State v. Boyer ( 2020 )


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    2020 UT App 23
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    MARK BOYER,
    Appellant.
    Opinion
    No. 20170423-CA
    Filed February 13, 2020
    Third District Court, Salt Lake Department
    The Honorable Mark S. Kouris
    No. 131902296
    Elizabeth Hunt, Attorney for Appellant
    Sean D. Reyes and John J. Nielsen, Attorneys
    for Appellee
    Troy L. Booher and Freyja Johnson, Attorneys for
    Amicus Curiae Victim V.M.
    JUDGE DIANA HAGEN authored this Opinion, in which
    JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
    FORSTER concurred.
    HAGEN, Judge:
    ¶1     A jury convicted Mark Boyer of aggravated sexual abuse
    of a child, rape of a child, and sodomy upon a child. He now
    appeals, arguing that the district court abused its discretion in
    denying his motion for a new trial based on ineffective assistance
    of counsel. He also argues that the district court erred in denying
    his motions to recuse and to reconstruct the record. Because we
    are unpersuaded that trial counsel provided ineffective
    assistance or that the district court erred in its evidentiary and
    recusal rulings, we affirm.
    State v. Boyer
    BACKGROUND 1
    ¶2     Boyer appeals his convictions resulting from an
    investigation and prosecution that together spanned more than
    three years. In early 2013, Boyer’s ex-wife (the ex-wife) contacted
    the Utah Division of Child and Family Services (DCFS) and
    reported that, years earlier when she and Boyer were still
    married, Boyer had sexually abused their son’s now fourteen-
    year-old friend (the victim). In response to this report, a
    detective from Unified Police Department (the detective)
    interviewed the victim at the Children’s Justice Center (the CJC).
    The ex-wife drove the victim to the CJC, and the victim provided
    the detective with a written account of Boyer’s abuse, which the
    victim had prepared prior to the interview at the suggestion of
    the ex-wife, who expressed concern that the victim would
    struggle to talk about the abuse.
    ¶3     During the interview, the victim disclosed to the detective
    that Boyer had begun abusing her when she was seven years old
    and that the most recent incident of abuse occurred when she
    was nine. Each incident occurred at Boyer’s home when the
    victim was visiting Boyer’s son. The victim described at least
    seven separate incidents of sexual abuse in graphic detail.
    Because the details of Boyer’s crimes are not relevant to the
    issues on appeal, we do not repeat them here.
    ¶4     The State subsequently charged Boyer with four counts of
    aggravated sexual abuse of a child, four counts of rape of a child,
    and two counts of sodomy upon a child. The victim testified at a
    preliminary hearing in May 2013, and Boyer was bound over on
    all charges except one count of rape of a child.
    1. “On appeal from a jury verdict, we view the evidence and all
    reasonable inferences in a light most favorable to that verdict
    and recite the facts accordingly.” State v. Pinder, 
    2005 UT 15
    , ¶ 2,
    
    114 P.3d 551
     (cleaned up).
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    State v. Boyer
    ¶5     Before Boyer’s first trial, trial counsel made numerous
    pretrial motions, including a motion opposing the State’s request
    to photograph Boyer’s genitals, two motions to admit evidence
    of the victim’s prior allegations of sexual abuse pursuant to rule
    412 of the Utah Rules of Evidence, a motion to produce the
    victim’s medical records from 2005 to 2009, a motion to exclude
    the State’s expert testimony, and a motion to continue to allow
    more time to investigate rule 412 evidence and the State’s expert.
    Trial counsel also negotiated a stipulation with the State
    allowing for the in camera review of the victim’s medical and
    mental health records. After the in camera review, the district
    court determined that the records contained no exculpatory
    material and shredded the documents.
    ¶6      The case proceeded to trial in May 2016. The State
    presented the testimony of the victim’s aunt—her legal guardian
    at the time of trial—as well as the testimony of the victim. The
    victim testified to the details of each of the offenses and
    described her relationship with Boyer’s family and the
    difficulties she faced since disclosing the abuse. During direct
    examination by the State, the victim testified that she decided to
    tell the ex-wife about Boyer’s abuse because she overheard a
    conversation about Boyer and a “lady” that made her suspect
    that she “wasn’t the only one.” After the victim’s direct
    examination, trial counsel asked for a recess and moved for a
    mistrial because the victim’s statement constituted inadmissible
    and prejudicial evidence that could lead the jury to infer that
    Boyer had committed similar crimes against other victims. The
    district court granted Boyer’s motion and declared a mistrial.
    ¶7     The second trial took place a short time later. The victim
    again testified about the details of Boyer’s abuse and her
    struggles since. The State admitted photos of Boyer’s genitals,
    and during cross-examination, trial counsel questioned the
    victim about her claim to investigators that Boyer had one or two
    moles near his penis. Trial counsel also questioned the victim
    about the ex-wife’s suggestion that she write down the abuse
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    allegations before her CJC interview and the ex-wife’s influence
    in the victim’s life. Among other things, the victim admitted on
    cross-examination that she had believed that she had genital
    herpes because the ex-wife told the victim that Boyer had genital
    herpes and told her about the symptoms.
    ¶8     The ex-wife testified that the victim repeatedly told her
    that she had something to tell her before the victim ultimately
    disclosed Boyer’s abuse. Although the ex-wife did not initially
    believe the victim, she eventually encouraged the victim to speak
    with the detective. The ex-wife explained that she suggested that
    the victim write down the allegations before her CJC interview
    because the victim had difficulty telling her story. The ex-wife
    also admitted that she told the victim that Boyer had genital
    herpes.
    ¶9     During direct examination, the ex-wife testified that the
    victim disclosed that one of the incidents of abuse occurred on
    blue-and-white-striped sheets. Although she initially doubted
    the veracity of the victim’s allegations, the ex-wife later
    discovered that she and Boyer did have blue-and-white-striped
    sheets. She testified that upon her discovery, “I was floored. I
    was—it was just those things that just happen that made me
    more aware that she was telling the truth.” Trial counsel
    objected to this statement, and the district court sustained the
    objection and struck the statement from the record. During
    cross-examination, trial counsel questioned the ex-wife about the
    sheets, her suggestion that the victim write down the allegations
    against Boyer, and her account of finding the victim crying on
    the floor of her bathroom during the time period of the abuse.
    After the ex-wife completed her testimony, trial counsel moved
    for a mistrial on the basis of her bolstering statement, which the
    court had stricken. The court denied the motion for a mistrial,
    determining that the statement was harmless, but offered to
    instruct the jury that it alone could determine the credibility of a
    witness. Trial counsel declined the instruction for fear of
    drawing further attention to the statement.
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    State v. Boyer
    ¶10 Following the denial of the motion for a mistrial, the State
    presented expert testimony from a psychiatrist specializing in
    sexual abuse cases. The State concluded its case with testimony
    from the nurse who conducted a physical examination of the
    victim following her CJC interview. The nurse testified that the
    victim’s exam was normal, but explained that ninety-five percent
    of the exams she conducts are normal.
    ¶11 After the State rested, the defense called the detective as
    its first witness. The detective testified about the extensive
    professional training he underwent to work with child victims
    and the nationally recognized protocol for interviewing
    suspected child sexual abuse victims. After the detective
    testified, the defense read into evidence a stipulation that the
    victim had informed the police “about a separate incident” in
    which another friend’s father touched her breasts. The
    stipulation indicated “that [the incident] only happened on one
    occasion,” that the friend’s father has denied the allegation, and
    that “no charges have been filed against” the friend’s father.
    ¶12 Boyer testified last and denied the victim’s allegations. He
    testified that his divorce from the ex-wife had been acrimonious
    and that, shortly before the victim’s accusations, one of his sons
    sent him a photograph of the ex-wife apparently passed out on
    the kitchen floor after taking a sleeping pill and possibly
    consuming alcohol. Boyer believed that the victim’s allegations
    resulted from the ex-wife’s desire for retribution. To rebut this
    evidence, the State recalled the ex-wife, who testified that, while
    she did force Boyer out of their home, occasionally drank, and
    took Ambien, her divorce from Boyer was otherwise amicable
    and there were no custody disputes.
    ¶13 In closing arguments, the defense argued that the ex-wife
    had indoctrinated the victim to make false allegations against
    Boyer so that the ex-wife could keep Boyer from seeing their
    sons. The defense further argued that the victim did not know
    that Boyer had genital herpes until the ex-wife told her and
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    State v. Boyer
    never sought medical treatment for her supposed herpes
    outbreaks, did not mention the moles near Boyer’s penis in her
    initial interviews or until much later in the investigation when
    she described Boyer’s moles inaccurately, showed no physical
    signs of abuse, and accused another friend’s father of similar
    conduct yet no charges were filed. The defense also pointed out
    that the State’s expert had opined that consistency and rich
    detail in reports could be an indication of indoctrination.
    ¶14 After closing arguments, the jury found Boyer guilty on
    all counts. Boyer was later sentenced to two consecutive terms of
    fifteen years to life in prison for sodomy upon a child and for
    aggravated sexual abuse of a child, to run concurrently with the
    lesser sentences imposed for the remaining counts.
    ¶15 After sentencing, trial counsel withdrew and appellate
    counsel appeared on Boyer’s behalf. 2 Appellate counsel filed a
    motion for a new trial, arguing ineffective assistance of trial
    counsel, evidentiary errors, and prosecutorial misconduct.
    Appellate counsel also moved to disqualify the trial judge from
    hearing the motion for a new trial, arguing that the trial judge
    was actually and apparently biased. In addition, appellate
    counsel filed a motion to subpoena all of the victim’s medical
    and mental health records from 2005 forward and a motion to
    reconstruct the record with the victim’s medical and mental
    health records that the district court previously reviewed in
    camera and subsequently destroyed.
    ¶16 The district court initially granted the motions to
    subpoena the victim’s medical records and to reconstruct the
    record but reconsidered its ruling at the urging of the victim’s
    counsel and the State. The motion to disqualify was certified to
    the presiding judge, who denied the motion. The district court
    2. The same attorney who represents Boyer on appeal also
    represented Boyer post-sentencing in the district court.
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    State v. Boyer
    then considered briefing and argument on the motion for a new
    trial and denied that motion as well.
    ¶17    Boyer appeals.
    ISSUES AND STANDARDS OF REVIEW
    ¶18 On appeal, Boyer challenges three rulings. First, Boyer
    argues that the district court erred in denying his motion for a
    new trial on various grounds. “When reviewing a trial court’s
    denial of a motion for a new trial, we will not reverse absent a
    clear abuse of discretion by the trial court.” State v. Pinder, 
    2005 UT 15
    , ¶ 20, 
    114 P.3d 551
     (cleaned up). “At the same time,
    however, we review the legal standards applied by the trial
    court in denying such a motion for correctness” and “the trial
    court’s factual findings for clear error.” 
    Id.
     Accordingly, a trial
    court abuses its discretion if its decision is “premised on flawed
    legal conclusions,” Archuleta v. Galetka, 
    2011 UT 73
    , ¶ 152, 
    267 P.3d 232
     (cleaned up), “if the trial court’s decision was beyond
    the limits of reasonability[,] . . . if the trial court’s actions are
    inherently unfair[,] or if we conclude that no reasonable person
    would take the view adopted by the trial court,” State v.
    Arguelles, 
    2003 UT 1
    , ¶ 101, 
    63 P.3d 731
     (cleaned up).
    ¶19 Second, Boyer argues that the district court denied his
    constitutional right to a fair trial in denying his motion to
    disqualify because the trial judge was actually or apparently
    biased. Whether the district court erred in declining to disqualify
    the trial judge on the basis of bias is a question of law, which we
    review for correctness. State v. Alonzo, 
    973 P.2d 975
    , 979 (Utah
    1998).
    ¶20 Finally, Boyer argues that the district court erred in
    refusing to reconstruct the record with the victim’s subpoenaed
    medical and mental health records. Boyer makes this argument
    under article I, section 12 of the Utah Constitution. Issues of
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    State v. Boyer
    constitutional interpretation are also questions of law that we
    review for correctness, “granting no deference to the district
    court.” Sandoval v. State, 
    2019 UT 13
    , ¶ 7, 
    441 P.3d 748
    .
    ANALYSIS
    I. Motion for a New Trial
    ¶21 Boyer contends that the district court erred in denying his
    motion for a new trial because he was prejudiced by the
    cumulative effect of nearly two dozen instances of ineffective
    assistance of counsel, prosecutorial misconduct, and district
    court error. Under the Utah Rules of Criminal Procedure, a
    district court “may, upon motion of a party or upon its own
    initiative, grant a new trial in the interest of justice if there is any
    error or impropriety which had a substantial adverse effect upon
    the rights of a party.” Utah R. Crim. P. 24(a). “Before reversing a
    verdict or sentence under the cumulative error doctrine,” a court
    must make three determinations: “that (1) an error occurred,
    (2) the error, standing alone, has a conceivable potential for
    harm, and (3) the cumulative effect of all the potentially harmful
    errors undermines its confidence in the outcome.” State v.
    Martinez-Castellanos, 
    2018 UT 46
    , ¶ 42, 
    428 P.3d 1038
    . “The
    doctrine will only be applied to errors that are ‘substantial’
    enough to accumulate.” Id. ¶ 40.
    ¶22 Here, Boyer argues that three types of error accumulate to
    warrant a reversal and a new trial—ineffective assistance of
    counsel, prosecutorial misconduct, and erroneous evidentiary
    and procedural rulings. These issues tend to overlap and involve
    common facts. Although the relationship between Boyer’s
    scattershot claims is not always clear, we have attempted to
    group issues together as they relate to different parts of the trial.
    We first address the issues related to other allegations of sexual
    abuse under rule 412, the admission of the psychiatrist’s expert
    testimony, and the production of the victim’s medical and
    20170423-CA                       8                  
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    State v. Boyer
    mental health records. In so doing, we recite additional facts as
    necessary to provide context. We then address the remaining
    ineffective assistance claims as a group and conclude that they
    do not merit further discussion.
    A.     Rule 412 Evidence
    ¶23 Around the same time the victim disclosed Boyer’s abuse
    to the ex-wife and the detective, the victim also reported being
    sexually abused by a cousin (the cousin incident). Specifically,
    the victim reported that she and her cousin went for a bicycle
    ride when she was roughly five years old. The two stopped at a
    trailer, and the cousin pulled down the victim’s pants and
    rubbed her vagina with his fingers. The State disclosed these
    allegations to the defense in 2013.
    ¶24 A short time after her first CJC interview with the
    detective, the victim also disclosed another incident in which
    another friend’s father touched her breasts over her bra one time
    during a sleepover at his house (the sleepover incident). After
    disclosing the sleepover incident to the detective in an interview,
    the victim provided a letter to a district attorney’s office
    investigator who passed it on to the detective. In the letter, the
    victim described the sleepover incident as well as an incident
    where the friend’s father invited the victim into his office to help
    organize papers. The victim alleged that while in the office, the
    friend’s father rubbed the victim’s leg, put the victim on his lap,
    made the victim lie down, rubbed the front of her body, and put
    his hands down her pants (the office incident). The detective
    documented both incidents involving the friend’s father in his
    reports and referenced the letter in one of the reports. The State
    provided trial counsel with both reports before trial but did not
    provide a copy of the letter.
    ¶25 Trial counsel filed motions to admit evidence of both the
    cousin incident and the sleepover incident under rule 412 of the
    Utah Rules of Evidence. The first motion pertained to the cousin
    20170423-CA                     9                 
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    State v. Boyer
    incident. Trial counsel argued that the district court should allow
    evidence of the victim’s allegations to be admitted at trial
    because the victim alleged she was abused by cousin in a
    “similar fashion” as Boyer was alleged to have abused the
    victim, “family members minimized the abuse and were not
    cooperative with law enforcement in the prosecution of the
    relative,” and the allegations were admissible under rule 412 if
    they were false and under rule 412(b) “to negate the sexual
    innocence inference.” The district court denied the motion. Boyer
    made similar arguments in his motion to admit evidence of the
    sleepover incident. But at the hearing on the motion, trial
    counsel and the State agreed that the jury would be informed of
    the victim’s allegations about the sleepover incident by written
    stipulation, 3 leaving the parties free to argue about how to
    interpret such evidence. At trial, the defense read the stipulation
    into evidence, informing the jury that the victim alleged that the
    father of another friend had touched her breasts, that it
    happened only once, and that the State declined to file charges.
    ¶26 During closing argument, trial counsel argued that the
    stipulated evidence of the victim’s other allegation showed that
    the victim was capable of fabricating allegations of sexual abuse.
    The prosecutor responded in rebuttal by contesting the defense’s
    3. It is not clear from the record why defense counsel did not
    seek to admit evidence of the office incident. In direct conflict
    with some of his other arguments, Boyer argues that defense
    counsel erroneously believed that the office incident occurred
    not between the victim and her friend’s father but between the
    victim and her friend because the detective erroneously stated as
    much in his report. Boyer also argues that, if trial counsel had
    investigated the letter, he would have realized that the office
    incident involved the friend’s father. However, in an unsigned
    affidavit submitted with Boyer’s motion for a new trial, trial
    counsel stated that he understood that the office incident
    involved the friend’s father and not the friend.
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    State v. Boyer
    characterization of the victim’s allegation pertaining to the
    sleepover incident:
    This is [a] perfect example of why logic and the
    application of logic is [so] important in this case as
    you go through your deliberations, because if the
    incident occurred—if it really did happen the way
    [the victim] said to [the detective], even though it
    was determined, oh, well, there’s not enough
    evidence to charge. There’s no [ex-wife] to give us
    those—
    At that point, trial counsel objected, arguing that the State had
    broken the stipulation by attempting to talk about the ex-wife’s
    lack of involvement in the other allegation. The district court
    sustained the objection.
    ¶27 On appeal, Boyer makes several arguments pertaining to
    the victim’s pretrial allegations of other incidents of sexual abuse
    perpetrated by individuals other than Boyer. He argues that the
    State engaged in prosecutorial misconduct in mischaracterizing
    the office and sleepover incidents at the hearing on the rule 412
    motion and refusing to turn over the letter. He also argues that
    trial counsel provided ineffective assistance by failing to
    investigate the office incident, failing to object to the prosecutor’s
    representations at the rule 412 hearing, and stipulating only to
    the admission of the sleepover incident.
    ¶28 Each of Boyer’s claims relating to the victim’s other
    allegations assumes that evidence of those allegations would
    have been admissible as an exception to rule 412. 4 If this
    4. Boyer also argues that the State engaged in prosecutorial
    misconduct during rebuttal closing argument when the
    prosecutor appeared to begin to disclose facts outside the
    stipulation in stating, “There’s no [ex-wife] to give us those—.”
    (continued…)
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    State v. Boyer
    evidence was not admissible, the prosecution’s alleged failure to
    disclose and defense counsel’s alleged failure to investigate and
    use this evidence more effectively could not have impacted the
    trial’s outcome. Thus, we address the admissibility of the
    victim’s allegations as a threshold matter and conclude that
    because the allegations were not admissible, any alleged
    missteps with respect to this evidence did not prejudice Boyer.
    ¶29 Rule 412 “serves to bar all evidence of [an] alleged
    victim’s other sexual behavior, ‘whether offered as substantive
    evidence or for impeachment,’” State v. Clark, 
    2009 UT App 252
    ,
    ¶ 14, 
    219 P.3d 631
     (quoting Utah R. Evid. 412 advisory
    committee’s note), including “any truthful evidence that
    involves actual physical conduct or that implies sexual contact,”
    id. ¶ 20 (cleaned up), and “all evidence that may have a sexual
    connotation for the fact finder,” State v. Tarrats, 
    2005 UT 50
    , ¶ 22,
    
    122 P.3d 581
     (cleaned up). However, there are exceptions to rule
    412’s bar, one of which Boyer argues applies here.
    ¶30 Rule 412(b)(3) allows for the admission of evidence of an
    alleged victim’s other sexual behavior if the exclusion of such
    (…continued)
    Because our supreme court has recognized that “prosecutorial
    misconduct is not ‘a standalone basis for independent judicial
    review,’” State v. Reid, 
    2018 UT App 146
    , ¶ 40, 
    427 P.3d 1261
    (quoting State v. Hummel, 
    2017 UT 19
    , ¶ 111, 
    393 P.3d 314
    ), we do
    not directly review the prosecutor’s actions, but that of the
    district court, 
    id.
     Here, the prosecutor’s potentially problematic
    statement was cut short by trial counsel’s objection that the
    prosecutor had “broken his own stipulation.” The district court
    sustained the objection and, out of the presence of the jury, the
    prosecutor agreed to limit his argument to the terms of the
    stipulation. Boyer has not challenged the district court’s ruling
    or argued how the district court should have responded
    differently to the prosecutor’s statements.
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    evidence would violate the defendant’s “constitutional rights” to
    a fair trial. See State v. Thornton, 
    2017 UT 9
    , ¶ 74, 
    391 P.3d 1016
    (cleaned up). Among those rights is the defendant’s right to
    present      a    meaningful      defense   through     “reasonable
    cross-examination.” State v. Marks, 
    2011 UT App 262
    , ¶ 13, 
    262 P.3d 13
     (cleaned up). But that right is “not without limitation”
    and may “bow to accommodate other legitimate interests in the
    criminal process,” such as concerns about “harassment,
    prejudice, confusion of the issues, the witness’s safety, or
    interrogation that is repetitive or only marginally relevant.”
    Clark, 
    2009 UT App 252
    , ¶ 16 (cleaned up). Therefore, to admit
    evidence of an alleged victim’s other sexual behavior, the
    defendant must meet the “high bar” of demonstrating that he
    has a “weighty interest that is significantly undermined by” the
    exclusion of such evidence and that exclusion under rule 412 is
    “arbitrary or disproportionate to the purposes [the rule] is
    designed to serve.” Thornton, 
    2017 UT 9
    , ¶ 77 (cleaned up). In
    other words, the defendant must show that “the evidence in
    question is essential to the presentation of [his] defense.” Id.
    ¶ 78.
    ¶31 Apart from this exception, our supreme court has also
    held that rule 412 poses no bar to a similar type of evidence—an
    alleged victim’s prior false allegations of sexual abuse.
    “Evidence of false statements of unrelated sexual assaults are not
    excluded by the rape shield rule because they are not evidence of
    sexual conduct per se.” Tarrats, 
    2005 UT 50
    , ¶ 24 (cleaned up).
    However, because “a truthful prior allegation of rape carries no
    value whatsoever in the trial process, and its admission into the
    evidence bears a high potential for humiliating the accuser,
    discouraging victims from reporting sexual crimes against them,
    and introducing irrelevant and collateral issues that may confuse
    or distract the jury,” “any potential probative value . . . prior
    allegations of [sexual abuse] bear depends upon them being
    false.” 
    Id.
     “Thus, in order to ensure that such improper evidence
    is not admitted, a defendant who wishes to impeach his
    accuser’s credibility with the accuser’s prior allegation of [sexual
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    State v. Boyer
    abuse] must first demonstrate by a preponderance of the
    evidence that the allegation was false.” Id. ¶ 25. And even if the
    defendant is able to make this threshold showing, “[t]rial judges
    [retain] wide discretion in limiting the scope and extent of
    cross-examination and the admissibility of evidence to that end.”
    Id.
    ¶32 Boyer contends that the office incident and the cousin
    incident are admissible as evidence necessary to the presentation
    of Boyer’s defense, see Utah R. Evid. 412(b)(3), and that the office
    incident is admissible as a false allegation of sexual abuse. 5 But
    we conclude that Boyer has not shown that evidence of either the
    office or cousin incidents were admissible under either theory.
    ¶33 First, it is apparent from the record that the defense’s
    primary theory was that the ex-wife had indoctrinated the victim
    to fabricate the allegations against Boyer and that the ex-wife
    was motivated to do so out of bitterness after her divorce from
    Boyer and the possibility that she might lose custody of her
    children. Boyer presented evidence at trial to support this
    theory. For example, trial counsel elicited testimony from the
    victim and the ex-wife that they had a very close relationship.
    The victim also testified that the ex-wife told her Boyer suffered
    from genital herpes and that is why she reported to the nurse
    practitioner that she suffered from herpes outbreaks. The ex-wife
    also testified that she ended her marriage to Boyer abruptly,
    rather than amicably, when she removed his belongings and
    locked him out of their family home. She also admitted that she
    had a drinking problem, for which she in part blamed Boyer.
    Boyer testified that one of his sons provided him with a
    5. By extension, Boyer argues that he was prejudiced by the
    prosecutor’s misrepresentation of the office incident at the rule
    412 hearing and that trial counsel was deficient for failing to
    uncover that the office incident involved the other friend’s
    father.
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    photograph of the ex-wife apparently passed out in the middle
    of the kitchen floor after taking a sleeping pill and possibly
    consuming alcohol. In addition, through the stipulation, trial
    counsel was able to argue that the victim was capable of
    fabricating allegations because she may have done so regarding
    the uncharged sleepover incident.
    ¶34 In light of the defense theory and supporting evidence
    that Boyer argued to the jury at trial, Boyer cannot meet the
    “high bar” to show that evidence of the victim’s other allegations
    was essential to the presentation of his defense. See Thornton,
    
    2017 UT 9
    , ¶ 77. Although Boyer argues that the State did not
    turn over the letter regarding the office incident to hide its “lack
    of confidence” in the victim and that evidence of that allegation
    in combination with the cousin incident evidence could have
    been used to challenge the psychiatrist’s expert testimony, Boyer
    has not shown how accomplishing either of those goals was
    necessary to his defense. Boyer’s primary theory was that the
    victim fabricated the allegations at the behest of the ex-wife, and
    he was allowed to present evidence to support his argument that
    the victim was inconsistent and dishonest and that the ex-wife
    had motive to indoctrinate the victim. Accordingly, the district
    court acted within its discretion in ruling that Boyer’s
    “arguments about the evidence [of other allegations] are
    speculative” and that he “failed to show that evidence would be
    admissible under [an] exception to rule 412.”
    ¶35 Second, Boyer cannot establish by a preponderance of the
    evidence that the victim’s allegations regarding either the cousin
    incident or the office incident were false. See Clark, 
    2009 UT App 252
    , ¶ 22. To carry his burden, Boyer must show that it is “more
    likely than not” that the victim fabricated the other allegations.
    See Kilgore Cos. v. Utah County Board of Adjustment, 
    2019 UT App 20
    , ¶ 17, 
    438 P.3d 1025
     (cleaned up). But Boyer has not pointed to
    any evidence he could have offered to refute the victim’s
    accounts, particularly given that the other friend’s father was
    unwilling to cooperate with Boyer’s defense and the victim’s
    20170423-CA                     15                
    2020 UT App 23
    State v. Boyer
    cousin died before Boyer’s trial. 6 As a result, Boyer could not
    have carried his burden to prove that the victim’s allegations
    were false.
    ¶36 Because Boyer has failed to show that evidence of the
    cousin incident and the office incident are admissible, he cannot
    show that trial counsel was ineffective for failing to investigate
    the letter and in stipulating to the introduction of only the
    sleepover incident or that the State withheld material
    exculpatory evidence in failing to turn over the letter. Trial
    counsel was in possession of the police reports detailing the
    office incident and could have reasonably believed that the
    information in the stipulation was more than what the district
    court would have otherwise admitted and that the other
    allegations were inadmissible and unnecessary to the defense.
    See Strickland v. Washington, 
    466 U.S. 668
    , 690–91 (1984) (stating
    that “strategic choices made after thorough investigation of law
    and facts relevant to plausible options are virtually
    unchallengeable” but that even “strategic choices made after less
    than complete investigation are reasonable precisely to the
    extent that reasonable professional judgments support the
    limitations on investigation”). Similarly, even assuming failure
    to turn over the victim’s letter detailing the office incident
    constitutes error, there is no reasonable likelihood that such an
    6. The stipulation concerned the sleepover incident, not the office
    incident. But even assuming that Boyer could have secured a
    similar stipulation with respect to the office incident, the mere
    fact that no charges were filed would not establish, by a
    preponderance of the evidence, that the victim’s allegations
    regarding the office incident were false. See Hughes v. Raines, 
    641 F.2d 790
    , 792 (9th Cir. 1981) (holding that a prosecutor’s decision
    not to press charges does not establish that a prior accusation of
    sexual assault was false because that decision “could mean no
    more than that [the prosecutor] did not have sufficient evidence
    to obtain a conviction”).
    20170423-CA                    16                
    2020 UT App 23
    State v. Boyer
    error had any effect on the outcome of the proceedings because
    the letter itself was inadmissible. See Walker v. State, 
    624 P.2d 687
    ,
    691 (Utah 1981) (reversing for the State’s failure to disclose
    evidence favorable to the defense where there “exist[ed] a
    reasonable likelihood the false impression fostered by the
    prosecutor could have affected the judgment of the jury”).
    Accordingly, all of Boyer’s claims relating to the evidence of the
    victim’s other allegations of sexual abuse fail.
    B.     The Psychiatrist’s Expert Testimony
    ¶37 In November 2015, before Boyer’s first trial, the State filed
    notice of an expert who would testify about “delayed disclosure
    in child sexual abuse cases and risks associated with being a
    victim of child sexual abuse.” In response, trial counsel argued
    that the notice was insufficient and requested a continuance or,
    alternatively, that the psychiatrist’s testimony be excluded. The
    district court granted trial counsel’s motion to continue in order
    to give the defense time to investigate the psychiatrist’s
    proposed testimony.
    ¶38 At trial the following year, the State elicited testimony
    from the psychiatrist that he was board certified in forensic
    psychiatry and child psychiatry since 1998, had published
    scholarly work pertaining to child trauma, was responsible for
    assessing and treating child victims of abuse for thirteen years,
    and had focused his practice on child abuse for thirty-six years.
    After presenting the psychiatrist’s credentials, the prosecutor
    then began examining the psychiatrist “based on [the
    psychiatrist’s] body of experience and training and knowledge”
    he had accumulated over his decades of practice. When the
    prosecutor asked whether, based on the psychiatrist’s expertise,
    immediate disclosure or delayed disclosure of child sexual abuse
    was more common, trial counsel objected for lack of foundation.
    The district court allowed trial counsel to conduct voir dire, and
    after questioning the witness, trial counsel argued that the
    psychiatrist’s testimony was based on data to which the defense
    20170423-CA                      17                
    2020 UT App 23
    State v. Boyer
    had not been given notice. Trial counsel conducted additional
    voir dire, and the psychiatrist testified that his testimony would
    primarily rely on his “history of work with victims and
    knowledge of child sexual abuse.” The district court ruled that
    the psychiatrist’s testimony did not rely on “specialized data,” to
    which Boyer would be entitled to access pursuant to Utah Code
    section 77-17-13(2), but rather on the psychiatrist’s thirty-year
    practice. Nevertheless, the court instructed the psychiatrist not to
    “specifically cite a study or anything else like that” in giving his
    testimony.
    ¶39 During direct examination, the psychiatrist testified that
    children who suffer sexual abuse have an “increased lifetime
    risk” of “a variety of conditions” including suicidality, substance
    abuse, and “later sexual problems,” such as misperceiving a
    person’s intentions from an innocent show of affection in the
    future. The psychiatrist also testified that delayed disclosure was
    common among child victims. The psychiatrist acknowledged
    that he had not “been briefed on the underlying facts and
    allegations related to [the State’s] case,” had no knowledge of the
    victim’s mental health or medical history, and had never met
    with or treated the victim as a patient.
    ¶40 On appeal, Boyer argues that the psychiatrist’s testimony
    lacked foundation and improperly bolstered the victim’s
    allegations. As a result, Boyer argues, the district court erred in
    admitting the psychiatrist’s testimony and trial counsel was
    ineffective for failing to file a motion in limine to exclude the
    testimony. 7 Because Boyer’s claims of district court error and
    7. In a single sentence, Boyer also appears to argue that the
    district court erred in admitting the psychiatrist’s testimony
    because it was unhelpful to the jury. See Utah R. Evid. 702(a). To
    the extent that Boyer has even raised this as an issue for our
    review, it is inadequately briefed and we decline to reach it. See
    State v. Green, 
    2005 UT 9
    , ¶ 11, 
    108 P.3d 710
     (explaining that an
    (continued…)
    20170423-CA                     18                
    2020 UT App 23
    State v. Boyer
    ineffective assistance of counsel both depend upon whether the
    psychiatrist’s testimony actually lacked foundation or
    impermissibly bolstered the victim’s allegations against Boyer,
    we address those questions as a threshold matter.
    ¶41 A district court has discretion to admit or exclude expert
    testimony, and we will not conclude that a district court has
    erred in admitting such testimony absent an abuse of that
    discretion. State v. Maestas, 
    2012 UT 46
    , ¶ 154, 
    299 P.3d 892
    . A
    district court abuses its discretion when it admits evidence that
    does not meet a threshold showing of reliability. Id. ¶ 121. Under
    rule 702(a) of the Utah Rules of Evidence, a witness “who is
    qualified as an expert by knowledge, skill experience, training,
    or education may testify in the form of an opinion or otherwise”
    if the expert has “scientific, technical, or other specialized
    knowledge” that will help the jury “understand the evidence” or
    “determine a fact in issue.” Rule 702(b) also requires the party
    offering the expert testimony to make a “threshold showing that
    the principles or methods that are underlying in the testimony
    (1) are reliable, (2) are based upon sufficient facts or data, and (3)
    have been reliably applied to the facts.” “Under this rule, courts
    should generally exclude testimony if the testimony is within the
    knowledge or experience of the average individual” and must
    “always take care to ensure that the testimony does not
    transgress into the area reserved for the jury—including
    credibility assessments.” State v. Martin, 
    2017 UT 63
    , ¶ 29, 
    423 P.3d 1254
     (cleaned up).
    ¶42 Boyer first contends that the State did not make the
    threshold showing of reliability. In support of this contention,
    Boyer cites a law review article that suggests that one study
    (…continued)
    appellant’s brief is inadequate when it provides only “one or
    two sentences stating his argument generally and then broadly
    conclude[s] that he [is] entitled to relief” (cleaned up)).
    20170423-CA                      19                
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    State v. Boyer
    listed in the psychiatrist’s curriculum vitae cannot be relied
    upon to discern common traits among child sexual abuse
    victims. But even accepting the premise of that law review
    article as true, Boyer ignores that the psychiatrist did not
    testify based on the scholarly work listed in his curriculum
    vitae. In fact, the district court prohibited the psychiatrist
    from doing so in its instruction after voir dire. Rather, the
    psychiatrist testified based on his thirty years of experience
    working with child abuse victims, for which the State laid ample
    foundation, and Boyer has not challenged the psychiatrist’s
    training and experience as a child abuse psychiatrist. Boyer has
    not made any effort to explain how the psychiatrist’s extensive
    training and practical experience were inadequate to support his
    testimony of “specialized knowledge” about the behaviors and
    symptoms consistent with child sexual abuse victims.
    Accordingly, Boyer has not demonstrated that the district court
    abused its discretion in making its threshold reliability
    determination, see State v. Roberts, 
    2015 UT 24
    , ¶ 56, 
    345 P.3d 1226
     (rejecting challenge to the admission of expert testimony
    where defendant pointed to no record evidence or supporting
    authority to refute the court’s reliability determination), or that
    trial counsel performed deficiently in failing to file a motion
    objecting to the psychiatrist’s testimony based on lack of
    foundation.
    ¶43 Boyer also contends that trial counsel performed
    deficiently in failing to object to the admission of the
    psychiatrist’s testimony as impermissibly bolstering the victim’s
    allegations or, alternatively, if the objection was preserved, that
    the district court erred in allowing such testimony. Specifically,
    Boyer contends that the psychiatrist’s “behavioral theory invited
    jurors to infer that [the victim’s] behavioral history
    circumstantially proved her claims true.”
    ¶44 “While experts may use their expertise to help the
    factfinder understand issues at trial, experts cannot testify that a
    particular witness has or has not told the truth.” State v. Burnett,
    20170423-CA                     20                
    2020 UT App 23
    State v. Boyer
    
    2018 UT App 80
    , ¶ 25, 
    427 P.3d 288
    . Rule 608(a) of the Utah
    Rules of Evidence “prohibits any testimony as to a witness’s
    truthfulness on a particular occasion.” State v. Rimmasch, 
    775 P.2d 388
    , 391 (Utah 1989), superseded in part by rule as stated in
    State v. Maestas, 
    2012 UT 46
    , 
    299 P.3d 892
    . Applying rule 608(a),
    our supreme court has held that “an expert may not express an
    opinion as to a child’s truthfulness with respect to statements of
    child sex abuse.” State v. Ramsey, 
    782 P.2d 480
    , 485 (Utah 1989).
    Expert testimony that a victim’s behavior matches a
    psychological profile for victims of sexual abuse is likewise
    impermissible. Rimmasch, 775 P.2d at 402 n.13.
    ¶45 On the other hand, evidence of “the manifestation of
    certain behavioral symptoms may have some probative value as
    circumstantial evidence,” and “[e]xpert testimony that such
    symptoms are consistent with sexual abuse, subject to
    appropriate limitations and instructions to the jury, may enable
    the jury to assess the probative relevance of the evidence in light
    of all other evidence.” State v. Kallin, 
    877 P.2d 138
    , 141 (Utah
    1994). Such testimony “does not amount to inadmissible
    profiling evidence, because [it] does not prove directly the
    ultimate legal conclusion that a particular victim has been
    abused” and therefore does not improperly invade “the province
    of the jury as factfinder.” Burnett, 
    2018 UT App 80
    , ¶ 27 (cleaned
    up).
    ¶46 Here, the psychiatrist’s testimony does not constitute
    inadmissible profiling evidence or improper bolstering of
    the victim’s credibility. The psychiatrist testified about “mental
    health problems, physical problems, [and] behavioral problems”
    that are common among child sexual abuse victims. He
    also explained that such “problems” among victims can
    occur “down the road” from the abuse and that there are a
    “large number” of possible psychological effects of sexual
    abuse for child victims, including that victims of child
    sexual abuse can be “more vulnerable to misperceiving”
    innocent shows of affection, commonly delay disclosing the
    20170423-CA                    21                
    2020 UT App 23
    State v. Boyer
    abuse, and can tend to communicate “some level of
    inconsistency” in their disclosures depending on their
    circumstances.
    ¶47 Importantly, the psychiatrist did not testify about how
    “to discern truthful sexual abuse allegations from false ones”
    and did not testify about how often children make false
    allegations. See id. ¶ 36 (holding that the psychiatrist expert’s
    testimony about how often and under what circumstances
    children fabricate sexual abuse allegations was impermissible
    bolstering because the “prosecution was clearly inviting the
    jury to draw inferences about [the victim’s] credibility
    based upon [the expert’s] past experience” (cleaned up)). The
    psychiatrist also did not speak “in terms of probabilities” or
    “offer direct opinions on the truthfulness” of the victim’s
    allegations. See State v. King, 
    2010 UT App 396
    , ¶ 45, 
    248 P.3d 984
    (cleaned up) (holding that testimony from a police officer and
    a social worker that they were not “inclined to pursue all
    claims that came before them” was not impermissible
    bolstering). And while the psychiatrist did testify that
    delayed and inconsistent disclosure was common among
    child sexual abuse victims in his professional practice, he did
    not “seek to connect [his] testimony about the general
    behavioral characteristics of child victims of sexual abuse to”
    the victim’s specific conduct. See Martin, 
    2017 UT 63
    , ¶¶ 10, 33
    (holding that expert testimony from a CJC forensic
    interviewer “regarding common behaviors” of child sexual
    abuse victims and why victims “often make incomplete
    disclosures and disclose additional details and facts
    pertaining to their sexual abuse over time” was not
    impermissible bolstering). Indeed, the psychiatrist did not
    address or opine, even hypothetically, whether the evidence
    presented regarding the victim and any physical or mental
    problems she may have suffered was indicative of abuse and
    confirmed that he had never met the victim and was not
    aware of any facts pertaining to her life or the allegations against
    Boyer.
    20170423-CA                     22                
    2020 UT App 23
    State v. Boyer
    ¶48 Ultimately, the psychiatrist’s testimony here is
    distinguishable from the type of bolstering testimony our courts
    have held to be impermissible. See generally, e.g., State v. Rammel,
    
    721 P.2d 498
     (Utah 1986); Burnett, 
    2018 UT App 80
    ; State v. Iorg,
    
    801 P.2d 938
     (Utah Ct. App. 1990). As a result, trial counsel did
    not render deficient performance by not raising a bolstering
    objection, and the district court did not plainly err by not
    excluding the testimony sua sponte.
    C.     The Victim’s Medical and Mental Health Records
    ¶49 In May 2015, the State learned from the victim’s aunt
    that the victim had been admitted to the hospital after
    discussing and apparently attempting suicide because “it didn’t
    seem like anybody was listening or caring, . . . [and Boyer’s trial]
    was just never going to come around and [the victim] was
    tired of worrying about it.” According to the victim’s aunt, the
    victim had been diagnosed with PTSD and attachment
    disorder while she was being treated in the hospital. After
    learning of the victim’s hospitalization, the State disclosed the
    information it had received to trial counsel. Rather than
    litigate the issue, the State and trial counsel stipulated to the
    district court’s in camera review of the victim’s hospitalization
    records for relevant exculpatory information. The district court
    reviewed the records in camera and determined that they
    contained no information of exculpatory value. Without
    objection from the State and trial counsel, the district court
    shredded the records.
    ¶50 At trial, after hearing testimony from the victim about
    how her feelings that she “didn’t want to live any more” were in
    some “way connected to the things” the victim testified to
    regarding Boyer, trial counsel made another motion to produce
    the medical and mental health records the district court
    reviewed in camera, arguing that the victim’s testimony revealed
    that the records contained exculpatory evidence. The district
    20170423-CA                     23                
    2020 UT App 23
    State v. Boyer
    court reiterated that there “was nothing exculpatory in those
    records at all” and denied trial counsel’s motion. 8
    ¶51 After Boyer was convicted, appellate counsel filed
    a motion to re-subpoena the records the district court had
    already reviewed as well as the last ten years of the victim’s
    school counseling records. The district court denied
    Boyer’s motion as to all of the victim’s records, specifically
    determining that Boyer had “failed to show in post-trial
    proceedings that he is entitled to have the [district court]
    issue subpoenas” for the victim’s medical and mental health
    records.
    ¶52 On appeal, Boyer argues that his trial counsel provided
    ineffective assistance for failing to request subpoenas for
    additional medical and mental health records before trial, for
    failing to consult with experts regarding the probative value of
    the victim’s records, for failing to object to the district court
    shredding the victim’s records after in camera review, and for
    failing to provide memoranda to guide the court’s in camera
    review. 9 He also claims that the district court erred in
    8. The parties specifically stipulated that the district court would
    review the victim’s records in camera and provide “both parties
    with any materials that contain relevant inculpatory or
    exculpatory information.” However, under rule 506 of the Utah
    Rules of Evidence and our case law, neither Boyer nor the State
    was entitled to the production of the privileged information
    contained in the records unless the district court found that the
    records contained materially exculpatory evidence or the victim
    had waived the privilege. See State v. Blake, 
    2002 UT 113
    , ¶ 23, 
    63 P.3d 56
    .
    9. Boyer also argues that trial counsel was ineffective for failing
    to request the victim’s school records from every school the
    victim had attended for the preceding ten years, all of the
    (continued…)
    20170423-CA                     24                
    2020 UT App 23
    State v. Boyer
    denying his post-verdict motions to subpoena the victim’s
    records.
    ¶53 Even with the benefit of new counsel and additional
    post-verdict investigation, Boyer cannot establish that he was
    entitled to an in camera review of the victim’s medical and
    mental health records below, let alone that he was entitled to
    the production of those records. As a result, the district court
    did not err in denying his post-verdict motions and his
    trial counsel did not render ineffective assistance by
    forgoing further efforts to obtain records to which Boyer was not
    entitled.
    (…continued)
    victim’s DCFS records, and the victim’s cell phone records from
    the day and time of the victim’s first CJC interview. He also
    argues that the district court erred in denying appellate counsel’s
    motion to subpoena those records. The district court summarily
    denied Boyer’s post-trial motion for subpoenas, and the State
    contends that rule 14(b) of the Utah Rules of Criminal Procedure,
    which sets forth the procedure for subpoenaing victim records in
    a criminal case, does not entitle defendants to subpoena records
    post-trial. See Utah R. Crim. P. 14(b)(3) (stating that a request for
    the production of victim records “shall be filed with the court as
    soon as practicable, but no later than 28 days before trial, or by
    such other time as permitted by the court”). Even assuming that
    defendants are entitled to subpoena victim records post-trial,
    Boyer has failed to point to any authority or facts in the record to
    support his contention that he is entitled to the subpoenas under
    Utah and federal law. See 
    id.
     R. 14(b)(1) (“No subpoena . . .
    compelling the production of medical, mental health, school, or
    other non-public records pertaining to a victim shall be issued by
    or at the request of the defendant unless the court finds . . . that
    the defendant is entitled to production of the records . . . under
    applicable state and federal law.”).
    20170423-CA                     25                 
    2020 UT App 23
    State v. Boyer
    ¶54 Under rule 506(b) of the Utah Rules of Evidence, patients
    have a presumptive “privilege . . . to refuse to disclose and to
    prevent any other person from disclosing information that is
    communicated in confidence to a physician or mental health
    therapist for the purpose of diagnosing or treating the patient.”
    “Although this privilege is an important one, the rule provides
    exceptions in certain circumstances, one of which [Boyer]
    suggests is applicable here.” See State v. Blake, 
    2002 UT 113
    , ¶ 18,
    
    63 P.3d 56
    , 61; see also Utah R. Evid. 506(d)(1)–(3). Specifically,
    Boyer argues that the exception contained in rule 506(d)(1)
    applies to this case. 10
    ¶55 Rule 506(d)(1) provides, in relevant part, that no privilege
    exists for “communications relevant to an issue of the physical,
    mental, or emotional condition of the patient . . . in any
    proceeding in which that condition is an element of any claim or
    defense.” Utah R. Evid. 506(d)(1)(a). This exception requires the
    party seeking production of records to demonstrate: (1) “the
    patient suffers from a physical, mental, or emotional condition as
    opposed to mental or emotional problems that do not rise to the
    level of a condition,” (2) “the patient’s condition is an element of
    any claim or defense” at issue, and (3) “the defendant has shown
    with reasonable certainty that the . . . records will contain
    10. Boyer also argues that the victim waived the privilege by
    testifying at trial about the hospitalization. The victim’s
    testimony was limited to describing the “emotional troubles”
    and suicidal ideation that led to her hospitalization and
    confirming, in response to the prosecutor’s question, that those
    problems were “connected to the things” she had testified about
    regarding Boyer. Because the victim did not disclose her
    privileged communications with her treatment providers, she
    did not waive the privilege. See Utah R. Evid. 510(a) (providing,
    in part, that a privilege is waived when the person holding the
    privilege “voluntarily discloses or consents to the disclosure of
    any significant part of the matter or communication”).
    20170423-CA                     26                
    2020 UT App 23
    State v. Boyer
    exculpatory evidence to the defense.” State v. J.A.L., 
    2011 UT 27
    ,
    ¶ 48, 
    262 P.3d 1
     (cleaned up).
    ¶56 Boyer argues that the victim’s reported diagnoses of
    attachment disorder and PTSD satisfies the requirement that the
    victim suffered from “a physical, mental, or emotional
    condition.” For purposes of the rule, “[a] mental or an emotional
    condition is a state that persists over time and significantly
    affects a person’s perceptions, behavior, or decision making in a
    way that is relevant to the reliability of the person’s testimony.”
    State v. Worthen, 
    2009 UT 79
    , ¶ 21, 
    222 P.3d 1144
    . In an attempt to
    meet this standard, Boyer relies on the affidavits of two doctors,
    whose opinions appellate counsel secured post-trial, who state
    that children who suffer from attachment disorder “will do
    whatever it takes to obtain their wants and needs including
    lying, being aggressive, stealing, or . . . engag[ing] in self-harm.”
    Boyer claims that “the attachment disorder diagnosis would
    have illuminated [the victim’s] bond with [the ex-wife], or Mom,
    as she called her (until she moved in with her aunt and started
    calling her Mom), and also suggested that [the victim] may have
    been prone to lie.” (Cleaned up). Boyer also suggests that the
    victim’s “PTSD, suicidality and depression, medically may have
    undermined her cognitive functioning and ability to testify
    reliably—and ‘might lead to uncertainty’ regarding her
    trustworthiness, satisfying the third prong of [rule] 506(d)(1).”
    (Cleaned up).
    ¶57 For purposes of this appeal, we assume, without deciding,
    that the victim’s attachment disorder qualifies as a chronic and
    persistent “condition” under the rule and we accept as true the
    defense expert’s declarations that such a condition is relevant to
    the reliability of the victim’s testimony. But even assuming that,
    with the benefit of the additional investigation and briefing, trial
    counsel could have established the first two requirements of rule
    506(d)(1)(a), Boyer still cannot establish with reasonable
    certainty that the sought-after records contain exculpatory
    evidence. Reasonable certainty “lies on the more stringent side of
    20170423-CA                     27                 
    2020 UT App 23
    State v. Boyer
    ‘more likely than not.’” Blake, 
    2002 UT 113
    , ¶ 20. “This is a
    stringent test, necessarily requiring some type of extrinsic
    indication that the evidence within the records exists and will, in
    fact, be exculpatory.” Id. ¶ 19. “The difficulty in meeting this test
    is deliberate and prudent in light of the sensitivity of these types
    of records and the worsening of under-reporting problems in the
    absence of a strong privilege.” Id.
    ¶58 Even with the benefit of the additional post-trial
    investigation and briefing conducted by appellate counsel, Boyer
    has not met this stringent test. Boyer has offered no basis to
    conclude that the victim’s school counseling records contain any
    information regarding the conditions Boyer claims are relevant
    to his defense. As to the 2014 and 2015 hospital records, Boyer
    claims that the “aunt’s interview revealing the diagnoses and [a
    post-trial expert’s] declaration about what the records would be
    expected to contain were extrinsic evidence of what the records
    contained.” (Cleaned up). At most, Boyer has established a
    reasonable certainty that those records would contain diagnoses
    that, according to the defense’s post-trial experts, could have
    adversely affected the reliability of the victim’s testimony. But
    the State disclosed those diagnoses before trial, and Boyer does
    not explain why trial counsel’s failure to secure the victim’s
    records prevented him from presenting that defense.
    ¶59 The only other “extrinsic evidence” Boyer relies on is
    the victim’s testimony that “this case was only part of the
    reason” she was hospitalized. Based on that testimony, Boyer
    speculates that the records “should indicate causes other than
    Boyer for [the victim’s] depression, suicidality and PTSD,” such
    as “other perpetrators, the victim’s family difficulties, or other
    causes for treatment.” (Citations omitted.) Not only is this
    argument speculative, it is untethered from the rest of the rule
    506(d)(1) analysis. Boyer can arguably satisfy the first two
    prongs of the exception only because he has offered some
    evidence that the victim’s attachment disorder was a “condition”
    that may have a bearing on her ability to testify truthfully. But
    20170423-CA                     28                 
    2020 UT App 23
    State v. Boyer
    he has not established either that these “other causes” for the
    victim’s treatment rise to the level of a condition for purposes of
    the rule or that any such condition affected the victim’s
    testimony.
    ¶60 Put simply, Boyer cannot show that he would have been
    entitled to in camera review of the victim’s mental health
    records even if trial counsel had done all that appellate counsel
    has in pursuit of the records. Far from rendering deficient
    performance, trial counsel secured a stipulation allowing an in
    camera review of the victim’s hospitalization records, which was
    more than Boyer was entitled to. Because Boyer had no right to
    such a review, we further conclude that the district court
    properly denied Boyer’s post-trial motion to subpoena the
    records.
    D.    Remaining Claims of Ineffective Assistance of Counsel
    ¶61 In addition to the ineffective assistance of counsel claims
    addressed above, Boyer has identified several additional
    instances in which he claims that his trial counsel rendered
    ineffective assistance. Unlike the ineffective assistance claims we
    have already addressed, these remaining claims do not turn on
    our resolution of separate legal issues. Instead, they turn on the
    constitutional standard for demonstrating denial of the
    defendant’s Sixth Amendment right to counsel.
    ¶62 To show that trial counsel provided ineffective assistance,
    Boyer has the burden of establishing first that trial “counsel’s
    performance was deficient” in that “counsel made errors so
    serious that counsel was not functioning as the ‘counsel’
    guaranteed the defendant by the Sixth Amendment.” Strickland
    v. Washington, 
    466 U.S. 668
    , 687 (1984). The purpose of the right
    to counsel is “to ensure that criminal defendants receive a fair
    trial” and not “to improve the quality of legal representation.”
    
    Id. at 689
    . As a result, “[j]udicial scrutiny of counsel’s
    performance must be highly deferential.” 
    Id. at 689
    . Because “it
    20170423-CA                    29                
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    State v. Boyer
    is all too tempting for a defendant to second-guess counsel’s
    assistance after conviction or adverse sentence,” “the defendant
    must overcome the presumption that, under the circumstances,
    the challenged action might be considered sound trial strategy.”
    
    Id.
     (cleaned up). We emphasize that “there are countless ways to
    provide effective assistance in any given case” and that “[e]ven
    the best criminal defense attorneys would not defend a
    particular client in the same way.” 
    Id.
    ¶63 In this case, Boyer recites a long list of instances where he
    believes that trial counsel performed deficiently in investigating
    and presenting Boyer’s defense at trial. We “need not analyze
    and address in writing each and every argument, issue, or claim
    raised and properly before us on appeal.” State v. Jones, 
    783 P.2d 560
    , 565 (Utah Ct. App. 1989) (cleaned up). Although we do not
    recite each of Boyer’s ineffective assistance claims, Boyer
    generally claims that trial counsel performed in an objectively
    deficient manner by:
    •   not retaining an expert to review the victim’s
    first CJC interview;
    •   not retaining an expert to evaluate the nurse
    practitioner’s opinion;
    •   not cross-examining the ex-wife at Boyer’s
    second trial about her inconsistent descriptions
    of how the victim initially disclosed Boyer’s
    abuse;
    •   not further impeaching the victim           with
    testimony from Boyer’s first trial;
    •   not moving to strike all of the ex-wife‘s
    testimony after objecting to the ex-wife’s
    bolstering statement and the court sustained the
    objection;
    20170423-CA                    30               
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    State v. Boyer
    •   using the photographs of Boyer’s genitals to
    argue that the victim’s descriptions were
    inaccurate, rather than moving to exclude the
    photographs or conduct additional cross-
    examination of the detective and the victim;
    and
    •   not cross-examining the victim about her prior
    testimony that the ex-wife was always home
    during Boyer’s abuse.
    ¶64 After fully reviewing each of the claims raised on appeal,
    we conclude that Boyer has not carried his burden of
    demonstrating that he was deprived of effective assistance of
    counsel. In support of his claims, Boyer makes little more than
    bare assertions that trial counsel’s decisions were objectively
    unreasonable and therefore deficient. He has not explained why
    trial counsel’s alleged “acts or omissions” could not “have been
    the result of reasonable professional judgment,” nor has he
    explained how these alleged errors impeded his ability to receive
    a fair trial. See Strickland, 
    466 U.S. at 690
    . Furthermore, Boyer has
    pointed us to no authority that would overcome our
    presumption that trial counsel’s investigation of and opposition
    to the State’s evidence was reasonable in the context of the
    defense’s trial strategy.
    ¶65 Constitutionally ineffective assistance occurs when
    counsel makes errors “so serious that counsel was not
    functioning as the ‘counsel’ guaranteed the defendant by the
    Sixth Amendment.” 
    Id. 687
    . Simply identifying arguably better
    choices that trial counsel could have made does not establish
    that trial counsel erred, let alone that those alleged errors were
    “so serious” that Boyer was deprived of his constitutional right
    to counsel. Just as due process guarantees a fair trial, but not a
    perfect one, see Lutwak v. United States, 
    344 U.S. 604
    , 619 (1953),
    the right to counsel guarantees a competent attorney, not one
    whose performance is impervious to critique. An ineffective
    20170423-CA                     31                 
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    State v. Boyer
    assistance of counsel claim is not an invitation to flyspeck the
    record and, with the luxury of time and the benefit of hindsight,
    identify ways in which counsel might have been even more
    effective. In denying Boyer’s motion for a new trial, the district
    court observed that Boyer was “well-represented at trial and
    throughout the litigation.” Our review of the record confirms
    this assessment. Accordingly, we reject Boyer’s remaining
    ineffective assistance of counsel claims.
    E.     Cumulative Error
    ¶66 Boyer has not shown any error in his trial proceedings.
    Because the cumulative error doctrine does not apply “if
    the claims are found on appeal to not constitute error, or the
    errors are found to be so minor as to result in no harm,” the
    district court did not err in denying Boyer’s motion for a new
    trial. See State v. Maestas, 
    2012 UT 46
    , ¶ 363, 
    299 P.3d 892
     (cleaned
    up).
    II. Motion to Disqualify the Trial Judge
    ¶67 At sentencing, after hearing from the victim and her aunt,
    the trial judge addressed the victim:
    You had to do some things that were very, very
    unpleasant. You had to undergo maybe one of the
    best defense lawyers in the state. You had to
    embarrass yourself in front of a large group of
    strangers by telling them intimate details that you
    shouldn’t have to be forced to share with anyone.
    You had to be poked and prodded by doctors that
    you had never seen before, and it just kept going
    on and on and on.
    Any minute you could have said, “You know
    what, it’s not worth it. I’m not putting myself out
    there anymore,” but you chose not to. I have to tell
    20170423-CA                     32                 
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    State v. Boyer
    you, I wish we had more people like you, quite
    frankly. I wish there were more heroes in this
    world, but you’re definitely one of them.
    The other thing I’ll tell you is that this person may
    have pushed you back a little bit in life in terms of
    what’s going on, but he didn’t conquer you, and he
    certainly didn’t stomp you out, and you’re going to
    come back twice as good now, knowing that this
    man will never, ever get out of prison. You’ll never
    even have to look backwards. I hope you
    understand that, and I hope that gives you some
    comfort.
    I know there’s no way I can undo the harms that
    this man did to you. There’s nothing I can do
    today. I wish there were. I—there isn’t. The one
    thing I can do, though, is this little piece of the
    puzzle here, that is having him out and you having
    to never think about him again, that’s all going to
    end today, all right? I want you to understand that,
    and understand that you have my absolute respect
    and admiration for what you did.
    ¶68   The trial judge also addressed Boyer:
    I have to be honest with you, I completely think—I
    watched [the victim] testify on two separate
    occasions, given the fact that we had to try this case
    twice, and I believe every word that she said, as
    did the jury. I think everything she said was right
    on point. Everything she said had the detail and so
    forth that that is not a story that could have been
    fed to her, and certainly her life the way that’s
    worked out shows that. I believe everything she
    told me. . . .
    20170423-CA                    33                
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    State v. Boyer
    Part of the problem here is I don’t even think that
    you have the character or the guts to even come
    forward and admit to what you’ve done to this
    poor person, and that’s horribly unfortunate, more
    to you than anything. The reality is that she—
    you’re not a problem she’s ever going to have to
    think about again. Good luck to you, sir.
    ¶69 Boyer        argues    that    these   comments      required
    disqualification from subsequent post-trial motion hearings
    because they demonstrated that the trial judge was actually or
    apparently biased. 11 Specifically, Boyer claims that the court’s
    statements criticizing Boyer’s character and expressing a belief in
    the victim’s testimony, admiration for her bravery, and the hope
    that she would take some comfort in the sentence imposed,
    11. Boyer also argues that the trial court violated rule 2.10(B) of
    the Utah Code of Judicial Conduct, which provides that judges
    “shall not, in connection with cases, controversies, or issues that
    are likely to come before the court, make pledges, promises, or
    commitments that are inconsistent with the impartial
    performance of the adjudicative duties of judicial office,” thus
    warranting recusal. Specifically, Boyer contends that the judge’s
    statements to the victim constituted a “pledge that the victim
    would not have to look back or think about Boyer” and made it
    impossible for the judge to fairly decide post-trial motions. But
    “[s]uch an [argument] incorrectly equates judicial conduct that
    would violate a criminal defendant’s constitutional rights with
    judicial conduct that might lead to sanctions for a judge.” See
    State v. Munguia, 
    2011 UT 5
    , ¶ 16, 
    253 P.3d 1082
    . “The parameters
    of defendants’ constitutional rights to a fair trial are defined by
    [rule 29 of the Utah Rules of Criminal Procedure] and relevant
    case law, not the Code of Judicial Conduct.” State v. Neeley, 
    748 P.2d 1091
    , 1094 (Utah 1988). Thus, we consider the judge’s
    comments to the victim only to the extent that they demonstrate
    any actual or apparent bias.
    20170423-CA                    34                
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    State v. Boyer
    established favoritism toward the victim and antagonism toward
    Boyer and thus required disqualification.
    ¶70 “The parameters of defendants’ constitutional rights to a
    fair trial are defined by [rule 29 of the Utah Rules of Criminal
    Procedure] and relevant case law . . . .” State v. Neeley, 
    748 P.2d 1091
    , 1094 (Utah 1988). Rule 29 dictates the procedure a judge
    must follow when confronted with a motion to disqualify: “The
    judge against whom the motion and affidavit are directed shall,
    without further hearing, enter an order granting the motion or
    certifying the motion and affidavit to a reviewing judge.” Utah
    R. Crim. P. 29(b)(2)(A). The rule “present[s] the trial judge with a
    binary choice: recuse him- or herself, or if he or she questions the
    legal sufficiency of the affidavit, certify the matter to another
    named judge for a ruling on its legal sufficiency.” State v. Gavette,
    
    2019 UT App 73
    , ¶ 8, 
    442 P.3d 1243
     (cleaned up); see also Utah R.
    Crim. P. 29(b)(2)(A).
    ¶71 In this case, Boyer filed a motion to disqualify the trial
    judge shortly after Boyer’s sentencing hearing. The trial judge
    declined to grant the motion, and instead certified it to the
    associate presiding judge, who reviewed and ultimately denied
    the motion. Because the trial judge followed the procedures set
    forth in rule 29, Boyer “bears the heightened burden of
    demonstrating either actual bias or abuse of discretion.” 12 See
    State v. Asta, 
    2018 UT App 220
    , ¶ 20, 
    437 P.3d 664
     (cleaned up).
    12. Boyer does not argue that the reviewing judge abused his
    discretion in denying the motion for disqualification. Rather, he
    argues that the trial judge “abused and exceeded his discretion”
    in making the challenged comments at sentencing. This is not the
    relevant inquiry. See State v. Asta, 
    2018 UT App 220
    , ¶ 20, 
    437 P.3d 664
     (concluding that a movant bears a heightened burden
    of demonstrating either that the sentencing judge was actually
    biased or that the reviewing judge abused discretion in denying
    motion).
    20170423-CA                     35                 
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    State v. Boyer
    Alternatively, “a trial judge’s failure to recuse based on the
    appearance of bias may be grounds for reversal if actual
    prejudice is shown.” State v. Alonzo, 
    973 P.2d 975
    , 979 (Utah
    1998). Because Boyer has not established either actual bias or
    an appearance of bias and prejudice, he is not entitled to a new
    trial.
    A.     Actual Bias
    ¶72 “Due process guarantees an absence of actual bias on the
    part of a judge.” Williams v. Pennsylvania, 
    136 S. Ct. 1899
    , 1905
    (2016) (cleaned up). Because “bias is easy to attribute to others
    and difficult to discern in oneself,” governing case law “asks not
    whether a judge harbors an actual, subjective bias, but instead
    whether, as an objective matter, the average judge in his position
    is likely to be neutral, or whether there is an unconstitutional
    potential for bias.” 
    Id.
     (cleaned up). Thus, the Due Process
    Clause requires recusal when a judge has “a direct, personal,
    substantial, pecuniary interest” in a case and in other instances
    where, objectively, “the probability of actual bias on the part of
    the judge or decisionmaker is too high to be constitutionally
    tolerable.” Caperton v. A.T. Massey Coal Co., 
    556 U.S. 868
    , 876, 877
    (2009) (cleaned up). Accordingly, rule 2.11(A) of the Utah Code
    of Judicial Conduct contemplates disqualification where, for
    example, “the judge has a strong personal bias or prejudice
    concerning a party,” has prior evidentiary knowledge of the
    case, “or has a financial or property interest that could be
    affected by the outcome of the proceeding.” State v. Munguia,
    
    2011 UT 5
    , ¶ 17, 
    253 P.3d 1082
     (cleaned up); accord Utah Code
    Jud. Conduct 2.11(A).
    ¶73 On the other hand, “[t]he fact that a judge has formed an
    opinion regarding a particular defendant based on proceedings
    occurring in front of the judge is not a ground for
    disqualification listed in [the Utah Code of Judicial Conduct].”
    State v. Kucharski, 
    2012 UT App 50
    , ¶ 4, 
    272 P.3d 791
    . This is true
    because “bias and prejudice are only improper when they are
    20170423-CA                     36                
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    State v. Boyer
    personal.” Munguia, 
    2011 UT 5
    , ¶ 17 (cleaned up). “Neither bias
    nor prejudice refers to the attitude that a judge may hold about
    the subject matter of a lawsuit.” 
    Id.
     (cleaned up). Consequently,
    to require recusal, “the bias or prejudice must usually stem from
    an extrajudicial source, not from occurrences in the proceedings
    before the judge.” 
    Id.
     (cleaned up). “‘Judicial remarks during the
    course of a trial that are critical or disapproving of, or even
    hostile to, counsel, the parties, or their cases, ordinarily do not
    support a bias or partiality challenge,’” Kucharski, 
    2012 UT App 50
    , ¶ 5 (quoting Liteky v. United States, 
    510 U.S. 540
    , 555 (1994)),
    as long as the judge “decide[s] the case only after all the
    evidence is heard” and “does not allow the propensities to
    obscure the evidence,” Madsen v. Prudential Fed. Sav. & Loan
    Ass’n, 
    767 P.2d 538
    , 546 (Utah 1988) (cleaned up).
    ¶74 In a similar case, our supreme court held that the judge’s
    remarks at sentencing did not violate the defendant’s due
    process rights to an impartial judge. Munguia, 
    2011 UT 5
    , ¶¶ 19–
    20. The defendant, who pled guilty to multiple counts of sexual
    abuse of a child, argued that the sentencing judge displayed
    “hostility and ill will” by “(1) challenging [the defendant] about
    whether he understood who was at fault for the abuse; (2) twice
    asking [the defendant] if he still thought it was a good
    experience for his daughter to masturbate and fellate him; (3)
    commenting that [the defendant] had ‘ruined’ an innocent child;
    (4) stating that [the defendant’s] daughter now had ‘almost zero
    chance of having a stable marriage’; and (5) ‘opining’ that [the
    defendant] had ‘destroyed’ his daughter, who trusted him.” Id.
    ¶ 18. The court concluded that the defendant had not established
    that the judge’s ill will and anger toward the defendant were
    “motivated by an extrajudicial source or anything other than [the
    defendant’s] own actions” in the case. Id. ¶ 19. Rather, there was
    “more than enough information in the record to indicate that
    any bias against [the defendant] stemmed from occurrences in
    the proceedings before the judge,” including statements that the
    judge read from the pre-sentencing report and heard from the
    prosecutor at sentencing. Id. (cleaned up).
    20170423-CA                     37                
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    State v. Boyer
    ¶75 Similarly, in this case, the trial judge’s comments were
    based on the evidence presented at trial, not gleaned from an
    improper source. The trial judge’s assessment of the victim’s
    credibility was based, not on prior knowledge or outside
    association, but on observing her testify at trial and her behavior
    and demeanor in open court. Similarly, his assessment of the
    defendant was not based on extrajudicial knowledge about
    Boyer but on the evidence presented at trial and sentencing. And
    the judge’s remarks about the defendant “probably never”
    getting out of prison presumably referred to the sentence the
    court imposed, requiring Boyer’s two fifteen-year-to-life
    sentences to run consecutively.
    ¶76     Boyer has pointed us to nothing in the record that shows
    “that [the trial judge’s] anger was motivated by an extrajudicial
    source or anything other than [Boyer’s] own actions in this case.”
    See 
    id.
     While we expect that judges “be patient, dignified, and
    courteous” to those with whom the judge deals in an official
    capacity, “that does not mean that due process or our Code of
    Judicial Conduct are violated whenever a defendant’s criminal
    conduct and subsequent excuses inspire anger in a judge.” Id.
    ¶ 20 (cleaned up). Nor should we require judges to refrain from
    offering words of encouragement or comfort to a crime victim at
    sentencing. The trial judge’s comments in this case fall well short
    of “reveal[ing] such a high degree of favoritism or antagonism as
    to make fair judgment impossible.” See Liteky, 
    510 U.S. at 555
    .
    Therefore, Boyer has not established actual bias.
    B.    Appearance of Bias Resulting in Actual Prejudice
    ¶77 Boyer also argues that the trial judge’s comments at
    sentencing created an appearance of bias. When, as in this case,
    the trial judge follows the procedures set forth in rule 29, a
    defendant must ordinarily establish actual bias on the part of the
    trial judge or an abuse of discretion on the part of the reviewing
    judge. However, our supreme court has recognized that “a trial
    judge’s failure to recuse based on the appearance of bias may be
    20170423-CA                    38                
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    State v. Boyer
    grounds for reversal if actual prejudice is shown.” Alonzo, 973
    P.2d at 979 (citing State v. Gardner, 
    789 P.2d 273
    , 278 (Utah 1989));
    see also Utah R. Crim. P. 30(a). Here, we need not examine
    whether Boyer was prejudiced because he has not established an
    appearance of bias.
    ¶78 A judge should recuse him- or herself for appearance of
    bias when the judge’s impartiality might reasonably be
    questioned. Alonzo, 973 P.2d at 979; see also Utah Code Jud.
    Conduct R. 2.11(A). “The question of a judge’s impartiality is
    determined by viewing the question through the eyes of a
    reasonable person, knowing all the circumstances.” Asta, 
    2018 UT App 220
    , ¶ 18 (cleaned up).
    ¶79 Utah courts have addressed only one instance where a
    judge’s comments during trial created an appearance of bias.
    See State v. Alonzo, 
    932 P.2d 606
    , 611 (Utah Ct. App. 1997), aff’d,
    
    973 P.2d 975
     (Utah 1998). In Alonzo, the trial judge allegedly
    stated prior to trial, in chambers, and with both parties
    present, that the defendants’ case “could be resolved quickly if
    they would waive their right to a jury trial and ‘just plead
    guilty,’” and allegedly “suggested that he knew, based on his
    experience as a prosecutor, that [defendants] were guilty.”
    Alonzo, 973 P.2d at 979. The State argued that the comments
    were made in jest, but this court and our supreme court found
    the question of sincerity immaterial because the comments
    “created an appearance of bias” in that they “suggested [the
    judge] had formed an opinion as to defendants’ guilt even before
    the trial began,” Alonzo, 
    932 P.2d at 611
    , which would “call into
    serious question the impartiality of any judge,” Alonzo, 973 P.2d
    at 979.
    ¶80 In contrast, the trial judge’s comments here do not create
    an appearance of bias. The “reasonable person” listening to the
    judge’s statements and “knowing all the circumstances,” see
    Asta, 
    2018 UT App 220
    , ¶ 18 (cleaned up), would not believe that
    the trial judge had prejudged Boyer’s post-trial motions. At the
    20170423-CA                     39                 
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    State v. Boyer
    time of the sentencing hearing, Boyer had not yet filed any post-
    trial motions, and the trial judge’s comments did not suggest
    that the judge had formed an opinion as to the merits of any
    future motions or proceedings.
    ¶81 To the contrary, the only opinions expressed by the judge
    related to the sentencing proceeding at hand. Cf. State v. Lane,
    
    2019 UT App 86
    , ¶ 33, 
    444 P.3d 553
     (holding, in the context of an
    ineffective assistance of counsel claim, that the court’s finding
    that the defendant was “a danger to society” for purposes of
    determining his pretrial release status was not grounds for a
    disqualification motion). At sentencing, the judge is charged
    with considering all of the aggravating and mitigating
    circumstances surrounding the offense. See State v. Wood, 
    2018 UT App 98
    , ¶ 12, 
    427 P.3d 452
    . For instance, determining
    whether to impose concurrent or consecutive sentences requires
    judges to consider “the gravity and circumstances of the
    offenses, the number of victims, and the history, character, and
    rehabilitative needs of the defendant,” see 
    Utah Code Ann. § 76
    -
    3-401 (LexisNexis Supp. 2019), and “the granting or withholding
    of probation involves considering intangibles of character,
    personality and attitude,” see State v. Cline, 
    2017 UT App 50
    , ¶ 7,
    
    397 P.3d 652
     (cleaned up). Moreover, crime victims have the
    right, enshrined in the Utah Constitution, to address the court at
    sentencing and “[t]o have a sentencing judge, for the purpose of
    imposing an appropriate sentence, receive and consider, without
    evidentiary limitation, reliable information concerning the
    background, character, and conduct of a person convicted of an
    offense.” Utah Const. art. I, § 28.
    ¶82 Accordingly, a sentencing judge cannot—and should
    not—avoid       addressing    aggravating     and      mitigating
    circumstances on the record, a duty which may well include
    observations about the character of the defendant, the gravity of
    the offense, and the impact on the victim. Requiring a trial judge
    to recuse from hearing post-trial motions based on such
    statements would require frequent reassignment of those
    20170423-CA                    40                
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    State v. Boyer
    motions to a new judge with no familiarity with the facts of the
    case and no firsthand knowledge of the proceedings on which
    the motions are based. Such a requirement would exact too high
    a price in terms of judicial efficiency, public confidence, and
    prompt disposition of criminal cases.
    ¶83 Because Boyer has not demonstrated that a reasonable
    person, knowing all the circumstances, would question the
    judge’s ability to impartially preside over post-trial proceedings,
    it is not necessary to consider Boyer’s argument that the district
    court’s rulings related to restitution demonstrate actual
    prejudice. 13
    III. Motion to Reconstruct the Record
    ¶84 Finally, Boyer argues that the district court erred in
    denying his motion to reconstruct the district court record with
    the victim’s medical and mental health records, which the
    district court reviewed in camera. Boyer contends that it is
    impossible for us to review the district court’s determination that
    the records did not contain any materially exculpatory
    information, and we agree. See State v. Cramer, 
    2002 UT 9
    , ¶ 25,
    
    44 P.3d 690
     (“We are unable to review [the district court’s] ruling
    regarding materiality . . . because the medical records were not
    included in the appellate record.”). However, in this case, we
    concluded that Boyer cannot show he was entitled to in camera
    review of the victim’s records under rule 506(d)(1). Supra ¶¶ 53-
    60. As a result, Boyer cannot show that he was prejudiced by the
    absence of the victim’s medical and mental health history from
    13. Contrary to Boyer’s assertion in his reply brief, the court’s
    restitution rulings were not asserted as an independent basis for
    reversal in the opening brief, as they were raised solely in the
    context of establishing actual prejudice from the court’s failure to
    recuse. We do not consider issues raised for the first time in
    reply briefs. See Allen v. Friel, 
    2008 UT 56
    , ¶ 8, 
    194 P.3d 903
    .
    20170423-CA                     41                
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    State v. Boyer
    the record on appeal. 14 See State v. DeJesus, 
    2017 UT 22
    , ¶ 19, 
    395 P.3d 111
     (holding that a defendant must show prejudice in order
    to obtain a reversal of his conviction based on the State’s
    destruction of evidence in violation of his due process rights).
    CONCLUSION
    ¶85 The district court did not err in denying Boyer’s motion
    for a new trial based on cumulative error. In addition, because
    the district court was neither actually nor apparently biased
    against Boyer, the reviewing judge properly denied Boyer’s
    motion to disqualify. Finally, Boyer was not prejudiced by the
    absence of the victim’s medical and mental health history from
    the record on appeal because he was not entitled to an in camera
    review of those records in the first instance. Accordingly, Boyer’s
    convictions are affirmed.
    14. Similarly, Boyer cannot show that he was prejudiced by his
    trial counsel’s failure to object to the court’s shredding of the
    records after in camera review, even assuming that counsel’s
    failure to object was error.
    20170423-CA                     42                
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