{1 Defendant Thomas Devirl Curtis appeals his convictions of four counts of rape, see Utah Code Ann. § 76-5-402 (LexisNexis Supp. 2013),
BACKGROUND
- 12 Curtis was convicted of giving a minor victim (M.V.) cocaine and raping her on four occasions.
13 After M.V.'s family moved, M.V. ace-companied Curtis on a number of trips to Salt Lake City to buy cocaine. She was sixteen or seventeen years old at the time. MV. testified at trial that she and Curtis would "go up to Salt Lake to get more cocaine, and then [they]'d come back [home] and [they]'d sell some of it. But mostly-mostly [they] just used it." She testified,
[Defendant] would put [the cocaine] in a spoon and add water, and then he'd put ... [a] cotton ball in there and he'd use the needle and soak up the liquid through the cotton ball. And then he'd do half, and then he'd fill up the syringe with the other half, and then I would do that one.
MV. and Curtis used cocaine this way several times in the bathroom of the home and in Curtis's bedroom. MV. said the cocaine use left sears and bruises on her arms, which she covered with "long sleeve shirts and zip up shirts."
{4 In late January 2008, Curtis and M.V. traveled to Salt Lake for another "drug run." After returning home, they "did cocaine in [Curtis's room]" until about 2:00 a.m. At that point, M.V. "laid down and tried to go to sleep" because she "had to work the next morning." The defendant then raped her.
T5 Over the next several months, Curtis raped M.V. three more times after providing her with cocaine. First, in March 2008, M.V. and Curtis "had been using drugs again ... and it was just another late night in [Curtis's] room and the same thing happened." A few weeks later, Curtis injected MV. with cocaine in his bedroom, continued to use cocaine with her "throughout the night," and then "[M.V.] laid down and [the] same incident happened." Finally, in late May 2008, when MV. returned home from work, the defendant gave her cocaine and used it himself,. MV. said they "continued doing that throughout the night ... [alnd then later on" MV. said she "kind of zoned off a little bit" right before Curtis again raped her.
{6 On December 11, 2009, the State charged Curtis with four counts of rape and four counts of distribution of a controlled substance in a drug-free zone. At trial, the State called M.V. as its first witness. She testified that Curtis had also introduced her to "marijuana" when she "was 12 years old" and that her sister (Sister) "used cocaine with" her and Curtis "a few times." After a brief discussion with counsel at the bench, the court dismissed the jury and the parties argued at length about whether evidence of such other drug use in the home was admissible. The court ruled that any evidence regarding other drug use in the home was inadmissible "unless it occurred on these instances ... where the alleged sexual activity occurred." The judge reiterated this ruling when the State later asked Sister on direct examination whether Mother knew about Sister's drug use. He noted that unless the State called Sister as a rebuttal witness to impeach Mother or the defendant, "[Sister's] own [drug] use is not relevant.... So I will instruct the jury that [Sister's] drug use is not an issue in this case, and we'll go from there."
T7 Defense counsel also expressed some concern that the jury could have heard the earlier sidebar discussion, but he noted that "we may have been talking enough in lawyer code ... that they didn't exactly clue into what we were talking about." In response to this concern and the prosecution's question about Sister's drug use, the court gave two curative instructions at the defense's request as soon as the jury reconvened. The
T 8 The defense's first witness was Mother. On direct examination, she denied that there was "any indication of drug use" in her home and asserted that she "would have known" if there was. She also testified that she "(all-ways" knew what was going on in the family's home and would have "filed the charges [herself]" if there was an inappropriate relationship between M.V. and Curtis. On cross-examination, the State focused on Mother's statements regarding drug use to attack her credibility:
Q. Now, you say you didn't know about drug use in your home. But you did know about marijuana use in your home; is that correct?
A. Yes.
[Curtis's Counsel]: Objection, Judge....
THE COURT: You opened that door on that issue when you asked her if she was aware of drug use in the home. So that's an appropriate question.
[[Image here]]
Q. [Prosecutor]. And so since you knew there was drug use, you did not have charges filed on anyone at that point based on that drug use; is that right?
A. Yes.
T 9 On redirect, Mother stated again that if she were aware of drug use or inappropriate sexual activity in the home, Mother "would have been gone." Mother also testified that she did not believe M.V. because, as her mother, she "know[s] when [M.V.]'s lying" and that M.V. "was lying" when she testified in court about Curtis's drug use and inappropriate sexual conduct.
110 Curtis testified in his own defense. He denied "usfing] cocaine with [M.V.]," "inject[ling] [M.V.] with cocaine," and "hav[ing] sexual intercourse with" M.V. On cross-examination, over the defense's objection, the court allowed the State to question Curtis regarding marijuana use in the home because Mother had already denied that there was any drug use in the home. Curtis readily admitted that he "smoke[d] marijuana," but when asked if MV. and her sisters also smoked marijuana, he responded, "No, with me, no."
{ 11 The State called Sister as a rebuttal witness. She testified that she saw the defendant use cocaine with M.V. "several times . in the bathroom{and] in the bedroom" of the family's home. Defense counsel objected, citing the court's prior decision exeluding evidence of drug use other than the cocaine use that accompanied the four instances of sexual abuse. After a lengthy discussion, the court allowed Sister's testimony to rebut the defendant's assertion that he never used cocaine with MV., Mother's allegations that MV. was lying, and Mother's statement that no drug activity ever occurred in the home.
{12 The jury convicted Curtis of four counts of rape and four counts of distribution of a controlled substance. Curtis appeals.
ISSUES AND STANDARD OF REVIEW
{13 Curtis requests that we remand this case to the trial court under rule 23B of the Utah Rules of Appellate Procedure to create a record regarding his ineffective assistance of trial counsel claim. See Utah R.App. P. 28B(a). Rule 28B allows a criminal defendant asserting an ineffective assistance claim to "move the court to remand the case to the trial court for entry of findings of fact" that are necessary for an appellate court to resolve the claim. Id. Although not strictly a standard of appellate review, we grant such motions "only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Id.
114 Curtis also argues that he received ineffective assistance of counsel because his attorney (1) "failed to present photographs that questioned [M.V.'s] credibility and testimony"; (2) did not present the results of a hair follicle drug test that Curtis alleges shows M.V. did not use cocaine; (8) never introduced into evidence a Division of Child
ANALYSIS
I. Rule 23B Motion for Remand
115 Curtis requests remand under rule 28B to the trial court for factual supplementation of the record regarding his ineffective assistance of counsel claims. Rule 23B motions are "available only in limited circumstances, to supplement the record with known facts needed for an appellant to assert an ineffectiveness of counsel claim on direct appeal." State v. Johnston,
116 Rule 28B motions must "be accompanied by affidavits ... that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance." Utah R.App. P. 23B(b). This means that a defendant must not only identify uncalled witnesses or other evidence that he claims should have been presented at trial, but must go further, providing affidavits from the uncalled witnesses "detailing their testimony" and other "evidence he intends to present on remand," together with an explanation of "how that evidence supports both prongs of" his ineffective assistance claim. Johnston,
17 Curtis argues that remand is necessary under rule 23B because his attorney "failed to utilize" readily available evidence. Specifically, he asserts that his attorney failed to introduce (1) photographs taken six weeks after M.V.'s cocaine use showing no track marks on her arms, (2) a hair follicle drug test showing M.V. tested negative for cocaine, and (8) a DCFS report where M.V. denied that Curtis abused her. Curtis also urges rule 23B remand because his attorney made several other mistakes: failing to interview potential witnesses, not moving for a new trial after "the jury and witnesses had been tainted by hearing the [court's] sidebars [with the attorneys]," and mistakenly opening the door to damaging impeachment testimony. We conclude that the defendant has failed to demonstrate that remand is appropriate.
A. Remand Is Not Justified To Consider the Photographs, Drug Test, and DCFS Report.
118 With respect to the evidence not introduced, Curtis has failed to allege non-speculative facts as rule 23B requires. See Utah R.App. P. 28B(a) ("The motion shall be available only upon a nonspeculative allegation of facts...."); Johnston,
§T19 Here, Curtis failed to include several key pieces of evidence with his motion. Although affidavits from Mother, Curtis's sister, M.V.'s foster mother (Foster Mother), and Curtis's mother all mention photographs showing MV. had no track marks on her arms six weeks after she claims to have used cocaine with Curtis, the photographs themselves were not provided. Similarly, Curtis's supporting memorandum refers to a hair follicle drug test "showing [M.V.'s] negative results for cocaine use," but he does not provide the test results in any evidentiary form. Curtis's motion also describes a DCFS report showing that M.V. denied Curtis abused her. The defendant cites a specific page of the report in his motion, but he does not provide a copy of the report itself
B. Remand Is Not Justified To Consider Testimony from Uncalled Witnesses.
120 For similar reasons, Curtis's motion does not justify remand to supplement the record with testimony from "Jonathan Rowley [of DCFS] and M.B."-two potential witnesses the defendant argues his attorney should have interviewed and called at trial. First, Curtis has not attached an affidavit detailing M.B.'s testimony. See State v. Johnston,
C. Remand Is Not Justified To Consider the Influence of Allegedly Overheard Sidebar Conversations.
121 Curtis has also failed to demonstrate that remand is appropriate to supplement the record with evidence that "the jury and witnesses had been tainted by hearing the [court's] sidebars [with the attorneys]." Curtis maintains that his attorney "should have motioned the court for a new trial"
$122 At the beginning of Curtis's trial, the prosecutor invoked the exclusionary rule under rule 615 of the Utah Rules of Evidence. Rule 615 provides that parties may request exclusion of witnesses "so that they cannot hear other witnesses' testimony." Utah R. Evid. 615. The purpose of the rule "is to prevent witnesses from being influenced or tainted by the testimony of other witnesses," Astill v. Clark,
123 Curtis has not shown prejudice. He submits affidavits from his mother, his sister, Mother, and Foster Mother. Curtis's mother stated that she could "overhear the sidebar conversations that were being held between the attorneys and the Judge." She also mentioned that "[wlitnesses outside the courtroom were ... able to hear the contents of the court proceedings," including Mother and Foster Mother, who both testified at trial. Mother stated that she, "along with the other witnesses in this case, sat outside the court ... [and] could hear what was being said and by whom." The defendant's sister also "overhear[{d] the sidebar conversations that were being held between the attorneys and the Judge." She "informed [defendant's trial counsel]" that she could "hear the contents of the sidebar conversation" and noticed that "[wlitnesses outside the Courtroom were also able to hear the contents of the court proceedings." - Finally, Foster Mother stated that she and "the other witnesses in this case[] could hear what was being said in the courtroom due to the microphone of the judge projecting those conversations" and that "[those outside the courtroom could hear enough to recognize who was speaking and some of what was being said."
124 Although each affidavit provides evidence that the exclusionary order was ineffective, none of them "provide ... evidence that [witnesses] changed [their] testi-mon[ies]" because they overheard sidebar conversations or other court proceedings. See Cramer,
$25 We conclude for similar reasons that remand is not necessary on the issue of whether Curtis's attorney should have moved for a new trial "based on the possibility that the jury improperly overheard several sidebar conversations." Defendant's trial counsel, who participated in
T26 The defendant has not alleged facts demonstrating that his trial counsel's decision prejudiced the result in his case. In his rule 23B motion, Curtis states that "the information the jury overheard could not be erased by a curative instruction," but he does not describe in meaningful detail the contents of the sidebar discussions or analyze why they would have had this effect.
D. Remand Is Unnecessary To Determine Whether Opening the Door to Evidence of Drug Use Prejudiced Curtis's Defense.
127 Finally, remand is not necessary on Curtis's claim that his attorney was ineffective for mistakenly opening the door to damaging impeachment testimony because that issue can be decided on the existing record. "'Rule 28B is directed to cases where some crucial factual information is absent from the record,)" not "'the typical ineffective assistance case where the parties dispute whether trial counsel's actions reflected some strategy, given the facts established by the record"" State v. Johnston,
128 Here, Curtis fails to identify any eru-cial factual information absent from the record. Curtis argues that he received ineffective assistance when his trial counsel opened the door to evidence of marijuana use in his home. The court had previously excluded all evidence of drug use exeept for the four instances of cocaine use that accompanied the sexual abuse. On direct examination, however, Curtis's attorney did not confine his questions to the alleged cocaine use. He asked Mother more broadly if she ever saw "any indication of drug use" in her home, and she said no. (Emphasis added.) - After Mother's testimony, the court allowed the State to ask Mother and the defendant about marijuana use in the home because trial counsel had "opened that door on that issue when [he] asked [Mother] if she was aware of drug use in the home." (Emphasis added.) By "accidentally [saying] 'drug use' when he meant to say 'cocaine use," Curtis argues, trial counsel rendered ineffective assistance. All of the facts necessary to resolve this claim, however, appear in the trial court
129 In summary, we conclude that rule 23B remand is unnecessary to resolve Curtis's claims on appeal. Because Curtis has not provided the evidence absent from the record he argues supports his claim-the photographs, drug test results, DCFS report, or affidavits from Rowley and M.B.-he has not alleged nonspeculative facts showing ineffective assistance as rule 23B requires. Additionally, the affidavits supporting Curtis's motion provide no facts indicating that witnesses changed their testimonies or that the jury was irreparably biased by overhearing sidebar conversations. - Finally, whether Curtis received ineffective assistance when his attorney opened the door to evidence of marijuana use can be decided on the existing record.
II. Ineffective Assistance
30 Curtis argues that his trial counsel did not provide him with effective assistance. He asserts that because the case was essentially "a credibility contest between [M.V.] and [the defendant]," his counsel should have used every "opportunitly] to cast doubt on [M.V.'s] credibility and testimony." - Specifically, Curtis maintains that his attorney should have presented "photos, drug test results, [and] a [DCFS] report" that Curtis asserts would have undermined M.V.'s eredi-bility. Additionally, Curtis argues that his counsel was ineffective for failing to "interview potential witnesses that would have called into question ... [M.V.'s] credibility" and for "failing to motion for a new trial after ... the jury and excluded witnesses" overheard sidebar conversations. Finally, Curtis argues that his counsel was deficient for "opening the door to damaging cross-examination" and "impeachment testimony" regarding drug use in the home.
181 We have already discussed many of these issues in the context of Curtis's rule 23B motion. Of the four requirements for rule 23B remand, two involve the merits of the underlying ineffective assistance claim, and two do not
T 32 "The Sixth Amendment to the United States Constitution guarantees all defendants the right to effective assistance of counsel." State v. Lenkart,
1 33 Counsel's performance is not deficient if it falls within "an objective standard of reasonableness" in light of "prevailing professional norms." Kell v. State,
T 34 To prove prejudice, a defendant must show that his trial counsel's deficient performance was "'so serious'" that it "'deprive[d] the defendant 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." Lenkart,
A. - Curtis Has Not Shown that Any Failure by Trial Counsel to Introduce the Photographs, DCFS Report, and Drug Test Results Amounted to Ineffective Assistance.
185 Curtis has not shown that his counsel's performance was deficient for failing to introduce into evidence the photographs, DCFS report, and drug test results. First, none of this evidence appears in the record, and Curtis did not include it in his rule 23B motion for remand. Without it, we have no way of knowing whether the photographs actually show M.V.'s arms free of scarring soon after the alleged cocaine use, whether MV. actually tested negative for cocaine, or whether the DCFS report was so compelling that no reasonable attorney would have failed to introduce it into evidence. On appeal, we "presume that any argument of ineffectiveness presented to [us] is supported by all the relevant evidence of which the defendant is aware," and "ambiguities or deficiencies resulting [from an inadequate record] simply will be construed in favor of a finding that counsel performed effectively." State v. Litherland,
T36 Second, given the uncertainty surrounding this evidence, we cannot say there was "no reasonable basis" supporting the decision to leave it out. See State v. Clark,
What happened to that [drug] test? Where is that? Where is the expert that came in and said either we found cocaine or because of the time lapse we couldn't find cocaine?
*980 [[Image here]]
I mean, somebody has to come in and tell you something because you're not allowed to guess about what happened. They didn't bring-they didn't bring it up.
137 Finally, the trial transcript suggests that introducing the DCFS report into evidence could have harmed Curtis's case. Although, as we have discussed, the report itself is not in the record, the parties de-seribed some of its contents briefly at a preliminary hearing. According to that discussion, DCFS began its investigation in April 2008 after someone reported seeing the defendant kiss M.V. on the lips. But when DCFS interviewed M.V. in May 2008, she denied any inappropriate relationship between Curtis and herself. Later that summer, DCFS interviewed M.V. again after Sister told some out-of-state relatives that Curtis gave Sister drugs and had sex with Sister. M.V. denied Sister's allegations and stated again that Curtis had never given MV. drugs or sexually abused her. In December 2009, however, M.V. came forward and told investigators that Curtis had in fact abused her and recanted her previous denials.
138 Before trial, defendant's trial counsel discussed the potential effects of introducing DCFS's report with the court; "Now, ... what I don't want to happen is I don't want the jury to necessarily know of that earlier investigation [concerning Sister]. But my dilemma is that [M.V.] said, you know, some matter of months ... before she said black, she said white." The court responded that impeaching M.V. with her prior statements to DCFS investigators would open the door to the entire content of the two interviews-including questions related to Sister's allegations. After consulting with Curtis, trial counsel told the court that he "would like to endeavor not to open the door and not talk about [M.V.'s] prior inconsistent statements."
189 On the record before us, we cannot say that this decision was outside "the wide range of reasonable professional assistance." See Kell v. State,
B. Curtis Has Not Shown that His Attorney Failed to Investigate Potential Witnesses or that Any Such Failure Prejudiced His Defense.
140 For similar reasons, the defendant has not demonstrated that his attorney provided ineffective assistance by failing to interview Jonathan Rowley or M.B. Curtis cites State v. Templin,
' 41 Here, while the defendant's brief mentions that his trial counsel "was aware of other potential witnesses[,] Jonathan Rowley of the [DCFS] and [M.B.]," he does not assert that trial counsel failed to interview Rowley. And although Curtis does argue that "lilt is unclear why counsel decided not to interview [M.B.]," neither the record nor the four affidavits attached to Curtis's 23B motion reasonably support an assertion that no interview took place. Rather, Mother states that she "informed [defendant's trial counsel] about the existence of [M.B.] ... and [that] she would have been able to dispute some of what [M.V.] testified to in court." She does not assert that the defendant's trial counsel failed to interview M.B.
142 Even were we to assume that trial counsel failed to interview both witnesses, Curtis has not shown that he was prejudiced. Other than Mother's statement that M.B. "was a family friend [who] ... spent extensive time" at the home and "would have given testimony that would undermine [M.V.'s] testimony," Curtis provides no description of what M.B. would have testified to at trial. Similarly, the most detailed description of Rowley's potential testimony is a single line in the defendant's mother's affidavit: "The DCFS worker who ordered [M.V.'s] drug testing was not called at trial." 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," State v. Lenkart,
C. Curtis Has Not Shown that Trial Counsel's Decision to Request a Curative Instruction Rather Than Move for a Mistrial Amounted to Ineffective Assistance.
148 Curtis has not shown "a demonstrable reality," State v. Munguia,
144 Whether to move for a mistrial or request a curative instruction is a strategic decision that is " 'generally left to the professional judgment of counsel.'" State v. Franco,
45 Here, there is almost no evidence in the record or in the defendant's rule 28B motion that describes the content of the unrecorded sidebars. Curtis's trial counsel, a participant in each discussion, deseribed them as focused on technical evidentiary issues-"prior bad acts and uncharged, that sort of stuff" -that may have been "enough in lawyer code ... that [the jury] didn't exactly clue into what [they] were talking about." If this characterization is accurate- and Curtis has not identified any evidence that it is not-there was no basis for a conclusion that the jurors were irreparably biased or that lay witnesses would alter their testimonies after hearing a highly technical evidentiary discussion. This is especially true where Curtis's counsel, an experienced trial attorney who had been privy to all that was said at the pertinent bench conferences, judged that whatever the jury might have heard was relatively obscure and could be remedied with an instruction from the judge. See State v. Moore,
€46 But even if we assume that defendant's trial counsel performed deficiently, we are not persuaded that Curtis suffered any prejudice. For reasons we have already discussed, Curtis has not shown that the sidebar conversations altered witness testimony or affected jurors in a way that undermined the integrity of his trial. See supro T9 21-26.
D. Curtis Has Not Shown that Opening the Door to Evidence of "Other Drug" Use Materially Prejudiced His Defense.
147 Curtis argues that he received ineffective assistance when his attorney "inadvertently opened the door to impeachment testimony" and "eross-examination that undermined the defense's credibility." Early in Curtis's trial, the court ruled inadmissible evidence of drug use other than the cocaine use alleged to have accompanied each instance of sexual abuse. But during Mother's direct examination, the defendant's attorney asked a broader question-whether she ever saw "any indication of drug use going on in [her] home?" (Emphasis added.) As a consequence, on cross-examination, the court permitted the prosecution to ask Mother and Curtis about marijuana use because trial counsel "opened thle] door on that issue when [he] asked [Mother] if she was aware of drug use in the home," instead of limiting her testimony to cocaine use. Sister was also permitted to testify for the prosecution in rebuttal that she had seen the defendant and MV. use cocaine together "several times."
48 Curtis argues that evidence of mariJuana use and other cocaine use "was not initially admissible" and "[bJut for Counsel's ... blunder, [Sister] would not have testified as a rebuttal witness [and] would not have corroborated [M.V.'s] testimony." He also asserts that the error undermined Curtis's and Mother's testimony and "prejudiced the jury against ... Curtis because of the drug
1. Sister's Rebuttal Testimony Did Not Result in Prejudice.
149 Opening the door to Sister's rebuttal testimony did not prejudice Curtis's defense because that testimony would have been admissible even if trial counsel had limited Mother's testimony to cocaine use. As we have discussed, Curtis must show "a reasonable probability that, absent the error[ ], the factfinder would have had a reasonable doubt respecting guilt," State v. Hales,
1 50 Here, while Curtis correctly points out that his attorney's examination of Mother opened the door to Sister's testimony, the district court also concluded that Sister's testimony would have been admissible even if counsel's questioning of Mother had been limited to "cocaine use" instead of "drug use" in general. When Sister testified on rebuttal that she saw the defendant use cocaine with MV. "several times," defense counsel objected. After some discussion, the court ruled that Sister's rebuttal testimony was admissible for three reasons: (1) Mother testified that M.V. "was lying and [Mother was] aware of her lying because she's lived with her"; (2) Mother testified that there was no drug use in the home; and (8) Curtis testified that he never used cocaine with M.V.
151 On appeal, Curtis's ineffective assistance claim attacks just one of these three grounds for admissibility, Thus, like in Gonzales, where the court determined no prejudice resulted because evidence of prior bad acts was admissible independent of the attorney's errors, id. 168, here Sister's rebuttal testimony would have been admissible regardless of any error Curtis's attorney committed. As a result, we are not persuaded that " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different'" if Curtis's attorney had not opened the door to Sister's rebuttal testimony during Mother's direct examination. See State v. Lenkart,
2. Marijuana Use Testimony Did Not Prejudice Curtis's Defense.
152 Curtis argues that the prosecutor's cross-examination about marijuana use damaged his case in two ways. First, it "prejudiced the jury against [him] because of the drug distribution charges," and second, it "was used to undermine [Curtis's] and [Mother's] ... testimony." We address each argument in turn.
153 We begin by noting that "Utah courts have allowed impeachment evidence even though it introduces evidence of a prior bad act if the purpose of the evidence is to affect credibility." State v. Tucker,
154 Evidence of marijuana use, by itself, is not sufficiently prejudicial to undermine our confidence in the jury's verdict. Proof of prejudice "must be a demonstrable reality," not mere speculation, Fernandez v. Cook,
155 Here, Curtis's and Mother's admissions that they used or acquiesced in marijuana use in a home occupied by several minors certainly did not bolster Curtis's defense, but other evidence of drug use in the family's home likely blunted any prejudicial effect. MV. testified that by early 2008, when she moved out of Salt Lake, she "had already developed kind of a bad cocaine problem" and had "been shooting up with [Curtis] for a few months." She also mentioned that Curtis used cocaine with her several times a day for a period of seven months and admitted that Mother had "seen [M.V.] smoke pot."
T 56 We are also not persuaded that opening the door to marijuana use undermined Curtis's and Mother's credibility enough to have a material effect on the verdict. Curtis relies on our decision in State v. Fowers,
1 57 Here, the defendant's case bears some resemblance to Fowers-there is no direct physical evidence of Curtis's guilt, and the evidence of marijuana use would not have come in absent his trial counsel's error. But
T58 Second, viewed in context, it is not clear to us that the jury would have viewed Mother or the defendant as significantly less credible after the State cross-examined both of them about marijuana use in the family's home. After M.V. testified that Curtis had repeatedly injected her with cocaine by "put[ting] some [cocaine] in a spoon[,] ... add[ing] water, ... and soak[ing] up the liquid" with a syringe, trial counsel began Curtis's defense by calling Mother to challenge M.V 's claims:
Q. During this time, again, January through May of 2008, did you ever see any indication of drug use going on in your home?
No. |
Did you see any needles? ©
Nope. p
Did you see any syringes? $
No. p
Did you see any baggies? $
Nope. p
Did you see any spoons? $
No. p
Q. : Did you ever smell something burning that was out of the 'ordinary ... [als if cocaine was being burnt? ,
A. I wouldn't even know what it smelled like, so no.
On cross-examination, Mother readily admitted to marijuana use in her home:
Q [Prosecutor]. Now, you say you didn't know about drug use in your home. But you did know about marijuana use in your home; is that correct?
A [Mother]. Yes.
Curtis also admitted that he smoked marijuana in the home:
Q. So you [Curtis] never used cocaine with [M.V.]?
A [Curtis]. Absolutely not.
Q. Did you know about the marijuana use going on in the home?
[[Image here]]
A. I smoke marijuana myself, yes.
Q. Did the [girls] smoke marijuana also?
A. - No, with me, no.
159 Evidence of marijuana use may have technically impeached Mother's denial that there was any "drug use" in the family's home, but viewed in context with M.V.'s testimony, the jury could have concluded that Mother responded the way she did because she assumed trial counsel was asking about cocaine. Mother never specifically denied that Curtis or any of her daughters smoked marijuana on direct examination, and when the prosecutor asked a narrower question about marijuana use, she admitted it without hesitation. Curtis also never denied marijfua-na use in the home and readily admitted his own marijuana use when asked. And to the extent Mother's admission had any effect on the jury's perception of her credibility, the State had already effectively portrayed Mother as a biased witness:
Q. And you would-well, you stated in your direct examination that if you had known that something had happened, you would have filed the charges yourself?
A. Yes.
[[Image here]]
Q. -What would [it have] taken for you to be convinced something had happened?
*986 A. A kid coming to me and telling me, me seeing it, me hearing something.
Q. Okay. So the fact that your child did come forth and say to the police that something happened, you don't believe that?
A. No.
Q. Okay. In fact, you would do about anything to protect [Curtis], wouldn't you?
A. To a point. It depends on what you mean.
[[Image here]]
Q. [Y¥Jou chose not to believe your daughter, stayed with [Curtis], and gave up custody of your children-
A. I didn't give up custody.
Q. -as a result of these allegations?
[[Image here]]
Q.... Now, it's true that DCFS removed the children from your presence due to allegations about misconduct in your home.
A. Yes.
Q. And that you chose at that point to stay with [Curtis] instead of working with DCFS through the situation to regain custody of your children; isn't that correct?
A. Yes.
1 60 In light of Sister's rebuttal testimony, certain impeaching aspects of Mother's cross-examination testimony, and the manner in which the marijuana use evidence was introduced, we are not persuaded that opening the door to marijuana use had anything more than an "isolated" or "trivial effect" on the jury's perception of Curtis's and Mother's credibility. See State v. Hales,
CONCLUSION
T61 Because Curtis has not included key pieces of evidence with his rule 23B motion and because the affidavits accompanying his motion fail to allege nonspeculative facts to support his ineffective assistance claim, we deny Curtis's rule 23B motion for remand. We also deny Curtis's ineffective assistance of counsel claim because he has not shown his attorney's failure to introduce evidence was deficient, and any other errors that may have been committed did not result in prejudice.
Notes
. Throughout this opinion, we cite the current version of the Utah Code because no changes have been made to the relevant statutory provisions that would affect the resolution of the issues presented on appeal.
. "On appeal, we recite the facts from the record in the light most favorable to the jury's verdict and present conflicting evidence only as necessary to understand issues raised on appeal." State v. Bluff,
. There is some information in the record about the DCFS report because the parties discussed its contents at a preliminary hearing. See infra 137. That discussion indicates that some aspects of the report may have helped Curtis's defense while others threatened it. See infra 11 38-39. Failing to include a copy of the report therefore significantly undermines support for rule 23B remand because we are unable to determine whether the report as a whole would support Curtis's position.
. Curtis's brief implies that the jury overheard a sixteen-minute objection hearing on the admissibility of Sister's drug use with Curtis that took place after the three unrecorded bench discussions at issue. The trial transcript, however, indicates that the jury left the courtroom before the hearing took place, and there is some indication that the court took steps to mute its sound system during the hearing.
. - As we have discussed, the merits of a rule 23B motion involve four basic questions: (1) Does the ineffective assistance claim depend on facts not in the record? (2) If so, are those facts nonspe-culative-readily demonstrable by the affidavits submitted in support of the motion? (3) Do those facts show deficient performance? (4) Do those facts show prejudice? See State v. Gunter,
. Defendant's trial counsel did not object to this portion of M.V.'s testimony, and Curtis has not challenged that decision on appeal.