544 P.3d 1
Utah Ct. App.2024Background
- John Anthony Forbush was convicted by a jury of two counts of sodomy on a child and one count of dealing in material harmful to a minor, after allegations made by his five-year-old nephew, B.B., regarding incidents that occurred during a sleepover.
- Forbush's conviction was partially based on B.B.'s testimony, forensic interviews, and testimony/admitted interview evidence from two other children, L.T. and B.C., regarding prior similar acts under Utah Rule of Evidence 404(c).
- Key pretrial and trial events included B.B.'s partial recantation of one abuse allegation during a meeting with the prosecutor, discussions about allowing B.B. to testify remotely outside of Forbush’s presence due to mental/emotional strain, and apparent issues with jury/audio during B.B.’s remote testimony.
- Forbush raised multiple ineffective assistance of counsel claims, related to failure to investigate or use B.B.’s recantation, objections/investigation regarding other evidence and witnesses, and the implementation of remote testimony.
- The Court of Appeals granted limited remand for factual development under Rule 23B on some ineffective assistance claims and ultimately affirmed the convictions after supplemental proceedings and briefing.
Issues
| Issue | Forbush's Argument | State's Argument | Held |
|---|---|---|---|
| Ineffective assistance: Failure to use B.B.'s recantation | Counsel failed to investigate/introduction of recantation could undermine B.B.'s credibility | Recantation was partial, later retracted; would not likely alter trial's outcome | No prejudice; claim rejected |
| Use of Shickles factors re: Rule 404(c) evidence | Counsel should have objected to use of all Shickles factors in 404(c) propensity evidence | Even if error, evidence would be admissible under Rule 403 and similarities outweigh differences | No prejudice; claim rejected |
| Allowing remote testimony for B.B. | Insufficient evidence/expert testimony required to permit remote testimony | Lay and circumstantial evidence of B.B.'s anxiety/strain supported the court's decision | Ruling upheld; evidence sufficient |
| Ineffective assistance re: technical/testimonial procedures | Counsel failed to ensure Forbush could hear/proper procedure after audio issues | Forbush didn't prove inability to participate/prepared; no specific prejudice from alleged errors | No prejudice; claims rejected |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes the two-prong test—deficient performance and prejudice—for ineffective assistance of counsel claims)
- State v. Shickles, 760 P.2d 291 (Utah 1988) (sets factors for admissibility of prior bad acts evidence; later limited and clarified in subsequent cases)
- State v. Lucero, 328 P.3d 841 (Utah 2014) (clarified application of Shickles factors in Rule 403 balancing)
- State v. Cuttler, 367 P.3d 981 (Utah 2015) (reaffirmed limits on rigid use of all Shickles factors in Rule 403 analysis)
- Maryland v. Craig, 497 U.S. 836 (1990) (permits child witness testimony outside defendant's presence with proper findings under Confrontation Clause)