2020 UT App 135

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KRISTOPHER ALLEN ANDERSON,

Appellant.

Opinion

No. 20190235-CA

Filed October 1, 2020

Fifth District Court, St. George Department

The Honorable G. Michael Westfall

No. 161501206

Ronald J. Yengich, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which 

JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

HAGEN, Judge:

¶1 Kristopher Allen Anderson appeals his convictions for 

child sodomy and child sexual abuse. On appeal, he raises 

multiple issues, most of which were not preserved by his trial 

counsel. He argues that the State committed prosecutorial 

misconduct by eliciting prejudicial testimony regarding the 

impact of the abuse on the victim and by commenting on 

Anderson’s failure to return a detective’s phone calls. Further,

Anderson argues that his trial counsel rendered ineffective 

assistance by providing the State with his psychosexual 

evaluation and by not objecting when the State used Anderson’s 

statements to the evaluator for impeachment. He also argues 

that the district court plainly erred in allowing the impeachment

or, at minimum, should have admitted the entirety of the 
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20190235-CA 2 2020 UT App 135

evaluation once the State “opened the door.” He also alleges that 

his trial counsel was ineffective for commenting on a failed plea 

agreement and failing to advise him of the correct mandatory 

minimum sentence. Relatedly, he asserts that because he was not 

advised of the correct mandatory minimum sentence, the district 

court erred by denying his motion to arrest judgment. Because 

Anderson has not established any claims of ineffective assistance 

of counsel, plain error, or abuse of discretion, we affirm.

BACKGROUND1

¶2 Anderson, the victim’s cousin, travelled from Idaho to 

visit the victim’s family in St. George, Utah, on June 18, 2016. 

The victim’s family did not know in advance that he was 

coming. When he arrived at their home unexpectedly, Anderson

asked whether he could stay the night and whether he could 

bring beer to drink. The victim’s mother and father agreed.

¶3 The victim and his family lived in a three-bedroom 

apartment. The victim’s two older sisters, who were then ages

thirteen and eleven, shared a bedroom. The victim, who was six 

years old at the time, typically slept in the same room as his 

nineteen-year-old brother. Anderson stayed the night, sleeping 

in the boys’ bedroom. Anderson and the two boys stayed up late 

playing video games in the boys’ room and did not go to sleep 

until after the victim’s parents and two sisters were asleep.

Anderson drank beer throughout the night.

¶4 The next morning, Anderson departed before the others 

awoke. When the mother awoke, she found the victim asleep 

next to her bed in a pile of laundry. After the mother left for 

 

1. “On appeal, we review the record facts in a light most 

favorable to the jury’s verdict and recite the facts accordingly.” 

State v. Jones, 2020 UT App 31, n.1, 462 P.3d 372 (cleaned up).
State v. Anderson

20190235-CA 3 2020 UT App 135

work, the victim confided in one of his sisters that in the night,

Anderson had pulled down the victim’s pants and underwear 

and touched his penis and buttocks. The victim then confided in

his father, telling him the same story.

¶5 After calling the victim’s mother to tell her what had 

happened, the victim’s father called Anderson and asked 

whether he had done what the victim said he did. Anderson 

responded that “he wasn’t sure” and that “he was drunk and 

couldn’t remember.” The father testified that Anderson was 

“upset,” and that he was “choked up, crying a little bit” during 

the phone call.

¶6 Later, the victim’s mother also called Anderson. During 

the call, she asked if “he tried to put his penis in [the victim’s] 

butt . . . and if he was fondling him.” Anderson first denied that 

he had, but after the mother repeated her question, he 

responded, “[Y]es.” She then said, “You know what I have to do, 

right?” to which he responded, “Yeah, I know.” She told him 

that one of them needed to tell Anderson’s mother, and 

Anderson stated that he would.

¶7 The victim’s mother and father then took the victim to the 

police station to report the crimes. A detective interviewed the 

mother and father. The next day, the victim’s parents took the 

victim and his two sisters to the Children’s Justice Center. 

Because they were all home during the time of the abuse, each 

child was interviewed. The following month, the victim’s 

parents took him to a pediatrician to be examined, but the 

examination did not lead to any specific findings.

¶8 As part of the investigation, a detective called Anderson 

to get more information. When Anderson did not answer, the 

detective left a voicemail. A few days later, Anderson called back 

and left a voicemail for the detective. The detective continued

calling, but Anderson never returned the subsequent phone 

calls. In his testimony at trial, Anderson attempted to excuse his 
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failure to return the phone calls by explaining that he entered a 

sober living facility on June 22 and did not have access to his 

phone.

¶9 During trial, the victim testified that on the night of the 

abuse, he had slept on the floor in the boys’ room, while 

Anderson and his brother slept on the bed. He testified that at 

some point during the night, while his brother was asleep, 

Anderson got down on the floor next to him and “pulled down 

[his] pants and then he pulled down [his] underwear and then 

[Anderson] started touching [his] privates.” He testified that 

Anderson had also put “his wiener” on “his butt,” was 

“wiggling” it, and then told him, “[D]on’t tell.” The victim

testified about disclosing the abuse to his family the next day

and later during his interview at the Children’s Justice Center.

¶10 The State also presented testimony from the victim’s 

parents, both sisters, and the brother. Among other things, each 

witness detailed changes in the victim’s emotional wellbeing 

since the abuse had occurred. Specifically, they all noted that 

before the abuse, the victim had been a happy, normal child. 

However, family members testified that, since the incident, the 

victim had become depressed, scared, and anti-social. The 

mother noted that the victim became “angry, very emotional, 

very untrusting,” and “would be very sick to his stomach” and 

“would wet himself . . . if he knew that he was in a position to 

where he had to talk to someone about [the abuse].” She also 

testified that the victim had “threatened to kill himself several 

times.” The victim’s parents both noted that the victim slept in 

their room almost every night after the incident; he had done so 

only rarely before. The victim began counseling to help with 

these issues. The mother also testified that they had gotten the 

victim a service dog.

¶11 Anderson testified at trial. He indicated that he drank 

“five or six beers” throughout the night and stayed up playing 
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video games with the victim’s brother until he went to sleep at 

approximately 4:00 a.m. He testified that he slept between the 

victim and the brother on the bed, then awoke at 5:00 a.m., and 

left before the others had gotten up. Anderson also testified that 

he had been “terrified” by the phone calls from the victim’s 

parents and had responded “no” when the mother asked him 

whether he had stuck “[his penis] in [the victim’s] butt.” He 

testified that when he responded to the mother’s accusation by 

saying, “Yeah, okay,” he was agreeing only to call his mother 

and get some help, such as “sober living.” Anderson denied 

sexually abusing the victim.

¶12 The jury convicted Anderson on one count of child 

sodomy and on one count of child sexual abuse. He now 

appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 On appeal, Anderson raises five grounds for reversal. He 

frames his first two arguments as claims of prosecutorial 

misconduct. He argues that the State engaged in prosecutorial 

misconduct, first, by eliciting prejudicial testimony about the 

long-term impact of Anderson’s crimes on the victim and,

second, by improperly commenting on Anderson’s failure to 

return the detective’s phone calls in violation of his Fifth 

Amendment right to remain silent. Because his claims are 

unpreserved, he argues that his counsel rendered 

constitutionally ineffective assistance by failing to object and that 

the district court plainly erred in failing to address these 

instances of alleged misconduct even in the absence of an 

objection. “When a claim of ineffective assistance of counsel is 

raised for the first time on appeal, there is no lower court ruling 

to review and we must decide whether the defendant was 

deprived of the effective assistance of counsel as a matter of 

law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 

(cleaned up). “The plain error standard of review requires an 
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20190235-CA 6 2020 UT App 135

appellant to show the existence of a harmful error that should 

have been obvious to the district court.” State v. Hansen, 2020 UT 

App 17, ¶ 10, 460 P.3d 560 (cleaned up).

¶14 Third, Anderson argues that his counsel rendered 

ineffective assistance by providing the State with a copy of a 

psychosexual evaluation containing information that the State 

used to impeach Anderson on cross-examination. We review this 

ineffective assistance of counsel claim as a matter of law. Carr, 

2014 UT App 227, ¶ 6. Anderson also argues that the district 

court plainly erred by allowing the State to impeach him with 

certain statements he made to the examining psychologist and 

that the district court should have allowed him to admit the 

remainder of the evaluation. If preserved, we review the district 

court’s evidentiary rulings for an abuse of discretion. State v. 

Cegers, 2019 UT App 54, ¶ 17, 440 P.3d 924. Absent an objection, 

our review is limited to plain error. Id.

¶15 Fourth, Anderson argues that his trial counsel rendered 

ineffective assistance by improperly commenting on a failed plea 

agreement, thus implying to the jury that Anderson was guilty. 

Again, we determine as a matter of law whether a defendant 

was deprived of the effective assistance of counsel. Carr, 2014 UT 

App 227, ¶ 6.

¶16 Fifth, Anderson argues that his counsel provided 

ineffective assistance by not informing him of the correct 

mandatory minimum sentence for child sodomy during the plea 

negotiation phase. We review claims of ineffective assistance of 

counsel as a matter of law. Id. He also claims that the district 

court abused its discretion when it denied his motion to arrest 

judgment based on his allegation that he was improperly 

advised of the mandatory minimum sentence. We review the 

district court’s denial of a motion to arrest judgment for an abuse 

of discretion, reviewing “the legal standards applied by the trial 
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20190235-CA 7 2020 UT App 135

court in denying such a motion for correctness.” State v. Squires, 

2019 UT App 113, ¶ 23, 446 P.3d 581 (cleaned up).

2

ANALYSIS

¶17 Most of Anderson’s challenges on appeal were not raised 

through a timely objection in the district court. “When an issue is 

not preserved in the trial court, but a party seeks to raise it on 

appeal, the party must establish the applicability of one of [the] 

exceptions [to preservation] to persuade an appellate court to 

reach that issue.” State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. 

These exceptions are plain error, ineffective assistance of 

counsel, and exceptional circumstances. See id. Represented by 

new counsel on appeal, Anderson argues both ineffective 

assistance of his trial counsel and plain error by the district 

court.

¶18 “To demonstrate ineffective assistance of counsel, a 

defendant must show that his counsel’s performance was 

deficient and that the deficient performance prejudiced the 

defense.” State v. Alires, 2019 UT App 206, ¶ 16, 455 P.3d 636 

(cleaned up); see also Strickland v. Washington, 466 U.S. 668, 687 

(1984). “Failure to prove either element defeats the ineffective 

 

2. Anderson also claims that the cumulative impact of these 

alleged errors warrants a new trial. However, “under the 

cumulative error doctrine, we will reverse only if the cumulative 

effect of the several errors undermines our confidence that a fair 

trial was had. If the claims are found on appeal to not constitute 

error, or the errors are found to be so minor as to result in no 

harm, the doctrine will not be applied.” State v. Alfatlawi, 2006 

UT App 511, ¶ 52, 153 P.3d 804 (cleaned up). Here, Anderson

has not established that any errors occurred or that any of the 

alleged errors resulted in prejudice. Therefore, the cumulative 

error doctrine does not apply.
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assistance of counsel claim.” State v. Tapusoa, 2020 UT App 92, 

¶ 17, 467 P.3d 912.

¶19 Under the first prong of the test, “we apply the deficiency 

standard announced in Strickland and ask whether counsel’s 

actions fell below an objective standard of reasonableness.” State 

v. Florez, 2020 UT App 76, ¶ 41, 465 P.3d 307 (cleaned up); see also 

State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871 (stating that courts 

“ask whether, in light of all the circumstances, the attorney 

performed in an objectively reasonable manner” (cleaned up)). If 

counsel undertook the complained-of action for a sound

strategic purpose, then counsel did not perform deficiently. See 

State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350. However, the 

“converse is not true.” Ray, 2020 UT 12, ¶ 34. As our supreme 

court has explained, “even where a court cannot conceive of a 

sound strategic reason for counsel’s challenged conduct, it does 

not automatically follow that counsel was deficient.” Scott, 2020 

UT 13, ¶ 36. Instead, “the ultimate question is always whether, 

considering all the circumstances, counsel’s acts or omissions 

were objectively unreasonable.” Id.

¶20 “In evaluating prejudice under the second part of the test, 

we assess whether there exists a reasonable probability that the 

case would have had a different outcome had trial counsel not 

performed deficiently.” Florez, 2020 UT App 76, ¶ 43. “A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694. To 

determine whether this standard has been met, we “consider the 

totality of the evidence before the judge or jury and then ask if 

the defendant has met the burden of showing that the decision 

reached would reasonably likely have been different absent the 

errors.” State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 (cleaned 

up).

¶21 Alternatively, to establish plain error, “a defendant must 

show that the district court committed error, that the error 
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should have been obvious to the district court, and that the error 

prejudiced the defendant by creating a reasonable likelihood of a 

less favorable result.” State v. Cegers, 2019 UT App 54, ¶ 22, 440 

P.3d 924 (cleaned up). “If any one of these requirements is not 

met, plain error is not established.” State v. Diaz-Arevalo, 2008 UT 

App 219, ¶ 13, 189 P.3d 85 (cleaned up).

¶22 With these standards in mind, we analyze each of 

Anderson’s arguments in turn.

I. Prosecutorial Misconduct Claims

¶23 Anderson contends that the State committed prosecutorial 

misconduct when the prosecutor (A) elicited testimony about the 

impact of Anderson’s crimes on the victim and (B) commented 

on Anderson’s failure to return the detective’s phone calls. 

Although Anderson characterizes these claims as “prosecutorial 

misconduct,” prosecutorial misconduct is not “a standalone 

basis for independent judicial review.” State v. Hummel, 2017 UT 

19, ¶ 111, 393 P.3d 314. When a defendant raises a claim of 

prosecutorial misconduct on appeal, “the question for our 

review is not whether to question the prosecutor’s actions.” Id.

¶ 117. Instead, “[a]ppellate courts review the decisions of lower 

courts,” not “the actions of [the prosecutor]—at least not 

directly.” Id. ¶ 107. Therefore, when a defendant has raised an 

alleged prosecutorial misconduct issue below, we review the 

district court’s ruling on that objection or motion. Id. ¶¶ 106–07. 

On the other hand, when a defendant fails to raise the issue 

before the district court, “the law of preservation controls” and 

we review the issue “under established exceptions to the law of 

preservation”—namely, plain error, exceptional circumstances, 

or ineffective assistance of counsel. Id. ¶ 111.

¶24 Here, Anderson has argued these issues under both the 

plain-error and ineffective-assistance-of-counsel exceptions. 

Accordingly, “our disposition turns on whether the trial court 

plainly erred” by not intervening sua sponte or whether trial
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counsel “rendered ineffective assistance” in failing to object, 

move for a mistrial, or seek another appropriate remedy. State v. 

Bond, 2015 UT 88, ¶ 30, 361 P.3d 104.

A. Victim Impact Evidence

¶25 Anderson first claims that the prosecution elicited 

unfairly prejudicial testimony from the victim and his family 

regarding the impact the abuse had on the victim and that the 

prosecutor unfairly emphasized that testimony during closing 

arguments. Specifically, Anderson argues that the “evidence 

served no probative value, but served only to appeal to the jury’s 

emotions and solicit an inappropriate emotion[al] response from 

the jury.” The challenged evidence includes testimony from the 

father, mother, and siblings about the victim’s behavioral 

changes since the abuse, how the family has helped him—such

as providing a service dog and taking him to therapy—and

instances of the victim talking about suicide.

¶26 We disagree with Anderson’s assertion that the 

behavioral-change evidence had no probative value. The central 

issue at trial was whether the abuse ever happened. Changes in a 

victim’s behavior, emotional health, and lifestyle can be 

circumstantial evidence that the alleged act occurred.3 For 

example, in State v. Cosey, 873 P.2d 1177 (Utah Ct. App. 1994), a 

rape case, the district court admitted testimony from the victim’s 

mother concerning the victim’s behavior during the two weeks 

following the rape. Id. at 1181. The defendant claimed that the 

 

3. When the State asked questions that were not probative of 

whether the crimes occurred—such as what the family had done 

to try to help the victim and the role of the service dog—trial 

counsel did object. Those objections were overruled, but 

Anderson has not challenged those evidentiary rulings on 

appeal.
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testimony “was irrelevant to the central issue of whether the 

victim had consented” and that it should have been barred by

rule 403 of the Utah Rules of Evidence because it was 

significantly more prejudicial than probative. Id. However, the 

State argued that it was relevant to prove the victim had suffered 

a traumatic experience. Id. This court held that the testimony

was relevant circumstantial evidence that a traumatic experience 

had occurred and that “[a]ny doubts raised by the defense

concerning whether or not the incident caused the change 

concern[ed] the weight that should be afforded the evidence, not 

its admissibility.” Id. at 1182 (emphasis added). Similarly, the 

testimony elicited from the victim’s family members in this case

provided circumstantial evidence to corroborate the victim’s 

testimony that the abuse occurred. Trial counsel’s choice to forgo 

objecting to this testimony was not unreasonable where the 

evidence was probative to the central question at trial. 

¶27 On appeal, Anderson suggests that the victim impact 

evidence was improper because it was not limited to the 

immediate aftermath of the abuse. Even assuming that

objections regarding the relevant timeframe might have 

succeeded in narrowing the scope of the testimony, the decision 

to forgo such objections did not fall below an objective standard 

of reasonableness. Trial counsel is not required to make every 

objection that may have merit but can instead pick and choose. 

See State v. Hart, 2020 UT App 25, ¶ 29, 460 P.3d 604 (“But just 

because counsel can make an objection does not mean counsel 

must make an objection to avoid rendering ineffective assistance. 

Legal objections are an inherently strategic business.”). In 

addition, trial counsel had a legitimate strategic basis for not 

objecting to evidence concerning the long-term impact of the 

alleged abuse on the victim. Trial counsel cast doubt on the 

veracity of the victim’s claims generally by presenting evidence 

suggesting that at the time of trial, the victim was well-adjusted 

and not suffering from any trauma. For instance, trial counsel 

elicited testimony from the victim that he “had so much fun stuff 
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20190235-CA 12 2020 UT App 135

that has happened so [he] forgot about [the abuse]” and that he 

has a hard time remembering the abuse “because it was a long 

time ago, and [he has] so much happy stuff now.” Where there is 

a reasonable strategic basis for forgoing an objection, we will not 

find deficient performance. See State v. Scott, 2020 UT 13, ¶ 35, 

462 P.3d 350. Because trial counsel’s actions were not objectively 

unreasonable, Anderson cannot demonstrate that he received 

ineffective assistance in this regard.

¶28 Anderson also takes issue with the following statement 

made by the prosecutor during closing argument: 

You saw the effects. All the children, including the 

parents, when they talked about the effects [on the 

victim], they talked about how he sleeps with his 

mom and dad, about how his anger -- he didn’t 

want to go to school, didn’t want to go to 

counseling, moody. They talked about the times 

when he had explosive diarrhea, wetting his pants, 

locking the doors at night. All these effects. The 

one that gets me, he talks about hurting himself. 

This six -- eight-year-old boy wants to hurt himself 

after going through so much trauma. He did not 

ask for this to happen to him.

Anderson argues that the prosecutor did not rely on the victim

impact evidence to show that the crime occurred, but rather to 

play to the jury’s sympathies. Relying on State v. Campos, 2013 

UT App 213, 309 P.3d 1160, he argues that the State’s closing 

argument “essentially asked the jury to consider the impact, or 

the effect, the abuse had on the child in determining guilt, 

instead of whether the elements of the offenses had been 

proven.”

¶29 This case is readily distinguishable from Campos. In 

Campos, this court determined that the State had committed 

prosecutorial misconduct when, during closing remarks, the 
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20190235-CA 13 2020 UT App 135

prosecutor stated, “[W]hen you commit a crime like this, when 

you gun down your fellow neighbor in the most tragic of ways, 

stealing from him his ability to run, his ability to bike, his ability 

to walk his daughter down the aisle, when you do something 

like that on the streets of our community then you should be 

held accountable.” Id. ¶ 48 (cleaned up). This court noted that a 

prosecutor is prohibited from “asking jurors to put themselves in 

the victim’s place,” suggesting that “the jury has a duty to 

protect the victim,” or “referenc[ing] the jury’s societal 

obligation” by asking the jury to “base its decision on the impact 

of the verdict on society and the criminal justice system rather 

than the facts of the case.” Id. ¶ 51 (cleaned up). Importantly, the 

statements made in Campos were irrelevant to whether the 

defendant committed the crime.

¶30 In contrast to the remarks in Campos, here, the 

prosecutor’s reference during closing argument to the victim’s

behavioral changes did not suggest “to the jury that it should 

find [Anderson] guilty out of vengeance or sympathy for the 

victim rather than based on what the facts and the law 

required.” See id. ¶ 52. Instead, the prosecutor suggested that the 

effects listed were indicative of trauma and constituted 

circumstantial evidence corroborating the victim’s testimony 

that the abuse occurred. This argument supported a verdict 

based not on sympathy but on evidence that proved the 

elements of the crime. 

¶31 Anderson has also not shown that the district court 

plainly erred by allowing evidence and argument on victim

impact. In our adversarial system, district courts should be 

circumspect about interfering in the parties’ strategic decisionmaking regarding the admission of evidence. Our supreme court 

has stated that a “district court is not required to constantly 

survey or second-guess a nonobjecting party’s best interests or 

trial strategy and is not expected to intervene in the proceedings 

unless the evidence would serve no conceivable strategic 
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purpose.” State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (cleaned 

up). Here, neither the evidence nor the prosecutor’s statements 

were so unduly prejudicial that the district court was required to 

intervene to preserve the integrity of the trial.

B. Comment on Anderson’s Silence

¶32 Anderson further argues that “the State engaged in 

prosecutorial misconduct when it solicited testimony from the 

detective that Anderson did not return his phone calls, 

improperly commenting on Anderson’s right to remain silent.”

The State elicited testimony from the detective assigned to the 

case that he was never able to reach Anderson by phone to speak

about the incident. The detective did acknowledge that 

Anderson had called him back at one point and left a voicemail.

But, the detective stated that he tried contacting Anderson again, 

and Anderson “never did return [his] phone calls.” During 

closing argument, the State referenced this again, stating:

Then the detective, he called numerous times. 

Never did he – and then on a – on Monday, he 

called him back on Monday, said, “Hey, let me 

know.” He never returned his phone call. The 

defense argued that why would somebody, you 

know, want to call and proclaim their innocence? If 

you are being accused of molesting a child, you 

better believe you would let everybody know this 

did not happen, “I did not do this,” but nothing. 

Nothing.

¶33 Anderson argues that the detective’s testimony and the 

prosecutor’s comments violated his Fifth Amendment right to 

remain silent. See U.S. Const. amd. V. In support of this 

argument, he relies on this court’s decisions in State v. Palmer, 

860 P.2d 339 (Utah Ct. App. 1993), and State v. Gallup, 2011 UT 

App 422, 267 P.3d 289. Anderson appears to contend that, in 

light of Palmer and Gallup, the claimed error should have been 
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20190235-CA 15 2020 UT App 135

obvious to both his counsel and the district court, supporting his 

claims of deficient performance and plain error. However, in his 

opening brief, Anderson does not address the impact of the 

United States Supreme Court’s subsequent decision in Salinas v. 

Texas, 570 U.S. 178 (2013) (plurality opinion), and whether 

defendants who have not received Miranda warnings must 

expressly invoke their right to remain silent to claim the 

protection of the Fifth Amendment at trial.

¶34 This court first considered whether a defendant’s prearrest and pre-Miranda silence could be used against that person 

to prove consciousness of guilt in Palmer. The Palmer court noted 

that in Doyle v. Ohio, 426 U.S. 610 (1976), the United States 

Supreme Court had held that “a prosecutor’s attempt to impeach 

a defendant’s testimony by questioning him about his silence 

following arrest and receipt of Miranda warnings violated due 

process.” Palmer, 860 P.2d at 347. In contrast, where no Miranda

warnings preceded the defendant’s silence, the Supreme Court 

had held that the State could constitutionally use the defendant’s 

silence to impeach his exculpatory testimony at trial. Id. (citing 

Jenkins v. Anderson, 447 U.S. 231 (1980) (pre-arrest silence), and 

Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam) (post-arrest 

silence)). In other words, before Palmer, it was already wellestablished that the use of a suspect’s silence “for impeachment 

purposes is constitutional unless the silence was potentially 

induced by the government’s delivery of Miranda warnings.” Id.

at 348. But the Supreme Court had not yet addressed whether a 

defendant’s pre-Miranda silence could be used by the State in its 

case-in-chief. 

¶35 The Palmer court held that the State may not introduce 

evidence in its case-in-chief that a defendant invoked his right to 

remain silent prior to the receipt of Miranda warnings. Id. at 349–

50. The court reasoned that just “because an individual does not 

need to be advised of his right to remain silent until he is subject 

to a custodial interrogation does not mean he should be 
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20190235-CA 16 2020 UT App 135

penalized for invoking that right earlier.” Id. at 349. The court 

also expressed concern that allowing such evidence would 

incentivize law enforcement to withhold Miranda warnings and 

would run contrary to “public policy” and “the spirit of Fifth 

Amendment jurisprudence.” Id. The court did not address 

whether the defendant had expressly invoked his rights when he 

stated that “he just wanted to get some advice” before speaking 

to the police or whether his silence alone would have been 

sufficient to trigger the protection of the Fifth Amendment. Id. at 

346.

¶36 But later, in Gallup, the defendant made no statement that 

could be construed as invoking his Fifth Amendment right to 

remain silent. 2011 UT App 422, ¶ 4. The State admitted 

evidence in its case-in-chief that the defendant said nothing and

simply hung up the phone when the investigating officer called 

to speak with him. Id. ¶ 6. The defendant argued that he had 

exercised his right against self-incrimination by hanging up the 

phone and that the State’s reference to his silence violated the 

Fifth Amendment. Id. ¶ 13.

¶37 The Gallup court agreed that “the trial court’s admission 

of the silence evidence was error,” id. ¶ 18, but declined to reach

the State’s argument that Gallup could not establish a Fifth 

Amendment violation because he did not expressly exercise the 

privilege against self-incrimination. Id. ¶ 18 n.4. In making this 

argument, the State relied on Berghuis v. Thompkins, 560 U.S. 370 

(2010), in which the United States Supreme Court held that an 

in-custody defendant must “unambiguously” invoke the 

privilege to end an interrogation and cannot do so by simply 

remaining silent. Id. at 381. The majority noted that “Utah courts 

have yet to address the import of Berghuis, and [declined] to use 

[Gallup’s] case as an opportunity to do so.” Gallup, 2011 UT App 

422, ¶ 18 n.4. The concurring opinion would have rejected the 

State’s argument outright because Berghuis addressed only the 

issue of “what a custodial suspect must do to end an
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interrogation” and did not speak to whether a noncustodial 

suspect must unambiguously invoke his Fifth Amendment right 

to remain silent. Id. ¶ 33 (Voros, J., concurring).

¶38 Two years later, the United States Supreme Court

squarely addressed whether a noncustodial defendant’s preMiranda silence is enough to invoke his Fifth Amendment 

protection. In Salinas v. Texas, 570 U.S. 178 (2013) (plurality 

opinion), the defendant had been called to the police station to 

be interviewed and to submit his shotgun for ballistics testing as 

part of a murder investigation. Id. at 182. An officer interviewed 

Salinas without reading him his Miranda warnings. Id. When the 

officer asked him whether the shells recovered from the murder 

scene would match his shotgun, Salinas remained silent and 

“looked down at the floor, shuffled his feet, bit his bottom lip, 

clenched his hands in his lap, and began to tighten up.” Id.

(cleaned up). After a short period of silence, the officer 

moved on and continued questioning Salinas. Id. At trial, the 

prosecutor used Salinas’s silence and nervous behavior as 

evidence of guilt. Id.

¶39 In a plurality decision, the Supreme Court held that the 

prosecution’s use of Salinas’s pre-arrest, pre-Miranda silence in 

its case-in-chief was permissible, because Salinas had failed to 

expressly invoke his privilege against self-incrimination. Id. at 

183. The plurality based its decision on long-standing precedent 

that this Fifth Amendment right must be unambiguously 

invoked. Id. “To prevent the privilege from shielding 

information not properly within its scope, we have long held 

that a witness who desires the protection of the privilege must 

claim it at the time he relies on it.” Id. (cleaned up). “A witness 

does not expressly invoke the privilege by standing mute.” Id. at 

187. The plurality explained that the Fifth Amendment privilege, 

which must be expressly invoked, is distinct from the due 

process violation at issue in Doyle. Id. at 188 n.3. Although “due 

process prohibits prosecutors from pointing to the fact that a 
State v. Anderson

20190235-CA 18 2020 UT App 135

defendant was silent after he heard Miranda warnings, . . . that 

rule does not apply where a suspect has not received the 

warnings’ implicit promise that any silence will not be used 

against him.” Id. (cleaned up); see also State v. McCallie, 2016 UT 

App 4, ¶ 25, 369 P.3d 103 (explaining that Salinas did not 

“abandon or narrow” Doyle). Because Salinas did not invoke the 

privilege during his interview, the prosecution did not violate 

the Fifth Amendment by using his silence in its case-in-chief.

¶40 Although the plurality opinion only garnered three votes, 

the two-member concurrence did not quibble with the 

proposition that suspects must unambiguously invoke their

privilege to remain silent. Instead, the concurring justices would 

have gone further to hold that, even if Salinas had expressly 

invoked the privilege, the State’s use of his precustodial silence 

would not violate the Fifth Amendment. Salinas, 570 U.S. at 192 

(Thomas, J., concurring). “When a fragmented Court decides a 

case and no single rationale explaining the result enjoys the 

assent of five Justices, the holding of the Court may be viewed as 

that position taken by those Members who concurred in the 

judgments on the narrowest grounds.” Marks v. United States, 430 

U.S. 188, 193 (1977). “Because the circumstances in which the 

plurality opinion deemed prearrest silence to be admissible—i.e., 

when the defendant has not expressly invoked the privilege—is 

a logical subset of the concurring opinion’s view that prearrest 

silence is admissible regardless of whether the defendant 

invoked the privilege, the rule set forth in the plurality opinion 

states the holding of the court.” People v. Tom, 331 P.3d 303, 313 

(Cal. 2014); see also Ian C. Kerr, Note, Beyond Salinas v. Texas: 

Why an Express Invocation Requirement Should Not Apply to 

Postarrest Silence, 116 Colum. L. Rev. 489, 532 (2016) (citing 

authority for the proposition that the Salinas plurality is the 

controlling opinion).

¶41 The State argues that, at minimum, “competent counsel 

could conclude that Salinas overruled Palmer and Gallup.” 
State v. Anderson

20190235-CA 19 2020 UT App 135

Because neither this court nor the Utah Supreme Court has 

squarely addressed the impact of Salinas on our precedent, we 

agree that counsel could reasonably reach this conclusion.4

Where Anderson never expressly invoked his Fifth Amendment 

right as required by Salinas, it was not objectively unreasonable 

for his trial counsel to forgo an objection to the State’s use of his 

pre-arrest silence.

¶42 Anderson argues that this case is distinguishable from 

Salinas because, under the unique facts of this case, he never had 

the opportunity to affirmatively invoke his right to remain silent. 

However, Anderson offers no legal support for the proposition 

that the right is self-executing under such circumstances. In any 

event, trial counsel’s failure to make this argument did not rise 

to the level of deficient performance. See State v. Reigelsperger, 

2017 UT App 101, ¶ 92, 400 P.3d 1127 (noting that counsel is not 

required to “make every novel argument new counsel may later 

derive and assert for the first time on appeal” in order to provide 

reasonably effective assistance). In light of Salinas, competent 

counsel could reasonably conclude that any objection to the 

 

4. In a recent case where a defendant declined to sit for a prearrest police interview, this court cited Palmer and Gallup for the 

proposition “that evidence of a defendant’s pre-arrest silence 

may not be used at trial ‘to infer [that the] defendant exhibited a 

consciousness of guilt.’” State v. Popp, 2019 UT App 173, ¶ 46, 453 

P.3d 657 (quoting State v. Palmer, 860 P.2d at 349 (Utah Ct. App. 

1993)). However, the Popp court did not address the impact of 

Salinas, nor did it consider whether the defendant’s failure to 

expressly invoke the privilege was fatal to his argument that the 

State’s use of his pre-arrest silence violated the Fifth 

Amendment. Instead, the Popp court resolved the issue on the 

basis that the State had not used the evidence “in a way that 

‘raises the inference that silence equals guilt.’” Id. ¶¶ 46–47 

(cleaned up). 
State v. Anderson

20190235-CA 20 2020 UT App 135

prosecutor’s comments would have been futile. See State v. 

Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile 

objections does not constitute ineffective assistance of counsel.”).

¶43 Similarly, the district court had no duty to intervene sua 

sponte. Under the plain error standard of review, Anderson 

must demonstrate not only that an error exists, but also that the 

error “should have been obvious to the district court.” Veracity 

Networks LLC v. MCG S. LLC, 2019 UT App 53, ¶ 27, 440 P.3d 906 

(cleaned up). “To show that the error complained of should have 

been obvious to the district court, an appellant must show that 

the law governing the error was clear at the time the alleged 

error was made.” Id. (cleaned up). As explained above, the law 

governing the use of pre-arrest silence was far from clear. Any 

error in allowing the use of Anderson’s silence would not have 

been obvious to the district court. Thus, Anderson has not 

established plain error.

¶44 Because he has not established either ineffective 

assistance of counsel or plain error, both of Anderson’s

unpreserved “prosecutorial misconduct” claims fail.

II. Psychosexual Evaluation

¶45 Anderson next contends that his trial counsel provided 

ineffective assistance by providing a psychosexual evaluation to 

the State without an agreement limiting its use and by failing to 

object to the State’s use of the evaluation to impeach Anderson 

on cross-examination. He further argues that the State’s use of 

Anderson’s statements to the evaluator opened the door to his 

use of the entire evaluation.

¶46 Prior to the start of trial, Anderson notified the court that 

he intended to call the psychologist who conducted the 

evaluation as an expert witness and provided the State with the

expert’s written report. Trial counsel sought to admit this 

evidence to show Anderson’s “propensity for physiological 
State v. Anderson

20190235-CA 21 2020 UT App 135

response to age-appropriate female sexual interactions” and his 

“lack of pedophilic interests.”

¶47 In response to Anderson’s notice of expert testimony, the 

State moved to “exclude [the expert’s] testimony and the [report]

from consideration by the jury at trial as inadmissible under 

Utah Rules of Evidence 401, 403 and 702.” The State provided 

the court with a copy of the report. Over Anderson’s objection, 

the court granted the State’s motion, finding that the expert’s 

opinion as to Anderson’s non-pedophilia was unreliable, and 

therefore excluded the evidence under rule 702 of the Utah Rules 

of Evidence.

¶48 However, during trial, the State impeached Anderson 

with statements he made during the evaluation that had been

included in the expert’s report. Trial counsel did not object. On 

re-direct, trial counsel referred to the evaluation, and the State 

objected. Trial counsel argued that the State had opened the door 

by using the report during cross-examination. The court rejected 

Anderson’s argument and sustained the objection. 

¶49 Anderson argues that his counsel was ineffective for 

providing the State with a copy of the report because the 

“evaluation was not favorable for [him] under any reasonable 

reading.” Specifically, Anderson contends that the evaluation 

was not favorable to him because it contained (1) Anderson’s 

“sexual risk classification and his screening scale for 

pedophilia,” (2) “inculpatory admissions regarding [Anderson’s] 

criminal conduct,” and (3) “a version of the facts that differed 

from Anderson’s testimony.” Anderson argues that “no 

reasonable attorney would have disclosed the confidential 

evaluation to the prosecution.”

¶50 As to the first two categories of potentially damaging 

information, Anderson cannot establish prejudice as a result of 

the disclosure. The State never introduced Anderson’s sexual 

risk classification, his screening scale for pedophilia, or his 
State v. Anderson

20190235-CA 22 2020 UT App 135

admissions to other crimes. Consequently, even assuming that 

divulging such information to the State fell below an objective 

standard of reasonable performance, the disclosure did not 

prejudice Anderson.

¶51 The State’s use of the evaluation was limited to the third 

category of information that Anderson identifies as unfavorable. 

Specifically, the State questioned Anderson about his own 

inconsistent statements to the psychologist about the details of 

the night he spent at the victim’s house. Those statements were 

limited to such facts as the amount of alcohol Anderson drank, 

the time he went to sleep, and the time he awoke. None of those 

statements was obviously inculpatory. They became favorable to 

the State only after Anderson testified in an inconsistent manner 

at trial. At the time the report was disclosed, reasonable trial 

counsel would not have considered Anderson’s statements to be

damaging information. A reasonably competent attorney would 

not necessarily anticipate that Anderson would change his story

on the stand, thereby opening himself to impeachment based on 

his prior statements to the psychologist.

¶52 Further, trial counsel did not perform deficiently in not

objecting to the State’s use of Anderson’s prior statements found 

in the report. “The failure of counsel to make motions or

objections which would be futile if raised does not constitute 

ineffective assistance.” State v. Alzaga, 2015 UT App 133, ¶ 73, 

352 P.3d 107 (cleaned up). Here, any objection would have been 

futile because Anderson’s prior statements were admissible. A 

party may cross-examine a witness with that witness’s prior 

inconsistent statements. See Utah R. Evid. 613(b). Moreover, 

Anderson’s statements were not hearsay because they were 

statements of a party opponent. See id. R. 801(d)(2). In addition, 

the court’s prior ruling excluding the expert’s testimony did not 

preclude the State from using Anderson’s statements referenced 

in the report. The court excluded the expert opinion because it 

was unreliable under rule 702 of the Utah Rules of Evidence. But
State v. Anderson

20190235-CA 23 2020 UT App 135

that ruling had no bearing on whether the State could use 

Anderson’s own statements, as opposed to the expert’s 

conclusions and opinions. Trial counsel did not perform 

deficiently in forgoing a futile objection, and the trial court did 

not commit plain error by failing to intervene.

¶53 Similarly, the district court did not abuse its discretion in 

refusing to admit the report after the State used it to crossexamine Anderson. Anderson claimed that the State’s use of the 

evaluation opened the door to its contents, and therefore trial 

counsel “should have been able to then use the remainder of the 

evaluation to his advantage.” However, the State did not open 

the door to the expert’s opinions, which the court had already 

deemed unreliable. During its cross-examination, the State did 

not reference any of the expert’s tests or conclusions. In fact, the 

State gave very little detail as to the purpose of Anderson’s 

conversation with the psychologist. The district court did not

abuse its discretion in determining that the State’s use of the 

report for the limited purpose of highlighting Anderson’s prior 

inconsistent statements did not open the door to the introduction 

of the entire report.5

III. Comments on Failed Plea Agreement

¶54 Anderson next argues that his trial counsel provided 

ineffective assistance when he “revealed to the jurors in opening 

statements that he had tried to resolve the case, but could not,” 

which “implied to the jury that Anderson was guilty, since his 

counsel had tried to resolve the case.” Anderson claims that

counsel’s statements “alerted the jury to the inadmissible fact 

 

5. Anderson also argues on appeal that the entirety of the report 

was admissible under the rule of completeness. See Utah R. Evid. 

106. However, Anderson’s trial counsel did not preserve this 

issue, and we therefore decline to address it on appeal.
State v. Anderson

20190235-CA 24 2020 UT App 135

that Anderson had been attempting to resolve the case, but was 

unsuccessful,” and that “the comment had no conceivable 

tactical basis but served only to unfairly prejudice Anderson.”

¶55 The absence of a sound strategic reason for counsel’s act 

or omission does not automatically establish deficient 

performance. See State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871. But, 

more fundamentally, we disagree with Anderson’s 

characterization of his counsel’s comments. During his opening 

statement, counsel made the following remarks:

So what we’re going to be looking at over the next 

couple of days is whether a crime was committed, 

and if so did [Anderson] commit it. Now, he has 

heard these allegations and he has said, “I didn’t 

do it. I am not guilty. I didn’t do this thing,” and he 

has persisted in that declaration of his innocence, 

which is his right under the law. We haven’t been 

able to resolve that issue, and we’ve tried. All 

attorneys try to resolve their cases in a way that 

both sides are happy with it, but in these kind of 

cases sometimes there’s just no way around it. 

Sometimes there’s just no other way than to say, 

“Look, I’m – I’m never going to say I did 

something I didn’t do. I don’t care how many times 

you tell me I’ve done it, I’m not going to admit it 

because I’m innocent.” That’s when we have to 

have you, our fellow citizens come in and hear the 

evidence on both sides as to what people saw, 

what people heard, and what people said or did, 

and then you make your decision, a factual 

decision as to whether a crime has been committed 

or not.

¶56 In context, trial counsel did not suggest in opening 

statement that Anderson was guilty. There was no reference to 
State v. Anderson

20190235-CA 25 2020 UT App 135

plea negotiations, a potential guilty plea, or the possibility that

Anderson was guilty but merely exercising his constitutional 

right to a trial. To the contrary, counsel’s statement that 

Anderson was “never going to say I did something I didn’t do” 

was a strong denial of guilt. Including such remarks in the 

opening statement was neither objectively deficient nor 

prejudicial. Therefore, Anderson has not established ineffective 

assistance of counsel.

IV. Incorrect Mandatory Minimum Sentence

¶57 Lastly, Anderson argues that the court abused its 

discretion when it denied his motion to arrest judgment 

regarding the child sodomy count, because he was not properly 

notified of the mandatory minimum sentence for that count. 

When Anderson was first charged in 2016, the initial information 

stated that the child sodomy count was punishable “by 

imprisonment for an indeterminate term of not less than 6, 10, or 

15 years, and which may be for life.” He was also charged with 

two counts of child sexual abuse. Following the preliminary 

hearing, the State filed an amended information, which 

eliminated one count of child sexual abuse. Again, the amended 

information stated that the child sodomy count carried a 6, 10, or 

15-year minimum mandatory. However, the minimum 

mandatory for child sodomy is 25 years. Thus, both informations 

incorrectly stated the mandatory minimum sentence.

¶58 On the first day of trial, before the jury was empaneled, 

the State made a record that it had offered a plea deal to 

Anderson and that he had rejected it. The State’s plea offer 

would have allowed Anderson to plead guilty to two counts of 

sexual abuse of a child, both second-degree felonies. The State 

incorrectly noted, “As you – or as the Court’s well aware, 

sodomy on a child as a first-degree felony is a mandatory prison 

[sentence of] 15 years to life if convicted.” The court then 

confirmed with trial counsel that Anderson had rejected the 
State v. Anderson

20190235-CA 26 2020 UT App 135

offer. Trial counsel stated, “Yes, your Honor, with one 

correction. It’s my understanding that sodomy on a child is 25 to 

life mandatory, but be that as it may, I have communicated that 

offer to him and he has . . . declined that offer, and he wants to 

go to trial.” The court asked Anderson whether that was correct, 

to which Anderson replied, “[Y]es sir.”

¶59 Following trial, Anderson obtained new counsel, who 

discovered the discrepancy in the applicable mandatory 

minimum stated in the amended information and moved for an 

order arresting judgment as to his child sodomy conviction. The 

court denied the motion, acknowledging that a mistake had been 

made, but finding that Anderson had been given adequate

notice as to the correct mandatory minimum before trial began

and “had an opportunity at that point to make some point, make 

an issue of it.” Now, Anderson contends that the court abused its 

discretion when it denied the motion to arrest judgment, and 

that trial counsel was ineffective during the plea-bargaining

process.

¶60 In Lafler v. Cooper, 566 U.S. 156 (2012), the United States 

Supreme Court held that the Sixth Amendment right to effective 

assistance of counsel extends to the plea negotiation phase and 

that “if a plea bargain has been offered, a defendant has the right 

to effective assistance of counsel in considering whether to 

accept it.” Id. at 168. “If that right is denied, prejudice can be 

shown if loss of the plea opportunity led to a trial resulting in a 

conviction on more serious charges or the imposition of a more 

severe sentence.” Id.

¶61 To establish ineffective assistance in the plea negotiation 

context, Anderson must first establish “that counsel’s 

representation fell below an objective standard of 

reasonableness.” Id. at 163 (cleaned up); see also Strickland v. 

Washington, 466 U.S. 668, 688 (1984). He then must demonstrate 

that “the outcome of the plea process would have been different 
State v. Anderson

20190235-CA 27 2020 UT App 135

with competent advice.” Lafler, 566 U.S. at 163. Here, this 

requires a showing that (1) “but for the ineffective advice of 

counsel there is a reasonable probability that the plea offer 

would have been presented to the court (i.e., that the defendant 

would have accepted the plea and the prosecution would not 

have withdrawn it in light of intervening circumstances),” (2) 

that “the court would have accepted its terms,” and (3) “that the 

conviction or sentence, or both, under the offer’s terms would 

have been less severe than under the judgment and sentence that 

in fact were imposed.” Id. at 164.

¶62 Anderson cannot make these showings. Anderson has not

pointed to any evidence to suggest that trial counsel 

misinformed him of the mandatory minimum sentence he faced 

if he did not accept the plea offer. Indeed, the information found 

in the record suggests the opposite. As the district court noted, 

trial counsel immediately corrected the State’s misstatement of 

the mandatory minimum when making a record of Anderson’s 

rejection of the plea offer. Although Anderson is correct that 

both the State and the court stated the wrong mandatory 

minimum, there is nothing in the record to suggest that 

Anderson’s counsel was likewise misinformed and advised him 

of the incorrect sentence. Therefore, he cannot establish that his 

counsel’s assistance during the plea negotiation phase fell below 

an objective standard of reasonableness.

¶63 The district court similarly did not abuse its discretion 

when it denied Anderson’s motion to arrest judgment. In his 

motion to arrest judgment, Anderson argued that his due 

process rights had been violated because he was not given 

adequate notice of the correct mandatory minimum sentence. 

The court, in its oral ruling on the motion, made a factual finding 

that although a mistake had been made in the original and 

amended informations, Anderson had received notice of the 

correct mandatory minimum prior to trial. A “district court’s 

factual findings are reviewed deferentially under the clearly 
State v. Anderson

20190235-CA 28 2020 UT App 135

erroneous standard.” Plaia v. Plaia, 2019 UT App 130, ¶ 10, 450 

P.3d 80 (cleaned up). Anderson has not challenged that factual 

finding—and for good reason, given the colloquy that occurred 

before trial. In light of that factual finding, the district court did 

not abuse its discretion when it denied Anderson’s motion to 

arrest judgment. 

CONCLUSION 

¶64 Anderson has not demonstrated that his counsel 

performed deficiently or that the district court plainly erred or 

exceeded its discretion. Therefore, we affirm.