2019 UT App 194

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

AFIMUAO S. LEOTA,

Appellant.

Opinion

No. 20171012-CA

Filed November 29, 2019

Third District Court, West Jordan Department

The Honorable Bruce C. Lubeck

No. 151402812

Teresa L. Welch and Christine Seaman, Attorneys

for Appellant

Sean D. Reyes and Jeffrey S. Gray, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 Following a jury trial, Afimuao S. Leota was convicted of 

one count of forcible sexual abuse for touching his fifteen-yearold stepdaughter (Victim) on her breasts over her clothing. Leota 

challenges the sufficiency of the evidence supporting his 

conviction, arguing that the State failed to prove that his overthe-clothing touch of Victim constituted indecent liberties and 

that Victim’s testimony was too inherently improbable to be 

credited. We reject his sufficiency challenge and affirm.
State v. Leota

20171012-CA 2 2019 UT App 194

BACKGROUND1

¶2 Victim was eleven years old when Leota married Victim’s 

mother and moved into their home. Victim perceived her 

relationship with Leota to be “father/daughter,” and she called 

him “daddy.”

¶3 In 2016, the State charged Leota with seventeen offenses, 

ranging from rape and object rape to forcible sodomy and 

forcible sexual abuse, based on Victim’s allegations. As relevant 

here,2 Leota was charged with one count of forcible sexual abuse 

based on allegations that he put his hands on Victim’s clothed 

breasts for a period of time, only removing them when Victim 

indicated that the touch was not welcome.

¶4 A two-day trial for all the charges was held in 2017. 

Victim testified about the alleged incident of abuse. She testified 

that on one occasion when she was fifteen years old, she and 

Leota were in her mother and Leota’s room, on their bed, 

watching football. Victim was lying against Leota, who was 

rubbing her back. She recounted that after Leota rubbed her 

back, he put his hands on her breasts, over her clothing, and 

asked, “Is it okay if Daddy does this?” Victim testified that she 

“shrugged and just said, ‘huh-uh,’ like, I don’t know.” Leota 

then apologized, telling her, “Sorry, Daddy shouldn’t have done

that” and removed his hands from her breasts.

 

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

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

We present conflicting evidence only as necessary to understand 

issues raised on appeal.” State v. Reigelsperger, 2017 UT App 101, 

¶ 2 n.1, 400 P.3d 1127 (cleaned up).

2. The jury acquitted Leota of sixteen of the charged offenses, 

and we do not address them further.
State v. Leota

20171012-CA 3 2019 UT App 194

¶5 A detective (Detective), who had spoken with Leota 

about the incident approximately two-to-three months after 

it occurred, also testified. Detective stated that, initially, Leota 

denied any touching had occurred, indicating that he “didn’t 

know of anything that had happened” with Victim. Leota 

also explained that he and Victim had an affectionate 

relationship, often hugging or cuddling on the couch, and that it 

was common for Leota to “snuggle” with his other children as 

well. And Detective recounted that Leota theorized that Victim 

was angry with him and was “making up” the allegations 

because he had recently disciplined her by taking away her 

electronics.

¶6 Detective testified that as the interview progressed, 

however, Leota recanted his initial denial of the touching 

incident, eventually admitting that he had touched Victim’s 

breasts over her clothing. Leota told Detective that he and 

Victim had been “up on his bed in his bedroom” cuddling, 

with Victim’s back “pressed up against [Leota’s] chest,” and

that at some point Leota’s “hands were accidentally on 

[Victim’s] boobs.” Detective recounted that, when asked, 

Leota “couldn’t explain what was accidental” about the 

touching.

¶7 Leota then stated that, with his hands still on her 

breasts, he asked Victim, “Are you okay with this?” When 

Detective asked why Leota asked Victim that question, Leota 

responded, “[B]ecause I was . . . touching her boobs.” Leota told 

Detective that he removed his hands when Victim “eventually 

said that she wasn’t okay with the touch” and that he 

then apologized to Victim, telling her that “it wasn’t going 

to happen again.” Detective testified that, toward the end 

of the interview, Leota also told him that “he felt bad,” 

expressing “some sort of remorse for what had happened” 

as well as concern about the ramifications on his marriage.

Leota also indicated to Detective that “what he had done was 

wrong.”
State v. Leota

20171012-CA 4 2019 UT App 194

¶8 At trial, the State proceeded on the theory that Leota’s 

over-the-clothing touching constituted the taking of indecent 

liberties under Utah Code section 76-5-404, the forcible sexual 

abuse statute. It asserted there was convincing evidence 

that Leota had a “sexual interest in his own stepdaughter 

and that he was willing to act on that interest by keeping his 

hands on her breasts.” In this respect, the State emphasized the 

nature of Leota’s relationship to Victim, urging that “it is 

indecent for a stepfather to do this to his stepdaughter” and that 

Leota and Victim’s “relationship dynamic should not be lost 

as [the jury] consider[ed] whether or not what [it was] looking 

at here is an indecent [liberty].” The State also reminded the 

jury that, given Victim’s age and Leota’s relationship to Victim,

Victim could not have consented to Leota’s conduct as a matter 

of law.

¶9 At the close of the State’s case, Leota moved for a directed 

verdict on all counts, arguing that Victim’s statements and 

testimony were “entirely uncredible” to the point that no 

reasonable jury could convict him on any of the counts based on 

her testimony. The court denied the motion, determining that 

the jury could choose to accept Victim’s testimony and that any 

issues with respect to Victim’s credibility represented “classic” 

jury questions. At the close of all the evidence, Leota renewed 

the motion, which the court again denied.

¶10 The jury convicted Leota of one count of forcible sexual 

abuse based on his over-the-clothing touching of Victim’s 

breasts. Before sentencing, Leota filed a motion to arrest 

judgment. He argued that there was insufficient evidence to 

support the conviction because the State presented evidence 

indicating only that Leota “touched [Victim’s] breast over the 

clothing, stopping when asked” and that such touching was not 

of the “same magnitude of gravity” as the type of skin-to-skin 

touching of a victim’s bare anus, buttocks, genitalia, or a female 

breast required under the touching variant of the statute.

(Cleaned up.) The court denied the motion. Leota appeals.
State v. Leota

20171012-CA 5 2019 UT App 194

ISSUE AND STANDARD OF REVIEW

¶11 Leota challenges the sufficiency of the evidence 

supporting his conviction. “On a sufficiency of the evidence 

claim we give substantial deference to the jury,” reviewing 

“the evidence and all inferences which may reasonably be

drawn from it in the light most favorable to the verdict.” State v. 

Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 (cleaned up). “We 

will reverse a guilty verdict only when the evidence . . . is 

sufficiently inconclusive or inherently improbable that 

reasonable minds must have entertained a reasonable doubt that 

the defendant committed the crime of which he or she was 

convicted.” State v. MacNeill, 2017 UT App 48, ¶ 51, 397 P.3d 626 

(cleaned up).

ANALYSIS

¶12 Leota challenges the sufficiency of the evidence 

supporting his forcible sexual abuse conviction on two grounds. 

First, he argues that the evidence did not support his conviction 

because the State failed to prove that his conduct constituted 

indecent liberties under Utah Code section 76-5-404(1), the 

forcible sexual abuse statute. Second, he argues that Victim’s 

testimony was too inherently improbable to support the verdict. 

We address each argument below.

I. Indecent Liberties

¶13 Leota argues that the verdict cannot be sustained because 

the State failed to present sufficient evidence to establish that his 

conduct constituted indecent liberties under Utah Code section 

76-5-404(1). He cites evidence suggesting that his touch was 

merely accidental but argues that even if the jury found

otherwise, the touch was “not of the same magnitude of gravity 

as a skin-to-skin touch,” as required under the statute. We 

disagree.
State v. Leota

20171012-CA 6 2019 UT App 194

¶14 In a jury trial, the jury acts as the factfinder, and in this 

role it is the jury’s duty and prerogative to serve as “the 

exclusive judge of both the credibility of witnesses and the 

weight to be given to particular evidence.” State v. Black, 2015 UT 

App 30, ¶ 19, 344 P.3d 644 (cleaned up); see also State v. Ashcraft, 

2015 UT 5, ¶ 29, 349 P.3d 664 (stating that a jury is entitled to 

accept or reject “the existence of reasonable doubt posited by the 

defense[]”); State v. Howell, 649 P.2d 91, 97 (Utah 1982) 

(explaining that a jury is not “obligated to believe the evidence 

most favorable to [the] defendant”). In this respect, a jury is also 

entitled to draw reasonable inferences from the evidence 

presented in reaching its findings. State v. Doyle, 2018 UT App 

239, ¶ 24, 437 P.3d 1266. “A jury’s inference is reasonable unless 

it falls to a level of inconsistency or incredibility that no 

reasonable jury could accept.” Ashcraft, 2015 UT 5, ¶ 18 (cleaned 

up). Thus, our role on appeal is to determine “simply whether 

the jury’s verdict is reasonable in light of all of the evidence 

taken cumulatively, under a standard of review that yields 

deference to all reasonable inferences supporting the jury’s 

verdict.” Id. ¶ 24. “As long as there is some evidence from which 

all the necessary elements of the charged offenses can be proved, 

there is sufficient evidence to find the defendant guilty beyond a 

reasonable doubt.” State v. Johnson, 2015 UT App 312, ¶ 11, 365 

P.3d 730.

¶15 Here, we conclude that the evidence was such that the 

jury was well within its prerogative to determine that Leota’s 

conduct constituted forcible sexual abuse. Under the forcible 

sexual abuse statute it is unlawful for a person to touch one of 

the enumerated body parts or otherwise take “indecent liberties” 

with another person at least fourteen years of age:

A person commits forcible sexual abuse if the 

victim is 14 years of age or older and, under 

circumstances not amounting to rape, object rape, 

sodomy, or attempted rape or sodomy, the actor 

touches the anus, buttocks, or any part of the
State v. Leota

20171012-CA 7 2019 UT App 194

genitals of another, or touches the breast of a 

female, or otherwise takes indecent liberties with 

another . . . with intent to cause substantial 

emotional or bodily pain to any person or with the 

intent to arouse or gratify the sexual desire of any 

person, without the consent of the other . . . .

Utah Code Ann. § 76-5-404(1) (LexisNexis 2012).3

¶16 The statute prohibits two variants of conduct: touching of 

the enumerated body parts, and taking indecent liberties with 

another. Id.; see also State v. Jacobs, 2006 UT App 356, ¶¶ 9–10, 144 

P.3d 226. While the touching variant requires skin-to-skin contact, 

the indecent liberties variant does not. Jacobs, 2006 UT App 356, 

¶¶ 6–10. Rather, over-the-clothing touching may constitute 

indecent liberties so long as the touching is of the “same 

magnitude of gravity as that specifically described in the 

statute.” State v. Carrell, 2018 UT App 21, ¶ 24, 414 P.3d 1030 

(cleaned up); see also State v. Balfour, 2008 UT App 410, ¶¶ 14–15, 

198 P.3d 471; Jacobs, 2006 UT App 356, ¶ 9 (“Thus, even when the 

specified body parts are touched through clothing, the 

perpetrator may still be punished under the indecent liberties 

prong of the statute when, considering all the surrounding 

circumstances, the conduct is comparable to the touching that is 

specifically prohibited.”).

¶17 The jury in this case was instructed on both variants. As 

to the differences between both variants and the requirements 

for the indecent liberties variant specifically, the court instructed, 

[T]here are two prongs to this statute. The 

“touching” prong requires that the State prove that 

the touching was not through clothing but skin to 

 

3. Although Utah Code section 76-5-404 has since been amended, 

we cite the version in effect at the time of Leota’s conduct.
State v. Leota

20171012-CA 8 2019 UT App 194

skin. The “indecent liberties” prong does not 

require a touching that is skin to skin.

. . . .

The Utah statute prohibiting “Forcible Sexual 

Abuse” specifies and prohibits certain enumerated 

touching of the unclothed anus, genitals, or female 

breast of another and then adds the phrase “or 

otherwise takes indecent liberties” as a catch all 

phrase extending the scope of the statute to forbid 

other sexual misconduct of equal seriousness and 

gravity as the “touching” prong. The “indecent 

liberties” prong cannot be met by the State merely 

by showing words were spoken. There must be 

conduct as well, akin [to] and alike the “touching” 

prong though any such touching need not be skin 

to skin under that prong.

¶18 The court also instructed that, in evaluating whether the 

conduct constituted indecent liberties, the jury “may consider 

the following factors”: (1) “the nature of the other’s participation 

and whether defendant required such participation,” (2) “the 

duration of the act,” (3) “the presence or absence of clothing,”

(4) “defendant’s willingness to terminate his conduct at the 

other’s request,” (5) “the relationship between the defendant and 

the other,” (6) “the age of the other,” and (7) “how intrusive the 

act was against the other’s person.”4 See generally State v. Carvajal, 

2018 UT App 12, ¶ 22, 414 P.3d 984 (setting forth the factors a 

jury may consider in evaluating indecent liberties); State v. Lewis, 

2014 UT App 241, ¶ 12, 337 P.3d 1053.

¶19 Considering these factors in the context of this case, we 

are satisfied that the jury was presented with sufficient evidence 

 

4. Leota does not challenge the jury instructions on appeal.
State v. Leota

20171012-CA 9 2019 UT App 194

from which to convict Leota of taking indecent liberties with 

Victim. First and foremost, the jury heard ample testimony about 

Leota’s relationship to Victim—that he was her stepfather. 

Indeed, she referred to him as “daddy,” and there was evidence 

that the two otherwise had a close, affectionate relationship. It 

was also undisputed that, at the time of the touching, Victim was 

fifteen years old, and the jury was instructed that, given her age 

and the familial relationship, Victim could not consent to the 

touching as a matter of law.

¶20 Second, the jury heard evidence about the circumstances 

surrounding the touching and, more specifically, the 

vulnerability of Victim’s position (and, by extension, the 

touching’s intrusiveness). For example, both Victim and Leota 

stated that the touching occurred while they cuddled on his bed 

watching television in his bedroom.

¶21 Third, as the State points out, the jury also heard evidence 

supporting reasonable inferences that, regardless of whether 

Leota at times characterized the touching as accidental, it was 

not. While Leota told Detective that the touching was accidental, 

he also told Detective that when he was holding Victim, his 

hands “went over . . . to where her boobs were” and that, with 

his hands on her breasts, he asked her if the touching was okay.

Detective also testified that Leota informed him that he did not 

remove his hands until Victim “eventually” expressed 

discomfort. Such evidence permitted reasonable inferences that, 

rather than being a merely accidental touch, Leota intentionally 

initiated the touching and then took advantage of his 

stepdaughter as long as he thought he could.

¶22 These facts, taken together, support the jury’s 

determination that Leota’s conduct was comparable to the 

touching of another’s bare breast or buttocks. That Leota 

disagrees with the jury’s evaluation of the evidence, and in 

particular with its weighing of the relevant factors, is not a 

sufficient basis on which to reverse. It was the jury’s prerogative 
State v. Leota

20171012-CA 10 2019 UT App 194

to consider all the evidence presented, weigh the relevant factors 

on which it had been instructed, and make findings according to 

its assessment of the evidence. See Black, 2015 UT App 30, ¶ 19; 

see also Ashcraft, 2015 UT 5, ¶ 24. Thus, we conclude that the 

evidence in this case was sufficient to support the jury’s 

determination that Leota’s conduct constituted the taking of 

indecent liberties under our forcible sexual abuse statute.5

II. Inherent Improbability

¶23 Leota also argues that the evidence was insufficient to 

support the verdict because Victim’s testimony was inherently 

improbable. We disagree.

 

5. Leota relies heavily on two cases from the 1980s—In re L.G.W., 

641 P.2d 127 (Utah 1982), and In re J.L.S., 610 P.2d 1294 (Utah 

1980)—to support his argument that the evidence was 

insufficient to support the jury’s verdict. However, both of those 

cases were decided under a different version of the forcible 

sexual abuse statute than the one that was applicable at the time 

of Leota’s conduct. Compare In re L.G.W., 641 P.2d at 129 (citing 

the forcible sexual abuse statute applicable at the time), and In re 

J.L.S., 610 P.2d at 1295 (same), with Utah Code Ann. § 76-5-404(1) 

(LexisNexis 2012). For example, the statute in effect at the time of 

In re L.G.W. and In re J.L.S. criminalized the touching of only the 

“anus or any part of the genitals of another”—arguably a more 

difficult standard to meet in terms of proving that touching 

clothed breasts was of the same magnitude as touching the anus 

or the genitals—while the statute in effect at the time of Leota’s 

conduct additionally criminalized touching of the buttocks or a 

female’s breast. Compare Utah Code Ann. § 76-5-404(1) (Allen 

Smith Co. 1978), with id. (LexisNexis 2012). Further, in both 

cases, the relationship between the perpetrator of the abuse and 

the victim was not that of stepfather and stepdaughter, the 

relationship involved here. Both cases therefore have limited 

value in resolving Leota’s sufficiency challenge.
State v. Leota

20171012-CA 11 2019 UT App 194

¶24 In State v. Robbins, our supreme court explained that a 

conviction must be based on “substantial reliable evidence” and 

that while a trial court “must ordinarily accept the jury’s 

determination of witness credibility, when the witness’s 

testimony is inherently improbable, the court may choose to 

disregard it.” 2009 UT 23, ¶¶ 14, 16, 210 P.3d 288 (cleaned up). 

“The inherent improbability doctrine has very limited 

applicability and comes into play ‘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.’” State v. Doyle, 2018 UT App 239, ¶ 17, 437 

P.3d 1266 (quoting Robbins, 2009 UT 23, ¶ 19); see also State v. 

Prater, 2017 UT 13, ¶ 38, 392 P.3d 398 (explaining that the court 

in Robbins reached its inherent improbability determination by 

relying on “inconsistencies in the [witness’s] testimony plus the 

patently false statements the [witness] made plus the lack of any 

corroboration”). In this respect, “[t]he existence of any additional 

evidence supporting the verdict prevents the judge from 

reconsidering the witness’s credibility.” Robbins, 2009 UT 23, 

¶ 19; see also Prater, 2017 UT 13, ¶¶ 36–43 (reiterating that the 

inherent improbability doctrine applies only if there is “no other

circumstantial or direct evidence” of a defendant’s guilt (cleaned 

up)).

¶25 Here, Leota claims that Victim’s testimony was inherently 

improbable such that the jury could not have convicted him of 

forcible sexual abuse based on Victim’s allegations of the 

touching. As support, Leota points to, among other things, 

certain alleged inconsistencies and falsities with respect to 

Victim’s testimony about conduct other than that associated with 

the forcible sexual abuse conviction, as well as Victim’s 

purported “reputation for dishonesty.”

¶26 However, we conclude that Leota’s inherent 

improbability challenge fails because there is evidence apart 

from Victim’s testimony supporting Leota’s conviction. The jury 

heard Detective testify that Leota confessed to him that he 
State v. Leota

20171012-CA 12 2019 UT App 194

inappropriately touched Victim’s breasts over her clothing on 

the day of the incident. Indeed, Detective testified that although 

Leota initially denied the allegations, he eventually admitted 

that the incident occurred and he expressed recognition that his 

actions were wrong. Under the principles set forth in Robbins

and Prater, the existence of this corroborative evidence, apart 

from Victim’s testimony, soundly defeats Leota’s inherent 

improbability challenge. See Prater, 2017 UT 13, ¶¶ 36–43; 

Robbins, 2009 UT 23, ¶¶ 16–19.

CONCLUSION

¶27 We conclude that there was sufficient evidence to support 

Leota’s conviction for one count of forcible sexual abuse. On this 

basis, we affirm.