When does a charging document variance waive a defendant's due process rights in Utah? State v. Talbert Explained

Background and facts

Jared Lynn Talbert was convicted by a jury of six counts of sexual crimes against his minor stepchild, Taylor, including two counts of object rape, one count of forcible sexual abuse (Count 2), and three counts of forcible sodomy. On appeal, Talbert raised three distinct challenges: ineffective assistance of counsel for failing to object to testimony about uncharged acts of abuse; a fatal variance between the charging document and the acts proven at trial on Count 2; and insufficient evidence supporting the denial of a directed verdict on Count 6 (forcible sodomy).

Key legal issues

The court addressed three significant issues. First, whether trial counsel performed deficiently by not objecting under rule 404(b) to Taylor’s testimony about uncharged breast-touching incidents. Second, whether a variance between the information’s description of Count 2 (genital touching while in Taylor’s bed) and the act the jury actually convicted Talbert of (breast touching in Talbert’s office) created a subject matter jurisdiction defect, a procedural due process violation, or a sufficiency-of-the-evidence problem. Third, whether the trial court erred in denying a directed verdict on Count 6 where the evidence of penile contact was circumstantial.

Court’s analysis and holding

On the rule 404(b) issue, the court held that competent counsel could have reasonably concluded the uncharged acts were intrinsic evidence—directly connected to the factual circumstances of the charged crimes as part of Talbert’s grooming process—and therefore outside rule 404(b)’s scope entirely. No deficient performance was shown.

On Count 2, the court rejected Talbert’s subject matter jurisdiction argument, reaffirming that once an information is properly filed, the district court has jurisdiction over the entire case regardless of alleged variances. Critically, the court applied State v. Fulton, 742 P.2d 1208 (Utah 1987), holding that Talbert’s failure to seek a continuance upon discovering the variance waived all notice and procedural due process claims. The sufficiency-of-the-evidence challenge survived the waiver analysis but failed because competent counsel could have reasonably concluded a more specific directed verdict motion would have been futile—the State could have altered its prosecutorial election or successfully moved to amend the information mid-trial under rule 4(d).

On Count 6, the court found sufficient evidence to support the forcible sodomy charge—Taylor saw Talbert pulling up his pants after the incident and told a forensic nurse the object could have been his penis—and noted that the jury actually acquitted on that count, convicting only of the lesser-included forcible sexual abuse.

Practice implications

This opinion reinforces several critical practice points for Utah criminal appellate practitioners. A generic directed verdict motion is insufficient to preserve a variance-based sufficiency argument—counsel must specifically articulate the variance theory to the trial court. More importantly, under Fulton, a defendant who discovers a variance between the charging document and the evidence at trial must move for a continuance, not merely a directed verdict, to preserve any notice or due process challenge. Failure to do so operates as a waiver of those constitutional claims regardless of how significant the variance may be. Finally, practitioners should carefully analyze whether uncharged acts in sexual offense cases constitute intrinsic evidence of grooming before lodging rule 404(b) objections—such objections may be futile and, if made reflexively, could actually highlight damaging testimony for the jury.