Background
The Utah Court of Appeals affirmed Trevor Alexander Marx’s convictions for sodomy upon a child and witness tampering, rejecting claims based on undisclosed evidence, trial counsel’s performance, and a request to develop additional ineffective-assistance facts under appellate rule 23B. Across the issues, the decisive point was prejudice: the omitted or proposed evidence did not create a reasonable probability of a different verdict.
Marx’s daughter reported that he sexually abused her when she was young. At trial, the State presented her account along with a recorded pretext call, a detective’s testimony about communications with Marx, and Marx’s own testimony. Marx disputed the allegations and emphasized evidence concerning an asserted chocolate allergy because the daughter described one incident involving chocolate.
After trial, Marx argued that prosecutors had not timely disclosed body-camera footage and a report from a shelter or related service provider. He also faulted counsel for failing to use allergy testing and an expert, and he sought a rule 23B remand based on a proposed forensic expert addressing childhood memory, child development, and false allegations during contentious divorces.
The Court’s Holding
Judge Amy J. Oliver’s opinion held that the body-camera footage and report did not satisfy Brady’s materiality requirement. Even assuming favorable information should have been produced, the evidence did not undermine confidence in the verdict when evaluated against the full trial record. The district court therefore acted within its discretion in denying a new trial.
The ineffective-assistance claims failed for similar reasons. Marx’s self-conducted test and a skin-prick report showed at most mild sensitivity and undercut testimony describing severe allergic reactions. He did not identify an available medical expert or establish useful expected testimony. The proposed memory expert likewise would not have overcome the corroborating evidence or explained why the daughter accurately remembered details of the relevant home but necessarily fabricated abuse occurring there. General testimony that young childhood memories may be unreliable and false allegations can occur in high-conflict divorces was not enough. The court denied remand and affirmed.
Key Takeaways
- A disclosure violation warrants relief only when the withheld evidence is material in the context of the entire trial.
- Ineffective-assistance claims based on an uncalled expert require nonspeculative evidence of availability, testimony, and likely effect.
- A rule 23B declaration must do more than offer general propositions; it must support a reasonable probability of a different outcome in the particular case.
Why It Matters
Marx is a useful Utah roadmap for litigating expert-related ineffective-assistance claims on direct appeal. Counsel seeking a rule 23B remand should connect a qualified expert’s specific opinions to disputed proof, address the State’s corroborating evidence, and explain why the testimony would matter to the jury rather than merely presenting abstract research.
For prosecutors, the opinion is not a reason to delay disclosure: Brady compliance remains mandatory, and late-disclosed evidence can still lead to reversal when material. For defense lawyers, the case highlights the importance of creating a concrete record. Testing that cuts both ways, unidentified experts, and generalized declarations will rarely satisfy Utah’s demanding prejudice inquiry.