STATE OF UTAH v. ALAVINA FUNGAIHEA FLORREICH

From 1998 to 2009, Alavina Florreich was the nanny for

Alex and his siblings. Florreich is a Tongan immigrant, and Alex

and his siblings were the homeschooled children of a Jewish

rabbi.

¶3 When Alex was eight years old, Florreich was watching a

movie with Alex and his younger siblings one day when Alex

began giving her a shoulder massage. While doing so, Alex

slipped his hand beneath Florreich's shirt. Florreich then took

Alex's hand and guided it to her breast. At the time, Florreich was

50 years old.

¶4 Over the ensuing months and years, Florreich and Alex

had a sexual relationship of increasing intimacy. Sometime after

the initial incident, Florreich asked Alex if he wanted to see what

was under her shirt. When Alex said that he did, Florreich lifted

up her shirt. Alex occasionally asked her to do this again, and she

often (though not always) obliged. On one occasion, Alex became

upset when Florreich accidentally disconnected a video game that

he was playing with his brothers. Florreich told Alex to meet her

in the bathroom in a few minutes and that she "would make it

1. "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).

2. Despite the wide publicity surrounding this case, we'll adhere

to our general practice of referring to victims of sexual abuse

pseudonymously.

State v. Florreich

20200255-CA 3 2024 UT App 9

right.” When Alex arrived, Florreich was standing in her

underwear. "Enjoy it,” she said.

¶5 Florreich soon began asking Alex to touch her breasts.

Most of these encounters took place in a downstairs bathroom. On

one occasion, this occurred in the upstairs bedroom of Alex's baby

sister. When the two heard the door opening and realized that it

was Alex's mother, Florreich called out that she was changing

clothes, and without realizing what had been occurring inside the

room, Alex's mother shut the door.

¶6 Florreich eventually began urging Alex to expose himself

to her. When Alex was 10 or 11, Florreich touched Alex's penis for

the first time. Alex later recalled that "her face lit up,” that she told

him that he was "so healthy,” and that she made comments about

the size of his penis. Sometime afterward, Florreich stroked Alex's

penis to ejaculation, and this same thing occurred on many other

occasions moving forward. When Alex was 13, he left the state for

boarding school. Florreich remained employed with his family.

When Alex would return home for breaks, the two would again

engage in sexual contact, including one instance in which

Florreich caused Alex to ejaculate by stroking his penis with her

feet.

¶7 Their last sexual encounter occurred in 2009, which was

shortly after Alex turned 18. According to Alex's subsequent

account of this encounter, Florreich offered to perform oral sex on

him and then did so, and this was the first time this particular act

had occurred.

¶8 Alex later estimated that over the 10-year period that began

when he was 8 and lasted until he was 18, he and Florreich had

somewhere between 100 and 200 sexual encounters. But Alex had

not yet told anyone about these encounters. In 2016, however,

Alex saw an episode of a popular TV drama that depicted a

nanny's sexual abuse of a child. Alex later explained that the

State v. Florreich

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episode's framing helped him realize that children cannot consent

to sexual activity with adults, regardless of how willing the child

might have been to engage in the behavior. Alex began seeing a

therapist and soon told his therapist what had happened with

Florreich. After that, Alex told his wife, his parents, and, finally,

the police.

¶9 After Alex reported the abuse to police, the detective who

was managing his case (Detective) set up a recorded pretext call

between Alex and Florreich. The first portion of the call was

mostly small talk; during this portion, Florreich repeatedly had

trouble hearing Alex, though the audio issues resolved when Alex

moved closer to his phone and Florreich connected her phone to

a speaker. As the call progressed, Alex then lied to Florreich about

the real purpose for his call. Alex told her that he was having

sexual troubles with his wife and that he was hoping Florreich

could counsel him through those troubles by discussing their own

past encounters.

¶10 During the ensuing discussion, Florreich repeatedly

agreed that there had been sexual contact between them. For

example, Florreich said that she had been impressed with the size

of Alex's penis, and she confirmed that she had massaged his

penis to the point of ejaculation with her feet on one occasion.

Florreich also recalled the first time that Alex had ejaculated into

her hand, recalling that she had told him that his future wife

would be "very lucky” because "some people don't get that, you

know?” Florreich then reminded Alex of her own comment that

he was "very healthy,” and she asked him if he was "still the

same.” Florreich also said that she had "sweet memories” about

massaging Alex's penis, and she told him that "with those

memories, I am able to be with [my husband] to this day.” At one

point in the conversation, Alex vaguely referenced "some of our,

you know, experiences when I was a kid” that involved Florreich

"preparing me for marriage,” at which point Florreich interjected,

"with your curiosity, right?” Florreich agreed that what they had

State v. Florreich

20200255-CA 5 2024 UT App 9

done was "kind of like preparing you for your marriage life,” and

she asked Alex whether he thought about her while he was

touching his wife. During this call, the only sexual encounter that

Alex mentioned that Florreich denied was his memory that his

mother had once almost walked in on them while they were in his

baby sister's room.

¶11 A day or two later (the record is slightly unclear on

which), detectives knocked on Florreich's door and asked her

to come to the police station for an interview. After reading

Florreich her Miranda rights, detectives asked her about the

phone conversation she'd had with Alex. Florreich then

backtracked on several of the admissions she had made in that

call, telling detectives that she "didn't mean” some of what she

said. But even so, Florreich still admitted to at least some sexual

contact, including that she had touched Alex's penis starting

around the age of 12 or 13. Florreich said that she hadn't wanted

to do it but that Alex had "made” her. When a detective asked

about the alleged oral sex encounter that occurred after Alex

turned 18, Florreich suggested that Alex had "made” her do it and

that it was "rape.” Throughout this interview, Detective was often

combative with Florreich, he frequently accused Florreich of

lying, and he insisted that Alex had been honest when making his

accusations.

Charges and Trial

¶12 The State charged Florreich with five counts of aggravated

sexual abuse of a child and two counts of forcible sexual abuse. A

four-day jury trial was held. In his opening statement, defense

counsel (Counsel)2F

3 said, "Both sides are going to try to make sense

of the other side's story, and we're going to try to present to you

3. Florreich was represented by two attorneys below. We refer to

them with the singular "Counsel” for convenience.

State v. Florreich

20200255-CA 6 2024 UT App 9

the facts in a light that shows you what our point of view in the

case is. And nobody is going to lie to you on this case.”

¶13 The State called three witnesses in its case: Alex, Alex's

mother, and Detective. Alex testified at length about the details

of his sexual relationship with Florreich that were recounted

above. Alex also testified to feeling intense, religiously inflected

guilt about what had occurred. Alex said that he became

"secretive and sneaky” during those years, simultaneously

hoping the sexual contact would continue while also wishing

it would stop. He admitted that, after the pattern of sexual

contact was first established, he often initiated the encounters

and that Florreich had refused him on "numerous occasions.”

Alex's mother testified that Florreich spoke English "perfectly”

and had not been a pushover for the kids. She also testified

that the family had a great relationship with Florreich and that

she was shocked to learn about the alleged abuse. She said she

never observed any inappropriate sexual activity between

Florreich and any of her children. In his direct examination,

Detective testified about his involvement in the case, including

the circumstances surrounding the pretext call and the

interrogation.

¶14 The State also played audio of both the pretext call and

Florreich's interrogation for the jury. While playing these

recordings, the prosecutor (Prosecutor) skipped past parts of the

recording where the conversation had veered into irrelevant

topics.

¶15 At one point while playing the recording of the

interrogation, the jury heard a brief exchange in which

Detective had begun to discuss a story Florreich had told

Alex about an instance in which she had sex with a man in a

park. Prosecutor stopped the audio, approached the bench,

and suggested that she had inadvertently played this

exchange. Prosecutor asked for permission to skip over the rest

State v. Florreich

20200255-CA 7 2024 UT App 9

of the story, saying that it was not relevant and was potentially

prejudicial to Florreich. Counsel protested, initially saying "we

should listen to the whole thing” and then obtaining assurances

from the court that he would be allowed to play the whole video

under the rule of completeness. Prosecutor did not play the audio

of the rest of that story, and in his own case, Counsel did not

either.

¶16 During the defense's case, Counsel's primary theme was

that Alex had "threatened” or even "forced” Florreich into

performing the sexual acts and that Florreich had only complied

out of fear for her job and because she didn't want to "ruin” his

life. In support, Counsel highlighted the oral sex incident and

Florreich's claim that Alex had forced her into engaging in the

conduct. He also pointed to various statements from Alex in

which he admitted that he had initiated many of their sexual

encounters and that he was sometimes very determined that the

encounters should continue. Counsel argued that, to Alex,

Florreich was "nothing more than a target, an object, something

that can be used.”

¶17 Counsel advanced this theme throughout his questioning

of various witnesses. While cross-examining Alex's mother, for

example, Counsel attempted to get her to admit that she had

disparaged Florreich's intelligence and had said that Florreich

was "easily manipulated” by the children, but Alex's mother did

not recall making either statement. Counsel also asked Alex's

mother whether Florreich was "a religious woman,” which

elicited testimony that Florreich had left the "Mormon faith”

because she thought "it was better for the family,” as well as

testimony that she had joined another church.

¶18 During his cross-examination of Alex, Counsel again

pursued his theme by asking Alex whether he had pressured

Florreich into engaging in sexual activity. He also asked Alex

about statements he made to police that suggested he had

State v. Florreich

20200255-CA 8 2024 UT App 9

initiated or controlled the sexual encounters.3F

4 In addition,

Counsel highlighted certain discrepancies between Alex's

testimony in direct examination and his past statements to

Detective. In the most relevant example, Alex had told Detective

that his mother had "walked into the room” during the encounter

in his baby sister's room, whereas in the pretext call with Florreich

and again at trial, Alex had said that the "door began to open” but

that his back was facing the door and that he did not actually

know how far his mother had come into the room. Finally,

Counsel asked Alex a series of questions suggesting that Alex

wanted to become a public figure on the issue of sexual abuse,

highlighting his decision to give a couple of interviews about his

allegations and about his contact with Elizabeth Smart, a wellknown survivor of kidnapping and sexual assault.

¶19 As part of the defense case, Counsel also argued that while

investigating the case, Detective had been too accepting of Alex's

claims and too hostile toward Florreich. During crossexamination, Counsel pressed Detective about his various

statements to Florreich during the interrogation in which he told

her he thought she was lying. Counsel asked Detective how many

times he had called her a liar, tried to get Detective to agree that

accusing her of lying was an interrogation technique, and implied

that Detective had failed to investigate Florreich's "rape”

allegation because he had already come to a conclusion about who

was telling the truth.

¶20 During this cross-examination, Detective repeatedly

defended his own conduct. At one point, Detective said, "I called

her a liar a lot because she lied a lot.” At another point in this

4. At one point during the trial, Counsel disagreed with the trial

court's suggestion that he was arguing "force or coercion.”

Counsel explained that his strategy was intended to negate the

mens rea of the charges.

State v. Florreich

20200255-CA 9 2024 UT App 9

cross-examination, Counsel appeared to agree with Detective that

Florreich had lied about some things:

Counsel: You did investigate her allegations of

rape, though?

Detective: And look how many times she lied

before she made that accusation.

Counsel: Well, that's true—

While responding to questions from Counsel, Detective also

repeatedly referred to Alex as a "victim.”4F

5 And in two instances,

Detective accused Counsel of trying to mislead the jury.

¶21 In the defense's case-in-chief, the only witness that Counsel

called was a former employer of Florreich's (Employer). Counsel

asked Employer about a jewelry theft involving a cleaning lady

whom she had hired on Florreich's recommendation. Before

Employer could get too far into the story, Prosecutor objected

based on relevance. The objection was sustained, thus cutting off

the story. At that point, Counsel then asked Employer for her

opinion of Florreich's reputation for honesty or trustworthiness.

She responded, in relevant part, "I think she is very honest. I think

she's very trustworthy.” On cross-examination, Prosecutor asked

Employer if her opinion of Florreich's trustworthiness would

change if she knew that Florreich "admitted that she touched the

penis of a young boy more than one time in order to teach him

about sex.” Employer responded, "I would say yes”—though in

response to subsequent questioning, Employer expressed doubt

over whether she would believe Florreich's admission.

5. On at least one occasion, Prosecutor referred to Alex as a victim

as well.

State v. Florreich

20200255-CA 10 2024 UT App 9

¶22 In his closing argument, Counsel focused on several key

themes. First, Counsel claimed that, during his in-court testimony,

Alex had exaggerated the number of incidents that could have

occurred during Alex's childhood—that it was "absurd” to claim

that Florreich could have touched him as often as Alex was now

claiming without others in the household noticing. Second,

Counsel argued that Alex had improperly manipulated police

into targeting Florreich for investigation because of Alex's desire

for publicity and notoriety. Third, Counsel focused heavily on

Florreich's claim that Alex had "coerced” her into performing oral

sex on him after he turned eighteen, claiming that Alex had

"threat[ened]” her into doing so and that she should be viewed as

a "victim.” Fourth, Counsel stressed Florreich's background,

pointing out that she was a Tongan immigrant, that "English is

her second language,” and that she had been described as kind

and "truthful” and "laid back.” Finally, turning to the incidents

that Florreich had seemingly acknowledged in the pretext call and

interrogation, Counsel pointed out that the charged offenses were

"specific intent crime[s]” for which Florreich could be convicted

only if she had "the specific intent to gratify [Alex] sexually.”

Counsel then argued that because Alex was her employer's

child—and, by Alex's own admission, the initiator of many of the

incidents—Florreich's "intent [was] to survive,” as opposed to

having an intent to "cause him sexual arousal.” And in any event,

Counsel also argued that because Florreich was Alex's nanny, any

touching of his penis was akin to a mother touching a child's

penis, which Counsel suggested should be viewed as non-sexual.

From all of this, Counsel argued that Florreich "never had the

intent to do anything to cause [Alex] sexual arousal” and that the

jury should conclude that there was "reasonable doubt” that she

had committed the charged crimes.

¶23 During closing argument, Counsel also briefly discussed

the moment from Prosecutor's cross examination of Employer

wherein Employer admitted that her opinion of Florreich might

State v. Florreich

20200255-CA 11 2024 UT App 9

change if she knew that Florreich had engaged in sexual conduct

with a young boy. In an apparent attempt to suggest that this

"what if” did not negate Employer's previously positive

assessment of Florreich's character, Counsel said: "If I knew you

were Hitler, that would change my opinion about you too, right?

But from what I know[,] the most kind, loving person . . . has

[been] described.”5F

6

¶24 At the close of trial, the jury convicted Florreich on all

counts. Florreich timely appealed.

ISSUES AND STANDARD OF REVIEW

¶25 Florreich raises twelve claims of ineffective assistance of

counsel. "A claim of ineffective assistance of counsel raised for the

first time on appeal presents a question of law.” State v. Calata,

2022 UT App 127, ¶ 13, 521 P.3d 920 (quotation simplified), cert.

denied, 525 P.3d 1268 (Utah 2023).

ANALYSIS

¶26 Florreich raises twelve ineffective assistance claims, and

she also asks for a rule 23B remand to develop a record on two

additional claims of ineffective assistance. To succeed on any of

her ineffective assistance claims, Florreich must establish both

elements set forth by the Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). First, she "must show that

counsel's performance was deficient,” and second, she "must

show that the deficient performance prejudiced the defense.” Id.

at 687. "Both elements must be present, and if either is lacking, the

6. During a sidebar that occurred a short time later, the district

court mentioned this analogy and ordered Counsel to "not use the

word Hitler again.”

State v. Florreich

20200255-CA 12 2024 UT App 9

claim fails and the court need not address the other.” State v.

Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031.

¶27 To establish deficient performance, Florreich must

"overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.”

Strickland, 466 U.S. at 689 (quotation simplified). The question

of deficient performance "is not whether some strategy other

than the one that counsel employed looks superior given the

actual results of trial. It is whether a reasonable, competent

lawyer could have chosen the strategy that was employed in the

real-time context of trial.” State v. Barela, 2015 UT 22, ¶ 21, 349 P.3d

676.

¶28 To establish prejudice, Florreich "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.” Strickland, 466 U.S. at 694. "[T]o

evaluate prejudice, 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. And in "the event 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.” Archuleta v. Galetka, 2011 UT

73, ¶ 41, 267 P.3d 232 (quotation simplified).

¶29 We'll address Florreich's claims as follows: first, we'll

address her claim that Counsel was ineffective for not filing a

motion to exclude the admissions that she made during the

pretext call and the interrogation; second, we'll address her claim

that Counsel rendered ineffective assistance through his choice of

strategy, and alongside that claim, we'll address her request for a

rule 23B remand on two related claims of ineffective assistance;

State v. Florreich

20200255-CA 13 2024 UT App 9

and finally, we'll address Florreich's remaining ineffective

assistance claims.

I. Florreich's Admissions

¶30 Florreich argues that Counsel was ineffective for not

moving to suppress the admissions she made during the

pretext call and the police interrogation. In Florreich's view,

the admissions she made during the pretext call were the

product of unconstitutional coercion and the admissions she

made in the interrogation were suppressible as fruits of that

earlier constitutional violation. But "because the decision not

to pursue a futile motion is almost always a sound trial

strategy, counsel's failure to make a motion that would be futile

if raised does not constitute deficient performance.” State v.

Powell, 2020 UT App 63, ¶ 20, 463 P.3d 705 (quotation simplified).

In our view, there was no meritorious basis for moving to

suppress these admissions. As a result, we conclude that Counsel

did not perform deficiently.

¶31 The Constitution provides two guarantees against

involuntary confessions that are potentially implicated by

Florreich's arguments here:

The Fifth Amendment protects individuals from

being compelled to give evidence against

themselves. Furthermore, under the Due Process

Clause of the Fourteenth Amendment, certain

interrogation techniques, either in isolation or as

applied to the unique characteristics of a particular

suspect, are so offensive to a civilized system of

justice that they must be condemned.

State v. Bunting, 2002 UT App 195, ¶ 14, 51 P.3d 37 (quotation

simplified).

State v. Florreich

20200255-CA 14 2024 UT App 9

¶32 For these purposes, a confession is involuntary where,

under the totality of the circumstances, a defendant's "will

was overborne.” State v. Rettenberger, 1999 UT 80, ¶ 19, 984 P.2d

1009 (quotation simplified). Courts consider a range of

objective and subjective factors when evaluating whether this

was so in a given case. See id. ¶¶ 20, 37. The objective

factors include "the duration of the interrogation, the persistence

of the officers, police trickery, absence of family and counsel, and

threats and promises made to the defendant by the officers.” Id.

¶ 14. The subjective factors include "the defendant's mental

health, mental deficiency, emotional instability, education, age,

and familiarity with the judicial system.” Id. ¶ 15. Importantly, a

"defendant's mental condition is not in itself sufficient to make a

confession involuntary.” Id. ¶ 17. And "[a]bsent police conduct

causally related to the confession, there is simply no basis for

concluding that any state actor has deprived a criminal defendant

of due process of law.” Colorado v. Connelly, 479 U.S. 157, 164

(1986).6F

7

¶33 Florreich argues that her admissions were coerced because

of a combination of (1) misrepresentations by Alex; (2) Alex's use

of the "false friend” technique; (3) Alex's threats and promises;

(4) the close relationship they had as nanny and child; and

(5) her own subjective characteristics that allegedly made her

susceptible to a false confession. We stress upfront that

because this is a totality of the circumstances analysis, the

factors must ultimately be assessed together to determine

whether Florreich's admissions were involuntary. But we begin

7. The State agrees that Alex was acting as a state agent for

purposes of the pretext phone call in this case. Cf. Orem City v.

Santos, 2013 UT App 155, ¶ 7, 304 P.3d 883 (noting that "[w]hen a

private party acts as an agent of the government authority, any

search performed by that private party becomes subject to state

and federal constitutional protections”).

State v. Florreich

20200255-CA 15 2024 UT App 9

by examining each argument in turn, and in doing so, we

conclude that Florreich has failed to persuade us that any

particular factor rendered her statements involuntary. As a

result, whether viewed individually or collectively, we see no

basis for concluding that her admissions were unconstitutionally

coerced.

¶34 Misrepresentations. Cases that have focused on

misrepresentations made during an interrogation have most

commonly considered misrepresentations about how much

evidence police officers have obtained of the defendant's guilt.

See, e.g., State v. Fullerton, 2018 UT 49, ¶ 40, 428 P.3d 1052;

Rettenberger, 1999 UT 80, ¶ 20; State v. Galli, 967 P.2d 930, 936 (Utah

1998); State v. Apodaca, 2018 UT App 131, ¶¶ 55–56, 428 P.3d 99,

aff'd, 2019 UT 54, 448 P.3d 1255; State v. Leiva-Perez, 2016 UT App

237, ¶¶ 22–23, 391 P.3d 287; State v. Maestas, 2012 UT App 53, ¶ 32,

272 P.3d 769. As explained by our supreme court in Rettenberger,

the constitutional concern in such cases is that "a suspect may well

determine that continued resistance is futile (because the police

have evidence that will convict him despite his innocence),” thus

causing the suspect to "conclude that, given the futility of

resistance, it is most prudent to cooperate and even confess falsely

in order to get leniency.” 1999 UT 80, ¶ 22 (quotation simplified).

In such a scenario, courts thus consider whether the state actor's

misrepresentations were "sufficiently egregious to overcome a

defendant's will so as to render” the resultant "confession

involuntary.” Id. ¶ 20. In Rettenberger, for example, our supreme

court concluded that the confession in question was coerced

where police had made 36 false statements to the defendant, many

of which involved "complete fabrications about testimonial and

physical evidence” of guilt. Id. ¶ 21.

¶35 The misrepresentations at issue here occurred during a

pretext call, not a police interrogation. And it's true that a pretext

call will by definition involve at least some deception—after all,

it's the misrepresentation about the call's purpose that turns an

State v. Florreich

20200255-CA 16 2024 UT App 9

ordinary call into a pretext call.7F

8 But still, it's simply not the case

that any misrepresentation by a state actor is enough to render a

confession involuntary as a categorical rule. As noted, the

question of involuntariness is ultimately assessed under the

totality of the circumstances. And while cases involving

"egregious” misrepresentations about the collected evidence can

sometimes render a confession involuntary, the reason for this is

the possibility that the suspect will be convinced that further

resistance is futile. Id. ¶¶ 20, 22 (quotation simplified). We see no

similar cause for concern stemming from the misrepresentation at

issue here.

¶36 The only misrepresentation that Florreich points to is

Alex's misrepresentation about the purpose of his call—namely,

that he was calling to discuss the alleged sexual dysfunction in his

marriage. But while this misrepresentation may have caused

Florreich to feel more comfortable talking to Alex, we simply

don't believe that it was the type of misrepresentation that would

have overcome Florreich's will and coerced her into confessing

things to him. Unlike the false-evidence scenario described above

(where a suspect might worry about personal ramifications that

would result from non-cooperation), Florreich could have

declined to discuss any past sexual encounters or offer any advice.

¶37 The particular nature of this conversation supports this

conclusion. After all, the misrepresentation at issue was made

during a phone call with someone she considered to be a friend.

8. As explained in one article on the subject, "pretext calls” are

understood to be those where "police ask the alleged victim to

make a recorded call to a suspect, typically from the police station.

Police instruct the person about what kinds of admissions are

needed to secure conviction, as well as suggested strategies to try

and elicit them.” Deborah Davis et al., Interrogation by Proxy: The

Growing Role of Lay and Undercover Interrogators in Eliciting

Criminal Confessions, 59 Crim. L. Bull. 395, 399 (2023).

State v. Florreich

20200255-CA 17 2024 UT App 9

This was a qualitatively different kind of conversation than, say,

a conversation between a police officer and a suspect during an

interrogation. Unlike the pressures involved in that scenario,

Florreich had no particular reason here to believe that she had no

choice but to talk to Alex about these things. If she didn't want to

talk to him, she could have hung up. Due in part to such realities,

our supreme court recently noted in the Miranda context that the

"'inherently compelling pressures' of an interrogation are simply

not present during phone calls to friends and family.” State v.

Wood, 2023 UT 15, ¶ 47 n.7, 532 P.3d 997 (quotation simplified).

And in the pretext call context, a recent peer-reviewed study was

"unable to find” a single case where a court has held that a pretext

call overcame a suspect's will. Deborah Davis et al., Interrogation

by Proxy: The Growing Role of Lay and Undercover Interrogators in

Eliciting Criminal Confessions, 59 Crim. L. Bull. 395, 417 (2023).

¶38 In her reply brief, Florreich points to a recent case from

Utah's First District in which a pretext call was suppressed, and

we note that the decision in question is currently pending before

this court on appeal. See State v. Lewis, No. 191101288, (Utah 1st

Dist., June 29, 2021). The district court's suppression decision in

Lewis is not binding in this appeal, however. And we also note

that the facts of that case (which were set forth in the order that

was provided to us by Florreich) are different and at least

arguably distinguishable. We have no need to definitively rule

here that pretext calls as a category are or are not coercive. But in

light of the question before us in this case, we do conclude that the

nature of this call at least somewhat undermines the suggestion

that Alex's misrepresentation made the call coercive.

¶39 And finally, we note that Florreich's own conduct during

the remainder of the call also suggests that she did not feel forced

by this misrepresentation to say things that she didn't want to say.

For example, when Alex asked Florreich if she remembered his

mother walking in on them in the baby sister's room, she

emphatically disagreed, saying, "No way.” While perhaps not

State v. Florreich

20200255-CA 18 2024 UT App 9

dispositive on its own, this showed that Florreich retained the

wherewithal to push back if Alex made an assertion with which

she disagreed.

¶40 Pulling all this together, we don't regard the kind of

misrepresentation at issue as having been particularly

problematic from a coercion standpoint, and the circumstances

surrounding the misrepresentation and Florreich's response to it

corroborate that conclusion.

¶41 False Friend Technique. In a related vein, Florreich claims

that her admissions were involuntary because Alex had used the

"false friend” technique. We disagree.

¶42 The false friend technique is not implicated simply because

the questioner was friendly or even friends with the suspect.

Rather, this technique is understood to involve a situation where

"the interrogator represents that he is a friend acting in the suspect's

best interest.” State v. Montero, 2008 UT App 285, ¶ 18, 191 P.3d 828

(emphasis added). In a variety of cases, Utah's appellate courts

have analyzed false friend claims along these lines—i.e., by

considering whether the questioner suggested that he or she was

acting in the suspect's best interests by encouraging the suspect to

confess or cooperate. See, e.g., Apodaca, 2019 UT 54, ¶ 36 (one

detective that said he "understood” the suspect's "hard life” but

"that other officers might not be so understanding,” while another

offered to protect the suspect from retribution if he named his

accomplice (quotation simplified)); State v. Arriaga-Luna, 2013 UT

56, ¶ 4, 311 P.3d 1028 (a detective spoke to the suspect in his native

language, made small talk before the interview, and told the

suspect that "he wanted to help him and his family”); Montero,

2008 UT App 285, ¶ 18 (the officer offered to "do whatever [he]

can to help” the suspect out); State v. Werner, 2003 UT App 268,

¶ 21, 76 P.3d 204 (the officer encouraged the suspect to "tell me

something that makes” the suspected criminal activity "not a first

degree” (quotation simplified)); Bunting, 2002 UT App 195, ¶ 26

State v. Florreich

20200255-CA 19 2024 UT App 9

(detectives "suggested that they would act on” the suspect's

"behalf in going to the district attorney”).

¶43 Here, Alex never suggested that Florreich needed to talk to

him about their past encounters to serve Florreich's interests.

Instead, Alex told Florreich that the reason for this call was to

serve Alex's interests. Again, he told Florreich that he was trying

to heal his sexual relationship with his wife and that he was trying

to figure out "how [he] should feel” about his past with Florreich.

And Florreich confirmed that this was her understanding of the

conversation too, telling him that she would "be happy to talk

with” him to help him "know . . . how [he] can deal with [his]

wife.” The Alex-centered nature of this exchange was further

underlined by a moment in which Alex said, "[I]nstead of paying

my therapist all that money, I should have just called you,” to

which Florreich responded, "Well, [Alex], you know I'm a

teacher.” Thus, we see no place in the record of this call where

Alex falsely suggested that he was trying to help Florreich as her

friend by encouraging her to talk about these things, which

distinguishes this call from those that have been analyzed under

the false friend rubric.8F

9

9. In any event, even if this call could be construed as having

involved this technique, we have recognized that "standing alone,

the false-friend technique is not sufficiently coercive to produce

an involuntary confession, but may be significant in relation to

other tactics and factors.” State v. Apodaca, 2019 UT 54, ¶ 37, 448

P.3d 1255 (quotation simplified). In particular, the "false-friend

technique may be coercive if a defendant has below-average

cognitive abilities or other cognitive disabilities.” State v. LeivaPerez, 2016 UT App 237, ¶ 19, 391 P.3d 287 (quotation simplified).

For the reasons set forth shortly, we see no basis for concluding

that Florreich had any subjective factors that made her

particularly susceptible to manipulative or coercive conduct. As a

(continued...)

State v. Florreich

20200255-CA 20 2024 UT App 9

¶44 Threats and Promises. Florreich next argues that Alex's

attempts to keep her on the call while they were experiencing

connection issues "were akin to threats and promises.”

Specifically, she points to Alex's suggestion that, if she hung up,

"he might not be able to speak again before she left town.” But

this isn't akin to the type of "threat” or "promise” contemplated

by past coercion cases.

¶45 The standalone phrase "threats and promises” originated

as a section heading in Rettenberger, and it referred to a specific

kind of threat and promise: "a threat of greater punishment or a

promise for lesser punishment depending on whether a

defendant confessed.” 1999 UT 80, ¶ 29 (quotation simplified). By

contrast, we've suggested that "possibilities over which the police

clearly exercise no control” do not "amount[] to a threat or

promise of the kind pertinent to our inquiry.” State v. Prows, 2011

UT App 9, ¶ 10 n.4, 246 P.3d 1200. In Prows, for example, we held

that police officers' suggestion that a man's stepdaughter could

repeat "the cycle of abuse” if he did not confess did not constitute

coercion, since officers had no control over the stepdaughter's life

outcomes. Id. And this makes sense. As explained by the Supreme

Court, the "Fifth Amendment privilege is not concerned with

moral and psychological pressures to confess emanating from

sources other than official coercion.” Connelly, 479 U.S. at 170

(quotation simplified).

¶46 The potential wrinkle here is that this was a pretext call. On

the one hand, it's true (as the State has conceded) that Alex was

functioning as a state actor. But on the other hand, Florreich didn't

know that he was acting with any state involvement, so it's

somewhat unclear to us whether this statement from this call even

result, even if we construed this call as having employed this

technique, we would still not regard the call as being coercive.

State v. Florreich

20200255-CA 21 2024 UT App 9

could qualify as "official coercion” for purposes of this kind of

analysis.

¶47 But we need not decide whether this was so, because the

supposed "threat”—that Florreich might not have another chance

to talk to Alex again before she left—was something of a benign

statement of the sort that would commonly be made during

conversations between friends. In this sense, any pressure that it

created was "moral and psychological,” id. (quotation simplified),

not a threat of official coercion. Florreich points to no case (and

we're aware of none) in which a statement like this was ever

deemed to have rendered a resultant statement involuntary. And

we see no basis for concluding that this was so here.

¶48 Close Relationship. Florreich argues that the close

relationship she had with Alex as his childhood nanny also made

her admissions to him involuntary. In support, Florreich points to

Arriaga-Luna, a case in which our supreme court held that "the

intense loyalty and emotion present in most parent-child

relationships” can provide "an opportunity for coercion” if it is

improperly used by police during an interrogation. 2013 UT 56,

¶ 14.

¶49 As with the threats and promises factor we just discussed,

we have some question about whether this factor translates

directly to the context of a pretext call. It's one thing for officers to

make direct reference to a suspect's children—depending on the

statement and context, such references might cause the suspect to

worry about the interplay between state power and the suspect's

children. It may well be different, however, when a person who's

perceived to be family or a friend makes reference to the suspect's

children.

¶50 In any event, assuming for argument only that this factor

can apply in this context, we still see nothing coercive here. We

have no doubt that a nanny-child relationship can be close and

State v. Florreich

20200255-CA 22 2024 UT App 9

even familial in some instances. But the same is obviously true

about a parent-child relationship, and yet Arriaga-Luna refused to

"adopt any per se rule regarding the effect of references to a

defendant's children on the voluntariness of a confession.” Id.

Thus, even though officers in that case had procured a suspect's

confession, in part, through targeted appeals to the suspect's love

for his children, the supreme court still engaged in a totality of the

circumstances assessment of the various factors and, of note,

ultimately concluded that the statements in question were

voluntary. See id. ¶¶ 15–22.

¶51 Having considered the matter here, we disagree with

Florreich's suggestion that her relationship with Alex alone was

so close that her statements were involuntary. And in light of our

assessment of the various other factors at issue, we likewise see

no basis for concluding that her admissions to him were

involuntary.

¶52 Subjective Factors. Finally, Florreich points to several

characteristics that, in her estimation, made her more susceptible

to manipulation or coercion: that she was an older immigrant with

limited education, that she has an IQ "in the low-average range,”

that her work history consisted of "low-paying childcare jobs,”

and that she has no experience with the criminal justice system.

¶53 Florreich suggests that these characteristics rendered her

confession involuntary. But as an initial matter, it's not clear that

Florreich was as subjectively compromised as she now suggests.

As the State points out, testing had shown that Florreich had an

IQ in the average range for adults, Florreich had attended two

years of post-secondary education, Florreich had worked for

several years as a teacher, and Florreich had lived in the United

States for almost four decades at the time of this call.

¶54 Moreover, in such cases, the critical question is whether the

defendant's subjective characteristics affected her "ability to

State v. Florreich

20200255-CA 23 2024 UT App 9

understand what [was] happening.” Leiva-Perez, 2016 UT App

237, ¶ 33 (quotation simplified). But "[a]bsent police conduct

causally related to the confession, there is simply no basis for

concluding that any state actor has deprived a criminal defendant

of due process of law.” Connelly, 479 U.S. at 170; see also

Rettenberger, 1999 UT 80, ¶ 18 (a "confession may be suppressed

in circumstances in which a police officer knows of a suspect's

mental illness or deficiencies at the time of the interrogation and

effectively exploits those weaknesses to obtain a confession”).

¶55 In attempting to show that there was a "causal connection”

between her subjective characteristics and her admissions,

Florreich claims that she "was having difficulty understanding

Alex yet remained on the line at his insistence.” But in the call

itself, her complaints about her inability to understand Alex were

focused on the quality of the phone connection, and, with a single

exception, those complaints ceased before the discussion turned

to their past sexual encounters. And that single exception only

confirms this point. Midway through the call, and after the two

had already talked about the sexual encounters, the phone

connection dropped. Alex immediately called back, however, and

when Florreich answered, the conversation continued where it

had left off. So while the record of this call shows that Florreich

sometimes had difficulty understanding Alex on an auditory

level, that was temporary, not permanent, and we see nothing

suggesting that she was incapable of understanding the meaning

or substance of what they were talking about.

¶56 And this leads back to the ultimate question, which is

whether, under the totality of the circumstances, the conversation

was so coercive that Florreich's will was overborne. On the record

and arguments that have been presented to us, we see no basis for

concluding that any combination of factors identified from the

pretext call rose to that level. As a result, we see no basis for

concluding that Counsel performed deficiently by not moving to

suppress those admissions.

State v. Florreich

20200255-CA 24 2024 UT App 9

¶57 And because of this, we likewise reject Florreich's claim

that Counsel performed deficiently by not moving to suppress her

statements from the police interrogation. As noted, Florreich's

argument here is that these statements were the fruit of the

poisonous tree. But since we've rejected her attack on the pretext

call itself, this argument necessarily fails too. See Oregon v. Elstad,

470 U.S. 298, 305 (1985) ("Respondent's contention that his

confession . . . must be excluded as 'fruit of the poisonous tree'

assumes the existence of a [prior] constitutional violation.”); State

v. Lee, 633 P.2d 48, 52 (Utah 1981) (where the initial "search was

not unconstitutional, the subsequent seizure could not be 'fruit of

the poisonous tree'”).

II. Defense Strategy

¶58 As noted, Counsel's strategy at trial was to argue that Alex

initiated and even pressured Florreich into the sexual acts, and

Counsel secondarily argued that Detective's investigation was

one-sided and slanted. Florreich now argues that this strategy was

objectively unreasonable and that Counsel provided ineffective

assistance by choosing it. In addition, Florreich has filed a motion

under rule 23B of the Utah Rules of Appellate Procedure

contemporaneous with her brief, wherein she requests a remand

for factual development of whether Counsel was ineffective for

not investigating and presenting a false confession defense

instead. We disagree with Florreich's claim, and, for related

reasons, we likewise reject the request for a rule 23B remand.

¶59 "Judicial scrutiny of counsel's performance must be highly

deferential.” Strickland, 466 U.S. at 689. When assessing an

ineffective assistance claim, "every effort [must] be made to

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate

the conduct from counsel's perspective at the time.” Id. Because

"of the difficulties inherent in making the evaluation, a court must

indulge a strong presumption that counsel's conduct falls within

State v. Florreich

20200255-CA 25 2024 UT App 9

the wide range of reasonable professional assistance.” Id. When

considering a choice-of-strategy claim like Florreich's, the

relevant question "is not whether some strategy other than the

one that counsel employed looks superior given the actual results

of trial.” Barela, 2015 UT 22, ¶ 21. Rather, the question is "whether

a reasonable, competent lawyer could have chosen the strategy

that was employed in the real-time context of trial.” Id. In making

this assessment, an appellate court must recognize that the

"calculations of counsel in weighing the pros and cons of one

strategy over another are, in essence, a judgment about what is

most likely to work to the client's benefit in a complex trial process

that requires that many choices be made.” State v. Rivera, 2022 UT

App 44, ¶ 38, 509 P.3d 257 (quotation simplified). "In such cases,

so long as counsel could have reasonably chosen the strategy in

question, and so long as the strategy is itself reasonable, the claim

must fail.” Id.

¶60 Moreover, this review must take into account the facts and

information that were available to trial counsel when making

these strategic decisions. "After all, an attorney must play the

hand he or she is dealt, and an attorney's decision about how to

deal with adverse facts is the sort of thing that courts should not

second-guess in the context of ineffective assistance claims.” State

v. Garcia, 2017 UT App 200, ¶ 23, 407 P.3d 1061.

¶61 The State's case here largely relied on two things: (1) Alex's

in-court testimony, wherein Alex detailed the alleged sexual

encounters, and (2) Florreich's statements from the pretext call

and her interrogation, wherein Florreich had admitted to much of

the alleged conduct. Counsel could only deal with Alex's in-court

testimony through cross-examination. The question at issue in

this claim centers on how Counsel chose to deal with Florreich's

own admissions.

¶62 As framed by the parties on appeal, it appears that Counsel

essentially had two options: he could try to go through those

State v. Florreich

20200255-CA 26 2024 UT App 9

admissions, or he could instead try to go around them. First, he

could try to go through those admissions by challenging them

directly, such as by trying to show that they were false

confessions. Or second, Counsel could accept the admissions at

face value but then try to get around them by arguing that even if

they established that the conduct occurred, Florreich should still

be acquitted.

¶63 Counsel chose the latter approach. And there was at least

some factual hook for doing so. After all, Alex had admitted that

he did initiate many of the sexual encounters. Also, Florreich was

a Tongan immigrant who was employed as a nanny by Alex's

family, thus providing some basis for Counsel to argue that

Florreich had complied with Alex's requests only because Alex

had power over her. Moreover, Florreich had told Detective

during the interrogation that she thought the oral sex incident

was "rape,” which further advanced a defense that was

partially based on her assertion that she had been compelled

to engage in the conduct. As explained above, Counsel thus

argued that Florreich's only intent was "to survive,” as opposed

to having an intent to "cause [Alex] sexual arousal,” and that

there was accordingly reasonable doubt as to whether the State

had proven the mens rea elements of the specific intent crimes at

issue.

¶64 Florreich nevertheless argues on appeal that this strategy

was problematic. And we do agree that this was so. After all, one

of its underlying themes was that Alex was the sexual aggressor,

even though he was a young boy when the encounters started and

Florreich was an adult woman throughout. Moreover, under Utah

law, all the State had to show was that Florreich intended to

"arouse or gratify the sexual desire of any individual”—which

would have included Alex's sexual desires. Utah Code § 76-5-

404(2)(a)(ii)(B) (emphasis added). For these reasons, Florreich has

persuaded us that there were indeed problems with the chosen

approach.

State v. Florreich

20200255-CA 27 2024 UT App 9

¶65 But even so, Counsel still had to advance some defense.

So to prevail on this ineffective assistance claim, it's not

enough for Florreich to just show that the approach Counsel

took was problematic. She also needs to show that Counsel

should have done something else instead. The alternative

approach that she advances on appeal, however, had clear

problems of its own. Again, Florreich argues that instead of

offering an explanation for the sexual conduct, Counsel should

have argued that she had falsely confessed to the allegations

during the pretext call—in effect, contending that the

alleged conduct never happened. But the problem with that

proposed defense is that the jury had heard Florreich

acknowledge, in recordings of two separate conversations, that

this conduct had in fact occurred. So to have worked, this

approach would have required Counsel to have argued that

Florreich was not credible.

¶66 As an initial matter, Counsel may have had some

understandable reluctance at advancing a defense that was based

on discrediting his own client in the eyes of the jury that was being

asked to judge her. This alone is reason why Counsel may have

been skeptical of this potential defense.

¶67 In addition, Florreich acknowledges on appeal that this

particular defense would have needed the support of expert

testimony. But taking this route would have opened the door to

contrary testimony from a State expert. And this matters. After all,

when evaluating an ineffective assistance claim, courts must

"consider not just what did happen at trial, but also what would

have happened, including evidence that would have come in but

didn't as a result of counsel's decisions.” Ross, 2019 UT 48, ¶ 76

(quotation simplified). So here, Counsel could reasonably have

been concerned that if he put on expert testimony suggesting that

these were false confessions, he'd be gambling that the jury would

not instead be more persuaded by any contrary testimony from

the anticipated experts from the State. As recognized by our

State v. Florreich

20200255-CA 28 2024 UT App 9

supreme court in the similar context of eyewitness identification

experts, if proposed expert testimony from the defense backfires

(i.e., if the jury finds the State's experts more credible), this might

embolden the jury "to give more weight” to the very evidence that

the defense was trying to undermine by presenting the expert

testimony in question. State v. Perea, 2013 UT 68, ¶ 73, 322 P.3d 624

(emphasis added).

¶68 Indeed, this potential danger is actually illustrated by

Florreich's request for a rule 23B remand in this case.

¶69 As an initial matter, we deny Florreich's request for a

remand on the question of whether Counsel inadequately

investigated this potential defense. Under Strickland, "counsel has

a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary.” 466 U.S. at 690–91. And in support of her rule 23B

motion, Florreich has submitted an affidavit from Counsel in

which he avers that a false confession strategy was his first choice

and that he spoke to two false confession experts while

investigating the possibility of using it, both of whom reportedly

advised Counsel that, on these facts, they could not be of

assistance.

¶70 In opposing this motion, the State suggests that the number

of experts that Counsel consulted might actually have been

higher. On this, the State points to statements from the record that,

though a touch unclear, seem to indicate that Counsel spoke to

four experts. Florreich pushes back on the State's reading of the

record, claiming that it doesn't show that Counsel spoke to four

experts. And with respect to Counsel's affidavit in support of the

rule 23B remand, Florreich points out that the second expert

identified by Counsel had no recollection of the events when

appellate counsel contacted him; from this, Florreich asks us to

assume that Counsel might not have actually spoken to this expert

either.

State v. Florreich

20200255-CA 29 2024 UT App 9

¶71 On the lack of investigation claim, we need not decide

whether the actual number of experts Counsel consulted was one,

two, or four. On the investigation front, Strickland requires a

reasonable investigation, not a limitless one. Florreich points to no

authority establishing that an attorney who found and then

consulted with one or more experts in support of a possible

strategy had an obligation under the Sixth Amendment to do

more. We're accordingly not persuaded that Counsel was

required to do more here than he did.

¶72 This leaves Florreich's next (and primary) argument,

which is that Counsel should have presented a false confession

theory at trial. And in support of this aspect of her rule 23B

motion, Florreich attaches affidavits from two experts who claim

that they would have testified that her admissions carried the

hallmarks of a false confession.

¶73 But the one expert who both parties agree Counsel did

consult at the time was Dr. Daniel Reisberg, and Dr. Reisberg

expressed the opposite view. In an affidavit from Counsel that

Florreich filed in conjunction with her rule 23B motion, Counsel

says that Dr. Reisberg told him that "the interview(s) did not have

the type of hallmarks [he] would look for in order to testify as an

expert that the confession was false.” According to Counsel, Dr.

Reisberg affirmatively "advised” him "to find an alternate

defense.” In light of this, Counsel says that he concluded that

calling an expert to support a false confession defense would

"probably be more damaging than helpful” to Florreich because,

on cross-examination, the expert would have to acknowledge that

her confession might not have borne the hallmarks of a false

confession.

¶74 Florreich now assails Counsel's decision. In Florreich's

view, the sole role of an expert at trial would have been to testify

about the general hallmarks of a false confession. From this, she

surmises that there was no risk of a damaging cross-examination

State v. Florreich

20200255-CA 30 2024 UT App 9

because the rules of evidence bar expert witnesses from

"testifying that a particular witness is or is not testifying

truthfully.” But the rule she relies on, rule 608(a), "does not

prohibit an expert . . . from giving testimony from which a jury

could infer the veracity of the witness. Rather, it only bars direct

testimony regarding the truthfulness of a witness on a particular

occasion.” State v. Adams, 2000 UT 42, ¶ 14, 5 P.3d 642 (quotation

simplified). So here, it's true that an expert couldn't have testified

that Florreich was (or wasn't) actually giving a false confession

during the pretext call. But if an expert could have testified that

Florreich's testimony had some of the hallmarks of false

confession (which is what Florreich argues is the useful testimony

that Counsel should have presented), then that same expert could

have also testified that Florreich's confession instead lacked the

hallmarks of a false confession.

¶75 And this was the problem. Suppose that Counsel had

kept investigating, and suppose that Counsel had found an

expert who was willing to testify that Florreich's confession

carried the hallmarks of a false confession. At this point,

Counsel would have known from his own investigation that the

State could and very likely would then produce an expert to say

that these confessions didn't carry the hallmarks of a false

confession. Because of this, the result of this proposed approach

wouldn't have only been the addition of unchallenged expert

testimony suggesting that Florreich had falsely confessed; rather,

the likely result would have additionally included expert

testimony suggesting that Florreich's confession was not false,

thus resulting in a battle of dueling experts; and if the jury found

the State's experts to be more credible, this jury would now have

even more reason to focus on and then credit Florreich's

seemingly damning admissions. And this is precisely what Dr.

Reisberg had warned about—that presenting this defense would

"probably be more damaging than helpful” to Florreich in the

end.

State v. Florreich

20200255-CA 31 2024 UT App 9

¶76 Against this backdrop, we can still envision some (or

maybe even many) attorneys who would have preferred this

approach to the one that was actually presented by Counsel at

Florreich's trial. But again, Counsel had been advised by an expert

in this field that a potential defense based on a false confession

theory was problematic and that he needed "to find an alternate

defense.” And "courts have long held that it is reasonable for

counsel to rely on the judgment and recommendations of

qualified experts with expertise beyond counsel's knowledge.”

Archuleta, 2011 UT 73, ¶ 129. We remain cognizant of Strickland's

caution that there "are countless ways to provide effective

assistance in any given case” and that "even the best criminal

defense attorneys would not defend a particular client in the same

way.” 466 U.S. at 689 (quotation simplified). Even if we might

have chosen the approach proposed by Florreich on appeal, the

question before us is whether the approach that was chosen by

Counsel was so objectively unreasonable that it violated the Sixth

Amendment. On this record, we don't believe that it was.

¶77 As a final and related matter, Florreich also argues in her

23B motion that Counsel should have called two additional fact

witnesses. The first witness had employed Florreich as a nanny

for several years. In an affidavit, this witness says that Florreich

had a tendency to say yes or no even when she did not understand

something, as well as a tendency to be agreeable as a means of

avoiding potential confrontation. This witness also remembered

Florreich telling her that Alex had several behavioral problems

(including some involving aggression) and that Florreich was not

permitted to discipline Alex or his siblings. The second witness

was someone from another family whom Florreich had nannied

during the same period that she was nannying the children in

Alex's family. (In her affidavit, she explained that Florreich

nannied Alex and his siblings during the day and that Florreich

would nanny this witness and her siblings at night.) This witness

said that Florreich "did not handle confrontation well,” and she

State v. Florreich

20200255-CA 32 2024 UT App 9

also recalled Florreich telling her that Alex and his siblings

"would bully her, make fun of her, and play games on her.”

¶78 To the extent that these witnesses would have supported a

false confession defense, we see no need for a remand. Again, the

crux of the proposed defense would have been expert testimony,

but it was within Counsel's prerogative to prefer an approach that

tried to explain the admissions away, rather than provoking a

battle of dueling experts in the hopes that the jury would conclude

that Florreich hadn't been telling the truth in either the pretext call

or the interrogation.

¶79 Florreich also suggests that these witnesses might have

supported the defense that Counsel actually ran—which, again,

was that Florreich had only performed the sexual acts because she

was generally agreeable or even felt threatened, and that she

never had the specific intent to gratify Alex's sexual desires. But

much of this proposed testimony would have been hearsay, and

Florreich has not carried her burden of persuading us that any

hearsay exception applied. And while some of this testimony was

not hearsay (such as testimony about the witnesses' firsthand

observations of Florreich's tendency to act agreeably), this

testimony would have been cumulative of testimony of the

witness Counsel did call. In any event, given the strength of Alex's

testimony and the specificity of Florreich's admissions during the

pretext call and then the interrogation, we don't believe that

adding these additional facts would have persuaded the jury that

Florreich had not performed the sexual acts in question. We thus

deny this aspect of the rule 23B motion.

¶80 In short, this seems to have been a case in which Counsel

had no good strategic options. The one he chose had obvious

problems. But the one that Florreich now proposes on appeal had

obvious problems too. While one could certainly disagree about

which set of problems was worse, we ultimately conclude that

Counsel could reasonably take the advice of the consulted expert

State v. Florreich

20200255-CA 33 2024 UT App 9

and reasonably decide against presenting a false confession

defense. From there, we see no basis for concluding that Counsel

acted in an objectively unreasonable manner with the strategy

that he did advance at trial. We accordingly reject this ineffective

assistance claim and deny the associated motion for a rule 23B

remand.9F

10

III. Remaining Ineffective Assistance Claims

¶81 Florreich raises ten other ineffective assistance claims.

Specifically, Florreich claims that Counsel was ineffective for:

• telling jurors in the opening statement that "no one was

going to lie” to them;

• not objecting when Detective repeatedly called Florreich a

liar;

• not objecting when Detective bolstered Alex's testimony;

10. In the memo supporting her rule 23B motion, Florreich also

argued that the rule 23B scheme is unconstitutional because it

does not grant defendants discovery powers. But before Florreich

filed her rule 23B motion and appellate brief, Florreich's appellate

counsel raised concerns relating to Counsel's lack of cooperation

in providing his files. In response, we issued an order suggesting

that we might compel Counsel to cooperate if Counsel did not

provide the requested information forthwith. Florreich did not

subsequently ask for further assistance, nor has she indicated that

she did not receive the requested information. As a result, she has

not shown that she "has been or will be injured” in this case by

any alleged infirmity with respect to this aspect of the rule 23B

scheme, so we reject this argument and need not address it. See

State v. Roberts, 2015 UT 24, ¶¶ 46–47, 345 P.3d 1226.

State v. Florreich

20200255-CA 34 2024 UT App 9

• not objecting when Detective claimed at trial that Counsel

was misleading the jury;

• not objecting to various references to Alex as a "victim”;

• abandoning the initial objection to testimony about the

sexual encounter between Alex and Florreich that occurred

after Alex turned 18;

• making a comparison that used Hitler as a reference point;

• eliciting testimony about Florreich's religious beliefs and

activity;

• failing to object to unsubstantiated evidence that Florreich

had extramarital sex with someone else; and

• eliciting damaging testimony from the defense's only

witness.10F

11

¶82 As noted, an appellate court can reject an ineffective

assistance claim for a lack of either deficient performance or

prejudice. If an appellate court's decision rests on the lack of

prejudice, the court must take into account "the totality of the

evidence before the judge or jury.” Strickland, 466 U.S. at 695. This

means that "it is necessary to consider all the relevant evidence

that the jury would have had before it if [trial counsel] had

pursued the different path.” Wong v. Belmontes, 558 U.S. 15, 20

(2009) (per curiam) (emphasis in original).

¶83 Given the large number of claims that remain, it's

appropriate to first address a few of the claims for which we think

11. We recognize that we did not provide full accounts of the

circumstances surrounding each of these claims in the

Background. To the extent necessary for resolution of this appeal,

we do so as necessary below.

State v. Florreich

20200255-CA 35 2024 UT App 9

it fairly clear that there was no deficient performance. From there,

we then conclude that Florreich was not prejudiced by any

deficient performance with respect to the remaining claims (either

individually or even cumulatively), and with respect to these

claims, we do so without deciding whether there was in fact

deficient performance.

A. Claims for Which There Was No Deficient Performance

¶84 Telling jurors that "no one was going to lie” to them. In

his opening statement, Counsel told the jury, "Both sides are

going to try to make sense of the other side's story, and we're

going to try to present to you the facts in a light that shows you

what our point of view in the case is. And nobody is going to lie

to you on this case.” On appeal, Florreich argues that Counsel

performed deficiently by making this statement because the jury

would likely have interpreted this statement as Counsel somehow

vouching for Alex's credibility as a witness.

¶85 Even in isolation, however, the word "nobody” in this

claim is best understood as a reference to the attorneys, not the

witnesses. In this sense, the assertion seems to have been that

the attorneys were all proceeding in good faith, which could

have served the goal of trying to curry favor with the jury

by appearing reasonable. While Counsel certainly could

have been clearer about this, the statement still must be read in

its broader context. And in light of that context, there was no real

risk that the jury would have thought that Counsel was saying

that Alex was always telling the whole truth. After all, the point

of the pretext call was that Alex had lied to Florreich about the

call's purpose, a point that Counsel emphasized to the jury. And

while it's true that Counsel's strategy acknowledged that many of

the alleged sexual encounters had occurred, it's also true that

Counsel repeatedly suggested that Alex was the initiator and that,

contrary to Alex's claims, Florreich had effectively been coerced.

Indeed, Counsel ended his opening statement with the line,

State v. Florreich

20200255-CA 36 2024 UT App 9

"Remember that the best . . . lies that are ever told are mostly

true.”

¶86 The Sixth Amendment is not violated by the occasional

poor word choice, particularly where counsel's intended meaning

would have been plain enough to those in the room. In this

instance, we see no realistic chance that the jury would have

interpreted this isolated statement in the manner that Florreich is

now suggesting. We see no basis for concluding that it was

deficient performance.

¶87 Not objecting when Detective called Florreich a liar.

During portions of the interrogation, Detective repeatedly told

Florreich that he thought she was lying. During crossexamination at trial, Counsel elicited admissions from Detective

that he had repeatedly raised his voice with Florreich and that he

had called her a liar "a lot.” Florreich now argues that it was

objectively unreasonable for Counsel to ask questions that

effectively elicited unfavorable testimony about Florreich's

truthfulness, particularly given that it may have violated rule 608

of the Utah Rules of Evidence.

¶88 Reviewing the record more closely, however, we

disagree with Florreich's assertion that Counsel did elicit

testimony about her truthfulness. As pointed out by the State

in its brief, Counsel never "asked [Detective] whether

Florreich actually lied or whether he believed Florreich lied.”

Instead, Counsel's questions focused on Detective's behavior

during the interrogation, asking how many times he had called her

a liar. And the reason for doing so was clear. As explained, part

of the defense strategy was to argue that Detective had prejudged

the case and that his investigation was tainted. As part of this, for

example, Counsel repeatedly argued that Detective had

improperly decided not to investigate Florreich's own claim that

Alex had "raped” her.

State v. Florreich

20200255-CA 37 2024 UT App 9

¶89 This is reason enough to reject this claim of deficient

performance. In addition, we also note that audio of the

interrogation had already been played for the jury; and, as

discussed, Florreich has not persuaded us that it could have been

excluded. As a result, even before this cross-examination, the jury

had already heard Detective's statements from the interrogation

in which he said that he thought Florreich was lying to him. Since

Counsel could not have excluded those references, the apparent

goal during cross-examination was to try and blunt their effect.

Because the questions at issue seemed directed at serving that

goal, we see no deficient performance.

¶90 Failing to object to unsubstantiated evidence of

extramarital sex. At trial, the jury heard a brief snippet of the

interrogation in which Detective referred to a moment from the

pretext call in which Florreich had told Alex about a time she had

sex with a man in a park. When Prosecutor stopped the recording,

approached the bench, and asked for permission to skip over that

story, Counsel protested. Counsel initially argued that they

"should listen to the whole thing,” after which Counsel obtained

the court's agreement that he could play the rest of the story later

under the rule of completeness. Counsel did not later play the rest

of that story for the jury.

¶91 On appeal, Florreich first argues that the portion of the

interview that was played for the jury was improper. We agree.

But this leaves the question of what Counsel should have done

about it. Florreich now argues that Counsel was ineffective for

not requesting a curative instruction to combat its effects. While

we agree that Counsel could have requested such an instruction,

we don't believe that Counsel was constitutionally required to do

so.

Utah courts have long recognized that defense

counsel's decision not to request an available

curative instruction may be construed as sound trial

State v. Florreich

20200255-CA 38 2024 UT App 9

strategy. Indeed, a curative instruction may actually

serve to draw the jury's attention toward the subject

matter of the instruction and further emphasize the

issue the instruction is attempting to cure. Counsel

could have reasonably determined that [they]

would be ill-advised to call undue attention to the

testimony, particularly when it was unanticipated

and brief.

State v. Arnold, 2023 UT App 68, ¶ 79, 532 P.3d 1267 (quotation

simplified), cert. denied, 532 P.3d 1267 (Utah 2023).

¶92 The exchange at issue here fits comfortably within these

parameters. After all, the jury heard only a brief portion of this

inadmissible story, and that story was cut off before it was

developed at any length. Indeed, from what the record tells us, it's

possible that some jurors might not have even registered what

had occurred.11F

12 If Counsel had requested a curative instruction,

this instruction could have caused jurors to now focus on this

story. Under these circumstances, Counsel could reasonably have

decided that the best course of action was to let the moment slide,

rather than calling any more attention to it through the issuance

of a curative instruction. There accordingly was no deficient

performance on this point.

¶93 Abandoning an objection to evidence of the adult sexual

encounter between Alex and Florreich. Before trial, Counsel

moved to exclude any evidence of sexual contact that had

occurred between Alex and Florreich after Alex had turned 18.

The apparent basis for this motion was that such activity would

have been consensual activity between adults and thus irrelevant

to charges based on Alex's status as a minor. The State did not

respond, but Counsel withdrew the objection before the court

12. The portion of the trial transcript that recounts the portion of

the story that the jury heard spans just three lines of text.

State v. Florreich

20200255-CA 39 2024 UT App 9

ruled on it. Counsel offered no explanation for withdrawing this

objection. At trial, Alex then testified that Florreich had

performed oral sex on him after he turned 18.

¶94 On appeal, Florreich now claims that Counsel should have

objected to this testimony (or, perhaps more accurately, that

Counsel should have renewed the earlier objection). But we

disagree, because Counsel had a reasonable strategic basis for not

doing so. After Alex testified about this encounter, Counsel used

this to again assail Detective's decision not to investigate

Florreich's claim that Alex had "raped” her in this encounter. Not

only did this implicate the investigation, but it also reinforced

Florreich's claim that Alex had been the aggressor. Indeed,

Counsel used this encounter to argue that Alex's years-long

pattern of initiating sexual contact with Florreich had continued

into his adulthood. Given this, even if Counsel could have

objected, we conclude that Counsel had a reasonable basis for not

doing so. There accordingly was no deficient performance. Cf.

State v. Bedell, 2014 UT 1, ¶ 25, 322 P.3d 697 (holding that counsel

could make a "legitimate strategic decision” to use evidence that

might have properly been objected to under rule 404(b) of the

Utah Rules of Evidence).

¶95 Eliciting potentially damaging testimony from the

defense's only witness. In the defense's case, Counsel asked

Employer about a jewelry theft involving a cleaning lady that she

had hired on Florreich's recommendation. Before Counsel could

get far into the story, Prosecutor objected based on relevance. The

objection was sustained. On appeal, Florreich argues that Counsel

should not have asked about the theft in the first place. In

addition, Florreich maintains that Counsel was obligated to either

request a limiting instruction or instead ask additional questions

to "clarify Florreich's role.”

¶96 With respect to the questioning itself, it's clear enough that

Counsel was attempting to elicit testimony that he thought would

State v. Florreich

20200255-CA 40 2024 UT App 9

reflect favorably on Florreich. (Though, due to Prosecutor's

preemptive objection, the story was cut off before this purpose

was fully explained.) Counsel did not know in advance that

Prosecutor would object or that the objection would be sustained,

and Florreich has not persuaded us that there was any deficient

performance in the attempt.

¶97 With respect to its aftermath, Counsel did what Florreich

now argues he was required to do. After the court sustained the

objection, meaning that Counsel could no longer ask questions

about the jewelry incident, Counsel asked Employer about her

opinion of Florreich's reputation for honesty or trustworthiness.

She responded, in relevant part, "I think she is very honest. I think

she's very trustworthy.” So far as we can surmise, eliciting such

an opinion was the apparent point of the attempted jewelry story,

as well as of the curative actions that Florreich proposes on

appeal. Given this, Florreich has not persuaded us that Counsel

performed deficiently.

B. Remaining Claims and Prejudice

¶98 This leaves five remaining claims. In brief, these claims are

that Counsel was ineffective for:

• not objecting to alleged instances of bolstering by

Detective;

• not objecting when Detective said he thought Counsel was

misleading the jury;

• not objecting to references to Alex as a "victim”;

• eliciting testimony about Florreich's religiosity (or lack

thereof); and

• making a comparison that involved Hitler.

State v. Florreich

20200255-CA 41 2024 UT App 9

We need not decide whether Counsel performed deficiently in

any of these respects. This is so because we conclude that Florreich

was not prejudiced by any of them, either individually or

collectively.12F

13

¶99 Again, for purposes of this prejudice analysis, the question

is whether there is a reasonable probability that "the result of the

proceeding would have been different” but for the deficient

performance. Strickland, 466 U.S. at 694. In support of her

prejudice arguments, Florreich asserts that, in a pure credibility

contest between a victim and a defendant, even a small change to

the evidentiary picture could conceivably alter the trial's

outcome. See, e.g., State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct.

App. 1995). But this wasn't a pure he-said/she-said case. As

discussed above, Florreich has not persuaded us that there was

any basis for excluding either the pretext call or the interrogation,

which means that the admissions Florreich made in those

conversations were going to come in. These included Florreich's

admissions that she had massaged Alex's penis with her feet, that

she was impressed with the size of his penis, and that his wife

would be "very lucky.” And these also included the colorful

flourishes that Florreich added, such as her statement that she had

13. Although we need not assess whether there was also deficient

performance in any of these instances, we do think it important to

note our discomfort with Counsel's decision to make an analogy

involving Hitler. A decision to use Hitler as a reference point is

one that is fraught with peril and should be avoided in most any

case. And there was particular reason to avoid it here, where the

trial involved an alleged crime victim who was the son of a rabbi

and whose religion had been discussed by several witnesses.

There were any number of better comparators, and even

accounting for the seemingly off-the-cuff nature of this comment,

we're hard pressed to imagine how Counsel could have thought

this was a good idea. But even so, for the reasons expressed below,

we conclude that Florreich was not prejudiced.

State v. Florreich

20200255-CA 42 2024 UT App 9

"sweet memories” of her encounters with Alex and that "with

those memories, I am able to be with [my husband] to this day.”

¶100 The inculpatory nature of these admissions is the reason

why Florreich has argued on appeal that Counsel should have

advanced a false confession defense. As we've discussed,

however, there were problems with that approach, so Counsel

could reasonably decide to try explaining the admissions away,

rather than trying to show that Florreich wasn't telling the truth

when she made them. In addition, we've also concluded above

that there was no real basis for excluding these statements, so

under either approach, the jury would have still heard them.

Under Florreich's proposed approach, the jury would simply

have additional expert testimony, some of which would very

likely have suggested that these admissions did not have the

hallmarks of false confessions.

¶101 Moreover, the State's case did not rest solely on Florreich's

admissions. Alex also testified under oath at trial. In a case like

this one, it seems reasonable to surmise that the jury would have

placed much weight on such testimony. Alex was an adult by the

time of trial, and he testified at length about his sexual encounters

with Florreich, beginning with their first encounter through the

end. Alex described his deep and religiously inflected guilt and

shame. And he freely admitted that he had often initiated the

encounters and that Florreich had sometimes turned him down.

While Counsel managed to highlight a couple of discrepancies

during his cross-examination of Alex, none of them were

particularly serious.13F

14 Thus, his testimony as a whole largely

supported the charges.

14. In one instance we've recounted above as an illustrative

example, Alex told Detective that his mother "walked into the

room” during one encounter before being turned away, whereas

(continued...)

State v. Florreich

20200255-CA 43 2024 UT App 9

¶102 Given the combined effect of Alex's sworn testimony and

Florreich's recorded and admissible admissions, we see no

reasonable probability that, if the trial did not involve any of the

five instances of alleged deficient performance, Florreich would

have received a more favorable outcome. We thus reject these

remaining claims for lack of prejudice.

Florreich has raised multiple ineffective assistance claims.

We have reviewed Florreich’s arguments and the record. We

ultimately see this as a difficult case that presented Counsel with

difficult strategic choices. But we see no basis for reversing her

convictions due to any of the challenged decisions, nor do we see

any basis for granting her rule 23B motion. Her convictions are

therefore affirmed.



Alex had said in the pretext call that the “door began to open”

before she was turned away. But in neither instance did Alex

affirmatively say that his mother had caught him and Florreich in

an actual sexual ac