2016 UT App 225

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JACOB LAWRENCE CHRISTENSEN,

Appellant.

Opinion

No. 20140720-CA

Filed November 10, 2016

First District Court, Logan Department

The Honorable Kevin K. Allen

No. 121100279

David M. Perry, Attorney for Appellant

Sean D. Reyes and Tera J. Peterson, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1 Defendant Jacob Lawrence Christensen appeals his 

conviction for object rape, a first degree felony. He argues there 

were multiple instances of plain error and ineffective assistance 

of counsel during his trial. We affirm.
State v. Christensen

20140720-CA 2 2016 UT App 225

BACKGROUND1

¶2 Victim knew Defendant from middle school, but they lost 

touch when she moved out of state. Years later, after Victim

returned to Utah to attend college, Defendant contacted her 

through social media and the two began to spend time together.

¶3 Although their relationship was not romantic, it began to 

get physical. Victim consented to some sexual touching; on one 

occasion she manually stimulated Defendant, and on another 

occasion she performed oral sex on him. In each case, after ‚only 

a couple of minutes‛ Victim began to feel uncomfortable, and 

she terminated the action before Defendant ejaculated. On other 

occasions, Defendant asked Victim to have sex with him, but she 

told him that she did not want to.

¶4 One night, Victim invited Defendant to her house. She 

and a roommate (Roommate) decided to take the drug Ambien 

in order to hallucinate, and Victim told Defendant of their plans. 

They wanted him to be with them in case one of them 

overdosed. Victim and Roommate picked up Defendant at his 

house, and he agreed to drive them home.

¶5 En route to Victim’s house, Victim and Roommate each 

took three Ambien pills. Victim began feeling ‚a little bit dizzy‛ 

and Roommate began hallucinating and feeling ‚extremely ill.‛

Upon arrival, Roommate vomited outside the car, and Victim 

vomited in the bathroom. Victim also began hallucinating; she 

 

1. At trial, Defendant and Victim gave similar accounts, although 

the accounts differ on some key aspects. ‚*W+e view the 

evidence and all reasonable inferences in the light most 

favorable to [the jury] verdict and recite the facts accordingly. 

We include conflicting evidence as relevant and necessary to 

understand the issues on appeal.‛ State v. Dozah, 2016 UT App 

13, ¶ 2, 368 P.3d 863 (citations omitted).
State v. Christensen

20140720-CA 3 2016 UT App 225

hallucinated that people were coming into the living room, and 

she had Defendant and Roommate sit next to her to make space 

for them. Victim testified that the hallucination was more like a 

‚lucid dream‛; she ‚recognized that *she was+ having a 

hallucination‛ and that ‚it was not reality.‛

¶6 At some point, Victim ‚blacked out.‛ The next thing she 

remembered was being ‚flipped over‛ from her back onto her 

stomach and feeling ‚the sharpest pain that [she had] ever felt in 

[her] life through [her] rectum and up [her] spine.‛ Victim 

‚screamed‛ that it hurt, and then she felt what was ‚inside‛ of 

her ‚being removed.‛ Victim was in her bedroom, but she could 

not recall how she got there. Defendant was behind her, and as 

she turned over, he came ‚back around back onto the bed.‛ 

Victim had never had sex before; she ‚wasn’t really positive 

what had happened‛ or what ‚steps *she+ needed to take.‛ She 

asked Defendant if she needed to get ‚Plan B,‛ because she was 

worried she might get pregnant. She told Defendant that he had 

raped her.

¶7 Defendant denied he had raped her and told her she was 

being ‚over dramatic.‛ He said there was no need to get ‚Plan 

B‛ because he had not ejaculated, and if she did get pregnant, 

she could just have an abortion. During their ‚confrontation‛ 

Victim saw Defendant writing on the chalkboard in her room, 

though she could not see what he was writing. Defendant then 

woke Roommate to borrow her car to drive himself home.

Meanwhile, Victim showered because she felt ‚dirty‛ and 

‚disgusting.‛ After returning to her room, Victim noticed the 

writing on the chalkboard, which read, ‚Abortion,‛ ‚Prochoice,‛ and ‚Fuck Dumb Bitches.‛

¶8 Victim woke Roommate in the early morning and 

disclosed that she had been raped. She left the house to stay with 

friends in another city, and was examined by a sexual assault 

nurse later that day. The examination revealed that Victim had 

six injuries: three lacerations to her labia majora and minora, two 
State v. Christensen

20140720-CA 4 2016 UT App 225

lacerations in her anal area, and a scratch on her inner right 

thigh. The injuries were acute, meaning they had occurred in the 

last twenty-four to forty-eight hours. The hospital reported the 

assault to the police.

¶9 Victim never returned to her house—she gave up her 

scholarship, dropped out of school, and moved home to be with 

her parents. After the move, Victim could only sleep for a couple

of hours at a time. She had anxiety. She ‚felt broken‛ and 

‚couldn’t be around other people.‛ A year after the assault, she 

began to have flashbacks; memories from that night would ‚play 

over and over again in *her+ mind.‛

¶10 In the course of their investigation, the police twice asked 

Victim to call Defendant. Both phone calls were recorded. In the 

first call, Victim confronted Defendant about what he had done, 

but he denied that anything happened. Victim persisted, asking 

him, ‚*W+hy did it hurt?‛ and saying, ‚I woke up in pain.‛ 

Defendant told her, ‚*You] know I have hands right? . . . I have 

hands . . . .‛ In the second call, Defendant again denied that he 

raped her, saying, ‚*W+e didn’t have sex,‛ and that ‚rape is sex, 

period.‛

¶11 Defendant was charged with one count of rape and one 

count of sodomy, both first degree felonies. The Information also 

included an alternative charge of object rape, a first degree 

felony.

¶12 At trial, the State called multiple witnesses including 

Victim, Roommate, the investigating police officer, and the 

examination nurse. The State also called an expert witness, a 

clinical psychologist, who testified about the symptoms of posttraumatic stress disorder (PTSD) and opined that Victim 

exhibited some behaviors consistent with those symptoms. The 

State’s expert did not testify that Victim suffered from PTSD or 

that the symptoms she experienced arose because she had been 
State v. Christensen

20140720-CA 5 2016 UT App 225

sexually assaulted. Defendant called his own expert witness in 

clinical psychology. 

¶13 Ultimately, the jury acquitted Defendant of the rape and 

sodomy charges, but found him guilty of object rape. Defendant 

appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Defendant raises three issues on appeal. He concedes that

these issues were not preserved at trial, and asks us to review 

them for plain error and ineffective assistance of counsel. First, 

he contends the trial court plainly erred by allowing Victim to 

testify, arguing that she was incompetent to testify.2 He also 

claims defense counsel was ineffective for not objecting to that

testimony. Next, Defendant contends the court plainly erred by 

permitting the State’s expert testimony on PTSD, and he again 

claims his counsel was ineffective for not objecting to it. Finally, 

Defendant contends that his counsel was ineffective with regard

to his own expert’s testimony. 

¶15 To establish plain error, Defendant must show that ‚(i) an 

error exists; (ii) the error should have been obvious to the trial 

court; and (iii) the error is harmful, i.e., absent the error, there is 

a reasonable likelihood of a more favorable outcome.‛ State v. 

Griffin, 2016 UT 33, ¶ 17 (citation and internal quotation marks 

omitted).

 

2. Defendant initially frames his argument as a sufficiency of the 

evidence issue. But Defendant only supports this argument by 

claiming that Victim’s testimony was inadmissible because she 

was incompetent to testify. As we determine that the trial court 

did not err in admitting Victim’s testimony, see infra ¶¶ 17–20, 

we find no reason to apply a sufficiency of the evidence analysis.
State v. Christensen

20140720-CA 6 2016 UT App 225

¶16 Claims of ineffective assistance of counsel raised for the 

first time on appeal are reviewed for correctness. State v. Lucero, 

2014 UT 15, ¶11, 328 P.3d 841. To establish ineffective assistance 

of counsel, Defendant must show (1) that trial counsel rendered 

deficient performance, falling below an objective standard of 

reasonable professional judgment, and (2) that trial counsel’s 

performance prejudiced him. Strickland v. Washington, 466 U.S. 

668, 687–88, 694 (1984); accord State v. Bond, 2015 UT 88, ¶ 14, 361 

P.3d 104.

ANALYSIS

I. Victim Was Competent to Testify.

¶17 Defendant first contends Victim was incompetent to 

testify under rule 602 of the Utah Rules of Evidence. He argues

the trial court plainly erred by allowing her testimony and trial 

counsel was ineffective for not objecting to it.

¶18 ‚Utah law imposes a very low bar for establishing the 

competency of a witness.‛ State v. Calliham, 2002 UT 87, ¶ 22, 57 

P.3d 220; see also Utah R. Evid. 601(a) (‚Every person is 

competent to be a witness unless these rules provide 

otherwise.‛). Competency requires witnesses to have ‚personal 

knowledge of the matter,‛ Utah R. Evid. 602, meaning witnesses 

must ‚have the opportunity and the capacity to perceive the 

events in question.‛ State v. Eldredge, 773 P.2d 29, 33 (Utah 1989). 

¶19 Defendant specifically claims Victim ‚rendered herself 

incapable to observe‛ the events because she was under the 

influence of Ambien, asserting Victim ‚‘blacked out’ and had no 

recollection as to what happened for significant stretches of 

time.‛ But a witness is not rendered incompetent merely because 

her memory is ‚less than complete,‛ see id., or because she was 

intoxicated or otherwise impaired during the events in question, 

see State v. Villarreal, 857 P.2d 949, 956 (Utah Ct. App. 1993) 
State v. Christensen

20140720-CA 7 2016 UT App 225

(concluding the victim was competent to testify even though she 

was intoxicated while she was sexually assaulted), aff’d, 889 P.2d 

419 (Utah 1995).

¶20 Here, Victim had the opportunity and the capacity to 

perceive the events surrounding the assault, in particular the 

intense pain she felt in her rectum. Though she passed out while 

under the effects of Ambien, the pain of the experience brought 

her to consciousness. She had detailed memories of pain and 

other sensations, of seeing Defendant, and of conversing with 

him. Even though the effects of the drug may have rendered her 

memory incomplete, Victim was present, conscious at times, and 

able to remember the assault. She was thus competent to testify. 

She was also competent to testify to her experiences before and 

after the night of the assault. Thus, the trial court did not err in 

allowing her testimony.

¶21 ‚Once a witness is deemed competent, matters of 

credibility are best left to the jury.‛ Calliham, 2002 UT 87, ¶ 23. 

Doubts about a witness’s ability to testify accurately and 

truthfully can be investigated through cross-examination. See id.

¶ 24. Because Victim was competent to testify, trial counsel was 

not remiss for declining to object to the admission of her 

testimony. See State v. Chacon, 962 P.2d 48, 51 (Utah 1998) 

(‚Neither speculative claims nor counsel’s failure to make futile 

objections establishes ineffective assistance of counsel.‛).

Furthermore, while cross-examining Victim, Defendant’s

counsel focused on her drug use, unconsciousness, and memory 

gaps, and thereby elicited favorable testimony for the defense. 

Counsel could have reasonably decided to refrain from objecting 

to Victim’s testimony so as to discredit it during crossexamination. This is a ‚conceivable tactical basis for counsel’s 

actions.‛ See State v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980 

(citation and internal quotation marks omitted).

¶22 Because Defendant has not overcome ‚the strong 

presumption that ‘under the circumstances the challenged action 
State v. Christensen

20140720-CA 8 2016 UT App 225

might be considered sound trial strategy,’‛ Defendant has not 

shown that his counsel’s performance was deficient. See State v. 

Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (quoting Strickland v. 

Washington, 466 U.S. 668, 689 (1984)). Trial counsel thus did not 

render ineffective assistance. See State v. Bair, 2012 UT App 106, 

¶ 49, 275 P.3d 1050 (‚*B+ecause both deficiency and prejudice 

must be shown, a reviewing court can dispose of an 

ineffectiveness claim on either ground.‛ (citation and internal 

quotation marks omitted)).

II. The State’s Expert Testimony Was Admissible.

¶23 Citing rule 403 of the Utah Rules of Evidence, Defendant 

contends the trial court plainly erred in admitting the State’s 

expert testimony because it created unfair prejudice, confused 

the issues, and misled the jury. Defendant also contends, citing 

rule 702, that the testimony invaded the jury’s province as fact 

finder.

¶24 An expert may testify if ‚the expert’s scientific, technical, 

or other specialized knowledge will help the trier of fact to 

understand the evidence or to determine a fact in issue.‛ Utah R. 

Evid. 702(a). A court may exclude an expert’s testimony ‚if its 

probative value is substantially outweighed by a danger of . . . 

unfair prejudice, confusing the issues, [or] misleading the jury 

. . . .‛ Id. R. 403. 

¶25 Defendant argues that the State’s expert testimony was 

‚clearly employed for the purpose of showing that a rape 

occurred‛ and was ‚likely to mislead the jury that a scientific 

judgment was made that something ‘traumatic’ had happened to 

*Victim+.‛ He cites State v. Rimmasch, 775 P.2d 388 (Utah 1989),

for the proposition that profile testimony, which ‚portrays the 

characteristics of the typical victim of sexual abuse,‛ ‚has a 

tendency to mislead and confuse a finder of fact by suggesting 

that the issue to be decided is whether the accusing [victim] 

possesses these characteristics, rather than whether the [victim] 
State v. Christensen

20140720-CA 9 2016 UT App 225

experienced the specific instances of abuse described.‛ Id. at 402 

n.13.3

¶26 In Rimmasch, experts testified that the victim had in fact 

been sexually assaulted, basing their conclusion largely on the 

victim’s conformance to a psychological sexual abuse profile. Id.

at 394–95. This testimony was inadmissible because there was no 

scientific evidence establishing the reliability of the profile or its 

ability to correctly identify sexual abuse victims. Id. at 399–404. 

While Rimmasch qualified the use of profile testimony, it did not 

altogether prohibit its use.4

¶27 State v. Kallin, 877 P.2d 138 (Utah 1994), clarified the use of 

similar testimony—under Kallin, experts may testify that a 

victim’s behavior is consistent with sexual abuse without 

 

3. Before rule 702 of the Utah Rules of Evidence was amended in 

2007, State v. Rimmasch, 775 P.2d 388 (Utah 1989), was ‚the 

standard of determining the admissibility of technical or 

scientific expert testimony. . . .‛ Eskelson ex rel. Eskelson v. Davis 

Hosp. & Med. Center, 2010 UT 59, ¶ 10, 242 P.3d 762. The 

amendment to rule 702 was intended ‚‘to clarify the 

requirements for admission’ of expert testimony and subsume 

the Rimmasch standard into rule 702.‛ State v. Maestas, 2012 UT 

46, ¶ 121 n.134, 299 P.3d 892 (quoting Eskelson, 2010 UT 59, ¶ 11).

4. The court in Rimmasch did ‚not mean to imply that profile 

testimony is unreliable as a matter of law.‛ Rimmasch, 775 P.2d at 

403. Rather, the court determined that expert testimony that a 

child victim had been abused is inadmissible if the opinion is 

based 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.‛ State v. Kallin, 877 P.2d 138, 140 (Utah 1994); Rimmasch, 

775 P.2d at 399–404.
State v. Christensen

20140720-CA 10 2016 UT App 225

running afoul of the holding in Rimmasch. ‚Evidence that certain 

behavioral symptoms are consistent with sexual abuse does not 

prove directly the ultimate legal conclusion that the [victim] was 

abused . . . .‛ Kallin, 877 P.2d at 141. While this evidence cannot 

be admitted for the purpose of proving the ultimate legal 

conclusion of abuse, it may ‚enable the jury to assess the 

probative relevance of the evidence in light of all other 

evidence.‛ Id. In any event, such testimony is ‚not based on a 

psychological sexual abuse profile,‛ but rather founded on ‚the 

experience and observations of those who work with abused 

[victims].‛ Id.

¶28 Similar to Kallin, the expert in this case testified that 

Victim’s symptoms were consistent with PTSD. His testimony 

was not based on a psychological profile, and he did not testify 

as to the ultimate legal conclusion that Victim was sexually 

assaulted. Instead, the expert gave an overview of PTSD, 

explaining its progression and symptoms, and testified that 

according to Victim’s testimony, ‚several things she described 

would be consistent with a description of post-traumatic stress 

disorder.‛ The expert then explained that Victim’s sleep 

patterns, her withdrawal, her flashbacks, and her fear were all 

consistent with PTSD symptoms. The expert acknowledged that 

Victim was not one of his patients and stated that his testimony 

was not a diagnosis of PTSD. He also conceded that some of 

Victim’s symptoms were consistent with depression. The expert

did not testify as to the source of those symptoms—he did not 

testify that her symptoms demonstrated she had been 

assaulted—but his testimony was clear that PTSD arises from 

some form of trauma, i.e., a ‚serious threat to your life or serious 

threat to your health and well-being.‛ 

¶29 The State’s expert testimony was admissible under rule 

702 of the Utah Rules of Evidence. ‚[T]he manifestation of 

certain behavioral symptoms‛ and ‚*e+xpert testimony that such 

symptoms are consistent with sexual abuse‛ may have some 
State v. Christensen

20140720-CA 11 2016 UT App 225

probative value as circumstantial evidence. Kallin, 877 P.2d at 

141. ‚The probative value of such evidence is usually beyond the 

ken of a jury‛ without the help of an expert. Id. That is, expert 

testimony that a victim’s symptoms are consistent with PTSD 

may help triers of fact to better understand the evidence before 

them. See Utah R. Evid. 702(a). 

¶30 The State’s expert testimony was also permissible under 

rule 403 of the Utah Rules of Evidence. At issue in this case was 

whether the abuse occurred—not the identity of the assailant.

Defendant admitted he was with Victim on the night in question 

and was ‚the only one there,‛ but he maintained that ‚nothing 

happened.‛ Trial counsel postulated Victim hallucinated the 

assault. The expert’s testimony, linking Victim’s symptoms to 

PTSD and possible trauma, was probative of whether abuse 

occurred and did not mislead the jury or confuse the issues. It

was also not unduly prejudicial—although the expert testified 

that Victim’s symptoms were consistent with some form of 

trauma, he did not speculate that Victim had been raped or 

otherwise sexually abused. Similar testimony has been permitted 

in other cases. See, e.g., Kallin, 877 P.2d at 141 (affirming the trial 

court’s admission of testimony that the ‚victim’s symptoms 

were ‘consistent with’ sexual abuse‛); State v. Sloan, 2003 UT 

App 170, ¶ 25, 72 P.3d 138 (affirming the trial court’s admission 

of testimony that the victim’s ‚behavior was consistent with 

sexual abuse‛).

¶31 Because the expert’s testimony was admissible under 

rules 702 and 403 of the Utah Rules of Evidence, the trial court 

did not plainly err in admitting it.

¶32 Defendant’s ineffective assistance argument also fails. 

Even had counsel performed deficiently by not objecting to the 

expert’s testimony, the error did not prejudice Defendant. See 

Strickland v. Washington, 466 U.S. 668, 691 (1984) (‚An error by 

counsel, even if professionally unreasonable, does not warrant 
State v. Christensen

20140720-CA 12 2016 UT App 225

setting aside the judgment of a criminal proceeding if the error 

had no effect on the judgment.‛). 

¶33 To show prejudice, Defendant must demonstrate ‚‘a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.’‛ 

Archuleta v. Galetka, 2011 UT 73, ¶ 40, 267 P.3d 232 (quoting 

Strickland, 466 U.S. at 694). Defendant’s theory at trial was that 

Victim hallucinated the assault. To offer evidence that Victim’s 

trauma stemmed from real rather than hallucinatory events, the 

State’s expert testified that Victim’s symptoms were consistent

with a description of PTSD. But even more direct evidence of 

Victim’s trauma was offered by the examination nurse, who 

testified that Victim had six physical injuries—three lacerations 

on her labia majora and minora, two lacerations in her anal area, 

and a scratch on her inner thigh. Victim also testified about the 

assault, her injuries, and the trauma she suffered. Thus, even 

without the expert’s testimony connecting Victim’s post-assault 

symptoms to possible trauma, the jury heard substantial 

evidence demonstrating that Victim experienced trauma. Other 

evidence, including the writing on the chalkboard and 

Defendant’s statements during the recorded phone calls, also 

corroborates Victim’s version of the events. Due to the evidence 

presented at trial, we cannot say that there was a reasonable 

probability the result would have been different had

Defendant’s counsel objected to the State’s expert testimony. 

Accordingly, Defendant has not shown ineffective assistance of 

counsel. 

III. The Ineffective Assistance of Counsel Claim Regarding 

Defendant’s Own Expert Witness Is Inadequately Briefed.

¶34 Defendant also contends that trial counsel rendered 

ineffective assistance in connection with the defense’s own

expert witness. Defendant argues counsel’s conduct ‚fell below 

professional standards of conduct‛ in three respects. First, 
State v. Christensen

20140720-CA 13 2016 UT App 225

counsel did not give the State notice of the defense expert’s

intended testimony on the effects of Ambien and hallucinations. 

Because the State did not have notice, the expert was precluded 

from testifying on this matter. Second, Defendant faults counsel 

for not retaining a memory expert to address Victim’s memory 

gaps. Third, Defendant claims counsel was deficient for hiring 

this particular expert, whose license had been suspended for a 

time period fourteen years earlier.

¶35 The State argues that this issue is inadequately briefed,

and we agree. The Utah Rules of Appellate Procedure require an 

appellant’s brief to ‚contain the contentions and reasons of the 

appellant with respect to the issues presented, . . . with citations 

to the authorities, statutes, and parts of the record relied on.‛ 

Utah R. App. P. 24(a)(9). ‚Briefs must contain reasoned analysis 

based upon relevant legal authority. An issue is inadequately 

briefed when the overall analysis of the issue is so lacking as to 

shift the burden of research and argument to the reviewing 

court.‛ Sloan, 2003 UT App 170, ¶ 13 (citation and internal 

quotation marks omitted).

¶36 In a single paragraph, Defendant raises three different 

claims of ineffective assistance of counsel. Although Defendant

cites the relevant authority under which we decide such claims, 

he has not developed any meaningful legal analysis of his 

arguments, nor has he provided citations to the record. 

Defendant only lists the alleged deficiencies of trial counsel

regarding the expert testimony and asserts that these decisions

appear to have no rational basis. Because Defendant’s ineffective 

assistance of counsel claim is inadequately briefed, we decline to 

address this contention.

CONCLUSION

¶37 Defendant has not shown either plain error or ineffective 

assistance of counsel. Victim was competent to testify, and her 
State v. Christensen

20140720-CA 14 2016 UT App 225

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

admissible under rules 702 and 403 of the Utah Rules of 

Evidence. And because Defendant’s final claim is inadequately 

briefed, we do not address its merits.

¶38 Affirmed.