STATE OF UTAH v. DEREK RANDALL JONES

Description: During the weekend of June 26 to 27, 2015, five-year-old
B.B. slept over at the home of Forbush, who is his uncle. About
three weeks later, B.B. was showering with his father (Father), as
was apparently their occasional practice, when B.B. asked why his
uncircumcised penis looked different from Father’s circumcised
penis. Father replied that B.B. didn’t need to worry because he
wouldn’t see any other penises like Father’s. B.B. initially
responded with a “blank stare,” but “then he seemed real excited”
and let Father know that he had seen Forbush’s penis and that it
looked like Father’s. Continuing, B.B. told Father that Forbush
had put his penis in B.B.’s mouth, after which Forbush had “made
him” watch “older people,” which Father interpreted to mean that
Forbush had shown pornography to B.B.
¶3 The next week, B.B. was interviewed at the Children’s
Justice Center (CJC) by a trained investigator (Investigator 1). In
that interview, which was recorded, B.B. said that while he was
asleep at Forbush’s house, Forbush had woken B.B. up while
Forbush was wearing only his socks. B.B. said that Forbush had
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified),
cert. denied, 531 P.3d 730 (Utah 2023).
Also, because there are a large number of events and claims
involved in this appeal, additional details relevant to many of the
claims (particularly those for which we ordered a rule 23B
remand) will be provided in the relevant portions of our Analysis.
State v. Forbush
20180319-CA 3 2024 UT App 11
him watch “gross shows” in which naked men and women
performed various sex acts on each other.
3 B.B. said that Forbush
then offered to buy B.B. a new toy if he would suck on Forbush’s
penis. B.B. said that he refused, but that Forbush “wiggle[d]” his
own penis and made B.B. suck on it anyway. B.B. said that
Forbush then put “his private” in B.B.’s “butthole.”
Charges and Relevant Pretrial Events
¶4 In October 2015, the State charged Forbush with two
counts of sodomy on a child, both first-degree felonies, and one
count of dealing in material harmful to a minor, a third-degree
felony. The case went to trial in February 2018. In the interim,
several events occurred that are relevant to the issues on appeal.
¶5 First, in March 2017, the prosecutor and a victim advocate
met with B.B. in a conference room of a public library to “refresh
his memory and make sure he was on board.” Father was also
present at this meeting. The prosecutor and the victim advocate
showed B.B. a recording of his CJC interview, which had been
taken nearly two years earlier, and the prosecutor asked B.B. to
confirm “the pertinent parts.” When B.B. got to the portions of the
interview in which he had discussed the anal sodomy allegation,
B.B. “looked really uncomfortable.” B.B. then “turned in and
looked at his dad” and said, “Ew, gross. That never happened.”
In that same interview, however, B.B. still confirmed that Forbush
had made him suck on Forbush’s penis.
¶6 The next day, the prosecutor informed the judge and
Forbush’s counsel (Pretrial Counsel) of this partial recantation.
(As discussed more fully below, a different attorney (Trial
Counsel) replaced Pretrial Counsel shortly before trial.) At the
subsequent trial, Trial Counsel did not ask B.B. or any other
3. B.B. described the videos and the sex acts that he observed in
some detail during this interview, but we need not recount the
particulars here.
State v. Forbush
20180319-CA 4 2024 UT App 11
witness about the partial recantation, nor did he inform the jury
of it in any way.
¶7 Second, the State filed a pretrial motion seeking leave to
introduce evidence that Forbush had previously molested B.C.
and L.T., two other children that he knew. B.C. was the daughter
of Forbush’s neighbor. The State alleged that on one occasion in
May 2014 (when B.C. was about five years old), B.C. was at
Forbush’s home when he took her to his garage on the pretext of
seeing a cat, after which he touched her “privates” over her
clothes. L.T. was the daughter of one of Forbush’s friends. The
State alleged that on one occasion in 2012 (when L.T. was about
six years old), Forbush babysat L.T. and her sister at his house.
According to the State, Forbush told the sister to leave the room;
when she did, he cajoled L.T. into playing a game during which
he put a sock over her eyes as a blindfold and then put his testicles
in her mouth.
¶8 In its motion, the State sought permission to call both girls
as witnesses at trial, as well as to play their CJC interviews in
which they had described these events. The State argued that
these accounts should be admitted as propensity evidence under
rule 404(c) of the Utah Rules of Evidence. As part of its rule 404(c)
analysis, the State argued that the evidence was admissible under
rule 403. And in the course of this argument, the State told the
court that it “must consider” all six of the so-called Shickles
factors.4 Pretrial Counsel opposed the State’s request to admit
these allegations. In his written opposition to the overall motion,
Pretrial Counsel didn’t object to the State’s assertion that the court
must consider the Shickles factors in its analysis. The district court
subsequently issued a written decision admitting the evidence. In
this ruling, the court concluded that it “must apply the six Shickles
factors,” and it then addressed each of them in turn.
4. As will be discussed below, these factors are derived from State
v. Shickles, 760 P.2d 291, 295–96 (Utah 1988), abrogated by State v.
Doporto, 935 P.2d 484 (Utah 1997).
State v. Forbush
20180319-CA 5 2024 UT App 11
¶9 Third, shortly before trial, an attorney entered an
appearance on B.B.’s behalf and then filed a motion asking the
court to allow B.B. to testify remotely and outside of Forbush’s
presence. In a hearing on the matter, the court heard testimony
from B.B.’s grandmother (Grandmother), who was B.B.’s legal
guardian by this time. Grandmother testified about B.B.’s mental
health struggles and his tendency to shut down when he became
angry or nervous, and she also expressed her opinion that B.B.
would be intimidated by the courtroom setting. The prosecutor
also informed the court that B.B. had shown reluctance to see
Forbush again, as evidenced by a recent incident where B.B. had
“close[d] up quite a bit” when that prospect came up. Over
Forbush’s objection, the court granted the request to allow B.B. to
testify remotely and outside Forbush’s presence. In this ruling, the
court found that B.B. would suffer serious mental or emotional
strain and that his testimony would be inherently unreliable if he
were required to testify in Forbush’s presence.
¶10 Finally, Forbush was represented by Pretrial Counsel for
the first two years of the proceedings. In December 2017, the court
scheduled a trial date for February 2018. Pretrial Counsel then
withdrew, citing a conflict between his schedule and the trial date,
after which Trial Counsel appeared on Forbush’s behalf. Trial
Counsel soon requested a continuance of the trial to give him
more time to prepare. But the court denied the request, citing its
concern that the trial had already been continued many times, as
well as its belief that Trial Counsel would still have adequate time
to prepare.
Trial
¶11 In February 2018, a three-day trial was held. The State
called eight witnesses in its case-in-chief. These included B.B.,
Father, Investigator 1, and the CJC investigator who interviewed
both B.C. and L.T. (Investigator 2).
¶12 B.B., B.C., and L.T. each testified that they had watched
their CJC interviews and that they had told the truth in the
interviews. In their testimonies, Investigator 1 and Investigator 2
State v. Forbush
20180319-CA 6 2024 UT App 11
explained that they had received forensic interview training (FIT)
on how to interview children about allegations of abuse, and
Investigator 2 explained the FIT techniques in some detail.
Pursuant to its earlier ruling, the court allowed the State to play
recordings of each CJC interview. See Utah R. Crim. P. 15.5(a)
(allowing admission of an “oral statement” of a minor child in
“any case concerning a charge of child abuse or of a sexual offense
against a child” if certain conditions are met). And before each
CJC interview was played, the investigator who had conducted
the interview described the circumstances surrounding it.
¶13 As noted earlier, the court had ruled that B.B. could testify
outside the presence of both the jury and Forbush. When it was
time for his testimony, B.B., the attorneys, and the judge went into
a separate room; the jury remained in the courtroom; and Forbush
was moved to a “cry room” at the back of the courtroom. B.B.’s
testimony was transmitted to a screen in the courtroom. Forbush
did not have his own screen in the cry room, but the room was
arranged so that he could see the screen through a window, and
court personnel later testified that a speaker was turned on so that
Forbush could hear the proceedings.
¶14 Before B.B.’s testimony began, the prosecutor made a
record that, pursuant to the governing rule, a telephone
connection from Forbush to Trial Counsel had been made
available but that Trial Counsel had chosen “a different option.”
In an on-the-record dialogue between Trial Counsel and the court,
the court explained the court and counsel had agreed that Forbush
could write down any questions or concerns he had during B.B.’s
direct examination and that Forbush would then be given the
chance to consult with Trial Counsel during a break between
direct and cross-examination. Trial Counsel said on the record
that he thought this was the “best way” to handle the testimony,
and the court likewise expressed its view that this was “the
smartest way to do” things so as to avoid distracting Trial Counsel
during B.B.’s direct examination. The court minutes show that
State v. Forbush
20180319-CA 7 2024 UT App 11
Trial Counsel took a nine-minute recess at some point after B.B.’s
direct examination to consult with Forbush.5
¶15 After the cross-examination of B.B. concluded, the court
solicited questions from the jury. At this point, the court learned
that there had been a problem with the audio, that the jury had
not heard most of B.B.’s direct testimony, but that the jury had
heard the cross-examination. The court met with counsel to
discuss the matter and it was agreed that the court would ask B.B.
certain “key questions” that the prosecutor “wanted repeated.”
The court then followed that approach. And among the questions
the court asked were whether B.B. had watched his CJC interview
and told the truth in it. B.B. responded affirmatively.6
¶16 The jury convicted Forbush on all counts.
Rule 11(g) Supplementation
¶17 After his conviction, Forbush filed a motion to supplement
the record pursuant to then-rule 11(g) of the Utah Rules of
Appellate Procedure.7 Forbush sought leave to supplement the
5. While the plan had apparently been for this consultation to take
place in between B.B.’s direct and cross examinations, the court’s
minutes and the transcript from the hearing both indicate that this
consultation took place midway through Trial Counsel’s crossexamination of B.B. Still, both records indicate that it did occur
and that the cross-examination continued for some period
afterward.
6. At a subsequent hearing, one witness testified that this was the
first time that remote testimony had been taken in this manner in
this county, thus providing some context for the failure to ensure
that the jury could hear B.B.’s direct examination.
7. The rule has since been amended, and the relevant portions of
the rule are now in rule 11(f) of the Utah Rules of Appellate
Procedure.
State v. Forbush
20180319-CA 8 2024 UT App 11
record regarding three sets of events, only two of which
are relevant to this appeal: (i) the circumstances surrounding
B.B.’s partial recantation and what was communicated about it
to Pretrial Counsel and (ii) the circumstances surrounding
B.B.’s testimony at trial (including the technical difficulties
with the audio). The State stipulated to the supplementation
proceeding, and the subsequent hearing was conducted by a
different judge than the one who had presided at trial.
¶18 Forbush testified at that hearing, alleging for the first
time that he couldn’t hear any of B.B.’s trial testimony, direct or
cross. Trial Counsel testified as well, and he explained that the cry
room had been set up so that Forbush could see the same screen
that the jury was using to see B.B.’s testimony. He further testified
that a speaker had been turned on in the cry room so that Forbush
could hear the testimony. Trial Counsel did not say that Forbush
had raised any concerns about being unable to hear the
proceedings.
Rule 23B Remand
¶19 Forbush appealed, and in his opening brief, he
challenged his convictions on multiple grounds. Forbush
also filed a motion for a remand under rule 23B of the Utah
Rules of Appellate Procedure. There, Forbush alleged that
Pretrial Counsel and Trial Counsel had provided
ineffective assistance on several fronts relating to the
investigation of the case and the testimonies presented (or
not presented) at trial. This court granted Forbush’s motion
in part. Following an evidentiary hearing at which
seven witnesses testified, the rule 23B court entered detailed
findings of fact addressing the various issues for which we
remanded.
8
8. The rule 23B remand was conducted by the same judge who
had presided over the rule 11(g) supplementation proceedings.
State v. Forbush
20180319-CA 9 2024 UT App 11
ISSUES AND STANDARDS OF REVIEW
¶20 Forbush raises multiple claims of error on appeal, many of
which have common standards of review. The claims are these:
• First, Forbush argues that he received ineffective assistance
when his attorneys failed to either investigate B.B.’s partial
recantation or instead introduce that recantation at trial.
• Second, Forbush argues that the district court erred by
using the Shickles factors as part of its assessment of
whether to admit the recordings of the CJC interviews of
L.T. and B.C. under rule 403(c); in the alternative, Forbush
argues that he received ineffective assistance when Pretrial
Counsel did not object to the court’s use of the Shickles
factors.
• Third, Forbush argues that the district court abused its
discretion by allowing B.B. to testify outside of Forbush’s
presence, claiming that there was insufficient evidence to
support the required findings.
• Fourth, Forbush argues that the district court committed
plain error when it failed to inform B.B. that Forbush was
listening to his testimony. Relatedly, Forbush argues that
he received ineffective assistance when Trial Counsel
failed to prevent or object to various technological failures
and rule violations during B.B.’s remote testimony.
• Finally, Forbush raises a series of ineffective assistance
claims for which this court previously ordered the rule 23B
remand, including alleged failures by his attorneys to
investigate the case or call certain witnesses.
¶21 For Forbush’s preserved claims that are evidentiary in
nature, we review the district court’s rulings for an abuse of
discretion. See State v. Suhail, 2023 UT App 15, ¶ 68, 525 P.3d 550,
State v. Forbush
20180319-CA 10 2024 UT App 11
cert. denied, 525 P.3d 730 (Utah 2023). “[L]egal errors, such as the
incorrect interpretation of a statute or the application of an
improper legal standard, are usually an abuse of discretion.”
Schroeder v. Utah Att’y Gen.’s Office, 2015 UT 77, ¶ 49, 358 P.3d
1075.
¶22 On the unpreserved claim for which Forbush asserts plain
error, Forbush must show “that (i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error
[was] harmful.” Suhail, 2023 UT App 15, ¶ 69 (quotation
simplified). The harm analysis in a plain error claim is “equivalent
to the prejudice test applied in assessing claims of ineffective
assistance of counsel.” State v. Johnson, 2017 UT 76, ¶ 21, 416 P.3d
443 (quotation simplified).
¶23 For Forbush’s ineffective assistance of counsel claims that
are raised for the first time on appeal, these claims present
questions of law. See Suhail, 2023 UT App 15, ¶ 72. And finally, on
the ineffective assistance claims for which we ordered a rule 23B
remand, we “defer to the trial court’s findings of fact,” but we
“review its legal conclusions for correctness.” State v. Wright, 2013
UT App 142, ¶ 10, 304 P.3d 887 (quotation simplified).
ANALYSIS
I. Trial Counsel’s Failure to Investigate or Use B.B.’s Partial
Recantation at Trial
¶24 During a March 2017 meeting with the prosecutor, a victim
advocate, and Father, B.B. claimed that the anal sodomy incident
didn’t happen (though, as noted, B.B. reiterated in that same
interview that the oral sodomy incident did happen). The
prosecutor informed Pretrial Counsel of B.B.’s partial recantation
the next day, and in his brief, Forbush concedes that Trial Counsel
was also “aware of” this recantation. Despite being aware of the
recantation, Trial Counsel didn’t ask any witnesses about it at
trial. When asked about this at the rule 11(g) hearing, Trial
Counsel testified that the witnesses he was “aware of that would
State v. Forbush
20180319-CA 11 2024 UT App 11
have been involved in the recantation” were the prosecutor and
the victim advocate, thus suggesting that he was unaware that
Father was also in the room. Trial Counsel then said that he chose
not to ask the victim advocate about the recantation because,
based on his experiences with her in other cases, he was worried
that she would be a hostile witness. From all this, Forbush argues
that Trial Counsel was ineffective on two related grounds: first,
for not properly investigating the incident, which in Forbush’s
view would have caused Trial Counsel to learn that Father was in
the room, thereby allowing Trial Counsel to ask Father about the
recantation at trial; and second, for not at least questioning the
victim advocate about the recantation at trial.
¶25 To prevail on an ineffective assistance claim, Forbush must
first “show that counsel’s performance was deficient,” and
second, “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
deficient performance, Forbush must “overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy.” Id. at 689 (quotation simplified).
The focus of this inquiry is reasonableness, and we “judge the
reasonableness of counsel’s challenged conduct, viewed as of the
time of counsel’s conduct.” State v. Carter, 2023 UT 18, ¶ 45, 535
P.3d 819 (quotation simplified). To establish prejudice, Forbush
“must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
State v. Bonds, 2023 UT 1, ¶ 53, 524 P.3d 581 (quotation simplified).
When evaluating a prejudice claim in the ineffective assistance
context, “we assess counterfactual[] scenarios—that is, what
would have happened but for the ineffective assistance,” and “we
may do so with the evidence available to us, even when not part
of the original record.” Ross v. State, 2019 UT 48, ¶ 76, 448 P.3d
1203.
¶26 Forbush must establish both deficient performance and
prejudice. See State v. Suhail, 2023 UT App 15, ¶ 122, 525 P.3d 550,
cert. denied, 525 P.3d 730 (Utah 2023). If either is lacking, “the claim
State v. Forbush
20180319-CA 12 2024 UT App 11
fails” and this court “need not address the other.” State v. Nelson,
2015 UT 62, ¶ 12, 355 P.3d 1031. Thus, if “it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, we will do so without analyzing whether counsel’s
performance was professionally unreasonable.” State v. Potter,
2015 UT App 257, ¶ 7, 361 P.3d 152 (quotation simplified). Here,
even if it were true that Trial Counsel performed deficiently by
not properly investigating the partial recantation or instead by not
asking the victim advocate about it at trial (points that we do not
decide), we still reject these claims because Forbush has not
established that he was prejudiced by the alleged errors.
¶27 Forbush argues that questioning about the recantation
would have mattered because B.B.’s testimony was the only direct
evidence that the abuse occurred and because B.B. had now
claimed that one of the two sodomy incidents at issue didn’t
happen. And we agree that in many cases (particularly those in
which there is a lack of corroborative evidence), a recantation
from the complaining witness may have strong probative value.
But even so, a prejudice analysis in an ineffective assistance case
remains contextual. And in the context of this case, we don’t
believe that there is a reasonable probability that the outcome at
trial would have been different if the jury had heard about this
recantation from either Father or the victim advocate. This is so
for several reasons.
¶28 First, as with any other kind of evidence, not every
recantation is the same. And the circumstances here suggest that
this recantation was of somewhat lesser probative value. It didn’t
come from an adult; it came from a young child. It wasn’t made
in writing or under oath; it occurred in conversation during an
informal interview. And it didn’t contain any detailed
explanation for why the declarant had changed his account;
rather, after B.B. very briefly recanted, the conversation quickly
moved on.
¶29 Second, this recantation wasn’t B.B.’s first word on the
matter. In separate conversations, he had previously told two
people (Father and Investigator 1) that Forbush had anally
State v. Forbush
20180319-CA 13 2024 UT App 11
sodomized him. And this recantation wasn’t his last word on the
matter either. At trial, B.B. testified under oath that he had since
watched his earlier interview from the CJC, and he further
testified that he had told the truth in that interview. Thus, this isn’t
a case in which a complaining witness recanted and later stood by
the recantation. Rather, the complaining witness here withdrew
the recantation, in effect recanting the recantation.
¶30 Third, in the counterfactual scenario in which evidence of
B.B.’s recantation was presented at trial, the jury essentially would
have been presented with the choice of which version of events to
believe: the version he briefly advanced at the library; or, instead,
the version he told to Father, and then Investigator 1, and then at
trial.
¶31 In that counterfactual scenario, the State would have had
several available arguments in which it could have assailed the
credibility of the recantation. See Ross, 2019 UT 48, ¶ 78 (noting
that “it is appropriate to consider the impact the State’s rebuttal
evidence would have had if it had been presented at [the] original
trial”). One of them is drawn directly from the library interview
itself. When B.B. was asked about the anal sodomy allegation, he
“turned in and looked at his dad” before saying, “Ew, gross” and
then recanting, thus suggesting that he had become embarrassed
by talking about that allegation in front of his father.
¶32 The State also would have been able to point to contextual
evidence that the CJC interview was more reliable all along. After
all, that interview was conducted in a more comfortable setting
and with fewer people around, and the questioner was an
investigator who had specific training and experience in how to
conduct forensic interviews of children. By contrast, the interview
at the library was conducted by a prosecutor in the presence of
two other people, and there’s no indication that the prosecutor
had such training or was following such techniques. In the
counterfactual world in which Trial Counsel had elicited
testimony about the recantation, the State very likely would have
offered testimony and argument on these very points.
State v. Forbush
20180319-CA 14 2024 UT App 11
¶33 Finally, we note again that the recantation was only
partial—although B.B. disclaimed the alleged anal sodomy
incident during the library interview, he reaffirmed that the oral
sodomy incident had occurred, and he never recanted the
pornography allegation. And as we explain below, we see no
error in the court’s admission of the testimonies from B.C. or L.T.,
each of whom testified about abuse from Forbush, with that
testimony being admitted to show Forbush’s propensity toward
committing sex offenses against children. And as we also explain
below, we see no basis for concluding that there was additional
available evidence that should have been presented that could
have meaningfully impeached Father’s testimony about B.B.’s
initial statements to him.
¶34 Putting all this together, here’s what we have: this wasn’t
the strongest of recantations, there was a plausible explanation on
its face for concluding that the recantation was itself
untrustworthy, B.B. subsequently affirmed under oath that the
abuse happened, there was reason to believe that B.B.’s earlier
allegations were more reliable, and there was other testimony
before the jury that was unaffected by this recantation that
supported the State’s case. From all this, we see no reasonable
probability that the outcome at trial would have been different if
the jury had heard about the brief recantation B.B. made during
the library interview. We accordingly reject this ineffective
assistance claim for lack of prejudice.
II. Rule 404(c) Evidence
¶35 Forbush next raises issues relating to the admission of the
testimonies of L.T. and B.C. under rule 404(c) of the Utah Rules of
Evidence.
¶36 First, some background. As a general rule, evidence of a
person’s “crime, wrong, or other act” is not admissible “to prove
a person’s character in order to show that on a particular occasion
the person acted in conformity with the character.” Utah R. Evid.
404(b)(1). “But this limitation does not apply in child molestation
cases, where rule 404(c) applies.” State v. Modes, 2020 UT App 136,
State v. Forbush
20180319-CA 15 2024 UT App 11
¶ 14, 475 P.3d 153. Rule 404(c) states that in “a criminal case in
which a defendant is accused of child molestation, the court may
admit evidence that the defendant committed any other acts of
child molestation to prove a propensity to commit the crime
charged.” Utah R. Evid. 404(c)(1). “The drafters of our rules of
evidence have determined, as a policy matter, that propensity
evidence in child molestation cases can come in on its own terms,
as propensity evidence, even if there is no other plausible or
avowed purpose for such evidence.” Modes, 2020 UT App 136,
¶ 14 (quotation simplified).
¶37 When the State seeks to introduce such evidence, however,
the evidence “is still subject to rule 403’s balancing test.” State v.
Garcia, 2022 UT App 77, ¶ 30, 526 P.3d 1238, cert. denied, 525 P.3d
1260 (Utah 2022). And under that rule, a “court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
Utah R. Evid. 403. For many years, Utah courts considered the socalled Shickles factors when conducting a rule 403 analysis. Those
factors are “the strength of the evidence as to the commission of
the other crime, the similarities between the crimes, the interval
of time that has elapsed between the crimes, the need for the
evidence, the efficacy of alternative proof, and the degree to which
the evidence probably will rouse the jury to overmastering
hostility.” State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988)
(quotation simplified), abrogated by State v. Doporto, 935 P.2d 484
(Utah 1997).
¶38 In 2014, our supreme court clarified that while “some of
these factors may be helpful in assessing the probative value of
the evidence in one context, they may not be helpful in another.”
State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841, abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. It “is
therefore unnecessary for courts to evaluate each and every factor
and balance them together in making their assessment.” Id. A year
later, our supreme court considered the issue again, this time
holding in a rule 404(c) case that while it “may very well be
State v. Forbush
20180319-CA 16 2024 UT App 11
appropriate” for a court to consider some of the Shickles factors in
a rule 403 analysis, “it is not appropriate for a district court to
moor its rule 403 analysis entirely and exclusively to all of the
Shickles factors.” State v. Cuttler, 2015 UT 95, ¶ 19, 367 P.3d 981. Of
note here, the supreme court further held that it is inappropriate
for a court to consider the sixth Shickles factor (the degree to which
the evidence probably will rouse the jury to overmastering
hostility) in a rule 403 analysis because that standard presents
“both a stricter and looser metric” than the one at issue in rule 403
(which most commonly looks to whether the evidence’s probative
value is substantially outweighed by the danger of unfair
prejudice). Id. ¶ 20.
¶39 As noted, the district court permitted the State to introduce
evidence that Forbush had previously abused both L.T. and B.C.
In doing so, and in apparent response to the State’s express
invitation, the court applied all six Shickles factors in the rule 403
portion of its analysis. Because of this, Forbush now argues that
Pretrial Counsel (who was the attorney who responded to the
State’s motion) rendered ineffective assistance on two related
grounds: first, for apparently not knowing that the court should
not use all six Shickles factors; and second, for not objecting to their
improper use.9
¶40 We have no difficulty rejecting the first aspect of Forbush’s
claim. A “lawyer’s lack of knowledge is not alone enough to
amount to deficient performance.” State v. Sessions, 2014 UT 44,
9. Forbush separately argued in his opening brief that the district
court abused its discretion by misapplying the Shickles factors. But
as the State pointed out in response (and as Forbush then
conceded in his reply), Forbush never made this argument below.
“When a party fails to raise and argue an issue in the trial court, it
has failed to preserve the issue, and an appellate court will not
typically reach that issue absent a valid exception to
preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. We
accordingly address this issue only through the lens of ineffective
assistance of counsel.
State v. Forbush
20180319-CA 17 2024 UT App 11
¶ 22, 342 P.3d 738. Instead, “the operative inquiry is whether the
actual representation would still have been within the range of
objectively reasonable representation, even if counsel had been
aware of the law.” Id. (quotation simplified).
¶41 This leaves Forbush’s second argument (which is the real
thrust of this claim). And again, the argument here is that Pretrial
Counsel was ineffective for not objecting to the proposed use of
the Shickles factors in the rule 403 portion of the analysis. We have
some doubt whether this was indeed deficient performance. After
all, even if Pretrial Counsel was aware of the cases holding that
it’s inappropriate to “moor” a rule 403 analysis “entirely” on the
Shickles factors, counsel may have thought that adding those
factors into the mix would actually make it harder for the State to
admit the proposed evidence, thereby helping Forbush’s case. Cf.
Cuttler, 2015 UT 95, ¶ 21 (noting that the district court there had
required the State to “overcome the hurdles presented by [r]ule
403 and the Shickles factors,” thus arguably imposing a higher
burden on the State than was presented by rule 403 itself
(emphasis in original, quotation otherwise simplified)).
¶42 Regardless, we need not decide this issue on this basis
because we see no reasonable likelihood that the evidence would
have been excluded if the court had not used the Shickles factors
in its analysis. Under Cuttler, courts are still permitted to use most
of these factors in a rule 403 analysis. The key differences are that
(i) a court can no longer “moor its rule 403 analysis entirely and
exclusively to all of the Shickles factors,” and (ii) a court cannot use
the “overmastering hostility” factor as part of the “unfair
prejudice” analysis. Cuttler, 2015 UT 95, ¶¶ 19–20.
¶43 Here, the district court concededly committed both errors.
But at oral argument before our court, Forbush’s appellate
counsel agreed that an analysis that had been conducted purely
under rule 403 would not have been “more restrictive” than an
analysis that used the six Shickles factors. This concession may
have been overly generous—again, Cuttler suggested that the
overmastering hostility factor “is both a stricter and looser metric”
than rule 403’s unfair prejudice standard. Id. ¶ 20.
State v. Forbush
20180319-CA 18 2024 UT App 11
¶44 Regardless, Forbush hasn’t convinced us that there’s a
reasonable likelihood that removing this particular factor (or any
other Shickles factor, for that matter) would have changed things
such that the court would have now excluded this evidence. After
all, it’s settled that under rule 403, courts should “indulge a
presumption in favor of admissibility.” State v. Green, 2023 UT 10,
¶ 78, 532 P.3d 930 (quotation simplified). And one of the Shickles
factors that remains viable in the rule 403 analysis is the similarity
between the crimes. See Cuttler, 2015 UT 95, ¶ 19. In its ruling
admitting this evidence, the district court found that the cases
“contain[ed] very similar facts,” and we agree that a number of
commonalities were present. The alleged victims were of roughly
similar ages; each alleged incident occurred in Forbush’s home;
each of the alleged victims was familiar to Forbush or linked to
him in some way; each alleged instance appeared to be a crime of
opportunity rather than the product of long-term grooming; and
each alleged instance involved Forbush touching the child
inappropriately and then urging the child to touch him
inappropriately.
¶45 In response, Forbush points to some dissimilarities
between B.B.’s account and those given by B.C. and L.T.,
including the different genders and variations in the body parts
that Forbush touched or caused to be touched. This claim,
however, is about counsel’s failure to object to the court’s
mechanistic use of the Shickles factors. But a proper rule 403
analysis doesn’t require that the past incidents be identical; rather,
what’s at issue is the “degree of similarity.” Garcia, 2022 UT App
77, ¶¶ 31, 36. Here, even with these differences, there were many
similarities. For this reason, the incidents were probative of
Forbush’s propensity to commit the kind of crime at issue. And
their admission also would not constitute unfair prejudice as that
term is used in this context. We’ve recognized that the “prejudice
analysis under rule 403—when associated with rule 404(c)—
focuses on prejudice other than the fact that the evidence shows
propensity to engage in reprehensible behavior involving
children.” Modes, 2020 UT App 136, ¶ 21 (quotation simplified).
Indeed, “after rule 404(c), the accused’s propensity is the reason
State v. Forbush
20180319-CA 19 2024 UT App 11
for admission and no longer constitutes unfair prejudice.” State v.
Lintzen, 2015 UT App 68, ¶ 17, 347 P.3d 433 (quotation simplified).
¶46 In addition, the court’s initial ruling contains ample
other indicators that it would have admitted this testimony
even in a properly focused analysis. For example, the court found
that “the strength of the evidence as to the commission” of the
abuse against the two girls was “strong” and that the interval of
time between the incidents was brief enough that they each
retained probative value. The court also found that the
presentation of this evidence would assist jurors in assessing the
credibility of B.B.’s account, which it regarded as weighing in
favor of admissibility because of the court’s assessment of the
“efficacy of alternative proof for the charges in this case.” In
Cuttler, the supreme court specifically approved continuing use of
that very factor in a rule 403 analysis such as this one. 2015 UT 95,
¶ 19.
¶47 Because this issue is presented through the lens of an
ineffective assistance claim, Forbush bears the burden of
persuading this court that there’s a reasonable likelihood of a
different outcome if this objection had been made. On this record,
we see no reasonable probability that the district court would
have excluded these testimonies if it had not been asked to use all
six Shickles factors (or, instead, if it had realized that it should not
consider the sixth factor). As a result, we see no basis for
concluding that Forbush was prejudiced by any deficient
performance, so we reject this claim.10
10. Forbush also argues that L.T. and B.C.’s stories had reliability
problems. When he raised this argument below, however, the trial
court found that it lacked evidentiary support. On appeal,
Forbush requested leave to develop further evidence of these
alleged problems as part of his request for a rule 23B remand. But
we concluded that his proffered allegations were insufficient to
warrant such a remand, so we rejected that request.
State v. Forbush
20180319-CA 20 2024 UT App 11
III. Decision to Allow B.B. to Testify Remotely
¶48 Rule 15.5(b) of the Utah Rules of Criminal Procedure
applies in “a criminal case concerning a charge of child abuse or
of a sexual offense against a child.” In such a case, and “upon
motion of a party and for good cause shown,” the court “may
order that the testimony of any victim or other witness younger
than 14 years of age be taken in a room other than the court room,
and be televised by closed circuit equipment to be viewed by the
jury in the court room.” Id. The rule further states that “[o]nly the
judge, attorneys for each party and the testifying child (if any),
persons necessary to operate equipment, and a counselor or
therapist whose presence contributes to the welfare and
emotional well-being of the child may be in the room during the
child’s testimony.” Id. R. 15.5(b)(1). With respect to the
defendant’s presence, the rule states:
A defendant who consents to be hidden from the
child’s view may also be present unless the court
determines that the child will suffer serious
emotional or mental strain if required to testify in
the defendant's presence, or that the child’s
testimony will be inherently unreliable if required
to testify in the defendant’s presence.
Id.11 Acting pursuant to a motion and evidence taken at a hearing,
the district court permitted B.B. to testify remotely, and it further
11. If a court makes the requisite determination under rule 15.5,
its decision to allow the child to testify remotely does not violate
the Sixth Amendment’s Confrontation Clause. Thus, so “long as a
trial court makes such a case-specific finding of necessity, the
Confrontation Clause does not prohibit a State from using a oneway closed circuit television procedure for the receipt of
testimony by a child witness in a child abuse case.” Maryland v.
Craig, 497 U.S. 836, 860 (1990).
State v. Forbush
20180319-CA 21 2024 UT App 11
ordered that Forbush would observe that testimony from an
adjacent room.
¶49 Forbush now argues that the district court committed two
errors in this decision: first, Forbush claims that the court was
required to take expert testimony to support any determination
that B.B. should be allowed to testify remotely; and second,
Forbush claims that there was insufficient evidence to support
either of the requisite findings. We disagree on both fronts.12
¶50 First, we disagree with Forbush’s contention that the court
was required to take expert testimony. In support of this claim,
Forbush points to several cases in which courts ruled that a child
could testify remotely based, in part, on an expert’s evaluation of
the child. See, e.g., State v. Widdison, 2001 UT 60, ¶ 59, 28 P.3d 1278;
Glendening v. State, 536 So. 2d 212, 218 (Fla. 1988); State v. Baeza,
383 P.3d 1208, 1209 (Idaho 2016). And we agree with Forbush that
an expert’s evaluation might prove helpful to a court that is tasked
with making this determination. But helpful is not the same thing
as required. The rule itself doesn’t require expert testimony, and
we’ve been pointed to no authority (controlling or otherwise) in
which any court has held that expert testimony must be offered
before a court can make such a determination.
12. In its response, the State initially argues that while Forbush
did object to the request to have B.B. testify remotely, these
particular arguments were not preserved. We disagree. When
Trial Counsel objected to B.B.’s request to testify remotely, he
focused much of his energy on the last-minute notice of the
request. But in doing so, Trial Counsel also argued that there
should have been “an evaluation conducted on B.B.,” and he
further argued that the request should be denied because “all we
have is a bunch of speculation and a bunch of things that attorneys
are saying” and that there was accordingly “no basis” for the
proposed remote testimony. We regard these assertions as having
been sufficient to preserve these arguments for appeal.
State v. Forbush
20180319-CA 22 2024 UT App 11
¶51 Moreover, the determinations at issue aren’t the sort that
would of necessity require expert assistance. Rule 15.5(b)(1)
allows remote testimony based on a determination that either
(i) “the child will suffer serious emotional or mental strain if
required to testify in the defendant’s presence,” or instead
(ii) “that the child’s testimony will be inherently unreliable if
required to testify in the defendant’s presence.” We can certainly
envision situations in which a lay witness who is personally
familiar with the child and the surrounding circumstances could
offer meaningful testimony about the likely effects on this child of
testifying in the defendant’s presence. Indeed, in many such cases,
testimony from someone who knows the child well may prove to
be more probative of these issues than testimony from an outside
expert. In short, we see no support (textual or otherwise) for
reading an expert-testimony requirement into this rule that is not
currently there.
13
13. As something of an alternative corollary to this argument,
Forbush suggests that in a case in which there was no expert
evaluation, the lay witnesses should at least be required to testify
that the child had “actual fear of the defendant.” (Emphasis in
original.) But Forbush cites just a single Texas case to support that
proposition—Walker v. State, 461 S.W.3d 599, 606 (Tex. App. 2015).
And while there was some testimony of the children’s “fear” in
Walker, see id. at 605–06, it’s not clear that the appellate court’s
descriptive reference to that fear was meant as an announcement
of a prescriptive requirement moving forward. In any event, we
again note that the text of our rule 15.5(b) doesn’t require the court
to make any determination of “actual fear.” Rather, the rule
requires a determination “that the child will suffer serious
emotional or mental strain if required to testify in the defendant’s
presence, or that the child’s testimony will be inherently
unreliable if required to testify in the defendant’s presence.” Utah
R. Crim. P. 15.5(b)(1). We see no basis for creating such an
obligation in this case.
State v. Forbush
20180319-CA 23 2024 UT App 11
¶52 Second, Forbush argues that the evidence in this case was
insufficient to support the determination that was required by the
rule. Our supreme court has treated these determinations as fact
findings that are not to “be reversed absent clear error.” Widdison,
2001 UT 60, ¶ 60. And in assessing this question, we take “the
evidence in a light most favorable to the trial court’s ruling.” Id.
(emphasis in original, quotation otherwise simplified). Here,
there was enough evidence to support the court’s decision to
allow B.B. to testify remotely and outside of Forbush’s presence.
¶53 During the initial discussions about whether to allow this
testimony to be taken remotely, the prosecutor informed the court
that B.B. had told him that he didn’t “particularly want to see”
Forbush. The prosecutor then said that B.B. had “close[d] up quite
a bit” when the prospect of testifying in front of Forbush was
brought up. And the prosecutor added that he had observed a
“noticeable change in attitude” when he had talked to B.B. about
“being in the courtroom and the defendant being there.”
Continuing, the prosecutor said that B.B.’s unease with it was
“very apparent physically,” noting that when B.B. “becomes very,
very uncomfortable, he diverts, and he becomes agitated.”
¶54 Grandmother was then placed under oath and testified. In
her testimony, Grandmother said that B.B. had been living with
her since the previous summer. She said that B.B. “has difficulty
answering questions in lots of different scenarios,” to the point
that “sometimes people will ask him what his name is, and he
won’t respond.” She testified that B.B. has anxiety disorders and
ADHD, both of which can make it harder for him to communicate,
and that he had begun seeing “a psychologist actually because of
this case and another incident.” She also explained that B.B. is on
medication to treat his conditions. Grandmother further testified
that B.B. had shown specific reluctance to talk about the incidents
in question with either prosecutors or in court proceedings. As
one example, Grandmother said that a teacher recently had “a
hard time getting” B.B. to leave the classroom when he was
supposed to leave for a meeting with the prosecutor, and
Grandmother said that when B.B. finally left the classroom for the
meeting, he told her that he didn’t “want to go.”
State v. Forbush
20180319-CA 24 2024 UT App 11
¶55 Of note, the judge then asked Grandmother whether she
thought it would “be very emotional for [B.B.] to have to testify
here versus just testifying in a room without the jury, without the
defendant.” In response, Grandmother said that she thought it
would be “frightening” for B.B. to testify in court in front of
everyone and that she thought “he would be more comfortable in
a smaller setting.” She further explained that when B.B. gets
frightened or nervous, he “sometimes” “gets angry,” and she
agreed that it can then become “difficult to engage him in a
conversation.”
¶56 So viewed, there was sufficient evidence to support the
court’s findings. At the outset, we note that this is not a case in
which there was “de minimis” evidence of the kinds of “mere
nervousness or excitement or some reluctance to testify” that
might be common of many witnesses. Widdison, 2001 UT 60, ¶ 58
(quotation simplified). Rather, Grandmother testified about very
particular mental and emotional conditions that B.B. has, and she
further testified about the related and pronounced effects that
stress and nervousness have on his ability to communicate about
even ordinary subjects. This, alone, differentiates this case from
cases involving testimony about more ordinary nervousness or
reluctance.
¶57 The real point of dispute between the parties on appeal is
whether there was any testimony to support a finding that
testifying in Forbush’s presence would cause either emotional or
mental strain to B.B. or unreliability in his testimony. Here, we
again note that we must view “the evidence in a light most
favorable to the trial court’s ruling.” Id. ¶ 60 (quotation
simplified). Under this deferential standard of review,
Grandmother’s testimony was sufficient. In addition to the
testimony about B.B.’s conditions and general anxieties,
Grandmother testified about B.B.’s specific reluctance to talk to
people involved in the court system about the incidents at the
heart of this case. And even more particularly, in response to a
question from the court, Grandmother agreed that it would be
“frightening” for B.B. to testify in front of Forbush and that B.B.
“would be more comfortable” in a “smaller” setting. Viewed in
State v. Forbush
20180319-CA 25 2024 UT App 11
the light most favorable to the court’s ruling, this was sufficient to
support the required determination.14
IV. Remote Testimony Implementation Issues
¶58 Forbush next raises several claims relating to how B.B.’s
remote testimony actually transpired. First, Forbush argues that
the court plainly erred by failing to inform B.B. that Forbush
would be listening to B.B.’s testimony. Next, Forbush advances
three interrelated ineffective assistance of counsel claims, faulting
Trial Counsel for (1) failing to ensure that Forbush could
14. There’s some question whether the court also meant to rely on
the prosecutor’s account of what B.B. had told him. In its oral
ruling, the court referred to the “proffers” (plural) that had been
“given earlier” about various conversations with B.B. Since
Grandmother was the only witness who had been placed under
oath, this suggests that the court was indeed referring to (and
relying on) the prosecutor’s statements. In his brief, Forbush
makes a passing nod to the potential question of whether the
prosecutor’s account could actually be treated as testimony. But
Forbush doesn’t provide us with any authority showing that the
court couldn’t rely on this as an unsworn proffer, instead arguing
that even the prosecutor’s statements were insufficient to support
the requisite findings. For its part, the State does place some
reliance on the statements, referring to them as a “proffer[]” from
the prosecutor.
We have no need to determine whether these statements
could be relied on as an evidentiary proffer. As noted, we think
that Grandmother’s testimony was sufficient. But if the
prosecutor’s statements are treated as an admissible proffer, they
provide even more direct support for the findings in question. As
noted, the prosecutor said that he had observed a “noticeable
change in attitude” when he had talked to B.B. about “being in the
courtroom and the defendant being there.” And continuing, the
prosecutor said that “it’s been very apparent physically to me”
that B.B. is uneasy about the situation.
State v. Forbush
20180319-CA 26 2024 UT App 11
communicate with him and could hear B.B.’s testimony; (2) failing
to object when the judge offered to conduct a limited direct
examination of B.B. after learning that the prosecutor’s direct
examination had been inaudible to the jury; and (3) failing to ask
for additional cross-examination of B.B. after the court’s
additional questioning. We reject each of these claims for lack of
prejudice.
A. Failure to Inform B.B. that Forbush Could Hear His
Testimony
¶59 Rule 15.5 states that a district court “shall advise” a child
who is testifying outside the defendant’s presence that “the
defendant is present at the trial and may listen to the child’s
testimony.” Utah R. Crim. P. 15.5(b)(1)(C). The record contains no
indication that the court gave this information to B.B. before he
testified remotely, and the record also contains no indication that
Trial Counsel objected. While acknowledging that the issue is thus
unpreserved, Forbush argues that the court committed plain error
by not giving the information. We disagree.15
¶60 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful.” State v. Johnson, 2017
UT 76, ¶ 20, 416 P.3d 443 (quotation simplified). The harmfulness
component of plain error review is “equivalent to the prejudice
test applied in assessing claims of ineffective assistance of
counsel.” Id. ¶ 21 (quotation simplified). In the ineffective
assistance context, it’s settled that the defendant must
15. Preservation problems aside, the State suggests that under the
presumption of regularity, we can infer that the information was
given off the record. Forbush pushes back, asserting that such a
ruling would stretch this presumption too far. We need not decide
whether the presumption of regularity can indeed fill in a record
gap like this one. Even if it’s true, as Forbush asserts, that the
warning was not given, we still reject Forbush’s claim for lack of
prejudice.
State v. Forbush
20180319-CA 27 2024 UT App 11
“demonstrate a reasonable probability that the outcome of his or
her case would have been different absent” the error. State v. Scott,
2020 UT 13, ¶ 43, 462 P.3d 350.
¶61 Forbush makes various arguments about the prejudice that
he allegedly suffered from the audio problems at trial. But
Forbush never more particularly articulates how he was
prejudiced by the court’s failure to inform B.B. that Forbush
would be listening to his testimony, and we see no basis for
concluding that he was. We’ve been given no reason to believe
that there was a reasonable probability that giving this
information would have changed B.B.’s testimony at trial in any
meaningful way. And we also note that while this argument is
focused on the court’s failure to give this information before B.B.
testified during the trial, the jury also heard B.B.’s CJC interview,
and that interview was recorded well before the trial testimony in
question (meaning that it would have been unaffected by the
missing rule 15.5 advisory at issue). Again, in that interview, B.B.
made direct allegations of abuse against Forbush. On this record,
we therefore see no basis for concluding that Forbush was
prejudiced by this alleged error. The plain error claim fails.
B. Ineffective Assistance Stemming from Implementation
Issues
¶62 Forbush next raises a series of ineffective assistance claims
stemming from various implementation issues relating to B.B.’s
testimony. We reject these claims for lack of prejudice.16
¶63 Forbush first claims that, like the jury, he was unable to
hear B.B.’s direct examination. He then points to Trial Counsel’s
16. Forbush argues that these same implementation problems
deprived him of his constitutional right to confrontation. But the
record shows that Forbush was able to ask questions and raise
concerns during the cross-examination of B.B. and that the jury
heard this cross-examination. From this, we see no basis for
concluding that Forbush’s right to confront B.B. was violated.
State v. Forbush
20180319-CA 28 2024 UT App 11
decision not to ask for two-way telephonic communication during
B.B.’s direct examination as contemplated by rule 15.5(b)(1)(D).
Taken together, Forbush argues that two-way communication
would have solved the problem in real-time, thereby allowing
him to more meaningfully assist counsel before the crossexamination of B.B.
¶64 The State expresses skepticism about whether Forbush was
indeed unable to hear the initial direct examination, and there is
at least some reason to doubt Forbush’s claim. Before B.B. began
testifying, the bailiff informed the court that there was “volume
and everything” in the room from which Forbush would hear the
testimony. And Forbush did not report any trouble hearing this
testimony at the time of trial, whether it be to the bailiff, his
counsel, or the judge.17 Moreover, while the record shows that
Trial Counsel met with Forbush during the cross-examination,18
Trial Counsel never said anything to the court about Forbush
having any audio difficulties. It was only later at the rule 11(g)
hearing when Forbush first made this claim. And even then, Trial
Counsel testified that a speaker was turned on in the room so that
Forbush could hear the testimony.
¶65 Regardless, we’ll assume for purposes of argument that
Forbush was unable to hear the direct examination. Because
Forbush raises this as an ineffective assistance of counsel claim,
we can reverse his convictions only upon a showing of both
deficient performance and prejudice. Here, the record shows that
Trial Counsel met with Forbush for about nine minutes, either
17. Forbush alleges the bailiff was absent from the room, but while
the rule 11(g) court did not definitively resolve the dispute
between the parties whether this was so, it did find that it would
have been against district court policy to leave Forbush
unattended.
18. As noted above, the court’s minutes and the transcript both
suggest that the break occurred during Trial Counsel’s crossexamination of B.B.
State v. Forbush
20180319-CA 29 2024 UT App 11
before or, more likely, midway through the cross-examination.
Even if Forbush was unable to hear the direct examination,
Forbush had the opportunity at that point to learn from counsel
what B.B. had said. On appeal, Forbush has not provided us with
any basis for concluding that there was any inadequacy in
counsel’s discussion with him, or instead in the cross-examination
of B.B that occurred either before or after that discussion.
¶66 From the record of these events as a whole, Forbush has
not persuaded us that his earlier inability to hear the direct
examination prejudiced him. Of note, Forbush was not hearing
B.B.’s allegations for the first time at trial. B.B. had made those
claims in the CJC interview, and Forbush was provided with that
interview well before trial. Thus, Forbush clearly could have
assisted his counsel before trial in the preparation of crossexamination. And in the context of this case, this advance
preparation would likely have been more helpful anyway. As
Forbush acknowledges in his appellate brief, B.B.’s direct
examination at trial was relatively short (it spans just two pages
of transcript), so the primary way that B.B.’s allegations were
presented to the jury was through the CJC interview that Forbush
had already reviewed.
¶67 Even with the benefits of further direct examination by the
court at trial and two post-trial evidentiary hearings at which his
prior attorneys testified, Forbush still does not argue that, if he
had heard the direct examination in real-time, there was any
particular question that he could have prompted Trial Counsel to
ask that Trial Counsel didn’t already ask, let alone a question
whose answer would have meaningfully changed the evidentiary
picture. Because of all this, we conclude that Forbush has not
carried his burden of establishing prejudice on this claim.
¶68 Forbush’s second and third ineffective assistance claims
relate to what happened after the court learned that the jury was
unable to hear B.B.’s direct examination. Forbush faults Trial
Counsel for not objecting to the court’s decision to ask certain
questions of B.B. in something of a re-created direct examination,
State v. Forbush
20180319-CA 30 2024 UT App 11
and he also faults his counsel for not conducting an additional
cross-examination after that questioning.
¶69 But even if there was deficient performance on these
bases (points that we do not decide), we’re not convinced that
the failures prejudiced Forbush. The court explained at trial
that after it had learned of the jury’s audio difficulties during
the original direct examination, it had “repeated” the “key
questions” for the jury that the prosecutor had asked earlier. On
appeal, Forbush asserts that the court framed some of its
questions in a leading manner. But if Trial Counsel had objected
to either the form of those questions or instead the overall
procedure, the likely result would have either been reframed
questions by the court or a new direct examination by the
prosecutor. Forbush has given us no reason to believe that either
outcome would have changed B.B.’s responses in a defensehelpful way.
¶70 With respect to the cross-examination claim, the record
shows that the jury heard the original cross-examination of B.B.
by Forbush’s counsel. While Forbush now complains of Trial
Counsel’s decision not to ask for permission to conduct additional
cross examination after the court’s own questioning, he doesn’t
suggest that any question should have been asked that hadn’t
been asked before. As a result, his argument seems to be that
counsel should have conducted the additional cross-examination
in an effort to preserve the normal sequencing. This was of course
an unexpected situation that the court and the attorneys alike
were attempting to manage. But on this record, we’re hardpressed to conclude that the inversion of the usual sequencing
norms affected the jury’s assessment of B.B.’s testimony in any
meaningful way.
¶71 In short, as with the other alleged errors relating to the
remote testimony, we see no basis for concluding that Forbush
was prejudiced. We accordingly reject these claims.
State v. Forbush
20180319-CA 31 2024 UT App 11
V. Ineffective Assistance Claims Subject to Rule 23B Findings
¶72 Contemporaneous with his appellate brief, Forbush filed a
motion requesting a rule 23B remand for additional factual
development on several ineffective assistance claims. We granted
his request as to four of them. On remand, the district court held
an evidentiary hearing at which seven witnesses testified,
including Pretrial Counsel and Trial Counsel. After the court
issued findings of fact relating to those claims, we invited the
parties to submit supplemental briefs to address the impact of the
new record and the court’s findings on these additional ineffective
assistance claims. “In a situation where the trial court has held a
Rule 23B hearing and made specific findings relevant to an
ineffective assistance of counsel claim, we defer to the trial court’s
findings of fact.” State v. Huggins, 920 P.2d 1195, 1198 (Utah Ct.
App. 1996); accord Nelson, 2015 UT 62, ¶ 11. “We then apply the
appropriate legal principles to the facts and decide, for the first
time on appeal, whether the defendant received ineffective
assistance of counsel in violation of the Sixth Amendment.”
Huggins, 920 P.2d at 1198. For the reasons set forth below, we
reject each of the additional ineffective assistance claims.19
A. Failure to Impeach Forbush’s Ex-Wife with a Prior
Inconsistent Statement
¶73 L.T. was one of the two children that the State called under
rule 404(c) to testify about additional abuse. In her CJC interview
that was played for the jury, L.T. claimed that the abuse occurred
when she was alone with Forbush while he was babysitting.
19. In our order, we denied Forbush’s motion for a remand on
several more ineffective assistance claims. One of those claims
related to the rule 404(c) argument that we addressed (and
rejected) above. With respect to the others, Forbush did not
advance them in his opening brief as claims that could succeed
without additional fact finding from a rule 23B remand. As a
result, our prior order fully disposed of those claims and we have
no need to address them further.
State v. Forbush
20180319-CA 32 2024 UT App 11
Forbush testified at trial that this was not possible because he was
never alone with her. In its rebuttal case, the State called Forbush’s
ex-wife (Ex-Wife), who testified that she was “100% positive” that
Forbush had been alone with L.T. while babysitting her.
¶74 Forbush’s rule 23B motion pointed to a prior statement that
Ex-Wife had made to police in which she said that Forbush “never
watched” the girls alone. He thus claimed that Trial Counsel was
ineffective for not impeaching Ex-Wife with this statement during
the State’s rebuttal. With the benefit of the findings from the 23B
remand, we conclude that Trial Counsel did not perform
deficiently by failing to put on this additional evidence.
¶75 As recounted in the 23B court’s findings, Trial Counsel
gave several reasons at the remand hearing for why he did not
impeach Ex-Wife with this prior statement. First, Trial Counsel
testified that he thought it “would be risky because for all he knew
she might explain the inconsistency in a way that reflected poorly
on Forbush.” Second, he explained that his “strategy in relation
to” the testimonies of both L.T. and B.C. “was to tread lightly and
get them on and off the witness stand as quickly as possible to
avoid repeated references to their abuse allegations.” He
accordingly “believed the impeachment approach” at issue in this
claim “would have resulted in the jury hearing about [L.T.’s]
abuse allegations over and over,” thereby “undermin[ing] his
strategy.” And he further said that he thought that spending any
additional time on issues relating to L.T. would distract the jury
from focusing on his central theory, which was that it was Father,
not Forbush, who had abused B.B.
¶76 When reviewing an ineffective assistance claim, we “must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” and we also
“reconstruct the circumstances of counsel’s challenged
conduct . . . from counsel’s perspective at the time.” Strickland, 466
U.S. at 689. Moreover, there “are countless ways to provide
effective assistance in any given case,” and “even the best criminal
defense attorneys would not defend a particular client in the same
way.” Id. (quotation simplified). For deficient performance
State v. Forbush
20180319-CA 33 2024 UT App 11
purposes, the “question is whether an attorney’s representation
amounted to incompetence under prevailing professional norms,
not whether it deviated from best practices or most common
custom.” State v. Wright, 2019 UT App 66, ¶ 30, 442 P.3d 1185
(quotation simplified). In other words, the question “is not
whether some strategy other than the one that counsel employed
looks superior given the actual results of trial. It is whether a
reasonable, competent lawyer could have chosen the strategy that
was employed in the real-time context of trial.” State v. Barela, 2015
UT 22, ¶ 21, 349 P.3d 676.
¶77 Here, we agree with Forbush that some (perhaps even
many) attorneys would have asked Ex-Wife about this prior
statement. But Trial Counsel gave plausible reasons for his
decision to avoid doing so—namely, he was worried that it might
backfire, or instead that it might focus the jury on an issue that he
didn’t want the jury focusing on. Given these explanations, we do
not believe that the approach chosen by Trial Counsel was so
unreasonable that it constituted deficient performance. This claim
thus fails.
B. Failure to Investigate and Present Evidence of Ex-Wife’s
Credibility and Motive
¶78 In his rule 23B motion, Forbush faulted his attorneys for
not investigating and then presenting evidence from either (i) a
person that we’ll refer to as Friend 1 or instead (ii) Forbush
himself, each of whom, in Forbush’s view, could have testified
that Ex-Wife had a motive to falsely testify against him. We
remanded for the development of such evidence.
¶79 In its ruling, the rule 23B court found that “[n]o evidence
was presented” showing that Pretrial Counsel “was not aware of
[Ex-Wife’s] potential motivation to testify against Forbush.” And
the court also found that Trial Counsel discussed Ex-Wife and her
animus toward Forbush with Forbush during a meeting before
trial. We accordingly see no basis for concluding that either
attorney was unaware of these potential issues.
State v. Forbush
20180319-CA 34 2024 UT App 11
¶80 With respect to Trial Counsel’s decision not to present
testimony about this from Friend 1, Forbush cannot show
deficient performance. As recounted by the court in its findings,
Friend 1 testified at the evidentiary hearing that Pretrial Counsel
and Trial Counsel had both contacted him before trial about
potentially testifying. But the court found that there were several
reasons for Trial Counsel not to call Friend 1. The court found that
Friend 1 “basically told” Forbush’s attorneys “that he did not
know much, he did not have much to offer, and he did not believe
his testimony would be valuable at trial.” In addition, Friend 1
also lived out of state at the time, and Friend 1 told Trial Counsel
that he “could not testify” because he “was not around.” While
Friend 1 suggested at the remand hearing that he might have been
able to testify if a timely subpoena had been issued, the court
found this claim to be not credible. Moreover, the court also
concluded that even if Friend 1 had somehow been compelled to
testify, “his impartiality and motive to testify could have been
challenged” based on his “relationship to Forbush.”
¶81 With respect to the potential testimony about Ex-Wife,
Friend 1 said at the 23B remand hearing that he thought Ex-Wife
was “out to get Forbush.” But he also said that he was “not certain
about” this, and in any event, the district court noted that Friend
1 had “provided no basis” for his opinion. The court thus found
that Friend 1 “knows little about [Ex-Wife] and does not know
anything about her relationship with Forbush while she and
Forbush were married.” In light of Friend 1’s lack of knowledge
(both generally and about Ex-Wife in particular), Friend 1’s
potential bias, and Friend 1’s apparent lack of availability, we
cannot conclude that Trial Counsel performed deficiently by not
presenting this testimony.
¶82 With respect to Forbush’s own potential testimony on this
issue, we see no deficient performance or prejudice. Again, Trial
Counsel testified that he regarded Ex-Wife as a “non-material
witness[]” and that, as a result, he believed that impeaching her
would be “a side issue” that might direct the jury’s attention away
from “his central strategy, which was to convince the jury that
Father,” not Forbush, had abused B.B.We therefore have no basis
State v. Forbush
20180319-CA 35 2024 UT App 11
for second-guessing the decision not to ask such questions during
Forbush’s testimony. In addition, Forbush’s claim at the
evidentiary hearing was that Ex-Wife, Father, and L.T.’s mother
had collectively “conspired against him.” But the district court
noted that Forbush had no evidence to support this theory, and it
further noted that Forbush admitted that Ex-Wife actually
“despised or had negative feelings toward” both of these alleged
co-conspirators. All of this could have undermined the strength
of any testimony from Forbush that the three had conspired
against him. For this reason as well, we see no basis for concluding
that there is a reasonable probability that introducing this
testimony into the evidentiary picture at trial would have affected
the outcome. It thus fails for lack of prejudice.
C. Failure to Investigate and Present Testimony About
Whether It Was Possible for B.B. and Father to Have
Showered Together
¶83 As noted, B.B. first reported the abuse to Father. And
according to Father’s account, B.B. told him about the abuse while
the two were showering together. At the time, B.B. and Father
lived at the home of a person that we’ll refer to as Landlord.
¶84 In his rule 23B motion, Forbush attached an affidavit from
Landlord in which she averred that there was no shower in the
basement where Father and B.B. lived and that it was “not
possible” for the two to have showered upstairs together without
her knowledge. We remanded for the development of additional
evidence about whether Pretrial Counsel was ineffective for not
investigating this further, as well as about whether Trial Counsel
was ineffective for not presenting such evidence at trial. With the
benefit of the findings from the remand, we conclude that neither
attorney performed deficiently.
¶85 With respect to the investigation claim, Pretrial Counsel
testified at the evidentiary hearing that he did investigate this
issue by interviewing Landlord and asking her “whether or not
there was a shower available in the basement.” While Pretrial
Counsel could not remember her exact answer, he testified that he
State v. Forbush
20180319-CA 36 2024 UT App 11
ultimately decided not to call Landlord at trial because of
“potential bias issues” stemming from her prior relationship with
Forbush. In light of this testimony, we see no basis for concluding
that Pretrial Counsel failed to adequately investigate this
potential testimony.
¶86 Turning to Trial Counsel’s decision not to use the evidence
about the shower at trial, Trial Counsel gave several reasons for
this decision. He testified that he thought it was “insane” that B.B.
and Father were showering together. He also testified that he
believed this “was so, so shocking” that it actually “played to”
what he thought was his “strongest defense”: namely, that
“Father abused [B.B.] when the two were showering together.” In
Trial Counsel’s view, testimony from Landlord “or any other
witness” that “Father and [B.B.] could not have showered
together” would have “undermined” his theory. This chosen
approach was a reasonable one, and we’re not in a position to
second-guess it. We therefore conclude that there was no deficient
performance with respect to this decision.
20
D. Failure to Investigate and Present Character Evidence
About Father
¶87 Finally, in his rule 23B motion, Forbush alleged that his
prior attorneys failed to investigate and call various witnesses to
testify about Father’s reputation for dishonesty, his manipulative
tendencies, and his substance abuse problems. Forbush claimed
that both Landlord and Friend 1 could have offered such
testimony; in addition, he claimed that such testimony could have
come from a person that we’ll refer to as Friend 2. We remanded
20. We also note that, at the evidentiary hearing, Landlord
retracted her earlier assertion that it was “not possible” for B.B.
and Father to have showered together without her knowledge,
agreeing that there was a shower upstairs and that she was not
always at home. Thus, even if Trial Counsel’s approach to this
issue was somehow unreasonable, this claim would fail for a lack
of prejudice.
State v. Forbush
20180319-CA 37 2024 UT App 11
for further factual development on these claims, and with the
benefit of that record, we reject each of them.
¶88 First, Landlord testified at the remand hearing. In its posthearing findings, the district court concluded that the reasons she
gave for believing that Father was dishonest were
“indecipherable,” and the court likewise pointed out that
Landlord had provided no support for her beliefs that Father used
drugs or had any mental illness. In addition, the court pointed to
her “frustrating, costly, and negative history” with Father, which,
in the court’s view, would have allowed “her impartiality [to]
have been challenged” had she been called as a witness. Given
these findings, we see no basis for concluding that adding her
potential attacks on Father’s credibility would have meaningfully
helped Forbush’s case. There was accordingly no deficient
performance in Trial Counsel’s decision not to call her.
¶89 Second, at the evidentiary hearing, Friend 1 testified that
he had told Pretrial and Trial Counsel that he didn’t know much
about Father’s character for truthfulness. As noted above, the
district court also found that Friend 1 had both availability and
potential bias problems. In light of these findings, we see no basis
for concluding that there was any deficient performance with
respect to the failure to investigate or present Friend 1’s potential
testimony about Father’s credibility.
¶90 Finally, with respect to Friend 2, the district court found
that Forbush did not tell Pretrial Counsel about him. “The
reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or
actions,” and the question of “what investigation decisions are
reasonable depends critically on such information.” Strickland,
466 U.S. at 691. We therefore reject any assertion relating to
Pretrial Counsel and Friend 2.
¶91 By contrast, Trial Counsel said that he did discuss Friend 2
with Forbush and that they particularly discussed Friend 2’s
potential testimony about Father’s character and credibility. But
Trial Counsel said that he decided not to call Friend 2 because
State v. Forbush
20180319-CA 38 2024 UT App 11
Friend 2 had a “potential bias” that “could be exploited by the
prosecutor in a way that would not reflect well on Forbush.” In
light of this testimony, we cannot conclude that counsel
performed deficiently for not calling Friend 2 at trial.
21

Outcome: For the foregoing reasons, we affirm Forbush’s convictions.

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