2018 UT App 21

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JOHN MARTIN CARRELL,

Appellant.

Opinion

No. 20150924-CA

Filed February 1, 2018

Third District Court, West Jordan Department

The Honorable L. Douglas Hogan

No. 141400776

Ronald J. Yengich, Attorney for Appellant

Sean D. Reyes and Jeanne B. Inouye, Attorneys

for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES

GREGORY K. ORME and KATE A. TOOMEY concurred.

HARRIS, Judge:

¶1 Defendant John Martin Carrell (Defendant) drove a 

school bus for children with special needs. A jury convicted 

Defendant of sexually abusing two of these children in 2014. 

Defendant appeals his convictions, and asks us to consider two 

arguments. First, he asserts that the jury was improperly 

instructed as to the elements and required mental states for his 

charged crimes. Second, he contends that there was insufficient 

evidence to support his convictions. We find Defendant’s

arguments unpersuasive and therefore affirm his convictions.
State v. Carrell

20150924-CA 2 2018 UT App 21

BACKGROUND

¶2 In early 2014, Defendant had been a bus driver employed 

by Canyons School District (the District) for nearly five years. At 

that time, Defendant was assigned to drive “route 250,” a bus 

route for elementary-school-aged children with special needs.

This route included two separate daily circuits, one in the 

morning and another in the afternoon. C.B. (First Victim), a fiveyear-old girl, was one of the students on Defendant’s morning 

bus route. Z.B. (Second Victim), also a five-year-old girl, was one 

of the students on Defendant’s afternoon bus route.

¶3 During the relevant time period, Defendant would 

usually pick up First Victim near her home at around 8:30 a.m. 

and drop her off at school at about 8:40 or 8:45 a.m. He would 

then pick her up at school after class ended, and drop her back 

off at home at approximately 11:00 a.m. On most mornings, only 

four or five students rode on Defendant’s morning bus route. 

Defendant would then pick up Second Victim near her home at 

11:30 a.m., take her to school, pick her up at school after class,

and then drop her back off at home by 3:00 p.m. Defendant’s 

afternoon bus route was also used by only a handful of students.

¶4 Per District policy, Defendant received training regarding 

various security and safety features of his bus, as well as training 

regarding permissible and impermissible physical interaction 

with the children. Specifically, the District informed Defendant 

that the children, while riding on the bus, were required to sit in 

“star seats,” which had seatbelt harnesses with straps across 

both shoulders and between their legs that buckled together near 

each child’s lower midsection. The District further instructed 

Defendant that it was permissible for him to help the children 

get buckled into or unbuckled out of the star seats, but that it 

was normally not necessary or permissible for Defendant to 

touch them during this process. The District also instructed 

Defendant that, in all other contexts, physical contact with 
State v. Carrell

20150924-CA 3 2018 UT App 21

children was to be kept to a minimum. For instance, it was 

permissible for a bus driver to “high-five” or “fist-bump” with 

the children, and even to accept a “side hug” if the child initiated 

it, but Defendant was aware that bus drivers were not to accept 

any other type of hug and were not allowed to initiate physical 

contact of any kind. As part of this training, Defendant also 

learned that his bus came equipped with surveillance cameras 

which began recording when the ignition key was turned on and 

would continue to record for fifteen minutes after the ignition 

was turned off. These cameras recorded many of Defendant’s

interactions with both victims.1

¶5 At the time, it was also District policy, at least for route 

250, for the students to remain on the bus in Defendant’s care, 

even after the bus had stopped at the school, until the students’ 

individual teachers came outside and physically escorted them 

from the bus. Because the bus did not always arrive at exactly 

the same time each day, and because the teachers did not always 

emerge from the school at the same time each day, the period of 

time in which the students remained on the bus under 

Defendant’s care varied each day, from just one or two minutes

to as long as eight or ten minutes. First Victim’s teacher was 

often one of the last teachers to emerge from the school, a fact 

which often resulted in First Victim (along with one other girl) 

being one of the last students on the bus in the morning.

¶6 While Defendant scrupulously followed the District

policy of keeping the students on the bus until their teachers 

retrieved them, he did not always follow the other policies. For 

 

1. Several portions of these recordings were presented as exhibits 

at trial and included in the record of this case. The recordings 

include audio, as well as visual images. We have reviewed those 

recordings prior to issuing this opinion, and some of the facts 

recited here are taken from those recordings.
State v. Carrell

20150924-CA 4 2018 UT App 21

example, he frequently helped the students unbuckle their star 

seat belts when the bus arrived at school. On several occasions 

during this unbuckling, Defendant passed by First Victim to

help unbuckle other children, saving First Victim’s unbuckling

for last. Defendant succeeded in unbuckling the other children in 

just a few seconds’ time, but routinely spent much longer—up to 

ninety seconds—unbuckling First Victim. Although the video 

footage does not always show the placement of Defendant’s 

hands, in several instances he appears to continue touching First 

Victim even after she is unbuckled—the video shows First 

Victim’s legs and shoulders visible in positions that would not 

be achievable were she still buckled in to the star seat, and 

shows that Defendant’s arms were extended down towards her 

body. In one instance, First Victim struggles to emerge from the 

seat into the aisle while Defendant blocks her progress with his 

body.

¶7 After the children were unbuckled each morning, they 

were allowed to freely move about the interior of the bus until 

their teachers came to meet them. While other students moved 

about the bus playing, First Victim often gravitated toward 

Defendant, who usually passed the time seated in the driver’s 

seat at the front of the bus. As First Victim approached him, 

Defendant often took her by the hand, shoulder, or side and 

pulled her towards him, positioning her either to sit on his lap or 

stand between his legs with her back to the other children and to 

the bus door. While First Victim and Defendant were positioned 

in this manner, Defendant’s hands often were not visible to the 

camera. However, on several occasions, the video footage shows

Defendant’s left hand positioned somewhere on the lower 

midsection of First Victim’s body, while his right hand was 

either extended towards the lower part of her body or extended 

straight out, holding her backpack at an angle that placed it 

between her body and the door of the bus. In some instances,

Defendant’s right hand can be seen cupping, resting on, or 

moving across First Victim’s buttocks, and in one instance
State v. Carrell

20150924-CA 5 2018 UT App 21

Defendant’s hand appears to be under First Victim’s skirt. In 

several instances, while Defendant’s left hand was somewhere 

out of view on or near the lower front of First Victim’s body, 

Defendant’s left shoulder can be seen moving up and down in 

short, rhythmic motions. On some occasions, Defendant moved 

his head close to First Victim’s head and can be seen touching

her face with his, apparently nuzzling or kissing her. Several 

times, after placing his left hand somewhere out of sight but 

apparently on or near the lower front of First Victim’s body, 

Defendant brought that same hand to his face and can be seen 

seemingly smelling or licking his fingers.

¶8 Whenever a teacher approached the bus to collect 

children from it, Defendant pushed First Victim away from him

so that she was standing at some distance away from him while 

the teacher was present. Often, once the teacher departed, 

Defendant pulled First Victim back towards him and again 

apparently placed his left hand somewhere on the lower front of 

her body. In one of these instances First Victim can be heard 

telling Defendant, “You’ve been pulling my pants up.”

¶9 The cameras also recorded many of Defendant’s 

interactions with Second Victim. On several occasions the video 

footage shows Defendant unbuckling Second Victim and then, 

after she was unbuckled, placing his hands on her clothed 

genitals for several seconds. In one instance, Defendant also 

placed his left hand between Second Victim’s legs and lifted her 

off the floor while holding her clothed genitals. At the time,

Second Victim was not yet verbal, but appeared to struggle 

during some of these interactions.

¶10 On April 22, 2014, while First Victim’s father was getting 

her ready for school, she remarked that she “can ride on the bus 

seat today again.” First Victim’s father asked her if the driver 

was letting her pretend to drive the bus, and she responded by 

saying “no” but said Defendant let her sit on his lap and “[made] 
State v. Carrell

20150924-CA 6 2018 UT App 21

it soft for [her].” As she said this, First Victim rubbed her crotch.

The next day, First Victim’s father raised the subject again and 

asked her to clarify what she did when she sat on the bus seat. In 

response, First Victim once more rubbed her crotch and said,

“Does that feel good?” After this conversation, First Victim’s 

father called the District and informed Defendant’s supervisor 

that he was concerned that Defendant might be sexually abusing 

his daughter.

¶11 The District then placed Defendant on administrative 

leave, obtained the video footage from Defendant’s bus, and 

referred the matter to the police. On May 1, 2014, after the police 

had reviewed the video footage pertaining to First Victim, a 

detective interviewed her. During this interview, First Victim 

was largely unresponsive to the detective’s questions. She was 

quiet, did not make eye contact, looked down at her hands, and 

responded in the negative when asked if she knew why she was 

being interviewed. When prompted that she was being 

interviewed because her father said something might have 

happened to her, First Victim responded by saying, “I’ve got a 

sore throat.” Despite multiple attempts to rephrase the question, 

First Victim continued to remain quiet, to refuse to make eye 

contact, and to state that she did not know why she was being 

interviewed. After the detective pressed the issue several times, 

First Victim finally said that Defendant sometimes kissed her on 

the bare skin of her upper chest. She provided no further 

relevant information to the detective at this time. Following this 

interview, and after reviewing the video footage, the State

charged Defendant with 23 counts of aggravated sexual abuse of 

a child for his interactions with First Victim.

¶12 First Victim began meeting with a therapist. During 

therapy, First Victim was more forthcoming about what she had 

previously told her father. Upon learning this, the same 

detective conducted a second interview with First Victim on 

February 18, 2015. This time, First Victim was much more 
State v. Carrell

20150924-CA 7 2018 UT App 21

responsive, made significantly more eye contact, rarely looked 

down at her hands, and was smiling and happy in the 

detective’s company. During that second interview, First Victim 

told the detective that Defendant touched her “peepee” at least 

once per day. She clarified that these touches made her feel 

uncomfortable, that Defendant would ask her whether the 

touching hurt or made her feel good, and that the touches were 

with Defendant’s hand and were sometimes under her clothes. 

Towards the end of the interview, the detective asked First 

Victim if anyone had “told her what to say.” First Victim 

answered in the affirmative and said that her therapist had told 

her what to say. Subsequent to this interview, the therapist 

clarified for the detective that she had told First Victim that the 

detective was a friend of the therapist’s and that it was okay for 

First Victim to tell the detective the truth.

¶13 Following Defendant’s arrest, Second Victim’s father 

contacted the State and asked that prosecutors review the video 

footage during periods of time when Second Victim rode the 

bus. Second Victim’s father informed the State that shortly after 

Defendant became Second Victim’s bus driver, Second Victim 

began having “behavioral issues” on the bus, including 

becoming angry and “acting out.” Second Victim also began 

“cry[ing] not to go on the bus.” Although Second Victim was 

nonverbal and could not be effectively interviewed, after 

reviewing the video footage the State amended its information to

charge Defendant with an additional ten counts of aggravated 

sexual abuse of a child for his interactions with Second Victim.

¶14 At trial, the State relied heavily on the previously 

described video footage, excerpts of which were played for the 

jury. In addition, First Victim’s father testified about his 

conversations with First Victim that led him to contact the 

District. First Victim also testified at trial, and stated that 

Defendant touched her “peepee” “like every day” she rode the 

bus, usually about three times each day. Second Victim’s father 
State v. Carrell

20150924-CA 8 2018 UT App 21

also testified about her behavioral changes after Defendant 

became her bus driver.

¶15 At the conclusion of the State’s case-in-chief, Defendant 

moved for a directed verdict dismissing all charges against him. 

He argued that the evidence presented was not sufficient to 

establish that he had touched First and Second Victim “with the 

intent to arouse or gratify [his] sexual desire,” and that there was 

no evidence he intended to take indecent liberties with either 

victim. The trial court denied Defendant’s motion and ruled that 

“based upon the evidence presented during the State’s case in 

chief . . . there [had] been sufficient evidence presented from 

which a jury acting reasonably could convict [Defendant].”

¶16 Before the jury began deliberating, Defendant made two 

objections to the State’s proposed jury instructions. First, he

objected to the manner in which the instructions presented the 

mental state requirements for aggravated sexual abuse of a child. 

The elements instructions informed the jurors that they could 

not find Defendant guilty on any count unless they found both

(1) that Defendant “[k]nowingly or intentionally [] touched any 

part of the genitals [] or buttocks of [First Victim] or otherwise 

took indecent liberties with [First Victim],” and (2) that 

Defendant did so “[w]ith the intent to arouse or gratify the 

sexual desires of any person.”2 Separate instructions defined the 

terms “intentionally” and “knowingly.”3 Defendant argued that 

 

2. The elements instruction with respect to Second Victim was 

identical, but omitted the reference to “buttocks” because the 

State alleged that Defendant touched Second Victim on her 

clothed genitals but not on her buttocks.

3. Jury Instruction No. 30 informed the jury that a person acts 

“intentionally” or “with intent” “when his conscious objective is 

to” either “engage in certain conduct” or “cause a certain result.” 

Jury Instruction No. 31 informed the jury that a person acts 

(continued...)
State v. Carrell

20150924-CA 9 2018 UT App 21

these instructions were confusing because they did not 

“properly instruct the jury which intent goes to which element.” 

In response, the trial court noted that the instructions followed 

the language of Utah’s model jury instructions, and expressed 

the belief that “as the jury goes through the element[s]

instruction, when they get to a word that’s a defined term in the

instructions, they’ll look to that definition.” Accordingly, the 

trial court overruled Defendant’s objection with respect to the 

mental state instructions.

¶17 Second, Defendant objected to the inclusion, in the 

elements instruction, of the phrase “or otherwise took indecent 

liberties with [First or Second Victim],” and to the inclusion of 

the language involving “buttocks” with respect to First Victim. 

Defendant argued that because First Victim testified that he 

touched her “peepee” but had not described him touching her 

buttocks, the jury should not have been instructed that they 

could consider whether he touched First Victim’s buttocks. In 

addition, Defendant argued that the evidence the State presented 

did not demonstrate that he “took indecent liberties” with either 

First or Second Victim, and that it was therefore inappropriate to 

instruct the jury on that element. In response, the trial court 

found that “the video speaks for itself” and expressed its belief 

that “the video that has been presented in court is reflective and 

representative of what the instructions contain.” Accordingly, 

the trial court overruled Defendant’s objection with respect to 

the “buttocks” and “indecent liberties” instructions to the jury.

¶18 After deliberating, the jury convicted Defendant on 19 of 

the 33 charged counts, including 13 of the 23 counts regarding 

 

(...continued)

“‘knowingly’ when the person is aware of the nature of his 

conduct, or is aware of the particular circumstances surrounding 

his conduct.”
State v. Carrell

20150924-CA 10 2018 UT App 21

First Victim and six of the ten counts regarding Second Victim. 

Defendant appeals.

ISSUES AND STANDARDS OF REVIEW 

¶19 Defendant raises three issues on appeal. First, he contends

that the trial court erred by allowing the term “buttocks” (as to 

First Victim) and the language describing the “indecent liberties” 

theory of aggravated sexual abuse of a child (as to both victims) 

to remain in the jury instructions. “Whether a trial court 

properly instructed the jury is a question of law, which we 

review for correctness.” Cheves v. Williams, 1999 UT 86, ¶ 37, 993 

P.2d 191 (citation and internal quotation marks omitted). If an 

error is found in jury instructions, reversal is warranted only if 

there is a reasonable probability that the error affected the 

outcome of the case. State v. Tinoco, 860 P.2d 988, 990 (Utah Ct. 

App. 1993).

¶20 Second, Defendant contends that the trial court erred by 

presenting the prosecution’s proposed mental state instructions 

to the jury. Again, whether a trial court properly instructed a 

jury is a question we review for correctness. Id. at 989–90.

¶21 Finally, Defendant contends that there was insufficient 

evidence to convict him and that the trial court therefore erred in 

denying his motion for a directed verdict.4 When considering a 

 

4. In making his arguments on appeal—both his arguments 

regarding jury instructions and his argument regarding 

insufficiency of the evidence—Defendant does not engage in a 

count-by-count analysis of the evidence. Instead, he argues that 

the evidence was insufficient to support inclusion of “indecent 

liberties” language in the jury instructions for any of the counts 

charged (and insufficient to support inclusion of “buttocks” 

language for any of the counts charged involving First Victim), 

(continued...)
State v. Carrell

20150924-CA 11 2018 UT App 21

challenge to the sufficiency of the evidence, we review the 

evidence and all reasonable inferences drawn therefrom in the 

light most favorable to the verdict. State v. Germonto, 868 P.2d 50, 

55 (Utah 1993). We will reverse a guilty verdict for insufficient 

evidence only when the evidence is so inconclusive or inherently 

improbable that reasonable minds must have entertained a 

reasonable doubt that the defendant committed the crimes of 

which he was convicted. State v. Nielsen, 2014 UT 10, ¶ 46, 326 

P.3d 645.

ANALYSIS

I

¶22 Defendant first contends that the trial court’s jury 

instructions regarding the elements of the crimes included 

language that—while not incorrect as a legal matter—was 

unsupported by the evidence the State presented at trial. 

Defendant makes two arguments in this regard. First, Defendant 

asserts that there was insufficient evidence to support inclusion 

of language stating that taking “indecent liberties” could be a 

basis for a finding of aggravated sexual abuse of either victim. 

Second, Defendant asserts that there was insufficient evidence to 

support inclusion of language stating that touching First 

Victim’s “buttocks” could be a basis for a finding of aggravated 

sexual abuse of First Victim. We find Defendant’s arguments

unpersuasive.

 

(...continued)

and was also generally insufficient to convict him on any of the 

counts charged. Because Defendant makes no effort to engage in 

a count-by-count analysis, neither do we.
State v. Carrell

20150924-CA 12 2018 UT App 21

A

¶23 Under Utah law, a person commits “sexual abuse of a 

child” if that person “touches the anus, buttocks, or genitalia of 

any child, the breast of a female child, or otherwise takes 

indecent liberties with a child,” and does so “with the intent to 

arouse or gratify the sexual desire of any person.” Utah Code 

Ann. § 76-5-404.1(2) (LexisNexis 2017). The offense is considered 

“aggravated” if, among other things, the person committing it 

“occupied a position of special trust in relation to the victim.” Id.

§ 76-5-404.1(4)(h). Under the statutory scheme, “any touching, 

even if accomplished through clothing, is sufficient to 

constitute” “touching” for the purposes of a prosecution for 

sexual abuse of a child. Id. § 76-5-407(3)(b) (LexisNexis 2017).5

¶24 The phrase “indecent liberties” is not defined by statute. 

Our supreme court, however, has declared that the term is not 

unconstitutionally vague, as long as it is “considered as referring 

to conduct of the same magnitude of gravity as that specifically 

described in the statute.” In re J.L.S., 610 P.2d 1294, 1296 (Utah 

1980).

¶25 In this case, the jury was presented with “elements” 

instructions on each of the 33 counts, and those instructions all 

stated that Defendant could not be convicted of the offenses 

unless the jury found each of six elements beyond a reasonable 

doubt:

 

5. In cases asserting violations of certain other statutes, such as 

for “forcible sexual abuse” of a person “14 years of age or older,” 

Utah Code Ann. § 76-5-404(1) (LexisNexis 2017), “touching” is 

required to be by skin-to-skin contact, see State v. Jacobs, 2006 UT 

App 356, ¶ 7, 144 P.3d 226. In cases alleging sexual abuse of a 

child, however, “touching” can be accomplished through 

clothing. See Utah Code Ann. § 76-5-407(3)(b) (LexisNexis 2017).
State v. Carrell

20150924-CA 13 2018 UT App 21

1. That on [the date of the offense];

2. The Defendant, John Carrell;

3. Knowingly or intentionally, touched any part of 

the genitals [or buttocks] of C.B. [or Z.B.], or 

otherwise took indecent liberties with C.B. [or 

Z.B.];

4. With the intent to arouse or gratify the sexual 

desires of any person; and

5. At the time of said conduct, C.B. [or Z.B.] was 

under 14 years of age; and

6. The Defendant occupied a position of special 

trust in relation to C.B. [or Z.B.].

¶26 Further, the jury was instructed as to the definition of 

“indecent liberties,” as follows:

“Indecent liberties” is defined as conduct that is as 

serious as touching the anus, buttocks, or genitals 

of a person or the breast of a female.

In deciding whether conduct amounts to indecent 

liberties, use your judgment and common sense. 

You may consider factors such as: (1) the duration 

of the conduct, (2) the intrusiveness of the conduct 

against the alleged victim, (3) whether the alleged 

victim requested that the conduct stop, (4) whether

the conduct stopped upon request, (5) the 

relationship between the alleged victim and the 

defendant, (6) the alleged victim’s age, (7) whether 

the alleged victim was forced or coerced to 

participate, and any other factors you consider 

relevant.
State v. Carrell

20150924-CA 14 2018 UT App 21

The fact that touching may have occurred over 

clothing does not preclude a finding that the 

conduct amounted to indecent liberties.

¶27 Defendant does not contend that these jury instructions 

were legally inaccurate. Indeed, these instructions correctly state 

the law, as derived from both statutes and case law. See In re 

P.G., 2015 UT App 14, ¶ 19, 343 P.3d 297 (reciting the elements of 

sexual abuse of a child); State v. Lewis, 2014 UT App 241, ¶ 12, 

337 P.3d 1053 (discussing “indecent liberties” and referring to 

the Model Utah Jury Instruction on the topic as “appropriate”); 

see also Model Utah Jury Instructions 2d (MUJI) CR1601 (2016), 

https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho

wRule&id=44#1601 [https://perma.cc/D4UJ-STGW] (defining 

“indecent liberties”); id. CR1612, https://www.utcourts.gov/

resources/muji/inc_list.asp?action=showRule&id=44#1612 [https://

perma.cc/6P8M-R5B5] (defining the elements of sexual abuse of 

a child).

¶28 Instead, Defendant contends that, as a factual matter, the 

record does not contain sufficient evidence to establish that he 

took “indecent liberties” with either of the victims. Defendant 

appears to concede that the jury was properly instructed that it 

could convict him if it found that he had committed a 

“touching” of either victim’s genitals. But Defendant argues that

there was no evidence involving any non-“touching” conduct

“that could have risen to the level of ‘indecent liberties’” with 

respect to either victim, and therefore the language in the jury 

instructions regarding “indecent liberties” should have been 

deleted. We are unpersuaded.

¶29 In advancing this argument, Defendant first notes that 

First Victim did not offer testimony that could support a finding 

of “indecent liberties,” because her testimony was specific to 

“touching.” Indeed, First Victim stated that Defendant touched 

her “peepee,” conduct that (assuming that First Victim intended 
State v. Carrell

20150924-CA 15 2018 UT App 21

that term to refer to her genitals) would constitute a “touching” 

under the statute. On this point, Defendant is correct. First 

Victim’s testimony was certainly sufficient to support a 

conclusion that Defendant “touched” her in ways that 

constituted sexual abuse of a child, but there is nothing in her 

testimony that can support a conclusion that Defendant engaged 

in conduct, not sufficient to constitute a “touching,” that could 

amount to “indecent liberties.”

¶30 The State defends the jury instructions by pointing to the 

video evidence that was presented to the jury, and arguing that 

the video footage contains evidence of certain conduct that, 

although perhaps not sufficient to constitute a “touching” as that 

term is defined in the statute, nevertheless could amount to 

“indecent liberties.” Defendant disagrees, arguing that the jury 

could not have reasonably inferred, simply from the video 

evidence, that he was guilty of taking “indecent liberties” with 

either victim. According to Defendant’s characterization, the 

video evidence is too inconclusive, and does not often enough 

show the exact location of Defendant’s hands, for the jury to be 

able to use that evidence to support a finding of “indecent 

liberties.”

¶31 Our characterization of the video footage differs from 

Defendant’s. While Defendant is correct that, at times, one 

cannot determine the precise location of Defendant’s hands, it is 

clear for several minutes-long periods that his left hand was 

somewhere on the front of First Victim’s body while his left 

shoulder moved up and down in short, rhythmic motions. On 

certain occasions following this, it is also clear that Defendant 

brought his left hand to his face somewhere near his mouth or 

nose, apparently to lick or smell his fingers. Further, Defendant 

is incorrect when he states that it is never clear where his right 

hand was and when he states that the video footage only 

portrayed First Victim standing between his legs. In fact, the 

footage clearly shows Defendant’s hand moving on or around 
State v. Carrell

20150924-CA 16 2018 UT App 21

First Victim’s clothed buttocks on several occasions, and on one 

occasion his right hand was somewhere beneath her skirt. 

Moreover, First Victim can be seen sitting on Defendant’s lap on 

several occasions. In addition, we note that Defendant can be 

observed nuzzling or kissing First Victim, running his fingers 

through her hair, and often initiating the contact between them 

and pulling her towards him when no other adults were present 

and then pushing her away when the teachers approached the 

bus. During several of his encounters with First Victim, the 

footage also shows that Defendant held her backpack between 

her body and the door of the bus, in an apparent effort to block 

people outside the bus from seeing him and First Victim.

¶32 A factfinder may draw reasonable inferences from 

evidence presented to it, regardless of whether that evidence is 

testimonial evidence or video evidence. See State v. Lomu, 2014 

UT App 42, ¶ 10, 321 P.3d 235 (noting that the “jury could have 

reasonably inferred” from a combination of testimonial and 

video evidence that the defendant “knew that [a] threat was 

being made”). In the past, we have noted that inferences made 

from evidence should be “based on logic and reasonable human 

experience” and that such inferences are “reasonable and not 

speculative” when they “support a conclusion that one 

possibility is more probable than another.” State v. Cristobal, 2014 

UT App 55, ¶ 7, 322 P.3d 1170 (citation and internal quotation 

marks omitted).

¶33 Here, while we stress that the jury could reasonably have 

inferred that Defendant’s conduct in each of the described 

instances amounted to a “touching” of First Victim, the jury 

could also have reasonably inferred that in at least some 

instances Defendant was not directly touching First Victim’s 

“anus, buttocks, or genitals” but instead was touching very near

them during moments when the general location of his hands 

was clear but their exact configuration or position was not. The 

jury could also have considered the fact that First Victim often 
State v. Carrell

20150924-CA 17 2018 UT App 21

sat on Defendant’s lap, and that Defendant on occasion 

appeared to be nuzzling or kissing her face. As part of its

“indecent liberties” analysis, the jury was also instructed that it

could consider other factors, such as the relationship between 

First Victim and Defendant, First Victim’s age, and the duration 

of the conduct. In light of all of this, we conclude that the jury, 

based on logic and reasonable human experience, could have 

reasonably inferred from the video evidence that Defendant was, 

on at least some of the occasions depicted, engaging in conduct 

toward First Victim that was of the same magnitude of gravity as 

if he was touching her breasts, vagina, anus, or buttocks.

¶34 Defendant also contends that the video evidence

regarding Second Victim was insufficient to support inclusion of

“indecent liberties” language in the jury instructions. Defendant 

maintains that, when one views the video evidence, “it is 

impossible to determine, beyond a reasonable doubt, if 

[Defendant’s] hand was even touching [Second Victim’s] 

genitals.” Again, we view the video footage differently. The 

footage depicts Defendant’s hand moving rapidly toward 

Second Victim’s clothed genitalia after she is unbuckled and 

remaining on or near her genitals outside her clothing for several

seconds as she struggles and squirms away. One video 

additionally shows Defendant picking up Second Victim by her 

crotch (with his hand cupping or under her crotch) and holding 

her in the air for several seconds. Because the video footage

shows Defendant grabbing Second Victim’s crotch on several 

occasions but does not display the exact position of his fingers, 

we conclude that the jury could plausibly have determined 

either that Defendant touched Second Victim’s genitals—a 

touching—or that Defendant touched very near Second Victim’s 

genitals in a manner amounting to the same magnitude of 

gravity as if he was touching her genitals.

¶35 Accordingly, we reject Defendant’s argument that the 

evidence was insufficient to support the inclusion of “indecent 
State v. Carrell

20150924-CA 18 2018 UT App 21

liberties” language in the jury instructions with regard to both 

victims.

B

¶36 Defendant’s next argument is premised on the 

assumption that there was insufficient evidence in the trial 

record of any touching of First Victim’s buttocks, and therefore 

no such instruction should have been given. Defendant argues 

that, because First Victim testified only that he touched her 

“peepee,” and did not verbally describe him touching her 

buttocks, the jury should not have been instructed that it could 

consider whether Defendant touched First Victim’s buttocks. 

Defendant goes so far as to argue that “[n]o evidence was 

admitted involving the touching of [First Victim’s] buttocks.” 

We disagree.

¶37 First, we again note that, while Defendant correctly 

observes that First Victim’s oral testimony did not describe him

touching her buttocks, the video footage shows Defendant 

touching First Victim on (or very near) her buttocks on several 

occasions. The footage also clearly depicts Defendant’s right 

hand under First Victim’s skirt at least once. On other occasions, 

the precise location of Defendant’s hands cannot be seen, but 

because of the position of Defendant’s body relative to First 

Victim’s, it is clear that one of Defendant’s hands is between 

their bodies and could very well be on First Victim’s buttocks. 

Further, on at least one occasion, First Victim can be heard 

remarking that Defendant had been “pulling [her] pants up.”

¶38 As noted previously, a jury is entitled to draw inferences 

from evidence, “based on logic and human experience,” that are 

“reasonable and not speculative” and that “support a conclusion 

that one possibility is more probable than another.” Cristobal, 

2014 UT App 55, ¶ 7 (citations and internal quotation marks 

omitted). It would not have been improper for the jury to find, 

after viewing the video evidence, that Defendant touched First 
State v. Carrell

20150924-CA 19 2018 UT App 21

Victim’s buttocks. Thus, we conclude that the evidence was 

sufficient to support inclusion of the word “buttocks” in the 

elements jury instructions regarding First Victim.

¶39 Because the “buttocks” and “indecent liberties” portions 

of the jury instructions were supported by evidence presented at 

trial, we conclude that the trial court did not err in giving those 

instructions to the jury.

II

¶40 Next, Defendant raises an issue with the trial court’s 

instructions regarding the mental state required for conviction. 

Specifically, Defendant contends that the trial court erred by 

providing the jury with mental state instructions defining 

“intentionally” and “knowingly” that were separate from the 

instructions listing the elements of aggravated sexual abuse of a 

child. We find no improprieties in the manner in which the trial 

court instructed the jury regarding the required mental state.

¶41 Here, the elements instruction presented to the jury for 

aggravated sexual abuse of a child stated that the jury could not 

find Defendant guilty unless it found both (1) that Defendant

“[k]nowingly or intentionally . . . touched any part of the 

genitals . . . or buttocks of [First Victim] or otherwise took 

indecent liberties with [First Victim],” and (2) that Defendant did 

so “[w]ith the intent to arouse or gratify the sexual desires of any 

person.”6 The terms “knowingly” and “intentionally” were 

defined in separate instructions.

¶42 Defendant concedes that all of these instructions are 

legally correct. Indeed, the trial court used the Model Utah Jury 

 

6. As noted previously, the elements instruction with respect to 

Second Victim was identical, but omitted the reference to 

“buttocks.”
State v. Carrell

20150924-CA 20 2018 UT App 21

Instructions for both the elements of aggravated sexual abuse of 

a child and for the definitions of “intentionally” and 

“knowingly.” Nevertheless, Defendant maintains that the trial 

court should have provided additional guidance to the jury as to 

which level of intent was applicable to each element of 

aggravated sexual abuse. Defendant posits that the jury may 

have been confused about whether it could convict Defendant 

for “intentionally or knowingly” touching or taking indecent 

liberties with First or Second Victim without finding that he also 

specifically intended to arouse or gratify the sexual desires of 

any person. To support this contention, Defendant cites State v. 

Hutchings, 2012 UT 50, 285 P.3d 1183, which he maintains is 

“identical” to this case with respect to this issue.

¶43 In Hutchings, a defendant was charged with aggravated 

assault, a crime with “two elements, each with different mental 

states: (1) committing a simple assault and (2) having the intent 

to cause serious bodily injury.” Id. ¶ 11. The first element has no 

statutorily prescribed mental state, and therefore a defendant 

meets the first element if he commits simple assault with either 

“intent, knowledge, or recklessness.” Id. ¶ 12 (quoting Utah 

Code Ann. § 76-2-102 (LexisNexis 2017)). The second element 

has a statutorily-prescribed mental state, requiring that a 

defendant commit the assault with “intent to cause a serious 

bodily injury.” Id. The main issue in Hutchings was whether this 

second element could be met where a defendant merely

intended to commit the act that ended up resulting in serious 

bodily injury, or whether it could be met only if a defendant 

actually intended to cause the injury. Our supreme court ruled 

that “[t]he mere intent to act, without the intent to cause the 

result, is insufficient under the aggravated assault statute,” and 

that “[c]ulpability for aggravated assault requires an actual 

intent to cause the serious bodily harm.” Id. ¶ 14. Based on this 

holding, the court concluded that the jury instruction regarding 

intent was potentially confusing, because it stated that “‘[a] 

person engages in conduct intentionally . . . when it is his 
State v. Carrell

20150924-CA 21 2018 UT App 21

conscious objective or desire to engage in the conduct or cause the 

result.’” Id. ¶ 19 & n.6 (emphasis added).

¶44 Defendant attempts to draw a parallel with Hutchings by 

asserting that, in this case, there are also two elements, each with 

a separate mental state requirement: he must have both 

(a) intentionally or knowingly touched the victims’ private parts or 

taken indecent liberties with the victims, and (b) done so with a 

specific intent to arouse sexual desire. Defendant argues that it 

would have been better for the elements instructions for 

aggravated sexual abuse of a child to be combined with the

instructions providing the definition of “intentionally” and 

“knowingly.”

¶45 We disagree. The potential for confusion in Hutchings

stemmed from the statutory interpretation question that the 

court resolved in that case, namely, whether the aggravated 

assault statute required a defendant to actually intend to injure 

the victim, or whether it was sufficient for a defendant to merely 

intend to commit the act that ended up injuring the victim. We 

have no such statutory interpretation question before us here, 

and therefore we do not perceive the instructions given by the 

trial court to have been confusing.

¶46 Indeed, we find persuasive the State’s argument that the 

instructions provided to the jury “presented no potential for 

confusion similar to that addressed in Hutchings.” By stating 

explicitly that the Defendant could not be found guilty unless he 

both “[k]nowingly or intentionally . . . touched any part of the 

genitals . . . or buttocks of [First Victim] or otherwise took 

indecent liberties with [First Victim]” and that he did so “[w]ith 

the intent to arouse or gratify the sexual desires of any person,” 

the instructions put the jury on notice that any touching 

Defendant committed would not only need to itself be 

“intentionally or knowingly” committed, but also, to warrant a 

conviction, Defendant would have had to commit the touching 
State v. Carrell

20150924-CA 22 2018 UT App 21

with the particular intent to arouse or gratify. Further, 

Defendant’s argument does not take into account the 

longstanding rule that we read jury instructions “in their entire 

context and give[] meaning in accordance with the ordinary and 

usual import of the language as it would be understood by lay 

jurors.” State v. Kennedy, 2015 UT App 152, ¶ 28, 354 P.3d 775 

(citation and internal quotation marks omitted). When the jury 

encountered language in an instruction describing a particular 

mental state, we presume that they interpreted that language in 

light of the definitional instructions they were given.

¶47 Accordingly, the instructions used in this case regarding 

mens rea were not improper, and the trial court did not err when 

it provided them to the jury.

III

¶48 Finally, Defendant contends that the district court should 

have granted his motion for a directed verdict, and thus that the 

jury’s decision to convict him should be overturned, because the 

State’s evidence was “inconclusive” as to both (a) whether 

Defendant committed an illegal touching of either victim and 

(b) whether Defendant did so “with the specific intent to arouse 

or gratify his sexual desires.” After review of the evidence, 

including viewing the video footage that was admitted into 

evidence at trial, we disagree.

¶49 When considering whether to overturn a jury’s verdict on 

the ground that the evidence presented was insufficient to 

support a conviction, we consider the evidence and all 

reasonable inferences therefrom in the light most favorable to

the jury’s verdict and uphold the verdict if “we conclude that 

some evidence exists from which a reasonable jury could find 

that the elements of the crime have been proven beyond a 

reasonable doubt.” State v. Mills, 2012 UT App 367, ¶ 40, 293 

P.3d 1129 (brackets, citation, and internal quotation marks 

omitted). In the present case, the verdict must stand so long as 
State v. Carrell

20150924-CA 23 2018 UT App 21

some evidence exists from which a reasonable jury could have 

found both (a) that Defendant touched the buttocks (of First 

Victim) or genitalia (for either victim) or otherwise took indecent 

liberties with either victim, and (b) that Defendant did so with 

intent to arouse or gratify the sexual desire of any person.

¶50 As a threshold matter, Defendant urges us to disregard 

First Victim’s testimony as inherently improbable before making 

our determination regarding sufficiency of the evidence. While 

normally the court must accept a jury’s determination as to the 

credibility of witnesses and the weight to afford witness 

testimony, a court may choose to disregard certain testimony on 

a sufficiency of the evidence review if that testimony is 

“inherently improbable.” State v. Robbins, 2009 UT 23, ¶ 16, 210 

P.3d 288. In Robbins, our supreme court determined that courts 

possess limited “discretion” to “reevaluate the jury’s credibility 

determinations,” but “only when the court is convinced that the 

credibility of the witness is so weak that no reasonable jury 

could find the defendant guilty beyond a reasonable doubt.” Id.

¶¶ 18–19. Courts are empowered to exercise this limited 

discretion “only in those instances where (1) there are material 

inconsistencies in the testimony and (2) there is no other 

circumstantial or direct evidence of the defendant’s guilt.” Id.

¶ 19; accord State v. Prater, 2017 UT 13, ¶ 33, 392 P.3d 398.

¶51 Neither of those prerequisites is present here. In support 

of his contention that First Victim’s testimony was materially 

inconsistent, Defendant notes that “[First Victim] never actually 

told her father that [Defendant] was touching her ‘peepee’ under 

her clothes,” but instead “only rubbed herself on the outside of 

her clothes when talking to her father about sitting on the bus 

seat.” In addition, Defendant points out that First Victim did not 

talk to the detective who interviewed her about Defendant’s 

alleged conduct during her first interview, and stated during the 
State v. Carrell

20150924-CA 24 2018 UT App 21

second interview nearly a year later that her therapist “told her 

what to say.”7 While these facts may certainly provide fodder for 

cross-examination or for closing argument, they are not the sort 

of “material inconsistencies” referenced in Robbins or Prater. This 

is so for two reasons.

¶52 First, we note that Defendant’s recitation of the evidence 

is selective. Although it is true that First Victim “rubbed herself 

on the outside of her clothes while talking to her father about 

sitting on the bus seat,” as Defendant asserts, Defendant omits 

the fact that First Victim also told her father that Defendant 

“made it soft” for her. Defendant also fails to mention that First 

Victim, upon being asked about the bus driver for a second time, 

rubbed her crotch again and said, “[d]oes that feel good?” In 

addition, while First Victim was indeed unresponsive during her 

first interview with the detective and stated during her second 

interview that her therapist “told [her] what to say,” Defendant 

omits the therapist’s explanation that she simply told First 

Victim to tell the truth to the detective.

¶53 Second, we note that even if Defendant’s description of 

First Victim’s testimony were complete, Defendant still would 

not succeed on a Robbins challenge. The mere fact that a 

witness’s account changes between her initial interview with 

police and her testimony at trial is by itself insufficient. See 

Prater, 2017 UT 13, ¶ 39 (noting that mere inconsistency with 

prior testimony does not render subsequent testimony 

 

7. Defendant also brings up the fact that during one account, 

First Victim mentioned that Defendant sometimes touched her 

while she was sitting on his lap. Defendant takes exception to 

this, claiming that “none of the video showed [First Victim] ever 

sitting on [Defendant’s] lap.” This is incorrect. In fact, the video 

evidence shows First Victim sitting on Defendant’s lap on 

several occasions.
State v. Carrell

20150924-CA 25 2018 UT App 21

“‘apparently false’” because “[t]he question of which version of 

[the witnesses’] stories was more credible is the type of question 

we routinely require juries to answer”). In order to meet the first 

element of the Robbins test, the witness’s testimony at trial must 

be internally inconsistent; the fact that a witness’s trial testimony 

is somewhat at odds with other evidence in the case, including 

perhaps that witness’s own prior statement, is not enough to 

render that testimony “inherently improbable.”

¶54 In addition, the second Robbins prerequisite is not met

here. Other circumstantial and direct evidence of Defendant’s 

guilt exists, both in the testimony of First Victim’s father and in 

the video evidence showing Defendant’s interactions with First 

and Second Victim. These pieces of evidence corroborate First 

Victim’s testimony, and thus are fatal to Defendant’s Robbins

argument. Because neither element of the Robbins test is met 

here, the trial court properly declined to exercise its discretion to 

disregard the jury’s assessment of First Victim’s credibility.

¶55 Because First Victim’s testimony was not inherently 

improbable, the jury had “extraordinarily broad” latitude to 

assess her credibility, Lyon v. Bryan, 2011 UT App 256, ¶ 10, 262 

P.3d 1199, and assign her testimony whatever weight it felt was 

appropriate. Given that First Victim testified at trial that 

Defendant touched her “peepee” “like every day,” her testimony 

alone would have been sufficient to allow a reasonable jury to 

find that the elements of aggravated sexual abuse had been 

proven beyond a reasonable doubt with respect to each charged 

instance regarding First Victim.

¶56 But the jury in this case was not obligated to rely solely on 

First Victim’s testimony. Instead, it also had access to the video 

evidence, which corroborated First Victim’s testimony. As we 

previously noted, the video evidence shows Defendant touching 

First Victim’s clothed buttocks and placing his hands under her 

skirt on several occasions, and on other occasions shows his 
State v. Carrell

20150924-CA 26 2018 UT App 21

hands somewhere low on her body while his shoulder 

rhythmically moves up and down. The video evidence also 

shows Defendant grabbing Second Victim’s clothed genitals for 

several seconds on several occasions, often while she struggles.

From this, a reasonable jury could have inferred that Defendant 

either touched or took “indecent liberties” with both First and 

Second Victim.

¶57 Defendant finally argues, with respect to both First and 

Second Victim, that even if the State had proven beyond a 

reasonable doubt that Defendant touched First and Second 

Victim’s genitalia, the State did not allege sufficient evidence to 

establish that he did so “for the purpose of causing arousal or 

sexual gratification,” especially “[g]iven the insignificant amount 

of time that [Defendant] is alleged to have touched [Second 

Victim].” When specific intent is an element of a crime, 

prosecutors must prove that intent beyond a reasonable doubt. 

See State v. Cooley, 603 P.2d 800, 802 (Utah 1979). However, intent 

“need not be proved by direct evidence” but “may be inferred 

from the actions of the defendant or from surrounding 

circumstances.” State v. Murphy, 674 P.2d 1220, 1223 (Utah 1983). 

In fact, because “‘intent . . . is a state of mind, which is rarely 

susceptible of direct proof,’” a defendant’s intent “‘can be 

inferred from conduct and attendant circumstances in the light 

of human behavior and experience.’” State v. Robertson, 2005 UT 

App 419, ¶ 15, 122 P.3d 895 (quoting State v. Brooks, 631 P.2d 878, 

881 (Utah 1981)).

¶58 In this case, the jury had before it testimony from First 

Victim that Defendant touched her genitals every day, video

evidence that corroborated First Victim’s account, and video 

evidence showing Defendant placing his hand on Second 

Victim’s genitals after she was already unbuckled from her seat 

and despite her struggling. The video evidence further showed

Defendant appearing to smell or lick his fingers on several 

occasions after touching First Victim. In the past, we have 
State v. Carrell

20150924-CA 27 2018 UT App 21

indicated that a jury may properly infer a defendant’s intent to 

gratify his sexual desires from that defendant’s decision to touch

a child’s genitals. See State v. Hall, 946 P.2d 712, 724 (Utah Ct. 

App. 1997). Further, we note that Defendant cites no case law 

supporting his inference that he would need to touch Second 

Victim’s genitals for a period longer than several seconds in 

order for the jury to properly infer he intended to cause the 

arousal or sexual gratification of any person. The evidence 

before the jury was sufficient to support the inference that 

Defendant touched First and Second Victim for his own arousal 

or sexual gratification.

¶59 First Victim’s testimony was not inherently improbable,

and the jury was properly allowed to consider it. That testimony, 

coupled with the other evidence introduced in the case, 

including the video evidence, was sufficient to support the jury’s 

verdict.8 Accordingly, the trial court did not err in denying 

Defendant’s motion for a directed verdict.

CONCLUSION

¶60 The trial court did not err in including, in the jury 

instructions, the term “buttocks” or language describing 

 

8. We reviewed the video footage associated with not only the 

incidents for which the jury convicted Defendant, but also the 

incidents for which the jury acquitted Defendant. As noted, 

Defendant does not ask us to, and we do not, engage in a countby-count analysis of the arguments presented. However, we note 

that, in general, there is a qualitative difference in behavior 

between the incidents for which Defendant was convicted and 

the incidents for which he was acquitted. By all appearances, the 

jury did a thorough job of analyzing each separately-charged 

incident and convicting Defendant only on the charges for which 

it found convincing evidence of guilt.
State v. Carrell

20150924-CA 28 2018 UT App 21

“indecent liberties,” and did not err in refusing to combine the 

mental state and elements instructions. The trial court also did 

not err in denying Defendant’s motion for directed verdict, 

because the evidence in the record amply supported Defendant’s 

convictions.

¶61 Affirmed.