State v. Ringstad , 424 P.3d 1052 ( 2018 )

2018 UT App 66THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JEFFREY PARNELL RINGSTAD,
Appellant.
Second Amended Opinion 1
No. 20150524-CA
Filed April 12, 2018
First District Court, Brigham City Department
The Honorable Thomas Willmore
No. 131100311
Stephen W. Howard, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Second Amended
Opinion, in which JUDGES GREGORY K. ORME and DAVID N.
MORTENSEN concurred. 2
1. This Second Amended Opinion replaces the Amended
Opinion in Case No. 20150524-CA issued on October 26, 2017.
After our amended opinion issued, the State of Utah filed a
second petition for rehearing, and we called for a response. We
grant the second petition for the limited purpose of clarifying the
prejudice standard for unpreserved prosecutorial misconduct
claims.
2. Judge J. Frederic Voros Jr. was a member of the panel that
initially decided this case. He did not have the opportunity to
vote on the amended opinions prior to his retirement. Judge
Gregory K. Orme joined the panel following the retirement of
Judge Voros and upon receipt of the petitions for rehearing.
State v. Ringstad
CHRISTIANSEN, Judge:
¶1 Jeffrey Parnell Ringstad (Defendant) appeals his
convictions for two counts of rape of a child, one count of object
rape of a child, two counts of sodomy on a child, and three
counts of aggravated sexual abuse of a child, all first degree
felonies. We affirm.
BACKGROUND 3
¶2 Defendant married a woman (Mother) in September 2009.
Defendant and Mother lived together with Mother’s minor
children—the victim (Victim) and her older sister (Sister).
¶3 In 2011, as the family was preparing to be “sealed” in an
LDS temple, Mother asked Victim if she “felt worthy to go to the
temple so [they] could have [their] forever family.” According to
Mother, Victim stated that she “felt like she was good but she
didn’t feel like everybody involved was [worthy].” Victim
explained to Mother that “[Defendant] had been touching [her]
inappropriately.”
¶4 Mother confronted Defendant with Victim’s allegations.
Defendant denied sexually abusing Victim. Defendant suggested
that “[Victim] was having nightmares, it must have been
dreams, it wasn’t true.” Mother believed Defendant because he
“was the man [she] was getting ready to go through the temple
[with], he was a police officer, he was a firefighter.” Mother and
Defendant told Victim that she must have been dreaming
3. “We view the facts in the light most favorable to the jury
verdict and recite them accordingly.” State v. Loose, 2000 UT 11,
¶ 2, 994 P.2d 1237. “We present conflicting evidence only as
necessary to understand issues raised on appeal.” State v.
Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.
20150524-CA 2 2018 UT App 66State v. Ringstad
because Defendant “would never do anything like that to [her].”
Victim “went along with it.”
¶5 Victim later testified that she “knew what had
happened, . . . that [Defendant] was touching [her] and that they
weren’t dreams,” but she went along with Mother and
Defendant because Defendant had threatened to divorce Mother.
Victim wanted “an eternal family” and wanted Defendant and
Mother to stay together.
¶6 In September 2013, Defendant disclosed to Mother that he
was having an affair, and they separated in October 2013.
Defendant moved to live with his new girlfriend. 4 About a week
after Defendant moved out, Victim told a school counselor that
Defendant had sexually abused her. Victim later testified that
she told the counselor because she “was losing [her] forever
family.”
¶7 In November 2013, a detective interviewed Victim after
she received a referral from the Division of Child and Family
Services. During her interview with the detective, Victim alleged
that on at least two separate occasions, Defendant had “tried to
put his penis inside of her and that it hurt.” The detective also
met with Mother, who relayed an allegation by Sister that
Defendant had “come into her bedroom and wanted to cuddle
with her,” but Sister told him to get out. 5 The detective gave
Sister an opportunity to make a written statement, but Sister did
not make any disclosures regarding rape or other sexual abuse at
that time. According to the detective, the witness statement form
had “a disclaimer that tells people to make sure they fill that out
honestly” and “if they fill it out and it’s not honest, they could be
charged with a crime.”
4. Defendant and Mother later divorced.
5. The charges in the present case only concerned Defendant’s
sexual abuse of Victim.
20150524-CA 3 2018 UT App 66State v. Ringstad
¶8 Around that time, the detective also interviewed
Defendant. A video recording of Defendant’s interview was
played for the jury at trial. In the recording, Defendant admitted
that there were “a couple of incidents where [he and Victim] had
some inappropriate touching.” When the detective asked
Defendant to explain “how [he] inappropriately touched
[Victim],” Defendant explained, “I touched [Victim’s] private
areas with my hands and with my privates” “[t]wo or three”
times.
¶9 In December 2013, a pediatric nurse physically examined
both Victim and Sister. She testified that neither child’s
examination revealed any “trauma or . . . tearing or . . . scar
tissue.” The pediatric nurse explained that this was not unusual
because “the body can . . . heal very quickly in that area.”
¶10 Defendant was charged with two counts of rape of a
child, one count of object rape of a child, two counts of sodomy
on a child, and three counts of aggravated sexual abuse of a
child.
Victim’s Testimony
¶11 At trial, Victim testified that Defendant sexually abused
her from the summer of 2011 through “June or July of 2013.” The
abuse occurred in Defendant’s bedroom. According to Victim,
Defendant called her “his baby girl” “[w]hile he was touching
[her],” but he never called her that before the abuse began.
Victim testified that there had been multiple instances of
inappropriate touching, but she only testified with particularity
about two instances.
¶12 Victim testified that the first instance had occurred in the
early morning after Mother had gone to work. Defendant picked
Victim up and carried her to his room, where he laid her on his
bed and took off her clothes. Defendant took off his robe,
revealing that he had no clothes on underneath. Victim had “no
idea what was going on” and “was so scared.” According to
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Victim, Defendant told her “if [she] ever told anyone what he
was about to do, that he would get a divorce with [her] mom.”
Defendant then got on top of Victim and started touching her
breasts with his hands. Defendant also licked her vagina.
Defendant then “sat up and . . . tried to push his penis” into
Victim’s vagina. When Victim told him to stop, Defendant
“reached over to his night stand drawer and pulled out a bottle
of green jelly.” Defendant squeezed some of the jelly “on his
finger and . . . started rubbing [Victim’s] vagina with it and then
he tried to push his penis into [her] vagina again.” Defendant
pushed his penis into Victim’s vagina “[a] little bit” and
ultimately ejaculated “[o]n top of [her] vagina.”
¶13 Victim testified that the second incident also occurred in
the early morning while Mother was at work. Defendant again
carried Victim from her room to his room, laid her on his bed,
and took off her clothes. She testified that Defendant was again
wearing a robe but that this time, he wore religious “garments”
underneath the robe. Defendant asked Victim “if [she] wanted to
make love.” When Victim asked Defendant what that meant, he
replied, “I’ll show you.” Defendant then “put his finger in
[Victim] and started fingering [her].” Victim told Defendant that
she “didn’t want to do this, that it hurt too much.” Defendant
then “reached over to his night stand drawer and . . . grabbed
the bottle of green jelly.” Defendant set the bottle on the bed and
started licking Victim’s vagina. He then rubbed the jelly on
Victim’s vagina and his penis and “tried to put his penis in [her]
[while] he kept grabbing [her] breasts and squeezing them.”
Victim testified that Defendant again put his penis inside her
“[a] little bit” and that he ejaculated in her vagina. Defendant
told Victim that “[she] had to go sit on the toilet for it to come
out.”
¶14 Victim further testified that she did not “call for help” or
tell anyone because she did not want anyone to know about the
abuse and because Defendant was her “first image of a father
and [she] wanted to keep it that way. [She] wanted her forever
20150524-CA 5 2018 UT App 66State v. Ringstad
family to be forever.” In addition to the two specific instances
that Victim described, she estimated that Defendant had touched
her inappropriately more than ten times between the summers
of 2011 and 2013, but she also testified it happened “sometimes
once, twice a week.”
Sister’s Testimony
¶15 In November 2013, while she was visiting her
grandmother for Thanksgiving, Sister claimed, for the first time,
that she had also been previously sexually abused by Defendant.
Sister met with the detective a second time after the
Thanksgiving holiday. Sister testified at trial that Defendant had
raped her approximately thirty times from early 2011 to the
summer of 2013. Sister testified that the rapes occurred in her
downstairs bedroom.
¶16 According to Sister, “[f]or the first little while,
[Defendant] would just come down in his . . . garments,” and “he
would rub [her] back underneath [her] shirt.” This happened for
approximately six months. Sister testified that Defendant then
started removing both his and Sister’s clothes and raping her.
Sister testified that the rapes were violent and that she would
“try to fight and . . . kick and get away from him,” but Defendant
“started putting belts around [her], around [her] arms so that
[she] couldn’t flail.” Sister stated that Defendant would
sometimes bring his own belt to bind her arms, but more often
than not he used her belt. Defendant threatened to divorce
Mother if Sister told anyone.
¶17 Sister acknowledged that she had told police that during
the rapes, Defendant would sometimes “throw [her] around and
grip on [her] hair.” Sister also told police that Defendant would
“spank [her] buttocks so hard that it [became] red and it hurt”
and that the rapes caused her to bleed. And while Victim had
testified that Defendant called her his “baby girl” when he
abused her, Sister testified that Defendant never called her that.
20150524-CA 6 2018 UT App 66State v. Ringstad
¶18 Sister further acknowledged that during and after the
alleged abuse, she maintained good grades and participated in
extracurricular activities. She also admitted that after Victim had
reported Defendant’s abuse, Mother had asked Sister if
Defendant had been abusing her, and Sister had replied that he
had not.
Mother’s Testimony
¶19 Mother testified that although Victim told her in 2011 that
Defendant had “been touching her inappropriately,” Mother
believed Defendant when he denied abusing Victim because
“[h]e was the man that [she] was married to and getting ready to
be sealed to.”
¶20 Mother testified that when she learned that Defendant
was having an affair with his new girlfriend, her “world
crumbled” and she had “suicidal thoughts.” Mother stated, “We
were sealed in the temple, he was supposed to be my eternal
spouse [but] he’s having an affair.”
¶21 According to Mother, there was “no possible way” that
Victim could have independently known about the bottle of
green jelly that Defendant had used on her. Mother testified that
Victim had “no access to the bedroom” and that Defendant “was
a very private person” who always kept the bedroom door
locked when he and Mother were not home. Mother testified
that the bedroom door was closed when she and Defendant were
home and that she never found Victim “poking” around in their
bedroom.
¶22 Mother admitted that after Defendant moved in with his
new girlfriend, she went to their house and confronted
Defendant and pushed him. She stated that she was “[v]ery
angry at that time.”
¶23 Mother further testified that Victim “was a social
butterfly” and that both Victim and Sister were “[a]s normal as
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teenagers can be.” She stated that Defendant “had a closer
relationship” with Victim because Defendant and Sister “butted
heads.” Lastly, Mother testified that both girls remained active in
their extracurricular activities.
Defendant’s Mother’s Testimony
¶24 Defendant’s mother testified that she had stayed with the
family during the summer of 2011 while she recovered from
back surgery. She testified that she had not seen “anything that
alarmed [her] in behaviors involving the children and
[Defendant]” and that she did not see “any changes in any
behaviors between the two girls and [Defendant].”
¶25 Defendant’s mother testified that on one occasion after
Defendant moved in with his new girlfriend, Mother went to the
girlfriend’s house and “took ahold of [Defendant] and just
started shaking him.” She also testified that Mother had stolen
some of Defendant’s property and that Mother had told her that
she was “going to see that she got [Defendant’s] annuity [from
an accident] for her girls.”
Defendant’s Testimony
¶26 Finally, Defendant testified. He denied ever raping either
Victim or Sister. Defendant acknowledged that he had admitted
in his interview with the detective that there had been some
“inappropriate touching” between Victim and himself. In
explaining what he meant by “inappropriate touching,”
Defendant testified that “[t]here had been a couple of times that
[Victim] had come into the bedroom and had climbed up in bed
with [him] to snuggle” and that “she’d pull[ed] herself in really
close to [him].” He testified that he was once lying on his side
when Victim “started pulling herself back into [him] a little bit
tighter, kinda scooching back in, trying to get close” and that she
had “started rubbing up against [his] private areas with her back
side.” He clarified that by “back side” he meant her “buttocks
area.”
20150524-CA 8 2018 UT App 66State v. Ringstad
¶27 According to Defendant, he and Victim had been lying
there for a few minutes when she “reached up and grabbed [his]
hand and was kinda rubbing herself with it.” He testified that
Victim “then pushed [his hand] down towards her private area”
and that “when [he] realized [his] hand touched her private
area” he “pulled [his] hand away and responded to her, telling
her that’s not what we do, it’s not a good thing.” Defendant
testified that his garments never came off and that Victim’s
clothes never came off. He testified that “there [was] skin-to-skin
touching” when Victim “pushed [his] hand down toward her
private area” and that his “hand actually touch[ed] her private
areas underneath the clothing.”
¶28 Defendant further testified that a similar incident
occurred a few weeks later. He stated that after the second
incident he told Victim, “[W]e don’t do that, that’s not the right
thing. I love you, we don’t do things like this.” Defendant denied
ever being “sexually aroused with [Victim]” and stated that the
inappropriate touching “was [not] something that [he] intended
to have happen” nor “something [he] wanted to have happen.”
Defendant testified that Sister’s testimony was untrue and that
he had never tied her up.
¶29 On cross-examination, the prosecutor asked Defendant
“to explain how [his] penis touched [Victim’s] private parts,”
and Defendant replied, “I don’t know.” Defendant stated that
Victim “had snuggled back into [him] and was grinding against
[him], grinding into [his] private parts.” Defendant stated that he
did not tell Mother what had happened because he “knew that
[she] would be very, very, very, very unhappy with any of it”
and that he was trying to protect Victim. The prosecutor further
asked Defendant, “So, [the detective] asked you if there was any
inappropriate touching and you’re telling me that you confessed
to touching [Victim] in her private parts with her [sic] hands and
your penis to protect [Victim] from her mother?” Defendant
replied, “Yes.” Defendant stated that he was initially willing to
20150524-CA 9 2018 UT App 66State v. Ringstad
confess to a crime to protect Victim, but he was no longer
worried about protecting her.
¶30 Defendant also testified that several years previously, he
suffered “severe closed-head injuries” that required brain
surgery. Defendant stated that he still suffers from short-term
and long-term memory problems.
¶31 The jury convicted Defendant on all counts. He now
appeals.
ISSUES AND STANDARDS OF REVIEW
¶32 Defendant raises two principal issues on appeal. First, he
contends that “the admission of evidence regarding other violent
sexual crimes allegedly committed against a person other than
the complaining witness was error that deprived [him] of his
right to [a] fair trial.” Second, he contends that “the prosecutor
engaged in prosecutorial misconduct by repeatedly eliciting
testimony and making argument regarding various religious
matters not relevant to the charges, by arguing facts that were
not in evidence, and by expressing his own personal opinion and
personally disparaging [Defendant].” Defendant concedes that
these issues were not preserved but asserts that we may reach
their merits via the plain error and ineffective assistance of
counsel exceptions to preservation. “The plain error standard of
review requires an appellant to show the existence of a harmful
error that should have been obvious to the district court.” State v.
Kennedy, 2015 UT App 152, ¶ 23, 354 P.3d 775 (citation and
internal quotation marks omitted). “An ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶33 Lastly, Defendant contends that “the cumulative effect of
the several errors committed in the trial court deprived [him] of
his right to a fair trial.” “We will reverse a conviction under this
doctrine when ‘the cumulative effect of the several errors
20150524-CA 10 2018 UT App 66State v. Ringstad
undermines our confidence . . . that a fair trial was had.’” State v.
Lomu, 2014 UT App 42, ¶ 7, 321 P.3d 235 (omission in original)
(quoting State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993)).
ANALYSIS
I. Character Evidence
¶34 Defendant first contends that “evidence of uncharged
rapes was inadmissible and prejudicial, requiring reversal.”
Defendant contends that his trial counsel was constitutionally
ineffective for failing to object under rule 404(b) of the Utah
Rules of Evidence to Sister’s “allegations of extreme and violent
rapes committed against” her by Defendant. Alternatively,
Defendant contends that the trial court plainly erred by not
excluding this evidence sua sponte under rule 404(b).
¶35 Around one month after Defendant and Mother
separated, Sister came forward with allegations that she had
been sexually abused by Defendant. At trial, Sister testified—
without objection from trial counsel or intervention by the trial
court—that Defendant had raped her approximately thirty times
between early 2011 and the summer of 2013. Sister did not testify
about specific incidents, stating that “[t]here wasn’t much
variation between each time.”
¶36 According to Sister, “[f]or the first little while,
[Defendant] would just come down [to her room] in
his . . . garments,” and “he would rub [her] back underneath
[her] shirt.” This happened “for about . . . six months.” Sister
testified that Defendant then started removing both his and
Sister’s clothes and raping her. Sister would “try to fight
and . . . kick and get away from him,” but Defendant “started
putting belts around [her], around [her] arms so that [she]
couldn’t flail.” Defendant threatened to divorce Mother if Sister
told anyone. Sister testified that when Victim first reported
Defendant, Sister had “an opportunity to write out a written
20150524-CA 11 2018 UT App 66State v. Ringstad
statement” but that she did not disclose the abuse then because
she “was scared.” 6 Sister ultimately disclosed Defendant’s
alleged abuse in November 2013 when she visited her
grandmother for Thanksgiving.
¶37 On cross-examination, Sister clarified that Defendant
“only started wearing garments after he and [Mother] were
sealed in the temple.” Trial counsel asked Sister, “[S]o anything
that he did with you was after the temple ceremony?” Sister
replied, “No. No. No. . . . [H]e would come down in . . . clothes
but then, towards the end, he would come in his garments.”
Sister stated that Defendant would sometimes massage her back
and admitted that she never told Mother about it even though
“at that time . . . [she] felt that that was inappropriate.”
¶38 Trial counsel further elicited testimony from Sister that
Defendant would often pull the belts so tight that her hands
would go numb and she would feel “pins and needles in [her]
fingers.” Sister acknowledged that she had told police that
Defendant made her bleed, that Defendant would “throw [her]
around and grip on [her] hair or pull [her] hair,” and that
Defendant would “spank [her] buttocks so hard that it [became]
red and it hurt.” She stated that she would “yell[] out loud
hoping that someone would hear,” but “[n]obody heard.” Sister
confirmed that these incidents were violent and that she had
testified at the preliminary hearing that Defendant “would tell
[her] to shut up and . . . put his hand over [her] mouth.”
¶39 Rule 404(b) of the Utah Rules of Evidence provides that
“[e]vidence of a crime, wrong, or other act is not admissible to
6. Trial counsel also elicited testimony from the detective that
Sister had not disclosed any abuse in her written statement and
that the witness statement “has a disclaimer that tells people to
make sure they fill that out honestly” and “if they fill it out and
it’s not honest, they could be charged with a crime.”
20150524-CA 12 2018 UT App 66State v. Ringstad
prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.”
Utah R. Evid. 404(b)(1). However, “[t]his evidence may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” 7 Id. R. 404(b)(2).
A. Ineffective Assistance of Counsel
¶40 Defendant contends that his trial counsel was
constitutionally ineffective for “failing to object to evidence of
uncharged crimes,” “[p]articularly in light of the violent nature
of the allegations.”
¶41 To establish ineffective assistance of counsel, an appellant
must demonstrate both “that counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An
appellant must rebut “a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 689(citation and internal quotation marks omitted). “Given the
7. Additionally, “[i]n a criminal case in which a defendant is
accused of child molestation, the court may admit evidence that
the defendant committed any other acts of child molestation to
prove a propensity to commit the crime charged.” Utah R. Evid.
404(c)(1). “‘[C]hild molestation’ means an act committed in
relation to a child under the age of 14 which would, if committed
in this state, be a sexual offense or an attempt to commit a sexual
offense.” Id. R. 404(c)(3). Neither party addresses rule 404(c) in
the briefing, and the record on appeal is not clear regarding
Sister’s age when the alleged abuse started. We therefore decline
to address rule 404(c) further.
20150524-CA 13 2018 UT App 66State v. Ringstad
strong presumption of competence, we need not come to a
conclusion that counsel, in fact, had a specific strategy in mind.”
State v. Isom, 2015 UT App 160, ¶ 37, 354 P.3d 791 (citation and
internal quotation marks omitted). “Instead we need only
articulate some plausible strategic explanation for counsel’s
behavior.” Id. (citation and internal quotation marks omitted).
Regarding prejudice, “[a] defendant suffers prejudice when,
absent the deficiencies of counsel’s performance, there is a
reasonable likelihood that the defendant would have received a
more favorable result at trial.” State v. Hards, 2015 UT App 42,
¶ 18, 345 P.3d 769. “Because both deficient performance and
resulting prejudice are requisite elements of an ineffective
assistance of counsel claim, a failure to prove either element
defeats the claim.” Id. “Additionally, whenever there is a
legitimate exercise of professional judgment in the choice of trial
strategy, the fact that it did not produce the expected result does
not constitute ineffectiveness of counsel.” State v. Ott, 2010 UT 1,
¶ 34, 247 P.3d 344 (citation and internal quotation marks
omitted).
¶42 As the State correctly observes, in this case trial counsel
“faced the difficult task of trying to convince the jury that it
should have a reasonable doubt about whether Defendant was
guilty of sexually abusing [Victim], even though he had
confessed to doing so.” As previously discussed, Defendant had
confessed to the detective that he had sexually abused Victim.
Supra ¶ 8.
¶43 The record on appeal supports the conclusion that trial
counsel’s decision not to raise a rule 404(b) objection to Sister’s
testimony “might be considered sound trial strategy.” Strickland,
466 U.S. at 689 (citation and internal quotation marks omitted).
Certainly, it was deliberate: counsel stipulated to the admission
of the testimony.
¶44 And the record shows that counsel’s strategy was to
attack Victim’s credibility by portraying her testimony as an
20150524-CA 14 2018 UT App 66State v. Ringstad
extreme fabrication concocted as part of a plot with Mother to
get revenge on Defendant for his infidelity and his decision to
seek a divorce. Trial counsel was able to use Sister’s testimony to
further that strategy by suggesting that Mother had enlisted both
Victim and Sister in her revenge plot.
¶45 Trial counsel previewed this strategy during his opening
statement. For example, he highlighted that “these allegations
came out when . . . a divorce was pending.” And he asserted that
“[t]his case is about revenge and retaliation and [a] money grab.”
Trial counsel told the jury that it would hear evidence that before
Defendant and Mother were married, Defendant “had been
awarded an annuity from an accident” and that “after these
allegations came out, it was [Mother’s] plot to seize everything
from him” and that Mother had said “that she’s going to take all
of his money, all of his annuity for her.”
¶46 Trial counsel explained that the jury would hear
“allegations from [Sister] and . . . how extreme they are.” He
stated that while Sister would testify that Defendant had “tied
her up with a belt, her hands, and she flailed and screamed
constantly to get him to stop,” there was “no physical evidence
whatsoever. No bruising, no nothing and no explanation, no
logical explanation why this abuse, if it happened, was never
being reported.” Trial counsel further stated:
You will hear that [Victim] had been going to
counseling for years, to various different
counselors, people who are trained to help her to
get these kinds of allegations out, but yet, none
have ever come out.
You will hear that these girls’ behaviors
were never different. They acted the same before,
[during] and after, happy children. Impossible for
them to behave in that way if the abuse they allege
was taking place.
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You’ll hear all of this and at times, it’s going
to be confusing and at times, we’re going to point
out all inconsistencies of these girls [and] we point
out inconsistencies because inconsistencies show
the difference between a real memory and a
fabricated memory.
¶47 Trial counsel then elicited testimony to support this
theory. To begin with, trial counsel highlighted many of the
inconsistencies between Victim’s preliminary-hearing testimony
and her trial testimony. For example, while Victim testified on
direct examination at trial that Mother was the first person she
had told about Defendant’s abuse, trial counsel elicited
testimony from Victim that at the preliminary hearing, Victim
had stated that the first person she had told about Defendant’s
abuse was a friend. Trial counsel highlighted other
inconsistencies in Victim’s testimony, including (1) the fact that
Victim had contradicted herself regarding the timeframe of
Defendant’s abuse, (2) the fact that, at the preliminary hearing,
Victim had failed to “say anything about [Defendant] licking
[her] or putting his mouth on [her] vagina,” (3) the fact that
Victim had never mentioned until trial that Defendant
“ejaculated inside of [her] and [she] had to go sit on the
toilet . . . to get it out,” and (4) Victim’s contradictions regarding
the time of day Defendant abused her. Trial counsel also elicited
testimony from Victim that she had “maintained good grades
from 2011 until now.” Victim testified that she was upset when
Defendant left and that “prior to that time, despite what [she]
said he was doing to [her], [she] was still close to him.”
¶48 Trial counsel also highlighted inconsistencies in Sister’s
testimony. For example, contrary to Sister’s trial testimony,
during the preliminary hearing, Sister had denied that
Defendant had ever “struck [her] while the incidents were taking
place.” Sister also testified that during and after the alleged
abuse, she had maintained good grades, participated in
extracurricular activities, and held a job. She testified that “when
20150524-CA 16 2018 UT App 66State v. Ringstad
[Victim] first reported this, [her] mother asked [her] if
[Defendant] had been abusing her,” and Sister “told her no.”
Sister also failed to disclose the alleged abuse when police asked
her for a written statement, even though the witness statement
form had “a disclaimer that tells people to make sure they fill
that out honestly” and “if they fill it out and it’s not honest, they
could be charged with a crime.”
¶49 Trial counsel elicited testimony from Mother that she was
suicidal after Defendant left her because Defendant “was
supposed to be [her] eternal spouse.” Mother admitted that after
Defendant moved in with his new girlfriend, she went to their
house and confronted Defendant and pushed him. Mother
described Victim as a “social butterfly” and stated that both
Victim and Sister were “[a]s normal as teenagers can be.” Mother
also testified that Victim and Defendant had a “closer
relationship” than Sister and Defendant, and that Sister and
Defendant “butted heads.” Lastly, Defendant’s mother testified
that Mother had threatened that “she was going to see that she
got [Defendant’s] annuity for her girls.”
¶50 In closing argument, trial counsel reiterated the theme
that Victim’s and Sister’s claims were fabricated. Trial counsel
observed that, “the whole time[,] these girls were living a normal
life”; that they continued to be involved in extracurricular
activities; and that “[t]heir behavior around [Defendant] in front
of everyone was consistent.” Trial counsel highlighted the
inconsistencies in Victim’s and Sister’s testimonies and asserted
that when traumatic events like the ones Victim and Sister
claimed occur, “memories form and you can recall them.” Trial
counsel asserted:
Ask yourself, can anyone have this kind of
suffering, as much as they claim and continue
living a normal life? Why would anyone want to sit
on [Defendant’s] lap or go places with him? Why
would anyone be social? If you were traumatized
20150524-CA 17 2018 UT App 66State v. Ringstad
like these girls claim by that man, you would not
be social, you would not be near him, you would
not want anything to do with men, period. You
would have major issues in your life and you
would not have good grades, but yet, none of that
is the case here.[8]
Trial counsel observed that none of the counselors that Victim
had seen over the years suspected that “there was ongoing
abuse” and that Mother had described Victim as “a social
butterfly.” Trial counsel further argued:
Are they saying these things because they’re
[mad] that [Defendant] left them, the person they
thought was their father and they’re mad at him
when he left them and ruined their life[;] for once,
they had stability in their life and he—he left them?
8. We would note that victimization manifests in many different
ways.
According to the literature on the subject, there is
no one classical or typical personality profile for
abused children. The difficulty with identifying a
set of behaviors exhibited by abused children is
that abused children react in a myriad of ways that
may not only be dissimilar from other sexually
abused children, but may be the very same
behaviors as children exhibit who are not abused.
Commonwealth v. Dunkle, 602 A.2d 830, 832 (Pa. 1992). “‘It is
impossible to make a general statement about the effects of
sexual abuse on children. Children react differently to different
situations depending on a number of variables that may be
operating at the time of the occurrence.’” Id. at 832 n.3 (quoting
Alvin A. Rosenfeld, The Clinical Management of Incest and Sexual
Abuse of Children, 22 Trauma 2, 3 (Oct. 1980)).
20150524-CA 18 2018 UT App 66State v. Ringstad
Or are they saying it because they want part
of his annuity? We heard testimony that the mom
said, I’m going to get his annuity. She’s not entitled
to it unless he gets convicted and then [she] says
that my daughters suffered extreme emotional
distress and need money to compensate for their
damages. What’s going on here?
Trial counsel also highlighted Mother’s anger toward Defendant
and reminded the jury that Mother had once attacked Defendant
and contemplated suicide when she found out Defendant was
leaving her.
¶51 Regarding Sister specifically, trial counsel highlighted
“how extreme” and “how violent” her allegations were and
reminded the jury of the fact that, “when first asked if there had
been anything inappropriate,” Sister had said no, but then “three
weeks later, all of a sudden comes forward with these very
serious allegations of being tied down and beaten, of being
brutally raped.” He also highlighted that Sister had not told the
pediatric nurse “about pain, nothing about bleeding.”
¶52 Trial counsel ended his closing argument by stating,
“[W]hen you look at the big picture, all of the inconsistencies,
I’m going to ask you to find [Defendant] not guilty, because
when everything is said and done, your story stays the same
when it’s a real memory and your story changes because you
can’t remember the lies you made up.”
¶53 Based on the foregoing, we conclude that trial counsel’s
decision not to object to Sister’s testimony was supported by a
reasonable trial strategy—to persuade the jury that both Victim’s
and Sister’s allegations of abuse were fabricated. Trial counsel
highlighted inconsistencies in each girl’s testimony and elicited
testimony that they both acted normally, maintained good
grades, and participated in extracurricular activities during and
after Defendant’s alleged abuse. Trial counsel emphasized the
fact that the girls only reported the abuse after Mother’s and
20150524-CA 19 2018 UT App 66State v. Ringstad
Defendant’s divorce was pending and that they could have been
motivated to allege abuse because they were “[mad] that
[Defendant] left them” or “because they want[ed] part of his
annuity.” And trial counsel used Sister’s testimony, specifically
the timing and extreme nature of her allegations, to further the
defense’s theory that this case was “about revenge.” In sum, we
conclude that the record indicates that trial counsel chose to
refrain from objecting to Sister’s testimony so that he could use
her testimony to support the defense’s overall theory of
fabrication.
¶54 Trial counsel’s choice to use Sister’s testimony as part of
the defense’s trial strategy did not constitute ineffective
assistance of counsel in light of the other evidence. See State v.
Ott, 2010 UT 1, ¶ 34, 247 P.3d 344. As previously discussed,
Defendant confessed to sexually abusing Victim. During his
videotaped interview with the detective, Defendant admitted
that he had “touched [Victim’s] private areas with [his] hands
and with [his] privates” “[t]wo or three” times. Although
Defendant argues on appeal that this admission “was somewhat
ambiguous and allowed for multiple interpretations,” 9
Defendant was given an opportunity on cross-examination to
clarify his interview statement. Specifically, the prosecutor asked
Defendant to confirm that he had said that he “touched
[Victim’s] private parts with [his] hands and penis,” and
Defendant replied, “That was what was on the video, yes.”
While Defendant’s testimony was not an unequivocal admission
of guilt, Defendant was given an opportunity to clarify his
statement and instead chose to accept the prosecutor’s
interpretation of his words. In addition, as previously recounted,
Victim testified in great detail about Defendant’s abuse. Supra
¶¶ 11–14.
9. Defendant does not elaborate as to what these “multiple
interpretations” are.
20150524-CA 20 2018 UT App 66State v. Ringstad
¶55 Given the totality of the evidence, including Defendant’s
confession and Victim’s detailed testimony, pursuing a
fabrication defense was a reasonable trial strategy. And the fact
that trial counsel’s strategy evidently “did not produce the
expected result does not constitute ineffectiveness of counsel.”
See Ott, 2010 UT 1, ¶ 34 (citation and internal quotation marks
omitted). We therefore conclude that trial counsel’s decision not
to object to Sister’s testimony “falls within the wide range of
reasonable professional assistance,” see Strickland v. Washington,
466 U.S. 668, 689 (1984), and that trial counsel did not perform
deficiently by pursuing this strategy instead of attempting to
have Sister’s testimony excluded. Consequently, Defendant’s
ineffective assistance of counsel claim fails.
B. Plain Error
¶56 Defendant also contends that “[i]t was plain error for the
court to admit evidence of uncharged crimes.”
¶57 “The plain error standard of review requires an appellant
to show the existence of a harmful error that should have been
obvious to the [trial] court.” State v. Waterfield, 2014 UT App 67,
¶ 18, 322 P.3d 1194; accord State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993). An error is prejudicial when “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.” Dunn, 850 P.2d at 1208–09.
¶58 Even assuming that the admission of the rule 404(b)
evidence—Sister’s testimony—was both erroneous and harmful,
trial counsel invited any error by stipulating before trial “that
[the rule 404(b)] evidence will be reciprocal in each case. [E]ach
victim will testify in the other victim’s case.” “The doctrine of
invited error prohibits a party from setting up an error at trial
and then complaining of it on appeal.” State v. Redding, 2007 UT
App 350, ¶ 24, 172 P.3d 319 (citation and internal quotation
marks omitted). “Under the doctrine of invited error, we have
declined to engage in even plain error review when counsel,
20150524-CA 21 2018 UT App 66State v. Ringstad
either by statement or act, affirmatively represented to the trial
court that he or she had no objection to the action taken.” Id.(brackets, citation, and internal quotation marks omitted). Here,
based on trial counsel’s stipulation, there was simply no reason
for the trial court to sua sponte strike the rule 404(b) evidence.
¶59 Moreover, a trial court is “not required to constantly
survey or second-guess a nonobjecting party’s best interests or
trial strategy and is not expected to intervene in the proceedings
unless the evidence would serve no conceivable strategic
purpose.” State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (brackets,
citation, and internal quotation marks omitted). Consequently,
where “defense counsel was not ineffective for failing to object to
the State’s use of the [rule] 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.” Id. “Plain error does
not exist when a conceivable strategic purpose exists to support
the use of the evidence.” Id. (citation and internal quotation
marks omitted).
¶60 In light of counsel’s pretrial stipulation that Sister would
testify at trial, we conclude that the trial court did not plainly err
in admitting Sister’s testimony.
II. Prosecutorial Misconduct
¶61 Defendant next contends that “[t]he prosecutor engaged
in misconduct by improperly injecting religious issues into the
case, by arguing facts not in evidence, by expressing his own
personal opinion, and by disparaging [Defendant].” More
specifically, Defendant contends that the prosecutor engaged in
misconduct by (1) “expressing his personal opinion and
disparaging [Defendant],” (2) arguing facts not in evidence,
(3) “inappropriately injecting religious issues into the trial,”
(4) “inappropriately attack[ing] [Defendant’s] credibility by
introducing evidence that he was not ‘worthy,’” and
(5) “attempt[ing] to inappropriately align himself with the victim
20150524-CA 22 2018 UT App 66State v. Ringstad
and her family by stating to the jury in argument that he had
previously served a mission for his church.”
¶62 Because Defendant’s claims of prosecutorial misconduct
were not preserved, he relies on two exceptions to the
preservation rule: plain error and ineffective assistance of
counsel. See generally State v. Pedersen, 2010 UT App 38, ¶ 11, 227
P.3d 1264 (“Claims of prosecutorial misconduct are subject to the
preservation rule.”). “The plain error standard of review
requires an appellant to show the existence of a harmful error
that should have been obvious to the [trial] court.” State v.
Waterfield, 2014 UT App 67, ¶ 18, 322 P.3d 1194; accord State v.
Dunn, 850 P.2d 1201, 1208–09 (Utah 1993) (observing that an
error is harmful if, “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”). To establish ineffective assistance of counsel, an
appellant must demonstrate that counsel’s performance “fell
below an objective standard of reasonableness” and that “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “A fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.” Id. at 689.
¶63 In the past, when evaluating unpreserved claims of
prosecutorial misconduct, we would “consider whether the
remarks called the jurors’ attention to matters which they would
not be justified in considering in reaching a verdict and, if so,
whether the remarks were harmless beyond a reasonable
doubt.” State v. Redcap, 2014 UT App 10, ¶ 32, 318 P.3d 1202; see
also State v. Davis, 2013 UT App 228, ¶¶ 8–9, 12, 18, 311 P.3d 538(applying the harmless-beyond-a-reasonable-doubt standard to
an unpreserved prosecutorial misconduct claim where “the
20150524-CA 23 2018 UT App 66State v. Ringstad
choice of prejudice standard [was] not outcome determinative”).
In other words, we considered whether the prosecutor’s
statement was improper and whether there was a reasonable
possibility that the statement might have contributed to the
jury’s verdict. However, in State v. Bond, 2015 UT 88, 361 P.3d
104, our supreme court clarified that “unpreserved federal
constitutional claims are not subject to a heightened review
standard but are to be reviewed under our plain error doctrine.”
Id. ¶ 44. And in State v. Hummel, 2017 UT 19, 393 P.3d 314, our
supreme court further clarified that “our plain error analysis
asks not whether the prosecutor made a misstep that could be
characterized as misconduct, but whether the trial court made an
‘obvious’ error in its decision.” Id. ¶ 105; see also id. ¶ 107
(“[P]lain error review considers the plainness or obviousness of
the district court’s error (not the prosecutor’s).”). But “[t]hat is
not to say that the extent of a prosecutor’s ‘misconduct’ is
irrelevant to our analysis.” Id. ¶ 108. Indeed, “[i]f a prosecutor
asks a question aimed at eliciting material that is both highly
prejudicial and clearly inadmissible, that may suggest that the
trial judge was plainly wrong in not intervening to block its
admission sua sponte.” Id. “The more plain or obvious the
prosecutor’s misstep, the greater likelihood (other things being
equal) that an appellate court would find plain error in a judge’s
failure to step in to stop it.” Id.
¶64 A remark is improper when it falls outside the scope of
the prosecutor’s proper role. “A prosecutor has the duty and
right to argue the case based on the total picture shown by the
evidence or the lack thereof[.]” Davis, 2013 UT App 228, ¶ 19
(citation and internal quotation marks omitted). “And in closing,
counsel has considerable latitude to argue his or her view of the
evidence and the inferences and deductions arising therefrom.”
Id. (citation and internal quotation marks omitted).
“Nevertheless, a prosecutor may not argue a case based on facts
not admitted into evidence.” Id. Prejudice exists when, absent
the error, there is a reasonable likelihood of a more favorable
outcome for the defendant. Bond, 2015 UT 88, ¶ 49.
20150524-CA 24 2018 UT App 66State v. Ringstad
A. The Prosecutor’s Personal Opinion
¶65 Defendant first contends that “[t]he prosecutor engaged
in misconduct by expressing his personal opinion and
disparaging [Defendant].” According to Defendant, the
prosecutor “explicitly injected his own personal opinion” when
he stated in closing, “It doesn’t happen when you spoon and
grind—and I know those are horrible words, those are his
words, that’s what he said [Victim] did to him, I think that’s
despicable. But he has no explanation for that part.” (Emphasis
added.)
¶66 “[A] prosecutor engages in misconduct when he or she
expresses personal opinion or asserts personal knowledge of the
facts.” State v. Bakalov, 1999 UT 45, ¶ 57, 979 P.2d 799. Here, the
prosecutor’s comment was clearly a statement of personal
opinion, and we therefore agree with Defendant that it was
improper and should not have been made. However, “[w]hen
we review an attorney’s failure to object to a prosecutor’s
statements during closing argument, the question is ‘not
whether the prosecutor’s comments were proper, but whether
they were so improper that counsel’s only defensible choice was to
interrupt those comments with an objection.’” State v. Houston,
2015 UT 40, ¶ 76, 353 P.3d 55 (quoting Bussard v. Lockhart, 32 F.3d
322, 324 (8th Cir. 1994)).
¶67 The State observes that one reason “counsel can
reasonably decide not to object to ‘improper’ closing argument is
to avoid ‘emphasiz[ing] the negative aspects of the case to the
jury.’” (Alteration in original) (Quoting West Valley City v. Rislow,
736 P.2d 637, 638 (Utah Ct. App. 1987)). According to the State,
“Defendant’s case presents a prime example of an opportunity to
employ that strategy” because the prosecutor “made the
challenged remarks in the context of reminding the jury that
Defendant had no explanation for his admission that he touched
[Victim’s] vagina with his penis.” But this is inaccurate. The
prosecutor was in fact describing his opinion of Defendant’s
20150524-CA 25 2018 UT App 66State v. Ringstad
claim that Victim had been “spoon[ing]” with or “grind[ing]”
against Defendant. 10 Raising an objection would not have risked
emphasizing Defendant’s lack of an explanation, because the
comment was so clearly an improper statement of opinion that
little or no discussion would have been necessary.
¶68 Nevertheless, we conclude that, even if the trial court
erred by failing to intervene when the prosecutor made the
improper comment, the error did not harm Defendant; i.e.,
absent the prosecutor’s comment, there is no reasonable
likelihood of a more favorable outcome for Defendant. See State
v. Bond, 2015 UT 88, ¶¶ 44, 49, 361 P.3d 104. In considering
whether the prosecutor’s comment was harmful, we may
consider
the strength of the evidence against [the
defendant], when and under what circumstances
the statement was made, whether defense counsel
had an opportunity to respond to the improper
statement, the purpose of the statement and its
effect on the issues in the case, and whether the
trial court gave a curative instruction.
State v. Kozlov, 2012 UT App 114, ¶ 43, 276 P.3d 1207 (citation
and additional internal quotation marks omitted). 11 Here, the
prosecutor’s statement was made during rebuttal argument so
10. Defendant characterizes the prosecutor’s remark as
“personally disparag[ing] the defendant as ‘despicable.’”
However, as noted, the prosecutor was (improperly) describing
his opinion of Defendant’s claim, not Defendant personally.
11. We recognize that State v. Kozlov, 2012 UT App 114, 276 P.3d
1207, analyzed an unpreserved prosecutorial misconduct claim
under the now-rejected harmless-beyond-a-reasonable-doubt
standard; however, the considerations set forth in Kozlov remain
helpful in reviewing for prejudice in plain-error cases.
20150524-CA 26 2018 UT App 66State v. Ringstad
defense counsel had no opportunity to respond to it, and the
trial court did not give a curative instruction. On the other hand,
there was extensive evidence against Defendant, including his
videotaped confession and the detailed testimony from Victim;
the improper statement was brief, just four words out of fifteen
pages of rebuttal argument; the statement had little obvious
effect on any issue in the case because it was phrased as an
opinion; and the court had instructed the jury not to be
influenced by “what you think [the lawyers’] opinions might be”
and that closing arguments were merely the lawyers’ views of
the case, not evidence.
¶69 After considering these factors, we conclude that
Defendant has failed to demonstrate that he suffered prejudice
from the prosecutor’s improper statement. See Bond, 2015 UT 88,
¶¶ 44, 49. Our confidence in the jury’s verdict is therefore not
undermined. See id. ¶ 57; State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993). And because ineffective assistance of counsel and
plain error share a common standard of prejudice, State v.
Redcap, 2014 UT App 10, ¶ 50, 318 P.3d 1202, and Defendant has
not established prejudice under the latter, it follows that he has
not established prejudice under the former. Consequently, we
reject Defendant’s claims regarding the prosecutor’s improper
statement of opinion.
B. Facts Not in Evidence
¶70 Defendant next contends that “[t]he prosecutor engaged
in misconduct by arguing facts not in evidence.” More
specifically, Defendant asserts that during closing argument,
“the prosecutor twice incorrectly attributed to [Defendant]
statements from the video which were in fact not a part of the
video interview.”
¶71 During closing argument, the prosecutor stated:
20150524-CA 27 2018 UT App 66State v. Ringstad
[D]efendant’s own statement in his video was, . . . I
put my penis, I touched her with my penis on more
than one occasion.
....
[Defendant] sat right there on that video and said,
in his own words, I touched her in her private
areas with my hands and my penis.
Although the prosecutor used the word “penis,” Defendant, in
his videotaped interview, had used a euphemism: “I touched her
private areas with my hands and with my privates.”
¶72 Because defense counsel did not object to the prosecutor’s
characterization of the evidence, Defendant claims ineffective
assistance of counsel and plain error. With regard to ineffective
assistance of counsel, we must first determine whether counsel’s
failure to object “fell below an objective standard” of reasonable
professional assistance. Strickland v. Washington, 466 U.S. 668, 688
(1984). To do so, we must determine whether an objection to the
prosecutor’s statement would have been fruitful. See Redcap,
2014 UT App 10, ¶ 44 (“The Sixth Amendment does not require
counsel to make futile objections.” (citation and internal
quotation marks omitted)).
¶73 “[A] prosecutor may draw permissible deductions from
the evidence and make assertions about what the jury may
reasonably conclude from those deductions.” State v. Bakalov,
1999 UT 45, ¶ 57, 979 P.2d 799. In addition, a prosecutor “may
fully discuss with the jury reasonable inferences and deductions
drawn from the evidence.” Id. ¶ 59.
¶74 It is unclear which of the discrepancies between the
prosecutor’s version and the videotape animates Defendant’s
challenge. The State declares, “Presumably, he asserts that these
statements were improper because he admitted to touching
20150524-CA 28 2018 UT App 66State v. Ringstad
[Victim] with his ‘privates’ and did not use the word penis.”
Defendant does not dispute this reading of his challenge.
¶75 It is true that by saying “penis” rather than “privates” the
prosecutor misquoted Defendant. But Defendant does not deny
that his statement referred to his penis. Indeed, Defendant
testified that “privates” meant “penis.” A prosecutor is entitled
to fully discuss reasonable inferences drawn from the evidence.
Bakalov, 1999 UT 45, ¶ 59. Here, the prosecutor drew not just a
reasonable inference but the only reasonable inference from
Defendant’s statement. Accordingly, we see no impropriety in
the prosecutor’s statement.
¶76 Because the prosecutor’s statement was proper, an
objection to it would have been futile. “Failure to raise futile
objections does not constitute ineffective assistance of counsel.”
State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. Defendant has
therefore failed to show that his trial counsel’s decision not to
raise this objection amounted to ineffective assistance of counsel.
And because the statement was proper, there was no plain error
that the court should have been aware of. See State v. Waterfield,
2014 UT App 67, ¶ 18, 322 P.3d 1194.
C. Religious Matters
¶77 Defendant next contends that “[t]he prosecutor engaged
in misconduct by inappropriately injecting religious issues into
the trial.” Specifically, Defendant asserts that the prosecutor
improperly (1) “elicited testimony that [Victim] did not believe
that [Defendant] was ‘worthy’ to go to the LDS temple to have
his marriage sealed,” (2) elicited testimony regarding “the
religious concept of an ‘eternal’” or “forever family,” and
(3) referred to “the issue of a ‘forever family’” in closing
argument. We note that it does not appear that the prosecutor
tried to elicit testimony regarding religion; rather, the prosecutor
was attempting to shed light on the circumstances leading to the
disclosure of Victim’s allegations.
20150524-CA 29 2018 UT App 66State v. Ringstad
¶78 Defendant states that “[a] reasonably diligent search of
Utah case law has revealed no cases similar to the present one
where a court has approved of a prosecutor’s conduct in eliciting
evidence regarding the spiritual ‘worthiness’ of a defendant to
participate in an LDS temple marriage sealing or has approved a
prosecutor’s argument that the defendant’s conduct destroyed
the victim’s ‘forever family.’” On the other hand, Defendant
does not cite any cases where a court has disapproved of such
comments. The State also acknowledges that it could not locate a
controlling case “addressing the admissibility of testimony and
evidence about these or similar religious issues.”
¶79 “The plain error standard of review requires an appellant
to show the existence of a harmful error that should have been
obvious to the [trial] court.” Waterfield, 2014 UT App 67, ¶ 18.
“To establish that the error should have been obvious to the trial
court, the appellant must show that the law governing the error
was clear at the time the alleged error was made.” State v. Davis,
2013 UT App 228, ¶ 32, 311 P.3d 538 (brackets, citation, and
internal quotation marks omitted). “Thus, an error is not obvious
if there is no settled appellate law to guide the trial court.” Id.(citation and internal quotation marks omitted).
¶80 Defendant quotes Bennett v. Angelone, 92 F.3d 1336 (4th
Cir. 1996): “[f]ederal and state courts have universally
condemned . . . religiously charged arguments as confusing,
unnecessary, and inflammatory.” Id. at 1346. But Bennett
involved both counsel making arguments based on biblical
events. Id. at 1346. Similarly, the cases Bennett described were
ones in which prosecutors compared a defendant to Judas
Iscariot, Cunningham v. Zant, 928 F.2d 1006, 1019–20 (11th Cir.
1991), compared a defendant’s statement to Peter’s denial of
Christ, United States v. Giry, 818 F.2d 120, 132–33 (1st Cir. 1987),
or used biblical allusions to advocate for a death sentence,
Commonwealth v. Chambers, 599 A.2d 630, 644 (Pa. 1991).
Defendant also refers us to State v. Ceballos, 832 A.2d 14 (Conn.
2003), for the proposition that a majority of jurisdictions “have
20150524-CA 30 2018 UT App 66State v. Ringstad
concluded that prosecutorial use of religious references is always
improper.”12 Id. at 32.
¶81 None of the cases underlying Bennett or Ceballos address
the type of facts found here, where the prosecutor elicited
testimony from a victim about the circumstances that led her to
report the abuse at issue and such circumstances happened to be
of a religious character. For example, the prosecutor did not use
any explicitly religious references in closing arguments and did
not advocate for a result based on religion. And Victim’s
testimony regarding Defendant’s “worthiness” and the temple
sealing ceremony did not advance a religious basis for a verdict.
¶82 Counsel are permitted to argue the facts of the case in
closing. No rule bars counsel from discussing those facts simply
because they may touch on religious belief. For example, State v.
Scieszka, 897 P.2d 1224 (Utah Ct. App. 1995), involved a Bible
study class teacher who “used his faith and his religious
position” to entice a fourteen-year-old girl to submit to his acts
of sodomy. Id. at 1225, 1228. Similarly, in State v. Flores, 2015 UT
App 88, 348 P.3d 361, the events of the case took place within a
church context—in fact, the defendant was the victim’s LDS
branch president at the time he perpetrated the sexual abuse. Id.
¶ 2. Under the rule Defendant proposes, a prosecutor could not
elicit the facts of the charged offenses or discuss them in closing.
¶83 Because there is no settled appellate law prohibiting
witnesses from mentioning their religious beliefs, Defendant
12. The Ceballos court continued, however, “These courts . . . do
not concomitantly conclude that all improper religious remarks
constitute harmful or reversible error.” State v. Ceballos, 832 A.2d
14, 32 (Conn. 2003). “Rather, the majority approach follows the
initial determination of impropriety with a subsequent analysis
as to whether the defendant was prejudiced by the inappropriate
remarks.” Id.20150524-CA 31 2018 UT App 66State v. Ringstad
cannot establish the existence of an error that should have been
obvious to the trial court; consequently, relief is not available via
the plain error doctrine. See Davis, 2013 UT App 228, ¶ 32.
¶84 Nor is there a basis for concluding that Defendant’s
counsel was ineffective for failing to object to Victim’s testimony.
Due to the wide range of legitimate defense strategies, see
Strickland v. Washington, 466 U.S. 668, 688–89 (1984), a defendant
claiming ineffective assistance of counsel must “persuad[e] the
court that there was no conceivable tactical basis for counsel’s
actions,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (citation and
internal quotation marks omitted). Here, trial counsel may
reasonably have elected not to raise a questionable challenge to a
victim’s testimony referencing religion to avoid antagonizing
jury members who shared that religion.
¶85 Defendant also contends that “[t]he prosecutor attempted
to inappropriately align himself with [Victim] and her family by
stating to the jury in argument that he had previously served a
mission for his church.” 13 The State responds that the
prosecutor’s statement “was not objectionable . . . because it was
not intended as a religious reference, but rather as a fair reply to
a point in defense counsel’s argument.” We agree with the State.
¶86 During closing argument, trial counsel highlighted the
inconsistencies in Victim’s and Sister’s testimonies and argued
that “when we have a real memory, when our brain actually
experiences something, you have a picture in your brain and
memories form and you can recall them. . . . When . . . traumatic
events [occur], certain events, child birth, weddings, you
remember things.” Counsel then gave a personal example:
In 1991, I was a second lieutenant in the
United States Marine Corps and I was training to
13. It appears that Victim, her family, the prosecutor, and
Defendant all share the same religious affiliation.
20150524-CA 32 2018 UT App 66State v. Ringstad
get ready to go to Desert Storm and we thought we
were going to war. And I remember, we were in
the mess hall, eating dinner, it was about . . . 6:13 at
night, and they announced: Bombs just dropped in
Baghdad, we’re at war.
And I remember specifically, I was having
zee burgers, that’s our cheese burgers, we called
them zee burger, ‘cause when you ate them, they
made you sleepy . . . .
Well, everybody got up or . . . left their meal
and everyone ran out and I remember I was one of
the . . . last people there still eating. I remember
that 24 years later because that was a huge thing at
the time.
¶87 In response, during his rebuttal argument, the prosecutor
recounted two events in his own life. He compared these events,
asserting that while some traumatic events may be recalled
vividly decades later, detailed memories of others fade quickly:
[Trial counsel] talks about what happened in 1991.
I wasn’t in the military. I was on a mission for my
church in 1991 and I remember being in
[Portsmouth], New Hampshire, walking down the
street and seeing a news stand and looking in there
and it says, United States goes to war. I thought,
holy cow, we’re at war. I was about ready to come
home from my mission and . . . I remember talking
to my dad and my dad saying, Son, you’d better
get in college when you get home or they’re going
to draft you. I said dad, I’m not worried about that,
I think the war’s going to be over before I get
home. . . .
But I also have a little girl, she’s seven years
old now. When she was four years old, we rushed
20150524-CA 33 2018 UT App 66State v. Ringstad
her to the hospital because she started having
seizures and her eyes rolled back in her head and
she had a hard time breathing and we rushed her
to the hospital. A traumatic experience, only three
years ago, and I will tell you today, I don’t know
which car we took, I couldn’t tell you who the
doctor was, I couldn’t tell you a lot of things about
that experience to this day and I was a full-grown
adult[.] [B]ut a traumatic experience does affect
your memory and you don’t remember
everything. . . .
So this whole idea that when you go
through a traumatic experience that you remember
everything is poppycock. That’s just baloney. . . .
The prosecutor concluded with, “[W]e don’t remember
everything . . . especially when it’s a traumatic experience.”
¶88 “Because closing arguments are not evidentiary in nature,
trial counsel has wide latitude in closing arguments and is
permitted to comment on the evidence already introduced and
to argue reasonable inferences therefrom.” State v. Redcap, 2014
UT App 10, ¶ 32, 318 P.3d 1202 (citation and internal quotation
marks omitted). “In determining whether a prosecutor’s
comments amount to plain error,” such that it should have been
obvious to the trial court, “‘we will consider the comments both
in context of the arguments advanced by both sides as well as in
context of all the evidence.’” Id. ¶ 38 (quoting State v. Bakalov,
1999 UT 45, ¶ 56, 979 P.2d 799). “‘It is well settled that prejudicial
error does not result from . . . improper remarks made during
closing argument when such remarks were provoked by the
opposing counsel.’” Id. (omission in original) (quoting United
States v. Schwartz, 655 F.2d 140, 142 (8th Cir. 1981)). “The
‘doctrine of fair reply’ allows a prosecutor to make a
‘counteracting statement’ after ‘defense counsel [opens] the door
20150524-CA 34 2018 UT App 66State v. Ringstad
on the issue.’” Id. ¶ 38 (alteration in original) (quoting Schwartz,
655 F.2d at 142).
¶89 We note that the prosecutor’s reference to a mission was
not an overt call to the jury to base any of its decisions on
religion. Cf. supra ¶ 80. But even assuming, without deciding,
that the prosecutor’s comments would have been objectionable
standing alone, they were nevertheless a fair reply to trial
counsel’s own story. Trial counsel discussed his military service
and asserted that he recalled details about a traumatic event that
took place over twenty years before trial. The prosecutor
responded that, although he had been on a mission rather than
in the military, he too recalled details about the same event
(indicating that his memory abilities were no worse than trial
counsel’s) but nevertheless could not remember details of a
personal traumatic event that occurred only three years before
trial. When considered within the context of a response to trial
counsel’s Marine Corps story, we conclude that the prosecutor’s
comments, including the statement that he was “on a mission for
[his] church,” fell within the wide latitude afforded in closing
arguments to respond to issues raised by the opposing party. See
Redcap, 2014 UT App 10, ¶¶ 38, 49.
¶90 Because the prosecutor’s comments were unobjectionable,
the trial court was not obligated to intervene; Defendant
therefore cannot demonstrate plain error. See id. ¶ 40. For the
same reason, trial counsel was not required to challenge those
comments; accordingly, Defendant cannot satisfy the deficient-
performance element of an ineffective assistance of counsel
claim. See id.
¶91 Lastly, Defendant contends that the prosecutor engaged
in misconduct by “inappropriately attack[ing] [Defendant’s]
credibility by introducing evidence that he was not ‘worthy.’” It
is not clear what particular evidence this claim pertains to; our
review of the closing argument transcript reveals that neither the
word “worthy” nor its variations were employed, and
20150524-CA 35 2018 UT App 66State v. Ringstad
Defendant merely refers to “the prosecutor’s use of religious
elements.” But as we have explained, Defendant has not shown
that a prosecutor’s elicitation of testimony that happens to
mention religious beliefs in passing is improper. See supra ¶ 82.
¶92 To the extent that highlighting such testimony in closing
argument shines a light on the defendant’s credibility, we note
that “[w]hen a prosecutor discusses the credibility of witnesses
during closing arguments, the evil to be guarded against is that a
juror would consider such statements to be factual testimony
from the prosecutor.” Redcap, 2014 UT App 10, ¶ 37 (omission,
citation, and internal quotation marks omitted). In other words,
it is not improper for a prosecutor’s closing argument to remind
a jury of evidence properly adduced during the evidentiary
phase of trial and to suggest a reasonable inference based solely
on that evidence. Here, after reviewing the transcript of the
prosecutor’s closing arguments, we see nothing that the jury
might have believed was the prosecutor’s factual testimony
rather than permissible inferences urged by the prosecutor but
drawn from testimony properly adduced during the evidentiary
phase of the trial.
¶93 We conclude that Defendant cannot establish plain error
or ineffective assistance of counsel based on the prosecutor’s
introduction of evidence “that he was not ‘worthy.’”
III. Cumulative Error
¶94 Finally, Defendant contends that the “cumulative effect of
all error[s] undermines confidence in the verdict and requires
reversal.” “Under the cumulative error doctrine, we will reverse
only if the cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.” State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993) (omission in original) (citation and
internal quotation marks omitted). “In assessing a claim of
cumulative error, we consider all the identified errors, as well as
any errors we assume may have occurred.” Id.20150524-CA 36 2018 UT App 66State v. Ringstad
¶95 After considering the circumstances of this case and the
resolution of Defendant’s other claims on appeal, our confidence
that Defendant received a fair trial has not been undermined. We
therefore reject Defendant’s cumulative error claim.
CONCLUSION
¶96 We conclude that trial counsel was not ineffective for
failing to object to the rule 404(b) evidence, i.e., Sister’s
testimony. And the trial court did not commit plain error in
allowing the evidence to be presented. Trial counsel strategically
used Sister’s testimony as a basis for the defense’s theory that
Victim had fabricated her allegations against Defendant as part
of a revenge plot. In addition, we conclude that trial counsel did
not render constitutionally ineffective assistance by failing to
object to the prosecutor’s various statements, and that the trial
court did not plainly err by not intervening sua sponte.
¶97 Affirmed.
20150524-CA 37 2018 UT App 66