District, Nephi The Honorable Jennifer A. Brown No. 141600067
D. Reyes, Att'y Gen., Jeffrey D, Mann, Asst. Solic. Gen.,
Salt Lake City, for appellee
Phelps, Sandy, for appellant.
Justice Durrant authored the opinion of the Court, in which
Associate Chief Justice Lee, Justice Himonas, Justice Pearce,
and Justice Petersen joined.
DURRANT CHIEF JUSTICE.
George Ring was convicted of raping a three-year-old girl
while she was playing in his girlfriend's apartment. Mr.
Ring now appeals this conviction for three reasons. First, he
claims that the district court erred by using each of the
factors we previously articulated in State v.
Shickles (Shickles factors) to determine
the admissibility of his previous acts of child molestation.
Second, he argues that even if the district court used the
correct legal test, it nevertheless abused its discretion by
admitting those previous acts of child molestation. Finally,
he asserts an ineffective assistance of counsel claim based
on several alleged deficiencies in his trial counsel's
representation. Each of Mr. Ring's claims fails.
As an initial matter, we decline to consider whether the
district court erred in relying upon each of the
Shickles factors, because our review of this claim
is precluded by the invited error doctrine. We do, however,
address Mr. Ring's two remaining claims. First, we hold
that the district court did not err in admitting evidence of
Mr. Ring's prior acts of child molestation, because this
evidence was admissible under rules 403 and 404(c) of the
Utah Rules of Evidence. Second, we hold that Mr. Ring's
ineffective assistance of counsel claim fails because he did
not show that any of the alleged deficiencies constituted
deficient performance and resulted in prejudice.
Three-year-old H.F. was playing with neighborhood friends at
the apartment complex where she lived with her mother.
Initially, Nancy Allred-the mother of one of H.F.'s
friends-looked after the children. But when Ms. Allred went
to church, she left the children alone with her boyfriend,
George Ring. Although the children began by playing outside,
when H.F.'s mother checked on H.F., she found her in Ms.
Allred's apartment playing video games with Mr. Ring. A
few hours later, H.F. told her mother, without any prompting,
that "Uncle Jerry touched her pee pee." She also
told her mother that "Uncle Jerry" lived with Ms.
Allred. From this, her mother understood "Uncle
Jerry" to be Mr. Ring. H.F.'s mother immediately
reported the incident to the police.
A few days later, H.F. was interviewed at the Children's
Justice Center (CJC) by case worker Erica Wankier. The
interview was recorded. In the interview, H.F. again said
that "Uncle Jerry" touched her "pee pee,
" indicating her vagina. She explained that this had
happened in Ms. Allred's bedroom. According to H.F.,
"Uncle Jerry" had pulled her pants down and touched
her vagina with his "tail." She identified a
man's "tail" on an anatomy chart as a penis.
She said that his "tail" touched her "in"
her "pee pee" while he lay on top of her on Ms.
In the course of their investigation, police learned that Mr.
Ring lived with Ms. Allred. They also learned that Mr. Ring
was required to register as a sex offender-due to two
previous convictions for child sex crimes-but that he had not
registered in Utah. Based on this information, the State
charged Mr. Ring with rape of a child and failure to register
as a sex offender.
Ring's Prior Acts of Child Molestation
About four months before trial, Mr. Ring filed a motion
requesting an evidentiary hearing in anticipation of the
State seeking to admit evidence of his prior acts of child
molestation under rule 404(c) of the Utah Rules of Evidence.
In his motion, Mr. Ring referred the court to the
Shickles factors and emphasized the "need for
examination of the evidence to determine the answer to the
threshold questions of admissibility set forth in
Shortly thereafter, the State filed a motion in
limine seeking to admit evidence of two cases of prior
child molestation by Mr. Ring. The first case included two
incidents in 1994 in which Mr. Ring molested a six-year-old
boy (M.F.). One incident-which resulted in a rape
conviction-occurred behind a haystack (haystack incident),
and the other incident-which was not disclosed until a few
years later and, consequently, did not lead to a criminal
conviction-occurred at Mr. Ring's mother's house
while he was playing video games with M.F. (video game
incident). The second case involved a single incident three
years later. In that case, Mr. Ring pled guilty to sexually
assaulting a five-year-old girl (S.J.) by "humping"
her and touching her genitals while they were watching
television. The State relied on the Shickles factors
in its motion to argue that "the prior instances of
abuse pass the scrutiny of the 403 analysis."
The day before trial, the district court held an evidentiary
hearing to determine the admissibility of Mr. Ring's
prior acts of child molestation under rule 404(c), as well as
the admissibility of H.F.'s recorded CJC interview. At
the hearing, the State called M.F. and his father, and S.J.
and her mother to testify about Mr. Ring's prior acts of
child molestation. In addition to the haystack incident, M.F.
testified about the video game incident. According to M.F.,
the video game incident occurred when Mr. Ring promised the
six-year-old M.F. that he could only play video games if he
did Mr. Ring a favor. Mr. Ring then led him across the hall
to Mr. Ring's mother's room where Mr. Ring raped him.
After the witnesses' testimony, the district court heard
argument from the State and Mr. Ring. Both parties relied on
each of the Shickles factors during their arguments.
The district court then granted the State's "motion
to admit the evidence of similar crimes."
Another pretrial issue decided by the district court was the
admissibility of a video recording of H.F.'s CJC
interview. Months before trial, a preliminary hearing had
been held to determine whether the State had probable cause
to charge Mr. Ring for the crimes in this case. At this
preliminary hearing, the State filed a stipulated motion to
admit the video recording of the CJC interview at the
preliminary hearing pursuant to rule 1102(b)(7) of the Utah
Rules of Evidence and rule 15.5 of the Utah Rules of Criminal
Procedure. Although H.F. was available to testify at the
preliminary hearing, Mr. Ring declined to cross-examine her.
As the trial approached, the State filed another motion to
admit the recording of the CJC interview at trial pursuant to
rule 15.5, and to allow H.F. to testify in the judge's
chambers outside of Mr. Ring's presence.
The district court considered the State's motion at an
evidentiary hearing held one day before trial. After finding
that all conditions of rule 15.5 had been met, the court
ruled that the CJC interview was admissible. Mr. Ring did not
object. Additionally, the parties stipulated to H.F.
testifying in the judge's chambers, with her testimony
live-streamed to the jury in the courtroom.
At trial, the now four-year-old H.F. was present to give
testimony in the judge's chambers in the presence of the
judge, prosecutor, defense counsel, court clerk, and a victim
advocate. The State questioned H.F. and defense counsel
cross-examined her, but she had limited focus and would only
answer "I don't know" when asked about
After H.F.'s testimony, Ms. Wankier testified about her
CJC interview with H.F. The prosecution then played the
recording of the CJC interview, with no objection from
The jury convicted Mr. Ring of rape of a child and failure to
register as a sex offender, and Mr. Ring timely appealed the
rape conviction. We have jurisdiction under section
78A-3-102(3)(i) of the Utah Code.
Mr. Ring raises three issues on appeal. We consider each
issue under a different standard of review.
First, Mr. Ring challenges the district court's use of
each of the Shickles factors in considering the
admissibility of evidence of Mr. Ring's prior acts of
child molestation. This issue was not preserved and so would
ordinarily be reviewed under a plain error
standard. But in this case we decline to conduct a
plain error review, because the district court's use of
the Shickles factors was invited error.
Next, Mr. Ring challenges the district court's admission
of evidence of his prior acts of child molestation. We review
the district court's decision under an abuse of
discretion standard. A district court's "decision to
admit or exclude evidence" is only an abuse of
discretion if it "is beyond the limits of
Finally, Mr. Ring argues that his trial counsel was
ineffective in a number of respects. "A claim of
ineffective assistance of counsel raised for the first time
on appeal presents a question of law that [we] review for
Because Mr. Ring Invited the District Court's Error by
Urging the Court to Apply Each of the Shickles
Factors, We Decline to Evaluate His Claim Under the Plain
Mr. Ring argues that the district court "erred in
relying exclusively on the Shickles factors"
when it considered the admissibility of evidence of Mr.
Ring's prior acts of child molestation under rules 403
and 404(c) of the Utah Rules of Evidence. Because Mr.
Ring's argument fails under the invited error doctrine,
we decline to consider it.
Under the invited error doctrine, we decline "to engage
in plain error review when counsel made an affirmative
statement that led the court to commit the
error." As we have previously noted, the invited
error doctrine serves three important purposes. First, it
"discourag[es] parties from intentionally misleading the
trial court so as to preserve a hidden ground for reversal on
appeal." Second, "it encourages counsel to
'actively participate in all proceedings and to raise any
possible error at the time of its
occurrence.'" Finally, it "fortifies our
long-established policy that the [district] court should have
the first opportunity to address a claim of
error." For these reasons, we employ the invited
error doctrine where a complaining party made affirmative
statements to the district court that would have led the
court to commit the error complained of. We hold that Mr.
Ring affirmatively invited the district court to apply each
of the Shickles factors in this case.
In State v. Shickles,  we established factors
for determining whether evidence of prior crimes should be
admitted under rules 403 and 404(b). From Shickles
until our decision in State v. Luceronearly thirty
years later, courts routinely relied on the Shickles
factors when deciding whether to admit evidence under rule
404(b) or 404(c). It wasn't until Lucero that we
clarified that it is the language of rule 403, and not the
Shickles factors, that should govern the
admissibility of rule 404(b) evidence. Specifically, we
explained that "while some of [the Shickles]
factors may be helpful in assessing the probative value of
the evidence in one context, they may not be helpful in
another." We therefore concluded that it was
"unnecessary for courts to evaluate each and every
[Shickles] factor and balance them together in
making their assessment" under rule
We discussed the Shickles factors again-in the
context of rule 404(c)-the following year in State v.
Cuttler. In Cuttler, we reaffirmed
Lucero's holding that it is
"'unnecessary for courts to evaluate each and every
[Shickles] factor' in every context,
" and we further explained that in some
contexts "it may be inappropriate for a district court
to consider some of the Shickles
factors." We also held that it is always
inappropriate for district courts to consider the
"overmastering hostility" factor set out in
After our decisions in Lucero and Cuttler,
it is clear that a proper rule 403 analysis for rule 404(b)
or 404(c) evidence requires a district court to look first,
and primarily, to the language of rule 403. Under that
language a court must determine whether the probative value
of the evidence is substantially outweighed by its
prejudicial effect. The analysis may stop there. But to the
extent the court finds it helpful to consider a factor set
forth in Shickles-or any other factor-it may do so.
It is always error, however, for a court to center its
analysis on the Shickles factors, to consider itself
obligated to use a particular factor or factors, or to rely
inflexibly upon each Shickles factor.
Although the trial in this case was held before our decision
in Cuttler made it clear that "Lucero
and its logic" also applied to "determinations made
under rule 404(c), " Mr. Ring argues that the
district court plainly erred by considering each
Shickles factor. But this argument fails
because he repeatedly invited the district court to use each
Shickles factor to determine the admissibility of
his prior acts of child molestation. He first did this in a
pretrial motion for a rule 404(c) hearing, where he
introduced each Shickles factor and stated that
there was a need for a ...