State v. Forbush
State v. Forbush, 2024 UT App 11 (Tenney, J.)
Criminal Law
Defendant was convicted of two counts of sodomy on a child and one count of dealing in material harmful to a minor. On appeal, he raised multiple ineffective assistance of counsel claims, as well as a motion for a rule 23B remand. The court granted the 23B remand in part, which led to additional proceedings. After the 23B hearings, the case returned to the Court of Appeals. The Utah Court of Appeals affirmed the convictions, holding:
- Counsel was not ineffective in any way that Defendant argued because Defendant had not shown prejudice.
- The district court was not required to take expert testimony to support a determination that the child could testify remotely. There was sufficient evidence to support the district court’s finding to allow the child to testify remotely.
- Practice Tip: A lawyer’s lack of knowledge is not alone enough to amount to deficient performance. The operative inquiry is whether the actual representation would still have been within the range of objectively reasonable representation, even if counsel had been aware of the law.
- Practice Tip: While courts are still permitted to use most (but not all) of the Shickles factors in a rule 403 analysis, they cannot “moor” their rule 403 analysis entirely and exclusively on the factors.