Opinion
20210249-CA
12-29-2023
State of Utah, Appellee, v. Damaso Rene Plazola, Appellant.
Fourth District Court, Provo Department The Honorable Robert A. Lund No. 191402197 Jennifer L. Foresta and Douglas J. Thompson, Attorneys for Appellant Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
Fourth District Court, Provo Department The Honorable Robert A. Lund No. 191402197
Jennifer L. Foresta and Douglas J. Thompson, Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
Judge John D. Luthy authored this Opinion, in which Judges Michele M. Christiansen Forster and Amy J. Oliver concurred.
OPINION
LUTHY, JUDGE
¶1 Damaso Rene Plazola appeals his conviction on one count of sexual abuse of a child. He argues that the trial court improperly admitted evidence at trial, specifically, testimony regarding a previously dismissed sexual abuse allegation and the full recording of an interview with the alleged victim in this case. We conclude that even if the court erred when it determined that the previously dismissed allegation was admissible, this error was harmless. However, we also conclude that admission of the full recording of the interview with the alleged victim constituted plain error, and we therefore vacate Plazola's conviction and sentence and remand the matter for a new trial.
BACKGROUND
¶2 After a report to the Division of Child and Family Services alleging that two sisters (Maria and Claudia) were victims of child sexual abuse, the children were interviewed at the Children's Justice Center (CJC) in July 2017. In their CJC interviews, each girl reported being inappropriately touched by Plazola.
Pseudonyms.
¶3 Twelve-year-old Maria disclosed that in 2015, while at a church youth laser tag activity, Plazola, who was in attendance as a leader, was following her and touched her genitals with his hand. She said that although she initially thought the touching was accidental, when it happened a second time, she concluded it was intentional. She reported that Plazola touched her six or seven times over the course of the activity.
¶4 Eleven-year-old Claudia disclosed two separate allegations of inappropriate touching. The first was during a quinceañera party at a church. She said that she was throwing paper airplanes with Plazola in a room apart from where the party was occurring when Plazola told her he thought she had a scrape on her arm and then took her hand and placed it over his clothed genitals. Plazola then reportedly said he saw no scrape and let go of her hand.
¶5 Claudia also disclosed that on another occasion she was at a church activity walking around looking for chalk when she encountered Plazola, who told her there might be chalk on top of the chalkboards. Claudia said that she told Plazola she was going to get a chair to look on top of a chalkboard but Plazola instead lifted her up so she could check for chalk and touched her genitals and buttocks (over her clothing) while doing so. Claudia said that she saw no chalk, and Plazola put her down.
¶6 Based on these reports, the State initially charged Plazola with four counts of sexual abuse of a child-two counts based on the laser tag incident, one count based on the paper airplane incident, and one count based on the chalkboard incident. At the preliminary hearing, however, Claudia testified that she could not remember where Plazola had touched her when he lifted her up during the chalkboard incident. The State therefore moved to amend the information to remove the charge for the chalkboard incident, conceding that it had not met the standard of proof. The State ultimately proceeded to trial on just two charges of sexual abuse of a child-one based on the laser tag incident and one based on the paper airplane incident.
¶7 Prior to trial, the parties filed numerous motions addressing the admissibility of evidence regarding the uncharged chalkboard incident and the admissibility of the video recordings of the children's CJC interviews. Plazola moved to exclude all evidence related to the chalkboard incident because the charge related to that incident had been dismissed, and he argued that where Maria and Claudia would be past their fourteenth birthdays at the time of trial, the CJC videos should not be admitted because "they do not meet the threshold age requirement of the Utah Rules of Criminal Procedure [rule] 15.5, and constitute impermissible hearsay." See Utah R. Crim. P. 15.5(a) (providing conditions for the admissibility of a prior recording of an alleged child sexual abuse victim who is younger than fourteen years of age). The State moved to admit the evidence relating to the chalkboard incident pursuant to rule 404(c) of the Utah Rules of Evidence as a previous act of child molestation, and the State assured the court that it did "not anticipate using [r]ule 15.5 in order to admit the CJC videos."
¶8 These evidentiary issues were thereafter addressed in a pretrial conference. During that conference, the State recognized that for admission of evidence under rule 404(c), "what is required is specifically evidence that the defendant committed any other acts of child molestation." It also acknowledged that it had experienced some issues "get[ting] the CJC video in front of the [c]ourt" and that the court had not yet received a copy of the full interviews. But the State pointed to an unofficial transcription of a portion of Claudia's CJC video that the defense had included in its pleadings as containing evidence that the chalkboard incident included an act of sexual molestation. Plazola's counsel (Counsel) responded by focusing on the fact that whether the chalkboard incident included an act of sexual molestation "ha[d] been previously litigated and dismissed" during the preliminary hearing. The court ruled that evidence related to the chalkboard incident would be allowed at trial.
¶9 As to the CJC videos, Counsel again argued that under rule 15.5 the videos should not be admitted at trial due to the alleged victims' ages at the time of trial. The State responded that because Claudia and Maria would be testifying at trial, it did not intend to seek admission of the CJC videos under rule 15.5 but that it would seek admission of the videos under rule 801(d)(1)(B) of the Utah Rules of Evidence as prior consistent statements should the alleged victims' credibility be attacked by the defense during trial. The court agreed that the State's position was appropriate and ruled, "I'm going to conclude, [Counsel], . . . that if you do attempt to impugn the credibility of these witnesses, that the State would be able to offer those recordings as prior consistent statements."
¶10 The case then proceeded to trial. During his opening statement, Counsel addressed circumstances surrounding the paper airplane incident and told the jury, "[Y]ou will hear from witnesses who were at the party, whose testimony will lead you to the inevitable conclusion that the things that [Claudia] is going to testify about just couldn't happen." Counsel also briefly addressed the circumstances surrounding the laser tag allegations and stated similarly, "[M]ultiple witnesses will testify about things that also contradict what [Maria] is talking about occurred at the laser tag. Things that make it impossible for what she said happened [to] have happened."
¶11 Both Maria and Claudia testified for the State at trial. Maria testified regarding the laser tag incident, and Claudia testified regarding both the paper airplane incident and the chalkboard incident-this time recounting that Plazola "put his hand on [her] vagina" when he lifted her up to search for chalk. During his cross-examination of Claudia, Counsel led the following exchange regarding her preliminary hearing testimony, in which she had said she could not remember where Plazola had touched her during the chalkboard incident:
Q ..... Last year when you testified, you said you didn't remember where his hand was when he picked you up, and right now you said that [was] because you were uncomfortable; is that right?
A. Yeah.
. . . .
Q. So are you saying now that last year you knew his hand was on your vagina but you didn't say that last year?
A. Uh, yeah, kind of.
Q. And you said you didn't say that because it made you uncomfortable?
A. Yeah.
Q. You had promised to tell the truth, though, last year, right?
A. Yeah.
¶12 After the State called its remaining witnesses, including an expert who testified about the "typical way" a child "behave[s]" during a CJC interview, it moved for admission of the CJC videos under rule 801(d)(1)(B), pointing to several instances in opening statements and cross-examination of the alleged victims where Counsel had "impugn[ed] their credibility." Counsel responded that the State could have directly asked the alleged victims about the content of the videos and the statements made therein instead of "just showing . . . two 40-minute videos carte blanche to the jury." But the trial court granted the motion:
Because I foresaw this issue coming up, I specifically raised this morning with the parties the issue of evidence rule 801[(d)(1)(B)] because I wanted to make sure, [Counsel], you understood that if you attempted to impeach these witnesses that . . . they could be rehabilitated with those statements, and because there is in the record a . . . charge of recent fabrication by defense through your examinations of them, through your opening statement, I find that it is permissible . . . for the State to offer any prior consistent statements. Now, I haven't seen these interviews. I don't know if they are consistent. So on the representation of the State . . . that the interviews with [the] CJC are consistent with their testimony today, I will allow the State to play . . . those interviews.
Although the court permitted the admission of both CJC videos, only the video of Claudia's interview was ultimately presented to the jury, due to a language translation issue with the video of Maria's interview. The video of Claudia's interview was played for the jury in its entirety. Only a few minutes of her interview addressed the alleged touching during the chalkboard incident. Most of it concerned other matters, such as Claudia's interests, her neighborhood, and the airplane incident.
¶13 The jury found Plazola not guilty on the charge involving Maria and the laser tag incident, but it found him guilty on the charge involving Claudia and the paper airplane incident. Plazola was sentenced, and this appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶14 Plazola argues that the trial court erred in admitting evidence regarding the chalkboard incident under rule 404(c) of the Utah Rules of Evidence and in admitting the entire video of Claudia's CJC interview. Admission of evidence is generally reviewed for abuse of discretion. See Anderson v. Thompson, 2008 UT App 3, ¶ 25, 176 P.3d 464. Each of Plazola's claims of error, however, asserts a misunderstanding of the rules of evidence, which is a "threshold legal error" and "not a matter on which any deference is owing to the trial court." State v. Richardson, 2013 UT 50, ¶ 23, 308 P.3d 526. Accordingly, we review these claims for correctness. See id.
ANALYSIS
I. The Chalkboard Incident
¶15 Plazola contests the trial court's admission of evidence of the chalkboard incident at trial under rule 404(c) of the Utah Rules of Evidence. The general rule is that "[e]vidence 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." Utah R. Evid. 404(b)(1). Such evidence may be admissible, however, if it is used for a non-character purpose, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. R. 404(b)(2). Yet evidence of prior bad acts is not so limited in child molestation cases, which are specifically addressed in rule 404(c): "In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other acts of child molestation to prove a propensity to commit the crime charged." Id. R. 404(c)(1). "The drafters of our rules of evidence have determined, as a policy matter, that propensity evidence in child molestation cases can come in on its own terms, as propensity evidence, even if there is no other plausible or avowed purpose for such evidence." State v. Fredrick, 2019 UT App 152, ¶ 42, 450 P.3d 1154, cert. denied, 458 P.3d 748 (Utah 2020).
The State contends that Plazola failed to preserve this issue for review. However, "if the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation." State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up), cert. denied, 496 P.3d 718 (Utah 2021). Such is the case here. Furthermore, because we address this claim on the merits, we need not address Plazola's alternative arguments regarding the plain error and ineffective assistance of counsel exceptions to the preservation requirement.
¶16 Nevertheless, even when prior bad acts evidence falls under the rule 404(c) exception and may be used as propensity evidence, it must meet other evidentiary requirements. See, e.g., id. ¶ 43 ("Even though prosecutors need not articulate a non-character purpose for evidence of previous acts of child molestation in order to win its admission, they still must demonstrate that the proposed evidence comports with rules 402 and 403 of the Utah Rules of Evidence."). Specifically, the evidence must be relevant, see Utah R. Evid. 402, and its probative value may not be "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," id. R. 403.
¶17 The relevance requirement "is a low bar." State v. Thornton, 2017 UT 9, ¶ 61, 391 P.3d 1016. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Utah R. Evid. 401 (emphasis added). But if the relevance of a piece of evidence hinges (i.e., is conditional) on a showing that some fact actually occurred-for example, that a prior incident of child molestation occurred and the defendant was the culprit-then the court must first address that condition. Id. R. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible."). And the proponent of the evidence must introduce proof "sufficient to support a finding that the fact does exist." Id. R. 104(b). Thus, while it is ultimately the jury's role "to decide whether the condition of fact is fulfilled and to ultimately view the evidence as credible, it is the duty of the court to decide whether there is sufficient evidence upon which the jury could make such a determination." State v. Lucero, 2014 UT 15, ¶ 19, 328 P.3d 841 (cleaned up), abrogated on other grounds by Thornton, 2017 UT 9.
¶18 Accordingly, "[b]efore evidence may be admitted under [r]ule 404(c), the trial court should conduct a hearing out of the presence of the jury to determine . . . whether the accused committed other acts, which if committed in this State would constitute a sexual offense or an attempt to commit a sexual offense." Utah R. Evid. 404 advisory committee's note to 2008 amendment. At that hearing, the State must introduce proof "sufficient to support a finding that the fact [of prior sexual abuse] does exist." Id. R. 104(b).
¶19 Plazola contends that the State did not introduce proof at the rule 404(c) hearing sufficient to support a finding that he molested Claudia during the chalkboard incident because the only evidence before the court was Claudia's preliminary hearing testimony, which already had been deemed insufficient to support the charge of sexual abuse, and a partial, unofficial transcript of Claudia's CJC interview that appeared in Plazola's briefing. The State counters by arguing, among other things, that even if the court erroneously decided to admit evidence of the chalkboard incident without first ensuring that a jury could find that the incident included an instance of sexual molestation, the error was harmless because "[a]t trial, [Claudia] described Plazola lifting her up and moving his hand on her vagina during the chalkboard incident." We agree with the State.
¶20 "Under the harmless error doctrine, an error is harmless and does not require reversal if it is sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings." State v. Ray, 2022 UT App 95, ¶ 51, 516 P.3d 329 (cleaned up), cert. denied, 526 P.3d 827 (Utah 2022). Importantly, the alleged error here was not that the court allowed the jury to hear evidence of the chalkboard incident without that evidence being able to support a finding that the incident included an act of sexual molestation. That is because Claudia ended up testifying at trial that Plazola "put his hand on [her] vagina" when he lifted her up in search of chalk. The alleged error was the court's failure to ensure prior to its admission that the evidence would be sufficient to support a finding that the incident included an act of sexual molestation. And that error proved to be harmless since Claudia's trial testimony ended up providing the jury with the required evidentiary basis on which to find the conditional fact fulfilled. Thus, even assuming (but not deciding) that the court failed to ensure prior to its admission that the chalkboard incident evidence would support a finding that the incident included an act of sexual molestation, "[w]e do not reverse [the] trial court for committing harmless error." See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237.
This harmless error analysis may occasionally allow the admission of rule 404(c) evidence to stand in the absence of a proper pre-admission hearing. We trust, however, that courts will remain reticent to forgo a proper pre-admission hearing so as to avoid the potential for a mistrial that might follow the erroneous admission of evidence that suggests propensity but is insufficient to support a finding that sexual abuse actually previously occurred.
II. The CJC Interview
¶21 Plazola's other assertion of error is that the trial court plainly erred by allowing the entirety of the video of Claudia's CJC interview to be shown to the jury. "To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up). We agree with Plazola that presentation of the entire forty-minute video of Claudia's CJC interview to the jury amounted to plain error.
Because we resolve this issue based on plain error, we need not address the parties' preservation arguments related to this issue. See generally State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443 (recognizing plain error as an exception to the preservation requirement).
A. Error
¶22 The trial court admitted the video of Claudia's CJC interview under rule 801(d)(1)(B) of the Utah Rules of Evidence. This rule provides that a declarant's out-of-court statement "is not hearsay" if "[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying." Utah R. Evid. 801(d)(1)(B).
¶23 During his opening statement at trial, Counsel addressed circumstances surrounding the paper airplane incident and told the jury, "[Y]ou will hear from witnesses who were at the party, whose testimony will lead you to the inevitable conclusion that the things that [Claudia] is going to testify about just couldn't happen." And after Claudia testified that Plazola "put his hand on [her] vagina" when he lifted her up during the chalkboard incident, Counsel elicited a concession from her on cross-examination that during the preliminary hearing she had testified that she "didn't remember where [Plazola's] hand was" when he picked her up, even though she had "promised to tell the truth." The State then argued that because Counsel's opening statement and cross-examination had "impugn[ed] [Claudia's] credibility," the video of her CJC interview-which was consistent with her trial testimony-should be admitted to "rehabilitate" her credibility.
¶24 The court ruled that Claudia's CJC interview was admissible, explaining that there had been a "charge of recent fabrication" through Counsel's examination of Claudia and through his "opening statement." The court noted that it had not seen the video of the interview and, thus, "[didn't] know if [the interview was] consistent" with Claudia's trial testimony. But "on the representation of the State" that her videotaped interview was consistent with her testimony, the court admitted the interview in its entirety. The court's ruling contained two key errors.
¶25 First, the court erred by determining that Counsel's opening statement warranted admission of the CJC interview under rule 801(d)(1)(B). "Rule 801(d)(1)(B) applies only to premotive, consistent, out-of-court statements." State v. Bujan, 2008 UT 47, ¶ 11, 190 P.3d 1255. The purpose of the rule "is to admit statements that rebut a charge of recent fabrication or improper influence or motive, not to bolster the believability of a statement already uttered at trial." Id. Thus, only a statement "that directly rebuts charges of recent fabrication is appropriate." Id. ¶ 10; see also Tome v. United States, 513 U.S. 150, 157-58 (1995) ("The [r]ule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told.").
In interpreting Utah's rule 801(d)(1)(B), our supreme court has previously relied on the United States Supreme Court's interpretation of rule 801(d)(1)(B) of the Federal Rules of Evidence in Tome v. United States, 513 U.S. 150 (1995), because "our rule is analogous" to the federal rule. State v. Bujan, 2008 UT 47, ¶ 8, 190 P.3d 1255.
¶26 Counsel's comment about the paper airplane incident during his opening statement-that the jurors would "hear from witnesses . . . whose testimony [would] lead [them] to the inevitable conclusion that the things that [Claudia] [would] testify about just couldn't happen"-was not a charge of improper motive or recent fabrication. It was an assertion that Claudia's testimony and other witnesses' testimony would be irreconcilable and that the other witnesses' testimony would be more believable. Because rule 801(d)(1)(B) is not a vehicle to "bolster the believability" of a particular witness or statement, Bujan, 2008 UT 47, ¶ 11, Counsel's opening statement was not a proper basis for the admission of the CJC interview under rule 801(d)(1)(B).
¶27 Second, while the court rightly determined that Counsel's cross-examination of Claudia invited admission of portions of the CJC interview, it erred in admitting the entire interview. When a prior oral out-of-court statement is offered to rebut a charge of recent fabrication, portions of the statement that go "beyond the information necessary to rebut the charges of recent fabrication" are inadmissible. Id. ¶ 10. "Pursuant to the rule of completeness, . . . the standard for admitting oral statements is only admission of those things that are relevant and necessary to qualify, explain, or place into context the portion of testimony already introduced." Id. (cleaned up); see also id. (concluding that admission of a detective's "entire conversation" with a witness was improper "because it went beyond the information necessary to rebut the charges of recent fabrication"); State v. Thomas, 777 P.2d 445, 449-50 (Utah 1989) (determining that the court erred in admitting testimony that "was not limited to simply rebutting" claims but included "the full content of [an] interview"); State v. Sibert, 310 P.2d 388, 392 (Utah 1957) (holding that "[i]nsofar as [an officer's] testimony actually supported the parts of [the witness's] testimony upon which impeachment was attempted," the evidence "was properly admitted" but that to the extent "the officer was permitted to go beyond [this] . . . and to give the other details of [the witness's] story," the out-of-court statement "was improperly admitted").
¶28 Counsel's cross-examination of Claudia, highlighting the difference between her trial testimony that Plazola "put his hand on [her] vagina" during the chalkboard incident and her preliminary hearing testimony that she could not remember where he touched her during that incident, implied that Claudia had recently fabricated the assertion that Plazola touched her vagina. This is especially so where Counsel emphasized that Claudia had "promised to tell the truth" during the preliminary hearing. Thus, the portions of the CJC interview where Claudia said that Plazola touched her buttocks and genitals during the chalkboard incident were admissible to rebut the suggestion that she had only recently fabricated that assertion. So too were any portions of the CJC interview that were necessary to "qualify, explain, or place into context" her statement that Plazola had touched her buttocks and genitals during the chalkboard incident. Bujan, 2008 UT 47, ¶ 10 (cleaned up). But all other portions of the CJC interview remained inadmissible under rule 801(d)(1)(B).
The court's error of allowing a presentation to the jury of inadmissible portions of the interview was both facilitated and amplified by its ruling on the issue without ever having viewed the video. "To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means." Utah R. Evid. 103(d). A court will inevitably find it difficult to comply with this mandate if it does not know what is contained in the nontestimonial evidence it admits over a party's objection.
B. Obviousness ¶29 The errors that prompted the trial court to admit the interview in its entirety-rather than admit only appropriate portions of it-should have been obvious to the trial court. "An obvious error is one that contravenes settled appellate law." State v. Isom, 2015 UT App 160, ¶ 28, 354 P.3d 791 (cleaned up), cert. denied, 364 P.3d 48 (Utah 2015). And the law related to the trial court's errors was settled at the time of Plazola's trial. See State v. Bujan, 2008 UT 47, ¶¶ 10-11, 190 P.3d 1255 (emphasizing that rule 801(d)(1)(B) is not a vehicle to "bolster the believability" of a particular witness or statement, that "[o]nly testimony that directly rebuts charges of recent fabrication is appropriate," and that statements going "beyond the information necessary to rebut the charges of recent fabrication" are inadmissible); State v. Thomas, 777 P.2d 445, 449-50 (Utah 1989) (finding error where the court admitted "the full content of [an] interview" rather than the portions "limited to simply rebutting" claims); State v. Sibert, 310 P.2d 388, 392 (Utah 1957) (differentiating between evidence "properly admitted as rehabilitating testimony" and evidence "improperly admitted" because it went beyond that purpose).
C. Harm
¶30 The trial court's errors were also harmful to Plazola. Factors relevant to the inquiry of whether erroneously admitted evidence was harmful to a defendant include "the relative importance of the [evidence], whether the [evidence] was cumulative, the presence or absence of corroborating or contradicting evidence, the extent of cross-examination, the degree of emphasis placed on the evidence by the prosecution, and the overall strength of the prosecution's case." State v. McNeil, 2013 UT App 134, ¶ 64, 302 P.3d 844, aff'd, 2016 UT 3, 365 P.3d 699. These factors weigh heavily in favor of a determination that the erroneous admission of Claudia's full CJC interview was harmful to Plazola.
¶31 Neither Claudia's nor Maria's allegations of sexual abuse by Plazola were supported by physical evidence. No testimony from other witnesses directly supported their accounts. And the State placed considerable emphasis on Claudia's CJC interview. In that regard, the video occupied the last nearly forty minutes of the roughly four hours the State devoted to presenting evidence, and the State told the jury in closing:
You watched the [C]C] video of [Claudia]. You saw that little girl talking about what happened to her a long time ago, back in 2017, and how consistently she . . . testified here. You saw her demeanor and how that . . . was consistent with what the expert said, how [children] would act. You saw her innocence as she was attempting to show the interviewer her neighborhood directions with a piece of clay.
Notably, by encouraging the jury to fall sway to emotion by considering Claudia's "innocence" as she described her neighborhood to the interviewer, the State invited the jury to focus on inadmissible portions of the video and use it in an impermissible way. Cf. State v. Akok, 2015 UT App 89, ¶ 30, 348 P.3d 377 ("The prosecutor's final statement in closing argument appealed to the jurors' emotions, and it was therefore improper . . . ."). The video also included a hearsay-upon-hearsay statement that could have been interpreted as an allegation of other inappropriate touching by Plazola of a neighborhood child, which statement the State had conceded in pretrial pleadings should be redacted. Finally, although the type, quantity, and quality of evidence supporting the two charges was otherwise quite similar, Plazola was convicted of the charge related to Claudia, whose CJC interview was played for the jury, but acquitted of the charge related to Maria, whose CJC interview was not played for the jury. See State v. Klenz, 2018 UT App 201, ¶ 71 n.15, 437 P.3d 504 ("We recognize that under some circumstances a mixed verdict can indicate that the jury was conflicted about the evidence and the competing versions of events offered by the victim and the defendant, and that therefore the elimination of certain evidence may very well have mattered." (cleaned up)), cert. denied, 437 P.3d 1249 (Utah 2019). For these reasons together, we believe there is a reasonable likelihood that there would have been a more favorable outcome for Plazola-acquittal on both charges-had admission of Claudia's CJC interview been appropriately limited. We therefore vacate Plazola's conviction and sentence, and we remand the matter for a new trial.
CONCLUSION
¶32 Even assuming that the trial court erred by admitting evidence of the chalkboard incident, that error proved to be harmless. However, the trial court committed plain error by admitting the whole of Claudia's CJC interview under rule 801(d)(1)(B) when nearly all of the interview's contents constituted inadmissible hearsay. On that basis, we vacate Plazola's conviction and sentence, and we remand the matter for a new trial.