State v. McDaniel

                          2025 UT App 120



                THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                           Appellee,
                              v.
                  MICHAEL TIMOTHY MCDANIEL,
                          Appellant.

                             Opinion
                        No. 20230525-CA
                       Filed August 7, 2025

         Third District Court, West Jordan Department
              The Honorable William K. Kendall
                         No. 181403959

            Nathalie S. Skibine, Attorney for Appellant
                Derek E. Brown and Mark C. Field,
                     Attorneys for Appellee

   JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
                        concurred.

TENNEY, Judge:

¶1     A jury convicted Michael McDaniel of two counts of
sodomy on a child and one count of aggravated sexual abuse of a
child. McDaniel now challenges his convictions on four grounds:

   •   First, McDaniel argues that the district court should have
       granted his request for a directed verdict, either at the close
       of the State’s case or at the close of the defense’s case.

   •   Second, McDaniel argues that the State’s expert should not
       have been allowed to testify because he was not qualified
       and his testimony was not reliable.
                         State v. McDaniel


   •   Third, McDaniel argues that his counsel provided
       ineffective assistance when he advised McDaniel to appear
       in jail clothes at trial and then commented on those jail
       clothes when addressing the jury.

   •   Finally, McDaniel argues that the district court erred by
       giving an “indecent liberties” instruction that was not
       supported by the law in effect at the time of McDaniel’s
       alleged criminal conduct.

¶2     For the reasons set forth below, McDaniel has not
persuaded us that there was any reversible error. We accordingly
affirm his convictions.


                        BACKGROUND 1

          Allegations, CJC Interview, and Police Interview

¶3     In December 2013, when Kimberly 2 was three years old,
she and her family moved into a one-bedroom apartment with
“really long stairs” in West Jordan. During the time that
Kimberly’s family lived there, “people” were “always in and out”
because Kimberly’s parents were using and selling
methamphetamine.

¶4     McDaniel “stayed with” the family “on and off” between
December 2013 and February 2014. Kimberly’s mother (Mother)
would leave Kimberly and her brother with McDaniel “[a]t least
four times a week” for “up to eight” hours so that she and


1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified).

2. A pseudonym.


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                        State v. McDaniel


Kimberly’s father (Father) could “run around and collect money.”
On one occasion in January 2014, Mother left McDaniel alone with
the children for “[a]lmost 48 hours” so that she could collect
money to post bail for Father after he was arrested.

¶5     In March 2014, Kimberly’s family moved from the
apartment in West Jordan to a townhouse in Midvale. By Mother’s
account, McDaniel went to the townhouse in Midvale “maybe one
time” after the family moved.

¶6     In November 2017, when Kimberly was seven years old,
Kimberly told Mother that McDaniel had done “some bad things
to” her and “touched [her] no-no spot” during the time that they
lived “in the apartment with the long stairs.” The next day,
Mother reported the alleged abuse to police. Mother believed that
the abuse had occurred in early 2014 because that was the only
period in which Kimberly had been left alone with McDaniel.

¶7     Kimberly was soon interviewed by a detective (Detective)
at the Children’s Justice Center (CJC). After discussing various
innocuous things with her, Detective asked Kimberly if she knew
why she was “here today.” Kimberly responded that McDaniel
had “raped” her. Detective asked Kimberly to tell her “everything
about” McDaniel raping her. Kimberly said that during the period
when the family lived “in a house with long stairs,” McDaniel had
“put his mouth on” her “[v]agina.” Continuing, Kimberly said
that McDaniel had also put “his private part” “on” her mouth
“one time” while her clothes were on. Kimberly initially said that
McDaniel’s clothes were on when he put his private part on her
mouth, but she soon corrected herself and said that his pants were
off and that he had put his penis “in” her mouth. Kimberly also
told Detective that, during this same encounter, McDaniel had
gotten “on top of” her on the couch and had “moved up and
down” while both of their clothes were on. Kimberly said that she
told McDaniel to “stop, but he didn’t stop until” she screamed
profanities at him.



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                        State v. McDaniel


¶8    After taking a short break, Detective again asked Kimberly
about McDaniel putting his mouth on her vagina. The following
exchange occurred:

      Kimberly: I probably—he didn’t really do that to me
      because I probably—I probably forgot for a second,
      but then I remembered, he didn’t really do that. For
      a second, I forgot.

      Detective: He didn’t do what?

      Kimberly: He didn’t do the vagina thing. He didn’t
      . . . put his mouth on my—he—I put—he made me
      put his—he made me put my mouth on his. That’s
      what—the vagina thing didn’t really happen. I was
      probably just thinking about something else for a
      minute.

¶9     During the interview, Kimberly was asked what had
caused her to tell Mother that McDaniel had touched her.
Kimberly responded that “one of [her] brother’s friends” got “too
close to” her and that when she told Mother about that, Mother
and Kimberly’s grandmother had asked her whether “anything
happened to” her. She said that she then told them about the
abuse from McDaniel.

¶10 Detective later interviewed McDaniel. There, McDaniel
admitted that in 2014, he was “running around, . . . not working,
being a bum, [and] using meth.” He said that he was “pretty
close” friends with Father, that Father “used to deal drugs,” and
that they used drugs together. McDaniel denied ever staying at
Mother and Father’s apartment in West Jordan, although he did
admit that he sometimes stayed with his daughter who lived in
the same apartment complex as Mother and Father. McDaniel
denied ever babysitting for Mother and Father, and he specifically
denied ever putting his penis in Kimberly’s mouth. McDaniel
repeatedly insisted that he’s “not that way,” and he told Detective


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                        State v. McDaniel


that he “didn’t do nothing like that” and “[w]ould never do
nothing like that.” McDaniel said that he didn’t “know why
anybody would say something like that” about him.

                             Charges

¶11 The State charged McDaniel with two counts of sodomy on
a child and one count of aggravated sexual abuse of a child.
McDaniel was arrested on these charges, and he remained
incarcerated pending trial.

                Pretrial Ruling on Expert Testimony

¶12 Before trial, the State gave notice of its intent to call an
expert witness (State Expert). The State explained that State
Expert was a forensic interviewer at the CJC who had conducted
hundreds of interviews. The State said that it intended to have
State Expert testify about Kimberly’s CJC interview, testify as a
“[b]lind expert on Child Abuse Accommodation[] and counter-
intuitive behavior in children,” and offer “[c]ounter-testimony
against possible defense experts.” As part of the “[b]lind expert”
portion of his testimony, the State indicated that State Expert’s
testimony might include “incidence of stranger versus intimate
abuse, delayed disclosure, to whom disclosure is made and the
effects of disclosure, age and timing of disclosure, gender and its
impact on disclosure, types of disclosure, script memory, episodic
memory, the concepts of flight/[fight]/freeze in the context of
sexual abuse, the process of victimization, and suggestibility.”

¶13 McDaniel moved to exclude State Expert’s proposed
testimony. McDaniel argued that:

   •   State Expert was not qualified to testify about “the
       behaviors of child sex abuse victims” or “childhood
       memories”;




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                          State v. McDaniel


   •   State Expert’s proposed testimony didn’t satisfy the
       foundational requirements of rule 702 of the Utah Rules of
       Evidence; and

   •   State Expert’s proposed testimony should be excluded
       under rule 403 of the Utah Rules of Evidence because it
       would “improperly vouch for [Kimberly’s] credibility.”

¶14 The district court later denied the motion. The court ruled
that State Expert was “qualified to testify to these topics,” that the
proposed testimony satisfied the “basic foundational showing of
indicia of reliability,” and that so long as State Expert did not
testify “about whether he believes or believed the alleged victim
. . . to be credible” or about the “statistical frequency of false
accusations,” the testimony would not violate rule 403.

        McDaniel Wears Jail Clothing at Trial and Counsel’s
                      Opening Statement

¶15 During a hearing shortly before trial, McDaniel’s counsel
(Counsel) informed the court that “we’re not going to be dressing
Mr. McDaniel up in, you know, formal attire,” and he further
explained that the defense intended to have McDaniel “remain in
jail clothing” during the trial. The district court then spoke to
McDaniel directly, advising him that he had the right “to appear
in court in civilian clothes and to have it not be apparent to the
jury that [he was] in custody.” In response to a question from the
court, McDaniel agreed that it was his “choice affirmatively to
appear in [his] jail clothes with handcuffs.”

¶16 In March 2023, the case went to trial. Counsel started the
opening statement by saying:

       I was a drug addict for 20 years. I smoked
       methamphetamine every day. I’m a bum. I sleep in
       my truck. I’m a petty criminal. I pass bad checks. I’m
       all those things. But what I’m not is a child abuser.


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                        State v. McDaniel


      And when Detective . . . was questioning me, I told
      her that I was never alone with [Mother] and
      [Father’s] children and I did not sexually abuse their
      daughter.

              Now members of the jury, I’ve given you
      kind of a summation of Mike McDaniel. I’ve given
      you kind of a summation of who he is and most
      importantly who he isn’t. And when you hear these
      types of accusations and you hear that a child is
      making an accusation that an adult harmed them,
      let’s be honest, we all want to believe the child.
      Particularly when you are talking about a man like
      Mike McDaniel. Mike McDaniel, based on his
      appearances, based on who he is, and when you’re
      at the Smith’s grocery store shopping with your
      children, you kind of clutch your children a little bit
      tighter. When you’re riding the TRAX and you see
      Mike McDaniel sitting down, what you want to do
      is clutch your children a lot tighter even though you
      don’t know anything about him. Just the way he
      looks.

             Now, members of the jury, in this trial I’m
      going to ask you to cast that aside and to focus on
      what you’re going to hear and what you observe.
      And the issue in this case is not Mike McDaniel, but
      the issue in this case is whether or not you believe
      his accuser, [Kimberly].

                           State’s Case

¶17 The State presented its case through the testimonies of
Detective, Kimberly, Mother, the officer who took Mother’s
report, State Expert, and a medical professional who evaluated
Kimberly.




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                        State v. McDaniel


¶18 In her testimony, Detective testified about her interviews
of both Kimberly and McDaniel. In conjunction with Detective’s
testimony, a recording of Kimberly’s CJC interview was played
for the jury.

¶19 In her testimony, Kimberly—who was now twelve years
old—testified that when she was about three or four years old, she
lived in a three-bedroom apartment in “West Valley . . . [w]ell,
Taylorsville, West Valley, just around there.” When asked who
she “lived there with,” she responded that she lived there with
McDaniel, Mother, Father, and her brother.

¶20 Kimberly then testified that, during that time period,
McDaniel touched her “chest” and “vagina” when changing her
diapers, and she said that when he did so, his hand would linger
for “[a] few minutes.” Kimberly testified that, sometimes while he
was changing her, McDaniel would blow on her vagina and lick
it. Kimberly also said that McDaniel touched the “[i]nside” of her
vagina with “[h]is penis” on the couch while he laid on top of her
and that he moved “[u]p and down.” Kimberly said that this
happened “three times at most,” that she sometimes “would have
a shirt on and sometimes [she] wouldn’t,” and that McDaniel
“would normally have a shirt on but not pants.”

¶21 Kimberly also said that on some other occasions, McDaniel
“locked [her] in the bathroom” and put “[h]is penis” in her mouth.
Kimberly said this happened “[p]robably four or five” times.

¶22 Kimberly said that she never told McDaniel to stop abusing
her because she “didn’t really know what was going on” but that
she “did cuss at him a few times . . . when he wouldn’t let [her]
play with [her] toys.” When asked what prompted her to finally
disclose the abuse, Kimberly responded that her older cousin
taught her what the word “rapist” or “pedophile” meant, that
Kimberly told her cousin “that happened to me,” and that she told
her grandmother and Mother about the abuse “the next day.”




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                         State v. McDaniel


¶23 In his testimony, State Expert discussed how forensic
interviews of children are conducted. He explained that “it’s very
important” for interviewers to “remain impartial” and to
“conduct themselves in [a] way that is neutral to gather
information about allegations of abuse,” which can be
accomplished “by asking open-ended questions to allow the child
to talk about whatever they’ve experienced or whatever has
happened to them in their own words.”

¶24 State Expert also testified about children’s concept of time,
script and episodic memory, fragmented disclosure,
reminiscence, and the effects of trauma on memory. State Expert
testified that young children’s “concept of time is not fully
developed” and that children sometimes exhibit “script
memory,” where they remember multiple or “similar” events as
occurring in “kind of a collective.” State Expert also testified that
children sometimes exhibit “fragmented disclosure,” wherein
they “may not recall all of the specific details” at a “particular
time,” instead recalling details in a “somewhat fragmented” form.
State Expert further testified that children are susceptible to the
phenomenon of “reminiscence,” under which they may “recall[]
specific details on subsequent times that they’re asked about
something that’s happened to them.” And State Expert also
testified that a “lot of the research does say that childhood events
that are negative are remembered very well.”

¶25 Finally, the medical professional testified that she works
for a local children’s hospital and examines children who are
alleged to have been sexually abused. She said that she performed
a physical exam of Kimberly in December 2017 and that the
physical exam was “normal.” But she then added that “a normal
exam does not mean that nothing happened.” The medical
professional also testified that while she was speaking with
Kimberly, Kimberly told her that McDaniel had touched her
vagina “over” her clothes “once” and that Kimberly had also told




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                         State v. McDaniel


her that McDaniel “made [Kimberly] touch his pee pee with [her]
mouth” “once.”

             Directed Verdict Motion and Defense Case

¶26 After the State rested, McDaniel moved for a directed
verdict. McDaniel argued that there was “insufficient evidence . . .
presented for any reasonable jury to find proof beyond a
reasonable doubt.” In arguing this motion, McDaniel pointed to
various “discrepancies” between Kimberly’s accounts of the
abuse (including discrepancies between the CJC interview and
the account she gave in her trial testimony), and he also pointed
to “the fact that she [was] relaying a memory from when she was
three years old.” After hearing a response from the State, the
district court denied the motion, explaining “that the State ha[d]
met its burden and that there ha[d] been sufficient evidence
presented from which a jury acting reasonably could convict the
defendant and that the State ha[d] in fact established a prima facie
case against the defendant on each one of the offenses charged.”

¶27 In the defense case, McDaniel called his own expert
(Defense Expert). Defense Expert testified about problems
associated with childhood memories, such as “infantile amnesia,”
suggestibility, and “source-monitoring errors.” Defense Expert
explained that “infantile amnesia” is “a phenomenon” wherein a
person can remember an experience that happened “during
[their] first several years of life” and they “may be able to report
it the next day, or maybe even six months later,” “[b]ut in two or
three years [they] cannot remember it at all.” Defense Expert also
testified that because young children “can’t monitor the source of
their memory,” they are susceptible to source-monitoring errors,
where they think they’re remembering what “actually happened”
but they’re “really remembering what someone has told them
about their life experience.”

¶28 Like State Expert, Defense Expert opined on children’s
understanding of time, fragmented disclosure, reminiscence, and


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                         State v. McDaniel


the effects of trauma on memory. Defense Expert testified that it
is “difficult” for children to “form[] long-term memories” because
“the hippocampus” (or “temporal lobe”) is not fully developed
“until about age nine or ten.” Defense Expert agreed with State
Expert that “in child forensic interviews, there’s research that says
that if you re-interview a child, . . . they’re probably going to
report more information” “because the child’s brain is trying to
think more about their experience.” Defense Expert also agreed
with State Expert that it “is common knowledge” that people
“remember traumatic events better than routine events.” But
Defense Expert disagreed with State Expert on the concept of
fragmented disclosure, explaining that there’s not “a whole lot of
support” for that concept in the literature because “typically when
people have gaps in what they experienced, they fill it in with
information.”

                  Jury Instruction and Conviction

¶29 Before closing arguments, the court read instructions to the
jury. These included elements instructions for the charged
offenses. As noted, one of the charged offenses was aggravated
sexual abuse of a child. One of the elements of that offense is that
the actor took “indecent liberties with a child, or cause[d] a child
to take indecent liberties with the actor or another.” Utah Code
§ 76-5-404.1(2) (2014). The jury was accordingly instructed that it
had to find that McDaniel “took indecent liberties” with
Kimberly. It was then given the following instruction that defined
indecent liberties:

       “Indecent liberties” means touching a minor child’s
       genitals, anus, buttocks, pubic area, or female
       breast; causing any part of a minor child’s body to
       touch the actor’s or another’s genitals, pubic area,
       anus, buttocks, or female breast; simulating or
       pretending to engage in sexual intercourse with a
       minor child, including genital-genital, oral-genital,



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                        State v. McDaniel


      anal-genital, or oral-anal intercourse; or causing a
      minor child to simulate or pretend to engage in
      sexual intercourse with the actor or another,
      including genital-genital, oral-genital, anal-genital,
      or oral-anal intercourse.

¶30 In the defense’s closing argument, Counsel again discussed
McDaniel’s appearance—i.e., that he had appeared in jail clothes.
Counsel stated:

      Look at Mr. McDaniel. You might have a bias
      against him simply because of the way he looks. I
      ask you to set those aside, recognize those biases,
      and set them aside while you consider the evidence
      in this case.

              I want to talk a little bit about Mike McDaniel
      first. We could have dressed him up, put him in a
      suit. But that’s not Mr. McDaniel. You heard in his
      interview, Mr. McDaniel has had a long history of
      drug abuse, petty crime, and he talked with the
      police. But that’s who Mr. McDaniel is. He owns
      those facts. He owns what has been a hard life for
      him.

¶31 Continuing, Counsel acknowledged that McDaniel had
been “addicted to drugs.” But Counsel then stressed that when
Detective asked McDaniel to agree to an interview, even though
McDaniel did not initially know that he was being accused of
sexual abuse, McDaniel openly admitted to his past drug use.
Counsel asked jurors to not let “biases . . . against someone like”
McDaniel impact their thinking or “blur [their] judgment.”

¶32 After the case was submitted to the jury, the jury convicted
McDaniel on all three counts.




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                          State v. McDaniel


             ISSUES AND STANDARDS OF REVIEW

¶33 On appeal, McDaniel first argues that the district court
erred in denying his directed verdict motion at the close of the
State’s case. In his view, Kimberly’s testimony was inherently
improbable, and without it, there was insufficient evidence to
support his convictions. With respect to inherent improbability,
“we accord deference to the trial court’s ability and opportunity
to evaluate credibility and demeanor,” and we therefore “review
deferentially a trial court’s decision to decline to disregard a
witness’s testimony due to inherent improbability, reversing the
trial court’s decision only if it was clearly erroneous.” State v.
Skinner, 2020 UT App 3, ¶ 20, 457 P.3d 421 (quotation simplified).
With respect to general insufficiency, “we will uphold the trial
court’s decision if we conclude that some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” Id. ¶ 19 (quotation
simplified).

¶34 McDaniel relatedly argues that it was ineffective assistance
or plain error to not revisit the directed verdict motion after
Defense Expert testified. “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of
law,” and “to prevail on plain error review, a defendant must
establish that (i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e., absent
the error, there is a reasonable likelihood of a more favorable
outcome for the appellant.” State v. Cesspooch, 2024 UT App 15,
¶ 7, 544 P.3d 1046 (quotation simplified), cert. denied, 550 P.3d 994
(Utah 2024).

¶35 Second, McDaniel argues that the district court erred in
denying his motion to exclude State Expert’s testimony. “The
correct standard of review for a trial court’s decision to admit or
exclude expert witness testimony is abuse of discretion.” State v.




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                          State v. McDaniel


Draper, 2024 UT App 152, ¶ 35, 560 P.3d 122 (quotation
simplified).

¶36 Third, McDaniel argues that Counsel was ineffective for
presenting McDaniel in jail clothes and then commenting on
McDaniel’s appearance in opening statement and closing
argument. As noted, “an ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.”
Cesspooch, 2024 UT App 15, ¶ 7 (quotation simplified).

¶37 Finally, McDaniel argues that he received ineffective
assistance when Counsel did not object to a jury instruction that
defined indecent liberties as including simulated sexual
intercourse. In the alternative, McDaniel argues that the district
court plainly erred in giving that instruction. These standards are
provided above. See supra ¶ 34.


                            ANALYSIS

                     I. Directed Verdict Issues

¶38 McDaniel argues that the district court erred in denying his
directed verdict motion at the close of the State’s case. McDaniel
also argues that Counsel provided ineffective assistance by not
renewing the directed verdict motion after the defense’s case, or,
alternatively, that the district court plainly erred by not sua sponte
granting a directed verdict at that point.

A.     Directed Verdict Motion at Close of the State’s Case

¶39 McDaniel argues that Kimberly’s “account was inherently
improbable.” Without that testimony, he then claims that the
court should have granted the directed verdict motion he filed at
the close of the State’s case. But we disagree with McDaniel’s
contention that the testimony was inherently improbable. As a
result, we see no error in the denial of his motion because there



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                         State v. McDaniel


was some evidence from which the jury could conclude that
McDaniel committed the charged offenses. 3

¶40 “In what’s sometimes referred to as a ‘Robbins claim,’ a
defendant asks the court to disregard a particular witness’s
testimony as ‘inherently improbable’ when determining whether
there is sufficient evidence for a conviction.” State v. Brown, 2025
UT App 31, ¶ 25 n.6, 566 P.3d 737 (quotation simplified); see also
State v. Robbins, 2009 UT 23, ¶¶ 16–19, 210 P.3d 288.

¶41 A Robbins claim involves “a two-step analysis.” State v. Jok,
2021 UT 35, ¶ 30, 493 P.3d 665. “First, the court determines
whether the challenged piece of evidence is of such a poor quality
that it should be disregarded as evidence,” id., and second, the
court undertakes a “sufficiency analysis, considering all evidence
that has not been excluded from consideration on grounds of
inherent improbability,” State v. Mayorga, 2024 UT App 182, ¶ 28,
561 P.3d 1184, cert. denied, 568 P.3d 261 (Utah 2025).

¶42 To convince us that Kimberly’s testimony should be
disregarded, McDaniel must show that her testimony was
“sufficiently inconclusive or inherently improbable such that
reasonable minds must have entertained a reasonable doubt that


3. The State contends that McDaniel’s inherent improbability
argument is unpreserved. In response, McDaniel argues that
while he did not use the phrase “inherently improbable” (or some
variant thereof) in his motion, that motion was in effect an
inherent improbability motion because he had made the same
substantive arguments, albeit without the extra verbiage. Because
the merits of this claim can be resolved in favor of the State, we
choose not to address the State’s preservation argument. See State
v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“[I]f the merits of a
claim can easily be resolved in favor of the party asserting that the
claim was not preserved, we readily may opt to do so without
addressing preservation.” (emphasis in original)).


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[McDaniel] committed the crime[s] for which he . . . was
convicted.” Jok, 2021 UT 35, ¶ 29 (quotation simplified). Our
supreme court has “identified three factors that merit
consideration” under an inherent improbability analysis:
“material inconsistencies, patent falsehoods, and lack of
corroborating evidence.” Id. ¶ 32. 4

¶43 McDaniel’s claim is largely focused on                   various
inconsistencies in Kimberly’s accounts. These include:

   •   During the CJC interview, Kimberly initially said that the
       abuse occurred when she and McDaniel had clothes on but
       she later claimed that McDaniel touched the inside of her
       vagina with his penis while his pants were off; at trial, she
       said that she was sometimes unclothed as well.

   •   During the CJC interview, Kimberly initially said that
       McDaniel had put his mouth on her vagina. But after a
       short break, she retracted that, saying, “He didn’t do the
       vagina thing. He didn’t . . . put his mouth on my—he—I
       put—he made me put his—he made me put my mouth on
       his. That’s what—the vagina thing didn’t really happen. I
       was probably just thinking about something else for a
       minute.”

   •   During the CJC interview, Kimberly said that she was only
       abused on one day; at trial, she testified to several instances
       of abuse that occurred on different occasions.



4. The State argues that McDaniel must formulaically show all
three of these factors. But our supreme court has clarified that this
is not “a strictly factored test,” and it has further warned “against
inflexible reliance on these factors.” State v. Jok, 2021 UT 35, ¶ 32,
493 P.3d 665. Instead, in the view of the court, these factors
“should be read as examples” of things that “merit consideration”
under an inherent improbability analysis.” Id.


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                         State v. McDaniel


   •   During the CJC interview, Kimberly said that she screamed
       profanities at McDaniel to get him to stop; at trial, she
       testified that she directed profanities at McDaniel when he
       wouldn’t let her play with her toys.

   •   During the CJC interview, Kimberly said that she disclosed
       the abuse after one of her brother’s friends got too close to
       her, which prompted Mother and her grandmother to ask
       if she had been abused; at trial, she said that she disclosed
       the abuse after her older cousin taught her what “rapist” or
       “pedophile” meant.

   •   Kimberly testified that she thought her family lived in the
       apartment for two or three years and that it had three
       bedrooms; Mother testified that they lived in the apartment
       for only four months and that it had just one bedroom.

Separate from these inconsistencies, McDaniel also points out that
Defense Expert testified that children could create false memories
based on source-monitoring errors. And he further points out that
Kimberly’s medical exam was “normal,” which, in his view,
meant that “there was no corroborating evidence.” From all this,
McDaniel claims that Kimberly’s testimony was so improbable
that it could not be relied on.

¶44 Even with these problems, however, the State offers several
reasons why Kimberly’s testimony did not rise to the level of
inherent improbability as that concept has been articulated in our
cases. We find three of them to be persuasive, particularly when
considered together as part of a holistic inherent improbability
analysis.

¶45 First, as indicated, the inherent improbability analysis
considers whether there were “material inconsistencies” in the
witness’s account. Id. (emphasis added). By contrast,
“inconsistencies with respect to peripheral issues or details will



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                        State v. McDaniel


generally not implicate the inherent improbability doctrine but
are matters for the jury to resolve in assessing the witness’s
credibility.” State v. Hernandez, 2024 UT App 127, ¶ 14, 557 P.3d
639 (quotation simplified), cert. denied, 561 P.3d 691 (Utah 2024);
see also State v. Broadwater, 2024 UT App 184, ¶¶ 44–45, 562 P.3d
739 (concluding that a witness’s testimony was not inherently
improbable where the inconsistencies in question involved
“tangential issues that had only indirect relevance to the issue at
hand” or “matter[s] of perception about which a person could
potentially simply be mistaken”), cert. denied, 564 P.3d 959 (Utah
2025).

¶46 Many of the inconsistencies that McDaniel identifies
concern peripheral issues or details. These include such things as
whether or when Kimberly screamed profanities at McDaniel,
what prompted her to disclose the abuse, how long her family
lived in the West Jordan apartment, and how many bedrooms that
apartment had. Again, the question before the jury was whether
McDaniel abused Kimberly. Because many of the inconsistencies
that McDaniel points to were tangential and were about the kinds
of things that a person could reasonably be mistaken about, we
conclude that they provide little (if any) support for McDaniel’s
assertion that Kimberly’s testimony as a whole was inherently
improbable.

¶47 Second, Mother corroborated certain aspects of Kimberly’s
account. At trial, Mother testified that McDaniel “stayed with
[them] on and off” for about three months between December
2013 and February 2014; that she would leave her children with
McDaniel “[a]t least four times a week” for “up to eight” hours so
that she and Father could “run around and collect money”; and
that on one occasion after Father had been arrested, Mother left
McDaniel alone with the children for “[a]lmost 48 hours” so that
she could collect money to post Father’s bail. As the State points
out, this testimony was important because it corroborated
Kimberly’s claims about when McDaniel had the “opportunity to



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                         State v. McDaniel


abuse” her. As we’ve previously acknowledged, “[c]orroborating
evidence sufficient to defeat a Robbins claim does not have to
corroborate the witness’s account across the board, in every
particular. It just has to provide a second source of evidence for at
least some of the details of the witness’s story.” State v. Skinner,
2020 UT App 3, ¶ 34, 457 P.3d 421.

¶48 Finally, the State points to the sensitivity with which Utah
courts view the testimonies of child victims. See, e.g., State v.
Virgin, 2006 UT 29, ¶ 38, 137 P.3d 787 (“We are sensitive to the fact
that child sexual abuse cases often rest solely on the testimony of
a young child. We also recognize that it is not unusual that a
child’s testimony be somewhat inconsistent, especially in sexual
abuse cases.”); State v. Klenz, 2018 UT App 201, ¶ 78, 437 P.3d 504
(“Given that it is not unusual for a child to testify somewhat
inconsistently, especially in sexual abuse cases, the
inconsistencies in [the victim’s] testimony could be explained by
her age and lack of sophistication.” (quotation simplified)). This
was true here, where Kimberly was twelve years old at the time
of trial and was testifying about events that allegedly occurred
when she was three or four.

¶49 To be sure, we recognize that there were some problems
with Kimberly’s testimony. Kimberly was inconsistent about
many things—some of them were peripheral, but some of them
were about the alleged abuse. And she was testifying about events
that allegedly occurred many years earlier and while she was very
young, which could give a jury some reason to view her testimony
with skepticism. We thus acknowledge that the jury could take
the various concerns identified by McDaniel into account when it
assessed the credibility of Kimberly’s testimony, and the defense
certainly could—and, indeed, did—ask the jury to disregard her
claims during its own arguments at trial. See, e.g., Jok, 2021 UT 35,
¶ 28 (noting the jury “serves as the exclusive judge of both the
credibility of witnesses and the weight to be given [to] particular
evidence” (quotation simplified)); State v. Prater, 2017 UT 13, ¶ 39,



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                         State v. McDaniel


392 P.3d 398 (“The question of which version of their stories was
more credible is the type of question we routinely require juries
to answer.”).

¶50 But the inherent improbability analysis asks a court to take
testimony away from the jury—i.e., to conclude that the testimony
in question was so improbable that the jury could not be allowed
to consider it. This is a high bar. As we’ve recently recognized, the
inherent improbability standard is not “satisfied where the
appellant raises garden-variety credibility questions, such as
which witness to believe, or which version of a witness’s
conflicting account to believe.” In re S.M., 2024 UT App 135, ¶ 33,
557 P.3d 649 (quotation simplified). In our view, the problems
identified by McDaniel did not satisfy this standard, because “we
can find nothing in the record that runs so counter to human
experience that it renders the testimony inappropriate for
consideration.” Id. (quotation simplified). The district court
therefore correctly concluded that the credibility issues relating to
Kimberly’s testimony could and should be submitted to the jury,
who was best positioned to decide whether she should be
believed.

¶51 In light of this conclusion, we see no error in the court’s
denial of the directed verdict motion that McDaniel filed at the
close of the State’s case. Again, the question before the court was
whether there was “some evidence . . . from which a reasonable
jury could find that the elements of the crime[s] had been proven.”
Brown, 2025 UT App 31, ¶ 15 (quotation simplified). At trial,
Kimberly testified that when McDaniel was changing her diapers,
McDaniel touched her “chest” and “vagina” while his hand
lingered for a “few minutes”; that he sometimes blew on and
licked her vagina; that McDaniel touched the “[i]nside” of her
vagina with “[h]is penis” on the couch while he laid on top of her
and moved “[u]p and down”; and that McDaniel “locked [her] in
the bathroom” and put “[h]is penis” in her mouth. McDaniel does
not argue that this testimony was insufficient to satisfy the



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                           State v. McDaniel


elements of the charged offenses. As a result, based on this
testimony, we conclude that the jury could find McDaniel guilty
of two counts of sodomy on a child and one count of aggravated
sexual abuse of a child. The district court therefore did not err in
denying McDaniel’s motion for a directed verdict at the close of
the State’s case.

B.     Renewed Directed Verdict Motion

¶52 After the district court denied McDaniel’s directed verdict
motion, the defense presented its own case. Of note, Defense
Expert testified about problems associated with childhood
memories, such as “infantile amnesia,” suggestibility, and
“source-monitoring errors.” In light of this additional testimony,
McDaniel argues that Counsel provided ineffective assistance by
not making a renewed motion for a directed verdict at the close of
the defense’s case; in the alternative, McDaniel argues that it was
plain error for the court to have not ordered a directed verdict sua
sponte. We disagree.

¶53 To prevail on an ineffective assistance claim, a defendant
“must establish both deficient performance and prejudice,” and
“to prevail on plain error review, a defendant must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful, i.e., absent the error, there
is a reasonable likelihood of a more favorable outcome for the
appellant.” State v. Cesspooch, 2024 UT App 15, ¶¶ 7, 20, 544 P.3d
1046 (quotation simplified), cert. denied, 550 P.3d 994 (Utah 2024).
As with the earlier motion, a renewed motion would only have
succeeded if, “when viewed in the light most favorable to the
State, no evidence existed from which a reasonable jury could find
beyond a reasonable doubt that the defendant committed the
crime.” Brown, 2025 UT App 31, ¶ 15 (emphasis in original,
quotation otherwise simplified).

¶54 As noted, Kimberly testified about multiple instances of
sexual abuse, and we’ve now concluded that this testimony was


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                        State v. McDaniel


properly before the jury. Although it’s true that Defense Expert
testified about certain problems associated with childhood
memories, Defense Expert never categorically said that
Kimberly’s memories were false. 5 Thus, even after Defense
Expert’s testimony, the jury could have still chosen to believe
Kimberly’s testimony.

¶55 Because of this, a renewed directed verdict motion would
have been futile and cannot support a claim of either ineffective
assistance or plain error. See State v. Perkins, 2024 UT App 101,
¶ 23, 554 P.3d 363 (“A futile motion necessarily fails both the
deficiency and prejudice prongs of the Strickland analysis because
it is not unreasonable for counsel to choose not to make a motion
that would not have been granted, and forgoing such a motion
does not prejudice the outcome.” (quotation simplified)); State v.
Salgado, 2018 UT App 139, ¶ 30 n.4, 427 P.3d 1228 (rejecting a
defendant’s argument that the district court plainly erred by not
revisiting a directed verdict motion sua sponte after the defense’s
evidence was presented, explaining that “[c]onsideration of the
conflicting evidence presented by the defense would not alter the
analysis, because weighing conflicting evidence and witnesses’
credibility is squarely within the province of the jury”). We
accordingly reject these claims.

                   II. State Expert’s Testimony

¶56 McDaniel next argues that the district court abused its
discretion in allowing State Expert to testify. McDaniel raises two
principal challenges: first, he claims that State Expert “was not
qualified to testify about the memory of child abuse victims,” and
second, he claims that State Expert’s testimony was not
sufficiently reliable.


5. Indeed, as we recently explained in State v. Francis, 2025 UT
App 104, ¶ 71, -- P.3d --, it would have been impermissible for
Defense Expert to have offered such testimony anyway.


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                         State v. McDaniel


A.     Qualifications

¶57 Under rule 702(a) of the Utah Rules of Evidence, “a witness
who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or
otherwise 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.” From both the plain language of
this rule and from the cases interpreting it, it is clear “that
witnesses can be qualified as experts not only on the basis of
formal educational training, but also on the basis of their own
personal or vocational experiences.” State v. Rothlisberger, 2004 UT
App 226, ¶ 24, 95 P.3d 1193, aff’d, 2006 UT 49, 147 P.3d 1176; see
also State v. Whitchurch, 2024 UT App 108, ¶ 42, 554 P.3d 1166 (“We
have routinely allowed persons to testify as experts based on the
totality of their qualifications and experience, and not on licensing
or formal standards alone.” (quotation simplified)), cert. denied,
564 P.3d 960 (Utah 2025).

¶58 In support of his motion below, McDaniel argued that State
Expert was not qualified to testify about “the behaviors of child
sex abuse victims” or about “childhood memories.” On appeal,
however, McDaniel concedes that State Expert had “expertise in
conducting interviews.” For good reason. As noted by the district
court, State Expert testified that he “has extensive knowledge of
current research and practice methods in the field of forensic
interviewing,” and State Expert also testified that he had
“conducted hundreds of interviews” of child sex abuse victims.

¶59 On appeal, McDaniel narrows his focus, arguing that State
Expert was not qualified to testify about “the workings of
childhood memories.” McDaniel points to an exchange during
State Expert’s direct examination, wherein he made a number of
statements about childhood memories. As emphasized by
McDaniel on appeal, these included statements that:




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                        State v. McDaniel


   •   “[w]ith younger children, their concept of time is not fully
       developed”;

   •   children sometimes have “script memory,” where they
       remember multiple or “similar” events as occurring in
       “kind of a collective”;

   •   children sometimes have “fragmented disclosure,”
       wherein they may “recall” information but “may not
       remember all of the specifics” or “salient details,” thus
       causing them to recall details in a “somewhat fragmented”
       form;

   •   children are susceptible to the phenomenon of
       “reminiscence,” under which they may “recall[] specific
       details on subsequent times that they’re asked about
       something that’s happened to them”; and

   •   a “lot of the research does say that childhood events that
       are negative are remembered very well.”

¶60 In McDaniel’s view, State Expert was not qualified to offer
this testimony about how children remember events. McDaniel
argues that State Expert’s admitted “expertise in conducting
interviews” did not qualify him to “provide[] scientific
explanations for how children’s memories work” or discuss issues
that, in McDaniel’s view, were grounded in child psychology. But
the State disagrees. In its view, State Expert’s experiences
interviewing child sex abuse victims and his resultant familiarity
with their common responses, coupled with his training and
review of the relevant literature, did qualify him to discuss how
children remember such events.

¶61 We need not (and do not) decide whether this testimony
went beyond State Expert’s qualifications. We instead conclude
that, even if the court should have excluded it, any such error was



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                        State v. McDaniel


harmless. See State v. Green, 2023 UT 10, ¶ 101, 532 P.3d 930 (“An
erroneous decision to admit or exclude evidence cannot result in
reversible error unless the error is harmful.” (quotation
simplified)). This is so for two reasons.

¶62 First, the statements at issue comprised just a small part of
State Expert’s testimony, and they were not emphasized in any
meaningful way by the State. State Expert’s testimony spans
about 40 pages of transcript, but his statements about memory
were all made within a span of just 3 pages. The bulk of State
Expert’s testimony concerned topics that he was certainly
qualified to talk about—primarily the nature of CJC interviews
and the common responses of child sex abuse victims within
them. Moreover, in the State’s closing, the prosecutor did not
dwell on State Expert’s testimony about childhood memories.
Much of that argument was focused on the testimony from the
various fact witnesses. And when the prosecutor discussed State
Expert’s testimony, it was largely about testimony relating to the
nature of child interviews. Although the prosecutor did make a
few references to State Expert’s testimony about memory, the
prosecutor did not dwell on or emphasize these statements, and
the few references made by the prosecutor discussed State
Expert’s testimony in conjunction with similar statements made
by Defense Expert.

¶63 This leads to our second point, which is that the defense
called an expert of its own—Defense Expert—and Defense Expert
agreed with many of the statements made by State Expert about
childhood memory. Defense Expert testified that “the
hippocampus” (or “temporal lobe”) is still “developing in
children” “until about age nine or ten,” which makes it “difficult”
for children to “form[] long-term memories.” Defense Expert
further explained that “from a neurological standpoint, . . . that
critical part of our brain, our hippocampus, which is the part that
remembers life stories, is still developing,” that “the other part
that is developing is language,” and that “language is really



 20230525-CA                    25              2025 UT App 120
                         State v. McDaniel


important because . . . our ability to store memories appear to be
no greater than our ability to understand and categorize our
experiences using the language that we’re hearing.” Turning to
concepts of reminiscence, Defense Expert agreed that “in child
forensic interviews, there’s research that says that if you re-
interview a child, . . . they’re probably going to report more
information” “because the child’s brain is trying to think more
about their experience,” but he added that the follow-up
interview should take place “right after the first interview” to
avoid the risk that the memory “get[s] contaminated.” And with
respect to trauma, Defense Expert testified, “I think this is
common knowledge, we remember traumatic events better than
routine events. I mean, that’s almost like a common sense.”

¶64 This testimony largely tracks statements made by State
Expert. Insofar as it does, we see no basis for concluding that
McDaniel was prejudiced by the similar statements that State
Expert had made earlier on these same points. See State v. Garcia,
2024 UT App 38, ¶ 39, 546 P.3d 990 (“[O]ur disinclination to find
prejudice when improperly admitted testimony is merely
cumulative of other properly admitted evidence is longstanding
. . . and, we believe, well founded.”), cert. denied, 550 P.3d 997
(Utah 2024).

¶65 We do recognize, however, that Defense Expert did not
agree with what State Expert said about fragmented disclosure.
When asked about this subject, Defense Expert testified that
there’s not “a whole lot of support” for the concept of
“fragmentation with memory” because “typically when people
have gaps in what they experienced, they fill it in with
information.” But in light of all of the other evidence presented at
trial, we don’t believe that State Expert’s statements about
fragmented disclosure were so pronounced that, without them,
there’s a reasonable probability the jury would have acquitted
McDaniel on any charge. Again, the jury heard Detective’s
interview of Kimberly at the CJC, it heard Kimberly testify at trial



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                         State v. McDaniel


about the abuse, it heard Mother testify about McDaniel’s
opportunity to abuse Kimberly, and it heard Defense Expert
testify about source-monitoring errors, and yet the jury still chose
to convict McDaniel. In view of the whole evidentiary picture, we
don’t believe that the few statements from State Expert about
fragmented disclosure meaningfully tipped the scales.

¶66 As a result, even if it were true that State Expert’s
testimony about childhood memories exceeded his qualifications,
McDaniel has not persuaded us that State Expert said anything
about childhood memories that prejudiced him. We therefore
decline to reverse on this basis. 6

B.     Reliability

¶67 McDaniel next argues that the “State failed to show that
[State Expert’s] methods were reliable.” We disagree.

¶68 Under rule 702(b) of the Utah Rules of Evidence, expert
testimony is admissible “only if there is a threshold showing that
the principles or methods that are underlying in the testimony

6. In his opening brief, McDaniel also argued that State Expert’s
“testimony on memory” violated rule 403 of the Utah Rules of
Evidence because it was “substantially more prejudicial than
probative.” We reject this argument for the same reason we’ve
rejected his similar argument about the lack of qualifications—
namely, a lack of prejudice.
       We do note that, in his motion below, McDaniel seems to
have raised a rule 403 objection to State Expert’s testimony more
broadly. But the rule 403 argument in McDaniel’s opening brief
was expressly focused on State Expert’s testimony about
“memory,” and McDaniel did not meaningfully develop a rule
403 argument relating to any other portion of State Expert’s
testimony. To the extent that McDaniel meant to make such a
challenge, we conclude that he has not carried his burden of
persuasion.


 20230525-CA                    27              2025 UT App 120
                         State v. McDaniel


(1) are reliable, (2) are based upon sufficient facts or data, and
(3) have been reliably applied to the facts.” This threshold
showing is “satisfied if the underlying principles or methods . . .
are generally accepted by the relevant expert community,” Utah
R. Evid. 702(c), and it “requires only a basic foundational showing
of indicia of reliability,” id. R. 702 original advisory committee’s
note. “Trial courts perform an important gatekeeping function by
screening out unreliable expert testimony and ensuring that only
reliable expert testimony will be presented to the jury. To that end,
trial courts are granted broad discretion in that role, and we will
reverse a trial court’s decision only when it exceeds the bounds of
reasonability.” Johnson v. Montoya, 2013 UT App 199, ¶ 8, 308 P.3d
566 (quotation simplified). In making this assessment, district
courts “must be careful not to displace the province of the
factfinder to weigh the evidence” because “vigorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”
Majors v. Owens, 2015 UT App 306, ¶ 13, 365 P.3d 165 (quotation
simplified).

¶69 As explained, the bulk of State Expert’s testimony was
about common behaviors of child sexual abuse victims in their
interviews. To the extent that McDaniel is challenging this
testimony, we again note that State Expert was testifying based
off his own professional experiences of having conducted several
hundred such interviews. And our courts have repeatedly held
that a properly qualified expert witness can offer experience-
based testimony. See, e.g., Taylor v. University of Utah, 2020 UT 21,
¶ 40, 466 P.3d 124 (explaining that there is “no special rule
regarding experience-based expert testimony”); State v. Bowdrey,
2024 UT App 113, ¶¶ 13, 27–28, 555 P.3d 367 (concluding that an
officer could draw from his “extensive experience” observing
drug transactions to testify, as an expert, about what was
“common” in certain kinds of drug transactions), cert. denied, 561
P.3d 688 (Utah 2024); State v. Shepherd, 2015 UT App 208, ¶¶ 30,



 20230525-CA                     28              2025 UT App 120
                         State v. McDaniel


33, 357 P.3d 598 (concluding that an expert could testify about
“how sound travels over water” based on his experience as an
officer in the Coast Guard and as a boating officer at Lake Powell);
State v. Turner, 2012 UT App 189, ¶¶ 21, 24, 283 P.3d 527
(concluding that a trooper could testify about Intoxilyzer results
based on “his experience maintaining Intoxilyzer machines for
three years, including calibration to ensure accurate results”). As
we explained in Shepherd, for example, because the expert there
was offering “experiential opinions,” he did not need to “identify
a particular methodology” but could instead testify based on his
professional “experiences” and offer “opinions” that were
“within the scope of his experience.” 2015 UT App 208, ¶¶ 34–35
(quotation simplified). Thus, to the extent that State Expert was
testifying based off his observations and experiences, he did not
need to identify a particular methodology, and the district court
acted within its discretion in concluding that the testimony could
go to the jury.

¶70 To the extent that McDaniel is also challenging the
reliability of State Expert’s testimony about concepts relating to
childhood memory, we reject this claim for the same reason we
rejected the similar argument about State Expert’s
qualifications—lack of prejudice. As discussed, many of the topics
from State Expert’s testimony about memory that McDaniel
points to as being problematic were also discussed by Defense
Expert. And while McDaniel has pointed to one area in which the
two experts disagreed—namely, fragmented disclosure—we do
not think that this testimony alone prejudiced McDaniel. We
accordingly see no basis for concluding that any reliability
problems associated with this testimony prejudiced McDaniel in
any meaningful way.

                          III. Jail Clothes

¶71 McDaniel next argues that Counsel was ineffective for
presenting him in jail clothes and then commenting on those



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                          State v. McDaniel


clothes during the opening statement and the closing argument.
In McDaniel’s view, this decision “invit[ed] unfair prejudice
based on [his] appearance.”

¶72 As noted, to prevail on an ineffective assistance claim,
McDaniel must show that Counsel’s performance was deficient
and that the deficient performance prejudiced the defense.
Cesspooch, 2024 UT App 15, ¶ 20. McDaniel “must establish both
prongs,” so “if either is lacking, the claim fails and this court need
not address the other.” State v. Ames, 2024 UT App 30, ¶ 17, 546
P.3d 356 (quotation simplified), cert. denied, 550 P.3d 993 (Utah
2024). To establish deficient performance, McDaniel must
“overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Strickland v. Washington, 466 U.S. 668, 689 (1984) (quotation
simplified). “The question of deficient performance is not whether
some strategy other than the one that counsel employed looks
superior given the actual results of trial. It is whether a reasonable,
competent lawyer could have chosen the strategy that was
employed in the real-time context of trial.” State v. Florreich, 2024
UT App 9, ¶ 27, 543 P.3d 795 (quotation simplified), cert. denied,
547 P.3d 828 (Utah 2024). “The focus of this inquiry is
reasonableness, and we judge the reasonableness of counsel’s
challenged conduct, viewed as of the time of counsel’s conduct.”
Ames, 2024 UT App 30, ¶ 18 (quotation simplified).

¶73 McDaniel’s argument relies heavily on Chess v. Smith, 617
P.2d 341 (Utah 1980). There, our supreme court recognized “[t]he
prejudicial effect that flows from a defendant’s appearing before
a jury in identifiable prison garb,” and the court accordingly held
that “a trial judge should on his [or her] own initiative inquire of
a defendant whether” the defendant wishes to waive the “right
not to appear in prison clothes so that the record affirmatively
shows an intelligent and conscious waiver by the defendant if the
defendant chooses to stand trial in prison clothes.” Id. at 344–45.




 20230525-CA                      30               2025 UT App 120
                           State v. McDaniel


¶74 McDaniel focuses heavily on Chess’s recognition of the
prejudice that can come from a defendant appearing before a jury
in jail clothes. But for purposes of McDaniel’s ineffective
assistance claim, we think it just as significant that Chess
recognized that a defendant can waive the right to not appear in
jail clothes in front of the jury. See id. at 345. And we also think it’s
significant that McDaniel is not challenging the validity of his
waiver but is instead only challenging Counsel’s decisions to
advise him to do so and then comment on it in front of the jury.
Against that backdrop, and in light of the whole record, we don’t
believe that McDaniel has carried his burden of showing that
Counsel’s approach was objectively unreasonable.

¶75 At the time that Counsel made these strategic decisions,
Counsel knew about the statements McDaniel had made to
Detective in his interview. As noted, McDaniel had admitted that
in 2014, he was “running around, . . . not working, being a bum,
[and] using meth,” that he was “pretty close” friends with Father
(who was a known drug dealer), and that he had used drugs with
Father. Counsel also knew that, during that same interview,
McDaniel denied ever abusing Kimberly and that he had
repeatedly stated, “I’m not that way.”

¶76 McDaniel hasn’t argued on appeal that there was any way
that the jury would not hear about Detective’s interview with
McDaniel. And from the record, it seems clear enough that
Counsel made a conscious choice to not hide from the interview
but to instead lean into it and try using it to McDaniel’s
advantage. This was evident in the way that Counsel presented
his opening statement and closing argument, where he used the
interview as something of a thematic anchor. In his opening
statement, Counsel noted that, in the interview, McDaniel had
admitted to having a drug problem and even being “a petty
criminal.” But Counsel then sought to draw a contrast with the
fact that, during this interview, McDaniel also emphatically
denied abusing Kimberly. Counsel thus argued that this showed



 20230525-CA                       31               2025 UT App 120
                         State v. McDaniel


that McDaniel was willing to take responsibility for his actions
and to own his mistakes, which Counsel suggested should
enhance the credibility of McDaniel’s denials.

¶77 Counsel returned to this theme in his closing argument.
There, he said,

       I want to talk a little bit about Mike McDaniel first.
       We could have dressed him up, put him in a suit.
       But that’s not Mr. McDaniel. You heard in his
       interview, Mr. McDaniel has had a long history of
       drug abuse, petty crime, and he talked with the
       police. But that’s who Mr. McDaniel is. He owns
       those facts. He owns what has been a hard life for
       him.

From these arguments, it’s clear that Counsel made a conscious
and deliberate choice to try using McDaniel’s interview—and,
indeed, even his criminal past—to the defense’s advantage.

¶78 In past cases, we’ve recognized that defense attorneys
sometimes have to make difficult choices about how to deal with
unfavorable evidence. See State v. Rivera, 2022 UT App 44, ¶ 38,
509 P.3d 257 (“The calculations of counsel in weighing the pros
and cons of one strategy over another are, in essence, a judgment
about what is most likely to work to the client’s benefit in a
complex trial process that requires that many choices be made.”
(quotation simplified)); State v. Garcia, 2017 UT App 200, ¶ 23, 407
P.3d 1061 (“After all, an attorney must play the hand he or she is
dealt, and an attorney’s decision about how to deal with adverse
facts is the sort of thing that courts should not second-guess in the
context of ineffective assistance claims.”). And we recognize that
the approach chosen by Counsel in this case was perhaps unusual
and unorthodox. As we’ve acknowledged in other cases, we think
it’s “perhaps true that not every attorney would have chosen this
strategy.” State v. King, 2024 UT App 151, ¶ 30, 559 P.3d 96.




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                          State v. McDaniel


¶79 But as recognized by the Supreme Court, there “are
countless ways to provide effective assistance,” and “even the
best criminal defense attorneys would not defend a particular
client in the same way.” Strickland, 466 U.S. at 689 (quotation
simplified). Under the Strickland standard, the question before us
is not whether this was, in hindsight, the best approach, but
instead “whether a reasonable, competent lawyer could have
chosen the strategy that was employed in the real-time context of
trial.” Florreich, 2024 UT App 9, ¶ 27 (quotation simplified). Under
that framework, we are not persuaded that the strategic approach
chosen by Counsel was so unreasonable that it constituted
deficient performance. McDaniel’s ineffective assistance claim
accordingly fails.

                 IV. Indecent Liberties Instruction

¶80 As noted, one of the charges was for aggravated sexual
abuse of a child. Under the version of the statute in effect at the
time of McDaniel’s conduct, a person was guilty of aggravated
sexual abuse if the person touched “the anus, buttocks, or
genitalia of any child, the breast of a female child,” or otherwise
took “indecent liberties with a child, or cause[d] a child to take
indecent liberties with the actor or another with intent to cause
substantial emotional or bodily pain to any person or with the
intent to arouse or gratify the sexual desire of any person
regardless of the sex of any participant.” Utah Code § 76-5-
404.1(2) (2014). At the time of McDaniel’s alleged conduct in 2014,
the phrase “indecent liberties” was not statutorily defined. But
Utah’s courts had interpreted that phrase as meaning “activities
of the same magnitude of gravity as that specifically described in
the statute,” i.e., “touching the vagina, anus, buttocks, or breasts.”
State v. Lewis, 2014 UT App 241, ¶ 11, 337 P.3d 1053 (quotation
simplified); accord In re J.L.S., 610 P.2d 1294, 1296 (Utah 1980); State
v. Balfour, 2008 UT App 410, ¶ 15, 198 P.3d 471.




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                         State v. McDaniel


¶81 The instruction that the court gave to the jury defined the
phrase in a slightly different way. Of note for this appeal, that
instruction included language about the touching of various body
parts, and it also included “simulating or pretending to engage in
sexual intercourse with a minor child, including genital-genital,
oral-genital, anal-genital, or oral-anal intercourse; or causing a
minor child to simulate or pretend to engage in sexual intercourse
with the actor or another, including genital-genital, oral-genital,
anal-genital, or oral-anal intercourse.” On appeal, the parties have
suggested—and we have no reason to dispute—that the court
drew the instruction from a 2018 statutory amendment that added
similar language to the definition of indecent liberties. See Utah
Code § 76-5-416(3) (2018). 7

¶82 On appeal, McDaniel argues that it was error to instruct the
jury “using a definition that was adopted after the dates charged
in the information.” In his view, the use of this definition
essentially amounted to an unconstitutional ex post facto law
because it “alter[ed] an element of the offense and lower[ed] the
State’s burden to convict.” And he argues that the inclusion of
simulated sexual intercourse was inconsistent with the law that
should have governed his case, arguing that a “jury could
reasonably find that simulated sexual intercourse . . . is not as
serious as touching a listed body part.” Although this claim is
unpreserved, McDaniel argues that Counsel provided ineffective
assistance for not objecting to the instruction on this basis, and he
likewise argues that the district court plainly erred by giving it.




7. Although the location of the indecent liberties definition has
changed in the most recent version of the Utah Code, it still
includes “simulating or pretending to engage in sexual
intercourse with another individual, including genital-genital,
oral-genital, anal-genital, or oral-anal intercourse.” Utah Code
§ 76-5-401.1(1)(a)(i)(C).


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                          State v. McDaniel


¶83 To establish either ineffective assistance or plain error,
McDaniel must show prejudice. See State v. Popp, 2019 UT App
173, ¶ 40, 453 P.3d 657 (explaining that “the prejudice test is the
same whether under the claim of ineffective assistance or plain
error” (quotation simplified)). This requires a showing that there
is “a reasonable probability that,” but for the error in question,
“the result of the trial would have been different.” Id. ¶ 58
(quotation simplified). And “a reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. ¶ 29 (quotation simplified). Here, we reject both of McDaniel’s
claims for lack of prejudice.

¶84 In cases that would have been controlling at the time of
McDaniel’s conduct, we had held that the question of whether a
defendant had taken “indecent liberties” with another “was not
simply a matter of whether he had touched an enumerated body
part of the victim,” State v. Peters, 796 P.2d 708, 711 (Utah Ct. App.
1990), but that a fact-finder could also consider “the totality of the
facts,” Balfour, 2008 UT App 410, ¶ 16. Here, it’s true that Kimberly
described something that could be interpreted as simulated
sexual intercourse. In the CJC interview, she told Detective that
McDaniel had gotten “on top of” her on the couch and had
“moved up and down” while both of their clothes were on. And
at trial, she again said that McDaniel had laid on top of her on the
couch and moved “[u]p and down.” It’s also true that, in closing
argument, the prosecutor argued that this act was the basis for the
aggravated sexual abuse charge. But even so, we reject McDaniel’s
claim for two reasons.

¶85 First, in her trial testimony about this act, Kimberly
testified that McDaniel touched the “[i]nside” of her vagina with
“[h]is penis” on the couch while he would lay on top of her and
move up and down. During this exchange at trial, the prosecutor
used the words “touch,” “penis,” and “vagina” in several
questions, and in each of her responses, Kimberly repeatedly
agreed that such “touching” had occurred. So although Kimberly



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                          State v. McDaniel


described what could be referred to as simulated sexual
intercourse, the simulated sexual intercourse that she testified
about involved skin-to-skin touching of her vagina and
McDaniel’s penis, which was of the “same magnitude of gravity
as that specifically described in the statute.” Lewis, 2014 UT App
241, ¶ 11 (quotation simplified). As a result, it would have
qualified as “indecent liberties” under the interpretation of that
phrase that governed at the time. Thus, to the extent that the jury
believed this testimony—a conclusion that seems consistent with
its ultimate verdict—that testimony would have supported the
finding that McDaniel had taken indecent liberties under the then-
applicable definition.

¶86 Second, it’s theoretically possible that the jury was instead
inclined to only credit Kimberly’s CJC account—where, as noted,
Kimberly said that their clothes were on. But even if that were so,
we still don’t see a reasonable probability that the outcome at trial
would have been different. In a case interpreting the prior
standard that pre-existed McDaniel’s charged conduct, we had
held that touching a specified body part over clothing could still
qualify as indecent liberties. See State v. Jacobs, 2006 UT App 356,
¶ 9, 144 P.3d 226. We explained that, “absent . . . direction” from
the legislature to the contrary, “the ordinary and accepted
meaning of touching probably includes contact that occurs over
clothing.” Id. ¶ 6. And we then held that for purposes of an
indecent liberties element, over-the-clothes touching could suffice
if, “considering all the surrounding circumstances,” the touching
seemed “comparable to the touching that is specifically
prohibited” and was thus akin to “sexual misconduct.” Id. ¶ 9
(quotation simplified); see also State v. Peters, 796 P.2d 708, 710–11
(Utah Ct. App. 1990). We reiterated that conclusion in another
case a few years later that interpreted the same language. See State
v. Carrell, 2018 UT App 21, ¶ 56, 414 P.3d 1030.

¶87 Here, Kimberly said in her CJC interview that in an
encounter that occurred while she was three years old, McDaniel



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                         State v. McDaniel


had gotten “on top of” her on the couch and had “moved up and
down.” She also said that in the same encounter, McDaniel put his
penis “in” her mouth. Even focusing on the movements on the
couch, a jury could conclude that this act involved over-the-
clothes touching of the relevant body parts and that it therefore
constituted indecent liberties. Moreover, even if the jury’s
conclusion wasn’t grounded that granularly in over-the-clothes
touching of the relevant body parts, we also think that the jury
could find that the act in question was still of the “same
magnitude of gravity” as touching the unclothed body parts.
Lewis, 2014 UT App 241, ¶ 11 (quotation simplified). After all, the
statute at the time did not include simulated sexual intercourse
under the rubric of indecent liberties, but McDaniel has not
pointed us to any controlling authority from that time that
prohibited the jury from finding that such an act qualified. And
the act that Kimberly described was not in any way benign.
Rather, it was an overtly sexual act of simulated sexual
intercourse with a three year old on a couch during an encounter
that also included oral sex.

¶88 Again, because this claim is unpreserved, McDaniel must
persuade us that there is a reasonable probability that, but for this
instructional error, the result at trial would have been different.
For the reasons set forth above, we’re not persuaded that there is
a reasonable probability that the jury would have reached a
different conclusion without the error in question. For these
reasons, we reject this claim for lack of prejudice. 8




8. Finally, McDaniel argues that the cumulative effect of the
alleged errors prejudiced him. “Under the cumulative error
doctrine, we apply the standard of review applicable to each
underlying claim of error and reverse only if the cumulative effect
of multiple errors undermines our confidence that a fair trial was
                                                    (continued…)


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                         State v. McDaniel


                         CONCLUSION

¶89 For the       foregoing reasons, we affirm McDaniel’s
convictions.




had.” State v. Johnson, 2016 UT App 223, ¶ 15, 387 P.3d 1048
(quotation simplified).
        Here, we’ve assumed without deciding that State Expert
should not have been allowed to testify about childhood memory
issues. But as noted, much of his testimony about those issues
overlapped with unchallenged testimony offered by Defense
Expert, and we don’t believe that the small part of State Expert’s
testimony that differed from Defense Expert’s testimony was
significant enough to tip the evidentiary scales in a meaningful
way. And while we’ve also assumed that the court erred by giving
an indecent liberties instruction that was not supported by the
then-controlling law, we see no basis for concluding that this error
prejudiced McDaniel, given that Kimberly’s accounts would have
supported a conviction under then-controlling law. Thus, even
considering these assumed errors together, our confidence in this
verdict is not undermined.


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