               This opinion is subject to revision before final
                     publication in the Pacific Reporter
                                2016 UT 3

                                  IN THE
      SUPREME COURT OF THE STATE OF UTAH

                           STATE OF UTAH,
                             Respondent,
                                  v.
                          ROLAND MCNEIL,
                              Petitioner.

                            No. 20130664
                        Filed January 6, 2016

           On Certiorari to the Utah Court of Appeals

                    Third District, Salt Lake
                 The Honorable Mark S. Kouris
                        No. 081400390

                           Attorneys:
   Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen.,
                 Salt Lake City, for respondent
   Joan C. Watt, E. Rich Hawkes, Salt Lake City, for petitioner

      JUSTICE DURHAM authored the opinion of this Court,
 in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
                 and JUSTICE HIMONAS joined.
        ASSOCIATE CHIEF JUSTICE LEE filed a concurrence.
JUSTICE PARRISH sat for oral argument. Due to her resignation from
        this court, however, she did not participate herein.
    JUSTICE JOHN A. PEARCE became a member of the Court on
    December 16, 2015, after oral argument in this matter, and
                 accordingly did not participate.

JUSTICE DURHAM, opinion of the Court:
                         INTRODUCTION
    ¶1   Petitioner Roland McNeil was convicted of assaulting
his co-worker. Mr. McNeil did not commit the actual assault—his
son Quentin did—but Mr. McNeil was charged as an accomplice
                         STATE v. McNeil
                       Opinion of the Court

because phone records showed that calls were made between his
phone and his son’s phone just before and after the assault.
     ¶2    At trial, the State relied on the phone records to prove
Mr. McNeil’s involvement. But the State did not introduce the
phone records directly into evidence; instead, it sought to
introduce preliminary hearing testimony about the records from a
detective who had died before trial. The defense objected, arguing
that the detective’s testimony about the records was hearsay. The
trial court expressed disagreement, and defense counsel
apparently acquiesced, saying “Okay, it’s not hearsay,” before
renewing the objection on other grounds. The testimony was
ultimately admitted, and the State relied on it heavily, presenting
little other evidence that the telephone calls occurred.
    ¶3     Ultimately, Mr. McNeil was convicted and decided to
appeal. Before the court of appeals, he argued again that the
testimony was hearsay—though on a different basis from the one
he argued below—and argued further that his lawyer’s objection
on this point had been so inadequate as to violate Mr. McNeil’s
right to the effective assistance of counsel. State v. McNeil, 2013 UT
App 134, ¶¶ 17, 25, 302 P.3d 844. The court of appeals rejected
these arguments, concluding that (1) Mr. McNeil’s counsel invited
the error in admitting the detective’s testimony and (2) any
ineffective assistance by defense counsel in objecting to the
admittance of the detective’s testimony was not prejudicial. Id.
¶¶ 23–24, 32. Mr. McNeil, on certiorari, asks us to reverse.
                         BACKGROUND
    ¶4    Mr. McNeil worked at Kennecott Mines in 2006 and
2007. He became friends with a co-worker and they began
carpooling to work together, but the arrangement did not last.
One day the two had a furious argument at work, leaving
Mr. McNeil so upset that he pounded the dashboard for the entire
forty-minute ride home. They never spoke again. Mr. McNeil told
his son Quentin about his conflict at work with his co-worker. He
also shared with Quentin a tape recording of his co-worker and
other individuals threatening Mr. McNeil. They threatened to cut
off Mr. McNeil’s fingers and throw him in a ditch. After hearing
the tape, Quentin became enraged and began stalking his father’s
co-worker. Quentin learned where he lived, what car and
motorcycle he drove, where his daughter worked, his opinion of
his future son-in-law, and that he did not trust banks and kept his
savings at home.


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   ¶5     Quentin eventually decided to confront his father’s co-
worker. One morning, he drove to his apartment complex and
waited for him to return from breakfast. When he arrived home,
Quentin asked him for a cigarette and a telephone while following
him to his apartment. The co-worker declined Quentin’s requests
and began to open the door to his apartment. As he was opening
the door, Quentin shoved him to the ground inside his apartment.
Quentin closed the door and began attacking him.
    ¶6   During the attack, Quentin used the information he had
gathered about his father’s co-worker both to scare him and to
attempt to locate cash. Quentin was not able to locate any cash,
but he stole jewelry and broke his victim’s nose and eight teeth.
Before leaving, Quentin threw him in his bathtub, saying, “big
daddy is going to let you live.”
    ¶7    When the police investigated the assault, they found
security footage showing that Quentin was talking on his mobile
phone as he entered the complex. The police then obtained phone
records that showed six telephone calls between Quentin and his
father on the morning of the attack. The police observed that these
calls included a fourteen-minute call that overlapped with the
time that Quentin entered the complex, and a thirty-five second
telephone call shortly after the attack. Based largely on this
evidence, Mr. McNeil was arrested and charged with aggravated
assault.
    ¶8     At Mr. McNeil’s preliminary hearing, the State called a
police detective who testified in detail regarding the times and
length of the six telephone calls that morning, relying on notes in
his case file based on his review of the phone records. At trial, the
State asked to read in the detective’s preliminary hearing
testimony because the detective had died since the preliminary
hearing.
    ¶9   Before the detective’s preliminary hearing testimony
was read to the jury, Mr. McNeil argued that the portion of the
testimony that related to the telephone calls should not be read.
He articulated through counsel a number of arguments for his
position. Defense counsel first argued against reading the
testimony regarding the telephone calls because he could not
cross-examine the witness. Counsel then claimed that the
telephone records were “neutral statements” but that these
“neutral statements” may not be used when they lead to
inappropriate inferences.


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                          STATE v. McNeil
                        Opinion of the Court

    ¶10 When counsel’s arguments were not immediately
accepted, counsel expanded the argument, saying that “[t]his is
hearsay at this point, this is hearsay. It’s a prior recorded
statement from a witness who is unavailable.” The trial court then
interjected, saying “Hold the phone here. Hearsay says an out-of-
court statement. This was in Court.” In response, counsel said,
“Okay, it’s not hearsay[;] it’s a neutral statement. I said it right the
first time. I did. I said it right the first time.” The trial court then
made its ruling:
       This is not hearsay. It’s a sworn statement under
       oath recorded, subject to cross[-]examination. If the
       statement did contain hearsay, we obviously would
       redact that. Both sides at this time are stipulating
       that in fact it doesn’t. [Defense counsel] is objecting
       on different terms than hearsay terms; therefore, we
       will say [the parties are] stipulating to the fact that
       it’s not hearsay. So that being said, it’s going to come
       in.
Based on this ruling, the testimony regarding the phone calls was
read to the jury.
    ¶11 After the prosecution rested, Mr. McNeil’s counsel
attempted to exclude the same portion of the detective’s
testimony by arguing that the testimony lacked the required
foundation. The trial court rejected counsel’s argument as
untimely, ruling for the State without hearing the State’s response
to the argument.
    ¶12 Mr. McNeil was convicted, and he appealed to the court
of appeals. He claimed that the trial court erred in failing to
exclude the detective’s testimony regarding the phone records.
State v. McNeil, 2013 UT App 134, ¶¶ 18–32, 302 P.3d 844. He
argued that the error constituted “plain error,” that is, an error
that can be addressed on appeal regardless of whether it was
preserved. Id. ¶ 24. He also argued that his counsel was
ineffective in not pursuing the hearsay objection, and that the
trial’s outcome may have been different but for counsel’s
ineffectiveness. Id. ¶ 25.
    ¶13 The court of appeals held that the plain error claim
failed because Utah courts do not review plain error claims when
counsel “invites” the error below. The court concluded that
defense counsel invited the error because the claim of hearsay was
made and then withdrawn. Id. ¶ 23. The court further ruled that,
even if defense counsel was ineffective in not pursuing the
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                       Opinion of the Court

hearsay objection, Mr. McNeil did not demonstrate that this lack
of an objection was prejudicial. Id. ¶¶ 25–32. The court affirmed
his conviction. Id. ¶ 72.
                    STANDARD OF REVIEW
   ¶14 The doctrines we are asked to address here—invited
error, plain error, and ineffective assistance of counsel—pertain
only to claims that are raised after the initial trial. See State v.
Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171; State v. Cram, 2002 UT 37,
¶ 4, 46 P.3d 230. These doctrines were raised for the first time in
the court of appeals. We are thus reviewing how the court of
appeals applied these doctrines. In doing so, we review the court
of appeals’ decision for correctness. State v. Levin, 2006 UT 50,
¶ 15, 144 P.3d 1096. This standard of review allows us to apply the
doctrines at issue here as if we were the first appellate court to
consider them.
                           ANALYSIS
    ¶15 We granted certiorari on two issues, and we consider
them in order. First, we address whether any error in admitting
the detective’s testimony was invited, concluding it was not
invited because there was no clear affirmative statement by
counsel inviting the court to err. Second, we address whether the
alleged error was prejudicial, and we conclude that even if the
trial court erred, the error did not prejudice Mr. McNeil.
                I. THERE IS NO INVITED ERROR
    ¶16 Mr. McNeil claims that the trial court plainly erred in
not excluding the testimony regarding the content of the phone
records as hearsay testimony. Before we address his plain error
claim, we first review the State’s argument that any error here was
invited and thus not reviewable.
    ¶17 Under the doctrine of invited error, an error is invited
when counsel encourages the trial court to make an erroneous
ruling. The rule discourages “parties from intentionally
misleading the trial court so as to preserve a hidden ground for
reversal on appeal” and gives “the trial court the first opportunity
to address the claim of error.” State v. Geukgeuzian, 2004 UT 16,
¶ 12, 86 P.3d 742 (internal quotation marks omitted).
   ¶18 In examining whether counsel invited error, we have
traditionally found invited error when the context reveals that
counsel independently made a clear affirmative representation of
the erroneous principle. See, e.g., State v. Hamilton, 2003 UT 22,
¶ 54, 70 P.3d 111 (holding that invited error exists when counsel
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                          STATE v. McNeil
                        Opinion of the Court

“either by statement or act, affirmatively represent[s] to the court”
an incorrect statement of law). When we invoke this doctrine, we
encourage counsel not to lead the trial court “into committing the
error.” Id. (citation omitted); see also State v. Lucero, 220 P.3d 249,
256 (Ariz. Ct. App. 2009) (noting a distinction between affirmative
actions to “initiate the error” and merely acquiescing to the error).
   ¶19 We have held, however, that if the trial court—not
counsel—is responsible for leading a courtroom discussion into
error, any resulting error is not invited. 1 In State v. Richardson,
defense counsel sought to admit testimony both as affirmative
evidence and to rebut any contradictory evidence that the State
might choose to put on. 2013 UT 50, ¶ 15, 308 P.3d 526. After
discussion, the trial court allowed the defendant to use the desired
evidence only for the purpose of rebutting any contradictory
evidence. Id. ¶ 17.
   ¶20 The defendant was convicted and appealed, arguing
before us that the testimony was categorically admissible. Id. ¶ 18.

   1 In State v. Medina, a jury indicated that it could not come to a
unanimous verdict. 738 P.2d 1021, 1022 (Utah 1987). The trial
judge drafted a modified Allen charge and asked both the
prosecution and defense counsel whether they had any objections
to giving the additional instruction to the jury. Id. Defense counsel
read the instruction and stated that she had no objection. Id. The
defendant was convicted and he challenged the Allen instruction
on appeal. Id. at 1022–23. In determining whether to review the
instruction, this court interpreted the equivalent of the current
rule 19(e) of the Utah Rules of Criminal Procedure, which states
that “[u]nless a party objects to an instruction or the failure to give
an instruction, the instruction may not be assigned as error except
to avoid a manifest injustice.” We held that the manifest injustice
exception to rule 19(e) may not be applied where defense counsel
“actively represented to the court that she had read the instruction
and had no objection to it.” Id. at 1023.
    Although Medina never applied or mentioned the invited error
doctrine, we have suggested in subsequent cases that the invited
error doctrine is relevant to the application of the manifest
injustice exception to rule 19(e). See State v. Anderson, 929 P.2d
1107, 1109 (Utah 1996); State v. Bullock, 791 P.2d 155, 158–59 (Utah
1989). To the extent that Medina suggests that acquiescence to an
alleged error initiated by the trial court bars appellate review, we
repudiate it.

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                       Opinion of the Court

In response, the State erroneously argued that the defendant
“sought only a ruling that would allow him to present the
evidence on cross-examination if prior testimony had rendered it
relevant.” Id. ¶ 35 (internal quotation marks omitted). We
disagreed with the State because the defendant originally made
the broader argument, and only later focused on the narrow
argument. Id. ¶¶ 37–38. We concluded that the State was incorrect
in classifying counsel’s choice as invited error because the
defendant did not “paint himself into his current corner.” Id. ¶ 39.
    ¶21 In this case, the State argues for a definition of invited
error much broader than that in our caselaw. The State claims that
the invited error doctrine is triggered by the fact that defense
counsel “did not dispute” that the statement was not hearsay. The
State also terms counsel’s conduct as an “affirmative
acquiescence.” The State argues that if counsel does not offer a
proper objection when asked to do so by the trial court, the error
is invited. The State’s argument is unpersuasive because an error
of this sort by the trial court is not invited but merely
unpreserved, and thus remains subject to plain error review. See
3B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 856 (4th ed. 2013) (noting that plain error “is
[ordinarily] invoked by counsel who, in preparing an appeal,
discover what they consider to be an error to which no objection
was taken below”). Because the State’s understanding of invited
error would erode the doctrine of plain error review and is
contrary to our present caselaw, we reject this broad definition of
invited error.2
    ¶22 The State also offers a narrower argument, based on the
fact that after the trial court stated that the evidence was not
hearsay, defense counsel said, “Okay, it’s not hearsay.” The State

   2  We acknowledge that we have not always been consistent in
this distinction between invited error and plain error. In State v.
Gleason, for example, we somewhat cryptically stated that an
“eleventh hour request [for a jury instruction] should be
canvassed in an atmosphere of invited error.” 405 P.2d 793, 795
(Utah 1965). And in State v. Stone, we held that if a defendant
“fails to preserve the record” by making an evidentiary objection,
“it is obvious that one easily could invite error by silence.” 422
P.2d 194, 195 (Utah 1967). To the extent that these cases contradict
our holding that counsel does not invite error through mere
silence, we overrule them.

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                          STATE v. McNeil
                        Opinion of the Court

argues this constitutes invited error. But the context of counsel’s
arguments reveals otherwise. Defense counsel sought to exclude
the detective’s testimony about the phone records on a number of
different grounds: (1) the lack of an ability to cross-examine the
detective at trial, (2) the argument that neutral statements could
be prejudicial to Mr. McNeil, and (3) hearsay. Counsel did not
state that the records were not hearsay until the trial court insisted
that the detective’s testimony was not hearsay. Until the trial
court’s statement, counsel argued exactly the opposite.
    ¶23 As in Richardson, Mr. McNeil “did not paint himself into
his current corner. The trial court did that by its interpretation of
our rules of [evidence]. That interpretation . . . was not invited by
[Mr. McNeil].” Richardson, 2013 UT 50, ¶ 39. We reject the State’s
arguments and hold that Mr. McNeil did not invite the alleged
error in this case because his counsel withdrew the hearsay
argument due to actions of the trial court, and because counsel’s
failure to object to a trial court’s actions is not invited error in this
context.
II. MR. MCNEIL WAS NOT PREJUDICED BY THE ADMISSION
            OF THE DETECTIVE’S TESTIMONY
    ¶24 As noted above, Mr. McNeil argues that the trial court
erred by failing to exclude the detective’s testimony about the
telephone records. Because Mr. McNeil did not preserve his
objection to this error, we may review it only if it falls under one
of the exceptions to the preservation rule. See State v. Low, 2008 UT
58, ¶ 19, 192 P.3d 867. Two such exceptions are at issue here: plain
error and ineffective assistance of counsel.
    ¶25 Proving plain error or ineffective assistance requires
proving that any errors by the trial court (under plain error
review) or counsel (under an ineffective assistance of counsel
claim) prejudiced the defendant. 3 Because both claims require a
showing of prejudice, if we conclude that the errors alleged by
Mr. McNeil were not prejudicial, Mr. McNeil’s claims of
ineffective assistance of counsel and plain error fail.



   3   The prejudice inquiry is sometimes referred to as a
harmfulness inquiry. State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(listing elements of plain error review as “(i) [a]n error exists; (ii)
the error should have been obvious to the trial court; and (iii) the
error is harmful” (alteration in original) (citation omitted)).

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                        Opinion of the Court

   ¶26 We first explain the standard for prejudice review under
plain error and ineffective assistance of counsel. We then apply it
to Mr. McNeil’s claims of error.
              A. An Error Is Prejudicial if It Undermines
                   Our Confidence in the Outcome
   ¶27 Our method for evaluating whether an alleged error is
prejudicial begins with Strickland v. Washington, 466 U.S. 668
(1984). The standard set forth in Strickland is that
       [t]he defendant must show that there is a reasonable
       probability that, but for counsel’s unprofessional
       errors, the result of the proceeding would have been
       different. A reasonable probability is a probability
       sufficient to undermine confidence in the outcome.
Id. at 694; see also State v. Lenkart, 2011 UT 27, ¶ 38, 262 P.3d 1. This
test does not require the State to prove that there are no
conceivable facts under which the alleged error could have led to
a different result. Strickland, 466 U.S. at 693 (“It is not enough for
the defendant to show that the errors had some conceivable effect
on the outcome of the proceeding. Virtually every act or omission
of counsel would meet that test . . . .”). Rather, the test requires a
finding of prejudice only when our confidence in the verdict is
undermined.
    ¶28 Defendant makes two arguments regarding our
precedent’s conception of prejudice. First, he argues that we
should have two different prejudice tests, one for plain error
claims and one for ineffective assistance of counsel claims.
Second, he argues that the State bears the burden of proving there
was no prejudice. We address each argument in turn.
    ¶29 Mr. McNeil’s first argument—that our test for prejudice
under plain error review should differ from the one articulated by
Strickland—fails to acknowledge our contradictory precedent. We
have held that the prejudice test is the same whether under the
claim of ineffective assistance or plain error. State v. Munguia, 2011
UT 5, ¶ 13, 253 P.3d 1082; State v. Dunn, 850 P.2d 1201, 1225 (Utah
1993). Mr. McNeil does not even acknowledge this precedent, and
we reject his argument.
    ¶30 Second, Mr. McNeil argues that the State bears the
burden of proving that an error was not prejudicial. This
argument is incorrect under both federal and state law. Under
Strickland, the responsibility to prove that confidence in the
verdict is undermined rests with the defendant. 466 U.S. at 693.
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                        STATE v. McNeil
                      Opinion of the Court

(“Conflict of interest claims aside, actual ineffectiveness claims
alleging a deficiency in attorney performance are subject to a
general requirement that the defendant affirmatively prove
prejudice.”). Our caselaw has similarly stated that a defendant
who appeals from a conviction must show that there is a
“reasonable probability” that, but for the error, the outcome
would have been different. State v. Moore, 2012 UT 62, ¶ 17, 289
P.3d 487.
             B. Mr. McNeil’s Prejudice Arguments Fail
   ¶31 As applied here, our prejudice analysis asks whether we
remain confident that the verdict would be the same had the
detective’s testimony regarding the phone records been excluded.
In pursuing this analysis, we note first that the State does not
dispute the importance of the phone records to the verdict. The
records were nearly the only evidence of the phone conversations
between Mr. McNeil and Quentin on the morning of the assault,
and the phone conversations themselves were powerful evidence
that Mr. McNeil knew what Quentin was doing. Had the jurors
not known about the content of the phone records, they would
have been much more likely to doubt that Quentin was acting on
Mr. McNeil’s instructions or encouragement.
    ¶32 Thus, the question we must answer is whether, if the
detective’s testimony about the records had been excluded, the
jurors would have been informed about the content of the records
by some other means. Our answer to this question proceeds in
three steps. First, we consider (and reject) Mr. McNeil’s argument
that we should assume for purposes of the prejudice analysis that
the telephone records would not have been admitted at all. We
next answer whether we are confident that evidence of the phone
calls both existed and would have been admitted absent the
detective’s testimony. Finally, we examine whether we are
confident that this alternative evidence would have matched the
detective’s testimony.
   ¶33 Mr. McNeil argues that we should assume for purposes
of the prejudice analysis that the telephone records would not
have been admitted at all. He asserts, in effect, that we cannot
hypothesize about what the State might have done if the trial
court had excluded the detective’s testimony about the phone
records.
   ¶34 In support of this argument, Mr. McNeil relies on State v.
Moore, 2012 UT 62, 289 P.3d 487. In Moore, the defendant was
accused of showing a pornographic video to a teenage boy and
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                       Opinion of the Court

sexually abusing him. Id. ¶¶ 1–5. It was unclear whether the
defendant committed the crime in 2002 or 2003. Had the incident
taken place in 2002, the defendant would have been guilty of both
the crime of child sex abuse and the crime of showing
pornography to a minor; had it taken place in 2003, he would only
have been guilty of showing pornography to a minor. Id. ¶ 4. At
trial, defense counsel never raised the issue of what year the crime
took place. The defendant was convicted on both counts. Id. ¶ 8
     ¶35 On appeal, the court of appeals reversed both charges.
Id. ¶ 10. On certiorari, the State argued that the pornography
charge should not have been reversed because the date of the
crime was irrelevant to whether the defendant was guilty of
showing pornography to a minor. Id. ¶ 13. The State argued that,
had the issue been raised, the prosecution could have simply
changed the year stated in the complaint and the jury would have
still convicted the defendant. Id.
   ¶36 We concluded in Moore that, if the State had been forced
to amend the complaint, defense counsel’s strategy could have
been different. We explained that “[d]epending on which of many
paths was chosen, there were several possible outcomes, some of
which may have resulted in conviction, and some of which may
have resulted in acquittal.” Id. ¶ 19. We held that it would be
inappropriate to uphold the conviction because the defendant had
“shown that there is a reasonable probability that the result of the
proceeding would have been different.” Id. ¶ 21.
    ¶37 Here, Mr. McNeil argues that, just as we did not permit
the State in Moore to assert on appeal that it could have amended
its complaint, we cannot permit the State in this case to assert on
appeal that the telephone records would have been admitted even
if the detective’s testimony would have been excluded. We
disagree. The Moore court did not hold that appellate courts may
never speculate about how the trial would have been different
had the error not occurred; instead, it engaged in such speculation
itself and concluded that, because amending the complaint would
have opened up new strategies for the defense, it could not be
confident that the trial would still have resulted in conviction. As
nothing in our caselaw requires us to assume that the State would
not have presented alternative evidence, we consider whether the
phone records would likely have been admitted in some other
form if the trial court had excluded the detective’s testimony.
   ¶38 Mr. McNeil argues that it is not entirely clear whether
the telephone records even existed. We disagree. Based on the

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                       Opinion of the Court

record before us, there is ample evidence that the records existed. 4
The record shows that during discovery, defense counsel
requested copies of several pieces of evidence, including all the
telephone records that the State had in its possession from Mr.
McNeil’s or Quentin’s telephones the day of the attacks. The
State’s response to the discovery request enclosed “all telephone
records in [the] possession of the state.”5 The State’s response also
indicated that it was not in possession of several other items
requested by the defense. Since the State both claimed to send
copies of the requested phone records and identified several items
that it did not send, we can infer that the State had possession of
the telephone records.
    ¶39 Having determined that we are confident the telephone
records existed, we next consider whether the State would have
provided a proper foundation for their admission under our rules
of evidence. Foundation for admitting telephone records can be
laid in a number of ways. See UTAH R. EVID. 901, 902; see also
United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir. 2011)
(discussing generally the admissibility of cell phone records).
However, it appears that, aside from the detective’s testimony, the
State intended to rely on just one of these ways. The State’s chosen
method is outlined in Utah Rules of Evidence 901(b)(1), which
allows for a foundation to be laid by the “[t]estimony of a
[w]itness with [k]nowledge” that the records are what they say
they are. The State prepared to provide this foundation by issuing
a subpoena to cell phone service provider Cricket
Communications and by stating prior to trial that it “may or may
not” call a witness to testify from Cricket Communications.
   ¶40 Mr. McNeil argues that because the State never provided
foundation for the phone records, we cannot infer that it would
have provided a witness able to verify the actual phone records.
We disagree because the State stated before trial that it had two
separate paths for admitting the telephone records, and the first

   4  We acknowledge that at oral argument, Mr. McNeil’s
appellate counsel—while certainly well prepared—believed that
the record did not contain any discovery requests regarding the
phone records, and the State did not dispute that issue. The record
contradicts this claim.
   5 As is customary, the trial court did not receive a copy of the
records during discovery. See UTAH R. CIV. P. 34 (articulating no
requirement to file all discovery with the court).

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                       Opinion of the Court

one it tried—the detective’s testimony about the records—
succeeded. It is obvious why the State did not try the second path
of introducing the telephone records through the Cricket
employee’s testimony: it was unnecessary.
    ¶41 Mr. McNeil argues, however, that if a witness had been
able to provide a foundation for the phone records, the State
would have indicated as much during trial. He argues in
particular that counsel should have indicated how he was going
to provide foundation both when the hearsay objection was raised
and when the untimely foundation objection was raised.
    ¶42 We disagree with Mr. McNeil’s arguments. It seems
implausible to us that counsel for the State would have indicated
how he would provide foundation at the points Mr. McNeil
mentions, for a simple reason: when the two potentially relevant
arguments were made—hearsay and foundation—the trial court
rejected the arguments without giving counsel for the State the
opportunity to respond. The record shows that in order to explain
how it would have laid a foundation, the State would have had to
interrupt either defense counsel’s argument or the judge’s. We do
not expect this of counsel, and we conclude that Mr. McNeil’s
assertion that we must reverse because the State did not articulate
a method of laying foundation at trial is incorrect.
    ¶43 Even if the telephone records existed and a foundation
could have been provided, we must reverse if the properly
admitted evidence might have raised new arguments for the
defense. See Moore, 2012 UT 62, ¶¶ 17–18. In this respect, Mr.
McNeil argues that the records might have been contrary to the
detective’s testimony and thus, had the actual phone records been
admitted, he might have had stronger arguments about their
relevance or value as proof of guilt. Notably, he does not argue
that the outcome would have been different if the phone records
had been admitted but matched the detective’s testimony about
their contents.
    ¶44 We disagree with Mr. McNeil’s contention that the
records would have revealed different information. Since we have
inferred above that the telephone records existed and that defense
counsel had a copy of the records, it seems all but certain that
defense counsel would have found a way to admit the telephone
records if counsel’s copy of them had contradicted the detective’s
testimony. This is sufficient for us to conclude that there is not a
reasonable probability of the records differing from the testimony
about them offered by the prosecution.

                               – 13 –
                        STATE v. MCNEIL
              ASSOCIATE CHIEF JUSTICE LEE, concurring

    ¶45 As we are confident that the phone records would have
been admitted and would not have raised additional arguments
for Mr. McNeil, we hold that Mr. McNeil was not prejudiced by
any error at trial.
                         CONCLUSION
   ¶46 We hold that defense counsel’s withdrawal of the
hearsay argument at trial was not invited error. But we also hold
that the error Mr. McNeil alleges on appeal was not prejudicial.
We therefore affirm.

ASSOCIATE CHIEF JUSTICE LEE, concurring:
    ¶47 I concur in the majority opinion as far as it goes. I write
separately, however, to note my continuing objection to the
standard set forth in the majority opinion in State v. Moore, 2012
UT 62, 289 P.3d 487, and to register my vote to overrule that
decision. I applaud the court in this case for giving a limiting
construction to the Moore standard for assessing prejudice on a
claim for ineffective assistance of counsel. See supra ¶ 37. But in
my view that is not enough. We should openly repudiate Moore.
Unless and until we do so, it will stand as a potential source of
confusion in this area.
    ¶48 The majority opinion in Moore appeared to erase the
burden of proving prejudice—of establishing a substantial
likelihood of a more favorable verdict in the absence of counsel’s
ineffectiveness—in cases involving “speculation” as to what
“might have” happened absent counsel’s ineffective assistance.
Moore, 2012 UT 62 ¶ 21. Mr. Moore failed to present any proof or
even argument as to how his case might have proceeded if his
counsel had performed effectively. Yet the majority nonetheless
concluded that he had “shown that there [was] a reasonable
probability that the result of the proceeding would have been
different.” Id. And it appeared to base that conclusion on its
concern that the likely outcome was a matter of “speculation,”
given that it was “unclear” how the defense might have
proceeded in the alternative and “unclear how the jury” might
have decided the matter. Id.
    ¶49 That standard cannot stand. As I noted in my dissent in
Moore, binding federal precedent requires a claimant asserting
ineffective assistance to carry the burden of proving prejudice—of
establishing, in other words, a substantial probability of a
different outcome absent counsel’s missteps. See id. ¶ 29 (Lee, J.,
                              – 14 –
                        Cite as: 2016 UT 3
              ASSOCIATE CHIEF JUSTICE LEE, concurring

dissenting) (highlighting problems with the majority’s standard
and citing U.S. Supreme Court authority that is incompatible with
it). That standard, moreover, necessarily requires an analysis of
the hypothetical—of what “might have” happened if counsel had
been effective, and of a “substantial” likelihood that the outcome
would have been more favorable. See Harrington v. Richter, 562
U.S. 86, 111–12 (2011) (explaining that a Strickland claimant must
establish a “substantial” “likelihood of a different result”). The
prospect of “speculation” as to an alternative approach at trial is
thus no basis for excusing a Strickland claimant from carrying his
burden of proving prejudice; that, in fact, is the essence of the
burden. 1
    ¶50 The majority in this case, to its credit, rightly reaches this
same conclusion. It says that “nothing in our caselaw” forecloses
hypothetical analysis of what “would likely have” happened
absent counsel’s missteps. Supra ¶ 37. And it reinforces that the
Strickland claimant’s burden of proving prejudice must be
centered on such questions. Importantly, the majority gives a


   1 See Cullen v. Pinholster, 563 U.S. 170, 200–02 (2011) (affirming
the California Supreme Court’s dismissal of an ineffective
assistance of counsel petition, and finding that defendant had
failed to carry his burden of proving prejudice based on analysis
of the prosecution’s likely response in the hypothetical event that
counsel had fulfilled his duty); Wong v. Belmontes, 558 U.S. 15, 19–
20 (2009) (per curiam) (reversing lower court decision vacating
murder conviction on grounds of ineffective assistance at
sentencing phase; emphasizing the defendant’s burden of
showing “a reasonable probability that . . . the result of the
proceeding would have been different,” while assessing that
question on the basis of a hypothetical analysis of what the
prosecution likely would have done if counsel had fulfilled his
duty of presenting mitigating evidence (citation omitted)); Darden
v. Wainwright, 477 U.S. 168, 186 (1986) (concluding that defendant
had failed to carry his burden of establishing prejudice from
counsel’s failure to introduce sufficient mitigating evidence;
noting that “[a]ny attempt to portray petitioner as a nonviolent
man would have opened the door for the State to rebut with evidence
of petitioner’s prior convictions,” and explaining that “[t]his
evidence had not previously been admitted in evidence,” but
“trial counsel reasonably could have viewed it as particularly
damaging” (emphasis added)).

                                – 15 –
                         STATE v.McNeil
              ASSOCIATE CHIEF JUSTICE LEE, concurring

limiting construction to Moore. It concludes that Moore does not
“hold that appellate courts may never speculate about how the
trial would have been different had the error not occurred,” but
“instead” requires consideration of the likely train of events—of
the response by the prosecution and possible “new strategies for
the defense”—in assessing whether the court is “confident that
the trial would still have resulted in conviction.” Supra ¶ 37.
   ¶51 This is an important step in the right direction. Until
today, Moore could quite easily—and in fact most correctly—be
read to foreclose hypothetical analysis of what “might have”
happened absent counsel’s missteps. That reading of Moore is
legally untenable, however, and the court quite rightly rejects it.
   ¶52 Yet I would take the matter a step further. I would
openly repudiate Moore. Unless and until we do so, Moore will
stand as a confusing—and quite erroneous—gloss on the
governing standard of proving prejudice under Strickland. I would
do so here to avoid any possibility of more confusion in future
cases.




                              – 16 –
