State v. Modes , 2020 UT App 136 ( 2020 )

2020 UT App 136THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
FRANK VAL MODES,
Appellant.
Amended Opinion 1
No. 20180265-CA
Filed October 1, 2020
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 161912922
Gregory G. Skordas, Kaytlin V. Beckett, and Gabriela
Mena, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Frank Val Modes was convicted of aggravated sexual
abuse of a child (Victim). He appeals, alleging that the trial court
erred by admitting evidence that he had previously committed
1. This Amended Opinion replaces the Opinion in Case No.
20180265-CA issued on March 12, 2020. After our opinion issued,
the State of Utah filed a petition for rehearing, and we called for
a response. We grant the petition for the purpose of clarifying
the deficient performance standard in paragraph 25.
State v. Modes
acts of child molestation and that his trial counsel was
ineffective. We affirm.
BACKGROUND
¶2 Modes was Victim’s uncle through marriage; his wife
(Wife) and Victim’s mother (Mother) are sisters. 2 Modes was also
the “best friend” and a cousin of Victim’s father (Father).
¶3 In the early 2000s, Modes and Wife operated a licensed
daycare in their home. While Wife managed the day-to-day
operation of the daycare, Modes was occasionally left alone with
the children during naptime. From around 2000—when Victim
was five months old—until 2004, Victim attended Wife’s
daycare. When Victim was four years old and at the daycare,
Modes woke her and other young girls from their nap and
forced them to take off their shirts and lie down together. Modes
then exposed his penis, touched the girls, and masturbated.
Victim further revealed how Modes abused her in private at the
daycare: “Sometimes I’d wake up from nap and he’d be lying
next to me masturbating again, to the point where the bed was
shaking and I could hear the bunk beds squeaking. And
sometimes he’d slide his hands inside my pants and stick a
finger inside of . . . [m]y vagina.” In describing this abuse, she
said, “It hurt, but I was just scared. I would just [lie] there
and look . . . around the room or focus on the lines on top of the
bunk bed.”
2. “We recite the facts in the light most favorable to the trial
court’s findings and verdict. We present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Miller, 2017 UT App 171, ¶ 2 n.1, 405 P.3d 860 (quotation
simplified).
20180265-CA 2 2020 UT App 136State v. Modes
¶4 Victim recalls being “scared” to tell anybody about what
Modes was doing to her. But Mother noticed a change in
Victim’s behavior when Victim was about three or four years old
and she began to act out sexually at her house. Mother suspected
that “somebody was showing her that or teaching her
something.” About this same time, Mother became aware that
Modes had been accused of molesting two other girls in the
daycare. At that point, Mother removed Victim from the
daycare.
¶5 Growing up, Victim experienced a number of emotional
and physical problems, including vomiting, shaking,
hyperventilating, difficulty communicating with strangers,
“always looking over her shoulder,” night terrors, and fear of
being alone with men. Because Wife used bleach to clean the
daycare’s floors, Victim said that the odor of bleach “[brought]
up those feelings” and “memories” of being abused and made
her “feel sick.” Victim reported the abuse some years later—
when she was fourteen years old—to Mother and to a counselor.
The abuse was then reported to the police, and an investigation
ensued. 3
¶6 In October 2014, a detective interviewed Victim at the
Children’s Justice Center (CJC). When the detective asked about
the abuse, Victim “put her head down, looked at the floor and
she became embarrassed. She wasn’t able to really continue
talking. . . . She started crying.” The detective ended the
interview. Two years later, a second detective conducted another
3. In responding to Modes’s attorney when he asked Victim why
“she waited ten or more years to raise this issue” of the abuse,
Victim revealed, “I was scared. He was close to the family and it
would just throw things in a whirl, I thought. I was scared that I
would have to face someone like you who would protect
someone like him. I was scared of many things.”
20180265-CA 3 2020 UT App 136State v. Modes
interview with Victim at the CJC. He testified that Victim “began
to cry” and her “voice began to crackle” as she told him about
the abuse. Modes was charged with aggravated sexual abuse of a
child.
¶7 At trial, pursuant to rule 404(c) of the Utah Rules of
Evidence, the State presented evidence that Modes had
previously molested another child (Prior Victim) at the daycare.
In addition to admitting into evidence a certified copy of
Modes’s conviction of sexual battery for his abuse of Prior
Victim, Prior Victim testified. Prior Victim stated that she had
attended Wife’s daycare when she was six or seven years old
and that she called Modes “Uncle Frank” despite being
unrelated to him. She further revealed that Modes would call her
“his girlfriend . . . to make [her] feel special.” Prior Victim
revealed that Modes made her sit on his lap, close her eyes, and
stick her fingers in her mouth. Modes also made her straddle his
hips with her legs and put her hands around his shoulders as he
moved his hips and put “his private parts up against [her private
parts].” Prior Victim testified that Modes unbuttoned his pants
and tugged at her pants while he engaged in this abusive
behavior. She revealed that this happened “a couple of times.”
Prior Victim also described another incident in which Modes
derived a “sick pleasure” from making her lie down with a boy
at the daycare and “kiss” and “make out” with him. When Prior
Victim told Modes that she did not want to do that, he said,
“[Y]ou need to do it for your uncle.”
¶8 At the close of the State’s case, Modes moved for a
directed verdict to dismiss the charge, arguing that the State had
failed to establish a “timeline” of “when the abuse took place” or
“anything specific upon which to convict” Modes. The State
responded that a date and time were not elements of the offense,
and therefore any lack of specificity about when the abuse
occurred did not require dismissal of the charges. The trial court
agreed with the State and denied the motion.
20180265-CA 4 2020 UT App 136State v. Modes
¶9 At trial, Modes’s defense consisted of denying that he
abused Victim. He asserted that he was not living at the house
where the daycare was located when the abuse allegedly
occurred, that he was never alone with the children in the
daycare, and that at the time of the alleged abuse, he had a back
injury that prevented him from lifting more than ten pounds.
¶10 The trial court, in a bench trial, found Modes guilty as
charged. Specifically, the court found the testimonies of Victim,
Mother, Prior Victim, and other prosecution witnesses credible
and Modes’s testimony not credible. In its conclusions of law,
the court stated that Modes occupied a position of trust in
relation to Victim, took indecent liberties with and touched the
genitalia of Victim with the intent to gratify his sexual desire,
caused Victim pain by digitally penetrating her vagina, and had
previously been convicted of sexual battery. The court sentenced
Modes to a prison term of fifteen years to life for aggravated
sexual abuse of a child. Modes appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 We first address whether the court erred in admitting the
details of Modes’s prior acts of child molestation, including
testimony of Prior Victim, pursuant to rule 404(c) of the Utah
Rules of Evidence. Because no objection was made at trial, we
review this issue for plain error. See State v. Holgate, 2000 UT 74,
¶ 11, 10 P.3d 346 (stating that unpreserved claims may not be
raised on appeal “unless a defendant can demonstrate that
exceptional circumstances exist or plain error occurred”
(quotation simplified)).
¶12 We next address whether Modes’s attorney performed
deficiently by (1) failing to object to the admission of Prior
Victim’s testimony, (2) failing to cross-examine Prior Victim, and
(3) not calling an expert witness on the issue of early childhood
20180265-CA 5 2020 UT App 136State v. Modes
memory recovery. 4 “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.”
4. Modes also claims his attorney provided ineffective assistance
by not seeking to admit Victim’s CJC interviews into evidence.
But neither interview is part of the record on appeal, and Modes
has not sought to supplement the record or sought a remand to
further develop the record pursuant to rule 23B for findings
necessary to determine his claim of ineffective assistance of
counsel. See Utah R. App. P. 23B(a) (“The motion will be
available only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support
a determination that counsel was ineffective.”). We are unable to
determine whether Modes’s attorney was ineffective in this
regard absent knowledge of the content of the CJC interviews.
“Where the record appears inadequate in any fashion,
ambiguities or deficiencies resulting therefrom simply will be
construed in favor of a finding that counsel performed
effectively.” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.
Thus, we decline to consider this aspect of Modes’s ineffective
assistance of counsel claim.
In similar fashion, Modes argues that he was denied a
“fair trial through effective assistance of counsel” because his
attorney did not “call any witnesses or provide any evidence” on
Modes’s behalf. But Modes has not identified what witnesses
should have been called or what evidence his attorney should
have sought to admit on his behalf, nor has he sought to
supplement the record with such information. Accordingly,
Modes has failed to sufficiently develop his argument, and we
decline to consider this aspect of his claim of ineffective
assistance. See State v. Curtis, 2013 UT App 287, ¶ 42, 317 P.3d
968 (“Without nonspeculative evidence establishing what each
witness could have testified to at trial, [the defendant] has not
shown that any deficient performance by trial counsel in failing
(continued…)
20180265-CA 6 2020 UT App 136State v. Modes
State v. Reyos, 2018 UT App 134, ¶ 11, 427 P.3d 1203 (quotation
simplified). 5
(…continued)
to interview them was so serious that it deprived him of a fair
trial, and that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” (quotation simplified)).
5. Modes raises two other issues on appeal. First, he contends
that his due process rights were violated because the criminal
information did not provide adequate notice of when the
claimed sexual abuse of a minor occurred. Modes argues that his
motion for a directed verdict was sufficient to preserve this
claim, but he is mistaken. Even if it could be argued that the
information was constitutionally insufficient because it did not
refer to specific dates of the alleged sexual abuse, Modes cannot
now complain, because his directed verdict motion was not
timely brought to challenge the specificity of the information.
Modes “made no inquiry of the prosecution regarding
additional facts by way of either a bill of particulars or a demand
for information under [Utah Code] section 77-14-1. And he did
not raise the inadequacy of the information before trial by
written motion,” as required by rule 4(e) of the Utah Rules of
Criminal Procedure. See State v. Fulton, 742 P.2d 1208, 1215 (Utah
1987) (quotation simplified); see also Utah Code Ann. § 77-14-1(LexisNexis 2017) (“The prosecuting attorney, on timely written
demand of the defendant, shall within 10 days, or such other
time as the court may allow, specify in writing as particularly as
is known to him the place, date and time of the commission of
the offense charged.”); Utah R. Crim. P. 4(e) (“When facts not set
out in an information are required to inform a defendant of the
nature and cause of the offense charged, so as to enable the
defendant to prepare a defense, the defendant may file a written
(continued…)
20180265-CA 7 2020 UT App 136State v. Modes
(…continued)
motion for a bill of particulars. The motion shall be filed at
arraignment or within 14 days thereafter, or at such later time as
the court may permit.”).
In addition to being untimely, Modes’s directed verdict
motion did not address the particularity or specificity of the
information. Modes’s counsel, in the directed verdict motion
presented after the State’s case-in-chief, asserted only that the
State failed to present sufficient evidence for conviction: “We
just don’t have anything specific upon which to convict Mr.
Modes in this particular case.” Thus, Modes’s directed verdict
motion was not specifically about the adequacy of the
information. Rather, it was directed to a broader issue, namely,
whether the State had presented sufficient evidence at trial to
prove when the sexual abuse occurred. Indeed, the trial court
articulated Modes’s motion in such terms: “The issue right now
is whether sufficient evidence was presented to allow the case to
go forward and require the defense to put on a defense.”
Thus, Modes failed to preserve his challenge to the lack of
specificity in the information. He also has not sought review of
this issue through an exception to preservation, such as plain
error, ineffective assistance of counsel, or exceptional
circumstances. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d
443. Because he has not done so, we decline to consider this
issue. See id. ¶ 14 (“If the parties fail to raise an issue in either the
trial or appellate court, they risk losing the opportunity to have
the court address that issue.” (quotation simplified)).
Second, Modes seeks reversal pursuant to the cumulative
error doctrine. Because we conclude that there are “no errors to
accumulate here, . . . the cumulative error doctrine [is]
inapplicable in this case.” State v. Galindo, 2019 UT App 171, ¶ 17
n.4, 452 P.3d 519, petition for cert. filed, Dec. 18, 2019 (No.
20191057).
20180265-CA 8 2020 UT App 136State v. Modes
ANALYSIS
I. Prior Sexual Abuse Evidence
¶13 Modes argues that the trial court plainly erred when it
admitted the testimony of Prior Victim pursuant to rule 404(c) of
the Utah Rules of Evidence and that this evidence was unfairly
prejudicial. To prevail on this unpreserved claim, see supra ¶ 11,
Modes must demonstrate plain error by establishing that “(i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful. If any one of these
requirements is not met, plain error is not established.” State v.
Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified).
¶14 As a general rule, evidence of a person’s other acts “is not
admissible to 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). For evidence of other acts to
be admissible pursuant to rule 404(b), the State must articulate a
nonpropensity purpose for the evidence. State v. Fredrick, 2019
UT App 152, ¶ 41, 450 P.3d 1154. But this limitation does not
apply in child molestation cases, where rule 404(c) applies. “The
drafters of our rules of evidence have determined, as a policy
matter, that propensity evidence in child molestation cases can
come in on its own terms, as propensity evidence, even if there is
no other plausible or avowed purpose for such evidence.” Id.
¶ 42. And the Utah Rules of Evidence provide that when 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).
¶15 Modes asserts that Prior Victim’s testimony contained
“extraneous and inflammatory details . . . not contemplated
under [rule] 404(c).” Relying on State v. Cuttler, 2015 UT 95, 367
P.3d 981, Modes argues that the trial court erred in allowing
20180265-CA 9 2020 UT App 136State v. Modes
Prior Victim to testify in “graphic detail” about the abuse she
suffered at the hands of Modes, asserting that Prior Victim’s
testimony went “far beyond the scope of propensity” and was
thus “improper and inherently prejudicial” and “served no other
purpose . . . than prejudicing” him. But Modes does not identify
which statements of Prior Victim should not have been
admitted; rather, he argues that “[n]one of [Prior Victim’s]
statements were necessary to the admission of evidence under
404(c) or properly admissible under 404(c).” Thus from Modes’s
perspective, evidence of his acts of prior molestation should
have been limited to his record conviction for sexual battery. 6
¶16 Modes’s characterization of Cuttler is too broad. In Cuttler,
our supreme court was more nuanced, stating that when rule
404(c) evidence is introduced a court may mitigate the potential
for unfair prejudice by limiting the evidence about a previous
conviction for child molestation “to that which shows the
defendant’s propensity for child molestation, rather than include
unnecessary and emotionally charged details about the abuse,
such as other accompanying physical abuse.” 2015 UT 95, ¶ 27.
Far from prohibiting the admission of any details of previous
acts of child molestation, Cuttler clarified that any such details
must be directed toward showing propensity. We take this
opportunity to clarify the parameters of admissibility allowed by
rule 404(c).
¶17 First, rule 404(c) itself contemplates admission of more
than simply the fact that a previous conviction exists; rather, the
rule allows the admission of “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). Indeed, the rule does not require that a defendant be
6. We note that Modes’s prior conviction was identified as an
aggravating circumstance in the information and during trial.
20180265-CA 10 2020 UT App 136State v. Modes
convicted of a crime for the associated other-acts evidence to be
admissible. That is, the ultimate legal disposition of a previous
act of child molestation is largely irrelevant to whether the
evidence is admissible under rule 404(c). What is relevant is
whether the defendant committed other acts that show his
propensity to molest children. In short, the rule addresses
evidence that the defendant committed previous acts of child
molestation, and it is not necessarily concerned with whether the
defendant was ever previously convicted for any such acts. 7
¶18 Second, rule 404(c) contemplates that the fact-finder will
need to evaluate the admitted evidence to determine the extent
to which it supports the notion that the defendant has a
propensity to molest children. In order to meaningfully assess
the appropriate weight to afford such evidence, the fact-finder
will need to hear and consider at least some of the details of the
previous acts. For instance, the more similar a previous act is to
the act the defendant is accused of committing, the more
commission of a previous act might suggest propensity. See State
v. Ring, 2018 UT 19, ¶ 30, 424 P.3d 845 (stating that other acts of
child sexual abuse that are “significantly similar as to the age of
7. Prior to the admission of a defendant’s other acts in a rule
404(c) context, the court is required to make a legal
determination that the child was under fourteen and that an act
of child molestation has occurred pursuant to Utah law. See Utah
R. Evid. 404(c)(1). (“In 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.” (emphasis
added)); id. R. 404(c)(3) (defining “child molestation” as “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”).
20180265-CA 11 2020 UT App 136State v. Modes
the victim, the setting, the opportunity, and [the defendant’s]
modus operandi . . . suggest that [a defendant had] the
propensity to commit the alleged crime”).
¶19 In this case, Modes argues that none of the details
revealed in Prior Victim’s testimony should have been admitted
at his trial. But this position is untenable, because such selective
admission of evidence would run contrary to the very purpose
of rule 404(c). In this case, Modes’s previous conviction was for
sexual battery, a crime that can take many forms and that does
not necessarily involve child victims. In order to assess the
evidentiary weight of that evidence as it relates to Modes’s
propensity to commit acts of child molestation, the fact-finder
needed to learn at least some details of the act that led to the
prior conviction. Without any such detail, the fact-finder would
not have been able to link Modes’s past behavior to the sexual
molestation of a child or to evaluate whether Modes has a
propensity to molest children, as required by rule 404(c). In
short, without the sufficient degree of detail, the rule becomes
inoperable.
¶20 Moreover, Modes has not pointed out which details
contained in Prior Victim’s testimony went beyond what was
necessary to show that his past conduct involved molestation of
a child or that he has a propensity to molest children. He merely
asserts that the “graphic details of [Prior Victim’s]
uncontroverted testimony undoubtedly influenced the ultimate
outcome.” And when asked at oral argument to delineate
between which facts of the prior abuse would have been
allowable and which facts would not, Modes’s counsel was
unable to make the distinction. Such a failure to articulate
between allowable facts and those which are outside the bounds
of the trial court’s discretion constitutes a failure to meet the
burden of persuasion. See State v. Fredrick, 2019 UT App 152,
¶ 49, 450 P.3d 1154 (stating that a defendant could argue that
evidence should be “admitted in a more sanitized fashion,
20180265-CA 12 2020 UT App 136State v. Modes
somehow allowing the jury to learn of the previous incidents
without unnecessary contextual details”). In our view, the details
that Prior Victim shared were relevant to establishing that
Modes had molested a child in the past and that he has a
propensity to molest children—the very purpose of rule 404(c).
Without these details, the court would have had before it only
Modes’s prior record of conviction for misdemeanor sexual
battery. Such scant record evidence is not enough to fulfill the
purpose of rule 404(c). While Modes was previously convicted of
sexual battery, the bare record of that conviction contains
insufficient detail to allow the fact-finder to determine whether
the prior acts gave rise to a propensity inference in this case.
Thus, the details supplied by Prior Victim were necessary to
provide the context for Modes’s previous conviction. 8
¶21 We also conclude that the testimony of Prior Victim was
not unfairly prejudicial, because Modes has not articulated any
prejudice beyond the fact that the evidence showed a propensity
to molest children, a purpose for which it was explicitly
8. In addition, Cuttler’s analysis was in the context of a jury trial.
See State v. Cuttler, 2015 UT 95, ¶ 27, 367 P.3d 981 (stating that
rule 404(c) allows the State to bring evidence of prior child
molestation acts “while not presenting the jury with
inflammatory details beyond what is necessary or appropriate
for it to consider when drawing that propensity inference”
(emphasis added)). Here, Modes was convicted after a bench
trial. Thus any prejudicial effect of the testimony was naturally
minimized by the absence of a jury. See State v. Real Prop. at 633
E. 640 N., Orem, 942 P.2d 925, 930 (Utah 1997) (“When weighing
the probativeness of the evidence against the possible prejudice,
we must take into consideration the fact that the trial was to the
bench, not to a jury. The evil that rule 403 is intended to combat,
unfair prejudice, is primarily of concern during a jury trial.”).
20180265-CA 13 2020 UT App 136State v. Modes
admissible. See Utah R. Evid. 403 (“The court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice . . . .”); see also
Ring, 2018 UT 19, ¶ 28 (“[B]efore the court admits [rule 404(c)]
evidence, it must weigh the evidence’s probative value against
its potential for prejudice under rule 403.”) “[T]he prejudice
analysis under rule 403—when associated with rule 404(c)—
focuses on prejudice other than the fact that the evidence shows
propensity to engage in reprehensible behavior involving
children.” Fredrick, 2019 UT App 152, ¶ 53 (Mortensen, J.,
concurring); see also State v. Cuttler, 2015 UT 95, ¶ 26, 367 P.3d
981 (“Rule 404(c)(1) explicitly allows [previous child
molestation] evidence for the purpose of proving a defendant’s
propensity to commit the child molestation with which he is
charged.” (quotation simplified)); State v. Lintzen, 2015 UT App
68, ¶ 17, 347 P.3d 433 (“After rule 404(c), the accused’s
propensity is the reason for admission and no longer constitutes
unfair prejudice.” (quotation simplified)). To establish prejudice
in a rule 404(c) context, a defendant would have to show that the
evidence demonstrates something apart from the act of sexual
molestation of a child—“unnecessary and emotionally charged
details about the abuse, such as other accompanying physical
abuse.” Cuttler, 2015 UT 95, ¶ 27.
¶22 Here, the admission of the evidence that Modes had
sexually molested a child in the past helped establish that he had
a “propensity” to molest children. See Fredrick, 2019 UT App 152,
¶ 53 (Mortensen, J., concurring). And showing such propensity
to molest children—in contrast to the general prohibition against
admitting other acts evidence to show propensity—is the very
purpose of rule 404(c), which explicitly states that “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) (emphasis added).
Modes’s “prior acts were highly probative in this case because
20180265-CA 14 2020 UT App 136State v. Modes
they were significantly similar as to the age of the victim, the
setting, the opportunity, and [Modes’s] modus operandi. These
similarities suggest that he had the propensity to commit the
alleged crime.” See Ring, 2018 UT 19, ¶ 30.
¶23 Modes has also made no attempt to demonstrate that the
admission of the details surrounding his previous act of child
sexual molestation prejudiced him in some other way. He
merely states that the details of Prior Victim’s testimony
“undoubtedly influenced the ultimate outcome.” While he is
likely correct in this assertion, the point is not persuasive in a
rule 404(c) context, because prejudice arising solely from a
propensity inference is permissible. Indeed as our supreme court
has stated, “[r]ule 404(c)’s only function is to admit evidence of
prior child sex crimes. Therefore, ruling as [Modes] suggests
would render rule 404(c) inoperative—an outcome we refuse to
endorse.” See id. In short, Modes’s claim that the court plainly
erred in admitting details of his prior conviction for child sexual
molestation fails because he has not shown how the details of the
abuse were “unnecessary and emotionally charged . . . beyond
what is necessary or appropriate for [the court] to consider when
drawing [a rule 404(c)] propensity inference.” Cuttler, 2015 UT
95, ¶ 27.
¶24 Thus, we conclude that the trial court did not plainly err
in admitting the testimony of Prior Victim, because the details
she shared established only that Modes (1) molested a child in
the past and (2) likely had a propensity to molest children, see
Utah R. Evid. 404(c), and were therefore not obviously unfairly
prejudicial, see id. R. 403.
II. Ineffective Assistance of Counsel
¶25 Modes’s second claim is that his attorney provided
ineffective assistance by (1) failing to object to the admission of
Prior Victim’s testimony, (2) failing to cross-examine Prior
20180265-CA 15 2020 UT App 136State v. Modes
Victim, and (3) not calling an expert witness in the issue of early
childhood memory recovery. To establish that his attorney
provided ineffective assistance, Modes must prove that his
counsel performed deficiently and that he was prejudiced as a
result. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because
failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[Modes’s] claims under either prong.” See Honie v. State, 2014 UT
19, ¶ 31, 342 P.3d 182. To succeed on the first prong, Modes must
overcome the presumption that an attorney‘s decision “falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. “The court gives trial counsel wide
latitude in making tactical decisions and will not question such
decisions unless there is no reasonable basis supporting them.”
See State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation
simplified). Moreover, “the question of deficient performance is
not whether some strategy other than the one that counsel
employed looks superior given the actual results of trial. It is
whether a reasonable, competent lawyer could have chosen the
strategy that was employed in the real-time context of trial.”
State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation
simplified). And “even where a court cannot conceive of a sound
strategic reason for counsel’s challenged conduct, it does not
automatically follow that counsel was deficient. . . . [T]he
ultimate question is always whether, considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350; see
also State v. Ray, 2020 UT 12, ¶¶ 34–36.
¶26 Modes first argues that his trial counsel performed
deficiently for not objecting to the admission of Prior Victim’s
testimony. As we explained, supra ¶¶ 20–21, Prior Victim’s
testimony could properly be admitted to demonstrate that
Modes’s prior conviction qualified as an act of child molestation
to show his propensity to molest children, see Utah R. Evid.
20180265-CA 16 2020 UT App 136State v. Modes
404(c), so any objection that the testimony was inadmissible
under rule 404(c) would not have succeeded. In addition, as we
explained, supra ¶¶ 22–24, Modes has not demonstrated that the
details relayed by Prior Victim of Modes’s abuse of her were
inflammatory or unfairly prejudicial, because such evidence was
relevant to demonstrate Modes’s propensity to molest children.
And it is well-established that the “[f]ailure to raise futile
objections does not constitute ineffective assistance of counsel.”
State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546; see also State v.
Ringstad, 2018 UT App 66, ¶ 76, 424 P.3d 1052; State v.
Christensen, 2014 UT App 166, ¶ 18, 331 P.3d 1128.
¶27 With regard to the second ineffective assistance claim,
counsel may have concluded that cross-examining Prior Victim
would have done more harm than good to Modes. See State v.
King, 2010 UT App 396, ¶ 49, 248 P.3d 984 (“[A]ttorneys may opt
to forgo cross-examination of witnesses for valid strategic
reasons.”). For example, counsel may have feared that cross-
examining Prior Victim would have revealed more damaging
details about the past abuse conviction and further evidence
about the similarity of the two incidents of abuse. See State v.
Arriaga, 2012 UT App 295, ¶ 21, 288 P.3d 588 (stating that not
cross-examining a victim is a reasonable strategy to “avoid
rehashing the dirty details of the victim’s testimony in order to
point out a few minor inconsistencies here and there”); State v.
Strain, 885 P.2d 810, 815 (Utah Ct. App. 1994) (stating that
forgoing cross-examination is a legitimate trial strategy to avoid
giving a witness the opportunity to “bolster[] his testimony with
further detail”).
¶28 Lastly, Modes argues that counsel was deficient in
failing to consult a memory expert, asserting that counsel’s
“failure to inquire about [the] tender age of [Victim] and
its impact on memory recall, or the limited capacity of a
child under two years of age to recall such facts, would
have clearly impacted the evidentiary picture.” However,
20180265-CA 17 2020 UT App 136State v. Modes
“counsel’s decision to call or not to call an expert witness is
a matter of trial strategy, which will not be questioned
and viewed as ineffectiveness unless there is no reasonable
basis for that decision.” State v. Tyler, 850 P.2d 1250, 1256
(Utah 1993); accord State v. Walker, 2010 UT App 157, ¶ 14, 235
P.3d 766. Apart from the unsupported allegation that
counsel did not consult a memory expert, Modes offers no
evidence that counsel did not investigate or consider whether
a memory expert would have been useful to the defense. 9
Counsel may reasonably have concluded that through cross-
examination, he could reveal weaknesses in Victim’s ability
to recall events that had happened to her as a child and so
expose any inaccuracies in her testimony. Thus, counsel may
have determined that a memory expert would not have
materially added to undermining the accuracy of Victim’s
testimony. 10
9. Modes has not sought remand pursuant to rule 23B to include
an affidavit from any expert proffering the proposed expert
testimony he would have introduced at trial, and therefore he
cannot demonstrate prejudice by showing that such expert
testimony would have helped his defense.
10. Citing Landry v. State, 2016 UT App 164, 380 P.3d 25, Modes
argues that counsel was required to seek out expert guidance on
difficult issues. Landry states,
Although we are generally reluctant to question
trial strategy, including whether to call an expert
witness, where there is no reasonable basis for that
decision, we will conclude there was deficient
performance by trial counsel. The specific facts of a
case may require trial counsel to investigate
potential witnesses to determine whether such
testimony would be appropriate.
(continued…)
20180265-CA 18 2020 UT App 136State v. Modes
¶29 Accordingly, we conclude that Modes has failed to show
that his counsel rendered deficient representation.
CONCLUSION
¶30 We conclude that the trial court did not plainly err in
admitting the testimony of Prior Victim and that Modes’s
counsel did not provide ineffective assistance.
¶31 Affirmed.
(…continued)
Id. ¶ 32 (quotation simplified). In citing Landry, Modes fails to
note that the case involved a charge of first-degree-felony arson
and that counsel for the defendant had no prior experience or
training defending someone charged with arson. See id. ¶¶ 6, 34.
Here, there is nothing in the record to suggest that Modes’s
attorney was similarly inexperienced in the area of memory
recall. In addition, the arson investigation in Landry presented an
issue requiring some degree of scientific expertise, and Modes
makes no argument that the issue of memory recall requires
similar expert guidance or that it cannot be addressed through
competent cross-examination. Thus, Landry is readily
distinguishable from the case at hand.
20180265-CA 19 2020 UT App 136