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April 2, 2026 Get Citation Alerts Download PDF Add Note

State v. Draughon

Court of Appeals of Utah

• Citations: 2026 UT App 52

• Docket Number: Case No. 20240514-CA

• Opinion

• Authorities (39)

• Cited By (0)

• Summaries (0)

• Similar Cases (929)

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Combined Opinion

2026 UT App 52

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DAMIEN MICHAEL DRAUGHON,
Appellant.

Opinion
No. 20240514-CA
Filed April 2, 2026

Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 211910521

Nathalie S. Skibine, Attorney for Appellant
Derek E. Brown and Daniel W. Boyer,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

MORTENSEN, Judge:

¶1 Damien Michael Draughon married a woman who had
two children from a prior relationship. He subsequently
developed what he acknowledged was an inappropriate
relationship with one of those children, a thirteen-year-old girl
we’ll refer to as Sarah. One day, Sarah’s mother found
incriminating text messages between Draughon and Sarah.
Authorities investigated the matter and charged Draughon with
six counts of child sexual abuse, two counts of dealing in materials
harmful to a minor, and one count of obstruction of justice. A jury
convicted Draughon on all of the charges aside from one of the
sexual abuse counts, which the State dropped prior to trial. He
now challenges those convictions on appeal by raising several
State v. Draughon

issues, including that Sarah’s testimony was inherently
improbable and that his trial counsel was ineffective in failing to
object to the introduction of a recording of a problematic
telephone conversation between Draughon and Sarah’s mother.
We reject all of his claims and affirm his convictions.

BACKGROUND 1

The Abuse

¶2 Draughon married Sarah’s mother (Mother) in 2017 when
Sarah was nine years old. Mother also had another child (Brother)
from the previous relationship, and Draughon and Mother
subsequently had a child of their own. Sarah’s relationship with
her biological father had deteriorated over the years, and she
came to view Draughon as her “real dad.” According to Sarah,
Draughon was “there for [her]” and would help her with “school
stuff.” Although Mother initially believed the relationship
between Sarah and Draughon was “a good thing,” she started
feeling uneasy with it as Draughon became “openly more
affectionate” with Sarah and as the two “spent more and more
time together.” When Mother told Draughon that she was
uncomfortable with the nature of his relationship with Sarah,
Draughon “pushed back that [the] relationship was normal.”

¶3 When Sarah was twelve or thirteen years old, Draughon
began touching her “in inappropriate ways.” On one occasion,
Sarah was washing dishes when Draughon, who had been
cooking, walked up behind her, placed “his hands under [her]

1. “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Barlow, 2025 UT App 152, n.2, 579 P.3d 422 (cleaned up).

20240514-CA 2 2026 UT App 52
State v. Draughon

shirt,” and touched her breasts with “two of his fingers.” This
encounter lasted five minutes until Brother “walked in,” at which
point Draughon “took his hands out of [Sarah’s] shirt slowly and
just went back to cooking.” Neither Draughon nor Brother said
anything at the time. We refer to this as “the First Kitchen
Incident.”

¶4 On another occasion, Sarah was washing dishes again
when Draughon, who had again been cooking, “touched [her]
butt over [her] shorts.” He stood there talking to Sarah while
holding his hand “directly over [her] butt cheek.” Sarah felt like
she couldn’t move because Draughon was “directly behind” her.
The touching stopped when Draughon walked away and
resumed cooking.

¶5 On still another occasion, Draughon had his hand on
Sarah’s breast over her shirt while they were sitting on a recliner
and watching a television show. We refer to this encounter as “the
Recliner Incident.” 2

¶6 Most nights, the family would watch shows in Draughon’s
bedroom before bed. On one of those occasions, Sarah and
Draughon were lying on the bed under a blanket when he “put
his hand under [Sarah’s] shorts and underwear and . . . over [her]

1. When the State asked Sarah about the Recliner Incident at trial, she initially testified that she didn’t remember a time other than the First Kitchen Incident and another, uncharged incident that occurred on another occasion when the family was watching a show in Draughon’s bedroom and Draughon touched Sarah’s breasts. When the State began asking her about the Recliner Incident, Sarah said that Draughon had touched the underwire of her bra while they were sitting on the recliner and then “put his hand on [her] butt.” The prosecutor then refreshed Sarah’s recollection under rule 803(5) of the Utah Rules of Evidence, after which Sarah testified to the facts stated above.

20240514-CA 3 2026 UT App 52
State v. Draughon

butt cheek” and squeezed “[r]eally hard” for thirty minutes. Sarah
was “scar[ed],” “really uncomfortable,” and “really out of [her]
safe place.” Draughon temporarily stopped when Sarah shifted
her body but would resume after Sarah finished moving. The
touching stopped when Sarah got up and went to bed. Draughon
did not say anything to Sarah during this encounter.

¶7 Draughon frequently touched Sarah’s buttocks on other
occasions when the family watched shows before bed, although
she largely couldn’t remember the “specifics” of these encounters.
But she did remember that Draughon would touch her both over
and under her clothes and apply significant pressure. The
encounters would end either when she’d shift her body or
Draughon “would randomly stop.”

¶8 On another occasion, Draughon had taken Sarah to work
with him, and the topic of pornography came up. Sarah told
Draughon that she was “interested” in watching pornography.
Draughon then shared three pornographic videos with Sarah, two
of which she watched and the other she did not.

Mother Discovers Incriminating Text Messages and Confronts
Draughon

¶9 One day, Mother was in the kitchen when she had a “gut
feeling to open [Draughon’s] iPad.” Mother became “immediately
concerned” when she saw messages in which Draughon had
asked Sarah whether “she was naked,” “what she was doing,”
whether “she enjoy[ed] that,” and how had she felt when she
“watched that.” Mother took photos of some of the text messages
and then called Draughon. He denied showing Sarah
pornography. Believing that Draughon was “gaslighting” her,
Mother hung up the phone. A few minutes after Mother ended
her conversation with Draughon, Sarah walked into the kitchen.
Mother asked Sarah whether Draughon had shown her

20240514-CA 4 2026 UT App 52
State v. Draughon

“pornography the last two days.” Sarah acknowledged that
Draughon had done so.

¶10 Later that day, Mother was at work when she texted her
friend (Friend), saying that she needed help. Mother texted the
photos of the messages to Friend, who responded by asking
Mother where she was. When Mother responded that she was at
work, Friend told her that she needed to go home. Mother then
scheduled an “emergency appointment” with her counselor, and
she meant to call the counselor when she left work. Instead, she
“went into muscle memory and accidentally called” Draughon,
whose calls she had been ignoring since their conversation earlier
in the day. Draughon stated that what Mother saw was part of a
“normal father/daughter relationship.” Mother responded, “This
is not normal. This is not okay. Do not come home.” Mother drove
home, where she met Friend. She also asked Sarah whether
anything else had happened with Draughon besides the
pornography. Sarah said, “No.”

¶11 Mother then called both Child Protective Services (CPS)
and the local police department to report the incident. She also
shared the photos of the text messages with Draughon’s father
and asked him to retrieve Draughon’s belongings from the house.
Throughout that night, Draughon asked to speak with Mother.
She decided that when she was ready, she would give Draughon
ten minutes to “explain himself.”

¶12 With Friend present, Mother eventually called Draughon
with the speakerphone activated. During the conversation,
Draughon admitted to showing Sarah pornography. Mother told
Draughon that she had reported the incident to CPS but not the
police. Draughon stated that what he “did was a felony,” and he
indicated that he had contacted a lawyer. The following exchange
also occurred:

20240514-CA 5 2026 UT App 52
State v. Draughon

Draughon: I fucked up, you know. I’m so sorry that
I did, but I did. I’m so sorry. I love you so much.
I love our kids so much. Everything I did was
wrong and I’m sorry.

Mother: Yeah. But then [Sarah] came back and said
that you were talking to her while she was
watching [one of the pornographic videos] and
asking her how she felt and how her body
felt . . . .

Draughon: I know . . . everything was inappropriate.

Mother: So you have attractions to [Sarah]?

Draughon: They’re complex.

Mother: No. You can be honest right now.

Draughon: This is all to be talked through therapy.

Mother: You can’t be honest with me right now?

Draughon: I never was attracted to [Sarah].

Mother: Yes, you were. You told her in the sauna
multiple times.

Draughon: Until—no, no, listen to me. I never was
attracted to her until she went through puberty,
but I had never, ever—thank you for finding out
before anything worse happened. Thank you.

Mother: Was something worse going to happen?

Draughon: No. Obviously, I was out of my control. I
am sick, obviously. I (inaudible) so sorry. I don’t
know what to say or do.

20240514-CA 6 2026 UT App 52
State v. Draughon

....

Mother: So how long has this been going on?

Draughon: What?

Mother: The inappropriateness between you two,
asking her if she is naked.

Draughon: A couple weeks. It’s not like I [sought] it
out. . . .

Mother: [Y]ou did too . . . . There’s multiple times in
there. Don’t. If you want to be honest—

....

Draughon: I’m telling you. I’m telling you.

Mother: I am telling you, I read your messages.
You’re asking her if she is naked. You are asking
her if she took her clothes off because I left for
work. You’re initiating and asking things.

Draughon: I know it looks a lot worse. It’s not—

Mother: No, it is a lot worse. It’s not that it looks a lot
worse. There is no way around that. There is no
way to take out context. You’re specifically
asking her inappropriate things.

Draughon: I know. I know I’m wrong. I was wrong.
I don’t know what to do.

....

Draughon: I don’t know what you want me to say.

20240514-CA 7 2026 UT App 52
State v. Draughon

Mother: I don’t know. I want you to be honest.

Draughon: I am being honest . . . .

Mother: So, you’ve been attracted to [Sarah] since
she went through puberty?

Draughon: No, no. I’m not attracted to her all the
time.

Mother: You just said that.

Draughon: I said that was when it started, but . . . it’s
not like I’m sexually attracted to her. It’s hard to
explain.

Mother: Yes, you are.

Draughon: No, I’m not. I don’t want to have sex with
our daughter. It’s a much more nuanced thing.
It’s not. I don’t want to have sex with our
daughter . . . .

Mother: So what is it, . . . because you were taking
steps towards that. You were grooming her. Your
dad confirmed that from reading the text
messages.

Draughon: Thank you for just involving everyone in
the world before talking to me.

....

Mother: So what’s the nuance behind it?

Draughon: It’s not like I covet our daughter. I love
her deeply, just like I love you, and then the other
(inaudible)—

20240514-CA 8 2026 UT App 52
State v. Draughon

Mother: [Y]ou put more sexual attention towards
our daughter than me, also. So you covet her like
what?

Draughon: I don’t covet her.

Mother: You just said that.

Draughon: I don’t want to have sex with our
daughter. I said, “It’s not like I covet our
daughter.” I don’t.

....

Mother: I want to know what else has been going on.
What [is] CPS going to find? You have an
opportunity to be honest and open with me.

Draughon: Nothing.

Mother: Before I find something from them.

....

Mother: [I]s there anything else? Any more
conversations like that? Anything else that’s
going to come up that you haven’t been
forthright about or/and I haven’t found?

Draughon: No, you won’t. I have not done anything
other than what we’ve talked about already.

Mother: What about all the times you cuddled?

Draughon: No.

20240514-CA 9 2026 UT App 52
State v. Draughon

Mother: You said you were excited to come home
. . . , and I was at work for you two to have alone
time. You said that to her.

Draughon: That’s completely harmless. It was not
sexual.

Mother: No, it’s not harmless because you were
coming home to put porn on for [Sarah], so it’s
not harmless.

Draughon: That happened on Monday and Tuesday
and I already told you about that.

Mother: Yes, . . . you told me after I found it.

Draughon: I know. I was honest about it.

Mother: [Y]ou weren’t. You said you weren’t trying
to hide it.

Draughon: I didn’t hide it once you asked me about
it.

Mother: So why—it excited you to come home and
have alone time to put porn on for her, correct?

Draughon: No.

Mother: You—that’s what you said to her.

Draughon: It didn’t excite me.

Mother: You said that to her. So you’re going to have
to be honest with yourself. You’re going to have
to be honest with me also.

Draughon: I’m being honest with you.

20240514-CA 10 2026 UT App 52
State v. Draughon

Mother: Is there anything else you need to say?

....

Mother: This is, like, an emotional, sexual affair on
our marriage. And I’ve been communicating to
you for weeks that I felt like your relationship
was inappropriate about the cuddling. Like, it’s
been an ongoing thing and you still pressed
forward through it.

Draughon: I’m not sexually attracted to our
daughter. I love her deeply.

Mother: You just disregarded everything I said to
you . . . .

Draughon: I’m not sexually attracted to her.

Mother: That’s not what I said to you . . . .

Draughon: You told me that you thought it was . . .
inappropriate and I agree.

Mother: [A]ll the cuddling and the relationship, I’ve
been telling you for weeks I felt that was
inappropriate.

Draughon: I said I’m sorry. Like I said, I’m sorry.

....

Draughon: (inaudible) doesn’t matter what I say to
you. You’ve already decided in your head and I
understand that. I failed you and I’m sorry.

Mother: Yeah, but I’ve been trying—

20240514-CA 11 2026 UT App 52
State v. Draughon

Draughon: [T]he cuddling was innocent. I’m telling
you there was no sexual—

Mother: [N]o, but it’s all a step closer towards what’s
been going on.

....

Mother: Why when I’m telling you I can see things
and have a gut feeling that things are going on
and going in the wrong direction, why can’t you
listen to me? Why did you just disregard me, and
treat me like I’m stupid, and that I was crazy, and
I’m imagining things?

Draughon: Because I’m ill, obviously. I’m a bad
person . . . . I’m a bad person. I treated you
terribly. You didn’t deserve it.

After the phone call ended, Friend revealed to Mother that she
had recorded most of the conversation, and she shared a copy of
the recording with Mother. The day after the conversation,
Draughon performed a factory reset of the iPad.

Draughon Is Arrested and Charged

¶13 The authorities investigated the allegations, and Sarah
apparently retreated from her initial denial, disclosing to police
that Draughon had inappropriately touched her on several
occasions. Draughon was arrested three months after Mother
discovered the incriminating text messages on his iPad, and he
was initially charged with six counts of aggravated sexual abuse
of a child, one count of obstruction of justice, and two counts of
dealing in materials harmful to a minor. The obstruction charge
was based on his factory reset of the iPad, and the harmful
materials charges were related to the pornographic videos that he
shared with Sarah. Prior to trial, one of the sex abuse charges was

20240514-CA 12 2026 UT App 52
State v. Draughon

dropped, and the remaining five corresponded with the incidents
already described. See supra ¶¶ 3–7.

Draughon Is Convicted on All Counts

¶14 The case proceeded to a jury trial. At the beginning of the
trial, the court read the charging document to the jury. In so doing,
the court informed the jury of the classifications for each of the
eight counts. Thus, the jury was told that Draughon was charged
with five first-degree felonies, one second-degree felony, and two
third-degree felonies. Draughon’s trial counsel (Counsel) did not
object to the references to the classifications of the offenses.

¶15 The State called eight witnesses, including Sarah, Mother,
Brother, and a forensic psychologist (Expert). The witnesses
testified to the events noted above.

¶16 In addition, Sarah testified about other uncharged
incidents to the jury. She described incidents similar to the
conduct underlying the charges. She also testified that when she
was thirteen years old, Mother bought her a dildo at Draughon’s
urging. Draughon would ask Sarah if she “had tried new things”
or “wanted to learn how to do things” with the dildo. On one
occasion he used the dildo to teach her “how to do a blow job . . .
and then a hand job” in her room. During this encounter,
Draughon lay on the bed, put the dildo “on his groin area,” and
had Sarah place the dildo in her mouth and “go up and down on
it.” This lasted about one minute. Draughon then had Sarah place
her hands on the dildo, which was “[s]till on his groin,” and move
her hands “up and down.” Draughon then told Sarah that if she
“can make a man come, then [she’s] in charge.”

¶17 Sarah also testified that, on at least one other occasion
when she was thirteen, she and Draughon were lying on his bed
when he placed his hand under her shorts but over her underwear
and touched her above her vagina. Sarah told Draughon that the

20240514-CA 13 2026 UT App 52
State v. Draughon

touching made her feel “really, really uncomfortable.” Draughon
then removed his hand from Sarah’s shorts.

¶18 While Sarah was on the witness stand, the State further
introduced a tranche of text messages that Draughon had sent to
her.

• In one exchange, Draughon said, “Mom was grumpy last
night. With you when I [was] joking around like we do.”
Sarah responded, “Yeah. She looked at me VERY
judgmental when you told her I like to suck on my dildo.”
Draughon then said, “She is acting uptight about it. We
need to not joke about it around her anymore, I guess.
And/or even talk about any of that stuff anymore. Around
her that is. We didn’t do anything wrong. I’m sorry, I
shouldn’t of told her. It just slipped out.”

• In another, Draughon stated, “Thank you for including me
in all your sexuality issues. It means so much to me that
you trust me enough to share it with me. I love you too
much.”

• In other messages, Draughon asked her about the dildo and
referred to it by nicknames.

• On at least two occasions, Draughon texted Sarah about her
being naked and alone at home.

• Draughon also texted Sarah about their “cuddles.” Those
texts included, “Wish I was at home with you. Cuddling.”;
“I love our cuddles.”; and “I feel like I never get enough of
your cuddles.” 3

1. Sarah testified that these “were the same cuddles that [Draughon] would touch . . . [her] breasts and [her] butt.”

20240514-CA 14 2026 UT App 52
State v. Draughon

• Draughon frequently messaged Sarah to compliment her
on how her “butt” looked. Those texts included, “Your butt
looks really good in those shorts.”; “Your butt always looks
good though. Ha ha. Cutest little booty ever.”; “Do you like
swimming as much as you like . . . boys looking at your
cute butt in your bikini?”; “I can’t blame them you have the
cutest butt in the world. Ha ha. They should have some
common courtesy and look away though before you catch
them staring.”; “You do look GOOD in your bikini. Too
good for a dad to comfortable.”; and “Newsflash!! Your
butt looks good in anything you wear.”

• In still another exchange, Sarah said that she was “in pain.”
Draughon responded, “I am sorry wish I could help you.
Or at least be there to give you a big hug and rub your
butt.”

• In another message, Draughon said, “The other day when
. . . I walked up and kissed you on the lips, and you didn’t
make a weird noise and let me do it made my day.”

• On another occasion, Draughon texted Sarah, “Mom has
really nice nipples . . . . I am sure that you were going to
have the same[.]”

• In yet another exchange, Draughon texted Sarah one
morning asking how she slept. She responded, “I slept
okay. I’m going to get in the bath to make my cramps go
away. How did you sleep?” Draughon responded, “I slept
really well except for the fact that I woke up once in the
middle of the night with the Stiffy. Ha ha. I am sorry you
have cramps.”

¶19 The State then called Mother and introduced the recording
of the phone call. Mother testified that, at the time, she did not
know that Friend had been recording the call. Counsel did not
object to any portion of the recording.

20240514-CA 15 2026 UT App 52
State v. Draughon

¶20 Brother testified that he walked into the living room one
day and saw Draughon dancing with Sarah with his hands
“cupped around” her “breast area.” Brother testified that
Draughon’s hands were under Sarah’s shirt but that he could not
tell whether they were under her bra. Brother also stated that
Draughon “kind of push[ed]” Sarah away and “walk[ed] into the
kitchen” when Brother walked into the room. Brother also stated
that the family gathered “nearly every night” to watch a television
show or a movie and that Draughon and Sarah would frequently
cuddle together, with Draughon occasionally “caressing [Sarah’s]
thigh or her butt.”

¶21 Expert testified as a “blind expert,” which he defined as
“someone who doesn’t know any of the facts of a given case.” He
explained that his job was to provide the jurors with information
that they “may or may not find useful as they consider the facts of
the case.” Among other things, Expert discussed grooming, which
he defined as “a pattern in which a person who is reported to have
abused somebody takes steps to reduce resistance or inhibition
from the person reported being abused.” He offered various
examples of grooming behaviors, including giving the abused
child toys and treats, facilitating “incidental touch” with the child,
and otherwise “expos[ing] the child to sexually explicit content.”
Counsel did not object to Expert’s grooming testimony.

¶22 After the State rested its case, Draughon called four
witnesses, including his father and himself. Draughon’s father
testified that he had worked in law enforcement for forty years
before retiring and, for most of that time, one of his primary
responsibilities was investigating crimes against children. On
cross-examination, Draughon’s father acknowledged that he had
spoken with Mother on the day she found the incriminating text
messages on Draughon’s iPad, but he stated that he had “no
recollection” of telling her that Draughon’s conduct “sounded like
grooming.”

20240514-CA 16 2026 UT App 52
State v. Draughon

¶23 For his part, Draughon admitted showing Sarah
pornography. 4 He also conceded that most of the text messages
were authentic, aside from one in which he was alleged to have
said, “I can’t wait to come home and rub your butt.” He also
acknowledged that the text messages had gotten “worse and
worse” and that they were “wrong” and “inappropriate,” but he
did try to explain that those messages were part of “an open
dialogue about [Sarah’s] puberty and the development of her
body.” He also admitted kissing Sarah on the lips but stated that
it was a “peck” to say, “I love you,” and wasn’t sexual. Draughon
similarly denied that he had inappropriately touched Sarah or
that he made her place her hands and mouth on the dildo while
he was holding it to his groin.

¶24 After Draughon testified, the defense rested. Counsel then
moved for a directed verdict on the sexual abuse counts, arguing
as follows:

[T]he State has alleged certain conduct with respect
to each count, hand on breast while on the recliner,
hand on breast in the kitchen, hand on the butt in
the kitchen—defendant’s bed. [Sarah] testified to
much different conduct than that. Her brother
testified to even a third level of contact that was not
established by any of these counts. So I don’t believe
that there is sufficient evidence for any of Counts 1
through 5 for which a reasonable jury could find a
conviction . . . because we’re just all over the place
in terms of what happened and when and where.
And that’s the basis of my motion.

1. Indeed, during opening argument, Counsel had conceded that there was sufficient evidence to convict Draughon on the two dealing-in-harmful-materials counts.

20240514-CA 17 2026 UT App 52
State v. Draughon

The court denied the motion, ruling that there was enough
evidence to send each count to the jury. The jury convicted
Draughon on all eight counts, and the district court later
sentenced him to prison.

ISSUES AND STANDARDS OF REVIEW

¶25 Draughon appeals, raising numerous issues. First, he
argues that the district court erred in denying his motion for a
directed verdict because (1) Sarah’s testimony was inherently
improbable and (2) the evidence related to the Recliner Incident
was insufficient. “We review the district court’s denial of a motion
for directed verdict for correctness.” State v. Hofeling, 2025 UT App
180, ¶ 14, 582 P.3d 1263 (cleaned up), petition for cert. filed, Feb. 11,
2026 (No. 20260176). Nonetheless, we defer to a “court’s ability
and opportunity to evaluate credibility and demeanor” and will
reverse a “court’s decision to decline to disregard a witness’s
testimony due to inherent improbability . . . only if it was clearly
erroneous.” State v. Skinner, 2020 UT App 3, ¶ 20, 457 P.3d 421
(cleaned up). Similarly, when addressing a general sufficiency of
the evidence challenge to a court’s denial of a directed verdict, we
will sustain the ruling “if, when viewed in the light most favorable
to the State, some evidence exists from which a reasonable jury
could find that the elements of the crime have been proven
beyond a reasonable doubt.” Hofeling, 2025 UT App 180, ¶ 14
(cleaned up). 5

¶26 Draughon also asserts that Counsel was ineffective for
(1) failing to move to suppress all or part of the phone call between
Draughon and Mother and (2) not objecting to Expert’s testimony

1. On his inherent improbability argument, Draughon argues in the alternative that Counsel was ineffective in failing to argue that the evidence was inherently improbable to support his convictions.

20240514-CA 18 2026 UT App 52
State v. Draughon

on grooming. He further maintains that the district court plainly
erred when, during opening instructions, it informed the jury that
the child sex abuse counts were first-degree felonies. “Claims for
plain error and ineffective assistance of counsel present questions
of law, which we determine in the first instance as a matter of
law.” State v. Thomas, 2025 UT App 145, ¶ 15, 579 P.3d 416 (cleaned
up).

¶27 Finally, Draughon argues that he was prejudiced by the
combined effect of each of the asserted errors. On a claim of
cumulative prejudice, “we apply the standard of review
applicable to each underlying claim of error.” State v. McNeil, 2013
UT App 134, ¶ 16, 302 P.3d 844 (cleaned up).

ANALYSIS

I. Directed Verdict

¶28 Draughon argues that the district court erred in denying
his motion for a directed verdict because (1) Sarah’s testimony
was inherently improbable and (2) the evidence was insufficient
to convict on the count related to the Recliner Incident. As we
explain below, Draughon failed to preserve his inherent
improbability argument, so we address that issue under an
ineffective assistance of counsel standard. Draughon’s general
sufficiency argument simply fails on its merits.

A. Inherent Improbability Argument

1. Preservation

¶29 When Counsel moved for a directed verdict, he argued in
general terms that the evidence wasn’t sufficient to support any
of the child sexual abuse charges. The State argues that this wasn’t
enough to preserve Draughon’s inherent improbability argument

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State v. Draughon

under our caselaw. Draughon pushes back, arguing that “where
it was undisputed that [Sarah] made the allegations and the only
issue was credibility, the court would have understood” that the
motion raised inherent improbability because Counsel argued
“that the testimony was inconsistent and all over the place in
terms of what happened.” We agree with the State that the
inherent improbability argument was not preserved.

¶30 “An appellant must properly preserve an issue in the
district court before it will be reviewed on appeal.” Cove at Little
Valley Homeowners Ass’n v. Traverse Ridge Special Service Dist., 2022
UT 23, ¶ 23, 513 P.3d 658 (cleaned up). A party preserves an issue
by presenting it in a way that enables the district court to rule on
it. See, e.g., State v. Doyle, 2018 UT App 239, ¶ 13, 437 P.3d 1266.
Although “the preservation analysis does not turn on the use of
magic words or phrases,” Scott Anderson Trucking Inc. v. Nielson
Constr., 2020 UT App 43, ¶ 23, 462 P.3d 822 (cleaned up), an issue
must nonetheless be “timely” and “specifically” raised and be
supported with “evidence or relevant legal authority” in the
proceedings below, State v. Gallegos, 2018 UT App 112, ¶ 14, 427
P.3d 578 (cleaned up). “In the context of inherent improbability,
we have repeatedly clarified that a defendant who wants a trial
court to disregard a witness’s testimony under [State v. Robbins,
2009 UT 23, 210 P.3d 288,] before, or in connection with,
undertaking a sufficiency-of-the-evidence review must make that
request known to the trial court so that the court has an
opportunity to rule on the issue.” State v. Hernandez, 2025 UT App
90, ¶ 24, 572 P.3d 1156 (cleaned up), cert. denied, 574 P.3d 524 (Utah
2025).

¶31 Here, Counsel did not argue that Sarah’s testimony was
“inherently improbable,” at least “as that term is understood
under Utah precedent,” see id., namely, that Sarah’s testimony was
“so counter to human experience” that it was “inappropriate for
consideration in sustaining a finding of guilt,” see State v. Jok, 2021
UT 35, ¶ 36, 493 P.3d 665 (cleaned up). Nor did Counsel cite

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State v. Draughon

Robbins or any other authority to indicate that he was making an
inherent improbability argument.

¶32 Counsel did argue that Sarah recounted “much different
conduct” from the allegations underlying the charges. While
Sarah testified to additional, uncharged conduct, she also testified
to the conduct underlying each charge. Consequently, there was
nothing in Counsel’s argument suggesting that Sarah’s testimony
was inherently improbable as it related to the charged offenses.

¶33 Counsel also argued that Brother’s testimony related to a
“third level of contact that was not established by any of [the
charged] counts.” In other words, Counsel suggested that
Brother’s testimony had no bearing on any of the other charges.
Again, Counsel did not argue that Brother’s testimony rendered
Sarah’s testimony about the charged conduct inherently
improbable.

¶34 And in none of these instances did Counsel argue that
Sarah’s testimony should be disregarded in the district court’s
sufficiency analysis. For all these reasons, we conclude that
Draughon did not preserve his inherent improbability argument
for appeal.

1. Ineffective Assistance of Counsel

¶35 Draughon argues in the alternative that it was objectively
unreasonable for Counsel not to assert a directed verdict motion
under the inherent improbability doctrine because Sarah’s
“testimony was so inherently improbable that no reasonable juror
could have believed it beyond a reasonable doubt.” We are not
persuaded.

¶36 “A defendant asserting ineffective assistance of counsel
must meet the two-prong Strickland test: (1) counsel’s
performance was objectively deficient and (2) the deficient

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State v. Draughon

performance resulted in prejudice.” State v. Chase, 2025 UT App
158, ¶ 43, 580 P.3d 421 (cleaned up), cert. denied, 581 P.3d 560 (Utah
2025). And where the defendant fails to establish one of the
prongs, we can dispose of the claim on that basis without
addressing the other prong. Id. Here, we elect to address
Draughon’s argument on the deficient performance prong.

¶37 Establishing deficient performance requires a defendant to
show that counsel failed to provide representation that was
“within the wide range of reasonable professional assistance.”
State v. Wilkes, 2020 UT App 175, ¶ 24, 479 P.3d 1142 (cleaned up).
And where a motion for a directed verdict would be futile,
counsel has no obligation to raise it. See State v. Makaya, 2020 UT
App 152, ¶ 9, 476 P.3d 1025. The question that must be resolved is
whether counsel’s decision “was that of a reasonable, competent
lawyer in the real-time context of a trial.” State v. Arce, 2024 UT
App 43, ¶ 34, 547 P.3d 235 (cleaned up). Stated otherwise, a “court
must always base its deficiency determination on the ultimate
question of whether counsel’s act or omission fell below an
objective standard of reasonableness.” State v. Ray, 2020 UT 12,
¶ 36, 469 P.3d 871.

¶38 In State v. Robbins, our supreme court explained that “a
conviction not based on substantial reliable evidence cannot
stand.” 2009 UT 23, ¶ 14, 210 P.3d 288 (cleaned up). Although a
court is generally bound by “the jury’s determination of witness
credibility,” it has the discretion to disregard such testimony
when it is “inherently improbable.” Id. ¶ 16. In State v. Jok, the
supreme court acknowledged that three factors have “merited
consideration under an inherently improbable analysis: material
inconsistencies, patent falsehoods, and lack of corroborating
evidence.” 2021 UT 35, ¶ 32, 493 P.3d 665. The court nonetheless
cautioned against “inflexible reliance” on those factors and
clarified that “the proper test is, and always has been, whether
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime.” Id. (cleaned up). The court

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State v. Draughon

explained further that for testimony to be disregarded under the
inherent improbability doctrine, it “must run so counter to human
experience” when considered “in light of the other evidence” that
it would be “inappropriate for consideration in sustaining a
finding of guilt.” Id. ¶ 36 (cleaned up).

¶39 Draughon argues that the testimony was inherently
improbable because it “included the kind of inconsistencies that
make it counter to human experience.” (Citing State v. Prater, 2017
UT 13, ¶ 39, 392 P.3d 398.) In support, Draughon points to Sarah’s
initial denial that anything happened other than what Mother had
found when she discovered the text messages on the iPad.
Draughon argues that Mother’s response to the discovery
“created a motivation for [Sarah] to fabricate” the cuddling or
otherwise “recontextualize[] the cuddling” into something sexual.
For either of these reasons, Draughon argues, Sarah could have
retreated from her initial denial.

¶40 Draughon’s explanations for Sarah’s recantation are
certainly plausible. But Sarah’s testimony does not “run so counter
to human experience” as to make it “inappropriate for
consideration in sustaining a finding of guilt.” See Jok, 2021 UT 35,
¶ 36. Indeed, Sarah testified to the conduct underlying each of the
five sexual abuse counts. And although the Jok court warned
against a formulaic application of the factors identified by Robbins
and its progeny, see id. ¶ 32, “[c]ourts are still allowed—and
perhaps even encouraged—to examine” those factors in an
inherent improbability analysis, State v. Barnes, 2023 UT App 148,
¶ 24, 542 P.3d 108.

¶41 For testimony to be materially inconsistent under the
inherent improbability doctrine, it must be “internally
inconsistent.” State v. Carrell, 2018 UT App 21, ¶ 53, 414 P.3d 1030.
Indeed, “[t]he mere fact that a witness’s account changes between
her initial interview with police and her testimony at trial is by
itself insufficient.” Id. Although Sarah initially denied that she

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State v. Draughon

was abused by Draughon, she was consistent in her testimony
throughout trial that Draughon abused her. Thus, Sarah’s
testimony was not materially inconsistent. See id.

¶42 “Testimony is patently false” under the inherent
improbability doctrine “only when it is physically impossible or
self-evidently false.” State v. Dever, 2022 UT App 35, ¶ 41, 508 P.3d
158 (cleaned up). Draughon does not argue that Sarah’s testimony
was physically impossible, nor could he. See, e.g., State v. Estes,
2025 UT App 10, ¶ 27, 564 P.3d 239 (“Testimony is physically
impossible when what the witness claims happened could not
have possibly occurred.” (cleaned up)), cert. denied, 568 P.3d 261
(Utah 2025). Nor was Sarah’s testimony self-evidently false. For
one thing, a transitory denial does not render a subsequent
allegation patently false. Such an inconsistency would be for the
jury to consider in making its credibility determination. See, e.g.,
Dever, 2022 UT App 35, ¶ 41 (“The question of which version of
the witnesses’ stories is more credible is the type of question we
routinely require juries to answer.” (cleaned up)); Carrell, 2018 UT
App 21, ¶ 53 (explaining that a witness’s shifting story, on its own,
is not enough to disregard the jury’s credibility findings as to that
witness). Draughon suggests that Sarah’s testimony was patently
false because she was “unable to remember the details of her
allegations” even after Mother had given her “a journal so she
could better remember and document her allegations.” For
instance, Draughon claims that Sarah failed to remember the
specific details about the Recliner Incident other “than that it
happened.” Similarly, Draughon argues that Sarah’s testimony
that he frequently touched her on his bed was devoid of details.
While these points might have been effective on cross-
examination, they in no way compel a conclusion that anything in
the challenged testimony was patently false. There is nothing in
such testimony that renders it patently false under the inherent
improbability doctrine.

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State v. Draughon

¶43 Finally, if the State has offered evidence to corroborate “at
least some of the details of the witness’s story,” an inherent
improbability argument will fail. State v. Corona, 2025 UT App 93,
¶ 25, 574 P.3d 988, cert. denied, 574 P.3d 525 (Utah 2025). And such
evidence need not “corroborate the witness’s account across the
board, in every particular.” Id. (cleaned up). Draughon argues
that “the testimony that could be considered corroboration raised
more serious doubts about the allegations.” Here, he points to the
discrepancies between Sarah’s and Brother’s accounts of some of
the incidents, including, for instance, the First Kitchen Incident
where Sarah remembered that Draughon was standing behind
her while Brother remembered that Draughon and Sarah were
facing one another. The State argues, in contrast, that Brother’s
testimony corroborated Sarah’s allegations.

¶44 The State’s argument here has considerable force; after all,
it’s plausible, for example, that Brother was mistaken in his
perception that Draughon and Sarah were facing one another
when he saw them. And in any event, the important corroboration
was that he saw them together engaging in what can be
considered inappropriate conduct. But be all of that as it may, we
need not limit our focus to whether these potential inconsistencies
were problematic because there was plenty of other
circumstantial evidence that corroborated Draughon’s guilt,
including the text messages, thereby precluding Robbins’s
application here. As the State notes, Draughon’s texts to Sarah
were strong evidence that he had a “sexual obsession with [her]
as she entered puberty.” In those messages, Draughon (among
other things) complimented her “butt,” told her that Mother had
“nice nipples” and that she would likely “have the same,” said
that he loved their “cuddles,” and informed her that he had had a
“stiffy” when he woke up in the middle of the night. At least one
of the texts was also indicative of a consciousness of guilt to the
extent it suggested Draughon tried to keep Mother from learning
about his conduct. Cf. State v. Hatch, 2025 UT App 132, ¶ 30, 577

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State v. Draughon

P.3d 903 (noting that evidence showing “consciousness of guilt”
serves as proper noncharacter purpose under rule 404(b) of the
Utah Rules of Evidence). In that message, Draughon said,
“[Mother] is acting uptight about it. We need to not joke about it
around her anymore, I guess. And/or even talk about any of that
stuff anymore. Around her that is. We didn’t do anything wrong.
I’m sorry. I shouldn’t of told her. It just slipped out.”

¶45 In short, Draughon has not established that Sarah’s
testimony contained material inconsistencies or patent
falsehoods, and he has overlooked the significant circumstantial
evidence that corroborated Sarah’s testimony. In other words, a
Robbins objection would have been futile, and an attorney’s failure
to raise a futile objection does not constitute deficient
performance. See, e.g., State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.
Draughon’s claim therefore fails for lack of deficient performance.

B. General Insufficiency of the Evidence Argument

¶46 Draughon argues that there was insufficient evidence to
support the conviction related to the Recliner Incident because
Sarah’s testimony was vague and included material
inconsistencies. Again, we are not persuaded.

¶47 In assessing whether sufficient evidence exists to support a
conviction, “we do not examine whether we believe that the
evidence at trial established guilt beyond a reasonable doubt.” Jok,
2021 UT 35, ¶ 29 (cleaned up). Instead, we ask “whether the
evidence is sufficiently inconclusive or inherently improbable
such that reasonable minds must have entertained a reasonable
doubt that the defendant committed the crime for which he or she
was convicted.” Id. (cleaned up). Stated otherwise, a court may
not “substitute its judgment for that of the jury” when considering
a challenge based on the sufficiency of the evidence. Id.

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State v. Draughon

¶48 Draughon argues that “even after an attempt to refresh her
recollection,” Sarah could not “remember the details” related to
the Recliner Incident other “than that it happened.” The statute
under which Draughon was charged provides, in relevant part,
that “[a]n individual commits sexual abuse of a child if . . . the
actor touches . . . the breast of a female child . . . with the intent to
arouse or gratify the sexual desire of any individual.” Utah Code
§ 76-5-404.1(2) (2021). Draughon does not attempt to argue that
the State failed to prove intent. Instead, he suggests the State’s
evidence was insufficient to establish the “touch” element for two
reasons: (1) Sarah’s testimony was inconsistent because she
initially claimed that Draughon touched the underwire of her bra
and not her breast and (2) Sarah couldn’t remember many of the
details of the incident other than that it occurred.

¶49 Regarding the first point, it is true that Sarah initially
testified that Draughon touched the underwire of her bra.
However, Draughon ignores that Sarah had her recollection
refreshed and subsequently testified that he had touched her
breast. And we are in no place to second guess the jury’s apparent
decision to believe Sarah’s refreshed testimony. See, e.g., Jok, 2021
UT 35, ¶ 29 (explaining that reviewing courts may not substitute
their opinion for that of the jury on a sufficiency of the evidence
challenge). With respect to the second point, Sarah testified that
she was twelve or thirteen when Draughon touched her breast
while they were sitting on a recliner and watching television.
Assuming the jury found Sarah’s testimony credible on this
point—which, clearly, it did—we fail to see how this would not
have been enough to support a finding that Draughon “touche[d]
. . . the breast of a female child.” See Utah Code § 76-5-404.1(2)
(2021).

¶50 For these reasons, Draughon’s argument that the evidence
was insufficient to support his conviction on the count related to
the Recliner Incident misses the mark.

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State v. Draughon

II. Phone Call Recording

¶51 Next, Draughon argues that Counsel rendered ineffective
assistance by failing to object to the introduction of the recording
of the phone call. He asserts that the recording was inadmissible
under Utah’s wiretap law because Friend was not a party to the
call and neither Draughon nor Mother—the only two parties to
the call—consented to the call being recorded. See Utah Code
§§ 77-23a-4(7)(b), -7. He claims Counsel should have fought the
battle of attempting to exclude the recording under that law
because it included particularly problematic statements from both
Draughon and Mother on which the State relied during argument
and cross-examination. Even if the entire recording was not
excludable under the wiretap law, Draughon argues that Counsel
should have objected to portions of the recording under various
provisions of the Utah Rules of Evidence. We assume, without
deciding the issue on the merits, that Counsel’s failure to object to
admission of the entire recording constituted deficient
performance. However, as discussed below in Part V, we
conclude that the claim of ineffective assistance fails for lack of
prejudice.

III. Expert’s Testimony on Grooming

¶52 Draughon argues that Counsel was also ineffective in not
objecting to Expert’s grooming testimony because the “testimony
was inadmissible profile evidence” and was “highly prejudicial
under rule 403” of the Utah Rules of Evidence. We assume
without affirmatively deciding that Counsel’s failure to object to
this testimony constituted deficient performance, but as discussed

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State v. Draughon

in Part V below, we conclude that the claim of ineffective
assistance of counsel fails for lack of prejudice. 6

IV. Informing the Jury of Charge Classification

¶53 Draughon also argues that the district court plainly erred
when it informed the jury that the child sex abuse counts were
first-degree felonies during opening instructions. Demonstrating
plain error requires a showing 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.” State v. Cesspooch, 2024 UT App 15, ¶ 9,
544 P.3d 1046 (cleaned up). The State concedes this was error and
that it was obvious. Indeed, a defendant’s “possible punishment
. . . is usually not a proper matter for jury consideration.” Id. ¶ 11
(cleaned up). However, as we discuss below, the error was
ultimately not harmful.

V. Cumulative Prejudice

¶54 We have assumed in two instances that Counsel was
ineffective and identified another instance in which the district
court obviously erred. See supra Parts II–IV. Draughon argues that

1. As the State correctly notes, our appellate courts have not squarely addressed the propriety of using an expert to testify about grooming, and we offer no view on the issue. Some courts have required expert testimony in order for grooming evidence to be introduced. See, e.g., State v. Akins, 315 P.3d 868, 878 (Kan. 2014). Others allow an expert to testify about grooming but don’t require such testimony before grooming evidence can be introduced. See, e.g., United States v. Isabella, 918 F.3d 816, 833 n.15 (10th Cir. 2019). Still others have found little utility in having an expert testify on grooming and have expressed concern about the potential prejudice of admitting that kind of testimony. See, e.g., State v. Braham, 841 P.2d 785, 790 (Wash. Ct. App. 1992).

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State v. Draughon

these errors, considered together, establish prejudice under the
cumulative error doctrine. We disagree that these errors either
individually or collectively were prejudicial because, even
considering the counterfactual universe in which the trial
proceeded without the errors, the jury would still have heard
overwhelming evidence of Draughon’s guilt such that our
confidence in the verdict is not undermined. See State v. Cheek,
2015 UT App 243, ¶ 75, 361 P.3d 679.

¶55 Reversal under the cumulative prejudice doctrine requires
that we “determine that (1) an error occurred, (2) the error,
standing alone, has a conceivable potential for harm, and (3) the
cumulative effect of all the potentially harmful errors undermines
[our] confidence in the outcome.” State v. Williams, 2025 UT App
118, ¶ 38, 576 P.3d 1142 (cleaned up), cert. denied, 581 P.3d 554
(Utah 2025). “Because plain error and ineffective assistance of
counsel share a common standard of prejudice, if we determine
that [Draughon] is unable to make [a] showing on prejudice
grounds, lack of prejudice will prove fatal to each of his claims.”
Id. ¶ 36 (cleaned up). When assessing prejudice in either context,
we must consider what would have happened in the
counterfactual universe in which the trial occurred without the
asserted errors. See, e.g., State v. Chase, 2025 UT App 158, ¶ 45, 580
P.3d 421 (ineffective assistance of counsel), cert. denied, 581 P.3d
560 (Utah 2025); Williams, 2025 UT App 118, ¶ 38 (plain error).

¶56 Here, the counterfactual scenario that we consider is one in
which (1) the recording of the phone call was excluded in its
entirety, (2) Expert was barred from testifying about grooming,
and (3) the district court did not instruct the jury on the
classification of the charged offenses. This leaves Sarah’s
testimony, Draughon’s text messages, Mother’s testimony about
what Draughon said on the phone call, and other evidence, such
as Draughon’s factory reset of the iPad.

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State v. Draughon

¶57 As an initial matter, we doubt the errors related to the
grooming testimony and the jury instruction had much potential
for prejudice. We first address Expert’s grooming testimony. The
Seventh Circuit has defined grooming as “deliberate actions taken
by a defendant to expose a child to sexual material,” with “the
ultimate goal” being “the formation of an emotional connection
with the child and a reduction of the child’s inhibitions in order
to prepare the child for sexual activity.” United States v. Chambers,
642 F.3d 588, 593 (7th Cir. 2011). The jury would hardly have
needed Expert’s testimony to reasonably infer from the evidence
that Draughon deliberately sought to form an emotional
connection with Sarah and exposed her to sexual material to
prepare her for sexual activity. Now in a different case—where
the evidence of the defendant’s guilt isn’t overwhelming—we
might conclude that an expert’s testimony on grooming,
assuming that it is inadmissible, is prejudicial. After all, it’s true
that an expert’s testimony runs the risk of jurors being “over-
impressed by the aura of reliability surrounding the evidence,
thereby leading them to abdicate their role of critical assessment.”
Kofford v. Flora, 744 P.2d 1343, 1362 (Utah 1987) (Durham, J.,
concurring in result).

¶58 But this is not that case. Expert’s testimony here would
merely have reinforced the jury’s view rather than changed it.
Even without Expert’s opinion, the jury would have readily
concluded that Draughon was grooming Sarah for sexual activity
based on the significant evidence in the record, including his text
messages, observed inappropriate affections, and admitted
exposure to pornography, with follow-up inquiries about her
reaction to that pornography. The concept of grooming is, sadly,
ubiquitous in modern American society such that members of any
jury are going to be generally familiar with it. In this case, Expert’s
generalized insights added little to what jurors likely already
understood about grooming. Consequently, the court’s admission
of Expert’s testimony, even if erroneous, had little prejudicial

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State v. Draughon

effect, and it certainly did not produce harm sufficient to
undermine our confidence in the verdict. See, e.g., State v. Yusuf,
2025 UT App 189, ¶ 31, 582 P.3d 1270 (“An error is harmful if,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the defendant or our confidence in the
verdict is undermined.” (cleaned up)).

¶59 With respect to the court’s obvious error on the jury
instruction, the remedy would have been a corrective instruction
informing the jury not to consider Draughon’s potential
punishment during its deliberations. Of course, the district court
did exactly that at the end of the trial when it instructed the jury
that it was not to “consider what punishment could result from a
verdict of guilty” and that “[p]unishment is not relevant to
whether the defendant is guilty.” See Williams, 2025 UT App 118,
¶ 39 (explaining that the trial court obviously erred in informing
the jury of the level of offenses but that the error was effectively
cured by the court’s “statements to the [jurors] that they were not
to concern themselves with punishment”). We see little prejudice
here. See, e.g., Yusuf, 2025 UT App 189, ¶ 31.

¶60 This leaves the phone call. Notwithstanding the State’s
argument to the contrary, there is reason to be skeptical of its
assertion that competent counsel would not have fought the battle
of objecting to the recording. The jury heard Draughon say that
he had been attracted to Sarah when she went through puberty,
which corresponded to the time that the charged conduct
occurred. And the prosecutor relied extensively on this statement,
beginning his opening argument by quoting Draughon verbatim:
“I never was attracted to her until she went through puberty.”
Equally problematic, in our view, was Mother’s statement that
Draughon’s father believed the messages were evidence of
grooming because (1) Draughon’s father was a retired police
officer who spent most of his career investigating crimes against
children and (2) Draughon didn’t specifically deny that his

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State v. Draughon

conduct amounted to grooming. 7 The jury also heard Draughon
espouse a questionable definition of “honesty,” given his
statement to Mother that he had been honest with her because he
had not hidden the pornography incident from her “once [she]
asked [him] about it.” In a similar vein, although Draughon
denied on the phone call that he had done anything other than
show Sarah pornography, he had an obvious reason to be less
than forthcoming because he believed—reasonably, as it turned
out—that he could be investigated and charged. Finally, even if
the recording had been somewhat beneficial to Draughon’s
defense, we are not persuaded that Counsel faced an “all or
nothing” situation in which the recording either had to be
admitted in its entirety or excluded in its entirety. Indeed, some
of Mother’s testimony about the call, such as her comment about
what Draughon’s father allegedly said, was objectionable and
may well have been suppressed had Counsel objected. For these
reasons, the State oversells the upside for Counsel to have the
entire recording played for the jury.

¶61 However, Mother would still have been allowed to testify
about her recollection of much of the call. Draughon resists this
conclusion, arguing it would be “anomal[ous]” to exclude the
recording while permitting her “less reliable” testimony on the
issue. (Quoting State v. Allen, 241 P.3d 1045, 1062 (Mont. 2010)

1. On this point, we simply aren’t persuaded by the State’s argument that any issue here was cured by Draughon’s father’s testimony that he had “no recollection” of telling Mother that Draughon’s conduct “sounded like grooming.” This is so for two reasons. First, as noted, Draughon didn’t specifically deny the grooming allegation in the phone call. And, more importantly, the jury would likely have been skeptical of Draughon’s father’s rehabilitative testimony because it would no doubt be understandable to a jury that a father with a son facing serious allegations would seek to protect his son.

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State v. Draughon

(Nelson, J., concurring).) There is a split in authority over whether
a party to a communication that is intercepted under a state’s
wiretap law can testify to his or her recollection of the
communication. Compare State v. MacMillan, 872 A.2d 1031, 1037
(N.H. 2005) (concluding that police officer could testify to
personal recollection of unlawfully intercepted communication
because the testimony was “independent from the unauthorized
recording”), with Rupley v. State, 560 P.2d 146, 147 (Nev. 1977)
(rejecting the government’s “novel argument that testimony
regarding the intercepted telephone conversations is admissible
because the witnesses were testifying from their personal recall of
the conversations with the defendant, and not from the illegally
obtained tapes”). Where, as here, the parties to the conversation
had no advance knowledge that the communication was going to
be “intercepted,” we see no reason to bar the parties from
testifying.

¶62 This proposition is consistent with Utah law. In State v.
Mitchell, our supreme court addressed a case in which a defendant
had been convicted of first-degree murder. 779 P.2d 1116, 1117
(Utah 1989). The court determined that the defendant was entitled
to a new trial because a key witness was able to identify him only
after she received hypnotherapy and the State relied heavily on
her testimony. Id. at 1118–21. But as relevant here, the court
rejected the defendant’s argument that the trial court had erred in
admitting the testimony of a telephone operator who placed a
collect call on behalf of the defendant and inadvertently heard
him say during the call that he had, in fact, killed the decedent. Id.
at 1122–23. The court explained that the purpose of Utah’s wiretap
law was “to prohibit intentional surveillance activities in the
absence of a court order” and that the trial court’s admission of
the operator’s testimony did not run afoul of that purpose. Id. at
1123. That rationale applies with equal force to the instant case
because Mother had no knowledge, before the call, that Friend
was going to record the call. We therefore conclude that—even if

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State v. Draughon

the recording of the call was inadmissible under applicable
wiretap laws—Mother would still have been able to testify as to
much of the content of the call. And this would have allowed the
State to introduce the substance of the conversation into evidence,
including Draughon’s admissions about being attracted to Sarah.

¶63 Thus, considering that Mother would have still been able
to testify about the content of the call, we conclude that there is no
“reasonable likelihood of a more favorable outcome” for
Draughon had the recording of the phone call been excluded such
that “our confidence in the verdict is undermined.” Yusuf, 2025
UT App 189, ¶ 31.

¶64 Even when we consider the cumulative effect of the errors,
we cannot say that they affected the proceedings in a way that
“undermines our confidence that a fair trial was had.” See State v.
King, 2017 UT App 43, ¶ 15, 392 P.3d 997. There is no serious
dispute that Sarah testified to the facts underlying each of the
charged incidents, including the one where she supposedly
remembered little more than that the incident happened. See supra
¶¶ 46–49. And Draughon’s texts were especially damning for his
case in that they overwhelmingly supported a finding that he
acted with intent to “arouse or gratify” his “sexual desire.” See
Utah Code § 76-5-404.1(2) (2021). Indeed, Draughon told Sarah,
among other things, that he “wish[ed]” he could be there to “rub
[her] butt,” that it “made [his] day” when Sarah let him kiss her
“on the lips” and “didn’t make a weird noise,” that Mother “has
really nice nipples” and that Sarah would likely “have the same,”
and that Sarah’s “butt always looks good.” The jury also heard
testimony that Draughon placed a dildo on his groin and had
Sarah place her mouth and hands on it. The jury heard still more
evidence that Draughon told Sarah that they should keep their
conversations secret from Mother and that he subsequently
performed a factory reset of his iPad in an apparent attempt to
prevent the family from accessing those incriminating text

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State v. Draughon

messages. To cap it off, the jury would still have heard Mother
testify about her recollection of most of the phone call.

¶65 In short, the evidence of Draughon’s guilt would still have
been overwhelming even if trial had proceeded without the three
potential errors we have identified. For this reason, we are not
convinced that the errors were so prejudicial as to undermine our
confidence in the outcome of Draughon’s trial. 8

CONCLUSION

¶66 Draughon failed to preserve his argument that Sarah’s
testimony was inherently improbable, and he has not

1. We likewise are not persuaded by Draughon’s argument that but for the admission of the phone call there is a reasonable possibility that the jury would have acquitted on the obstruction of justice charge, which related to his obstruction of the investigation into the child sex abuse crimes. Here, Draughon’s argument is somewhat unclear, but it seems to relate to the timing of when he reset the iPad, which happened the day after the phone call. He appears to reason that he could not have obstructed an investigation into crimes about which he was allegedly unaware—i.e., the child sex abuse charges—and that the timing of the reset confirmed this. The much more likely explanation is that Draughon knew the iPad contained the text messages that were indicative of his intent on the child sex abuse charges. Under the plain text of the obstruction of justice statute, the fact that the family could view the texts on Sarah’s phone wouldn’t have changed that. See Utah Code § 76-8-306(1)(c) (2021) (“[A]n actor commits obstruction of justice if the actor, with intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense . . . alters, destroys, conceals, or removes any item or other thing.”).

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State v. Draughon

demonstrated that Counsel rendered ineffective assistance in not
moving for a directed verdict on inherent improbability grounds,
because such a motion would have been futile. Draughon’s
general insufficiency of the evidence argument likewise falls short
because there was evidence upon which the jury could have
convicted him on the challenged count beyond a reasonable
doubt. We have assumed that Counsel rendered deficient
performance in failing to object to admission of the phone call
recording and Expert’s grooming testimony. We have also
concluded that the district court committed obvious error when it
read the classification of each of the charged offenses to the jury.
Even when we consider the cumulative effect of these errors,
however, we are not persuaded that Draughon was prejudiced by
them. His cumulative prejudice argument therefore fails.

¶67 Affirmed.

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