This opinion is subject to revision before final

p ublication in the Pacific Reporter

201 8 UT 19

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

S TATE OF U TAH
, Appellee

,

v.

G EORGE W AYNE R ING
, Appellant

.

No. 20150526 Filed May 25, 2018

On Direct Appeal

Fourth District, Nephi

The Honorable Jennifer A. Brown

No. 14160 0 067

Attorneys:

Sean D. Reyes, Att’y Gen., Jeffrey D, Mann, Asst. Solic. Gen.,

Salt Lake City, for appellee

Nathan Phelps, Sandy , for appellant

C HIEF J USTICE D URRANT authored the opinion of the Court, in which

A SSOCIATE C HIEF J USTICE L EE
, J USTICE H IMONAS
, J US TICE P EARCE
, and

J USTICE P ETERSE N joined.

C HIEF J USTICE D URRANT , opinion of the Court:

Introduction

¶1 George Ring was convicted of raping a three

- year

- old girl while she was playing in his girlfriend’s apartment. Mr. Ring now appeals this conviction for three reasons. First, he claims that the district court erred by using each of the factors we previouslyS TATE v. R ING

Opinion of the Court

2 articulated in State v. Shickles 1 ( Shickles factors) to determine the admissibility of his previous acts of child molestation. Second, he argues that even if the district court used the correct legal test, it nevertheless abused its discretion by admittin g those previous acts of child molestation. Finally, he asserts an ineffective assistance of counsel claim based on several alleged deficiencies in his trial counsel’s representation. Each of Mr. Ring’s claims fails.

¶2 As an initial matter, we decline to con sider whether the district court erred in relying upon each of the Shickles factors, because our review of this claim is precluded by the invited error doctrine. We do, however, address Mr. Ring’s two remaining claims.
First, we hold that the district cour t did not err in admitting evidence of Mr. Ring’s prior acts of child molestation, because this evidence was admissible under rules 403 and 404(c) of the Utah Rules of Evidence. Second, we hold that Mr. Ring’s ineffective assistance of

counsel claim fails because he did not show that any of the alleged deficiencies constituted deficient performance and resulted in prejudice.

Background

¶3 Three

- year

- old H.F. was playing with neighborhood friends at the apartment complex where she lived with her mother. Initial ly, Nancy Allred

— the mother of one of H.F.’s friends

— looked after the

children. But when Ms. Allred went to church, she left the children

alone with her boyfriend, George Ring . Although the children began by playing outside, when H.F.’s mother checked on H .F., she found her in Ms. Allred’s apartment pl aying video games with Mr. Ring . A few hours later, H.F. told her mother, without any prompting, that “Uncle Jerry touched her pee pee.” She also told her mother that “Uncle Jerry” lived with Ms. Allred. From this, her mother understood “Uncle Jerry” to be Mr. Ring. H.F.’s mother immediately

repo rted the incident to the police

. ¶4 A few days later, H.F. was interviewed at the Children’s Justice Center (CJC) by case worker Erica Wankier. The interview

was recorded. In the interview, H.F. again said that “Uncle Jerry” touched her “pee pee,” indicating her vagina. She explained that this had happened in Ms. Allred’s bedroom. According to H.F., “Uncle

__________________________________________________________ ___

1 760 P.2d 291 (Utah 1988), abrogated on other grounds by State v.

Do porto , 935 P.2d 484 (Utah 1997).Cite as: 201 8 UT 19

Opinion of the Court

3 Jerry” had pulled her pants down and touched her vagina with his

“ta il.” She identified a man’s “tail” on an anatomy chart as a penis. She said that his “tail” touched her “in” her “pee pee” while he lay

on top of her on Ms. Allred’s bed.

¶5 In the course of their investigation, police learned that

Mr. Ring lived with Ms. All red. They also learned that Mr. Ring was required to register as a sex offender

— due to two previous

convictions for child sex crimes

— but that he had not registered in Utah. Based on this information, the State charged Mr. Ring with rape of a child and fail ure to register as a sex offender.

Mr. Ring’s Prior Acts of Child Molestation

¶6 About four months before trial, Mr. Ring filed a motion requesting an evidentiary hearing in anticipation of the State seeking to admit evidence of his prior acts of child molest ation under rule 404(c) of the Utah Rules of Evidence. In his motion, Mr. Ring

referred the court to the Shickles factors and emphasized the “need

for examination of the evidence to determine the answer to the threshold questions of admissibility set forth in Shickles .”

¶7 Shortly thereafter, the State filed a motion in limine seeking to admit evidence of two cases of prior child molestation by

Mr. Ring. The first case included two incidents in 1994 in which

Mr. Ring molested a six

- year

- old boy (M.F.). One incident

— which resulted in a rape conviction

— occurred behind a haystack (haystack incident), and the other incident

— which was not disclosed until a few years later and, consequently, did not lead to a criminal

conviction

— occurred at Mr. Ring’s mother’s hou se while he was playing video games with M.F. (video game incident). The second case involved a single incident three years later. In that case,

Mr. Ring pled guilty to sexual ly assaulting a five

- year

- old girl (S.J.) by “ humping ” her and touching her genit als while they were watching television. The State relied on the Shickles factors in its motion to argue that “the prior instances of abuse pass the scrutin y of the 403 analysis.”

¶8 The day before trial, the district court held an evidentiary hearing to dete rmine the admissibility of Mr. Ring’s prior acts of child molestation under rule 404(c), as well as the admissibility of H.F.’s recorded CJC interview. At the hearing, the State called M.F. and his father, and S.J. and her mother to testify about Mr. Ring’ s prior acts of child molestation. In addition to the haystack incident, M.F. testified about the video game incident. According to M.F., the video game incident occurred when Mr. Ring promised the

six

- year

- old M.F. that he could only play video games if h e did Mr.S TATE v. R ING

Opinion of the Court

4 Ring a favor. Mr. Ring then led him across the hall to Mr. Ring’s

mother’s room where Mr. Ring raped him.

¶9 After the witnesses’ testimony, the district court heard argument from the State and Mr. Ring. Both parties relied on each of

the Shickles f actors during their arguments. The district court then granted the State’s “motion to admit t he evidence of similar crimes.”

H.F.’s CJC Interview

¶10 Another pretrial issue decided by the district court was the admissibility of a video recording of H.F.’s CJC interview. Months before trial, a preliminary hearing had been held to determine whether the State had probable cause to charge Mr. Ring for the crimes in this case. At this preliminary hearing, the State filed a stipulated motion to admit the video record ing of the CJC interview at the preliminary hearing pursuant to rule 1102(b)(7) of the Utah

Rules of Evidence and rule 15.5 of the Utah Rules of Criminal Procedure. Although H.F. was available to testify at the preliminary hearing, Mr. Ring declined to cro ss

- examine her. As the trial approached, the State filed another motion to admit the recording of the CJC interview at trial pursuant to rule 15.5, and to allow H.F. to testify in the judge’s chambers outside of Mr. Ring’s presence.

¶11 The district court cons idered the State’s motion at an evidentiary hearing held one day before trial. After finding that all conditions of rule 15.5 had been met, the court ruled that the CJC interview was admissible. Mr. Ring did not object. Additionally, the parties stipulated to H.F. testifying in the judge’s chambers, with her testimony live

- streame d to the jury in the courtroom.

¶12 At trial, the now four

- year

- old H.F. was present to give testimony in the judge’s chambers in the presence of the judge, prosecutor, defense counsel , court clerk, and a victim advocate. The State questioned H.F. and defense counsel cross

- examined her, but she had limited focus and would only answer “I don’t know” when asked about “Uncle Jerry.”

¶13 After H.F.’s testimony, Ms. Wankier testified about her C JC interview with H.F. The prosecution then played the recording of the CJC interview, with no ob jection from defense counsel.

¶14 The jury convicted Mr. Ring of rape of a child and failure to register as a sex offender, and Mr. Ring timely appealed the rape

c onviction. We have jurisdiction under section 78A

- 3

- 102(3)(i) of the

Utah Code.Cite as: 201 8 UT 19

Opinion of the Court

5 Standard of Review

¶15 Mr. Ring raises three issues on appeal. We consider each

issue under a different standard of review.

¶16 First, Mr. Ring challenges the district court’s use of e ach of

the Shickles factors in considering the admissibility of evidence of

Mr. Ring’s prior acts of child molestation. This issue was not preserved and so would ordinarily be reviewed under a plain error

standard. 2 But in this case we decline to conduct a plain error
review, because the district court’s use of the Shickles factors was

invited error.

¶17 Next, Mr. Ring challenges the district court’s admission of

evidence of his prior acts of child molestation. We review the district

court’s decision under an a buse of discretion standard. 3 A district court’s “decision to admit or exclude evidence” is only an abuse of discretion if it “is beyond the limits of reasonability.” 4

¶18 Finally, Mr. Ring argues that his trial counsel was ineffective in a number of respects. “A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law that [we ] review [ ] for correctness.” 5

Analysis

I. Because Mr. Ring Invited the District Court’s Error by Urging the Court to Apply Each of the Shickles Factors, We Decline to Evaluate

His Claim Under the Plain Error Standard

¶19 Mr. Ring argues that the district court “erred in relying exclusively on the Shickles factors” when it considered the admissibility of evidence of Mr. Ring’s prior acts of ch ild molestation

under r ules 403 and 404(c) of the Utah Rules of Evidence. Because Mr. Ring’s argument fails under the invited error doctrine, we

decline to consider it.

__________________________________________________________ ___

2 State v. Moa , 2012 UT 28, ¶ 24, 282 P.3d 985.

3 State v. Lowther

, 2017 UT 34, ¶ 17, 398 P.3d 1032

.

4 Id

. (citation omitted).

5 State v. Lucero , 2014 UT 15, ¶ 11, 328 P.3d 841 (citation omitted) (internal quotation marks omitted)

, abrogated on other grounds by State

v. Thor n ton , 2017 UT 9, 391 P.3d 1016.S TATE v. R ING

Opinion of the Court

6 ¶20 Under the invited error doctrine, we decline “to engage in plain error review when cou nsel made an affirmative statement that

led the court to commit the error.” 6 As we have previously noted, the invited error doctrine serves three important purposes. First, it “discourag[es] parties from intentionally misleading the trial court

so as to pr eserve a hidden ground for reversal on appeal.” 7 Second, “it encourages counsel to ‘ actively participate in all proceedings and to raise any possible error at the time of its occurrence. ’ ” 8 Finally, it “fortifies our long

- established policy that the [distr ict] court should have the first opportunity to address a claim of error.” 9 For these reasons, we employ the invited error doctrine where a complaining party made affirmative statements to the district court that would

have led the court to commit the erro r complained of. We hold that

Mr. Ring affirmatively invited the district court to apply each of the

Shickles factors in this case.

¶21 In State v. Shickles

, 10 we established factors for determining whether evidence of prior crimes should be admitt ed under rule s 403 and 404(b). From Shickles until our decision in State v. Lucero 11 nearly thirty years later, courts routinely relied on the Shickles factors when deciding whether to admit evidenc e under rule 404(b) or 404(c). It wasn’t until Lucero that we clarified that it is the language
of rule 403, and not the Shickles factors, that should govern the admissibility of rule 404(b) evidence. Specifically, we explained that “while some of [the Shickles ] factors may be helpful in assessing the probative value of the ev idence in one context, they may not be helpful in another.” 12 We therefore concluded that it was “unnecessary for courts to evaluate each and every [ Shickles ] factor

__________________________________________________________ ___

6 State v. Moa , 2012 UT 28, ¶ 24, 282 P.3d 985.

7 Id

. ¶ 25 (alteration in original) (citation omitted).

8 Id

. (citation omitted).

9 Id

. (alteration in original) (citation omitted)

.

10 760 P.2d 291 (Utah 1988)

, abrogated on other grounds by State v.

Do porto , 935 P.2d 484 (Utah 1997)

.

11 2014 UT 15, 328 P.3d 841

, abrogated on other grounds by State v.

Thor n ton , 2017 UT 9, 391 P.3d 1016

.

12 Id

. ¶ 32.Cite as: 201 8 UT 19

Opinion of the Court

7 and balance them together in making their assessment” under rule 404(b). 13

¶22 We discussed the Shickles factors again

— in the context of rule 404(c)

— the following year in State v. Cuttler. 14 In Cuttler , we reaffirmed Lucero ’s holding that it is “ ‘ unnecessary for courts to evaluate each and every [ Shickles ] factor’ in every context,” 15 and we further explained that in some contexts “it may be inappropriate for

a district court to consider some of the Shickles factors.” 16 We also held that it is always inappropriate for district courts to consider the “overmastering hostility” factor set out in Shickles

. 17

¶23 After our decisions in Lucero and Cuttler

, it is clear that a proper rule 403 analysis for rule 404(b) or 404 (c) evidence requires a district court to look first, and primarily, to the language of rule 403. Under that language a court mus t determine whether the probative value of the evidence is substantially outweighed by its prejudicial effect. The analysis may stop there. But to the extent the court finds it helpful to consider a factor set forth in Shickles

— or any other

factor 18

— it may do so. It is always error, however, for a court to center its analysis on the Shickles factors, to consider itself obligated to use a particular factor or factors, or to rely inflexibly upon each

Shickles factor.

¶24 Although the trial in this case was held be fore our decision

in Cuttler made it clear that “ Lucero and its logic” also applied to “determinations made under rule 404(c),” 19 Mr. Ring argues that the district court plainly erred by considering each Shickles factor. 20 But

__________________________________________________________ ___

13 Id

.

14 2015 UT 95, 367 P.3d 981.

15 Id . ¶ 18 (alteration in original) (citati on omitted)

.

16 Id . ¶ 19.

17 Id . ¶ 20.

18 Both Lucero and Cuttler made it clear that courts are not limited to only considering the Shickles factors. Indeed

, c ourts may consider any factor that they deem appropriate in a rule 403 analysis. See
Cuttler, 2015 UT 95, ¶ 18 ; Lucero , 2014 UT 15, ¶ 31

.

19 2015 UT 95, ¶ 18.

20 Although we decline to review the district court’s use of the

Shickles factors under a plain error standard, we do note that the ( C ontinued)S TATE v. R ING

Opinion of the Court

8 this argument fails because he repeatedly invited the district court to

use each Shickles factor to determine the admissibility of his prior acts of child molestation. He first did this in a pretrial motion for a rule 404(c) hearing, where he introduced each Shickles factor and

stated t hat there was a need for a hearing for an “examination of the evidence to determine the answer to the threshold questions of admissibility set forth in Shickles .”

¶25 He invited the district court to apply each of the Shickles factors again at the hearing held on his rule 404(c) motion. There, and after the State argued using each of the Shickles factors, Mr. Ring’s counsel stated “[counsel for the State] is correct that the controlling case law, the vehicle provided to us by the appellate

courts

. . . is in fa ct set forth in Shickles .” And although Mr. Ring’s counsel reminded the district court that the proper analysis was ultimately a rule 403 determination, he qualified this by stating that “the [c]ourt can and must weigh each of the [ Shickles ] factors” while conducting its rule 403 analy sis. Mr. Ring’s counsel’s actions are sufficient to trigger the invited error doctrine.

¶26 Mr. Ring argues, however, that the invited error doctrine does not apply to his claim because the State was the first party to

introduce the Shickles factors when it filed its motion in limine

. But he is wrong on this point. The record before us clearly sh ows that

Mr. Ring filed his motion for a 404(c) hearing before the State filed its motion. Moreover, even if the State had been the first party to

introduce the Shickles factors, the invited error doctrine would still apply to Mr. Ring’s claim because the doctrine applies any time a complaining party “made an affirmative statement that led the court to commit the error” complained of. 21 By introducing each of the

Shickles factors and then urging the district court to apply them in his

motion and at the heari ng, Mr. Ring clearly made affirmative statements inviting the court to incorrectly apply the Shickles factors. Because these affirmative statements are sufficient to trigger the
invited error doctrine, we decline to address whether the district

court’s str ict application of each of the Shickles factors constitutes plain error.

uncertain state of the law at the time of trial weighs again st Mr. Ring’s plain error claim.

21 Moa , 2012 UT 28, ¶ 24.Cite as: 201 8 UT 19

Opinion of the Court

9 II. The District Court Did Not Abuse its Discretion by Admitting Evidence of Mr. Ring’s Prior Acts of Child Molestation

¶27 Next, we consider Mr. Ring’s argument that even if the

district court had applied the correct legal test, it nevertheless abused its discretion by admitting evidence of his prior acts of child molestation. We consider this claim by analyzing the evidence under rules 404(c) and 403 of the Utah Rules of Evidence to dete rmine

whether the district court’s ultimate decision to admit evidence of his previous acts was “beyond the limits of reasonability.” 22 We hold

that it was not.

¶28 In child molestation cases, rule 404(c) allows “the court [to]

admit evidence that the defendan t committed any other acts of child molestation to prove a propensity to commit the crime charged.” 23 But before the court admits such evidence, it must weigh the evidence’s probative value against its potential for prejudice under

rule 403. If the evidence ’s “probative value is substant ially outweighed by a danger of

. . . unfair prejudice,” the evidence

should be excluded. 24

¶29 When a district court conducts a rule 403 analysis it has the “discretion to consider any relevant factors.” 25 In this case the distri ct court found that the alleged crime was sufficiently similar to

Mr. Ring’s prior acts of child molestation to warrant admission. Although the district court concluded this after incorrectly considering each Shickles factor, we believe the result would ha ve been the same if the court had relied primarily on the text of rule 403.

¶30 Mr. Ring’s prior acts were highly probative in this case because they were significantly similar as to the age of the victim, the setting, the opportunity, and Mr. Ring’s modus ope randi. These similarities suggest that he had the propensity to commit the alleged

crime. 26 And although Mr. Ring argues that the probative value of

__________________________________________________________ ___

22 State v. Lowther , 2017 UT 34, ¶ 17, 398 P.3d 1032 (citation omitted)

.

23 U TAH R. E VID . 404(c) (1)

.

24 I d

. 403.

25 Lowther

, 2017 UT 34, ¶ 40.

26 See State v. Cuttler , 2015 UT 95, ¶ 24, 367 P.3d 981 (explaining that prior incidents of child molestation were probative, and ( C ontinued)S TATE v. R ING

Opinion of the Court

10 the evidence was diminished by the amount of time between his prior acts and the crime against H.F., the pas sing of time, on its own, is not enough to rob 404(c) evidence of its probative value. 27

¶31 Continuing our rule 403 analysis, we find that any potential for unfair prejudice does not substantially outweigh the probative value of Mr. Ring’s prior acts. Mr. Ring argues that evidence of his prior acts is prejudicial in two respects. First, he asserts that the evidence at issue in this case was “extremely prejudicial” because “sex crimes involving a child” are certain to “inflame the jury.” In other words, he argue s that evidence of child sex crimes, which rule 404(c) has explicitly deemed admissible, is inadmissible under rule 403 because it is overly prejudicial. But this cannot be. Rule 404(c)’s only function is to admit evidence of prior child sex crimes.

Theref ore, ruling as Mr. Ring suggests would render rule 404(c) inoperative

— an outcome we refuse to endorse. 28 Accordingly, we hold that the evidence’s nature as a prior act of child molestation “is not a factor that weighs against the evidence’s admissibility.” 29

¶32 Mr. Ring also argues that evidence of his prior acts was unfairly prejudicial because it could potentially give the jury incentive to punish him for his past crimes. He claims that there is a high likelihood of unfair prejudice in this case because his p revious prison sentences were for relatively short periods of time, and consequently, evidence related to his prison sentences may have led the jury to conclude that he deserved additional prison time for his past convictions. Although it is possible that evidence of past crimes could unfairly prejudice a defendant in this way, we are not convinced that this evidence was likely to do so in this case. The State did not focus on the length of Mr. Ring’s sentences nor did it ever suggest that the sentences wer e insufficient or that the jury should impose additional punishment for Mr. Ring’s past crimes. In fact, during its closing argument, the State specifically instructed the jury not to do so. Based on these facts, we do not find that the

therefore admissible, because there were “significant similarities between the incidents”).

27 See id . ¶ 28.

28 Id. ¶ 27 (“To give rule 404(c) purpose, evidence of th e prior conviction by itself cannot be said to lead to unfair prejudice automatically.”).

29 Id. ¶ 26.Cite as: 201 8 UT 19

Opinion of the Court

11 potential for unfai r prejudice substantially outweighed the evidence’s probative value.

¶33 Because the evidence of Mr. Ring’s past acts of child
molestation is admissible under rule 403, we hold that the district court did not abuse its discretion by admitting it.

III. Mr. Ring Has Failed to Show that His Trial Counsel

Was Ineffective

¶34 Finally, we turn to Mr. Ring’s ineffective assistance of counsel claim. He grounds his claim on four alleged deficiencies in his trial counsel’s representation: (1) failing to object to the distric t
court’s use of the Shickles factors, (2) failing to object to the introduction of evidence of the video game incident, (3) failing to object to the introduction of the victim’s out

- of

- court testimony despite the fact that he was not pr ovided an opportuni ty for

cross

- examination, and (4) failing to object to the presence of members of the group Bikers Against Child Abuse during trial. Because Mr. Ring failed to show that any of the alleged failures constituted deficient performance and resulted in prejudic e, his

ineffective assistance of counsel claim fails.

¶35 An ineffective assistance of counsel claim requires Mr. Ring to show that his “[trial] counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” 30 “To

establish th at counsel was deficient, [Mr. Ring] must overcome the strong presumption that counsel rendered constitutionally sufficient assistance, by showing that counsel’s conduct ‘fell below an objective standard of reasonableness’ under prevailing professional nor ms.” 31 In other words, Mr. Ring “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” 32

__________________________________________________________ ___

30 Strickland v. Washington , 466 U.S. 668, 687 (1984).

31 Lafferty v. State , 2007 UT 73, ¶ 12, 175 P.3d 530 (citation omitted) (quoting Strickland , 466 U.S. at 688) ; see also Harrington v. Richter , 562 U.S. 86, 109 (2011) ( “There is a ‘strong presumption’ that counsel’s

attention to certain issues to the exclusion of others reflects trial

tact ics rather than ‘sheer neglect.’” (citation omitted))

.

32 Strickland , 466 U.S. at 689 (citation omitted) ; but see Harrington

, 562 U.S. at 109 (explaining that “ there is no expectation a competent counsel will be a flawless strategist or tactician, an attorney may not ( C ontinued)S TATE v. R ING

Opinion of the Court

12 ¶36 If Mr. Ring establishes that trial counsel’s representation is
deficient, he must then show tha t the deficiency prejudiced his defense. To do this, he “must present sufficient evidence to support ‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” 33 This analysis is counte rfactual. “To decide whether a trial affected by error is reasonably likely to have turned out differently we have to consider a hypothetical

— an alternative universe in which the trial

went off without the error.” 34 If we conclude that the result would

have been the same absent the error, no prejudice has occurred. We

discuss each of Mr. Ring’s counsel’s alleged deficiencies separately.

A. Trial counsel’s alleged deficiency in failing to object to the district court’s use of the Shickles factors did not prejudice Mr. Ring

¶37 First we consider the failure of Mr. Ring’s trial counsel to object to the district court’s incorrect use of each of the Shickles factors. While it is doubtful that trial counsel’s failure to object in this

instance rise s to the level of deficient representation, 35 we need not reach that question because a timely objection would not have

be faulted for reasonable miscalculation or lack of fore sight or for failing to prepare for what ap pear to be remote possibilities ” )

.

33 Archuleta v. Galetka , 2011 UT 73, ¶ 40, 267 P.3d 232 (quoting

Strickland , 466 U.S. at 694).

34 State v. Ellis , 2018 UT 2, ¶ 42

, -- - P.3d

- --

.

35 As we discussed in Part I of this opinion, trial counsel’s failure to object to the use of each of the Shickles factors occurred after our

decision in State v. Lucero , 2014 UT 15, 328 P.3d 841, abrogated on other grounds by State v. Thor n ton , 2017 UT 9, 391 P.3d 1016

, but before our

decision in State v. Cuttler, 2015 UT 95, 367 P.3d 981. See supra ¶¶ 21

– 24

. Although Lucero made it clear that courts were not bound by the

Shickles factors in the context of a rule 404(b) determination, it wasn’t

until Cuttler a year later that it became clear that “ Lucero and its logic” also applied to “determinations made under rule 404(c).”
Cuttler, 2015 UT 95, ¶ 18. This means that during the year between

Lucero and Cuttler it was unclear whether courts should continue relying on the Shi ckles factors, as they had been doing for nearly thirty years, when making a rule 404(c) determination. For this reason, it is conceivable that a reasonable attorney in trial counsel’s position would believe that the Shickles factors remained controlling

l aw.Cite as: 201 8 UT 19

Opinion of the Court

13 prevented evidence of Mr. Ring’s prior acts of child molestation from being admitted. A timely objection to the district court’s use of t he

Shickles factors would have led the district court to conduct a proper rule 403 analysis. And, as we have already explained, under such an analysis, evidence of Mr. Ring’s prior acts of child molestation

would have been admissible. 36 So while trial couns el’s failure to object contributed to the district court’s use of an incorrect legal standard, it ultimately did not prejudice Mr. Ring’s defense.

B. Trial counsel’s alleged deficiency in failing to object to the introduction of evidence of the video game incident did not prejudice Mr. Ring

¶38 Mr. Ring likewise argues that his trial counsel was ineffective for failing to object to the admission of M.F.’s testimony regarding the video game incident. M.F., one of Mr. Ring’s former
victims, testified that Mr. Rin g sexually molested him on two separate instances. One instance

— the haystack incident

— was immediately discovered by M.F.’s family and resulted in Mr. Ring’s conviction for rape of a child. But the second instance

— the video game incident

— was not disclosed u ntil years later and, consequently, did not lead to a criminal conviction. Although the video game incident was referenced in the State’s motion in limine

, and was discussed at length during the pretrial hearing, Mr. Ring argues that the district court nev er affirmatively ruled to admit

evidence of that incident. 37 Mr. Ring now argues that trial counsel was ineffective for failing to object to this evidence’s introduction at trial. But because the introduction of evidence of the video game

incident did not s ufficiently prejudice Mr. Ring’s case, we conclude that his trial counsel’s failure to object in this instance does not provide the basis for a successful ineffective assistance of counsel

claim.

¶39 The introduction of the video game incident was not prejudic ial because it was only one of three similar incidents admitted to show that Mr. Ring had the propensity to commit the

crime in this case. Because the other two incidents would have effectively established this propensity in the absence of the video

__________________________________________________________ ___

36 See supra Part II.

37 In the record it is unclear whether the district court’s ruling to admit evidence of Mr. Ring’s molestation of M.F. included the video game incident.S TATE v. R ING

Opinion of the Court

14 game i ncident, the admission of the video game incident did not significantly harm Mr. Ring’s defense.

¶40 At trial, the State presented four witnesses

— M.F. and his father, and S.J. and her mother

— who testified regarding the circumstances surrounding Mr. Ring’s prio r convictions for child molestation. According to the testimony of all four witnesses, the opportunity to molest his victims arose while Mr. Ring was playing with the younger children of close friends or family members. The haystack incident occurred while he and M.F. were outside together playing with rabbits. And the incident with S.J. occurred while he and S.J. wer e watching television together.

¶41 While M.F. also discussed the video game incident during his testimony, his account of that incident was subst antially similar to the first two instances of child molestation. According to M.F., he was watching Mr. Ring play video games when Mr. Ring promised to let him play if he did Mr. Ring a favor. Mr. Ring then led M.F. to a bedroom across the hallway where M r. Ring raped him. The State

used evidence of all three of these incidents to establish Mr. Ring’s pattern for molesting children.

¶42 Mr. Ring contends that the admission of the video game incident prejudiced him because he had been playing video games

with H .F. on the day the alleged incident took place. According to Mr. Ring, the State’s emphasis on the video game incident during closing argument was harmful because it showed that he used video games as a technique to draw kids in. But because the other two incidents had already established his pattern for using play to lure children, the video game incident was nonessential to the State’s case. Stated differently, even if trial counsel had objected and the objection had resulted in the exclusion of the video game incident, the State could have made essentially the same closing argument

that it did

— Mr. Ring uses recreational activities to lure children to him. While the video game incident may have provided the State
with a convenient narrative theme, we are n ot convinced that excluding it would have affected the outcome of the trial, and so we hold that trial counsel’s failure to object did not unduly prejudice Mr. Ring.

C. Trial counsel’s failure to object to the admission of the

CJC interview was not defici ent

¶43 Similarly, Mr. Ring argues that counsel was ineffective for failing to object to the admission of the video recording of H.F.’s CJC interview. But this claim fails because under the prevailing law at theCite as: 201 8 UT 19

Opinion of the Court

15 time of trial, trial counsel could have reasonab ly believed that an objection was futile. 38

¶44 The district court admitted the video of the CJC interview

under rule 15.5 of the Utah Rules of Criminal Procedure. The rule provides that in cases involving “a sexual offense against a child, the

oral statement o f a victim or other witne ss younger than 14 years of

age

. . . [ is ] admissible as evidence in any court proceeding,” provided several requirements are met. 39 Specifically, a victim’s prior recorded statement is not admissible under rule 15.5 unless the

vict im is made available “to testify and to be cross

- examined at trial,” or the victim is “unavailable to testify at trial” but the defendant had previously bee n given an opportunity to

cross

- examine the victim concerning the recorded statement. 40

Mr. Ring argu es that because H.F. was not avail able to testify and to

be cross

- examined at trial, his counsel should have objected to the admission of the CJC interview on the grounds that rule 15.5 was not

satisfied and it would violate his Sixth Amendment right to

co nfrontation. 41

¶45 Mr. Ring maintains that H.F. was unavailable for

cross

- examination for two reasons. First, he contends that because H.F. was “incapable of answering questions,” she was effectively

unavailable for cross

- examination. The second, more troubling reason Mr. Ring puts forth is that the district court failed to

administer an oath to H.F. at trial. 42 While the failure to administer

__________________________________________________________ ___

38 See State v. Kelley , 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise

futile objections does not constitute ineffective assistance of counsel.”).

39 U TAH R. C RIM

. P. 15.5(a).

40 Id

. 15.5 (a)(1).

41 The Sixth Amendment’s Confrontation Clause precludes the

admission of out

- of

- court testimony unless the defendant is given an opportunity t o cross

- examine the witness who offered the testimony. Crawford v. Washington , 541 U.S. 36, 59 (2004).

42 “Having a witness under oath facilitates cross

- examination, which is part of the constitutional right to confront one’s accusers.”

United States v. Bab ul , 476 F.3d 498, 501 (7th Cir. 2007). Although the right to place a witness under oath, like the right to cross

- examine a witness, may be waived by a defendant, see id ., absent an affirmative ( C ontinued)S TATE v. R ING

Opinion of the Court

16 an oath, as well as H.F.’s unresponsive testimony, may have caused H.F.’s trial testimony to fall short of the protection s guaranteed Mr. Ring by rule 15.5 and the Confrontation Clause, we need not reach that question in this case. This is because Mr. Ring was previously afforded an opportunity to cross

- examine H.F. when the State introduced the recorded CJC interview at a p reliminary hearing. For this reason, trial counsel could have reasonably understood that any objection to the CJC interview’s ad mission would have been futile.

¶46 Mr. Ring relies on our recent ruling in State v. Goins 43 to argue that the opportunity to cross

- examine H.F. at the preliminary hearing was insufficient to satisfy the requirements of rule 15.5 and

the Confrontation Clause. In Goins , we clarified that in most cases

defendants do not have the same motive to cros s

- examine a witness as they do at trial. 44 But our decision in Goins dealt specifically with the requirements of r ule 804 of the Utah Rules of Evidence

, 45 and so

we did not address whether a preliminary hearing affords defendants a sufficient opportunity to cross

- examine a witness

under rule 15.5 or the Confrontation Clause. Although Mr. Ring

would have us answer this question now, we decline to do so

because Mr. Ring’s claim fails regardless of how this question is ultimately answered. This is so because we are review ing his claim through an ineffective assistance of counsel lens

. ¶47 When presented with an ineffective assistance of counsel claim we first determine whether trial counsel’s failure to object to

waiver, the lack of an oath may deprive the defendant of a key

benefit of the Confrontation Clause. California v. Green , 399 U.S. 149, 158 (1970) (explaining that one of the purposes of the Confrontation Clause is that it ensures that “the witness will give his statements

under oath

— thus impressing him with the seriou sness of the matter and guarding against the lie by the possibility of a penalty for perjury”).

43 2017 UT 61,

--- P.3d

---

.

44 Id . ¶ 34 . This is so, we explained, because a 1994 amendment to

a rticle I, section 12 of the Utah Constitution limited the purpose of preliminary hearings to a determination that probable cause exists.

Id . ¶ 31.

45 See U TAH R. E VID

. 804(b)(1) ( deeming preliminary hearing testimony admissible against a defendant if defens e counsel had both (1) an opportunity and (2) similar motive to develop the testimony at the preliminary hearing )

.Cite as: 201 8 UT 19

Opinion of the Court

17 the admission of the CJC interview “ ‘ fell below an obj ective standard of reasonableness’ under prevailing professional norms.” 46

Mr. Ring’s trial took place more than two years before our decision

in Goins . Prior to Goins , courts followed our ruling in State v. Brooks, 47

where we held that defendants have “the same motive and interest”

to cross

- examine witnesses at a preliminary hearing as they do at

trial. 48 Thus a reasonable attorney at the time of the trial would have understood that the previous opportunity to cross

- ex amine H.F. at the preliminary hearing satisfied the requirements of rule 15.5 and the Confrontation Clause. Under these circumstances we cannot say that Mr. Ring’s trial counsel was deficient in his performance for failing to object to the admission of the CJC interview.

D. Trial counsel’s alleged deficiency in failing to object to the presence o f members of B ikers A gainst C hild A buse at trial was neither deficient nor prejudicial

¶48 Finally, Mr. Ring argues that trial counsel was ineffective for not challengi ng the presence of members of Bikers Against Child Abuse during his trial. In order to make this argument, he previously asked that we remand to the district court to create a record supporting his claim under rule 23B of the Utah Rules of Appellate Proced ure.

¶49 After reviewing the parties’ briefs and hearing oral arguments on this issue, we denied the rule 23B motion without prejudice in a January 17, 2018 order. We denied the motion because it did not, as required by rule 23B, contain “a nonspeculative

alle gation of facts, not fully appearing in the record on appeal,

which

, if true, could support a determination that counsel was

ineffective.” 49 Although we denied the motion, we allowed Mr. Ring

__________________________________________________________ ___

46 Lafferty , 2007 UT 73, ¶ 12 (citation omitted).

47 638 P.2d 537 (Utah 1981)

, superseded by constitutional amendment

as stated in Ellis , 2018 UT 2 ; see also Goins , 2017 UT 61, ¶ 44,

--- P.3d

--- (explaining that courts had been following the rule set forth in

Brooks ).

48 Brooks , 638 P.2d at 541.

49 U TAH R. A PP

. P. 23B(a).S TATE v. R ING

Opinion of the Court

18 to file an amended rule 23B motion within thirty days, provided t he amended motion complied with rule 23B. 50

¶50 Because Mr. Ring failed to file an amended rule 23B motion

within the allotted thirty days, we dismiss his motion with prejudice. Accordingly, his related ineffective assistance of counsel claim fails

because ther e is no indication on record that his trial counsel’s performance was defective or that he was prejudiced.

¶51 In sum, because Mr. Ring failed to show that any of the alleged failures of trial counsel constituted deficient performance and resulted in prejudice , his ineffective assistance of counsel claim

fails.

Conclusion

¶52 We decline to consider the district court’s error in applying

the Shickles factors because our review is precluded under the invited

error doctrine. We also hold that the district court did no t abuse its discretion in admitting evidence of Mr. Ring’s prior acts of child molestation, because the prior acts were properly admissible under rules 404(c) and 403. And finally, we hold that Mr. Ring’s ineffective

assistance of counsel claim fails becau se he did not show that any of the alleged deficiencies constituted deficient performance and resulted in prejudice. We therefore affirm Mr. Ring’s conviction.

__________________________________________________________ ___

50 In doing so, we invited him to consider the test this c ourt

established in State v. Griffin , 2015 UT 18,

--- P.3d

--- . In that case, we set out four requirements for rule 23B motions. First, the motion must allege facts that are not already in the record. Id . ¶ 18. Second, the motion must allege nonspeculative facts that are supported by an accompanying affidavit. Id . ¶ 19. “[S]peculative allegations are those

that have little basis in articulable facts but instead rest on generalized assertions.” Id . Third, the allegations of fact must show deficient performan ce. State v. Gunter , 2013 UT App 140, ¶ 16 , 304

P.3d 866. This means that “the nonspeculative facts must focus on why counsel’s performance was deficient.” Id

. (citation omitted). Finally, the allegations of fact must demonstrate prejudice. Id. In other words, the allegations of fact must demonstrate “that the result would have been different had counsel’s performance not been

deficient.” Id. (citation omitted).