STATE OF UTAH v. DEREK RANDALL JONES

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.

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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,

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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

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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

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