2016 UT App 224

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DONOVAN HEATH BURNSIDE,

Appellant.

Opinion

No. 20140400-CA

Filed November 10, 2016

First District Court, Logan Department

The Honorable Clint S. Judkins

No. 111100376

Gregory N. Skabelund and Bryan Sidwell, Attorneys

for Appellant

Sean D. Reyes and Jeanne B. Inouye, Attorneys

for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES

GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

ROTH, Judge:

¶1 Donovan Heath Burnside appeals his convictions on three 

counts of aggravated sexual abuse of a child, a first-degree 

felony, under Utah Code section 76-5-404.1(4). We affirm.
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BACKGROUND1

¶2 The victim (Child) lived with her Mother and Stepfather. 

Burnside, a friend of the family, lived intermittently in the 

household from approximately January 2009 through January 

2011. In January 2011, Child told Stepfather that Burnside had 

touched Child’s genital area. The day after this disclosure, 

Mother and Stepfather took Child to a doctor. After speaking 

with them about Child’s disclosure, the doctor told them he was 

required to report the information to the authorities, which he 

did, and an investigation followed.

¶3 In the course of the investigation, a nurse practitioner at 

the Children’s Justice Center (CJC) examined Child. Also, a CJC 

detective interviewed Child (the CJC Interview), which was 

recorded and later transcribed. During the CJC Interview, Child 

told the detective that Burnside had touched her genital area on 

multiple occasions. 

¶4 The detective also separately interviewed Burnside. 

Burnside admitted during the interview to touching Child on 

three separate occasions, describing them as ‚inadvertent*+‛ or 

an ‚accident.‛ Specifically, the detective asked Burnside, ‚where 

did you touch her?‛ Burnside responded by describing a time 

when Child had her hand in her pants, and after telling her ‚that 

she shouldn’t have her hands in her pants like that,‛ Burnside 

‚pull*ed+ *her hand+ up.‛ Burnside explained to the detective 

that his ‚hands or . . . fingers or something might have touched 

something down there, but I don’t think that.‛ The detective 

then asked ‚*w+hat would *your fingers+ have touched,‛ to 

which Burnside responded that ‚*i+t was probably like her leg or 

something down there.‛ Burnside explained that on these 

 

1. ‚We view the facts in the light most favorable to the jury 

verdict and recite them accordingly.‛ State v. Montoya, 2004 UT 

5, ¶ 2, 84 P.3d 1183 (citation omitted).
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20140400-CA 3 2016 UT App 224

occasions he did not touch Child’s vagina, but only ‚the top of 

her thighs,‛ to which the detective responded ‚*a+nd the top of 

her thighs meaning between her pelvis and the top of her 

thighs?‛ Burnside responded, ‚Yes.‛ In April 2011, the State

charged Burnside with three counts of aggravated sexual abuse 

of a child. After multiple continuances, the case eventually went 

to trial in July 2013.

¶5 During voir dire the State asked the panel of potential 

jurors, ‚Are there any of you who have either been a victim or 

have ever been accused or do you have a close friend or family 

member, someone close to you, who has been a victim or has 

been accused of sexual abuse of a child?‛ Several panel members 

raised their hands. The trial court followed up by speaking with 

each responding panel member in chambers in the presence of 

the attorneys for both sides and the defendant. These inchambers proceedings were not recorded. The trial court 

eventually excused six of these potential jurors for cause. After 

the six were replaced from the jury pool, the State asked an 

almost identical question, and three more potential jurors 

answered affirmatively and were then questioned off the record 

by the trial court in chambers, again with counsel for both sides 

present. Following this second round of questioning, the trial 

court then excused one more panel member for cause. The 

excused juror was replaced and the same process was repeated a 

third time, but with no further excusals.

¶6 At trial, the State called Child, who testified that Burnside 

touched her vaginal area under her clothing ‚more than one 

time‛ when Stepfather and Mother were out of the home. On 

cross-examination, Child was asked about the CJC Interview and 

whether or not certain statements she made during the CJC 

Interview were ‚truthful.‛ The State also called Stepfather and 

Mother to testify. Each of their testimonies focused on changes 

they observed in Child’s mood before and after January 2011, 

when Child disclosed the alleged abuse to Stepfather. Stepfather

testified that prior to January 2011 Child had been ‚really 
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20140400-CA 4 2016 UT App 224

happy,‛ ‚excited to go to school,‛ ‚doing really well *with her 

schoolwork+,‛ and that she had only ‚infrequent‛ incidents of 

bed-wetting. He stated that after January 2011, however, her 

mood changed and, among other things, Child ‚went from 

*being+ a really happy rambunctious kid to kind of subdued,‛ 

became ‚physically violent‛ with her sibling, ‚did not want to 

go to school anymore,‛ and ‚started wetting the bed every night 

again.‛ Mother testified, as Stepfather had, that Child ‚was very 

happy and very spunky,‛ but after her disclosure, Child began 

‚having some problems with school‛ and became ‚feisty‛ and 

‚really ornery‛ at home. 

¶7 During cross-examination of Mother, Burnside’s trial 

counsel asked a question about arguments in the home between 

her and Stepfather ‚over *Stepfather’s+ use of narcotics *and+ 

marijuana.‛ The State objected on relevance grounds and a 

bench unrecorded conference ensued. Following the bench 

conference, Burnside’s counsel did not pursue the issue of 

Stepfather’s drug use, but instead asked Mother a line of 

questions about Stepfather’s ‚excessive drinking‛ during 

December 2010 and January 2011, about how during this same 

time Stepfather cut some of Child’s toys ‚in half with a 

bandsaw‛ for disciplinary reasons, and inquired whether these 

events ‚would have affected *Child+.‛ Mother agreed that they 

could have.

¶8 The State also called a pediatric clinical psychologist (the 

PTSD Expert) and a clinical neuropsychologist (the Depression 

Expert). The testimony from both experts focused on Child’s 

mental state after January 2011. The PTSD Expert testified that 

Child’s symptoms ‚would be representative of chronic 

posttraumatic stress disorder‛ and that PTSD in children is most 

commonly caused by neglect or physical or sexual abuse. The 

PTSD Expert was asked whether the bandsaw incident or 

discord in the home could explain Child’s PTSD symptoms. The 

expert responded that Stepfather’s cutting of Child’s toys 

‚would be of insufficient trauma to generate the intensity and 
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20140400-CA 5 2016 UT App 224

the length of the symptoms that [Child] . . . described,‛ and that 

this incident would have been of ‚insufficient quality . . . to 

generate these same symptoms across such a variety of different 

times and places and persons.‛ The PTSD Expert further testified 

that the verbal arguments between Mother and Stepfather did 

not rise to a level that would generally cause symptoms of PTSD 

in a child.2 The Depression Expert testified that Child ‚was one 

of the most depressed children she had seen‛ because Child ‚felt 

very depressed and hopeless about everything,‛ including her 

home life, school, and friends. The Depression Expert further 

testified that Child reported having ‚a lot of headaches, *and+ a 

lot of stomachaches‛ and did not want to sleep alone or attend 

school. When the Depression Expert asked Child ‚directly about 

*the+ sex abuse allegation,‛ Child said that ‚she did not want to 

ever see [Burnside] again; she was afraid of him; and that since 

he had done . . . those things to her, everything had changed in 

her life.‛ 

¶9 The State also called the nurse practitioner who initially 

examined Child at the CJC and the detective who conducted the 

CJC Interview. The nurse practitioner testified that, when any 

child is referred to the CJC, she ‚obtain[s] a medical history from 

the parents‛ before speaking with the child and ‚ask[s] [the 

child] if they know why they are [at the CJC+‛ before conducting 

a physical examination. The nurse practitioner testified that she 

initially asked Child questions to determine if Child knew why 

 

2. When asked about ‚fighting‛ and ‚quarreling‛ in the home, 

the PTSD Expert testified that, in her experience, cases where 

fighting or quarrelling in the home causes PTSD, ‚*t+he nature of 

the parents’ behavior was sufficient to warrant *that+ both 

parents be incarcerated. It involved shedding of blood. It 

involved very personal obscenities. It occurred over a course of 

many months, and the child was eventually removed from the 

home due to the severity of the parents’ behaviors.‛
State v. Burnside

20140400-CA 6 2016 UT App 224

she was at the CJC and then ‚proceeded . . . to talk about what a 

good touch is and what a bad touch is.‛ When asked ‚if anybody 

ha[d] done any bad touches *to Child+,‛ Child responded, 

‚Yes, . . . [Burnside] had,‛ and then Child ‚pointed to her private 

area.‛ When asked where the conduct had occurred, Child 

stated that it had happened in her bedroom or her sibling’s 

bedroom on multiple occasions. The nurse practitioner testified 

that she physically examined Child, with Mother present, ‚from 

head to toe and checked her genital area‛ and that ‚*Child’s+ 

examination was normal.‛ The nurse practitioner indicated,

however, that such a finding would be ‚consistent‛ with Child’s 

earlier statements. The detective testified about her investigation 

of Child’s allegations against Burnside. During the detective’s 

direct examination, the State played the CJC Interview in its 

entirety to the jury; Burnside objected only to the quality of the 

recording.

¶10 Burnside’s counsel called three witnesses: Burnside’s 

girlfriend at the time of Child’s disclosure, Child’s biological 

father, and Burnside himself. Burnside’s former girlfriend 

testified about her relationship with Burnside, as well as Mother 

and Stepfather’s lack of treatment for an ongoing condition that 

Child had in her genital area that resulted in what the family 

called ‚spicy pee.‛ Specifically, the former girlfriend recounted

that she had a conversation with Burnside and Mother in 

September 2010 about Child’s medical condition and ‚how it’s 

supposed to be taken care of‛ with ‚a cream *that Mother+ was 

supposed to have for *Child+.‛ She further testified that, in the 

‚whole time‛ she knew Mother and Stepfather, she ‚never saw 

*the cream+‛ or ‚any medication‛ for the condition in the house.

The former girlfriend also described her recollection of an 

encounter where Mother and Stepfather confronted Burnside 

about Child’s disclosure to Stepfather. 

¶11 Child’s biological father testified about Child’s ongoing 

medical condition, a urinary tract infection, and conversations he 

had had with Burnside and Mother with respect to Child’s 
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20140400-CA 7 2016 UT App 224

infection. Burnside testified about how he came to live in the 

same house as Child and about the three instances where he 

‚had done anything with regard to inspection of the private area 

of *Child+.‛ Burnside testified that in the spring of 2010 Mother 

had taken Child out of the bathtub and dried her off and then 

‚asked *Burnside+ to put a diaper on her and help her get some 

clothes,‛ and that it was during this time that he ‚noticed 

*Child’s vaginal area+ was red.‛ He also testified that at one 

point he walked by the doorway of Child’s room and noticed 

that ‚her hand was in her pants, and that’s when *he+ realized 

she was scratching.‛ He responded by telling Child that ‚she 

should not be scratching, that it could make it worse and not to 

do it,‛ and then he ‚pulled‛ her hand out of her pants. 

¶12 Burnside further testified that, in January 2011, he was in 

his bedroom and Child came into the room ‚to get *him+ for 

breakfast.‛ He noticed that Child ‚smelled like urine‛ so he 

‚pulled her pants *a+way from her body‛ (although he ‚never 

even looked in her pants‛) before telling Child to leave the room 

and go wash her hands. Trial counsel also asked Burnside about 

his interview with the detective and how the detective 

‚frequently *used+ the term ‘vaginal area’‛ during the interview. 

Counsel stated: ‚Would you tell the jury what in your mind was 

being addressed by the term ‘vaginal area’?‛ Burnside 

responded that the term ‚vaginal area,‛ as he used it during the 

interview, ‚didn’t *only+ mean the clitoris or the pee area‛ but—

as he indicated in the interview—referenced ‚the top of her 

thighs.‛ He stated that, ‚*if+ there had ever been any time‛ that 

he touched Child on her body in what the detective ‚referred 

to . . . *as+ ‘the vaginal area’,‛ ‚then it would have been by 

accident.‛ 

¶13 The jury convicted Burnside on all three counts of 

aggravated sexual abuse of a child, and the trial court sentenced 

him to concurrent prison terms of six years to life on each count. 

After trial, Burnside obtained new counsel and filed a motion to 

arrest judgment. The motion raised various claims of ineffective 
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20140400-CA 8 2016 UT App 224

assistance of counsel and alleged several other errors by the trial 

court that are pertinent to this appeal. First, Burnside asserted he 

received ineffective assistance from his trial counsel in three 

respects: counsel ‚failed to subpoena a material witness‛; ‚did 

not timely request fund*s+ for trial experts‛; and ‚did not object 

to inadmissible evidence.‛ Second, Burnside asserted that the 

trial court erred: (1) by failing to record and preserve a record of 

the in-chambers discussions during voir dire and a bench 

conference; (2) by preventing trial counsel from adequately 

questioning Child’s biological father about whether Child was 

unhappy before Burnside lived in the home; (3) by preventing 

counsel from asking Mother during cross-examination about 

Stepfather’s drug abuse, which Burnside claimed to have 

impaired his ability to ‚present relevant evidence that supported 

his theory of the case‛; (4) by allowing the nurse practitioner’s 

hearsay testimony as ‚an exception to the hearsay rule under 

statements for purposes of medical diagnosis or treatment‛; and

(5) by allowing the State to play the recording of the CJC 

Interview during the detective’s testimony in violation of 

Burnside’s due process rights. 

¶14 The trial court held an evidentiary hearing in February 

2014 on the motion to arrest judgment. Burnside called only one 

witness, his trial counsel. Burnside’s trial counsel testified that,

based on his experience, he ‚assumed‛ the in-chambers 

discussions with jurors during voir dire would be recorded as 

well as any bench conferences. He also testified that he had 

inquired at trial about drug use by Child’s parents and Child’s 

home life because he considered it ‚significant‛ ‚to show the 

condition and the trauma that may have existed at the 

time . . . would have led to trauma in the child other than the 

alleged abuse.‛

¶15 Burnside also pressed his claims of trial counsel’s 

ineffective assistance, specifically questioning counsel about why 

he did not subpoena a particular witness and why he did not 

request funding for an expert witness. Regarding the subpoena, 
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20140400-CA 9 2016 UT App 224

Burnside’s trial counsel testified that the witness, a doctor who 

had previously treated Child, was ‚no longer associated‛ with 

the medical facility where Child had been treated and therefore 

he felt evidentiary problems may have arisen when trying to 

introduce Child’s pertinent medical records. Further, trial 

counsel testified that he believed that he ‚could *still+ try to get 

*the records+ in through *Mother+.‛ Additionally, he testified 

there was ‚no money . . . available . . . for . . . discovery purposes 

and getting experts‛ because, although Burnside’s family had 

initially stated that they would make funds available for an 

expert, they later—at a point close to trial—‚informed [counsel] 

there would be none.‛

¶16 Following the evidentiary hearing, the trial court issued a 

memorandum decision and order addressing in some detail 

most of the issues Burnside now raises on appeal and denying 

Burnside’s motion to arrest judgment. Burnside appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Burnside raises multiple claims, generally under the 

rubric of plain error or ineffective assistance of counsel. Burnside 

contends that the trial court plainly erred by sustaining two of 

the State’s objections, thereby preventing him from presenting

relevant evidence; by allowing hearsay testimony from the nurse 

practitioner; by permitting the CJC Interview tape to be played 

to the jury; and by failing to ‚properly record the proceedings in 

order for an adequate record to be preserved.‛ With respect to 

Burnside’s claims about failure to record the proceedings, the 

nurse practitioner’s hearsay testimony, and the playing of the 

CJC Interview tape, he claims, alternatively, that his trial counsel 

provided ineffective assistance either by ‚not preserving a 

record‛ or by not objecting. In addition, Burnside argues that his 

trial counsel performed ineffectively by failing to subpoena a 

material witness, Child’s former doctor, who Burnside claims 

would have given testimony ‚that would support *his+ theory of 
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20140400-CA 10 2016 UT App 224

the case,‛ and was also ineffective by not timely requesting 

funds for a trial expert. 

¶18 ‚In a situation such as this, in which the trial court has 

previously held an evidentiary hearing on a motion based on 

ineffective assistance of counsel, such a claim presents a mixed 

question of law and fact.‛ State v. Perry, 899 P.2d 1232, 1238 

(Utah Ct. App. 1995) (citing Strickland v. Washington, 466 U.S. 

668, 698 (1984)). ‚Accordingly, Utah’s appellate courts have 

deferred to the trial court’s findings of fact, but review its 

application of the appropriate legal principles to its factual 

findings for correctness.‛ Id. (citing State v. Hay, 859 P.2d 1, 4–5 

(Utah 1993)). Here, because Burnside has previously raised the 

issues on appeal in his motion to arrest judgment, we review 

them as mixed questions of fact and law—we review the district 

court’s factual findings for clear error and its legal conclusions 

for correctness. See also State v. Templin, 805 P.2d 182, 186 (Utah 

1990).

ANALYSIS

¶19 ‚Appellate courts generally will not consider an issue 

raised for the first time on appeal absent plain error, exceptional 

circumstances, or ineffective assistance of counsel.‛ State v. Floyd, 

2014 UT App 53, ¶ 6, 321 P.3d 1170. Because the issues Burnside 

raises on appeal were not preserved during the trial itself, 

Burnside invokes the plain error and ineffective assistance of 

counsel exceptions to the preservation rule. ‚[T]o establish the 

existence of plain error . . . , the appellant must show the 

following: (i) [a]n error exists; (ii) the error should have been 

obvious to the trial court; and (iii) the error is harmful, i.e., 

absent the error, there is a reasonable likelihood of a more 

favorable outcome for the appellant.‛ State v. Dunn, 850 P.2d 

1201, 1208 (Utah 1993). And to establish his claim of ineffective 

assistance of counsel, Burnside ‚must show that *his+ counsel’s 

performance was deficient‛ and that ‚the deficient performance 
State v. Burnside

20140400-CA 11 2016 UT App 224

prejudiced the defense.‛ Strickland, 466 U.S. at 687. Because 

Burnside must establish both elements in order to prevail on a 

claim of ineffective assistance, ‚a failure to prove either element 

defeats the claim.‛ State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 

769.

I. Claims Related to Burnside’s Theory of the Case

¶20 Burnside contends that the trial court plainly erred 

because Burnside ‚was not allowed to present relevant evidence 

that supported his theory of the case.‛ Specifically, he asserts 

that it was ‚error for the court not to allow *him+ to introduce 

other events that may have caused *Child’s+ PTSD and/or 

depression‛ while ‚the State was allowed to fully develop its 

theory with multiple witnesses and experts.‛ In this regard, 

Burnside asserts that Child ‚was not happy‛ and was 

‚neglected‛ even before the abuse allegations and that ‚*t+his 

was witnessed by at least one medical doctor and her biological 

father.‛ He also asserts that ‚if *Child+ was suffering from PTSD, 

then it was caused by other events in the child’s life, such as the 

abuse, neglect, drinking and drug use of the step-father and 

neglect of the mother,‛ evidence he claims that he was prevented 

from fully presenting to the jury. Burnside argues that errors by 

the trial court in sustaining two of the State’s objections, together 

with his counsel’s failure to ‚subpoena a necessary witness,‛ and 

his failure to ‚timely request funds for an expert witness‛ 

essentially prevented Burnside from presenting his theory of the 

case. 

A. The State’s Objections

¶21 Burnside asserts that he was prevented from establishing

that any behavior and mood problems Child exhibited predated 

the alleged sexual abuse. Burnside focuses on two evidentiary 

rulings by the trial court that he argues were in error: (1) cutting 

off his examination of Child’s biological father about whether 

Child ‚suffered from a medical condition long before her contact 
State v. Burnside

20140400-CA 12 2016 UT App 224

with Burnside‛; and (2) preventing his cross-examination of 

Mother about Stepfather’s alleged drug use. In its memorandum 

decision following the motion to arrest judgment, the trial court 

concluded that Burnside had an adequate opportunity to present 

evidence in support of his theory. The court found that at trial 

Burnside had ‚presented evidence suggesting *Child+’s PTSD 

was a result of something other than sexual abuse‛ and that 

Burnside had ‚demonstrated‛ that ‚there was fighting in the 

home,‛ that Stepfather had used a bandsaw to cut Child’s toys, 

and that Child had sustained a broken leg and was ‚suffering 

from a chronic rash.‛ The court concluded that, as a result, ‚the 

jury was given an opportunity to consider Mr. Burnside’s 

theory‛ that Child’s change in mood and behavior had been the 

result of turmoil in the home and her health issues rather than 

sexual abuse, ‚but ultimately chose to reject it in comparison to 

other evidence, namely Mr. Burnside’s own admissions.‛ On 

appeal, Burnside does not engage with the trial court’s 

reasoning, often failing to even acknowledge that the trial court 

considered his arguments and made detailed rulings. We agree 

with the trial court that Burnside has not shown that the court’s 

evidentiary rulings wrongfully impeded his opportunity to 

present his defense.

1. Direct Examination of Biological Father

¶22 During Burnside’s direct examination of Child’s 

biological father, trial counsel asked, ‚how did you learn about 

*Child’s+ medical condition,‛ to which the witness responded 

that he had ‚known about *it+ . . . for quite some time.‛ Trial 

counsel asked, ‚*s+tarting when,‛ and the witness responded:

When she was, I want to say, six months to a year 

old, me and my wife at the time were documenting 

when she would come over for weekends—she 

would constantly come over with diarrhea, severe 

diaper rash to the point that we couldn’t change 
State v. Burnside

20140400-CA 13 2016 UT App 224

her without hurting her. We couldn’t bathe her 

without her crying.

The State objected, stating that ‚what happened when she was 

six months to a year old‛ is not ‚relevant to why we’re here 

today.‛ The district court responded, ‚*t+hat very well may be,‛ 

but then directed the witness to ‚*j+ust respond to the question‛ 

and not continue ‚with additional narrative.‛ Child’s biological 

father responded to the original question and testified that he 

‚discovered *Child’s medical condition+ when she was very 

young.‛ Trial counsel then went on to briefly establish, without 

interruption from the State or the court, that the biological father 

was aware the medical condition persisted during the years 

when he was later serving in the military. 

¶23 Burnside seems to argue that the court’s instruction to the 

witness to ‚*j+ust respond to the question‛ is equivalent to the 

court having sustained the State’s objection and therefore, 

according to Burnside, ‚the trial court did not allow this line of 

questioning.‛ Burnside then argues that ‚*t+his evidence is 

relevant because it rebutted the testimony of [Mother] and 

[Stepfather] that [Child] was happy and had a pleasant 

childhood. It showed that [Child] was suffering from a medical 

condition long before Burnside lived in the house. Further, it 

showed that *Child+ was unhappy for years.‛ But in response to 

the State’s relevance objection, the trial court did not rule that 

the evidence was irrelevant or place any restrictions on trial 

counsel’s questions. Rather, the court merely told the witness to 

avoid giving narrative testimony—to respond to trial counsel’s 

specific question but not volunteer additional information. Thus, 

there was nothing in the court’s response that prevented trial 

counsel from continuing that line of inquiry had he believed it 

was important. But counsel apparently did not think it 

important to focus further on Child’s condition in early 

childhood, and instead moved on to questions about the 

biological father’s visits with Child as she grew older and his 

observations of her ongoing medical condition at a time closer to 
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20140400-CA 14 2016 UT App 224

the events in question. As a consequence, Burnside has failed to 

identify any error by the court, much less an obvious one. See 

Dunn, 850 P.2d at 1208 (noting that the showing of plain error 

requires that ‚*a+n error exists‛ and that ‚the error should have 

been obvious to the trial court‛).

¶24 Moreover, the record reveals that the jury heard 

substantial evidence from other witnesses that Child had 

suffered from a painful rash when she was very young and that 

the rash had continued to trouble her both before and after the 

alleged sexual abuse. For example, the biological father’s 

testimony both before and after the court’s comment to ‚*j+ust 

respond to the question‛ established that Child had a painful 

rash beginning at a very young age, and Mother had already 

testified that Child began complaining of pain caused by the 

rash ‚around two,‛ which caused Mother to seek help from ‚a 

specialist.‛ Stepfather had also testified that when Child was 

‚*p+robably five,‛ he and Mother had taken Child to ‚several 

specialists,‛ one who prescribed an ointment, but that Child still 

would ‚whine a lot if she had to urinate‛ because it ‚stung when 

she urinated.‛

¶25 Thus, Burnside has not persuaded us that the trial court 

erred in its response to the State’s objection or, even if it did, that 

Burnside’s presentation of his case was prejudiced. See State v. 

Norton, 2003 UT App 88, ¶ 24, 67 P.3d 1050 (concluding that it 

was not an abuse of discretion when the trial court did not allow 

the defendant to provide ‚further testimony,‛ which the court 

determined was among other things, ‚cumulative‛).

2. Cross-Examination of Mother

¶26 During cross-examination, trial counsel asked Mother 

whether she and Stepfather had ‚arguments . . . over 

*Stepfather+’s use of narcotics, [and] marijuana.‛ The State 

objected on relevance grounds, and the court called both counsel 

to the bench. The recording of the bench conference was cut 
State v. Burnside

20140400-CA 15 2016 UT App 224

short after trial counsel’s statement that ‚*t+he relevance is I’m 

going to introduce into evidence . . . .‛ The court apparently 

sustained the objection, however, because following the bench 

conference, trial counsel did not pursue questions about 

Stepfather’s drug use. Counsel instead asked questions 

regarding ‚significant arguments‛ between Mother and 

Stepfather that Mother conceded had occurred, and Mother 

ultimately agreed that these arguments ‚would have affected‛ 

Child. 

¶27 Burnside argues that the trial court should have allowed 

trial counsel to question Mother about Stepfather’s drug use. 

Burnside asserts that ‚the adverse effects of *Child’s+ stepfather’s drug use, criminal arrest and the stress these activities 

were causing in the home‛ were part of the environment of 

‚abuse and neglect *by+ her step-father and mother,‛ rather than 

sexual abuse, that could have caused any ‚change in *Child’s+ 

behavior.‛ But he provides no more than conclusory statements 

about drug use on Stepfather’s part without identifying any 

basis in fact for those allegations. Cf. State v. Emmett, 839 P.2d 

781, 786–87 (Utah 1992) (‚Generally, it is error to ask an accused 

a question that implies the existence of a prejudicial fact unless 

the prosecution can prove the existence of the fact. Otherwise, 

the only limit on such a line of questioning would be the 

prosecutor’s imagination.‛ (footnote omitted)). Nor is there any 

indication that during the bench conference trial counsel 

proffered that he would establish an appropriate factual 

foundation for such questions. And without factual support for 

this claim, we can do no more than speculate that, had the trial 

court allowed questioning regarding Stepfather’s alleged drug 

abuse, that ‚there [would be] a reasonable likelihood of a more 

favorable outcome.‛ State v. Dunn, 850 P.2d 1201, 1208 (Utah 

1993); see generally State v. Kirkwood, 2002 UT App 128, 47 P.3d 

111 (explaining that speculative assignments of error 

unsupported by the record do not constitute grounds for 

reversal). 
State v. Burnside

20140400-CA 16 2016 UT App 224

¶28 Indeed, even if Burnside had established that Stepfather 

and Mother argued about Stepfather’s alleged drug use, we are 

not persuaded that the outcome would have changed. As we 

have discussed, Burnside presented substantial evidence 

supporting his position that Child’s PTSD was a result of 

something other than sexual abuse. Specifically, trial counsel 

elicited testimony that there were arguments in the home 

between Mother and Stepfather that Mother agreed would have 

affected Child, that Stepfather cut some of Child’s toys in half 

with a bandsaw to discipline her, that Child had broken her leg, 

and that she was suffering from a chronic rash that long 

predated Burnside’s arrival in the house. He has not persuaded 

us that further specifying the cause of some of the marital 

discord in the house as related to Stepfather’s drug use would 

have changed the outcome. 

¶29 Accordingly, we conclude that Burnside has not 

demonstrated that the trial court erred when it sustained the 

State’s objection to Mother’s question.

B. The Former Doctor’s Testimony

¶30 Burnside argues on appeal that his trial counsel was 

ineffective for failing to subpoena Child’s former doctor to 

testify about Child’s preexisting medical condition in order to 

counter the State’s claim that Child’s PTSD stemmed from sexual 

abuse. Burnside alleges that this former doctor could have 

testified about a medical appointment with Child during which

she was so upset by the effects of her rash that he could not 

complete his examination. According to Burnside, the testimony 

of Child’s former doctor was necessary to show that Child ‚had 

been a very unhappy child long before Burnside was in her life.‛ 

But Burnside has provided no more than conclusory statements 

about what the doctor would have said at trial had he been 

called. Although the trial court held an evidentiary hearing on 

Burnside’s motion to arrest judgment, Burnside presented no 

evidence even identifying the doctor, much less showing what 
State v. Burnside

20140400-CA 17 2016 UT App 224

the doctor’s testimony would have been if called. Nor has he 

sought a remand under appellate rule 23B to develop an 

appropriate record.3

¶31 Instead, Burnside cites State v. Templin, 805 P.2d 182 (Utah 

1990), for the proposition that trial counsel’s performance was 

deficient under Strickland ‚because *he+ did not make a 

reasonable investigation into the possibility of procuring [a] 

prospective defense witness*+.‛ We have previously discussed 

Templin in the context of whether an attorney’s failure to 

investigate potential witnesses prejudiced a defendant. In State v. 

Curtis, 2013 UT App 287, 317 P.3d 968, we stated:

In Templin, the Utah Supreme Court reversed a 

rape conviction because defense counsel failed to 

interview a witness ‚who would have testified that 

she saw defendant and the victim kissing 

passionately for over fifteen minutes . . . at the 

address of and within an hour of the rape reported 

by the victim.‛ This testimony, the court noted, 

would have contradicted the victim’s testimony, 

which was ‚the only direct evidence of *the 

defendant’s+ guilt.‛ But the court also mentioned in 

a footnote that failing to interview and call another 

witness was not ineffective assistance because even 

though the defendant ‚provided . . . an affidavit 

stating that [the witness] was never contacted by 

trial counsel,‛ he did not provide ‚any evidence 

concerning what [the witness] would have testified 

 

3. Rule 23B permits entry of additional findings of fact under 

certain circumstances: ‚A party to an appeal in a criminal case 

may move the court to remand the case to the trial court for 

entry of findings of fact, necessary for the appellate court’s 

determination of a claim of ineffective assistance of counsel.‛ 

Utah R. App. P. 23B(a). 
State v. Burnside

20140400-CA 18 2016 UT App 224

to . . . *at+ trial.‛ ‚Therefore,‛ the court held, the 

defendant could not show ‚a reasonable 

probability that the result of his trial would have 

been different‛ had the witness testified.

Id. ¶ 40 (alterations and omissions in original) (citations 

omitted). Like Templin, Curtis asserted that his attorney ‚was 

aware of other potential witnesses,‛ but that he ‚failed to 

investigate and interview *them+.‛ Id. ¶ 41 (citation and internal 

quotation marks omitted). But, like Templin, Curtis gave ‚no 

description‛ regarding what one of the witnesses ‚would have

testified to at trial,‛ and his description of the potential 

testimony of the other witness was limited to ‚a single line‛ 

from an affidavit. Id. ¶ 42. In denying Curtis’s request for 

remand under rule 23B of the Utah Rules of Appellate 

Procedure, we stated that ‚*e+ven were we to assume that trial 

counsel failed to interview both witnesses, Curtis has not shown 

that he was prejudiced.‛ Id. ¶ 42. We concluded that, 

Without nonspeculative evidence establishing 

what each witness could have testified to at trial, 

Curtis has not shown that any deficient 

performance by trial counsel in failing to interview 

them was ‚so serious‛ that it ‚deprive*d+ *him+ of a 

fair trial,‛ and ‚that there is a reasonable 

probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have 

been different[.]‛

Id. ¶ 42 (alterations in original) (quoting State v. Lenkart, 2011 UT 

27, ¶ 38, 262 P.3d 1).

¶32 Burnside’s claim suffers from the same deficiencies. Even 

if trial counsel acted unreasonably in failing to ensure the doctor 

was available to testify at trial, by failing to identify the doctor 

and present nonspeculative evidence—more than a simple 

proffer—of what he would have testified to if called, Burnside 
State v. Burnside

20140400-CA 19 2016 UT App 224

has failed to demonstrate that trial counsel’s deficiencies were 

‚so serious that *he was+ deprive*d+ . . . of a fair trial.‛ See id.

(second alteration in original) (citation and internal quotation 

marks omitted); State v. Hales, 2007 UT 14, ¶ 51, 152 P.3d 321 (‚If 

a defendant claims prejudice because a certain document or a 

previously available witness is now missing or unavailable, the 

defendant must provide the ‘expected content’ of the document 

or the witness’s testimony and indicate how that document or 

witness would have aided the defense.‛). The importance of the 

requirement for more than just conclusory statements about a 

witness’s likely testimony is underscored in this case because, as 

the court noted, ‚Mr. Burnside’s trial counsel confirmed during 

oral argument he had explored *the+ theory during trial.‛ 

Indeed, as we have discussed in more detail above, considerable 

evidence about Child’s medical condition was presented at trial. 

As the district court found, other witnesses testified that Child 

was suffering from a recurring rash and there was additional 

evidence to support Burnside’s theory that her PTSD could have 

been caused by factors unrelated to sexual abuse, including 

serious discord in the home, disturbing parental discipline, and 

Child’s chronic rash.

¶33 Without providing concrete information identifying 

Child’s former doctor and his potential testimony, Burnside 

cannot persuade us that the trial court was wrong in its 

conclusion that the doctor’s purported testimony about a single 

incident regarding Child’s rash ‚would merely be cumulative 

and reaffirm what the jury already knew.‛ In other words, by 

failing to demonstrate that ‚the evidentiary picture and the 

inferences drawn therefrom would not have been significantly 

different‛ if trial counsel had called this unidentified doctor and 

if the doctor would have testified as Burnside now asserts that 

he would have, Burnside has failed to demonstrate that any 

error of counsel prejudiced him. See State v. Idrees, 2014 UT App 

76, ¶ 16, 324 P.3d 651 (internal quotation marks omitted)); see also 

Strickland v. Washington, 466 U.S. 668, 694 (1984) (explaining that 
State v. Burnside

20140400-CA 20 2016 UT App 224

in order to demonstrate that counsel’s error prejudiced the 

defendant, ‚*t+he defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceedings would have been different‛).

C. Expert Witness Funding

¶34 Burnside also contends that his trial counsel was 

ineffective for not timely requesting funding for an expert 

witness to counter the State’s PTSD Expert. On appeal, 

Burnside’s entire argument on this issue is as follows:

Burnside’s attorney knew that an expert was 

necessary to assist him in preparing for a complete 

and adequate defense. However, he did not make 

timely preparation to hire an expert to get funds 

from the county to pay for such expert services.

The State of Utah gave Burnside notice that 

it intended to call several witnesses. Burnside’s 

attorney knew that a necessary part of the defense 

would be to call his own expert that could testify 

consistent with Burnside’s theory of the case. On or 

about July 11, 2013, Burnside’s attorney filed a 

Motion for Funds for Experts and Private 

Investigator. The motion was denied because it 

was not timely. Consequently, Burnside had no 

witness to rebut the State’s expert witnesses, 

especially [the PTSD Expert]. 

(Citations omitted.) 

¶35 The briefing on this issue is inadequate because it does 

not ‚contain the contentions and reasons of the appellant with 

respect to the issues presented . . . with citations to the 

authorities, statutes, and parts of the record relied on.‛ Utah R. 

App. P. 24(a)(9). These conclusory statements are insufficient to 

establish that trial counsel failed to meet the standards for 
State v. Burnside

20140400-CA 21 2016 UT App 224

reasonable representation or, if he did, how he prejudiced 

Burnside. See Allen v. Friel, 2008 UT 56, ¶ 24, 194 P.3d 903 

(concluding that defendant inadequately briefed his claim of 

ineffective assistance because, among other things, defendant 

‚did not offer any analysis of whether these actions *by counsel+ 

were objectively deficient or describe how they prejudiced his 

defense if they were‛); see also State v. Singh, 2011 UT App 396, 

¶ 4, 267 P.3d 281 (declining to address defendant’s inadequately 

briefed arguments because defendant ‚fail*ed+ to provide 

supporting record citations, . . . ma[de] conclusory statements 

about the elements of his ineffective assistance of counsel claims, 

and fail[ed] to develop the legal authority that support[ed] his 

arguments‛ (footnotes and citation omitted)). Indeed, with 

regard to Strickland’s prejudice prong, Burnside fails to 

acknowledge—much less analyze and refute—the trial court’s 

decision that he had failed to demonstrate prejudice from any 

claimed deficiency in trial counsel’s performance.

¶36 At the evidentiary hearing, the court heard testimony 

from Burnside’s trial attorney. Trial counsel testified that he had 

spoken with two experts about Burnside’s case, but ultimately 

the funding, which had previously been assured by Burnside’s 

family, was not made available. Trial counsel testified he 

therefore filed a motion asking the trial court to make funding 

available for an expert witness, which the trial court denied as 

being untimely. In its ruling on Burnside’s motion to arrest 

judgment, the trial court found that,

Mr. Burnside fail[ed] to show how [his trial 

counsel’s+ failure to request funding for trial 

experts fell below [Strickland’s+ objective standard. 

The only witness called during the evidentiary 

hearing was *Burnside’s trial counsel+. In order to 

sufficiently support his ineffective assistance of 

counsel claim, Mr. Burnside would need to call an 

additional witness, or present some other 

satisfactory evidence, demonstrating that expert 
State v. Burnside

20140400-CA 22 2016 UT App 224

testimony would be essential to his defense. 

Without that evidence for comparison, the Court 

cannot evaluate the likelihood the trial proceeding 

would have been any different. The Court cannot 

simply take Mr. Burnside’s word alone.

¶37 The trial court concluded that ‚*e+ven if the Court were to 

determine the alleged errors fell below Strickland’s objective 

standard, Mr. Burnside has failed to demonstrate how those 

errors would have changed the result of the proceeding, 

especially in light of Mr. Burnside’s own admission to touching 

*Child+ in her vaginal area.‛ 

¶38 We agree with the trial court. Neither in the trial court nor 

on appeal4 has Burnside identified any expert that his trial 

counsel should have called or established what such an expert’s 

testimony would have been. As a consequence, even if we 

assume that trial counsel’s failure to timely move the court for 

expert witness funding was unreasonable, Burnside has not 

shown prejudice. He has not identified an expert or shown what 

that expert would have testified to that would have been 

reasonably likely to make a difference in the outcome, nor has he 

shown how a particular expert’s advice to counsel would have 

resulted in more effective cross-examination of the State’s expert 

witnesses. Accordingly, Burnside’s claims of ineffective 

representation are speculative, and ‚proof of ineffective 

assistance of counsel cannot be a speculative matter but must be 

a demonstrable reality.‛ Fernandez v. Cook, 870 P.2d 870, 877 

(Utah 1993); see also State v. Millard, 2010 UT App 355, ¶ 31, 246 

P.3d 151 (‚Neither speculative claims nor counsel’s failure to 

make futile objections establish ineffective assistance of counsel.‛ 

 

4. As we have noted, Burnside did not file a motion for remand 

to the trial court ‚for entry of findings of fact, necessary for the 

appellate court’s determination of a claim of ineffective 

assistance of counsel.‛ Utah R. App. P. 23B(a).
State v. Burnside

20140400-CA 23 2016 UT App 224

(citation and internal quotation marks omitted)). ‚Without 

nonspeculative evidence establishing what each witness could 

have testified to at trial, [Burnside] has not shown that any 

deficient performance by trial counsel in failing to [obtain 

funding for a trial expert] was so serious that it deprived[d] 

[him] of a fair trial, and that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.‛ State v. Curtis, 2013 UT 

App 287, ¶ 42, 317 P.3d 968 (third and fourth alterations in 

original) (citation and internal quotation marks omitted).

II. Burnside’s Remaining Claims

¶39 Burnside raises three other issues, claiming all three were

plain error by the trial court. He claims two issues amounted to 

ineffective assistance of counsel as well. He contends that the 

court should have stricken the ‚entire testimony‛ of the nurse 

practitioner as ‚inadmissible hearsay‛ and that trial counsel 

should have objected to her testimony; that the court should not 

have allowed the State to play Child’s CJC Interview during the 

detective’s testimony because Child was thereby ‚allowed to

testify twice during the trial‛; and that ‚*t+he court did not 

properly record the proceedings in order for an adequate record 

to be preserved,‛ an error abetted by trial counsel’s own failure 

to ensure that a proper record was made. 

A. The Nurse Practitioner’s Testimony

¶40 Burnside contends that it was plain error for the trial 

court to allow the nurse practitioner’s testimony to be presented 

to the jury because it was inadmissible hearsay. He also argues 

that his counsel was ineffective for failing to object to her 

testimony. Burnside asserts on appeal, just as he did in his 

motion to arrest judgment, that the nurse practitioner was 

‚acting as a de facto law enforcement officer and not a medical 

health professional‛ and therefore her testimony did not qualify 
State v. Burnside

20140400-CA 24 2016 UT App 224

for admission under the hearsay exception for a statement made 

for purposes of medical diagnosis or treatment. 

¶41 In its memorandum decision, the district court ruled that 

it was not plain error to allow the nurse practitioner to testify 

because her testimony ‚was admissible as an exception to the 

hearsay rule because the statements were pertinent to medical 

diagnosis or treatment.‛5 Utah R. Evid. 803(4). In support of this 

conclusion, the court found that the nurse practitioner ‚testified 

that as part of her employment she conducts medical evaluations 

on children‛ to ensure their health, safety, and well-being; that 

she was seeing Child due to a report of a ‚bruise inside her 

genital area‛; that ‚a head-to-toe physical examination‛ was 

completed to ‚determine if *Child+ had suffered injuries‛; and 

that the questions asked by the nurse practitioner were to 

‚determin*e+ whether *Child+ displayed symptoms of having 

been sexually abuse[d] and to determine if she required medical 

treatment.‛ Additionally the court ‚decline*d+ to consider Mr. 

Burnside’s plain error argument because it appear*ed+ he 

actively waived any objection as a matter of trial strategy.‛ The 

court stated in its ruling:

During cross-examination, [the nurse practitioner] 

was asked whether or not she had inquired if 

anyone had ‚suggested bad or good touch 

terminology‛ to *Child+ prior to the examination. 

 

5. A statement made for medical diagnosis or treatment falls 

within an exception to the hearsay rule if the statement ‚(A) is 

made for—and reasonably pertinent to—medical diagnosis or 

treatment; and (B) describes medical history; past or present 

symptoms or sensations; their inception; or their general cause.‛ 

Utah R. Evid. 803(4). Additionally, ‚a statement by a child to a 

parent for purposes of obtaining medical assistance would 

probably qualify as well.‛ R. Collin Mangrum & Dee Benson, 

Mangrum & Benson on Utah Evidence 806 (2014).
State v. Burnside

20140400-CA 25 2016 UT App 224

[The nurse practitioner] testified that others had 

indeed talked to [Child] about good and bad touch. 

Mr. Burnside appears to have elicited the 

information in order to support an overarching 

defense theory that *Child’s+ statements may have 

been improperly influenced by outside sources. 

Thus, the Court was not called upon to make a 

determination as to admissibility because Mr. 

Burnside decided to use the information in support 

of his defense. 

(Citation omitted.)

¶42 On appeal, Burnside again argues that ‚it was plain error 

to admit *the nurse practitioner’s+ testimony‛ and that his 

counsel acted deficiently in not objecting to it. But an attorney’s 

decision to forgo an objection as a matter of trial strategy cuts 

strongly against a finding of either plain error or ineffective 

assistance of counsel. See State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 

162 (concluding that trial counsel’s failure to object to testimony 

was not ineffective assistance because it could have been part of 

a reasonable strategy); State v. Morgan, 813 P.2d 1207, 1211 (Utah 

Ct. App. 1991) (refusing to consider the merits of appellant’s 

plain error argument because ‚it was within counsel’s 

professional discretion to not object to testimony that would aid 

*trial+ strategy‛). Burnside has failed to address (or even 

acknowledge) the trial court’s decision on this issue. See Allen v. 

Friel, 2008 UT 56, ¶ 4, 194 P.3d 903 (recognizing that the 

appellant has the obligation to challenge the basis of the trial 

court’s decision and the burden to show error in that decision).

¶43 Nor has Burnside attempted to show that the court’s 

factual findings in support of its decision were clearly erroneous. 

See R.B. v. L.B., 2014 UT App 270, ¶ 26, 339 P.3d 137 (‚An 

appellant challenging a finding of fact bears the heavy burden of 

demonstrating that the finding is clearly erroneous and must do 

so by showing that the finding is without adequate evidentiary 

support or was induced by an erroneous view of the law.‛). In 
State v. Burnside

20140400-CA 26 2016 UT App 224

particular, he has not challenged the court’s factual findings that 

support a conclusion that in examining Child, the nurse 

practitioner was acting as a health-care professional and that 

Child’s statements to her fell within the medical treatment 

hearsay exception. Nor has he challenged the trial court’s 

finding that his trial counsel had a strategic basis for not 

objecting to the nurse practitioner’s testimony. As a 

consequence, we are not persuaded either that the trial court 

committed plain error or that trial counsel acted contrary to

reasonable professional standards in allowing nurse practitioner 

to testify as she did. See Morgan, 813 P.2d at 1211.

B. The CJC Interview

¶44 Burnside next contends that the trial court plainly erred 

by permitting the State to play the CJC Interview for the jury 

during the detective’s testimony, when Child had already 

testified. Burnside asserts that ‚once the victim testified, the 

State of Utah [could not] use the video as a sword and have the 

ability to testify twice.‛ Burnside notes that ‚*r+ules of evidence 

prohibit the admissibility of repetitive and cumulative evidence‛ 

and argues that permitting the CJC Interview to be played after 

Child had already testified ‚place*d+ an undue emphasis‛ on her 

‚testimony over other witnesses.‛ (Citing Utah R. Evid. 611(a).)

¶45 At the end of the first day of trial and after the jury was 

excused, the trial court asked each side to state how long they 

expected the presentation of any additional witnesses to take. It 

was at this point that the State responded, ‚I guess the final 

witness is going to be the detective, and the longest part of her 

testimony is going to be playing the approximately hour-long 

tape of *Burnside’s+ interview and possibly playing an 18-minute 

clip of [the CJC Interview]. That’s our case.‛ Burnside’s trial 

counsel responded, ‚We can still stipulate to that *CJC

Interview+ testimony.‛ To which the State replied, ‚Yeah, I think 

we’re going to move to admit the CJC tape.‛ 
State v. Burnside

20140400-CA 27 2016 UT App 224

¶46 In its decision on the motion to arrest judgment, the trial

court concluded that it ‚need not determine whether or not the 

admission of the video in addition to *Child’s+ live testimony 

was plain error because Mr. Burnside stipulated to its use at 

trial.‛ The court went on to explain that it ‚will not entertain a 

plain error argument when Mr. Burnside stipulated to the very 

error he claims denied him of due process.‛ Further, the court 

found that the stipulation was ‚a strategic choice,‛ because

prior to the video even being shown to the jury, 

Mr. Burnside’s trial counsel cross-examined [Child] 

and tried to elicit inconsistencies by referencing the 

video interview. Mr. Burnside cannot now reverse 

his position after a verdict has been rendered 

against him and argue it was plain error for the 

Court to allow the video.

We agree with the trial court.

¶47 First, trial counsel invited any error by stipulating to 

admission of the CJC Interview. Accordingly, plain error review 

is not available to Burnside for this claim. See State v. Winfield, 

2006 UT 4, ¶ 14, 128 P.3d 1171 (‚*U+nder the doctrine of invited 

error, we have declined to engage in even plain error review 

when ‘counsel, either by statement or act, affirmatively 

represented to the [trial] court that he or she had no objection to 

the *proceedings+.’‛ (second and third alterations in original) 

(quoting State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111)). 

¶48 And even if Burnside were entitled to plain error review, 

he has failed to prove that any error that might have occurred 

was obvious. See State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (‚To 

prevail under plain error review, a defendant must demonstrate 

that [1] an error exists; [2] the error should have been obvious to 

the trial court; and *3+ the error is harmful . . . .‛ (alterations in 

original) (citation and internal quotation marks omitted)). As we 

have noted, the trial court found that counsel had used the video 
State v. Burnside

20140400-CA 28 2016 UT App 224

to demonstrate inconsistencies between Child’s testimony and 

her prior statements at the CJC: ‚*P+rior to the video even being 

shown to the jury, Mr. Burnside’s trial counsel cross-examined 

[Child] and tried to elicit inconsistencies by referencing the 

video interview.‛ The court therefore found that counsel’s 

failure to object was not simply an inadvertent omission, but ‚a 

strategic choice,‛ a finding that Burnside has not challenged on 

appeal. It is not obvious error for a court to decline to intervene 

where there is a plausible strategic basis for counsel’s decision to 

refrain from objecting to given evidence. See State v. Bedell, 2014 

UT 1, ¶ 26, 322 P.3d 697 (‚A district court is not required to 

constantly survey or second-guess *a+ nonobjecting party’s best 

interests or trial strategy and is not expected to intervene in the 

proceedings unless the evidence would serve no conceivable 

strategic purpose.‛ (alteration in original) (citation and internal 

quotation marks omitted)); State v. Hall, 946 P.2d 712, 716 (Utah 

Ct. App. 1997) (‚We . . . will decline to consider a defendant’s 

plain-error arguments if the alleged errors reasonably resulted 

from defense counsel’s conscious decision to refrain from 

objecting, or if defense counsel led the trial court into error.‛ 

(citation and internal quotation marks omitted)); see also State v. 

Brown, 948 P.2d 337, 343 (Utah 1997) (‚If trial counsel 

intentionally fails to object, the trial judge is put in the untenable 

position of deciding whether to intervene and potentially 

interfere with trial counsel’s strategy or face review for plain 

error.‛).

¶49 Accordingly, we conclude that Burnside has not 

demonstrated that the trial court plainly erred in permitting the 

State to play the CJC Interview for the jury during the 

examination of the detective.6

 

6. Burnside asserts in the Statement of Issues section of his 

opening brief that his trial counsel’s failure to object to the 

playing of the CJC Interview constituted ineffective assistance of 

(continued<)
State v. Burnside

20140400-CA 29 2016 UT App 224

C. The Inadequate Record

¶50 Burnside finally contends that the trial court erred when it 

‚did not properly record the proceedings in order for an 

adequate record to be preserved‛ of the in-chambers voir dire of 

individual jurors and of a bench conference following the State’s 

objection to trial counsel’s question to Mother about Stepfather’s 

alleged drug use. As these issues were not preserved by 

objection during the trial itself, Burnside asks us to consider his 

claims under the plain error and ineffective-assistance-of-counsel 

exceptions to the preservation rule. See State v. Floyd, 2014 UT 

App 53, ¶ 6, 321 P.3d 1170 (‚Appellate courts generally will not 

consider an issue raised for the first time on appeal absent plain 

error, exceptional circumstances, or ineffective assistance of 

counsel.‛). 

¶51 There can be no question that the trial court erred in this 

respect. The responsibility of a trial court in what is expressly 

designated a court of record to ensure that proceedings are 

 

(<continued)

counsel as well as plain error on the part of the trial court. But 

Burnside fails to mention an ineffective assistance claim in his 

argument on this issue. Thus, this claim must fail. See Allen v. 

Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (‚An appellate court is not a 

depository in which [a party] may dump the burden of 

argument and research.‛ (alteration in original) (citation and 

internal quotation marks omitted)); see also Utah R. App. P. 

24(a)(9). But even if we were to address it, our discussion of the 

trial court’s determination that trial counsel had a strategic basis 

for admitting the CJC Interview applies equally to any claim that 

counsel was ineffective for failing to object. See State v. Tennyson, 

850 P.2d 461, 468 (Utah Ct. App. 1993) (recognizing that 

‚authority from this court supports the notion that an ineffective 

assistance claim succeeds only when no conceivable legitimate 

tactic or strategy can be surmised from counsel’s actions‛).
State v. Burnside

20140400-CA 30 2016 UT App 224

properly recorded is a point we made in the first year of this 

court’s existence. Briggs v. Holcomb, 740 P.2d 281, 282–83 (Utah 

Ct. App. 1987). Since then, we have repeated time and again that 

all district court proceedings must be recorded, a precept that 

applies to conferences in chambers and at the bench, not just to 

more formal proceedings in open court. State v. Suarez, 793 P.2d 

934, 936 n.3 (Utah Ct. App. 1990); see also Birch v. Birch, 771 P.2d 

1114, 1116 (Utah Ct. App. 1989) (‚As we have previously held, a 

record should be made of all proceedings of courts of record.‛). 

In addition, though maintaining a record is primarily the 

obligation of the court, arguably trial counsel also has some 

responsibility to ensure that court proceedings are properly 

recorded to facilitate an effective appeal. Cf. State v. Litherland, 

2000 UT 76, ¶ 16, 12 P.3d 92 (‚*W+here, on direct appeal, 

defendant raises a claim that trial counsel was ineffective . . . , 

defendant bears the burden of assuring the record is adequate.‛) 

Thus, the failure to ensure a complete record of proceedings 

meets the standard for obvious error by the trial court and could 

amount to deficient performance by counsel, as well. 

Nevertheless we conclude that Burnside has not met his burden 

on appeal to show prejudice. See State v. Garcia, 2016 UT App 59, 

¶ 29, 370 P.3d 970 (‚Because both deficient performance and 

prejudice are requisite elements of a claim of ineffective 

assistance of counsel, failure to prove either element necessarily 

defeats the claim.‛).

¶52 During voir dire, the State asked all potential jurors: ‚Are 

there any of you who have either been a victim or[,] have ever 

been accused[,] or do you have a close friend or family 

member[s], someone close to you, who has been a victim or has 

been accused of sexual abuse of a child?‛ After a show of hands, 

the court stated, ‚I think under the circumstances because it is 

such a sensitive question in a person’s background, I would 

invite each one of you to come in with the attorneys present in 

chambers, and we’ll ask you a few questions and then follow 

through with that.‛ Venire members who had raised their hands 
State v. Burnside

20140400-CA 31 2016 UT App 224

were then called into chambers to be questioned individually. 

Apparently by inadvertence, no record was made of this part of 

the voir dire. Similarly, the State’s objection to trial counsel’s 

question to Mother regarding Stepfather’s drug use led to a 

bench conference that was not recorded.

¶53 Burnside asserts that because of these missing portions in 

the record he is prejudiced in two ways. With regard to the jury 

voir dire, Burnside argues that ‚his due process rights have been 

violated because an adequate record was not preserved.‛ 

Specifically, he contends that, because the district court ‚did not 

properly record the proceedings,‛ ‚an adequate record was not 

preserved in order for him to know which potential jurors were 

objected to and whether potential problem jurors ended up on 

the jury panel.‛ And regarding the bench conference, Burnside 

claims that the lack of a record prejudiced ‚his ability to raise 

that issue on appeal.‛ He notes that, although ‚*o+ne can 

conclude that the ruling was against [him] because there were no 

additional questions asked regarding drug use and *Stepfather+’s 

criminal activity,‛ the incomplete record ‚does not reflect what 

evidence [trial counsel] wished to introduce.‛ 

¶54 Burnside is correct that ‚*d+ue process requires that there 

be a record adequate to review specific claims of error already 

raised.‛ State v. Prawitt, 2011 UT App 261, ¶ 8, 262 P.3d 1203 

(citation and internal quotation marks omitted). ‚However, the 

ultimate burden is on a defendant to make certain that the 

record he compiles will adequately preserve his arguments for 

review.‛ Id. (citation and internal quotation marks omitted); see 

id. (‚One who fails to make a necessary objection or who fails to 

ensure that it is on the record is deemed to have waived the issue.‛ 

(internal quotation marks omitted)). But even a claim of 

constitutional error requires that a defendant demonstrate nonspeculative prejudice in order to be entitled to relief. See State v. 

Hards, 2015 UT App 42, ¶ 19, 345 P.3d 769 (‚Proof of ineffective 

assistance of counsel must be ‘a demonstrable reality and not a 

speculative matter.’‛ (quoting State v. Chacon, 962 P.2d 48, 50 
State v. Burnside

20140400-CA 32 2016 UT App 224

(Utah 1998)). And in the absence of ‚an adequate record on 

appeal, we presume the regularity of the proceedings below.‛ 

State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278. Indeed, ‚*w+hen 

crucial matters are not included in the record, the missing 

portions are presumed to support the action of the trial court.‛ 

Id. (citation and internal quotation marks omitted). And a similar 

rule applies to the actions of counsel: ‚Where the record appears 

inadequate in any fashion, ambiguities or deficiencies resulting 

therefrom simply will be construed in favor of a finding that 

counsel performed effectively.‛ Litherland, 2000 UT 76, ¶ 17. 

¶55 Burnside acknowledges that the absence of a record poses 

a hurdle for his claims on appeal. He concedes that because he 

does not have a record of the in-chambers voir dire he is unable 

to know whether he had a fair and impartial jury and that the 

incomplete record ‚does not reflect what evidence *trial counsel+ 

wished to introduce‛ about Stepfather’s purported drug use.7

But the burden is on the appellant to provide an adequate 

record, see State v. Davis, 2013 UT App 228, ¶ 92, 311 P.3d 538,

and given the presumptions that apply in the absence of a 

complete record, Burnside simply cannot show that he was 

harmed by any error of court or counsel in the jury selection or 

by the court’s sustaining the State’s evidentiary objection.

¶56 And though on its face this may appear to create a Catch22 for an appellant, the law does not leave a defendant helpless 

in a situation like this. For instance, rule 11 of the Utah Rules of 

Appellate procedure provides for supplementation of an 

inadequate record. See Utah R. App. P. 11(g) (allowing ‚the 

 

7. We have dealt with Burnside’s arguments regarding the 

sustaining of the State’s objection to his counsel’s question to 

Mother regarding arguments about Stepfather’s purported drug 

use in more detail above. We address the issue again here 

because Burnside raises it separately in connection with his 

claims relating to the failure to preserve a record.
State v. Burnside

20140400-CA 33 2016 UT App 224

appellant [to] prepare a statement of the . . . proceedings from 

the best available means, including recollection‛ if a transcript is 

unavailable). And rule 23B allows a party to move for remand to 

the trial court for findings ‚necessary for the . . . determination 

of a claim of ineffective assistance of counsel,‛ which could 

allow, for example, the collection of evidence from those present 

during the unrecorded proceedings to fill in the missing portions 

of the record with testimony about what occurred. See id. R. 

23B(a). But the defendant ‚bears the primary obligation and 

burden of moving for a temporary remand.‛ Litherland, 2000 UT 

76, ¶ 16. 

¶57 Here, Burnside did not move for a remand under either 

rule in order to fill the gaps in the record. And when he did have 

the opportunity to do just that at the evidentiary hearing 

following his motion to arrest judgment, the result did not 

support his position on appeal. During that hearing, Burnside 

called only one witness, his former trial counsel. Counsel 

testified that he understood the importance of a fair and 

impartial jury and that he made his best efforts to select a jury 

that met those criteria. In fact, counsel testified that during the 

in-chambers proceeding, he and the prosecutor agreed that 

certain venire members would be stricken for cause. And when 

asked if he would have objected to any potential jurors he felt 

could not fairly hear the case, he responded, ‚Oh, yeah. 

Certainly.‛ With regard to the bench conference, he stated that 

although the State’s objection to questioning about Stepfather’s 

drug use had been sustained, he was able to introduce other 

evidence to support his argument that Child’s PTSD could be 

accounted for by aspects of her life other than sexual abuse. 

¶58 In its written decision, the trial court concluded with 

respect to the in-chambers voir dire, that Burnside ‚ha*d+ failed 

to demonstrate that he was unfairly prejudiced,‛ and although 

‚the Court [was] unable to identify any specific objections that 

were made in chambers, the record that was [preserved] clearly 

demonstrate[d] Mr. Burnside was comfortable with the jury that 
State v. Burnside

20140400-CA 34 2016 UT App 224

was seated because he passed the panel for cause.‛ The court 

also found that Burnside had ‚fail*ed+ to identify any seated 

juror [who] expressed a bias or conflict of interest ‘so strong or 

unequivocal as to inevitably taint the trial process.’‛ (Quoting 

State v. Winfield, 2006 UT 4, ¶ 17 n.3, 128 P.3d 1171.) And with 

respect to the bench conference on the State’s objection, the court 

found that Burnside ‚waived the issue by failing to ensure a 

proper record was preserved.‛ 

¶59 We agree with the district court. Burnside did not take 

advantage of the available means to ensure a record adequate for 

his appeal. Because Burnside has the ultimate responsibility to 

make sure that ‚the record he compiles will adequately preserve 

his arguments for review,‛ see State v. Johnson, 2006 UT App 3, 

¶ 13, 129 P.3d 282 (internal quotation marks omitted), and 

because he failed to take any reasonable steps to meet that 

burden, we must presume the regularity of the proceedings and 

the effective performance of counsel.

¶60 Accordingly, because Burnside cannot show that he was 

actually prejudiced by the failure to make a record of either the 

in-chambers voir dire or the bench conference on the State’s 

evidentiary objection, his related claims of plain error and 

ineffective assistance of counsel fail.

CONCLUSION

¶61 Burnside’s claims on appeal largely mirror his claims in 

his motion to arrest judgment. After reviewing each, we hold 

that the trial court did not err in denying the motion. 

Specifically, we are not persuaded that trial counsel provided 

ineffective representation or that the court plainly erred in a way 

warranting relief for the judgment of conviction. Accordingly, 

we affirm.