2023 UT App 83

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

STEPHANIE ANN TUINMAN,

Appellant.

Opinion

No. 20210242-CA

Filed August 3, 2023

Eighth District Court, Duchesne Department

The Honorable Samuel P. Chiara

No. 181800122

K. Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes and John J. Nielsen,

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 A jury convicted Stephanie Ann Tuinman of murder, 

aggravated assault, and aggravated burglary. Stephanie0F

1 appeals 

her convictions, asserting that her right to a speedy trial was 

violated, that the trial court made certain erroneous evidentiary 

rulings, and that her trial attorney rendered constitutionally 

ineffective assistance. We reject all of Stephanie’s arguments and 

affirm her convictions. 

1. Because of the numerous Tuinman family members involved, 

we refer to many of those individuals by their first names, with 

no disrespect intended by the apparent informality.
State v. Tuinman

20210242-CA 2 2023 UT App 83

BACKGROUND1F

2

The Attack

¶2 On the evening of April 6, 2018, Stephanie was at her 

mother’s (Mother) house with several family members, including 

her brother Thomas and his wife Samantha. Just days earlier, 

Thomas and Samantha had contacted police to report that their 

eight-year-old son (D.T.) had told them that he had been sexually 

abused by a family acquaintance (Roy). Thomas and Samantha 

had known Roy and his longtime life partner (Sandra)2F

3 for over a 

decade. The two couples were once close enough that Roy and 

Sandra would sometimes babysit Thomas and Samantha’s 

children. Samantha testified at trial that she believed Sandra was 

“just as involved” in the abuse as Roy and had been “in the room” 

when it occurred. That April evening, D.T. asked if Roy had been 

arrested yet and when he was told that Roy had not been arrested, 

D.T. stated, “They didn’t believe me, did they?” Thomas, who had 

been drinking heavily that night, asked D.T., “Do you want dad 

to go beat him up?” D.T. answered, “Yes.” 

¶3 Intent on taking “justice into [their] own hands,” Thomas 

and Samantha got into their minivan, perhaps with certain other 

family members, and headed for Roy and Sandra’s place, leaving 

Mother’s house just after 9:00 p.m. Stephanie denies 

accompanying Thomas and Samantha to Roy and Sandra’s place 

that night, and claims that she wasn’t involved at all in what

2. “On appeal, we recite the facts from the record in the light most

favorable to the jury’s verdict and present conflicting evidence 

only as necessary to understand issues raised on appeal.” State v. 

Carrera, 2022 UT App 100, n.3, 517 P.3d 440 (quotation simplified), 

cert. denied, 525 P.3d 1264 (Utah 2023). 

3. Roy and Sandra are pseudonyms.
State v. Tuinman

20210242-CA 3 2023 UT App 83

happened next. Indeed, the main issue that the jury had to decide 

was whether Stephanie was present during the events in question. 

¶4 Samantha testified at trial that Stephanie did get into the 

minivan and join them. As Samantha described it, she and 

Thomas were joined in their endeavor by not only Stephanie but 

also Stephanie’s fiancé Byron and Stephanie’s sister Kristy, as well 

as by a cousin, Michael. She testified that she and Thomas traveled

to Roy and Sandra’s place in the minivan, with Stephanie and 

Byron in the back seat; that Kristy followed behind in her own 

“little silver SUV”; and that Michael met them at Roy and 

Sandra’s place in a different vehicle.

¶5 Roy and Sandra were at their house that evening, sitting at 

the kitchen table after dinner when Sandra heard a noise, went to 

the front door, and yelled, “Tommy!” When he looked out the 

front door, Roy “could see Tommy and Sammy,” and he told 

Sandra to run out the back door. Thomas hit the front door with 

both fists, breaking the windows in it and then stepping through. 

Roy testified at trial that “Mikey” was there too, as well as Byron 

and “one of the [Tuinman] sisters”; he stated that he couldn’t tell 

which one because “[t]hey look alike.” Roy ran outside, following 

Sandra, but “Tommy” got to him in the backyard and “just started 

putting the boots to” Roy, kicking and hitting him while he was 

on the ground and later hitting him with a piece of wood that Roy 

thought was a “2x4.” Roy remembered being hit or struck not only

by Thomas, but also by “Sammy,” “Mikey,” Byron, and “one of 

the [Tuinman] sisters.” 

¶6 Samantha testified that she “had intentions to beat 

[Sandra] up,” and when she saw Sandra “going through the gate” 

in the yard, she began to chase her. In Samantha’s telling, she met 

up with Stephanie during the chase, and the two of them “kind of 

cornered” Sandra near a fence. Samantha grabbed Sandra by the 

hair, “pulled [her] down to the ground,” and then “punched her 

five or six times” and “kicked her once in her back.” Samantha 
State v. Tuinman

20210242-CA 4 2023 UT App 83

testified that Byron, Kristy, and Michael also participated in the 

attack on Sandra; she saw Byron kick Sandra in the face, Michael 

kick Sandra in the head, and Kristy hit Sandra with a hammer. 

¶7 With regard to Stephanie, Samantha testified that 

Stephanie had a baseball bat in her hand, and that Stephanie 

“brought the bat up over her head, and brought it down on top of 

[Sandra’s] head.” Samantha stated that she was standing only 

about four feet away from Stephanie at the time, and that 

Stephanie hit Sandra “very hard.” After the blow with the bat,

Sandra stopped screaming and Samantha heard her make “a 

moaning sound.” Roy had been able to hear Sandra “screaming 

‘help’” during “the whole time when they were kicking” him. 

After the attack was over, Roy found Sandra, and she said, “They 

got me. They hit me with a baseball bat in the face.”

¶8 The attackers soon left, and one of them threw the bloodied

baseball bat out the minivan window as they drove away. Roy 

and Sandra were eventually discovered by a neighbor(Neighbor), 

who called 911 and reported that Sandra was “bleeding really 

bad” from “her nose and her mouth” and looked like she’d been 

“beat up pretty bad.” Neighborreported to the 911 dispatcher that 

Sandra was saying that “the Tuinmans did this to her.”

¶9 Roy sustained bruises and cuts all over, as well as several 

broken ribs and severe damage to his knee. But Sandra was hurt 

even worse, and medical personnel eventually decided to “life 

flight[]” her to a hospital in Provo, Utah. Roy was taken to a local

hospital, where he spent nearly two weeks recovering; the injuries 

to his knee required surgery. But Sandra never left the hospital; 

she died about two weeks later from what the medical examiner 

determined was “a stroke which resulted from blunt injuries to 

her head” that she sustained in the attack. 
State v. Tuinman

20210242-CA 5 2023 UT App 83

The Investigation

¶10 On the night of the attack, police officers arrived at the 

scene and began questioning witnesses and collecting evidence. 

One officer testified that Sandra was “distressed,” “hysterical,” 

and “[v]ery bloody.” That same officer described Roy as “a bloody 

mess,” and observed that his hair was “tangled in blood” and that 

he was “bleeding from his face pretty bad too.” While still at the 

scene, both Roy and Sandra told officers that “the Tuinmans” had 

committed the assault. Officers also spoke with Roy and 

Sandra again after they arrived at the hospital. Roy did not 

specifically identify Stephanie as one of the Tuinmans who had

been at the house on the night in question because, as he 

explained at trial, he could not tell the Tuinman sisters apart. But 

at the hospital, Sandra apparently made certain statements to 

the effect that Stephanie had been one of the Tuinman sisters 

who had participated in the attack; in particular, Sandra stated 

that the Tuinman sister who was dating Byron was among her 

attackers.

¶11 In addition to speaking with Roy and Sandra, officers also 

began looking for and questioning members of the Tuinman 

family that night. At first, officers believed that the only Tuinmans 

involved in the attack were Thomas, Samantha, Byron, and a 

different Tuinman sister (Amy), who officers mistakenly believed 

was the sister in a relationship with Byron. So when an officer

who had been instructed to look for Amy encountered Stephanie 

in a traffic stop at about 1:00 a.m. later that night, he simply asked 

her some questions largely aimed at ascertaining Byron’s 

whereabouts. In responding to those questions, Stephanie denied 

knowledge of or participation in the events at Roy and Sandra’s 

house that night. She claimed to have left Mother’s house that 

evening because she had been “bleeding really heavy” and had 

gone to her house to “change [her] tampon”; she claimed that, by 

the time she returned, her family members had come back and she 

did not know where they had gone. Stephanie also claimed that 
State v. Tuinman

20210242-CA 6 2023 UT App 83

Byron did not go with Samantha and Thomas that night. During 

this initial traffic stop encounter, the officer asked Stephanie for 

her cell phone; she had it with her at the time and provided it to 

him. But because the officer did not at that point consider 

Stephanie a suspect, he did not retain or search the phone, and 

returned it to her after the encounter was over.

¶12 At various points during that first night, officers also 

interviewed (among others) Samantha, Amy, and Byron. 

Samantha told officers that she would only “talk about [her own] 

involvement,” a statement officers took to mean that others were 

involved as well. But Samantha would not state that anyone 

else—other than she and Thomas—was involved. In fact, when 

asked if anyone else had been there that night, she said no. Amy 

denied any involvement at all. But Byron told officers that he and 

Stephanie were in the minivan with Thomas and Samantha, that 

they were at Roy and Sandra’s place on the night in question, and

that Stephanie had brought a baseball bat.

¶13 After conducting some of the other interviews—most 

notably Byron’s—officers came to view Stephanie (rather than 

Amy) as a potential suspect, and asked to speak with her again, 

and she willingly complied. Officers conducted a second 

interview with Stephanie at about 4:00 a.m. at a police station, 

some three hours after their previous encounter. Wearing the 

same gray sweatshirt and black sweatpants as earlier, Stephanie 

again denied any involvement in the attack on Roy and Sandra. 

Officers who interacted with Stephanie testified that they saw no 

blood on Stephanie’s clothing or on the places where she sat. 

¶14 Officers had a third pre-arrest encounter with Stephanie 

the next night, on April 8, in connection with another traffic stop. 

During this encounter, officers asked to see her cell phone that she 

had willingly let them look at less than 48 hours earlier, but 

Stephanie did not have it and claimed to have lost it.
State v. Tuinman

20210242-CA 7 2023 UT App 83

Pretrial Proceedings

¶15 On April 9, the State charged Stephanie with attempted 

aggravated murder, aggravated assault, and aggravated 

burglary, each with a “gang” enhancement asserting that the 

crimes had been committed “in concert with two or more 

persons.”3F

4 Later, after Sandra died, the State amended the first 

count to aggravated murder, a potentially capital offense. Six 

months after that, however, the State amended the count again, 

this time from aggravated murder to simple murder, rendering 

the case no longer a potential capital case. From that time forward 

until trial, Stephanie faced three charges: murder (a first-degree 

felony), aggravated assault (a second-degree felony), and 

aggravated burglary (a first-degree felony). 

4. That same day, the State also filed charges against Thomas, 

Samantha, Byron, and Michael. About seven months later, the 

State filed charges against Kristy. All six of the cases have now 

been resolved, at least at the trial level. As discussed herein, 

Samantha pled guilty to a reduced charge of manslaughter in 

August 2019, but was not sentenced until June 2021. See State v. 

Samantha Tuinman, No. 181800121 (Eighth District Docket). 

Kristy’s case went to trial in October 2020, and Kristy was 

convicted; her case is currently on appeal. See State v. Whitchurch, 

No. 20200938-CA. Shortly after Kristy’s trial, Byron pled “guilty 

and mentally ill” to two counts. See State v. Thompson, No. 

181800123 (Eighth District Docket). In early March 2021, Michael’s 

case went to trial and he was acquitted. See State v. Michael 

Tuinman, No. 181800120 (Eighth District Docket). Just two weeks 

later, in late March 2021, this case went to trial, resulting in 

Stephanie’s conviction. And in April 2021, after all other codefendants had been tried or had reached a plea agreement, 

Thomas pled guilty to three counts. See State v. Thomas Tuinman, 

No. 181800119 (Eighth District Docket).
State v. Tuinman

20210242-CA 8 2023 UT App 83

¶16 Nearly three years elapsed between the filing of the initial 

information and the trial. Certain delays were involved with the 

case being—for about six months—a potential capital case; 

qualified capital defense counsel had to be located and retained. 

And even after the case was no longer classified as potentially 

capital, the case still involved serious charges involving five (and 

eventually six) co-defendants, a situation that presented

difficulties in terms of trial presentation4F

5 and scheduling and that, 

in addition, placed something of a strain on the judicial and lawenforcement resources of a relatively small county. 

¶17 After some initial delays associated with getting counsel 

appointed for all the defendants and with addressing some 

discovery issues, in August 2018 the trial court scheduled a 

preliminary hearing to take place in November 2018. At this 

August hearing, Stephanie’s attorneys (Trial Counsel) orally 

“invoke[d] the right to a speedy trial for the record.”

¶18 But a few days before the preliminary hearing was to occur, 

it was postponed because the State amended the information (to 

eliminate the capital charge) and provided new discovery to Trial 

Counsel. The preliminary hearing occurred, as rescheduled, in 

January 2019, and the magistrate later—in May 2019, after the 

parties submitted briefing—issued a written ruling binding 

Stephanie over for trial on all charges.

¶19 The State’s main witness at the preliminary hearing was 

Samantha. Immediately after the attack, Samantha had been 

unwilling to state that anyone other than she and Thomas was

5. See generally Bruton v. United States, 391 U.S. 123 (1968) (holding 

that, in a criminal trial with two or more defendants, a codefendant’s out-of-court statement implicating the defendant’s 

guilt cannot be offered against the defendant because it violates 

the defendant’s Sixth Amendment right to confront and crossexamine witnesses). 
State v. Tuinman

20210242-CA 9 2023 UT App 83

involved. But in November 2018, Samantha had agreed to discuss 

the involvement of others; at the preliminary hearing, she testified 

that the State had offered to allow her to plead guilty to a “lesser 

charge” in exchange for “giving testimony in this case.” And later, 

at trial, she explained that she made the decision to tell “the rest 

of the story” after D.T.—who was apparently “carrying the 

weight of” the situation—tried to harm himself. In any event, she 

submitted a written statement that was admitted into evidence at 

the preliminary hearing in which she stated, among other things, 

that Stephanie had not only been present during the attack but 

that Stephanie had hit Sandra on the head with a baseball bat.

¶20 After bindover, the court held a scheduling conference to 

discuss setting a trial date. But the court did not set one at that 

hearing, because attorneys for some of the defendants indicated 

they would file motions to sever the various trials. Indeed, just 

days later, Trial Counsel filed such a motion on Stephanie’s 

behalf, asking the court to “sever her case from those of her codefendants” so that “a jury can make a decision based upon the 

actual evidence and not based upon the fact that there are a whole 

bunch of people charged in this case.” At oral argument on the 

motion, the court noted that the motions to sever could cause a 

“big delay” in getting the case to trial, but Trial Counsel 

nevertheless thought Stephanie’s motion to sever was “terribly 

important because [Stephanie’s] defense is she wasn’t there” and 

most of “the other defendants who were there are admitting it.” 

At the end of the oral argument on the motion, the court reserved 

ruling “due to other motions in limine and additional evidence 

that was being developed by the State that could affect the motion 

to sever.” And a few weeks later, Trial Counsel filed a motion to 

change venue. Thus, by these motions, Stephanie asked that her 

trial be held separately from the other co-defendants and that it 

take place in a different county. 

¶21 Several months passed, during which the parties updated 

their briefing on the motions and resolved several discovery 
State v. Tuinman

20210242-CA 10 2023 UT App 83

issues. At a hearing held in December 2019, even before issuing a 

ruling on the motion to sever, the court set a trial date for at least 

one trial, stating that—no matter how the motion to sever was 

decided—it could “go ahead and hold the trial for the defendants 

that haven’t asked for severed trials.” The date the court selected 

for the first trial was August 2020. But because it hadn’t yet been 

determined whether the trials would be severed, it was unclear 

whether Stephanie’s trial would occur on that date. 

¶22 In early March 2020, Trial Counsel filed fourteen separate

motions in limine, chiefly regarding evidentiary issues. Most 

notably for purposes of this appeal, Stephanie asked the court to 

exclude certain statements Sandra made to others on the night of 

the attack, including statements indicating that Stephanie had 

been present. And she asked the court to exclude from her trial all 

statements made by the co-defendants, including Byron. In this 

latter motion, she cited Confrontation Clause concerns with 

regard to all co-defendant statements, and raised an additional 

ground for exclusion that applied only to statements made by 

Byron: that he was allegedly incompetent when he made the 

statements in question.

¶23 Shortly after these motions were filed, the worldwide 

COVID-19 pandemic entered the scene. On March 13, 2020, 

Utah’s chief justice issued an administrative order postponing 

all “non-essential” court hearings.5F

6 And in June 2020, the chief 

justice issued another administrative order suspending jury 

trials in all counties in the “red phase,” noting that courts—even 

more so than other branches of government—needed to be 

cautious because “courts are in the unique position of having the 

6. See Administrative Order for Court Operations During 

Pandemic, Utah Supreme Court (Mar. 13, 2020), 

https://legacy.utcourts.gov/alerts/docs/20200311%20-%20Pande

mic%20Administrative%20Order.pdf [https://perma.cc/3EGH-3

V3Z]. 
State v. Tuinman

20210242-CA 11 2023 UT App 83

authority to compel individuals to appear” in court.6F

7 Once a 

county moved to the “yellow phase” or the “green phase,” jury 

trials could resume. At the time, Duchesne County was in the red 

phase. 

¶24 In April 2020, after the State withdrew its objection to the 

various motions to sever, the trial court granted Stephanie’s 

motion to sever, ordering that her trial be held “separately from 

all co-defendants.” But the court denied the motion to change 

venue, ruling that the trials would take place in Duchesne County. 

The court then scheduled individual trial dates for the various 

defendants, scheduling Thomas’s trial first, then Michael’s, both 

in August 2020 during the dates previously set. The court then set 

Stephanie’s trial for September 2020, followed by Kristy’s and 

Byron’s, each of which was to take place in October.

¶25 With regard to the evidentiary motions Stephanie had 

filed, the court ruled inadmissible all of the statements Sandra 

had made on the night of the attack, including her 

statement identifying Stephanie, and it ruled—presumably on 

Confrontation Clause grounds, although the ruling was nonspecific—that “all out of court statements made by” Thomas, 

Byron, Kristy, Amy, and Michael “will not be admitted at trial.” 

The court made no mention of Stephanie’s argument that 

Byron’s statements should be excluded due to his alleged 

incompetence.

¶26 Several months before trial, Trial Counsel filed a notice of 

alibi, indicating that Stephanie would be offering an alibi defense, 

and stating that two witnesses would provide alibi evidence: Amy 

7. See Administrative Order for Court Operations During 

Pandemic, Utah Supreme Court (June 26, 2020), 

https://legacy.utcourts.gov/alerts/docs/20200626%20-%20Amend

ed%20Pandemic%20Administrative%20Order.pdf [https://perma

.cc/9KE8-9U7R]. 
State v. Tuinman

20210242-CA 12 2023 UT App 83

and a medical expert. Notably, the notice of alibi did not list 

Mother as a potential alibi witness.

¶27 On July 29, 2020, about six weeks prior to the scheduled 

trial date, Trial Counsel filed a document captioned Speedy Trial 

Invocation, purporting to “invoke[]” Stephanie’s “right to a 

speedy trial pursuant to” the U.S. and Utah Constitutions, and 

opposing “any further delays in proceeding to trial.” Stephanie 

also filed an affidavit offering to waive her right to a jury trial and 

have her case tried to the bench.

¶28 Soon thereafter, in mid-August 2020, the court, “upon 

its own initiative,” struck Stephanie’s September 2020 trial 

date, noting that Duchesne County was “still operating under 

the Red Phase of the pandemic order” and that the court 

was therefore prevented, by the chief justice’s administrative 

order, from conducting “any criminal jury trials.” And the court 

refused to “approve a waiver of the jury in this case” in order to 

hold a bench trial by videoconference, citing rule 17(c) of the Utah 

Rules of Criminal Procedure, and later explaining that, in this 

case, it was “unwilling” to “make credibility determinations in a 

remote setting.” See Utah R. Crim. P. 17(c) (“All felony cases shall 

be tried by jury unless the defendant waives a jury in open court 

with the approval of the court and the consent of the 

prosecution.”).

¶29 At an ensuing scheduling conference in mid-September, 

the court stated that it had been authorized by “the judicial 

council to hold jury trials in Duchesne County now,” and that it 

was planning to go ahead with Kristy’s trial, as previously 

scheduled, in early October. The court even noted that Kristy’s 

trial would “be the first trial in the State of Utah” following the 

pandemic hold, and that “everybody” in the Utah legal 

community would be “looking to us now to see how that works 
State v. Tuinman

20210242-CA 13 2023 UT App 83

out.”7F

8 The court then offered Stephanie a November 2020 trial 

date, noting that Stephanie’s criminal case would take priority 

over all civil cases on the court’s docket, and stating that if the 

court “vacated” all the civil matters on its November docket as 

well as perhaps one of its criminal law and motion calendars, it 

could fit Stephanie’s trial into its November 2020 calendar, to 

begin on November 4. Trial Counsel was unfortunately 

unavailable for those November dates; the court then scheduled 

Stephanie’s trial to take place in mid-December 2020, to follow on 

the heels of Michael’s. 

¶30 After the court struck the September 2020 trial date, Trial 

Counsel filed a motion to dismiss the entire case, asserting that 

Stephanie’s right to a speedy trial had been violated. In that 

motion, Stephanie did not argue that Utah’s chief justice lacked 

the authority to issue an administrative order putting criminal 

jury trials on hold; indeed, she asserted that “the pandemic can 

only be tangentially blamed for the delays.” Instead, Stephanie 

pointed to the “scheduling chaos” that had resulted from six codefendants being tried in a small jurisdiction, and asserted that 

“she cannot be held to account for the time lapse.” After full 

briefing, the court denied Stephanie’s motion to dismiss in a 

written ruling, concluding that the four-factor balancing test 

mandated by Barker v. Wingo, 407 U.S. 514 (1972), did not point to 

a violation of Stephanie’s constitutional right to a speedy trial. The 

court determined that the delays in getting the case to trial were 

“justified” and had been caused by “the complexity and 

8. Kristy’s trial went forward as scheduled in October 2020, and it 

was indeed the first jury trial to be conducted anywhere in Utah 

after the pandemic hold. See Jessica Miller, Utah Held Its First Jury 

Trial Since the Pandemic Started, Salt Lake Tribune (Oct. 24, 2020), 

https://www.sltrib.com/news/2020/10/24/utah-held-its-first-jury

[https://perma.cc/F6TJ-PHMR]. 
State v. Tuinman

20210242-CA 14 2023 UT App 83

seriousness of the charges, the amount of discovery requests and 

pre-trial motions, and, ultimately, the COVID-19 crisis.” 

¶31 On November 24, 2020, just three weeks before Stephanie’s 

trial was set to start, the court again struck the trial date for 

COVID-related reasons. It noted that, since it set the trial date 

back in September, “the transmission of COVID-19 throughout 

the State increased dramatically,” and that Duchesne County was 

back in the red phase. The court informed the parties that it had 

been working with “medical experts who had been advising the 

courts” to develop “pilot protocols” that would enable jury trials 

to go forward even “under condition red.” But given the severity 

of the recent spike in COVID-19 transmission, those experts had 

“recommended that the courts not proceed with the pilot 

program” because they “could not be confident that the protocols 

could safeguard court participants.” At a scheduling conference 

held in mid-December, the court rescheduled Stephanie’s trial, 

this time scheduling it to begin on March 24, 2021. 

¶32 In preparation for trial, Trial Counsel became aware that 

Samantha—shortly after being arrested in April 2018—had a 

conversation with an attorney (Attorney) who had, at the time, 

been representing Michael.8F

9 Attorney had gone to the jail to visit 

Michael, but jail personnel mistakenly brought Samantha—

instead of Michael—to the interview room. Attorney explained to 

Samantha that he was not her lawyer, but Samantha expressed a 

desire to speak with him anyway, and she provided Attorney 

with a version of events that was roughly consistent with what 

she had told officers earlier: that she and Thomas were the only 

ones who had participated in the attack, and that no other family 

members were present. Attorney had offered this testimony at 

Kristy’s trial in October 2020; he had been called at the behest of 

9. The facts in this paragraph come from Attorney’s declaration 

that is not part of the record, but was submitted in connection 

with Stephanie’s rule 23B motion. See Utah R. App. P. 23B(a). 
State v. Tuinman

20210242-CA 15 2023 UT App 83

Kristy’s attorneys, who used his testimony in an effort to impeach 

Samantha’s story—relayed at Kristy’s trial—that Kristy had been 

present and participated in the attack.

¶33 In the months leading up to Stephanie’s trial, some of the 

other family members’ cases were resolved in various ways. 

Kristy was convicted at her October 2020 trial. Just days after that 

verdict, Byron pled “guilty and mentally ill” to certain charges. 

And in early March 2021, just two weeks prior to the scheduled 

start of Stephanie’s trial, a jury acquitted Michael on all counts. 

The Trial

¶34 Stephanie’s jury trial began on March 24, 2021. In support 

of its case-in-chief, the State presented testimony from (among 

other witnesses) Samantha, Roy, various law enforcement 

officers, the medical examiner who performed the autopsy on 

Sandra, and Byron.

¶35 Samantha testified as she had at the preliminary hearing: 

that Stephanie had been present at the attack and had participated 

in it by, among other things, hitting Sandra over the head with a 

baseball bat. The State acknowledged that this account differed 

from what Samantha originally told officers and from what she 

had told Attorney at the jail; the State preemptively asked

Samantha about these inconsistencies, and she explained how 

D.T.’s struggles motivated her to tell “the truth of what had 

happened.” She acknowledged that, in return for her testimony 

against her co-defendants, the State offered her a plea of 

manslaughter. When asked about Stephanie’s health, Samantha 

stated that her sister-in-law has “menstrual bleeding issues” and 

occasionally has to use oxygen, but Samantha testified that 

Stephanie did not seem to have had trouble with ordinary 

activities on April 6. 
State v. Tuinman

20210242-CA 16 2023 UT App 83

¶36 On cross-examination, Trial Counsel followed up with

Samantha about her interaction with Attorney. Samantha 

confirmed that she spoke with Attorney before meeting with her 

own lawyers, and that Attorney “asked [Samantha] very 

specifically who was present on the night of the attack.” Samantha 

testified that she did not specifically recall what her answer was, 

but she was “pretty sure [she] told him the same thing that [she] 

had told the officers.” Trial Counsel also asked Samantha about 

her plea arrangement, and Samantha explained that D.T. was 

struggling a lot, that he “needs his mother,” and that she was 

willing “to do whatever” it took to be with her son.

¶37 A detective (Detective) who had interviewed both

Samantha and Stephanie on the night of the attack testified that 

when Samantha first spoke to him, she was hesitant and her 

statement that she would “only talk about [her] involvement” led 

him to believe that there were more people involved than just 

Samantha. He recounted for the jury that, when he interviewed 

Stephanie, she claimed she never went to Roy’s house and was in 

the bathroom at Mother’s house when her siblings left. Detective 

also testified that, at one point early in his interview with 

Stephanie, he told her he thought she was lying because of “the

statements that” officers had already taken.

¶38 On cross-examination, Trial Counsel asked Detective about 

his statement to Stephanie, during the interview, that he thought 

she was lying, and suggested that Detective—by making that 

statement—was employing aggressive interview techniques. 

Detective replied that calling a suspect a liar during an interview

“could be” a tactic, but he clarified that the “main goal is to try to 

get to the truth.” Trial Counsel then asked Detective, “Then why 

would you call somebody a liar right out of the gate?” Detective 

replied, “Because I didn’t think I was getting the truth.”

¶39 After this exchange, the State asked for a sidebar before 

beginning its redirect examination of Detective. The trial court 
State v. Tuinman

20210242-CA 17 2023 UT App 83

then ruled—outside the presence of the jury—that Trial Counsel, 

by asking Detective about his reasons for calling Stephanie a liar,

had “opened the door” to the previously excluded statements of 

Sandra and Byron to come in for their “effect on the hearer.” The 

court explained that its earlier ruling excluding those statements 

had caused the State to “steer[] clear of finding out why 

[Detective] would want to investigate Stephanie,” but Trial 

Counsel “went on to extensively question why he would call 

[Stephanie] a liar and made a lot of hay out of him calling her a 

liar and investigating her with no evidence or no reason to even 

question her.” Detective was “bound by [the court’s] prior ruling 

to not discuss any hearsay” so Trial Counsel’s questioning 

“paint[ed] the picture that [Detective] was doing something 

improper.” Thus, the court ruled that the previously excluded 

hearsay statements from Sandra and Byron became admissible to 

explain Detective’s skepticism of Stephanie’s account.

¶40 On redirect, Detective then explained to the jury why he 

thought Stephanie had been less than truthful during the 

interview. He testified that, at the time he interviewed Stephanie, 

he already knew about two pieces of evidence: (1) Sandra’s 

statement at the hospital that the Tuinman sister who was dating 

Byron had been among her attackers, and (2) Byron’s statement 

that Stephanie rode with him, Thomas, and Samantha to Roy’s 

house the night of April 6. Detective explained that he called 

Stephanie a liar because her answers to his questions were 

inconsistent with Sandra’s and Byron’s statements.

¶41 The medical examiner testified that Sandra died from “a 

stroke that resulted from blunt injuries that she sustained during 

an assault.” Two of the bruises on Sandra, he explained, were 

“pattern injuries that are consistent with having been inflicted by 

a particular type of object.” He also stated that Sandra had bruises 

that looked like she had been hit with a “rod-like object.”
State v. Tuinman

20210242-CA 18 2023 UT App 83

¶42 Finally, the State called Byron to testify. In pretrial 

proceedings, Trial Counsel had tried to prevent Byron from 

testifying not only because he was a co-defendant, but also 

because he had been deemed incompetent for a brief period.9F

10 As 

noted above, Byron’s statements were initially deemed 

inadmissible, presumably on Confrontation Clause grounds. But 

any Confrontation Clause concerns had been resolved by Byron’s 

October 2020 plea, and Trial Counsel did not make or renew, at 

trial, any objection to Byron’s testimony. Instead, Trial Counsel 

attempted to use Byron’s supposed incompetency as a basis to call 

his credibility into question: he raised concerns with Byron’s 

veracity in opening statement, on cross-examination, and in 

closing argument, arguing that Byron had a low IQ, that he was 

easily manipulated, that he heard voices, and that he had pled 

“guilty but mentally ill” to the lesser charge of manslaughter. 

¶43 In his trial testimony, Byron initially denied that Stephanie 

went to Roy’s house the night of the attack. The State impeached 

that testimony, however, with the prior inconsistent statement 

Byron had made in his police interview, which statement was 

admitted into evidence and played for the jury; in that statement, 

Byron said that “[m]e, Samantha, and Stephanie” were in the 

minivan with Thomas that night. After listening to his interview 

statement, Byron then testified that he had in fact told police that 

Stephanie was also in the van with them and that “she brought 

the bat” with her, but he maintained that he had been 

“intimidated” into saying that.

¶44 Stephanie called her sister Amy to testify as an alibi 

witness. Amy testified that on the evening of April 6, she helped 

clean up blood that was “everywhere” when Stephanie 

10. At a court hearing on March 4, 2019, Byron was determined to 

be incompetent to assist in his own defense. By June 3, 2019, 

however, he was deemed competent to stand trial and was 

ordered to proceed to trial in his case.
State v. Tuinman

20210242-CA 19 2023 UT App 83

hemorrhaged, and that Stephanie went home to get cleaned up a 

couple of times, implying that Stephanie did not go to Roy and 

Sandra’s house because Stephanie was only gone for about “10, 15 

minutes.” Amy could not remember, however, the precise time 

when Stephanie or her siblings came and went that evening.

¶45 During trial, Stephanie asked the court for permission to 

present Mother as an additional alibi witness. The State objected, 

noting that Mother was not listed on Stephanie’s notice of alibi. 

Trial Counsel did not provide a reason why Mother was not listed 

on the notice. The court ruled that Mother could not offer

evidence about a phone call Stephanie claimed to have made on 

her way to Mother’s house or about the timing of when Stephanie 

came back to the house. Mother did eventually testify, though, 

about Stephanie’s medical issues, claiming that Stephanie had 

bleeding problems “[e]very day, every month,” and that she had 

been having such problems on April 6.

¶46 In closing, Trial Counsel urged the jury to consider how 

“Samantha, by her own admission, has lied multiple times 

throughout these proceedings and throughout this case.” He 

reminded them that Samantha “told [Attorney] it was just her and 

Tommy” but, when offered a deal for a lesser sentence, “she began 

to implicate other people” and “began to tell the new narrative.” 

In its rebuttal argument, the State acknowledged that Samantha 

had said different things at different times about who was present 

at the attack, and that “[t]here’s disagreement on how credible 

[Samantha] is.” The State urged the jury, however, to credit 

Samantha’s later version of events, the one she told after “what 

happened with her son.”

¶47 After deliberation, the jury found Stephanie guilty of 

murder, aggravated assault, and aggravated burglary, each with 

a gang enhancement. Immediately after the verdict, the State 

asked that sentencing happen quickly, stating that it was only 

going to “request concurrent sentencing with just the . . . 
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minimum mandatory as part of the sentence,” and that, in its

view, there was no need for a presentence report. The State further 

explained that there was to be a “change in the law . . . in May,” 

just a few weeks hence, that (if applicable) would make 

Stephanie’s mandatory minimum sentence shorter on the murder 

and burglary charges. The State therefore asked that Stephanie’s 

sentencing take place before the new statute went into effect. Trial 

Counsel did not object to the State’s request, at that time saying 

simply that he was “not aware of the change in the law” and 

therefore “not prepared” to address it.

¶48 Sentencing occurred on April 12, before the new statute 

took effect. Trial Counsel lodged no objection to the timing of the 

sentencing. At the conclusion of the sentencing hearing, the court 

sentenced Stephanie to concurrent prison terms, including a term 

of twenty years to life on the murder charge and a term of ten

years to life on the aggravated burglary charge. 

ISSUES AND STANDARDS OF REVIEW

¶49 Stephanie appeals, raising five issues for our consideration. 

First, she contends that the trial court violated her right to a 

speedy trial. “Whether a defendant’s right to a speedy trial has 

been violated presents a question of law, which we review for 

correctness.” State v. Steele, 2010 UT App 185, ¶ 14, 236 P.3d 161. 

¶50 Second, Stephanie challenges the trial court’s refusal to 

allow Mother to offer alibi testimony. A trial court’s exclusion of 

“an alibi witness because the defense had failed to timely notify 

the prosecution” is reviewed for abuse of discretion. See State v. 

Perea, 2013 UT 68, ¶¶ 87–88, 322 P.3d 624. 

¶51 Third, Stephanie challenges the trial court’s ruling that 

Trial Counsel opened the door to admission of previously 

excluded statements. “Trial courts have broad discretion to admit 
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20210242-CA 21 2023 UT App 83

or exclude evidence, and we will disturb an evidentiary ruling 

only for an abuse of discretion.” State v. Samora, 2021 UT App 29, 

¶ 18, 484 P.3d 1206 (quotation simplified), aff’d, 529 P.3d 330 (Utah 

2023). And relatedly, Stephanie asserts that, if Trial Counsel 

opened the door to admission of these statements, he rendered 

constitutionally ineffective assistance. “When a claim of 

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and we must 

decide whether the defendant was deprived of the effective 

assistance of counsel as a matter of law.” State v. Beckering, 2015

UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified). 

¶52 Fourth, Stephanie contends that the trial court erred in 

moving forward with sentencing before a statutory change took 

effect. If this challenge were preserved for appellate review, we 

would review the court’s ruling for abuse of discretion. See State 

v. Grover, 2022 UT App 48, ¶ 31, 509 P.3d 223. But in this instance, 

Stephanie recognizes that her challenge is unpreserved for our 

review, and she asks us to apply the “exceptional circumstances” 

exception to our preservation rules. 

¶53 And finally, in addition to the issues raised on direct 

appeal, Stephanie has also filed a motion, pursuant to rule 23B of 

the Utah Rules of Appellate Procedure, asking us to remand the 

case to the trial court in order to supplement the record with 

evidence to support a separate claim of ineffective assistance of 

counsel, namely, that Trial Counsel was ineffective for choosing 

not to call several witnesses at trial, including Attorney. “A 

remand under rule 23B is available only upon a nonspeculative 

allegation of facts, not fully appearing in the record on appeal, 

which, if true, could support a determination that counsel was 

ineffective.” State v. Florez, 2020 UT App 76, ¶ 16, 465 P.3d 307 

(quotation simplified). 
State v. Tuinman

20210242-CA 22 2023 UT App 83

ANALYSIS

¶54 We discuss Stephanie’s five claims in turn. We first 

evaluate her assertion that the trial court violated her right to a 

speedy trial. We then analyze whether the court erred in 

preventing Mother from offering alibi testimony. Next, we 

discuss the issues Stephanie raises regarding the court’s ruling 

that Trial Counsel “opened the door” to admission of previously 

excluded statements. We then examine Stephanie’s complaint 

about the timing of her sentencing. And finally, we assess the 

merits of Stephanie’s rule 23B motion. For the reasons discussed, 

we reject all of Stephanie’s claims. 

I. Speedy Trial

¶55 “The Sixth Amendment to the United States Constitution 

guarantees criminal defendants the right to a speedy and public 

trial.” State v. Thompson-Jacobson, 2022 UT App 29, ¶ 9, 508 P.3d 

604 (quotation simplified). But this “right is amorphous, slippery, 

and necessarily relative as it must take into account the 

defendant’s rights as well as the rights of public justice.” State v. 

Samora, 2022 UT App 7, ¶ 18, 504 P.3d 195 (quotation simplified), 

cert. denied, 525 P.3d 1254 (Utah 2022). 

¶56 When assessing speedy trial claims, courts follow the fourfactor test set forth by the United States Supreme Court. Id. ¶ 19; 

see also Barker v. Wingo, 407 U.S. 514, 530 (1972). The four Barker 

factors are (1) “[t]he length of delay,” (2) “the reason for the 

delay,” (3) “the defendant’s assertion of his right,” and 

(4) whether the delay resulted in “prejudice to the defendant.” 

Barker, 407 U.S. at 530. 

A

¶57 The first factor—length of delay—constitutes a “double 

enquiry.” See Doggett v. United States, 505 U.S. 647, 651 (1992). As 
State v. Tuinman

20210242-CA 23 2023 UT App 83

an initial matter, we must inquire whether “the interval between 

accusation and trial has crossed the threshold dividing ordinary 

from presumptively prejudicial delay.” Id. at 651–52 (quotation 

simplified). And here, that line has been crossed. The one-year 

milestone is generally considered to “mark[] the point at which 

courts deem the delay unreasonable enough to trigger the Barker

enquiry.” Id. at 652 n.1. Because the delay in this case is nearly

three years, we must engage in the full four-factor assessment of 

whether Stephanie’s speedy trial rights were violated. 

¶58 In addition, where—as here—the delay exceeds the oneyear threshold, we must engage in the second part of the first 

factor’s “double enquiry” and “consider, as one factor among 

several, the extent to which the delay stretches beyond the bare 

minimum needed to trigger judicial examination of the claim.” Id.

at 652. Three years is certainly longer than the usual criminal case 

takes to reach trial. And to that extent, this factor weighs at least 

somewhat in Stephanie’s favor. But the reason for the delay is 

much more important in a speedy trial analysis than a rote 

counting of the number of days of delay and, as we explain 

immediately below, much of the delay in this case can be 

attributed to Stephanie and not much of it can be attributed to the 

State. In light of these realities, we do not weigh this first factor 

very heavily in Stephanie’s favor. 

B

¶59 The second Barker factor—the reason for the delay—“is a 

crucial factor” that is especially important; it has been described 

as “the flag all litigants seek to capture.” State v. Hintze, 2022 UT 

App 117, ¶ 29, 520 P.3d 1 (quotation simplified), cert. granted, 525 

P.3d 1279 (Utah 2023). If a defendant is responsible for the delay, 

then the State cannot be said to have violated that defendant’s 

right to a speedy trial. See, e.g., United States v. Koerber, 10 F.4th

1083, 1109 (10th Cir. 2021) (refusing to find a speedy trial violation 

where the defendant “intentionally delayed his case in order to 
State v. Tuinman

20210242-CA 24 2023 UT App 83

try and obtain a dismissal with prejudice”). But even where the 

State is responsible for some delay, it matters whether the State 

delayed the case on purpose or not. See Barker, 407 U.S. at 531 

(noting that “[a] deliberate attempt to delay the trial in order to 

hamper the defense should be weighted heavily against the 

government,” but that “more neutral reason[s] such as negligence 

or overcrowded courts should be weighted less heavily”).

¶60 In this case, various delays can be attributed to (1) the 

pandemic, (2) the State, and (3) Stephanie, and our first task, in 

assessing this important second factor, is to ascertain how much 

of the 1,071-day time lapse is attributable to each of the three 

potential agents of delay. The State asserts that 641 days of delay 

are attributable to Stephanie, largely due to her motion to sever 

and associated litigation; 233 days to “either the prosecution or 

routine court delays”; and 197 days to the pandemic. Stephanie 

does not take issue with the State’s calculations and, from our 

review of the record, the State’s calculations appear to be sound.10F

11

¶61 With regard to the 233 days of delay attributable to either 

the State or to “routine court delays,” Stephanie makes no 

allegation that any of this delay was intentional on the part of the 

State; in fact, she does not even allege that any of this delay was 

due to any negligence by the State. We find persuasive the State’s 

contention that all of this delay “resulted from the complications 

11. If anything, the State’s calculation regarding pandemic-related 

delays is conservative. Recall that the court offered the parties a 

November 2020 trial date, but that date was not acceptable to Trial 

Counsel, resulting in the December 2020 setting that was 

eventually canceled due to the pandemic. Assuming that the 

November-to-December delay should be laid at the feet of 

Stephanie rather than the pandemic, the pandemic-related delay 

would be more like 160 or 170 days and Stephanie’s delay more 

like 660 or 670 days. But for purposes of our analysis, we accept 

the State’s numbers as accurate. 
State v. Tuinman

20210242-CA 25 2023 UT App 83

of having a capital case” located in a small jurisdiction “with 

multiple co-defendants.” As the State points out, Trial Counsel 

“either stipulated to that delay or did not oppose it.” On this 

record, we detect absolutely no gamesmanship, tactical delay, or 

even negligence on the part of the State. While these 233 days of 

delay must, by definition, be weighed against the State, under 

these circumstances they weigh only lightly so.

¶62 With regard to pandemic-related delay, Stephanie asserts 

that all 197 of these days should be held against the State. But she 

can hardly blame Duchesne County prosecutors, or even the trial 

court, for the delays attributable to a global pandemic, or for 

following administrative orders handed down by Utah’s chief 

justice or the judicial council. Instead, she attempts to blame the

chief justice and the judicial council, arguing here—for the first 

time on appeal—that the Utah judiciary had no authority to issue 

administrative orders suspending jury trials during the COVID19 pandemic. But this assertion is unpreserved; Stephanie did not 

argue, before the trial court, that the court could or should ignore 

the chief justice’s administrative orders, or that the court was 

violating her constitutional rights by following them. Instead, she 

made different arguments at trial, in particular stating that “the 

pandemic can only be tangentially blamed for the delays.” And 

because Stephanie does not ask us to apply any of the exceptions 

to our preservation doctrines in this respect, we do not further 

discuss her argument that the trial court may have violated her 

constitutional rights by hewing to orders handed down from the 

chief justice or the judicial council.11F

12

12. Although we do not further discuss the issue, the State asserts 

that nearly all courts to have considered the matter “have rejected 

claims that the pandemic did not give courts authority to suspend 

or toll speedy trial rights.” See Lemons v. State, No. 10-21-00136-

CR, 2022 WL 1259198, at *4 (Tex. Ct. App. Apr. 27, 2022); Belcher 

(continued...)
State v. Tuinman

20210242-CA 26 2023 UT App 83

¶63 Indeed, it seems to us that delays associated with a oncein-a-century worldwide pandemic should not in fairness be held 

against the State in a Sixth Amendment speedy trial analysis. This 

view comports with that of nearly all courts to have considered 

the matter, see, e.g., United States v. Chu, No. 19-cr-0678-WJM, 2022 

WL 475615, at *4 (D.N.J. Feb. 16, 2022) (concluding that pandemicrelated delays were attributable to “nobody at all” and therefore 

did not weigh in favor of finding a speedy trial violation), either 

under the Sixth Amendment12F

13 or under specific speedy trial 

v. State, No. 82255, 2022 WL 1261300, at *4 (Nev. Apr. 27, 2022); 

State v. Malachi, No. 1912018583, 2021 WL 4805515, at *2–3 (Del. 

Super. Ct. Oct. 14, 2021); State v. Rodriguez, No. 1811005093, 2021 

WL 1221461, at *2–3 (Del. Super. Ct. Mar. 30, 2021); People v. 

Mayfield, 2021 IL App (2d) 200603, ¶¶ 16–25, 186 N.E.3d 571. 

13. See Rodriguez, 2021 WL 1221461, at *3–6 (explaining that 

COVID-related delay was not attributable to either party and thus 

was not weighed in favor of a speedy trial claim under the Sixth 

Amendment); see also Labbe v. State, 869 S.E.2d 520, 529–30, 530 n.5 

(Ga. Ct. App. 2022); People v. Weis, No. 5-21-0076, 2022 IL App 

(5th) 210076-U, ¶ 84 (Mar. 7, 2022); State v. Tesch, No. 21-0343, 2022 

WL 1100922, at *2–4 (Iowa Ct. App. Apr. 13, 2022); Callender v. 

State, No. 1070, Sept. Term, 2020, 2021 WL 5371209, at *15–17 (Md. 

Ct. Spec. App. Nov. 18, 2021); State v. Jackson, 968 N.W.2d 55, 61 

(Minn. Ct. App. 2021); Berryman v. State, No. 2020-KA-00710-

COA, 2021 WL 5192852, at *8 (Miss. Ct. App. Nov. 9, 2021); State 

v. Brown, 964 N.W.2d 682, 693 (Neb. 2021); Belcher, 2022 WL 

1261300, at *5; Lemons, 2022 WL 1259198, at *4; Commonwealth v. 

Murphy, No. 0197-21-2, 2021 WL 3501732, at *5–6 (Va. Ct. App. 

Aug. 10, 2021); People v. Williams, No. SX-2019-CR-00034, 2022 WL 

1211307, at *4 (V.I. Apr. 21, 2022); Cotney v. State, 503 P.3d 58, 66–

67 (Wyo. 2022). 
State v. Tuinman

20210242-CA 27 2023 UT App 83

statutes.13F

14 We therefore conclude that the 197 days of pandemicrelated delay should be considered justified, or at least considered 

“neutral” and weighed against neither side.14F

15

¶64 Thus, in this case we have 641 days of delay attributable to 

Stephanie, 233 days of non-negligent delay attributable to the 

State, and 197 days of pandemic-related delay attributable to 

“nobody at all.” See id. Under these circumstances, this factor does 

not weigh in favor of Stephanie, and does not weigh in favor of 

finding a Sixth Amendment violation. 

14. See United States v. Olsen, 21 F.4th 1036, 1047 (9th Cir. 2022) 

(holding that COVID-related delay was justified under the 

Speedy Trial Act); see also United States v. Perez, No. 4:22-cr-00002-

DN-PK, 2022 WL 1004216, at *4 (D. Utah Apr. 4, 2022); Stanley v. 

Superior Court of Contra Costa County, 50 Cal. App. 5th 164, 168–69 

(2020); People v. Lucy, 467 P.3d 332, 337 (Colo. 2020); Smith v. State, 

310 So. 3d 1101, 1102–04 (Fla. Dist. Ct. App. 2020); State v. Prano, 

510 P.3d 690, 695 (Idaho Ct. App. 2021); Blake v. State, 176 N.E.3d 

989, 994 (Ind. Ct. App. 2021); Commonwealth v. Lougee, 147 N.E.3d 

464, 468 (Mass. 2020); State v. Brown, 964 N.W.2d 682, 693 (Neb. 

2021); People v. Marin, 163 N.Y.S.3d 774, 780 (N.Y. Crim. Ct. 2022); 

State v. Robinson, No. 110467, 2022 WL 1180668, at *11 (Ohio Ct. 

App. Apr. 21, 2022). But see State v. Labrecque, 249 A.3d 671, 680–

82 (Vt. 2020) (holding that pandemic delay weighed against the 

State on a Fifth Amendment pretrial detention claim).

15. We note, again, that Kristy’s trial was the first jury trial to take 

place in Utah after the COVID-19 pandemic broke out. It is not an 

overstatement to say that no trial judge in Utah worked harder 

than this one did to make jury trials a reality as soon as possible

after the pandemic hold. We not only reject Stephanie’s attempts 

to cast aspersions on this judge’s actions with regard to jury trials 

during the pandemic, but we commend this judge for his efforts. 
State v. Tuinman

20210242-CA 28 2023 UT App 83

C

¶65 “The third Barker factor requires examination of the 

defendant’s assertion of his right to a speedy trial.” Hintze, 2022 

UT App 117, ¶ 34. It is, of course, ultimately “the responsibility of 

the courts and the prosecutors to assure that cases are brought to 

trial, but defendants bear some responsibility to demonstrably 

assert their right to a speedy trial.” Id. (quotation simplified). This 

third factor, at root, is about whether the defendant’s “behavior 

during the course of the litigation evinces a desire to go to trial 

with dispatch.” United States v. Batie, 433 F.3d 1287, 1291 (10th Cir. 

2006). “Defendants who drag their feet and only half-heartedly 

express an interest in a speedy trial will have this factor weighed 

against them. On the other hand, defendants who do everything 

they could possibly do to evince a desire to go to trial will have 

this factor weighed in their favor.” Hintze, 2022 UT App 117, ¶ 41 

(quotation simplified). 

¶66 In this case, Stephanie first invoked her right to a speedy 

trial in August 2018, when Trial Counsel orally “invoke[d] the 

right to a speedy trial for the record.” But this invocation of the 

right is precisely the sort of “half-hearted” expression of interest 

in a speedy trial that we were referring to in Hintze. After making 

this invocation, “for the record,” Stephanie spent the next couple 

of years litigating various motions—including her motion to sever 

and motion to change venue—that she knew would cause “a big 

delay.” Indeed, we have already noted that Stephanie was 

responsible for 641 days of delay in this case, and most of that time 

occurred after her initial invocation of the right to a speedy trial.15F

16

16. We do not intend to call into question Trial Counsel’s choice 

to file motions, including the motion to sever, that would result in 

delay; after all, the motion was ultimately successful. But time 

spent attending to even well-intentioned strategic defense 

(continued...)
State v. Tuinman

20210242-CA 29 2023 UT App 83

¶67 In July 2020, some two years after Stephanie’s initial 

invocation of her right to a speedy trial, Trial Counsel filed a 

document captioned “Speedy Trial Invocation,” in which 

Stephanie “invoke[d] her right to a speedy trial” and registered 

her opposition to “any further delays in proceeding to trial.” At 

this point, the pandemic was in full swing and the chief justice’s 

orders restricting jury trials were in effect. And Stephanie even 

offered to waive her right to a jury trial and have her case tried to 

the bench. This July 2020 invocation of the right to a speedy trial 

was in no sense half-hearted, and in our view represents the point 

in time at which Stephanie truly invoked her right to a speedy 

trial. Stephanie then followed up her July 2020 invocation of the 

right with a September 2020 motion to dismiss her case for a 

speedy trial violation. 

¶68 But Stephanie’s problem, after that point, is that both the 

trial court and the State did everything they could to schedule the 

trial as speedily as possible. The court stood willing to cancel or 

postpone all civil matters, and even some of its criminal law-andmotion calendars, to get Stephanie’s trial scheduled in a timely 

fashion. It set a trial date for September, but that date was 

canceled due to the pandemic. It attempted to schedule a new date

for November, but that didn’t work with Trial Counsel’s 

schedule. It then set a new date for December, but that too fell to 

pandemic-related concerns. As noted, the case finally proceeded 

to trial in March 2021. 

¶69 In sum, Stephanie only half-heartedly invoked her right to 

a speedy trial prior to July 2020. Viewed only up to that point, this 

motions still counts against the movant, and not against the State,

in a speedy trial analysis. See, e.g., Newell v. State, 175 So. 3d 1260, 

1269–70 (Miss. 2015) (stating that “well-taken motions” by a 

defendant “may justify a delay in criminal cases” but such a delay 

“caused by the actions of the defendant . . . tolls the running of the 

time period for that length of time” (quotation simplified)). 
State v. Tuinman

20210242-CA 30 2023 UT App 83

third factor should be weighed against Stephanie. But she did 

quite vigorously assert her right after that, and so in the end we 

view this factor as an ultimately neutral factor that weighs neither 

strongly in favor of Stephanie nor strongly against her. 

D

¶70 The final Barker factor “requires an examination of the 

extent to which [Stephanie] was prejudiced” by the delay in 

having a jury trial, and is—much like the second factor—

considered a “crucial factor.” See Hintze, 2022 UT App 117, ¶ 43. 

“Prejudice, of course, should be assessed in the light of the 

interests of defendants which the speedy trial right was designed 

to protect.” Barker, 407 U.S. at 532. Specifically, those interests are 

(1) “prevent[ing] oppressive pretrial incarceration;” 

(2) “minimiz[ing] anxiety and concern of the accused;” and 

(3) “limit[ing] the possibility that the defense will be impaired.” 

Id. “Of these, the most serious is the last, because the inability of a 

defendant adequately to prepare [her] case skews the fairness of 

the entire system.” Id.

¶71 Stephanie did not assert at the trial court level, and does 

not assert here on appeal, that she suffered any specific 

impairment to her defense as a result of the three-year delay in 

getting this case to trial. That is, she cannot identify any evidence 

that was lost or witness that was rendered unavailable by the 

passage of time. Thus, Stephanie has not demonstrated any 

prejudice of the sort that is considered “the most serious”: 

impairment to her defense. See id.

¶72 But Stephanie did sustain, at least at some level, the other 

two types of prejudice. She was subject to a longer period of 

pretrial incarceration due to the length of time it took to get her 

case to trial, and she undoubtedly experienced additional anxiety 

and concern about the pending proceedings. These elements of 

prejudice are far from trivial, and even the State acknowledges 
State v. Tuinman

20210242-CA 31 2023 UT App 83

that Stephanie did experience at least some additional prejudice as 

a result of the delays in getting to trial. 

¶73 We agree, however, with the State’s assessment of the way 

this factor should be evaluated. Where Stephanie cannot 

demonstrate any specific impairment to her defense, but can 

demonstrate some additional anxiety and pretrial incarceration, 

this factor weighs in Stephanie’s favor, but not heavily. 

E

¶74 The last step of a Barker analysis is “to balance the 

four factors.” Hintze, 2022 UT App 117, ¶ 68. Although two of 

the factors—the length of delay and prejudice—weigh in favor 

of Stephanie, those do not weigh heavily in her favor. In this 

case, where the important reason-for-delay factor does not 

weigh in her favor and where she can demonstrate only slight 

prejudice, we do not view the overall balancing test coming out 

in Stephanie’s favor. Certainly, three years is a long time to get a 

case to trial. But here, all parties—Stephanie, the State, and 

especially the trial court—worked very hard to get these 

complicated cases tried as soon as possible in a small county in 

the middle of a once-in-a-century public health crisis. And under 

these circumstances, where the State did not even negligently—

let alone deliberately—contribute to any of the delay, we cannot 

say that Stephanie’s right to a speedy trial was violated. We 

therefore discern no error in the trial court’s decision to deny 

Stephanie’s motion to dismiss. 

II. Alibi Witness

¶75 Next, Stephanie challenges the trial court’s decision to 

forbid Mother from offering alibi testimony at trial. Under Utah 

law, a defendant “who intends to offer evidence of an alibi” must 

provide written notice, at least ten days prior to trial, “of [her]

intention to claim alibi.” See Utah Code § 77-14-2(1). In particular, 
State v. Tuinman

20210242-CA 32 2023 UT App 83

and among other information, this notice must contain “the 

names and addresses of the witnesses by whom [the defendant]

proposes to establish alibi.” Id. If a defendant “fails to comply 

with” the statute’s requirements, “the court may exclude evidence 

offered to establish or rebut alibi.” Id. § 77-14-2(3). But the trial 

court may, in its discretion and “for good cause shown, waive the 

requirements” of the alibi notice statute. Id. § 77-14-2(4). 

¶76 More than ten days prior to trial, Stephanie gave notice that 

she intended to claim alibi. In that notice, she stated that she “was 

not present at the scene of the alleged offense,” and that she 

would present evidence that she “was at [M]other’s home when 

the other alleged offenders left to go to the scene and that during 

the commission of the alleged offense she had returned to her own 

residence to handle a medical issue.” She indicated that a “lay 

witness will be called by the defense and an expert witness will 

be called to lay foundation for the alibi.” She then identified the 

single lay witness as Amy. In the notice, Stephanie did not list 

Mother as a potential alibi witness. 

¶77 At trial, Stephanie presented Amy as an alibi witness, as 

she had indicated in the notice. But then she asked the court for 

permission to present Mother as an additional alibi witness. The 

court ruled that Mother could take the stand, but that she could 

not offer alibi evidence because she was not included in 

Stephanie’s notice of alibi. In particular, the court ruled that 

Mother could not testify about (1) a phone call Stephanie claimed 

to have made on her way to Mother’s house or (2) the timing of 

when Stephanie came back to Mother’s house. Stephanie 

challenges this ruling on several grounds, first asserting that the 

proffered evidence was not alibi evidence at all and therefore not 

subject to the statutory notice requirement; next claiming that the 

trial court should have allowed the testimony anyway; and finally 

contending that the court’s ruling violated her constitutional 

rights. We discern no infirmity in the court’s ruling.
State v. Tuinman

20210242-CA 33 2023 UT App 83

¶78 We first reject Stephanie’s assertion that Mother’s 

proposed testimony about the phone call and the timing of 

Stephanie’s return was not alibi evidence. It quite clearly was. The 

purpose of offering Mother’s testimony about these things was to 

demonstrate that Stephanie was not at the scene of the attack but 

was, instead, either at Mother’s house or at her own residence 

attending to her medical issues. We quite comfortably conclude 

that Mother’s proposed testimony qualified as alibi evidence 

within the ambit of the alibi notice statute. 

¶79 And we likewise reject Stephanie’s assertion that the court 

abused its discretion by enforcing the alibi notice statute 

according to its terms in this situation. A court’s decision 

regarding whether to waive the requirements of the alibi notice 

statute is reviewed deferentially. See State v. Perea, 2013 UT 68, 

¶¶ 87–88, 322 P.3d 624. Thus, it may well have been within the 

court’s discretion to have allowed Mother’s testimony in this 

instance. But we will reverse a court’s decision in this regard only 

where we perceive an abuse of that discretion, something that is 

reserved for clear cases. See, e.g., State v. Ortiz, 712 P.2d 218, 220 

(Utah 1985) (concluding that a court abused its discretion when it 

refused to allow a defendant to substitute a new alibi witness for 

a disclosed one who had become unavailable immediately prior 

to trial). Stephanie did not list Mother in her notice, and she 

offered no good reason for the omission. Moreover, Stephanie was 

able to call Amy, her listed alibi witness, who was available and 

testified as anticipated. We cannot say that it was an abuse of 

discretion for the court to have refused to allow Stephanie to call 

a second alibi witness who had not been listed.

¶80 Finally, Stephanie raises constitutional concerns with the 

alibi notice statute, claiming that she had a due process right to 

present a defense to the criminal charges, and that the court’s 

ruling pursuant to the statute impaired that right. Even assuming 
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20210242-CA 34 2023 UT App 83

that this argument was preserved,16F

17 it fails on its merits. To be 

sure, criminal defendants have a constitutional “right to present a 

defense.” See State v. Thornton, 2017 UT 9, ¶ 74, 391 P.3d 1016 

(quotation simplified). But this right is “far from absolute,” id. ¶ 7, 

and it does, “in appropriate cases, bow to accommodate other 

legitimate interests in the criminal trial process,” see Michigan v. 

Lucas, 500 U.S. 145, 149 (1991) (quotation simplified). State 

procedural rules, including alibi notice statutes, represent the sort 

of legitimate interests that can permissibly impact a defendant’s 

right to present a defense. See Taylor v. Illinois, 484 U.S. 400, 411–

12 & n.16 (1988) (stating that “[t]he State’s interest in the orderly 

conduct of a criminal trial is sufficient to justify the imposition and 

enforcement of firm, though not always flexible, rules relating to 

the identification and presentation of evidence,” and listing alibi 

notice statutes as an example of the sort of discovery-based rule 

that, if not followed, could result in a defendant not being allowed 

to present desired evidence); Williams v. Florida, 399 U.S. 78, 84–86 

(1970) (stating that “[n]othing in the Fifth Amendment privilege 

entitles a defendant . . . to await the end of the State’s case before 

announcing the nature of [the defendant’s] defense,” and 

upholding alibi notice statutes as consistent with due process and 

the right against self-incrimination); see also Ferdinand S. Tinio, 

Annotation, Validity and Construction of Statute Requiring Defendant 

in Criminal Case to Disclose Matter as to Alibi Defense, 45 A.L.R.3d 

958, §§ 2, 4–9 (2022) (citing additional cases). Indeed, our supreme 

court has stated that a defendant who failed to comply with the 

alibi notice statute had not been deprived of the opportunity to 

17. This argument does not appear to have been preserved for 

appellate review. But where “the merits of a claim can easily be 

resolved in favor of the party asserting that the claim was not 

preserved, we readily may opt to do so without addressing 

preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 

(quotation simplified), cert. denied, 496 P.3d 718 (Utah 2021). We 

opt to do so here. 
State v. Tuinman

20210242-CA 35 2023 UT App 83

present alibi evidence, because “[a]ll he needed to do was comply 

with the [statutory] timing requirements.” See State v. Maestas, 815 

P.2d 1319, 1325 (Utah 1991). 

¶81 Stephanie had every opportunity to call Mother as an alibi 

witness. She simply needed to list Mother, along with Amy, in her 

notice of alibi. She did not do so, and failed to articulate to the trial 

court any good reason why she hadn’t.17F

18 And she was able to call 

her listed alibi fact witness. Under these circumstances, we see no 

infirmity in the trial court’s decision to limit Mother’s testimony 

and refuse to allow her to provide undisclosed alibi evidence. 

III. Opening the Door

¶82 Next, Stephanie takes issue with the trial court’s ruling that 

Trial Counsel, during cross-examination of Detective, opened the 

door to admission of previously excluded statements, and her 

challenge takes two forms. First, she appeals the court’s ruling 

directly, and contends that Trial Counsel actually didn’t open the 

door. Second, and in the alternative, she asserts that, if Trial 

Counsel opened the door, he rendered ineffective assistance in so 

doing. We analyze each claim in turn. 

A

¶83 Stephanie asserts that the trial court abused its discretion

in ruling that Trial Counsel had opened the door to the previously 

excluded statements of Sandra and Byron. We disagree. 

¶84 The statements at issue here are the statements Sandra and 

Byron made to officers immediately after the attack: Sandra 

indicated that one of her attackers was the Tuinman sister who 

18. On appeal, Stephanie makes no assertion that Trial Counsel 

rendered ineffective assistance by failing to list Mother in the 

notice of alibi. 
State v. Tuinman

20210242-CA 36 2023 UT App 83

was dating Byron, and Byron stated that he and Stephanie had 

indeed been present at the attack. Officers were aware of these 

two statements by the time they interviewed Stephanie at the 

police station at 4:00 a.m. on the morning after the attack. And 

these two statements gave officers reason to believe that 

Stephanie had participated in the attack along with others, and 

apparently gave Detective reason to believe that Stephanie was 

lying when she denied any involvement in the evening’s events. 

¶85 The trial court made a pretrial ruling excluding the 

substance of these statements from being admitted at trial 

(although, as discussed below, subsequent events changed 

matters concerning Byron’s statement). In light of this ruling, the 

State’s questioning of Detective on this particular point during 

direct examination was cursory: the prosecutor merely elicited the 

fact that Detective thought Stephanie was being less than fully 

truthful when she denied any involvement, and that his basis for 

that belief was that officers were in possession of certain 

“statements.” But in keeping with the court’s ruling excluding 

from evidence the content of those statements, the State did not 

ask Detective any questions about what those “statements” were, 

who made them, or what they might contain; as the court later 

noted, the State “steered clear” of delving into the details of the 

basis for Detective’s belief. And Trial Counsel lodged no objection 

to the State’s direct examination in this regard. 

¶86 On cross-examination, however, Trial Counsel made a 

strategic decision to delve deeper into the reasons why Detective 

accused Stephanie of not telling him the whole truth. He asked 

Detective whether calling suspects “a liar” was “an interview 

technique” designed to elicit more favorable answers. Detective 

acknowledged that “[i]t could be” part of an interview technique, 

but he maintained that his “main goal is to try to get to the truth.” 

Trial Counsel established that Detective had called Stephanie a 

liar quite early in the interview, and then asked him this openended question: “Then why would you call somebody a liar right 
State v. Tuinman

20210242-CA 37 2023 UT App 83

out of the gate?” Detective replied, “Because I didn’t think I was 

getting the truth.” 

¶87 After this exchange, the court ruled that Trial Counsel, by 

asking Detective specific questions about his reasons for calling 

Stephanie a liar, had “opened the door” for the previously

excluded statements to come in for their “effect on the hearer.” 

The court noted that, in its view, Trial Counsel “extensively 

question[ed]” Detective about “why he would call [Stephanie] a 

liar and made a lot of hay out of him calling her a liar and 

investigating her with no evidence or no reason to even question 

her,” and thereby “paint[ed] the picture that [Detective] was 

doing something improper.” Thus, the court ruled that the 

statements from Sandra and Byron could come in to more 

specifically explain Detective’s skepticism of Stephanie’s account.

¶88 “Once the defendant offers evidence or makes an assertion 

as to any fact, the State may cross-examine or introduce on 

rebuttal any testimony or evidence which would tend to 

contradict, explain or cast doubt upon the credibility of [the 

defendant’s] testimony.” State v. Thompson, 2014 UT App 14, ¶ 30, 

318 P.3d 1221 (quotation simplified); see also State v. Guerro, 2021 

UT App 136, ¶¶ 28–32, 502 P.3d 338 (holding that a district court 

“did not abuse its discretion in admitting” previously excluded 

evidence after opposing counsel “open[ed] the door to” 

admission of that evidence by “elicit[ing] a misleading—if not 

outright false—testimonial statement regarding the content” of 

the evidence), cert. denied, 525 P.3d 1254 (Utah 2022); State v. 

Eddington, 2023 UT App 19, ¶ 39, 525 P.3d 920 (holding that a 

district court “exceeded its discretion” by refusing to allow a 

defendant to introduce previously excluded evidence after the 

State, through certain arguments and questions, opened the door 

to its admission).

¶89 In this case, by engaging in detailed questioning about the 

basis for Detective’s expressed skepticism of Stephanie’s account, 
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20210242-CA 38 2023 UT App 83

and by suggesting that Detective had been employing aggressive 

interview techniques, Trial Counsel placed directly at issue 

Detective’s reasons for stating that Stephanie was lying. It was not 

outside the bounds of the trial court’s discretion for it to conclude 

that the State was entitled to rebut Trial Counsel’s suggestions 

with the previously excluded details of Sandra’s and Byron’s 

statements. We therefore discern no abuse of discretion in the 

court’s ruling that Trial Counsel opened the door to admission of 

those statements. 

B

¶90 Alternatively, Stephanie asserts that Trial Counsel

rendered ineffective assistance by opening the door to the 

admission of the previously excluded statements. To establish 

that Trial Counsel was ineffective, Stephanie must show both 

(1) that Trial Counsel’s performance was deficient, in that it “fell 

below an objective standard of reasonableness,” and (2) that this 

deficient performance “prejudiced the defense” such that “there 

is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord 

State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT 

12, ¶ 24, 469 P.3d 871. Because “failure to satisfy either part of the 

ineffective assistance test is fatal to a defendant’s claim,” State v. 

Popp, 2019 UT App 173, ¶ 48, 453 P.3d 657 (quotation simplified), 

cert. denied, 485 P.3d 943 (Utah 2021), we need not “address both 

components of the inquiry if we determine that [Stephanie] has 

made an insufficient showing on one,” see Archuleta v. Galetka, 

2011 UT 73, ¶ 41, 267 P.3d 232 (quotation simplified). 

¶91 The first part of the test requires Stephanie to show that 

Trial Counsel’s performance “fell below an objective standard of 

reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified). In 

evaluating the reasonableness of counsel’s actions, courts will 

often look to whether the actions counsel took were motivated by 
State v. Tuinman

20210242-CA 39 2023 UT App 83

trial strategy. See id. ¶ 35 (“To be sure, the performance inquiry 

will often include an analysis of whether there could have been a 

sound strategic reason for counsel’s actions.”). And while “the 

ultimate question is not whether there was a possible strategic 

reason for counsel’s conduct, but instead whether that conduct 

was objectively reasonable,” id., “[i]f it appears counsel’s actions 

could have been intended to further a reasonable strategy, a 

defendant has necessarily failed to show unreasonable 

performance,” Ray, 2020 UT 12, ¶ 34.

¶92 If Stephanie establishes that Trial Counsel rendered 

deficient performance, she must next show that she was 

prejudiced by that performance. “Prejudice exists when there is a 

reasonable probability that the case would have had a different 

outcome had trial counsel not performed deficiently.” State v. 

Whytock, 2020 UT App 107, ¶ 28, 469 P.3d 1150, cert. denied, 481 

P.3d 1043 (Utah 2021). “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome” of the 

proceeding. Strickland, 466 U.S. at 694. In assessing prejudice, we 

“consider the totality of the evidence before the judge or jury and 

then ask if the defendant has met the burden of showing that the 

decision reached would reasonably likely have been different 

absent the errors.” State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 

(quotation simplified).

¶93 Even assuming, for purposes of our discussion, that Trial 

Counsel performed deficiently by opening the door to admission 

of the previously excluded statements, on this record Stephanie 

has not demonstrated a reasonable likelihood that the outcome of 

the trial would have been different if the door had not been 

opened. The only two statements that came in through the opened 

door were (1) Sandra’s statement that the Tuinman sister who was 

dating Byron had been among her attackers, and (2) Byron’s 

statement that Stephanie rode with him, Thomas, and Samantha 

to Roy’s house. And we can necessarily eliminate the second of 

these statements from our prejudice calculation, because Byron’s 
State v. Tuinman

20210242-CA 40 2023 UT App 83

statement came into evidence anyway, through Byron’s own 

testimony after the State called him as a witness. 

¶94 The court had originally excluded Byron’s statements, 

along with all of the other co-defendants’ statements, apparently 

on Confrontation Clause grounds. But that issue was resolved 

once Byron pled “guilty but mentally ill” to certain counts, so the 

State called Byron as its own witness. When the time came for 

Byron to take the stand, Trial Counsel did not lodge any 

objections to his testimony, and Stephanie does not now allege, on 

appeal, that Byron should not have been allowed to testify at trial 

or that there were any evidentiary problems with his testimony. 

And during that testimony, after Byron initially denied that 

Stephanie went to Roy’s house the night of the attack, the State 

introduced into evidence, by way of impeachment, Byron’s 

statement to police in which he said that “[m]e, Samantha, and 

Stephanie” were in the minivan with Thomas that night. After 

listening to his interview statement, Byron then testified that he 

had in fact told police that Stephanie was also in the minivan with 

them and that “she brought the bat” with her, but he maintained 

that he had been “intimidated” into saying that. Accordingly, 

because the jury heard Byron’s statement through another means, 

the fact that this statement also came in through the door Trial 

Counsel opened cannot have caused Stephanie any prejudice.

¶95 Thus, the prejudice inquiry here revolves entirely around 

Sandra’s statement. And we are simply not persuaded that there 

is a reasonable likelihood of a different result in this case if the 

jury had not heard Detective testify that, prior to interviewing 

Stephanie, he had been made aware of Sandra’s statement that 

one of her attackers was the Tuinman sister who was dating 

Byron. Even without Sandra’s statement, the State still had strong

evidence supporting its case, most notably Samantha’s testimony 

regarding Stephanie’s involvement in the attack and Byron’s 

statement to police that Stephanie had been present at the scene. 
State v. Tuinman

20210242-CA 41 2023 UT App 83

In our view, Stephanie has not carried her burden of 

demonstrating Strickland prejudice here. 

¶96 In sum, then, the trial court did not abuse its discretion by 

determining that Trial Counsel had opened the door to admission 

of the two previously excluded statements. And Stephanie has not 

demonstrated that Trial Counsel rendered constitutionally 

ineffective assistance in opening that door. 

IV. Timing of Sentencing

¶97 Next, Stephanie contends that the trial court erred in 

sentencing Stephanie in April 2021, before a May change in the 

sentencing statutes took effect. A criminal defendant has the right 

to be sentenced “not less than two nor more than 45 days after the 

verdict or plea, unless the court, with the concurrence of the 

defendant, otherwise orders.” Utah R. Crim. P. 22(a). Stephanie’s 

sentence occurred thirteen days after the verdict, and therefore 

fell comfortably within the prescribed window. 

¶98 But in many cases, especially cases in which sentencing 

may end up being severe or complicated, trial courts wait until 

the end of the prescribed window—or, with the consent of 

the defendant, a week or two beyond it—so that they may have 

the benefit of a presentence investigation report prepared by 

Adult Probation and Parole. In this case, the court ordered a 

presentence report, but at the State’s request did not postpone 

sentencing until after that report was received; instead, the court 

held a sentencing hearing on April 12, 2021, before the report was 

completed. 

¶99 The State was quite transparent about its reason for 

requesting a speedy sentencing: in the legislative session that had 

just ended, our legislature enacted a statutory change, set to take 

effect in May, that would, among other things, shorten by five 

years the mandatory minimum sentence Stephanie would need to 
State v. Tuinman

20210242-CA 42 2023 UT App 83

serve on the murder and aggravated burglary charges.18F

19 At the 

time the State made its request for a speedy sentencing—right 

after the verdict—Trial Counsel stated simply that he was “not 

aware of the change in the law” and was therefore “not prepared” 

to address it. He did not lodge any objection to the State’s request 

that Stephanie be sentenced prior to the new law going into effect, 

and the court granted the State’s request for an unusually quick 

sentencing process. On April 12, the court sentenced Stephanie, 

imposing the higher twenty-years-to-life sentence (as opposed to 

fifteen years to life under the new statute) on the murder count

and the higher ten-years-to-life sentence (as opposed to five years

to life under the new statute) on the aggravated burglary count. 

¶100 On appeal, Stephanie acknowledges that her challenge to 

the trial court’s expedited sentencing process is unpreserved. And 

the only one of the three exceptions to our preservation doctrines 

that Stephanie here invokes is the extraordinary circumstances 

exception. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443 

(explaining that under Utah law, there are “three distinct 

exceptions to preservation: plain error, ineffective assistance of 

counsel, and exceptional circumstances”).19F

20 This exception is 

19. Under Utah law, criminal sentences are steeper for crimes 

committed “in concert with” multiple other people or otherwise 

for the benefit of a “street gang.” See Utah Code § 76-3-203.1(2). 

Prior to May 2021, any first-degree felony committed “in concert” 

was subject to a five-year increase in the mandatory minimum 

sentence. See id. § 76-3-203.1(4) (2020). But in the 2021 legislative 

session, our legislature removed the minimum-mandatory 

enhancement for first-degree felonies. See Act of Mar. 16, 2021, 

ch. 207, § 1, 2021 Utah Laws 1356, 1356–58.

20. To be clear, Stephanie does not claim that the trial court plainly 

erred by expediting the sentencing process, nor does she assert 

(continued...)
State v. Tuinman

20210242-CA 43 2023 UT App 83

intended to cover situations in which “a rare procedural anomaly 

has either prevented an appellant from preserving an issue or 

excuses a failure to do so.” Id. ¶ 29 (quotation simplified). 

Stephanie asserts that the change in the law that took effect in May

is the sort of “rare procedural anomaly” that justifies application 

of the extraordinary circumstances exception. We disagree. 

¶101 For the extraordinary circumstances exception to apply, 

some “anomaly” must be present that either (a) prevented 

Stephanie from objecting to the State’s request for a speedy 

sentencing, or (b) excuses her failure to object. See id. No such 

anomaly is present here. Certainly, there was nothing that 

prevented Trial Counsel from objecting to the State’s request; after 

all, the State put its cards squarely on the table when it asked for 

the speedy sentencing, explaining that the law had been changed 

to Stephanie’s benefit effective May 2021 and asking for 

sentencing to occur before then. Trial Counsel could have objected 

right then, even if he was not yet familiar with the precise 

contours of the statutory amendment, or he could have objected a 

few days later, after researching the issue. At a minimum, Trial 

Counsel could have objected at the actual sentencing hearing 

itself, and asked for a continuance. There was nothing here—

anomalous or otherwise—that prevented Stephanie or Trial 

Counsel from objecting to the State’s request for an expedited 

sentencing. And Stephanie does not even attempt to argue that 

this change in the law somehow operated to excuse her failure to 

preserve the issue for our review.

¶102 This situation is therefore a poor fit for application of the 

extraordinary circumstances exception, and we decline the

invitation to apply it here. Because the only preservation 

exception Stephanie invokes does not apply, we conclude that 

that Trial Counsel rendered ineffective assistance by not objecting 

to the expedited sentencing process. We therefore address neither 

of these exceptions.
State v. Tuinman

20210242-CA 44 2023 UT App 83

Stephanie’s objection to the court’s sentencing process is 

unpreserved, and we therefore decline to discuss it further. 

V. Rule 23B Motion

¶103 Finally, we address Stephanie’s motion, filed pursuant to

rule 23B of the Utah Rules of Appellate Procedure, seeking an 

order remanding the case to the trial court for further factfinding 

relating to additional potential ineffective assistance of counsel 

claims. Under rule 23B, a defendant “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). “We 

apply a four-part test to evaluate rule 23B motions.” State v. 

Samora, 2021 UT App 29, ¶ 50, 484 P.3d 1206 (quotation 

simplified), aff’d, 529 P.3d 330 (Utah 2023). First, the motion must 

allege facts not already in the record. See State v. Griffin, 2015 UT 

18, ¶ 18, 441 P.3d 1166. Second, those factual allegations must not 

be speculative. Id. ¶ 19. Third, the allegations must demonstrate 

that counsel performed deficiently, and fourth, the allegations 

must show that counsel’s deficient performance prejudiced the 

defendant. See Samora, 2021 UT App 29, ¶ 50. 

¶104 In her rule 23B motion, Stephanie asserts that Trial Counsel 

performed deficiently by failing to call three witnesses: Attorney, 

Neighbor, and a private investigator (Investigator) who compiled 

a report for the defense. Stephanie contends that had these 

witnesses been called to testify, there “is a substantial possibility 

that the outcome of Stephanie’s trial could have been acquittal.”

¶105 But Trial Counsel did not perform deficiently by deciding 

not to call Attorney to testify. He was fully aware of what 

Attorney had to say; after all, Attorney had testified at Kristy’s 

trial, and Trial Counsel and Attorney had spoken several times 

prior to Stephanie’s trial. During the opening days of Stephanie’s 

trial, even the State appeared resigned to the fact that Stephanie 
State v. Tuinman

20210242-CA 45 2023 UT App 83

would likely call Attorney to testify and rebut Samantha’s trialtestimony version of events; during its direct examination of its 

key witness, Samantha, the State preemptively introduced 

evidence of Samantha’s conversation with Attorney. In the course 

of this direct examination, Samantha acknowledged that she had 

had a conversation with Attorney at the jail and that she had told 

him the same story that she had initially told law enforcement: 

that nobody else was involved in the attack aside from her and 

Thomas. Trial Counsel, on cross-examination, followed up with 

Samantha about this conversation, and she did not deny that the 

conversation took place and again confirmed that she told 

Attorney “the same thing that [she] had told the officers.”

¶106 There were only two participants in the conversation 

between Samantha and Attorney. One of them—Samantha—

testified early in the trial about the conversation, and confirmed 

that it had taken place largely as Attorney describes. Thus, the 

evidence Trial Counsel would have wanted Attorney to introduce 

was already in the trial record, without Attorney needing to 

testify, and it had come in, without dispute, through Samantha’s 

own testimony. In our view, a reasonable attorney could very well 

have decided not to call Attorney under these circumstances. See

State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350 (stating that “the 

ultimate question” in assessing counsel’s performance is 

“whether [counsel’s] conduct was objectively reasonable”); see

also supra ¶ 91.20F

21

21. Thus, most of Attorney’s proffered testimony ended up being 

cumulative of and consistent with Samantha’s account of their 

conversation. And the parts that weren’t cumulative—Attorney’s 

proffered testimony that he could tell that Samantha was telling 

the truth during their conversation—would have been 

inadmissible in any event. See State v. Valdez, 2021 UT App 13, 

¶ 55, 482 P.3d 861 (stating that “human lie detector” testimony is 

inadmissible), cert. granted, 496 P.3d 715 (Utah 2021). 
State v. Tuinman

20210242-CA 46 2023 UT App 83

¶107 The other part of Stephanie’s rule 23B motion—her claim 

that Trial Counsel performed deficiently by not calling Neighbor 

and Investigator as witnesses—we resolve on prejudice grounds, 

because in our view Stephanie cannot demonstrate a reasonable 

likelihood of a different result at a trial in which those two 

witnesses took the stand. See Scott, 2020 UT 13, ¶ 43 (“The burden 

is on the defendant to demonstrate a reasonable probability that 

the outcome of his or her case would have been different absent 

counsel’s error.”); see also supra ¶ 92. Stephanie claims that 

Neighbor and Investigator should have been allowed to introduce 

evidence that Neighbor heard only a “single vehicle” leave the 

scene of the attack at around midnight. This testimony would 

have been unhelpful for two reasons. First, Neighbor’s timing is 

off by almost three hours because it was undisputed at trial—by 

video surveillance of Samantha’s minivan around 9:00 p.m. and 

by the 911 call made around 9:20 p.m.—that the attack occurred 

shortly after 9:00 p.m. A discrepancy of almost three hours 

seriously undermines the value of Neighbor’s testimony. Second, 

testimony about there being only one vehicle would not have 

changed the landscape for Stephanie—as opposed to, potentially, 

Kristy or Michael—when testimony from Byron and Samantha 

already established that Stephanie had arrived in the minivan, not 

in another vehicle. Only Kristy and Michael were said to have 

arrived in separate vehicles; thus, even if there had been 

testimony that only one vehicle had driven to the scene that night, 

such testimony would not have been much use to Stephanie. We 

simply do not perceive a reasonable probability of a different 

outcome if Stephanie’s trial had included testimony from 

Neighbor and Investigator. 

¶108 Under these circumstances, Stephanie has not met the

prerequisites for the granting of a rule 23B motion. Accordingly, 

we deny Stephanie’s motion.
State v. Tuinman

20210242-CA 47 2023 UT App 83

CONCLUSION

¶109 Stephanie has not demonstrated that her constitutional 

right to a speedy trial was violated here. The trial court did not 

abuse its discretion by limiting Mother’s testimony to exclude 

alibi evidence. The trial court also did not abuse its discretion by 

determining that Trial Counsel had opened the door to admission 

of the two previously excluded statements, and Stephanie has not 

borne her burden of showing that Trial Counsel rendered 

ineffective assistance by opening that door. Stephanie’s challenge 

to the timing of her sentencing process is unpreserved for 

appellate review. And we deny her rule 23B motion. 

¶110 Accordingly, we reject all of Stephanie’s claims on appeal 

and affirm her convictions.