                    AMENDED OPINION*

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

                               2014 UT 1


                                 IN THE
      SUPREME COURT OF THE STATE OF UTAH
                          STATE OF UTAH,
                       Plaintiff and Petitioner,
                                    v.
                      RAYMOND L. BEDELL,
                    Defendant and Respondent.

                          No. 20120692
                      Filed January 24, 2014

           On Certiorari to the Utah Court of Appeals

                   First District, Logan Dep‘t
                The Honorable Thomas Willmore
                         No. 061100879

   Sean D. Reyes, Att‘y Gen., Marian Decker, Asst. Att‘y Gen.,
                  Salt Lake City, for petitioner
       Kenneth E. Lyon Jr., Pocatello, ID, for respondent

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


   ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
                        INTRODUCTION
   ¶ 1 The State challenges the Utah Court of Appeals‘ reversal
of defendant Dr. Raymond Bedell‘s conviction of misdemeanor
sexual battery. The State asserts that a panel majority of the court
of appeals erred when it reversed Dr. Bedell‘s conviction on the
basis of ineffective assistance of counsel and plain error on the


   * The court is remanding to the Court of Appeals to address an
additional argument that was not presented to this court. See
paragraphs 1, 16, 17, 19, 27.
                          STATE v. BEDELL
                       Opinion of the Court

part of the district court. Because of the manner in which we
resolve this case, we do not address the State‘s argument that a
gap in the record of a criminal trial should always be interpreted
in favor of the State. We reverse the decision of the court of
appeals, vacate that opinion, and remand to the court of appeals
to address Dr. Bedell‘s argument that the trial court should have
granted a new trial based on newly discovered evidence.
                         BACKGROUND
    ¶ 2 On October 1, 2003, S.B. first consulted Dr. Bedell about
chronic knee and ankle pain. Dr. Bedell was a physician
specializing in pain management. According to S.B., during this
initial visit Dr. Bedell fondled her breasts for several minutes,
made inappropriate comments, asked what medication she
wanted, and prescribed what she requested. S.B. also claims that
Dr. Bedell made additional inappropriate comments to her at a
later visit and pressed his erect penis into her leg.
    ¶ 3 S.B. continued to see Dr. Bedell and receive prescriptions
from him over a three-month period from October 2003 to January
2004. Dr. Bedell prescribed her thirty days of narcotics at each
visit. S.B. was not following dosage instructions. S.B. would
finish the thirty-day prescription within a week and would call
Dr. Bedell‘s office for another. There was ―[n]ot a doubt in [S.B.‘s]
mind‖ that Dr. Bedell knew that she was not following dosage
instructions. Dr. Bedell eventually terminated S.B. as a patient.
She claimed it was because she would not have sex with him.
S.B. continued to abuse prescription medication after she stopped
seeing Dr. Bedell.
    ¶ 4 In September 2006, Cache County charged S.B. with four
counts of fraudulently obtaining a controlled substance, a third-
degree felony. She openly admitted to the investigating officer
that she was addicted to prescription painkillers and that she was
violating the terms of the probation she was still under. As a
result, S.B. was arrested and jailed. While in jail, S.B. met another
inmate, and in the course of conversation, discovered that they
were both ―pill poppers.‖ The inmate told S.B. about allegations
of sexual abuse against Dr. Bedell that had been reported in the
local paper. S.B. told the inmate that she believed that Dr. Bedell
had also touched her inappropriately. The inmate encouraged
S.B. to report the abuse.



                                 2
                         Cite as: 2014 UT 1
                        Opinion of the Court

    ¶ 5 S.B. reported that Dr. Bedell had touched her
inappropriately, and a detective from the Logan City Police
Department investigated. The detective ―made it absolutely clear
in the interview‖ that no promises were made to S.B. and ―there
were going to be no promises made to her by [the detective] or by
the county attorney, and that what she was about to say was to
[have no effect] on her charges.‖ Dr. Bedell was charged with two
counts of forcible sexual abuse, a second-degree felony, as a result
of S.B.‘s allegations.
    ¶ 6 Before trial, the State moved to admit evidence of other
sexual misconduct allegations against Dr. Bedell by nine other
women, including six former patients. The district court ruled
after argument that the evidence was admissible under Utah
Rules of Evidence 402 and 404(b), but that it was inadmissible
under a rule 403 balancing. The court informed the prosecution
that it could ―resubmit some or all of the 404(b) evidence at trial, if
Defendant ‗opens the door‘ to the same.‖
    ¶ 7 In his opening statement at trial, defense counsel asserted
that S.B. brought her allegations only after learning from the other
jail inmate that Dr. Bedell was being investigated, and that S.B.
hoped to use her accusation against Dr. Bedell to gain favorable
treatment in her own case:
         [A]ccording to her, she‘s in jail and an inmate
         there starts talking to her about Dr. Bedell,
         supposedly. Somehow Dr. Bedell just comes
         up. And supposedly, according to [S.B.], this
         inmate tells her that Dr. Bedell is being
         investigated for allegations of sexual
         impropriety against patients. And that he‘s
         looking for witnesses, good looking women
         witnesses is what [S.B.] says. And so [S.B.]
         calls the police or gets in touch with the police.
Counsel continued to question the investigation, claiming that the
investigating detective ―didn‘t do virtually anything to investigate
[S.B.], her background, review her probation file, nothing. This is
a case boiling down to—because there was already an
investigation going on, the fact that [S.B.] made allegations against
Dr. Bedell was enough. That was it.‖ The defense concluded its
opening statement by stating that S.B. had fabricated the
allegations while in jail in order to receive favorable treatment in

                                  3
                           STATE v. BEDELL
                        Opinion of the Court

her case, saying, ―It‘s not about Dr. Bedell sexually assaulting
[S.B.] because he did not.‖
    ¶ 8 The prosecution then called the investigating detective.
The prosecutor referenced the defense‘s opening statement and
elicited testimony from the detective about how S.B. had come to
learn about the ongoing investigation of Dr. Bedell. The
prosecutor clarified that the detective had informed S.B. that she
would not receive immunity of any kind in exchange for her
testimony. The detective stated that S.B. ―knew things, these
consistencies or markers that . . . gave her credibility . . . and . . .
led me to believe that the touching had occurred.‖
    ¶ 9 During his cross-examination of the detective, defense
counsel continued to disparage the State‘s investigation into S.B.‘s
claims. While the defense was asking the detective why he had
not asked S.B. for the name of the inmate who informed her of the
investigation or where that conversation occurred, the prosecutor
asked to approach the bench, saying, ―I think something needs to
be said here.‖ The ensuing bench conference was not recorded.
    ¶ 10 After the conference, defense counsel resumed his cross-
examination of the detective and continued to challenge S.B.‘s
credibility and the investigation. Counsel asked the detective if he
did not thoroughly investigate the allegations made by S.B.
―because you had those other allegations and you had done all
that work of investigation.‖ The detective stated that Dr. Bedell‘s
other accusers shared ―certain markers or similarities between
those allegations that are very, very common with this case,‖ and
that when he interviewed S.B., ―she started to hit those markers
that all the others had.‖ The detective explained that the common
markers in S.B.‘s story ―bring a person to a conclusion that she‘s
telling the truth.‖
    ¶ 11 Without objection by defense counsel, the prosecutor
then elicited testimony during redirect examination of the
detective that there had been an investigation into six other
allegations of sexual misconduct against Dr. Bedell by former
female patients. The women all reported similar incidents:
Dr. Bedell abused each victim on their first visit while he was
alone with them, he made similar comments to the women who
were of similar ages, and he prescribed narcotics for each.
    ¶ 12 Later in the proceedings, while discussing jury
instructions outside the presence of the jury, the prosecution

                                   4
                        Cite as: 2014 UT 1
                       Opinion of the Court

requested a limiting instruction for the evidence related to the
other allegations against Dr. Bedell. The prosecutor asked that the
court instruct the jury that evidence of other sexual misconduct by
Dr. Bedell ―is solely for the purpose of testing whether [S.B.] could
have created the story‖ so ―that the jury will understand clearly
that they are not deciding the truth of the other allegation[s].‖
Defense counsel stated that he had no objection. After the court
expressed some concern, the prosecutor said he would discuss the
instruction in his closing argument to explain that the other sexual
misconduct evidence was presented ―to respond to the
defendant‘s strategy of claiming that [S.B.] ginned up this story or
fabricated it.‖ The court replied, ―I think that‘s appropriate.‖
Defense counsel did not object to the prosecutor‘s proposed
argument.
   ¶ 13 In his closing statement, the prosecutor explained the
purpose of the evidence of other allegations of sexual misconduct
by Dr. Bedell that had been elicited during his redirect
examination of the investigating detective. The prosecutor told
the jury,
        There was testimony in this case that there are
        similar allegations, and [Dr. Bedell‘s] own
        lawyer talked about the fact that there will be a
        jury trial on that later. You can‘t use what you
        don‘t know about to convict a man. You can‘t
        do that. This case is about [S.B.]. There‘s a
        reason why we have been allowed to refer to
        those other cases. If you will think back, I
        didn‘t bring them up. During the opening
        argument, it became clear that the argument
        would be that [S.B.] created this story, that she
        dreamed it up in order to get herself out of jail.
        Part of the defendant‘s theory required them to
        tell you that there were already other stories
        out there about Dr. Bedell. You will recall I
        didn‘t bring that up. That was a strategic
        decision made by the defendant. But once he
        started     talking    about     those    other
        investigations, I was allowed to produce the
        evidence that showed there were . . . some
        hidden markers that nobody knew about that


                                 5
                          STATE v. BEDELL
                       Opinion of the Court

        made it clear that she could not have made up
        her story. That‘s the purpose why those other
        bad acts are referred to here. And it‘s the only
        purpose.
The prosecutor directed the jury‘s attention to the corresponding
limiting instruction and stated that it referred to ―the evidence of
the other bad acts.‖ The prosecutor explained that the jury could
consider the evidence ―for the purpose of judging the police
investigation, and . . . for the credibility of any witness.
Principally for the purpose of judging the credibility of [S.B.]. For
the purpose of deciding whether she fabricated the story. That‘s
why the evidence is there.‖ The prosecutor admonished the jury
not to consider the evidence ―for the purpose of whether the
defendant‘s a bad guy and you ought to string him up on this
charge or that. . . . That‘s what it means, a limited purpose. Treat
him fairly.‖
    ¶ 14 In his closing argument to the jury, defense counsel
alleged that the investigating detective had discussed the
allegations of the other women with S.B., thereby tainting her
report. Counsel said, ―I mean, why not let the witness tell their
story, and then ask for clarification, if necessary and when
necessary,‖ and contended that ―the person hearing that
information very easily can assimilate the notion that something
should‘ve happened or did happen on the first visit.‖ He
described the case as coming down to ―whether or not someone
that knew of Dr. Bedell‘s plight would use that to their own
advantage when nothing happened to them. That‘s what you
have to decide. She knew he was being prosecuted.‖
   ¶ 15 The jury acquitted Dr. Bedell of the two charged felonies,
but convicted him of the lesser-included misdemeanor of sexual
battery. The district court imposed a 365-day jail term, of which
359 days were suspended, assessed a fine, 120 hours of
community service, and three years of probation. Dr. Bedell filed
a motion for a new trial, which was denied.
    ¶ 16 Dr. Bedell appealed to the Utah Court of Appeals. He
argued that the district court committed plain error and his trial
counsel was ineffective in allowing the investigating detective‘s
testimony on redirect examination about other allegations of




                                 6
                           Cite as: 2014 UT 1
                          Opinion of the Court

sexual misconduct against him (the 404(b) evidence). 1 Dr. Bedell
also argued that the trial court should have granted a new trial
based on newly discovered evidence.2 The State argued that Dr.
Bedell‘s basis for appeal presupposed that the district court‘s
pretrial ruling excluding the 404(b) evidence did not change
during the course of the trial. The State alleged that the record
supported an inference that the court revised its pretrial ruling
during the unrecorded bench conference.3 The State further
contended that the court of appeals ―should construe the lack of
record evidence regarding what happened during the bench
conference against [Dr.] Bedell by assuming the regularity of the
proceedings, i.e., by assuming that the district court‘s failure to
exclude the evidence was appropriate and supported by an off-
the-record reversal of its original ruling.‖4
    ¶ 17 A panel majority of the court of appeals reversed and
remanded for a new trial.5 The majority refused to apply the
presumption of regularity in favor of the State because it was ―the
State, not [Dr.] Bedell, that [sought] to support its argument by
relying on the incomplete portions of the record.‖6 The majority
determined there was ―no basis in the record for the trial court to
have reversed its original ruling, as there is nothing to indicate
that [Dr.] Bedell opened the door to the 404(b) evidence.‖ 7 The

   1   State v. Bedell, 2012 UT App 171, ¶ 7, 281 P.3d 271.
   2   Id. ¶ 7 n.2.
   3   Id. ¶ 10.
   4   Id.
   5  Id. ¶¶ 22–23 (Judge Davis authored the opinion, in which
Judge Christiansen concurred). Dr. Bedell also argued to the
court of appeals that it was error on the part of the district court
and his counsel ―to allow the lesser included class A
misdemeanor charge for sexual battery to appear on the verdict
form because the statute of limitations on that charge was two
years . . . and [S.B.] did not contact the police until three years
after the alleged abuse took place.‖ Id. ¶ 9. The court of appeals‘
panel agreed that was not error. Id. That issue is not before us on
certiorari review.
   6
       Id. ¶ 10.
   7   Id.

                                    7
                             STATE v. BEDELL
                          Opinion of the Court

majority accordingly held that the district court plainly erred and
counsel rendered ineffective assistance in allowing the 404(b)
evidence.8 Because the panel majority held ―the 404(b) evidence
was improperly elicited‖ and remanded on that ground,
Dr. Bedell‘s argument seeking a new trial based on newly
discovered evidence was not addressed.9
    ¶ 18 Judge Thorne dissented.10 He determined that the
defense‘s cross-examination of the investigating detective ―clearly
opened the door regarding the other allegations of sexual
misconduct.‖11 Judge Thorne also argued that Dr. Bedell‘s
counsel was not ineffective ―because there were sound strategic
reasons for allowing the prior accusation testimony to come in.‖12
Judge Thorne concluded that ―[Dr.] Bedell attempted to use the
404(b) evidence to his advantage in two distinct ways,‖ first, to
suggest the detective ―had uncritically accepted [S.B.]‘s
allegations,‖ and second, ―to suggest that [S.B.] was engaging in
copycat behavior, accusing [Dr.] Bedell of misbehavior because
she knew that he was already being accused by others.‖13 As a
result, Judge Thorne stated that he ―would affirm [Dr.] Bedell‘s
conviction.‖14
    ¶ 19 The State petitioned this court for certiorari. We granted
certiorari on two issues. First, whether the panel majority of the
court of appeals erred when it held the district court committed
plain error and that Dr. Bedell‘s counsel was ineffective. Second,
whether the panel majority of the court of appeals erred in its
construction and application of the general rule that record
inadequacies result in an assumption of regularity on appeal. We
have jurisdiction pursuant to Utah Code section 78A-3-102(5).




   8   Id. ¶¶ 10–22.
   9
       Id. ¶ 7 n.2.
   10   Id. ¶¶ 24–29 (Thorne, J., dissenting).
   11   Id. ¶ 27.
   12   Id. ¶ 28.
   13   Id.
   14   Id. ¶ 29.

                                     8
                            Cite as: 2014 UT 1
                           Opinion of the Court

                       STANDARDS OF REVIEW
     ¶ 20 On certiorari, we review the decision of the court of
appeals for correctness.15 A claim of ineffective assistance of
counsel ―raised for the first time on appeal presents a question of
law.‖16 ―To prevail [on a claim of ineffective assistance of
counsel], a defendant must show, first, that his counsel rendered a
deficient performance in some demonstrable manner, which
performance fell below an objective standard of reasonable
professional judgment and, second, that counsel‘s performance
prejudiced the defendant.‖17 To prevail on a claim of plain error,
it must be shown that ―(i) [a]n error exists; (ii) the error should
have been obvious to the trial court; and (iii) the error is harmful,
i.e., absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant, or phrased differently, our
confidence in the verdict is undermined.‖18 ―If any one of these
requirements is not met, plain error is not established.‖19
Dr. Bedell bears the burden of establishing both claims.20
                                ANALYSIS
    I. DR. BEDELL‘S COUNSEL CHOSE TO USE THE 404(b)
       EVIDENCE AND THEREFORE DID NOT RENDER
       INEFFECTIVE ASSISTANCE BY NOT OBJECTING
           TO THE STATE‘S USE OF THE EVIDENCE
    ¶ 21 During his opening statement in Dr. Bedell‘s trial,
defense counsel acknowledged that there were other allegations
against Dr. Bedell. Counsel used those allegations to argue that
the State had not thoroughly investigated S.B.‘s claims ―because
there was already an investigation going on.‖ Defense counsel
established a theme that S.B. had limited credibility and had only
reported her claims after she learned of an ongoing investigation,



   15   State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096.
   16   State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
   17State v. Arguelles, 921 P.2d 439, 441 (Utah 1996) (alteration in
original) (internal quotation marks omitted).
   18   State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
   19   Id. at 1209.
   20   State v. Litherland, 2000 UT 76, ¶ 8, 12 P.3d 92.

                                     9
                         STATE v. BEDELL
                      Opinion of the Court

in hopes that her claims would lead to favorable treatment in her
own criminal case.
    ¶ 22 The prosecution then responded to the allegations made
by defense counsel by eliciting information from the investigating
detective during his direct examination. The detective testified
that he believed S.B. because she knew nonpublic information that
mirrored the claims made by the other women. Defense counsel
did not object to this testimony. During defense counsel‘s cross-
examination of the detective, he further developed his defense
theory by openly questioning the thoroughness of the
investigation into S.B.‘s claims against Dr. Bedell. It was during
this cross-examination that the prosecutor asked to approach the
bench, saying, ―I think something needs to be said here.‖ After
that bench conference, and throughout the remainder of the trial,
defense counsel continued to argue his theory to the jury and did
not object to the prosecution‘s use of the evidence of other
allegations against Dr. Bedell. Defense counsel assented to the
prosecution‘s request for an instruction limiting the use of the
evidence and did not object during the State‘s closing argument
when the prosecutor explained the purpose of the evidence. The
defense then reiterated during its closing argument the theme that
S.B.‘s claims were unsubstantiated and the State‘s investigation
was inadequate, and that S.B. manipulated her knowledge of the
other allegations to try to gain a favorable outcome in her own
proceedings.
   ¶ 23 To prevail on a claim of ineffective assistance, Dr. Bedell
must demonstrate ―that counsel‘s performance was deficient, in
that it fell below an objective standard of reasonable professional
judgment,‖ and ―that counsel‘s deficient performance was
prejudicial—i.e., that it affected the outcome of the case.‖ 21 In
addition, we give wide latitude to trial counsel to make tactical
decisions and ―will not question such decisions unless there is no
reasonable basis supporting them.‖22


   21  State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
   22  State v. Crosby, 927 P.2d 638, 644 (Utah 1996); see also
Strickland, 466 U.S. at 689 (―Judicial scrutiny of counsel‘s
performance must be highly deferential. It is all too tempting for
a defendant to second-guess counsel‘s assistance after conviction

                                10
                           Cite as: 2014 UT 1
                          Opinion of the Court

    ¶ 24 Even without conjecturing whether the district court
revised its earlier 404(b) ruling during the unrecorded bench
conference (as the State asks us to do), the record as it exists
supports the conclusion that defense counsel made an affirmative
decision from the outset to utilize the 404(b) evidence to attack the
State‘s case and S.B.‘s credibility. This was particularly evident
during the defense‘s cross-examination of the investigating
detective, wherein counsel asked the detective about the other
allegations against Dr. Bedell. Once this occurred, the State was
permitted to use the 404(b) evidence to refute the defense theory23
and to rebut the defense‘s allegation of fabrication.24 This would
explain defense counsel‘s decision to not object to the State‘s use
of the same evidence to defend against Dr. Bedell‘s invocation of
the evidence.25 Further, the defense‘s strategy was likely effective,
as Dr. Bedell was acquitted of the more serious charges and
convicted of only the lesser-included misdemeanor.26

or adverse sentence, and it is all too easy for a court, examining
counsel‘s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable.‖).
   23See State v. Lopez, 626 P.2d 483, 485 (Utah 1981) (―[I]f the
defendant himself opens up the subject as to prior incidents, it
becomes subject to cross-examination and refutation the same
way as any other evidence.‖).
   24 See State v. Verde, 2012 UT 60, ¶ 47, 296 P.3d 673 (―In some
circumstances, evidence of prior misconduct can be relevant
under the so-called ‗doctrine of chances.‘ This doctrine defines
circumstances where prior bad acts can properly be used to rebut
a charge of fabrication. It is a theory of logical relevance that
‗rests on the objective improbability of the same rare misfortune
befalling one individual over and over.‘ Under this analysis, the
State suggests that evidence of past misconduct may ‗tend [ ] to
corroborate on a probability theory‘ that a witness to a charged
crime has not fabricated testimony, because it is ‗[un]likely . . .
that [several] independent witnesses would . . . concoct similar
accusations.‘‖ (alterations in original) (citation omitted)).
   25 See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (―Failure to
raise futile objections does not constitute ineffective assistance of
counsel.‖).
   26   See State v. Arguelles, 921 P.2d 439, 441 (Utah 1996) (―To show

                                   11
                             STATE v. BEDELL
                          Opinion of the Court

    ¶ 25 For these reasons, we disagree with the majority decision
of the court of appeals, which could ―see no basis in the record for
the trial court to have reversed its original ruling, as there [was]
nothing to indicate that [Dr.] Bedell opened the door to the 404(b)
evidence.‖27 We agree with Judge Thorne‘s dissenting opinion
that ―[Dr.] Bedell attempted to use the 404(b) evidence to his
advantage in two distinct ways‖: as a means to attack the State‘s
investigation and to suggest that S.B. ―was engaging in copycat
behavior, accusing [Dr.] Bedell of misbehavior because she knew
that he was already being accused by others.‖28 Therefore,
because there was a legitimate strategic decision for Dr. Bedell‘s
counsel to use the 404(b) evidence and his use of that evidence
allowed the State to similarly make use of the evidence, his
ineffective assistance of counsel claim must fail.29
 II. THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR
      BY NOT INTERVENING ON ITS OWN INITIATIVE
       TO FORECLOSE THE STATE FROM UTILIZING
                  THE 404(b) EVIDENCE
   ¶ 26 In light of the court‘s pretrial ruling that the State could
―resubmit some or all of the 404(b) evidence at trial . . . if
[Dr. Bedell] ‗open[ed] the door‘ to the same,‖ the court did not
commit plain error by allowing the evidence to come in at trial.
A district court is ―not required to constantly survey or second-
guess [a] nonobjecting party‘s best interests or trial strategy‖ and

prejudice under the second prong of the Strickland test, a
defendant must proffer sufficient evidence to support a
reasonable probability that, but for his counsel‘s unprofessional
errors, the result of the proceeding would have been different.‖
(internal quotation marks omitted)).
   27   State v. Bedell, 2012 UT App 171, ¶ 10, 281 P.3d 271.
   28   Id. ¶ 28.
   29 See State v. Kooyman, 2005 UT App 222, ¶ 43, 112 P.3d 1252
(―[I]n the event that we conclude that counsel‘s decision
amounted to reasonable trial strategy or tactics, regardless of the
outcome, counsel‘s decision will not qualify as ineffective
assistance.‖); State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993) (―[I]f
the challenged act or omission might be considered sound trial
strategy, we will not find that it demonstrates inadequacy of
counsel.‖).

                                    12
                           Cite as: 2014 UT 1
                          Opinion of the Court

is not expected to intervene in the proceedings unless the
evidence ―would serve no conceivable strategic purpose.‖30
Further, the court should take measures to avoid interfering with
potential legal strategy or creating an impression of a lack of
neutrality.31 Plain error does not exist when a ―‗conceivable
strategic purpose‘‖ exists to support the use of the evidence.32
Therefore, because defense counsel was not ineffective for failing
to object to the State‘s use of the 404(b) evidence, there was no
plain error on the part of the district court in not intervening to
foreclose the State‘s use of the evidence.
                            CONCLUSION
   ¶ 27 Based on the record as it exists before us, we conclude
that Dr. Bedell‘s trial counsel was not ineffective in referencing
and admitting the 404(b) evidence. And the district court did not
commit plain error in allowing the evidence to be presented.
Defense counsel strategically utilized that evidence as a basis for
the defense‘s theory that S.B. was not a credible witness and that
the State had not conducted an adequate investigation because
there were other charges already pending against Dr. Bedell. The
court did not err in allowing the State to rebut the defense‘s
theory by placing the defense‘s contentions in context.
Accordingly, we reverse the decision of the court of appeals,

   30  State v. Labrum, 925 P.2d 937, 939 (Utah 1996); see also State v.
Hall, 946 P.2d 712, 716 (Utah Ct. App. 1997) (―We . . . will decline
to consider a defendant‘s plain-error arguments if the alleged
errors reasonably resulted from defense counsel‘s conscious
decision to refrain from objecting, or if defense counsel led the
trial court into error.‖ (internal quotation marks omitted)).
   31 State v. Beck, 2007 UT 60, ¶ 16, 165 P.3d 1225 (―Impartiality,
both perceived and actual, is of particular importance in a
criminal case before a jury.‖); State v. Brown, 948 P.2d 337, 343
(Utah 1997) (―Circumstances like these are precisely why courts
are not required to constantly survey or second-guess the
nonobjecting party‘s best interests or trial strategy. If trial counsel
intentionally fails to object, the trial judge is put in the untenable
position of deciding whether to intervene and potentially interfere
with trial counsel‘s strategy or face review for plain error.‖
(internal quotation marks omitted)).
   32   Hall, 946 P.2d at 716 (quoting Labrum, 925 P.2d at 939).

                                   13
                         STATE v. BEDELL
                      Opinion of the Court

vacate that opinion,33 and remand to the court of appeals to
address Dr. Bedell‘s argument that the trial court should have
granted a new trial based on newly discovered evidence.




   33In doing so, we decline to rule on the State‘s argument that a
record gap should be interpreted in favor of the State.

                                14
