State v. Modes , 2020 UT App 136 ( 2020 )


Menu:
  •                          
    2020 UT App 136
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    FRANK VAL MODES,
    Appellant.
    Amended Opinion 1
    No. 20180265-CA
    Filed October 1, 2020
    Third District Court, Salt Lake Department
    The Honorable Keith A. Kelly
    No. 161912922
    Gregory G. Skordas, Kaytlin V. Beckett, and Gabriela
    Mena, Attorneys for Appellant
    Sean D. Reyes and Lindsey L. Wheeler, Attorneys
    for Appellee
    JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
    in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
    concurred.
    CHRISTIANSEN FORSTER, Judge:
    ¶1    Frank Val Modes was convicted of aggravated sexual
    abuse of a child (Victim). He appeals, alleging that the trial court
    erred by admitting evidence that he had previously committed
    1. This Amended Opinion replaces the Opinion in Case No.
    20180265-CA issued on March 12, 2020. After our opinion issued,
    the State of Utah filed a petition for rehearing, and we called for
    a response. We grant the petition for the purpose of clarifying
    the deficient performance standard in paragraph 25.
    State v. Modes
    acts of child molestation and that his trial counsel was
    ineffective. We affirm.
    BACKGROUND
    ¶2     Modes was Victim’s uncle through marriage; his wife
    (Wife) and Victim’s mother (Mother) are sisters. 2 Modes was also
    the “best friend” and a cousin of Victim’s father (Father).
    ¶3     In the early 2000s, Modes and Wife operated a licensed
    daycare in their home. While Wife managed the day-to-day
    operation of the daycare, Modes was occasionally left alone with
    the children during naptime. From around 2000—when Victim
    was five months old—until 2004, Victim attended Wife’s
    daycare. When Victim was four years old and at the daycare,
    Modes woke her and other young girls from their nap and
    forced them to take off their shirts and lie down together. Modes
    then exposed his penis, touched the girls, and masturbated.
    Victim further revealed how Modes abused her in private at the
    daycare: “Sometimes I’d wake up from nap and he’d be lying
    next to me masturbating again, to the point where the bed was
    shaking and I could hear the bunk beds squeaking. And
    sometimes he’d slide his hands inside my pants and stick a
    finger inside of . . . [m]y vagina.” In describing this abuse, she
    said, “It hurt, but I was just scared. I would just [lie] there
    and look . . . around the room or focus on the lines on top of the
    bunk bed.”
    2. “We recite the facts in the light most favorable to the trial
    court’s findings and verdict. We present conflicting evidence
    only as necessary to understand issues raised on appeal.” State v.
    Miller, 
    2017 UT App 171
    , ¶ 2 n.1, 
    405 P.3d 860
     (quotation
    simplified).
    20180265-CA                     2              
    2020 UT App 136
    State v. Modes
    ¶4    Victim recalls being “scared” to tell anybody about what
    Modes was doing to her. But Mother noticed a change in
    Victim’s behavior when Victim was about three or four years old
    and she began to act out sexually at her house. Mother suspected
    that “somebody was showing her that or teaching her
    something.” About this same time, Mother became aware that
    Modes had been accused of molesting two other girls in the
    daycare. At that point, Mother removed Victim from the
    daycare.
    ¶5    Growing up, Victim experienced a number of emotional
    and physical problems, including vomiting, shaking,
    hyperventilating, difficulty communicating with strangers,
    “always looking over her shoulder,” night terrors, and fear of
    being alone with men. Because Wife used bleach to clean the
    daycare’s floors, Victim said that the odor of bleach “[brought]
    up those feelings” and “memories” of being abused and made
    her “feel sick.” Victim reported the abuse some years later—
    when she was fourteen years old—to Mother and to a counselor.
    The abuse was then reported to the police, and an investigation
    ensued. 3
    ¶6     In October 2014, a detective interviewed Victim at the
    Children’s Justice Center (CJC). When the detective asked about
    the abuse, Victim “put her head down, looked at the floor and
    she became embarrassed. She wasn’t able to really continue
    talking. . . . She started crying.” The detective ended the
    interview. Two years later, a second detective conducted another
    3. In responding to Modes’s attorney when he asked Victim why
    “she waited ten or more years to raise this issue” of the abuse,
    Victim revealed, “I was scared. He was close to the family and it
    would just throw things in a whirl, I thought. I was scared that I
    would have to face someone like you who would protect
    someone like him. I was scared of many things.”
    20180265-CA                     3              
    2020 UT App 136
    State v. Modes
    interview with Victim at the CJC. He testified that Victim “began
    to cry” and her “voice began to crackle” as she told him about
    the abuse. Modes was charged with aggravated sexual abuse of a
    child.
    ¶7     At trial, pursuant to rule 404(c) of the Utah Rules of
    Evidence, the State presented evidence that Modes had
    previously molested another child (Prior Victim) at the daycare.
    In addition to admitting into evidence a certified copy of
    Modes’s conviction of sexual battery for his abuse of Prior
    Victim, Prior Victim testified. Prior Victim stated that she had
    attended Wife’s daycare when she was six or seven years old
    and that she called Modes “Uncle Frank” despite being
    unrelated to him. She further revealed that Modes would call her
    “his girlfriend . . . to make [her] feel special.” Prior Victim
    revealed that Modes made her sit on his lap, close her eyes, and
    stick her fingers in her mouth. Modes also made her straddle his
    hips with her legs and put her hands around his shoulders as he
    moved his hips and put “his private parts up against [her private
    parts].” Prior Victim testified that Modes unbuttoned his pants
    and tugged at her pants while he engaged in this abusive
    behavior. She revealed that this happened “a couple of times.”
    Prior Victim also described another incident in which Modes
    derived a “sick pleasure” from making her lie down with a boy
    at the daycare and “kiss” and “make out” with him. When Prior
    Victim told Modes that she did not want to do that, he said,
    “[Y]ou need to do it for your uncle.”
    ¶8      At the close of the State’s case, Modes moved for a
    directed verdict to dismiss the charge, arguing that the State had
    failed to establish a “timeline” of “when the abuse took place” or
    “anything specific upon which to convict” Modes. The State
    responded that a date and time were not elements of the offense,
    and therefore any lack of specificity about when the abuse
    occurred did not require dismissal of the charges. The trial court
    agreed with the State and denied the motion.
    20180265-CA                     4              
    2020 UT App 136
    State v. Modes
    ¶9     At trial, Modes’s defense consisted of denying that he
    abused Victim. He asserted that he was not living at the house
    where the daycare was located when the abuse allegedly
    occurred, that he was never alone with the children in the
    daycare, and that at the time of the alleged abuse, he had a back
    injury that prevented him from lifting more than ten pounds.
    ¶10 The trial court, in a bench trial, found Modes guilty as
    charged. Specifically, the court found the testimonies of Victim,
    Mother, Prior Victim, and other prosecution witnesses credible
    and Modes’s testimony not credible. In its conclusions of law,
    the court stated that Modes occupied a position of trust in
    relation to Victim, took indecent liberties with and touched the
    genitalia of Victim with the intent to gratify his sexual desire,
    caused Victim pain by digitally penetrating her vagina, and had
    previously been convicted of sexual battery. The court sentenced
    Modes to a prison term of fifteen years to life for aggravated
    sexual abuse of a child. Modes appeals.
    ISSUES AND STANDARDS OF REVIEW
    ¶11 We first address whether the court erred in admitting the
    details of Modes’s prior acts of child molestation, including
    testimony of Prior Victim, pursuant to rule 404(c) of the Utah
    Rules of Evidence. Because no objection was made at trial, we
    review this issue for plain error. See State v. Holgate, 
    2000 UT 74
    ,
    ¶ 11, 
    10 P.3d 346
     (stating that unpreserved claims may not be
    raised on appeal “unless a defendant can demonstrate that
    exceptional circumstances exist or plain error occurred”
    (quotation simplified)).
    ¶12 We next address whether Modes’s attorney performed
    deficiently by (1) failing to object to the admission of Prior
    Victim’s testimony, (2) failing to cross-examine Prior Victim, and
    (3) not calling an expert witness on the issue of early childhood
    20180265-CA                     5                
    2020 UT App 136
    State v. Modes
    memory recovery. 4 “An ineffective assistance of counsel claim
    raised for the first time on appeal presents a question of law.”
    4. Modes also claims his attorney provided ineffective assistance
    by not seeking to admit Victim’s CJC interviews into evidence.
    But neither interview is part of the record on appeal, and Modes
    has not sought to supplement the record or sought a remand to
    further develop the record pursuant to rule 23B for findings
    necessary to determine his claim of ineffective assistance of
    counsel. See Utah R. App. P. 23B(a) (“The motion will be
    available only upon a nonspeculative allegation of facts, not fully
    appearing in the record on appeal, which, if true, could support
    a determination that counsel was ineffective.”). We are unable to
    determine whether Modes’s attorney was ineffective in this
    regard absent knowledge of the content of the CJC interviews.
    “Where the record appears inadequate in any fashion,
    ambiguities or deficiencies resulting therefrom simply will be
    construed in favor of a finding that counsel performed
    effectively.” State v. Litherland, 
    2000 UT 76
    , ¶ 17, 
    12 P.3d 92
    .
    Thus, we decline to consider this aspect of Modes’s ineffective
    assistance of counsel claim.
    In similar fashion, Modes argues that he was denied a
    “fair trial through effective assistance of counsel” because his
    attorney did not “call any witnesses or provide any evidence” on
    Modes’s behalf. But Modes has not identified what witnesses
    should have been called or what evidence his attorney should
    have sought to admit on his behalf, nor has he sought to
    supplement the record with such information. Accordingly,
    Modes has failed to sufficiently develop his argument, and we
    decline to consider this aspect of his claim of ineffective
    assistance. See State v. Curtis, 
    2013 UT App 287
    , ¶ 42, 
    317 P.3d 968
     (“Without nonspeculative evidence establishing what each
    witness could have testified to at trial, [the defendant] has not
    shown that any deficient performance by trial counsel in failing
    (continued…)
    20180265-CA                     6               
    2020 UT App 136
    State v. Modes
    State v. Reyos, 
    2018 UT App 134
    , ¶ 11, 
    427 P.3d 1203
     (quotation
    simplified). 5
    (…continued)
    to interview them was so serious that it deprived him of a fair
    trial, and that there is a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding
    would have been different.” (quotation simplified)).
    5. Modes raises two other issues on appeal. First, he contends
    that his due process rights were violated because the criminal
    information did not provide adequate notice of when the
    claimed sexual abuse of a minor occurred. Modes argues that his
    motion for a directed verdict was sufficient to preserve this
    claim, but he is mistaken. Even if it could be argued that the
    information was constitutionally insufficient because it did not
    refer to specific dates of the alleged sexual abuse, Modes cannot
    now complain, because his directed verdict motion was not
    timely brought to challenge the specificity of the information.
    Modes “made no inquiry of the prosecution regarding
    additional facts by way of either a bill of particulars or a demand
    for information under [Utah Code] section 77-14-1. And he did
    not raise the inadequacy of the information before trial by
    written motion,” as required by rule 4(e) of the Utah Rules of
    Criminal Procedure. See State v. Fulton, 
    742 P.2d 1208
    , 1215 (Utah
    1987) (quotation simplified); see also 
    Utah Code Ann. § 77-14-1
    (LexisNexis 2017) (“The prosecuting attorney, on timely written
    demand of the defendant, shall within 10 days, or such other
    time as the court may allow, specify in writing as particularly as
    is known to him the place, date and time of the commission of
    the offense charged.”); Utah R. Crim. P. 4(e) (“When facts not set
    out in an information are required to inform a defendant of the
    nature and cause of the offense charged, so as to enable the
    defendant to prepare a defense, the defendant may file a written
    (continued…)
    20180265-CA                     7               
    2020 UT App 136
    State v. Modes
    (…continued)
    motion for a bill of particulars. The motion shall be filed at
    arraignment or within 14 days thereafter, or at such later time as
    the court may permit.”).
    In addition to being untimely, Modes’s directed verdict
    motion did not address the particularity or specificity of the
    information. Modes’s counsel, in the directed verdict motion
    presented after the State’s case-in-chief, asserted only that the
    State failed to present sufficient evidence for conviction: “We
    just don’t have anything specific upon which to convict Mr.
    Modes in this particular case.” Thus, Modes’s directed verdict
    motion was not specifically about the adequacy of the
    information. Rather, it was directed to a broader issue, namely,
    whether the State had presented sufficient evidence at trial to
    prove when the sexual abuse occurred. Indeed, the trial court
    articulated Modes’s motion in such terms: “The issue right now
    is whether sufficient evidence was presented to allow the case to
    go forward and require the defense to put on a defense.”
    Thus, Modes failed to preserve his challenge to the lack of
    specificity in the information. He also has not sought review of
    this issue through an exception to preservation, such as plain
    error, ineffective assistance of counsel, or exceptional
    circumstances. See State v. Johnson, 
    2017 UT 76
    , ¶ 19, 
    416 P.3d 443
    . Because he has not done so, we decline to consider this
    issue. See id. ¶ 14 (“If the parties fail to raise an issue in either the
    trial or appellate court, they risk losing the opportunity to have
    the court address that issue.” (quotation simplified)).
    Second, Modes seeks reversal pursuant to the cumulative
    error doctrine. Because we conclude that there are “no errors to
    accumulate here, . . . the cumulative error doctrine [is]
    inapplicable in this case.” State v. Galindo, 
    2019 UT App 171
    , ¶ 17
    n.4, 
    452 P.3d 519
    , petition for cert. filed, Dec. 18, 2019 (No.
    20191057).
    20180265-CA                        8                
    2020 UT App 136
    State v. Modes
    ANALYSIS
    I. Prior Sexual Abuse Evidence
    ¶13 Modes argues that the trial court plainly erred when it
    admitted the testimony of Prior Victim pursuant to rule 404(c) of
    the Utah Rules of Evidence and that this evidence was unfairly
    prejudicial. To prevail on this unpreserved claim, see supra ¶ 11,
    Modes must demonstrate plain error by establishing that “(i) an
    error exists; (ii) the error should have been obvious to the trial
    court; and (iii) the error is harmful. If any one of these
    requirements is not met, plain error is not established.” State v.
    Johnson, 
    2017 UT 76
    , ¶ 20, 
    416 P.3d 443
     (quotation simplified).
    ¶14 As a general rule, evidence of a person’s other acts “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). For evidence of other acts to
    be admissible pursuant to rule 404(b), the State must articulate a
    nonpropensity purpose for the evidence. State v. Fredrick, 
    2019 UT App 152
    , ¶ 41, 
    450 P.3d 1154
    . But this limitation does not
    apply in child molestation cases, where rule 404(c) applies. “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.” Id.
    ¶ 42. And the Utah Rules of Evidence provide that when 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).
    ¶15 Modes asserts that Prior Victim’s testimony contained
    “extraneous and inflammatory details . . . not contemplated
    under [rule] 404(c).” Relying on State v. Cuttler, 
    2015 UT 95
    , 
    367 P.3d 981
    , Modes argues that the trial court erred in allowing
    20180265-CA                     9              
    2020 UT App 136
    State v. Modes
    Prior Victim to testify in “graphic detail” about the abuse she
    suffered at the hands of Modes, asserting that Prior Victim’s
    testimony went “far beyond the scope of propensity” and was
    thus “improper and inherently prejudicial” and “served no other
    purpose . . . than prejudicing” him. But Modes does not identify
    which statements of Prior Victim should not have been
    admitted; rather, he argues that “[n]one of [Prior Victim’s]
    statements were necessary to the admission of evidence under
    404(c) or properly admissible under 404(c).” Thus from Modes’s
    perspective, evidence of his acts of prior molestation should
    have been limited to his record conviction for sexual battery. 6
    ¶16 Modes’s characterization of Cuttler is too broad. In Cuttler,
    our supreme court was more nuanced, stating that when rule
    404(c) evidence is introduced a court may mitigate the potential
    for unfair prejudice by limiting the evidence about a previous
    conviction for child molestation “to that which shows the
    defendant’s propensity for child molestation, rather than include
    unnecessary and emotionally charged details about the abuse,
    such as other accompanying physical abuse.” 
    2015 UT 95
    , ¶ 27.
    Far from prohibiting the admission of any details of previous
    acts of child molestation, Cuttler clarified that any such details
    must be directed toward showing propensity. We take this
    opportunity to clarify the parameters of admissibility allowed by
    rule 404(c).
    ¶17 First, rule 404(c) itself contemplates admission of more
    than simply the fact that a previous conviction exists; rather, the
    rule allows the admission of “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). Indeed, the rule does not require that a defendant be
    6. We note that Modes’s prior conviction was identified as an
    aggravating circumstance in the information and during trial.
    20180265-CA                    10               
    2020 UT App 136
    State v. Modes
    convicted of a crime for the associated other-acts evidence to be
    admissible. That is, the ultimate legal disposition of a previous
    act of child molestation is largely irrelevant to whether the
    evidence is admissible under rule 404(c). What is relevant is
    whether the defendant committed other acts that show his
    propensity to molest children. In short, the rule addresses
    evidence that the defendant committed previous acts of child
    molestation, and it is not necessarily concerned with whether the
    defendant was ever previously convicted for any such acts. 7
    ¶18 Second, rule 404(c) contemplates that the fact-finder will
    need to evaluate the admitted evidence to determine the extent
    to which it supports the notion that the defendant has a
    propensity to molest children. In order to meaningfully assess
    the appropriate weight to afford such evidence, the fact-finder
    will need to hear and consider at least some of the details of the
    previous acts. For instance, the more similar a previous act is to
    the act the defendant is accused of committing, the more
    commission of a previous act might suggest propensity. See State
    v. Ring, 
    2018 UT 19
    , ¶ 30, 
    424 P.3d 845
     (stating that other acts of
    child sexual abuse that are “significantly similar as to the age of
    7. Prior to the admission of a defendant’s other acts in a rule
    404(c) context, the court is required to make a legal
    determination that the child was under fourteen and that an act
    of child molestation has occurred pursuant to Utah law. See Utah
    R. Evid. 404(c)(1). (“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.” (emphasis
    added)); 
    id.
     R. 404(c)(3) (defining “child molestation” as “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”).
    20180265-CA                    11               
    2020 UT App 136
    State v. Modes
    the victim, the setting, the opportunity, and [the defendant’s]
    modus operandi . . . suggest that [a defendant had] the
    propensity to commit the alleged crime”).
    ¶19 In this case, Modes argues that none of the details
    revealed in Prior Victim’s testimony should have been admitted
    at his trial. But this position is untenable, because such selective
    admission of evidence would run contrary to the very purpose
    of rule 404(c). In this case, Modes’s previous conviction was for
    sexual battery, a crime that can take many forms and that does
    not necessarily involve child victims. In order to assess the
    evidentiary weight of that evidence as it relates to Modes’s
    propensity to commit acts of child molestation, the fact-finder
    needed to learn at least some details of the act that led to the
    prior conviction. Without any such detail, the fact-finder would
    not have been able to link Modes’s past behavior to the sexual
    molestation of a child or to evaluate whether Modes has a
    propensity to molest children, as required by rule 404(c). In
    short, without the sufficient degree of detail, the rule becomes
    inoperable.
    ¶20 Moreover, Modes has not pointed out which details
    contained in Prior Victim’s testimony went beyond what was
    necessary to show that his past conduct involved molestation of
    a child or that he has a propensity to molest children. He merely
    asserts that the “graphic details of [Prior Victim’s]
    uncontroverted testimony undoubtedly influenced the ultimate
    outcome.” And when asked at oral argument to delineate
    between which facts of the prior abuse would have been
    allowable and which facts would not, Modes’s counsel was
    unable to make the distinction. Such a failure to articulate
    between allowable facts and those which are outside the bounds
    of the trial court’s discretion constitutes a failure to meet the
    burden of persuasion. See State v. Fredrick, 
    2019 UT App 152
    ,
    ¶ 49, 
    450 P.3d 1154
     (stating that a defendant could argue that
    evidence should be “admitted in a more sanitized fashion,
    20180265-CA                     12               
    2020 UT App 136
    State v. Modes
    somehow allowing the jury to learn of the previous incidents
    without unnecessary contextual details”). In our view, the details
    that Prior Victim shared were relevant to establishing that
    Modes had molested a child in the past and that he has a
    propensity to molest children—the very purpose of rule 404(c).
    Without these details, the court would have had before it only
    Modes’s prior record of conviction for misdemeanor sexual
    battery. Such scant record evidence is not enough to fulfill the
    purpose of rule 404(c). While Modes was previously convicted of
    sexual battery, the bare record of that conviction contains
    insufficient detail to allow the fact-finder to determine whether
    the prior acts gave rise to a propensity inference in this case.
    Thus, the details supplied by Prior Victim were necessary to
    provide the context for Modes’s previous conviction. 8
    ¶21 We also conclude that the testimony of Prior Victim was
    not unfairly prejudicial, because Modes has not articulated any
    prejudice beyond the fact that the evidence showed a propensity
    to molest children, a purpose for which it was explicitly
    8. In addition, Cuttler’s analysis was in the context of a jury trial.
    See State v. Cuttler, 
    2015 UT 95
    , ¶ 27, 
    367 P.3d 981
     (stating that
    rule 404(c) allows the State to bring evidence of prior child
    molestation acts “while not presenting the jury with
    inflammatory details beyond what is necessary or appropriate
    for it to consider when drawing that propensity inference”
    (emphasis added)). Here, Modes was convicted after a bench
    trial. Thus any prejudicial effect of the testimony was naturally
    minimized by the absence of a jury. See State v. Real Prop. at 633
    E. 640 N., Orem, 
    942 P.2d 925
    , 930 (Utah 1997) (“When weighing
    the probativeness of the evidence against the possible prejudice,
    we must take into consideration the fact that the trial was to the
    bench, not to a jury. The evil that rule 403 is intended to combat,
    unfair prejudice, is primarily of concern during a jury trial.”).
    20180265-CA                      13               
    2020 UT App 136
    State v. Modes
    admissible. See Utah R. Evid. 403 (“The court may exclude
    relevant evidence if its probative value is substantially
    outweighed by a danger of . . . unfair prejudice . . . .”); see also
    Ring, 
    2018 UT 19
    , ¶ 28 (“[B]efore the court admits [rule 404(c)]
    evidence, it must weigh the evidence’s probative value against
    its potential for prejudice under rule 403.”) “[T]he 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.” Fredrick, 
    2019 UT App 152
    , ¶ 53 (Mortensen, J.,
    concurring); see also State v. Cuttler, 
    2015 UT 95
    , ¶ 26, 
    367 P.3d 981
     (“Rule 404(c)(1) explicitly allows [previous child
    molestation] evidence for the purpose of proving a defendant’s
    propensity to commit the child molestation with which he is
    charged.” (quotation simplified)); State v. Lintzen, 
    2015 UT App 68
    , ¶ 17, 
    347 P.3d 433
     (“After rule 404(c), the accused’s
    propensity is the reason for admission and no longer constitutes
    unfair prejudice.” (quotation simplified)). To establish prejudice
    in a rule 404(c) context, a defendant would have to show that the
    evidence demonstrates something apart from the act of sexual
    molestation of a child—“unnecessary and emotionally charged
    details about the abuse, such as other accompanying physical
    abuse.” Cuttler, 
    2015 UT 95
    , ¶ 27.
    ¶22 Here, the admission of the evidence that Modes had
    sexually molested a child in the past helped establish that he had
    a “propensity” to molest children. See Fredrick, 
    2019 UT App 152
    ,
    ¶ 53 (Mortensen, J., concurring). And showing such propensity
    to molest children—in contrast to the general prohibition against
    admitting other acts evidence to show propensity—is the very
    purpose of rule 404(c), which explicitly states that “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) (emphasis added).
    Modes’s “prior acts were highly probative in this case because
    20180265-CA                     14               
    2020 UT App 136
    State v. Modes
    they were significantly similar as to the age of the victim, the
    setting, the opportunity, and [Modes’s] modus operandi. These
    similarities suggest that he had the propensity to commit the
    alleged crime.” See Ring, 
    2018 UT 19
    , ¶ 30.
    ¶23 Modes has also made no attempt to demonstrate that the
    admission of the details surrounding his previous act of child
    sexual molestation prejudiced him in some other way. He
    merely states that the details of Prior Victim’s testimony
    “undoubtedly influenced the ultimate outcome.” While he is
    likely correct in this assertion, the point is not persuasive in a
    rule 404(c) context, because prejudice arising solely from a
    propensity inference is permissible. Indeed as our supreme court
    has stated, “[r]ule 404(c)’s only function is to admit evidence of
    prior child sex crimes. Therefore, ruling as [Modes] suggests
    would render rule 404(c) inoperative—an outcome we refuse to
    endorse.” See 
    id.
     In short, Modes’s claim that the court plainly
    erred in admitting details of his prior conviction for child sexual
    molestation fails because he has not shown how the details of the
    abuse were “unnecessary and emotionally charged . . . beyond
    what is necessary or appropriate for [the court] to consider when
    drawing [a rule 404(c)] propensity inference.” Cuttler, 
    2015 UT 95
    , ¶ 27.
    ¶24 Thus, we conclude that the trial court did not plainly err
    in admitting the testimony of Prior Victim, because the details
    she shared established only that Modes (1) molested a child in
    the past and (2) likely had a propensity to molest children, see
    Utah R. Evid. 404(c), and were therefore not obviously unfairly
    prejudicial, see 
    id.
     R. 403.
    II. Ineffective Assistance of Counsel
    ¶25 Modes’s second claim is that his attorney provided
    ineffective assistance by (1) failing to object to the admission of
    Prior Victim’s testimony, (2) failing to cross-examine Prior
    20180265-CA                    15               
    2020 UT App 136
    State v. Modes
    Victim, and (3) not calling an expert witness in the issue of early
    childhood memory recovery. To establish that his attorney
    provided ineffective assistance, Modes must prove that his
    counsel performed deficiently and that he was prejudiced as a
    result. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). “Because
    failure to establish either prong of the test is fatal to an
    ineffective assistance of counsel claim, we are free to address
    [Modes’s] claims under either prong.” See Honie v. State, 
    2014 UT 19
    , ¶ 31, 
    342 P.3d 182
    . To succeed on the first prong, Modes must
    overcome the presumption that an attorney‘s decision “falls
    within the wide range of reasonable professional assistance.”
    Strickland, 
    466 U.S. at 689
    . “The court gives trial counsel wide
    latitude in making tactical decisions and will not question such
    decisions unless there is no reasonable basis supporting them.”
    See State v. Clark, 
    2004 UT 25
    , ¶ 6, 
    89 P.3d 162
     (quotation
    simplified). Moreover, “the question of deficient performance is
    not whether some strategy other than the one that counsel
    employed looks superior given the actual results of trial. It is
    whether a reasonable, competent lawyer could have chosen the
    strategy that was employed in the real-time context of trial.”
    State v. Nelson, 
    2015 UT 62
    , ¶ 14, 
    355 P.3d 1031
     (quotation
    simplified). And “even where a court cannot conceive of a sound
    strategic reason for counsel’s challenged conduct, it does not
    automatically follow that counsel was deficient. . . . [T]he
    ultimate question is always whether, considering all the
    circumstances, counsel’s acts or omissions were objectively
    unreasonable.” State v. Scott, 
    2020 UT 13
    , ¶ 36, 
    462 P.3d 350
    ; see
    also State v. Ray, 
    2020 UT 12
    , ¶¶ 34–36.
    ¶26 Modes first argues that his trial counsel performed
    deficiently for not objecting to the admission of Prior Victim’s
    testimony. As we explained, supra ¶¶ 20–21, Prior Victim’s
    testimony could properly be admitted to demonstrate that
    Modes’s prior conviction qualified as an act of child molestation
    to show his propensity to molest children, see Utah R. Evid.
    20180265-CA                     16               
    2020 UT App 136
    State v. Modes
    404(c), so any objection that the testimony was inadmissible
    under rule 404(c) would not have succeeded. In addition, as we
    explained, supra ¶¶ 22–24, Modes has not demonstrated that the
    details relayed by Prior Victim of Modes’s abuse of her were
    inflammatory or unfairly prejudicial, because such evidence was
    relevant to demonstrate Modes’s propensity to molest children.
    And it is well-established that the “[f]ailure to raise futile
    objections does not constitute ineffective assistance of counsel.”
    State v. Kelley, 
    2000 UT 41
    , ¶ 26, 
    1 P.3d 546
    ; see also State v.
    Ringstad, 
    2018 UT App 66
    , ¶ 76, 
    424 P.3d 1052
    ; State v.
    Christensen, 
    2014 UT App 166
    , ¶ 18, 
    331 P.3d 1128
    .
    ¶27 With regard to the second ineffective assistance claim,
    counsel may have concluded that cross-examining Prior Victim
    would have done more harm than good to Modes. See State v.
    King, 
    2010 UT App 396
    , ¶ 49, 
    248 P.3d 984
     (“[A]ttorneys may opt
    to forgo cross-examination of witnesses for valid strategic
    reasons.”). For example, counsel may have feared that cross-
    examining Prior Victim would have revealed more damaging
    details about the past abuse conviction and further evidence
    about the similarity of the two incidents of abuse. See State v.
    Arriaga, 
    2012 UT App 295
    , ¶ 21, 
    288 P.3d 588
     (stating that not
    cross-examining a victim is a reasonable strategy to “avoid
    rehashing the dirty details of the victim’s testimony in order to
    point out a few minor inconsistencies here and there”); State v.
    Strain, 
    885 P.2d 810
    , 815 (Utah Ct. App. 1994) (stating that
    forgoing cross-examination is a legitimate trial strategy to avoid
    giving a witness the opportunity to “bolster[] his testimony with
    further detail”).
    ¶28 Lastly, Modes argues that counsel was deficient in
    failing to consult a memory expert, asserting that counsel’s
    “failure to inquire about [the] tender age of [Victim] and
    its impact on memory recall, or the limited capacity of a
    child under two years of age to recall such facts, would
    have clearly impacted the evidentiary picture.” However,
    20180265-CA                    17              
    2020 UT App 136
    State v. Modes
    “counsel’s decision to call or not to call an expert witness is
    a matter of trial strategy, which will not be questioned
    and viewed as ineffectiveness unless there is no reasonable
    basis for that decision.” State v. Tyler, 
    850 P.2d 1250
    , 1256
    (Utah 1993); accord State v. Walker, 
    2010 UT App 157
    , ¶ 14, 
    235 P.3d 766
    . Apart from the unsupported allegation that
    counsel did not consult a memory expert, Modes offers no
    evidence that counsel did not investigate or consider whether
    a memory expert would have been useful to the defense. 9
    Counsel may reasonably have concluded that through cross-
    examination, he could reveal weaknesses in Victim’s ability
    to recall events that had happened to her as a child and so
    expose any inaccuracies in her testimony. Thus, counsel may
    have determined that a memory expert would not have
    materially added to undermining the accuracy of Victim’s
    testimony. 10
    9. Modes has not sought remand pursuant to rule 23B to include
    an affidavit from any expert proffering the proposed expert
    testimony he would have introduced at trial, and therefore he
    cannot demonstrate prejudice by showing that such expert
    testimony would have helped his defense.
    10. Citing Landry v. State, 
    2016 UT App 164
    , 
    380 P.3d 25
    , Modes
    argues that counsel was required to seek out expert guidance on
    difficult issues. Landry states,
    Although we are generally reluctant to question
    trial strategy, including whether to call an expert
    witness, where there is no reasonable basis for that
    decision, we will conclude there was deficient
    performance by trial counsel. The specific facts of a
    case may require trial counsel to investigate
    potential witnesses to determine whether such
    testimony would be appropriate.
    (continued…)
    20180265-CA                   18              
    2020 UT App 136
    State v. Modes
    ¶29 Accordingly, we conclude that Modes has failed to show
    that his counsel rendered deficient representation.
    CONCLUSION
    ¶30 We conclude that the trial court did not plainly err in
    admitting the testimony of Prior Victim and that Modes’s
    counsel did not provide ineffective assistance.
    ¶31   Affirmed.
    (…continued)
    Id. ¶ 32 (quotation simplified). In citing Landry, Modes fails to
    note that the case involved a charge of first-degree-felony arson
    and that counsel for the defendant had no prior experience or
    training defending someone charged with arson. See id. ¶¶ 6, 34.
    Here, there is nothing in the record to suggest that Modes’s
    attorney was similarly inexperienced in the area of memory
    recall. In addition, the arson investigation in Landry presented an
    issue requiring some degree of scientific expertise, and Modes
    makes no argument that the issue of memory recall requires
    similar expert guidance or that it cannot be addressed through
    competent cross-examination. Thus, Landry is readily
    distinguishable from the case at hand.
    20180265-CA                    19               
    2020 UT App 136