State v. Talbert

2026 UT App 97 THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. JARED LYNN TALBERT, Appellant. Opinion No. 20240192-CA Filed June 25, 2026 Fourth District Court, Provo Department The Honorable Kraig Powell No. 221402950 Dallas B. Young, Attorney for Appellant Derek E. Brown and William M. Hains, Attorneys for Appellee JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER concurred. HARRIS, Judge: ¶1 A jury convicted Jared Lynn Talbert of six counts of various sexual crimes related to actions he took toward his minor stepchild. He now appeals his convictions, raising one argument that goes to all six counts, and then raising two separate arguments that each go to only one count. First, he asserts that his trial attorney (Counsel) rendered ineffective assistance by not objecting to the admission of what Talbert characterizes as improper propensity evidence. Second, he challenges his conviction on Count 2—for forcible sexual abuse—on various grounds, all stemming from the contention that there was a variance between the acts charged in the original information and the acts proved at trial. Third, he challenges his conviction on  State v. Talbert Count 6—for forcible sodomy—by asserting that the trial court erred in denying his motion for a directed verdict on that count. For the reasons that follow, we reject all of Talbert’s arguments and affirm his convictions. BACKGROUND 1 ¶2 Talbert married Taylor’s 2 mother (Mother) when Taylor was ten years old. Taylor’s relationship with Talbert didn’t start out “the best,” but it began to improve when the family moved into a bigger house. After living together for a few years, Mother and Talbert had a child together. Around that same time, Mother and Talbert “agree[d] that [Talbert] would basically take night duty” with the young child because Mother “was struggling with depression” and “was overwhelmed with work.” During this time, Mother would take medicine to help her fall asleep, usually “around eight.” As a result, Taylor would “often” spend time with Talbert in the evening, when the two would “watch funny videos” that Taylor had found. 1. “When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly. We present conflicting evidence only when necessary to understand issues raised on appeal.” State v. Popp, 2019 UT App 173, n.1, 453 P.3d 657 (cleaned up). 2. A pseudonym. Taylor was assigned female at birth, but during the time of the events in question Taylor had begun the process of transitioning to male and had requested the use of they/them pronouns. In this opinion, when referring to Taylor, we use the pronouns that we understand Taylor prefers. 20240192-CA 2 2026 UT App 97  State v. Talbert The Abuse ¶3 On a summer night, soon after Taylor turned fourteen, Taylor went down to Talbert’s office in the family’s unfinished basement to watch videos with him. Taylor sat “on his lap,” which was a “newer thing” that had started happening as Taylor got older. While the two were watching the videos, Talbert “undid [Taylor’s] bra and started touching” Taylor’s bare breasts, and he “squished” Taylor’s nipple, which “made [Taylor] uncomfortable.” The touching stopped when Taylor “noticed it was [midnight]” and told Talbert it was time to go to bed. Talbert then “apologized and said that it was inappropriate of him to do that” and “told [Taylor] not to tell [Mother].” ¶4 Another night, around that same time, Talbert and Taylor were “in [Taylor’s] bedroom” with the door shut, and Talbert was sitting on Taylor’s bed with his back against the headboard and Taylor “on his lap” while Taylor “was telling him about a story [they] had [written].” While discussing the story, Talbert “put his hand in [Taylor’s] pants and rubbed his fingers against [their] panties.” “And then later he went in [the panties], and [he] put his fingers in” Taylor’s vagina. This lasted for “a few minutes,” then Talbert “apologized again” and told Taylor “not to tell [Mother].” ¶5 Another time, Talbert and Taylor were “on [Taylor’s] bed,” in the same position, with Taylor again “telling [Talbert] about [the] story.” “And Talbert did the same thing, but then . . . [he] took [Taylor’s] pants and underwear off and he lifted [Taylor’s] hips and put his mouth” on their vagina. Taylor “didn’t like how it felt” and “squirmed away,” and Talbert stopped. ¶6 On another occasion, Taylor was again “telling [Talbert] about [the] story” and “he touched [Taylor] down there again,” but this time he didn’t “rub[] on the outside . . . . He just went in.” “[A]nd like the other time,” he took Taylor’s pants and underwear off and put his mouth on their vagina. Taylor “rolled away, and then [Talbert] pulled [Taylor] back” and “rubbed an object” that 20240192-CA 3 2026 UT App 97  State v. Talbert Taylor “assumed . . . was his thumb” from Taylor’s “butt to . . . the bottom of [their] vagina.” Taylor didn’t see the object but later said that it “felt like skin.” Taylor thought it might have been one of Talbert’s fingers, but due to its size Taylor didn’t think it could have been any finger other than a thumb, and Taylor “didn’t feel a fingernail at all.” Taylor “squirmed away” again, causing Talbert to stop, at which point Taylor “glanced at him” putting his pants “back on.” ¶7 Taylor has since remembered other things happening, but Taylor doesn’t remember if these occurrences were separate from those described above because the events are “all kind of mixed together.” Taylor remembers Talbert “pulling” their nipple, which was “a different time” than when he “squished” their nipple. Taylor remembers one occasion when Talbert took Taylor’s shirt and bra off and “kissed and bit” “[t]he top half of [their] body.” Taylor also remembers “one time [when] [Talbert] . . . put his hand on [their] neck, and it was hard to breathe.” ¶8 In early December of that year, Mother woke up in the middle of the night to discover that Talbert “was nowhere to be found.” Then at about 3:00 a.m. she saw Talbert “come downstairs, and [she] asked where he had been, and he said he was just getting [Taylor] . . . some medicine for a cough,” which felt odd to her because she didn’t think Taylor “seem[ed] sick.” Mother “asked how long he had been [upstairs], and he said only about 30 minutes.” Talbert then reassured her “that everything was fine.” But Mother checked home security cameras and discovered that Talbert had gone into Taylor’s bedroom at 12:35 a.m. and had not come out until 3:00 a.m. ¶9 At that point, Mother “was panicking” and decided to call her sisters. Mother “asked them what to do,” and it was decided that after Taylor woke up, Mother would ask Taylor if anything inappropriate had happened. That morning, as planned, Mother “asked [Taylor] if there was ever a time that [Talbert] was in 20240192-CA 4 2026 UT App 97  State v. Talbert [their] room and [they] felt uncomfortable or weird.” Taylor answered in the affirmative and “started crying.” Mother then called her sisters again and told them what she heard, and she eventually decided to pack up a few things and leave the house with the kids while Talbert was still sleeping. ¶10 After Mother left the house, she called the police, who told Mother to bring Taylor to the Children’s Justice Center (the CJC), which she did. There, Taylor was examined by a forensic nurse, who specifically asked Taylor to “tell [her] about what happened” the day before. Taylor stated that Talbert had not touched them with his penis the day before but that he did touch them with his hand. The nurse then asked Taylor to describe “other times” Talbert had touched Taylor, and Taylor described the time they felt the object that “could have been his thumb.” When the nurse asked if the object “could . . . have been his penis,” Taylor answered affirmatively. In connection with the examination, Taylor disclosed much of the abuse described above. The nurse “performed a physical exam” but did not find any “abnormalities,” which the nurse did not consider surprising because that was the case “over 90 percent of the time.” ¶11 While Taylor was being examined, Mother started receiving text messages from Talbert that she considered “suicidal.” Among other things, Talbert wrote to Mother, “Tell the kids that I might not have been the man that they deserved but I tried my best and I hope they have at least one good memory of me.” And Talbert texted Taylor, “I’m sorry I wasn’t who you needed me to be. Forever in my heart.” Officers went to the house to intervene, where they convinced Talbert “to put away [a] gun” he had retrieved. The officers then asked Talbert if there was any truth to Taylor’s allegations, and he said there wasn’t. The Charging Document ¶12 The State eventually charged Talbert with six sexual crimes: two counts of object rape (Counts 1 and 3), one count of 20240192-CA 5 2026 UT App 97  State v. Talbert forcible sexual abuse (Count 2), and three counts of forcible sodomy (Counts 4, 5, and 6). The information included a probable cause statement that offered additional detail related to each count. Count 2 and Count 6 are particularly relevant here. ¶13 For Count 2, the information alleged that Talbert had committed forcible sexual abuse by touching Taylor’s “pubic area” or “any part of [their] genitals.” The probable cause statement recounted that Talbert had “crawled into [Taylor’s] bed and rubbed [their] vagina over [their] clothing while [they were] telling him more about [their] story (COUNT 2).” ¶14 For Count 6, the information alleged that Talbert had committed forcible sodomy by “engag[ing] in [a] sexual act . . . involving the genitals of one person and the mouth or anus of another.” And the probable cause statement alleged as follows: [Talbert] took his pants off and [Taylor] could feel his penis rubbing [their] vagina all the way to [their] anus. [Taylor] felt [Talbert] rub his penis on both [their] vaginal and anal openings . . . . [Taylor] pushed [Talbert] off of [them] and saw him pull up his pants. [Taylor] disclosed another time when [Talbert] took off [their] pants, held [Taylor] up and started licking [their] vagina . . . .[3] Pretrial Proceedings ¶15 At a hearing well before trial, the court informed Talbert of his “right to have a preliminary hearing to hear the evidence.” Talbert stated that he understood and, so advised, he made the 3. Count 6 went to the jury as being supported by the “penis to anus” incident. Talbert does not contend that this prosecutorial election was erroneous. For clarity, we refer to Count 6 only as it relates to that incident. 20240192-CA 6 2026 UT App 97  State v. Talbert decision to waive his right to a preliminary hearing. He was thus bound over for trial on all charges. ¶16 About a month before trial, the State submitted proposed jury instructions to the court. In one proposed instruction (the Information Instruction), the State included most of the text of the charging document and, for Count 2, quoted the original information’s language that Talbert stood accused of “touch[ing] [Taylor’s] pubic area, or any part of [their] genitals.” But in other proposed instructions contained in the same packet, the State proposed to offer the jury other alternatives for Count 2, including that Talbert had “touched [Taylor’s] breast” and had taken “indecent liberties with” Taylor. The State proposed offering these same alternatives in a special verdict form for Count 2. ¶17 On the first day of trial, the court and the attorneys discussed the jury instructions. In particular, the court asked Counsel if he had any objection to the proposed Information Instruction, and Counsel indicated that he did not. A few minutes later, the prosecutor stated that “in looking over” the Information Instruction, he had noticed that its description of Count 2 mentioned only genital touching and “omit[ted] ‘breasts of a female,’” which he also noticed was inconsistent with some of the other proposed instructions. The court and the parties discussed the matter, and eventually the State asked the court to amend the Information Instruction “to add ‘or breasts of a female’ in the text.” Counsel stated that he had “[n]o objection,” and the court granted the State’s motion. When the Information Instruction was eventually read to the jury, it included the additional text. That is, the jury was told that, on Count 2, Talbert stood accused of “touch[ing] the pubic area or any part of the genitals of another or the breast of a female.” (Emphasis added.) Trial ¶18 At trial, the State presented evidence from Mother, Taylor, Taylor’s father, Mother’s sister, an expert on DNA analysis, the 20240192-CA 7 2026 UT App 97  State v. Talbert nurse from the CJC, and an officer who interviewed Talbert at his house. These witnesses testified consistently with the events recounted above. The State also presented video evidence from the officer’s body camera, which had captured the officer’s interview with Talbert in its entirety. ¶19 At the close of the State’s evidence, Counsel moved for a directed verdict. Counsel’s motion and argument, in its entirety, was as follows: Well, for purposes of establishing a record, we’d move for a directed verdict at this point, and also understanding the—I would say likelihood of it being granted, I’ll leave it at that. The court denied the motion, offering its view that “there [was] some competent evidence for each of the charges in the case that have been presented so far here in the trial.” ¶20 Talbert then testified in his own defense, denying all allegations of sexual abuse and stating that he felt like he had been falsely accused. He explained that on the early December day in question, he and Taylor had had a “falling out” “regarding [Taylor’s] desire to transition to a male,” “which [Talbert] fervently rejected from a financial standpoint.” Talbert explained that this dispute had made Taylor “upset,” and he suggested that it may have led to their leveling accusations of abuse against him. ¶21 Before the final instructions were read to the jury, Counsel and the State stipulated to the language of the elements instructions as well as to the language of the special verdict form for Count 2. In that same exchange, Counsel and the State also stipulated to providing the jury with a special verdict form for Count 6, in which the jury would be given the option of finding Talbert guilty of a lesser-included offense (forcible sexual abuse) instead of forcible sodomy. The court then read the stipulated instructions to the jury. 20240192-CA 8 2026 UT App 97  State v. Talbert ¶22 In the State’s closing argument, the prosecutor emphasized the significance of Taylor’s testimony and tied specific instances of abuse to the charged counts. As relevant here, the State asked the jury to convict Talbert on Count 2 based on the first-described instance of abuse, when Taylor was in Talbert’s office and he “touch[ed] [Taylor’s] breasts.” For Count 6, the State asked the jury to convict Talbert for the “penis to anus” incident. In Counsel’s closing argument, he argued that Taylor had not been a credible witness and emphasized the lack of corroborating evidence to support Taylor’s claims. ¶23 After deliberation, the jury found Talbert guilty as charged on Counts 1 through 5. On Count 2, the jury found that Talbert had committed forcible sexual abuse by touching Taylor’s breast but not by touching Taylor’s genitals. And on Count 6, the jury acquitted Talbert of forcible sodomy, but it found him guilty of the lesser-included offense of forcible sexual abuse. ISSUES AND STANDARDS OF REVIEW ¶24 Talbert now appeals his convictions, and he asks us to consider three issues. 4 First, he asserts that Counsel rendered ineffective assistance by not objecting to the admission of evidence of uncharged acts of abuse. “A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law, which we consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d 425 (cleaned up). ¶25 Second, Talbert argues that several errors related to Count 2 warrant reversal of his conviction on that count. All of the 4. In his initial brief, Talbert raised an additional issue: that Counsel had rendered ineffective assistance by opting not to object to certain testimony that Talbert characterized as improper bolstering. But in his reply brief, Talbert withdrew this argument. Accordingly, we need not address it. 20240192-CA 9 2026 UT App 97  State v. Talbert issues Talbert raises regarding Count 2 arise for the first time on appeal, and when an “issue arises for the first time here on review, our decision is not governed by any standard of review, and we decide the matter as a question of law in the first instance.” Grewal v. Junction Market Fairview, L.C., 2024 UT 20, ¶ 12, 554 P.3d 863 (cleaned up); see also State v. Young, 2014 UT 34, ¶ 5, 337 P.3d 227 (“Challenges to subject matter jurisdiction present questions of law, which we review for correctness.” (cleaned up)); State v. Thomas, 2025 UT App 145, ¶ 15, 579 P.3d 416 (“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.”). ¶26 Third, Talbert challenges the court’s denial of his directed verdict motion regarding Count 6. “We review the [trial] court’s denial of a motion for directed verdict for correctness.” State v. Dever, 2022 UT App 35, ¶ 29, 508 P.3d 158 (cleaned up). ANALYSIS I. Evidence of Uncharged Acts ¶27 Talbert first argues that Counsel provided ineffective assistance by not objecting to Taylor’s testimony about certain uncharged acts of abuse. He asserts that this testimony was inadmissible, pursuant to rule 404(b) of the Utah Rules of Evidence, because it didn’t directly concern any of the charged events and because it raised the possibility of Talbert’s character being improperly “impugn[ed]” in the eyes of the jury. Specifically, he faults Counsel for not objecting to Taylor’s testimony about the “under-the-clothing breast touching incident,” the “breast fondling incident where [Talbert] allegedly pulled [Taylor’s] nipple,” and the “breast kissing/biting incident.” In response, the State argues that competent counsel could have chosen to “reasonably forgo an objection” because counsel could have reasonably believed that rule 404(b) would not have barred 20240192-CA 10 2026 UT App 97  State v. Talbert this testimony and that, therefore, an objection grounded in that rule would have been overruled. We agree with the State. ¶28 “To demonstrate ineffective assistance, a defendant must make a two-part showing.” State v. Broadwater, 2024 UT App 184, ¶ 34, 562 P.3d 739, cert. denied, 564 P.3d 959 (Utah 2025). First, “the defendant must show that counsel’s performance was deficient,” which “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, “the defendant must show that the deficient performance prejudiced the defense,” which “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. A defendant must prove both elements to be successful. See id. And if a claim is infirm under one of the prongs, then “the claim fails and the court need not address the other.” State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031. We choose to resolve this claim under the deficient-performance element. ¶29 To demonstrate deficient performance, the defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” State v. Popp, 2019 UT App 173, ¶ 26, 453 P.3d 657 (cleaned up). In evaluating the reasonableness of counsel’s actions, courts will often look to whether the actions counsel took were motivated by trial strategy. See State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350 (“To be sure, the performance inquiry will often include an analysis of whether there could have been a sound strategic reason for counsel’s actions.”). And while “the ultimate question is not whether there was a possible strategic reason for counsel’s conduct, but instead whether that conduct was objectively reasonable,” id., “[i]f it appears counsel’s actions could have been intended to further a reasonable strategy, a defendant has necessarily failed to show unreasonable performance,” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871. And the “failure to raise futile objections does not constitute ineffective 20240192-CA 11 2026 UT App 97  State v. Talbert assistance of counsel.” State v. Samora, 2021 UT App 29, ¶ 42, 484 P.3d 1206 (cleaned up). ¶30 Rule 404(b) prohibits admission of “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” Utah R. Evid. 404(b)(1). This rule “does not apply to evidence of the crime charged, because such evidence does not implicate a person’s purported propensity to act in conformance with the character exhibited by the evidence.” State v. Blackwing, 2025 UT 60, ¶ 29, 582 P.3d 829. Accordingly, this rule operates to exclude only “evidence that is extrinsic to the crime charged.” Id. ¶ 24 (cleaned up). Evidence that is intrinsic—that is, evidence that has “a direct relationship between the act and the charged crime”—is “outside the scope of rule 404(b).” Id. ¶ 31. Thus, evidence of uncharged acts is admissible if it “is directly connected to the factual circumstances of the [charged] crime and provides contextual or background information to the jury.” Id. ¶ 26 (cleaned up). In particular, “evidence of uncharged sexual conduct against the same child victim that is directly connected to the factual circumstances of the charged crime and provides contextual or background information to the jury is admissible— as intrinsic evidence—because showing how the perpetrator groomed the victim bears directly on the charged sexual offense.” State v. Newberry, 2026 UT App 2, ¶ 47, 584 P.3d 343 (cleaned up). ¶31 Here, Counsel could have reasonably concluded that the uncharged sexual acts Taylor described at trial were directly related to the factual circumstances of the charged crime and that evidence of those acts was therefore not barred by rule 404(b). Taylor’s testimony about the “under-the-clothing breast touching incident,” the “breast fondling incident where [Talbert] allegedly pulled [Taylor’s] nipple,” and the “breast kissing/biting incident” describes the exact type of contextual or background evidence that we have previously found to be admissible intrinsic evidence beyond the scope of rule 404(b). See id. ¶¶ 47, 52. And as in 20240192-CA 12 2026 UT App 97  State v. Talbert Newberry, the evidence of each of these instances bears directly on the charged offenses by providing circumstantial evidence of Talbert’s grooming process with Taylor. Thus, Counsel could have reasonably concluded that any rule 404(b) objection to the challenged evidence would have failed, and Counsel therefore did not perform deficiently by not lodging such an objection. II. Count 2 ¶32 Next, Talbert raises several arguments aimed at challenging his conviction on Count 2, a count on which the jury convicted him of forcible sexual abuse. At root, Talbert’s objection is that the specific acts set forth in the charging document as being connected to this charge were different from the acts the jury ultimately convicted him of committing. ¶33 As a reminder, the original information alleged that, for Count 2, Talbert had committed forcible sexual abuse by touching Taylor’s “pubic area” or “genitals.” And in the probable cause statement that accompanied the original information, the State claimed that the act underlying Count 2 was an occasion on which Talbert “crawled into [Taylor’s] bed and rubbed [their] vagina over [their] clothing while [they were] telling him more about [their] story.” By contrast, the court’s instructions gave the jury the option of convicting Talbert on Count 2 for either touching Taylor’s genitals or touching Taylor’s breasts. And the State’s prosecutorial election during trial specified that the act underlying Count 2 was the first occasion Taylor described—the one in which they said Talbert touched their breasts while the two were in Talbert’s basement office. ¶34 Talbert argues that these differences constitute a “variance” between the acts charged and the acts proved, and he asserts that this variance led to a host of problems, any of which requires reversal of his conviction on Count 2. First, he contends that this variance created a subject-matter-jurisdiction problem that renders his conviction void. Second, he contends that the 20240192-CA 13 2026 UT App 97  State v. Talbert variance created procedural-due-process and notice problems that entitle him to a new trial. And third, he asserts that this variance created a problem of proof, contending that the State did not present sufficient evidence to support a conviction regarding the Count 2 acts it alleged in the charging document. ¶35 In response, the State contests Talbert’s arguments on their merits, but it also raises three threshold issues. First, the State contends that the original information was “effectively amended,” which eliminated any variance between the charging document and the acts discussed at trial. Second, the State asserts in its brief that, by not asking for the trial to be continued, Talbert waived the right to complain about any variance. And third, the State notes that Talbert failed to raise any of these issues for consideration by the trial court, and on this basis it asserts that all of Talbert’s complaints other than subject matter jurisdiction— which, as discussed below, can be raised at any time—are unpreserved for our review on appeal. ¶36 We begin by addressing the State’s first threshold argument that the charging document was effectively amended, and we conclude that it was not. Next, we address Talbert’s assertion that the variance created a subject-matter-jurisdiction problem, and we conclude that it did not. After that, we address the extent to which Talbert’s arguments were waived by his failure to seek a continuance of the trial, and we conclude that all but one of Talbert’s arguments were waived in this way. Finally, we address the unwaived issue: the one concerning the sufficiency of the evidence on Count 2. We first conclude that Talbert failed to preserve this claim, and we then proceed to review it for plain error and to address it through the lens of Talbert’s argument that Counsel rendered ineffective assistance by not asking for a directed verdict on Count 2. Ultimately, we reject Talbert’s arguments. 20240192-CA 14 2026 UT App 97  State v. Talbert A. Amendment of the Information ¶37 We first address the State’s contention that the information was effectively amended. After all, if this contention were correct, then there would be no variance between the acts alleged in the information and the acts proven at trial, and all of Talbert’s Count 2 arguments would fail. But this contention is not correct. ¶38 Indeed, the State acknowledges that “no formal [a]mended [i]nformation” was ever “filed on the docket.” It nevertheless argues that the information was “effectively amended” when Talbert agreed, during the jury instruction conference, “that the court could include breast touching” in the Count 2 jury instructions, including the Information Instruction. The State’s argument has some force; after all, when the court described the pending charges to the jury, it recited that, on Count 2, Talbert stood accused of “touch[ing] the pubic area or any part of the genitals of another or the breast of a female.” (Emphasis added.) ¶39 But in our view, amendments to charging documents need to be consciously made, by order or consent of the court. “It is a fundamental principle of criminal law that a defendant is entitled to know ‘the nature and cause of the accusation against him [or her].’” State v. Bush, 2001 UT App 10, ¶ 14, 47 P.3d 69 (quoting Utah Const. art. I, § 12). Indeed, “[i]n a criminal proceeding[,] the accused is entitled to be charged with a specific crime so that he [or she] may know the nature and cause of the accusation against him [or her],” and “the State must prove substantially as charged the offense it relies upon for conviction.” State v. Schroeder, 2023 UT App 57, ¶ 24, 531 P.3d 757 (cleaned up). In Utah, criminal cases are initiated by the filing of an information. See Utah R. Crim. P. 4(a). And once filed, an information may be amended only if certain requirements are met. See id. R. 4(d). Most fundamentally, an information may be amended only if the court allows it. See id. ¶40 Here, no party even asked the court to amend the actual information (as opposed to the Information Instruction). The 20240192-CA 15 2026 UT App 97  State v. Talbert entire discussion took place in the context of discussing jury instructions, and while the State did ask the court to “amend that to add ‘or breasts of a female’ in the text” (emphasis added), in context the emphasized antecedent refers to the Information Instruction and not to the charging document itself. Thus, not only was no formal amended information filed in the docket, no party even asked the court to amend the information, and the court at no point ordered any such relief. ¶41 The situation might be different if, say, the court had made an oral ruling allowing amendment of the information but, due to a clerical error or oversight, the document was never actually filed. At least there—as in Fahrni v. State, 473 S.W.2d 486, 502 (Tex. App. 2015), where “the district clerk filed a supplemental clerk’s record containing [an] amended indictment,” even though no formal amendment was ever filed—we would have some indication in the record that the court had considered the issue and had actually ordered that the information be amended. But we think it stretches informality too far to hold that, merely by amending certain jury instructions and without actually considering any request to amend the information, a court has “effectively amended” the information itself. ¶42 For these reasons, we reject the State’s argument that the information was “effectively amended” through alteration of the proposed jury instructions, including the Information Instruction. B. Subject Matter Jurisdiction ¶43 Next, we address Talbert’s argument that the trial court “never acquired subject matter jurisdiction over the under-the- clothing breast touch incident, because it was not mentioned in the [i]nformation.” We are unpersuaded. ¶44 “A court has subject matter jurisdiction if the case is one of the type[s] of cases the court has been empowered to entertain by the constitution or statute from which the court derives its 20240192-CA 16 2026 UT App 97  State v. Talbert authority.” State v. Smith, 2014 UT 33, ¶ 18, 344 P.3d 573 (cleaned up). This case—a criminal case alleging that Talbert has committed a felony crime—is unquestionably “one of the type[s] of cases” that the trial court was “empowered to entertain.” See id. ¶45 “Section 78A-5-102(1) of the Utah Code grants district courts broad subject matter jurisdiction over criminal cases.” Id. ¶ 20. That statute provides district courts with “original jurisdiction in all matters civil and criminal,” “except as otherwise prohibited by the Utah Constitution or by statute.” Utah Code § 78A-5-102(1). In application of that authority, rule 4(a) of the Utah Rules of Criminal Procedure allows the State to commence an action by filing an information. ¶46 In light of these authorities, Talbert acknowledges that because “the State filed a criminal information,” the “trial court had subject matter jurisdiction over something.” (Emphasis added.) But Talbert contends that the jurisdictional inquiry is granular: he argues that “the subject matter jurisdiction a criminal information confers begins and ends with what is alleged in the information” and that because the breast-touching incident was not specifically mentioned in the information, the trial court “had no authority over” the breast-touching incident. As he sees it, with regard to Count 2, the court had jurisdiction over only the genital- touching incident and not the breast-touching incident. ¶47 This argument fails because the subject-matter-jurisdiction inquiry is not that granular. Once an information is properly filed—in the right court by the proper prosecuting entity—a trial court has subject matter jurisdiction over the entire case, see Smith, 2014 UT 33, ¶ 18, and can proceed to adjudicate it, including by making any rulings the court might be asked to make regarding any alleged variance, such as rulings on motions raising, for instance, concerns grounded in due process, notice, or sufficiency of the evidence. Such concerns may, in some cases, ultimately 20240192-CA 17 2026 UT App 97  State v. Talbert prove problematic, but the issues they present do not implicate subject matter jurisdiction. ¶48 Talbert resists this conclusion by directing our attention to Natalie R. v. State, 2025 UT 5, 567 P.3d 550, and arguing that there is another component—aside from simply asking whether the case is among the class of cases the court is empowered to entertain—to the subject-matter-jurisdiction inquiry: questions about justiciability. The court in Natalie R. did indeed clarify that “subject-matter jurisdiction comes in at least two stripes,” the second of which “embodies concepts of justiciability.” Id. ¶ 22 (cleaned up). Generally speaking, justiciability is concerned with situations in which there is no “justiciable controversy between adverse parties.” Id. ¶ 23 (cleaned up). And it finds its voice in “doctrines that impose limits on [courts’] jurisdiction, including advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions, and administrative questions.” Id. ¶ 22 (cleaned up). ¶49 But Talbert does not explain how any of these doctrines operated here to deprive the trial court of jurisdiction over the case the State filed. He does not contend that there is no justiciable controversy between adverse parties; after all, regarding Count 2, the State asserted that Talbert had committed forcible sexual abuse. And Talbert makes no effort to assert that doctrines such as mootness or ripeness are applicable here. Thus, none of the justiciability doctrines are of any assistance to Talbert in this case. ¶50 For these reasons, the trial court had subject matter jurisdiction over this case and was empowered to adjudicate the State’s Count 2 allegation that Talbert had committed forcible sexual abuse. We reject Talbert’s arguments to the contrary. C. Waiver ¶51 We next address the State’s contention that, by failing to ask the court for a continuance of the trial, Talbert waived his right 20240192-CA 18 2026 UT App 97  State v. Talbert to complain about the alleged variance. At oral argument before this court, the State clarified its position on this point: it acknowledged that, by not asking for a continuance, Talbert did not waive his right to assert that the State had failed to present evidence sufficient to prove the allegations it made in the information, but it continued to maintain that Talbert had waived any right to complain about notice-related issues, including any argument that he was deprived of procedural due process. We agree with the State’s clarified position. ¶52 The State’s argument is grounded in State v. Fulton, 742 P.2d 1208 (Utah 1987), a case in which our supreme court flatly stated that “the failure of a defendant to seek a continuance” after discovering a potential variance “negates any claim of surprise and amounts to a waiver of any claim of variance.” Id. at 1215–16. But that section of the opinion was dealing only with the defendant’s claim that, as a result of the variance, “his constitutional right to adequate notice of the time of the alleged crime” was violated. Id. at 1213. Indeed, earlier in the opinion, the court addressed, on the merits, the defendant’s claim that the State had failed to present sufficient evidence of the charged crime. See id. at 1212–13. When asked about this at oral argument before this court, the State acknowledged that Fulton does not support the contention that a defendant’s failure to seek a continuance results in a waiver of the right to make a directed verdict motion. Thus, as clarified and narrowed at oral argument, the State’s position is that Talbert’s failure to seek a continuance of the trial did not result in a waiver of his right to seek a directed verdict but that it did result in a waiver of his right to complain about notice and procedural-due-process issues. ¶53 Talbert resists this position by directing our attention to State v. Ortega, 751 P.2d 1138 (Utah 1988), a case decided by our supreme court the year after Fulton. In Ortega, the defendant was charged with two counts of sexual abuse of a child, and at a preliminary hearing, the complaining witness testified that the 20240192-CA 19 2026 UT App 97  State v. Talbert defendant had touched her inappropriately while she was under the bed and, on a different day, on a chair. See id. at 1138–39. At the conclusion of the hearing, the defendant was bound over for the under-the-bed incident, but “the on-the-chair incident was dismissed.” Id. at 1140. At the subsequent trial, however, the complaining witness testified that the defendant had touched her while she was on the chair; she did not testify that the defendant had touched her