This opinion is subject to revision before final 

publication in the Pacific Reporter

2020 UT 48 

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, 

Petitioner 

v. 

ROBERT ALONZO PERAZA, 

Respondent. 

No. 20180487 

Heard April 18, 2019 

Filed July 15, 2020 

On Certiorari to the Utah Court of Appeals 

Fourth District, Provo 

The Honorable Darold J. McDade 

No. 131402387 

Attorneys: 

Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen., 

Salt Lake City, Randy M. Kennard II, Provo, for petitioner 

Douglas J. Thompson, Provo, for respondent 

JUSTICE PETERSEN authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, 

JUSTICE HIMONAS, and JUSTICE PEARCE joined. 

JUSTICE PETERSEN, opinion of the Court: 

INTRODUCTION 

¶1 Robert Alonzo Peraza was convicted of four counts of 

sodomy on a child. The court of appeals vacated those 

convictions, concluding that the trial court committed two 

reversible errors: allowing the State’s expert witness to testify in 

violation of Utah Rule of Evidence 702 and denying Peraza’s 

request for a continuance of the trial date. 
STATE v. PERAZA

Opinion of the Court 

2 

¶2 The State petitioned for certiorari, arguing, among other 

things, that the court of appeals erred by conflating the standards 

and remedies under Utah Code section 77-17-13 (Expert Notice 

Statute) and rule 702, and by placing the burden on the State to 

prove that Peraza had not been prejudiced by the denial of his 

motion for a continuance. 

¶3 We conclude that the court of appeals did conflate the 

requirements and remedies of the Expert Notice Statute and rule 

702. We also hold that it erred in shifting the burden to the State to 

disprove prejudice. 

¶4 We therefore reverse the court of appeals’ holding that 

the trial court erroneously admitted the expert witness testimony. 

And we remand to the court of appeals to apply the correct 

prejudice standard in relation to the trial court’s denial of Peraza’s 

motion to continue and to address any remaining claims. 

BACKGROUND 

Sexual Abuse Allegations 

¶5 A nine-year-old child told her mother and grandfather 

that Peraza, the child’s stepfather, had been sexually abusing her. 

The grandfather immediately contacted the police, who began 

investigating the allegations. As part of the investigation, the child 

was interviewed at the Children’s Justice Center (CJC). She 

disclosed that Peraza began forcing her to perform oral sex on him 

when she was six years old and that the abuse had continued until 

recently. During the interview, the child described in graphic 

detail the anatomy of male genitalia, the erectile and ejaculatory 

process, the appearance of semen, and the physical motions of 

masturbation. 

¶6 Peraza was subsequently arrested and interviewed by the 

police. He initially denied sexually abusing the child, stating that 

he believed the child’s mother and grandfather had likely coached 

her into making the allegations. Eventually, however, Peraza 

acknowledged that there was at least one occasion where he had 

been drunk and could have mistaken the child for his wife and 

unwittingly forced her to perform oral sex on him. He then 

admitted it could have happened “a few more times.” 

¶7 In the period after Peraza’s arrest, the child recanted the 

allegations to her mother and Peraza’s private investigator. But 

the child later reaffirmed the earlier descriptions of abuse and 

added additional allegations against Peraza and another 
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Opinion of the Court 

3 

perpetrator. She explained that she had lied when she recanted 

the abuse allegations because she did not want her family to be 

separated. 

¶8 The State ultimately charged Peraza with four counts of 

sodomy on a child1 and one count of aggravated sexual abuse of a 

child, all first-degree felonies. He pleaded not guilty to the 

charges and requested a jury trial. 

Pretrial Proceedings 

¶9 Before trial, the State filed a notice of its intent to call the 

child’s therapist from California as an expert witness to testify 

“generally about the psychological symptoms, reactions, and 

behaviors common in children that report having been abused 

sexually, and that her observations of [the child’s] symptoms and 

behavior are consistent with those of other children who report 

sexual abuse.” The State’s notice indicated that the child’s 

therapist “may also provide corroborative evidence to rebut any 

defense claims of fabrication, coaching, etc.” 

¶10 Peraza filed a motion to exclude the child’s therapist from 

testifying. Specifically, Peraza argued that the description of the 

therapist’s proposed testimony was vague and failed to provide 

the defense with adequate information to meet that testimony. He 

also argued that any testimony regarding “stereotypical” 

reactions of children who report sexual abuse should be ruled 

inadmissible because it is unreliable and prejudicial under Utah 

Rule of Evidence 403. According to Peraza, “[t]he behaviors of 

children that claim to have been sexually abused—not those 

whose claims are actually proven or substantiated 

independently—is not susceptible to quantitative analysis where 

the children’s alleged underlying condition of being sexually 

abused is uncertain.”2

 

1 Utah Code section 76-5-403.1(1) provides that a person 

commits sodomy upon a child if he or she “engages in any sexual 

act upon or with a child who is under the age of 14, involving the 

genitals or anus of the actor or the child and the mouth or anus of 

either person, regardless of the sex of either participant.” 

2 In the introductory paragraph, Peraza indicated that his 

motion to exclude was “based on Utah Code of Criminal 

(Continued . . .) 
STATE v. PERAZA

Opinion of the Court 

4 

¶11 But before the trial court ruled on Peraza’s motion to 

exclude, the State withdrew its notice for the child’s therapist. 

Peraza then served the child’s therapist with a Utah subpoena, but 

she stopped communicating with the defense when asked to 

appear for trial. The State had intended to question the child’s 

therapist as a defense witness. But as trial neared and Peraza had 

not filed a notice of expert testimony, the State filed a notice of its 

intent to call a different expert witness to rebut Peraza’s likely 

defense that the child’s testimony should be disbelieved because 

of her prior recantation and inconsistent statements. 

¶12 The State filed this notice thirty-two days before trial. 

The notice explained that the State planned to call a forensic 

interviewer from the CJC to testify to “matters of specialized 

knowledge and experience.” The State’s notice indicated that the 

expert witness would testify to, “[t]he methodology and science 

related to forensic interviewing of suspected child sex abuse 

victims; science and research regarding child disclosures of sex 

abuse including identified factors related [to] delayed, partial and 

gradual disclosures and recantation.” The notice also included the 

expert’s contact information, curriculum vitae, and an extensive 

list of articles she would rely on for her testimony. Peraza did not 

file a written motion to exclude this expert witness.

¶13 Twelve days before trial, the trial court held a hearing to 

dispose of a number of outstanding matters. Relevant here, Peraza 

orally moved for the first time to exclude the forensic interviewer 

from testifying as an expert witness. Although he had not 

submitted a written motion for this expert witness, Peraza asked 

the trial court to apply the motion that he had previously filed 

regarding the child’s therapist. The State then provided the trial 

court with a hard copy of Peraza’s previous motion to exclude. 

¶14 During the pretrial hearing, Peraza challenged the 

adequacy of the State’s notice for the forensic interviewer, stating 

that he “[did not] really know exactly what this expert would be 

testifying to” and that he did not have access to the listed articles 

because they required a subscription. He also argued that, 

assuming the expert witness planned to testify about any 

 

Procedure § 77-17-13 and Utah Rules of Evidence 702 and 403.” 

However, he did not apply or analyze rule 702 in the body of the 

motion. 
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Opinion of the Court 

5 

“statistical basis” for the nature of the child’s disclosures and 

recantations, such testimony did not meet the threshold 

requirements of rule 702 and was likely to prejudice the defense 

because it could bolster the child’s credibility. 

¶15 In response, the State argued that it intended to call the 

expert witness only to rebut any argument from Peraza that the 

child was not credible because her testimony had changed over 

time and she had recanted the allegations on at least one occasion. 

It then clarified that the expert witness would testify that children 

might not “make a full disclosure initially, and that it’s a process,” 

but that she would not opine as to whether the child here was 

being truthful or not. 

¶16 In addressing the oral motion, the trial court noted that it 

“[did not] know what’s going to happen, because [it did not] have 

testimony” and “[did not] know what people are going to say 

until it actually gets done.” In addition, the trial court 

acknowledged that it was unsure “whether or not [the expert 

witness was] going to be needed.”3 Nevertheless, the court 

determined that the State’s witness “would meet the criteria for 

being an expert” under rule 702. 

¶17 Peraza then argued that he still did not “have a thorough 

enough written explanation of the expert’s proposed testimony, 

sufficient to give [him] adequate notice to prepare and meet that 

testimony, especially since [he did not] have . . . those studies.” 

The State responded that the expert witness was “available . . . to 

consult with [Peraza] . . . [to] answer any questions” and that it 

was likewise unsure what testimony would be necessary from the 

expert until it heard the defense’s evidence. 

¶18 The trial court acknowledged that there was not “a 

motion . . . pending with regard to this particular expert,” but that 

it was “going to deny [the] motion at this point in time.” It stated 

that “[f]or purposes of today, . . . [it was] going to deny [Peraza’s] 

 

3 The trial court’s statement that it was unsure whether the 

expert witness would be needed is likely referring to the State’s 

explanation that the State planned to call the expert as a rebuttal 

witness only if Peraza challenged the child’s credibility based on 

her recantations or her partial, gradual, and delayed disclosures. 
STATE v. PERAZA

Opinion of the Court 

6 

motion.” But the court noted that it would consider objections and 

“maybe this lady doesn’t come in.” The court then restated that 

“looking at skill, experience, [and] education,” the witness met the 

rule 702 requirements to be qualified to testify as an expert. 

¶19 Peraza responded that he understood that the trial court 

had ruled on his objection and indicated that he would submit a 

written motion for this specific witness.4 The court agreed that “[it 

would] like to have something there, and especially for [Peraza’s] 

purposes, if something comes of it, [he would] need that for the 

next level.” 

¶20 Peraza then asked, “In light of the [court] . . . reserving 

[on] the expert testifying or not,” whether he could “get an 

electronic copy of all the reports that [the expert witness would 

be] relying on as authority,” stating that “[w]ithout having access 

to them, [he had] no means of effectively cross examining her.” 

The court agreed and asked the State to pare down the list of 

articles and provide Peraza with copies of the articles that the 

expert would rely on for this case. The State indicated that it 

would provide Peraza with the expert’s documents relating to 

“the process of child disclosures.” In response, the trial court said, 

“[I]f I get an objection at the trial on it, then it may not come in.” 

¶21 Later that day, defense counsel requested an emergency 

telephone conference to ask the trial court for another 

continuance. During that conference, counsel stated that he had 

begun preparing to meet the expected testimony of the forensic 

interviewer after the trial court ruled that she was qualified to 

testify as an expert witness for the State. In doing so, he consulted 

with the Salt Lake Legal Defender’s director of mental health and 

social work. During this discussion, counsel described for the 

director some of the techniques used by the child’s therapist, 

including having the child make and kill effigy dolls of Peraza 

and another alleged perpetrator that the child had disclosed 

during her therapy sessions. Counsel stated that, as a result of his 

discussion with the director, he learned for the first time that this 

therapy technique “could give grounds for the recantation of the 

recantation, and also . . . might have led to the allegations 

becoming much more violent and much more pronounced as the 

 

4 A written motion to exclude the forensic interviewer was 

never submitted. 
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Opinion of the Court 

7 

years have gone on.” Arguing that the “therapy may have led to 

possible contamination of the [child’s] testimony,” counsel 

requested a continuance to acquire his own expert witness to 

review the child’s therapy records and determine whether they 

may “give a foundation for the defense.” The State responded that 

while it was “unhappy with . . . continuing again,” it 

“underst[ood] the basis of what [Peraza was] asking for.” 

¶22 The trial court denied the motion for a continuance, 

stating that it believed Peraza could have discovered this 

information previously. In addition, the court reasoned that the 

trial had already been continued three times and that it had “to 

draw the line somewhere.” It concluded by acknowledging that 

“this might be something that could be used later” but indicated 

that the trial should take place as scheduled because they had an 

obligation to the alleged victim. The case proceeded to trial twelve 

days later. 

Trial 

¶23 At trial, the State called the forensic interviewer to testify 

as a rebuttal witness. Peraza objected, arguing that she was not a 

proper rebuttal witness because evidence that the child had 

recanted the sexual abuse allegations was presented in the State’s 

case-in-chief, not the defense’s case. The trial court overruled the 

objection and allowed the State to continue laying a foundation 

for the expert witness. The State asked the expert witness about 

her education, experience, specialized training, and the scientific 

research supporting forensic interviewing techniques for children. 

The expert testified that she had read research articles that were 

peer reviewed to ensure that they are “accurate, and . . . 

represent[ed] the field.” 

¶24 The State then elicited testimony from the witness about 

the research she had read relating to recantations and partial, 

gradual, and delayed disclosures of allegations of child sex abuse. 

Other than counsel’s initial objection that the expert was not a 

proper rebuttal witness, counsel did not object to any of the 

expert’s testimony. 

¶25 Following a three-day trial, the jury convicted Peraza of 

four counts of sodomy on a child and sentenced him to concurrent 
STATE v. PERAZA

Opinion of the Court 

8 

sentences of twenty-five years to life on each count.5 Peraza 

appealed his convictions to the Utah Court of Appeals. 

Court of Appeals’ Opinion 

¶26 On appeal, Peraza made a number of arguments, 

including that the trial court abused its discretion when it allowed 

the expert witness to testify because the State had not provided 

sufficient information for the court to determine whether the 

testimony satisfied evidentiary rule 702. See State v. Peraza, 2018 

UT App 68, ¶¶ 23, 25, 427 P.3d 276. Peraza also argued that he 

had been prejudiced by the trial court’s denial of his request for a 

continuance because he was unable to procure an expert witness. 

See id. ¶¶ 24, 38. 

¶27 The court of appeals concluded that the trial court erred 

in admitting the expert’s testimony. Id. ¶¶ 2, 30, 32, 37, 49. 

According to that court, because the State’s notice did not comply 

with the Expert Notice Statute, the trial court was deprived of 

“the information necessary to rule on the admissibility of Expert’s 

testimony under rule 702.” Id. ¶ 2; see also id. ¶¶ 28, 31, 37, 49. It 

concluded that this error was prejudicial. Id. ¶ 37. 

¶28 The court of appeals also concluded that the trial court 

abused its discretion in denying Peraza’s request for a 

continuance. Id. ¶¶ 2, 38, 48. Its analysis relied on the Expert 

Notice Statute, id. ¶ 39, which states that if the party seeking to 

admit expert testimony “fails to substantially comply with the 

requirements of this section, the opposing party shall, if necessary 

to prevent substantial prejudice, be entitled to a continuance of 

the trial or hearing sufficient to allow preparation to meet the 

testimony,” UTAH CODE § 77-17-13(4)(a). The court concluded that 

“the burden is on the State to persuade the court there is no 

reasonable likelihood that, absent the error, the outcome would 

have been more favorable to the defendant.” Peraza, 2018 UT App 

68, ¶ 44 (citing State v. Tolano, 2001 UT App 37, ¶ 14, 19 P.3d 400). 

And it concluded that the State had not met its burden. Id. ¶¶ 45–

47. 

 

5 Before closing arguments, the State moved to dismiss the 

charge of aggravated sexual abuse of a child, which the trial court 

granted. 
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Opinion of the Court 

9 

¶29 Based on these two errors, the court of appeals vacated 

Peraza’s convictions and remanded the case to the trial court for a 

new trial. See id. ¶¶ 2, 49. 

¶30 The State petitioned for certiorari, which we granted. We 

exercise jurisdiction under Utah Code section 78A-3-102(3)(a). 

STANDARD OF REVIEW 

¶31 On certiorari, we review the court of appeals’ decision 

for correctness. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d 

1176. 

ANALYSIS 

¶32 The State asks us to reverse the court of appeals’ decision 

vacating Peraza’s convictions. Specifically, we granted certiorari 

to consider two issues: (1) whether the court of appeals erred in 

vacating Peraza’s convictions based on its construction and 

application of Utah Rule of Evidence 702 and the Expert Notice 

Statute, and (2) whether the court of appeals erred in assigning 

the State the burden to prove that Peraza was not prejudiced by 

the trial court’s erroneous denial of his motion for a continuance. 

We first address the court of appeals’ decision regarding the 

expert witness. 

I. EXPERT WITNESS TESTIMONY 

¶33 The State first contends that, in determining that the trial 

court abused its discretion when it allowed the expert witness to 

testify, the court of appeals erroneously conflated the 

requirements of Utah Rule of Evidence 702 and the Expert Notice 

Statute.6 We agree that the court of appeals’ rule 702 analysis 

relied in part upon unrelated notice requirements. 

 

6 The correct standard of review for a trial court’s decision to 

admit or exclude expert witness testimony is “abuse of 

discretion.” The trial court “abuses its discretion when it admits 

or excludes evidence under the wrong legal standard.” State v. 

Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032 (citation omitted) 

(internal quotation marks omitted). Whether it applied the correct 

legal standard is a question of law reviewed for correctness. Id. If 

the trial court did apply the correct legal standard, a reviewing 

court will reverse its decision to admit or exclude expert 

(Continued . . .) 
STATE v. PERAZA

Opinion of the Court 

10 

¶34 The rules of evidence and the Expert Notice Statute have 

distinct purposes, timing requirements, and remedies. These 

differences are essential to understanding what a proponent of 

expert witness testimony in a felony criminal case must do at 

different stages of the litigation. Accordingly, we begin our 

analysis by highlighting these distinctions. 

¶35 When a party seeks to call an expert to testify at trial in a 

felony criminal case, they must provide notice to the other party 

in accordance with the Expert Notice Statute. See UTAH CODE

§ 77-17-13(1)(a). Under that statute, the proponent of the expert 

testimony must “give notice to the opposing party as soon as 

practicable but not less than 30 days before trial.” Id. The notice 

must include the expert’s name, address, curriculum vitae, and 

either a copy of the expert’s report or, if one does not exist, “a 

written explanation of the expert’s proposed testimony sufficient 

to give the opposing party adequate notice to prepare to meet the 

testimony” along with “a notice that the expert is available to 

cooperatively consult with the opposing party on reasonable 

notice.” Id. § 77-17-13(1)(b). 

¶36 The Expert Notice Statute prescribes two remedies if the 

proponent of the testimony does not comply with its 

requirements. First, if the proponent “fails to substantially comply 

with [the Expert Notice Statute’s] requirements . . . , the opposing 

party shall, if necessary to prevent substantial prejudice, be 

entitled to a continuance of the trial or hearing sufficient to allow 

preparation to meet the testimony.” Id. § 77-17-13(4)(a). Second, 

“[t]he remedy of exclusion of the expert’s testimony will only 

apply if the court finds that a party deliberately violated” the 

provisions of the Statute. Id. § 77-17-13(4)(b).7 While not at issue 

 

testimony only if the decision exceeds “the limits of 

reasonability.” State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 

(citation omitted) (internal quotation marks omitted). 

7 As the Expert Notice Statute establishes (1) a timing 

requirement for providing notice of an expert witness and 

(2) corresponding disclosure rules, it arguably treads into the 

domain of the Utah Rules of Criminal Procedure. See UTAH R.

CRIM. P. 16 (governing discovery in a criminal case and 

establishing sanctions for noncompliance). The Utah Constitution 

charges this court with “adopt[ing] rules of procedure . . . to be 

used in the courts of the state,” and it permits the legislature to 

(Continued . . .) 
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Opinion of the Court 

11 

here, the Statute also states that a court “shall impose appropriate 

sanctions” if it finds that the failure to comply is the result of bad 

faith. Id.

¶37 The Expert Notice Statute’s focus is to enable a party to 

prepare before trial for expert testimony offered by an opponent. 

See id. § 77-17-13(1)(a)–(b). Accordingly, the proponent of the 

expert testimony must comply with its requirements before trial. 

See id. § 77-17-13(1)(a). The default remedy for noncompliance is a 

continuance, but only if that noncompliance is “substantial[]” and 

the continuance is “necessary to prevent substantial prejudice.” Id.

§ 77-17-13(4)(a). Exclusion of expert testimony is an available 

remedy if the trial court finds that a party deliberately violated the 

Expert Notice Statute. Id. § 77-17-13(4)(b). 

¶38 In contrast, Utah Rule of Evidence 702 governs the 

admissibility of evidence at trial. To be qualified as an expert 

witness, an individual must possess “scientific, technical, or other 

specialized knowledge [that] will help the trier of fact to 

understand the evidence or to determine a fact in issue.” UTAH R.

EVID. 702(a). The proponent of the expert testimony has the 

burden to make “a threshold showing that the principles or 

methods that are underlying in the testimony (1) are reliable, 

(2) are based upon sufficient facts or data, and (3) have been 

reliably applied to the facts.” Id. 702(b). “The threshold showing 

 

“amend the Rules of Procedure . . . adopted by the Supreme Court 

upon a vote of two-thirds of all members of both houses.” UTAH 

CONST. art. VIII, § 4. However, the Expert Notice Statute was not 

enacted as an amendment to rule 16. Neither party has challenged 

the constitutionality of the procedural provisions in the Expert 

Notice Statute. But aside from any constitutional concerns, we 

note the practical problems that arise when “litigants and courts 

are faced with two sets of procedural rules running on parallel 

tracks and are required to make judgment calls about which rule 

should apply in a given circumstance.” State v. Bridgewaters, 2020 

UT 32, ¶ 24 n.9, --- P.3d ---. As we recently observed, “[T]he 

legislature could increase clarity for the bar and the bench if it 

were to enact rule changes through joint resolutions that 

specifically amend the relevant rule of procedure.” Id.
STATE v. PERAZA

Opinion of the Court 

12 

. . . is satisfied if the underlying principles or methods . . . are 

generally accepted by the relevant expert community.” Id. 702(c). 

¶39 The Expert Notice Statute provides for the exclusion of 

expert testimony only when a party deliberately violates the 

Statute. Rule 702 provides for the exclusion of expert testimony 

when its foundational requirements are not met. Rule 702 is not 

concerned with notice. And nothing in rule 702 itself precludes 

the proponent of expert testimony from making the necessary 

threshold showing at trial, before the witness offers opinion 

testimony.8

 

8 Of course, a party can move in limine before trial to obtain a 

ruling on the admissibility of an expert’s testimony. And the 

proponent must show that the expert’s evidence is admissible. A 

court can choose to receive the information necessary to make 

such a ruling in various ways, including, for example, by proffer, 

during a pretrial evidentiary hearing, or (if the court defers its 

ruling) through preliminary questioning of the witness at trial. 

UTAH R. EVID. 104(a), (c). A court can rule on such a motion or 

defer ruling—in part or in full—until it can be made in the context 

of trial. UTAH R. CRIM. P. 12(e). 

Here, Peraza made an oral motion to exclude the forensic 

interviewer at the pretrial hearing. Based on the information 

before it, the trial court concluded the expert was qualified under 

rule 702, but deferred ruling on whether her substantive 

testimony would be admitted. Notably, Peraza did not make a 

substantive in limine motion specific to this expert witness. He did 

file a written motion in limine before trial, but it related to the 

child’s therapist. In that motion, Peraza’s focus was that the 

expert’s testimony was inadmissible under Utah Rule of Evidence 

403. And although Peraza asked the trial court at the pretrial 

hearing to apply his written motion opposing the child’s therapist 

to the forensic interviewer, there was a substantive difference 

between the two witnesses. The State’s notice for the child’s 

therapist indicated that she would testify that “[the child’s] 

symptoms and behavior are consistent with those of other 

children who report sexual abuse.” But its notice for the forensic 

interviewer never stated that she would opine on the child’s 

conduct. In fact, at trial, the forensic interviewer acknowledged 

that she had never met or interviewed the child. At the pretrial 

(Continued . . .) 
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Opinion of the Court 

13 

¶40 Here, the issue before the court of appeals was whether 

the testimony of the expert witness was admissible under rule 

702, not whether the State violated the Expert Notice Statute. 

While Peraza did make an objection at the pretrial hearing under 

the Statute, the trial court took measures to remedy Peraza’s 

concerns. The trial court asked the State to pare down the number 

of listed articles and provide them to Peraza. And the State agreed 

to make its witness available to consult with Peraza and “answer 

any questions.” And on appeal, Peraza has not challenged the trial 

court’s handling of this objection. He has argued only that the trial 

court should not have allowed the witness to testify under rule 

702. 

¶41 But we conclude the court of appeals conflated the 

distinct requirements and remedies of the Expert Notice Statute 

and rule 702 in its analysis. First, citing to the Expert Notice 

Statute, the court of appeals stated that “[a] party that intends to 

call an expert to testify at trial must demonstrate that the expert 

meets the requirements of rule 702.” State v. Peraza, 2018 UT App 

68, ¶ 28, 427 P.3d 276 (citing UTAH CODE § 77-17-13(1)(a)). While it 

is true that a proponent must make a threshold showing under 

rule 702, the court of appeals’ citation to the Expert Notice Statute 

in support of this proposition was misplaced. Even though a 

proponent of expert testimony must abide by both, compliance 

with the Expert Notice Statute is not an element of admissibility 

under rule 702. 

¶42 Second, in several paragraphs throughout its decision, 

the court of appeals specifically mentioned the Expert Notice 

Statute when it concluded that the trial court abused its discretion 

in admitting the expert’s testimony. See Peraza, 2018 UT App 68, 

¶¶ 2, 28, 30–31, 37, 49. For example, it stated that “[t]he State’s 

notice did not comply with section 77-17-13, depriving the court 

of the information necessary to rule on the admissibility of 

Expert’s testimony under rule 702.” Id. ¶ 2; see also id. ¶ 37 (“[T]he 

district court exceeded its discretion in admitting Expert’s 

testimony at trial because the State failed to comply with Utah 

Code section 77-17-13 in that it did not provide an expert report or 

detailed information with respect to Expert’s testimony or the 

 

hearing, Peraza told the trial court he would submit a written 

motion specific to the forensic interviewer, but he did not do so. 
STATE v. PERAZA

Opinion of the Court 

14 

scientific basis on which she would rely. Without this information 

the requirements under rule 702 were not met . . . .”). 

¶43 This commingling of the requirements and remedies of 

the Expert Notice Statute and rule 702 was erroneous. While 

expert testimony may be excluded under the Expert Notice 

Statute if a party deliberately violates the Statute, there has been 

no such finding in this case. Indeed, the State’s compliance with 

the Expert Notice Statute was not an issue on appeal. 

¶44 And while expert testimony will be excluded when rule 

702’s foundational requirements are not met, the record shows 

that before the State elicited the expert’s opinion at trial, it laid a 

foundation to satisfy rule 702’s threshold requirements. During 

the pretrial hearing at which Peraza initially objected to the 

forensic interviewer testifying as an expert witness, the trial court 

reviewed the witness’s “skill, experience, [and] education,” and 

determined that she met the qualifications to testify as an expert 

under rule 702(a). At that time, the court reserved on ruling 

whether her substantive testimony would be admissible under 

rule 702(b), stating that it was uncertain what the testimony 

would be but that it would consider objections at trial. 

¶45 At trial, the State called the forensic interviewer to testify 

during its rebuttal. It laid a foundation regarding her education, 

experience, and specialized training, which Peraza has never 

challenged. Relevant here, the State also asked the forensic 

interviewer whether the list of articles attached to her curriculum 

vitae contained “areas [about which she] felt [her] training and 

experience allowed [her] to testify as an expert.” Specifically, the 

State asked whether she was qualified to testify to “[p]artial 

gradual disclosure of sexual abuse, age and timing of disclosure, 

reasons children delay disclosure, reasons children disclose, 

reluctant disclosures and avoidant children in forensic interviews, 

memory of traumatic events, difficulties with identifying dates of 

abuse, among other things” as well as “sexual behavior in abused 

and non-abused children, process of victimization, rapport, false 

allegations, recantations, fantasy, [and] bizarre disclosures.” The 

expert witness confirmed that she had read research articles on 

those topics. 

¶46 The State followed up, asking, “Are those things . . . that 

you believe were generally accepted . . . within your field as being 

sources that were reliable sources of research?” The witness 

confirmed that the articles were published in peer-reviewed 
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Opinion of the Court 

15 

journals, which she explained meant that the peers within the 

author’s academic community “review [the article] . . . to make 

sure that it’s accurate, and that it’s something that they feel like 

that they agree with, and that it represents the field.” Only after 

laying this foundation did the State proceed to elicit expert 

opinion testimony from the witness. Notably, Peraza did not 

object under rule 702(b) to the substance of the witness’s 

testimony at any time during trial. 

¶47 The court of appeals appears not to have considered this 

trial testimony in its 702 analysis. It looked only to the information 

in the State’s pretrial notice. And it concluded that the notice did 

not contain enough information to meet the threshold 

requirements of rule 702, so the State had violated the Expert 

Notice Statute and the trial court exceeded its discretion in 

admitting the testimony. 

¶48 Peraza argues that this was not a conflation of the Expert 

Notice Statute and rule 702, and that it was proper to consider 

only the information in the State’s pretrial notice in assessing the 

admissibility of the expert’s testimony. Peraza argues that the trial 

court made a definitive ruling to admit the expert at the pretrial 

hearing, and at that time it had only the State’s notice before it. So 

the trial court’s ruling was predicated only on that information, 

and this is why the court of appeals referenced the expert notice 

requirements in connection with its 702 analysis. Peraza argues 

that it was an abuse of discretion for the trial court to admit the 

expert based on the information it had before it at the pretrial 

conference. 

¶49 But the factual premise of Peraza’s argument is incorrect. 

While the trial court did conclude at the pretrial hearing that the 

expert was qualified under rule 702(a) based on her curriculum 

vitae, it reserved its ruling on the helpfulness and reliability of her 

substantive testimony under rules 702(a) and (b). At the pretrial 

hearing, the State explained that it did not know what the 

substance of the expert’s testimony would be, because she would 

be called only as a rebuttal witness. Both parties recognized that 

the court was reserving on that issue. The State noted that it 

would not lose any money on travel expenses if the court was 

“going to reserve on that” because the expert was local. Peraza 

asked whether he could at least “get an electronic copy of all the 
STATE v. PERAZA

Opinion of the Court 

16 

reports that [the expert would be] relying on as authority” “[i]n 

light of the [court] . . . reserving [on] the expert testifying or not.”

¶50 At trial, the witness did not offer an opinion until after 

the State had elicited answers to preliminary questions sufficient 

to satisfy rule 702’s threshold requirements. And Peraza raised no 

objection on that basis. Viewing the forensic interviewer’s 

testimony in context, it was admissible under rule 702. The court 

of appeals incorrectly imported the requirements of the Expert 

Notice Statute into its 702 analysis. 

II. MOTION FOR A CONTINUANCE 

¶51 The court of appeals held that the trial court erred when 

it denied Peraza’s motion for a continuance. The court of appeals 

premised its analysis on a conclusion that Peraza had requested 

the continuance pursuant to the Expert Notice Statute. Based on 

that conclusion, it shifted the burden to the State to prove that 

Peraza was not prejudiced by the erroneous denial. The State does 

not contest the court of appeals’ determination that the denial of 

the continuance was error, but it argues that the court of appeals 

erred in requiring the State to disprove prejudice. We agree. 

¶52 The court of appeals’ analysis on this point was based on 

the premise that the State violated the Expert Notice Statute, and 

that Peraza requested the continuance pursuant to that statute. As 

discussed above, the court of appeals concluded in its assessment 

of Peraza’s rule 702 argument that the State violated the Expert 

Notice Statute. State v. Peraza, 2018 UT App 68, ¶¶ 31, 37, 49, 427 

P.3d 276; see supra ¶¶ 40–50. And in analyzing Peraza’s argument 

that the trial court erred in denying his motion for a continuance, 

the court of appeals presumed that Peraza requested the 

continuance as a result of the State’s violation. Id. ¶ 45. 

¶53 After determining that the trial court’s denial of Peraza’s 

request was erroneous, the court of appeals required the State to 

prove that Peraza had not been prejudiced by the error. Id. ¶¶ 44–

48. In cases involving a violation of the Expert Notice Statute, the 

court of appeals has shifted the burden to the State to prove that 

the defendant was not prejudiced. The court of appeals’ cases 

reference our rationale in State v. Knight. 734 P.2d 913, 921 (Utah 

1987). In Knight, the prosecution violated its discovery duty by 

failing to turn over certain inculpatory evidence. See id. at 914–16. 

We recognized that “when . . . the error consists of the 

prosecution’s failure to provide a defendant with inculpatory 

evidence, the record does not provide much assistance in 
Cite as: 2020 UT 48 

Opinion of the Court 

17 

discovering the nature or magnitude of the resulting prejudice to 

the defense.” Id. at 920. Accordingly, we held that “[b]ecause of 

the difficulties posed by the record’s silence in cases involving a 

wrongful failure to disclose inculpatory evidence, it seems 

appropriate in such instances to place the burden on the State to 

persuade a court that the error did not unfairly prejudice the 

defense.” Id. at 921. The defendant must only “make a credible 

argument that the prosecutor’s errors have impaired the defense.” 

Id. Then “it is up to the State to persuade the court that there is no 

reasonable likelihood that absent the error, the outcome of the 

trial would have been more favorable for the defendant.” Id.

¶54 The court of appeals has extended this holding to cases 

in which the state has violated the Expert Notice Statute. See State 

v. Arellano, 964 P.2d 1167, 1171 (Utah Ct. App. 1998); see also State 

v. Tolano, 2001 UT App 37, ¶¶ 14–15, 19 P.3d 400. And it applied 

this precedent here to require the State to prove Peraza was not 

prejudiced by the trial court’s erroneous denial of his request for a 

continuance. Peraza, 2018 UT App 68, ¶¶ 44–48. We conclude this 

was error for two reasons. 

¶55 First, Peraza acknowledges that he has not argued on 

appeal that his request for a continuance was based on the Expert 

Notice Statute. Accordingly, Peraza has waived any such 

argument. 

¶56 Second, we find the position Peraza has taken on appeal 

to be consistent with the trial record. The record reflects that 

Peraza did not request the continuance under the Expert Notice 

Statute. Rather, he asked for a continuance to secure his own 

expert witness to discuss the potential impact of the child’s 

therapy on her statements and testimony. During the emergency 

telephone conference, counsel for Peraza stated that, as a result of 

his discussion with the Salt Lake Legal Defender’s director of 

mental health and social work, he learned for the first time that 

the therapy techniques the child’s therapist had used “could give 

grounds for the recantation of the recantation, and also . . . might 

have led to the allegations becoming much more violent and 

much more pronounced as the years have gone on” and “may 

have led to possible contamination of the [child’s] testimony.” 

Counsel requested the continuance to acquire his own expert 

witness to review the child’s therapy records and determine 

whether they may “give a foundation for the defense.” Counsel 
STATE v. PERAZA

Opinion of the Court 

18 

did not invoke the Expert Notice Statute or argue that he needed 

more time to prepare for the State’s expert. 

¶57 Accordingly, the court of appeals erred when it applied 

its precedent involving the Expert Notice Statute to assess 

whether Peraza was prejudiced by the denial of the continuance.9

The Expert Notice Statute was not in play. 

¶58 In general, when a party unsuccessfully requests a 

continuance to procure a witness, based not on a particular statute 

or rule but pursuant to the court’s inherent authority to manage 

the case, the movant must prove prejudice on appeal. See Mackin 

v. State, 2016 UT 47, ¶¶ 33–34, 37, 387 P.3d 986. We will not 

reverse the trial court’s decision to grant or deny a continuance 

“absent a clear abuse of that discretion.” Id. ¶ 33 (citation 

omitted). A trial court “abuses its discretion when it denies a 

continuance and the resulting prejudice affects the substantial 

rights of the defendant, such that a review of the record persuades 

the court that without the error there was a reasonable likelihood 

 

9 The State argues that the court of appeals’ extension of our 

holding in Knight to cases involving the Expert Notice Statute is 

contrary to the language of the Statute. See State v. Arellano, 964 

P.2d 1167, 1171 (Utah Ct. App. 1998). We need not resolve this 

argument here because we have concluded that Peraza did not 

request the continuance under the Expert Notice Statute. But we 

acknowledge some of the problems the State highlights. The 

Statute states in relevant part that, “[i]f the defendant or the 

prosecution fails to substantially comply with the requirements of 

this section, the opposing party shall, if necessary to prevent 

substantial prejudice, be entitled to a continuance of the trial or 

hearing sufficient to allow preparation to meet the testimony.” 

UTAH CODE § 77-17-13(4)(a). We have stated that “the if clause 

expresses a condition.” State v. Wadsworth, 2017 UT 20, ¶¶ 5, 5 n.4, 

393 P.3d 338. Consequently, the moving party bears the burden of 

showing that the condition is met. With respect to the Expert 

Notice Statute, that means showing both that the proponent of the 

expert testimony has failed to substantially comply with the 

Statute, and that a continuance of the trial is “necessary to prevent 

substantial prejudice.” To shift the burden of proving prejudice to 

the proponent of the testimony, at the trial level or on appeal, may 

arguably run counter to the language of the statute. 
Cite as: 2020 UT 48 

Opinion of the Court 

19 

of a more favorable result for the defendant.” Id. (citation omitted) 

(internal quotation marks omitted). 

¶59 When a defendant moves for a continuance under the 

common law, it is the defendant’s burden to prove that a denial of 

the motion would be prejudicial. See id. Here, it was Peraza’s 

burden to prove prejudice. 

¶60 Accordingly, we reverse the court of appeals’ ruling and 

remand for that court to consider under the correct legal standard 

whether the trial court’s erroneous denial prejudiced Peraza.10

III. INEFFECTIVE ASSISTANCE OF COUNSEL 

¶61 Peraza also argues that his counsel was ineffective. 

Recognizing that the record is insufficient to make this 

determination, he asks us to remand to the trial court under Utah 

Rule of Appellate Procedure 23B. However, we did not grant 

certiorari on this question. And while we can affirm on alternative 

grounds that are apparent on the record, the basis for this relief is 

not apparent on the record. Further, we must remand to the court 

of appeals on other remaining issues. Accordingly, we decline to 

address whether counsel was ineffective and leave that 

determination to the court of appeals on remand. 

CONCLUSION 

¶62 We conclude that the court of appeals’ rule 702 analysis 

was erroneous. The State’s expert testimony was admissible. 

Further, the court of appeals erred in requiring the State to prove 

that Peraza was not prejudiced by the trial court’s denial of his 

motion for a continuance. 

¶63 We reverse the court of appeals’ decision with regard to 

the expert witness. And we remand to the court of appeals to 

determine whether Peraza established that he was prejudiced by 

the trial court’s denial of his motion for a continuance and address 

any other remaining claims. 

 

10 We remand this issue back to the court of appeals in 

response to the parties’ request that we do so.