2023 UT 19

IN THE

SUPREME COURT OF THE STATE OF UTAH

CAROLINE MENZIES ASHBY,

Appellant,

v.

STATE OF UTAH,

Appellee.

No. 20210330

Heard January 11, 2023

Filed September 14, 2023

On Direct Appeal

Fourth District, Utah County

The Honorable Thomas Low

No. 200400292

Attorneys:

Freyja Johnson, Emily Adams, Bountiful, Jensie L. Anderson, 

Jennifer Springer, Josephine Hall, Salt Lake City, for appellant

Sean D. Reyes, Att’y Gen., Mark C. Field, Asst. Solic. Gen.,

Salt Lake City, for appellee

JUSTICE HAGEN authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,

JUSTICE PETERSEN, and JUSTICE POHLMAN joined.

JUSTICE HAGEN, opinion of the Court:

INTRODUCTION

¶1 In 2012, a jury convicted Caroline Ashby of two counts of 

aggravated sexual abuse of a child for allegedly abusing her son, 

Kevin,1 while they were bathing together. Ashby’s conviction rested 

on allegations Kevin made first during a Children’s Justice Center 

_____________________________________________________________

1 A pseudonym.
ASHBY v. STATE

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2

(CJC) interview when he was eight years old, and later at trial when 

he was ten.

¶2 About a decade later, having had no contact with his mother 

during that period, Kevin recanted his statements. Kevin divulged 

that he had lied to the CJC interviewer and at trial, and that Ashby 

had never sexually abused him. Based on Kevin’s recantation, Ashby 

filed a petition for a post-conviction determination of factual 

innocence pursuant to Utah’s Post-Conviction Remedies Act (PCRA).

¶3 After holding an evidentiary hearing, the district court 

denied the petition, ruling that Ashby had failed to prove her factual 

innocence by clear and convincing evidence. The court indicated that 

it would be difficult to meet the clear and convincing burden of proof 

with a recantation, even if that recantation was reconcilable with the 

undisputed surrounding facts. But the court found Kevin’s 

recantation could not be reconciled with the “undisputed facts.”

¶4 On appeal, Ashby argues that the district court erred in its 

application of the clear and convincing evidence standard. To the 

extent the court held Ashby to a higher standard because she sought 

to prove her factual innocence with a recantation, it incorrectly 

inflated the burden of proof. Where a defendant is convicted based on 

uncorroborated witness testimony and that witness later recants

under oath, that recantation, if credible, is sufficient to prove factual 

innocence by clear and convincing evidence. Although the district 

court must carefully assess the circumstances surrounding the 

recantation and the witness’s credibility to determine if the 

recantation is believable, the district court made no express findings 

that Kevin’s testimony at the evidentiary hearing was false.

¶5 The State argues that, by finding Kevin’s recantation to be

“irreconcilable” with the “surrounding undisputed facts,” the district 

court implicitly found that Kevin was not credible. But even assuming 

the district court envisioned that finding as an implicit credibility 

determination, the finding that Kevin’s testimony conflicted with the 

“undisputed facts” is not supported by the record. In any event, proof 

by clear and convincing evidence does not require the petitioner to 

eliminate or reconcile all conflicts in the evidence. While such 

discrepancies may bear on the credibility of the recanting witness, the 

existence of conflicting evidence is not determinative.

¶6 Both parties agree that Kevin’s recantation, if believable, is 

sufficient to prove Ashby’s factual innocence by clear and convincing 

evidence. We therefore remand to the district court to determine 
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Opinion of the Court

3

whether the recantation is credible in accordance with the legal 

standards set forth in this opinion.

BACKGROUND

¶7 After a jury trial in 2012, Ashby was convicted of two counts 

of aggravated sexual abuse of her son, Kevin. At trial, no physical 

evidence of abuse or eyewitness testimony was presented. The only 

evidence of abuse was Kevin’s testimony that Ashby had taken 

indecent liberties with him while bathing together.

A. Events Leading up to the CJC Interview

¶8 Kevin was born to Caroline Ashby and David Ashby (Father) 

in 2002. Eventually the couple divorced, and Father married 

Stepmother. After the divorce, Ashby and Father engaged in a 

high-conflict relationship regarding custody and visitation, which 

Kevin often observed.

¶9 When Kevin was between six and eight years old, he began 

exhibiting behavioral issues, including throwing tantrums, being 

argumentative, lying, saying “outlandish” things, and acting out 

against his younger brother. Kevin also began acting out sexually

toward other children.

¶10 As a result of his behavioral issues, Kevin began seeing a 

therapist. In therapy, Kevin candidly disclosed his sexual behavior 

with other children but never disclosed any abuse or sexual behavior 

with his mother. Kevin told his therapist that he bathed with Ashby

and it made him uncomfortable, but he specified that Ashby wore

clothing when she bathed with him. At some point, Father and 

Stepmother learned that Kevin was bathing with Ashby, which Father 

and Stepmother thought was inappropriate. Eventually, either Father 

and Stepmother or Kevin himself told the therapist that Ashby and 

Kevin bathed together naked.

¶11 Kevin’s ongoing sexual behaviors prompted Stepmother to 

call the Division of Child and Family Services, which resulted in an 

interview at the CJC.

B. The CJC Interview

¶12 About two years before Ashby’s trial, Father and Stepmother 

took Kevin to the CJC to be interviewed. Kevin knew Father and 

Stepmother were concerned about his sexual behaviors. Stepmother 

explained to the CJC interviewer that she and Father thought Ashby’s 

bathing with Kevin was inappropriate and that it was related to why 

he was having behavior issues. Stepmother told the interviewer that 

she felt Kevin, who had just turned eight at the time, was too old to 
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4

see his mother naked, and that she was concerned it was “becoming a 

problem with him noticing different [body] parts.”

¶13 The interviewer began by asking Kevin about school, but 

then turned to what he knew about “privates” and how he knew 

about them. For the remainder of the interview, the interviewer 

primarily questioned Kevin about bathing with Ashby. Kevin 

reported that he and Ashby would take baths together and that he 

“used to do it naked.” When the interviewer asked Kevin to tell her 

more, Kevin sighed and said, “It’s embarrassing to me.” Kevin sighed 

again and explained that it was embarrassing because “it’s just really

bad and I didn’t know that then.”

¶14 When asked what he and Ashby did in the bathtub, Kevin 

reported that they played with toys and washed themselves. Kevin

explained that he would wash Ashby, and she would “wash 

everything except [his] private parts,” which he washed himself.

Later, he said that Ashby did wash his “private parts” but that he 

“didn’t wash hers.” The interviewer then showed Kevin some 

drawings of children with no clothes on and asked Kevin to identify 

by name various body parts. Kevin then reported that Ashby had him 

wash her “private parts,” including her “boob[s]” and “nipple[s],” 

“some of the butt cheek,” “inside [the] bum,” and “a little inside” her 

vagina. Kevin first claimed that he had washed inside her vagina with 

his “whole hand,” but adjusted his answer to indicate that it was just 

one finger.

¶15 Kevin was never asked during the interview whether he 

engaged in sexual behavior with other children, nor did he disclose 

such behavior to the interviewer.

¶16 Shortly after the CJC interview, Kevin began seeing a second 

therapist. With this therapist, Kevin denied that he had engaged in 

any sexual behavior with other children, but he claimed that his 

mother had sexually abused him over 100 different times.

C. Ashby’s Trial

¶17 Among other witnesses, Kevin, Father, Stepmother, and 

Kevin’s therapists testified at Ashby’s trial, and the jury was shown a 

video of Kevin’s CJC interview. No physical evidence of abuse was 

presented, and Father and Stepmother testified that, while they 

disapproved of Ashby bathing with Kevin, they never suspected 

Ashby of abuse. The only evidence of abuse was Kevin’s testimony.

¶18 Kevin was ten years old when he testified, and his testimony 

was given outside the presence of the jury and Ashby. When asked 

about “private parts,” Kevin testified that he had seen Ashby’s private 
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5

parts, but no one else’s, and that Ashby’s private parts had no hair.

He described a vagina as “[t]wo ovals stick together” with a hole, and 

“boobs” as “two bouncy balls” with “[a] nipple.”

¶19 Kevin testified that he would usually see Ashby’s private 

parts in the bathtub, but that they would also sometimes wear 

swimsuits. He testified that while in the bathtub, he would wash the 

“outside” of Ashby’s breasts, buttocks, and vagina. He denied 

washing inside her vagina or her anus, although he admitted that he 

said the opposite in his CJC interview.

¶20 The jury convicted Ashby on both counts of aggravated 

sexual abuse of a child, and she was sentenced to prison.

D. Kevin’s Recantation

¶21 Sometime after Ashby’s trial, both of Kevin’s biological 

parents relinquished their parental rights, and Kevin was eventually

adopted by his paternal aunt and uncle. When Kevin was seventeen 

years old, he disclosed to his adoptive mother that he had lied about 

Ashby’s conduct during the CJC interview and at trial. At that point, 

Kevin had not had any contact with Ashby since he was eight years 

old.

¶22 Kevin’s adoptive mother took him to see a psychologist, Dr. 

Goldsmith, to “determine whether [Kevin] is changing his story on his 

own free will or, whether he has been pressured to change his 

narrative.” Dr. Goldsmith reviewed transcripts of the jury trial and 

sentencing hearing and interviewed Kevin twice.

¶23 Kevin told Dr. Goldsmith that, at the time he accused Ashby, 

a neighbor boy had been sexually abusing Kevin since he was about 

six years old. Kevin explained that he began acting out with other 

children because of the sexual behaviors he learned from the neighbor 

boy. Kevin recalled going to the CJC as a result of his sexual behaviors 

and said he “didn’t want [his] friend to get in trouble, so [he] said it 

was [Ashby].” Kevin told the psychologist that it “was all a lie.” He 

remembered bathing with Ashby but said “there was nothing sexual 

about it.” At the time, Kevin “wasn’t scared for [his] mom. [He] was 

getting through the interview and told them what they wanted to 

know.”

¶24 Kevin told Dr. Goldsmith that the one time he had asked to 

do something inappropriate with Ashby, she had corrected him. 

Once, after watching babies nursing, Kevin asked to suck on Ashby’s 

nipples, and she said no. He was embarrassed and thought he 

shouldn’t have asked that.
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¶25 Dr. Goldsmith prepared a report in which he opined that 

Kevin was not “under any external pressure to recant” and was 

“acting of his own free will.” He found Kevin to be “forthright 

throughout the interviews” and “was exposing himself to deep 

emotional risks by attempting to set the record straight.”

¶26 Dr. Goldsmith also noted that Kevin has ADHD. During the 

interview with Dr. Goldsmith, Kevin “provide[d] short answers and 

often struggle[d] with accessing his memories[,] which is not atypical 

for children with ADHD.” Dr. Goldsmith concluded that “it is very 

likely that as a ten-year-old child in court, [Kevin] provided quick 

answers in order to put an end to a stressful interview” and offered

excerpts from Kevin’s trial testimony as examples of such an 

exchange.

E. Letter to the Board of Pardons

¶27 Shortly after visiting Dr. Goldsmith, Kevin wrote a letter to 

the Utah Board of Pardons asserting that he had lied in the CJC 

interview and at Ashby’s trial when he accused her of sexual conduct.

In his letter, Kevin explained that his sexual behavior with other 

children was actually the result of being abused by a neighbor boy, 

something that Kevin had never disclosed. The “sexual play” with the 

neighbor boy “taught [him] that horrible sexual things were the way 

kids played together.” As a child, Kevin believed adults could not “get 

in trouble.” So he reasoned that he could protect the neighbor boy, 

whose sexual conduct he had come to enjoy, by blaming his mother 

for his sexual reactivity with other children. Kevin told the Board of 

Pardons that Ashby was innocent and should not be in prison.

¶28 Kevin also recalled in his letter some specific memories with 

Ashby, including bathing with her. His letter did not indicate whether 

they were naked or wearing swimsuits during the baths, but he 

affirmatively remembered that there was nothing sexual about them.

He recalled, “When I was questioned in court I know I lied about this 

and remember thinking that I should make it sound convincing.”

¶29 The Board of Pardons held a hearing in which Kevin was 

placed under oath and testified. Kevin read his letter and maintained 

that his previous allegations against his mother were false. Following 

the hearing, the Board of Pardons granted Ashby parole.

F. Ashby’s Innocence Petition

¶30 After the Board of Pardons hearing, Ashby filed a petition for 

the determination of her factual innocence under Utah Code 

section 78B-9-402 and rule 65C of the Utah Rules of Civil Procedure, 
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7

attaching Kevin’s letter to the Board of Pardons and a declaration from 

Dr. Goldsmith.

¶31 The State moved for summary judgment, asserting that 

recantations are viewed with suspicion and are a disfavored basis for 

innocence claims, and that Kevin’s recantation in particular did not 

ring true. The State argued that (1) Kevin’s recantation never 

affirmatively disavowed the specific conduct underlying Ashby’s 

conviction and only expressed his subjective belief about not being 

sexually abused; and (2) it is “implausible” that an eight-year-old 

would be able to provide accurate descriptions of female anatomy 

without having engaged in the conduct of seeing and touching female 

genitals.

¶32 Ashby opposed the State’s summary judgment motion, 

asserting that it is inappropriate for a court to weigh credibility in 

summary judgment proceedings. Ashby also argued that (1) Kevin’s 

statements to Dr. Goldsmith and the Board of Pardons did disavow 

the conduct underlying Ashby’s convictions; and (2) because more 

than one inference could be drawn from Kevin’s testimony about 

female anatomy, summary judgment was not appropriate. Ashby also 

identified a number of disputed material facts that made summary 

judgment inappropriate.

¶33 The district court never entered an order regarding the 

summary judgment motion. Instead, it lifted the no-contact order that 

had been in place so the parties could depose Kevin. The State 

subsequently withdrew its summary judgment motion.

G. Kevin’s Deposition

¶34 The parties deposed Kevin, then eighteen years old, almost a 

year after his hearing with the Board of Pardons. Again, Kevin 

maintained that he had lied when he accused Ashby of sexual conduct 

in an attempt to protect a neighbor boy who had been sexually 

abusing him. Kevin explained that he knew he was being taken to the 

CJC because of his sexual behavior toward other children and that 

Father and Stepmother wanted to know why he was behaving that 

way.

¶35 Ashby’s counsel questioned Kevin regarding the specific 

conduct underlying Ashby’s conviction, and Kevin responded that 

she had never asked him to touch her genitals, nor had she ever tried

to sexually stimulate him. When asked about how he came to know 

about female anatomy, Kevin could not remember, but thought it was 

possible he saw female nudity in an anatomy book, artwork, or 

pornography.
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¶36 Kevin also recalled bathing with Ashby—she would wash 

him, but there was nothing sexual in nature about it. He never said 

whether they were naked or wearing swimsuits, but described the 

bathing as being more like a pool day in the bathtub and he 

remembered playing with toys.

¶37 After Kevin’s deposition, the State maintained that Kevin’s 

testimony was insufficient to prove Ashby’s factual innocence. In the 

State’s view, Kevin’s lack of memory about how he came to know 

about female anatomy necessarily meant he had engaged in sexual 

conduct with Ashby.

H. Evidentiary Hearing

¶38 The court then held an evidentiary hearing in which Kevin 

testified. Consistent with the statements he made to Dr. Goldsmith, to 

the Board of Pardons, and in his deposition, Kevin testified that he 

had been sexually abused by a neighbor boy and that, as a result, he 

began acting out sexually with other children. Kevin described the 

abuse from the neighbor boy as “sexual touching,” but he was not 

asked about any details. He explained that he blamed Ashby in order 

to protect the neighbor boy, not realizing that Ashby could get into 

any trouble. Kevin was never asked about why he thought he needed 

to place blame on anyone in the CJC interview. Nor was he questioned 

regarding what he understood as the reason why he was being taken 

to the CJC.

¶39 Kevin affirmatively testified that he had lied at the CJC 

interview and at trial when he accused Ashby of sexual conduct.

Kevin testified about bathing with Ashby, but he maintained that 

nothing sexual in nature ever occurred. When asked whether he 

remembered bathing nude with his mother, Kevin said that he did not 

and that his only clear memory of bathing together was when they 

had worn swimsuits and played with toys as if they were in a 

swimming pool.

¶40 Kevin could not specifically remember how he came to know 

about female anatomy as a child, but he knew it was not because of 

Ashby. Kevin testified that he could have snuck onto the internet, he 

probably saw female babies getting diaper changes, and he could have 

looked at pornography. He remembered being shown drawings of

female anatomy during his CJC interview. He was never specifically 

asked whether he could remember ever seeing Ashby naked.

¶41 Following the evidentiary hearing, the district court found 

that Ashby had failed to show her factual innocence by clear and 

convincing evidence and denied her petition. The court noted that it 
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9

would be difficult for Ashby to prove her innocence by clear and 

convincing evidence with recantation testimony because Kevin 

“testified that he has been a prevaricator.” Under these circumstances, 

the court thought it would be difficult to meet the clear and 

convincing standard even if Kevin’s “testimony [was] reconcilable 

with the undisputed surrounding facts.” But the court concluded that 

Kevin’s “testimony is irreconcilable.”

¶42 Specifically, the court identified three ways in which it 

deemed Kevin’s recantation “inconsistent with undisputed facts.”

First, the district court found that it was “undisputed that [Ashby] 

bathed naked with [Kevin] during his childhood.” As support, the 

court pointed to the statements Kevin made as a child and his more 

recent statements to Dr. Goldsmith and the Board of Pardons in which 

Kevin “implied that they were naked during the baths.” Specifically, 

Kevin told the Board of Pardons that Ashby washed him while he 

played with toys, told Dr. Goldsmith that they washed each other’s 

backs, and told both that he had once asked to suck on Ashby’s 

nipples. The court contrasted these statements with Kevin’s testimony 

at the evidentiary hearing “that there were only a couple of times they 

ever bathed together, that they wore swimming suits on both 

occasions, that he only played with toys, and that neither of them 

washed the other.”

¶43 Second, the court concluded that it was undisputed that 

Kevin “had not, at least up to the time of the CJC interview, ever seen 

pornography or female nudity other than [Ashby’s].” The court 

observed that, at the CJC interview, Kevin “knew that a finger could 

be inserted into a vagina” and, at trial, “was able to accurately describe 

not only female anatomy in general” but also that his mother’s pubic 

area was hairless. The court found that, at the evidentiary hearing, 

Kevin was “unable to explain how he acquired this knowledge” and 

“did not even admit to seeing [Ashby’s] nude body.”

¶44 Third, the court noted that “the primary premise of [Kevin’s] 

recantation is that he impugned his mother to protect his friend.” But,

the court found, “nothing in the CJC interview applied any pressure 

on [Kevin] to implicate anyone of anything or divert attention from 

the friend.” The court found that Kevin’s “description of his baths 

with [Ashby] bears no indications that he was covering for, or 

protecting, a friend who was abusing him” and that it was apparent 

that “he did not consider the baths to be abusive at the time of the CJC 

interviews.” On these bases, the court concluded that Ashby had 

failed to carry her burden to prove her factual innocence by clear and 

convincing evidence.
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¶45 Ashby appeals.

STANDARD OF REVIEW

¶46 The ultimate determination of factual innocence is a mixed 

question of fact and law because it requires a district court to apply 

the clear and convincing standard to the evidence presented in each 

case. See Randolph v. State, 2022 UT 34, ¶¶ 30, 45, 515 P.3d 444; State ex 

rel. E.R., 2021 UT 36, ¶ 17, 496 P.3d 58. “Because a trial court is in a 

better position to judge credibility and resolve evidentiary conflicts, 

an appellate court reviews the trial court’s findings of fact for clear 

error.” Brown v. State, 2013 UT 42, ¶ 37, 308 P.3d 486 (cleaned up). “We 

will set aside a district court’s factual finding as clearly erroneous only 

if it is against the clear weight of the evidence, or if we otherwise reach 

a definite and firm conviction that a mistake has been made.” Id.

(cleaned up). On the other hand, “we review the post-conviction 

court’s legal conclusions for correctness, granting no deference to the 

district court.” Oseguera v. State, 2014 UT 31, ¶ 9, 332 P.3d 963 (cleaned 

up).

ANALYSIS

¶47 We begin with an overview of the statutory scheme under 

which claims of factual innocence are evaluated. Under Part 4 of the 

PCRA, titled “Postconviction Determination of Factual Innocence,” a 

person convicted of a felony offense may petition the district court 

“for a hearing to establish that the person is factually innocent of the 

crime or crimes of which the person was convicted.” UTAH CODE

§ 78B-9-402(1). The petition must demonstrate, among other things, 

that “newly discovered material evidence exists that, if credible, 

establishes that the petitioner is factually innocent.” Id. § 78B-9-

402(2)–(3). If the court determines that the statute’s threshold 

requirements are met and that “there is a bona fide and compelling 

issue of factual innocence regarding the charges of which the 

petitioner was convicted,” the district court must hold a hearing. Id.

§ 78B-9-402(9)(c)(i).

¶48 Section 78B-9-404 “sets forth how the evidentiary hearing is 

to proceed and gives direction to courts on how to determine factual 

innocence.” Brown v. State, 2013 UT 42, ¶ 40, 308 P.3d 486. “The burden 

is upon the petitioner to establish the petitioner’s factual innocence by 

clear and convincing evidence.” UTAH CODE § 78B-9-404(1)(b). As 

relevant here, “factual innocence” means that the petitioner did not

“engage in the conduct for which the person was convicted.” Id. § 78B9-401.5(2)(a).
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¶49 Unlike a motion for a new trial, in which the district court 

only assesses the “probable weight” that a jury would afford the 

recantation on retrial, see State v. Loose, 2000 UT 11, ¶ 18, 994 P.2d 1237, 

a factual innocence petition requires the district court itself to act as 

factfinder—to weigh the evidence, assess credibility, and determine 

whether the petitioner has proven factual innocence by clear and 

convincing evidence. In determining whether the petitioner has met 

that burden, “the court shall consider, in addition to the evidence 

presented at the hearing under this part, the record of the original 

criminal case and at any postconviction proceedings in the case.” 

UTAH CODE § 78B-9-404(3).

¶50 If, “after considering all the evidence,” the court “determines 

by clear and convincing evidence that the petitioner” is factually 

innocent, the court shall order the conviction vacated with prejudice 

and expunged from the petitioner’s record. Id. § 78B-9-404(4)(a). 

Under the statutory scheme, a successful petitioner is also entitled to 

assistance payments based on the time spent incarcerated for a crime 

the petitioner did not commit. Id. § 78B-9-405.

¶51 In this case, the district court found that Ashby had satisfied 

the threshold showing under section 78B-9-402 and was entitled to an 

evidentiary hearing. After hearing Kevin’s sworn testimony and 

reviewing the record, the district court concluded that Ashby had not 

proven her factual innocence by clear and convincing evidence.

I. WHERE A CONVICTION IS BASED ON THE 

UNCORROBORATED TESTIMONY OF A SINGLE WITNESS,

A FULL RECANTATION BY THAT WITNESS, IF CREDIBLE,

IS SUFFICIENT TO PROVE FACTUAL INNOCENCE BY 

CLEAR AND CONVINCING EVIDENCE

¶52 Ashby contends that the district court erred as a matter of law 

by applying a heightened burden of proof to Ashby’s factual 

innocence petition because it was based on a recantation. To succeed 

on a factual innocence petition, the petitioner bears the burden of 

proof by clear and convincing evidence. UTAH CODE § 78B-9-404(1)(b).

The clear and convincing evidence standard “demands the 

introduction of evidence that makes the existence of the disputed facts 

very highly probable.” Randolph v. State, 2022 UT 34, ¶ 84, 515 P.3d 444 

(cleaned up). It “is an intermediate standard of proof that implies 

something more than the usual requirement of a preponderance of the 

evidence; and something less than proof beyond a reasonable doubt.” 

Brown v. State, 2013 UT 42, ¶ 69 n.68, 308 P.3d 486 (cleaned up).
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¶53 Ashby contends that the district court incorrectly held her to 

a higher burden of proof because her factual innocence claim was 

based on a recantation. In denying the petition, the court reasoned that 

because Kevin “testified that he has been a prevaricator,” it would be 

difficult for his testimony to provide clear and convincing evidence of 

Ashby’s innocence. The court further observed that, “[e]ven [if 

Kevin]’s testimony [was] reconcilable with the undisputed 

surrounding facts, it would be difficult to meet this burden of proof.”

¶54 In Ashby’s view, the district court’s observation that it would 

be difficult to meet the clear and convincing standard with recantation 

evidence shows that the court applied the wrong legal standard.

Ashby points out that even under the higher burden of proof beyond 

a reasonable doubt, testimony from an admitted prevaricator is 

sufficient to uphold a criminal conviction. (Citing State v. Stricklan, 

2020 UT 65, 477 P.3d 1251.) If the testimony of an admitted 

prevaricator is sufficient to prove that a defendant is guilty beyond a 

reasonable doubt, Ashby insists that it must be sufficient to prove 

factual innocence under the lower standard of clear and convincing 

evidence.

¶55 We agree with Ashby that where a conviction rests entirely 

on the testimony of a single witness, a credible recantation by that 

witness, standing alone, is sufficient to prove factual innocence by 

clear and convincing evidence. To the extent the district court 

considered it more difficult to prove factual innocence with a 

recantation than with other evidence, it inflated Ashby’s burden of 

proof.

¶56 As the State acknowledges on appeal, if Kevin’s recantation 

is “believable, then the recantation would establish [Ashby’s] factual 

innocence” by clear and convincing evidence. To prevail on her 

petition, Ashby is required to prove that she did not “engage in the 

conduct for which [she] was convicted.” UTAH CODE § 78B-9-

401.5(2)(a). Ashby’s conviction was based solely on Kevin’s 

statements. Although there was some evidence to corroborate Kevin’s 

account that he and Ashby bathed together naked,2 no witnesses or 

other evidence supported Kevin’s claim that Ashby had engaged in 

_____________________________________________________________

2 Specifically, Stepmother testified that she had gone to Ashby’s 

house to pick up Kevin when he was between six and eight years old. 

Stepmother stated, “When I knocked on the door [Ashby] answered it 

in a towel and her hair was wet. And when I went inside, Kevin came 

out of the hallway and he was naked. And [Ashby] laughed and said,

‘Sorry, we’re just getting out of the tub.’”
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Opinion of the Court

13 

the sexual conduct for which she was convicted. And Kevin’s 

recantation was complete and unequivocal. He did not merely claim 

to have no recollection of the abuse; he testified that he remembered 

lying about the abuse at Ashby’s trial. As the State puts it, “in the 

context of Ashby’s case, if Kevin’s recantation testimony—the new 

evidence—were found to be credible, then Kevin’s recantation would 

show by clear and convincing evidence that she did not engage in the 

conduct for which she was convicted and, therefore, that she is 

factually innocent.” Accordingly, the only question before the district 

court was whether Kevin’s recantation was credible.

¶57 In the State’s view, that is where the difficulty lies. The State 

asserts that “recantations are inherently unreliable and therefore 

using them to prove innocence is necessarily a challenging 

proposition.” The State reads the district court’s challenged comments

as merely acknowledging that “a recantation, by its very nature, calls 

into question the credibility of the recanting witness.”

¶58 There is ample support for the proposition that recantations 

are viewed “’with extreme suspicion’” and have “‘long been 

disfavored as the basis for a claim of innocence.’” Case v. Hatch, 731 

F.3d 1015, 1041–42 (10th Cir. 2013) (quoting Carriger v. Stewart, 132 

F.3d 463, 483 (9th Cir. 1997) (Kozinski, J., dissenting)). “Skepticism 

about recantations is especially applicable in cases of child sexual 

abuse where recantation is a recurring phenomenon.” People v. 

Schneider, 25 P.3d 755, 763 (Colo. 2001). 

¶59 To be sure, recantations must be carefully scrutinized. “The 

recanting witness is admitting that he or she has lied under oath. 

Either the original sworn testimony or the sworn recantation 

testimony is false.” State v. McCallum, 561 N.W.2d 707, 712 (Wis. 1997). 

But there is no presumption that the recantation—as opposed to the 

trial testimony—is false.3 Determining which story to credit requires 

a careful examination of the retracting witness’s credibility under oath 

and the circumstances surrounding the recantation.

¶60 Other courts have identified various factors to consider in 

determining whether a recantation is credible. See, e.g., Schneider, 25 

P.3d at 762; State v. Worley, 476 P.3d 1212, 1221–22 (N.M. 2020); People 

_____________________________________________________________ 

3 We note that some courts do apply something of a presumption 

in favor of the original testimony by requiring that a recantation be 

corroborated with additional newly discovered evidence. See, e.g.,

State v. McAlister, 911 N.W.2d 77, 87 (Wis. 2018). The State has not 

suggested that we adopt a similar rule.
ASHBY v. STATE

Opinion of the Court

14

v. Nelson, 171 A.D.3d 1251, 1253 (N.Y. App. Div. 2019). For example, 

the New Mexico Supreme Court has instructed district courts to 

“analyze the following factors, none of which is dispositive on its 

own,” to determine if a recantation is credible:

(1) The original verdict was based upon uncorroborated 

testimony; (2) the recantation is corroborated by 

additional new evidence; (3) the recantation occurred 

under circumstances free from suspicion of undue 

influence or pressure from any source; (4) the record 

fails to disclose any possibility of collusion between the 

defendant and the witness between the time of the trial 

and the retraction; and (5) the witness admitted the 

perjury on the witness stand and thereby subjected 

himself or herself to prosecution.

Worley, 476 P.3d at 1221–22 (cleaned up). In addition to those five 

factors, “the district court must also weigh the credibility of the 

witness.” Id. at 1222.

¶61 Although these factors are neither exclusive nor dispositive, 

they are helpful in assessing whether a particular recantation is 

reliable. Recantations are viewed with suspicion due to the real 

concern that witnesses may be motivated to retract accusations for 

reasons other than the truth. Therefore, examining the circumstances 

in which the recantation occurred is critical to assessing whether it is 

credible. To the extent the district court raised Ashby’s burden of 

proof, we remand for the district court to reexamine Kevin’s 

recantation under the correct legal standard.

II. THE DISTRICT COURT DID NOT CONSIDER THE 

RELEVANT CIRCUMSTANCES SURROUNDING THE 

RECANTATION OR MAKE AN EXPRESS CREDIBILITY

FINDING

¶62 Where a recantation, if believed, would establish the 

petitioner’s factual innocence, the district court must determine

whether it is “very highly probable” that the recantation is true. 

Randolph v. State, 2022 UT 34, ¶ 84, 515 P.3d 444. In making that 

determination, a court must consider all the relevant circumstances 

and assess whether the recanting witness testified credibly under 

oath.

¶63 Here, Ashby contends that the district court “did not weigh 

the evidence, resolve factual disputes, make specific factual findings 

about what occurred when Kevin was a child, or make credibility 

determinations based on the witness’s demeanor and delivery while 
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Opinion of the Court

15

testifying[,]” but instead “merely compared the content of Kevin’s 

testimony [at the evidentiary hearing] to evidence in the trial record 

. . . without ruling whether Kevin told the truth as an adult or as a 

child.” We agree that the district court did not consider all the relevant 

circumstances or make the factual findings necessary to allow us to 

review its ruling.

¶64 For starters, the district court did not address the 

circumstances surrounding Kevin’s recantation. And there is ample 

evidence in the record that weighs in favor of the recantation’s 

reliability.

¶65 One reason recantations are viewed with suspicion is the risk 

that the petitioner, or those close to the petitioner, may have 

persuaded the witness to falsely recant. Here, the record reveals there 

was no “possibility of collusion between the defendant and the 

witness between the time of the trial and the retraction.” State v.

Worley, 476 P.3d 1212, 1221 (N.M. 2020). It is undisputed that Kevin 

had no contact with Ashby between the time of the CJC interview and 

his recantation. And there is no evidence that Kevin was ever 

contacted by anyone on Ashby’s behalf. Kevin first disclosed that he 

had lied about Ashby in a conversation with his adoptive mother, who 

is Father’s sister-in-law. There is no evidence of any relationship 

between Kevin’s adoptive mother and Ashby, and, in any event, 

Kevin disclosed the information unprompted and on his own 

initiative.

¶66 Indeed, “the recantation occurred under circumstances free 

from suspicion of undue influence or pressure from any source.” Id. 

After Kevin disclosed that he had lied about Ashby, his adoptive 

mother arranged for him to meet with Dr. Goldsmith to assess 

whether he was “changing his story o[f] his own free will or, whether 

he has been pressured to change his narrative.” Dr. Goldsmith

concluded that Kevin was not “under any external pressure to recant” 

and was “acting of his own free will.” His adoptive mother later 

helped Kevin figure out how to appear before the Board of Pardons, 

but Kevin “wrote the letter to the parole board all by [him]self.” No 

one reviewed it or made any suggestions. And his adoptive parents 

told Kevin, “You do not have to do this if you don’t want to. This is 

your choice and your choice only.” Even the State conceded at the 

evidentiary hearing that Kevin was not “being coerced in any way” 

and is “doing this of his own free will.”

¶67 Further, there is no evidence that Kevin had a motive to 

falsely recant. In cases involving sexual abuse by a parent, a false 

recantation may be prompted by the disruption to the child’s family 
ASHBY v. STATE

Opinion of the Court

16

life following the parent’s conviction. See, e.g., State v. Stricklan, 2020 

UT 65, ¶ 101, 477 P.3d 1251 (holding that a jury could reasonably find 

that the victim’s “recantation was motivated not by a desire to set the 

record straight but to ameliorate the negative consequences of [the 

defendant’s] absence from their home”). But despite living in foster 

care for a time, Kevin did not recant his testimony as a child in hopes 

of being reunited with his mother. Instead, he did not come forward 

until he was nearly an adult and only after he was in a stable and

loving adoptive home.

¶68 Kevin testified in his deposition that he no longer has any 

connection to Ashby and did not come forward with the expectation 

of “getting any kind of money or relationship” with his mom. And the 

State did not challenge Kevin’s sincerity, telling the district court that 

the State was not “questioning . . . [Kevin’s] motives in coming 

forward now.” In short, nothing in the record suggests that Kevin 

stands to gain by falsely recanting his trial testimony. To the contrary, 

according to Dr. Goldsmith, Kevin “was exposing himself to deep 

emotional risks by attempting to set the record straight.”

¶69 And finally, Kevin recanted under oath at the evidentiary 

hearing, exposing himself to prosecution for perjury if he testified 

falsely. Although Ashby could offer no evidence to corroborate 

Kevin’s retraction, there was also no evidence to corroborate Kevin’s 

original accusations of abuse. Ashby’s conviction was based solely on 

the statements that Kevin now swears were false.

¶70 There may be other evidence relevant to whether Kevin’s 

recantation is credible, including the circumstances under which the 

original accusations were made. “For example, the court may consider 

any motive to fabricate the initial accusation; observations by 

witnesses of the recanting witness when making the initial 

accusations; the nature and detail of both the accusations and the 

recantation; and whether the accusations were made under oath.” 

People v. Schneider, 25 P.3d 755, 762 (Colo. 2001). But here the district 

court did not weigh the relevant considerations, resolve conflicting 

evidence, or make factual findings about the reliability of either the 

original accusations or the recantation.

¶71 Nor did the district court make findings about Kevin’s 

credibility as a witness. In deciding whether to credit a recantation, 

district courts must “consider the credibility of the witness recanting 

under oath.” Id. District courts are in a superior position to assess 

credibility because they have the opportunity to observe firsthand “a 

witness’s appearance, demeanor, and overall credibility.” Randolph, 

2022 UT 34, ¶ 38; see also Sawyer v. Dep’t of Workforce Servs., 2015 UT 
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Opinion of the Court

17

33, ¶ 13, 345 P.3d 1253. “Manner of expression, sincerity, candor and 

straightforwardness are just some of the intangibles available to the 

trial judge in evaluating the credibility of recantation testimony.” State 

v. Carter, 354 A.2d 627, 631–32 (N.J. 1976). For that reason, “when an 

assessment of credibility turns on observing a witness and [the 

witness’s] demeanor, we afford deference to the trier of fact that had 

the opportunity to assess the witness’s credibility.” Stricklan, 2020 UT 

65, ¶ 100 n.18. But here, the court made no credibility assessment 

based on its observations of Kevin’s testimony. The order contains no 

findings about the manner in which Kevin testified, nor does it 

suggest that the court found Kevin to be an unbelievable witness 

based on intangible factors not apparent from the cold record.

¶72 In fact, the district court never expressly made any adverse 

credibility determination. Although the court labeled section eleven

of its order, “The Court’s Findings on Credibility,” it contains only one 

express credibility finding: that Kevin’s testimony about not knowing, 

as a child, that he was getting Ashby into trouble was “believable.” 

The court never made the inverse finding that Kevin’s other testimony 

was not believable. We do not necessarily require a district court to 

make express credibility findings where “the findings of ultimate facts 

implicitly reflect consideration of the believability of the witnesses’ 

testimony.” In re Adoption of McKinstray v. McKinstray, 628 P.2d 1286, 

1289 (Utah 1981). But here, the court made no findings of ultimate fact

regarding whether Ashby “engage[d] in the conduct for which [she] 

was convicted.” See UTAH CODE § 78B-9-401.5(2)(a).

¶73 Both parties agree that Kevin’s recantation, if believable, is 

sufficient to prove Ashby’s factual innocence by clear and convincing 

evidence. Because the district court did not address the relevant 

considerations or determine the recantation’s veracity, we cannot 

evaluate whether Ashby met her burden.

III. THE DISTRICT COURT’S DETERMINATION THAT THE 

RECANTATION WAS IRRECONCILABLE WITH THE 

“UNDISPUTED EVIDENCE” IS CLEARLY ERRONEOUS

¶74 The State argues that the district court did, in fact, find that

Kevin’s recantation was not believable. It urges us to read the court’s 

finding that Kevin’s testimony was “irreconcilable” with the 

“undisputed surrounding facts” as an implicit credibility finding.

And, the State argues, Ashby has not met her heavy burden to 

overcome the deference that this court affords to the district court’s 

factual findings.
ASHBY v. STATE

Opinion of the Court

18

¶75 For her part, Ashby argues that because “the district court’s 

determination that Kevin’s testimony was ‘irreconcilable’ with 

‘undisputed facts’ was made from comparing the cold record of the 

trial (for which it had not been present) with Kevin’s statements at the 

evidentiary hearing, the court’s determination that Kevin’s testimony 

was ‘irreconcilable’ should be reviewed without any deference from 

this Court.” Even if we afford deference on review, Ashby contends 

that “the court’s determinations that Kevin’s testimony is 

‘irreconcilable’ are clearly erroneous because the court failed to 

consider all of the facts and made a determination against the clear 

weight of the evidence.” (Cleaned up.)

¶76 Generally, when “making factual findings, the trial court is in 

a unique position to assess the credibility of witnesses and weigh the 

evidence.” State v. Tripp, 2010 UT 9, ¶ 30, 227 P.3d 1251 (cleaned up). 

Accordingly, we “defer to the factual findings of the trial court unless

the findings are clearly erroneous.” Id. When reviewing for clear error, 

“[t]he lower court’s decision should be respected unless the court 

failed to consider all of the facts or reached a decision against the clear 

weight of the evidence.” State ex rel. E.R., 2021 UT 36, ¶ 32, 496 P.3d 58

(cleaned up).

¶77 The district court’s determination that Kevin’s testimony 

could not be reconciled with the record rested on its determination 

that certain facts were “undisputed.” Specifically, the court deemed it 

undisputed that (1) Kevin had admitted to bathing nude with Ashby; 

(2) Kevin had never seen female nudity prior to his CJC interview; and 

(3) Kevin was under no pressure to make allegations against anyone 

when he was interviewed at the CJC. Because there is conflicting 

evidence in the record on each of these points, the district court clearly 

erred in treating these facts as “undisputed.”

¶78 First, the court found that Kevin’s testimony that he only 

recalled bathing with Ashby while they were wearing swimsuits was 

irreconcilable with the undisputed evidence that Kevin remembered

bathing together naked. The undisputed evidence that the court cited 

was Kevin’s statements to Dr. Goldsmith and the Board of Pardons

that Ashby washed him while he played with toys, that they washed 

each other’s backs, and that he had once asked to suck on Ashby’s 

nipples.4 The court inferred from those statements that Kevin had 

_____________________________________________________________

4 The district court did not cite Ashby’s testimony at trial that she 

had bathed with Kevin when he was three or four years old, 

presumably because Kevin could not be expected to remember events 

that occurred so early in his childhood.
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Opinion of the Court

19

admitted to bathing naked with Ashby. Although the court might

have drawn a reasonable inference that the two were naked, it was 

equally plausible that the two were wearing swimsuits when those 

events occurred. And Kevin was never asked to address those specific 

instances at the evidentiary hearing. Because competing inferences 

could be drawn from the evidence, the court clearly erred in finding 

that it was “undisputed” that Kevin knew that he and Ashby had 

bathed together naked and that Kevin’s testimony that he only 

recalled bathing together in swimsuits was irreconcilable with that 

fact.

¶79 Second, the court found that it was “undisputed” that Kevin 

“had not, at least up to the time of the CJC interview, ever seen 

pornography or female nudity other than [Ashby’s].” As evidence, the 

court cited Kevin’s inability to explain how he acquired knowledge of 

female anatomy. But Kevin testified that, although he did not recall 

anyone showing him pornography as a child, he “could have looked 

at porn” and could imagine “sneaking and getting it on the internet.”

When asked how he could have known as an eight-year-old child that 

a finger could be inserted into a woman’s vagina, Kevin responded, 

“I honestly don’t know. I could have looked at porn or—because those 

things happen in pornography. I honestly am not sure how I became 

aware of that much female anatomy, but somehow I did. But it wasn’t 

because of my mom.” The fact that Kevin, as an adult, could not 

specifically recall how he learned about female anatomy as a child 

does not establish, as an undisputed fact, that he had no exposure to 

pornography or other sources of such information.

¶80 The court also found that, even though Kevin correctly 

recounted as a child that his mother’s genitals were hairless, Kevin 

“did not even admit to seeing [Ashby’s] nude body.” But Kevin did 

not testify that he had never seen his mother nude. Although he 

testified that he only recalled bathing together in swimsuits, he was 

never asked whether he had observed his mother nude while she was 

dressing, showering, or engaged in other ordinary activities in the 

home. Because Kevin never denied seeing his mother nude, the 

evidence does not support the court’s conclusion that his testimony 

was irreconcilable with his knowledge as a child.

¶81 Third, the court found that Kevin’s explanation that he lied to 

protect the neighbor boy was irreconcilable with the undisputed fact 

that Kevin was under no pressure to implicate anyone when he 

disclosed the alleged abuse in the CJC interview. Although the record 

supports the district court’s finding that “nothing in the CJC interview

applied any pressure on [Kevin] to implicate anyone of anything or to 
ASHBY v. STATE

Opinion of the Court

20

divert attention from the friend,” the court overlooked evidence that 

Kevin understood the purpose of the interview before it started.

(Emphasis added.)

¶82 In his deposition, Kevin explained that he knew Father and 

Stepmother were upset because he had been acting out sexually with 

other children, his parents wanted to know why he was behaving that 

way, and they took him to a therapist because of his sexual behavior.

He also knew going into the CJC interview that Father and 

Stepmother’s concerns about his behavior were at least somewhat tied 

to him bathing with Ashby. And his statements in the interview 

confirm that he had been taught, prior to the interview, that bathing 

naked with his mother was “just really bad.” Kevin told Dr. 

Goldsmith that he knew that Father and Stepmother “believed that his 

sexual acting out behaviors were a result of inappropriate behaviors 

that took place while he visited [Ashby] on weekends.” So, Kevin 

explained, when he was asked where he learned sexual behaviors, he 

said “my mom” because he did not want to reveal that he had actually 

learned them from the neighbor boy.

¶83 Even if Kevin “had no idea that he was describing something 

that could be interpreted as abuse,” there was at least some evidence 

in the record that Kevin was preconditioned to attribute “sexual play” 

to Ashby. Given this competing evidence, the court clearly erred in 

finding that it was undisputed that Kevin was under no pressure to 

implicate Ashby at the time of the CJC interview.

¶84 Because there is conflicting evidence in the record, we reverse 

the court’s finding that Kevin’s testimony is “irreconcilable” with the 

“undisputed evidence.” In reaching this conclusion, we do not mean 

to suggest that the evidence identified by the district court is not 

relevant to determining whether Kevin’s recantation is credible. 

Perceived discrepancies in a witness’s statements are appropriately 

considered in assessing a witness’s credibility. But such discrepancies 

“are not determinative of [a witness’s] credibility.” See State v. Kirby, 

2016 UT App 193, ¶ 23, 382 P.3d 644 (addressing inconsistencies 

between a victim’s testimony at the preliminary hearing and at trial).

And conflicting—even irreconcilable—evidence does not 

automatically defeat proof by clear and convincing evidence. In Brown 

v. State, 2013 UT 42, 308 P.3d 486, for example, we upheld a district 

court’s determination of factual innocence by clear and convincing 

evidence even though there was inconsistent evidence in the record. 

In doing so, we noted that “the mere existence of contradictory, 

underlying evidence is of no consequence” because we rely on the 
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Opinion of the Court

21

district court “to judge credibility and resolve conflicting evidence.” 

Id. ¶ 63.

¶85 But here the district court did not purport to judge credibility 

or resolve the conflicts in the evidence. It treated the facts as 

undisputed and, in so doing, failed to consider all of the evidence. 

Because we conclude that any implicit credibility determination was 

based on a clearly erroneous factual finding that the recantation was 

“irreconcilable” with the “undisputed facts,” we vacate the district 

court’s order and remand for further findings consistent with this 

opinion.

CONCLUSION

¶86 Kevin’s recantation, if credible, is sufficient to prove Ashby’s 

factual innocence by clear and convincing evidence. But the district 

court denied the petition without weighing all the relevant evidence, 

assessing credibility, or making an ultimate finding on the 

recantation’s veracity. And, to the extent the court made an implicit 

credibility determination, it was based on a clearly erroneous finding 

that certain facts were undisputed. We therefore remand to the district 

court to determine whether Kevin’s recantation is credible.