Background
Jared Lynn Talbert was convicted on six counts of sexual crimes — two counts of object rape, one count of forcible sexual abuse, and three counts of forcible sodomy — arising from a pattern of abuse he committed against his minor stepchild Taylor over several months while Taylor was fourteen years old. Taylor’s mother discovered the abuse after finding that Talbert had been in Taylor’s bedroom for more than two hours during the middle of the night. After Taylor disclosed the abuse, Talbert sent what his wife characterized as suicidal text messages; officers arrived at the home and persuaded Talbert to put down a firearm before arresting him.
At trial, Taylor described not only the charged conduct but also additional uncharged incidents of breast touching that fit within an escalating pattern of grooming. Defense counsel (Counsel) did not object to this uncharged-acts testimony. On Count 2 (forcible sexual abuse), the original information alleged that Talbert had touched Taylor’s “pubic area” or “genitals.” On the first day of trial, however, all parties agreed to amend the jury instruction to add “breast of a female” as an alternative basis for that count. The State’s closing argument then asked the jury to convict on Count 2 based on breast touching — the first incident Taylor described — not the genital touching described in the information’s probable cause statement. The jury convicted Talbert on Count 2 specifically for breast touching. On Count 6 (forcible sodomy), the jury acquitted Talbert of sodomy but returned a verdict of guilty on the lesser-included offense of forcible sexual abuse.
The Court’s Holding
Judge Harris, writing for a unanimous panel, affirmed all convictions. The court addressed three principal issues.
On the Rule 404(b) issue, the court held that Counsel was not constitutionally deficient for failing to object to Taylor’s testimony about uncharged acts of breast touching. Under Utah’s intrinsic-evidence doctrine — recently clarified by the Utah Supreme Court in State v. Blackwing, 2025 UT 60, and by this court in State v. Newberry, 2026 UT App 2 — uncharged sexual conduct against the same child victim is admissible as intrinsic evidence, not governed by Rule 404(b), when it has a “direct relationship” to the charged crime and provides contextual or background information such as grooming behavior. Each breast-touching incident Talbert committed fell squarely within this category. A reasonable attorney could conclude that any Rule 404(b) objection would have been futile, and failing to raise a futile objection is not deficient performance.
On Count 2, the court systematically rejected Talbert’s variance-based theories. First, the information was never actually amended: while the parties agreed to alter the jury instruction to include breast touching, no one ever asked the trial court to amend the charging document itself, and amendments to charging documents require express court action. Second, that variance did not deprive the court of subject matter jurisdiction. Jurisdiction over a criminal case is determined at the class-of-case level — whether this is a criminal felony case the court has power to hear — not at the level of individual acts alleged in the information. Once a properly filed information invokes jurisdiction, the court can adjudicate all variance-related claims that arise. Third, Talbert’s failure to seek a continuance upon learning that the State would pursue breast-touching evidence waived his notice and procedural-due-process claims. Under State v. Fulton, 742 P.2d 1208, 1215–16 (Utah 1987), a defendant who does not request a continuance after discovering a potential variance “negates any claim of surprise.”
The only variance argument Talbert preserved was sufficiency of the evidence. But Counsel’s bare-bones directed verdict motion — “I’ll leave it at that” — was too vague to present the variance theory to the trial court, so the court reviewed it only for plain error and ineffective assistance. Neither standard was met. Given that the jury instruction had already been agreed to include breast touching, the trial court would not have perceived any obvious variance problem. And a reasonable attorney might deliberately decline to raise the variance argument, knowing that doing so could prompt the State to shift its prosecutorial election and focus the jury on Taylor’s testimony about genital touching — a response that would have been equally or more damaging to Talbert.
Key Takeaways
- Uncharged acts of sexual misconduct against the same minor victim are intrinsic evidence in Utah — admissible without Rule 404(b) analysis — when they describe grooming behavior directly connected to the charged offenses. See Blackwing; Newberry. Defense counsel who declines to object on 404(b) grounds is not constitutionally deficient when a reasonable attorney could conclude the objection would fail.
- Subject matter jurisdiction in criminal cases is determined at the class-of-case level, not act-by-act. A variance between the acts alleged in a charging information and the acts proven at trial presents notice, due process, or sufficiency issues — not a jurisdictional defect — and must be raised through appropriate procedural vehicles.
- Under State v. Fulton, a defendant who discovers a potential charging variance and does not request a trial continuance waives notice and procedural-due-process arguments arising from that variance. The failure to seek a continuance is treated as a forfeiture of any claim of surprise.
- A directed verdict motion that consists only of a general, unelaborated statement “for purposes of establishing a record” does not preserve specific legal theories — such as a charging variance — for appellate review. Counsel must articulate the specific grounds and tie them to evidence.
Why It Matters
State v. Talbert offers practical guidance on three recurring issues in child sexual abuse cases in Utah. For prosecutors, the decision broadly confirms that intrinsic/grooming evidence is available to explain an escalating pattern of abuse even when specific acts were not charged. But it also illustrates the risks of misalignment between charging documents, jury instructions, and closing arguments — while the State prevailed here, the opinion devotes substantial space to the variance problem that was created when the prosecutorial election shifted from the alleged genital-touching incident to the uncharged breast-touching incident.
For defense attorneys, the case delivers two specific lessons. First, a directed verdict motion that is genuinely strategic must still articulate the specific theory counsel wants the court to address; a bare-bones “establishing a record” motion preserves almost nothing. Second, when a charging variance surfaces mid-trial, counsel must immediately weigh whether to request a continuance — because failing to do so will waive any future claim of inadequate notice or procedural due process, regardless of how significant the variance ultimately proves to be.