                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2014 UT 15


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                                Appellee,
                                      v.
                          ADRIANNA LUCERO,
                              Appellant.


                              No. 20090751
                           Filed May 13, 2014

                     Third District, Salt Lake
                  The Honorable Vernice Trease
                         No. 081906809

                                Attorneys:
   Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Att’y Gen.,
                  Salt Lake City, for appellee
            Joan C. Watt, Salt Lake City, for appellant


 CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
       ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM,
             JUSTICE PARRISH, and JUSTICE LEE joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                          INTRODUCTION
   ¶1 Following a jury trial, Adrianna Lucero was convicted of
murder and child abuse for the death of her two-year-old son
Alejandro Lucero (Alex). Alex died after his back was bent
backwards, which snapped his spine and pulled apart his aorta.
After initially telling detectives and others that she was the only
one present with Alex at the time of his injuries, Ms. Lucero
subsequently claimed—and now maintains—that the injuries
                          STATE v. LUCERO
                       Opinion of the Court
 were caused by her boyfriend, Sergio Martinez. She appeals her
convictions on several grounds: first, she claims that the trial court
abused its discretion in admitting evidence of prior child abuse
under Utah Rule of Evidence 404(b); second, she claims her
defense counsel was ineffective in several regards, including that
he failed to fully examine Battered Woman’s Syndrome (BWS) as
a defense; and third, she claims cumulative error. In the
alternative, she requests that we remand for consideration of her
rule 23B motion regarding ineffective assistance of counsel, which
the court of appeals stayed due to the parties’ stipulation pending
the consideration of this appeal.
    ¶2 We hold that the trial court did not abuse its discretion in
admitting evidence of prior child abuse under rule 404(b), and we
adopt the majority rule that a preponderance of the evidence is
required to admit evidence of prior bad acts. We also hold that
defense counsel was not ineffective because the trial strategy he
selected was objectively reasonable. Next, we revisit the court of
appeals’ decision to grant Ms. Lucero’s rule 23B motion and
vacate the court’s Order to remand as moot. For these reasons,
there was no cumulative error, and we affirm Ms. Lucero’s
convictions.
                         BACKGROUND
    ¶3 Ms. Lucero is a young mother of three children: Alex, a
twenty-three-month-old, and five-month-old twins, I.H. and I.C..
Ms. Lucero’s boyfriend, Mr. Martinez, is the father of the twins
but not the father of Alex. Ms. Lucero and Mr. Martinez’s
relationship was complicated—Ms. Lucero lived with her mother,
but Mr. Martinez would visit frequently, and always on the
weekends. Sometimes Ms. Lucero and the children would visit
Mr. Martinez in his basement room, in a home where he lived
with two other women. Mr. Martinez had a wife and children in
Mexico and was living in the United States illegally, and Alex’s
father had already been deported to Mexico. Mr. Martinez would
regularly send money to his family in Mexico and call them on his
cell phone, which was a frequent point of contention between
Ms. Lucero and Mr. Martinez. Their relationship was further
complicated by Ms. Lucero’s age. She was only seventeen years
old and regularly took her children to a child-care program at her
high school, where she was on track to graduate.
    ¶4 The parties provide differing accounts of Mr. Martinez’s
relationship with Alex, but Ms. Lucero had instructed
Mr. Martinez to keep his distance from Alex; accordingly,
Mr. Martinez refused to discipline Alex, and he maintained that
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                       Opinion of the Court
he never took care of Alex. At one point in their relationship,
Ms. Lucero planned to take her children on a school field trip to
the zoo. Though Mr. Martinez was supposed to take them to the
bus, he arrived late and had to drive them to the zoo. After
Mr. Martinez picked them up later that day, Ms. Lucero and
Mr. Martinez got into a fight, which was sparked by the fact that
Ms. Lucero had received text messages from a male friend. After
Ms. Lucero pounded on Mr. Martinez’s car, he kicked her in the
leg, and she broke his windshield. Mr. Martinez was ultimately
convicted of domestic assault for the altercation, but Ms. Lucero
attempted to protect Mr. Martinez after he told her that he could
be deported. Ms. Lucero had lost her temper on previous
occasions as well when she had broken a phone and a computer
screen.
    ¶5 About a week before his death, Alex began to have
problems walking. Ms. Lucero took him to a clinic, but the doctor
could not identify the cause. Ms. Lucero maintained that Alex was
in her and her mother’s care when he began to exhibit symptoms,
but after Alex’s death, Ms. Lucero was pressed by detectives
about the prior injury and began to claim that Mr. Martinez was
abusive to Alex. She also claimed that Alex’s injuries arose after a
fishing trip with Mr. Martinez that had taken place two or three
days before Alex had trouble walking. Because Alex’s difficulty
with walking did not begin until several days after the fishing trip
when Mr. Martinez was not present, a detective noted that her
timeline of events did not make sense.
    ¶6 On August 24, 2008, Ms. Lucero brought Alex and I.C. to
visit Mr. Martinez in his basement room. I.H. was in the hospital
due to recurring seizures, and they had spent the day visiting
with him. They ate dinner and began to watch a horror movie, as
Alex slept beside them on the bed and I.C. slept in a car seat next
to the bed. In the course of the evening, the two began to fight
after Ms. Lucero picked up Mr. Martinez’s phone and saw that
Mr. Martinez had called his family in Mexico. At some point, Alex
began to fuss. He was then taken into the next room to get some
Jell-O where he sustained the fatal injury and began to exhibit
seizure-like symptoms. Ms. Lucero and Mr. Martinez called 911
and attempted to administer CPR, but Alex was declared dead
soon thereafter. Although both Ms. Lucero’s and Mr. Martinez’s
accounts of what transpired that evening are mostly the same,
they each blame the other for taking Alex out of the room to get
Jell-O and for causing the fatal injury.


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                          STATE v. LUCERO
                       Opinion of the Court
    ¶7 But Ms. Lucero did not always blame Mr. Martinez. In
fact, in the hours following Alex’s death, Ms. Lucero told eight
different people, including two police officers and the 911
operator, that she was the one who took Alex to get Jell-O. And
she told detectives the following day the same story—that she, and
not Mr. Martinez—had taken Alex out of the room to get Jell-O
and that he started experiencing seizure-like symptoms. Once the
detectives informed her of the true, graphic nature of Alex’s
spinal injuries, and that they were not the result of a seizure,
Ms. Lucero changed her story to indicate that it was instead
Mr. Martinez who had taken Alex to get Jell-O. She told detectives
that she had lied to keep Mr. Martinez from being questioned by
officials because she feared that he might be deported. Ms. Lucero
explained that she initially thought that Alex had an unexplained
seizure like her other son, I.H., but now that she knew the real
cause of Alex’s death, she thought that Mr. Martinez must have
been responsible for it. At trial, Ms. Lucero and Mr. Martinez
blamed each other for inflicting Alex’s fatal injury.
    ¶8 The State charged Ms. Lucero with murder and two
counts of child abuse—the first for the prior spinal injury, and the
second for the fatal injuries. During a preliminary hearing, the
magistrate judge refused to bind Ms. Lucero over on the first child
abuse count because she deemed the cause and source of the
injury too speculative. Before trial, both parties filed motions
under Utah Rule of Evidence 404(b) with the trial court to admit
evidence of prior bad acts. The State moved to admit evidence of
Alex’s prior spinal injury, which the medical examiner had
determined was consistent with the same backward-bending force
on the spine. Ms. Lucero moved to admit evidence of the couple’s
altercation at the zoo to show she would lie to protect
Mr. Martinez from deportation. After briefing and argument, the
trial court granted both motions. But while both sides briefed the
court on rule 404(b) for Ms. Lucero’s motion to admit evidence of
Mr. Martinez’s prior assault, only the State briefed the court on
rule 404(b) for the State’s motion to admit evidence of the prior
child abuse. Ms. Lucero did object orally to the admission of the
evidence of the prior child abuse, arguing that it was not closely
enough connected to her to be admissible.
   ¶9 During trial, the police interrogation video was played
without any major redactions—and defense counsel did not object
but rather wanted the jury to see the video in full. Before the
video was played, the court read a stipulation to the jury that I.H.,
Ms. Lucero’s son, had been hospitalized after suffering seizures,
that doctors “have been unable to determine the cause,” and that
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                         Opinion of the Court
“[n]o affirmative signs of non-accidental trauma have been
identified.” Ms. Lucero’s counsel asked for this stipulation to
counter an officer’s insinuation in the video that Ms. Lucero had
harmed I.H. as well.
    ¶10 The jury ultimately convicted Ms. Lucero of murder and
child abuse, and the court sentenced her to concurrent prison
terms of fifteen years to life and one to fifteen years. She then
appealed to this court, and we transferred the case to the court of
appeals. We later recalled the case after briefing but before oral
argument. Ms. Lucero subsequently filed a rule 23B motion in the
court of appeals for the trial court to take evidence on her
ineffective assistance of counsel claims, which are premised on
BWS. The court of appeals granted the motion, but the parties
stipulated to stay the remand pending resolution of this appeal.
We have jurisdiction pursuant to Utah Code section 78A-3-
102(3)(i).
                      STANDARD OF REVIEW
    ¶11 Ms. Lucero raises several issues on appeal, which we
assess under different standards of review. She first challenges the
trial court’s admission of evidence under rule 404(b) of the Utah
Rules of Evidence. “[W]e review a trial court’s decision to admit
evidence under rule 404(b) of the Utah Rules of Evidence under
an abuse of discretion standard.” 1 “However, in the proper
exercise of that discretion, trial judges must ‘scrupulously’
examine the evidence before it is admitted.” 2 Ms. Lucero then
argues ineffective assistance of counsel based on several claimed
deficiencies. “A claim of ineffective assistance of counsel raised
for the first time on appeal presents a question of law” that the
court reviews for correctness. 3 Finally, Ms. Lucero claims
cumulative error. “Under the cumulative error doctrine, we will
reverse [a jury verdict or sentence] only if the cumulative effect of
the several errors undermines our confidence . . . that a fair trial
was had.” 4


   1 State v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17 (internal
quotation marks omitted).
   2   State v. Widdison, 2001 UT 60, ¶ 42, 28 P.3d 1278.
   3   State v. Charles, 2011 UT App 291, ¶ 18, 263 P.3d 469.
   4 State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (alterations in
original) (internal quotation marks omitted).

                                    5
                           STATE v. LUCERO
                        Opinion of the Court
                             ANALYSIS
  I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
   ADMITTING EVIDENCE OF PRIOR CHILD ABUSE UNDER
                      RULE 404(b)
    ¶12 Ms. Lucero first argues that the trial court committed
several errors in admitting evidence of Alex’s prior spinal injury.
First, she claims that the trial court failed to “scrupulously
examine” the evidence in the exercise of its discretion to admit
evidence of prior child abuse under Utah Rule of Evidence
404(b). 5 Second, she claims that the evidence was not relevant
because the State did not meet the requisite standard of proof for
admissibility under rule 402. Third, and last, she claims that the
probative value of the evidence was substantially outweighed by
the danger of unfair prejudice under rule 403.
   ¶13 Evidence of prior bad acts must clear several evidentiary
hurdles before admission—rules 404(b), 402, and 403. In State v.
Decorso, we reviewed these rules and clarified the three-part test
that trial courts must follow. 6 Stated succinctly, to be admissible,
evidence of prior bad acts must be relevant and offered for a
genuine, noncharacter purpose; furthermore, the probative value
of the evidence must not be substantially outweighed by the
danger of unfair prejudice. We add, as further clarified below,
that matters of conditional relevance must also meet the
preponderance of the evidence standard under Utah Rule of
Evidence 104(b).


   5  We review each of Ms. Lucero’s challenges under the 2009
version of the Utah Rules of Evidence, since this version was in
effect at the time of trial. See State v. Clopten, 2009 UT 84, ¶ 37, 223
P.3d 1103. The rules were restyled in 2011, but the advisory
committee notes make clear that these changes were purely
stylistic in nature. UTAH R. EVID. 404 advisory committee note
(2011) (“The language of this rule has been amended as part of the
restyling of the Evidence Rules to make them more easily
understood and to make style and terminology consistent
throughout the rules. These changes are intended to be stylistic
only. There is no intent to change any result in any ruling on
evidence admissibility.”). As a result, our analysis under the 2009
rules “is equally applicable to the rules as they now stand.” State
v. Richardson, 2013 UT 50, ¶ 19 n.1, 308 P.3d 526.
   6   1999 UT 57, ¶¶ 20–24, 993 P.2d 837.

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                         Opinion of the Court
 A. The Trial Court Properly Admitted Evidence of Alex’s Prior Injury
                         Under Rule 404(b)
   ¶14 First, the trial court did not abuse its discretion when it
admitted evidence of Alex’s prior injury for the purpose of
proving identity. Ms. Lucero claims that the State introduced
evidence of Alex’s prior spinal cord injury for an improper
character purpose. To admit evidence of a prior act, the court
must first determine that it is being introduced for a legitimate,
noncharacter purpose. 7 Rule 404(b) of the Utah Rules of Evidence
provides that
         [e]vidence of other crimes, wrongs, or acts is not
         admissible to prove the character of a person in
         order to show action in conformity therewith. It
         may, however, be admissible for other purposes,
         such as proof of motive, opportunity, intent,
         preparation, plan, knowledge, identity, or absence of
         mistake or accident.
As we recently noted in State v. Verde, admitting evidence under
rule 404(b) can often be problematic because of the “dual
inferences” that evidence of prior acts can yield. 8 Although

   7 As an alternative basis for decision, the State argues that the
evidence of the prior child abuse is part of the continuing
narrative rather than an independent act. Since rule 404(b) applies
only “to evidence that is extrinsic to the crime charged,” United
States v. Mower, 351 F. Supp. 2d 1225, 1230 (D. Utah 2005)
(emphasis added), this would preclude applicability of the rule
altogether. This is because rule 404(b) applies only to “other”
acts—if the evidence of prior acts is “inextricably intertwined”
with the crime that is charged, or if both the charged crime and
the prior act are considered “part of a single criminal episode,”
then rule 404(b) would not apply. Id. Rather, the act would be
considered part of the case narrative and have important
probative value that bears directly on the crime charged.
    This is not the case here. The prior instance of abuse is
disconnected from the night in question, and although both
instances of abuse were in close temporal proximity, the State
never used the previous abuse as part of the “narrative” but
rather specifically sought to use the evidence under 404(b) as a
separate incident to prove identity.
   8   2012 UT 60, ¶ 16, 296 P.3d 673.

                                   7
                            STATE v. LUCERO
                          Opinion of the Court
evidence of a prior, similar act may bear heavily on establishing a
perpetrator’s identity, it may also yield an equally strong, and
improper, propensity inference. To distinguish between these
inferences, courts must make a “threshold determination” of the
genuine underlying purpose for admission of the evidence. 9 The
language of the rule is inclusionary, rather than exclusionary, 10
meaning that evidence may be admitted despite its negative
propensity inference, but “[i]f such evidence is really aimed at
establishing a defendant’s propensity to commit crime, it should
be excluded despite a proffered (but unpersuasive) legitimate
purpose.” 11 In other words, the evidence “must have real
probative value, not just possible worth.” 12 And though multiple
purposes may be proffered, only one valid, noncharacter purpose
is required. 13
   ¶15 In seeking admission of prior acts for the purpose of
proving “identity,” parties are most often actually seeking to
admit evidence of an intermediate inference, such as modus
operandi, 14 that bears on the ultimate issue of identity. Here, the

   9   Id. ¶ 17.
   10 Decorso, 1999 UT 57, ¶ 24 (“Although [404(b)] is exclusionary
with respect to other crimes evidence offered only to show the
defendant’s propensity to commit crime, it is an inclusionary rule
with regard to other crimes evidence which is offered for a
proper, noncharacter purpose.”). The majority of states and
federal circuits have held the same. DAVID P. LEONARD, THE NEW
WIGMORE. A TREATISE ON EVIDENCE: EVIDENCE OF OTHER
MISCONDUCT AND SIMILAR EVENTS § 4.3.2 (2013) [hereinafter
WIGMORE ON EVIDENCE] (“Federal courts in all circuits have
characterized the codified rule as inclusionary, and almost all
states follow the same view.” (footnote omitted) (listing cases)).
   11   Verde, 2012 UT 60, ¶ 17 (internal quotation marks omitted).

   12   United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985).

   13 State v. Nelson-Waggoner, 2000 UT 59, ¶ 22, 6 P.3d 1120
(discussing multiple purposes offered by the State for admitting
evidence under rule 404(b) and stating that “[a]ny one of these
[purposes] is a valid, noncharacter purpose to admit the
evidence”).
   14 In addition to modus operandi, the State has also raised the
doctrine of chances as a ground for affirmance, and the parties
                                                      (continued)
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                         Cite as: 2014 UT 15
                       Opinion of the Court
essence of the State’s argument was that Ms. Lucero’s modus
operandi proves identity. 15 To admit evidence of modus operandi,
the trial court must determine that the prior act and the charged
conduct are strikingly similar. In United States v. Miller, the court
held that the “crucial consideration” in deciding whether to admit
evidence of prior acts for the purpose of identity is the “likeness of
the offenses . . . . The physical similarity must be such that it
marks the offenses as the handiwork of the accused.” 16 Stated
differently, admissibility of prior acts for the purpose of identity
requires “(1) a very high degree of similarity between the charged




contend at length on this point. While the State contends that the
evidence can be admitted under the alternative theory of the
doctrine of chances to prove identity, Ms. Lucero attempts to limit
the doctrine of chances to evidence that is admitted to
demonstrate “lack of accident.” In any event, as in State v. Verde,
the doctrine of chances “was not presented by the State in
[Ms. Lucero’s] trial,” so “we reject it as a ground for affirmance”
on appeal. 2012 UT 60, ¶ 46.
   15 The State argued “identity” rather than modus operandi, but
as is often the case, the concepts are used interchangeably. See,
e.g., United States v. Goodwin, 492 F.2d 1141, 1154 (5th Cir.
1974) (“The ‘identity’ exception . . . is used either in conjunction
with some other basis for admissibility or synonymously with
modus operandi.” (footnote omitted)). It is more accurate to say
that the State raised the theory of modus operandi to prove
identity, as modus operandi is an intermediate theory used to
prove the ultimate inference of identity. WIGMORE ON EVIDENCE,
supra note 10, § 12.1.
   16 959 F.2d 1535, 1539 (11th Cir. 1992) (internal quotation marks
omitted); see also WIGMORE ON EVIDENCE, supra note 10, § 13.6
(“[U]ncharged misconduct evidence is admissible [t]o prove other
crimes by the accused so nearly identical in method as to ear-mark
them as the handiwork of the accused. Much more is demanded
than the mere repeated commission of crimes of the same class,
such as repeated burglaries or thefts. The device used must be so
unusual and distinctive as to be like a signature.” (second
alteration in original) (internal quotation marks omitted) (quoting
CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE
§ 157, at 328 (1954)).

                                  9
                         STATE v. LUCERO
                       Opinion of the Court
and uncharged acts, and (2) a unique or singular methodology.”17
In analyzing the similarity between the two acts, courts consider a
variety of indicators, including “the time lapse between the
crimes, and whether the crimes occurred in the same general
locality.” 18
    ¶16 Here, the trial court admitted the evidence for a proper
purpose. It found that the “evidence was relevant to lack of
mistake or injury, [and] knowledge and identity.” While any one
of these was a valid purpose for admission, the central—and only
real contested issue at trial—was that of identity. To support its
argument that Ms. Lucero caused the prior injury, the State
presented evidence at trial that she was the only one with access
to Alex when the prior injury occurred and that the two injuries
were remarkably similar. Both injuries occurred along the spinal
column and were caused by the spine being bent unnaturally.
Both injuries also occurred within days of each other. The only
real difference between the two injuries was the amount of force
inflicted; more force was exerted in the latter case, which caused
the spine to fatally snap and rupture Alex’s aorta. Because the
injuries and method used to inflict them were so highly similar,
and because they occurred in such temporal proximity, the trial
court properly admitted the prior injury as evidence of modus
operandi for the purpose of proving identity.
  B. The Trial Court Properly Determined that the Evidence of Prior
                        Abuse Was Relevant
    ¶17 Second, the trial court properly admitted the evidence of
prior abuse as relevant to the issue of identity. Utah Rule of
Evidence 402 requires that evidence be “relevant,” which is
defined in rule 401 as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be
without the evidence.” At bottom, the rules require that evidence
“tend[] to prove some fact that is material to the crime charged—
other than defendant’s propensity to commit crime.” 19 Rule 404(b)

   17 JOHN E.B. MYERS, MYERS ON EVIDENCE OF INTERPERSONAL
VIOLENCE CHILD MALTREATMENT, INTIMATE PARTNER VIOLENCE,
RAPE, STALKING AND ELDER ABUSE § 8.10 (2011) (footnote omitted).
   18   Id.
   19Nelson-Waggoner, 2000 UT 59, ¶ 19 (internal quotation marks
omitted).

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                          Cite as: 2014 UT 15
                         Opinion of the Court
provides a list of possible relevant noncharacter purposes
including intent, identity, plan, motive, opportunity, knowledge,
and lack of mistake or accident. Evidence submitted for any of
these purposes is relevant only if the purpose is contested 20 and
“of consequence to the determination of the action.” 21
   ¶18 And even if evidence is relevant for a proper purpose,
such relevance may be conditional; if the evidence of prior
misconduct is uncharged and cannot be connected to a defendant,
then the evidence is irrelevant even though a party may seek to
admit the evidence for a proper purpose. This situation is
governed by rule 104 of the Utah Rules of Evidence. Because the
substance of rule 104 mirrors its federal counterpart,22 we
consider the federal construction of its rule as persuasive in our
analysis. 23
   ¶19 Matters of conditional relevance are decided under Utah
Rule of Evidence 104 by both the judge and the jury. Rule 104(a)

   20See Verde, 2012 UT 60, ¶¶ 24–26 (discussing the consequence
of a stipulation on the admission of prior acts evidence, even
though intent was clearly at issue).
   21   UTAH R. EVID. 401 (2009).
   22 FED. R. EVID. 104 (2009) (identical to Utah Rule of Evidence
104 (2009)). The Advisory Committee note to the amended version
of the rules also states (with respect to Utah rules 104, 105, 401,
403, and 404(a) and (b)) that the “provision[s] [are] the federal
rule[s], verbatim.” Rule 402 is also substantively identical, except
the Utah rule adds “the Constitution of the State of Utah.”
   23  Angel Investors, LLC v. Garrity, 2009 UT 40, ¶ 19 n.9, 216 P.3d
944 (observing that where a state rule is “substantively identical to
its federal counterpart,” we “freely refer to authorities which have
interpreted the federal rule” (internal quotation marks omitted));
State v. Fedorowicz, 2002 UT 67, ¶ 30 n.1, 52 P.3d 1194 (“Although
the Federal Rules of Evidence are a separate body of law from the
Utah Rules of Evidence, if the reasoning of a federal case
interpreting or applying a federal evidentiary rule is cogent and
logical, we may freely look to that case, absent a Utah case directly
on point, when we interpret or apply an analogous Utah
evidentiary rule.”); Hansen v. Heath, 852 P.2d 977, 979 (Utah 1993)
(noting that when a rule is “adopted verbatim,” any “reference to
federal cases and the Advisory Committee Note[s] . . . [are]
pertinent to give meaning and effect to the Utah Rule”).

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                            STATE v. LUCERO
                          Opinion of the Court
provides that “[p]reliminary questions concerning . . . the
admissibility of evidence shall be determined by the court, subject
to the provisions of Subdivision (b).” Rule 104(b) requires that
         [w]hen the relevancy of evidence depends upon the
         fulfillment of a condition of fact, the court shall
         admit it upon, or subject to, the introduction
         of evidence sufficient to support a finding of the
         fulfillment of the condition.
Under 104(a), the court may only allow the evidence to be
submitted to the jury if there is “evidence sufficient to support a
finding of the fulfillment of the condition [of fact].” Although it is
the province of the jury under rule 104(b) to decide whether the
“condition of fact” is fulfilled and to ultimately view the evidence
as credible, it is the duty of the court to decide whether there is
sufficient evidence upon which the jury could make such a
determination. In Huddleston v. United States, the Supreme Court
described the court’s role in this situation and stated that to
         determin[e]      whether    the   Government      has
         introduced sufficient evidence to meet Rule 104(b),
         the trial court neither weighs credibility nor makes a
         finding that the Government has proved the
         conditional fact by a preponderance of the
         evidence. The court simply examines all the
         evidence in the case and decides whether the jury
         could reasonably find the conditional fact . . . by a
         preponderance of the evidence. 24
We agree with the Supreme Court’s reasoning and interpret Utah
Rule of Evidence 104 to require a judge to admit evidence when it
determines that the jury could reasonably find matters of
conditional fact by a preponderance of the evidence. In the context
of rule 404(b), “similar act evidence is relevant only if the jury can
reasonably conclude [by a preponderance of the evidence] that
[1] the act occurred and that [2] the defendant was the actor.” 25
   ¶20 Although a number of sister states have adopted the clear
and convincing evidence standard for introduction of prior bad

   24   485 U.S. 681, 690 (1988).
   25 Id. at 689; United States v. Beechum, 582 F.2d 898, 912 (5th Cir.
1978) (“[A]n extrinsic offense [is] relevant to the issue of intent . . .
only if [the] offense was in fact committed and the defendant in
fact committed it.”).

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                           Cite as: 2014 UT 15
                          Opinion of the Court
acts evidence, we decline to do so in Utah. 26 In Huddleston, the
Supreme Court acknowledged the potential dangers posed by
admitting evidence of uncharged misconduct. 27 But we agree with
the Supreme Court that
          the protection against such unfair prejudice
         emanates not from a requirement of a preliminary
         finding by the trial court, but rather from four other
         sources: first, from the requirement of Rule
         404(b) that the evidence be offered for a proper
         purpose; second, from the relevancy requirement of
         Rule 402—as enforced through Rule 104(b); third,
         from the assessment the trial court must make
         under Rule 403 to determine whether the probative
         value of the similar acts evidence is substantially

   26  There are valid reasons to adopt the clear and convincing
standard, which is why a number of sister states have gone in that
direction. State v. Terrazas, 944 P.2d 1194, 1198 (Ariz. 1997)
(collecting cases) (“We believe there are important reasons to
apply a clear and convincing standard, rather than some lesser
standard, to evidence of prior bad acts. Such evidence is quite
capable of having an impact beyond its relevance to the crime
charged and may influence the jury’s decision on issues other
than those on which it was received, despite cautionary
instructions from the judge.”); WIGMORE ON EVIDENCE, supra note
10, § 4.8 (“[T]he Supreme Court’s decision in Huddleston, under
which the court need only determine that there is ‘evidence
sufficient to support a finding’ that the uncharged misconduct has
taken place, has not had a pervasive influence on the states, as
many continue to require a higher degree of proof . . . .”).
    Among these reasons are due process concerns and a
heightened concern with respect to unfair prejudice. Terrazas, 944
P.2d at 1198 (“Applying the standard of ‘clear and convincing
evidence’ establishes a clear, recognizable standard for courts and
lawyers and is consistent with the due process owed under the
federal and state constitutions. To allow a lesser standard in a
criminal case is to open too large a possibility of prejudice. We
have recently noted the potentially prejudicial effects of prior bad
acts evidence and cautioned trial courts and counsel to exercise
extreme care in its use, even where it is admissible.” (internal
quotation marks omitted)).
   27   Huddleston, 485 U.S. at 691.

                                   13
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                          Opinion of the Court
         outweighed by its potential for unfair prejudice; and
         fourth, from Federal Rule of Evidence 105, which
         provides that the trial court shall, upon request,
         instruct the jury that the similar acts evidence is
         to be considered only for the proper purpose for
         which it was admitted. 28
We believe that these four safeguards, together with our
scrupulous examination requirement (infra ¶¶ 36–37), are
sufficient to protect against unfair prejudice. 29
    ¶21 We do find it important to clarify that this conditional
relevance analysis differs in several important respects when the
State seeks to establish battered child syndrome (BCS) to disprove
claims that a child’s prior injuries were accidental. BCS is a widely
accepted medical description that indicates a pattern of abuse by a
caretaker. 30 The State may properly admit evidence of BCS in
child abuse and murder cases, though it is relevant only to
establish that the child’s prior injuries were intentionally inflicted,



   28   Id. at 691–92 (internal citations and footnote omitted).
   29  As noted by the Supreme Court, rule 105 provides an
additional opportunity for the court, upon request, to limit the
prejudicial effect of the evidence. We note, however, that the trial
court is not required to give an instruction to the jury with respect
to their duty under rule 104(b). United States v. Hudson, 884 F.2d
1016, 1021 (7th Cir. 1989) (“Although Huddleston requires that
admission of prior bad acts under Rule 404(b) always must be
evaluated by the district judge under the conditional relevancy
test of 104(b), the district judge is not required to instruct the jury
that it must find by a preponderance of the evidence that the
defendant committed the similar act.”); United States v. Sliker, 751
F.2d 477, 500 (2d Cir. 1984) (“We understand the general rule to be
that the judge is permitted but not required to deliver a specific
instruction to the jury to consider particularly any preliminary
question under Rule 104(b).”). This is because matters of
conditional relevance, like any other finding of fact (including
credibility determinations), fall within the jury’s general duty to
act as the finder of facts. And courts routinely “instruct[] the jury
that they [are] judges of the facts.” Hudson, 884 F.2d at 1021.
   30 State v. Tanner, 675 P.2d 539, 541–42 (Utah 1983), abrogated on
other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997).

                                   14
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                       Opinion of the Court
rather than the result of accident or mistake. 31 And the State is
required to introduce such evidence through experts, rather than
through lay testimony.32
    ¶22 The issue of conditional relevance is central in this
setting—while the State must connect prior child abuse to a
defendant by a preponderance of the evidence when doing so to
establish identity, 33 it need not connect prior child abuse to a
defendant if the prior abuse is being introduced solely to establish
BCS in order to prove intent. This is because the State can prove
that prior abuse was intentional without simultaneously being
required to establish identity. 34 In Estelle v. McGuire, the United
States Supreme Court made this clear in overturning a court of
appeals’ decision on this very point—“whether [the prior abuse]
was directly linked to [the defendant] or not, [it] was probative on
the question of the intent with which the person who caused the
injuries acted.” 35 Though evidence of BCS will by its very nature
limit the possible perpetrators to the child’s caretakers, 36 it does

   31 Estelle v. McGuire, 502 U.S. 62, 69 (1991) (“Proof of [the
victim’s] battered child status helped to [establish intent];
although not linked by any direct evidence to [the defendant], the
evidence demonstrated that [the victim’s] death was the result of
an intentional act by someone, and not an accident.”).
   32  Tanner, 675 P.2d at 542 (“The diagnosis is dependent on
inferences, not a matter of common knowledge, but within the
area of expertise of physicians whose familiarity with numerous
instances of injuries accidentally caused qualifies them to express
with reasonable probability that a particular injury or group of
injuries to a child is not accidental or is not consistent with the
explanation offered therefor but is instead the result of physical
abuse by a person of mature strength.” (internal quotation marks
omitted)).
   33   Supra ¶ 19.
   34  Estelle, 502 U.S. at 68 (“When offered to show that certain
injuries are a product of child abuse, rather than accident,
evidence of prior injuries is relevant even though it does not
purport to prove the identity of the person who might have
inflicted those injuries.” (discussing BCS under California law)).
   35   Id. at 69.
   36Id. at 74 (“The proof of battered child syndrome itself
narrowed the group of possible perpetrators to [the defendant]
                                                   (continued)
                             15
                           STATE v. LUCERO
                         Opinion of the Court
not bear directly on the issue of identity, which is a separate
element of the crime that must then be proven independently.
    ¶23 In sum, although it is true that “[o]ur child abuse case law
clearly indicates that evidence of instances of uncharged abuse
involving the same victim and the same defendant is admissible
for proper noncharacter purposes,” 37 it can be admitted only
under specific conditions. If the State decides to establish BCS, it
may do so only to establish intent (or lack of accident/mistake),
and it may be introduced only through expert testimony. If it were
otherwise, the State could use BCS to sidestep the important
requirement of Utah Rule of Evidence 104 that a reasonable jury
must be able to connect the prior act to the defendant by a
preponderance of the evidence for the court to rule favorably on
its admission. If the judge determines that there is not
“evidence sufficient to support a finding” 38 that the defendant
committed the prior abuse, then the evidence must be excluded as
irrelevant.
    ¶24 In the present case, Ms. Lucero first argues that the trial
court erred in admitting evidence of Alex’s prior injury under our
BCS framework. We agree. During argument on the State’s
motion in limine to admit evidence of Alex’s prior injury, the State
discussed the aforementioned case of Estelle v. McGuire and
argued that “it’s not essential under 404(b) for the government to
connect the prior episode or the prior evidence to any particular
perpetrator in order for it to be relevant in a child abuse setting.”
The State then went on to argue, erroneously, that such evidence
is admissible “not as evidence of a prior crime, but as evidence of
who it was that actually inflicted the final fatal injuries upon the
child” and as evidence of “lack of accident or mistake.” After
hearing argument from both parties, the judge instructed the
parties that it needed time to consider “whether or not there has


and his wife, because they were the only two people regularly
caring for [the victim] during her short life.”).
   37 State v. Killpack, 2008 UT 49, ¶ 46, 191 P.3d 17; see also State v.
Teuscher, 883 P.2d 922, 927 (Utah Ct. App. 1994) (“Evidence
regarding prior instances of abuse perpetrated against the victim
is clearly admissible in Utah to show identity, intent or mental
state, and lack of accident or mistake.”), abrogated on other grounds
by State v. Levin, 2006 UT 50, 144 P.3d 1096.
   38   UTAH R. EVID. 104(b) (2009).

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                         Opinion of the Court
to be more of a connection between the act . . . that the State
intends to bring in and Ms. Lucero.” The judge also specifically
noted that she would review Estelle, but indicated that “if I am
convinced, after reading that case and any others when we
shepardize that case that it supports the State’s position, I just
wanted to give you heads up, that I’ll allow it.”
    ¶25 The court later granted the motion, and in a final
argument before trial stated that it was admitting the evidence
under rule 404(b) for the purpose of showing “identity, intent or
mental state, lack of mistake, and opportunity.” The judge also
noted that she had reviewed Estelle and Utah’s BCS caselaw,
including State v. Tanner 39 and State v. Fedorowicz, 40 which both
discuss BCS. In its ruling, however, the court conflated the proper
104(b) and BCS analyses, stating that these cases “talk[] about
[the] evidence in terms of [BCS]” and that
         those cases seem to indicate that the State does not
         have to prove conclusively that the defendant was
         the person that perpetrated a prior bad act. That if
         the prior bad act is relevant under one of the 404(b)
         articulated purposes, that it may be admitted and it
         is based then on the reading of those cases that I find
         that it is appropriate to grant the State’s motion in
         regards to this evidence.
Although it is true that prior abuse need not be linked
“conclusively” to a defendant to admit such evidence, mere
relevance “under one of the 404(b) articulated purposes” is not
enough—even if the State is seeking its admission only to
establish BCS. As discussed above, rule 104(b) requires a
preponderance threshold in connecting the act to the defendant,
and our BCS framework requires specific expert testimony
regarding BCS. Here, the court neither applied the correct rule
104(b) framework, nor did it require the State to limit the evidence
to establishing BCS through an expert. Instead, the evidence came
in as relevant for a host of purposes without the judge requiring
that the evidence be properly connected to Ms. Lucero.
   ¶26 Although we agree with Ms. Lucero that the court
misapplied our BCS framework in admitting evidence of Alex’s
prior injury, we hold that such error was harmless. Our harmless

   39   675 P.2d 539 (Utah 1983).
   40   2002 UT 67, 52 P.3d 1194.

                                    17
                           STATE v. LUCERO
                        Opinion of the Court
error analysis under rule 104(b) mirrors our analysis under rule
404(b)—that is, a trial court’s failure to properly conduct a 104(b)
analysis is harmless if the evidence “would have been admitted
had the trial court undertaken the proper review.” 41 Here, the trial
court properly determined that the evidence was relevant under
rule 402. The identity of the attacker here was not only important
to the State’s case—determining the identity of Alex’s killer was
the central contested issue at trial. And since there were no
witnesses to Alex’s death other than Mr. Martinez and Ms. Lucero
(who blame each other), the State’s use of the evidence of prior
abuse made the State’s argument—that Ms. Lucero killed Alex—
more probable.
    ¶27 But it is apparent from the record that the court failed to
properly review the evidence under rule 104. The court made no
mention of rule 104 in its discussion, though it did struggle with
the issue of whether there was a sufficient “connection between
the act . . . that the State intends to bring in and Ms. Lucero.” Still,
we conclude that there was sufficient evidence that a jury could
reasonably connect Ms. Lucero to the prior abuse (the “condition
of fact“) by a preponderance of the evidence. First, the State put
on testimony from several witnesses, including Ms. Lucero
herself, that she and her mother were the only ones with access to
Alex during the time of his prior injury. She also told numerous
individuals that she personally took Alex out of the room when
his fatal injury occurred. She maintained this story during her
interrogation until she began to shift the blame for Alex’s death to
Mr. Martinez.
    ¶28 Second, the State put on evidence that Mr. Martinez
never spent time alone with Alex and that Ms. Lucero had
specifically instructed Mr. Martinez to keep his distance from
Alex and not to discipline him. Third, although Ms. Lucero claims
that Mr. Martinez could have caused the prior injury during a
fishing trip with Alex, the injury did not manifest itself until days

   41  State v. High, 2012 UT App 180, ¶ 41, 282 P.3d 1046 (“Put
simply, if a scrupulous examination would have resulted in the
evidence being admitted, the trial court’s failure to conduct that
examination has not harmed the defendant. In the alternative, we
may assume that a scrupulous examination would have resulted
in the exclusion of the evidence but that there is no reasonable
likelihood that the assumed error affected the outcome.”).



                                  18
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                         Opinion of the Court
after the fishing trip, at a time during which Mr. Martinez had not
interacted with Alex. And Ms. Lucero was present with Alex
during the fishing trip and presented no evidence that
Mr. Martinez harmed Alex on that occasion either. Finally, we
also note that Ms. Lucero used the evidence of the prior abuse to
support her own case—that it was Mr. Martinez that inflicted both
the prior abuse and the fatal injury.
    ¶29 Because Ms. Lucero also used the evidence of prior abuse
to support her own case, and because her later accounts conflicted
with her early interrogation testimony and statements to first
responders, the question of credibility lay ultimately with the jury.
But given the above, we conclude that there was at least a
preponderance of the evidence both that the prior injury occurred
and that Ms. Lucero caused it. Accordingly, we hold that the
court’s error was harmless—the evidence would still have been
admitted had the trial court undertaken a proper review of the
evidence under rule 104.
C. The Trial Court Properly Determined that the Probative Value of the
   Evidence of Prior Abuse was not Substantially Outweighed by the
                      Danger of Unfair Prejudice
    ¶30 Ms. Lucero’s third contention is that the probative value
of the evidence of prior abuse is far outweighed by its prejudicial
effect. Rule 403, which is the final hurdle that prior bad acts
evidence must overcome, provides that
         [a]lthough relevant, evidence may be excluded if its
         probative value is substantially outweighed by the
         danger of unfair prejudice, confusion of the issues,
         or misleading the jury, or by considerations of
         undue delay, waste of time, or needless presentation
         of cumulative evidence.
Under this rule, the trial court is called on to weigh the evidence,
because even highly relevant evidence may sustain both proper
and improper inferences. This “preserve[s] the integrity of rule
404(b)” and prevents routine admission of improper propensity
inferences whenever a “plausible companion inference” is
suggested. 42
    ¶31 In weighing the evidence under rule 403, the court may
consider a number of factors, including those we identified in
State v. Shickles:

   42   Verde, 2012 UT 60, ¶ 18.

                                   19
                            STATE v. LUCERO
                          Opinion of the Court
         the strength of the evidence as to the commission of
         the other crime, the similarities between the crimes,
         the interval of time that has elapsed between the
         crimes, the need for the evidence, the efficacy of
         alternative proof, and the degree to which the
         evidence probably will rouse the jury to
         overmastering hostility. 43
    ¶32 Since our decision in Shickles, a number of courts have
relied heavily on this list of factors in weighing evidence under
rule 403. 44 But while some of these factors may be helpful in
assessing the probative value of the evidence in one context, they
may not be helpful in another. It is therefore unnecessary for
courts to evaluate each and every factor and balance them
together in making their assessment. This is because courts are
bound by the text of rule 403, not the limited list of considerations
outlined in Shickles. In fact, we stated in Shickles that these were
“suggest[ed]” factors drawn from the treatise McCormick on
Evidence. 45 Simply put, a trial court may exclude evidence if “its
probative value is substantially outweighed by” a number of
considerations, including “the danger of unfair prejudice.” 46 Of
importance here is that the probative value of the evidence must
be “substantially outweighed by the danger of unfair prejudice”; 47
and unfair prejudice results only where the evidence has an
“undue tendency to suggest decision upon an improper basis.” 48
Given this bar, we “indulge a presumption in favor of
admissibility.” 49
   ¶33 Here, the court properly concluded that the probative
value of the evidence of prior abuse was not substantially
outweighed by the danger of unfair prejudice. In conducting its

   43760 P.2d 291, 295–96 (Utah 1988), abrogated on other grounds
by Doporto, 935 P.2d at 489.
   44See Nelson-Waggoner, 2000 UT 59, ¶¶ 28–30; High, 2012 UT
App 180, ¶¶ 29–31, 39.
   45   Shickles, 760 P.2d at 295–96.
   46   UTAH R. EVID. 403 (2009).
   47   Id. (emphases added).
   48State v. Bair, 2012 UT App 106, ¶ 22, 275 P.3d 1050 (internal
quotation marks omitted).
   49   State v. Dunn, 850 P.2d 1201, 1221–22 (Utah 1993).

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                          Opinion of the Court
analysis, the court identified the Shickles factors and analyzed the
evidence in light of them. In particular, the court concluded that
both acts were highly similar. Both involved the same victim, a
similar mechanism, and both caused injuries within inches of each
other. Furthermore, the court highlighted the fact that the interval
of time between the two acts was extremely short—less than a
week separated the two injuries. Finally, the court concluded that
the evidence would not arouse the jury to overmastering hostility.
Any risk here was slight because the prior injury was tame in
comparison to the fatal injury.
    ¶34 By contrast, Ms. Lucero’s counsel highlighted the
weakness of the evidence, pointing to the magistrate judge’s
determination at a preliminary hearing that the State lacked
probable cause to bind Ms. Lucero over on the prior child abuse
charge. But probable cause determinations at these preliminary
hearings are given only limited deference on appeal. 50 And these
determinations do not prevent trial courts from admitting
evidence of the prior acts under Utah Rule of Evidence 104 or,
alternatively, our BCS framework.51 In fact, it is particularly
important that the State be permitted to introduce evidence of
prior uncharged instances of child abuse, regardless of a bindover
decision, since this is often the only way to “complete[] the story
of the charged abuse.” 52
    ¶35 Here, the probative value of the evidence was great given
the similarity and short interval of time between the instances of
abuse, as well as the central importance of the evidence in helping
the jury determine identity. The danger of unfair prejudice was
also quite low because the prior injury was tame in comparison to
the fatal one—this meant there was a very low risk of
overmastering hostility by the jury. Additionally, the evidence
linking Ms. Lucero to the prior abuse was sufficiently strong, as
discussed above. 53 The State presented evidence that Ms. Lucero
was Alex’s primary caretaker and that she was the only one
present both when the prior injury surfaced and when the fatal

   50 State v. Virgin, 2006 UT 29, ¶ 26, 137 P.3d 787 (“[I]n
reviewing a magistrate’s bindover decision, an appellate court
should afford the decision limited deference.”).
   51   Supra ¶¶ 18–23.
   52   Killpack, 2008 UT 49, ¶ 46 (emphasis added).
   53   Supra ¶¶ 24–29.

                                  21
                            STATE v. LUCERO
                         Opinion of the Court
injury occurred. Given the above, we conclude that the trial court
was correct in ruling that the probative value of the prior acts
evidence was not substantially outweighed by the danger of
unfair prejudice.
          D. The Trial Court Scrupulously Examined the Evidence
   ¶36 Ms. Lucero’s final claim with respect to the admission of
evidence of the prior injury is that the trial court failed to
scrupulously examine the evidence. As discussed below, the trial
court met the scrupulous examination requirement when it
engaged in a full analysis, on the record, of the requirements for
admission of prior bad acts evidence. In reviewing prior bad acts
for admissibility under each of the aforementioned rules, the
evidence supporting admission must be “scrupulously
examined.” 54 In Verde, we made this requirement plain in the
context of rule 404(b)—the judge must use “care and precision”55
in evaluating “the true—and predominant—purpose” 56 for
admission. This same level of care is required for all questions of
admissibility of evidence of prior bad acts, and particularly when
an issue of conditional relevance arises under rule 104(b). This
helps safeguard against any effort by a party to introduce
evidence as “merely a ruse.” 57
    ¶37 We acknowledge that our case law giving effect to the
“scrupulous examination” requirement has, to date, been
somewhat unclear. In giving substance to the requirement, we
have instructed trial courts to engage in a three-part analysis
under rules 404(b), 402, and 403, and that the court’s job is to
engage in the “dotting of ‘i’s and crossing of ‘t’s.’” 58 Procedurally,
in some cases we have held that evaluating the proposed evidence
on the record is sufficient. 59 In others, we held that briefing and


   54   Verde, 2012 UT 60, ¶ 13 (internal quotation marks omitted).
   55   Id. ¶ 55.
   56   Id. ¶ 22.
   57   Id.
   58 Decorso, 1999 UT 57, ¶ 18 n.2 (internal quotation marks
omitted).
   59 See Nelson-Waggoner, 2000 UT 59, ¶¶ 3, 23 (noting that
scrupulous examination requirement met where trial court
thoroughly evaluated proposed evidence).

                                   22
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                         Opinion of the Court
oral argument were sufficient. 60 Recently, in State v. Ferguson, the
court of appeals concluded that a trial court abused its discretion
by failing to engage in the three-part analysis on the record. 61 We
now clarify that the scrupulous examination requirement is met
when the trial court engages in this three- or four-step analysis62
on the record. This is essential for effective appellate review of the
issues. 63 As to rule 403 analysis specifically, we add that “[t]he
court need not identify each of the Shickles factors in its analysis as
long as we can discern that it made a sufficient inquiry under rule
403.” 64 And when matters of conditional relevance are raised
under rule 104, as the Supreme Court explained in Huddleston, the
judge must consider the totality of the evidence—“[i]ndividual
pieces of evidence, insufficient in themselves to prove a point,
may in cumulation prove it. The sum of an evidentiary
presentation may well be greater than its constituent parts.” 65



   60 State v. Widdison, 2001 UT 60, ¶ 44, 28 P.3d 1278 (scrupulous
examination met where the “parties extensively briefed and
argued the issue”); see also State v. Burke, 2011 UT App 168, ¶ 27
n.10, 256 P.3d 1102 (although “the trial court simply ruled from
the bench . . . and did not enter any specific findings or
conclusions[,] . . . based on the evidence and argument before the
trial court on this issue, it can be inferred that the trial court
‘scrupulously examined’ the relevant evidence”); State v. Bradley,
2002 UT App 348, ¶ 38, 57 P.3d 1139 (trial court scrupulously
examined evidence when it “conducted a pre-trial hearing that
addressed the rule 404(b) evidence” and “[b]oth sides submitted
briefs addressing the issue . . . and there was a great deal of
discussion concerning the admission” of the testimony).
   61   2011 UT App 77, ¶ 18, 250 P.3d 89.
   62 The analysis becomes four part when a party raises an issue
of conditional relevance under rule 104(b), supra ¶¶ 18–20.
   63 See State v. Smith, 725 P.2d 951, 953 (Wash. 1986) (en banc)
(“[A] trial court errs if the judge does not undergo the aforesaid
analysis on the record. Failure to do so precludes the trial court’s
thoughtful consideration of the issue, and frustrates effective
appellate review.” (internal quotation marks omitted)).
   64   State v. Harter, 2007 UT App 5, ¶ 30, 155 P.3d 116.
   65Huddleston, 485 U.S. at 691 (alteration in original) (internal
quotation marks omitted).

                                   23
                          STATE v. LUCERO
                        Opinion of the Court
    ¶38 As an initial matter, we hold that Ms. Lucero properly
preserved her scrupulous examination argument for appeal by
opposing introduction of the prior acts evidence at trial. And
before us, she argues that “the court did not engage in a specific
analysis of the facts of the prior incident or their relation to this
case.” But a detailed recitation of the facts, as suggested by
Ms. Lucero, is not required of the court. The record demonstrates
that the trial judge went through each of the three steps required
in a 404(b) analysis. The judge noted that many of the Shickles
factors weighed in favor of admission, particularly the similarity
of the injuries and the closeness in time of the two injuries. As to
the question of conditional relevance, the trial court made
particular effort to thoroughly evaluate the facts and underlying
law. After an initial hearing, the court stated that it needed
additional time to consider the conditional relevance question. It
took the matter under advisement, reviewed additional case law,
and then made its decision on the record before trial commenced.
In fact, the court mentioned its desire to “put specifics of the
ruling on the record.”
    ¶39 The court also received sufficient briefing and argument.
First, the State filed a motion and a memorandum in support of
admitting the evidence under rule 404(b). The court heard
additional arguments at the motion hearing, in which defense
counsel opposed the admission of the evidence orally, raising
many potential issues with the evidence under rule 404(b).
Furthermore, although Ms. Lucero did not respond in writing to
the State’s rule 404(b) motion, she had briefed the court on rule
404(b) in a previous motion to admit testimony of Mr. Martinez’s
prior assault. The trial court here did far more than simply allow
the evidence without any discussion, as in Ferguson. 66 Ms. Lucero
also argues that the trial court failed to scrupulously examine the
evidence that allegedly failed to connect Ms. Lucero to the prior
abuse. Though we agree that the trial court could have done more
to analyze the evidence of this matter on the record, the State’s
brief detailed the evidence it would present at trial that connected
Ms. Lucero specifically to the prior abuse. Because the trial court
received more than sufficient briefing and analyzed each of the
particular issues on the record in its ruling, we conclude that the
trial court scrupulously examined the evidence.



   66   2011 UT App 77, ¶ 17.

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                          Opinion of the Court
   ¶40 Having concluded that the trial court scrupulously
examined the evidence and did not abuse its discretion in
admitting evidence of prior abuse under rules 404(b), 402, 104(b),
and 403, we now turn to Ms. Lucero’s ineffective assistance of
counsel claims.
        II. DEFENSE COUNSEL’S PERFORMANCE WAS NOT
                         DEFICIENT
   ¶41 In her second claim, Ms. Lucero argues that defense
counsel was ineffective in three ways: (1) he stipulated that
another one of Ms. Lucero’s children had been hospitalized for
unexplained seizures; (2) he did not object to the admission of
Ms. Lucero’s unredacted interrogation video into evidence at trial;
and (3) he failed to present BWS expert testimony at trial. After
examining Ms. Lucero’s arguments, we conclude that there was a
conceivable tactical basis for defense counsel’s strategies, and
therefore his performance was not deficient. After denying her
ineffective assistance of counsel claims, we then reach the pending
rule 23B motion that was granted by the court of appeals.
Although supplementation under rule 23B may bring to light
evidence that counsel could have employed an alternative
reasonable strategy, such evidence would not sway our decision
here that the strategy actually employed was, itself, reasonable—
which is all that is required of counsel under Strickland v.
Washington. 67 Accordingly, we revisit the court of appeals’ Order
and vacate the Order on grounds of mootness.
    ¶42 “A claim of ineffective assistance of counsel raised for the
first time on appeal presents a question of law” that we review for
correctness. 68 But review of defense counsel’s performance “must
be highly deferential; otherwise, the distorting effects of hindsight
would produce too great a temptation for courts to second-guess
trial counsel’s performance on the basis of an inanimate record.”69
In proving that counsel performed ineffectively, a defendant must
show “(1) that counsel’s performance was objectively deficient,
and (2) a reasonable probability exists that but for the deficient




   67   466 U.S. 668 (1984).
   68   State v. Charles, 2011 UT App 291, ¶ 18, 263 P.3d 469.
   69 State v. Tennyson, 850 P.2d 461, 466 (Utah Ct. App. 1993)
(internal quotation marks omitted).

                                   25
                            STATE v. LUCERO
                          Opinion of the Court
conduct the defendant would have obtained a more favorable
outcome at trial.” 70
    ¶43 To satisfy the first prong of this test, Ms. Lucero must
overcome the “strong presumption that her trial counsel rendered
adequate assistance” 71 by persuading the court that there was no
“conceivable tactical basis for counsel’s actions.” 72 The court “give[s]
trial counsel wide latitude in making tactical decisions and will
not question such decisions unless there is no reasonable basis
supporting them.” 73 “Put another way, [i]f a rational basis for
counsel’s performance can be articulated, [the court] will assume
counsel acted competently,” 74 even if another, possibly more
reasonable or effective strategy could have been employed. The
second prong of the test requires Ms. Lucero “to show that the
error was harmful.” 75 This “prejudice analysis is the same under
both a plain error and ineffective assistance of counsel
framework.”76 Because we conclude that counsel’s performance
was not deficient, we need not reach Ms. Lucero’s prejudice
arguments.
    A. Defense Counsel’s Performance Was not Deficient When He
   Stipulated that Another of Ms. Lucero’s Children Suffered from a
                           Seizure Disorder
   ¶44 Ms. Lucero first contends that her trial counsel’s
performance was ineffective because he stipulated that I.H., one of
Ms. Lucero’s twin boys, had been hospitalized after suffering



   70 State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162; see Strickland, 466
U.S. at 687.
   71   State v. Crosby, 927 P.2d 638, 644 (Utah 1996).
   72  State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998)
(emphasis added) (internal quotation marks omitted); see
Strickland, 466 U.S. at 689 (indicating that counsel should be given
wide latitude in making tactical decisions).
   73   Crosby, 927 P.2d at 644.
   74Bryant, 965 P.2d at 542–43 (alterations in original) (internal
quotation marks omitted).
   75   State v. Jimenez, 2012 UT 41, ¶ 15, 284 P.3d 640.
   76State v. Munguia, 2011 UT 5, ¶ 13, 253 P.3d 1082 (internal
quotation marks omitted).

                                    26
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                         Opinion of the Court
from a seizure disorder and that the cause of these seizures was
unknown. The stipulation read, in part:
         [O]n July 29, 2008, the defendant, Adrianna Lucero,
         while home alone with [I.H.] . . . noticed that [I.H.]
         seemed to be twitching, crying softly and/or
         whining. He repetitively extended his arms, his eyes
         stared straight ahead and he was unresponsive to
         verbal or tactile stimulation.
         Adrianna called her mother, Geraldine Rodriguez,
         who came home to help. [They] took [I.H.] to
         Pioneer Valley Hospital and he was transferred to
         Primary Children’s Medical Center. [I.H.] continues
         to have seizures but the doctors treating him have
         been unable to determine the cause of the seizures
         despite extensive testing. No affirmative signs of
         non-accidental trauma have been identified by the
         doctors as the cause of seizures.
The court read this stipulation to the jury just before the
interrogation video was played.
    ¶45 Ms. Lucero claims that allowing this stipulation to be
read to the jury constituted deficient performance. She first
contends that the evidence would have been deemed inadmissible
and then argues that stipulating to its presentation left the jury to
speculate that Ms. Lucero caused I.H.’s injuries and therefore also
caused Alex’s fatal injury. Ms. Lucero ultimately claims that there
was no reasonable basis for “giving this information to the jury in
light of its highly prejudicial nature,” and that “[t]he defense
could have been conducted without ever mentioning [I.H.]’s
hospitalization.” The State proposes three reasonable defense
strategies that suggest that there was indeed a “conceivable
tactical basis for counsel’s actions.” 77 We agree that any one of the
three, discussed below, was a reasonable tactical basis for asking
for the stipulation and conclude that counsel’s stipulation did not
constitute deficient performance.
   ¶46 The State first suggests that defense counsel may have
asked for the stipulation because it would explain why
Ms. Lucero lied to protect Mr. Martinez. If the jury were presented
with information about I.H.’s seizures, it would help them
understand why Ms. Lucero may have originally thought that

   77   Bryant, 965 P.2d at 542 (internal quotation marks omitted).

                                  27
                          STATE v. LUCERO
                       Opinion of the Court
Alex was also experiencing a similar, naturally caused seizure.
Accordingly, Ms. Lucero may well have thought that lying to
investigators could have shielded Mr. Martinez from questioning,
and that she could do so without fear of incrimination because the
seizure was not caused by abuse. This is a plausible tactical
decision for defense counsel to make because undoubtedly the
defense was trying to find a way to reconcile Ms. Lucero’s
contradictory stories. While at first Ms. Lucero told officials that
she had taken Alex out of the room to get Jell-O when he
sustained the fatal injury (purportedly to protect Mr. Martinez),
she later changed her story and claimed, instead, that
Mr. Martinez had taken Alex out of the room. Providing this
contextual information to the jury supported Ms. Lucero’s theory
of why she initially lied to investigators.
    ¶47 Second, the State suggests that the stipulation cut against
the officer’s insinuations in the video that Ms. Lucero had harmed
I.H. and helped explain that the officer’s insinuations were
unsupported by evidence. In the interrogation video, the officer
on several occasions insinuated that, given Ms. Lucero’s claim that
Alex suffered a seizure, he was unsure whether I.H.’s seizures
were caused by similar abuse. The stipulated statement dispelled
these insinuations by making clear that despite “extensive
testing,” there were “no affirmative signs of non-accidental
trauma” that may have caused I.H.’s seizures. And given the
importance of the overall video and the officer’s forceful
questioning to the defense’s theory of the case, infra ¶¶ 50–51, it is
conceivable that the stipulation would highlight the fact that the
interrogating detective was needlessly hostile and that his
accusations were baseless.
   ¶48 Third, and last, the State suggests that the stipulation
portrayed Ms. Lucero “as an attentive and caring mother because
she took her child to the hospital.” Because of other evidence that
Ms. Lucero was occasionally aggressive and violent, it is
reasonable that defense counsel would seek to counteract this
evidence in any way possible. And the stipulation supported this
goal—it explained that she called on her mother for help and that
they brought I.H. to the hospital for treatment. By informing the
jury that she sought help from medical professionals in this
manner, it helped show that she was concerned for her children’s
well-being. Together with Ms. Lucero’s own statements in the
video of how she cared for her children, requesting the stipulation
was clearly a reasonable trial strategy for counsel to have adopted.


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                          Opinion of the Court
    ¶49 In response to the State’s proposed defense strategies,
Ms. Lucero argues that even if the stipulated statement were
conceivably introduced for any of those reasons, none would
justify admitting this “highly prejudicial evidence” to make a
“minor point.” But as the Supreme Court stated in Strickland,
         [j]udicial scrutiny of counsel’s performance must be
         highly deferential. . . . A fair assessment of attorney
         performance requires that every effort be made to
         eliminate the distorting effects of hindsight, to
         reconstruct the circumstances of counsel’s
         challenged conduct, and to evaluate the conduct
         from counsel’s perspective at the time. Because of
         the difficulties inherent in making the evaluation, a
         court must indulge a strong presumption that
         counsel’s conduct falls within the wide range of
         reasonable professional assistance. 78
In “reconstruct[ing] the circumstances of counsel’s challenged
conduct,” it is conceivable that counsel agreed to the stipulation to
explain her previous lie, to counteract other negative insinuations
in the video, and to portray Ms. Lucero as a caring mother.
Ms. Lucero’s argument concerning deficient performance thus
fails to overcome the “strong presumption” 79 that her defense
counsel’s performance at trial was not deficient. The State’s three
plausible strategies are sufficient to justify counsel’s performance.
 B. Defense Counsel was not Deficient in Agreeing to Show the Largely
                Unredacted Police Interview at Trial
    ¶50 Ms. Lucero’s second ineffective assistance argument is
that defense counsel performed deficiently by agreeing to show
the unredacted interrogation video to the jury, and that there was
no reasonable tactical basis for doing so. Ms. Lucero claims that
showing the video to the jury, together with later questioning at
trial, allowed the State to insinuate and the jury to conclude that
she was the cause of I.H.’s seizures and Alex’s death because
Ms. Lucero had been alone with I.H. when he started having
seizures. The video contained Ms. Lucero’s largely unredacted
interrogation by Detective Adamson, who suggested that
Ms. Lucero committed the homicide because she also abused Alex
the week before and had abused I.H. and caused his seizures.

   78   Strickland, 466 U.S. at 689.
   79   Crosby, 927 P.2d at 644.

                                       29
                          STATE v. LUCERO
                       Opinion of the Court
Based on the prejudicial nature of the interrogation video and its
lack of relevance, Ms. Lucero argues, defense counsel performed
deficiently in stipulating to its admission.
    ¶51 The State responds to Ms. Lucero’s argument by
suggesting that the interrogation video, in its entirety, supported
the defense’s argument that Ms. Lucero “stuck to her story despite
‘immense pressure’ from police to confess.” Part of defense
counsel’s argument was that Ms. Lucero was harshly interrogated
for two hours and forty minutes, “yet she did not break.” It is
conceivable that defense counsel made a tactical decision to show
the jury the entire video because, after having the stipulation read
to the jury that served to discredit the detective’s accusations that
Ms. Lucero hurt I.H., the video might hurt the officer’s credibility
while strengthening the defense’s theory. In her Reply,
Ms. Lucero argues that defense counsel was only required to
disprove the detective’s insinuations because he sought the
stipulation in the first place. But it is conceivable that playing the
video in its entirety was necessary to best demonstrate to the jury
what kind of pressure Ms. Lucero was under from authorities and
how she nonetheless remained steadfast in proclaiming her
innocence. The jury may well have been sympathetic to
Ms. Lucero after viewing her emotional reactions, including a
prayer, in response to the officer’s forceful accusations. Because of
these very conceivable tactical bases, we conclude that defense
counsel’s performance was not deficient.
  C. Defense Counsel’s Decision not to Introduce Expert Testimony
 Regarding Battered Woman’s Syndrome Did not Constitute Deficient
                           Performance
    ¶52 Ms. Lucero’s final ineffective assistance claim is that
counsel failed to both investigate and present expert testimony
regarding BWS. She asks the court to find that counsel was
ineffective or, in the alternative, to lift the stay on the court of
appeals’ 23B Order so that she can supplement the record to better
establish ineffective assistance. We conclude that Ms. Lucero’s
counsel did not perform deficiently, since adopting the
deportation theory of the case was a reasonable trial strategy.
Furthermore, given the violent instances from Ms. Lucero’s past
that the State would have highlighted in responding to a BWS
defense, we cannot conclude that it was unreasonable not to
pursue this alternative strategy. Supplementation on remand is
therefore unnecessary because it would not alter our conclusion.
Having so concluded, we vacate the Order granting Ms. Lucero’s
rule 23B motion as moot.

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                         Cite as: 2014 UT 15
                       Opinion of the Court
1. Ineffective Assistance of Counsel
    ¶53 First, Ms. Lucero claims that counsel performed
deficiently because if he had presented BWS expert testimony, it
would have explained not only why she initially lied about taking
Alex to the other room, but also why she stayed with
Mr. Martinez if he were abusive. Ms. Lucero’s brief is replete with
cases from various jurisdictions demonstrating that BWS
testimony is commonly presented at trial and is beneficial to juries
in helping to explain the unusual behavior of battered victims. We
agree that adopting a BWS theory to explain Ms. Lucero’s actions
may have been reasonable but counsel’s decision to choose one of
two alternative, reasonable trial strategies is not grounds for an
ineffective assistance of counsel ruling.
    ¶54 At trial, counsel could have adopted one of several
theories to explain Ms. Lucero’s contradictory stories: First,
counsel could have claimed BWS and presented evidence and
expert testimony accordingly. Second, counsel could have
emphasized that Ms. Lucero was concerned that Mr. Martinez, the
father of her twins, would be deported. Or third, counsel could
have adopted both theories and argued BWS in addition to her
fear that Mr. Martinez would be deported. At oral argument,
counsel argued that defense counsel was ineffective for the
latter—failing to offer both theories as alternative explanations for
Ms. Lucero’s contradictory stories. But Strickland does not require
counsel to argue every reasonable theory—the standard requires
only that the theory ultimately employed, itself, be reasonable.
    ¶55 Here, we conclude that it was a reasonable trial strategy
for counsel to present, exclusively, the deportation theory. At trial,
counsel put on evidence of the deportation of Alex’s father, as
well as Ms. Lucero’s concern over Mr. Martinez’s potential
deportation. We agree, as the State suggests, that adopting the
deportation theory was a reasonable strategy because it helped tie
Ms. Lucero’s testimony, the interrogation, and the zoo incident
into a consistent narrative. Since Ms. Lucero expressed concern
over Mr. Martinez’s deportation in each of these instances, it was
an effective basis for counsel to use to explain Ms. Lucero’s
behavior.
    ¶56 Ms. Lucero contends, however, that counsel was
ineffective because he failed to also present BWS expert
testimony—that “[t]here was no reasonable tactic for not
presenting this expert testimony since it would have aided the
jury in understanding something beyond their knowledge, it
would have helped them understand why [Ms. Lucero] covered
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                          STATE v. LUCERO
                       Opinion of the Court
for Mr. Martinez and stayed with him despite the abuse, and
would have enhanced her credibility.”
    ¶57 We disagree. A BWS strategy would not necessarily have
been an effective tactic, since the State could have undercut a BWS
claim with violent instances from Ms. Lucero’s past, including
breaking a phone, computer screen, and windshield in response to
frustration over Mr. Martinez and his family in Mexico. This
could have undermined the defense’s presentation of Ms. Lucero
as a loving, attentive mother and may have led the jury to view
Ms. Lucero as a violent individual who was capable of harming
Alex. Given the above, we conclude that defense counsel’s
performance was not deficient.
2. Rule 23B Order
    ¶58 In addition to Ms. Lucero’s argument that counsel was
ineffective for failing to present expert BWS testimony at trial, Ms.
Lucero also argues that counsel failed to properly investigate
BWS. The court of appeals granted Ms. Lucero’s previous rule 23B
motion to supplement the record on this point, but the parties
stipulated to stay the remand after we recalled the case. Because
we have already concluded that it was reasonable for defense
counsel to adopt the deportation theory to explain Ms. Lucero’s
contradictory stories, and because a BWS theory may very well
have undercut Ms. Lucero’s case given violent instances from her
past, supplementation is unnecessary. It would only serve to
establish the strength of BWS cases generally, and we have
already noted as to this case specifically that it was not
unreasonable to pursue an alternative strategy.
   ¶59 Accordingly, we revisit the court of appeals’ Order to
remand and vacate the Order, since supplementation of the record
would not alter our ultimate conclusion. Any further evidence or
argument on this point would be moot. 80
    ¶60 In sum, we hold that defense counsel’s performance was
not deficient, including his decision to use the stipulated
statement, play the largely unredacted interrogation video, and
adopt exclusively the deportation theory to explain Ms. Lucero’s

   80  Navajo Nation v. Utah (In re L.O.), 2012 UT 23, ¶ 8, 282 P.3d
977 (“An appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated,
thereby rendering the relief requested impossible or of no legal
effect.” (internal quotation marks omitted)).

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                         Cite as: 2014 UT 15
                        Opinion of the Court
inconsistent statements. We therefore revisit the rule 23B Order
and vacate the Order on grounds of mootness.
                    III. CUMULATIVE ERROR
   ¶61 Finally, Ms. Lucero claims that all of the aforementioned
errors constitute cumulative error. “The cumulative error doctrine
requires reversal only if the cumulative effect of . . . several errors
undermines our confidence . . . that a fair trial was had.” 81 Having
disposed of Ms. Lucero’s evidentiary claims, as well as her
ineffective assistance of counsel arguments, we cannot so
conclude. Additionally, since Ms. Lucero has “failed to establish
any errors of counsel that prejudiced [her] right to a fair trial, the
doctrine of cumulative error does not apply.” 82
                          CONCLUSION
   ¶62 We affirm Ms. Lucero’s convictions for child abuse and
homicide, holding that the trial court did not err in admitting
evidence of prior child abuse under rule 404(b). We also hold that
defense counsel’s performance was not deficient and therefore
deny Ms. Lucero’s ineffective assistance of counsel claims. Given
the above, we also conclude that there was no cumulative error.




   81 State v. Hamilton, 2003 UT 22, ¶ 56, 70 P.3d 111 (alterations in
original) (internal quotation marks omitted).
   82Archuleta v. Galetka, 2011 UT 73, ¶ 146, 267 P.3d 232 (internal
quotation marks omitted).

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