Court of Appeals hears arguments in State v. Kamara over sufficiency, mistrial and proffered texts

Rachel Phillips, counsel for appellant Tracy Kamara, told the Utah Court of Appeals the convictions on Counts 5, 9 and 10 should be reversed for insufficient evidence because the record does not reliably show the victim’s age for one count and does not establish the number of occurrences for the others. Phillips also asserted trial counsel was ineffective for failing to move for directed verdicts and for not seeking unanimity instructions that would have required jurors to agree on the specific acts supporting separate counts.

A three‑judge panel pressed both sides on the record. Judges asked whether the victim’s answers, as elicited at trial, created chronological ambiguity (references to eighth and ninth grade and to multiple episodes) and whether the prosecutor’s demonstrative calendar and the sequencing of questioning would have cured any uncertainty. Phillips argued the testimony lacked limiting qualifiers about timing and that the state bore the burden to prove age and multiplicity beyond a reasonable doubt.

The court also examined a mistrial claim arising from an in‑court, overheard remark reported by a juror as roughly meaning "she's lying" about the victim’s testimony. The panel discussed whether jurors would have understood a woman seated beside the victim to be the victim’s attorney and whether the presumption of prejudice discussed in recent case law (referred to in argument as "Soto" and related Supreme Court decisions) typically applies to contacts outside the courtroom rather than muffled or whispered in‑court remarks. The judges debated whether the matter could be decided on the appellate record or whether factual development and possible remand to the trial court would be required.

Phillips further pressed the court on a Rule 23(b) remand request to develop and consider proffered digital evidence—chiefly, a large cache of text messages and an Instagram video the victim described at trial but which was not admitted into evidence. Defense counsel said the text messages (thousands of pages in the proffer) would have undermined the state’s argument by showing largely benign exchanges and by exposing gaps or alternate explanations for the volume of communications. The State replied that the proffer is incomplete and speculative, pointing to missing Bates numbers, the absence of some Facebook messages and the lack of the formal affidavits Rule 23(b) requires; the State argued the appellant bears the burden to show the missing material would likely change the outcome.

The panel explored whether showing samples of the messages or targeted items (rather than thousands of pages) could have satisfied the standard in precedent such as Greg v. State and discussed whether text content, timing and alternative messaging platforms could meaningfully undercut the victim’s account. The State also raised hearsay and admissibility concerns about some of the proffered statements and emphasized that, in its view, nothing in the proffer is demonstrably exculpatory.

On the question whether counsel’s strategic decision not to put all of the texts or the video before the jury was objectively reasonable, judges noted the high factual content of that inquiry and the typical presumption that trial counsel’s performance was reasonable; the panel asked whether affidavits or other factual development from trial counsel would be necessary to resolve the ineffective‑assistance claims.

After brief rebuttal from the appellant reemphasizing the relevance of the "Soto" presumption and reiterating that the 23(b) proffer met the non‑speculative threshold, the court thanked counsel, took the matter under advisement and said it will issue a written opinion. The court did not announce a ruling from the bench.