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

                                 2018 UT 19


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                 Appellee,
                                       v.
                         GEORGE WAYNE RING,
                             Appellant.

                               No. 20150526
                            Filed May 25, 2018

                            On Direct Appeal

                      Fourth District, Nephi
                 The Honorable Jennifer A. Brown
                         No. 141600067

                                 Attorneys:
    Sean D. Reyes, Att’y Gen., Jeffrey D, Mann, Asst. Solic. Gen.,
                    Salt Lake City, for appellee
                Nathan Phelps, Sandy, for appellant

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and
                    JUSTICE PETERSEN joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:

                               Introduction
    ¶1 George Ring was convicted of raping a three-year-old girl
while she was playing in his girlfriend’s apartment. Mr. Ring now
appeals this conviction for three reasons. First, he claims that the
district court erred by using each of the factors we previously
                            STATE v. RING
                         Opinion of the Court

articulated in State v. Shickles1 (Shickles factors) to determine the
admissibility of his previous acts of child molestation. Second, he
argues that even if the district court used the correct legal test, it
nevertheless abused its discretion by admitting those previous acts
of child molestation. Finally, he asserts an ineffective assistance of
counsel claim based on several alleged deficiencies in his trial
counsel’s representation. Each of Mr. Ring’s claims fails.
    ¶2 As an initial matter, we decline to consider whether the
district court erred in relying upon each of the Shickles factors,
because our review of this claim is precluded by the invited error
doctrine. We do, however, address Mr. Ring’s two remaining claims.
First, we hold that the district court did not err in admitting evidence
of Mr. Ring’s prior acts of child molestation, because this evidence
was admissible under rules 403 and 404(c) of the Utah Rules of
Evidence. Second, we hold that Mr. Ring’s ineffective assistance of
counsel claim fails because he did not show that any of the alleged
deficiencies constituted deficient performance and resulted in
prejudice.
                             Background
    ¶3 Three-year-old H.F. was playing with neighborhood friends
at the apartment complex where she lived with her mother. Initially,
Nancy Allred—the mother of one of H.F.’s friends—looked after the
children. But when Ms. Allred went to church, she left the children
alone with her boyfriend, George Ring. Although the children began
by playing outside, when H.F.’s mother checked on H.F., she found
her in Ms. Allred’s apartment playing video games with Mr. Ring. A
few hours later, H.F. told her mother, without any prompting, that
“Uncle Jerry touched her pee pee.” She also told her mother that
“Uncle Jerry” lived with Ms. Allred. From this, her mother
understood “Uncle Jerry” to be Mr. Ring. H.F.’s mother immediately
reported the incident to the police.
   ¶4 A few days later, H.F. was interviewed at the Children’s
Justice Center (CJC) by case worker Erica Wankier. The interview
was recorded. In the interview, H.F. again said that “Uncle Jerry”
touched her “pee pee,” indicating her vagina. She explained that this
had happened in Ms. Allred’s bedroom. According to H.F., “Uncle

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   1760 P.2d 291 (Utah 1988), abrogated on other grounds by State v.
Doporto, 935 P.2d 484 (Utah 1997).


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Jerry” had pulled her pants down and touched her vagina with his
“tail.” She identified a man’s “tail” on an anatomy chart as a penis.
She said that his “tail” touched her “in” her “pee pee” while he lay
on top of her on Ms. Allred’s bed.
   ¶5 In the course of their investigation, police learned that
Mr. Ring lived with Ms. Allred. They also learned that Mr. Ring was
required to register as a sex offender—due to two previous
convictions for child sex crimes—but that he had not registered in
Utah. Based on this information, the State charged Mr. Ring with
rape of a child and failure to register as a sex offender.
               Mr. Ring’s Prior Acts of Child Molestation
    ¶6 About four months before trial, Mr. Ring filed a motion
requesting an evidentiary hearing in anticipation of the State seeking
to admit evidence of his prior acts of child molestation under rule
404(c) of the Utah Rules of Evidence. In his motion, Mr. Ring
referred the court to the Shickles factors and emphasized the “need
for examination of the evidence to determine the answer to the
threshold questions of admissibility set forth in Shickles.”
    ¶7 Shortly thereafter, the State filed a motion in limine seeking
to admit evidence of two cases of prior child molestation by
Mr. Ring. The first case included two incidents in 1994 in which
Mr. Ring molested a six-year-old boy (M.F.). One incident—which
resulted in a rape conviction—occurred behind a haystack (haystack
incident), and the other incident—which was not disclosed until a
few years later and, consequently, did not lead to a criminal
conviction—occurred at Mr. Ring’s mother’s house while he was
playing video games with M.F. (video game incident). The second
case involved a single incident three years later. In that case,
Mr. Ring pled guilty to sexually assaulting a five-year-old girl (S.J.)
by “humping” her and touching her genitals while they were
watching television. The State relied on the Shickles factors in its
motion to argue that “the prior instances of abuse pass the scrutiny
of the 403 analysis.”
    ¶8 The day before trial, the district court held an evidentiary
hearing to determine the admissibility of Mr. Ring’s prior acts of
child molestation under rule 404(c), as well as the admissibility of
H.F.’s recorded CJC interview. At the hearing, the State called M.F.
and his father, and S.J. and her mother to testify about Mr. Ring’s
prior acts of child molestation. In addition to the haystack incident,
M.F. testified about the video game incident. According to M.F., the
video game incident occurred when Mr. Ring promised the
six-year-old M.F. that he could only play video games if he did Mr.
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                        Opinion of the Court

Ring a favor. Mr. Ring then led him across the hall to Mr. Ring’s
mother’s room where Mr. Ring raped him.
   ¶9 After the witnesses’ testimony, the district court heard
argument from the State and Mr. Ring. Both parties relied on each of
the Shickles factors during their arguments. The district court then
granted the State’s “motion to admit the evidence of similar crimes.”
                         H.F.’s CJC Interview
    ¶10 Another pretrial issue decided by the district court was the
admissibility of a video recording of H.F.’s CJC interview. Months
before trial, a preliminary hearing had been held to determine
whether the State had probable cause to charge Mr. Ring for the
crimes in this case. At this preliminary hearing, the State filed a
stipulated motion to admit the video recording of the CJC interview
at the preliminary hearing pursuant to rule 1102(b)(7) of the Utah
Rules of Evidence and rule 15.5 of the Utah Rules of Criminal
Procedure. Although H.F. was available to testify at the preliminary
hearing, Mr. Ring declined to cross-examine her. As the trial
approached, the State filed another motion to admit the recording of
the CJC interview at trial pursuant to rule 15.5, and to allow H.F. to
testify in the judge’s chambers outside of Mr. Ring’s presence.
    ¶11 The district court considered the State’s motion at an
evidentiary hearing held one day before trial. After finding that all
conditions of rule 15.5 had been met, the court ruled that the CJC
interview was admissible. Mr. Ring did not object. Additionally, the
parties stipulated to H.F. testifying in the judge’s chambers, with her
testimony live-streamed to the jury in the courtroom.
    ¶12 At trial, the now four-year-old H.F. was present to give
testimony in the judge’s chambers in the presence of the judge,
prosecutor, defense counsel, court clerk, and a victim advocate. The
State questioned H.F. and defense counsel cross-examined her, but
she had limited focus and would only answer “I don’t know” when
asked about “Uncle Jerry.”
    ¶13 After H.F.’s testimony, Ms. Wankier testified about her CJC
interview with H.F. The prosecution then played the recording of the
CJC interview, with no objection from defense counsel.
   ¶14 The jury convicted Mr. Ring of rape of a child and failure to
register as a sex offender, and Mr. Ring timely appealed the rape
conviction. We have jurisdiction under section 78A-3-102(3)(i) of the
Utah Code.



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                            Standard of Review
    ¶15 Mr. Ring raises three issues on appeal. We consider each
issue under a different standard of review.
   ¶16 First, Mr. Ring challenges the district court’s use of each of
the Shickles factors in considering the admissibility of evidence of
Mr. Ring’s prior acts of child molestation. This issue was not
preserved and so would ordinarily be reviewed under a plain error
standard.2 But in this case we decline to conduct a plain error
review, because the district court’s use of the Shickles factors was
invited error.
   ¶17 Next, Mr. Ring challenges the district court’s admission of
evidence of his prior acts of child molestation. We review the district
court’s decision under an abuse of discretion standard.3 A district
court’s “decision to admit or exclude evidence” is only an abuse of
discretion if it “is beyond the limits of reasonability.”4
    ¶18 Finally, Mr. Ring argues that his trial counsel was ineffective
in a number of respects. “A claim of ineffective assistance of counsel
raised for the first time on appeal presents a question of law that
[we] review[] for correctness.”5
                                  Analysis
 I. Because Mr. Ring Invited the District Court’s Error by Urging the
 Court to Apply Each of the Shickles Factors, We Decline to Evaluate
             His Claim Under the Plain Error Standard
   ¶19 Mr. Ring argues that the district court “erred in relying
exclusively on the Shickles factors” when it considered the
admissibility of evidence of Mr. Ring’s prior acts of child molestation
under rules 403 and 404(c) of the Utah Rules of Evidence. Because
Mr. Ring’s argument fails under the invited error doctrine, we
decline to consider it.



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   2   State v. Moa, 2012 UT 28, ¶ 24, 282 P.3d 985.
   3   State v. Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032.
   4   Id. (citation omitted).
   5 State v. Lucero, 2014 UT 15, ¶ 11, 328 P.3d 841 (citation omitted)
(internal quotation marks omitted), abrogated on other grounds by State
v. Thornton, 2017 UT 9, 391 P.3d 1016.


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                            Opinion of the Court

    ¶20 Under the invited error doctrine, we decline “to engage in
plain error review when counsel made an affirmative statement that
led the court to commit the error.”6 As we have previously noted, the
invited error doctrine serves three important purposes. First, it
“discourag[es] parties from intentionally misleading the trial court
so as to preserve a hidden ground for reversal on appeal.”7 Second,
“it encourages counsel to ‘actively participate in all proceedings and
to raise any possible error at the time of its occurrence.’”8 Finally, it
“fortifies our long-established policy that the [district] court should
have the first opportunity to address a claim of error.”9 For these
reasons, we employ the invited error doctrine where a complaining
party made affirmative statements to the district court that would
have led the court to commit the error complained of. We hold that
Mr. Ring affirmatively invited the district court to apply each of the
Shickles factors in this case.
   ¶21 In State v. Shickles,10 we established factors for determining
whether evidence of prior crimes should be admitted under rules
403 and 404(b). From Shickles until our decision in State v. Lucero11
nearly thirty years later, courts routinely relied on the Shickles factors
when deciding whether to admit evidence under rule 404(b) or
404(c). It wasn’t until Lucero that we clarified that it is the language
of rule 403, and not the Shickles factors, that should govern the
admissibility of rule 404(b) evidence. Specifically, we explained that
“while some of [the Shickles] factors may be helpful in assessing the
probative value of the evidence in one context, they may not be
helpful in another.”12 We therefore concluded that it was
“unnecessary for courts to evaluate each and every [Shickles] factor



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   6   State v. Moa, 2012 UT 28, ¶ 24, 282 P.3d 985.
   7   Id. ¶ 25 (alteration in original) (citation omitted).
   8   Id. (citation omitted).
   9   Id. (alteration in original) (citation omitted).
   10760 P.2d 291 (Utah 1988), abrogated on other grounds by State v.
Doporto, 935 P.2d 484 (Utah 1997).
   112014 UT 15, 328 P.3d 841, abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016.
   12   Id. ¶ 32.


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                            Opinion of the Court

and balance them together in making their assessment” under rule
404(b).13
    ¶22 We discussed the Shickles factors again—in the context of
rule 404(c)—the following year in State v. Cuttler.14 In Cuttler, we
reaffirmed Lucero’s holding that it is “‘unnecessary for courts to
evaluate each and every [Shickles] factor’ in every context,”15 and we
further explained that in some contexts “it may be inappropriate for
a district court to consider some of the Shickles factors.”16 We also
held that it is always inappropriate for district courts to consider the
“overmastering hostility” factor set out in Shickles.17
    ¶23 After our decisions in Lucero and Cuttler, it is clear that a
proper rule 403 analysis for rule 404(b) or 404(c) evidence requires a
district court to look first, and primarily, to the language of rule 403.
Under that language a court must determine whether the probative
value of the evidence is substantially outweighed by its prejudicial
effect. The analysis may stop there. But to the extent the court finds it
helpful to consider a factor set forth in Shickles—or any other
factor18—it may do so. It is always error, however, for a court to
center its analysis on the Shickles factors, to consider itself obligated
to use a particular factor or factors, or to rely inflexibly upon each
Shickles factor.
    ¶24 Although the trial in this case was held before our decision
in Cuttler made it clear that “Lucero and its logic” also applied to
“determinations made under rule 404(c),”19 Mr. Ring argues that the
district court plainly erred by considering each Shickles factor.20 But

_____________________________________________________________
   13   Id.
   14   2015 UT 95, 367 P.3d 981.
   15   Id. ¶ 18 (alteration in original) (citation omitted).
   16   Id. ¶ 19.
   17   Id. ¶ 20.
   18 Both Lucero and Cuttler made it clear that courts are not limited
to only considering the Shickles factors. Indeed, courts may consider
any factor that they deem appropriate in a rule 403 analysis. See
Cuttler, 2015 UT 95, ¶ 18; Lucero, 2014 UT 15, ¶ 31.
   19   2015 UT 95, ¶ 18.
   20 Although we decline to review the district court’s use of the
Shickles factors under a plain error standard, we do note that the
                                                       (Continued)
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                                 STATE v. RING
                          Opinion of the Court

this argument fails because he repeatedly invited the district court to
use each Shickles factor to determine the admissibility of his prior
acts of child molestation. He first did this in a pretrial motion for a
rule 404(c) hearing, where he introduced each Shickles factor and
stated that there was a need for a hearing for an “examination of the
evidence to determine the answer to the threshold questions of
admissibility set forth in Shickles.”
    ¶25 He invited the district court to apply each of the Shickles
factors again at the hearing held on his rule 404(c) motion. There,
and after the State argued using each of the Shickles factors, Mr.
Ring’s counsel stated “[counsel for the State] is correct that the
controlling case law, the vehicle provided to us by the appellate
courts . . . is in fact set forth in Shickles.” And although Mr. Ring’s
counsel reminded the district court that the proper analysis was
ultimately a rule 403 determination, he qualified this by stating that
“the [c]ourt can and must weigh each of the [Shickles] factors” while
conducting its rule 403 analysis. Mr. Ring’s counsel’s actions are
sufficient to trigger the invited error doctrine.
    ¶26 Mr. Ring argues, however, that the invited error doctrine
does not apply to his claim because the State was the first party to
introduce the Shickles factors when it filed its motion in limine. But he
is wrong on this point. The record before us clearly shows that
Mr. Ring filed his motion for a 404(c) hearing before the State filed its
motion. Moreover, even if the State had been the first party to
introduce the Shickles factors, the invited error doctrine would still
apply to Mr. Ring’s claim because the doctrine applies any time a
complaining party “made an affirmative statement that led the court
to commit the error” complained of.21 By introducing each of the
Shickles factors and then urging the district court to apply them in his
motion and at the hearing, Mr. Ring clearly made affirmative
statements inviting the court to incorrectly apply the Shickles factors.
Because these affirmative statements are sufficient to trigger the
invited error doctrine, we decline to address whether the district
court’s strict application of each of the Shickles factors constitutes
plain error.




uncertain state of the law at the time of trial weighs against Mr.
Ring’s plain error claim.
   21   Moa, 2012 UT 28, ¶ 24.


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  II. The District Court Did Not Abuse its Discretion by Admitting
        Evidence of Mr. Ring’s Prior Acts of Child Molestation
    ¶27 Next, we consider Mr. Ring’s argument that even if the
district court had applied the correct legal test, it nevertheless
abused its discretion by admitting evidence of his prior acts of child
molestation. We consider this claim by analyzing the evidence under
rules 404(c) and 403 of the Utah Rules of Evidence to determine
whether the district court’s ultimate decision to admit evidence of
his previous acts was “beyond the limits of reasonability.”22 We hold
that it was not.
   ¶28 In child molestation cases, rule 404(c) allows “the court [to]
admit evidence that the defendant committed any other acts of child
molestation to prove a propensity to commit the crime charged.”23
But before the court admits such evidence, it must weigh the
evidence’s probative value against its potential for prejudice under
rule 403. If the evidence’s “probative value is substantially
outweighed by a danger of . . . unfair prejudice,” the evidence
should be excluded.24
   ¶29 When a district court conducts a rule 403 analysis it has the
“discretion to consider any relevant factors.”25 In this case the district
court found that the alleged crime was sufficiently similar to
Mr. Ring’s prior acts of child molestation to warrant admission.
Although the district court concluded this after incorrectly
considering each Shickles factor, we believe the result would have
been the same if the court had relied primarily on the text of rule 403.
    ¶30 Mr. Ring’s prior acts were highly probative in this case
because they were significantly similar as to the age of the victim, the
setting, the opportunity, and Mr. Ring’s modus operandi. These
similarities suggest that he had the propensity to commit the alleged
crime.26 And although Mr. Ring argues that the probative value of


_____________________________________________________________
   22 State v. Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032 (citation
omitted).
   23   UTAH R. EVID. 404(c)(1).
   24   Id. 403.
   25   Lowther, 2017 UT 34, ¶ 40.
   26See State v. Cuttler, 2015 UT 95, ¶ 24, 367 P.3d 981 (explaining
that prior incidents of child molestation were probative, and
                                                         (Continued)
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                            STATE v. RING
                         Opinion of the Court

the evidence was diminished by the amount of time between his
prior acts and the crime against H.F., the passing of time, on its own,
is not enough to rob 404(c) evidence of its probative value.27
    ¶31 Continuing our rule 403 analysis, we find that any potential
for unfair prejudice does not substantially outweigh the probative
value of Mr. Ring’s prior acts. Mr. Ring argues that evidence of his
prior acts is prejudicial in two respects. First, he asserts that the
evidence at issue in this case was “extremely prejudicial” because
“sex crimes involving a child” are certain to “inflame the jury.” In
other words, he argues that evidence of child sex crimes, which rule
404(c) has explicitly deemed admissible, is inadmissible under rule
403 because it is overly prejudicial. But this cannot be. Rule 404(c)’s
only function is to admit evidence of prior child sex crimes.
Therefore, ruling as Mr. Ring suggests would render rule 404(c)
inoperative—an outcome we refuse to endorse.28 Accordingly, we
hold that the evidence’s nature as a prior act of child molestation “is
not a factor that weighs against the evidence’s admissibility.”29
    ¶32 Mr. Ring also argues that evidence of his prior acts was
unfairly prejudicial because it could potentially give the jury
incentive to punish him for his past crimes. He claims that there is a
high likelihood of unfair prejudice in this case because his previous
prison sentences were for relatively short periods of time, and
consequently, evidence related to his prison sentences may have led
the jury to conclude that he deserved additional prison time for his
past convictions. Although it is possible that evidence of past crimes
could unfairly prejudice a defendant in this way, we are not
convinced that this evidence was likely to do so in this case. The
State did not focus on the length of Mr. Ring’s sentences nor did it
ever suggest that the sentences were insufficient or that the jury
should impose additional punishment for Mr. Ring’s past crimes. In
fact, during its closing argument, the State specifically instructed the
jury not to do so. Based on these facts, we do not find that the


therefore admissible, because there were “significant similarities
between the incidents”).
   27   See id. ¶ 28.
   28Id. ¶ 27 (“To give rule 404(c) purpose, evidence of the prior
conviction by itself cannot be said to lead to unfair prejudice
automatically.”).
   29   Id. ¶ 26.


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                           Opinion of the Court

potential for unfair prejudice            substantially   outweighed   the
evidence’s probative value.
   ¶33 Because the evidence of Mr. Ring’s past acts of child
molestation is admissible under rule 403, we hold that the district
court did not abuse its discretion by admitting it.
         III. Mr. Ring Has Failed to Show that His Trial Counsel
                             Was Ineffective
    ¶34 Finally, we turn to Mr. Ring’s ineffective assistance of
counsel claim. He grounds his claim on four alleged deficiencies in
his trial counsel’s representation: (1) failing to object to the district
court’s use of the Shickles factors, (2) failing to object to the
introduction of evidence of the video game incident, (3) failing to
object to the introduction of the victim’s out-of-court testimony
despite the fact that he was not provided an opportunity for
cross-examination, and (4) failing to object to the presence of
members of the group Bikers Against Child Abuse during trial.
Because Mr. Ring failed to show that any of the alleged failures
constituted deficient performance and resulted in prejudice, his
ineffective assistance of counsel claim fails.
    ¶35 An ineffective assistance of counsel claim requires Mr. Ring
to show that his “[trial] counsel’s performance was deficient” and
that “the deficient performance prejudiced the defense.”30 “To
establish that counsel was deficient, [Mr. Ring] must overcome the
strong presumption that counsel rendered constitutionally sufficient
assistance, by showing that counsel’s conduct ‘fell below an objective
standard of reasonableness’ under prevailing professional norms.”31
In other words, Mr. Ring “must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered
sound trial strategy.’”32

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   30   Strickland v. Washington, 466 U.S. 668, 687 (1984).
   31 Lafferty v. State, 2007 UT 73, ¶ 12, 175 P.3d 530 (citation omitted)
(quoting Strickland, 466 U.S. at 688); see also Harrington v. Richter, 562
U.S. 86, 109 (2011) (“There is a ‘strong presumption’ that counsel’s
attention to certain issues to the exclusion of others reflects trial
tactics rather than ‘sheer neglect.’” (citation omitted)).
   32Strickland, 466 U.S. at 689 (citation omitted); but see Harrington,
562 U.S. at 109 (explaining that “there is no expectation a competent
counsel will be a flawless strategist or tactician, an attorney may not
                                                            (Continued)
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                             Opinion of the Court

   ¶36 If Mr. Ring establishes that trial counsel’s representation is
deficient, he must then show that the deficiency prejudiced his
defense. To do this, he “must present sufficient evidence to support
‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”33
This analysis is counterfactual. “To decide whether a trial affected by
error is reasonably likely to have turned out differently we have to
consider a hypothetical—an alternative universe in which the trial
went off without the error.”34 If we conclude that the result would
have been the same absent the error, no prejudice has occurred. We
discuss each of Mr. Ring’s counsel’s alleged deficiencies separately.
   A. Trial counsel’s alleged deficiency in failing to object to the district
      court’s use of the Shickles factors did not prejudice Mr. Ring
    ¶37 First we consider the failure of Mr. Ring’s trial counsel to
object to the district court’s incorrect use of each of the Shickles
factors. While it is doubtful that trial counsel’s failure to object in this
instance rises to the level of deficient representation,35 we need not
reach that question because a timely objection would not have


be faulted for reasonable miscalculation or lack of foresight or for
failing to prepare for what appear to be remote possibilities”).
   33  Archuleta v. Galetka, 2011 UT 73, ¶ 40, 267 P.3d 232 (quoting
Strickland, 466 U.S. at 694).
   34   State v. Ellis, 2018 UT 2, ¶ 42, --- P.3d ---.
   35 As we discussed in Part I of this opinion, trial counsel’s failure
to object to the use of each of the Shickles factors occurred after our
decision in State v. Lucero, 2014 UT 15, 328 P.3d 841, abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, but before our
decision in State v. Cuttler, 2015 UT 95, 367 P.3d 981. See supra ¶¶ 21–
24. Although Lucero made it clear that courts were not bound by the
Shickles factors in the context of a rule 404(b) determination, it wasn’t
until Cuttler a year later that it became clear that “Lucero and its
logic” also applied to “determinations made under rule 404(c).”
Cuttler, 2015 UT 95, ¶ 18. This means that during the year between
Lucero and Cuttler it was unclear whether courts should continue
relying on the Shickles factors, as they had been doing for nearly
thirty years, when making a rule 404(c) determination. For this
reason, it is conceivable that a reasonable attorney in trial counsel’s
position would believe that the Shickles factors remained controlling
law.


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prevented evidence of Mr. Ring’s prior acts of child molestation from
being admitted. A timely objection to the district court’s use of the
Shickles factors would have led the district court to conduct a proper
rule 403 analysis. And, as we have already explained, under such an
analysis, evidence of Mr. Ring’s prior acts of child molestation
would have been admissible.36 So while trial counsel’s failure to
object contributed to the district court’s use of an incorrect legal
standard, it ultimately did not prejudice Mr. Ring’s defense.
 B. Trial counsel’s alleged deficiency in failing to object to the introduction
     of evidence of the video game incident did not prejudice Mr. Ring
    ¶38 Mr. Ring likewise argues that his trial counsel was
ineffective for failing to object to the admission of M.F.’s testimony
regarding the video game incident. M.F., one of Mr. Ring’s former
victims, testified that Mr. Ring sexually molested him on two
separate instances. One instance—the haystack incident—was
immediately discovered by M.F.’s family and resulted in Mr. Ring’s
conviction for rape of a child. But the second instance—the video
game incident—was not disclosed until years later and,
consequently, did not lead to a criminal conviction. Although the
video game incident was referenced in the State’s motion in limine,
and was discussed at length during the pretrial hearing, Mr. Ring
argues that the district court never affirmatively ruled to admit
evidence of that incident.37 Mr. Ring now argues that trial counsel
was ineffective for failing to object to this evidence’s introduction at
trial. But because the introduction of evidence of the video game
incident did not sufficiently prejudice Mr. Ring’s case, we conclude
that his trial counsel’s failure to object in this instance does not
provide the basis for a successful ineffective assistance of counsel
claim.
    ¶39 The introduction of the video game incident was not
prejudicial because it was only one of three similar incidents
admitted to show that Mr. Ring had the propensity to commit the
crime in this case. Because the other two incidents would have
effectively established this propensity in the absence of the video


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   36   See supra Part II.
   37In the record it is unclear whether the district court’s ruling to
admit evidence of Mr. Ring’s molestation of M.F. included the video
game incident.


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                          Opinion of the Court

game incident, the admission of the video game incident did not
significantly harm Mr. Ring’s defense.
    ¶40 At trial, the State presented four witnesses—M.F. and his
father, and S.J. and her mother—who testified regarding the
circumstances surrounding Mr. Ring’s prior convictions for child
molestation. According to the testimony of all four witnesses, the
opportunity to molest his victims arose while Mr. Ring was playing
with the younger children of close friends or family members. The
haystack incident occurred while he and M.F. were outside together
playing with rabbits. And the incident with S.J. occurred while he
and S.J. were watching television together.
    ¶41 While M.F. also discussed the video game incident during
his testimony, his account of that incident was substantially similar
to the first two instances of child molestation. According to M.F., he
was watching Mr. Ring play video games when Mr. Ring promised
to let him play if he did Mr. Ring a favor. Mr. Ring then led M.F. to a
bedroom across the hallway where Mr. Ring raped him. The State
used evidence of all three of these incidents to establish Mr. Ring’s
pattern for molesting children.
    ¶42 Mr. Ring contends that the admission of the video game
incident prejudiced him because he had been playing video games
with H.F. on the day the alleged incident took place. According to
Mr. Ring, the State’s emphasis on the video game incident during
closing argument was harmful because it showed that he used video
games as a technique to draw kids in. But because the other two
incidents had already established his pattern for using play to lure
children, the video game incident was nonessential to the State’s
case. Stated differently, even if trial counsel had objected and the
objection had resulted in the exclusion of the video game incident,
the State could have made essentially the same closing argument
that it did—Mr. Ring uses recreational activities to lure children to
him. While the video game incident may have provided the State
with a convenient narrative theme, we are not convinced that
excluding it would have affected the outcome of the trial, and so we
hold that trial counsel’s failure to object did not unduly prejudice
Mr. Ring.
         C. Trial counsel’s failure to object to the admission of the
                     CJC interview was not deficient
    ¶43 Similarly, Mr. Ring argues that counsel was ineffective for
failing to object to the admission of the video recording of H.F.’s CJC
interview. But this claim fails because under the prevailing law at the


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                           Opinion of the Court

time of trial, trial counsel could have reasonably believed that an
objection was futile.38
    ¶44 The district court admitted the video of the CJC interview
under rule 15.5 of the Utah Rules of Criminal Procedure. The rule
provides that in cases involving “a sexual offense against a child, the
oral statement of a victim or other witness younger than 14 years of
age . . . [is] admissible as evidence in any court proceeding,”
provided several requirements are met.39 Specifically, a victim’s
prior recorded statement is not admissible under rule 15.5 unless the
victim is made available “to testify and to be cross-examined at
trial,” or the victim is “unavailable to testify at trial” but the
defendant had previously been given an opportunity to
cross-examine the victim concerning the recorded statement.40
Mr. Ring argues that because H.F. was not available to testify and to
be cross-examined at trial, his counsel should have objected to the
admission of the CJC interview on the grounds that rule 15.5 was not
satisfied and it would violate his Sixth Amendment right to
confrontation.41
   ¶45 Mr. Ring maintains that H.F. was unavailable for
cross-examination for two reasons. First, he contends that because
H.F. was “incapable of answering questions,” she was effectively
unavailable for cross-examination. The second, more troubling
reason Mr. Ring puts forth is that the district court failed to
administer an oath to H.F. at trial.42 While the failure to administer

_____________________________________________________________
   38 See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise
futile objections does not constitute ineffective assistance of
counsel.”).
   39   UTAH R. CRIM. P. 15.5(a).
   40   Id. 15.5(a)(1).
   41The Sixth Amendment’s Confrontation Clause precludes the
admission of out-of-court testimony unless the defendant is given an
opportunity to cross-examine the witness who offered the testimony.
Crawford v. Washington, 541 U.S. 36, 59 (2004).
   42  “Having a witness under oath facilitates cross-examination,
which is part of the constitutional right to confront one’s accusers.”
United States v. Babul, 476 F.3d 498, 501 (7th Cir. 2007). Although the
right to place a witness under oath, like the right to cross-examine a
witness, may be waived by a defendant, see id., absent an affirmative
                                                            (Continued)
                                    15
                                STATE v. RING
                            Opinion of the Court

an oath, as well as H.F.’s unresponsive testimony, may have caused
H.F.’s trial testimony to fall short of the protections guaranteed Mr.
Ring by rule 15.5 and the Confrontation Clause, we need not reach
that question in this case. This is because Mr. Ring was previously
afforded an opportunity to cross-examine H.F. when the State
introduced the recorded CJC interview at a preliminary hearing. For
this reason, trial counsel could have reasonably understood that any
objection to the CJC interview’s admission would have been futile.
    ¶46 Mr. Ring relies on our recent ruling in State v. Goins43 to
argue that the opportunity to cross-examine H.F. at the preliminary
hearing was insufficient to satisfy the requirements of rule 15.5 and
the Confrontation Clause. In Goins, we clarified that in most cases
defendants do not have the same motive to cross-examine a witness
as they do at trial.44 But our decision in Goins dealt specifically with
the requirements of rule 804 of the Utah Rules of Evidence,45 and so
we did not address whether a preliminary hearing affords
defendants a sufficient opportunity to cross-examine a witness
under rule 15.5 or the Confrontation Clause. Although Mr. Ring
would have us answer this question now, we decline to do so
because Mr. Ring’s claim fails regardless of how this question is
ultimately answered. This is so because we are reviewing his claim
through an ineffective assistance of counsel lens.
    ¶47 When presented with an ineffective assistance of counsel
claim we first determine whether trial counsel’s failure to object to

waiver, the lack of an oath may deprive the defendant of a key
benefit of the Confrontation Clause. California v. Green, 399 U.S. 149,
158 (1970) (explaining that one of the purposes of the Confrontation
Clause is that it ensures that “the witness will give his statements
under oath—thus impressing him with the seriousness of the matter
and guarding against the lie by the possibility of a penalty for
perjury”).
   43   2017 UT 61, --- P.3d ---.
   44 Id. ¶ 34. This is so, we explained, because a 1994 amendment to
article I, section 12 of the Utah Constitution limited the purpose of
preliminary hearings to a determination that probable cause exists.
Id. ¶ 31.
   45 See UTAH R. EVID. 804(b)(1) (deeming preliminary hearing
testimony admissible against a defendant if defense counsel had
both (1) an opportunity and (2) similar motive to develop the
testimony at the preliminary hearing).

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                           Opinion of the Court

the admission of the CJC interview “‘fell below an objective standard
of reasonableness’ under prevailing professional norms.”46
Mr. Ring’s trial took place more than two years before our decision
in Goins. Prior to Goins, courts followed our ruling in State v. Brooks,47
where we held that defendants have “the same motive and interest”
to cross-examine witnesses at a preliminary hearing as they do at
trial.48 Thus a reasonable attorney at the time of the trial would have
understood that the previous opportunity to cross-examine H.F. at
the preliminary hearing satisfied the requirements of rule 15.5 and
the Confrontation Clause. Under these circumstances we cannot say
that Mr. Ring’s trial counsel was deficient in his performance for
failing to object to the admission of the CJC interview.
 D. Trial counsel’s alleged deficiency in failing to object to the presence of
 members of Bikers Against Child Abuse at trial was neither deficient nor
                                 prejudicial
   ¶48 Finally, Mr. Ring argues that trial counsel was ineffective for
not challenging the presence of members of Bikers Against Child
Abuse during his trial. In order to make this argument, he
previously asked that we remand to the district court to create a
record supporting his claim under rule 23B of the Utah Rules of
Appellate Procedure.
    ¶49 After reviewing the parties’ briefs and hearing oral
arguments on this issue, we denied the rule 23B motion without
prejudice in a January 17, 2018 order. We denied the motion because
it did not, as required by rule 23B, contain “a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.”49 Although we denied the motion, we allowed Mr. Ring




_____________________________________________________________
   46   Lafferty, 2007 UT 73, ¶ 12 (citation omitted).
   47  638 P.2d 537 (Utah 1981), superseded by constitutional amendment
as stated in Ellis, 2018 UT 2; see also Goins, 2017 UT 61, ¶ 44, --- P.3d ---
(explaining that courts had been following the rule set forth in
Brooks).
   48   Brooks, 638 P.2d at 541.
   49   UTAH R. APP. P. 23B(a).


                                      17
                              STATE v. RING
                          Opinion of the Court

to file an amended rule 23B motion within thirty days, provided the
amended motion complied with rule 23B.50
   ¶50 Because Mr. Ring failed to file an amended rule 23B motion
within the allotted thirty days, we dismiss his motion with prejudice.
Accordingly, his related ineffective assistance of counsel claim fails
because there is no indication on record that his trial counsel’s
performance was defective or that he was prejudiced.
    ¶51 In sum, because Mr. Ring failed to show that any of the
alleged failures of trial counsel constituted deficient performance
and resulted in prejudice, his ineffective assistance of counsel claim
fails.
                               Conclusion
    ¶52 We decline to consider the district court’s error in applying
the Shickles factors because our review is precluded under the invited
error doctrine. We also hold that the district court did not abuse its
discretion in admitting evidence of Mr. Ring’s prior acts of child
molestation, because the prior acts were properly admissible under
rules 404(c) and 403. And finally, we hold that Mr. Ring’s ineffective
assistance of counsel claim fails because he did not show that any of
the alleged deficiencies constituted deficient performance and
resulted in prejudice. We therefore affirm Mr. Ring’s conviction.




_____________________________________________________________
   50 In doing so, we invited him to consider the test this court
established in State v. Griffin, 2015 UT 18, --- P.3d ---. In that case, we
set out four requirements for rule 23B motions. First, the motion
must allege facts that are not already in the record. Id. ¶ 18. Second,
the motion must allege nonspeculative facts that are supported by an
accompanying affidavit. Id. ¶ 19. “[S]peculative allegations are those
that have little basis in articulable facts but instead rest on
generalized assertions.” Id. Third, the allegations of fact must show
deficient performance. State v. Gunter, 2013 UT App 140, ¶ 16, 304
P.3d 866. This means that “the nonspeculative facts must focus on
why counsel’s performance was deficient.” Id. (citation omitted).
Finally, the allegations of fact must demonstrate prejudice. Id. In
other words, the allegations of fact must demonstrate “that the result
would have been different had counsel’s performance not been
deficient.” Id. (citation omitted).


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