                 This opinion is subject to revision before final
                         publication in the Pacific Reporter

                                 2017 UT 63

                                    IN THE

      SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                 Appellee,
                                       v.
                             JOSHUA MARTIN,
                                Appellant.

                             No. 20150860
                        Filed September 7, 2017

                            On Direct Appeal

                      Fourth District, Provo
                  The Honorable Fred D. Howard
                         No. 121403218

                                 Attorneys:
        Sean D. Reyes, Att’y Gen., Christopher D. Ballard,
           Asst. Solic. Gen., Salt Lake City, for appellee
 Margaret P. Lindsay, Dustin M. Parmley, Douglas J. Thompson,
                      Provo, for appellant

  JUSTICE HIMONAS authored the opinion of the Court, in which
      CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE DURHAM, and JUSTICE PEARCE joined.


   JUSTICE HIMONAS, opinion of the Court:
                           INTRODUCTION
   ¶ 1 After a jury trial, Joshua Martin was convicted of four
counts of aggravated sexual abuse of a child and sentenced to a
composite term of thirty years to life in prison (fifteen years to life
on each count, with one count running consecutive to the other
three).
                            STATE v. MARTIN
                        Opinion of the Court

   ¶ 2 On appeal, Mr. Martin argues that the district court
committed three sets of errors. First, he argues that the district
court made a variety of errors in admitting expert testimony by a
forensic interviewer at the Children’s Justice Center. To the extent
these arguments are preserved, we conclude that they lack merit.
    ¶ 3 Second, Mr. Martin argues that the district court abused
its discretion, and violated his constitutional right to present a
complete defense, when it excluded evidence of a witness’s
supposed prior false accusations of sexual misconduct. Although
the district court’s order excluding this evidence recited a factor
from State v. Shickles, 760 P.2d 291 (Utah 1988), which we have
since repudiated, it is apparent from the record that the district
court did not rely on this disapproved factor, and we otherwise
find no abuse of discretion.
    ¶ 4 Third, Mr. Martin challenges his sentence, arguing that
the district court failed to properly apply LeBeau v. State, 2014
UT 39, 337 P.3d 254, in its interests-of-justice analysis, and that it
abused its discretion in weighing the aggravating and mitigating
factors in his case. To the extent that Mr. Martin identifies a
potential legal error in the court’s interests-of-justice analysis, this
issue is waived because Mr. Martin did not object before the
district court, and he does not argue on appeal that the district
court committed plain error. We otherwise find no abuse of
discretion in the district court’s sentencing decision.
   ¶ 5 We       therefore    affirm       Mr.   Martin’s   sentence   and
conviction.
                            BACKGROUND
   ¶ 6 The State tried Mr. Martin on four counts of aggravated
sexual abuse of a child, a first-degree felony, for sexually abusing
his sisters-in-law A.L. and N.L. while occupying “a position of
special trust in relation to” them. UTAH CODE § 76-5-404.1(4)(h).
    ¶ 7 At trial, A.L. testified that Mr. Martin had touched her
vagina on four different occasions while he was supervising her;
N.L. testified that he touched her vagina twice—once under her
underwear and once over it—while she was driving with him
during a family road trip to New Mexico. The State also elicited
testimony from Mr. Martin’s First Sergeant in the Air Force, who
testified that, after learning of N.L.’s and A.L.’s allegations,


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Mr. Martin approached him and stated that “he had been thinking
about seeking mental health assistance for a while . . . because he
had thoughts about” one of the victims.
   ¶ 8 Mr. Martin’s defense strategy at trial was to undermine
the credibility of A.L. and N.L. in two ways: (1) by highlighting
inconsistencies in their disclosures and testimony about his sexual
abuse and (2) by developing evidence that the children had been
coached into falsely accusing him of sexual misconduct by their
adoptive mother (Mr. Martin’s mother-in-law), Stephanie.1
    ¶ 9 In connection with the first prong of his defense strategy,
Mr. Martin highlighted several inconsistencies in the victims’
disclosures and testimony. For example, Mr. Martin noted that
A.L. gave inconsistent testimony about the order in which the
incidents of sexual abuse occurred. He also noted that the victims
gave inconsistent descriptions of the circumstances of their abuse.
Among other things, he pointed out that A.L. testified that she
remembered a detail of one incident of sexual abuse—that she and
Mr. Martin were watching a Western movie when Mr. Martin
touched her—when she previously stated that she did not know
what movie they were watching. Similarly, he highlighted that
N.L. had initially disclosed that Mr. Martin had inappropriately
touched her only once when they were on a road trip to New
Mexico, but that she later disclosed more than one inappropriate
touching.
    ¶ 10 In order to explain the inconsistencies in the victims’
disclosures, the prosecution designated as experts two forensic
interviewers from the Children’s Justice Center: Chelsea Smith
and Tracy Seegmiller. Over defense counsel’s objection, the
district court ruled that Ms. Smith was qualified as an expert on
why child victims of sexual abuse often make incomplete initial
disclosures and disclose additional details and facts pertaining to
their sexual abuse over time. The court also allowed Ms. Smith to
“testify regarding common behaviors, in addition to the arena of

   1 Stephanie is the natural mother of Mr. Martin’s wife, Anna.
She is also the adoptive mother of the victims in this case, Anna’s
adopted sisters, A.L. and N.L. Throughout this opinion and in
order to shield the identity of the victims, we refer to Stephanie
only by her given name.


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disclosures, of children who have been abused.” The court ruled
that Ms. Smith was qualified “by virtue of her experience of
conducting more than 1,800 interviews, and also through her
experience as a therapist, through her on-the-job training and
continuing education, and through her education during her
master’s and bachelor’s degrees.” Because the court concluded
that Ms. Seegmiller’s testimony would be cumulative of
Ms. Smith’s, however, it excluded her.
    ¶ 11 In addition to identifying inconsistencies in A.L.’s and
N.L.’s testimony, Mr. Martin sought to develop evidence that A.L.
and N.L. had been manipulated into falsely accusing him of
sexual misconduct by their mother, Stephanie. In particular,
Mr. Martin introduced opinion and reputation testimony
regarding Stephanie’s character for truthfulness, and he sought to
introduce evidence that Stephanie had induced some of her other
children to make false accusations of sexual misconduct in the
past and evidence that Stephanie had, herself, falsely accused
others of sexual misconduct. The State, for its part, sought to
exclude this evidence under rules 404(b) and 403 of the Utah
Rules of Evidence.
    ¶ 12 In a written evidentiary ruling filed on February 13,
2015, the district court permitted testimony that Stephanie had
previously manipulated other of her children into levying false
accusations of sexual misconduct, but it excluded the evidence
that Stephanie had falsely accused others of sexual misconduct. It
ruled that these alleged false accusations—which included a false
claim that she and an in-law had had an affair and that another
family member had made an unwanted sexual advance on her—
were offered only to attack Stephanie’s character. It also ruled that
they were “in no way connected to this case” and would “only
serve to confuse the issues, mislead the jury, and waste time.”
    ¶ 13 Early on in its ruling, the court recited the factors from
State v. Shickles for deciding whether evidence should be excluded
under rule 403 of the Utah Rules of Evidence, including “the
degree to which the evidence probably will rouse the jury to
overmastering hostility.” 760 P.2d 291, 295–96 (Utah 1988). But it
did not rely on this factor in excluding evidence of Stephanie’s
prior false accusations.



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   ¶ 14 After hearing the evidence, the jury convicted
Mr. Martin. At the sentencing hearing, the prosecutor asked the
court to sentence Mr. Martin to fifteen years to life on each of the
four counts of conviction, with one count to run consecutive to the
others, for a composite sentence of thirty years to life. The
prosecutor argued that this sentence was proportionate to the
presumptive sentence for two similar offenses: sodomy of a child
and rape of a child. The prosecutor also argued that Mr. Martin
deserved this sentence because he had perpetrated multiple acts
of abuse on more than one victim. The prosecutor emphasized
that, instead of taking responsibility for his criminal conduct,
Mr. Martin had used his sentencing hearing as an additional
opportunity to attack the honesty of the victims’ family. And the
prosecutor pointed out that Mr. Martin had been able to maintain
the confidence of many members of his community—some of
whom stated, even after he was convicted, that they would trust
him with their children—which underscored the risk he posed to
community safety.
    ¶ 15 After the State rested, Mr. Martin was given the
opportunity to respond. Mr. Martin asked for a sentence of six
years to life. Because he had been convicted of aggravated sexual
abuse of a child based on the position of special trust that he
occupied, Mr. Martin urged the court not to “double count” that
factor in settling on its sentence.
    ¶ 16 The sentencing court agreed not to put undue weight on
Mr. Martin’s having occupied a position of special trust, and it
noted Mr. Martin’s good work history and lack of a criminal
record. It also acknowledged that Mr. Martin’s conduct had not
inflicted physical injury on his victims. But it ultimately
concluded that the fact that Mr. Martin had perpetrated multiple
acts on two different child victims, that he refused to take
responsibility, and that he had continued to attack the credibility
of his victims’ family even after he was convicted warranted a
more severe sentence. Stating that it largely embraced the
prosecutor’s reasoning, the court imposed the sentence that the
prosecutor requested: fifteen years to life on all four counts, with
one count running consecutive to the others.
   ¶ 17 Mr. Martin now appeals his conviction and sentence. We
have jurisdiction under Utah Code section 78A-3-102(3)(i).


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                    STANDARDS OF REVIEW
    ¶ 18 Generally, district courts are afforded “a great deal of
discretion in determining whether to admit or exclude evidence.”
State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 (citation omitted).
Thus, as long as the district court did not make an error of law,
this court will reverse a district court’s decision to admit or
exclude evidence under rules 608, 404(b) and 403 of the Utah
Rules of Evidence only if that decision “is beyond the limits of
reasonability.” Id. (citation omitted); see also State v. Killpack, 2008
UT 49, ¶ 18, 191 P.3d 17.
    ¶ 19 The same standard of review applies to district courts’
decisions to admit or exclude expert testimony under rule 702. As
long as the court has not applied the wrong rule or misinterpreted
the law, “[t]he trial court has wide discretion in determining the
admissibility of expert testimony, and such decisions are
reviewed under an abuse of discretion standard.” State v. Hollen,
2002 UT 35, ¶ 66, 44 P.3d 794 (citation omitted). We therefore “will
not reverse [a decision to admit or exclude expert testimony]
unless the decision exceeds the limits of reasonability.” Id.
(alteration in original) (citation omitted).
    ¶ 20 Finally, unless the court “fails to consider all legally
relevant factors,” imposes an illegal sentence, or bases its
sentencing determination on an erroneous interpretation of law,
LeBeau v. State, 2014 UT 39, ¶ 16, 337 P.3d 254, this court will
overturn a sentencing decision only if it is “clear that the actions
of the [sentencing] judge were so inherently unfair as to constitute
an abuse of discretion,” Killpack, 2008 UT 49, ¶ 18 (citation
omitted).
                             ANALYSIS
   ¶ 21 We first address Mr. Martin’s arguments that the district
court erred in connection with the expert testimony of Chelsea
Smith. We conclude that, to the extent Mr. Martin’s arguments are
preserved, they lack merit. We then consider Mr. Martin’s
argument that the district court abused its discretion—and
violated his constitutional right to present a complete defense—in
excluding purported evidence that the victims’ mother had
previously accused other people of sexual misconduct, and we
conclude that the district court did not err. Finally, we explain
why we uphold Mr. Martin’s sentence.

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  I. THE DISTRICT COURT DID NOT ERR IN CONNECTION
         WITH THE STATE’S EXPERT’S TESTIMONY
    ¶ 22 As we have explained, the district court allowed the
State to call a forensic interviewer from the Children’s Justice
Center who was qualified as an expert in two areas: (1) the
reasons children make multiple and incomplete disclosures about
abuse and (2) the “common behaviors . . . of children who have
been abused.” At trial, the expert described child interview
protocols, testified about the reasons children make incomplete or
inconsistent disclosures about sexual abuse, and explained that
children respond to sexual abuse by demonstrating a wide and
largely unpredictable array of behaviors. While she did identify
some common behavioral changes that occur in child victims of
sexual abuse—such as depression, anxiety, changes in sleep, and
changes in school performance—she stated that these changes are
not to be expected in every case and ultimately are not reliable
indicators of whether abuse has, or has not, occurred.
    ¶ 23 In the course of explaining why children do not always
fully disclose sexual abuse, the expert made comments about
children’s memory. She testified that children sometimes have
difficulty with memory retrieval. She also testified that “[t]he
more that we talk about things . . . we will often remember more
or additional details”—a process that the expert called
“reminiscence.”
    ¶ 24 On appeal, Mr. Martin argues that the district court
committed three errors in connection with this testimony. First,
keying into the expert’s testimony about memory retrieval and
“reminiscence,” he argues that the district court erred in allowing
the expert “to testify extensively about child memory and recall.”
Second, he argues that the district court should not have allowed
the expert to testify “regarding reasons why children will give
differing disclosures of alleged abuse”—or about the wide variety
of behaviors that abused children exhibit—because this testimony
was “unhelpful, misleading and unfairly prejudicial.” Finally, he
argues that the expert’s testimony improperly bolstered the
victims’ testimony.




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                        Opinion of the Court

         A. Mr. Martin Did Not Preserve His Argument that
          the Expert Exceeded the Scope of Her Expertise in
           Testifying About Memory Formation and Recall
    ¶ 25 Mr. Martin’s first argument is unpreserved. “Generally
speaking, a timely and specific objection must be made in order to
preserve an issue for appeal.” State v. Pinder, 2005 UT 15, ¶ 45,
114 P.3d 551. To be specific, the objection must present the issue to
the court “in such a way that the trial court has an opportunity to
rule on that issue.” In re Adoption of Baby E.Z., 2011 UT 38, ¶ 25,
266 P.3d 702 (citation omitted). This court will not consider an
issue to which no timely and specific objection has been made
“unless the trial court committed plain error or exceptional
circumstances exist.” State v. Nelson-Waggoner, 2004 UT 29, ¶ 16,
94 P.3d 186. And we will not find plain error or exceptional
circumstances unless the appellant argues in his opening brief on
appeal that one of those exceptions to the preservation
requirement applies. See Coleman ex rel. Schefski v. Stevens, 2000 UT
98, ¶ 9, 17 P.3d 1122 (“[B]ecause Mr. Coleman did not properly
raise these three issues in the trial court and thereby preserve
them for appellate review, and because he argued plain error or
manifest injustice for the first time in his reply brief, we decline to
review them.”).
    ¶ 26 Mr. Martin did not object to any of the testimony about
which he complains on appeal. While Mr. Martin did move, prior
to trial, to exclude the State’s expert altogether, this motion was
not sufficient to give the district court the opportunity to rule
on whether the expert should have been permitted to testify
about childhood memory and recall. Cf. State v. Eldredge, 773 P.2d
29, 34–35 (Utah 1989) (objection to witness’s testimony based on
competency insufficient to preserve appeal of witness’s
reliability). The district court did not authorize this expert to
testify about childhood memory and recall. Instead, it authorized
the expert to testify “regarding multiple disclosures and potential
reasons for multiple disclosures” based on “her experience of
conducting more than 1800 interviews . . . , her experience as a
therapist . . . , her on-the-job training and continuing education,
and . . . her education during her master’s and bachelor’s
degrees.” While this order arguably dispensed with the need for
any future objection to the expert’s qualifications to give
testimony based on her training and experience as to why children


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make multiple and incomplete disclosures of sexual abuse, it did
not obviate the need for counsel to object to testimony that
exceeded the scope of what the court determined to be the
expert’s expertise. See State v. Shepherd, 2015 UT App 208, ¶ 30 n.6,
357 P.3d 598 (distinguishing between objections that the expert
exceeded the scope of his or her expertise, or offered an
impermissible lay opinion, and challenges to the expert’s
qualifications). Accordingly, Mr. Martin needed to object to
testimony about childhood memory and recall in order to
preserve this issue for appeal. Because he did not, and because he
failed to argue on appeal that plain error or exceptional
circumstances justify our review, the issue is waived. See Nelson-
Waggoner, 2004 UT 29, ¶ 16; Coleman, 2000 UT 98, ¶ 9.
    ¶ 27 In any event, we note that what Mr. Martin characterizes
as the expert’s “extensive[]” testimony about child “memory
formation and recall” amounted to brief remarks that (1) children
sometimes forget information and then remember it later, (2) the
more children talk about events the more they remember about
them, and (3) children’s memories are malleable and suggestible.
None of these statements called for expertise in the mechanisms of
memory retrieval and recall. Instead, these statements simply
described trends and tendencies that were readily observable by a
forensic interviewer with the expert’s level of training and
experience. When her testimony is viewed in context, we do not
believe that the expert sought to testify to psychological or
neuroscientific matters beyond the scope of her expertise.
          B. The District Court Did Not Abuse Its Discretion
                 in Permitting the Expert Testimony
    ¶ 28 Mr. Martin next argues that the district court should not
have allowed the expert to testify “regarding reasons why
children will give differing disclosures of alleged abuse” because
this testimony was “unhelpful, misleading and unfairly
prejudicial” and invaded the province of the jury. Mr. Martin
argues that the jury should have been expected to know that
“sometimes children are afraid to give all the details” of sexual
abuse initially, and that they will sometimes “remember more
details later.” Likewise, he argues that the expert’s testimony that
not all child victims of sexual abuse exhibit behavioral changes
was unhelpful. By Mr. Martin’s lights, testimony that child
victims of sexual abuse exhibit a wide and ultimately

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                       Opinion of the Court

unpredictable variety of behaviors is “indicative neither of truth
nor falsity of [a child’s] allegation” of sexual abuse.
   ¶ 29 We disagree. Rule 702(a) of the Utah Rules of Evidence
provides that
       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.
Under this rule, courts should generally exclude testimony if the
testimony “is within the knowledge or experience of the average
individual.” State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993).
Courts must also, of course, always take care to ensure that the
testimony does not “transgress[] into the area reserved for the
jury”—including credibility assessments. Id.
    ¶ 30 Mr. Martin has not persuaded us that the expert
testimony authorized in this case was unhelpful or unreliable, or
that it improperly invaded the province of the jury. The district
court was surely within its discretion to conclude that testimony
about why child victims make inconsistent disclosures would be
helpful to some—if not all—jurors who might otherwise think, for
example, that sexual abuse so affects its victims that they will
invariably make a complete disclosure to a therapist or a parent as
soon as the issue is broached. It was similarly within the district
court’s discretion to conclude that expert testimony about the
varied and unpredictable behaviors of children would inform the
jury, or even counteract some of their preconceptions, about the
effect of sexual abuse on child behavior. Notably, “[i]t is not
necessary that the subject of the [expert] testimony be so erudite
or arcane that the jurors could not possibly understand it without
the aid of expert testimony, nor is it a requirement that the subject
be beyond the comprehension of each and every juror.” Id. We
find no error in the court’s permitting this testimony.
    ¶ 31 That said, we do not doubt that there are powerful
arguments why the expert testimony that the district court
allowed in this case—testimony about the typical behaviors of
child sex abuse victims and the manner in which they make
disclosures about their abuse—should be excluded in particular

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cases. And we know from our own research that some other
jurisdictions—though by no means all—have categorically
excluded this testimony in the face of evidence showing that the
testimony is unreliable, is essentially beyond the scope of any
credible scientific or therapeutic method, or poses an undue risk
of improperly influencing a jury’s assessment of credibility.
Compare Sanderson v. Commonwealth, 291 S.W.3d 610, 614
(Ky. 2009) (concluding that expert testimony about how child sex
abuse victims typically behave, and the manner in which they
disclose information about their abuse, is scientifically suspect
and invades the province of the jury) and Commonwealth v. Dunkle,
602 A.2d 830, 832, 834 (Pa. 1992) (concluding that “[i]t is virtually
impossible to clinically describe the elements of the ‘child abuse
syndrome’ [i.e., a “diagnostic or behavioral profile about sexually
abused children”] with any realistic degree of specificity”), with
State v. Favoccia, 51 A.3d 1002, 1015 n.26 (Conn. 2012) (noting that
“a majority of the jurisdictions to have considered this question
...     deem admissible expert testimony that a particular
complainant has exhibited behavioral characteristics identified as
those of sexual assault victims—so long as the expert does not
offer an ultimate conclusion on the issue of sexual abuse or opine
directly on the complainant’s veracity”). See also State v. Kallin, 877
P.2d 138, 140–41 (Utah 1994) (“Expert testimony that [the victim’s]
symptoms are consistent with sexual abuse, subject to appropriate
limitations and instructions to the jury, may enable the jury to
assess the probative relevance of the evidence in light of all other
evidence.”). But Mr. Martin submitted no meaningful data or
other evidence to show the district court that the testimony the
district court allowed was prejudicial, unreliable, or unhelpful.
Nor has he cited or sought to apply any of the myriad cases
directly analyzing this nuanced and challenging problem before
the district court or on appeal. Both at the district court level and
before this court, therefore, Mr. Martin has failed to carry his
burden of persuasion that admitting this testimony was an abuse
of discretion.
   ¶ 32 That said, we urge our district courts to continue to
carefully assess all scientific and technical evidence and argument
put forth by the parties in deciding whether to admit this kind of
evidence. Our only holding today is that, based on the arguments
and evidence before the district court and before us, it was not an


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abuse of discretion for the district court to permit the State to
respond to Mr. Martin’s attack on the victims’ inconsistent
statements by proffering an expert to “explain in general terms
the behavioral characteristics of child abuse victims” and the
reasons they might make multiple or differing disclosures about
the abuse they suffered. Favoccia, 51 A.3d at 1013 (emphasis
omitted) (citation omitted).
      C. The District Court Did Not Commit Reversible Error in
           Connection with Any Improper Bolstering of the
                      Child Victims’ Credibility
    ¶ 33 With one obvious exception, we likewise do not see any
indication in the record—or the briefing—that the expert in this
case improperly bolstered the victims’ credibility. The expert did
not seek to connect her testimony about the general behavioral
characteristics of child victims of sexual abuse to A.L.’s and N.L.’s
specific conduct. Indeed, the expert went out of her way on
multiple occasions to explain that she was not offering an opinion
on the credibility of the victims in this case. As with the many
questions pertaining to the general admissibility of expert
testimony in this arena, we do not decide today the circumstances
under which the risk of prejudice attendant on “expert testimony
that compares or links observations of the complainant to the
behaviors of sexual assault victims generally” requires exclusion
of that testimony. Id. at 1015. Our conclusion is only that, on the
record before us, the district court did not abuse its discretion in
permitting the testimony it allowed.
    ¶ 34 There is one obvious exception to our determination that
the expert in this case did not improperly bolster the child
victims’ credibility—on cross-examination the expert testified that
the children “seemed credible” to her. And even though
Mr. Martin’s counsel arguably elicited this testimony through
cross-examination, we agree that it was plainly improper. See State
v. Ramsey, 782 P.2d 480, 485 (Utah 1989) (“[A]n expert may not
express an opinion as to a child’s truthfulness with respect to
statements of child sex abuse.”). But, equally plainly, Mr. Martin
has waived any claim for relief on appeal. This is because the
district court struck the expert’s answer and gave Mr. Martin all
the relief he sought—a curative instruction stating that the expert
was not qualified to speak to the credibility of the children and
that her comments to that effect had been stricken from the

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record. Mr. Martin accordingly waived a mistrial, and we will not
now give him a greater remedy than he sought at trial. See
Patterson v. Patterson, 2011 UT 68, ¶ 16, 266 P.3d 828 (“[R]equiring
preservation of [a remedy] prevents a party from avoiding
[seeking the remedy] at trial for strategic reasons only to raise the
issue on appeal if the strategy fails.” (citation omitted)).
    ¶ 35 We find no abuse of discretion in the district court’s
evidentiary rulings with respect to the State’s expert witness in
this case.
   II. THE DISTRICT COURT DID NOT ERR IN EXCLUDING
      EVIDENCE OF STEPHANIE’S FALSE ACCUSATIONS
                 OF SEXUAL MISCONDUCT
    ¶ 36 A crucial component of Mr. Martin’s defense at trial was
that his accusers had been manipulated by their mother,
Stephanie, into falsely accusing him of sexual misconduct. To
support this theory, Mr. Martin sought to introduce evidence that
Stephanie had previously manipulated other of her daughters into
levying false accusations of sexual misconduct. He also sought to
introduce evidence that Stephanie had a reputation for
untruthfulness and that she, herself, had previously made false
accusations of sexual misconduct against other people.
    ¶ 37 The district court allowed Mr. Martin to elicit testimony
about Stephanie’s reputation. After an extensive evidentiary
hearing at which Mr. Martin proffered the testimony that he
sought to admit at trial, the court also allowed Mr. Martin to
introduce evidence that Stephanie had manipulated her daughters
Anna Martin (Mr. Martin’s wife) and Meagan Svedin into making
allegedly false accusations of sexual misconduct against other
people.
    ¶ 38 On the other hand, the court excluded multiple
allegations that Stephanie had falsely accused others of sexual
misconduct. In particular, the court forbade Mr. Martin from
eliciting testimony (1) that Stephanie had falsely accused Anna
Martin of abusing A.L. and N.L., (2) that she had falsely claimed
to have had an affair, (3) that she had falsely accused her father-
in-law of groping her, (4) that she had falsely accused her mother-
in-law of having sexually abused her husband when he was a
child, and (5) that she had falsely accused her brother-in-law of
”making a sexual advance on her.”

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                       Opinion of the Court

    ¶ 39 The court concluded that this evidence was
impermissible propensity evidence, meant to show that because
Stephanie had made false accusations of sexual misconduct in the
past, she was more likely to have manipulated the victims into
making false accusations against Mr. Martin. See UTAH R. EVID.
404(b)(1) (“Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the
character.”). The court also ruled that the particular bad acts that
Mr. Martin sought to introduce were “not needed as Defendant
has proposed other, more directly related evidence that might
show that . . . [Stephanie] improperly influenced the victims in
this case”—i.e., the direct evidence, which the district court
admitted, that Stephanie had sought to manipulate other of her
daughters into making false accusations of sexual abuse. It
therefore also excluded the evidence under rule 403 of the Utah
Rules of Evidence, concluding that “the potential for confusion
and waste of time is high.” See id. 403 (“The court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”).
Finally, the court ruled that Mr. Martin could not inquire into
these matters under rule 608(b) of the Utah Rules of Evidence—
which provides that a district court “may, on cross-examination,
allow [extrinsic evidence of specific instances of a witness’s
conduct] to be inquired into if they are probative of the character
for truthfulness or untruthfulness of . . . the witness.” Id. 608(b).
    ¶ 40 On appeal, Mr. Martin argues that the district court
erred in excluding this evidence. He contends that the court
committed an error of law in evaluating the admissibility of this
evidence by applying the factors that we articulated in State v.
Shickles, 760 P.2d 291 (Utah 1988). He also argues that, under the
tests articulated in rules 403, 404(b), and 608, it was an abuse of
discretion to exclude this evidence. And he claims that excluding
the evidence violated his constitutional right to present a
complete defense.
   ¶ 41 For the reasons we explain below, we uphold the district
court’s evidentiary ruling.



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        A. The District Court Committed No Reversible Error
               in Connection with Its Recitation of the
                            Shickles Factors
    ¶ 42 Mr. Martin first argues that the district court committed
an error of law in conducting its evidentiary analysis under rules
404(b) and 403 because it inappropriately applied the factors
that we articulated in State v. Shickles for determining whether
evidence should be excluded under rule 403. See 760 P.2d at
295-96 (urging courts to consider the following factors in
analyzing the admissibility of evidence under rule 403: “the
strength of the evidence as to the commission of the other crime,
the similarities between the crimes, the interval of time that has
elapsed between the crimes, the need for the evidence, the efficacy
of alternative proof, and the degree to which the evidence
probably will rouse the jury to overmastering hostility” (citation
omitted)). We disagree.
    ¶ 43 It is true, as Mr. Martin points out, that the district court
recited the Shickles factors at the beginning of its evidentiary
order. It is also true that, shortly after this order was issued, we
held that district courts should not consider one of the Shickles
factors—whether evidence may rouse the jury to “overmastering
hostility”—because the text of rule 403 requires judges to consider
only whether the evidence poses a danger of “unfair prejudice,”
which is a lower burden. State v. Cuttler, 2015 UT 95, ¶ 20, 367
P.3d 981. Indeed, we have generally disapproved of courts’
mechanically relying on the Shickles factors when they are not
apposite to the particular evidentiary problem at hand. See State v.
Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841.
    ¶ 44 But we are convinced that, even though it recited the
Shickles factors, the district court did not improperly rely on them
in excluding evidence that Stephanie had falsely accused others of
misconduct. The district court did not, for example, exclude this
evidence on the basis that it would have roused the jury to
“overmastering hostility.” Instead, the court excluded this
evidence because it was “not needed as Defendant has proposed
other, more directly related evidence that might show that
Stephanie improperly influenced the victims in this case” and
because it was “only tenuously related to the case at hand.” The
court thus appropriately considered factors that were rooted in
the text of rule 403, excluding the evidence because “the potential

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                         STATE v. MARTIN
                       Opinion of the Court

for unfair prejudice, confusing the issues, misleading the jury,
[and] waste of time are high.” While it is, of course, error to
consider whether admitting evidence will rouse the jury to
“overmastering hostility,” the district court did not make this
mistake.
        B. The District Court Did Not Abuse Its Discretion in
           Excluding Evidence that Stephanie Had Falsely
                Accused Others of Sexual Misconduct
    ¶ 45 Mr. Martin next argues that the district court abused its
discretion in excluding this evidence because the sheer number of
alleged false accusations by Stephanie powerfully supported an
inference that accusations emanating from the victims themselves
were likely to be false. He thus attempts to invoke a species of the
“doctrine of chances” that we articulated in State v. Verde,
according to which evidence of prior accusations may be
admissible on the theory that “[a]s the number of improbable
occurrences [such as accusations of sexual misconduct] increases,
the probability of coincidence decreases, and the likelihood that
the [witness]” has levied a false accusation increases. 2012 UT 60,
¶ 49, 296 P.3d 673.
    ¶ 46 We are not unmoved by Mr. Martin’s evidentiary theory.
It may well be permissible for a defendant to argue that because a
mother—or other person in a demonstrated position of authority
over a victim—has made repeated objectively improbable
accusations of criminal conduct, it is therefore objectively
improbable that the victim’s accusations are true. See id. ¶¶ 49–50.
Under the facts of this case, however, the district court did not
abuse its discretion in excluding evidence that Stephanie had
made repeated false accusations because, given the nature of the
accusations and the nature of the evidence that the district court
admitted, it was not error to conclude that the probative value of
this evidence was substantially outweighed by its potential to
waste time and confuse the jury. See UTAH R. EVID. 403.
    ¶ 47 As we have explained, Mr. Martin sought to introduce
evidence of five different occasions on which Stephanie had
allegedly falsely accused others of sexual misconduct. For each of
these episodes—considered both singly and as part of a purported
pattern of behavior—we conclude that the district court was well
within its discretion in concluding that the minimal probative


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value of this evidence was substantially outweighed by the risk it
posed of wasting time and confusing the jury.
    ¶ 48 First, Mr. Martin argues that the district court abused its
discretion in preventing his wife (Stephanie’s daughter), Anna
Martin, from testifying that Stephanie had “falsely accused Anna
Martin of inappropriately touching A.L. . . . while Anna Martin
was babysitting A.L. in 2004 or 2005.” But there was no
dispositive evidence that Stephanie had falsely accused Anna of
inappropriate touching—just Anna’s say-so. And had Mr. Martin
been allowed to elicit this testimony, the district court would have
been obliged to allow the State to put on rebuttal testimony from
potentially multiple witnesses (Stephanie, Anna’s twin sister, and
Stephanie’s husband) that Anna had in fact engaged in
misconduct with both children, such as bathing with A.L. even
after she was forbidden from doing so and breastfeeding N.L.
   ¶ 49 In any event, Anna was allowed to testify that Stephanie
had manipulated her into falsely accusing two separate family
members of sexual misconduct, and she was permitted to testify,
without detail, that Stephanie had made other false allegations
against family members. The jury thus had ample opportunity to
credit Anna’s testimony about Stephanie’s purported penchant for
manipulating children into making false accusations of sexual
misconduct. Allowing an additional evidentiary inquiry into an
accusation—maybe false, maybe not—levied by Stephanie against
another witness in the proceeding, but utterly unrelated to the
crimes of which Mr. Martin stood accused, would have been
confusing, cumulative, and a waste of time.
    ¶ 50 The district court was equally within its discretion in
excluding evidence that Stephanie had accused her father-in-law
of groping her and that she had claimed to have had an affair.
Again, had Mr. Martin been allowed to introduce this evidence,
the State would have presented considerable rebuttal testimony.
With respect to the affair, three of Stephanie’s children would
have testified that she had never claimed to have had an affair
and one would have testified that the person with whom she
allegedly claimed to have had an affair was always extremely well
spoken of. And as for the alleged false accusation of groping, the
record was simply unclear on whether Stephanie’s father-in-law
had ever inappropriately touched her breasts. Again, therefore,
the jury would have been faced with a trial within a trial,

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                         STATE v. MARTIN
                       Opinion of the Court

predicated on largely inconclusive evidence, and pertaining to
comparatively minor episodes that were unrelated to the crimes at
hand, and that were, at best, weakly probative of whether
Stephanie would manipulate the victims into falsely accusing
Mr. Martin of committing a serious crime. The district court did
not err in concluding that the potential for confusion and waste of
time substantially outweighed the probative value of these
episodes.
    ¶ 51 The other two accusations that Mr. Martin sought to
introduce—that Stephanie had falsely accused her mother-in-law
of sexually abusing Stephanie’s husband when he was a child and
that her brother-in-law had made a sexual advance on her—
likewise would have involved substantial trial-within-a-trial
problems. The witnesses who would have testified to these
incidents were obviously biased: one was Anna (Mr. Martin’s
wife), and the other two were parents who believed that
Stephanie had persuaded Anna to falsely accuse their child of
rape—an episode that the court allowed to be placed before the
jury as evidence of Stephanie’s tendency to induce her children to
falsely accuse others of sexual misconduct. Moreover, none of the
witnesses had personal knowledge of whether any of the
accusations were in fact false. And, to suitably explore these
issues, the court would have had to allow hazy and inconclusive
testimony about long-past extramarital affairs between people
who otherwise had no connection to the case, as well as intricate
and confusing testimony about family history, inside jokes, and
long-simmering, deep-seated feuds.
    ¶ 52 Considering these episodes holistically, as a tapestry of
evidence from which a jury might have been invited to infer a
pattern of baseless accusatory behavior by Stephanie, does not
affect our conclusion that the district court’s decision to exclude
the evidence was proper. To admit evidence of all five episodes
would have required the district court to subject the jury to time-
consuming trials within a trial on weak and fundamentally
unpersuasive evidence that was highly “attenuated from the facts
of the case before us today.” State v. Tarrats, 2005 UT 50, ¶ 42, 122
P.3d 581. These “mini-trials,” moreover, would have ramified in
multiple directions. To adequately ventilate the issues they would
have presented, the court would have had to allow the jury to
hear both the contradictory and often inconclusive evidence

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offered about the episodes themselves, as well as baroque and
sordid testimony about otherwise irrelevant familial dysfunction.
The district court was well within its discretion to conclude that
this digression would have served only to confuse the jury and
invite them to draw improper inferences based on nothing more
than a selective tour of some skeletons in the family closet.
    ¶ 53 For substantially the same reasons that we uphold the
district court’s decision to exclude evidence of Stephanie’s alleged
false accusations under rules 404(b) and 403, we also conclude
that the district court did not abuse its discretion in prohibiting
Mr. Martin from asking Stephanie about these accusations on
cross-examination. Rule 608(b) provides that courts may allow a
witness to be cross-examined about prior bad acts if such cross-
examination would be “probative of the character for . . .
untruthfulness of . . . the witness.” UTAH R. EVID. 608(b). As the
district court recognized, courts deciding whether to allow cross-
examination under rule 608(b) must balance the extent to which
the proposed testimony is probative of truthfulness or
untruthfulness against the degree to which the testimony would
result in “unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” UTAH R. EVID. 403; see State v. Gomez, 2002
UT 120, ¶ 34, 63 P.3d 72.
    ¶ 54 Here, the court did not abuse its discretion in concluding
that the probative value of cross-examining Stephanie about the
five alleged false accusations was substantially outweighed by the
dangers of confusing the issues, misleading the jury, and wasting
time. As we have explained, the probative value of this line of
questioning was low—especially given that the jury had before it
ample evidence of Stephanie’s poor reputation for truthfulness.
And the risk of confusion and waste of time inherent in cross-
examination into matters otherwise wholly unrelated to the case
against Mr. Martin was high. The district court therefore did not
abuse its discretion in its rule 608 analysis.
   ¶ 55 Finally, we conclude that Mr. Martin’s right to present a
complete defense was not infringed. “[E]videntiary ‘rules do not
abridge an accused’s right to present a defense as long as they are
not arbitrary or disproportionate to the purposes they are
designed to serve.’” State v. Thornton, 2017 UT 9, ¶ 76, 391 P.3d
1016 (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998))

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                       Opinion of the Court

(other internal quotation marks omitted)). We have upheld the
district court’s decision to exclude evidence of Stephanie’s alleged
prior false accusations under rule 403 of the Utah Rules of
Evidence. Unlike other rules whose categorical exclusion of
classes of evidence may, in individual cases, work an arbitrary or
disproportionate result, rule 403 has a proportionality analysis
baked into it. Thus, as long as a district court does not abuse its
discretion under rule 403, excluding evidence under that rule does
not infringe a defendant’s constitutional right to present a
complete defense.
   ¶ 56 We uphold the district court’s decision to exclude
evidence of Stephanie’s alleged prior false accusations.
                         III. SENTENCING
    ¶ 57 Finally, Mr. Martin appeals his sentence. Relying on
LeBeau v. State, 2014 UT 39, 337 P.3d 254, he argues that the
sentencing court failed to properly consider whether the interests
of justice warranted deviating from the fifteen-year-to-life
presumptive term of imprisonment for aggravated sexual abuse
of a child.2 Specifically, he argues that the court failed to properly
analyze whether the sentence it imposed was proportionate either
to Mr. Martin’s conduct or to sentences for similar offenses. As
part of his challenge to the proportionality of his sentence to his
conduct, Mr. Martin also argues that the court abused its
discretion in weighing the aggravating and mitigating factors
applicable to his case.
   ¶ 58 For the reasons we explain, we conclude that, to the
extent they are not waived, Mr. Martin’s challenges to his
sentence fail.
       A. An Overview of the Pertinent Sentencing Framework
   ¶ 59 In LeBeau, we explained that, within the context of our
aggravated kidnapping statute, Utah Code section 76-5-302,
sentencing courts are required to perform an interests-of-justice
analysis before imposing a sentence of life without the possibility
of parole. 2014 UT 39, ¶ 24. Specifically, we explained that this


   2Mr. Martin does not challenge the district court’s decision to
run one of these counts consecutive to the others.


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interests-of-justice analysis requires the sentencing court to
consider (1) “[t]he seriousness of the defendant’s conduct in
relation to the severity of his sentence” and (2) the severity of the
defendant’s sentence relative to “the sentences imposed for more
and less serious crimes” in Utah. Id. ¶¶ 42, 47.3
    ¶ 60 In considering whether the seriousness of the
defendant’s conduct warrants deviating from—or, instead,
adhering to—the presumptive sentence, sentencing courts must
“consider all relevant facts raised by the parties about the
defendant’s crime in relation to the harshness of the penalty.” Id.
¶ 42. As LeBeau explained, “the list of aggravating and mitigating
circumstances created by the Utah Sentencing Commission”—
which highlight many of the considerations that bear on the
seriousness of criminal conduct and the culpability of a criminal
offender—“provides a good starting point” for this assessment. Id.
But other considerations must also inform the sentencing court’s
analysis of whether the criminal conduct warrants a harsher or
more lenient penalty. We have highlighted a few of these factors,
which include whether the offense was violent or nonviolent, id.
¶ 43, the “absolute magnitude of the crime,” id. ¶ 44 (citation
omitted), and the culpability of the offender—his or her mens rea
and motivation, id. ¶ 45. We have also emphasized the importance
of considering the offender’s rehabilitative potential—including
(among any other relevant factors) age, the extent to which the
offender’s conduct was tied to substance abuse, the offender’s
receptiveness to treatment, and the offender’s criminal history. Id.
¶ 54. And we have urged courts to bear in mind that these factors



   3 In considering these two factors, the court must also bear in
mind the role played by the Board of Pardons and Parole in our
indeterminate sentencing scheme, and it must strive not to
structure its sentences in such a way that the Board is hamstrung
in its ability to make fine-grained assessments of an offender’s
rehabilitative progress. See LeBeau v. State, 2014 UT 39, ¶¶ 52–53,
337 P.3d 254. As a practical matter, this means that running too
many sentences consecutively to each other, or otherwise acting to
thwart the Board in its ability to monitor inmates’ rehabilitation, is
disfavored. Id. ¶ 52.


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                       Opinion of the Court

are “not intended to provide an exhaustive list . . . because
sentencing remains a highly fact-dependent endeavor.” Id. ¶ 46.
    ¶ 61 In addition to considering the individual characteristics
of the offender and the circumstances of the offense, the court
must also “compare the sentence being imposed to the sentences
imposed for other crimes in Utah” with an eye toward avoiding
arbitrary sentencing disparities. Id. ¶ 47. To ensure that this
comparison fairly and accurately reflects the range of sentences to
which like offenders are exposed, we require our courts to
consider “the sentences imposed for more and less serious crimes.”
Id. (emphasis added). The ultimate question at this stage of the
inquiry should be whether the overall sentence that the court
plans to impose will be unusually high or low compared with the
typical sentences for approximately similar offenses.
    ¶ 62 With this framework in mind, we turn to Mr. Martin’s
specific challenges to his sentence. 4 This court “traditionally
afford[s] the trial court wide latitude and discretion in
sentencing.” State v. Woodland, 945 P.2d 665, 671 (Utah 1997). For
this reason, as we explained above, we review sentencing
decisions for an abuse of discretion. State v. Helms, 2002 UT 12,
¶ 8, 40 P.3d 626. Of course, our usual preservation requirements
also apply—when a sentencing court commits an error that was
not objected to below, an appellant must therefore show the
existence of plain error or exceptional circumstances that would
justify the exercise of our review. See State v. Munguia, 2011 UT 5,
¶ 36, 253 P.3d 1082.
        B. Mr. Martin Has Not Preserved His Challenge to the
           Sentencing Court’s Comparison of His Sentence
                  to Sentences for Similar Offenses
   ¶ 63 Mr. Martin alleges failures in both the first and second
steps of the LeBeau framework. Mr. Martin first argues that the
sentencing court failed to properly compare his sentence to the


   4 As the State explained, “[f]or the purposes of this appeal, the
State” did not contest the application of the interests-of-justice
analysis set forth in LeBeau to this context (i.e., aggravated sexual
abuse of a child). In light of this concession, we assume, but do
not decide, that LeBeau applies to the case before us.


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sentences imposed for “more and less serious crimes.” LeBeau, 2014
UT 39, ¶ 47 (emphasis added). And it is true, as Mr. Martin points
out, that the extent of the district court’s comparison was to
compare the sentence it imposed on Mr. Martin to the
presumptive sentences for sodomy of a child and rape of a child.
Generally, these offenses are more serious than the crimes of
which Mr. Martin was convicted. See UTAH CODE § 76-5-403.1
(sodomy of a child involves oral or anal contact between adult
and child); id. § 76-5-402.1 (“A person commits rape of a child
when the person has sexual intercourse with a child who is under
the age of 14.”). And the sentencing court did not consider
whether there were less serious similar offenses that carried with
them other presumptive terms. It is therefore possible that the
sentencing court was not able to fully assess whether Mr. Martin’s
sentence was proportionate to other sentences for comparable
offenses.
    ¶ 64 While there may be issues with the way this portion of
Mr. Martin’s sentencing proceeded, what fault there is, if any, lies
with Mr. Martin’s trial counsel, who did not object to this analysis
or otherwise ask the district court to compare the sentence it
imposed to the presumptive sentences for other, less serious
offenses. Because no objection was made, we may therefore
reverse Mr. Martin’s sentence only if the sentencing court
committed plain error or if exceptional circumstances otherwise
call for the exercise of our review. See Munguia, 2011 UT 5, ¶ 36;
see also Helms, 2002 UT 12, ¶ 17.
    ¶ 65 But Mr. Martin does not argue plain error or the
existence of exceptional circumstances on appeal. Indeed,
Mr. Martin’s appellate counsel does not even tell us what similar
but less serious offenses the court should have considered to
ensure that it was not imposing an arbitrarily severe term of
imprisonment. Counsel has thus sought to dump onto this court
the burden of scouring the criminal code for the less serious
offenses that, in our own self-guided view, the sentencing court
ought to have considered in assessing the propriety of the
sentence it imposed.
    ¶ 66 We will not do this. “[A] reviewing court is not simply a
depository into which the appealing party may dump the burden
of argument and research.” State v. Honie, 2002 UT 4, ¶ 67, 57 P.3d
977. Ranging across the criminal code in an effort to (1) identify

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                       Opinion of the Court

similar offenses and (2) compare their sentencing schemes to the
sentence Mr. Martin received is a daunting task. It is also a task
that we could not fairly undertake without affording the State the
opportunity to respond to our analysis. And it is certainly not a
task that we can require our district courts to perform without
prompting or guidance from counsel. We therefore decline to
reach this challenge to Mr. Martin’s sentence.
       C. The Sentencing Court Did Not Abuse Its Discretion in
         Evaluating the Seriousness of Mr. Martin’s Conduct
    ¶ 67 Mr. Martin next argues that the sentencing court abused
its broad discretion in evaluating the seriousness of his conduct,
including in weighing the aggravating and mitigating factors in
his case. First, Mr. Martin argues that the sentencing court failed
to consider the fact that his offenses were nonviolent and that his
intent in committing them “was sexual arousal, not causing
substantial emotional or bodily pain.” But the sentencing court
recognized that Mr. Martin’s offenses were nonviolent, stating
that “the assault is disturbing and serious, but . . . the victims did
not suffer serious bodily injury.” There is thus no indication in the
record that the sentencing court failed to consider the nonviolent
nature of Mr. Martin’s offenses or that it attributed to Mr. Martin
the intent to inflict substantial emotional or bodily pain on his
victims.
    ¶ 68 Mr. Martin next argues that the sentencing court
inappropriately assigned weight to the fact that his victims were
children in enhancing Mr. Martin’s sentence—when the
legislature had already taken this fact into account in defining
Mr. Martin’s offense of conviction in such a way that one of its
essential elements is that the misconduct involved a child. As
Mr. Martin puts it, “the fact that Martin was convicted of harming
children is why this was charged as aggravated sexual abuse of a
child, and not some lesser sex offense like forcible sexual abuse,
sexual abuse of a minor over 14, unlawful sexual conduct with a
16 or 17 year-old, or sexual battery.”
    ¶ 69 To support his contention that the sentencing court
inappropriately “double-counted” the fact that Mr. Martin’s
offense involved a child, Mr. Martin points to a portion of the
record in which the prosecutor—whose analysis the sentencing
court largely embraced—stated that the offense was particularly


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                        Opinion of the Court

grave because “you have here two innocent children irreparably
harmed.” But we do not read this portion of the record in the
same way Mr. Martin does. The sentencing court did not think
that Mr. Martin’s sentence for aggravated sexual abuse of a child
should be further enhanced simply because the offense involved
(as it invariably will) a child. Rather, as we read this portion of the
record, the court—quite properly—found Mr. Martin’s conduct
aggravated because it involved two children. It was entirely
appropriate for the sentencing court to consider the fact that
Mr. Martin abused two children in concluding that his conduct
was especially grave. Cf. UTAH CODE § 76-5-404.1(4)(f) (aggravated
sexual abuse of a child if “the accused committed the same or
similar sexual act upon two or more victims at the same time or
during the same course of conduct”).
    ¶ 70 Third, Mr. Martin argues that the sentencing court
improperly punished him for exercising his right to trial. But the
sentencing court did not consider Mr. Martin’s decision to go to
trial as an aggravating factor. Instead, it punished him for his post-
conviction failure to take responsibility for his conduct, and for his
decision at the sentencing hearing to submit letters and elicit
statements continuing to attack the credibility of his victims’
family. These decisions, the court concluded, cast serious doubt
on Mr. Martin’s rehabilitative potential.
   ¶ 71 In his brief, Mr. Martin quotes a portion of the
prosecutor’s remarks to show that the court was asked to punish
him for exercising his right to trial.
        The         [Mr. Martin’s] failure to get up here
        Prosecutor: and say, “I did it,” and disabuse all of
                    those people [i.e., the victims and their
                    family] that they’re at fault [for
                    accusing       Mr.      Martin]      is—is
                    unthinkable, . . . and it’s tragic that
                    they have to get up here and defend
                    their character again and again
                    because he won’t take responsibility after
                    a jury finds him guilty beyond a reasonable
                    doubt.

(Emphasis added.) But this excerpt reflects only that the
prosecutor faulted Mr. Martin for impugning the character of his

                                  25
                          STATE v. MARTIN
                       Opinion of the Court

victims’ family and failing to take responsibility after the jury’s
verdict. It thus provides further support for the conclusion that
the sentencing court only punished Mr. Martin for his post-
conviction failure to take responsibility and express remorse.
Thus, it was not Mr. Martin’s decision to assert his innocence or
insist on a trial that the court treated as an aggravating factor.
Instead, it was the lack of any indication that he would accept
responsibility and be successfully rehabilitated after being found
guilty that drove the court’s analysis. This was not an abuse of
discretion.
    ¶ 72 Mr. Martin also contends that the prosecutor
inappropriately asked the court to impose a more severe sentence
because he did not take a plea offer. To support this contention, he
points to a portion of the record where, in response to defense
counsel’s personal representation that “she had seen many more
serious cases end up with lesser sentences than the mandatory
minimum here of 15 to life,” the prosecutor “suggest[ed] that a
key difference between perhaps more serious cases [and
Mr. Martin’s] is a willingness to take responsibility, to accept a
plea offer.” As we read this portion of the record, however, the
prosecutor was merely responding to defense counsel’s remark by
noting the reality that the State will often agree to a lower
sentence when a defendant accepts responsibility and pleads
guilty. Given defense counsel’s comment, it was permissible for
the prosecutor to point out that, as a result of the realities of plea
bargaining, defendants who take their cases to trial often risk
more severe punishment than defendants who accept plea offers.
    ¶ 73 Mr. Martin next argues that the sentencing court
“inappropriately used the statutory element aggravator, position
of special trust, as an aggravating factor in its interests-of-justice
analysis.” Again, we disagree with this interpretation of the
record. It is true that Mr. Martin was charged with aggravated
sexual abuse of a child—as opposed to second-degree sexual
abuse of a child—because he sexually abused children while
occupying “a position of special trust in relation to the victim.”
UTAH CODE § 76-5-404.1(4)(h). But the district court did not find
the fact that Mr. Martin occupied a position of special trust to be




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an aggravating factor at sentencing.5 To the contrary, the court
agreed with defense counsel that it should not enhance
Mr. Martin’s sentence based on his occupying a position of special
trust because his “position of special trust . . . [is] already
considered as an element of the offense”:
        Defense      [F]inally, in terms of the vulnerability
        Counsel:     of the children in this case, [the
                     prosecutor] did bring up the
                     aggravating factor. The aggravating
                     factor is already an element that’s part
                     of the charge itself.
        The Court:   That’s true.




   5  Mr. Martin separately argues that the district court failed to
appreciate that the “position of special trust” aggravating factor is
“relatively minor” when compared with many of the other
aggravating factors that operate to convert sexual abuse of a child
from a second-degree to a first-degree felony. Mr. Martin points
out that other statutory aggravators—such as the use of a
dangerous weapon, causing bodily injury or severe psychological
injury, having been convicted previously of any sex offense, and
benefitting from the prostitution or sex slavery of the child—
encompass more egregious or damaging conduct.
    Irrespective of the merits of Mr. Martin’s legal analysis, we see
no indication in the record that the district court put undue
weight on Mr. Martin’s occupying a position of special trust. Nor
do we see any indication that the district court failed to appreciate
that the “position of special trust” aggravator can encompass less
serious conduct than some of the other statutory aggravators.
Instead, the district court rooted its sentencing decision in its
assessment of the effect of Mr. Martin’s conduct on the victims
and their family, Mr. Martin’s failure to take responsibility for his
conduct, and the fact that Mr. Martin committed multiple offenses
against two different child victims. We do not see in this record a
myopic or otherwise inappropriate focus on the “position of
special trust” statutory aggravator.


                                    27
                        STATE v. MARTIN
                      Opinion of the Court

       Defense      It actually increases this from the
       Counsel:     second-degree felony sexual abuse of a
                    child to aggravated sexual abuse of a
                    child. So we’re already—that’s already
                    taken into account. That should not be
                    an additional aggravating factor in
                    terms of sentencing. It’s already taken
                    into account on the elements of the
                    offense. . . .
       The Court:   The multiple victims?
       Defense      That, but also his position in terms of
       Counsel:     position of special trust.
       The Court:   Of special trust.
       Defense      It’s an element of the offense and it’s
       Counsel:     what—
       The Court:   That’s the aggravation.
       Defense      —exactly. It already is considered as
       Counsel:     an element of the offense.
       The Court:   Right.

The court thus appeared to agree with Mr. Martin that it would
have been improper to rely on the “position of special trust”
aggravator in further enhancing Mr. Martin’s sentence. While the
court later “note[d] the position of trust” in delivering its
sentence, it noted this aggravator alongside the facts that “the
children were vulnerable, and there are multiple victims, multiple
occurrences.” Listing a statutory aggravator in the course of
summarizing the totality of circumstances that support a
particular sentence is a far cry from double-counting that
aggravator.
   ¶ 74 Finally, Mr. Martin argues that the sentencing court
improperly discounted his lack of criminal history, his “good
employment history” and his family and community support.
This, too, is not supported by the record. Instead, the court
“note[d] that the defendant has no prior criminal record” and that
“[h]e otherwise has good character and good employment.”




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    ¶ 75 Mr. Martin argues that the prosecutor improperly
sought to convert Mr. Martin’s community support into an
aggravating factor by pointing out that Mr. Martin had been able
to maintain community support and trust in his innocence even
after he was convicted of sexual abuse of children. And it is true
that the prosecutor argued that Mr. Martin’s ability to maintain
trust argued in favor of a more severe sentence: “The fact that so
many people write these . . . character references stating they
would trust [Mr. Martin] with . . . their children . . . shows me that
he will have access to children again; and he can use that position
of trust just as he did here with their children . . . .” But this was a
permissible argument about community safety. On the facts of
this case, it was not improper for the prosecutor to emphasize
Mr. Martin’s ability to maintain the trust of his community, and,
indeed, to turn that community against his victims, in arguing
that Mr. Martin posed a threat to public safety. To the extent that
the court embraced the prosecutor’s argument, it did not err.
    ¶ 76 On appellate review, it is not our task to reweigh
aggravating and mitigating factors or to second-guess a district
court’s sentencing determination. See State v. Killpack, 2008 UT 49,
¶ 58, 191 P.3d 17 (recognizing that district courts “are best
situated to weigh the many intangibles of character, personality
and attitude, of which the cold record gives little inkling”
(internal quotation marks omitted)). Instead, we will intercede
only when the record reveals a clear abuse of discretion. While we
recognize that, on the cold record, the sentence in this case may
appear unusually harsh, the record does not reveal an abuse of
sentencing discretion. Mr. Martin’s was not the least serious
conduct encompassed by the offense of aggravated sexual abuse
of a child. Mr. Martin victimized two children with whom he had
been entrusted, and he did so on multiple occasions. Then, even
after he was convicted, he accused his victims and their family of
lying and duplicity, enlisted his community of support in acts of
character assassination, and failed to take responsibility for his
crimes.
   ¶ 77 The sentencing court recognized that Mr. Martin did not
entirely lack good character, that he was hardworking, and that
he had no criminal history. But it ultimately concluded that a
lengthy sentence was required in light of the nature of
Mr. Martin’s crime, the multiple victims, Mr. Martin’s ability to

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                      Opinion of the Court

maintain positions of community trust—including with
children—even after his conviction, and his decision not to take
post-conviction responsibility, but instead to launch an egregious
attack on the victims’ family.
    ¶ 78 Only where a court has failed to examine all the relevant
factors will we overturn a sentencing decision. Helms, 2002 UT 12,
¶ 8. That is not the case here. Here, the sentencing court examined
the nature and circumstances of Mr. Martin’s conduct, ultimately
concluding that the gravity of the crime as well as his apparent
lack of rehabilitative potential warranted a more severe sentence.
We will not second-guess that decision absent some greater
showing of deficiency.
                         CONCLUSION
    ¶ 79 Mr. Martin has not persuaded us to overturn his
conviction or his sentence. First, we find no error in connection
with the State’s expert’s testimony in Mr. Martin’s case.
Mr. Martin failed to preserve his challenge to the expert’s
testimony on child “reminiscence” and “recall,” and, in context,
this testimony was within the scope of the expert’s expertise.
Additionally, based on the evidence and argument before it, the
district court did not err in permitting general expert testimony
about how children disclose sexual abuse and about the varied
behaviors that child victims of sexual abuse exhibit—although we
urge litigants in criminal cases and our district courts to be
attuned to both the science in this complex and evolving field and
the risks of bolstering and otherwise invading the province of the
jury that such testimony poses.
    ¶ 80 Second, the district court did not err in its decision to
exclude evidence of a witness’s alleged prior false accusations of
sexual misconduct. Although the court recited the Shickles factors,
its analysis was firmly rooted in the text of rule 403 of the Utah
Rules of Evidence. And its decision to exclude this evidence was
well within its discretion. The court correctly admitted powerful
evidence supporting Mr. Martin’s theory that this witness lacked
credibility, as well as his theory that the witness had manipulated
the victims into falsely accusing him. Moreover, the evidence that
the court excluded was extremely weak, inconclusive, confusing,
and would have involved multiple, time-consuming trials within
a trial. While it may not have been excludible under rule 404(b)


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standing alone, it was no abuse of discretion for the district court
to exclude it under the balancing tests of rules 608 and 403.
    ¶ 81 Finally, we affirm Mr. Martin’s sentence. Had
Mr. Martin asked the district court to consider the sentences for
both more and less serious offenses in settling on the appropriate
sentence in this case, the court would have been obliged by LeBeau
v. State to undertake this analysis. But Mr. Martin did not make
this request, and he therefore waived this issue on appeal.
Otherwise, given the unique facts of this case, the district court
did not abuse its discretion in concluding that Mr. Martin’s
criminal conduct, his apparent lack of rehabilitative potential, and
his decision at sentencing to attack the victims’ family instead of
accepting responsibility for the crimes of which he had been
convicted warranted the harsh sentence it imposed.
   ¶ 82 We affirm Mr. Martin’s conviction and sentence.




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