2025 UT App 26
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ADAM JAY MOORE,
Appellant.
Opinion
No. 20220410-CA
Filed February 27, 2025
Fourth District Court, Provo Department
The Honorable Thomas Low
No. 191402823
Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant, assisted by law students
Wyatt Allred, Anne Carmack, and Danna Radford 1
Derek E. Brown and Karen A. Klucznik,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Adam Jay Moore was convicted of several crimes
stemming from his physical and sexual abuse of the young
children of a close friend. Moore argues that, in several instances,
his trial counsel (Counsel) rendered ineffective assistance. He
argues that these failures, both taken separately and together,
merit a reversal of his convictions. We disagree and affirm.
1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
State v. Moore
BACKGROUND
¶2 Siblings Emma, Ivy, and Josh 2 (collectively, the children)
spent their early years living with their biological parents
(Biological Mother and Biological Father). The family lived for a
few years in a house in Orem, Utah (the Orem house), that
Biological Father’s mother (Grandmother) bought for them to
“rent-to-own.” They lived in this house with Biological Father’s
two brothers and their wives. There was also an extra bedroom
that they “rented out to friends.” In 2012 or 2013, the family left
the Orem house and lived in “several” other locations, including,
at one point, in an apartment from which Moore—a close friend
of Biological Father—was moving.
¶3 At some point in 2014, Biological Mother decided she
wanted “to get clean off of drugs” and left the family, planning to
enter a rehabilitation program. But before she entered the
program, she asked Biological Father to bring the children to the
hotel where she was staying for a visit. Biological Father did so,
but he also arrived with “drugs on him.” Biological Mother
“relapsed” that night, and the police were eventually called to the
hotel. They removed the children from their parents’ care and
placed them with Grandmother. The children stayed with
Grandmother for about a year, at which point they moved to live
with the couple who would shortly thereafter become their
adoptive parents. At the time of their adoption, Emma was nine
years old, Ivy was seven years old, and Josh was five years old.
¶4 About four years later, Emma, who suffered from
depression, had to be hospitalized after a suicide attempt. On the
last morning of her hospitalization, Emma called her adoptive
mother (Mother) and told her that “she remembered being raped”
when she was younger. She said that “she couldn’t see the face of
the person who had done it” but thought “it possibly could have
2. We use pseudonyms for the children involved.
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State v. Moore
been her uncle.” On the way home from the hospital later that
day, however, Emma told Mother that she remembered who
raped her and that his picture was in the children’s scrapbooks.
At home, Emma began looking through the scrapbooks to try to
locate the man’s picture. During this time, she told Mother that
she remembered her “food being drugged and feeling funny” and
that she remembered the man had touched her “down there,”
pointing toward her genital area. When she came to a picture of
Moore, Emma said, “It’s him.”
¶5 When Ivy and Josh came home from school, Mother spoke
with Ivy alone, showing her the picture of Moore and asking if
she knew who he was. Ivy said that she did; she revealed that he
“was mean” and that he had hurt the children and “touched down
there.” Mother then spoke with Josh separately, also showing him
the picture of Moore and asking him if he knew who it was in the
photograph. Josh “immediately . . . tensed up,” and he responded
that he did not know who the man was but that he felt like “he’s
a bad man.”
¶6 Mother reached out to Biological Mother, who identified
the man in the photo as Moore. Mother also contacted the
authorities, which led to Emma and Ivy being interviewed at the
Children’s Justice Center (the CJC).
¶7 During Emma’s interview, she stated that Moore had
abused the children “sexually and physically and emotionally,”
including by “put[ting] himself inside of [her] once.” She also
claimed that Moore would “put alcohol in [their] sippy cups [and]
drugs in [their] pancakes,” that he would “pick [them] up by
[their] throats and throw [them] across the room,” and that he
would “make [them] watch things [they] didn’t want to watch.”
Specific to the instance when she was being raped by Moore, she
stated, “[M]y dad came in and [Moore] just stopped, pulled up his
pants, and he just left me there.” As to the timing of the abuse,
Emma (then twelve years old) said that the abuse started when
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State v. Moore
she was “maybe two and a half” and “kind of stopped” when the
children went to live with Grandmother. And finally, at the close
of her interview, Emma twice asserted that Biological Mother had
told her that she herself was also raped by Moore.
¶8 Ivy’s interview revealed fewer details, but she made many
of the same general assertions regarding Moore’s behavior: that
he would grab the children “by the neck and [throw them] across
the room,” that he “poured alcohol in [their] sippy cups and put
alcohol in [their] pancakes,” and that he would “touch [them]
inappropriately.” Ivy stated that the abuse started when she was
“four or five.”
¶9 Additionally, both Emma and Ivy underwent physical
exams by a sexual assault nurse examiner (Nurse). As part of that
process, Nurse created an assessment form for each girl, which
included medical and behavioral information relayed by Mother,
as well as information from Mother and the girls regarding the
alleged abuse.
¶10 When contacted by police, Moore agreed to come in for an
interview with a detective (Detective). In that interview, Moore
explained his close relationship with Biological Father—that
“he’d known [Biological Father] for most of his life and they were
best friends.” Moore admitted to using drugs with Biological
Mother and Biological Father but said that they only did so “away
from the children” at night. Moore stated that he had a “good
relationship” with the children and that they referred to him as
“Uncle Adam.” Detective told Moore that the children had
alleged that Moore “had sexually, physically and emotionally
abused them,” and Moore said that “he didn’t know why they
would say something like that.”
¶11 The State ultimately charged Moore with one count of rape
of a child, five counts of aggravated sexual abuse of a child, three
counts of child abuse, two counts of child endangerment, and two
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State v. Moore
counts of dealing in materials harmful to a minor. Moore pleaded
not guilty, and the case proceeded to trial.
¶12 After the jury had been selected but before the State
presented its case, the court heard argument regarding the State’s
pending motion to admit evidence regarding “victim trauma and
behavior.” The State argued that it should be allowed to present
evidence regarding Emma’s and Ivy’s “change in behaviors or . . .
exhibitions of trauma” because such evidence was “probative of
the trauma and . . . emotional and psychological damage done in
acts of child abuse” and the change in behavior was “consistent
with abusive behaviors demonstrated by children.” In this
discussion, Counsel responded,
I don’t know that I’m even going to have an
objection to it, just an addition. There was an
assessment form that was done with the CJC where
it talks about other behavioral issue[s] that arguably
. . . could or couldn’t be indicative of trauma, and I’d
like that as well to come in, and then have the ability
to cross-examine [Biological Mother] as to the
baseline regarding . . . all of the issues that have just
been brought up.
When asked specifically what he was interested in using from the
CJC assessment, Counsel responded,
So the specific things, the State’s own social history,
[Emma] lives with her adoptive parents and
siblings, she’s participating in K through 12 online
homeschool due to violent issues in school.
[Mother] states [Emma] is manipulative, steals, and
runs away from school.
Additionally, on the form it talks about [how]
she has conduct disorder, PTSD, major depressive
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State v. Moore
disorder with hallucinations, anxiety, and ADHD.
Also, in the form it talks about sexual acting out . . . .
The State conceded that because it was “going to be opening the
door,” the defense had “a right to question” about those
“behavioral concerns,” and the court ultimately granted the
State’s “unopposed” motion.
¶13 Thereafter, during his opening statement, Counsel referred
to these behavioral concerns. After Counsel acknowledged that
this “is a tragic situation” and agreed Emma and Ivy “went
through sexual abuse,” he argued that there were, nonetheless,
many reasons to doubt their identification of Moore as the
perpetrator. As one reason, Counsel specifically referenced
Emma’s assertion that Moore had raped Biological Mother:
[Biological Mother] states—or never stated that she
was raped by [Moore], ever. She was interviewed on
it. She says that one night they were drinking, she
woke up naked with him in the bed but doesn’t
know if anything happened. You’re going to hear
[Emma], the oldest child, testify that [Biological
Mother] disclosed to her that she was raped by
[Moore]. So then you have to ask yourself, Is there a
motive here for the girls to point the finger at
[Moore] and blame some of the sexual abuse on
him?
Counsel asserted that Emma did not like Moore because she
believed he had raped Biological Mother, and Counsel suggested
that Ivy was influenced by those feelings because the girls “are
sisters and talk amongst each other.” Counsel also explained that
during the course of the investigation, there were “disclosures
made to the doctors and the interviewer” indicating that Emma
“is a liar,” “is a manipulator,” and “has hallucinations.”
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State v. Moore
¶14 Additionally, Counsel urged the jury to consider whether
the details of the children’s disclosures “make sense,” including
the assertion that “that they were with [Moore] for a week,” that
Moore “was so drugged out that he was just molesting them
nonstop and was feeding them drugs all the time,” that Biological
Father “would punch Moore and give him black eyes, but they
were best friends,” and that Biological Father walked in on Moore
raping Emma and “didn’t try and stop it.”
¶15 The State called Mother as its first witness. She related the
events surrounding Emma’s disclosure of abuse as set forth
above, including Emma’s initial allegation of rape, her search for
the photo of her abuser in the scrapbook, and Ivy’s and Josh’s
reactions to being shown Moore’s photo. Mother also testified
about some of the other things that Emma had said in the week
following her disclosure: “[S]he told me that [Moore] had said
that he would hurt her if she shared information about what had
happened . . . . [S]he told me that she remembered biting him
when he was trying to hurt her sister. She remembered being
locked in a closet. I believe she disclosed also pornography. . . .
That he would make them watch it.”
¶16 Mother also testified that sometime after the disclosure,
she and the children were on a video call with Biological Mother
and Emma wanted to “tell her about the abuse.” Thereafter
Biological Mother “made the comment that she had been raped
by [Moore],” although she offered no additional details.
¶17 Emma also testified as part of the State’s case. In addition
to testifying as to the sexual abuse, she stated that “[o]ne time”—
between her initial disclosure and her later interview at the CJC—
she had asked Biological Mother about Moore. She said that
because she “wanted to see if [she] was the only one,” she had
asked Biological Mother “if [Moore] ever raped her.” According
to Emma, Biological Mother revealed that she had been raped and
provided details of the event: “She said that they were hanging
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State v. Moore
out together and he drugged her and took her into a different
bedroom, took advantage of her . . . .” But Emma testified that
even after this disclosure, she “didn’t feel comfortable telling”
Biological Mother about her own abuse and chose not to say
anything about it. A video recording of Emma’s CJC interview
was also played for the jury.
¶18 Next, Biological Mother testified. She testified as to the
family’s living situation during the time frame of the alleged
abuse. She said that the living circumstances at that time were
“really hectic to say the least.” She said that there were six adults
living in the Orem house as well as whoever was staying in the
extra room that they rented out. She also stated that Moore would
“be at the home every day” and that he would “stay there” despite
having a place of his own. She explained that Biological Father
and Moore were very close, “like brothers,” and that Biological
Father would also take the children to Moore’s place “[m]aybe
every other day.” Biological Mother also asserted that there were
multiple individuals in the Orem house abusing drugs.
¶19 As to the “incident” between herself and Moore, Biological
Mother recounted that after she “lost [her] kids” and split up with
Biological Father, she “went over to [Moore’s] house one night
and got drunk and woke up not remembering what happened.”
She was “concern[ed]” because when she woke up, she was naked
and “covered with bruises,” and she suspected something had
happened to her. But she never reported anything about the
incident because she could not “clarify 100 percent one way or the
other” what had happened. However, Biological Mother denied
ever telling Emma about this evening: “I have never once talked
to my daughter about a conversation like that. She’s too young to
hear things like that.” And on cross-examination, Biological
Mother agreed that she “willingly drank with [Moore]” and
acknowledged that whatever happened that night “could have
been consensual” but she just could not remember.
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State v. Moore
¶20 Detective also testified about his investigation into the
abuse allegations. As part of his testimony, Detective confirmed
that, in her interview, Biological Mother “disclosed the incident”
with Moore but “she never indicated whether she was raped or
not.” It was only Emma who “had said that [Biological Mother]
was raped.”
¶21 Ivy also testified, recounting her version of events. And the
video of her CJC interview was played for the jury.
¶22 When it was her turn to testify, Grandmother gave further
details regarding the children’s living arrangements. Her
testimony included statements that the family lived “several
places” after moving out of the Orem house. She testified that one
of those places was Moore’s apartment: “I don’t know if they lived
with [Moore] but I know that they took over his apartment. . . .
That’s per my [son].” On cross-examination Counsel questioned
whether Moore had moved out when the family moved into his
apartment, to which Grandmother responded, “I can’t tell you if
he was living there or not. . . . No. Only that my son said
[Moore]—it was [Moore’s] apartment and . . . he was moving and
[Biological Father and Biological Mother] moved in.” Counsel
followed up on the timing, asking, “So you were told that [Moore]
was moving out and [Biological Father and Biological Mother]
were moving in[?]” And Grandmother responded, “Right.”
¶23 Nurse thereafter testified as to the physical examinations
she had conducted. During discussion of Emma’s and Ivy’s
examinations, the respective assessment forms were admitted
into evidence and projected on the screen for the jury to see. Nurse
walked through the components of each assessment form as she
explained her examinations. She also explained that the history
sections on the forms contained information collected from the
caregiver and the two girls. She stated that she “tried to refer them
back to the concerning incident” when collecting the history and
that this information helped to guide the medical examination:
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State v. Moore
“[Y]ou have to know why they’re there and what you are looking
for and why you’re doing that exam.”
¶24 On cross-examination, Counsel asked Nurse about the
several behavioral issues that were disclosed in Emma’s CJC
assessment form (as he had previously indicated he intended to
do), specifically, that Mother had disclosed that Emma “was lying
and stealing,” “was manipulative,” “had PTSD,” had “[m]ajor
depressive disorder,” suffered from “hallucinations,” and had
“some issues with self-gratification.” Nurse responded
affirmatively to each inquiry.
¶25 After Nurse’s testimony, the State and the defense rested,
the court instructed the jury, and the parties delivered closing
arguments. In his closing argument, Counsel highlighted portions
of Emma’s and Ivy’s testimony and argued that it was fantastical,
inconsistent, and incredible. He argued that although there was
“no doubt” that they had experienced abuse, “the evidence ha[d]
shown, an overwhelming amount, that there’s major, major issues
with what [Emma and Ivy were] saying.”
¶26 After deliberating, the jury convicted Moore on each count.
He was thereafter sentenced to various prison and jail terms.
Moore now appeals.
ISSUES AND STANDARD OF REVIEW
¶27 Moore raises several claims of ineffective assistance of
counsel that he argues merit reversal both individually and
cumulatively. “In determining a claim of ineffective assistance of
counsel raised for the first time on appeal, we must decide
whether the defendant was deprived of the effective assistance of
counsel as a matter of law.” State v. Aguirre-Juarez, 2014 UT App
212, ¶ 6,
335 P.3d 896 (quotation simplified), cert. denied,
341 P.3d
253 (Utah 2014).
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State v. Moore
ANALYSIS
¶28 To prevail on an ineffective assistance of counsel claim, a
defendant must show (1) “that counsel’s performance was
deficient” and (2) “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶29 As to the first prong of this test, a defendant must show
that trial counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”
Id. “Because of the temptation to second-guess trial
counsel’s decisions with the benefit of hindsight, judicial scrutiny
of counsel’s performance must be highly deferential and courts
must acknowledge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.”
Honie v. State,
2014 UT 19, ¶ 32,
342 P.3d 182 (quotation
simplified); see also Strickland,
466 U.S. at 689 (“There are countless
ways to provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a particular
client in the same way.”). “The defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Strickland,
466 U.S. at
689 (quotation simplified).
¶30 As to the second prong of the test, a defendant must show
“that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.”
Id. at 687. That is,
“[t]he 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.”
Id. at 694.
¶31 “Unless a defendant makes both showings, it cannot be
said that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.”
Id. at 687.
Thus, a defendant’s “failure to establish either prong of the test is
fatal to an ineffective assistance of counsel claim.” Honie,
2014 UT
19, ¶ 31.
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State v. Moore
I. Evidence of the Alleged Rape of Biological Mother
¶32 Moore’s first assertion of ineffective assistance concerns
the evidence that Biological Mother had been raped by Moore.
Both Mother and Emma testified at trial that they had heard
Biological Mother state that Moore had raped her; Emma repeated
that assertion in her CJC interview that was played to the jury;
and Detective testified that in his interviews, Emma said
Biological Mother had been raped, although Biological Mother
made no such assertion in her interview. Moore argues that this
evidence was “inadmissible and highly prejudicial” and that
Counsel rendered ineffective assistance in failing to raise
objections under a variety of legal theories: inappropriate “other
acts” evidence, see Utah R. Evid. 404(b); irrelevant evidence, see id.
R. 402; evidence that is more prejudicial than probative, see
id. R.
403; and improper hearsay evidence, see
id. R. 802.
¶33 But we agree with the State that Counsel did not perform
deficiently in failing to raise such objections because, from the
outset of trial, Moore made a reasonable strategic decision “to use
Emma’s mistaken belief that [Moore] raped Biological Mother to
show a motive to falsely accuse him.” “If it appears counsel’s
actions could have been intended to further a reasonable strategy,
a defendant has necessarily failed to show unreasonable
performance.” State v. Ray,
2020 UT 12, ¶ 34,
469 P.3d 871; see also
id. (“As a general matter, we presume that an attorney performed
in an objectively reasonable manner because his conduct might be
considered part of a sound strategy. Moreover, where it is shown
that a challenged action was, in fact, an adequately informed
strategic choice, we heighten our presumption of objective
reasonableness and presume that the attorney’s decision is nearly
unchallengeable.” (quotation simplified)). And it is clear from
Counsel’s opening statement that he intended to use this
information as a part of a defense strategy to attack Emma’s
credibility, establishing that Emma incorrectly believed Moore
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State v. Moore
had raped Biological Mother and suggesting that this belief could
explain why Emma chose to blame him for her own abuse.
¶34 Moore pushes back, arguing that such a trial strategy
would be unreasonable because of the timing of Emma’s
disclosure—Emma disclosed her abuse and identified Moore as
her abuser before she had talked with Biological Mother and heard
her allegations of rape. And Moore argues that because the timing
of Emma’s disclosure emerged during Mother’s testimony at the
outset of trial, Counsel continuing to pursue this defense strategy
became unreasonable and Counsel should therefore have objected
to any references to the alleged rape.3
¶35 But we do not see that the timing identified in Mother’s
testimony rendered unreasonable the continued pursuit of the
original defense strategy. Immediately before Mother’s
testimony, Counsel had delivered his opening statement telling
the jury that it would hear information about an alleged rape of
Biological Mother and suggesting that this information supported
the defense because Emma’s belief that the rape occurred
undercut her credibility. 4 Thus, Counsel could have reasonably
3. Moore additionally asserts that this strategy would not have
been reasonable because “Emma did not like Biological Mother.”
Although Emma’s testimony suggested some general negative
feelings toward Biological Mother, it is also true that in her CJC
interview, after specifically talking about Biological Mother being
raped, Emma stated, “She did not tell me to do this. She actually
told me not to, but I love her enough to where I—I feel like I need
to.” Thus, Counsel could reasonably argue that Emma’s love for
Biological Mother would have had an influence on her choices
and actions.
4. Moore does not argue that Counsel’s opening statements
regarding these rape allegations were unreasonable, just his
(continued…)
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State v. Moore
been concerned about what the jury would think if he shortly
thereafter began objecting every time the State tried to present this
very information.
¶36 Furthermore, the timing of the disclosure did not
completely destroy the utility of using the rape allegation to create
reasonable doubt. Although it is true that Counsel could no longer
argue that Emma initially identified Moore as her abuser to punish
him, Counsel could still argue that any doubt Emma may have
later had about singling out Moore would have been ignored once
she believed that he raped Biological Mother as well.
Additionally, Biological Mother’s testimony that she never
revealed this information to Emma conflicted with Emma’s own
testimony on the matter, raising further credibility questions.
¶37 We also reject Moore’s argument that Counsel’s strategy to
use the rape allegation as part of the defense was unreasonable
because the allegation “cast [him] as a sexual deviant.” Counsel
was careful to ensure, through his opening statement and through
his questioning of Biological Mother, that the jury understood that
Biological Mother had never stated she was raped by Moore and
that she admitted that their interaction may have been consensual.
¶38 In sum, Counsel’s decision to use evidence of Biological
Mother’s alleged rape was a reasonable trial strategy, and thus,
Moore has not shown deficient performance, and his ineffective
assistance claim fails.
II. Hearsay
¶39 Moore next asserts that Counsel rendered ineffective
assistance by failing to object to “inadmissible hearsay that
improperly bolstered the allegations against [him].” He points to
failure to abandon the original strategy on the matter after
realizing the timing issue that arose during Mother’s testimony.
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State v. Moore
specific testimony given by Mother and Grandmother. 5 We
address each in turn.
A. Mother
¶40 Moore specifically attacks the portions of Mother’s
testimony related to Emma’s initial statements regarding the
abuse. Mother explained in her testimony (1) that Emma initially
disclosed over the phone that “she remembered being raped” and
that it “possibly could have been her uncle”; (2) that later that
afternoon Emma said she could remember who raped her and
that the man was pictured in their scrapbooks; (3) that while
looking through the scrapbooks, Emma also related that she
remembered her “food being drugged and feeling funny” and
remembered that the man had touched her “down there”; and
(4) that Emma said, “It’s him,” when she came to the picture of
Moore. Mother additionally related that in the few days following
the initial disclosure, Emma also stated that Moore had
threatened to “hurt her if she shared information about what had
happened,” that “she remembered biting him when he was trying
to hurt her sister,” that “[s]he remembered being locked in a
closet,” and that Moore “would make them watch
[pornography].”
¶41 We do not agree that Counsel performed deficiently in
failing to lodge objections to these portions of Mother’s testimony.
As an initial matter, Counsel may have believed that the majority
of these statements were not hearsay at all because they were not
offered as proof that the assertions therein were true, but to
provide context for Mother’s testimony and explain why she had
been searching with Emma through the scrapbooks, why she
5. In his opening brief, Moore also advanced an argument
regarding hearsay in Emma’s testimony as well. However, he
withdrew this particular argument in his reply brief, and we
therefore do not analyze this claim.
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State v. Moore
reached out to Biological Mother to identify the man in the
photograph, and why she contacted the authorities. See generally
Utah R. Evid. 801(c) (providing that to be hearsay, a statement
must be one that “a party offers in evidence to prove the truth of
the matter asserted in the statement”).
¶42 As to the remaining statements, even if such statements
could be considered inadmissible hearsay, it does not necessarily
follow that Counsel performed deficiently in failing to object. “[I]t
is not correct to equate counsel’s submission to an error with
deficient performance. . . . We must view a decision to not object
in context and determine whether correcting the error was
sufficiently important under the circumstances that failure to do
so was objectively unreasonable—i.e., a battle that competent
counsel would have fought.” State v. Ray, 2020 UT 12, ¶ 32,
469
P.3d 871. Because Mother’s testimony was not particularly
detailed or lengthy, in contrast to the more detailed evidence that
would be provided later in Emma’s trial testimony and in the
video of her CJC interview, we cannot say Counsel’s decision to
forgo hearsay objections to Mother’s testimony at the beginning
of the trial was objectively unreasonable. Thus, this assertion of
ineffective assistance fails.
B. Grandmother
¶43 As to the claim regarding Grandmother’s testimony,
Moore identifies two problematic statements. First, he points to
Grandmother’s responses to questions regarding whether the
girls and their biological parents had ever lived with Moore: “I
don’t know if they lived with him but I know that they took over
his apartment. . . . That’s per my [son].” Second, Moore points to
Grandmother’s statement about the timing of the family moving
into Moore’s apartment. When asked if she knew whether Moore
was living in the apartment the family moved into, she
responded, “No. Only that my son said [Moore]—it was [Moore’s]
apartment and . . . he was moving and [Biological Father and
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State v. Moore
Biological Mother] moved in.” Moore argues that it was
unreasonable for Counsel to fail to object to these two hearsay
statements because a “key question” of the case was “whether
[Moore] had the opportunity to commit the alleged offenses” and
“the inadmissible hearsay supported that [Moore] did have the
opportunity.”
¶44 But we do not see that these statements made the jury more
likely to conclude that Moore had the opportunity to abuse the
children. First, these statements do not suggest that the children
moved into Moore’s apartment while he was still there; Counsel
verified during cross-examination that Grandmother had been
told “that [Moore] was moving out and [Biological Father and
Biological Mother] were moving in,” thus suggesting that these
two moves happened at the same time. Second, whether Moore
had the opportunity to commit the alleged offenses did not turn
on whether he had ever actually lived with Emma and Ivy.
Biological Mother testified that Biological Father and Moore were
“like brothers” and that when the children were living in the
Orem house, Moore would “be at the home every day” and would
“stay there” despite having a place of his own. She also testified
that Biological Father would take the children to Moore’s place
“[m]aybe every other day.” Thus, Moore had ample opportunity
to abuse the children when they were living at the Orem house—
an opportunity consistent with at least some of the abuse
timelines asserted by Emma and Ivy. Accordingly, Counsel’s
decision not to raise objections to Grandmother’s statements was
reasonable.
III. The CJC Assessment Forms
¶45 Moore argues that Counsel rendered ineffective assistance
by failing to object to the jury taking the CJC assessment forms
into the deliberation room. Moore points to rule 17 of the Utah
Rules of Criminal Procedure, which provides, “Upon retiring for
deliberation, the jury may take with them the instructions of the
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State v. Moore
court and all exhibits which have been received as evidence,
except exhibits that should not, in the opinion of the court, be in
the possession of the jury, such as exhibits of unusual size,
weapons or contraband.” Utah R. Crim. P. 17(k). And he primarily
bases his argument on the “testimonial” character of the
assessment forms, citing to prior case law specifying that “exhibits
which are testimonial in nature” are among those that “should not
be given to the jury during its deliberations,” State v. Eyre, 2019
UT App 162, ¶ 30,
452 P.3d 1197 (quoting State v. Cruz,
2016 UT
App 234, ¶ 35,
387 P.3d 618), rev’d on other grounds,
2021 UT 45,
500 P.3d 776; see also State v. Carter,
888 P.2d 629, 643 (Utah 1995),
superseded by rule as recognized in Wyatt v. State,
2021 UT 32,
493
P.3d 621. This argument is unavailing.
¶46 The very authority to which Moore cites regarding the
jury’s access to testimonial evidence itself recognizes that “Utah
law has only extended this principle to recorded or transcribed
testimony that substitutes a witness’s live testimony.” Eyre,
2019
UT App 162, ¶ 31. And our supreme court has recognized that
while “[t]he negative implication” of rule 17 is that items not
received as exhibits—such as “transcripts of deposition testimony
and of testimony given under oath at a prior proceeding”—
should not go back with the jury, “the language of the rule
unambiguously allows testimonial exhibits to go back with the
jury to deliberations.” Wyatt,
2021 UT 32, ¶ 19 & n.17. In sum, “the
plain language of rule 17(k) does not allow for any categorical
exceptions to exhibits going back with the jury” and “any
exception to the rule is left to the sound discretion of the district
court.” Id. ¶ 21.
¶47 Furthermore, this court has recently applied our supreme
court’s reasoning regarding rule 17 to specifically conclude that it
is “well within the trial court’s discretion to allow [the report of a
sexual assault nurse examiner] to go back with the jury” and that
“[a]n objectively reasonable attorney would know that and could
therefore reasonably decide not to object.” State v. Flores,
2024 UT
20220410-CA 18
2025 UT App 26
State v. Moore
App 195, ¶ 37. This court rejected the argument that such a report
“was effectively a transcript of [the victim’s] trial testimony”
because it “mimick[ed] [the victim’s] testimony at trial.” Id. ¶ 38
(quotation simplified). The court responded that the expert report
“was not a transcript” and that the victim’s statement contained
therein “was not deposition testimony, testimony given under
oath, or a statement made in a prior proceeding, and as such there
was no reason for [defense counsel] to object to [that exhibit]
accompanying the jury into its deliberations.” Id. (quotation
simplified).
¶48 The same is true here. The CJC assessment forms are not
transcripts, nor are the statements therein deposition testimony or
other testimony given under oath. And even if the assessment
forms are properly characterized as testimonial exhibits, this
alone would not have been a reason for Counsel to have objected
to them going back with the jury. See Wyatt, 2021 UT 32, ¶ 19.
Thus, Counsel did not perform deficiently by refraining from
objecting on this basis.
¶49 Moore additionally argues that Counsel should have
objected to the CJC assessment forms being sent back with the
jury because of the “undue emphasis” this gave to the allegations
of Emma and Ivy. 6 See id. ¶ 24 (“In considering whether to
prohibit an exhibit from going back with the jury, a district court
6. Moore initially frames this argument using the “unfair
prejudice” language of rule 403 of the Utah Rules of Evidence. See
Utah R. Evid. 403 (providing for the exclusion of evidence “if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice”). However, we question the applicability of this
rule regarding the admissibility of evidence to the issue of
whether the jury should have access to admissible evidence
during deliberations. Because Moore provides no further
explanation as to the applicability of rule 403 in the rule 17
context, we decline to engage in that analysis here.
20220410-CA 19
2025 UT App 26
State v. Moore
may consider whether the jury’s unfettered access to the exhibit
would lead to undue emphasis.”). But considering that those
allegations were repeatedly conveyed at trial—both directly by
Emma and Ivy as part of their trial testimony and also through the
viewing at trial of videos of their CJC interviews—we are
unconvinced that the summary recitation of those allegations in
the assessment forms would have resulted in an inappropriate
emphasis on those claims such that it was deficient performance
for Counsel to have failed to seek an exception under rule 17.
¶50 Moreover, and importantly, there was a legitimate
strategic reason for Counsel to not object and, instead, emphasize
the admissibility of the CJC assessment forms. See State v. Bedell,
2014 UT 1, ¶ 25,
322 P.3d 697 (determining that an “ineffective
assistance of counsel claim must fail” where “there was a
legitimate strategic decision” for defense counsel’s use of
evidence). This is because the assessment forms supported the
defense’s theory of the case—that although there was “no doubt”
the girls had been abused, the girls were lying about Moore being
the perpetrator. Emma’s CJC assessment form contained
documentation that Emma suffers hallucinations, has
“[b]ehavioral trouble due to stealing and lying,” and loses friends
“because she is manipulative and steals”—each of which Counsel
highlighted for the jury in his opening statement, his cross-examination of Nurse, and his closing argument. And the contrast
between the two assessment forms showed a much more lengthy
and detailed set of allegations by Emma and a much more limited
and vague set of allegations by Ivy, which could have supported
the defense’s theory that Ivy had no “actual memory” of the abuse
and was relying on what she had been told by Emma.
¶51 Moore argues that Emma’s CJC assessment form was
particularly problematic because it documented “severe
behavioral issues not mentioned at trial” and that the jury’s
“unfettered access” to these additional details “opened the
possibility” of the jury “erroneously attributing these behaviors to
20220410-CA 20
2025 UT App 26
State v. Moore
the alleged abuse.” But even if the jury attributed these behaviors
to abuse and, as a result, was more convinced that Emma had been
abused, there is no reason to believe that this information would
have made the jury more likely to believe that Moore was the
perpetrator. Thus, in such a scenario, Counsel could reasonably
believe that the jury’s exposure to these details (and increased
belief that abuse occurred) would not harm Moore’s case.
¶52 Finally, Moore points to Emma’s assertion relayed in her
CJC assessment form that sometimes the children would be left in
Moore’s care for a week at a time and that “[s]ometimes he kept
[them] from school,” and he argues that these “new allegations”
were “particularly troubling because Emma was not subject to
cross-examination on these statements.” But Moore offers no
explanation as to why Counsel would have been unable to ask
about either of these allegations when cross-examining Emma.
And, indeed, Counsel did question Emma about her assertion that
the children were left in Moore’s care for a week at a time. Thus,
this particular concern regarding an opportunity for cross-examination is unfounded.
¶53 In sum, where rule 17 does not generally preclude
testimonial evidence from being sent back with the jury and
where Counsel could have made the reasonable strategic decision
to allow the CJC assessment forms to go back with the jury
because he clearly considered many details therein as supportive
of the defense’s theory of the case, Counsel did not perform
deficiently by failing to raise an objection under rule 17. Thus, this
claim of ineffective assistance of counsel fails.
IV. Cumulative Error
¶54 Moore asks this court to consider the combined prejudicial
effect of the various asserted errors and to reverse his convictions
under the cumulative error doctrine. Under this doctrine, “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
20220410-CA 21 2025 UT App 26
State v. Moore
had.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 39,
428 P.3d 1038
(quotation simplified). But we have identified no deficient
performance on the part of Counsel, and therefore this doctrine is
inapplicable in this case.
CONCLUSION
¶55 Counsel did not perform deficiently when he chose to not
object to the testimony regarding an alleged rape of Biological
Mother, when he failed to object to certain statements in Mother’s
and Grandmother’s testimony, or when he chose to allow the CJC
assessment forms to go back with the jury. Thus, each of Moore’s
claims of ineffective assistance fail, and we affirm his convictions.
20220410-CA 22 2025 UT App 26