support the defendant's conviction beyond that which is tainted by improper testimony" (emphasis added) (quotation simplified)); State v. Iorg, 801 P.2d 938, 942 (Utah Ct. App. 1990) (reversing a conviction in a case that hinged on credibility because the victim's "version of the events occurring the night of the alleged abuse was aided only by the challenged testimony of [the deputy], which was clearly calculated to bolster [the victim's] believability" (emphasis added)).

We recognize that under some circumstances a mixed verdict can indicate that "'the jury was conflicted about the evidence and the competing versions of events offered by the victim and' the defendant, and that therefore the elimination of certain evidence may very well have mattered." State v. Burnett, 2018 UT App 80, ¶ 39 (quoting State v. Richardson, 2013 UT 50, ¶ 44, 308 P.3d 526), petition for cert. filed, July 5, 2018 (No. 20180520). For example, in Richardson, the Utah Supreme Court concluded that the erroneous exclusion of sexual history evidence constituted harmful error where the case "turned on whether the jury believed [the defendant's] version of events or the victim's." 2013 UT 50, ¶¶ 41-45 & n.9. In so concluding, the supreme court explained that, under the circumstances of that case, it could not "reject the idea that the excluded sexual history evidence could have tipped the scales wholly in [the defendant's] favor." Id. ¶ 44. Given Brother's corroborating testimony, however, the circumstances of the case before us are much more like Cruz than Richardson.

III. Motion to Arrest Judgment

¶75 Finally, Defendant contends that we should reverse his convictions because the trial court erred when it denied his motion to arrest judgment "in light of the inherent improbability of [Victim's] testimony." In support, Defendant asserts that Victim's allegations had "troubling and glaring inconsistencies," including the "addition of new locations of the alleged abuse," an increase in the number of alleged incidents, and the kind of vocabulary she used to describe the abuse. He asserts that Victim's testimony was "unbelievably fanciful," citing her testimony that the abuse happened frequently, that it occurred when family members were in close proximity, and that she still went to softball tournaments with Defendant even when he was abusing her. Additionally, he asserts that Victim made "patently false" and "rehearsed" statements to "explain away [her] inconsistencies." He also asserts that because Brother "testified that he never actually observed any sexual activity" between Defendant and Victim, there was "no actual corroborative testimony" of Victim's allegations. ¶76 In evaluating whether to overturn a jury verdict on the ground that the evidence was insufficient to support a conviction, "we consider the evidence and all reasonable inferences therefrom in the light most favorable to the jury's verdict and uphold the verdict if we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime have been proven beyond a reasonable doubt." State v. Carrell, 2018 UT App 21, ¶ 49, 414 P.3d 1030 (quotation simplified). Our role is not to reassess or reweigh the evidence; instead, we generally "resolve conflicts in the evidence in favor of the jury verdict." State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398 (quotation simplified). But the Utah Supreme Court has carved out a narrow exception, under which "a court may choose to disregard certain testimony on a sufficiency of the evidence review if that testimony is 'inherently improbable.'" Carrell, 2018 UT App 21, ¶ 50 (quoting State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288). This exception applies "only in instances especially in sexual abuse cases," State v. Wells, 2014 UT App 13, ¶ 10, 318 P.3d 1251 (quotation simplified), the inconsistencies in Victim's testimony could be "explained by her age and lack of sophistication," see Prater, 2017 UT 13, ¶ 38 (citing Robbins, 2009 UT 23, ¶ 22); see also id. ¶ 39 (explaining that mere inconsistency with prior testimony does not render subsequent testimony "apparently false" because "the question of which version of [the witnesses'] stories was more credible is the type of question we routinely require juries to answer" (quotation simplified)). We also agree with the trial court's assessment that "Victim's testimony as to the frequency, location, and extent of the abuse was not drastically changing, but was consistent in that the abuse occurred." And, unlike Robbins, Defendant has not identified any patently false statements. Finally, there was other evidence of Defendant's guilt apart from Victim's testimony. In particular, Brother testified that he suspected sexual abuse was happening, and Brother and Victim each testified to a specific instance in which abuse occurred downstairs outside Brother's room. ¶79 In sum, we conclude that Victim's testimony was not inherently improbable. We further conclude that Victim's testimony, along with the corroborating evidence, was sufficient to support the jury's verdict. See State v. Garcia-Mejia, 2017 UT App 129, ¶ 27, 402 P.3d 82 (refusing to reevaluate the fact-finder's credibility determinations where corroborating evidence distinguished the case from Robbins and where "any inconsistencies in the boys' testimonies can be explained by their age and lack of sophistication, and there were no patently false statements made" (quotation simplified)). The trial court therefore did not err in denying Defendant's motion to arrest judgment.

Significantly, in Robbins, "'no other circumstantial or direct evidence' supported the defendant's guilt." State v. Prater, 2017 UT 13, ¶ 42, 392 P.3d 398 (quoting State v. Robbins, 2009 UT 62, ¶ 19, 210 P.3d 288). --------

CONCLUSION

¶80 We conclude that Defendant has not shown that he received constitutionally deficient notice of the charges against 38 him. Defendant failed to show that the trial court exceeded its discretion in admitting evidence of other bad acts and that he was prejudiced by the admission of Detective's statements bearing on credibility. He also failed to show that the trial court erred in denying his motion to arrest judgment. Accordingly, we affirm Defendant's convictions.