State v. Ringstad

2018 UT App 66

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JEFFREY PARNELL RINGSTAD,

Appellant.

Second Amended Opinion 1

No. 20150524-CA

Filed April 12, 2018

First District Court, Brigham City Department

The Honorable Thomas Willmore

No. 131100311

Stephen W. Howard, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Second Amended

Opinion, in which JUDGES GREGORY K. ORME and DAVID N.

MORTENSEN concurred. 2

1. This Second Amended Opinion replaces the Amended

Opinion in Case No. 20150524-CA issued on October 26, 2017.

After our amended opinion issued, the State of Utah filed a

second petition for rehearing, and we called for a response. We

grant the second petition for the limited purpose of clarifying the

prejudice standard for unpreserved prosecutorial misconduct

claims.

2. Judge J. Frederic Voros Jr. was a member of the panel that

initially decided this case. He did not have the opportunity to

vote on the amended opinions prior to his retirement. Judge

Gregory K. Orme joined the panel following the retirement of

Judge Voros and upon receipt of the petitions for rehearing.

State v. Ringstad

CHRISTIANSEN, Judge:

¶1 Jeffrey Parnell Ringstad (Defendant) appeals his

convictions for two counts of rape of a child, one count of object

rape of a child, two counts of sodomy on a child, and three

counts of aggravated sexual abuse of a child, all first degree

felonies. We affirm.

BACKGROUND 3

¶2 Defendant married a woman (Mother) in September 2009.

Defendant and Mother lived together with Mother’s minor

children—the victim (Victim) and her older sister (Sister).

¶3 In 2011, as the family was preparing to be “sealed” in an

LDS temple, Mother asked Victim if she “felt worthy to go to the

temple so [they] could have [their] forever family.” According to

Mother, Victim stated that she “felt like she was good but she

didn’t feel like everybody involved was [worthy].” Victim

explained to Mother that “[Defendant] had been touching [her]

inappropriately.”

¶4 Mother confronted Defendant with Victim’s allegations.

Defendant denied sexually abusing Victim. Defendant suggested

that “[Victim] was having nightmares, it must have been

dreams, it wasn’t true.” Mother believed Defendant because he

“was the man [she] was getting ready to go through the temple

[with], he was a police officer, he was a firefighter.” Mother and

Defendant told Victim that she must have been dreaming

3. “We view the facts in the light most favorable to the jury

verdict and recite them accordingly.” State v. Loose, 2000 UT 11,

¶ 2, 994 P.2d 1237. “We present conflicting evidence only as

necessary to understand issues raised on appeal.” State v.

Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

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State v. Ringstad

because Defendant “would never do anything like that to [her].”

Victim “went along with it.”

¶5 Victim later testified that she “knew what had

happened, . . . that [Defendant] was touching [her] and that they

weren’t dreams,” but she went along with Mother and

Defendant because Defendant had threatened to divorce Mother.

Victim wanted “an eternal family” and wanted Defendant and

Mother to stay together.

¶6 In September 2013, Defendant disclosed to Mother that he

was having an affair, and they separated in October 2013.

Defendant moved to live with his new girlfriend. 4 About a week

after Defendant moved out, Victim told a school counselor that

Defendant had sexually abused her. Victim later testified that

she told the counselor because she “was losing [her] forever

family.”

¶7 In November 2013, a detective interviewed Victim after

she received a referral from the Division of Child and Family

Services. During her interview with the detective, Victim alleged

that on at least two separate occasions, Defendant had “tried to

put his penis inside of her and that it hurt.” The detective also

met with Mother, who relayed an allegation by Sister that

Defendant had “come into her bedroom and wanted to cuddle

with her,” but Sister told him to get out. 5 The detective gave

Sister an opportunity to make a written statement, but Sister did

not make any disclosures regarding rape or other sexual abuse at

that time. According to the detective, the witness statement form

had “a disclaimer that tells people to make sure they fill that out

honestly” and “if they fill it out and it’s not honest, they could be

charged with a crime.”

4. Defendant and Mother later divorced.

5. The charges in the present case only concerned Defendant’s

sexual abuse of Victim.

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¶8 Around that time, the detective also interviewed

Defendant. A video recording of Defendant’s interview was

played for the jury at trial. In the recording, Defendant admitted

that there were “a couple of incidents where [he and Victim] had

some inappropriate touching.” When the detective asked

Defendant to explain “how [he] inappropriately touched

[Victim],” Defendant explained, “I touched [Victim’s] private

areas with my hands and with my privates” “[t]wo or three”

times.

¶9 In December 2013, a pediatric nurse physically examined

both Victim and Sister. She testified that neither child’s

examination revealed any “trauma or . . . tearing or . . . scar

tissue.” The pediatric nurse explained that this was not unusual

because “the body can . . . heal very quickly in that area.”

¶10 Defendant was charged with two counts of rape of a

child, one count of object rape of a child, two counts of sodomy

on a child, and three counts of aggravated sexual abuse of a

child.

Victim’s Testimony

¶11 At trial, Victim testified that Defendant sexually abused

her from the summer of 2011 through “June or July of 2013.” The

abuse occurred in Defendant’s bedroom. According to Victim,

Defendant called her “his baby girl” “[w]hile he was touching

[her],” but he never called her that before the abuse began.

Victim testified that there had been multiple instances of

inappropriate touching, but she only testified with particularity

about two instances.

¶12 Victim testified that the first instance had occurred in the

early morning after Mother had gone to work. Defendant picked

Victim up and carried her to his room, where he laid her on his

bed and took off her clothes. Defendant took off his robe,

revealing that he had no clothes on underneath. Victim had “no

idea what was going on” and “was so scared.” According to

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State v. Ringstad

Victim, Defendant told her “if [she] ever told anyone what he

was about to do, that he would get a divorce with [her] mom.”

Defendant then got on top of Victim and started touching her

breasts with his hands. Defendant also licked her vagina.

Defendant then “sat up and . . . tried to push his penis” into

Victim’s vagina. When Victim told him to stop, Defendant

“reached over to his night stand drawer and pulled out a bottle

of green jelly.” Defendant squeezed some of the jelly “on his

finger and . . . started rubbing [Victim’s] vagina with it and then

he tried to push his penis into [her] vagina again.” Defendant

pushed his penis into Victim’s vagina “[a] little bit” and

ultimately ejaculated “[o]n top of [her] vagina.”

¶13 Victim testified that the second incident also occurred in

the early morning while Mother was at work. Defendant again

carried Victim from her room to his room, laid her on his bed,

and took off her clothes. She testified that Defendant was again

wearing a robe but that this time, he wore religious “garments”

underneath the robe. Defendant asked Victim “if [she] wanted to

make love.” When Victim asked Defendant what that meant, he

replied, “I’ll show you.” Defendant then “put his finger in

[Victim] and started fingering [her].” Victim told Defendant that

she “didn’t want to do this, that it hurt too much.” Defendant

then “reached over to his night stand drawer and . . . grabbed

the bottle of green jelly.” Defendant set the bottle on the bed and

started licking Victim’s vagina. He then rubbed the jelly on

Victim’s vagina and his penis and “tried to put his penis in [her]

[while] he kept grabbing [her] breasts and squeezing them.”

Victim testified that Defendant again put his penis inside her

“[a] little bit” and that he ejaculated in her vagina. Defendant

told Victim that “[she] had to go sit on the toilet for it to come

out.”

¶14 Victim further testified that she did not “call for help” or

tell anyone because she did not want anyone to know about the

abuse and because Defendant was her “first image of a father

and [she] wanted to keep it that way. [She] wanted her forever

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State v. Ringstad

family to be forever.” In addition to the two specific instances

that Victim described, she estimated that Defendant had touched

her inappropriately more than ten times between the summers

of 2011 and 2013, but she also testified it happened “sometimes

once, twice a week.”

Sister’s Testimony

¶15 In November 2013, while she was visiting her

grandmother for Thanksgiving, Sister claimed, for the first time,

that she had also been previously sexually abused by Defendant.

Sister met with the detective a second time after the

Thanksgiving holiday. Sister testified at trial that Defendant had

raped her approximately thirty times from early 2011 to the

summer of 2013. Sister testified that the rapes occurred in her

downstairs bedroom.

¶16 According to Sister, “[f]or the first little while,

[Defendant] would just come down in his . . . garments,” and “he

would rub [her] back underneath [her] shirt.” This happened for

approximately six months. Sister testified that Defendant then

started removing both his and Sister’s clothes and raping her.

Sister testified that the rapes were violent and that she would

“try to fight and . . . kick and get away from him,” but Defendant

“started putting belts around [her], around [her] arms so that

[she] couldn’t flail.” Sister stated that Defendant would

sometimes bring his own belt to bind her arms, but more often

than not he used her belt. Defendant threatened to divorce

Mother if Sister told anyone.

¶17 Sister acknowledged that she had told police that during

the rapes, Defendant would sometimes “throw [her] around and

grip on [her] hair.” Sister also told police that Defendant would

“spank [her] buttocks so hard that it [became] red and it hurt”

and that the rapes caused her to bleed. And while Victim had

testified that Defendant called her his “baby girl” when he

abused her, Sister testified that Defendant never called her that.

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State v. Ringstad

¶18 Sister further acknowledged that during and after the

alleged abuse, she maintained good grades and participated in

extracurricular activities. She also admitted that after Victim had

reported Defendant’s abuse, Mother had asked Sister if

Defendant had been abusing her, and Sister had replied that he

had not.

Mother’s Testimony

¶19 Mother testified that although Victim told her in 2011 that

Defendant had “been touching her inappropriately,” Mother

believed Defendant when he denied abusing Victim because

“[h]e was the man that [she] was married to and getting ready to

be sealed to.”

¶20 Mother testified that when she learned that Defendant

was having an affair with his new girlfriend, her “world

crumbled” and she had “suicidal thoughts.” Mother stated, “We

were sealed in the temple, he was supposed to be my eternal

spouse [but] he’s having an affair.”

¶21 According to Mother, there was “no possible way” that

Victim could have independently known about the bottle of

green jelly that Defendant had used on her. Mother testified that

Victim had “no access to the bedroom” and that Defendant “was

a very private person” who always kept the bedroom door

locked when he and Mother were not home. Mother testified

that the bedroom door was closed when she and Defendant were

home and that she never found Victim “poking” around in their

bedroom.

¶22 Mother admitted that after Defendant moved in with his

new girlfriend, she went to their house and confronted

Defendant and pushed him. She stated that she was “[v]ery

angry at that time.”

¶23 Mother further testified that Victim “was a social

butterfly” and that both Victim and Sister were “[a]s normal as

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State v. Ringstad

teenagers can be.” She stated that Defendant “had a closer

relationship” with Victim because Defendant and Sister “butted

heads.” Lastly, Mother testified that both girls remained active in

their extracurricular activities.

Defendant’s Mother’s Testimony

¶24 Defendant’s mother testified that she had stayed with the

family during the summer of 2011 while she recovered from

back surgery. She testified that she had not seen “anything that

alarmed [her] in behaviors involving the children and

[Defendant]” and that she did not see “any changes in any

behaviors between the two girls and [Defendant].”

¶25 Defendant’s mother testified that on one occasion after

Defendant moved in with his new girlfriend, Mother went to the

girlfriend’s house and “took ahold of [Defendant] and just

started shaking him.” She also testified that Mother had stolen

some of Defendant’s property and that Mother had told her that

she was “going to see that she got [Defendant’s] annuity [from

an accident] for her girls.”

Defendant’s Testimony

¶26 Finally, Defendant testified. He denied ever raping either

Victim or Sister. Defendant acknowledged that he had admitted

in his interview with the detective that there had been some

“inappropriate touching” between Victim and himself. In

explaining what he meant by “inappropriate touching,”

Defendant testified that “[t]here had been a couple of times that

[Victim] had come into the bedroom and had climbed up in bed

with [him] to snuggle” and that “she’d pull[ed] herself in really

close to [him].” He testified that he was once lying on his side

when Victim “started pulling herself back into [him] a little bit

tighter, kinda scooching back in, trying to get close” and that she

had “started rubbing up against [his] private areas with her back

side.” He clarified that by “back side” he meant her “buttocks

area.”

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State v. Ringstad

¶27 According to Defendant, he and Victim had been lying

there for a few minutes when she “reached up and grabbed [his]

hand and was kinda rubbing herself with it.” He testified that

Victim “then pushed [his hand] down towards her private area”

and that “when [he] realized [his] hand touched her private

area” he “pulled [his] hand away and responded to her, telling

her that’s not what we do, it’s not a good thing.” Defendant

testified that his garments never came off and that Victim’s

clothes never came off. He testified that “there [was] skin-to-skin

touching” when Victim “pushed [his] hand down toward her

private area” and that his “hand actually touch[ed] her private

areas underneath the clothing.”

¶28 Defendant further testified that a similar incident

occurred a few weeks later. He stated that after the second

incident he told Victim, “[W]e don’t do that, that’s not the right

thing. I love you, we don’t do things like this.” Defendant denied

ever being “sexually aroused with [Victim]” and stated that the

inappropriate touching “was [not] something that [he] intended

to have happen” nor “something [he] wanted to have happen.”

Defendant testified that Sister’s testimony was untrue and that

he had never tied her up.

¶29 On cross-examination, the prosecutor asked Defendant

“to explain how [his] penis touched [Victim’s] private parts,”

and Defendant replied, “I don’t know.” Defendant stated that

Victim “had snuggled back into [him] and was grinding against

[him], grinding into [his] private parts.” Defendant stated that he

did not tell Mother what had happened because he “knew that

[she] would be very, very, very, very unhappy with any of it”

and that he was trying to protect Victim. The prosecutor further

asked Defendant, “So, [the detective] asked you if there was any

inappropriate touching and you’re telling me that you confessed

to touching [Victim] in her private parts with her [sic] hands and

your penis to protect [Victim] from her mother?” Defendant

replied, “Yes.” Defendant stated that he was initially willing to

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confess to a crime to protect Victim, but he was no longer

worried about protecting her.

¶30 Defendant also testified that several years previously, he

suffered “severe closed-head injuries” that required brain

surgery. Defendant stated that he still suffers from short-term

and long-term memory problems.

¶31 The jury convicted Defendant on all counts. He now

appeals.

ISSUES AND STANDARDS OF REVIEW

¶32 Defendant raises two principal issues on appeal. First, he

contends that “the admission of evidence regarding other violent

sexual crimes allegedly committed against a person other than

the complaining witness was error that deprived [him] of his

right to [a] fair trial.” Second, he contends that “the prosecutor

engaged in prosecutorial misconduct by repeatedly eliciting

testimony and making argument regarding various religious

matters not relevant to the charges, by arguing facts that were

not in evidence, and by expressing his own personal opinion and

personally disparaging [Defendant].” Defendant concedes that

these issues were not preserved but asserts that we may reach

their merits via the plain error and ineffective assistance of

counsel exceptions to preservation. “The plain error standard of

review requires an appellant to show the existence of a harmful

error that should have been obvious to the district court.” State v.

Kennedy, 2015 UT App 152, ¶ 23, 354 P.3d 775 (citation and

internal quotation marks omitted). “An ineffective assistance of

counsel claim raised for the first time on appeal presents a

question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

¶33 Lastly, Defendant contends that “the cumulative effect of

the several errors committed in the trial court deprived [him] of

his right to a fair trial.” “We will reverse a conviction under this

doctrine when ‘the cumulative effect of the several errors

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State v. Ringstad

undermines our confidence . . . that a fair trial was had.’” State v.

Lomu, 2014 UT App 42, ¶ 7, 321 P.3d 235 (omission in original)

(quoting State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993)).

ANALYSIS

I. Character Evidence

¶34 Defendant first contends that “evidence of uncharged

rapes was inadmissible and prejudicial, requiring reversal.”

Defendant contends that his trial counsel was constitutionally

ineffective for failing to object under rule 404(b) of the Utah

Rules of Evidence to Sister’s “allegations of extreme and violent

rapes committed against” her by Defendant. Alternatively,

Defendant contends that the trial court plainly erred by not

excluding this evidence sua sponte under rule 404(b).

¶35 Around one month after Defendant and Mother

separated, Sister came forward with allegations that she had

been sexually abused by Defendant. At trial, Sister testified—

without objection from trial counsel or intervention by the trial

court—that Defendant had raped her approximately thirty times

between early 2011 and the summer of 2013. Sister did not testify

about specific incidents, stating that “[t]here wasn’t much

variation between each time.”

¶36 According to Sister, “[f]or the first little while,

[Defendant] would just come down [to her room] in

his . . . garments,” and “he would rub [her] back underneath

[her] shirt.” This happened “for about . . . six months.” Sister

testified that Defendant then started removing both his and

Sister’s clothes and raping her. Sister would “try to fight

and . . . kick and get away from him,” but Defendant “started

putting belts around [her], around [her] arms so that [she]

couldn’t flail.” Defendant threatened to divorce Mother if Sister

told anyone. Sister testified that when Victim first reported

Defendant, Sister had “an opportunity to write out a written

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State v. Ringstad

statement” but that she did not disclose the abuse then because

she “was scared.” 6 Sister ultimately disclosed Defendant’s

alleged abuse in November 2013 when she visited her

grandmother for Thanksgiving.

¶37 On cross-examination, Sister clarified that Defendant

“only started wearing garments after he and [Mother] were

sealed in the temple.” Trial counsel asked Sister, “[S]o anything

that he did with you was after the temple ceremony?” Sister

replied, “No. No. No. . . . [H]e would come down in . . . clothes

but then, towards the end, he would come in his garments.”

Sister stated that Defendant would sometimes massage her back

and admitted that she never told Mother about it even though

“at that time . . . [she] felt that that was inappropriate.”

¶38 Trial counsel further elicited testimony from Sister that

Defendant would often pull the belts so tight that her hands

would go numb and she would feel “pins and needles in [her]

fingers.” Sister acknowledged that she had told police that

Defendant made her bleed, that Defendant would “throw [her]

around and grip on [her] hair or pull [her] hair,” and that

Defendant would “spank [her] buttocks so hard that it [became]

red and it hurt.” She stated that she would “yell[] out loud

hoping that someone would hear,” but “[n]obody heard.” Sister

confirmed that these incidents were violent and that she had

testified at the preliminary hearing that Defendant “would tell

[her] to shut up and . . . put his hand over [her] mouth.”

¶39 Rule 404(b) of the Utah Rules of Evidence provides that

“[e]vidence of a crime, wrong, or other act is not admissible to

6. Trial counsel also elicited testimony from the detective that

Sister had not disclosed any abuse in her written statement and

that the witness statement “has a disclaimer that tells people to

make sure they fill that out honestly” and “if they fill it out and

it’s not honest, they could be charged with a crime.”

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State v. Ringstad

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). However, “[t]his evidence may be

admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” 7 Id. R. 404(b)(2).

A. Ineffective Assistance of Counsel

¶40 Defendant contends that his trial counsel was

constitutionally ineffective for “failing to object to evidence of

uncharged crimes,” “[p]articularly in light of the violent nature

of the allegations.”

¶41 To establish ineffective assistance of counsel, an appellant

must demonstrate both “that counsel’s performance was

deficient” and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An

appellant must rebut “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. at 689

(citation and internal quotation marks omitted). “Given the

7. Additionally, “[i]n 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). “‘[C]hild molestation’ means an act committed in

relation to a child under the age of 14 which would, if committed

in this state, be a sexual offense or an attempt to commit a sexual

offense.” Id. R. 404(c)(3). Neither party addresses rule 404(c) in

the briefing, and the record on appeal is not clear regarding

Sister’s age when the alleged abuse started. We therefore decline

to address rule 404(c) further.

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strong presumption of competence, we need not come to a

conclusion that counsel, in fact, had a specific strategy in mind.”

State v. Isom, 2015 UT App 160, ¶ 37, 354 P.3d 791 (citation and

internal quotation marks omitted). “Instead we need only

articulate some plausible strategic explanation for counsel’s

behavior.” Id. (citation and internal quotation marks omitted).

Regarding prejudice, “[a] defendant suffers prejudice when,

absent the deficiencies of counsel’s performance, there is a

reasonable likelihood that the defendant would have received a

more favorable result at trial.” State v. Hards, 2015 UT App 42,

¶ 18, 345 P.3d 769. “Because both deficient performance and

resulting prejudice are requisite elements of an ineffective

assistance of counsel claim, a failure to prove either element

defeats the claim.” Id. “Additionally, whenever there is a

legitimate exercise of professional judgment in the choice of trial

strategy, the fact that it did not produce the expected result does

not constitute ineffectiveness of counsel.” State v. Ott, 2010 UT 1,

¶ 34, 247 P.3d 344 (citation and internal quotation marks

omitted).

¶42 As the State correctly observes, in this case trial counsel

“faced the difficult task of trying to convince the jury that it

should have a reasonable doubt about whether Defendant was

guilty of sexually abusing [Victim], even though he had

confessed to doing so.” As previously discussed, Defendant had

confessed to the detective that he had sexually abused Victim.

Supra ¶ 8.

¶43 The record on appeal supports the conclusion that trial

counsel’s decision not to raise a rule 404(b) objection to Sister’s

testimony “might be considered sound trial strategy.” Strickland,

466 U.S. at 689 (citation and internal quotation marks omitted).

Certainly, it was deliberate: counsel stipulated to the admission

of the testimony.

¶44 And the record shows that counsel’s strategy was to

attack Victim’s credibility by portraying her testimony as an

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extreme fabrication concocted as part of a plot with Mother to

get revenge on Defendant for his infidelity and his decision to

seek a divorce. Trial counsel was able to use Sister’s testimony to

further that strategy by suggesting that Mother had enlisted both

Victim and Sister in her revenge plot.

¶45 Trial counsel previewed this strategy during his opening

statement. For example, he highlighted that “these allegations

came out when . . . a divorce was pending.” And he asserted that

“[t]his case is about revenge and retaliation and [a] money grab.”

Trial counsel told the jury that it would hear evidence that before

Defendant and Mother were married, Defendant “had been

awarded an annuity from an accident” and that “after these

allegations came out, it was [Mother’s] plot to seize everything

from him” and that Mother had said “that she’s going to take all

of his money, all of his annuity for her.”

¶46 Trial counsel explained that the jury would hear

“allegations from [Sister] and . . . how extreme they are.” He

stated that while Sister would testify that Defendant had “tied

her up with a belt, her hands, and she flailed and screamed

constantly to get him to stop,” there was “no physical evidence

whatsoever. No bruising, no nothing and no explanation, no

logical explanation why this abuse, if it happened, was never

being reported.” Trial counsel further stated:

You will hear that [Victim] had been going to

counseling for years, to various different

counselors, people who are trained to help her to

get these kinds of allegations out, but yet, none

have ever come out.

You will hear that these girls’ behaviors

were never different. They acted the same before,

[during] and after, happy children. Impossible for

them to behave in that way if the abuse they allege

was taking place.

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You’ll hear all of this and at times, it’s going

to be confusing and at times, we’re going to point

out all inconsistencies of these girls [and] we point

out inconsistencies because inconsistencies show

the difference between a real memory and a

fabricated memory.

¶47 Trial counsel then elicited testimony to support this

theory. To begin with, trial counsel highlighted many of the

inconsistencies between Victim’s preliminary-hearing testimony

and her trial testimony. For example, while Victim testified on

direct examination at trial that Mother was the first person she

had told about Defendant’s abuse, trial counsel elicited

testimony from Victim that at the preliminary hearing, Victim

had stated that the first person she had told about Defendant’s

abuse was a friend. Trial counsel highlighted other

inconsistencies in Victim’s testimony, including (1) the fact that

Victim had contradicted herself regarding the timeframe of

Defendant’s abuse, (2) the fact that, at the preliminary hearing,

Victim had failed to “say anything about [Defendant] licking

[her] or putting his mouth on [her] vagina,” (3) the fact that

Victim had never mentioned until trial that Defendant

“ejaculated inside of [her] and [she] had to go sit on the

toilet . . . to get it out,” and (4) Victim’s contradictions regarding

the time of day Defendant abused her. Trial counsel also elicited

testimony from Victim that she had “maintained good grades

from 2011 until now.” Victim testified that she was upset when

Defendant left and that “prior to that time, despite what [she]

said he was doing to [her], [she] was still close to him.”

¶48 Trial counsel also highlighted inconsistencies in Sister’s

testimony. For example, contrary to Sister’s trial testimony,

during the preliminary hearing, Sister had denied that

Defendant had ever “struck [her] while the incidents were taking

place.” Sister also testified that during and after the alleged

abuse, she had maintained good grades, participated in

extracurricular activities, and held a job. She testified that “when

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[Victim] first reported this, [her] mother asked [her] if

[Defendant] had been abusing her,” and Sister “told her no.”

Sister also failed to disclose the alleged abuse when police asked

her for a written statement, even though the witness statement

form had “a disclaimer that tells people to make sure they fill

that out honestly” and “if they fill it out and it’s not honest, they

could be charged with a crime.”

¶49 Trial counsel elicited testimony from Mother that she was

suicidal after Defendant left her because Defendant “was

supposed to be [her] eternal spouse.” Mother admitted that after

Defendant moved in with his new girlfriend, she went to their

house and confronted Defendant and pushed him. Mother

described Victim as a “social butterfly” and stated that both

Victim and Sister were “[a]s normal as teenagers can be.” Mother

also testified that Victim and Defendant had a “closer

relationship” than Sister and Defendant, and that Sister and

Defendant “butted heads.” Lastly, Defendant’s mother testified

that Mother had threatened that “she was going to see that she

got [Defendant’s] annuity for her girls.”

¶50 In closing argument, trial counsel reiterated the theme

that Victim’s and Sister’s claims were fabricated. Trial counsel

observed that, “the whole time[,] these girls were living a normal

life”; that they continued to be involved in extracurricular

activities; and that “[t]heir behavior around [Defendant] in front

of everyone was consistent.” Trial counsel highlighted the

inconsistencies in Victim’s and Sister’s testimonies and asserted

that when traumatic events like the ones Victim and Sister

claimed occur, “memories form and you can recall them.” Trial

counsel asserted:

Ask yourself, can anyone have this kind of

suffering, as much as they claim and continue

living a normal life? Why would anyone want to sit

on [Defendant’s] lap or go places with him? Why

would anyone be social? If you were traumatized

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like these girls claim by that man, you would not

be social, you would not be near him, you would

not want anything to do with men, period. You

would have major issues in your life and you

would not have good grades, but yet, none of that

is the case here.[8]

Trial counsel observed that none of the counselors that Victim

had seen over the years suspected that “there was ongoing

abuse” and that Mother had described Victim as “a social

butterfly.” Trial counsel further argued:

Are they saying these things because they’re

[mad] that [Defendant] left them, the person they

thought was their father and they’re mad at him

when he left them and ruined their life[;] for once,

they had stability in their life and he—he left them?

8. We would note that victimization manifests in many different

ways.

According to the literature on the subject, there is

no one classical or typical personality profile for

abused children. The difficulty with identifying a

set of behaviors exhibited by abused children is

that abused children react in a myriad of ways that

may not only be dissimilar from other sexually

abused children, but may be the very same

behaviors as children exhibit who are not abused.

Commonwealth v. Dunkle, 602 A.2d 830, 832 (Pa. 1992). “‘It is

impossible to make a general statement about the effects of

sexual abuse on children. Children react differently to different

situations depending on a number of variables that may be

operating at the time of the occurrence.’” Id. at 832 n.3 (quoting

Alvin A. Rosenfeld, The Clinical Management of Incest and Sexual

Abuse of Children, 22 Trauma 2, 3 (Oct. 1980)).

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State v. Ringstad

Or are they saying it because they want part

of his annuity? We heard testimony that the mom

said, I’m going to get his annuity. She’s not entitled

to it unless he gets convicted and then [she] says

that my daughters suffered extreme emotional

distress and need money to compensate for their

damages. What’s going on here?

Trial counsel also highlighted Mother’s anger toward Defendant

and reminded the jury that Mother had once attacked Defendant

and contemplated suicide when she found out Defendant was

leaving her.

¶51 Regarding Sister specifically, trial counsel highlighted

“how extreme” and “how violent” her allegations were and

reminded the jury of the fact that, “when first asked if there had

been anything inappropriate,” Sister had said no, but then “three

weeks later, all of a sudden comes forward with these very

serious allegations of being tied down and beaten, of being

brutally raped.” He also highlighted that Sister had not told the

pediatric nurse “about pain, nothing about bleeding.”

¶52 Trial counsel ended his closing argument by stating,

“[W]hen you look at the big picture, all of the inconsistencies,

I’m going to ask you to find [Defendant] not guilty, because

when everything is said and done, your story stays the same

when it’s a real memory and your story changes because you

can’t remember the lies you made up.”

¶53 Based on the foregoing, we conclude that trial counsel’s

decision not to object to Sister’s testimony was supported by a

reasonable trial strategy—to persuade the jury that both Victim’s

and Sister’s allegations of abuse were fabricated. Trial counsel

highlighted inconsistencies in each girl’s testimony and elicited

testimony that they both acted normally, maintained good

grades, and participated in extracurricular activities during and

after Defendant’s alleged abuse. Trial counsel emphasized the

fact that the girls only reported the abuse after Mother’s and

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Defendant’s divorce was pending and that they could have been

motivated to allege abuse because they were “[mad] that

[Defendant] left them” or “because they want[ed] part of his

annuity.” And trial counsel used Sister’s testimony, specifically

the timing and extreme nature of her allegations, to further the

defense’s theory that this case was “about revenge.” In sum, we

conclude that the record indicates that trial counsel chose to

refrain from objecting to Sister’s testimony so that he could use

her testimony to support the defense’s overall theory of

fabrication.

¶54 Trial counsel’s choice to use Sister’s testimony as part of

the defense’s trial strategy did not constitute ineffective

assistance of counsel in light of the other evidence. See State v.

Ott, 2010 UT 1, ¶ 34, 247 P.3d 344. As previously discussed,

Defendant confessed to sexually abusing Victim. During his

videotaped interview with the detective, Defendant admitted

that he had “touched [Victim’s] private areas with [his] hands

and with [his] privates” “[t]wo or three” times. Although

Defendant argues on appeal that this admission “was somewhat

ambiguous and allowed for multiple interpretations,” 9

Defendant was given an opportunity on cross-examination to

clarify his interview statement. Specifically, the prosecutor asked

Defendant to confirm that he had said that he “touched

[Victim’s] private parts with [his] hands and penis,” and

Defendant replied, “That was what was on the video, yes.”

While Defendant’s testimony was not an unequivocal admission

of guilt, Defendant was given an opportunity to clarify his

statement and instead chose to accept the prosecutor’s

interpretation of his words. In addition, as previously recounted,

Victim testified in great detail about Defendant’s abuse. Supra

¶¶ 11–14.

9. Defendant does not elaborate as to what these “multiple

interpretations” are.

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¶55 Given the totality of the evidence, including Defendant’s

confession and Victim’s detailed testimony, pursuing a

fabrication defense was a reasonable trial strategy. And the fact

that trial counsel’s strategy evidently “did not produce the

expected result does not constitute ineffectiveness of counsel.”

See Ott, 2010 UT 1, ¶ 34 (citation and internal quotation marks

omitted). We therefore conclude that trial counsel’s decision not

to object to Sister’s testimony “falls within the wide range of

reasonable professional assistance,” see Strickland v. Washington,

466 U.S. 668, 689 (1984), and that trial counsel did not perform

deficiently by pursuing this strategy instead of attempting to

have Sister’s testimony excluded. Consequently, Defendant’s

ineffective assistance of counsel claim fails.

B. Plain Error

¶56 Defendant also contends that “[i]t was plain error for the

court to admit evidence of uncharged crimes.”

¶57 “The plain error standard of review requires an appellant

to show the existence of a harmful error that should have been

obvious to the [trial] court.” State v. Waterfield, 2014 UT App 67,

¶ 18, 322 P.3d 1194; accord State v. Dunn, 850 P.2d 1201, 1208–09

(Utah 1993). An error is prejudicial when “absent the error, there

is a reasonable likelihood of a more favorable outcome for the

appellant, or phrased differently, our confidence in the verdict is

undermined.” Dunn, 850 P.2d at 1208–09.

¶58 Even assuming that the admission of the rule 404(b)

evidence—Sister’s testimony—was both erroneous and harmful,

trial counsel invited any error by stipulating before trial “that

[the rule 404(b)] evidence will be reciprocal in each case. [E]ach

victim will testify in the other victim’s case.” “The doctrine of

invited error prohibits a party from setting up an error at trial

and then complaining of it on appeal.” State v. Redding, 2007 UT

App 350, ¶ 24, 172 P.3d 319 (citation and internal quotation

marks omitted). “Under the doctrine of invited error, we have

declined to engage in even plain error review when counsel,

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either by statement or act, affirmatively represented to the trial

court that he or she had no objection to the action taken.” Id.

(brackets, citation, and internal quotation marks omitted). Here,

based on trial counsel’s stipulation, there was simply no reason

for the trial court to sua sponte strike the rule 404(b) evidence.

¶59 Moreover, a trial court is “not required to constantly

survey or second-guess a nonobjecting party’s best interests or

trial strategy and is not expected to intervene in the proceedings

unless the evidence would serve no conceivable strategic

purpose.” State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (brackets,

citation, and internal quotation marks omitted). Consequently,

where “defense counsel was not ineffective for failing to object to

the State’s use of the [rule] 404(b) evidence, there was no plain

error on the part of the district court in not intervening to

foreclose the State’s use of the evidence.” Id. “Plain error does

not exist when a conceivable strategic purpose exists to support

the use of the evidence.” Id. (citation and internal quotation

marks omitted).

¶60 In light of counsel’s pretrial stipulation that Sister would

testify at trial, we conclude that the trial court did not plainly err

in admitting Sister’s testimony.

II. Prosecutorial Misconduct

¶61 Defendant next contends that “[t]he prosecutor engaged

in misconduct by improperly injecting religious issues into the

case, by arguing facts not in evidence, by expressing his own

personal opinion, and by disparaging [Defendant].” More

specifically, Defendant contends that the prosecutor engaged in

misconduct by (1) “expressing his personal opinion and

disparaging [Defendant],” (2) arguing facts not in evidence,

(3) “inappropriately injecting religious issues into the trial,”

(4) “inappropriately attack[ing] [Defendant’s] credibility by

introducing evidence that he was not ‘worthy,’” and

(5) “attempt[ing] to inappropriately align himself with the victim

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and her family by stating to the jury in argument that he had

previously served a mission for his church.”

¶62 Because Defendant’s claims of prosecutorial misconduct

were not preserved, he relies on two exceptions to the

preservation rule: plain error and ineffective assistance of

counsel. See generally State v. Pedersen, 2010 UT App 38, ¶ 11, 227

P.3d 1264 (“Claims of prosecutorial misconduct are subject to the

preservation rule.”). “The plain error standard of review

requires an appellant to show the existence of a harmful error

that should have been obvious to the [trial] court.” State v.

Waterfield, 2014 UT App 67, ¶ 18, 322 P.3d 1194; accord State v.

Dunn, 850 P.2d 1201, 1208–09 (Utah 1993) (observing that an

error is harmful if, “absent the error, there is a reasonable

likelihood of a more favorable outcome for the appellant, or

phrased differently, our confidence in the verdict is

undermined”). To establish ineffective assistance of counsel, an

appellant must demonstrate that counsel’s performance “fell

below an objective standard of reasonableness” and that “there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “A fair

assessment of attorney performance requires that every effort 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. at 689.

¶63 In the past, when evaluating unpreserved claims of

prosecutorial misconduct, we would “consider whether the

remarks called the jurors’ attention to matters which they would

not be justified in considering in reaching a verdict and, if so,

whether the remarks were harmless beyond a reasonable

doubt.” State v. Redcap, 2014 UT App 10, ¶ 32, 318 P.3d 1202; see

also State v. Davis, 2013 UT App 228, ¶¶ 8–9, 12, 18, 311 P.3d 538

(applying the harmless-beyond-a-reasonable-doubt standard to

an unpreserved prosecutorial misconduct claim where “the

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choice of prejudice standard [was] not outcome determinative”).

In other words, we considered whether the prosecutor’s

statement was improper and whether there was a reasonable

possibility that the statement might have contributed to the

jury’s verdict. However, in State v. Bond, 2015 UT 88, 361 P.3d

104, our supreme court clarified that “unpreserved federal

constitutional claims are not subject to a heightened review

standard but are to be reviewed under our plain error doctrine.”

Id. ¶ 44. And in State v. Hummel, 2017 UT 19, 393 P.3d 314, our

supreme court further clarified that “our plain error analysis

asks not whether the prosecutor made a misstep that could be

characterized as misconduct, but whether the trial court made an

‘obvious’ error in its decision.” Id. ¶ 105; see also id. ¶ 107

(“[P]lain error review considers the plainness or obviousness of

the district court’s error (not the prosecutor’s).”). But “[t]hat is

not to say that the extent of a prosecutor’s ‘misconduct’ is

irrelevant to our analysis.” Id. ¶ 108. Indeed, “[i]f a prosecutor

asks a question aimed at eliciting material that is both highly

prejudicial and clearly inadmissible, that may suggest that the

trial judge was plainly wrong in not intervening to block its

admission sua sponte.” Id. “The more plain or obvious the

prosecutor’s misstep, the greater likelihood (other things being

equal) that an appellate court would find plain error in a judge’s

failure to step in to stop it.” Id.

¶64 A remark is improper when it falls outside the scope of

the prosecutor’s proper role. “A prosecutor has the duty and

right to argue the case based on the total picture shown by the

evidence or the lack thereof[.]” Davis, 2013 UT App 228, ¶ 19

(citation and internal quotation marks omitted). “And in closing,

counsel has considerable latitude to argue his or her view of the

evidence and the inferences and deductions arising therefrom.”

Id. (citation and internal quotation marks omitted).

“Nevertheless, a prosecutor may not argue a case based on facts

not admitted into evidence.” Id. Prejudice exists when, absent

the error, there is a reasonable likelihood of a more favorable

outcome for the defendant. Bond, 2015 UT 88, ¶ 49.

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State v. Ringstad

A. The Prosecutor’s Personal Opinion

¶65 Defendant first contends that “[t]he prosecutor engaged

in misconduct by expressing his personal opinion and

disparaging [Defendant].” According to Defendant, the

prosecutor “explicitly injected his own personal opinion” when

he stated in closing, “It doesn’t happen when you spoon and

grind—and I know those are horrible words, those are his

words, that’s what he said [Victim] did to him, I think that’s

despicable. But he has no explanation for that part.” (Emphasis

added.)

¶66 “[A] prosecutor engages in misconduct when he or she

expresses personal opinion or asserts personal knowledge of the

facts.” State v. Bakalov, 1999 UT 45, ¶ 57, 979 P.2d 799. Here, the

prosecutor’s comment was clearly a statement of personal

opinion, and we therefore agree with Defendant that it was

improper and should not have been made. However, “[w]hen

we review an attorney’s failure to object to a prosecutor’s

statements during closing argument, the question is ‘not

whether the prosecutor’s comments were proper, but whether

they were so improper that counsel’s only defensible choice was to

interrupt those comments with an objection.’” State v. Houston,

2015 UT 40, ¶ 76, 353 P.3d 55 (quoting Bussard v. Lockhart, 32 F.3d

322, 324 (8th Cir. 1994)).

¶67 The State observes that one reason “counsel can

reasonably decide not to object to ‘improper’ closing argument is

to avoid ‘emphasiz[ing] the negative aspects of the case to the

jury.’” (Alteration in original) (Quoting West Valley City v. Rislow,

736 P.2d 637, 638 (Utah Ct. App. 1987)). According to the State,

“Defendant’s case presents a prime example of an opportunity to

employ that strategy” because the prosecutor “made the

challenged remarks in the context of reminding the jury that

Defendant had no explanation for his admission that he touched

[Victim’s] vagina with his penis.” But this is inaccurate. The

prosecutor was in fact describing his opinion of Defendant’s

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claim that Victim had been “spoon[ing]” with or “grind[ing]”

against Defendant. 10 Raising an objection would not have risked

emphasizing Defendant’s lack of an explanation, because the

comment was so clearly an improper statement of opinion that

little or no discussion would have been necessary.

¶68 Nevertheless, we conclude that, even if the trial court

erred by failing to intervene when the prosecutor made the

improper comment, the error did not harm Defendant; i.e.,

absent the prosecutor’s comment, there is no reasonable

likelihood of a more favorable outcome for Defendant. See State

v. Bond, 2015 UT 88, ¶¶ 44, 49, 361 P.3d 104. In considering

whether the prosecutor’s comment was harmful, we may

consider

the strength of the evidence against [the

defendant], when and under what circumstances

the statement was made, whether defense counsel

had an opportunity to respond to the improper

statement, the purpose of the statement and its

effect on the issues in the case, and whether the

trial court gave a curative instruction.

State v. Kozlov, 2012 UT App 114, ¶ 43, 276 P.3d 1207 (citation

and additional internal quotation marks omitted). 11 Here, the

prosecutor’s statement was made during rebuttal argument so

10. Defendant characterizes the prosecutor’s remark as

“personally disparag[ing] the defendant as ‘despicable.’”

However, as noted, the prosecutor was (improperly) describing

his opinion of Defendant’s claim, not Defendant personally.

11. We recognize that State v. Kozlov, 2012 UT App 114, 276 P.3d

1207, analyzed an unpreserved prosecutorial misconduct claim

under the now-rejected harmless-beyond-a-reasonable-doubt

standard; however, the considerations set forth in Kozlov remain

helpful in reviewing for prejudice in plain-error cases.

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State v. Ringstad

defense counsel had no opportunity to respond to it, and the

trial court did not give a curative instruction. On the other hand,

there was extensive evidence against Defendant, including his

videotaped confession and the detailed testimony from Victim;

the improper statement was brief, just four words out of fifteen

pages of rebuttal argument; the statement had little obvious

effect on any issue in the case because it was phrased as an

opinion; and the court had instructed the jury not to be

influenced by “what you think [the lawyers’] opinions might be”

and that closing arguments were merely the lawyers’ views of

the case, not evidence.

¶69 After considering these factors, we conclude that

Defendant has failed to demonstrate that he suffered prejudice

from the prosecutor’s improper statement. See Bond, 2015 UT 88,

¶¶ 44, 49. Our confidence in the jury’s verdict is therefore not

undermined. See id. ¶ 57; State v. Dunn, 850 P.2d 1201, 1208–09

(Utah 1993). And because ineffective assistance of counsel and

plain error share a common standard of prejudice, State v.

Redcap, 2014 UT App 10, ¶ 50, 318 P.3d 1202, and Defendant has

not established prejudice under the latter, it follows that he has

not established prejudice under the former. Consequently, we

reject Defendant’s claims regarding the prosecutor’s improper

statement of opinion.

B. Facts Not in Evidence

¶70 Defendant next contends that “[t]he prosecutor engaged

in misconduct by arguing facts not in evidence.” More

specifically, Defendant asserts that during closing argument,

“the prosecutor twice incorrectly attributed to [Defendant]

statements from the video which were in fact not a part of the

video interview.”

¶71 During closing argument, the prosecutor stated:

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State v. Ringstad

[D]efendant’s own statement in his video was, . . . I

put my penis, I touched her with my penis on more

than one occasion.

....

[Defendant] sat right there on that video and said,

in his own words, I touched her in her private

areas with my hands and my penis.

Although the prosecutor used the word “penis,” Defendant, in

his videotaped interview, had used a euphemism: “I touched her

private areas with my hands and with my privates.”

¶72 Because defense counsel did not object to the prosecutor’s

characterization of the evidence, Defendant claims ineffective

assistance of counsel and plain error. With regard to ineffective

assistance of counsel, we must first determine whether counsel’s

failure to object “fell below an objective standard” of reasonable

professional assistance. Strickland v. Washington, 466 U.S. 668, 688

(1984). To do so, we must determine whether an objection to the

prosecutor’s statement would have been fruitful. See Redcap,

2014 UT App 10, ¶ 44 (“The Sixth Amendment does not require

counsel to make futile objections.” (citation and internal

quotation marks omitted)).

¶73 “[A] prosecutor may draw permissible deductions from

the evidence and make assertions about what the jury may

reasonably conclude from those deductions.” State v. Bakalov,

1999 UT 45, ¶ 57, 979 P.2d 799. In addition, a prosecutor “may

fully discuss with the jury reasonable inferences and deductions

drawn from the evidence.” Id. ¶ 59.

¶74 It is unclear which of the discrepancies between the

prosecutor’s version and the videotape animates Defendant’s

challenge. The State declares, “Presumably, he asserts that these

statements were improper because he admitted to touching

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State v. Ringstad

[Victim] with his ‘privates’ and did not use the word penis.”

Defendant does not dispute this reading of his challenge.

¶75 It is true that by saying “penis” rather than “privates” the

prosecutor misquoted Defendant. But Defendant does not deny

that his statement referred to his penis. Indeed, Defendant

testified that “privates” meant “penis.” A prosecutor is entitled

to fully discuss reasonable inferences drawn from the evidence.

Bakalov, 1999 UT 45, ¶ 59. Here, the prosecutor drew not just a

reasonable inference but the only reasonable inference from

Defendant’s statement. Accordingly, we see no impropriety in

the prosecutor’s statement.

¶76 Because the prosecutor’s statement was proper, an

objection to it would have been futile. “Failure to raise futile

objections does not constitute ineffective assistance of counsel.”

State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. Defendant has

therefore failed to show that his trial counsel’s decision not to

raise this objection amounted to ineffective assistance of counsel.

And because the statement was proper, there was no plain error

that the court should have been aware of. See State v. Waterfield,

2014 UT App 67, ¶ 18, 322 P.3d 1194.

C. Religious Matters

¶77 Defendant next contends that “[t]he prosecutor engaged

in misconduct by inappropriately injecting religious issues into

the trial.” Specifically, Defendant asserts that the prosecutor

improperly (1) “elicited testimony that [Victim] did not believe

that [Defendant] was ‘worthy’ to go to the LDS temple to have

his marriage sealed,” (2) elicited testimony regarding “the

religious concept of an ‘eternal’” or “forever family,” and

(3) referred to “the issue of a ‘forever family’” in closing

argument. We note that it does not appear that the prosecutor

tried to elicit testimony regarding religion; rather, the prosecutor

was attempting to shed light on the circumstances leading to the

disclosure of Victim’s allegations.

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State v. Ringstad

¶78 Defendant states that “[a] reasonably diligent search of

Utah case law has revealed no cases similar to the present one

where a court has approved of a prosecutor’s conduct in eliciting

evidence regarding the spiritual ‘worthiness’ of a defendant to

participate in an LDS temple marriage sealing or has approved a

prosecutor’s argument that the defendant’s conduct destroyed

the victim’s ‘forever family.’” On the other hand, Defendant

does not cite any cases where a court has disapproved of such

comments. The State also acknowledges that it could not locate a

controlling case “addressing the admissibility of testimony and

evidence about these or similar religious issues.”

¶79 “The plain error standard of review requires an appellant

to show the existence of a harmful error that should have been

obvious to the [trial] court.” Waterfield, 2014 UT App 67, ¶ 18.

“To establish that the error should have been obvious to the trial

court, the appellant must show that the law governing the error

was clear at the time the alleged error was made.” State v. Davis,

2013 UT App 228, ¶ 32, 311 P.3d 538 (brackets, citation, and

internal quotation marks omitted). “Thus, an error is not obvious

if there is no settled appellate law to guide the trial court.” Id.

(citation and internal quotation marks omitted).

¶80 Defendant quotes Bennett v. Angelone, 92 F.3d 1336 (4th

Cir. 1996): “[f]ederal and state courts have universally

condemned . . . religiously charged arguments as confusing,

unnecessary, and inflammatory.” Id. at 1346. But Bennett

involved both counsel making arguments based on biblical

events. Id. at 1346. Similarly, the cases Bennett described were

ones in which prosecutors compared a defendant to Judas

Iscariot, Cunningham v. Zant, 928 F.2d 1006, 1019–20 (11th Cir.

1991), compared a defendant’s statement to Peter’s denial of

Christ, United States v. Giry, 818 F.2d 120, 132–33 (1st Cir. 1987),

or used biblical allusions to advocate for a death sentence,

Commonwealth v. Chambers, 599 A.2d 630, 644 (Pa. 1991).

Defendant also refers us to State v. Ceballos, 832 A.2d 14 (Conn.

2003), for the proposition that a majority of jurisdictions “have

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State v. Ringstad

concluded that prosecutorial use of religious references is always

improper.”12 Id. at 32.

¶81 None of the cases underlying Bennett or Ceballos address

the type of facts found here, where the prosecutor elicited

testimony from a victim about the circumstances that led her to

report the abuse at issue and such circumstances happened to be

of a religious character. For example, the prosecutor did not use

any explicitly religious references in closing arguments and did

not advocate for a result based on religion. And Victim’s

testimony regarding Defendant’s “worthiness” and the temple

sealing ceremony did not advance a religious basis for a verdict.

¶82 Counsel are permitted to argue the facts of the case in

closing. No rule bars counsel from discussing those facts simply

because they may touch on religious belief. For example, State v.

Scieszka, 897 P.2d 1224 (Utah Ct. App. 1995), involved a Bible

study class teacher who “used his faith and his religious

position” to entice a fourteen-year-old girl to submit to his acts

of sodomy. Id. at 1225, 1228. Similarly, in State v. Flores, 2015 UT

App 88, 348 P.3d 361, the events of the case took place within a

church context—in fact, the defendant was the victim’s LDS

branch president at the time he perpetrated the sexual abuse. Id.

¶ 2. Under the rule Defendant proposes, a prosecutor could not

elicit the facts of the charged offenses or discuss them in closing.

¶83 Because there is no settled appellate law prohibiting

witnesses from mentioning their religious beliefs, Defendant

12. The Ceballos court continued, however, “These courts . . . do

not concomitantly conclude that all improper religious remarks

constitute harmful or reversible error.” State v. Ceballos, 832 A.2d

14, 32 (Conn. 2003). “Rather, the majority approach follows the

initial determination of impropriety with a subsequent analysis

as to whether the defendant was prejudiced by the inappropriate

remarks.” Id.

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State v. Ringstad

cannot establish the existence of an error that should have been

obvious to the trial court; consequently, relief is not available via

the plain error doctrine. See Davis, 2013 UT App 228, ¶ 32.

¶84 Nor is there a basis for concluding that Defendant’s

counsel was ineffective for failing to object to Victim’s testimony.

Due to the wide range of legitimate defense strategies, see

Strickland v. Washington, 466 U.S. 668, 688–89 (1984), a defendant

claiming ineffective assistance of counsel must “persuad[e] the

court that there was no conceivable tactical basis for counsel’s

actions,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (citation and

internal quotation marks omitted). Here, trial counsel may

reasonably have elected not to raise a questionable challenge to a

victim’s testimony referencing religion to avoid antagonizing

jury members who shared that religion.

¶85 Defendant also contends that “[t]he prosecutor attempted

to inappropriately align himself with [Victim] and her family by

stating to the jury in argument that he had previously served a

mission for his church.” 13 The State responds that the

prosecutor’s statement “was not objectionable . . . because it was

not intended as a religious reference, but rather as a fair reply to

a point in defense counsel’s argument.” We agree with the State.

¶86 During closing argument, trial counsel highlighted the

inconsistencies in Victim’s and Sister’s testimonies and argued

that “when we have a real memory, when our brain actually

experiences something, you have a picture in your brain and

memories form and you can recall them. . . . When . . . traumatic

events [occur], certain events, child birth, weddings, you

remember things.” Counsel then gave a personal example:

In 1991, I was a second lieutenant in the

United States Marine Corps and I was training to

13. It appears that Victim, her family, the prosecutor, and

Defendant all share the same religious affiliation.

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State v. Ringstad

get ready to go to Desert Storm and we thought we

were going to war. And I remember, we were in

the mess hall, eating dinner, it was about . . . 6:13 at

night, and they announced: Bombs just dropped in

Baghdad, we’re at war.

And I remember specifically, I was having

zee burgers, that’s our cheese burgers, we called

them zee burger, ‘cause when you ate them, they

made you sleepy . . . .

Well, everybody got up or . . . left their meal

and everyone ran out and I remember I was one of

the . . . last people there still eating. I remember

that 24 years later because that was a huge thing at

the time.

¶87 In response, during his rebuttal argument, the prosecutor

recounted two events in his own life. He compared these events,

asserting that while some traumatic events may be recalled

vividly decades later, detailed memories of others fade quickly:

[Trial counsel] talks about what happened in 1991.

I wasn’t in the military. I was on a mission for my

church in 1991 and I remember being in

[Portsmouth], New Hampshire, walking down the

street and seeing a news stand and looking in there

and it says, United States goes to war. I thought,

holy cow, we’re at war. I was about ready to come

home from my mission and . . . I remember talking

to my dad and my dad saying, Son, you’d better

get in college when you get home or they’re going

to draft you. I said dad, I’m not worried about that,

I think the war’s going to be over before I get

home. . . .

But I also have a little girl, she’s seven years

old now. When she was four years old, we rushed

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State v. Ringstad

her to the hospital because she started having

seizures and her eyes rolled back in her head and

she had a hard time breathing and we rushed her

to the hospital. A traumatic experience, only three

years ago, and I will tell you today, I don’t know

which car we took, I couldn’t tell you who the

doctor was, I couldn’t tell you a lot of things about

that experience to this day and I was a full-grown

adult[.] [B]ut a traumatic experience does affect

your memory and you don’t remember

everything. . . .

So this whole idea that when you go

through a traumatic experience that you remember

everything is poppycock. That’s just baloney. . . .

The prosecutor concluded with, “[W]e don’t remember

everything . . . especially when it’s a traumatic experience.”

¶88 “Because closing arguments are not evidentiary in nature,

trial counsel has wide latitude in closing arguments and is

permitted to comment on the evidence already introduced and

to argue reasonable inferences therefrom.” State v. Redcap, 2014

UT App 10, ¶ 32, 318 P.3d 1202 (citation and internal quotation

marks omitted). “In determining whether a prosecutor’s

comments amount to plain error,” such that it should have been

obvious to the trial court, “‘we will consider the comments both

in context of the arguments advanced by both sides as well as in

context of all the evidence.’” Id. ¶ 38 (quoting State v. Bakalov,

1999 UT 45, ¶ 56, 979 P.2d 799). “‘It is well settled that prejudicial

error does not result from . . . improper remarks made during

closing argument when such remarks were provoked by the

opposing counsel.’” Id. (omission in original) (quoting United

States v. Schwartz, 655 F.2d 140, 142 (8th Cir. 1981)). “The

‘doctrine of fair reply’ allows a prosecutor to make a

‘counteracting statement’ after ‘defense counsel [opens] the door

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State v. Ringstad

on the issue.’” Id. ¶ 38 (alteration in original) (quoting Schwartz,

655 F.2d at 142).

¶89 We note that the prosecutor’s reference to a mission was

not an overt call to the jury to base any of its decisions on

religion. Cf. supra ¶ 80. But even assuming, without deciding,

that the prosecutor’s comments would have been objectionable

standing alone, they were nevertheless a fair reply to trial

counsel’s own story. Trial counsel discussed his military service

and asserted that he recalled details about a traumatic event that

took place over twenty years before trial. The prosecutor

responded that, although he had been on a mission rather than

in the military, he too recalled details about the same event

(indicating that his memory abilities were no worse than trial

counsel’s) but nevertheless could not remember details of a

personal traumatic event that occurred only three years before

trial. When considered within the context of a response to trial

counsel’s Marine Corps story, we conclude that the prosecutor’s

comments, including the statement that he was “on a mission for

[his] church,” fell within the wide latitude afforded in closing

arguments to respond to issues raised by the opposing party. See

Redcap, 2014 UT App 10, ¶¶ 38, 49.

¶90 Because the prosecutor’s comments were unobjectionable,

the trial court was not obligated to intervene; Defendant

therefore cannot demonstrate plain error. See id. ¶ 40. For the

same reason, trial counsel was not required to challenge those

comments; accordingly, Defendant cannot satisfy the deficient-

performance element of an ineffective assistance of counsel

claim. See id.

¶91 Lastly, Defendant contends that the prosecutor engaged

in misconduct by “inappropriately attack[ing] [Defendant’s]

credibility by introducing evidence that he was not ‘worthy.’” It

is not clear what particular evidence this claim pertains to; our

review of the closing argument transcript reveals that neither the

word “worthy” nor its variations were employed, and

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State v. Ringstad

Defendant merely refers to “the prosecutor’s use of religious

elements.” But as we have explained, Defendant has not shown

that a prosecutor’s elicitation of testimony that happens to

mention religious beliefs in passing is improper. See supra ¶ 82.

¶92 To the extent that highlighting such testimony in closing

argument shines a light on the defendant’s credibility, we note

that “[w]hen a prosecutor discusses the credibility of witnesses

during closing arguments, the evil to be guarded against is that a

juror would consider such statements to be factual testimony

from the prosecutor.” Redcap, 2014 UT App 10, ¶ 37 (omission,

citation, and internal quotation marks omitted). In other words,

it is not improper for a prosecutor’s closing argument to remind

a jury of evidence properly adduced during the evidentiary

phase of trial and to suggest a reasonable inference based solely

on that evidence. Here, after reviewing the transcript of the

prosecutor’s closing arguments, we see nothing that the jury

might have believed was the prosecutor’s factual testimony

rather than permissible inferences urged by the prosecutor but

drawn from testimony properly adduced during the evidentiary

phase of the trial.

¶93 We conclude that Defendant cannot establish plain error

or ineffective assistance of counsel based on the prosecutor’s

introduction of evidence “that he was not ‘worthy.’”

III. Cumulative Error

¶94 Finally, Defendant contends that the “cumulative effect of

all error[s] undermines confidence in the verdict and requires

reversal.” “Under the cumulative error doctrine, we will reverse

only if the cumulative effect of the several errors undermines our

confidence . . . that a fair trial was had.” State v. Dunn, 850 P.2d

1201, 1229 (Utah 1993) (omission in original) (citation and

internal quotation marks omitted). “In assessing a claim of

cumulative error, we consider all the identified errors, as well as

any errors we assume may have occurred.” Id.

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State v. Ringstad

¶95 After considering the circumstances of this case and the

resolution of Defendant’s other claims on appeal, our confidence

that Defendant received a fair trial has not been undermined. We

therefore reject Defendant’s cumulative error claim.

CONCLUSION

¶96 We conclude that trial counsel was not ineffective for

failing to object to the rule 404(b) evidence, i.e., Sister’s

testimony. And the trial court did not commit plain error in

allowing the evidence to be presented. Trial counsel strategically

used Sister’s testimony as a basis for the defense’s theory that

Victim had fabricated her allegations against Defendant as part

of a revenge plot. In addition, we conclude that trial counsel did

not render constitutionally ineffective assistance by failing to

object to the prosecutor’s various statements, and that the trial

court did not plainly err by not intervening sua sponte.

¶97 Affirmed.

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