State v. Burnside , 387 P.3d 570 ( 2016 )

2016 UT App 224THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DONOVAN HEATH BURNSIDE,
Appellant.
Opinion
No. 20140400-CA
Filed November 10, 2016
First District Court, Logan Department
The Honorable Clint S. Judkins
No. 111100376
Gregory N. Skabelund and Bryan Sidwell, Attorneys
for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Donovan Heath Burnside appeals his convictions on three
counts of aggravated sexual abuse of a child, a first-degree
felony, under Utah Code section 76-5-404.1(4). We affirm.
State v. Burnside
BACKGROUND1
¶2 The victim (Child) lived with her Mother and Stepfather.
Burnside, a friend of the family, lived intermittently in the
household from approximately January 2009 through January
2011. In January 2011, Child told Stepfather that Burnside had
touched Child’s genital area. The day after this disclosure,
Mother and Stepfather took Child to a doctor. After speaking
with them about Child’s disclosure, the doctor told them he was
required to report the information to the authorities, which he
did, and an investigation followed.
¶3 In the course of the investigation, a nurse practitioner at
the Children’s Justice Center (CJC) examined Child. Also, a CJC
detective interviewed Child (the CJC Interview), which was
recorded and later transcribed. During the CJC Interview, Child
told the detective that Burnside had touched her genital area on
multiple occasions.
¶4 The detective also separately interviewed Burnside.
Burnside admitted during the interview to touching Child on
three separate occasions, describing them as ‚inadvertent*+‛ or
an ‚accident.‛ Specifically, the detective asked Burnside, ‚where
did you touch her?‛ Burnside responded by describing a time
when Child had her hand in her pants, and after telling her ‚that
she shouldn’t have her hands in her pants like that,‛ Burnside
‚pull*ed+ *her hand+ up.‛ Burnside explained to the detective
that his ‚hands or . . . fingers or something might have touched
something down there, but I don’t think that.‛ The detective
then asked ‚*w+hat would *your fingers+ have touched,‛ to
which Burnside responded that ‚*i+t was probably like her leg or
something down there.‛ Burnside explained that on these
1. ‚We view the facts in the light most favorable to the jury
verdict and recite them accordingly.‛ State v. Montoya, 2004 UT
5, ¶ 2, 84 P.3d 1183 (citation omitted).
20140400-CA 2 2016 UT App 224State v. Burnside
occasions he did not touch Child’s vagina, but only ‚the top of
her thighs,‛ to which the detective responded ‚*a+nd the top of
her thighs meaning between her pelvis and the top of her
thighs?‛ Burnside responded, ‚Yes.‛ In April 2011, the State
charged Burnside with three counts of aggravated sexual abuse
of a child. After multiple continuances, the case eventually went
to trial in July 2013.
¶5 During voir dire the State asked the panel of potential
jurors, ‚Are there any of you who have either been a victim or
have ever been accused or do you have a close friend or family
member, someone close to you, who has been a victim or has
been accused of sexual abuse of a child?‛ Several panel members
raised their hands. The trial court followed up by speaking with
each responding panel member in chambers in the presence of
the attorneys for both sides and the defendant. These in-
chambers proceedings were not recorded. The trial court
eventually excused six of these potential jurors for cause. After
the six were replaced from the jury pool, the State asked an
almost identical question, and three more potential jurors
answered affirmatively and were then questioned off the record
by the trial court in chambers, again with counsel for both sides
present. Following this second round of questioning, the trial
court then excused one more panel member for cause. The
excused juror was replaced and the same process was repeated a
third time, but with no further excusals.
¶6 At trial, the State called Child, who testified that Burnside
touched her vaginal area under her clothing ‚more than one
time‛ when Stepfather and Mother were out of the home. On
cross-examination, Child was asked about the CJC Interview and
whether or not certain statements she made during the CJC
Interview were ‚truthful.‛ The State also called Stepfather and
Mother to testify. Each of their testimonies focused on changes
they observed in Child’s mood before and after January 2011,
when Child disclosed the alleged abuse to Stepfather. Stepfather
testified that prior to January 2011 Child had been ‚really
20140400-CA 3 2016 UT App 224State v. Burnside
happy,‛ ‚excited to go to school,‛ ‚doing really well *with her
schoolwork+,‛ and that she had only ‚infrequent‛ incidents of
bed-wetting. He stated that after January 2011, however, her
mood changed and, among other things, Child ‚went from
*being+ a really happy rambunctious kid to kind of subdued,‛
became ‚physically violent‛ with her sibling, ‚did not want to
go to school anymore,‛ and ‚started wetting the bed every night
again.‛ Mother testified, as Stepfather had, that Child ‚was very
happy and very spunky,‛ but after her disclosure, Child began
‚having some problems with school‛ and became ‚feisty‛ and
‚really ornery‛ at home.
¶7 During cross-examination of Mother, Burnside’s trial
counsel asked a question about arguments in the home between
her and Stepfather ‚over *Stepfather’s+ use of narcotics *and+
marijuana.‛ The State objected on relevance grounds and a
bench unrecorded conference ensued. Following the bench
conference, Burnside’s counsel did not pursue the issue of
Stepfather’s drug use, but instead asked Mother a line of
questions about Stepfather’s ‚excessive drinking‛ during
December 2010 and January 2011, about how during this same
time Stepfather cut some of Child’s toys ‚in half with a
bandsaw‛ for disciplinary reasons, and inquired whether these
events ‚would have affected *Child+.‛ Mother agreed that they
could have.
¶8 The State also called a pediatric clinical psychologist (the
PTSD Expert) and a clinical neuropsychologist (the Depression
Expert). The testimony from both experts focused on Child’s
mental state after January 2011. The PTSD Expert testified that
Child’s symptoms ‚would be representative of chronic
posttraumatic stress disorder‛ and that PTSD in children is most
commonly caused by neglect or physical or sexual abuse. The
PTSD Expert was asked whether the bandsaw incident or
discord in the home could explain Child’s PTSD symptoms. The
expert responded that Stepfather’s cutting of Child’s toys
‚would be of insufficient trauma to generate the intensity and
20140400-CA 4 2016 UT App 224State v. Burnside
the length of the symptoms that [Child] . . . described,‛ and that
this incident would have been of ‚insufficient quality . . . to
generate these same symptoms across such a variety of different
times and places and persons.‛ The PTSD Expert further testified
that the verbal arguments between Mother and Stepfather did
not rise to a level that would generally cause symptoms of PTSD
in a child.2 The Depression Expert testified that Child ‚was one
of the most depressed children she had seen‛ because Child ‚felt
very depressed and hopeless about everything,‛ including her
home life, school, and friends. The Depression Expert further
testified that Child reported having ‚a lot of headaches, *and+ a
lot of stomachaches‛ and did not want to sleep alone or attend
school. When the Depression Expert asked Child ‚directly about
*the+ sex abuse allegation,‛ Child said that ‚she did not want to
ever see [Burnside] again; she was afraid of him; and that since
he had done . . . those things to her, everything had changed in
her life.‛
¶9 The State also called the nurse practitioner who initially
examined Child at the CJC and the detective who conducted the
CJC Interview. The nurse practitioner testified that, when any
child is referred to the CJC, she ‚obtain[s] a medical history from
the parents‛ before speaking with the child and ‚ask[s] [the
child] if they know why they are [at the CJC+‛ before conducting
a physical examination. The nurse practitioner testified that she
initially asked Child questions to determine if Child knew why
2. When asked about ‚fighting‛ and ‚quarreling‛ in the home,
the PTSD Expert testified that, in her experience, cases where
fighting or quarrelling in the home causes PTSD, ‚*t+he nature of
the parents’ behavior was sufficient to warrant *that+ both
parents be incarcerated. It involved shedding of blood. It
involved very personal obscenities. It occurred over a course of
many months, and the child was eventually removed from the
home due to the severity of the parents’ behaviors.‛
20140400-CA 5 2016 UT App 224State v. Burnside
she was at the CJC and then ‚proceeded . . . to talk about what a
good touch is and what a bad touch is.‛ When asked ‚if anybody
ha[d] done any bad touches *to Child+,‛ Child responded,
‚Yes, . . . [Burnside] had,‛ and then Child ‚pointed to her private
area.‛ When asked where the conduct had occurred, Child
stated that it had happened in her bedroom or her sibling’s
bedroom on multiple occasions. The nurse practitioner testified
that she physically examined Child, with Mother present, ‚from
head to toe and checked her genital area‛ and that ‚*Child’s+
examination was normal.‛ The nurse practitioner indicated,
however, that such a finding would be ‚consistent‛ with Child’s
earlier statements. The detective testified about her investigation
of Child’s allegations against Burnside. During the detective’s
direct examination, the State played the CJC Interview in its
entirety to the jury; Burnside objected only to the quality of the
recording.
¶10 Burnside’s counsel called three witnesses: Burnside’s
girlfriend at the time of Child’s disclosure, Child’s biological
father, and Burnside himself. Burnside’s former girlfriend
testified about her relationship with Burnside, as well as Mother
and Stepfather’s lack of treatment for an ongoing condition that
Child had in her genital area that resulted in what the family
called ‚spicy pee.‛ Specifically, the former girlfriend recounted
that she had a conversation with Burnside and Mother in
September 2010 about Child’s medical condition and ‚how it’s
supposed to be taken care of‛ with ‚a cream *that Mother+ was
supposed to have for *Child+.‛ She further testified that, in the
‚whole time‛ she knew Mother and Stepfather, she ‚never saw
*the cream+‛ or ‚any medication‛ for the condition in the house.
The former girlfriend also described her recollection of an
encounter where Mother and Stepfather confronted Burnside
about Child’s disclosure to Stepfather.
¶11 Child’s biological father testified about Child’s ongoing
medical condition, a urinary tract infection, and conversations he
had had with Burnside and Mother with respect to Child’s
20140400-CA 6 2016 UT App 224State v. Burnside
infection. Burnside testified about how he came to live in the
same house as Child and about the three instances where he
‚had done anything with regard to inspection of the private area
of *Child+.‛ Burnside testified that in the spring of 2010 Mother
had taken Child out of the bathtub and dried her off and then
‚asked *Burnside+ to put a diaper on her and help her get some
clothes,‛ and that it was during this time that he ‚noticed
*Child’s vaginal area+ was red.‛ He also testified that at one
point he walked by the doorway of Child’s room and noticed
that ‚her hand was in her pants, and that’s when *he+ realized
she was scratching.‛ He responded by telling Child that ‚she
should not be scratching, that it could make it worse and not to
do it,‛ and then he ‚pulled‛ her hand out of her pants.
¶12 Burnside further testified that, in January 2011, he was in
his bedroom and Child came into the room ‚to get *him+ for
breakfast.‛ He noticed that Child ‚smelled like urine‛ so he
‚pulled her pants *a+way from her body‛ (although he ‚never
even looked in her pants‛) before telling Child to leave the room
and go wash her hands. Trial counsel also asked Burnside about
his interview with the detective and how the detective
‚frequently *used+ the term ‘vaginal area’‛ during the interview.
Counsel stated: ‚Would you tell the jury what in your mind was
being addressed by the term ‘vaginal area’?‛ Burnside
responded that the term ‚vaginal area,‛ as he used it during the
interview, ‚didn’t *only+ mean the clitoris or the pee area‛ but—
as he indicated in the interview—referenced ‚the top of her
thighs.‛ He stated that, ‚*if+ there had ever been any time‛ that
he touched Child on her body in what the detective ‚referred
to . . . *as+ ‘the vaginal area’,‛ ‚then it would have been by
accident.‛
¶13 The jury convicted Burnside on all three counts of
aggravated sexual abuse of a child, and the trial court sentenced
him to concurrent prison terms of six years to life on each count.
After trial, Burnside obtained new counsel and filed a motion to
arrest judgment. The motion raised various claims of ineffective
20140400-CA 7 2016 UT App 224State v. Burnside
assistance of counsel and alleged several other errors by the trial
court that are pertinent to this appeal. First, Burnside asserted he
received ineffective assistance from his trial counsel in three
respects: counsel ‚failed to subpoena a material witness‛; ‚did
not timely request fund*s+ for trial experts‛; and ‚did not object
to inadmissible evidence.‛ Second, Burnside asserted that the
trial court erred: (1) by failing to record and preserve a record of
the in-chambers discussions during voir dire and a bench
conference; (2) by preventing trial counsel from adequately
questioning Child’s biological father about whether Child was
unhappy before Burnside lived in the home; (3) by preventing
counsel from asking Mother during cross-examination about
Stepfather’s drug abuse, which Burnside claimed to have
impaired his ability to ‚present relevant evidence that supported
his theory of the case‛; (4) by allowing the nurse practitioner’s
hearsay testimony as ‚an exception to the hearsay rule under
statements for purposes of medical diagnosis or treatment‛; and
(5) by allowing the State to play the recording of the CJC
Interview during the detective’s testimony in violation of
Burnside’s due process rights.
¶14 The trial court held an evidentiary hearing in February
2014 on the motion to arrest judgment. Burnside called only one
witness, his trial counsel. Burnside’s trial counsel testified that,
based on his experience, he ‚assumed‛ the in-chambers
discussions with jurors during voir dire would be recorded as
well as any bench conferences. He also testified that he had
inquired at trial about drug use by Child’s parents and Child’s
home life because he considered it ‚significant‛ ‚to show the
condition and the trauma that may have existed at the
time . . . would have led to trauma in the child other than the
alleged abuse.‛
¶15 Burnside also pressed his claims of trial counsel’s
ineffective assistance, specifically questioning counsel about why
he did not subpoena a particular witness and why he did not
request funding for an expert witness. Regarding the subpoena,
20140400-CA 8 2016 UT App 224State v. Burnside
Burnside’s trial counsel testified that the witness, a doctor who
had previously treated Child, was ‚no longer associated‛ with
the medical facility where Child had been treated and therefore
he felt evidentiary problems may have arisen when trying to
introduce Child’s pertinent medical records. Further, trial
counsel testified that he believed that he ‚could *still+ try to get
*the records+ in through *Mother+.‛ Additionally, he testified
there was ‚no money . . . available . . . for . . . discovery purposes
and getting experts‛ because, although Burnside’s family had
initially stated that they would make funds available for an
expert, they later—at a point close to trial—‚informed [counsel]
there would be none.‛
¶16 Following the evidentiary hearing, the trial court issued a
memorandum decision and order addressing in some detail
most of the issues Burnside now raises on appeal and denying
Burnside’s motion to arrest judgment. Burnside appeals.
ISSUES AND STANDARDS OF REVIEW
¶17 Burnside raises multiple claims, generally under the
rubric of plain error or ineffective assistance of counsel. Burnside
contends that the trial court plainly erred by sustaining two of
the State’s objections, thereby preventing him from presenting
relevant evidence; by allowing hearsay testimony from the nurse
practitioner; by permitting the CJC Interview tape to be played
to the jury; and by failing to ‚properly record the proceedings in
order for an adequate record to be preserved.‛ With respect to
Burnside’s claims about failure to record the proceedings, the
nurse practitioner’s hearsay testimony, and the playing of the
CJC Interview tape, he claims, alternatively, that his trial counsel
provided ineffective assistance either by ‚not preserving a
record‛ or by not objecting. In addition, Burnside argues that his
trial counsel performed ineffectively by failing to subpoena a
material witness, Child’s former doctor, who Burnside claims
would have given testimony ‚that would support *his+ theory of
20140400-CA 9 2016 UT App 224State v. Burnside
the case,‛ and was also ineffective by not timely requesting
funds for a trial expert.
¶18 ‚In a situation such as this, in which the trial court has
previously held an evidentiary hearing on a motion based on
ineffective assistance of counsel, such a claim presents a mixed
question of law and fact.‛ State v. Perry, 899 P.2d 1232, 1238
(Utah Ct. App. 1995) (citing Strickland v. Washington, 466 U.S.
668, 698 (1984)). ‚Accordingly, Utah’s appellate courts have
deferred to the trial court’s findings of fact, but review its
application of the appropriate legal principles to its factual
findings for correctness.‛ Id. (citing State v. Hay, 859 P.2d 1, 4–5
(Utah 1993)). Here, because Burnside has previously raised the
issues on appeal in his motion to arrest judgment, we review
them as mixed questions of fact and law—we review the district
court’s factual findings for clear error and its legal conclusions
for correctness. See also State v. Templin, 805 P.2d 182, 186 (Utah
1990).
ANALYSIS
¶19 ‚Appellate courts generally will not consider an issue
raised for the first time on appeal absent plain error, exceptional
circumstances, or ineffective assistance of counsel.‛ State v. Floyd,
2014 UT App 53, ¶ 6, 321 P.3d 1170. Because the issues Burnside
raises on appeal were not preserved during the trial itself,
Burnside invokes the plain error and ineffective assistance of
counsel exceptions to the preservation rule. ‚[T]o establish the
existence of plain error . . . , the appellant must show the
following: (i) [a]n error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant.‛ State v. Dunn, 850 P.2d
1201, 1208 (Utah 1993). And to establish his claim of ineffective
assistance of counsel, Burnside ‚must show that *his+ counsel’s
performance was deficient‛ and that ‚the deficient performance
20140400-CA 10 2016 UT App 224State v. Burnside
prejudiced the defense.‛ Strickland, 466 U.S. at 687. Because
Burnside must establish both elements in order to prevail on a
claim of ineffective assistance, ‚a failure to prove either element
defeats the claim.‛ State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d
769.
I. Claims Related to Burnside’s Theory of the Case
¶20 Burnside contends that the trial court plainly erred
because Burnside ‚was not allowed to present relevant evidence
that supported his theory of the case.‛ Specifically, he asserts
that it was ‚error for the court not to allow *him+ to introduce
other events that may have caused *Child’s+ PTSD and/or
depression‛ while ‚the State was allowed to fully develop its
theory with multiple witnesses and experts.‛ In this regard,
Burnside asserts that Child ‚was not happy‛ and was
‚neglected‛ even before the abuse allegations and that ‚*t+his
was witnessed by at least one medical doctor and her biological
father.‛ He also asserts that ‚if *Child+ was suffering from PTSD,
then it was caused by other events in the child’s life, such as the
abuse, neglect, drinking and drug use of the step-father and
neglect of the mother,‛ evidence he claims that he was prevented
from fully presenting to the jury. Burnside argues that errors by
the trial court in sustaining two of the State’s objections, together
with his counsel’s failure to ‚subpoena a necessary witness,‛ and
his failure to ‚timely request funds for an expert witness‛
essentially prevented Burnside from presenting his theory of the
case.
A. The State’s Objections
¶21 Burnside asserts that he was prevented from establishing
that any behavior and mood problems Child exhibited predated
the alleged sexual abuse. Burnside focuses on two evidentiary
rulings by the trial court that he argues were in error: (1) cutting
off his examination of Child’s biological father about whether
Child ‚suffered from a medical condition long before her contact
20140400-CA 11 2016 UT App 224State v. Burnside
with Burnside‛; and (2) preventing his cross-examination of
Mother about Stepfather’s alleged drug use. In its memorandum
decision following the motion to arrest judgment, the trial court
concluded that Burnside had an adequate opportunity to present
evidence in support of his theory. The court found that at trial
Burnside had ‚presented evidence suggesting *Child+’s PTSD
was a result of something other than sexual abuse‛ and that
Burnside had ‚demonstrated‛ that ‚there was fighting in the
home,‛ that Stepfather had used a bandsaw to cut Child’s toys,
and that Child had sustained a broken leg and was ‚suffering
from a chronic rash.‛ The court concluded that, as a result, ‚the
jury was given an opportunity to consider Mr. Burnside’s
theory‛ that Child’s change in mood and behavior had been the
result of turmoil in the home and her health issues rather than
sexual abuse, ‚but ultimately chose to reject it in comparison to
other evidence, namely Mr. Burnside’s own admissions.‛ On
appeal, Burnside does not engage with the trial court’s
reasoning, often failing to even acknowledge that the trial court
considered his arguments and made detailed rulings. We agree
with the trial court that Burnside has not shown that the court’s
evidentiary rulings wrongfully impeded his opportunity to
present his defense.
1. Direct Examination of Biological Father
¶22 During Burnside’s direct examination of Child’s
biological father, trial counsel asked, ‚how did you learn about
*Child’s+ medical condition,‛ to which the witness responded
that he had ‚known about *it+ . . . for quite some time.‛ Trial
counsel asked, ‚*s+tarting when,‛ and the witness responded:
When she was, I want to say, six months to a year
old, me and my wife at the time were documenting
when she would come over for weekends—she
would constantly come over with diarrhea, severe
diaper rash to the point that we couldn’t change
20140400-CA 12 2016 UT App 224State v. Burnside
her without hurting her. We couldn’t bathe her
without her crying.
The State objected, stating that ‚what happened when she was
six months to a year old‛ is not ‚relevant to why we’re here
today.‛ The district court responded, ‚*t+hat very well may be,‛
but then directed the witness to ‚*j+ust respond to the question‛
and not continue ‚with additional narrative.‛ Child’s biological
father responded to the original question and testified that he
‚discovered *Child’s medical condition+ when she was very
young.‛ Trial counsel then went on to briefly establish, without
interruption from the State or the court, that the biological father
was aware the medical condition persisted during the years
when he was later serving in the military.
¶23 Burnside seems to argue that the court’s instruction to the
witness to ‚*j+ust respond to the question‛ is equivalent to the
court having sustained the State’s objection and therefore,
according to Burnside, ‚the trial court did not allow this line of
questioning.‛ Burnside then argues that ‚*t+his evidence is
relevant because it rebutted the testimony of [Mother] and
[Stepfather] that [Child] was happy and had a pleasant
childhood. It showed that [Child] was suffering from a medical
condition long before Burnside lived in the house. Further, it
showed that *Child+ was unhappy for years.‛ But in response to
the State’s relevance objection, the trial court did not rule that
the evidence was irrelevant or place any restrictions on trial
counsel’s questions. Rather, the court merely told the witness to
avoid giving narrative testimony—to respond to trial counsel’s
specific question but not volunteer additional information. Thus,
there was nothing in the court’s response that prevented trial
counsel from continuing that line of inquiry had he believed it
was important. But counsel apparently did not think it
important to focus further on Child’s condition in early
childhood, and instead moved on to questions about the
biological father’s visits with Child as she grew older and his
observations of her ongoing medical condition at a time closer to
20140400-CA 13 2016 UT App 224State v. Burnside
the events in question. As a consequence, Burnside has failed to
identify any error by the court, much less an obvious one. See
Dunn, 850 P.2d at 1208 (noting that the showing of plain error
requires that ‚*a+n error exists‛ and that ‚the error should have
been obvious to the trial court‛).
¶24 Moreover, the record reveals that the jury heard
substantial evidence from other witnesses that Child had
suffered from a painful rash when she was very young and that
the rash had continued to trouble her both before and after the
alleged sexual abuse. For example, the biological father’s
testimony both before and after the court’s comment to ‚*j+ust
respond to the question‛ established that Child had a painful
rash beginning at a very young age, and Mother had already
testified that Child began complaining of pain caused by the
rash ‚around two,‛ which caused Mother to seek help from ‚a
specialist.‛ Stepfather had also testified that when Child was
‚*p+robably five,‛ he and Mother had taken Child to ‚several
specialists,‛ one who prescribed an ointment, but that Child still
would ‚whine a lot if she had to urinate‛ because it ‚stung when
she urinated.‛
¶25 Thus, Burnside has not persuaded us that the trial court
erred in its response to the State’s objection or, even if it did, that
Burnside’s presentation of his case was prejudiced. See State v.
Norton, 2003 UT App 88, ¶ 24, 67 P.3d 1050 (concluding that it
was not an abuse of discretion when the trial court did not allow
the defendant to provide ‚further testimony,‛ which the court
determined was among other things, ‚cumulative‛).
2. Cross-Examination of Mother
¶26 During cross-examination, trial counsel asked Mother
whether she and Stepfather had ‚arguments . . . over
*Stepfather+’s use of narcotics, [and] marijuana.‛ The State
objected on relevance grounds, and the court called both counsel
to the bench. The recording of the bench conference was cut
20140400-CA 14 2016 UT App 224State v. Burnside
short after trial counsel’s statement that ‚*t+he relevance is I’m
going to introduce into evidence . . . .‛ The court apparently
sustained the objection, however, because following the bench
conference, trial counsel did not pursue questions about
Stepfather’s drug use. Counsel instead asked questions
regarding ‚significant arguments‛ between Mother and
Stepfather that Mother conceded had occurred, and Mother
ultimately agreed that these arguments ‚would have affected‛
Child.
¶27 Burnside argues that the trial court should have allowed
trial counsel to question Mother about Stepfather’s drug use.
Burnside asserts that ‚the adverse effects of *Child’s+ step-
father’s drug use, criminal arrest and the stress these activities
were causing in the home‛ were part of the environment of
‚abuse and neglect *by+ her step-father and mother,‛ rather than
sexual abuse, that could have caused any ‚change in *Child’s+
behavior.‛ But he provides no more than conclusory statements
about drug use on Stepfather’s part without identifying any
basis in fact for those allegations. Cf. State v. Emmett, 839 P.2d
781, 786–87 (Utah 1992) (‚Generally, it is error to ask an accused
a question that implies the existence of a prejudicial fact unless
the prosecution can prove the existence of the fact. Otherwise,
the only limit on such a line of questioning would be the
prosecutor’s imagination.‛ (footnote omitted)). Nor is there any
indication that during the bench conference trial counsel
proffered that he would establish an appropriate factual
foundation for such questions. And without factual support for
this claim, we can do no more than speculate that, had the trial
court allowed questioning regarding Stepfather’s alleged drug
abuse, that ‚there [would be] a reasonable likelihood of a more
favorable outcome.‛ State v. Dunn, 850 P.2d 1201, 1208 (Utah
1993); see generally State v. Kirkwood, 2002 UT App 128, 47 P.3d
111 (explaining that speculative assignments of error
unsupported by the record do not constitute grounds for
reversal).
20140400-CA 15 2016 UT App 224State v. Burnside
¶28 Indeed, even if Burnside had established that Stepfather
and Mother argued about Stepfather’s alleged drug use, we are
not persuaded that the outcome would have changed. As we
have discussed, Burnside presented substantial evidence
supporting his position that Child’s PTSD was a result of
something other than sexual abuse. Specifically, trial counsel
elicited testimony that there were arguments in the home
between Mother and Stepfather that Mother agreed would have
affected Child, that Stepfather cut some of Child’s toys in half
with a bandsaw to discipline her, that Child had broken her leg,
and that she was suffering from a chronic rash that long
predated Burnside’s arrival in the house. He has not persuaded
us that further specifying the cause of some of the marital
discord in the house as related to Stepfather’s drug use would
have changed the outcome.
¶29 Accordingly, we conclude that Burnside has not
demonstrated that the trial court erred when it sustained the
State’s objection to Mother’s question.
B. The Former Doctor’s Testimony
¶30 Burnside argues on appeal that his trial counsel was
ineffective for failing to subpoena Child’s former doctor to
testify about Child’s preexisting medical condition in order to
counter the State’s claim that Child’s PTSD stemmed from sexual
abuse. Burnside alleges that this former doctor could have
testified about a medical appointment with Child during which
she was so upset by the effects of her rash that he could not
complete his examination. According to Burnside, the testimony
of Child’s former doctor was necessary to show that Child ‚had
been a very unhappy child long before Burnside was in her life.‛
But Burnside has provided no more than conclusory statements
about what the doctor would have said at trial had he been
called. Although the trial court held an evidentiary hearing on
Burnside’s motion to arrest judgment, Burnside presented no
evidence even identifying the doctor, much less showing what
20140400-CA 16 2016 UT App 224State v. Burnside
the doctor’s testimony would have been if called. Nor has he
sought a remand under appellate rule 23B to develop an
appropriate record.3
¶31 Instead, Burnside cites State v. Templin, 805 P.2d 182 (Utah
1990), for the proposition that trial counsel’s performance was
deficient under Strickland ‚because *he+ did not make a
reasonable investigation into the possibility of procuring [a]
prospective defense witness*+.‛ We have previously discussed
Templin in the context of whether an attorney’s failure to
investigate potential witnesses prejudiced a defendant. In State v.
Curtis, 2013 UT App 287, 317 P.3d 968, we stated:
In Templin, the Utah Supreme Court reversed a
rape conviction because defense counsel failed to
interview a witness ‚who would have testified that
she saw defendant and the victim kissing
passionately for over fifteen minutes . . . at the
address of and within an hour of the rape reported
by the victim.‛ This testimony, the court noted,
would have contradicted the victim’s testimony,
which was ‚the only direct evidence of *the
defendant’s+ guilt.‛ But the court also mentioned in
a footnote that failing to interview and call another
witness was not ineffective assistance because even
though the defendant ‚provided . . . an affidavit
stating that [the witness] was never contacted by
trial counsel,‛ he did not provide ‚any evidence
concerning what [the witness] would have testified
3. Rule 23B permits entry of additional findings of fact under
certain circumstances: ‚A party to an appeal in a criminal case
may move the court to remand the case to the trial court for
entry of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.‛
Utah R. App. P. 23B(a).
20140400-CA 17 2016 UT App 224State v. Burnside
to . . . *at+ trial.‛ ‚Therefore,‛ the court held, the
defendant could not show ‚a reasonable
probability that the result of his trial would have
been different‛ had the witness testified.
Id. ¶ 40 (alterations and omissions in original) (citations
omitted). Like Templin, Curtis asserted that his attorney ‚was
aware of other potential witnesses,‛ but that he ‚failed to
investigate and interview *them+.‛ Id. ¶ 41 (citation and internal
quotation marks omitted). But, like Templin, Curtis gave ‚no
description‛ regarding what one of the witnesses ‚would have
testified to at trial,‛ and his description of the potential
testimony of the other witness was limited to ‚a single line‛
from an affidavit. Id. ¶ 42. In denying Curtis’s request for
remand under rule 23B of the Utah Rules of Appellate
Procedure, we stated that ‚*e+ven were we to assume that trial
counsel failed to interview both witnesses, Curtis has not shown
that he was prejudiced.‛ Id. ¶ 42. We concluded that,
Without nonspeculative evidence establishing
what each witness could have testified to at trial,
Curtis has not shown that any deficient
performance by trial counsel in failing to interview
them was ‚so serious‛ that it ‚deprive*d+ *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[.]‛
Id. ¶ 42 (alterations in original) (quoting State v. Lenkart, 2011 UT
27, ¶ 38, 262 P.3d 1).
¶32 Burnside’s claim suffers from the same deficiencies. Even
if trial counsel acted unreasonably in failing to ensure the doctor
was available to testify at trial, by failing to identify the doctor
and present nonspeculative evidence—more than a simple
proffer—of what he would have testified to if called, Burnside
20140400-CA 18 2016 UT App 224State v. Burnside
has failed to demonstrate that trial counsel’s deficiencies were
‚so serious that *he was+ deprive*d+ . . . of a fair trial.‛ See id.(second alteration in original) (citation and internal quotation
marks omitted); State v. Hales, 2007 UT 14, ¶ 51, 152 P.3d 321 (‚If
a defendant claims prejudice because a certain document or a
previously available witness is now missing or unavailable, the
defendant must provide the ‘expected content’ of the document
or the witness’s testimony and indicate how that document or
witness would have aided the defense.‛). The importance of the
requirement for more than just conclusory statements about a
witness’s likely testimony is underscored in this case because, as
the court noted, ‚Mr. Burnside’s trial counsel confirmed during
oral argument he had explored *the+ theory during trial.‛
Indeed, as we have discussed in more detail above, considerable
evidence about Child’s medical condition was presented at trial.
As the district court found, other witnesses testified that Child
was suffering from a recurring rash and there was additional
evidence to support Burnside’s theory that her PTSD could have
been caused by factors unrelated to sexual abuse, including
serious discord in the home, disturbing parental discipline, and
Child’s chronic rash.
¶33 Without providing concrete information identifying
Child’s former doctor and his potential testimony, Burnside
cannot persuade us that the trial court was wrong in its
conclusion that the doctor’s purported testimony about a single
incident regarding Child’s rash ‚would merely be cumulative
and reaffirm what the jury already knew.‛ In other words, by
failing to demonstrate that ‚the evidentiary picture and the
inferences drawn therefrom would not have been significantly
different‛ if trial counsel had called this unidentified doctor and
if the doctor would have testified as Burnside now asserts that
he would have, Burnside has failed to demonstrate that any
error of counsel prejudiced him. See State v. Idrees, 2014 UT App
76, ¶ 16, 324 P.3d 651 (internal quotation marks omitted)); see also
Strickland v. Washington, 466 U.S. 668, 694 (1984) (explaining that
20140400-CA 19 2016 UT App 224State v. Burnside
in order to demonstrate that counsel’s error prejudiced the
defendant, ‚*t+he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different‛).
C. Expert Witness Funding
¶34 Burnside also contends that his trial counsel was
ineffective for not timely requesting funding for an expert
witness to counter the State’s PTSD Expert. On appeal,
Burnside’s entire argument on this issue is as follows:
Burnside’s attorney knew that an expert was
necessary to assist him in preparing for a complete
and adequate defense. However, he did not make
timely preparation to hire an expert to get funds
from the county to pay for such expert services.
The State of Utah gave Burnside notice that
it intended to call several witnesses. Burnside’s
attorney knew that a necessary part of the defense
would be to call his own expert that could testify
consistent with Burnside’s theory of the case. On or
about July 11, 2013, Burnside’s attorney filed a
Motion for Funds for Experts and Private
Investigator. The motion was denied because it
was not timely. Consequently, Burnside had no
witness to rebut the State’s expert witnesses,
especially [the PTSD Expert].
(Citations omitted.)
¶35 The briefing on this issue is inadequate because it does
not ‚contain the contentions and reasons of the appellant with
respect to the issues presented . . . with citations to the
authorities, statutes, and parts of the record relied on.‛ Utah R.
App. P. 24(a)(9). These conclusory statements are insufficient to
establish that trial counsel failed to meet the standards for
20140400-CA 20 2016 UT App 224State v. Burnside
reasonable representation or, if he did, how he prejudiced
Burnside. See Allen v. Friel, 2008 UT 56, ¶ 24, 194 P.3d 903(concluding that defendant inadequately briefed his claim of
ineffective assistance because, among other things, defendant
‚did not offer any analysis of whether these actions *by counsel+
were objectively deficient or describe how they prejudiced his
defense if they were‛); see also State v. Singh, 2011 UT App 396,
¶ 4, 267 P.3d 281 (declining to address defendant’s inadequately
briefed arguments because defendant ‚fail*ed+ to provide
supporting record citations, . . . ma[de] conclusory statements
about the elements of his ineffective assistance of counsel claims,
and fail[ed] to develop the legal authority that support[ed] his
arguments‛ (footnotes and citation omitted)). Indeed, with
regard to Strickland’s prejudice prong, Burnside fails to
acknowledge—much less analyze and refute—the trial court’s
decision that he had failed to demonstrate prejudice from any
claimed deficiency in trial counsel’s performance.
¶36 At the evidentiary hearing, the court heard testimony
from Burnside’s trial attorney. Trial counsel testified that he had
spoken with two experts about Burnside’s case, but ultimately
the funding, which had previously been assured by Burnside’s
family, was not made available. Trial counsel testified he
therefore filed a motion asking the trial court to make funding
available for an expert witness, which the trial court denied as
being untimely. In its ruling on Burnside’s motion to arrest
judgment, the trial court found that,
Mr. Burnside fail[ed] to show how [his trial
counsel’s+ failure to request funding for trial
experts fell below [Strickland’s+ objective standard.
The only witness called during the evidentiary
hearing was *Burnside’s trial counsel+. In order to
sufficiently support his ineffective assistance of
counsel claim, Mr. Burnside would need to call an
additional witness, or present some other
satisfactory evidence, demonstrating that expert
20140400-CA 21 2016 UT App 224State v. Burnside
testimony would be essential to his defense.
Without that evidence for comparison, the Court
cannot evaluate the likelihood the trial proceeding
would have been any different. The Court cannot
simply take Mr. Burnside’s word alone.
¶37 The trial court concluded that ‚*e+ven if the Court were to
determine the alleged errors fell below Strickland’s objective
standard, Mr. Burnside has failed to demonstrate how those
errors would have changed the result of the proceeding,
especially in light of Mr. Burnside’s own admission to touching
*Child+ in her vaginal area.‛
¶38 We agree with the trial court. Neither in the trial court nor
on appeal4 has Burnside identified any expert that his trial
counsel should have called or established what such an expert’s
testimony would have been. As a consequence, even if we
assume that trial counsel’s failure to timely move the court for
expert witness funding was unreasonable, Burnside has not
shown prejudice. He has not identified an expert or shown what
that expert would have testified to that would have been
reasonably likely to make a difference in the outcome, nor has he
shown how a particular expert’s advice to counsel would have
resulted in more effective cross-examination of the State’s expert
witnesses. Accordingly, Burnside’s claims of ineffective
representation are speculative, and ‚proof of ineffective
assistance of counsel cannot be a speculative matter but must be
a demonstrable reality.‛ Fernandez v. Cook, 870 P.2d 870, 877
(Utah 1993); see also State v. Millard, 2010 UT App 355, ¶ 31, 246
P.3d 151 (‚Neither speculative claims nor counsel’s failure to
make futile objections establish ineffective assistance of counsel.‛
4. As we have noted, Burnside did not file a motion for remand
to the trial court ‚for entry of findings of fact, necessary for the
appellate court’s determination of a claim of ineffective
assistance of counsel.‛ Utah R. App. P. 23B(a).
20140400-CA 22 2016 UT App 224State v. Burnside
(citation and internal quotation marks omitted)). ‚Without
nonspeculative evidence establishing what each witness could
have testified to at trial, [Burnside] has not shown that any
deficient performance by trial counsel in failing to [obtain
funding for a trial expert] was so serious that it deprived[d]
[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.‛ State v. Curtis, 2013 UT
App 287, ¶ 42, 317 P.3d 968 (third and fourth alterations in
original) (citation and internal quotation marks omitted).
II. Burnside’s Remaining Claims
¶39 Burnside raises three other issues, claiming all three were
plain error by the trial court. He claims two issues amounted to
ineffective assistance of counsel as well. He contends that the
court should have stricken the ‚entire testimony‛ of the nurse
practitioner as ‚inadmissible hearsay‛ and that trial counsel
should have objected to her testimony; that the court should not
have allowed the State to play Child’s CJC Interview during the
detective’s testimony because Child was thereby ‚allowed to
testify twice during the trial‛; and that ‚*t+he court did not
properly record the proceedings in order for an adequate record
to be preserved,‛ an error abetted by trial counsel’s own failure
to ensure that a proper record was made.
A. The Nurse Practitioner’s Testimony
¶40 Burnside contends that it was plain error for the trial
court to allow the nurse practitioner’s testimony to be presented
to the jury because it was inadmissible hearsay. He also argues
that his counsel was ineffective for failing to object to her
testimony. Burnside asserts on appeal, just as he did in his
motion to arrest judgment, that the nurse practitioner was
‚acting as a de facto law enforcement officer and not a medical
health professional‛ and therefore her testimony did not qualify
20140400-CA 23 2016 UT App 224State v. Burnside
for admission under the hearsay exception for a statement made
for purposes of medical diagnosis or treatment.
¶41 In its memorandum decision, the district court ruled that
it was not plain error to allow the nurse practitioner to testify
because her testimony ‚was admissible as an exception to the
hearsay rule because the statements were pertinent to medical
diagnosis or treatment.‛5 Utah R. Evid. 803(4). In support of this
conclusion, the court found that the nurse practitioner ‚testified
that as part of her employment she conducts medical evaluations
on children‛ to ensure their health, safety, and well-being; that
she was seeing Child due to a report of a ‚bruise inside her
genital area‛; that ‚a head-to-toe physical examination‛ was
completed to ‚determine if *Child+ had suffered injuries‛; and
that the questions asked by the nurse practitioner were to
‚determin*e+ whether *Child+ displayed symptoms of having
been sexually abuse[d] and to determine if she required medical
treatment.‛ Additionally the court ‚decline*d+ to consider Mr.
Burnside’s plain error argument because it appear*ed+ he
actively waived any objection as a matter of trial strategy.‛ The
court stated in its ruling:
During cross-examination, [the nurse practitioner]
was asked whether or not she had inquired if
anyone had ‚suggested bad or good touch
terminology‛ to *Child+ prior to the examination.
5. A statement made for medical diagnosis or treatment falls
within an exception to the hearsay rule if the statement ‚(A) is
made for—and reasonably pertinent to—medical diagnosis or
treatment; and (B) describes medical history; past or present
symptoms or sensations; their inception; or their general cause.‛
Utah R. Evid. 803(4). Additionally, ‚a statement by a child to a
parent for purposes of obtaining medical assistance would
probably qualify as well.‛ R. Collin Mangrum & Dee Benson,
Mangrum & Benson on Utah Evidence 806 (2014).
20140400-CA 24 2016 UT App 224State v. Burnside
[The nurse practitioner] testified that others had
indeed talked to [Child] about good and bad touch.
Mr. Burnside appears to have elicited the
information in order to support an overarching
defense theory that *Child’s+ statements may have
been improperly influenced by outside sources.
Thus, the Court was not called upon to make a
determination as to admissibility because Mr.
Burnside decided to use the information in support
of his defense.
(Citation omitted.)
¶42 On appeal, Burnside again argues that ‚it was plain error
to admit *the nurse practitioner’s+ testimony‛ and that his
counsel acted deficiently in not objecting to it. But an attorney’s
decision to forgo an objection as a matter of trial strategy cuts
strongly against a finding of either plain error or ineffective
assistance of counsel. See State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d
162 (concluding that trial counsel’s failure to object to testimony
was not ineffective assistance because it could have been part of
a reasonable strategy); State v. Morgan, 813 P.2d 1207, 1211 (Utah
Ct. App. 1991) (refusing to consider the merits of appellant’s
plain error argument because ‚it was within counsel’s
professional discretion to not object to testimony that would aid
*trial+ strategy‛). Burnside has failed to address (or even
acknowledge) the trial court’s decision on this issue. See Allen v.
Friel, 2008 UT 56, ¶ 4, 194 P.3d 903 (recognizing that the
appellant has the obligation to challenge the basis of the trial
court’s decision and the burden to show error in that decision).
¶43 Nor has Burnside attempted to show that the court’s
factual findings in support of its decision were clearly erroneous.
See R.B. v. L.B., 2014 UT App 270, ¶ 26, 339 P.3d 137 (‚An
appellant challenging a finding of fact bears the heavy burden of
demonstrating that the finding is clearly erroneous and must do
so by showing that the finding is without adequate evidentiary
support or was induced by an erroneous view of the law.‛). In
20140400-CA 25 2016 UT App 224State v. Burnside
particular, he has not challenged the court’s factual findings that
support a conclusion that in examining Child, the nurse
practitioner was acting as a health-care professional and that
Child’s statements to her fell within the medical treatment
hearsay exception. Nor has he challenged the trial court’s
finding that his trial counsel had a strategic basis for not
objecting to the nurse practitioner’s testimony. As a
consequence, we are not persuaded either that the trial court
committed plain error or that trial counsel acted contrary to
reasonable professional standards in allowing nurse practitioner
to testify as she did. See Morgan, 813 P.2d at 1211.
B. The CJC Interview
¶44 Burnside next contends that the trial court plainly erred
by permitting the State to play the CJC Interview for the jury
during the detective’s testimony, when Child had already
testified. Burnside asserts that ‚once the victim testified, the
State of Utah [could not] use the video as a sword and have the
ability to testify twice.‛ Burnside notes that ‚*r+ules of evidence
prohibit the admissibility of repetitive and cumulative evidence‛
and argues that permitting the CJC Interview to be played after
Child had already testified ‚place*d+ an undue emphasis‛ on her
‚testimony over other witnesses.‛ (Citing Utah R. Evid. 611(a).)
¶45 At the end of the first day of trial and after the jury was
excused, the trial court asked each side to state how long they
expected the presentation of any additional witnesses to take. It
was at this point that the State responded, ‚I guess the final
witness is going to be the detective, and the longest part of her
testimony is going to be playing the approximately hour-long
tape of *Burnside’s+ interview and possibly playing an 18-minute
clip of [the CJC Interview]. That’s our case.‛ Burnside’s trial
counsel responded, ‚We can still stipulate to that *CJC
Interview+ testimony.‛ To which the State replied, ‚Yeah, I think
we’re going to move to admit the CJC tape.‛
20140400-CA 26 2016 UT App 224State v. Burnside
¶46 In its decision on the motion to arrest judgment, the trial
court concluded that it ‚need not determine whether or not the
admission of the video in addition to *Child’s+ live testimony
was plain error because Mr. Burnside stipulated to its use at
trial.‛ The court went on to explain that it ‚will not entertain a
plain error argument when Mr. Burnside stipulated to the very
error he claims denied him of due process.‛ Further, the court
found that the stipulation was ‚a strategic choice,‛ because
prior to the video even being shown to the jury,
Mr. Burnside’s trial counsel cross-examined [Child]
and tried to elicit inconsistencies by referencing the
video interview. Mr. Burnside cannot now reverse
his position after a verdict has been rendered
against him and argue it was plain error for the
Court to allow the video.
We agree with the trial court.
¶47 First, trial counsel invited any error by stipulating to
admission of the CJC Interview. Accordingly, plain error review
is not available to Burnside for this claim. See State v. Winfield,
2006 UT 4, ¶ 14, 128 P.3d 1171 (‚*U+nder the doctrine of invited
error, we have declined to engage in even plain error review
when ‘counsel, either by statement or act, affirmatively
represented to the [trial] court that he or she had no objection to
the *proceedings+.’‛ (second and third alterations in original)
(quoting State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111)).
¶48 And even if Burnside were entitled to plain error review,
he has failed to prove that any error that might have occurred
was obvious. See State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (‚To
prevail under plain error review, a defendant must demonstrate
that [1] an error exists; [2] the error should have been obvious to
the trial court; and *3+ the error is harmful . . . .‛ (alterations in
original) (citation and internal quotation marks omitted)). As we
have noted, the trial court found that counsel had used the video
20140400-CA 27 2016 UT App 224State v. Burnside
to demonstrate inconsistencies between Child’s testimony and
her prior statements at the CJC: ‚*P+rior to the video even being
shown to the jury, Mr. Burnside’s trial counsel cross-examined
[Child] and tried to elicit inconsistencies by referencing the
video interview.‛ The court therefore found that counsel’s
failure to object was not simply an inadvertent omission, but ‚a
strategic choice,‛ a finding that Burnside has not challenged on
appeal. It is not obvious error for a court to decline to intervene
where there is a plausible strategic basis for counsel’s decision to
refrain from objecting to given evidence. See State v. Bedell, 2014
UT 1, ¶ 26, 322 P.3d 697 (‚A district 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.‛ (alteration in original) (citation and internal
quotation marks omitted)); State v. Hall, 946 P.2d 712, 716 (Utah
Ct. App. 1997) (‚We . . . will decline to consider a defendant’s
plain-error arguments if the alleged errors reasonably resulted
from defense counsel’s conscious decision to refrain from
objecting, or if defense counsel led the trial court into error.‛
(citation and internal quotation marks omitted)); see also State v.
Brown, 948 P.2d 337, 343 (Utah 1997) (‚If trial counsel
intentionally fails to object, the trial judge is put in the untenable
position of deciding whether to intervene and potentially
interfere with trial counsel’s strategy or face review for plain
error.‛).
¶49 Accordingly, we conclude that Burnside has not
demonstrated that the trial court plainly erred in permitting the
State to play the CJC Interview for the jury during the
examination of the detective.6
6. Burnside asserts in the Statement of Issues section of his
opening brief that his trial counsel’s failure to object to the
playing of the CJC Interview constituted ineffective assistance of
(continued<)
20140400-CA 28 2016 UT App 224State v. Burnside
C. The Inadequate Record
¶50 Burnside finally contends that the trial court erred when it
‚did not properly record the proceedings in order for an
adequate record to be preserved‛ of the in-chambers voir dire of
individual jurors and of a bench conference following the State’s
objection to trial counsel’s question to Mother about Stepfather’s
alleged drug use. As these issues were not preserved by
objection during the trial itself, Burnside asks us to consider his
claims under the plain error and ineffective-assistance-of-counsel
exceptions to the preservation rule. See State v. Floyd, 2014 UT
App 53, ¶ 6, 321 P.3d 1170 (‚Appellate courts generally will not
consider an issue raised for the first time on appeal absent plain
error, exceptional circumstances, or ineffective assistance of
counsel.‛).
¶51 There can be no question that the trial court erred in this
respect. The responsibility of a trial court in what is expressly
designated a court of record to ensure that proceedings are
(2008 UT 56, ¶ 9, 194 P.3d 903 (‚An appellate court is not a
depository in which [a party] may dump the burden of
argument and research.‛ (alteration in original) (citation and
internal quotation marks omitted)); see also Utah R. App. P.
24(a)(9). But even if we were to address it, our discussion of the
trial court’s determination that trial counsel had a strategic basis
for admitting the CJC Interview applies equally to any claim that
counsel was ineffective for failing to object. See State v. Tennyson,
850 P.2d 461, 468 (Utah Ct. App. 1993) (recognizing that
‚authority from this court supports the notion that an ineffective
assistance claim succeeds only when no conceivable legitimate
tactic or strategy can be surmised from counsel’s actions‛).
20140400-CA 29 2016 UT App 224State v. Burnside
properly recorded is a point we made in the first year of this
court’s existence. Briggs v. Holcomb, 740 P.2d 281, 282–83 (Utah
Ct. App. 1987). Since then, we have repeated time and again that
all district court proceedings must be recorded, a precept that
applies to conferences in chambers and at the bench, not just to
more formal proceedings in open court. State v. Suarez, 793 P.2d
934, 936 n.3 (Utah Ct. App. 1990); see also Birch v. Birch, 771 P.2d
1114, 1116 (Utah Ct. App. 1989) (‚As we have previously held, a
record should be made of all proceedings of courts of record.‛).
In addition, though maintaining a record is primarily the
obligation of the court, arguably trial counsel also has some
responsibility to ensure that court proceedings are properly
recorded to facilitate an effective appeal. Cf. State v. Litherland,
2000 UT 76, ¶ 16, 12 P.3d 92 (‚*W+here, on direct appeal,
defendant raises a claim that trial counsel was ineffective . . . ,
defendant bears the burden of assuring the record is adequate.‛)
Thus, the failure to ensure a complete record of proceedings
meets the standard for obvious error by the trial court and could
amount to deficient performance by counsel, as well.
Nevertheless we conclude that Burnside has not met his burden
on appeal to show prejudice. See State v. Garcia, 2016 UT App 59,
¶ 29, 370 P.3d 970 (‚Because both deficient performance and
prejudice are requisite elements of a claim of ineffective
assistance of counsel, failure to prove either element necessarily
defeats the claim.‛).
¶52 During voir dire, the State asked all potential jurors: ‚Are
there any of you who have either been a victim or[,] have ever
been accused[,] or do you have a close friend or family
member[s], someone close to you, who has been a victim or has
been accused of sexual abuse of a child?‛ After a show of hands,
the court stated, ‚I think under the circumstances because it is
such a sensitive question in a person’s background, I would
invite each one of you to come in with the attorneys present in
chambers, and we’ll ask you a few questions and then follow
through with that.‛ Venire members who had raised their hands
20140400-CA 30 2016 UT App 224State v. Burnside
were then called into chambers to be questioned individually.
Apparently by inadvertence, no record was made of this part of
the voir dire. Similarly, the State’s objection to trial counsel’s
question to Mother regarding Stepfather’s drug use led to a
bench conference that was not recorded.
¶53 Burnside asserts that because of these missing portions in
the record he is prejudiced in two ways. With regard to the jury
voir dire, Burnside argues that ‚his due process rights have been
violated because an adequate record was not preserved.‛
Specifically, he contends that, because the district court ‚did not
properly record the proceedings,‛ ‚an adequate record was not
preserved in order for him to know which potential jurors were
objected to and whether potential problem jurors ended up on
the jury panel.‛ And regarding the bench conference, Burnside
claims that the lack of a record prejudiced ‚his ability to raise
that issue on appeal.‛ He notes that, although ‚*o+ne can
conclude that the ruling was against [him] because there were no
additional questions asked regarding drug use and *Stepfather+’s
criminal activity,‛ the incomplete record ‚does not reflect what
evidence [trial counsel] wished to introduce.‛
¶54 Burnside is correct that ‚*d+ue process requires that there
be a record adequate to review specific claims of error already
raised.‛ State v. Prawitt, 2011 UT App 261, ¶ 8, 262 P.3d 1203(citation and internal quotation marks omitted). ‚However, the
ultimate burden is on a defendant to make certain that the
record he compiles will adequately preserve his arguments for
review.‛ Id. (citation and internal quotation marks omitted); see
id. (‚One who fails to make a necessary objection or who fails to
ensure that it is on the record is deemed to have waived the issue.‛
(internal quotation marks omitted)). But even a claim of
constitutional error requires that a defendant demonstrate non-
speculative prejudice in order to be entitled to relief. See State v.
Hards, 2015 UT App 42, ¶ 19, 345 P.3d 769 (‚Proof of ineffective
assistance of counsel must be ‘a demonstrable reality and not a
speculative matter.’‛ (quoting State v. Chacon, 962 P.2d 48, 50
20140400-CA 31 2016 UT App 224State v. Burnside
(Utah 1998)). And in the absence of ‚an adequate record on
appeal, we presume the regularity of the proceedings below.‛
State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278. Indeed, ‚*w+hen
crucial matters are not included in the record, the missing
portions are presumed to support the action of the trial court.‛
Id. (citation and internal quotation marks omitted). And a similar
rule applies to the actions of counsel: ‚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.‛ Litherland, 2000 UT 76, ¶ 17.
¶55 Burnside acknowledges that the absence of a record poses
a hurdle for his claims on appeal. He concedes that because he
does not have a record of the in-chambers voir dire he is unable
to know whether he had a fair and impartial jury and that the
incomplete record ‚does not reflect what evidence *trial counsel+
wished to introduce‛ about Stepfather’s purported drug use.7
But the burden is on the appellant to provide an adequate
record, see State v. Davis, 2013 UT App 228, ¶ 92, 311 P.3d 538,
and given the presumptions that apply in the absence of a
complete record, Burnside simply cannot show that he was
harmed by any error of court or counsel in the jury selection or
by the court’s sustaining the State’s evidentiary objection.
¶56 And though on its face this may appear to create a Catch-
22 for an appellant, the law does not leave a defendant helpless
in a situation like this. For instance, rule 11 of the Utah Rules of
Appellate procedure provides for supplementation of an
inadequate record. See Utah R. App. P. 11(g) (allowing ‚the
7. We have dealt with Burnside’s arguments regarding the
sustaining of the State’s objection to his counsel’s question to
Mother regarding arguments about Stepfather’s purported drug
use in more detail above. We address the issue again here
because Burnside raises it separately in connection with his
claims relating to the failure to preserve a record.
20140400-CA 32 2016 UT App 224State v. Burnside
appellant [to] prepare a statement of the . . . proceedings from
the best available means, including recollection‛ if a transcript is
unavailable). And rule 23B allows a party to move for remand to
the trial court for findings ‚necessary for the . . . determination
of a claim of ineffective assistance of counsel,‛ which could
allow, for example, the collection of evidence from those present
during the unrecorded proceedings to fill in the missing portions
of the record with testimony about what occurred. See id. R.
23B(a). But the defendant ‚bears the primary obligation and
burden of moving for a temporary remand.‛ Litherland, 2000 UT
76, ¶ 16.
¶57 Here, Burnside did not move for a remand under either
rule in order to fill the gaps in the record. And when he did have
the opportunity to do just that at the evidentiary hearing
following his motion to arrest judgment, the result did not
support his position on appeal. During that hearing, Burnside
called only one witness, his former trial counsel. Counsel
testified that he understood the importance of a fair and
impartial jury and that he made his best efforts to select a jury
that met those criteria. In fact, counsel testified that during the
in-chambers proceeding, he and the prosecutor agreed that
certain venire members would be stricken for cause. And when
asked if he would have objected to any potential jurors he felt
could not fairly hear the case, he responded, ‚Oh, yeah.
Certainly.‛ With regard to the bench conference, he stated that
although the State’s objection to questioning about Stepfather’s
drug use had been sustained, he was able to introduce other
evidence to support his argument that Child’s PTSD could be
accounted for by aspects of her life other than sexual abuse.
¶58 In its written decision, the trial court concluded with
respect to the in-chambers voir dire, that Burnside ‚ha*d+ failed
to demonstrate that he was unfairly prejudiced,‛ and although
‚the Court [was] unable to identify any specific objections that
were made in chambers, the record that was [preserved] clearly
demonstrate[d] Mr. Burnside was comfortable with the jury that
20140400-CA 33 2016 UT App 224State v. Burnside
was seated because he passed the panel for cause.‛ The court
also found that Burnside had ‚fail*ed+ to identify any seated
juror [who] expressed a bias or conflict of interest ‘so strong or
unequivocal as to inevitably taint the trial process.’‛ (Quoting
State v. Winfield, 2006 UT 4, ¶ 17 n.3, 128 P.3d 1171.) And with
respect to the bench conference on the State’s objection, the court
found that Burnside ‚waived the issue by failing to ensure a
proper record was preserved.‛
¶59 We agree with the district court. Burnside did not take
advantage of the available means to ensure a record adequate for
his appeal. Because Burnside has the ultimate responsibility to
make sure that ‚the record he compiles will adequately preserve
his arguments for review,‛ see State v. Johnson, 2006 UT App 3,
¶ 13, 129 P.3d 282 (internal quotation marks omitted), and
because he failed to take any reasonable steps to meet that
burden, we must presume the regularity of the proceedings and
the effective performance of counsel.
¶60 Accordingly, because Burnside cannot show that he was
actually prejudiced by the failure to make a record of either the
in-chambers voir dire or the bench conference on the State’s
evidentiary objection, his related claims of plain error and
ineffective assistance of counsel fail.
CONCLUSION
¶61 Burnside’s claims on appeal largely mirror his claims in
his motion to arrest judgment. After reviewing each, we hold
that the trial court did not err in denying the motion.
Specifically, we are not persuaded that trial counsel provided
ineffective representation or that the court plainly erred in a way
warranting relief for the judgment of conviction. Accordingly,
we affirm.
20140400-CA 34 2016 UT App 224