2024 UT App 89

THE UTAH COURT OF APPEALS

JOSHUA DEE MARTIN,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20210311-CA

Filed June 21, 2024

Fourth District Court, Provo Department

The Honorable M. James Brady

No. 180401438

Joshua Dee Martin, Appellant Pro Se

Sean D. Reyes and Mark C. Field,

Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

LUTHY, Judge:

¶1 Joshua Dee Martin was convicted of sexually abusing his 

sisters-in-law. His direct appeal to our supreme court was 

unsuccessful. Following that appeal, Martin filed a petition, and 

then an amended petition (the Petition), for post-conviction relief

in the district court, alleging claims of ineffective assistance of 

counsel. The district court granted summary judgment against 

Martin on his ineffective assistance claims and denied the

Petition. Martin now appeals the denial of the Petition. Because 

we conclude as to each of Martin’s ineffective assistance claims

that his trial counsel (Trial Counsel) and/or his appellate counsel 

(Appellate Counsel) performed sufficiently, we affirm the district 

court’s decision.
Martin v. State

20210311-CA 2 2024 UT App 89

BACKGROUND0F

1

¶2 Martin was charged with four counts of aggravated sexual 

abuse of a child for sexually abusing his young sisters-in-law, A.L. 

and N.L. State v. Martin, 2017 UT 63, ¶ 6, 423 P.3d 1254. The 

charges stemmed from abuse that the girls first reported in 

October 2012. The girls’ mother (Mother) testified at an

evidentiary hearing that she first learned of the abuse when N.L. 

told her about it during a televised religious conference for the 

family’s church. In Mother’s words, she and N.L. were alone and 

“in the middle of [watching] October General Conference on a 

Sunday afternoon session.”1F

2 Mother said that she and N.L. were 

the only ones in the room when N.L. “looked up” and said, “Jesus 

told me I could tell you the secrets in my heart.” N.L. then 

revealed that Martin, who was then twenty-seven years old, “had 

been touching her privates.” N.L. was eight years old at the time

of this disclosure.

1. Because Martin has already undergone a trial, a direct appeal, 

and post-conviction relief proceedings before the district court, 

the record before us is extensive. We limit this Background section 

to a review of basic facts relevant to this opinion, and we provide 

additional facts relevant to this opinion as appropriate in the 

Analysis section that follows.

2. “Semi-annually [The Church of Jesus Christ of Latter-day 

Saints, headquartered in Salt Lake City,] holds a religious meeting 

called a general conference . . . . These conferences are strictly 

religious in character and are for the purpose of giving doctrinal 

instruction to regional leaders and members of the church.” 

Corporation of the President of the Church of Jesus Christ of Latter-day 

Saints v. Wallace, 573 P.2d 1285, 1286 (Utah 1978). The conferences, 

which each currently consist of five two-hour public sessions, are 

held during the first weekend of April and the first weekend of 

October. They “are communicated by radio and television [and 

the internet] throughout the world.” Id.
Martin v. State

20210311-CA 3 2024 UT App 89

¶3 On October 7, 2012, the day of N.L.’s disclosure, Mother 

gave a written report to the police. In that report, she indicated 

that on the day of the report, A.L. had also revealed allegations of 

abuse against Martin, including that every time A.L. saw Martin,

he would “hug[] her and put[] [his] hands down [her] pants if no 

one else [was] there.” A.L. was ten years old at the time of this 

disclosure. The girls’ father (Father) also gave a written report, on 

or before October 23. In it, he said that Martin had admitted 

during a phone call that he had inappropriately touched at least 

one of the girls.

¶4 Both girls were interviewed at the Children’s Justice Center 

(CJC). The State designated as an expert witness the CJC forensic 

interviewer who had interviewed A.L. but not N.L. (Expert). 

Before trial, Trial Counsel filed a motion to exclude Expert’s 

testimony under rules 403, 608, and 702 of the Utah Rules of 

Evidence. At a hearing on the motion, Trial Counsel explained 

her2F

3 argument under each of these rules. “[T]he district court 

ruled that [Expert] was qualified as an expert on why child 

victims of sexual abuse often make incomplete initial disclosures 

and disclose additional details and facts pertaining to their sexual 

abuse over time.” Id. ¶ 10. “The court also allowed [Expert] to 

testify regarding common behaviors . . . of children who have 

been abused.” Id. (cleaned up). 

¶5 During a jury trial held in July 2015, Expert testified on 

those subjects. She also, however, impermissibly testified that 

“from [her] interviews with [A.L. and N.L.], the information that 

they seemed to say to [her] seemed credible.” She then clarified

that she “only interviewed one child.” Trial Counsel indicated to 

the court that the bolstering statement was impermissible and 

asked that it be stricken and a curative instruction be given to the 

jury. The trial court granted the motion and struck the statement,

3. Two attorneys—a woman and a man—represented Martin at 

trial. In his briefing, however, Martin uses female pronouns and 

appears to reference only his female counsel. Accordingly, we 

likewise employ female pronouns in reference to Trial Counsel.
Martin v. State

20210311-CA 4 2024 UT App 89

and it also instructed the jury, “In one answer of [Expert’s]

testimony she commented directly on her opinion of the 

credibility of a particular witness in this case. This was improper 

and the answer has been stricken from the record. [Expert] is not 

qualified to give any opinion regarding the credibility of any 

particular witness in this case.”

¶6 A.L. and N.L. also testified at trial. N.L. testified that on 

October 7, 2012, she and A.L. were playing bingo in their living 

room while watching the General Conference of The Church of 

Jesus Christ of Latter-day Saints when “Elder Packer[3F

4] said that 

we shouldn’t keep secrets, because our body’s like a temple, and 

if you’re keeping bad secrets then you’re hurting your temple.” 

So, she explained, “[she] just decided to tell.” According to N.L.,

Mother “was fixing dinner” in the kitchen at the time and N.L. 

went there to tell Mother about the abuse. For her part, A.L. 

testified that she did not recount any specific incidents of abuse to 

anyone on October 7 and that “the first person” she described her 

allegations to was one of the CJC interviewers.

¶7 Mother also testified and agreed that N.L.’s disclosure

happened during the afternoon session of the conference, but she 

said that “Elder Scott”4F

5 was speaking at the time. She also testified 

on cross-examination, when asked about her written report to 

police, that she did not remember A.L. saying that Martin put his 

hands down her pants every time he saw her when no one else 

was around.

¶8 Father testified as well. Under cross-examination, he 

acknowledged that, notwithstanding what he had said in his 

4. A prominent leader in The Church of Jesus Christ of Latter-day 

Saints, who is also referred to as President Packer.

5. Another prominent leader in The Church of Jesus Christ of 

Latter-day Saints.
Martin v. State

20210311-CA 5 2024 UT App 89

report to police, Martin had not affirmatively admitted to 

molesting the girls.

¶9 During closing argument, Trial Counsel discussed topics 

such as witness “coaching,” “inconsistencies in [the girls’] 

accounts,” “the impossibility of [the] allegations,” “fabrication,”

and credibility. Regarding inconsistencies, Trial Counsel said:

[Y]ou’ve heard a lot of testimony regarding the 

inconsistencies in [A.L.’s and N.L.’s] accounts of 

what they’re claiming happened with my client 

[Martin]. 

There are a lot of minor inconsistencies, and 

I’m not going to go through all of those with you. 

You guys have been taking notes. You can rely on 

your own memories and your own notes regarding 

those minor inconsistencies, but there are a number 

of major inconsistencies, or what we believe to be 

major inconsistencies.

She then described how A.L. had repeatedly changed her 

descriptions of how many incidents of abuse Martin had 

perpetuated against her, the order of those incidents, and the 

details associated with those incidents. She highlighted that many 

details in A.L.’s narrative had changed over time as A.L. reported 

them to different sources and then testified at trial. Trial Counsel

then discussed inconsistencies in N.L.’s narrative as well. After 

this, she said, “So these are not minor . . . inconsistencies. These 

are major points, major changes in this testimony. We would ask 

that you consider that as you review the evidence in the case. 

Now, and again, it’s not mere incomplete or partial disclosures. 

These are major changes.” She then discussed other topics—like 

“the impossibility of [the] allegations”—that further supported 

the defense’s theory of “suggestibility, fabrication, [and] 

coaching.”
Martin v. State

20210311-CA 6 2024 UT App 89

¶10 The jury convicted Martin on all four charges. See State v. 

Martin, 2017 UT 63, ¶ 14, 423 P.3d 1254. Martin appealed, and our 

supreme court affirmed his convictions. See id. ¶ 5. The supreme 

court determined that Trial Counsel’s “defense strategy at trial 

was to undermine the credibility of A.L. and N.L.,” including “by 

highlighting inconsistencies in their disclosures and testimony 

about his sexual abuse.” Id. ¶ 8. And the supreme court discussed 

various inconsistencies that Trial Counsel had highlighted. See id.

¶ 9. 

¶11 The supreme court also addressed Martin’s argument that 

the district court had “made a variety of errors in admitting expert

testimony by [Expert].” Id. ¶ 2. As to Martin’s argument that “the 

district court erred in allowing [Expert] to testify extensively 

about child memory and recall,” id. ¶ 24 (cleaned up), the 

supreme court determined that this argument was unpreserved, 

see id. ¶¶ 25–26. But the supreme court also stated that “what Mr. 

Martin characterizes as [Expert’s] extensive testimony about child 

memory formation and recall amounted to brief remarks” that did 

not “call[] for expertise in the mechanisms of memory retrieval 

and recall” but “simply described trends and tendencies that were 

readily observable by a forensic interviewer with [Expert’s] level 

of training and experience.” Id. ¶ 27 (cleaned up). The supreme 

court concluded, “When her testimony is viewed in context, we 

do not believe that [Expert] sought to testify to psychological or 

neuroscientific matters beyond the scope of her expertise.” Id.

¶12 The supreme court then tackled Martin’s argument that 

“the district court should not have allowed [Expert] to testify 

regarding reasons why children will give differing disclosures of 

alleged abuse because this testimony was unhelpful, misleading 

and unfairly prejudicial and invaded the province of the jury.” Id.

¶ 28 (cleaned up). It determined that the district court did not 

abuse its discretion in concluding that Expert’s testimony would 

be helpful to the jury. See id. ¶ 30. It acknowledged that “there are 

powerful arguments why the expert testimony that the district 

court allowed in this case—testimony about the typical behaviors 

of child sex abuse victims and the manner in which they make 
Martin v. State

20210311-CA 7 2024 UT App 89

disclosures about their abuse—should be excluded in particular 

cases,” but it reasoned, “Mr. Martin submitted no meaningful 

data or other evidence to show the district court that the testimony 

the district court allowed was prejudicial, unreliable, or 

unhelpful. Nor has he cited or sought to apply any of the myriad 

cases directly analyzing this nuanced and challenging problem 

before the district court or on appeal.” Id. ¶ 31. It concluded, “Both 

at the district court level and before this court, therefore, Mr. 

Martin has failed to carry his burden of persuasion that admitting 

this testimony was an abuse of discretion.” Id.

¶13 Finally, as relates to Expert, the supreme court discussed 

her improper bolstering statement, which Martin contended was 

grounds for a mistrial. See id. ¶¶ 33–34. The court determined that 

the statement was “plainly improper” but that Martin “waived 

any claim for relief on appeal” respecting it “because the district 

court struck [Expert’s] answer and gave Mr. Martin all the relief 

he sought—a curative instruction stating that [Expert] was not 

qualified to speak to the credibility of the children and that her 

comments to that effect had been stricken from the record.” Id.

¶ 34. The court stated, “Mr. Martin accordingly waived a mistrial, 

and we will not now give him a greater remedy than he sought at 

trial.” Id.

¶14 After Martin’s unsuccessful direct appeal, he filed and then 

amended a petition for relief under the Post-Conviction Remedies 

Act (PCRA). In the Petition, Martin asserted seven claims of 

ineffective assistance of counsel. Six of these applied only to Trial 

Counsel, while one applied to both Trial Counsel and Appellate 

Counsel. The State moved for summary judgment on each of these 

claims. The district court determined that none of the complainedof “actions or inactions” of Trial Counsel and Appellate Counsel 

were “objectively unreasonable,” so it determined that addressing 

prejudice as to the claims was “not necessary.” Because it 

concluded that none of the decisions in question amounted to 

ineffective assistance, the court granted summary judgment for 

the State and dismissed the Petition. Martin now appeals that

decision. 
Martin v. State

20210311-CA 8 2024 UT App 89

ISSUE AND STANDARD OF REVIEW

¶15 Martin asserts that the district court erred by granting the 

State’s motion for summary judgment and denying the Petition. 

“We give no deference to the district court in reviewing its grant 

of summary judgment or its order denying a petition for postconviction relief.” Jones v. State, 2020 UT App 125, ¶ 18, 473 P.3d 

1190. “We will affirm the grant of summary judgment when the 

record shows that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of 

law.” Id. (cleaned up); see also Utah R. Civ. P. 56(a).

ANALYSIS

¶16 Martin asserts that the district court improperly granted 

summary judgment to the State on the claims of ineffective 

assistance of counsel that he raised in the Petition.5F

6 “In the context 

of a summary judgment motion in a PCRA proceeding premised 

on a claim of ineffective assistance of counsel, [the petitioner] 

bears the burden of proving [the] underlying legal claims of 

ineffective assistance of counsel.” Jackson v. State, 2015 UT App 

217, ¶ 13, 359 P.3d 659 (cleaned up). “When the State files its 

motion for summary judgment, it bears the initial burden of 

showing that it is entitled to judgment and that there is no genuine 

issue of material fact that would preclude summary judgment in 

6. Martin was represented by attorneys from the Utah County 

Public Defender Association both at trial and on direct appeal. 

Because of this, Martin was not precluded from raising claims of 

ineffective assistance as to Trial Counsel in the Petition despite not 

raising them in his direct appeal. See Menzies v. State, 2014 UT 40, 

¶ 212, 344 P.3d 581 (“[B]oth the common law and the PCRA allow 

a petitioner who had the same counsel on appeal and at trial”—

including counsel from the same office or firm—“to raise 

ineffective assistance claims for the first time in post-conviction 

proceedings.”), abrogated on other grounds by McCloud v. State, 2021 

UT 51, 496 P.3d 179.
Martin v. State

20210311-CA 9 2024 UT App 89

its favor.” Id. (cleaned up). “Once the State makes that showing, 

the burden of proof then shifts to [the petitioner,] the nonmoving 

party.” Id. (cleaned up). And because Martin, as the petitioner,

“bears the burden of proving ineffective assistance, he cannot rest 

on his allegations alone but instead must set forth specific facts 

showing that there is a genuine issue for trial.” Id. (cleaned up); 

see also Utah Code § 78B-9-105(1)(a) (“[T]he petitioner has the 

burden of pleading and proving by a preponderance of the 

evidence the facts necessary to entitle the petitioner to relief.”).

I. The Strickland Standard 

¶17 Two of Martin’s assertions of error amount to general 

misunderstandings about how claims of ineffective assistance of 

counsel are evaluated. We therefore begin by explaining the test 

for proving ineffective assistance of counsel and why the district 

court did not err in its approach to applying that test in this case.

¶18 To succeed on a claim of ineffective assistance of counsel, 

an appellant must satisfy both prongs of the two-part test 

articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under 

the first prong, “the defendant must show that counsel’s 

performance was deficient,” which is accomplished by showing 

“that counsel’s representation fell below an objective standard of 

reasonableness.” Id. at 687–88. Under the second prong, “the 

defendant must show that [counsel’s] deficient performance 

prejudiced the defense.” Id. at 687. Prejudice is “a reasonable 

probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different,” thus

“undermin[ing] confidence in the outcome.” Id. at 694. “Because 

failure to establish either prong of the test is fatal to an ineffective

assistance of counsel claim, we are free to address [a defendant’s] 

claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 

P.3d 182. 

¶19 In assessing whether the first prong of the Strickland test is 

met—i.e., whether counsel’s performance was deficient—courts 

“afford[] a strong presumption that counsel’s actions were within 
Martin v. State

20210311-CA 10 2024 UT App 89

the broad range of conduct considered a sound trial strategy.” 

State v. Hutchings, 2012 UT 50, ¶ 18, 285 P.3d 1183 (cleaned up).

Martin demonstrates an initial misunderstanding regarding this 

aspect of the Strickland test.

¶20 Martin contends that the district court erred by making 

assumptions about possible strategic reasons Trial Counsel and 

Appellate Counsel proceeded as they did while providing his 

defense. He asserts that “assumptions go both ways” and that it 

“can be argued” that, instead of having been based on strategic 

reasons, Trial Counsel’s and Appellate Counsel’s actions might 

instead reflect “unprofessional preparations, an inability to adapt 

to new information and focusing on inflexible tactics.” But when

reviewing counsel’s performance, courts are “required not simply 

to give the attorneys the benefit of the doubt, but to affirmatively 

entertain the range of possible reasons [they] may have had for 

proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 196 

(2011) (cleaned up). Indeed, “given the strong presumption of 

competence, [a reviewing court] need not come to a conclusion 

that counsel, in fact, had a specific strategy in mind.” State v. Isom, 

2015 UT App 160, ¶ 37, 354 P.3d 791 (cleaned up), cert. denied, 364 

P.3d 48 (Utah 2015). Instead, the court “need only articulate some 

plausible strategic explanation for counsel’s behavior.” Id.

(cleaned up). Thus, rather than erring “by assuming why [Trial 

Counsel and Appellate Counsel] did what [they] did,” as Martin 

contends, the district court was properly applying the first prong 

of the Strickland test when it explored and articulated possible 

strategic reasons for their behavior.

¶21 Martin’s second misunderstanding is tied to the notion that 

reviewing courts are free to address an ineffective assistance claim 

“under either prong” of the Strickland test. Honie, 2014 UT 19, ¶ 31. 

Martin appears to believe that because a court need not “find 

counsel’s performance deficient before examining prejudice,” a 

defendant need only prove prejudice to prevail on an ineffective 

assistance claim. This belief is evident from his contention that the 

district court erred when it did not consider the purported 

prejudice he suffered in connection with Trial Counsel’s and 
Martin v. State

20210311-CA 11 2024 UT App 89

Appellate Counsel’s conduct and rule in his favor based on that 

prejudice, even though the court determined that Martin’s Trial 

Counsel and Appellate Counsel did not render deficient 

performance at all. Martin’s position is untenable.

¶22 While a court may address an ineffective assistance claim 

under only one prong of the Strickland test when its purpose is to 

show that the claim fails, a court must address both prongs of the

Strickland test before it determines that an ineffective assistance 

claim is successful. See id. Therefore, while Martin is correct that a 

court need not “find counsel’s performance deficient before 

examining the prejudice,” a court must find counsel’s 

performance deficient before it rules in a defendant’s favor. And 

a court need not analyze prejudice at all if it first finds no deficient 

performance. It is the reviewing court’s prerogative to analyze 

either prong first, and the court may end its inquiry when it deems 

one prong unmet. The court here found that as to each of Martin’s 

allegations of ineffective assistance, Trial Counsel and Appellate 

Counsel did not perform unreasonably, thus defeating his claims 

on the prong of deficient performance. At that point, the court had 

no obligation to analyze prejudice as to any of Martin’s claims.

II. Martin’s Claims of Ineffective Assistance

¶23 Having determined that the district court did not err in its 

general approach to applying the Strickland test to Martin’s claims 

of ineffective assistance, we turn to a review of the court’s specific 

rulings on each of Martin’s claims. In the Petition, Martin raised 

seven claims of ineffective assistance. We examine each one to 

determine whether the district court correctly granted summary 

judgment.6F

7

7. On appeal, Martin takes issue with several aspects of the district 

court’s reasoning in granting summary judgment to the State. 

Some of Martin’s arguments apply to only one claim of ineffective 

assistance, while others apply to multiple claims. And it is not 

(continued...)
Martin v. State

20210311-CA 12 2024 UT App 89

A. The Details Surrounding N.L.’s Disclosure

¶24 Martin first contends that Trial Counsel was ineffective for 

failing to cross-examine N.L. regarding the identify of the 

television broadcast speaker and the content of the talk that 

prompted her disclosure of abuse, failing to cross-examine 

Mother on this subject, failing to seek judicial notice that the talk 

did not happen as described, and failing to argue fabrication on 

this point in closing argument. Here Martin refers to N.L.’s 

testimony that on October 7, 2012, she and A.L. were playing 

bingo in their living room while watching the conference when 

the following occurred: “Elder Packer said that we shouldn’t keep 

secrets, because our body’s like a temple, and if you’re keeping 

bad secrets then you’re hurting your temple. So I just decided to 

tell.” According to N.L., Mother “was fixing dinner” in the kitchen 

at the time and N.L. went there to tell Mother about the abuse. 

Mother agreed that this happened during the afternoon session of 

the conference, but when asked who the conference speaker was, 

she said, “Elder Scott.” Additionally, at an earlier evidentiary 

hearing, Mother had testified that she and N.L. were the only ones 

in the room watching the conference when N.L. “looked up and 

just said Jesus told me I could tell you the secrets in my heart” and

then reported that “[Martin] had been touching her privates.”

¶25 Martin stated in his memorandum supporting the Petition 

that when he heard N.L.’s trial testimony, he “immediately 

entirely clear from his briefing whether Martin’s claims of error 

call into question the district court’s resolution of all seven 

ineffective assistance claims that Martin brought in the Petition. 

But Martin is proceeding pro se, and “appellate courts are 

generally lenient with pro se litigants, extending every 

consideration that may reasonably be indulged.” Chaparro v. 

Torero, 2018 UT App 181, ¶ 33, 436 P.3d 339 (cleaned up). Because 

we “may, in the interests of justice, overlook inadequacies in the 

briefing and reach the merits” of a pro se appellant’s arguments,

id., we elect to review all seven claims of ineffective assistance of 

counsel that Martin raised in the Petition.
Martin v. State

20210311-CA 13 2024 UT App 89

searched the Church’s website on his [phone] and informed [Trial 

Counsel] that the girl’s detailed and specific story of the

prompting she received was fabricated.” Martin further asserted,

“President Packer . . . was the second speaker on Sunday morning, 

which would mean that he gave his remarks at around 10:45 am. 

President Packer’s address . . . [had] no reference . . . to ‘secrets,’

‘bodies,’ or ‘temples.’” Regarding Mother’s description of these 

events, Martin stated, “Elder Scott was the second speaker during 

the Sunday afternoon session, so he would have spoken around 

2:45 pm. His address . . . had nothing whatsoever to do with 

‘secrets’ or ‘bod[ies],’ although there are several references to 

temples.” (Alteration in original.) Martin continued, “There is the 

possibility that an 8-year old . . . might be confused as to the 

identity of the speaker who discussed human bodies being 

temples and not keeping secrets, but a review of all of the talks . . .

reveals that not one speaker addressed those issues.” Martin 

contended, “Choosing to ignore the clearly fabricated story of 

how the alleged sexual abuse came to light was not within the 

wide range of reasonable professional assistance of defense 

counsel and it was certainly not sound trial strategy.” Therefore, 

Martin insisted, Trial Counsel performed deficiently by not crossexamining N.L. and Mother on this subject, by not seeking judicial 

notice that the talk N.L. referred to did not occur as described, and 

by not arguing fabrication on this point in closing argument.

¶26 The district court determined that Trial Counsel’s actions 

in this regard were “not objectively unreasonable.” Among the 

reasons it provided were that Trial Counsel “could have decided 

that cross-examining N.L. and [Mother] merely to point out that 

people listening to General Conference may be confused on the 

identity of the speakers was not persuasive,” that Trial Counsel 

planned to and did highlight other inconsistencies during crossexamination and closing argument, and that Trial Counsel “could 

have decided that arguing about who raised the topic [was] not as 

significant as other aspects of the case.” Considering the calculus 

Trial Counsel faced at the time, the court stated that “counsel is 

bound by the reasonable time [constraints] of the court process” 

as “[c]ross-examination cannot go on forever” and that Trial 
Martin v. State

20210311-CA 14 2024 UT App 89

Counsel “may have reasonably concluded that without showing 

that the content referred to by the witness was not addressed by 

any speaker, cross examination of the witnesses would only 

establish that the witness was confused as to which speaker 

addressed the topic.” Accordingly, the court reasoned, Trial 

Counsel “could have reasonably weighed the trial’s time 

[constraints], the time required to research all topics raised at the 

conference and the potentially limited impact of a witness[’s] 

confusion in identity of a speaker and concluded not to pursue 

that line of inquiry.”

¶27 Martin now contends that the court erred in “carelessly 

insist[ing] that [Trial Counsel] should or would [put] time 

adherence over [her] client[’s] interests.” He takes issue with the 

court’s references to time constraints in resolving both this alleged 

ground of ineffective assistance and other grounds he has 

asserted. He declares that “it is absurd to have to say that an 

innocent man will be convicted because his attorney just didn’t 

have the time to research new evidence brought up at trial or the 

time to properly cross-examine witnesses.”

¶28 We do not read these and other time-related statements by 

the district court as condoning a defense attorney’s inadequate 

research or neglect of a client’s interests. Instead, we view the 

court’s analysis as properly considering the realities of trial when 

evaluating attorney performance. The case law is clear that a 

review of attorney performance is to be undertaken “in light of all 

the circumstances” present when a defendant’s counsel made the 

decision in question. Strickland v. Washington, 466 U.S. 668, 690 

(1984); see also Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d 182 (“[W]e

examine the reasonableness of trial counsel’s conduct in light of 

the particular facts of the case, viewed as of the time of counsel’s 

conduct.”). And decisions made in the “real-time context of trial,” 

State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (cleaned up), may 

involve considering the time constraints inherent in the trial 

setting. In preparing for and performing at a trial, “defense 

lawyers have limited time and resources, and so must choose 

from among countless strategic options. Such decisions are 
Martin v. State

20210311-CA 15 2024 UT App 89

particularly difficult because certain tactics carry the risk of 

harming the defense by undermining credibility with the jury or 

distracting from more important issues.” Dunn v. Reeves, 594 U.S. 

731, 739 (2021) (cleaned up).

¶29 We agree with the district court that Trial Counsel could 

have reasonably decided against highlighting the particular 

inconsistencies Martin refers to. Specifically, we agree that Trial 

Counsel could have reasonably determined that focusing on these 

inconsistencies would not be especially persuasive to the jury and 

could have reasonably elected to highlight other discrepancies in 

the evidence over these.

¶30 Even if Trial Counsel demonstrated that N.L.’s 

identification of the speaker and content of the talk was wrong, 

Trial Counsel could have reasonably concluded that the jury 

would likely not place much weight on an eight-year-old child’s 

inability to correctly match one of many speakers to the content 

of a certain talk. And even if Trial Counsel could show that no 

speaker addressed the specific topic N.L. identified, it is not 

unreasonable to believe that an eight-year-old potentially

distracted by bingo misheard, misremembered, or derived a 

unique interpretation from a religious address. Accordingly, Trial

Counsel could reasonably believe that taking further action with 

regard to N.L. on this point would not be productive. 

¶31 And Trial Counsel could reach a similar conclusion 

concerning Mother. Mother did not testify as to a particular 

message but rather that N.L. simply said, “Jesus told me I could 

tell you the secrets in my heart.” Therefore, whether Mother could 

correctly recall the speaker was likely of little importance to the 

jury. And Trial Counsel could not show that Mother’s 

identification of the speaker did not match Mother’s description 

of the content of the speaker’s talk since Mother alleged no 

specific content.

¶32 For these reasons, Trial Counsel did not perform 

deficiently by not seeking judicial notice of the content of the 
Martin v. State

20210311-CA 16 2024 UT App 89

various talks given in order to show that neither the speaker N.L. 

identified nor any of the other speakers talked about one’s body 

being a temple and not keeping secrets. Trial Counsel could have 

reasonably concluded that doing so would not be effective 

because Mother did not point to any actual statements in the 

conference and the jury could reasonably believe that N.L.’s 

mischaracterization of the content of a talk did little to suggest 

fabrication of her allegations of assault.

¶33 While the discrepancies between N.L.’s account and 

Mother’s account could lend some limited support to an 

allegation of fabrication, we do not see deficient performance in 

Trial Counsel’s decision not to highlight those discrepancies 

where she chose to highlight other inconsistencies—ones directly 

related to the alleged incidents of abuse—during crossexamination and closing argument. First, we note that the jury 

would likely give little weight to an eight-year-old and an adult 

remembering differently who was speaking or who was in which 

room listening at a given time during the conference. And while 

the jury might make slightly more of the difference between N.L. 

testifying that she told Mother of the abuse in the kitchen while 

Mother was preparing dinner and Mother implying that N.L. 

disclosed the abuse in the living room when she and Mother were 

alone watching the conference, it was not unreasonable for Trial 

Counsel, in cross-examining N.L., to instead focus her 

questioning regarding the conference-time disclosure on what 

N.L. told Mother that day about the abuse. Specifically, Trial 

Counsel highlighted the fact that the abuse N.L. reported that day 

did not include an incident she revealed later. And in closing 

argument, Trial Counsel walked through a series of what she 

characterized as “major inconsistencies,” including differences 

between which incidents the girls reported when and to whom,

and differences in their descriptions of the incidents. Trial 

Counsel acted reasonably in focusing on these discrepancies and 

characterizing them as major, where they related specifically to 

Martin’s alleged actions. Competent counsel could conclude that 

these were likely to have a greater bearing on the jury’s 

determination of Martin’s guilt than the details Martin now 
Martin v. State

20210311-CA 17 2024 UT App 89

focuses on regarding the conference speaker and topic because 

they addressed what Martin was alleged to have done and 

whether the girls fabricated those allegations. We therefore 

cannot say that Trial Counsel acted unreasonably by using the 

time at trial to highlight other discrepancies in the witnesses’ 

testimonies than the conference-related ones.

B. The Date of A.L.’s First Disclosure

¶34 Second, Martin asserts that Trial Counsel provided 

ineffective assistance by failing to confront Mother and Father on 

cross-examination with the contradiction between, on the one 

hand, their accounts that A.L. told them on October 7 of specific 

instances of abuse by Martin and, on the other, A.L.’s trial 

testimony denying that she told her parents on October 7 about 

any abuse. Martin asserts that Trial Counsel compounded this 

error because she recast A.L.’s testimony as a failure to recall telling 

her parents on October 7 about abuse by Martin rather than as a 

denial that she told her parents on October 7 about the abuse and

because Trial Counsel failed to highlight in closing argument this 

inconsistency between A.L.’s and her parents’ testimonies.

¶35 Martin’s argument on this point refers to the following

testimony Trial Counsel elicited from A.L. during crossexamination:

Q. . . . [W]hen you first described these events, this 

was the day . . . of General Conference, and [N.L.]

had said some things to [Mother]. Did you talk to 

your family at all that day about what happened?

A. No.

Q. Okay, did you ever talk to them before being 

interviewed . . . [at] the CJC?

A. No.
Martin v. State

20210311-CA 18 2024 UT App 89

Q. Okay, so you don’t recall talking to [Mother] or 

[Father] about anything?

A. No, I didn’t.

Q. Okay, so you don’t recall telling them that the 

first time this occurred was in the church parking lot 

in a vehicle with [Martin]; you don’t remember 

telling them that?

A. I didn’t tell them that.

This contrasts with testimony from Mother and Father, who both 

agreed that on October 7 A.L. did disclose details about a specific 

incident of abuse.

¶36 As an initial matter, we note that Martin is wrong that Trial 

Counsel compounded any error that might have occurred here. 

A.L.’s testimony in question clearly expresses A.L.’s denial—as 

opposed to lack of recollection—that she told her parents of 

specific instances of abuse on October 7, and Trial Counsel’s 

phrasing of questions did not negate that.

¶37 As for whether Trial Counsel provided ineffective 

assistance for failing to cross-examine Mother and Father about 

this discrepancy and to highlight the discrepancy in closing 

argument, we conclude that she did not. That this discrepancy 

came in through cross-examination cuts against Martin’s 

argument; Trial Counsel herself elicited the testimony showing 

yet another discrepancy. Had Trial Counsel chosen to crossexamine Mother and Father on this point, she would have risked 

eliciting testimony softening the discrepancy. For example, the 

following testimony by A.L., which preceded that quoted above,

could suggest that on October 7 she perhaps acknowledged to 

Mother that abuse had occurred but that she did not tell Mother 

the details of the abuse:
Martin v. State

20210311-CA 19 2024 UT App 89

Q. . . . [W]ho did you first tell about these incidents 

that occurred as you’ve described with [Martin]? 

Did you tell [Mother], did you tell your sister; who 

did you first tell?

A. Well, she asked me if he did anything, but I didn’t 

really tell her.

Q. Sorry to interrupt you. When you say “she,” are 

you referring to [Mother] or—

A. Yeah, [Mother].

Q. Okay. Okay.

A. I think it was . . . the girl at the CJC.

Q. Okay, so that’s the first person you described all 

of this to?

A. Yeah.

If Trial Counsel had cross-examined Mother and Father about 

what, if anything, A.L. disclosed on October 7, that may have 

prompted the State to potentially elicit through cross-examination 

of A.L. a clarification that she had made some sort of disclosure to 

Mother on October 7, thereby narrowing the discrepancy between 

A.L.’s and her parents’ testimonies. By instead simply eliciting 

contradictory testimony from A.L., Trial Counsel was able to lay

a potentially sharp discrepancy bare before the jury. We cannot 

say that this was an unreasonable trial strategy. Nor, for the 

reasons we have given regarding the reasonableness of Trial 

Counsel’s decision to focus in closing argument on discrepancies 

regarding the incidents of abuse themselves, can we say that Trial 

Counsel performed unreasonably by not specifically highlighting 

this disclosure-related discrepancy during closing arguments.
Martin v. State

20210311-CA 20 2024 UT App 89

C. Mother’s and Father’s Written Police Statements

¶38 Third, Martin argued in the Petition that Trial Counsel 

provided ineffective assistance by not adequately confronting 

Mother and Father on cross-examination with the inconsistencies

between their trial testimonies and their earlier handwritten 

statements to police and by failing to have these statements 

admitted and to use them in closing argument.

¶39 Mother gave a written report to the police on October 7. 

Father gave a written report on or before October 23. Mother’s 

statements in her written report contained several allegations that 

were later contradicted at trial, including allegations discussed 

above regarding what A.L. disclosed that day and A.L.’s

declaration that every time she saw Martin he would “hug[] her 

and put[] [his] hands down [her] pants if no one else [was] there.”

At trial, Mother testified that she did not remember A.L. saying 

that. Father also made statements in his police report about what 

A.L. had disclosed, and he further said that Martin had admitted 

during a phone call that he had inappropriately touched at least 

one of the girls. At trial, Father testified that Martin did not 

affirmatively admit touching either girl inappropriately.

¶40 Martin asserts on appeal that the district court addressed 

only Trial Counsel’s failure to seek admission of these written 

police reports into evidence and neglected to address Trial 

Counsel’s failure to adequately confront Mother and Father about 

them on cross-examination or to highlight these issues in closing 

argument. Martin is wrong. The court specifically listed all three 

of the actions Martin claimed Trial Counsel should have taken

and then analyzed the appropriateness of how Trial Counsel 

chose to use the statements:

Martin argues that [Trial Counsel] provided 

ineffective assistance of counsel by (1) failing to 

introduce the written statements . . . into evidence, 

(2) failing to adequately confront [Mother] and 

[Father] about inconsistencies between these 
Martin v. State

20210311-CA 21 2024 UT App 89

written statements and trial testimony, and (3) not 

pointing out inconsistencies between these 

statements and trial testimony to the jury. The 

[c]ourt finds that none of the actions or inactions by 

[Trial Counsel] was objectively unreasonable.

. . . [Trial Counsel] handed [Mother’s] 

October 7, 2012 written statement to [Mother] while 

she was on the stand and asked her to read it silently 

to herself. [Trial Counsel] then proceeded to 

question her about the contents of the document. 

And she admitted that some of the things written 

she did not recall. [Trial Counsel] also addressed 

[Father’s] trial testimony that Martin never 

affirmatively admitted he touched A.L. and N.L. 

with a separate written statement that contradicted 

this testimony.

[Trial Counsel] addressed inconsistencies in 

testimony with the evidence available . . . at the 

time. [Trial Counsel] could have also reasonably 

determined that if the written statements were 

placed in evidence, the other accusatory 

information would have been available for the jury 

to review when deliberating. [Trial Counsel] could 

have reasonably decided to let the witnesses’ 

testimony speak for itself, rather than have the 

inculpating information available for review by the 

jury during deliberation. The [c]ourt finds [Trial 

Counsel’s] actions were not objectively 

unreasonable . . . .

The court clearly determined that Trial Counsel was reasonable in 

her strategy of how to use the written police statements and did 

not perform deficiently by not taking the three actions Martin 

wishes she had.
Martin v. State

20210311-CA 22 2024 UT App 89

¶41 We agree with the district court that Trial Counsel pursued 

an acceptable strategy regarding this evidence. Showing 

discrepancies between the reports and trial testimony through 

cross-examination, rather than seeking admission of the 

documents, permitted Trial Counsel to highlight only the aspects 

of the reports that were helpful to Martin. Trial Counsel was 

thereby able to cast the credibility of key witnesses of the State 

into doubt while avoiding putting before the jury other 

statements in the reports that may have been inculpatory. Trial 

Counsel was not ineffective for choosing a route other than 

admission of the documents. See State v. Nelson, 2015 UT 62, ¶ 16, 

355 P.3d 1031 (“We give trial counsel wide latitude in making 

tactical decisions and will not question such decisions unless there 

is no reasonable basis supporting them.” (cleaned up)).

¶42 And while Martin would have liked Trial Counsel to have 

dug deeper in cross-examination, Trial Counsel did highlight 

important discrepancies between the written reports and trial 

testimony through that process. For example, the jury heard Trial 

Counsel refer specifically to the written report to impeach 

Mother’s statement that she didn’t recall A.L. saying Martin 

would put his hand down her pants whenever other people were 

not around. And Trial Counsel explicitly referred to Father’s 

written statement when confronting him about what he alleged 

A.L. revealed on October 7. Additionally, Trial Counsel referred 

to Father’s written statement when questioning Father about his 

phone call with Martin, during which questioning Father 

acknowledged that Martin did not admit to molesting the girls. 

Based on all this, we do not find Trial Counsel’s performance 

constitutionally defective in her cross-examination on this point.

¶43 We also do not see deficient performance in Trial Counsel

not raising this point in closing argument. Trial Counsel’s closing 

argument covered a wide range of evidence and discussed topics 

such as witness coaching, fabrication, inconsistencies, 

impossibility, and credibility. In reviewing Trial Counsel’s closing

argument, it is clear that Trial Counsel made a strategic decision 

to highlight the evidence she believed was most helpful to 
Martin v. State

20210311-CA 23 2024 UT App 89

Martin’s defense and to cast doubt on the evidence she found 

most incriminating. That she and Martin had a difference of 

opinion over whether a particular piece of evidence should have 

been mentioned in closing argument is not a sufficient reason for 

us to conclude that Trial Counsel performed deficiently. See 

Strickland v. Washington, 466 U.S. 668, 689 (1984) (“It is all too 

tempting for a defendant to second-guess counsel’s assistance 

after conviction . . . . There are countless ways to provide effective 

assistance in any given case. Even the best criminal defense 

attorneys would not defend a particular client in the same way.”). 

Trial Counsel’s closing statement constituted a robust defense of 

Martin, and she did not perform deficiently by making it without 

reemphasizing this particular point.

D. Expert’s Testimony on Children’s Incomplete Disclosures and 

Unpredictable Behaviors as a Result of Sexual Abuse

¶44 Fourth, Martin asserts that both Trial Counsel and 

Appellate Counsel provided ineffective assistance for not making 

“an adequate, reasoned and supported argument” for excluding 

Expert’s testimony as to the reasons children make incomplete or 

inconsistent disclosures about sexual abuse and as to children’s 

symptoms that are consistent with sexual abuse. We disagree and 

conclude that neither Trial Counsel nor Appellate Counsel 

performed deficiently in this regard.7F

8

8. Martin attached Appellate Counsel’s primary brief to the 

original version of his petition but not to the Petition as amended. 

Because of this, the district court found that “Martin failed to 

produce evidence of what [Appellate Counsel] presented and 

argued on appeal” and that, accordingly, the court was “without 

sufficient evidence to determine if [Appellate Counsel’s] 

representation was objectively unreasonable.” However, rule 65C 

of the Utah Rules of Civil Procedure, which governs PCRA cases, 

see Utah R. Civ. P. 65C(a), provides that “[a]ll records in the 

criminal case under review, including the records in an appeal of 

(continued...)
Martin v. State

20210311-CA 24 2024 UT App 89

¶45 Before trial, Trial Counsel filed a motion to exclude 

Expert’s testimony. Trial Counsel argued that Expert was 

insufficiently qualified to give her proffered testimony, that the 

testimony would not be helpful to the jury, that the probative 

value of her testimony was substantially outweighed by a danger 

of unfair prejudice, and that the testimony would amount to 

impermissible bolstering of A.L.’s and N.L.’s testimony. Over 

these objections, the district court ruled that Expert “was qualified

as an expert on why child victims of sexual abuse often make

incomplete initial disclosures and disclose additional details and

facts pertaining to their sexual abuse over time,” as well as on

“common behaviors . . . of children who have been abused.” State 

v. Martin, 2017 UT 63, ¶ 10, 423 P.3d 1254. Expert then testified at 

trial “about the reasons children make incomplete or inconsistent 

disclosures about sexual abuse[] and explained that children 

respond to sexual abuse by demonstrating a wide and largely 

unpredictable array of behaviors.” Id. ¶ 22. She “identif[ied] some 

common behavioral changes that occur in child victims of sexual 

abuse” but also testified that “these changes are not to be expected 

in every case and ultimately are not reliable indicators of whether 

abuse has, or has not, occurred.” Id. 

¶46 On direct appeal following Martin’s conviction, Appellate 

Counsel largely restated Trial Counsel’s arguments, contending 

that Expert’s “testimony about the typical behaviors of child sex 

abuse victims and the manner in which they make disclosures 

about their abuse” was “unhelpful, misleading and unfairly 

prejudicial and invaded the province of the jury.” Id. ¶¶ 28, 31 

(cleaned up). Our supreme court concluded that based on the 

that conviction, are deemed part of the trial court record in the 

petition for post-conviction relief,” id. R. 65C(n)(3). We interpret 

this rule to mean that regardless of whether Martin’s original 

petition or the Petition as amended included Appellate Counsel’s 

briefing, we may consider Appellate Counsel’s briefing since that 

briefing was among the records in the criminal case under review. 

Accordingly, we address Martin’s claim of ineffective appellate 

assistance on its merits.
Martin v. State

20210311-CA 25 2024 UT App 89

arguments forwarded by Trial Counsel and Appellate Counsel, 

there was “no error in the court’s permitting this testimony.” Id.

¶ 30.

¶47 The supreme court then also observed, however, that there 

were other “powerful arguments”—ones not made by Trial 

Counsel or Appellate Counsel—for “why the expert testimony 

that the district court allowed in this case . . . should be excluded 

in particular cases.” Id. ¶ 31. Specifically, it noted that “some other 

jurisdictions—though by no means all—have categorically 

excluded this testimony in the face of evidence showing that the 

testimony is unreliable, is essentially beyond the scope of any 

credible scientific or therapeutic method, or poses an undue risk 

of improperly influencing a jury’s assessment of credibility.” Id.

And the supreme court cited cases from two such jurisdictions. 

See id. (citing first Sanderson v. Commonwealth, 291 S.W.3d 610, 614 

(Ky. 2009), and then Commonwealth v. Dunkle, 602 A.2d 830, 832, 

834 (Pa. 1992), superseded by statute as recognized by Commonwealth 

v. Jones, 240 A.3d 881 (Pa. 2020)). Then the supreme court 

acknowledged the split in extra-jurisdictional authority and cited

a case from yet another jurisdiction, see id., which recognized that 

“a majority of the jurisdictions . . . deem admissible expert 

testimony that a particular complainant has exhibited behavioral 

characteristics identified as those of sexual assault victims—so 

long as the expert does not offer an ultimate conclusion on the 

issue of sexual abuse or opine directly on the complainant’s 

veracity,” State v. Favoccia, 51 A.3d 1002, 1015 n.26 (Conn. 2012). 

Importantly, the supreme court also cited State v. Kallin, 877 P.2d 

138 (Utah 1994), which held that “[e]xpert testimony that [certain 

behavioral] symptoms are consistent with sexual abuse, subject to 

appropriate limitations and instructions to the jury, may enable 

the jury to assess the probative relevance of the evidence in light 

of all other evidence,” id. at 141, quoted in Martin, 2017 UT 63, ¶ 31. 

Finally, the court concluded that because “Martin submitted no 

meaningful data or other evidence to show the district court that 

the testimony the district court allowed was prejudicial, 

unreliable, or unhelpful” and because Martin had not “cited or 

sought to apply any of the myriad cases directly analyzing this 
Martin v. State

20210311-CA 26 2024 UT App 89

nuanced and challenging problem before the district court or on 

appeal,” he had “failed to carry his burden of persuasion that 

admitting this testimony was an abuse of discretion.” Martin, 2017 

UT 63, ¶ 31. 

¶48 Martin now argues that Trial Counsel’s and Appellate 

Counsel’s failure to cite extra-jurisdictional case law excluding 

similar testimony as well as to cite peer-reviewed studies casting 

doubt on the reliability of such testimony amounted to deficient 

performance that prejudiced his defense. In considering this claim 

of ineffective assistance, we first emphasize our obligation to 

make “every effort . . . to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel’s 

challenged conduct, and to evaluate the conduct from counsel’s 

perspective at the time.” Strickland v. Washington, 466 U.S. 668, 669 

(1984). We further emphasize that notwithstanding the extrajurisdictional authority on the issue cited by our supreme court, 

at the time of Trial Counsel’s and Appellate Counsel’s challenged 

conduct, Expert’s testimony was clearly admissible under 

controlling Utah law—specifically, Kallin and its progeny.

¶49 In Kallin, a pediatrician who had examined a child rape 

victim testified at trial. See 877 P.2d at 140. The defendant argued 

that the pediatrician had “improperly testified that the victim fit

the profile of a sexually abused child.” Id. at 141. In considering 

this argument, our supreme court discussed its previous decision 

in State v. Rimmasch, 775 P.2d 388 (Utah 1989), superseded by rule as 

recognized in State v. Maestas, 2012 UT 46, 299 P.3d 892, saying that 

in that case it had “held inadmissible an expert opinion that an 

alleged child abuse victim had been abused if the opinion was 

based, even in part, on conformance of a victim’s behavior to a 

child sexual abuse profile if there was no scientific evidence 

establishing the scientific accuracy of the profile in identifying 

child sex abuse victims.” Kallin, 877 P.2d at 140. The Kallin court 

determined that the pediatrician’s “testimony was not 

inconsistent with Rimmasch” because “she did not testify that the 

victim had in fact been sexually abused or raped, and she did not 

rely on a psychological profile.” Id. at 141 (cleaned up). Instead, 
Martin v. State

20210311-CA 27 2024 UT App 89

the court noted, the pediatrician “testified only that the victim’s

behavior was consistent with symptoms that might be exhibited

by one who had been sexually abused” and did not “testify to any

kind of sexual abuse profile as such, nor did she testify that the

symptoms manifested by the victim demonstrated that she had

been sexually abused.” Id. The court continued, “She likewise did

not testify that all sexually abused children exhibit fixed

psychological or physical symptoms not otherwise present in

children who have not been abused.” Id. It explained, “Rather, her

testimony was limited to the conclusion that the victim’s

symptoms were ‘consistent with’ sexual abuse. On crossexamination she also testified that the victim’s symptoms were

consistent with causes other than sexual abuse . . . .” Id. 

¶50 The court reasoned, “Evidence that an alleged victim

manifests certain physical symptoms that are consistent with

sexual abuse is not based on a psychological sexual abuse profile.

The foundation for such testimony is based on the experience and

observations of those who work with abused children.” Id. The 

court acknowledged that “[e]vidence that certain behavioral 

symptoms are consistent with sexual abuse does not prove

directly the ultimate legal conclusion that the child was abused,

and cannot be admitted for that purpose” because “such

symptoms are also consistent with a number of causes other than

sexual abuse.” Id. But the court ultimately held that “the 

manifestation of certain behavioral symptoms may have some

probative value as circumstantial evidence” and that “[e]xpert

testimony that such symptoms are consistent with sexual abuse,

subject to appropriate limitations and instructions to the jury, may

enable the jury to assess the probative relevance of the evidence

in light of all other evidence.” Id.

¶51 Utah’s appellate courts have since reaffirmed and applied 

Kallin’s holding. See State v. Loose, 2000 UT 11, ¶ 11, 994 P.2d 1237 

(holding that under Kallin “the trial court did not err” in allowing 

a social worker’s expert testimony that “he had seen some of the 

behaviors he saw in [the victim] in other children who had been 

sexually abused”); State v. Burnett, 2018 UT App 80, ¶¶ 27‒31, 427 
Martin v. State

20210311-CA 28 2024 UT App 89

P.3d 288 (concluding that because Kallin allows experts to “testify 

that a victim’s behavior is consistent with sexual abuse,” an

expert’s testimony to that effect was admissible and “trial counsel 

was not ineffective for failing to object to these portions of [the 

expert’s] testimony” (cleaned up)), cert. denied, 432 P.3d 1232 

(Utah 2018); State v. Christensen, 2016 UT App 225, ¶¶ 28‒29, 387 

P.3d 588 (relying on Kallin to hold that because an expert did not 

testify “based on a psychological profile” or to “the ultimate legal 

conclusion that [the victim] was sexually assaulted,” his 

testimony that several of the victim’s “symptoms were consistent 

with” post-traumatic stress disorder was admissible), cert. denied, 

390 P.3d 725 (Utah 2017).

¶52 Under Kallin and its progeny, Expert’s testimony that, 

based on her experience, A.L.’s and N.L.’s symptoms were 

consistent with sexual abuse was clearly admissible—so long as 

Expert did not testify as to a certain psychological profile or to the 

ultimate conclusion that A.L. or N.L. had been sexually assaulted. 

And Expert’s testimony complied with those conditions:

At trial, [Expert] . . . testified about the reasons 

children make incomplete or inconsistent 

disclosures about sexual abuse . . . and explained 

that children respond to sexual abuse by 

demonstrating a wide and largely unpredictable 

array of behaviors. While she did identify some 

common behavioral changes that occur in child 

victims of sexual abuse . . . [,] she stated that these 

changes are not to be expected in every case and 

ultimately are not reliable indicators of whether 

abuse has, or has not, occurred.

State v. Martin, 2017 UT 63, ¶ 22, 423 P.3d 1254. Martin does not 

even argue that Expert’s testimony ran afoul of Kallin. In other 

words, Martin’s claim of ineffective assistance amounts to a 

contention that to perform competently, Trial Counsel and 

Appellate Counsel were required to argue for overturning Kallin.
Martin v. State

20210311-CA 29 2024 UT App 89

¶53 While Utah courts have not previously ruled on the issue, 

among courts that have, the “general rule” is that defense 

counsel—whether trial or appellate counsel—“cannot be deemed 

ineffective for failing to raise an argument contrary to controlling 

law.” Ruth Moyer, Counsel as “Crystal Gazer”: Determining the 

Extent to Which the Sixth Amendment Requires that Defense Attorneys 

Predict Changes in the Law, 26 Geo. Mason U. C.R. L.J. 183, 194 

(2016); see also, e.g., Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 

2002) (“We have rejected ineffective assistance claims where a 

defendant faults his former counsel not for failing to find existing 

law, but for failing to predict future law and have warned that 

clairvoyance is not a required attribute of effective 

representation.” (cleaned up)); Green v. Johnson, 116 F.3d 1115, 

1125 (5th Cir. 1997) (stating that “there is no general duty on the 

part of defense counsel to anticipate changes in the law” and that 

“counsel is not ineffective for failing to raise a claim that Texas 

courts have rejected repeatedly”); Commonwealth v. Baumhammers, 

92 A.3d 708, 728–29 (Pa. 2014) (noting that the appellant was 

“suggesting that his counsel erred by failing to argue for a change 

in settled law” and holding that because “[t]rial counsel’s 

performance is evaluated under the standards in effect at the time 

of trial,” his counsel could not “be held ineffective for failing to 

request a jury instruction that was affirmatively prohibited by 

Pennsylvania law at the time of trial”); State v. Febles, 115 P.3d 629, 

637 (Ariz. Ct. App. 2005) (explaining that “there is a difference 

between ignorance of controlling authority and the failure of an 

attorney to foresee future developments in the law” and holding 

that appellate counsel’s “failure to predict future changes in the 

law” was not ineffective (cleaned up)). Even the United States

Supreme Court has explained, in the context of the procedural 

default bar to federal habeas review of state court convictions,8F

9

9. Procedural default is the sanction imposed on a federal habeas 

petitioner for failure to properly exhaust state remedies. See 

Martinez v. Ryan, 566 U.S. 1, 9 (2012). An exception to the doctrine 

of procedural default exists when the petitioner can “show[] cause 

for the default and prejudice from a violation of federal law,” and

(continued...)
Martin v. State

20210311-CA 30 2024 UT App 89

that “[i]t will often be the case that even the most informed 

counsel will fail to anticipate a state appellate court’s willingness 

to reconsider a prior holding.” Smith v. Murray, 477 U.S. 527, 536 

(1986).

¶54 To be sure, a portion of our supreme court’s opinion in 

Martin’s direct appeal could be read as an indication that the court 

might be willing to reconsider Kallin. See Martin, 2017 UT 63, 

¶¶ 31‒32. But the court had given no such indication when Trial 

Counsel moved for exclusion of Expert’s testimony or when 

Appellate Counsel was arguing Martin’s direct appeal. In 

conformity, therefore, with the requirement that we resist “the 

temptation to second-guess trial counsel’s [or appellate counsel’s] 

decisions with the benefit of hindsight,” Honie v. State, 2014 UT 19, 

¶ 32, 342 P.3d 182, we, like other courts before us, decline to 

classify clairvoyance—at least under the circumstances presented 

here—as a component of attorney competence.9F

10 Hence, Martin’s 

one such cause for default is the “[i]nadequate assistance of 

counsel at initial-review collateral proceedings.” Id. at 9–10. In 

Smith v. Murray, 477 U.S. 527 (1986), the Supreme Court, when 

addressing whether cause for a procedural default had been 

shown, held that defense counsel’s failure in that case to argue for 

overruling established precedent was not “an error of such 

magnitude that it rendered counsel’s performance 

constitutionally deficient under the test of [Strickland].” Id. at 535.

10. The leading commentator on this issue has observed that while 

some courts “have reiterated a per se rule that counsel can never 

be expected to be ‘clairvoyant,’” other courts have followed a 

more nuanced rule. Ruth Moyer, Counsel as “Crystal Gazer”: 

Determining the Extent to Which the Sixth Amendment Requires that 

Defense Attorneys Predict Changes in the Law, 26 Geo. Mason U. C.R.

L.J. 183, 195 (2016). For example, the Sixth Circuit has taken a 

“foreshadow[ing]” approach, under which “counsel’s failure to 

raise an issue whose resolution is clearly foreshadowed by existing 

decisions might constitute ineffective assistance of counsel.” Lucas 

(continued...)
Martin v. State

20210311-CA 31 2024 UT App 89

ineffective assistance claim based on Trial Counsel’s and 

Appellate Counsel’s failure to marshal extra-jurisdictional 

authority and peer-reviewed studies in a bid to obtain an 

overruling of Kallin and its progeny fails.

E. A Limiting Instruction for Expert’s Testimony

¶55 Fifth, Martin argues that Trial Counsel provided 

ineffective assistance in neglecting to request—after the district 

court denied his motion to exclude Expert as an expert witness—

a limiting instruction stating that (1) Expert’s testimony was based 

on her own experience and not on research or clinical data, 

(2) there is no generally accepted profile or set of characteristics

common to child victims of molestation, (3) Expert was not 

v. O’Dea, 179 F.3d 412, 420 (6th Cir. 1999) (emphasis added). And 

the Third Circuit weighed a number of factors before holding that 

a defendant’s trial counsel performed deficiently by not 

anticipating the United States Supreme Court’s decision in Batson 

v. Kentucky, 476 U.S. 79 (1986), which overturned precedent by 

holding that prosecutors could no longer use peremptory 

challenges to exclude potential jurors for racial reasons. See 

Government of the Virgin Islands v. Forte, 865 F.2d 59, 61‒63 (3d Cir. 

1989). Among the factors the Third Circuit considered were the 

fact that Batson was pending in the Supreme Court at the time of 

the defendant’s trial, “Batson-like objections were being made at 

the time in other cases,” a Batson-like objection “would have 

required little effort and would not have been a reprehensible or 

unprofessional act,” and—most significant to the Third Circuit—

the defendant had asked his counsel to make a Batson-like 

objection “to preserve his rights under a case then pending in the 

Supreme Court.” Id. at 63.

We need not decide whether Utah should employ a per se 

approach, a foreshadowing approach, a multi-factored approach, 

or some other approach to this issue because given the state of 

Utah law at the time, Trial Counsel’s and Appellate Counsel’s 

conduct was reasonable under any reasoned approach to an 

attorney’s obligation to predict changes in the law.
Martin v. State

20210311-CA 32 2024 UT App 89

testifying as to the girls’ truthfulness and legally could not do so, 

(4) Expert’s testimony was not evidence of Martin’s guilt, and 

(5) the jury could only consider Expert’s testimony in deciding if 

the girls’ conduct was consistent with children who had been 

molested. Martin bases this argument on two sources of authority: 

(1) our supreme court’s mention of limiting instructions in Kallin

and (2) model jury instructions from another state that Martin 

admits apply to evidence that is impermissible in Utah. Given this 

limited authority, we deem unpersuasive Martin’s argument that 

Trial Counsel provided constitutionally ineffective assistance for 

not requesting this limiting instruction.

¶56 Again, in Kallin, our supreme court stated, “Expert 

testimony that [certain behavioral] symptoms are consistent with 

sexual abuse, subject to appropriate limitations and instructions 

to the jury, may enable the jury to assess the probative relevance 

of the evidence in light of all other evidence.” State v. Kallin, 877 

P.2d 138, 141 (Utah 1994). This statement does not require counsel 

to seek in every instance a limiting instruction in the face of such 

testimony, particularly as the Kallin court found no error in the 

lower court’s admission of such testimony despite not indicating 

that a limiting instruction was given there. See id.

¶57 Additionally, the model jury instruction Martin points to is 

from California. Martin admits that the Utah Model Jury 

Instructions lack such an instruction and that the California 

instruction he refers to relates to evidence that is not admissible 

in Utah. We are not convinced that Trial Counsel provided 

constitutionally ineffective assistance for failing to rely on such a 

tenuous source for a limiting instruction. Again, we “must 

indulge a strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance.” Strickland 

v. Washington, 466 U.S. 668, 689 (1984). And we are not convinced 

that competent counsel could only have interpreted the legal 

landscape on this point as requiring a limiting instruction and that 

Trial Counsel performed deficiently for not seeking one.
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¶58 Instead of seeking a limiting instruction, Trial Counsel 

chose to extensively cross-examine Expert. During this crossexamination, Trial Counsel was able to obtain Expert’s agreement

that the children she interviews could be lying, that she cannot tell 

when children are lying, that children could be coached before an 

interview on what to say and she would not know, that children 

can be “over-reactive or mistaken about sex and sexual abuse,”

that it is possible for children to believe a false accusation after it 

is repeated to them enough, that abused children sometimes 

exhibit no behavioral changes, that children sometimes exhibit 

symptoms associated with sexual abuse even in the absence of 

sexual abuse, and that “there is absolutely no way to determine 

from a child’s behavior” if abuse occurred. Trial Counsel’s 

decision to limit the effect and scope of Expert’s testimony 

through thorough cross-examination rather than through a 

limiting instruction was a reasonable trial strategy. Thus, Trial 

Counsel did not perform deficiently by choosing this route.

F. Expert’s Testimony on Memory Function and Recall

¶59 Sixth, Martin asserts that Trial Counsel provided 

ineffective assistance by not objecting when Expert testified to 

things she was not permitted to testify about. In his memorandum 

supporting the Petition, Martin specified that he was referring to 

testimony regarding “memory function and recall” in children. 

¶60 However, our supreme court specifically disclaimed 

Martin’s characterization of Expert’s testimony related to memory 

and recall: 

[W]hat Mr. Martin characterizes as [Expert’s]

“extensive[]” testimony about child “memory 

formation and recall” amounted to brief remarks 

that (1) children sometimes forget information and 

then remember it later, (2) the more children talk 

about events the more they remember about them, 

and (3) children’s memories are malleable and 

suggestible. None of these statements called for 
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20210311-CA 34 2024 UT App 89

expertise in the mechanisms of memory retrieval 

and recall. Instead, these statements simply

described trends and tendencies that were readily

observable by a forensic interviewer with the

expert’s level of training and experience. When her

testimony is viewed in context, we do not believe

that [Expert] sought to testify to psychological or

neuroscientific matters beyond the scope of her

expertise. 

State v. Martin, 2017 UT 63, ¶ 27, 423 P.3d 1254. Because Trial 

Counsel could have reasonably viewed this testimony just as our 

supreme court viewed it and, thus, believed that the objection 

Martin wishes she had made would have been futile, and because 

no other purpose related thereto—such as to ensure the issue’s 

preservation for appeal—needed to be served, Trial Counsel acted 

reasonably in choosing to forgo such an objection. See State v. 

Carter, 2023 UT 18, ¶ 44, 535 P.3d 819 (stating that the “futility [of 

a particular action] can sometimes be a helpful way to describe 

why an attorney’s decision was reasonable”).

G. Expert’s Improper Bolstering

¶61 Seventh, Martin argues that Trial Counsel provided 

ineffective assistance by not requesting a mistrial when Expert 

improperly bolstered the girls’ credibility. This claim relates to the 

italicized language in the following exchange between Expert and 

Trial Counsel during cross-examination: 

Q. Okay, now just to be clear, you have absolutely

no professional opinion in this case whether these 

girls are telling the truth, correct?

A. I can’t tell you if they’re telling the truth or not.

Q. It’s a—it’s a real possibility that they’re lying, 

correct?
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20210311-CA 35 2024 UT App 89

A. I don’t—from my interviews with them, the 

information that they seemed to say to me seemed 

credible. 

Q. Okay, but— 

A. Or at least not them. I only interviewed one child, 

but that’s— 

Q. But you just admitted that you can’t tell from an 

interview whether they’re telling the truth or not, 

correct?

A. Correct.

(Emphasis added.)

¶62 Martin is correct that the statement at issue was not 

permissible. State v. Martin, 2017 UT 63, ¶ 34, 423 P.3d 1254 

(“[E]ven though [Trial Counsel] arguably elicited this testimony 

through cross-examination, we agree that it was plainly 

improper.”); see also State v. Ramsey, 782 P.2d 480, 485 (Utah 1989) 

(“[A]n expert may not express an opinion as to a child’s 

truthfulness with respect to statements of child sex abuse.”).

¶63 However, we are not convinced that seeking a mistrial was 

the only reasonable action Trial Counsel could take to remedy this 

error. A “trial court should not grant a mistrial except where the 

circumstances are such as to reasonably indicate that a fair trial 

cannot be had and that a mistrial is necessary to avoid injustice.” 

State v. Butterfield, 2001 UT 59, ¶ 46, 27 P.3d 1133 (cleaned up). 

And “a mistrial is not required where an improper statement is 

not intentionally elicited, is made in passing, and is relatively 

innocuous in light of all the testimony presented.” State v. Allen, 

2005 UT 11, ¶ 40, 108 P.3d 730. We believe that this last scenario 

describes the circumstances here and, therefore, that Trial 

Counsel could have reasonably believed that the court would not 

have granted a mistrial based on Expert’s single objectionable 
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20210311-CA 36 2024 UT App 89

statement. See generally State v. Whytock, 2020 UT App 107, ¶ 43, 

469 P.3d 1150 (“[W]e do not think [the defendant’s] trial attorneys 

performed deficiently by failing to seek a mistrial, a remedy they 

could have reasonably concluded was unlikely to be awarded.”), 

cert. denied, 481 P.3d 1043 (Utah 2021).

¶64 Rather than seeking a mistrial, Trial Counsel indicated to 

the court that the objectionable statement here was impermissible 

and sought that the statement be stricken and that a curative 

instruction be given to the jury. The district court took these steps, 

instructing the jury:

You have heard testimony yesterday from [Expert], 

forensic interviewer for the [CJC]. In one answer of 

her testimony she commented directly on her 

opinion of the credibility of a particular witness in 

this case. This was improper and the answer has 

been stricken from the record. [Expert] is not 

qualified to give any opinion regarding the 

credibility of any particular witness in this case. 

Martin asserts that the curative instruction was “ineffective and 

poorly worded.” But it correctly stated that Expert could not 

opine on witness credibility, and we see no reason to believe it 

was ineffective, see State v. Lee, 2014 UT App 4, ¶ 25, 318 P.3d 1164 

(“We presume that a jury followed the instructions given it unless 

the facts indicate otherwise.” (cleaned up)).

¶65 We do not view this as a case where the inadmissible 

testimony likely had much impact because the statement was 

bookended by clear declarations that Expert could not determine 

generally whether the children she interviewed were telling the 

truth or, more specifically, whether A.L. and N.L. were telling the 

truth. Accordingly, the jury likely did not give much weight to 

Expert’s inadmissible statement, and the curative instruction 

presumably had the effect of correcting any small impact of the 

statement. Trial Counsel could have reasonably believed as much 
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20210311-CA 37 2024 UT App 89

and determined that striking the offending statement and giving 

the curative instruction were sufficient to counter any possible 

harm. She could also have reasonably believed that the district

court felt this way and would not grant a mistrial. Accordingly, 

Trial Counsel did not perform deficiently in pursuing the course 

she did.

III. Cumulative Error

¶66 Finally, Martin asserts that the district court failed to 

consider his argument of cumulative error.

¶67 “[A] court must make three determinations before 

reversing a verdict or sentence under the cumulative error 

doctrine: it must determine that (1) an error occurred, (2) the error, 

standing alone, has a conceivable potential for harm, and (3) the 

cumulative effect of all the potentially harmful errors undermines 

its confidence in the outcome.” State v. Martinez-Castellanos, 2018 

UT 46, ¶ 42, 428 P.3d 1038. “If the court determines that either a 

party’s claim did not amount to an error, or that the claim was an 

error but has no potential to cause harm on its own, the claim 

cannot weigh in favor of reversal under the cumulative effects 

test.” Id.

¶68 As we have explained, the district court correctly 

determined as to each of Martin’s claims that Martin did not 

receive ineffective assistance because Trial Counsel and Appellate 

Counsel performed acceptably. Because there were no errors to 

accumulate, there was no error in the court’s failure to address 

cumulative error.

CONCLUSION

¶69 The district court did not err in granting summary 

judgment denying the Petition. The court correctly applied the 

legal standard applicable to claims of ineffective assistance of 

counsel, each of Martin’s claims of ineffective assistance fail under 
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20210311-CA 38 2024 UT App 89

the deficient performance element of the Strickland test, and there 

were accordingly no errors to accumulate. We therefore affirm.