author: CHRISTIANSEN FORSTER, Judge:

text:
    STATE of Utah, Appellee, v. Andre Gustavo Henry LOPEZ, Appellant.
    No. 20150052-CA
    Court of Appeals of Utah.
    Filed January 10, 2019
    Douglas J. Thompson and Margaret P. Lindsay, Attorneys for Appellant
    Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Defendant Andre Gustavo Henry Lopez appeals his convictions for rape, object rape, and assault. Defendant argues that he received constitutionally ineffective assistance of counsel and that the cumulative effect of counsel's errors deprived him of a fair trial. We reject each of Defendant's arguments and affirm.

BACKGROUND

¶2 Defendant and his girlfriend (Girlfriend) lived together. One evening, they attended a wedding reception where they both consumed alcohol. Defendant observed Girlfriend speaking to other men and became agitated. After leaving with Girlfriend, he yelled at her "the whole car drive home," using a variety of sexual and racial invectives and challenging Girlfriend's sexual self-restraint.

¶3 Upon arriving at their house, Defendant's tirade continued, prompting a neighbor (Neighbor) to call the police because of the yelling and screaming. A police officer responded to the house soon after and spoke only to Girlfriend. Girlfriend said everything was fine and told the officer to leave because his presence was "going to make this worse."

¶4 After the officer left, Defendant resumed insulting Girlfriend and insisted that she have sex with him because she needed to "take care of his needs." Defendant tried to kiss Girlfriend, but she "told him no" and pushed him away with her hand. This further upset Defendant, so he threatened he was "gonna take it" if she refused to have sex with him. Girlfriend curled up in the fetal position on the couch and Defendant put his hand on her neck and shoved her down. Then he put his fingers in her vagina and her anus. Girlfriend told Defendant he was hurting her and told him to stop.

¶5 Defendant then yanked Girlfriend's sweatpants hard enough to pull her off the couch, ripping the pants in the process. Girlfriend pleaded with him to go to bed and "just be done." Defendant responded by dragging Girlfriend by her ankle to the front door, demanding that she leave if she would not have sex with him. Girlfriend made her way back to the couch. At this point, Girlfriend succumbed to Defendant's threats and agreed to go upstairs to the bedroom with him. On the way upstairs, Defendant smacked Girlfriend's legs, hit her head, and pulled her hair.

¶6 Once upstairs, Defendant removed his pants and demanded oral sex, again disparaging Girlfriend. Girlfriend said, "Please no," and she asked him to "just go to bed." According to Girlfriend, "that's when he took it." Though Girlfriend tried to keep her legs closed and told Defendant he was hurting her, Defendant raped Girlfriend twice.

¶7 The next morning, Defendant apologized, telling Girlfriend that he "didn't know [he] did that to [her]" and that he was "so sorry." Defendant explained that he "blacked out" and did not remember anything that happened. Two days after the incident, Defendant sent a text message to Girlfriend stating he "really fucked up [their] life," and wondered "[w]hat charges" she would be "pressing on [him]." Girlfriend reported the incident to the police later that morning and underwent a sexual assault medical examination that same day.

¶8 The physician identified extensive bruising on Girlfriend's arms, legs, neck, back, and lower abdomen. The physician could not pinpoint the age of the bruises, but opined that they "seemed very similar" and were consistent with Girlfriend's account. The physician also found vaginal injury, consistent with Girlfriend's account of the rape, but acknowledged that the injury was also consistent with consensual sex.

¶9 Meanwhile, Defendant, apparently in a panic, spoke to Neighbor-the one who initially called the police-explaining what had happened. Defendant "sounded stressed out" and "was pacing back and forth" while he spoke. Defendant explained that he ripped Girlfriend's pants off and forced her to kiss him. He also said he was nervous that Girlfriend would accuse him of attempted rape because he forced her to kiss him during sex, and because she had recovered her pants from the garbage. After hearing Defendant's account, Neighbor said, "[T]hat's not makeup sex. That's not attempted rape in my mind. That is rape, you know." Neighbor's girlfriend arrived during the conversation, and Defendant told her the same story.

¶10 The State charged Defendant with rape, two counts of object rape, and assault. Defendant testified at trial, corroborating some of Girlfriend's account of the incident. He acknowledged that he was upset and jealous because Girlfriend spoke to other men at the wedding reception. He also confirmed that he called Girlfriend names, tried to kiss her and was rebuffed, tried to kick her out of the house, and pulled her off the couch by yanking her pants.

¶11 Diverging from Girlfriend's account, Defendant testified that Girlfriend joined him upstairs after a brief separation following their argument and altercation. There they "talked for a minute about what happened." Then they kissed, Defendant explained, and he and Girlfriend had consensual sex twice.

¶12 The jury acquitted Defendant of one of the object rape counts, but it convicted him of one count each of rape, object rape, and assault. Defendant appeals his convictions.

¶13 Defendant asserts on appeal, among other things, that his trial counsel was constitutionally ineffective for failing to investigate a car accident that Girlfriend allegedly "was involved in on the day she reported the offenses in this case." He further contends that trial counsel was ineffective for failing to "consult with a medical expert regarding the medical evidence related to [Girlfriend's] injuries." Following initial briefing and oral argument in this court, we remanded to the district court pursuant to rule 23B of the Utah Rules of Appellate Procedure in order to develop evidence in the record. See State v. Heywood , 2015 UT App 191, ¶ 39, 357 P.3d 565 (explaining that "[t]he purpose of a rule 23B remand is to develop new evidence in the record, without which a defendant cannot bring his ineffective assistance of counsel claim on appeal" (quotation simplified) ). Following three evidentiary hearings, the district court issued findings on this new evidence.

Defense Theory of the Case and the Car Accident

¶14 Defendant admitted to neighbors, police, and his attorneys that he engaged in a physical altercation with Girlfriend on the date of the incident, resulting in injury to both of them. Because Defendant also acknowledged that he and Girlfriend had engaged in sexual intercourse on the night of the altercation, trial counsel chose to focus on the defense theory that, although Defendant injured Girlfriend, the sex was consensual.

¶15 Defendant explained to defense counsel prior to trial that he and Girlfriend had sex on the night of the incident, about an hour and a half to two hours after the physical altercation. Defense counsel then prepared a defense theory that, although Defendant and Girlfriend engaged in a physical fight, the sex that followed was consensual. This incident, counsel would contend, mirrored a pattern in the couple's relationship-physical altercations followed by "make-up sex." Defendant testified at trial, however, that only about fifteen minutes separated the physical altercation downstairs and the sex in the bedroom. Upon hearing his client on the witness stand state that only fifteen minutes separated the altercation and sex-rather than an hour and a half to two hours-defense counsel believed "the whole defense theory fell apart." Specifically, counsel thought the jury would not believe that consensual "make-up sex" occurred so soon after a violent, physical attack.

¶16 Of additional concern to defense counsel in defending his client, shortly before trial Defendant "completely contradicted" his account of the incident. In contrast to the story he told counsel initially, Defendant later told counsel that he did not get into a physical altercation with Girlfriend and did not cause any of her injuries. Instead, he asserted that all of Girlfriend's injuries "resulted exclusively from her car accident." Although counsel already knew about a car accident involving Girlfriend, this particular revelation occurred after expiration of the pretrial deadline to identify witnesses. Frustrated, defense counsel declined to alter the defense strategy planned for trial and did not investigate the car accident further. Nevertheless, at trial, defense counsel asked Girlfriend about the accident in an effort to establish that some of the injuries documented in her medical examination could have resulted from the collision. In response, Girlfriend testified that the accident occurred ten days after her sexual assault examination.

¶17 Defendant then told defense counsel that insurance claim documentation would contradict Girlfriend's statement about the date of the accident. Before the close of trial, defense counsel received the insurance claim documentation, which appeared to corroborate Defendant's claim regarding the actual date of Girlfriend's accident. From these records, counsel deduced that the accident occurred on the morning of-and prior to-Girlfriend's examination by the physician and not ten days later as she had testified.

¶18 Counsel recalled Girlfriend as a witness and once again asked about the date of the accident, allowing her to first refresh her memory by reviewing the insurance claim documentation. For the second time, Girlfriend asserted that the accident occurred ten days after she was examined by the physician. But defense counsel could not impeach her testimony with extrinsic evidence because he could not lay sufficient foundation for the admission of the insurance claim documentation. Consequently, defense counsel abandoned this line of questioning.

¶19 Girlfriend's testimony remained consistent at the post-trial evidentiary hearings, where she again testified that the accident occurred ten days after her report of the rape and physical examination. The district court, having considered "all the evidence, as well as the demeanor and credibility of the witnesses" regarding the date of the accident, determined that the accident occurred on the later date-ten days after Girlfriend's medical examination. Addressing contrary evidence, the court determined that Girlfriend "misreported the accident ... as having occurred" on the date of the rape report and medical examination.

Medical Expert

¶20 Through discovery, Defense counsel received and reviewed the medical examiner's sexual assault examination report and used it to prepare for trial. But he did not review any other medical evidence or pursue records from the medical clinic where the examination was performed. Counsel also did not discuss with Defendant the benefits and drawbacks of retaining a defense medical expert for trial. Defense counsel briefly consulted with a nurse practitioner about the report, but he did not ask the nurse practitioner to review the report or analyze any photographs.

¶21 Based on the consultation and defense counsel's experience, counsel entered a stipulation with the prosecution that the State's medical expert would testify that Girlfriend's reported injuries were consistent with consensual sex.

ISSUES AND STANDARDS OF REVIEW

¶22 Defendant raises four claims on appeal. With regard to the first three claims, Defendant contends that he received constitutionally ineffective assistance of counsel for trial counsel's failure to (1) object to jury instructions, (2) investigate Girlfriend's car accident, and (3) retain a medical expert. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified). Defendant also contends that the cumulative effect of his counsel's ineffective performance preparing for and at trial, if not prejudicial individually, cumulatively denied him a fair trial. "We will reverse a jury verdict or sentence only if the cumulative effect of the several errors undermines our confidence that a fair trial was had." State v. Martinez-Castellanos , 2018 UT 46, ¶ 39, 428 P.3d 1038 (quotation simplified).

ANALYSIS

I. Ineffective Assistance of Counsel

¶23 To establish ineffective assistance of counsel, Defendant "must show: (1) that counsel's performance was objectively deficient, and (2) a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial." State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 ; see also Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first element, Defendant "must overcome the strong presumption that his trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsel's actions." Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). With regard to the second element, Defendant "must demonstrate that any deficiencies in counsel's performance were prejudicial to the defense." State v. Lantz , 2018 UT App 70, ¶ 7, 424 P.3d 1094 (quotation simplified). "A defendant's inability to establish either element defeats a claim for ineffective assistance of counsel." State v. Reid , 2018 UT App 146, ¶ 19, 427 P.3d 1261.

A. Failure to Object to Jury Instructions

¶24 Defendant first argues that counsel performed deficiently by failing to object to two jury instructions describing the elements for rape and object rape. Specifically, he contends that trial counsel should have objected because the instructions "impl[y] there is no mens rea component of the consent element." We first consider the rape jury instruction then review the object rape instruction.

¶25 Rape is defined as having "sexual intercourse with another person without the victim's consent." Utah Code Ann. § 76-5-402(1) (LexisNexis Supp. 2018). Regarding the applicable mental state, "a person is not guilty of an offense unless the person's conduct is prohibited by law; and ... the person acts intentionally, knowingly, [or] recklessly." Id. § 76-2-101(1) (LexisNexis 2012).

¶26 In State v. Barela , 2015 UT 22, 349 P.3d 676, our supreme court determined that a jury instruction on rape was in error and that "reasonable trial counsel should have objected to it." Id. ¶¶ 26-27. The challenged instruction there "identified four elements of rape: 1. The defendant ..., 2. Intentionally or knowingly; 3. Had sexual intercourse with [the victim]; 4. That said act of intercourse was without the consent of [the victim]." Id. ¶ 25 (internal quotation marks omitted). The supreme court concluded that "the instruction implied that the mens rea requirement ('intentionally or knowingly') applied only to the act of sexual intercourse, and not to [the victim's] nonconsent." Id. ¶ 26. The same cannot be said of the instruction provided here.

¶27 To convict Defendant of rape, the instruction here required the jury to find:

1. That the defendant ...;
...
4. Did intentionally, knowingly, or recklessly:
5. Have sexual intercourse with another
6. Without that person's consent; ...

This instruction applies the mens rea element (intentionally, knowingly, or recklessly) to both the act of sexual intercourse and the lack of consent. Although appearing separately on a numerical list, the "intentionally, knowingly, or recklessly" mens rea element is followed by a colon and modifies elements five (sexual intercourse) and six (lack of consent). Consequently, this instruction does not suffer from the same infirmity as the Barela instruction. Thus, counsel's failure to object to this instruction did not constitute deficient performance. And because counsel did not perform deficiently, we do not analyze whether the failure to object was prejudicial. See State v. Reid , 2018 UT App 146, ¶ 19, 427 P.3d 1261.

¶28 Unlike the rape instruction, however, the object rape instruction does not contain a mental state requirement for nonconsent. A person commits object rape when, "without the victim's consent, [the person] causes the penetration, however slight, of the genital or anal opening of another person ... by any foreign object, substance, instrument, or device, including a part of the human body other than the mouth or genitals." Utah Code Ann. § 76-5-402.2(1). A person is not guilty of this offense unless that person acts intentionally, knowingly, or recklessly with respect to each element. Id. § 76-2-101(1) (LexisNexis 2012). Additionally, object rape requires that the person act "with intent to cause substantial emotional or bodily pain to the victim or with the intent to arouse or gratify the sexual desire of any person." Id. § 76-5-402.2(1) (Supp. 2018).

¶29 Here, to convict Defendant of object rape the instruction required the jury to find:

1. That the defendant ...;
...
4. Did cause the penetration, however slight, of the genital or anal opening of another person ...;
5. By any foreign object, substance, instrument, or device, including a part of the human body other than the mouth or genitals;
6. Without consent of the victim;
7. With the intent to:
a. Arouse or gratify the sexual desire of any person; OR
b. Cause substantial emotional or physical pain to the victim; ...

¶30 This instruction explains the necessary specific intent, but does not provide the general mens rea for object rape and fails to apply that required mental state to the element of nonconsent. "[O]ur criminal code requires proof of mens rea for each element of a non-strict liability crime," including the element of nonconsent. See Barela , 2015 UT 22, ¶ 26, 349 P.3d 676. Like the jury instruction in Barela , the object rape instruction here "was in error" and "reasonable trial counsel should have objected to it." Id. ¶ 27. We can formulate no reasonable trial strategy that might include the lack of an objection to this object rape instruction. Holding the State to its burden to prove beyond a reasonable doubt Defendant's general mental state can only benefit Defendant. See id.

¶31 However, to establish ineffective assistance of counsel, Defendant must also demonstrate prejudice resulting from counsel's error. In other words, Defendant must show "a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different." State v. Arguelles , 921 P.2d 439, 441 (Utah 1996) (quotation simplified). Defendant has not made such a showing here.

¶32 "The essence of consent is that it is given out of free will, and determining whether someone has truly consented requires close attention to a wide range of contextual elements, including verbal and nonverbal cues." State v. Reigelsperger , 2017 UT App 101, ¶ 81, 400 P.3d 1127 (quotation simplified). Here, the jury heard Girlfriend's account of Defendant pulling her off the couch and ripping her pants in the process. Girlfriend testified that Defendant put his fingers in her vagina and anus; she told him to stop and that he was hurting her. Defendant next tried to eject Girlfriend from the house. The record reveals no evidentiary basis on which a jury could find that Girlfriend consented to the digital penetration. More particularly, the evidence presented would not reasonably support the jury concluding that Defendant did not act at least recklessly with regard to Girlfriend's lack of consent.

¶33 At trial, Defendant never claimed that these acts were done with Girlfriend's consent or based on the mistaken belief that she had consented. Instead, Defendant's testimony at trial simply implied that no object rape occurred. He testified that he grabbed Girlfriend's pants and yanked with "a lot of force," pulling her off the couch and ripping her pants. He explained, "[Girlfriend] jumped up and grabbed [Defendant] by the back of [his] head," but he "[didn't] know if she was trying to pull [him] down or fight." He then tried to pull Girlfriend out of the house, and afterward he went upstairs to the bedroom.

¶34 The jury ultimately convicted Defendant of object rape. The record reflects no testimony or evidence that would suggest that Defendant believed Girlfriend had consented to Defendant putting his fingers in her vagina and anus. Rather, the record is replete with Girlfriend's statements: "[S]top," "You're hurting me," "Please don't do that anymore," and "Just go to bed." These explicit statements are in addition to other cues of nonconsent. Girlfriend lay in the fetal position on the couch with Defendant's hand on her neck pushing her down. Moreover, Defendant himself acknowledged he tried to force Girlfriend out of the house by dragging her to the door, and he disparaged her throughout the evening. Further supporting the absence of any consent on Girlfriend's part, Defendant apologized via text messages after the rape and object rape. He said he was "so sorry" for what he had done though suggesting that he had "blacked out." Perhaps anticipating consequences for his actions, Defendant also asked Girlfriend what criminal charges she would be pursuing against him.

¶35 We conclude that overwhelming evidence was introduced at trial showing Girlfriend did not consent to the digital penetration. As a result, there is no reasonable probability that-had the jury been properly instructed as to the applicable general mens rea-it would have found that Defendant did not act intentionally, knowingly, or recklessly as to Girlfriend's consent. See id. ¶ 79. Accordingly, Defendant has not established trial counsel's ineffectiveness for failing to object to the jury instructions.

B. Failure to Investigate the Car Accident

¶36 Defendant next asserts that he received ineffective assistance of counsel as a result of trial counsel's failure to investigate Girlfriend's car accident. Defendant argues he could have presented evidence at trial showing the accident occurred shortly before the medical examination. This evidence, he contends, suggests an alternative source of her bumps, bruises, and lacerations. Because we conclude that Defendant has not established prejudice with respect to trial counsel's failure to investigate the car accident, Defendant cannot establish ineffective assistance of counsel. See State v. Lantz , 2018 UT App 70, ¶ 7, 424 P.3d 1094 (explaining that ineffective assistance of counsel requires a defendant to "demonstrate that any deficiencies in counsel's performance were prejudicial to the defense" (quotation simplified) ).

¶37 To establish prejudice, Defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, Defendant must show a reasonable probability that, had the jury heard conflicting testimony as to the date of the car accident, the outcome would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In other words, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052.

¶38 At trial, the jury heard limited evidence about the car accident. Girlfriend testified that she was involved in a collision ten days after she reported the rape and received a medical examination. Based on this testimony, the photos of Girlfriend's injuries documented during that exam were taken before the accident and therefore could not have shown any accident-related injuries. Defendant contends that he should have been able to present conflicting evidence as to the date of the accident to prove that it occurred on the morning before the report and medical examination. Defendant argues that involvement in an automobile accident would suggest that at least some of Girlfriend's injuries were the result of the collision. Defendant contends that evidence of the date of the accident would establish "the argument and assault were not as serious as the extent of [Girlfriend's] injuries showed, and that [Defendant's] account of make-up sex was more reasonable." We are not persuaded that there is a reasonable probability that presenting this evidence to the jury would have made a difference.

¶39 Defendant presented a theory that the charged incidents were nothing more than a common pattern in the relationship. He and Girlfriend would argue and fight, Girlfriend would leave or move out for some period of time, and the two would eventually reconcile and engage in "make-up sex." Defendant explained this pattern, and Girlfriend acknowledged this happened at least on one other occasion. Consistent with this theory, Defendant testified that he and Girlfriend fought and grappled at the house following the wedding reception. At one point, he "forcibly just grabbed [Girlfriend] as hard as [he] could ... by her [sweatpants] and her legs and ... was trying to pull her off the couch to pull her out of the house." Asked whether he pulled Girlfriend with enough force to cause injury, Defendant said, "Yes[.]" Defendant then described Girlfriend grabbing the back of his head and ears, trying to pull him down or fight with him. At that point, he "bust her hands off" him as he "[tried] to get her hands under control."

¶40 Had the jury heard conflicting testimony as to the date of the car accident, it reasonably would have reached the same conclusion regarding Defendant's convictions. Even if the car accident provided an alternative explanation for some of Girlfriend's bumps and bruises, there remained no dispute that Defendant and Girlfriend engaged in a physical altercation. During that altercation, Defendant yanked Girlfriend's sweatpants, causing her to fall to the floor. And he admitted that he dragged her across the floor in an attempt to eject her from the house. Moreover, by Defendant's account, Girlfriend grabbed the back of his head and ears leading to his vigorous effort to break free and gain control of her hands. All of these undisputed exchanges may have caused Girlfriend's bumps, bruises, and lacerations.

Indeed, Defendant and Girlfriend each testified that they were injured in the fight. Defendant therefore concedes that evidence of the disputed accident dates would provide only an "alternative explanation for at least some of [Girlfriend's] injuries." (Emphasis added.) We are unpersuaded that the jury reasonably would have concluded that because Defendant caused only some-but not all-of Girlfriend's injuries, she consented to sexual intercourse approximately fifteen minutes later.

¶41 Defendant also argues that he should have been allowed to impeach Girlfriend's credibility by presenting evidence disputing the date of the accident. To this end, he asserts that defense counsel was ineffective for failing to develop the impeachment evidence prior to and during trial. On the record developed by the district court on temporary remand, it would appear Girlfriend either misrepresented the date of the collision on the witness stand at trial or she misrepresented the date to the insurance company. With this information at trial, Defendant certainly could have suggested that Girlfriend lacked credibility generally. As a result, he suggests, Girlfriend's testimony regarding lack of consent to sex could have been rendered less believable. Though conceivable, we are not persuaded Defendant has established a reasonable probability of a different result "sufficient to undermine confidence in the outcome." See Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

¶42 Here, the jury considered substantial evidence from both Girlfriend and Defendant confirming the following: an extended argument; name-calling; a violent physical altercation causing injuries; Defendant attempting to force Girlfriend to kiss him, and Girlfriend rebuffing that advance; Defendant attempting to eject Girlfriend from the home; and sexual intercourse following a fifteen-minute intermission. The day after the incident, Defendant sent text messages to Girlfriend explaining he "didn't know [he] did that to [her]" and that he was "so sorry." He further stated he "really fucked up [their] life," and asked "[w]hat charges" she would be "pressing on [him]." None of this evidence was substantially disputed at trial.

¶43 The jury also heard testimony from Defendant's neighbor. Neighbor explained that, two days after the incident, Defendant told him "he thought he was [in] trouble, that [Girlfriend] was going to try to accuse him of attempted rape." Defendant described details of the incident to Neighbor, including the fighting and name-calling, Defendant holding Girlfriend down to kiss her, as well as the subsequent "make-up sex." Defendant, appearing anxious and scared, told Neighbor that Girlfriend took the ripped pants out of the garbage. And Defendant declared that he was in "big trouble," indeed in "deep shit."

¶44 With regard to the disputed evidence, Girlfriend testified that Defendant had sex with her-"that [she] didn't want"-while she tried to keep her legs closed, told him to stop and told him that it hurt. Defendant testified, however, that the sex was consensual. It is certainly conceivable the jury could have disbelieved Girlfriend's account as to consent because she misstated the date of her car accident to an insurance carrier. But given the bulk of other evidence supporting Girlfriend's version of events and discrediting Defendant's account, the jury was also provided with ample evidence supporting Defendant's conviction, making a different outcome at trial highly unlikely. Consequently, our confidence in the jury's verdict is not undermined by trial counsel's failure to impeach Girlfriend's credibility with the insurance report.

C. Failure to Retain a Medical Expert

¶45 Defendant next argues that his trial counsel should have presented testimony of a medical expert at trial to contradict the State's medical expert. He asserts that such testimony would have benefitted his defense in two ways. First, a medical expert testifying for the defense could have rebutted the State's medical expert testimony by opining that Girlfriend's injuries were not as severe as alleged by the State. Second, an expert could have opined that some of Girlfriend's injuries may have resulted from a car accident.

¶46 In preparation for trial, Defendant's trial counsel reviewed the sexual assault examination report provided by the State in discovery, but counsel did not consult with a medical expert on the report or review other available medical examination evidence. Ultimately, counsel elected not to retain a medical expert for trial, opting instead for a stipulation with the State limiting the scope of the State's expert's testimony. While preparing to cross-examine the State's expert, counsel informally consulted with a nurse practitioner who had experience as a sexual assault nurse examiner. Counsel asked questions of the nurse but he did not provide the examination report or any photos for the nurse's review. At trial, the State's expert testified that Girlfriend's genital injuries were consistent with sexual intercourse, whether consensual or nonconsensual.

¶47 During evidentiary hearings held on temporary remand, the district court heard testimony from a different medical expert retained by Defendant for the purpose of determining whether trial counsel performed deficiently. This medical expert testified consistently with the State's expert to a great extent, but contradicted some of the State's expert's trial testimony. We do not recount the specific findings here, because we conclude that trial counsel was not objectively deficient for electing to limit the scope of the State's expert testimony rather than retain his own medical expert for trial.

¶48 Although disputing some details, Defendant acknowledged at trial that he and Girlfriend physically fought on the night of the wedding reception and that their altercation injured each of them. Defendant further conceded that he and Girlfriend twice engaged in sexual intercourse that night. Much of the physical evidence, then, was subsumed in the defense theory that this was simply part of their relationship pattern-a fight, a break, then "make-up sex."

¶49 Under these circumstances, an independent medical expert would have been redundant, confirming Girlfriend's injury results already described by the State's expert. This testimony would also highlight, again, the presence of many of the bumps, bruises, and abrasions that Defendant did not dispute he may have caused. Additionally, through stipulation, defense counsel secured a limit to the scope and impact of the State's expert. See supra ¶ 46. Because the decision not to retain a medical expert "might be considered sound trial strategy," Defendant has not demonstrated that his counsel's performance was objectively deficient. See State v. Dunn , 850 P.2d 1201, 1225 (Utah 1993).

II. Cumulative Error

¶50 Finally, Defendant asserts that the cumulative effect of the alleged errors undermines confidence in the jury's verdict. Considering all alleged errors and any we assume may have occurred, we "reverse only if the cumulative effect of the several errors undermines our confidence" that Defendant has received a fair trial. State v. King , 2010 UT App 396, ¶ 17, 248 P.3d 984 (quotation simplified). To reverse a verdict because of cumulative error, we must determine that "(1) an error occurred, (2) the error, standing alone, has a conceivable potential for harm, and (3) the cumulative effect of all the potentially harmful errors undermines [our] confidence in the outcome." State v. Martinez-Castellanos , 2018 UT 46, ¶ 42, 428 P.3d 1038. "But if the claims are found on appeal to not constitute error, or the errors are found to be so minor as to result in no harm, the doctrine will not be applied." State v. Maestas , 2012 UT 46, ¶ 363, 299 P.3d 892 (quotation simplified).

¶51 Here, Defendant has established that counsel erred by failing to object to the object rape jury instruction, which omitted the required general mental state. Because we have identified only one error, there are no others to accumulate. Consequently, the cumulative error doctrine does not apply. State v. Beverly , 2018 UT 60, ¶¶ 80-81, 435 P.3d 160 (stating that the cumulative error doctrine has no application when only one error is demonstrated or assumed on appeal); see also Conocophillips Co. v. Utah Dep't of Transp. , 2017 UT App 68, ¶ 31, 397 P.3d 772 (same).

CONCLUSION

¶52 We conclude that Defendant has not established that he received ineffective assistance of counsel. Trial counsel did not render deficient performance by not objecting to the rape jury instruction and by not retaining an independent medical expert. Defendant has failed to establish that he was prejudiced by counsel's failure to object to the object rape jury instruction and failure to investigate Girlfriend's car accident. We also conclude that the cumulative error doctrine does not apply. Accordingly, we affirm.

      Following a criminal conviction by a jury, we recite the facts in the light most favorable to the jury's verdict. State v. Pham , 2015 UT App 233, ¶ 2, 359 P.3d 1284.

      We diverge here from an otherwise largely chronological description of the facts. We do so because the facts that follow were not necessarily considered by the jury, whose verdict helps inform our recitation of the facts. See supra note 1. We instead recite the facts here as found by the district court following evidentiary hearings held on temporary remand pursuant to rule 23B of the Utah Rules of Appellate Procedure. See State v. Patterson , 2013 UT App 11, ¶ 10, 294 P.3d 662.

      Because the language of the statute has not changed, we cite the most recent version for convenience.

      The jury acquitted Defendant of one of the two object rape counts. The record does not reveal the jury's rationale, but it appears as though the jury may not have fully credited Girlfriend's testimony.

      The record does not reflect the details of the stipulation, except that the State's expert would concede that Girlfriend's genital injuries were consistent with consensual sexual intercourse.


source: Caselaw Access Project

author: MORTENSEN, Judge:

license: Public Domain

text:
    Edward J. FRAUGHTON, Petitioner, v. UTAH STATE TAX COMMISSION and Board of Equalization of Salt Lake County, Respondents.
    No. 20170430-CA
    Court of Appeals of Utah.
    Filed January 10, 2019
    Edwin S. Wall, Salt Lake City, Attorney for Petitioner
    Bradley C. Johnson, Attorney for Respondent Board of Equalization of Salt Lake County
    Judge David N. Mortensen authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.
    Opinion
   MORTENSEN, Judge:

¶1 In 2015, Edward J. Fraughton challenged the assessed value on his residence, claiming that promises made in 1973 by unidentified persons from South Jordan City (the City) were key to determining the correct value. Fraughton's challenge was, in large part, successful, resulting in just a three percent difference in the assessed value from Fraughton's claimed value. But Fraughton refused to stipulate to the new assessed value and appealed to the Utah State Tax Commission (the Commission). Fraughton now seeks review of the Commission's final decision that Fraughton had neither shown an error in the assessment nor provided a sound evidentiary basis for a lower residential property value. We are unpersuaded by Fraughton's arguments and decline to disturb the decision of the Commission.

BACKGROUND

¶2 Edward Fraughton purchased an abandoned brick church in the City in 1973. Fraughton, an artist, planned to preserve the historic building and the 2.41 acres of land on which it sat (the Property) for use as his workshop and as a residence for his family.

¶3 For the 2015 tax year, the Property was assessed at $1,163,780. In September 2015, Fraughton appealed that assessment to the Salt Lake County Board of Equalization (the Board), arguing that the fair market value of the Property was $704,480. In a March 2016 hearing, the Board reduced the assessed value to $947,000 based on evidence submitted by the Salt Lake County Assessor. The Board noted that Fraughton had not "provided evidence to establish a value." Fraughton then appealed the Board's decision to the Commission.

¶4 At the Commission hearing in April 2017, Fraughton did not provide comparable sales values, an appraisal, or any other evidence of the Property's value. Instead, he argued that the fair market value of the Property should be based on a "reasonable adjustment" to the purchase price instead of "speculative" market value. In contrast, the Commission based its conclusion on a report submitted by an appraiser for Salt Lake County. The appraiser, relying primarily on comparable land sales, valued 1.48 acres of the Property at $8.65 per square foot and .93 acres of the Property at $4.11 per square-foot, for a total value of $724,155 in land. The appraiser noted that nearly all of the value consisted of the land, with the building valued at only $1,500, for a total rounded value of $725,700 for the Property.

¶5 The Salt Lake County appraiser also stated that the county assessor's office contacted Fraughton and offered to stipulate to a value of $725,700 for the Property. Fraughton had requested an assessed value of $704,480 from the Board in August 2015, but in October 2015, he declined to stipulate to Salt Lake County's adjusted lower value. These two values differ by $21,200, or about three percent.

¶6 The Commission also received evidence at the hearing, in the form of a letter from the City, that the Property was zoned-current as of October 2015-as RM or "Residential Multi-Family" by the City, and it had been in that zoning category since at least 1987. Allowed uses in RM zoning include various residential dwellings, community and public safety services, worship, public utilities, and daycare. Fraughton testified that the Property was indeed zoned RM, but he contended that this designation meant "Rural Mix," which allowed "a mix of agricultural and residential uses as well as an art studio." He further contended that the City had agreed to this special zoning designation when he purchased the property in 1973.

¶7 After considering the evidence presented, the Commission set the fair market value of the Property at $725,700. The Commission limited its decision to determining the Property's value and did not address the zoning issue. Fraughton petitions for judicial review.

ISSUES AND STANDARDS OF REVIEW

¶8 Fraughton brings two claims. First, he contends the Commission erred in its determination of the fair market value of the Property. When reviewing proceedings before the Commission, this court "grant[s] the Commission deference concerning its written findings of fact, applying a substantial evidence standard on review," and grants "no deference concerning its conclusions of law, applying a correction of error standard, unless there is an explicit grant of discretion contained in a statute at issue before the appellate court." Utah Code Ann. § 59-1-610(1) (LexisNexis 2015); see also Atlas Steel, Inc. v. Utah State Tax Comm'n , 2002 UT 112, ¶ 14, 61 P.3d 1053 (stating that the Commission's findings of fact receive a substantial evidence standard of review, but its conclusions of law receive no deference).

¶9 Second, Fraughton argues that the Commission violated the federal and state constitutions by basing the fair market value of the Property on comparable property values without taking into consideration "non-intrinsic human values," such as open space, history, and aesthetics. This court reviews constitutional questions for correctness. State v. Van Dyke , 2009 UT App 369, ¶ 18, 223 P.3d 465.

ANALYSIS

I. The Commission Correctly Determined the Fair Market Value of the Property

¶10 When challenging an assessment made on property by the Commission, the "protesting taxpayer is required not only to show substantial error or impropriety in the assessment, but also to provide a sound evidentiary basis upon which the Commission could adopt a lower valuation." Utah Ry. Co. v. Utah State Tax Comm'n , 2000 UT 49, ¶ 6, 5 P.3d 652 (cleaned up). Thus, Fraughton, as the protesting taxpayer, has a two-pronged burden. He must (1) show that the Commission made a substantial error in arriving at the Property's current value and (2) provide a sound evidentiary basis for the Commission to change the valuation. See id. We address each prong in turn.

A. Fraughton Fails to Show That the Commission Erred in Arriving at the Property's Current Value

¶11 On review, Fraughton does not challenge the actual dollar value the Commission placed on the Property; rather, he challenges the zoning designation. Fraughton contends that the City, in an effort to encourage completion of the purchase of the Property, agreed in 1973 to rezone, or spot zone, the Property as "Rural Mix." Fraughton argues that his testimony of what happened in 1973 shows that there has been an error in the zoning designation of the Property. He further argues that the Commission should have obtained from the City evidence of the Property being zoned Residential Multi-Family in 1973 if the Property had, in fact, been zoned Residential Multi-Family at that time. Because the City failed to provide such evidence to the Commission, Fraughton argues that the Rural Mix zoning designation should be grandfathered to the present. He asserts, "The zoning as of and from 1973 should not merely be presumed based on the [City planner's] evidence as to the zoning ... at least of 1987." In a nutshell, Fraughton's argument is that (1) he was told by an unidentified City official that the Property would be spot-zoned as Rural Mix in 1973 when he purchased it and (2) the Commission has not provided evidence that this putative Rural Mix zoning was ever changed.

¶12 Fraughton's argument is a classic red herring in that he is attempting to bring the Commission into a dispute that essentially involves a disagreement that he has with the City. Therefore, Fraughton's evidence about an oral pledge given in 1973 is largely irrelevant to the issue before this court. To persuade this court, Fraughton needed to provide material evidence that a pledge allegedly made in 1973 was acted upon and, therefore, that the Commission made a substantial error in arriving at the Property's current value. See Utah Ry. , 2000 UT 49, ¶ 6, 5 P.3d 652. Fraughton has failed to do so, and, more importantly, he has failed to provide evidence that the Property ever was zoned otherwise than as identified by the City in 2015.

¶13 In contrast, the Commission acted on evidence that the Property was zoned as Residential Multi-Family in October 2015 and that it has been so zoned since at least 1987. If the Property was zoned Residential Multi-Family in 1987, the presumption, in the absence of evidence of a pre-1987 change to the contrary, is that it was zoned Residential Multi-Family in the years before. Fraughton fails to explain why his assertion regarding how the Property was zoned in 1973 is any more credible than the Commission's evidence of the Property's 2015 and 1987 zoning designation. And as a protesting taxpayer, the evidentiary burden is on Fraughton. Id.

¶14 Fraughton admits that no change in zoning status can occur in the absence of notice and a hearing, implying that the Property must currently be zoned Rural Mix because there was no notice or hearing regarding a change in the zoning to Residential Multi-Family. Yet this is exactly what Fraughton infers happened between 1973 and 1987 when he contends that the Property's zoning was improperly changed from Rural Mix to Residential Multi-Family. One possible explanation for the lack of evidence about notice and a hearing is that the zoning change was done illicitly. Yet Fraughton offers no evidence of such an illicit change other than his personal, uncorroborated contention. A more likely and simpler explanation is that there is no evidence of a change in zoning because the zoning designation was never changed. In any event, even if the Property is not currently zoned correctly, that fact does not change the current market value. Ultimately, zoning is a point of contention between Fraughton and the City having nothing to do with the original assessing authority, the County. Moreover, these facts do not inform the question on review, which is whether an evidentiary basis exists for the Commission's determination.

¶15 Therefore, we conclude that Fraughton's assertions regarding the 1973 zoning status of the Property fail to show that the Commission erred when it relied on evidence of the Residential Multi-Family zoning status produced by the City.

B. Fraughton Fails to Provide a Sound Evidentiary Basis to Support Adopting a Lower Valuation

¶16 In addition to showing that the Commission made an error in arriving at the value of the Property, Fraughton must also provide a sound evidentiary basis for the Commission to adopt a lower value. Utah Ry. Co. v. Utah State Tax Comm'n , 2000 UT 49, ¶ 6, 5 P.3d 652. Fraughton has not satisfied this prong either.

¶17 At the hearing before the Commission, Fraughton did not put forward any evidence regarding the value of the Property. He did not provide comparable sales for the Property, nor did he provide an appraisal or any other evidence of its value. Indeed, Fraughton explicitly concedes that he "did not submit any valuation evidence."

¶18 In this regard, Fraughton's case bears striking similarity to Utah Power & Light Co. v. Utah State Tax Commission , 590 P.2d 332 (Utah 1979). There, a utility company protested the assessment placed on one of its properties following a hearing before the Commission. Id. at 333. After the court determined that there had been no error in the method of assessment, it also stated that the utility appeared to argue "that it is entitled to a reduction of its assessment if it shows any error to its disadvantage in the method of evaluation or the computation of the Commission's original assessment." Id. at 335. Because the purpose of a proceeding before the Commission is to "determine what should be the fair, reasonable and proper valuation and assessment, ... where the taxpayer claims error, [the taxpayer] has an obligation ... to provide a sound evidentiary basis upon which the Commission could adopt a lower valuation." Id. The court noted it was "significant here that [the utility company] ... presented no alternative evaluation or appraisal which could be subject to critical scrutiny by the Commission." Id. Likewise, here it is not enough for Fraughton to show that there has been an error. See Utah Ry. , 2000 UT 49, ¶ 6, 5 P.3d 652. He must also provide an "alternative evaluation or appraisal" by which the Commission could determine "fair, reasonable and proper valuation and assessment" of the Property. See Utah Power & Light , 590 P.2d at 335 ; see also Utah Ry. , 2000 UT 49, ¶ 6, 5 P.3d 652.

¶19 Thus, we conclude that Fraughton also failed to meet the second prong of his burden: showing a sound evidentiary basis to the Commission for arriving at a lower value for the Property.

II. Fraughton's Constitutional Claim Was Inadequately Briefed

¶20 We do not reach the substance of Fraughton's constitutional claim because this issue has not been properly briefed. "We have long held that we have discretion to not address an inadequately briefed argument. Rather, a party must plead his claims with sufficient specificity for this court to make a ruling on the merits. We will not assume a party's burden of argument and research." Angel Inv'rs, LLC v. Garrity , 2009 UT 40, ¶ 35, 216 P.3d 944 (cleaned up). "We accordingly decline to address [an] inadequately briefed issue."

ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2013 UT 24, ¶ 16, 309 P.3d 201.

¶21 An adequate brief provides "meaningful legal analysis" and "fully identifies and analyzes the issues with citation to relevant legal authority." State v. Hawkins, 2016 UT App 9, ¶ 60, 366 P.3d 884 ; see also Utah R. App. P. 24(a)(8) ("The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal."). "A brief is inadequate when it merely contains bald citations to authority without development of that authority and reasoned analysis based on that authority." Smith v. Four Corners Mental Health Center, Inc. , 2003 UT 23, ¶ 46, 70 P.3d 904 (cleaned up). "Under this standard, [Fraughton] inadequately briefed this claim. Accordingly, he fails to carry his burden of persuasion on [judicial review]." See Hawkins, 2016 UT App 9, ¶ 60, 366 P.3d 884.

¶22 Fraughton argues in his brief that taxing the Property based on its fair market value is "neither fair, equitable, or just." Instead of a fair market value approach, he argues that "both state and federal constitutional principles" require the "consideration of 'non-intrinsic human values' " in determining a property's value. In support of this proposition, Fraughton claims that the "Declaration of Independence and the United States Constitution were written to establish a possible means for achieving humanity's highest form for civil human engagement." "[T]hese meaningful, lofty, fair and noble principles," Fraughton asserts, require the State of Utah to honor the individual's right to possess and protect property. Therefore, Fraughton concludes, "Utah's method of taxing real estate based solely on 'fair market value,' is neither fair, equitable or just. It entirely discriminates against any 'non-intrinsic human values.' As such, the tax law as applied is unconstitutional."

¶23 In his brief, Fraughton cites only one constitutional provision-Article 1, Section 1 of the Utah Constitution-as he makes his argument, and this he does in passing. He fails to explain how the Commission's fair market valuation method violates this provision. He cites no case law supporting his position that fair market valuation is unconstitutional. Nor does he attempt to explain why the fair market value standard is unconstitutional when the Utah Constitution itself states that "all tangible property in the State ... shall be ... assessed at a uniform and equal rate in proportion to its fair market value." Utah Const. art. XIII, § 2.

¶24 Fraughton's broad statements are simply not enough to make a cogent argument concerning the constitutional fairness, equity, and justness of the fair market value standard. And "we will not exercise appellate review based on our best guess as to the subject of the appeal." ASC Utah , 2013 UT 24, ¶ 15, 309 P.3d 201. As our supreme court has "repeatedly noted, we are not a depository in which a party may dump the burden of argument and research." Four Corners Mental Health , 2003 UT 23, ¶ 46, 70 P.3d 904 (cleaned up).

¶25 Therefore, we decline to further address Fraughton's constitutional arguments concerning the fair market value standard for property tax determinations because this issue has been inadequately briefed.

CONCLUSION

¶26 Fraughton's arguments are unpersuasive. Fraughton has not shown that there was an error in the assessment of the Property, nor has he presented a sound evidentiary basis for a lower value on the Property. Finally, we decline to address Fraughton's constitutional arguments concerning fair market value because they are inadequately briefed. For the foregoing reasons, we decline to disturb the decision of the Commission.

      No exhibit or other evidence corroborates that zone RM means anything other than "Residential Multi-Family." Moreover, there is no documentary or testimonial evidence, other than Fraughton's recollection, that the City changed any zoning designation of the Property.

      We note that although Fraughton recognizes the existence of both prongs in his brief, he conflates them in his analysis by stating that he has "provided evidence that the current value contains error."

      "Under Utah's jurisprudence, spot zoning occurs when a municipality either grants a special privilege or imposes a restriction on a particular small property that is not otherwise granted or imposed on surrounding properties in the larger area." Tolman v. Logan City , 2007 UT App 260, ¶ 15, 167 P.3d 489.

      City records show that the Property was zoned Residential Multi-Family from at least 1987. The Commission relied on the City's zoning designation to establish the assessment value of the Property. Fraughton argues that the Commission should investigate whether "RM" means "Rural Mix," as Fraughton contends, or "Residential Multi-Family," as the City indicated in its letter. The essence of Fraughton's argument is that the City has applied the incorrect zoning designation to the Property. But the Commission's task is to determine the fair market value of the Property, see Utah Code Ann. § 59-2-103 (LexisNexis 2015), not to resolve zoning disputes between residents and municipalities. Although the zoning designation is a factor in determining fair market value, see Palazzolo v. Rhode Island , 533 U.S. 606, 625, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (stating that fair market value depends on "restrictions on use imposed by legitimate zoning or other regulatory limitations"), the Commission's task is limited to assessing and taxing property on the basis of its fair market value as of the beginning of the calendar year. See University Heights, Inc. v. State Tax Comm'n , 12 Utah 2d 196, 364 P.2d 661, 662 (1961) ("[T]he authority of the Commission over local assessments is a general supervisory one to enable it to assist in keeping the values for property tax purposes in counties and localities on a fair and equitable basis in relation to each other, rather than to suppose it was intended that the Commission would maintain active detailed supervision of the appraisals of all of the individual properties in the state."). Fraughton appears to assume, but offers no support for his assumption, that the Commission has the authority to revise the zoning designations made by municipalities.

      Fraughton may have decided not to press this point before the Commission because the value he requested before the Board and the value arrived at by Salt Lake County were already very close, at least for the purpose of imposing a property tax. Rather, Fraughton's arguments on review center on changing the zoning status of the Property to a more restrictive category-a change that presumably would have resulted in a lower assessed value.

      This Article states: "All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right." Utah Const. art. I, § 1.


text:
    STATE of Utah, Appellee, v. Kelly Bruce COOMBS, Appellant.
    No. 20151063-CA
    Court of Appeals of Utah.
    Filed January 10, 2019
    Emily Adams, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, and Lindsey L. Wheeler, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.
    Opinion
   MORTENSEN, Judge:

¶1 Kelly Bruce Coombs was charged with two counts of child rape, two counts of child sodomy, and eleven counts of sexual exploitation of a minor for possession of child pornography. In exchange for Coombs's guilty pleas to attempted child rape, attempted child sodomy, and sexual exploitation of a minor, the State dismissed the child rape and child sodomy charges. Coombs was sentenced to two concurrent terms of fifteen years to life. On appeal, Coombs argues that his counsel performed deficiently by not arguing for the application of an interests-of-justice proportionality analysis at his sentencing. Coombs asserts that such an analysis would have revealed his sentence to be arbitrary in comparison with the seriousness of his crimes and the sentences for other offenses in Utah. Coombs argues that the sentencing court would have imposed a lighter sentence had it come to this realization. We are unpersuaded and affirm the sentence Coombs received.

BACKGROUND

¶2 Coombs was charged in two separate cases. One involved the sexual abuse of his stepdaughter (Victim); the other concerned his possession of child pornography. The two cases were consolidated in the sentencing court and on appeal.

Sexual Abuse of Victim

¶3 Coombs repeatedly raped and sodomized Victim from the time she was six years old until she turned nine. He committed this abuse knowing that Victim had been sexually abused previously by a different family member.

¶4 The abuse began when Victim lived with her mother, two brothers, and Coombs. Victim stated that since she did not have her "real dad," she and Coombs "decided that [they] were going to do something as father and daughter"-a "father/daughter day." While Coombs and Victim were sitting on Coombs's bed, Victim stated that Coombs showed her a picture on the Internet of a girl "sucking a penis." Coombs suggested to Victim that it was "one of the options" for the two of them as a father and daughter activity. Victim testified that Coombs then took off his clothes, made her remove her clothes, and "touched" her vagina with his penis. Victim also testified that on the following day, Coombs "touched" her vagina with his penis a second time. On another occasion, Victim stated that Coombs "made" her go to his bedroom and "take off [her] clothes." Coombs then "took off all his clothes" and "made [her] suck his penis."

¶5 Coombs stopped his abuse of Victim for a brief time, but he resumed when the family moved to a new home in a neighboring town. Victim testified that Coombs's abuse started again "like a switch had turned back on" after the move. Victim stated that Coombs entered her bedroom one day while her mother was working. While Victim was on her bed and her clothes were off, Coombs's "penis touched [her] vagina" for a third time.

¶6 Victim also said that, while she was sleeping, Coombs snuck into her bedroom on numerous occasions in the new home, pulled down her shorts and underwear, and took photographs of her. When this intrusion caused her to wake, Victim recalled seeing Coombs "running out of her room."

¶7 When Victim was nine years old, she disclosed to her grandmother that Coombs was sexually abusing her. Victim's grandmother reported the abuse to local police a few days later.

Possession of Child Pornography

¶8 While Coombs was being investigated for sexually abusing Victim, an independent, parallel investigation into Coombs's possession of child pornography was in progress. Coombs had downloaded at least eleven images of prepubescent females engaged in explicit sexual activity. These same images were later located on Coombs's cell phone when it was seized incident to his arrest for sexually abusing Victim. Upon discovering that Coombs was in possession of child pornography, law enforcement officers suspected he might be involved in manufacturing pornography involving Victim.

Summary of the Proceedings

¶9 For his sexual abuse of Victim, the State originally charged Coombs with two counts each of child rape and child sodomy, each carrying a presumptive prison sentence of twenty-five years to life. He was also charged with eleven counts of sexual exploitation of a minor for his possession of child pornography.

¶10 But Coombs agreed to a plea deal with the State in exchange for reduced charges. He pled guilty to one count of attempted child rape, one count of attempted child sodomy, and eleven counts of sexual exploitation of a minor. As a factual basis to support the plea, the State cited evidence that Coombs "had attempted to have vaginal and oral sex with his nine-year-old step daughter," that he had "put [Victim's] mouth on his penis," and that he possessed "at least 11 pictures/videos of child pornography depicting prepubescent children engaged in sexual activity." In his plea affidavit, Coombs acknowledged that (1) "[his] penis touched [Victim's] vagina, and [Victim's] mouth touched [his] penis," (2) "[Victim] was under 14 years of age," and (3) "[he] uploaded 11 images of child pornography to an online storage account." In addition to accepting a guilty plea in exchange for reduced charges, the State agreed to recommend concurrent sentencing.

¶11 At the sentencing hearing, the court clarified that the presumptive sentence for attempted child rape and attempted child sodomy is a prison term of "15 years to life and with the provision that the court may impose a lesser sentence, 10 years to life, six years to life, or three years to life, if the interests of justice so require."

¶12 Coombs's counsel asked the sentencing court to impose the minimum sentence of three years to life, asserting that Coombs's case represented "one of the rare instances where the [sentencing court] should deviate" from the presumptive sentence of fifteen years to life. Counsel argued that the following mitigating factors supported a "lesser punishment" for Coombs: (1) his minimal criminal history; (2) his age of twenty-six with "a significant life ahead of him" including "goals" and "aspirations"; (3) his openness to receiving treatment; (4) his employment prospects and strong family support; and (5) his desire to complete college-type courses.

¶13 The State asked for the presumptive sentence of fifteen years to life, arguing that the longer sentence would give Victim time to grow into adulthood without having "to look over her shoulder at parole hearings" for Coombs. The State also asserted that "no amount of mitigating circumstances" could outweigh the circumstances of the abuse Coombs committed. The State noted that Coombs was in a position of trust and knew of prior abuse that Victim had suffered. Furthermore, Victim was of a "truly ... vulnerable age" and was abused over a three-year period. And the abuse was not momentary or incidental but involved grooming and repeated instances of oral sex and rape. The State summarized its position in regard to mitigation: "[T]his is not a momentary touching in passing. This was a calculated thing knowing that he had a vulnerable victim that he preyed upon.... [Y]ou've got ... three to four years of sexual offending. So again this is not a just momentary bad day."

¶14 Before imposing the sentence, the court specifically considered whether to "depart from the presumptive sentence" of fifteen years to life "in order to achieve the interests of justice." The court acknowledged Coombs's limited criminal history, acceptance of responsibility, strong family support, relative youth, amenability to supervision, desire for treatment, and remorse as mitigating circumstances. But the court also recognized aggravating circumstances, including the number of charges, the young age and vulnerability of Victim, the severity of Coombs's actions (i.e., repeated attempts to commit rape and sodomy on a child), Coombs's knowledge of Victim having been abused in the past, showing pornography to Victim in an attempt to normalize the behavior, and Coombs's possession of child pornography where other minors were victimized. The court advised Coombs that its sentence was "not about imposing a judgment that [found him] one hundred percent evil," but the court clarified that what Coombs "did to this child was evil." Thus, the trial judge concluded, "In good conscience, I cannot find that the interests of justice are served by a lower range. You have committed great harm to this child, and you need to be-society needs to hold you accountable for that."

¶15 The court sentenced Coombs to: (1) fifteen years to life for attempted rape of a child; (2) fifteen years to life for attempted sodomy on a child; and (3) eleven terms of one to fifteen years for sexual exploitation of a minor. All the sentences were ordered to run concurrently with each other.

ISSUES AND STANDARDS OF REVIEW

¶16 On appeal, Coombs challenges the sentences he received for attempted rape and attempted sodomy by asserting that his plea counsel was ineffective in failing to argue for proportionality in sentencing under the interests-of-justice framework articulated by the Utah Supreme Court in LeBeau v. State , 2014 UT 39, 337 P.3d 254. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law," which we review for correctness. State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162.

¶17 While not specifically identifying it as a separate issue on appeal, Coombs also advances the argument that the sentencing court "erred ... when it did not engage in the proportionality analysis" required by LeBeau . This argument differs from Coombs's ineffective assistance of counsel argument in that it alleges error in how the district court sentenced Coombs. "When evaluating a sentencing determination, we traditionally afford the [sentencing] court wide latitude and discretion. Thus, we will reverse a ... court's sentencing decision only if it is an abuse of the judge's discretion." State v. Moa , 2012 UT 28, ¶ 34, 282 P.3d 985 (cleaned up).

ANALYSIS

I. Coombs Fails to Show That His Counsel Performed Deficiently

¶18 To establish that his attorney was ineffective, Coombs must prove both prongs of the Strickland test, namely, (1) that his counsel performed deficiently and (2) that he was prejudiced as a result. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Coombs first "must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, [Coombs] must show that the deficient performance prejudiced the defense."See id.

¶19 "It is not necessary to address both parts of the [ Strickland ] test when the defendant makes an insufficient showing on one." State v. Veale , 2012 UT App 131, ¶ 5, 278 P.3d 153. Specifically, "there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland , 466 U.S. at 697, 104 S.Ct. 2052. Because we conclude that Coombs has failed to show that his counsel performed deficiently, we will refrain from analyzing the second prong.

¶20 To succeed on the first prong of the Strickland test, Coombs "must overcome the strong presumption that his trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsel's actions. The court gives trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them." State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (cleaned up). Therefore, Coombs must overcome the presumption that his counsel's actions at sentencing might conceivably be considered sound trial strategy. See Benvenuto v. State , 2007 UT 53, ¶ 19, 165 P.3d 1195. Furthermore, "counsel's representation must be only objectively reasonable, not flawless or to the highest degree of skill." Dows v. Wood , 211 F.3d 480, 487 (9th Cir. 2000) ; see State v. King , 2018 UT App 190, ¶ 14, 437 P.3d 425 ("This standard does not guarantee an error-free trial."). Performance is deficient under Strickland only when "no competent attorney" would have so acted. Premo v. Moore , 562 U.S. 115, 124, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011). Thus, if this court is able to conceive of a reasonable tactical basis for trial counsel's actions, then Coombs has not rebutted the strong presumption that his counsel performed reasonably. See Clark , 2004 UT 25, ¶ 7, 89 P.3d 162.

¶21 And this court can readily conceive of a reasonable tactical basis for Coombs's counsel's decision not to prompt the sentencing court to engage in the proportionality analysis discussed in LeBeau . See LeBeau v. State, 2014 UT 39, ¶ 37, 337 P.3d 254. We can formulate a tactical basis for trial counsel's decision to avoid the topic of proportionality regarding (1) the potential relation to the gravity of Coombs's crimes and (2) the potential comparison to the sentences imposed for other crimes in Utah. Because there are conceivable tactical bases for counsel's decision to avoid the topic of proportionality, we conclude that Coombs has failed to show deficient performance and accordingly the claim of ineffective assistance fails. We address each of Coombs's grievances in turn.

A. The Gravity of Coombs's Crimes

¶22 Coombs first argues that his counsel acted deficiently in failing to direct the sentencing court's attention to its duty to compare the gravity of Coombs's offenses with the harshness of the penalty he might receive. See LeBeau v. State , 2014 UT 39, ¶ 42, 337 P.3d 254. However, we conclude that it was reasonable for counsel to avoid comparing Coombs's conduct with the severity of his sentencing, focusing instead on highlighting mitigating factors, namely, Coombs's remorse, family support, willingness to engage in treatment, and lack of criminal history.

¶23 Arguing proportionality would not only have undermined the attempt to focus on Coombs's positive attributes, but it would have necessitated counsel to delve into the gravity of Coombs's sexual abuse of Victim. Over the course of several years, Coombs raped and sodomized Victim. He groomed her into fulfilling his sexual depravities by showing her pornographic pictures. He warped her perception of normal father-daughter activities by conning her into believing that sexual intimacy between father and daughter is normal and acceptable. He snuck into her room to take nude photographs of her while she slept. He also victimized other children by downloading images of child pornography. And his abuse would have continued indefinitely but for Victim's courage to inform others of the violence she had been suffering.

¶24 Had Coombs's counsel argued for an interests-of-justice proportionality analysis, he would have been forced to address and thereby highlight the profound gravity of Coombs's sexual abuse of Victim. LeBeau requires a sentencing court to consider the "proportionality of the defendant's sentence in relation to the severity of his offense ." Id. ¶ 37 (emphasis added). Thus, Coombs's counsel would have necessarily been required to promote the questionable assertion that Coombs's abuse of Victim proportionately deserved only a three-year sentence. Acknowledging the gravity of Coombs's crimes while requesting a minimum sentence may have stretched the bounds of credulity well beyond the breaking point. Such an approach would have carried with it the significant risk that the sentencing court would conclude that, because Coombs failed to appreciate the gravity of his crimes, it should seriously consider the imposition of consecutive sentences. Indeed, focusing on Coombs's positive attributes-the mitigating factor approach-to the exclusion of a proportionality exercise was by far the more persuasive and reasonable strategy given the extent of Coombs's abuse of Victim.

B. Sentences Imposed for Other Crimes

¶25 Coombs also argues that his counsel was ineffective for failing to alert the court to its duty to "compare the sentence being imposed [on Coombs] to the sentences imposed for other crimes in Utah." LeBeau v. State , 2014 UT 39, ¶ 47, 337 P.3d 254. But we reach a contrary conclusion because it was reasonable for counsel to avoid comparing the sentence for Coombs's crimes with those imposed for similar crimes in Utah. Comparing Coombs's sentence with the statutory sentences for more or less serious crimes would have, again, served only to highlight the gravity of Coombs's crimes and the favorable plea deal he received.

¶26 Any discussion of sentencing comparison for similar crimes would have necessarily included the sentencing schemes for child rape and child sodomy. These are the very crimes with which Coombs was originally charged and which he admitted to committing. The Utah Code states that "any touching, however slight, is sufficient to constitute the relevant element of ... rape of a child." Utah Code Ann. § 76-5-407(2)(b) (LexisNexis 2017); see also id. § 76-5-402.1(1) (defining rape of a child). And "any touching, even if accomplished through clothing, is sufficient to constitute the relevant element of ... sodomy on a child." Id. § 76-5-407(3) ; see also id. § 76-5-403.1(1) (defining sodomy on a child). The sentence for these offenses is twenty-five years to life. See id. §§ 76-5-402.1(2)(a), 76-5-403.1(2)(a). Given that Coombs was originally charged with two counts of each crime related to his abuse of Victim, he faced a possible sentence guaranteed to have almost twice as long a prison stay before parole could be considered. See State v. Gray , 2016 UT App 87, ¶ 27, 372 P.3d 715 ("The legislature has explicitly empowered sentencing courts to impose consecutive sentences."). In contrast to the effective life sentence that Coombs could have received for the sexual abuse he admitted inflicting on Victim, he received a fifteen-year-to-life sentence, making him eligible for parole at a relatively young age given the gravity of his crimes.

¶27 We conclude that Coombs's counsel acted reasonably in focusing on mitigating factors rather than comparing sentencing options for his crimes with statutory sentencing schemes for other crimes. The State would have likely responded to a proportionality argument by pointing out that Coombs had already avoided a much longer sentence in his plea deal-and now had the audacity to argue that the "proportionality principle" of "fairness" mandated the court to incarcerate him for a minimum sentence of three years to life. See LeBeau , 2014 UT 39, ¶ 47, 337 P.3d 254. Indeed, such a comparison would have highlighted the favorable plea deal Coombs received. And it could have resulted in the sentencing court deciding to impose consecutive sentences against the State's recommendation, thinking that the defendant did not appreciate the gravity of his actions. Thus, there was a conceivable tactical basis for counsel's actions because arguing mitigation represented the safer course for Coombs.

II. The Sentencing Court Was Not Required to Engage in an Explicit LeBeau Analysis Without Prompting from Counsel

¶28 Coombs also argues that the sentencing court "erred ... when it did not engage in the proportionality analysis" required by LeBeau. But courts can be presumed to have engaged in the proportionality analysis. See State v. Alvarez , 2017 UT App 145, ¶ 4, 402 P.3d 191. It is well-established that, "[a]s a general rule, Utah courts presume that the [sentencing] court made all the necessary considerations when making a sentencing decision." State v. Monzon , 2016 UT App 1, ¶ 21, 365 P.3d 1234 (cleaned up); see also State v. Moa , 2012 UT 28, ¶ 35, 282 P.3d 985 (same); State v. Helms , 2002 UT 12, ¶ 11, 40 P.3d 626 ("[W]e will not assume that the [sentencing] court's silence, by itself, presupposes that the court did not consider the proper factors as required by law."); Alvarez, 2017 UT App 145, ¶ 4, 402 P.3d 191 (stating that the sentencing court's silence does not necessarily indicate the court did not consider required factors).

¶29 Furthermore, to the extent Coombs argues that the sentencing court plainly erred by not explicitly conducting on the record a proportionality analysis sua sponte, we agree with our supreme court that sentencing courts are required to conduct the analysis only when the parties raise the issue. See State v. Martin , 2017 UT 63, ¶ 66, 423 P.3d 1254. "Ranging across the criminal code in an effort to (1) identify similar offenses and (2) compare their sentencing schemes to the sentence [Coombs] received.... is certainly not a task that we can require our [sentencing] courts to perform without prompting or guidance from counsel." Id. And LeBeau itself implicitly acknowledges this limitation of the requirement to conduct a proportionality analysis, stating, "[C]ourts should consider all relevant facts raised by the parties about the defendant's crime in relation to the harshness of the penalty." LeBeau v. State , 2014 UT 39, ¶ 42, 337 P.3d 254 (emphasis added); see also State v. Norton , 2018 UT App 82, ¶ 79, 427 P.3d 312 ("[W]e will not fault the court for failing to conduct a sua sponte review of the Utah Code to identify similar offenses and then compare their sentencing schemes to the sentence it intended to impose on [the defendant]." (cleaned up) ), cert. granted , 429 P.3d 465 (Utah 2018).

¶30 As we noted in the previous section analyzing the ineffective assistance claim, Coombs's counsel had a conceivably rational tactical basis for not advancing a proportionality argument before the sentencing court. But it does not follow that the sentencing court did not engage in a proportionality analysis just because Coombs's counsel did not ask it to do so. Indeed, nothing in the record overcomes the presumption that the sentencing court engaged in a proportionality analysis before imposing the sentence. To the contrary, the sentencing court specifically considered the question of whether to depart from the presumptive sentence of fifteen years to life "in order to achieve the interests of justice." The court also addressed the severity of Coombs's conduct when it advised him that what he "did to this child was evil." The severity of Coombs's abuse was further highlighted when the court told Coombs that "society needs to hold [him] accountable for" the "great harm to this child."

¶31 Thus, we conclude that Coombs has failed to overcome the presumption of appropriate sentencing consideration by the sentencing court.

CONCLUSION

¶32 This court finds Coombs's arguments unpersuasive. First, Coombs has not shown deficient performance of his counsel in highlighting mitigating circumstances and foregoing a request that the sentencing court engage in a proportionality analysis. Second, we conclude that the presumption of appropriate sentencing considerations has not been overcome.

¶33 Affirmed.

      Coombs does not challenge the sentences he received for sexual exploitation of a minor.

      LeBeau requires sentencing courts to consider "(1) the seriousness of the defendant's conduct in relation to the severity of the sentence imposed" and "(2) the severity of the sentence imposed in light of sentences imposed for other crimes in the same jurisdiction" when conducting a statutorily required "interests-of-justice analysis." LeBeau v. State , 2014 UT 39, ¶ 41, 337 P.3d 254.

      In State v. Martin , 2017 UT 63, 423 P.3d 1254, the Utah Supreme Court declined to reverse a sentencing court for failure to apply the framework of LeBeau where a formal proportionality analysis was not undertaken on the record. Recognizing the "daunting task" involved in undertaking a proportionality analysis, the Martin court stated: "[I]t is certainly not a task that we can require our district courts to perform without prompting or guidance from counsel." Id. ¶ 66. We cannot read LeBeau and Martin as removing from defense counsel the discretion not to make certain arguments at sentencing. See generally Martin , 2017 UT 63, 423 P.3d 1254 ; LeBeau , 2014 UT 39, 337 P.3d 254. Every case is different and defense counsel must retain wide discretion in determining what arguments will best benefit a client under the totality of the circumstances.

      In our view, LeBeau constitutes blatant policy-based ad hoc review of legislative action not typically undertaken by the judicial branch. See LeBeau , 2014 UT 39, ¶¶ 26-37, 337 P.3d 254. We would hope that, given the appropriate opportunity, our supreme court will revisit whether LeBeau's approach should continue.

      On appeal, Coombs makes much of the fact that his crimes against Victim were not "violent." His brief states that while Coombs "did admit to having oral and vaginal sex with [Victim], ... there were never allegations of threats or physical harm." This court strongly disagrees with this characterization of child sexual abuse. While there may have been no threats of physical harm, Victim stated in the original police report that Coombs threatened to leave the family if Victim, who was six years old at the time, did not agree to perform oral sex on him. Victim refrained from telling her mother about the abuse because she feared doing so would ruin her brothers' lives, presumably because Coombs would be forced to leave the family. And even if there were no threats of bruise-causing violence, attempting to sodomize and rape a child is violent per se. Our own supreme court has noted that the Utah Legislature, in establishing a sentencing scheme for sexual offenses, "signaled its judgment that sexual crimes, which intrude on the fundamental bodily integrity of the victim like no others short of murder, are serious enough to warrant a sentence of [life without the possibility of parole]." LeBeau , 2014 UT 39, ¶ 49, 337 P.3d 254 (emphasis added). "And sexual crimes, particularly those involving children, represent an especially heinous form of bodily insult ." Id. ¶ 50 (emphasis added). The facts in this case support the conclusion that the abuse Victim suffered constituted a violent assault on the dignity of her person. Victim continues to suffer psychological and emotional harm from Coombs's years of abuse. Victim is "still mad, angry," has "really bad outbursts," and "goes through [pain] every day." Victim will likely suffer from the effects of Coombs's abuse for the rest of her life. As the State aptly notes in its appellate brief, "[T]he fact that [Coombs] may not have drawn blood or threatened [Victim] with a weapon to get her to submit does not mean that his crimes were non-violent and did not harm [Victim]."

      Because the relevant statutory provisions in effect when Coombs asserts that his counsel provided ineffective assistance (i.e., at sentencing in December 2015) do not differ in any material way from those now in effect, we cite the current version of the Utah Code for convenience.

      In support of his argument that under LeBeau the sentencing court must conduct an explicit interests-of-justice analysis, Coombs cites State v. Jaramillo , 2016 UT App 70, ¶ 39, 372 P.3d 34. As we explained in State v. Alvarez , 2017 UT App 145, 402 P.3d 191, Jaramillo's rationale does not apply to defendants who were sentenced after LeBeau was issued: "Because LeBeau and its proportionality requirement predated [the defendant's] sentence, and because [the defendant] has not demonstrated that our presumption of appropriate sentencing consideration is inapplicable, we assume that the sentencing court duly considered the proportionality of [the defendant's] sentence." Id. ¶ 4.

      Coombs suggests that the sentencing court's failure to use the term "proportionality" indicates that the presumption of appropriate sentencing consideration has been overcome. However, we note that LeBeau nowhere requires the court to invoke the term "proportionality" as an incantation to fulfill its obligations at sentencing. See generally LeBeau , 2014 UT 39, 337 P.3d 254.


author: HAGEN, Judge:

text:
    Richard TAYLOR and Deanne Taylor, Appellants, v. UNIVERSITY OF UTAH, University Hospital, and University of Utah Physical Medicine and Rehabilitation Clinic, Appellees.
    No. 20170678-CA
    Court of Appeals of Utah.
    Filed January 17, 2019
    James W. McConkie, Salt Lake City, Bradley H. Parker, and W. Alexander Evans, Attorneys for Appellants
    Curtis J. Drake and Parker A. Allred, Salt Lake City, Attorneys for Appellees
    Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.
    Opinion
   HAGEN, Judge:

¶1 Richard Taylor and Deanne Taylor (the Taylors) appeal the district court's decision to exclude the testimony of their causation expert in this medical malpractice case. The district court ruled that the Taylors had not made a threshold showing of reliability because the expert testimony was based on insufficient facts and data. Because neither the expert's experience nor the relevant medical literature provided a sufficient factual basis to support the expert's conclusion about causation, we affirm.

BACKGROUND

¶2 The Taylors' daughter (the patient) was diagnosed at a young age with a neurological disorder for which part of her treatment was to receive intrathecal baclofen, a drug administered by a catheter and pumped into the thecal sac located around the spinal cord. In 2013, a neurosurgeon replaced the patient's pump, but not the catheter connected to the pump.

¶3 About one month later, the patient experienced increased spasticity in her legs, which can be a side effect of baclofen withdrawal. The patient received an oral dose of baclofen in an attempt to reduce the spasticity. A physician reassessed the patient a few hours later, determined that there had been no change of symptoms, and continued the oral dosages of baclofen. The patient also underwent an x-ray examination, which did not show any obvious problems with the pump or catheter. The physician instructed the patient to return the following day for further evaluation.

¶4 On April 18, 2013, the patient "underwent a dye and rotator study of the pump and catheter," but the study showed no obvious signs of a problem. Nevertheless, the physician "thought an undetected problem with the pump and catheter might still be possible." At the same time, the patient had difficulty keeping down the oral doses of baclofen due to vomiting. After discussing the patient's medical history and symptoms with the neurosurgeon, the physician recommended that the patient undergo surgery to replace both the pump and catheter. The following day, the patient underwent the replacement surgery and her intrathecal baclofen dosage was reinstated. According to her sister, the patient was "back to herself" by April 20, 2013.

¶5 In early May, a few weeks after the baclofen pump and catheter were replaced, the patient began exhibiting "manic-like, psychotic behavior." The Taylors took the patient to a different doctor (the expert) to monitor the patient's baclofen treatment. Initially, the expert concluded that the patient's "manic-like behavior was caused by baclofen overdose" and, at the expert's "direction, all baclofen was stopped by late May 2013." The expert later concluded that the patient's change in behavior was due to baclofen withdrawal rather than overdose.

¶6 The Taylors assert that the patient suffers from a permanent neurological disorder, encephalopathy, and allege that the injury was caused by baclofen withdrawal that occurred between April 18, 2013, and April 19, 2013, before the pump and catheter were replaced. The Taylors sued the University of Utah, University Hospital, University of Utah Physical Medicine and Rehabilitation Clinic, and the agents, employees, and staff employed with those institutions that were involved in the patient's baclofen treatment (collectively, the Defendants). To support their theory of causation, the Taylors sought to present expert testimony at trial. The expert's testimony would explain that her theory of causation was the following sequence of events: "[b]aclofen withdrawal caused a metabolic disturbance, which caused encephalopathy, which produced months-long hallucinations and other abnormal behavior, resulting in or causing permanent memory and cognitive function damage."

¶7 After deposing the expert, the Defendants filed a motion in limine to exclude the expert's testimony, arguing that the testimony was not based on medical literature or her personal experience and therefore could not satisfy the threshold showing of reliability under rule 702 of the Utah Rules of Evidence. The expert conceded in her deposition that "there is not a single reported case of baclofen withdrawal in which the patient remained stable throughout the episode and went on to suffer permanent neurological injury" and that she "has never seen a patient experience the injuries that [the patient] claims to have suffered." The expert also conceded that symptoms of baclofen withdrawal generally subside within forty-eight hours after the baclofen levels are reinstated and that baclofen withdrawal does not result in permanent injury if the baclofen levels are properly reinstated. The Defendants argued that, as a result, there "are no facts or data to support [the expert's] opinion" and that her proposed testimony is "the very type of unreliable testimony that Rule 702 is intended to prohibit."

¶8 The district court agreed with the Defendants and excluded the expert's testimony. The court concluded that, because the expert "admits she has never seen [this injury] in her practice" and has failed to provide medical literature "to support the argument that encephalopathy-whether caused by a metabolic disturbance or something else-can last more than 48 hours after therapeutic levels of baclofen are restored," she "does not have facts and data sufficient upon which to base her opinions or to employ her method for evaluating the causal connection in this case."

¶9 The Taylors appeal.

ISSUE AND STANDARD OF REVIEW

¶10 The Taylors contend the district court erred in excluding the expert's "opinions on proximate cause pursuant to Rule 702 of the Utah Rules of Evidence on the ground that her opinions were not based on facts and data sufficient to satisfy the threshold showing of reliability." "We review a district court's decision to admit or exclude expert witness testimony for an abuse of discretion and will not reverse that decision unless it exceeds the limits of reasonability." KTM Health Care Inc. v. SG Nursing Home LLC , 2018 UT App 152, ¶ 28, 436 P.3d 151 (quotation simplified).

ANALYSIS

¶11 We are asked to determine whether the district court correctly ruled that neither the expert's experience nor medical literature supported the expert's opinion regarding causation under rule 702(b) or 702(c) of the Utah Rules of Evidence.

¶12 District courts have "wide discretion to determine whether expert testimony is admissible" under rule 702. KTM Health Care Inc. v. SG Nursing Home LLC , 2018 UT App 152, ¶ 59, 436 P.3d 151 (quotation simplified). The role of the district court is to serve as a "gatekeeper" and "screen out unreliable expert testimony." Eskelson v. Davis Hosp. & Med. Center , 2010 UT 59, ¶ 12, 242 P.3d 762 (quotation simplified). District courts should therefore "approach expert testimony with rational skepticism." Id. (quotation simplified).

¶13 Rule 702 of the Utah Rules of Evidence governs the admissibility of expert witness testimony. An expert who is qualified "by knowledge, skill, experience, training, or education may testify in the form of an opinion ... if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Utah R. Evid. 702(a). Before admitting such testimony, the judge must determine that the proponent has made a threshold showing of reliability. State v. Lopez , 2018 UT 5, ¶ 20, 417 P.3d 116.

¶14 The threshold showing of reliability can be satisfied "if the underlying principles or methods, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community." Utah R. Evid. 702(c). Alternatively, the threshold showing can be met "by establishing that the principles underlying [the expert's] testimony are 'reliable, ... based upon sufficient facts or data, and ... have been reliably applied to the facts.' " Lopez , 2018 UT 5, ¶ 22, 417 P.3d 116 (quoting Utah R. Evid. 702(b) ). "What is required for a threshold showing of reliability will vary depending on the complexity of the particular case." Eskelson, 2010 UT 59, ¶ 15, 242 P.3d 762. For example, an expert witness testifying "regarding his experience as a physician[ ] in dealing with similar situations" as the patient in the underlying case does not need to identify a specific methodology to opine on causation of the patient's injuries so long as the expert's "exposure to a nearly identical situation forms the basis of the expert's opinion." Id.

¶15 Here, the district court ruled that the Taylors had not made the requisite threshold showing under rule 702(b) because the expert's opinion was not "based upon sufficient facts or data." Utah R. Evid. 702(b)(2) ; see also id. R. 702(c) (providing that, where the threshold showing is based on general acceptance in the relevant expert community, "the sufficiency of facts or data" must also be generally accepted). We agree. Neither the expert's experience nor the medical literature provided a sufficient factual basis on which to base her opinion that the baclofen withdrawal caused the patient's injury.

¶16 The Taylors sought to offer the expert's opinion of causation based on her experience treating other patients with baclofen withdrawal. Relying on her experience, the expert claimed to know that baclofen withdrawal can cause metabolic disturbances. She also claimed to know that metabolic disturbances can cause permanent neurological injury, such as encephalopathy. Employing "logical deduction," the expert concluded that encephalopathy can be caused by baclofen withdrawal. Although such "logical deduction" may be a reliable method when supported by sufficient facts or data, the expert conceded in her deposition that "[n]one" of her patients "have suffered any type of permanent injury from an episode of [b]aclofen withdrawal ... [or] overdose." Thus, her own experience did not provide her with "exposure to a nearly identical situation" to form the basis of her opinion. See Eskelson , 2010 UT 59, ¶ 15, 242 P.3d 762.

¶17 Nor did the expert provide any supporting medical literature documenting examples of patients suffering permanent encephalopathy caused, either directly or indirectly, by baclofen withdrawal when the baclofen level was reinstated, as it was in this case. To the contrary, the expert stated that she had "looked for" but was not "aware of any case similar to [the patient's] reported anyplace in the [medical] literature." Further, the expert conceded that, according to medical literature, "patients who suffer [baclofen ] withdrawal typically have symptoms resolved within 48 hours of having [b]aclofen levels reinstituted." In fact, "there is not a single reported case of baclofen withdrawal in which the patient remained stable throughout the episode and went on to suffer permanent neurological injury," such as encephalopathy.

¶18 Because the expert's opinion regarding causation of the patient's injuries was not supported by any personal experience or medical literature, the district court did not exceed its discretion in excluding the expert's testimony for lack of sufficient facts and data.

CONCLUSION

¶19 We conclude the district court did not exceed its discretion when it excluded the expert's testimony for lack of sufficient facts or data. Accordingly, we affirm.

      The Taylors also contend the expert's testimony should not have been excluded because the "principles and methods" underlying her opinion were reliable. Specifically, they argue that the expert's opinion on causation was based upon "logical deduction," which is a "standard technique[ ]" that is "generally accepted by the relevant community of medical experts." But the district court did not exclude the expert's testimony on the basis that her principles and methods were not reliable. Instead, the court concluded that the expert lacked sufficient facts and data "upon which to base her opinions or to employ her method for evaluating the causal connection in this case." In other words, the court did not determine that "logical deduction" is necessarily an unreliable method, only that the expert lacked sufficient facts and data to employ such a method.