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State v. Ring

Supreme Court of Utah

May 25, 2018

State of Utah, Appellee,
v.
George Wayne Ring, Appellant.

         On Direct Appeal

          Fourth District, Nephi The Honorable Jennifer A. Brown No. 141600067

          Sean D. Reyes, Att'y Gen., Jeffrey D, Mann, Asst. Solic. Gen., Salt Lake City, for appellee

          Nathan Phelps, Sandy, for appellant.

          Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Justice Petersen joined.

          OPINION

          DURRANT CHIEF JUSTICE.

         Introduction

         ¶1 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[1] (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.

         ¶2 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.

         Background

         ¶3 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.

         ¶4 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. Allred's bed.

         ¶5 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.

         Mr. Ring's Prior Acts of Child Molestation

         ¶6 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 Shickles."

         ¶7 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."

         ¶8 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.

         ¶9 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."

         H.F.'s CJC Interview

         ¶10 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.

         ¶11 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.

         ¶12 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 "Uncle Jerry."

         ¶13 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 defense counsel.

         ¶14 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.

         Standard of Review

         ¶15 Mr. Ring raises three issues on appeal. We consider each issue under a different standard of review.

         ¶16 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.[2] 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.

         ¶17 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.[3] A district court's "decision to admit or exclude evidence" is only an abuse of discretion if it "is beyond the limits of reasonability."[4]

         ¶18 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 correctness."[5]

         Analysis

         I. 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 Error Standard

         ¶19 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.

         ¶20 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."[6] 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."[7] Second, "it encourages counsel to 'actively participate in all proceedings and to raise any possible error at the time of its occurrence.'"[8] Finally, it "fortifies our long-established policy that the [district] court should have the first opportunity to address a claim of error."[9] 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.

         ¶21 In State v. Shickles, [10] 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. Lucero[11]nearly 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."[12] 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 404(b).[13]

         ¶22 We discussed the Shickles factors again-in the context of rule 404(c)-the following year in State v. Cuttler.[14] In Cuttler, we reaffirmed Lucero's holding that it is "'unnecessary for courts to evaluate each and every [Shickles] factor' in every context, "[15] and we further explained that in some contexts "it may be inappropriate for a district court to consider some of the Shickles factors."[16] We also held that it is always inappropriate for district courts to consider the "overmastering hostility" factor set out in Shickles.[17]

         ¶23 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[18]-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.

         ¶24 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), "[19] Mr. Ring argues that the district court plainly erred by considering each Shickles factor.[20] 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 ...


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