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STATE of Utah, Appellee, v. Chad Jacob ROBERTS, Appellant.

Court of Appeals of Utah2019-01-10No. No. 20170616-CA
438 P.3d 885

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Opinion

majority opinion

POHLMAN, Judge:

¶1 Chad Jacob Roberts appeals his conviction for aggravated sexual abuse of a child and also seeks a remand under rule 23B of the Utah Rules of Appellate Procedure. We affirm Robertss conviction and deny his motion for a rule 23B remand.

BACKGROUND

Sexual Abuse, Disclosure, and Investigation

¶2 Victim is the adoptive sister, and natural cousin, of Roberts. After their biological father relinquished his parental rights, Victim and her two older siblings (Sister and Brother) were adopted by Robertss mother (Mother). Roberts would frequently visit the house where Mother and Victim lived and would cuddle with Victim and Sister and read them books at bedtime. Often, Roberts would fall asleep with them in the bed.

¶3 Once, when Victim was about seven years old and Roberts was in his mid-twenties, Roberts lay in Victims bed and touched her vagina skin-to-skin. He cuddled up against [her] ... with his body pressed against [her] back and then put his hand down [her] underwear. Roberts patted Victims vagina a few times and then just rested [his hand] there before resuming patting. This pattern continued for about thirty minutes. Eventually, Victim got out of bed and went in the bathroom because she did not like what was happening. Thinking that Roberts had fallen asleep, Victim crawled back into her bed. Again, Roberts cuddled up against [her] and put his hand down [her] pants. He did not say anything to Victim, or try to kiss or digitally penetrate her.

¶4 Because she still loved and cared about Roberts and was happy living at Mothers house, Victim decided [she] was never going to tell anyone what had happened that night. Then, nearly ten years later, she disclosed the touching to Brother and his fiancée (Fiancée). Victim had moved out of Mothers house and was living with her father, who testified that, prior to the move, Victim was struggling and had received treatment for self-harming behaviors. While Victim was visiting Mothers house one day, she and Brother started drinking alcohol mixed with an energy drink. Brother and Fiancée mentioned to Victim that they planned on getting a place with Roberts. This made Victim fear that Roberts would abuse Fiancée. Victim then became very drunk, and Brother and Fiancée took her to the mall to walk it off. While there, Victim became hysterical, [fell] over in the parking lot, and repeated over and over that Roberts had raped her. Once she calmed down, Victim explained to Brother and Fiancée that Roberts used to come lay in bed with her and touch her at night, but she did not offer any more details.

¶5 After this disclosure and a report made by Brother, police interviewed Roberts. Roberts admitted that he would sleep in Victim and Sisters bunkbed and cuddle with them, but he denied ever touching Victim inappropriately. The police investigator asked whether on the night in question he could have touched Victims vagina accidentally, and Roberts responded, Possibly, but denied that it would have been for sexual gratification.

Trial

¶6 At trial, the defense called Mother, who testified that Roberts and Victim had a [l]oving, caring relationship. She also testified that, although Roberts would cuddle with Victim and Sister, their room was not far from hers and their doors were [a]lways open. On cross-examination, the prosecutor asked Mother whether she was ever interviewed by the Division of Child and Family Services (DCFS) about [her] being emotionally abusive to Victim. After Mother testified that she was aware of an accusation of emotional abuse but was not interviewed by DCFS, defense counsel objected to the line of questioning on relevance grounds. The trial court sustained the objection, and the prosecutor moved on to another topic.

¶7 Later, during closing argument, the prosecutor twice stated that Robertss penis was pressed up against Victims buttocks as he lay with her. The second time, after the prosecutor said that Roberts was spooning with his front pushed against [Victims] back with his penis around her buttocks, defense counsel objected. The trial court sustained the objection and explained to the jury that there was no evidence in the record of the relative positions of Roberts and Victim. The prosecutor then told the jury that it could use its common sense understanding to infer the relative positions of Roberts and Victim as they lay in the bed. Defense counsel did not renew the objection or ask the court to take any further action.

¶8 The defenses strategy at trial was to focus on Robertss lack of sexual intent rather than attack the credibility of Victim, who had testified emotionally about the abuse. Roberts, who testified at trial, admitted that he cuddled with Victim and Sister and that he told police that he may have touched Victims vagina accidentally, but he denied touching her with any sexual intent. In his closing argument, defense counsel stated that he did not think Victim was lying, and that the jury could believe both Victim and Roberts and still find Roberts not guilty. Counsel emphasized the isolated nature of the incident and argued that, because he did not have the specific intent to arouse or gratify somebodys sexual desire, Roberts was not guilty.

¶9 At the close of evidence, the State asked the trial court to expand [by one year] the time frame that was originally pled in the information. Without hearing much of an opposition to such an amendment, the trial court granted the request. After being given instructions, including an instruction that counsels statements and arguments are not evidence, the jury retired to deliberate. When it returned, the jury convicted Roberts of aggravated sexual abuse of a child. Roberts appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Roberts raises several issues on appeal that can be separated into three categories. First, Roberts contends that the prosecutor made improper statements during closing argument that warranted a mistrial or a limiting instruction. Defense counsel did not request these remedies at trial, and Roberts asks us to review this unpreserved issue under the doctrines of plain error and ineffective assistance of counsel. See State v. Johnson , 2017 UT 76, ¶ 19, 416 P.3d 443 (explaining that plain error and ineffective assistance of counsel are exceptions to the preservation requirement). A trial court plainly errs when it commits obvious, prejudicial error. See State v. Griffin , 2016 UT 33, ¶ 17, 384 P.3d 186. An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law. Id. ¶ 16 (quotation simplified).

¶11 Second, Roberts contends that the prosecutors inquiry of Mother about a DCFS investigation constituted prosecutorial misconduct and that defense counsel was constitutionally ineffective for not objecting sooner and moving to strike the testimony. This ineffective assistance claim again presents a question of law. Id.

¶12 Finally, Roberts raises a number of other ineffective assistance claims relating to defense counsels choices not to request a bill of particulars and not to attack Victims credibility, which he asserts require a remand under rule 23B of the Utah Rules of Appellate Procedure. A remand under rule 23B will only be granted upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective. State v. Calvert , 2017 UT App 212, ¶ 56, 407 P.3d 1098 (quotation simplified).

ANALYSIS

I. Prosecutors Comments During Closing Argument

¶13 Roberts first contends that the trial court committed plain error by failing to sua sponte order a mistrial or by failing to give a limiting instruction to the jury after the prosecutor twice remarked in closing that Robertss penis was pressed up against Victims buttocks. Alternatively, he contends that his defense counsel was constitutionally ineffective by failing to move for a mistrial or request[ ] a specific limiting instruction in response to those comments. We conclude, however, that a mistrial was not required here and that, even assuming a limiting instruction was required, the court adequately instructed the jury. We also conclude that Robertss defense counsel was not ineffective in not requesting a mistrial or a limiting instruction.

A. Plain Error

¶14 Not every misstep of counsel in closing amounts to plain error. State v. Hummel , 2017 UT 19, ¶ 110, 393 P.3d 314. We must ask first whether counsels missteps were so egregious that it would be plain error for the district court to decline to intervene sua sponte. Id. (emphasis omitted). And our supreme court has long recognized that prosecutors have considerable latitude in their closing arguments. State v. Dibello , 780 P.2d 1221, 1225 (Utah 1989). Specifically, [t]hey have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports, id. , and have the duty and right to argue the case based on the total picture shown by the evidence, State v. Houston , 2015 UT 40, ¶ 76, 353 P.3d 55 (quotation simplified). Thus, the court must be certain that a prosecutors statement is both highly prejudicial and obviously wrong before interrupting closing argument sua sponte. Hummel , 2017 UT 19, ¶ 119 n.35, 393 P.3d 314 ; see also State v. King , 2006 UT 3, ¶ 14, 131 P.3d 202 (observing that a trial court should not assume the role of advocate (quotation simplified) ).

¶15 Intervening by declaring a mistrial is a particularly drastic remedy that is warranted only when no reasonable alternatives exist. See West Valley City v. Patten , 1999 UT App 149, ¶ 12, 981 P.2d 420. Indeed, declaring mistrials sua sponte at the end of counsels statement to the jury must be indulged with a high degree of caution and circumspection. State v. Dennis , 14 Utah 2d 403, 385 P.2d 152, 153 (1963). The Utah Supreme Court has suggested that any duty to sua sponte declare a mistrial would arise only if the underlying error render[ed] the trial a farce and a mockery. Id. at 153 n.2 (quotation simplified).

¶16 Here, the prosecutor made two statements during closing argument describing Robertss penis as being pressed up against Victims buttocks. Although Victim did not testify to these specific facts, the jury heard evidence that Roberts had cuddled up against [Victim] and was lying behind her in her bed with his body pressed against the back of [her body] and pressed up against [her] when he wrapped his arm around her and touched her vagina. (Emphases added.) Given the wide discretion afforded attorneys in closing argument and the reasonable inferences that could be drawn from the evidence about Roberts pressing against Victim, the prosecutors statements were not so egregiously unreasonable that we can fault the trial court for not intervening and sua sponte declaring a mistrial. See Hummel , 2017 UT 19, ¶ 110, 393 P.3d 314 ; Dennis , 385 P.2d at 153 & n.2.

¶17 Roberts alternatively suggests that the trial court plainly erred by not providing a limiting instruction in response to the prosecutors closing argument. But after defense counsel objected to the prosecutors statements, the court sustained his objection and gave some instruction to the jury. The court explained to the jury that the objection to counsels argument was sustained because no evidence regarding the size of the child versus the size of the adult was ever ... proffered. Accordingly, the jury was specifically told there was no direct evidence on this point. The court also twice instructed the jury that counsels statements, including closing argument, are not evidence and that it must rely on the evidence regardless of any conflict with counsels statements. And on appeal, Roberts does not articulate why the courts instructions, taken as a whole, were inadequate. In light of the instructions that the trial court gave, and without some description of what more the court should have done, we are not persuaded that the court plainly erred in how it instructed the jury.

B. Ineffective Assistance of Counsel

¶18 Having concluded that the trial court did not plainly err, we address Robertss alternative contention that defense counsel was constitutionally ineffective when he failed to request a remedy, either moving for a mistrial or requesting a curative instruction in response to the prosecutors statements. Although Roberts requests a rule 23B remand on this claim, it is not necessary to remand when the existing record demonstrate[s] that counsels performance was not deficient. State v. Griffin , 2015 UT 18, ¶ 42, 441 P.3d 1166.

¶19 Proving deficient performance is a heavy burden. State v. Nelson , 2015 UT 62, ¶ 11, 355 P.3d 1031 (quotation simplified). To meet that burden, Roberts must overcome the strong presumption that his trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsels acts or omissions. Id. ¶ 10 (quotation simplified). In an analogous context, the Utah Supreme Court has recognized the prerogative of opposing counsel to swallow their tongue instead of making an objection that might have the risk of highlighting problematic evidence or even just annoying the jury. State v. Hummel , 2017 UT 19, ¶ 110 & n.34, 393 P.3d 314. Indeed, several cases have recognized that the decision not to object at all may be a legitimate strategic decision. State v.Bedell , 2014 UT 1, ¶¶ 24-25, 322 P.3d 697 ; see also State v. Houston , 2015 UT 40, ¶ 76, 353 P.3d 55 ; State v. Shepherd , 2015 UT App 208, ¶¶ 52-53, 357 P.3d 598.

¶20 We likewise conclude that defense counsels decision not to request a mistrial or a limiting instruction here was a legitimate strategic decision. Again, defense counsel did object, and the trial court sustained the objection and gave some correction to the jury, pointing out that there was no direct evidence of Robertss and Victims relative body positions. When the prosecutor then argued that his statements were a reasonable inference from the evidence, defense counsel may have been satisfied with the result because it highlighted the lack of direct evidence that Robertss penis was pressed against Victims buttocks. He also could have reasonably concluded that a mistrial would not be granted, given that the prosecutors statements were not a wholly unreasonable inference from the evidence. Or counsel may have simply wanted to reserve for himself the right to argue inferences from the evidence during his own closing argument without increasing the likelihood of the State objecting in return. See Shepherd , 2015 UT App 208, ¶ 53, 357 P.3d 598. Thus, we conclude that defense counsels performance was not constitutionally deficient, because there were conceivable tactical bases not to request a mistrial in this case. See Nelson , 2015 UT 62, ¶ 10, 355 P.3d 1031.

II. The Prosecutors Cross-examination of Mother

¶21 We next turn to Robertss contention that the prosecutors cross-examination of Mother about a DCFS investigation into allegations that she had been emotionally abusive to Victim was improper and requires reversal of his conviction. The Utah Supreme Court recently clarified that an unpreserved claim of prosecutorial misconduct is not a standalone basis for independent judicial review. State v. Hummel , 2017 UT 19, ¶ 111, 393 P.3d 314. Rather, unpreserved challenges of prosecutorial misconduct must be reviewed under established exceptions to the law of preservation, namely, plain error, exceptional circumstances, or ineffective assistance of counsel. Id. ¶¶ 102, 111.

¶22 Roberts has not asserted exceptional circumstances or plain error, but he has argued that his prosecutorial misconduct claim should be reviewed under the rubric of ineffective assistance of counsel. Specifically, Roberts contends that defense counsel was ineffective by failing to timely object to this line of questioning and for not requesting that the testimony be stricken.

¶23 To establish ineffective assistance of counsel, Roberts must show both that counsels performance was objectively deficient, and a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial. State v. Reid , 2018 UT App 146, ¶ 19, 427 P.3d 1261 (quotation simplified). In practice, we often skip the question of deficient performance when a defendant cannot show prejudice. See Strickland v. Washington , 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.); see, e.g. , Reid , 2018 UT App 146, ¶ 20, 427 P.3d 1261 ; State v. Goode , 2012 UT App 285, ¶ 7 & n.2, 288 P.3d 306. We follow that course here.

¶24 During cross-examination, the prosecutor asked Mother about a DCFS investigation into an allegation that she had emotionally abused Victim. Although defense counsel ultimately succeeded in terminating this line of questioning on relevance grounds, the jury heard Mother testify that she did not recall that her sister had accused her of emotionally abusing Victim and she denied that DCFS interviewed her about the allegation. Roberts contends that defense counsel performed deficiently by not objecting sooner or moving to strike the testimony. Without deciding whether defense counsel performed deficiently, Roberts has not shown that but for that testimony it is reasonably probable that he would have obtained a more favorable outcome at trial.

¶25 Roberts contends that as a result of defense counsels delayed action, the jury was able to hear inadmissible evidence prejudicial to [Mothers] credibility. But Roberts offers no further explanation of how the evidence prejudiced him. He states that [w]ithout the inadmissible evidence, there would be a likelihood of a more favorable verdict, but his analysis ends there. Roberts does not explain how the jury would have viewed this relatively brief exchange or, even assuming the testimony undermined Mothers credibility, why Mothers testimony was important to Robertss defense. Without more, Roberts has failed to show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Reid , 2018 UT App 146, ¶ 39, 427 P.3d 1261 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). Therefore, his ineffective assistance claim fails.

III. Ineffective Assistance of Counsel and Rule 23B Remand

¶26 Finally, Roberts raises a number of other ineffective assistance of counsel claims, separate from those addressed above, which he contends either require reversal of his conviction or a remand to develop the record. As explained above, the test for ineffective assistance of counsel is objectively unreasonable performance and accompanying prejudice. State v. Nelson , 2015 UT 62, ¶ 10, 355 P.3d 1031. If there are inadequate findings of fact, necessary for the appellate courts determination of a claim of ineffective assistance of counsel, a party may move for remand to the trial court for entry of those facts. Utah R. App. P. 23B(a). But a remand under rule 23B is available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective. Id. ; see also State v. Calvert , 2017 UT App 212, ¶ 56, 407 P.3d 1098. This is because it stands to reason that if the defendant could not meet the test for ineffective assistance of counsel, even if [the] new factual allegations were true, there is no reason to remand the case. State v. Griffin , 2015 UT 18, ¶ 20, 441 P.3d 1166. Roberts has failed to show that a rule 23B remand would help him support any of his claims of ineffective assistance of counsel.

A. Bill of Particulars

¶27 First, Roberts contends that defense counsel was ineffective by not filing a bill of particulars and a demand for specific date, time and place of commission of offense. He acknowledges that time is not necessarily an element of the offense, but he asserts that the State is required to provide as much evidence as it has. This is true, see State v. Robbins , 709 P.2d 771, 773 (Utah 1985), but there is nothing in the record to suggest that the State had information helpful to narrowing the time frame that it did not provide. Thus, defense counsel was not ineffective by not asking for a bill of particulars. See State v. Johnson , 2015 UT App 312, ¶ 16, 365 P.3d 730 (noting the failure to file a futile motion is not ineffective assistance of counsel).

B. Decision Not to Challenge Victims Credibility

¶28 Second, Roberts contends that defense counsel may have been ineffective for not challenging Victims credibility at trial and seeks a remand to be able to determine whether or not counsel had some strategy in abandoning the credibility issue. Specifically, Roberts raises the following related arguments:

• Defense counsel should have obtained Victims medical records;

• Defense counsel should have investigated whether Victim suffered from reactive attachment disorder (RAD);

• Defense counsel should have called Sister as a witness to undermine Victims account of sexual abuse;

• Defense counsel should have challenged Victims credibility through the testimony of Brother and Fiancée; and

• Defense counsel should not have vouched for Victim in his closing argument by saying that he did not believe Victim was lying.

To support his arguments, Roberts includes an affidavit from a private investigator detailing that Sister never saw or experienced any inappropriate behavior herself and that Brother and Fiancée stated to the investigator that Victim is untruthful. Because these arguments all relate to defense counsels decision not to attack Victims credibility, we analyze them together and conclude that this claim does not require remand.

¶29 Ever since the Supreme Courts decision in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),[j]udicial scrutiny of counsels performance [has been] highly deferential. Id. at 689, 104 S.Ct. 2052. Given the strong presumption of competence, we need not come to a conclusion that counsel, in fact, had a specific strategy in mind. State v. Isom , 2015 UT App 160, ¶ 37, 354 P.3d 791 (quotation simplified). Instead we need only articulate some plausible strategic explanation for counsels behavior. Id. (quotation simplified). Only when no reasonable attorney would pursue the chosen strategy will we determine that counsel has been constitutionally ineffective. See State v. Ramos , 2018 UT App 161, ¶ 36, 428 P.3d 334, petition for cert. filed , Oct. 3, 2018 (No. 20180791); see also State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (noting courts will not question tactical decisions unless there is no reasonable basis supporting them (quotation simplified) ).

¶30 Here, defense counsel reasonably chose not to attack Victims credibility, focusing instead on Robertss lack of sexual intent. The record reflects that, at least at one point, defense counsel considered the strategy Roberts advocates on appeal. For example, he intended to have Mother testify to Victims character for truthfulness and introduce evidence that Victim received counseling and therapy for self-harming behavior. In addition, Mother informed defense counsel of her belief that Victim suffered from RAD. At trial, however, defense counsel abandoned this strategy. After Victims apparently emotional testimony, during which Victim stated that she still loved Roberts and that it was hard for her to testify at trial, it was not unreasonable for defense counsel to decide that he did not want to attack Victims credibility and appear unsympathetic to the jury.

¶31 We also note that this strategy was particularly reasonable here. Roberts testified at trial and had already admitted to police officers that he would often cuddle with Victim and would fall asleep in her bed. And although not a confession, he conceded it was possible that the touching Victim described could have happened accidentally. With these facts, defense counsel could reasonably decide to focus on Robertss intent, without challenging the details of Victims story or appearing to attack a vulnerable witness. Some may question whether this was the best strategy. But 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. Nelson , 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation simplified). Without persuading us that defense counsels chosen strategy was unreasonable, Roberts cannot establish that remand in this case is necessary. See State v. Griffin , 2015 UT 18, ¶ 42, 441 P.3d 1166 ; State v. Garrett , 849 P.2d 578, 581-82 (Utah Ct. App. 1993). We therefore deny his rule 23B motion.

CONCLUSION

¶32 The trial court did not plainly err when it did not sua sponte order a mistrial or give a limiting instruction in response to the prosecutors closing argument; neither was Robertss defense counsel constitutionally ineffective for not requesting that relief. We reject Robertss other prosecutorial misconduct claim arising from the prosecutors cross-examination of Mother because he did not assert it under the rubric of plain error and has not established ineffective assistance of counsel. Finally, Robertss other claims of ineffective assistance do not demonstrate deficient performance, and his request for a rule 23B remand fails to acknowledge defense counsels chosen strategy, which we conclude was reasonable. We therefore affirm Robertss conviction and deny his rule 23B motion for remand.

We recite the facts from the record in the light most favorable to the jurys verdict. State v. Kohl , 2000 UT 35, ¶ 2 n.1, 999 P.2d 7.

A court had already terminated the parental rights of the childrens biological mother.

Roberts first asserts that he preserved this issue by objecting to the prosecutors closing argument. But he then proceeds to argue the issue under the rubrics of plain error and ineffective assistance of counsel. Although defense counsel objected to the prosecutors statements at trial, he did not ask for either of the remedies to which Roberts claims he was entitled-a mistrial or a limiting instruction. Because Roberts did not seek these remedies below, he failed to preserve his arguments that he was entitled to such relief. See State v. Hummel , 2017 UT 19, ¶ 120, 393 P.3d 314 ; State v. Chavez-Espinoza , 2008 UT App 191, ¶ 25, 186 P.3d 1023.

Although Roberts objected at trial to the prosecutors cross-examination, he allowed some questioning before objecting on relevance grounds and did not ask for a limiting instruction.

In support of his argument, Roberts compares the prosecutors comments to statements made during closing argument in State v. Akok , 2015 UT App 89, 348 P.3d 377, and State v. King , 2010 UT App 396, 248 P.3d 984. Even assuming that the statements made in Akok and King are comparable to those made by the prosecutor in this case, both cases are procedurally inapposite. Akok dealt with a preserved claim of prosecutorial misconduct; defense counsel there moved for a mistrial. 2015 UT App 89, ¶ 8, 348 P.3d 377. And in King , we stated that it was not clear that the error would have been obvious to the trial court but merely assumed it was for the purpose of resolving the issue based on lack of prejudice. 2010 UT App 396, ¶¶ 28-29, 248 P.3d 984. Thus, neither case helps Roberts establish that the trial court here plainly erred.

It was initially unclear whether Roberts asserted plain error or was relying on the now-defunct standalone basis for direct review of the actions of prosecutors. Hummel , 2017 UT 19, ¶ 106, 393 P.3d 314 (quotation simplified); see also id. ¶ 111 (repudiating authority recognizing prosecutorial misconduct as a standalone basis for independent judicial review). After the State responded by analyzing the claim for plain error, Roberts removed all doubt by clarifying that he did not claim that the trial court committed plain error but that the prosecutors reference to [the] DCFS investigation constituted prosecutorial abuse justifying reversal of the conviction. Because Roberts has not asked for plain error review of this prosecutorial misconduct claim, and has not analyzed the issue under that standard, we will not review it for plain error. See, e.g. , Chavez-Espinoza , 2008 UT App 191, ¶ 25, 186 P.3d 1023 (refusing to address plain error where the defendant did not assert or adequately brief it).

Based on both the prosecutors closing argument and the cross-examination of Mother, Roberts asserts that his claims for prosecutorial misconduct should be reviewed under the cumulative error doctrine. Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence that a fair trial was had.State v. McNeil , 2013 UT App 134, ¶ 70, 302 P.3d 844 (quotation simplified), affd , 2016 UT 3, 365 P.3d 699. By its nature, this doctrine has no application where only one error occurred. State v. Cruz , 2016 UT App 234, ¶ 78, 387 P.3d 618 ; accord State v. Beverly , 2018 UT 60, ¶¶ 80-81, 435 P.3d 160. Here, we see no error relating to the prosecutors statements during closing argument and assume only one error relating to the prosecutors cross-examination of Mother. Thus, we have no errors to accumulate.

Relatedly, Roberts contends in the introduction of his opening brief that the trial court erred in improvidently granting the States oral motion to amend the Information by extending the alleged time of commission of the offense by an additional year. But this contention is never mentioned again. We therefore conclude that, to the extent Roberts intended to raise the issue, the issue is inadequately briefed, and we decline to address it further. See, e.g. , State v. MacNeill , 2017 UT App 48, ¶ 84, 397 P.3d 626 (concluding that an appellant failed to carry his burden of persuasion by failing to adequately brief an issue).

Although Roberts generally requests a rule 23B remand on his ineffective assistance of counsel claims, he does not specifically request a remand on this issue. Similarly, he does not allege facts that would support a claim that the State withheld available information that would have fixed the event in time with more specificity. See Utah R. App. P. 23B.

Defense counsel deferred his opening statement until after the State presented all of its evidence, including Victims testimony. This decision suggests that counsel might have wanted to see the jurys reactions to Victim before he settled on his plan to attack her credibility.