2016 UT App 234

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ABELARDO CRUZ,

Appellant.

Opinion

No. 20140994-CA

Filed December 1, 2016

Eighth District Court, Vernal Department

The Honorable Clark A. McClellan

No. 131800746

Jeremy M. Delicino, Hakeem Ishola, and Carlos 

Navarro, Attorneys for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.

VOROS, Judge:

¶1 Abelardo Cruz appeals his conviction for two counts of 

sodomy upon a child, a first degree felony. We affirm.

BACKGROUND

¶2 Cruz resided with Mother and her six-year-old daughter 

(Child). On November 9, 2013 Cruz returned home on his lunch 

break and went upstairs to ‚get some rest‛ in the bedroom. 

Child also went upstairs. Later, Mother walked upstairs ‚very 

softly‛ to get her phone. When Mother opened the bedroom 

door, Cruz was lying on the bed, his pants were ‚wide open,‛ 
State v. Cruz

20140994-CA 2 2016 UT App 234

‚unbuttoned, and the zipper was down,‛ and he looked scared.

Child was lying on the bed next to Cruz ‚near his hips.‛

¶3 Mother took Child into the adjacent bathroom and asked 

her what had happened. Child appeared shaky and pale and 

initially responded that nothing had happened. When Mother 

asked again, Child responded that Cruz ‚put his tito in *her+ 

mouth.‛1 Although Cruz denied the incident, Mother left the 

family home the following week and moved with her children to 

another city.

¶4 Mother took Child to a hospital to determine if Child

sustained any injuries from the November 9 incident. The 

examining doctor found no sign of injury. After examining 

Child, the hospital called the police to report allegations of 

sexual abuse.

¶5 A police detective interviewed Child at a Children’s 

Justice Center (the first CJC interview). The detective conducted 

the interview in both English and Spanish. During the interview, 

Child told the detective that on the day of the alleged abuse, 

Child followed Cruz upstairs to the bedroom. Child explained 

that once she entered the room, Cruz put his hand on the door,

and ‚he didn’t let [her] out.‛ Child told police that Cruz 

unzipped his pants, that she ‚was trying to get out,‛ and that 

Cruz then ‚did something bad.‛ The detective asked Child why 

Cruz wouldn’t let her out of the room; she responded, ‚I didn’t 

want to do it, but he made me do it. He made me put my mouth 

on his [tito].‛2 Later in the interview, Child repeated that Cruz 

‚put his tito in my mouth.‛

 

1. At trial, Mother explained that ‚tito‛ is a ‚family word for 

penis.‛ Child explained in her interview at the Children’s Justice 

Center that, to her, ‚tito‛ means ‚nuts.‛

2. This portion of the interview was conducted in Spanish; 

translators translated ‚tito‛ as ‚weewee.‛
State v. Cruz

20140994-CA 3 2016 UT App 234

¶6 The following week a police officer conducted a second

interview with Child at a separate Children’s Justice Center (the 

second CJC interview). The officer conducted the interview 

mainly in Spanish. In the interview, Child explained that Cruz 

‚put [her] up on the bed . . . on [her] knees‛ while his pants were 

unzipped. Child told the officer that Cruz ‚took his tito out‛ and

told her not to tell anybody and ‚not to bite his tito.‛ Child

explained that Cruz directed her to suck his penis ‚like a 

popsicle.‛ She reiterated that Cruz ‚put his tito in my mouth‛ 

and then her mother ‚walked in the door and she saw.‛

¶7 Before trial, the State moved for the admission of out-ofcourt statements by Child for presentation to the jury, and that 

the testimony of Child at trial be taken outside of the courtroom 

setting. The State sought to admit only the interview from the

second CJC interview. Cruz opposed the State’s motion and 

argued in the alternative that the court should show both 

interviews to the jury. The trial court ruled that the testimony 

was sufficiently reliable and trustworthy under rule 15.5 of the 

Utah Rules of Criminal Procedure and admitted both interviews 

into evidence. The State requested that the jury be allowed to 

take the videotaped interviews into the jury room during 

deliberations. Cruz objected, but the court allowed the video 

recordings into the jury room.

¶8 At trial, the jury heard both interviews with concurrent 

translation of the Spanish portions. In the first CJC interview the 

detective asked Child whether the alleged abuse happened ‚one 

time or more than one time,‛ and Child responded that it had 

happened before ‚when *her+ mom would work.‛ When the 

detective asked ‚Every time?‛ Child provided a nonverbal 

response. The State requested that the record reflect ‚that when 

he asks the question ‘every time,’ the nonverbal answer in the 

video is a nod, an affirmative nod.‛ The court granted the State’s 

request and ‚indicate*d+ for the record that the child moved her 

head up and down.‛ When the detective asked if anything else 

happened, the court paused the video and stated, ‚[W]e need to 

reflect what happened.‛ At this point, Cruz objected and 
State v. Cruz

20140994-CA 4 2016 UT App 234

requested a hearing outside of the presence of the jury. The court 

finished playing the interview and excused the jury.

¶9 Cruz objected to the State’s motion on the ground that 

‚the jury could see for themselves if *there was+ nodding.‛ After 

the State presented its next witness, but before the court played 

the second CJC interview, the court instructed the jury not to 

consider its earlier statement about the head nod. The court 

stated that it did not ‚want *the jury+ to consider *the court’s+ 

statement about the child moving her head up and down for any 

purpose.‛ The court instructed the jury to ‚evaluate for *itself+ 

whether or not the child did anything and what purpose you are 

going to apply if any to her conduct in response to that 

question . . . . Consider only what you saw on the video.‛ Cruz 

cross-examined Child after the court played both interviews.

¶10 After the jury had deliberated for about 18 hours, the trial 

court gave a modified Allen instruction at the joint request of 

defense counsel and the State. See State v. Ginter, 2013 UT App 

92, ¶ 4 n.2, 300 P.3d 1278 (defining an Allen instruction as a 

supplemental jury instructions to help a deadlocked jury reach a 

unanimous verdict). The trial court then asked the jury whether 

there was ‚any reasonable likelihood that continued deliberation 

[would] result in a unanimous verdict on any counts that you 

have not yet as a group been able to agree upon.‛ The court 

asked the jury to return a response to the question ‚in a 

relatively short period of time.‛ Thirty minutes later, the jury

returned and informed the court that it had reached a

unanimous verdict on some counts and that further 

deliberations would not be productive on the others. The jury 

convicted Cruz of two counts of sodomy on a child and 

aggravated kidnapping. It reached no verdict on four of eight 

counts and acquitted Cruz on one count.

3

 

3. After trial, Cruz’s conviction for aggravated kidnapping 

merged with his two counts of sodomy on a child.
State v. Cruz

20140994-CA 5 2016 UT App 234

ISSUES

¶11 Cruz raises five issues on appeal. First, he contends that 

the trial court erred when it allowed the Children’s Justice 

Center video recordings into the jury room during deliberations. 

¶12 Second, Cruz contends that the trial court erred by 

instructing the jury to assume that a non-verbal cue Child made 

in the first CJC interview constituted an affirmative response.

¶13 Third, Cruz contends that the trial court erred in granting 

the joint request of Cruz and the State to give the jury a modified

Allen charge after the jury deliberated for over 18 hours.

¶14 Fourth, Cruz contends that the State presented 

insufficient evidence to convict Cruz of sodomy on a child.

¶15 Fifth, Cruz contends that the cumulative error doctrine 

requires reversal.

ANALYSIS

I. CJC Video Recordings

¶16 Cruz ‚makes no wholesale constitutional attack on the 

admission of *Child’s+ videotaped interviews.‛ Rather, he 

‚primarily objects to . . . the district court’s determination that 

*Child’s+ uncross-examined hearsay testimony in the videotapes 

was so reliable and trustworthy that it should also be provided

to the jury in deliberation.‛ Cruz’s challenge to the video 

recordings comprises three subpoints: (1) Child’s statements 

were not reliable and trustworthy under rule 15.5 of the Utah 

Rules of Criminal Procedure; (2) he could not cross-examine 

Child until trial, over a year after the recorded interviews; and 

(3) due to the interviews’ unreliability and Cruz’s inability to 

cross-examine Child, the video recordings should not have 

followed the jury into deliberations. Whether the trial court 

correctly admitted the videotaped interviews into evidence 
State v. Cruz

20140994-CA 6 2016 UT App 234

pursuant to rule 15.5 is a question of law that we review for 

correctness. State v. Snyder, 932 P.2d 120, 125 (Utah Ct. App. 

1997).

A. Reliability of Child’s Testimony

¶17 Under rule 15.5 of the Utah Rules of Criminal Procedure, 

an oral statement of a child or other witness younger than 14 

years of age that was recorded before charges were filed, ‚upon 

motion and for good cause shown,‛ is admissible in court if 

eight enumerated conditions are met. Utah R. Crim. P. 15.5(a). 

One of these conditions requires the court to view the recording 

and determine ‚that it is sufficiently reliable and trustworthy 

and that the interest of justice will best be served by admission 

of the statement into evidence.‛ Id. R. 15.5(a)(8).

¶18 On appeal, Cruz contends that ‚the district court’s 

findings on the reliability and trustworthiness of the videotapes 

are truncated and should be reversed for clear error.‛ He 

maintains that several factors weighed against reliability, such as 

Child’s age and maturity; the ‚nature and duration of [the]

abuse,‛ including Child’s exposure to adult sexual conduct in

the home; lack of detail; and evidence of ‚coaching.‛

¶19 The State responds that in the trial court, Cruz invited the 

error he now alleges on appeal, that Cruz fails to marshal the 

evidence supporting the trial court’s determination, and that in 

any event the trial court’s ruling finds support in the evidence.

¶20 Our supreme court held in State v. Winfield that ‚under 

the doctrine of invited error, we have declined to engage in even 

plain error review when counsel, either by statement or act, 

affirmatively represented to the [trial] court that he or she had 

no objection to the [proceedings+.‛ 2006 UT 4, ¶ 14, 128 P.3d 1171 

(alterations in original) (citation and internal quotation marks 

omitted); accord State v. Pinder, 2005 UT 15, ¶ 62, 114 P.3d 551; 

State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742. The court 

added a gloss to that rule in State v. McNeil, 2016 UT 3, 365 P.3d 

699. There, after objecting to certain evidence on hearsay 
State v. Cruz

20140994-CA 7 2016 UT App 234

grounds and discussing the issue with the trial court, counsel 

acknowledged, ‚Okay, it’s not hearsay.‛ Id. ¶ 22. The supreme 

court rejected the State’s invited error argument on the ground 

that counsel had not conceded the evidence was not hearsay 

‚until *after+ the trial court insisted that the detective’s testimony 

was not hearsay.‛ Id. The trial court’s interpretation of the issue 

thus ‚was not invited by‛ defense counsel. Id. ¶ 23 (citation and 

internal quotation marks omitted). Reading Winfield and McNeil

together, we conclude that a party who withdraws an objection 

in the face of the court’s insistence that the objection lacks merit, 

and thereafter agrees with the court’s conclusion, does not invite 

any resulting error; but a party who, without having objected to 

a proposed course of action, affirmatively represents that they 

have no objection to it, invites any resulting error.

¶21 Here, Cruz invited the alleged error. At no point did he 

object on the ground he now asserts on appeal—that the court 

erred in finding the recording ‚sufficiently reliable and 

trustworthy.‛ Cruz lodged two objections below. First, he 

objected to the supreme court’s interpretation of rule 15.5(a) in 

State v. Nguyen, 2012 UT 80, 293 P.3d 236. He objected to the 

supreme court’s inclusion of a ‚good cause‛ requirement in rule 

15.5(a)—in his words, the court ‚just ignored the language and 

interpreted it different.‛ See id. ¶ 11 (holding that a separate 

showing of good cause to admit a recorded statement is not 

required under rule 15.5, but that good cause is established 

when the court considers all the factors in the rule and 

determines that the recorded statement is accurate, reliable, and 

trustworthy, and that its admission is in the interest of justice). 

Cruz’s solution was to ‚go back and do the rule better so that we 

all understand the same English and get rid of the good cause 

showing.‛ Cruz does not renew this argument on appeal.

¶22 After discussing the good cause issue, the trial court 

proposed to make findings on the eight conditions listed in rule 

15.5, and Cruz stipulated to those conditions:
State v. Cruz

20140994-CA 8 2016 UT App 234

THE COURT: So let’s go through the 

elements of 15.5 and see—

*DEFENSE COUNSEL+: I’ll stipulate to 

those.

Nevertheless, the court made findings on each of the eight rule 

15.5 conditions. After the court had devoted considerable time to 

the findings, Cruz interrupted:

[DEFENSE COUNSEL+: Can I say this. I’m 

not sure that you need to make all these temporary 

findings, because I don’t agree with half the things 

you’re saying.

THE COURT: Well, you don’t have to agree 

with anything I’m saying.

*DEFENSE COUNSEL+: I don’t, but what 

I’m saying—

THE COURT: [Counsel], let me make my 

findings.

[DEFENSE COUNSEL]: Let me ask—but I 

don’t think you have to be that detailed about—

because you’re almost saying that in the long run 

it’s going to be the jury that decides if there’s 

something inconsistent. So I think all you need to 

determine—I don’t think you need to get into that.

But the court continued making its findings. At one point, Cruz’s 

defense counsel stated that he did not agree with the court’s 

finding that Child’s testimony did not contain inconsistencies, 

‚but,‛ he continued, ‚I don’t think that you need to go there to 

be able to make it admissible.‛ The court continued to make 

detailed findings based on the specifics of Child’s statements. 

When the court finished, defense counsel stated, ‚Let me tell 
State v. Cruz

20140994-CA 9 2016 UT App 234

you, I don’t really care about the video coming in, and I don’t 

care whether it’s close*d circuit live testimony+ or *a recording 

played] in court. So I’m not going to object to that.‛

¶23 But he added, ‚Okay, let me just tell you what my issues 

are.‛ He first expressed concern that the supreme court had 

ignored rule 15.5’s ‚good cause‛ requirement in Nguyen. Then

he insisted that the prosecutor ‚only get[s] one shot‛: ‚If you 

play the video, you can’t put the victim up there and ask her all 

the things that you already got in the video, because the video’s 

your one shot.‛ With that proviso, he stated, ‚I have no problem 

with the video coming in.‛

¶24 We agree with the State that Cruz invited the error he 

alleges on appeal. He never objected on the ground he now

asserts on appeal and he repeatedly assured the trial court that 

he did not object to the CJC video recordings being played at 

trial. And although he now describes the court’s findings as 

‚truncated,‛ in the trial court he argued that they were 

unnecessarily detailed.

4

 

4. In any event, the trial court’s findings are sufficient. The judge 

explained that he had viewed the videos twice and that he 

himself speaks Spanish. He found that the detective explained to 

Child the importance of telling the truth; that Child understood 

that she could answer ‚I don’t know‛ to any question; that the 

detective explained to Child that she ‚could say good or bad 

things‛; that the detective employed open-ended questions 

except to summarize or recap; that the detective ‚didn’t plant 

anything in the child’s mind except to ask a question in the 

alternative, such as ‘Were you kneeling or were you laying or 

some other form on the floor or on the bed?’‛; that the detective 

‚didn’t put words in her mouth‛; that Child ‚on her own‛ 

described the charged conduct; that ‚there was internal 

consistency in her statements‛; that Child’s testimony was 

‚linear and logical‛; that Child used verbal formulations that a 

(continued<)
State v. Cruz

20140994-CA 10 2016 UT App 234

B. Cruz’s Rights to Cross-Examination and Confrontation

¶25 On appeal, Cruz argues that the trial court’s decision to 

provide the video recordings to the jury for deliberation 

‚essentially denied Cruz both the rights of confrontation and fair 

trial.‛ At trial Cruz noted that the recordings were made nearly a 

year earlier and that the delay between Child’s statement and 

trial limited his ability to cross-examine her. Because a child’s 

‚understanding of time is difficult,‛ he argued, it is ‚extremely 

difficult to cross-examine a child that’s five or six years old about 

something that happened a year ago.‛ The prosecutor responded 

that, although counsel’s concern applied with greater force to 

children, his contention was ‚true for every human witness 

where a statement is recorded sometime in advance, shortly after 

events occur, but well in advance of trial.‛ The court stated that 

it would proceed as provided in rule 15.5 of the Utah Rules of 

Criminal Procedure, ‚applying *rule 15.5+ as I believe the law 

requires me to.‛

¶26 First, to the extent Cruz relies on the Confrontation 

Clause, his argument fails. As we have observed, the Supreme 

Court made clear ‚that there is no Confrontation Clause 

violation when the declarant appears for cross-examination at 

trial.‛ State v. Rhinehart, 2006 UT App 517, ¶ 26 n.7, 153 P.3d 830

(citing Crawford v. Washington, 541 U.S. 36 (2004)). The 

Confrontation Clause places no constraints at all on the use of a 

prior testimonial statement ‚‘so long as the declarant is present 

 

(<continued)

sexually inexperienced child would be unlikely to use; that her 

descriptions included plausible details concerning her clothing; 

that Child’s descriptions did not appear to be grandiose, 

exaggerated, or bizarre; and that Child did not appear to be 

coached or to be mimicking others’ words. We cannot agree with 

Cruz that these findings are clearly erroneous or that they fail to 

support a finding of reliability. On the contrary, we consider 

them exemplary.
State v. Cruz

20140994-CA 11 2016 UT App 234

at trial to defend or explain it.’‛ Id. (quoting Crawford, 541 U.S. at

59 n.9). Here, Child was present at trial to defend or explain her 

recorded statements.

¶27 In arguing that he was prevented from adequately crossexamining Child, Cruz quotes at length from State v. Villareal, 

889 P.2d 419 (Utah 1995). But that decision does not aid his case. 

In Villareal, the prosecutor introduced the confession of a coperpetrator through a police officer. Id. at 423. The coperpetrator took the stand but was ‚wholly nonresponsive‛ 

when Villareal attempted to cross-examine him about the 

charged conduct. Id. at 425. Our supreme court held, under preCrawford case law, that Villareal’s Confrontation Clause rights 

were violated but that the violation was harmless beyond a 

reasonable doubt in light of other trial evidence. Id. at 423–26.

¶28 In the present case, Cruz’s attempts at cross-examination 

were not stonewalled by a wholly unresponsive witness. On the 

contrary, Cruz did not attempt to cross-examine Child about the 

charged conduct. Instead, he conducted a very brief crossexamination that did not include questions about the allegations 

of abuse. Child testified on cross-examination only that a 

babysitter tended to her and her sisters when Mother worked 

and that Mother did not go over her testimony with her.

¶29 This issue is controlled by State v. Nelson, 725 P.2d 1353 

(Utah 1986). In Nelson, as here, ‚the State fully opened the door 

for the defense on cross-examination to question the child 

concerning the substance‛ of her interview. Id. at 1357. ‚Yet on

cross-examination, the defense made no attempt to follow up on 

the prosecution’s opening.‛ Id. Our supreme court concluded 

that defense counsel ‚may have elected to forego crossexamination regarding the incident, but that does not mean that 

the opportunity was not available.‛ Id. ‚It is the opportunity to 

cross-examine that is guaranteed by the state and federal 

constitutions, not whether that opportunity is exercised. Under 

the circumstances, we find no denial of the right of 

confrontation.‛ Id.; accord State v. Pham, 2016 UT App 105, ¶ 11, 

372 P.3d 734. The same is true here. In his briefing, Cruz 
State v. Cruz

20140994-CA 12 2016 UT App 234

repeatedly refers to Child’s ‚uncross-examined videotaped 

interviews.‛ But he chose not to cross-examine her about the 

incidents. And as Nelson makes clear, one who chooses not to 

cross-examine a witness cannot complain that he was denied his 

right to cross-examine or confront the witness. Id.

¶30 Cruz also contends that he was denied his right to crossexamine Child because her ‚videotaped interviews were not 

subjected to cross-examination until more than one year later.‛ 

Cruz repeatedly refers to the fact that he had no opportunity to 

cross-examine Child in the approximately one year between her 

CJC interviews and trial. But he does not assert or cite any legal 

authority that would support a claim that the one-year delay 

denied him a speedy trial or otherwise constituted error. 

Accordingly he has not carried his burden of persuasion on 

appeal. See Utah R. App. P. 24(a)(9); State v. Hawkins, 2016 UT 

App 9, ¶ 60, 366 P.3d 884.

¶31 Cruz also contends that ‚although *Child+ ‘testified’ at 

trial, it was impossible for his defense counsel to effectively 

cross-examine her regarding, inter alia, her non-responsive head 

movements.‛ Consequently, Cruz asserts he was denied ‚the 

right to effective cross-examination on a matter central to guilt or 

innocence.‛ But Cruz points to no ruling of the trial court that 

prevented him from cross-examining Child on any relevant 

question. Indeed, he never attempted to cross-examine her about 

her head movements, her allegations of abuse, or any other 

subject other than the two described above.5

¶32 Accordingly, Cruz has demonstrated no violation of his 

right to confront or cross-examine Child.

 

5. As we discuss below, see infra ¶ 58, Child’s nonresponsive 

head movements were irrelevant to Cruz’s guilt or innocence 

because they pertained to allegations of abuse for which Cruz 

was not convicted.
State v. Cruz

20140994-CA 13 2016 UT App 234

C. Jury’s Access to the CJC Interviews During Deliberations

1. Admissibility of the video recordings

¶33 Cruz contends that the trial court erred when it allowed 

Child’s ‚videotaped statements to go into the jury deliberation 

room.‛ At trial defense counsel objected that the jury should not 

have the videos during deliberations ‚as a matter of due process 

and fairness.‛ He argued that the videos were testimony, not 

exhibits, and thus should not be made available during

deliberations. He argued further that ‚if I have a cross 

examination of [Child], my cross examination doesn’t get to go 

to the jury room.‛ The prosecutor argued that the video 

recordings were exhibits, and ‚exhibits go to the jury.‛ The trial 

court ruled that the jury could have the videos during 

deliberations.

¶34 Cruz now argues that, ‚just as portions of transcripts of 

testimony [are] not permitted to go to the jury room so as not to 

over-emphasize the testimony of the witness,‛ recorded CJC

interviews ‚should also not be permitted in the jury room.‛ 

Although Cruz references ‚fairness‛ and the Confrontation 

Clause throughout his argument, his analysis relies principally 

on rule 17 of the Utah Rules of Criminal Procedure. ‚*T+he 

interpretation of a rule of procedure is a question of law that we 

review for correctness.‛ State v. Bosh, 2011 UT 60, ¶ 5, 266 P.3d 

788 (citation and internal quotation marks omitted).

¶35 The current version of rule 17 permits the jury to take

most exhibits into the deliberations:

Upon retiring for deliberation, the jury may take 

with them the instructions of the court and all 

exhibits which have been received as evidence, 

except exhibits that should not, in the opinion of 

the court, be in the possession of the jury, such as 

exhibits of unusual size, weapons or contraband.
State v. Cruz

20140994-CA 14 2016 UT App 234

Utah R. Crim. P. 17(l). Our supreme court has explained that 

‚section (l) of rule 17 limits the material the jury may have with 

them during deliberation to ‘the instructions of the court and all 

exhibits which have been received as evidence.’‛ Allen v. Friel, 

2008 UT 56, ¶ 32, 194 P.3d 903 (quoting Utah R. Crim. P. 17(l)). 

The supreme court has also stated that this rule ‚indicates that 

exhibits which are testimonial in nature should not be given to 

the jury during its deliberations.‛ State v. Carter, 888 P.2d 629, 

643 (Utah 1995), superseded by statute on other grounds as recognized 

by Archuleta v. Galetka, 2011 UT 73, ¶ 70, 267 P.3d 232. The court 

thus held in Carter that in a capital penalty phase ‚the transcript 

of all [prior] testimony . . . is admissible in oral form only and 

must not be introduced into evidence as an exhibit or given to 

the jury to use during deliberation.‛ Id. (alteration in original)

(citation and internal quotation marks omitted).

¶36 The law has ‚always excluded depositions and written 

testimony from being carried from the bar by the jury.‛ State v. 

Solomon, 87 P.2d 807, 811 (Utah 1939).6 ‚A written instrument, 

made an exhibit in the [case] but not consisting of testimony of a 

witness in the case, may of course be taken to the jury room the 

same as maps, diagrams, and other exhibits. But the testimony of 

 

6. Cruz relies on an earlier version of the rule cited in State v. 

Carter, 888 P.2d 629 (Utah 1995). That version stated, ‚Upon 

retiring for deliberation, the jury may take with them the 

instructions of the court and all exhibits and papers which have 

been received as evidence, except depositions . . . .’‛ Id. at 643 

(omission in original) (emphasis omitted) (quoting Utah R. Crim. 

P. 17(k) (1995)). The advisory committee note to the current rule 

explains why the reference to depositions was deleted: ‚The 

committee recommends removing depositions from the 

paragraph not in order to permit the jurors to have depositions 

but to recognize that depositions are not evidence. Depositions 

read into evidence will be treated as any other oral testimony.‛ 

Utah R. Crim. P. 17 advisory committee note.
State v. Cruz

20140994-CA 15 2016 UT App 234

a witness is in a different category.‛ Id. The court explained that 

the rationale for the rule sought to deny written evidence an

‚undue advantage‛:

It may often happen that the testimony on one side 

is oral from witnesses produced before the jury, 

while the testimony for the other side on essential 

matters is in the form of depositions or in the 

transcript from testimony at a previous hearing. If 

the hearing lasts for any length of time and the jury 

takes the depositions or transcript to be read and 

discussed while the oral evidence contra has in a 

measure faded from the memory of the jurors, it is 

obvious that the side sustained by written evidence 

is given an undue advantage. The law does not 

permit depositions or witnesses to go to the jury 

room. Why should a witness be permitted to go 

there in the form of written testimony?

Id. The supreme court reaffirmed this rule and rationale in State 

v. Davis, 689 P.2d 5, 15 (Utah 1984), as we observed in Shoreline 

Development Inc. v. Utah County, 835 P.2d 207, 210 n.6 (Utah Ct. 

App. 1992). Cf. 2 Handbook of Federal Evidence § 403:2 (7th ed.

2016) (stating that federal courts are reluctant to send into the 

jury room recorded testimony given at a trial, including 

videotape recordings, tape recordings, and transcripts of 

testimony); 2 McCormick on Evidence § 220 (7th ed. 2016) (stating 

that writings and recordings that are testimonial in nature are 

typically not taken in with the jury, because courts view them as 

simply a different form of testimony that ‚should not be unduly 

emphasized over oral testimony in the case‛).

¶37 Here, the State argues that the video recordings were 

exhibits and therefore were properly allowed into the jury room; 

Cruz argues that the video recordings are testimonial in nature 

and thus should not have been allowed into the jury room. We 

agree with Cruz.
State v. Cruz

20140994-CA 16 2016 UT App 234

¶38 Our courts have described a video recording of a child’s 

police interview as ‚recorded testimony,‛ State v. Nguyen, 2012 

UT 80, ¶ 12, 293 P.3d 236, and as ‚video testimony,‛ In re S.A.K., 

2003 UT App 87, ¶ 5, 67 P.3d 1037. A recording of a child’s 

interview taken by police for the purpose of prosecuting crime, 

which is then introduced at trial and subjected to live crossexamination, constitutes, for purposes of this rule, testimony—

or, at the very least, falls within the category of ‚exhibits which 

are testimonial in nature‛ and thus ‚should not be given to the 

jury during its deliberations.‛ Carter, 888 P.2d at 643.7

¶39 The concerns expressed by the Solomon court 77 years ago 

about ‚written testimony‛ apply with equal force to video 

recorded testimony. Whether a statement is recorded on paper,

on magnetic tape, or on digital media, the same rule applies. A 

video recording of this type poses the same danger of undue 

emphasis as would the transcript of the witness’s live trial 

testimony. Accordingly, the rationale for excluding written 

records of oral testimony from the jury deliberations applies 

with at least equal force to video records of oral testimony or its 

equivalent. As the New Jersey Supreme Court noted, ‚replay of 

a video recording is tantamount to having the witness testify a 

second time.‛ State v. A.R., 65 A.3d 818, 829 (N.J. 2013). ‚The 

video recording is the functional equivalent of a live witness, 

and can be particularly persuasive.‛ Id. (citation omitted). That 

court concluded that ‚under no circumstances shall the jury 

have unfettered access to audio- or video-recorded statements in 

 

7. There can be little doubt that a child’s video-recorded 

statement, given under questioning from a police officer in 

anticipation of criminal prosecution, is classified as testimonial 

for purposes of the federal Confrontation Clause. See State v. 

Bentley, 739 N.W.2d 296, 299–302 (Iowa 2007) (collecting cases); 

State v. Blue, 2006 ND 134, ¶¶ 8–16, 717 N.W.2d 558 (collecting 

cases); Coronado v. State, 351 S.W.3d 315, 324 n.52 (Tex. Crim. 

App. 2011) (collecting cases).
State v. Cruz

20140994-CA 17 2016 UT App 234

the jury room during deliberations. Replay in open court permits 

the required record of the replay to be made.‛ Id.

¶40 We emphasize that this rule does not apply to all video 

recordings; many video recordings shown in court are not 

testimonial in nature and so would ordinarily be permitted in 

the jury room unless they ‚should not, in the opinion of the 

court, be in the possession of the jury.‛ Utah R. Crim. P. 17(l).

¶41 Accordingly, we hold that the trial court erred in sending

the video recordings of the CJC interviews into the jury room 

during deliberations. But of course, not every trial error requires 

reversal.

2. Prejudice

¶42 ‚Any error, defect, irregularity or variance which does 

not affect the substantial rights of a party shall be disregarded.‛ 

Id. R. 30(a). Thus, errors that ‚are sufficiently inconsequential 

that we conclude there is no reasonable likelihood that the error 

affected the outcome of the proceedings‛ are harmless and do 

not require reversal. State v. Verde, 770 P.2d 116, 120 (Utah 1989). 

A ‚‘reasonable likelihood’‛ requires a ‚‘probability sufficient to 

undermine confidence in the outcome.’‛ State v. Knight, 734 P.2d 

913, 920 (Utah 1987) (quoting Strickland v. Washington, 466 U.S. 

668, 694 (1984)). In this case, the relevant ‚outcome‛ is Cruz’s 

two convictions, both of which arose from his November 9

conduct.

¶43 The jury requested interpreters during deliberations, 

suggesting that they may have viewed the CJC video recordings.

But even so, we see no reasonable likelihood that allowing the 

CJC video recordings into jury deliberations affected the 

outcome of Cruz’s trial, for several reasons.

¶44 First, this case does not present the danger of overemphasis described in Solomon, where the party benefitting from

recorded testimony enjoys an undue advantage over the party 

sustained by oral testimony. At trial, Cruz presented no 
State v. Cruz

20140994-CA 18 2016 UT App 234

testimony directly contradicting Child’s account, nor did he 

cross-examine her about her allegations of abuse. Rather, he 

called an expert in child-interviewing techniques who opined 

that Child’s ‚false beliefs‛ had been instilled by her mother. 

Consequently, this was not a she-said/he-said case; it was a shesaid/but-she-was-coached case. Thus, both sides had an interest 

in the jury’s scrutinizing Child’s interviews. Indeed, in closing

argument defense counsel stated, ‚You can watch the 

video[s] . . . . You can go and watch them. This is not necessarily

a requirement, but I submit to you it should be.‛ We understand 

that once a court has ruled counsel must make the best of the 

situation. But as we read it, counsel’s statement goes beyond 

damage control. And his tactical choice makes sense given the 

defense strategy of claiming that Child was coached.

¶45 Second, the jury seems in fact not to have overemphasized the CJC interviews. Cruz was charged with two 

counts of sodomy on a child and one count of aggravated 

kidnapping based on his November 9 conduct and five other sex 

crimes against Child based on earlier alleged conduct. The three

November 9 charges were partially corroborated by Mother’s 

account of walking in on Cruz and Child. See infra ¶ 48. After 

deliberating for 18 hours, the jury convicted Cruz of only the 

three November 9 counts and either acquitted him or 

deadlocked on the remaining charges. This mixed verdict 

suggests that the jury scrupulously sifted the evidence without 

undue emphasis on the CJC video recordings.

¶46 Finally, we agree with the State that the graphic nature of 

Child’s description of the November 9 events guaranteed that 

jurors would remember it—perhaps despite their best efforts—

with or without rewatching the CJC video recordings. Child 

clearly described oral sodomy. In fact, she quoted Cruz as telling 

her ‚not to bite it‛ but to suck it ‚like a popsicle.‛

¶47 Cruz responds with several arguments. He argues that 

Child might have parroted words she heard or described 

conduct she witnessed while sleeping in Mother’s bedroom, 

where Mother and Cruz engaged in sexual conduct after the 
State v. Cruz

20140994-CA 19 2016 UT App 234

children were—they believed—asleep. Cruz was free to, but did 

not, cross-examine Child concerning this theory. He did argue it 

in closing. But Cruz has not explained why a second look at the 

CJC video recordings would make the difference between the 

jury accepting or rejecting this theory.

¶48 Cruz also asserts that, absent medical evidence of abuse, 

‚the State’s case clearly was not a ‘slam dunk.’‛ We agree with 

the assumption of this argument—that, when ‚assessing an

error’s harmfulness, we look, in part, to ‘the overall strength of 

the State’s case.’‛ State v. Benson, 2014 UT App 92, ¶ 30, 325 P.3d 

855 (quoting State v. Hamilton, 827 P.2d 232, 240 (Utah 1992)). We 

also agree that no medical evidence corroborated Child’s 

account of events on November 9. But other evidence did: 

Mother described opening her bedroom door to see Cruz lying 

on the bed with his pants unzipped and ‚wide open,‛ and Child 

lying next to him near his hips. Mother testified that she pulled 

Child into the bathroom where Child, shaky and pale, told her 

that Cruz ‚put his *penis+ in my mouth, but I’m afraid.‛ Cruz 

denied that anything happened and questioned why Child 

would say such a thing. But Child never changed her story. 

Further, the doctor who examined Child testified at trial and 

explained that presenting without ‚evidence of injuries . . . is not 

terribly surprising.‛ Given these and other record facts, we see 

no reasonable likelihood that the prosecution’s case was so 

tenuous that not allowing the CJC video recordings into the jury 

room would have resulted in a more favorable result for Cruz.

¶49 In sum, Cruz has not shown a reasonable likelihood that 

the trial court’s error ‚affected the outcome of the proceedings.‛

See State v. Verde, 770 P.2d 116, 120 (Utah 1989).

II. The Head Gesture

¶50 Cruz contends that the trial court erred when it stated in 

connection with one portion of the video recording, ‚I’ll indicate 

for the record that the child moved her head up and down.‛ 

Cruz ‚concedes that the district court attempted to alleviate the 

impact of its erroneous instruction.‛ But Cruz further contends 
State v. Cruz

20140994-CA 20 2016 UT App 234

that the trial court’s comment was ‚so prejudicial and 

devastating . . . as to vitiate the mitigating effect of the court’s 

curative instruction.‛ (Citing State v. Harmon, 956 P.2d 262, 273 

(Utah 1998).)

¶51 The State counters that ‚by affirmatively stating that he 

did not object to making the record as the prosecutor proffered,

[Cruz] invited the trial court into the very error he now 

complains of.‛ The State also argues that Cruz ‚affirmatively led 

the trial court into believing that the court’s curative instruction 

was sufficient to cure any problems with describing [Child’s+ 

response.‛

¶52 We conclude that Cruz cannot prevail because any 

possible error was harmless.8 Whether the appellant asserts 

preserved error or plain error—that is, whether the appellant 

claims to have objected to the alleged error or claims that the 

alleged error was so obvious that no objection was required—the 

appellant must demonstrate prejudice or harm to prevail. See 

State v. McNeil, 2016 UT 3, ¶ 25 n.3, 365 P.3d 699 (‚The prejudice 

inquiry is sometimes referred to as a harmfulness inquiry.‛).

‚An error is harmful if, absent the error, there is a reasonable 

likelihood of a more favorable outcome for the appellant, or 

phrased differently, [if] our confidence in the verdict . . . is 

undermined.‛ State v. Maestas, 2012 UT 46, ¶ 37, 299 P.3d 892 

(alteration in original) (citation and internal quotation marks 

omitted).

¶53 On appeal Cruz contends that the court erred by making 

a record of Child’s nonverbal response and that the court’s 

curative instruction was ineffective to cure the error. We 

 

8. Our review of the record satisfies us that Cruz did preserve his 

claim. Although it took two tries for Cruz to object to the court’s 

record of Child’s nonverbal cues, Cruz did successfully object to 

the court’s action.
State v. Cruz

20140994-CA 21 2016 UT App 234

conclude that the court’s statement resulted in no prejudice for 

four reasons.

¶54 First, the prosecutor asked that ‚the record reflect‛ 

Child’s head motion. Trial counsel frequently ask that the 

written record reflect a fact visible to those at trial but not 

captured by the written record. For example, in State v. Simmons, 

759 P.2d 1152 (Utah 1988), a child sexual abuse case, the 

prosecutor requested, ‚Let the record reflect these are 

anatomically correct dolls.‛ Id. at 1160; see also In re D.D., 2016 

UT App 148, ¶ 3, 377 P.3d 706 (per curiam) (‚*I+f I could just for 

the record reflect that [Father] is here, he . . . showed up when 

the Court did announce and came through the door.‛ 

(Alterations and omission in original)). Counsel make such 

requests with an eye toward ensuring that the record on appeal 

accurately reflects the nature of the evidence presented at trial. 

Such housekeeping requests are directed to the appellate court, 

not the jury.

¶55 Second, the prosecution’s request conveyed no 

information to the jury that it did not already possess. The 

prosecutor requested that ‚the record reflect that when he asks 

the question ‘every time,’ the nonverbal answer in the video is a 

nod.‛ But the jury could observe for itself that when the 

detective asked a particular question, Child responded with a 

nod. Even Cruz does not contend that the verbal description 

mischaracterized Child’s head motion. We see no danger that 

verbalizing what the jury had just seen posed any risk of 

skewing the jury’s verdict.

¶56 Third, the court gave a curative instruction. Curative 

instructions ‚are a settled and necessary feature of our judicial 

process and one of the most important tools by which a court 

may remedy errors at trial.‛ State v. Harmon, 956 P.2d 262, 271 

(Utah 1998). ‚In the absence of the appearance of something 

persuasive to the contrary, we assume that the jurors were 

conscientious in performing . . . their duty, and that they 

followed the instructions of the court.‛ State v. Curtis, 2013 UT 

App 287, ¶ 25, 317 P.3d 968 (omission in original) (citation and 
State v. Cruz

20140994-CA 22 2016 UT App 234

internal quotation marks omitted). Further, ‚curative 

instructions are ordinarily presumed on appeal to be effective.‛ 

Id. (citation and internal quotation marks omitted).

¶57 Cruz argues that the trial court’s curative instruction ‚was 

neither prompt nor effective.‛ However, defense counsel did not 

challenge the timing or substance of the curative instruction at 

trial. Accordingly, the timing of the instruction does not 

persuade us to depart from the usual presumption that the 

jurors ‚were conscientious in performing . . . their duty, and that 

they followed the instructions of the court.‛ See id.

¶58 Fourth, the jury acquitted Cruz of the charges in 

connection to which Child nodded her head. Cruz was charged 

with three counts relating to the November 9 events and five 

counts relating to conduct occurring before that date. Child’s 

nonverbal response—the subject of Cruz’s objection and the 

subsequent curative instruction—pertained to descriptions of the 

latter charges. The jury did not return a blanket conviction on all 

charges; they convicted Cruz of only those charges unrelated to 

Child’s nonverbal responses. This fact demonstrates that the jury 

‚was not improperly influenced‛ by the trial court’s alleged 

error and that the jury ‚took its responsibilities seriously.‛ See 

State v. Toki, 2011 UT App 293, ¶ 34, 263 P.3d 481.

¶59 For the foregoing reasons, nothing about the trial court’s 

acceding to the prosecutor’s request to make a written record of 

Child’s nodding undermines our confidence in the outcome of 

the trial. See State v. McNeil, 2016 UT 3, ¶ 27, 365 P.3d 699.

III. Allen Charge

¶60 Cruz contends that the trial court denied him ‚a fair trial 

under the Sixth Amendment by giving a premature and coercive 

Allen charge.‛9 Cruz does not challenge the wording of the 

 

9. Verdict-urging instructions are often referred to as ‚Allen

charges.‛ State v. Lactod, 761 P.2d 23, 29 (Utah Ct. App. 1988) 

(continued<)
State v. Cruz

20140994-CA 23 2016 UT App 234

instruction given. Rather, he asserts that the court erred in two 

ways: first, by giving the instruction ‚before the jury indicated it 

was actually deadlocked‛; and second, in ‚essentially *telling+ 

the jury it expected a response in a relatively short order.‛ 

Acknowledging that this claim of error is unpreserved, Cruz 

alleges plain error and ineffective assistance of counsel.

¶61 The State responds that Cruz cannot show prejudice

under either doctrine. ‚Plain error claims and ineffective 

assistance of counsel claims share a ‘common standard’ of 

prejudice.‛ State v. Redcap, 2014 UT App 10, ¶ 50, 318 P.3d 1202 

(quoting State v. Litherland, 2000 UT 76, ¶ 31 n.14, 12 P.3d 92; 

State v. Verde, 770 P.2d 116, 124 n.15 (Utah 1989)).

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

a defendant must show both ‚that counsel’s performance was 

deficient‛ and ‚that the deficient performance prejudiced the 

defense.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984); accord

State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031. Proof of 

prejudice requires a showing ‚that counsel’s errors were so 

serious as to deprive the defendant of a fair trial.‛ Strickland, 466 

U.S. at 687. ‚Failure to raise futile objections does not constitute 

ineffective assistance of counsel.‛ State v. Kelley, 2000 UT 41, 

¶ 26, 1 P.3d 546.

¶63 ‚In general, to establish the existence of plain error and to 

obtain appellate relief from an alleged error that was not 

objected to, the appellant must show the following: (i) [a]n error 

 

(<continued)

(citing Allen v. United States, 164 U.S. 492 (1896)). We have 

upheld ‚the non-coercive use of Allen charges because we 

believe such charges to be a reasonable and proper exercise of 

the court’s power to guide the jury to a fair and impartial 

verdict.‛ Id. at 30. There is ‚no prescribed ritual of words 

indicating whether the language of an Allen charge is coercive.‛ 

Id. (citation and internal quotation marks omitted).
State v. Cruz

20140994-CA 24 2016 UT App 234

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

and (iii) the error is harmful . . . .‛ State v. Dunn, 850 P.2d 1201, 

1208 (Utah 1993). An error is harmful if, due to the error, ‚our 

confidence in the verdict is undermined.‛ Id. at 1208–09. ‚If any 

one of these requirements is not met, plain error is not 

established.‛ Id. at 1209.

¶64 After 18 hours of jury deliberations, Cruz and the State 

proposed a modified Allen instruction. Cruz stated that the 

instruction did not ‚urge the verdict‛ and the State agreed.

Before issuing the instruction, the court emphasized to the jury 

that it ‚wanted to give [them] an instruction and see where 

[they] were as far as continued deliberations‛ and that the jury 

should not ‚take this in any way as an attempt to cause [them] to 

hurry [their] process‛ if they were ‚progressing towards a 

resolution.‛ The court gave a modified Allen instruction and 

posed two questions: ‚Question one, ‘Have you reached a 

unanimous verdict on any of the Counts I through VIII?’ 

Question two, ‘Is there reasonable likelihood that continued 

deliberation will result in a unanimous verdict on any counts 

that you have not yet as a group been able to unanimously agree 

upon?’‛ The court then asked the jury to ‚talk about these 

questions, [and] get back with me in a relatively short period of 

time to let us know where you are in this matter.‛

A. Timing of the Instruction

¶65 First, Cruz faults the trial court for giving the instruction 

‚before the jury indicated it was actually deadlocked.‛ The court 

‚merely observed that deliberation had gone on quite long‛—in 

fact, 18 hours. This challenge rests on the premise that giving an

Allen charge before the jury indicates that it is deadlocked 

constitutes error. But Cruz cites no authority for this premise, 

nor does it appear to be the rule. See United States v. Jones, 608 

F. App’x 822, 827 (11th Cir. 2015) (‚Our precedent does not 

require . . . an express indication of deadlock before the district 

court gives an Allen charge.‛ (omission in original) (citation and 

internal quotation marks omitted)); Government of Canal Zone v. 
State v. Cruz

20140994-CA 25 2016 UT App 234

Fears, 528 F.2d 641, 644 (5th Cir. 1976) (‚There is no requirement 

that the jury be deadlocked before [an Allen+ charge is given.‛); 

Loving v. State, 947 S.W.2d 615, 619 (Tex. App. 1997) (‚The courts 

of several states have held that the decision to give an Allen

charge does not require a finding that the jury is deadlocked.‛). 

Indeed, this court has stated that ‚trial courts will be in a ‘safe 

harbor’ in terms of appellate review if they give the ABA 

instruction before an impasse occurs.‛ State v. Harry, 2008 UT App 

224, ¶ 25, 189 P.3d 98 (emphasis added).

¶66 Cruz has not demonstrated that the court erred, much less 

obviously erred, by instructing the jury when it did. Nor has he 

demonstrated that an objection by defense counsel would have 

been anything but futile. Accordingly, this claim fails.

B. Requesting a Response ‚in a relatively short period‛

¶67 Cruz next contends that the trial court erred when it told 

the jury, according to Cruz, that it ‚wanted a decision by the jury 

‘in a relatively short period.’‛ This request, he argues, ‚was 

undoubtedly coercive.‛

¶68 This characterization of the court’s statement implies that 

it urged the jury to return a verdict in a relatively short period. 

In fact, the court emphasized that if the jury was ‚progressing 

towards a resolution,‛ it should not view the instruction ‚in any 

way as an attempt to cause you to hurry your process.‛ The 

court then asked the jury to consider two questions: (1) whether 

it had reached a unanimous verdict on any of the charges, and 

(2) whether continued deliberation would result in a unanimous 

verdict on any counts on which the jury had not yet been able to 

unanimously agree. The court added, ‚I’ll ask you to talk about 

these questions‛ and ‚get back to me in a relatively short period 

of time to let us know where you are in this matter.‛ In other 

words, the court did not ask the jury to return a verdict in a 

relatively short time. Rather, 18 hours into deliberations, the 

court asked the jury for a status report.
State v. Cruz

20140994-CA 26 2016 UT App 234

¶69 Cruz argues that this request ‚was undoubtedly 

coercive.‛ As evidence of coercion, Cruz points to the fact that 30 

minutes after receiving the court’s request, the jury ‛acquitted

Cruz on one count and deadlocked on others.‛ We disagree. 

These few facts do not demonstrate that the court’s request for a 

status report in a relatively short period conveyed ‚any 

suggestion that the jurors should surrender their individual 

views of conscience.‛ See State v. Thomas, 777 P.2d 445, 448 (Utah 

1989). This is especially so where the court explicitly told the jury 

not to consider the request ‚as an attempt to cause you to hurry 

your process.‛ 

¶70 Cruz has not demonstrated that the court erred in 

requesting that the jury return an answer to the court’s questions

within a short time, nor has he demonstrated that this request 

was coercive in any way. Therefore, his claims of plain error and 

ineffective assistance of counsel fail.

IV. Sufficiency of the Evidence

¶71 Cruz contends that the evidence at trial was insufficient to 

convict him of sodomy on a child. Cruz argues that Mother’s 

testimony lacked credibility, that Child could have reported sex 

acts she observed between Mother and Cruz, that Child’s 

physical examination was inconclusive, and that a defense 

expert testified that Mother might have planted false memories 

in Child. He also points to the fact that the jury deadlocked on 

four counts and acquitted him on one. Acknowledging that this 

claim is unpreserved, Cruz alleges plain error and ineffective 

assistance of counsel.

¶72 Even where a sufficiency claim is preserved, the 

applicable standard of review is highly deferential. In assessing a 

claim of insufficiency of the evidence, ‚we review the evidence 

and all inferences which may reasonably be drawn from it in the 

light most favorable to the verdict of the jury.‛ State v. Maestas, 

2012 UT 46, ¶ 302, 299 P.3d 892 (citation and internal quotation 

marks omitted). We reverse ‚only when the evidence, so viewed, 

is sufficiently inconclusive or inherently improbable that 
State v. Cruz

20140994-CA 27 2016 UT App 234

reasonable minds must have entertained a reasonable doubt that 

the defendant committed the crime of which he or she was 

convicted.‛ Id. (citation and internal quotation marks omitted). 

Also, ‚in reviewing the sufficiency of the evidence, we refuse to 

re-evaluate the credibility of witnesses or second-guess the jury’s 

conclusion.‛ State v. Fedorowicz, 2002 UT 67, ¶ 40, 52 P.3d 1194 

(citation and internal quotation marks omitted).

¶73 Cruz’s sufficiency claim founders under this deferential 

standard of review. Cruz was convicted on two counts of 

sodomy on a child. A person commits sodomy on a child if the 

person ‚engages in any sexual act upon or with a child who is 

under the age of 14, involving the genitals or anus of the actor or 

the child and the mouth or anus of either person, regardless of 

the sex of either participant.‛ Utah Code Ann. § 76-5-403.1 

(LexisNexis Supp. 2016).

¶74 Sex crimes are defined with great specificity and require 

commensurate specificity of proof. State v. Pullman, 2013 UT App 

168, ¶ 14, 306 P.3d 827. State v. Taylor, 2005 UT 40, 116 P.3d 360,

illustrates testimony sufficient to support a conviction for 

sodomy on a child. Id. ¶¶ 2–6. Like the child in the present case, 

the victim in Taylor was six years old on the date of the offense.

Id. ¶ 2. ‚She explained that [the defendant] offered her ‘half a 

dollar’ to ‘suck on his private,’ which she described as tasting 

like urine.‛ Id. ¶ 3. The State also introduced a note the child had 

written to her mother that read, with corrected spelling, ‚Bryan 

told me to suck on his private and I did it.‛ Id. When asked to 

pinpoint the dates and times of the acts, her answers were 

imprecise. Id. ¶ 4.

¶75 As in Taylor, the evidence here was sufficient to support 

Cruz’s convictions for sodomy upon a child. During the first CJC 

interview, Child stated that Cruz ‚put his hand on the door‛ and 

‚didn’t let me out.‛ Child said, ‚I didn’t want to do it, but he 

made me do it. He made me put my mouth on his [tito].‛ She 

also said that Cruz ‚put his tito in my mouth.‛ In the second CJC 

interview, Child explained that Cruz ‚put me up on the 

bed . . . on my knees‛ while his pants were ‚unzipped.‛ Child
State v. Cruz

20140994-CA 28 2016 UT App 234

told police that Cruz ‚took his tito out,‛ told Child ‚not to tell 

anybody,‛ and ‚not to bite his tito.‛ Child said Cruz told her to 

suck his penis ‚like a popsicle.‛ She reiterated that Cruz ‚put his 

tito in *her+ mouth‛ and then her ‚mom walked in the door and 

she saw.‛ Mother testified that she walked into the family 

bedroom and saw Cruz ‚laying down‛ on the bed, with his 

pants ‚wide open,‛ ‚unbuttoned, and the zipper was down.‛ 

Mother testified that she saw Child on the bed next to Cruz, near 

his ‚hip area.‛

¶76 Child thus described the crimes in detail, and Mother 

corroborated her account. Although Cruz points to evidence that 

might have caused the jury to question Child’s account, we

‚may not reassess the credibility or reweigh the evidence, but 

must resolve conflicts in the evidence in favor of the jury 

verdict.‛ State v. Workman, 852 P.2d 981, 984 (Utah 1993); see also

State v. Cardona-Gueton, 2012 UT App 366, ¶ 11, 291 P.3d 847 

(‚*I+t is the exclusive province of the jury to weigh the competing 

theories of the case, in light of the evidence presented and the 

reasonable inferences drawn therefrom, and to conclude which 

one they believe.‛). Based on the evidence presented at trial, we 

cannot conclude that ‚the evidence is sufficiently inconclusive or 

inherently improbable such that reasonable minds must have 

entertained a reasonable doubt that the defendant committed the 

crime for which he . . . was convicted.‛ See State v. Holgate, 2000 

UT 74, ¶ 18, 10 P.3d 346 (citation and internal quotation marks 

omitted). We thus reject Cruz’s sufficiency claim.

V. Cumulative Error

¶77 Cruz argues that ‚cumulative error warrants reversal of 

Cruz’s convictions and a new trial.‛

¶78 Under the doctrine of cumulative error or cumulative 

prejudice, ‚we will reverse only if the cumulative effect of the 

several errors undermines our confidence . . . that a fair trial was 

had.‛ State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (omission in 

original) (citation and internal quotation marks omitted); see also 

State v. Campos, 2013 UT App 213, ¶ 61, 309 P.3d 1160 (referring 
State v. Cruz

20140994-CA 29 2016 UT App 234

to ‚cumulative prejudice‛). By its nature, this doctrine has no 

application where only one error occurred. See State v. Wach, 

2001 UT 35, ¶ 37 n.4, 24 P.3d 948 (stating that ‚because this case 

involves only one erroneous for-cause ruling, *appellant’s+ 

cumulative error argument fails‛). Here, we have concluded that 

only one error occurred.10 Accordingly, the cumulative error 

doctrine has no application in this case.

CONCLUSION

¶79 For the foregoing reasons, the judgment of the trial court 

is affirmed.

 

10. In addition, with respect to Cruz’s claim based on Child’s 

head gesture, we concluded that ‚any possible error was 

harmless.‛ By this we do not mean to imply that error did occur 

or might have occurred. Furthermore, we do not believe the 

court’s statement had any effect on the verdict.