This opinion is subject to revision before final

publication in the Pacific Reporter

2018 UT 19

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

GEORGE WAYNE RING,

Appellant.

No. 20150526

Filed May 25, 2018

On Direct Appeal

Fourth District, Nephi

The Honorable Jennifer A. Brown

No. 141600067

Attorneys:

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

Salt Lake City, for appellee

Nathan Phelps, Sandy, for appellant

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and

JUSTICE PETERSEN joined.

CHIEF JUSTICE DURRANT, 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 previously
STATE v. RING

Opinion of the Court

2

articulated in State v. Shickles1 (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 admitting 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 consider 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 court 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. Initially, 

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 playing 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 

reported 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. 

Doporto, 935 P.2d 484 (Utah 1997).
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Opinion of the Court

3

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

“tail.” 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. Allred. 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 failure 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 molestation 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 house 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 sexually assaulting a five-year-old girl (S.J.) 

by “humping” her and touching her genitals 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 scrutiny 

of the 403 analysis.”

¶8 The day before trial, the district court held an evidentiary 

hearing to determine 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 he did Mr. 
STATE v. RING

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 factors during their arguments. The district court then 

granted the State’s “motion to admit the 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 recording 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 cross-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 considered 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-streamed 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 CJC 

interview with H.F. The prosecution then played the recording of the 

CJC interview, with no objection 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 

conviction. We have jurisdiction under section 78A-3-102(3)(i) of the 

Utah Code.
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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 each 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 abuse 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 child molestation 

under rules 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. Thornton, 2017 UT 9, 391 P.3d 1016.
STATE v. RING

Opinion of the Court

6

¶20 Under the invited error doctrine, we decline “to engage in 

plain error review when counsel 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 preserve 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 [district] 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 error 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 admitted under rules 

403 and 404(b). From Shickles until our decision in State v. Lucero11

nearly thirty years later, courts routinely relied on the Shickles factors 

when deciding whether to admit evidence 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 evidence 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. 

Doporto, 935 P.2d 484 (Utah 1997).

11 2014 UT 15, 328 P.3d 841, abrogated on other grounds by State v. 

Thornton, 2017 UT 9, 391 P.3d 1016.

12 Id. ¶ 32.
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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 must 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 

factor18—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 before 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) (citation 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, courts 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 

(Continued)
STATE v. RING

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 that 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 fact 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 analysis. 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 shows 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 hearing, 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 strict application of each of the Shickles factors constitutes 

plain error.

 

uncertain state of the law at the time of trial weighs against Mr. 

Ring’s plain error claim.

21 Moa, 2012 UT 28, ¶ 24.
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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 determine 

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 defendant 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 substantially 

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 district 

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 have 

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 operandi. 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 UTAH R. EVID. 404(c)(1).

24 Id. 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 

(Continued)
STATE v. RING

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 passing 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 argues 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. 

Therefore, 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 previous 

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 were 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 the prior 

conviction by itself cannot be said to lead to unfair prejudice 

automatically.”).

29 Id. ¶ 26.
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Opinion of the Court

11

potential for unfair 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 district 

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 provided an opportunity 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 prejudice, 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 that 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 norms.”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 

tactics 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 

(Continued)
STATE v. RING

Opinion of the Court

12

¶36 If Mr. Ring establishes that trial counsel’s representation is 

deficient, he must then show that 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 counterfactual. “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 rises 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 foresight or for 

failing to prepare for what appear 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. Thornton, 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 Shickles 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 

law.
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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 the 

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 counsel’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. Ring 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 until 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 never 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 sufficiently 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 

prejudicial 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.
STATE v. RING

Opinion of the Court

14

game incident, 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 prior 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. were watching television together.

¶41 While M.F. also discussed the video game incident during 

his testimony, his account of that incident was substantially 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 Mr. 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 not 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 deficient

¶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 the 
Cite as: 2018 UT 19

Opinion of the Court

15

time of trial, trial counsel could have reasonably 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 of a victim or other witness 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 

victim 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 been given an opportunity to 

cross-examine the victim concerning the recorded statement.40

Mr. Ring argues that because H.F. was not available 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 

confrontation.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 

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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 UTAH R. CRIM. 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 to 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. Babul, 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 

(Continued)
STATE v. RING

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 protections 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 preliminary hearing. For 

this reason, trial counsel could have reasonably understood that any 

objection to the CJC interview’s admission would have been futile.

¶46 Mr. Ring relies on our recent ruling in State v. Goins43 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 cross-examine a witness 

as they do at trial.44 But our decision in Goins dealt specifically with 

the requirements of rule 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 reviewing 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 seriousness 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 

article I, section 12 of the Utah Constitution limited the purpose of 

preliminary hearings to a determination that probable cause exists. 

Id. ¶ 31.

45 See UTAH R. EVID. 804(b)(1) (deeming preliminary hearing 

testimony admissible against a defendant if defense counsel had 

both (1) an opportunity and (2) similar motive to develop the 

testimony at the preliminary hearing).
Cite as: 2018 UT 19

Opinion of the Court

17

the admission of the CJC interview “‘fell below an objective 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-examine 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 of 

members of Bikers Against Child Abuse at trial was neither deficient nor 

prejudicial

¶48 Finally, Mr. Ring argues that trial counsel was ineffective for 

not challenging 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 Procedure.

¶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 

allegation 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 

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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 UTAH R. APP. P. 23B(a).
STATE v. RING

Opinion of the Court

18

to file an amended rule 23B motion within thirty days, provided the 

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 there 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 not 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 because 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 court 

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 performance. 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).