State v. Larrabee

2013 UT 70, 321 P.3d 1136, 2013 WL 6164424, 2013 Utah LEXIS 193

• Court: Utah Supreme Court
• Decided: November 22, 2013
• Docket: No. 20110739
• Status: Published

Opinions

Chief Justice DURRANT,

opinion of the Court:

INTRODUCTION

{1 Michael D. Larrabee (Defendant) appeals three criminal convictions: two for aggravated sexual abuse of a child, and one for dealing in material harmful to a minor. Defendant argues that the convictions cannot stand because (1) the evidence used to con-viet him was inherently improbable; (2) the trial court committed reversible error when it excluded expert testimony regarding Defendant's lack of pedophilic interests under rules 702 and 403 of the Utah Rules of Evidence; and (8) the prosecutor prejudiced the jury by making several improper remarks during closing arguments.

12 After careful review of the record, we conclude that Defendant failed to preserve the issue of prosecutorial misconduct for appeal. Nevertheless, we hold that defense counsel's failure to object to the prosecutor's conduct at trial constitutes ineffective assistance of counsel. We therefore remand this case to the trial court for a new trial on all counts.¹

BACKGROUND

T3 Defendant married Jan in 1991. At that time, Jan had a twelve-year-old daughter, Jamie, from a prior marriage, who refused to accept Defendant into the family. As Jamie matured, she became a source of friction in the Larrabee home: she was taken into police custody as early as age 18, abused drugs and alcohol, and was in and out of correctional and rehabilitation facilities for several years.

T4 In 1996, Jamie gave birth to her first child, A.B., while in state custody. The following year she gave birth to B.B., and then in 1998 she gave birth to another son, T.B. Initially, B.B. and T.B. lived with their biological father, but in 1999 Jan and Defendant petitioned to become the guardians of A.B., alleging that due to her lifestyle, Jamie was unable to care for him. Jamie subsequently gave birth to two more children, and Jan and Defendant ultimately became the guardians of all five. Jamie resented Jan and Defendant, however, and threatened to take the children back from them.

15 The Larrabees settled in Kaysville in 2004. In 2005, Jamie was released from prison and came to live with the Larrabees, where her behavior onee again became a source of tension in the home. Eventually, Defendant informed Jan that he could no longer tolerate Jamie's behavior and asked her to choose between Jamie and him. Defendant and Jan subsequently separated and were divorced in October 2005. Jan and Jamie then took the children and moved to St. George, while Defendant settled in Las Vegas.

16 As part of the divorce decree, Defendant was awarded visitation rights with the children every other weekend. By all accounts, Defendant exercised these rights regularly between 2005 and 2008. When he would visit, Defendant would take the children to various hotels in St. George where they would swim, watch movies, play games, shop, and go out to eat. All of the children looked forward to these visits because, as B.B. testified, "[i]t was fun."

T7 After Defendant moved to Idaho his visits became less frequent, and his last visit with the children was in August 2008. Later that year, Jamie noticed that four-year old MV., her youngest daughter, was playing with naked Barbie dolls and moving them on top of each other. When she asked M.V. what the dolls were doing, M.V. replied that they were playing "kiss and suck." Jamie asked M.V. whether anyone had touched her inappropriately, but M.V. did not respond.

T8 Then, in January 2009, Jamie onee again noticed that M.V. and a friend were playing with naked Barbie dolls. Jamie sent the friend home and informed MV. that "Barbies don't play [like] that." She then talked to M.V. about "good touch, bad touch" and asked M.V. "if anyone had ever touched her ... in those areas." Initially, MV. did not respond, but later she came out of her room and stated: "Mommy, I know who touched my pee pee. It was Grandpa Mike." Jamie then approached B.B. and asked her whether Defendant had touched her inappropriately. She indicated that he had. The very next day, Jamie spoke with police and the State ultimately filed charges based upon B.B.'s testimony that Defendant had sexually abused her repeatedly during his visits with the children in St. George and that he had intentionally shown her pornography.

T9 B.B. had three opportunities to explain her allegations against Defendant: (1) in an interview with the Children's Justice Center (CJC), which was recorded and later admitted as evidence at trial; (2) at the preliminary hearing; and (8) at trial. Her allegations involved four general areas of sexual conduct. First, she testified that when she was five or six and the Larrabees were still living in Kaysville, Defendant took her into the bedroom one afternoon and had her pose nude while he took pictures of her.² Second, she testified that when Defendant would come to St. George to visit, he would usually rent adjoining hotel rooms, one for the boys and one for the girls, and that "most every night" while M.V. was asleep and the boys were in their room, Defendant would lock the doors and molest her by touching her bottom, rubbing her genitals, and performing oral sex on her. B.B. also alleged that Defendant would occasionally have her touch his penis with her hand. Third, B.B. testified that she had seen Defendant molesting M.V. in a hotel room through a sliding glass door and that Defendant would also molest M.V. at night. Finally, B.B. testified that Defendant would consistently bring pornographic videos and magazines with him into the hotels, and that he would view these materials while B.B. was in the room, sometimes commenting to her about the quality of what they were viewing together.

{10 Based on this testimony, the state charged Defendant with three counts of aggravated sexual abuse of a child (two for B.B., one for M.V.) and one count of dealing in materials harmful to a minor. At trial, Defendant testified in his own defense. He denied all of the allegations, described the difficult and combative relationship he had with Jan and Jamie, and testified that he "loved and cared for" the children. The state then tried to introduce evidence that Defendant had sexually molested Jamie, but, after excusing the jury, the trial court ruled that her testimony was inadmissible due to unreliability and instructed both Jamie and counsel not to refer to these new allegations in the presence of the jury. Nevertheless, despite the trial court's warning that reference to these allegations would lead to a mistrial, during closing arguments the prosecutor did refer to Jamie's allegations of sexual abuse. Neither defense counsel nor the court intervened, however, and Defendant was eventually convicted on the two counts of aggravated sexual abuse regarding B.B., the count of dealing in material harmful to a minor, but he was acquitted on the count of aggravated sexual abuse regarding M.V.

111 After trial, Defendant filed a motion to arrest judgment pursuant to rule 28 of the Utah Rules of Criminal Procedure, wherein he raised the same arguments he raises in this appeal, namely that the evidence used to convict him was inherently improbable; that the trial court erred by excluding expert testimony; and that the prosecutor's conduct during closing arguments was prejudicial. The district court denied Defendant's motion and upheld the convictions. Defendant now appeals. We have jurisdiction over this matter pursuant to Utah Code section 78A-3-102(8)G).

ANALYSIS

112 We first address the question of whether Defendant's motion to arrest judgment served to preserve his claim for prose-cutorial misconduct for appeal. Defendant argues that the motion, by itself, was sufficient to preserve the issue. For the reasons stated below, we disagree.

{13 Defendant also argues that defense counsel's reaction to the prosecutor's conduct at trial was ineffective. In this respect, we agree. Accordingly, we remand this case to the trial court for a new trial on all counts.

I. DEFENDANTS MOTION TO ARREST JUDGMENT WAS NOT SUFFICIENT TO PRESERVE THE ISSUE OF - PROSECUTORIAL - MISCONDUCT FOR APPEAL

114 We turn first to the issue of preservation. - Defendant argues that he properly preserved his elaim for prosecutorial misconduct because he raised it in his motion to arrest judgment. We disagree.

{15 "We have consistently held that a defendant who fails to preserve an objection at trial will not be able to raise that objection on appeal unless he is able to demonstrate either plain error or exceptional circumstances." ³ And with respect to appellate review of closing arguments, we have previously held that we "will not examine the State's closing argument if the defendant failed to timely object to it." ⁴ The reason behind this "preservation rule" is two-fold. First, the rule affords the trial court "an opportunity to address the claimed error, and if appropriate, correct it," ⁵ thereby promoting judicial economy. And second, the rule prevents defendants from foregoing an objection "with the strategy of enhancing the defendant's chanees of acquittal and then, if that strategy fails claiming on appeal that the [clourt should reverse," ⁶ thereby encouraging fairness. In order to further both policies through this rule, "we have held that the preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that exceptional cireamstances exist or plain error occurred."⁷

T{16 Defendant's motion to arrest judgment was filed almost two months after the trial concluded, which hardly counts as a "timely objection" to the statements made by the prosecutor during closing arguments. Furthermore, allowing defendants to preserve issues like prosecutorial misconduct through motions to arrest judgment would directly contradict the purposes of the preservation rule articulated above. That is, if a motion to arrest judgment was sufficient to preserve this issue, then not only would the trial court be deprived of the opportunity to address the issue at trial, but defendants could also strategically forgo an objection without the risk that by so doing they might lose their ability to appeal that particular issue. Therefore, because Defendant's counsel failed to timely object to the statements that Defendant now contests as improper, we hold that the prosecutorial misconduct issue was not properly preserved.⁸ Nevertheless, Defendant correctly argues that the prosecutor's conduct is still relevant to our analysis of his ineffective assistance of counsel claim,⁹ to which we now turn.

II DEFENSE COUNSELS FAILURE TO INTERVENE IN RESPONSE TO THE PROSECUTORS CONDUCT CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL

17 Defendant argues that his convictions should be overturned because defense coun-set's failure to object to the prosecutor's conduct during closing arguments constitutes ineffective assistance of counsel. For the reasons stated below, we agree.

118 We have repeatedly classified the burden that defendants bear when asserting an ineffective assistance of counsel claim as a "heavy" one."¹⁰ This is so because under the standard set forth in Strickland v. Washington,¹¹ the defendant must prove both of the following: "(1) that counsel's performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel's deficient performance there is a reasonable probability that the outcome of the trial would have been different.¹²

119 Furthermore, it is important to note that Strickland imposes two additional presumptions in favor of the objective reasonableness of defense counsel's performance.¹³ First, "[glenerally speaking, [there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ¹⁴ In other words, "the general presumption of objective reasonableness requires a petitioner to 'overcome the presumption that, under [all] the cireumstances, the challenged action might be considered sound trial strategy'¹⁵ See-ond, if it can be shown that "after thorough investigation of law and facts relevant to plausible options" counsel made a "strategic choice[ ]," then that choice is "virtually unchallengeable."¹⁶

1 20 In this case, neither party has argued that defense counsel's decision not to object to the prosecutor's comments during closing arguments was the result of a "strategie choice made after thorough investigation of law and facts," and thus the second presumption does not apply here. Instead, the State argues that defense counsel's decision "might be considered sound trial strategy." We disagree. Given the extremely prejudicial nature of the remarks and "under the cireumstances" of this case, we conclude that counsel's choice not to object was not a "sound trial strategy." Additionally, in light of the improper, inflammatory, and prejudicial nature of the comments, we hold that defense counsel's failure to object also falls below Strickland's objective standard of reasonableness and that it was reasonably likely the outcome of the trial would have been different but for defense counsel's performance. Therefore, we conclude that the Strickland requirements have been met here and that Defendant is entitled to a new trial on all counts due to his counsel's ineffective assistance.

A. Defense Counsel's Performance Fell Below Strickland's Objective Standard of Reasonableness

121 During trial, the State attempted to call Jamie, B.B.'s mother, as a witness to testify about how Defendant had molested her when she was eleven years old. At the suggestion of defense counsel, the trial court heard this testimony outside the presence of the jury and ruled that Jamie's testimony was inadmissible due to unreliability. The trial court then instructed both Jamie and counsel not to refer to these allegations. But despite the trial court's warning that any reference to these allegations would lead to a mistrial, during closing arguments the prosecutor made the following remarks, which, Defendant argues, were improper:

(1) When he's dragging [B.B.'s mother] back to the house in Arizona, how come she doesn't seream and say look what he's doing to me? He's sexually abusing me. He's doing all these things. Why didn't she come out herself and say [Defendant's] doing these terrible things to me? Why didn't she have that vengeance then? Why does she wait until she's not in his life at all?

(2) Well, ladies and gentlemen of the jury, [Defendant] is consistent. He's given one statement to you. One statement. [B.B.] has given three statements ... [alnd therefore, this [defense] attorney gets a chance to beat up on her. [Defendant] has given one statement the entire time. He's been preparing for [his testimony yesterday] to tell you ["I] didn't do [it."] Consistent with what? We don't have any other statement from [Defendant]. What are we supposed to compare it to?

Because we reverse based on the first statement (Contested Statement), we find it unnecessary to reach the question of whether the second also warrants reversal.

1 22 The State argues that defense counsel might not have objected to the Contested Statement because he feared that it would highlight its prejudicial nature. The State also argues that this qualified as a "sound" strategy. But given the obvious impropriety of the Contested Statement, as well as its inflammatory and prejudicial nature, under the facts of this case we cannot agree and therefore refuse to recognize such a strategy as "sound." Accordingly, we conclude that the first Strickland presumption is overcome. We further conclude that because it was unreasonable for defense counsel not to object, his performance fell below Strickland's objective standard of reasonableness.

1. It Should Have Been Clear to Defense Counsel that the Contested Statement Was Improper and Inflammatory

1 23 The fact that the Contested Statement was improper and inflammatory should have been immediately apparent to defense counsel. The first remark was, of course, the more damaging of the two because it explicitly referred to allegations of child sexual abuse that the trial court had previously ruled inadmissible. Specifically, the prosecutor referred to allegations brought by B.B.'s mother that Defendant had sexually abused her many years prior to the events at issue in this case. This was improper for a number of reasons. First, "[the Utah Rules of Professional Conduct ... prohibit an attorney from alluding to matters not introduced as evidence at trial."¹⁷ Second, when a prosecutor insinuates "that other evidence exists [he] encourages the jury to determine its verdict based upon evidence outside the ree-ord and jeopardizes a defendant's right to a trial based upon the evidence presented.¹⁸ And finally, by referring to these allegations, the prosecutor "demonstrated a complete disregard for the tribunal's rulings."¹⁹

{24 We agree with Defendant that the Contested Statement was improper because a prosecutor may not "assert arguments he knows to be inaccurate,"²⁰ especially when those arguments refer to evidence not in the record ²¹ or evidence that has been excluded by the trial court.²² Therefore, we conclude that the improper nature of the prosecutor's comments should have been obvious to defense counsel.

{ 25 In addition to recognizing their impropriety, defense counsel should have also ree-ognized that the Contested Statement was inflammatory. Within the context of a criminal trial for the sexual abuse of a child, it is difficult to conceive of a more inflammatory statement than that offered by the prosecutor-namely, that Defendant had a prior history of child sex abuse.²³ This is especially true in this case, where the jury had, to that point, heard absolutely nothing regarding such a prior offense. For these reasons, defense counsel should have been immediately aware that these comments were both improper and inflammatory.

2. Under All the Circumstances of this Case, No Sound Trial Strategy Would Condone Defense Counsel's Decision to Remain Silent, and Counsel's Decision to Do So Falls Below Strickland's Objective Standard of Reasonableness

126 Given the cireumstances of this case as outlined above, we are at a loss to conceive of a "sound trial strategy"²⁴ that would justify defense counsel's decision to remain completely silent while the prosecutor made the Contested Statement. In the face of such obviously improper and inflammatory comments, defense counsel should have immediately objected and moved for a mistrial or, at the very least, demanded a curative instruction. But by failing to do so, not only did defense counsel fail to address the prejfu-dice elicited by the Contested Statement, but he also failed to preserve the issue for appeal.²⁵ And in our view these failures are sufficiently egregious to support the conclusions that defense counsel's decision cannot be considered to be a "sound trial strategy," as required by Strickland, and that defense counsel's performance fell below Strickland's objective standard of reasonableness.

127 The State attempts to counter this line of argument by asserting that defense counsel's decision to remain silent does qualify as a "sound" trial strategy because counsel may have feared that an objection or motion might highlight or compound the prejudicial nature of the Contested Statement for the jury.²⁶ The dissent agrees and goes to great lengths to make the point that, under certain cireumstances, strategically refusing to object is an acceptable trial strategy.²⁷ But here we are not disputing the fact that there are times when counsel's decision not to object can be both strategic and proper. That proposition is axiomatic We simply conclude that this was not one of those times.

128 As the dissent acknowledges, "[the question of where to draw the line-of when to object and when to stand pat-is difficult."²⁸ And under the cireamstances of this case, we are simply drawing this line in a different place than that advocated by the dissent. We believe that, given the improper and inflammatory nature of the prosecutor's remarks, it was not reasonable for defense counsel to stand silent. Thus, contrary to what is asserted by the dissent, we are not departing from Strickland, we are applying it.²⁹ And while we recognize that it can be a legitimate strategy to remain silent due to a fear of prejudice, under the facts of this case such a strategy does not qualify as "reasonable" or "sound," since no more prejudicial accusation can be made within the context of a child sex abuse case than that the defendant has a history of sexually abusing children, which is precisely the accusation the prosecutor made here. Within the context of this case, therefore, we decline to assume, as the State and dissent urge us to do, that defense counsel failed to object because he had made a reasonable and sound strategic decision. Instead, we conclude that, given the nature of the Contested Statement, such a strategy was patently unreasonable.

129 This conclusion stems from the inflammatory and prejudicial nature of the Contested Statement itself As outlined above, prior to the prosecutor's closing argument, no evidence of any kind had been offered in support of the idea that Defendant had a history of child sex abuse. Then, the jury was blindsided by that very accusation, which, for the reasons articulated above, was both improper and inflammatory. Contrary to what is asserted by the dissent and the State, under these circumstances it would be unreasonable for counsel to fear highlighting those comments by objecting because they were already brightly highlighted by their very nature. Allegations of past sexual abuse of a child do not pass by unnoticed, particularly within the context of a criminal trial for that very crime. They shout their presence. An objection simply would not have highlighted the Contested Statement any more significantly than it already was. Failing to object under these cireumstances, therefore, cannot qualify as a "sound" trial strategy.

T 30 Furthermore, if we were to accept the State's argument that defense counsel's failure to object (based on a "fear of highlighting") qualified as a sound trial strategy in this case, it is difficult to conceive of many cases where such a strategy would not be available to the State to preclude an ineffece-tive assistance claim. As we have noted, the prosecutor's violation of the judge's order was so brazen and the accusation so obviously inflammatory that it had already been brightly highlighted by its very nature. As a result, we consider it to be clear in this case that the State's "fear of highlighting" argument fails to defeat Defendant's ineffective assistance claim.

1 31 But we think it important to note that, even in closer cases, the "fear of highlighting" argument should be analyzed with some skepticism. For at bottom, when accepted, it permits the State to engage in improper conduct without consequence. It insulates the State from objection to its misconduct by the very fact that an objection might render that misconduct even more effective by bolstering the State's case. Further, in those cases where defense counsel fails to object to improper comments by the State, the imputation of a "fear of highlighting" argument will almost always be available to the State. And were that argument too readily accepted, it would significantly undermine our ineffective assistance of counsel doctrine.

132 Finally, the "fear of highlighting" argument also puts defense counsel at a significant disadvantage at trial She faces a Hobson's choice: on the one hand, if she objects, she risks highlighting the improper comment. If she does not, she is effectively barred from raising the issue on appeal because her silence may be deemed a "sound" strategy. Thus, if the argument is too readily accepted, it could stand as a substantial obstacle to a fair trial. This is not to say it should never be accepted. Our rules of preservation are critical to the appellate process and are themselves an important mechanism for promoting fairness. It is only to say that it is an argument that always warrants careful serutiny, with the inequities we have noted in mind.³⁰

133 For the foregoing reasons, we conclude that defense counsel's decision not to object cannot, under all of the cireumstances of this case, qualify as a "sound trial strategy." Therefore, we conclude that Strick-lamd's first presumption is overcome. And because it was unreasonable for counsel not to object, we also conclude that counsel's performance fell below the objective standard of reasonableness set forth in Strickland.

B. "But For" Defense Counsel's Performance, There Was a Reasonable Probability that the Outcome of the Trial Would Have Been Different

184 We now turn to Strickland's see-ond requirement, under which the defendant must show that "but for counsel's deficient performance there is a reasonable probability that the outcome of the trial would have been different." ³¹ The Supreme Court has defined "reasonable probability" as "a probability sufficient to undermine [our] confidence in the outcome."³² Defendant argues that this requirement is met here because, in addition to the improper and inflammatory nature of the Contested Statement discussed above, it was also highly prejudicial. We agree.

4 35 In this case, the jury was being asked to render a verdiet based solely on its assessment of the credibility of two witnesses: Defendant and B.B. There was no physical, direct, or even cireumstantial evidence corroborating B.B.'s allegations. It was simply her accusations pitted against Defendant's denials. We also find it significant that the prosecutor presented no evidence (other than his improper remarks during closing arguments) that undermined Defendant's eredibility. Instead, numerous witnesses-including Jan, Defendant's ex-wife and B.B.'s grandmother-testified that it was "not in [Defendant's] nature" to do this, that Defendant was "a loving ... protector of young people," and that the kids "loved [him]," "adored [him]," and "jumped on his lap and his knee."

T36 Given these cireumstances, it should have been obvious to defense counsel that the prosecutor's comments were highly prejudicial since they went to the heart of what the jury was being asked to decide: whether Defendant's testimony was credible. But by making the Contested Statement, the prosecutor (a) improperly referred to excluded evidence and (b) implied that Defendant had committed sexual abuse previously. Given these factors, the prejudicial nature of these remarks should have been readily apparent to defense counsel and should have motivated him to object and demand a curative instruction or a mistrial.

137 But because defense counsel failed to do so, we conclude that-given the improper, inflammatory, and highly prejudicial nature of the Contested Statement-it most likely influenced the jury's deliberations. There was a "reasonable probability that ... the result of the [trial] would have been different,"³³ and our confidence in the jury's verdict is undermined. Accordingly, we conclude that both of the requirements set forth in Strickland are met here and that Defendant is entitled to a new trial on all counts due to ineffective assistance of counsel.

CONCLUSION

€38 We hold that Defendant's motion to arrest judgment was not sufficient to preserve his arguments based on prosecutorial misconduct for appeal. - Nevertheless, we hold that defense counsel's failure to do anything in response to the prosecutor's conduct constitutes ineffective assistance of counsel. We therefore vacate Defendant's convictions and remand this case to the trial court for a new trial on all counts.

Justice LEE filed a dissenting opinion. Having recused himself, Associate Chief Justice NEHRING does not participate herein; Court of Appeals Judge GREGORY K. ORME sat.

1 . Because we conclude that Defendant is entitled to a new trial on all counts due to ineffective assistance of counsel, we decline to address Defendant's other arguments in this opinion.

2 . The state did not file any charges based upon these allegations.

3 . State v. King, 2006 UT 3, ¶ 13, 131 P.3d 202.

4 . State v. Nelson-Waggoner, 2004 UT 29, ¶ 30, 94 P.3d 186.

5 . Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828 (internal quotation marks omitted).

6 . King, 2006 UT 3, ¶ 13, 131 P.3d 202 (alterations in original) (internal quotation marks omitted).

7 . State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (emphasis added).

8 . Despite its agreement with our holding that Defendant's motion to arrest judgment was insufficient to preserve the issue of prosecutorial misconduct for appeal, infra ¶ 44, the dissent nevertheless reaches the issue and employs this case as a vehicle for urging our repudiation of the doctrine of prosecutorial misconduct. See infra ¶¶ 63-80. Because the issue was not preserved, we decline to engage in this debate. See Summit Water Distrib. Co. v. Summit Cnty., 2005 UT 73, ¶ 50, 123 P.3d 437 (observing that "(olur settled policy is to avoid giving advisory opinions in regard to issues unnecessary to the resolution of the claims before us").

Suffice it to say that we are not inclined to abandon our longstanding endorsement of this doctrine, a position shared by courts throughout the country, in favor of the novel notion that we have no authority to review the actions of prosecutors directly and reverse for misconduct when necessary. See, e.g., State v. Ross, 2007 UT 89, ¶ 54, 174 P.3d 628 (setting forth the "test" for "prosecutorial misconduct" as follows: "The test of whether the remarks made by counsel are so objectionable as to merit a reversal in a criminal case is, did the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by those remarks" (quoting State v. Valdez, 30 Utah 2d 54, 513 P.2d 422, 426 (1973))); State v. Calliham, 2002 UT 86, ¶ 61, 55 P.3d 573 (stating that "[wle will reverse a jury verdict because of prosecutorial misconduct if we find the prosecutor's remarks were improper and harmful to defendant" and collecting cases in support of this doctrine); State v. Hopkins, 782 P.2d 475, 478 (Utah 1989) (stating and applying the Valdez test); State v. Troy, 688 P.2d 483, 486 (Utah 1984) (applying the Valdez test); State v. Johnson, 663 P.2d 48, 51 (Utah 1983) (applying the Valdez test and noting that "the prosecutor's conduct was improper, and would have constituted grounds for a new trial if we had not reversed these convictions for insufficiency of the evidence"), overruled on other grounds by State v. Roberts, 711 P.2d 235, 239 (Utah 1985); State v. Creviston, 646 P.2d 750, 754 (Utah 1982) (applying the Valdez test). For opinions from other jurisdictions see, for example, State v. Hughes, 193 Ariz. 72, 969 (1998) (reviewing for prosecuto-rial misconduct with a focus on whether the misconduct "affected the proceedings in such a way as to deny the defendant a fair trial"); State v. Spencer, 275 Conn. 171, 881 A.2d 209, 221 (2005) (recognizing an "inherent supervisory authority" to reverse due to prosecutorial misconduct (internal quotation marks omitted)); State v. Maluia, 107 Hawai'i 20, 108 P.3d 974, 980 (2005) (observing that "where the [prosecutor's] improper conduct is so egregious that the defendant was denied her or his right to a fair trial, we reverse the defendant's conviction"); State v. Simmons, 292 Kan. 406, 254 P.3d 97, 99 (2011) (reversing and remanding because "prosecutorial misconduct denied [the defendant] a fair trial"); Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006) (recognizing authority to reverse "only if the prosecutorial misconduct was so improper, prejudicial, and egregious as to have undermined the overall fairness of the proceedings"); State v. Mayhorn, 720 N.W.2d 776, 779-80 (Minn.2006) (reversing a conviction because "the cumulative effect of prosecutorial misconduct and evidentiary errors deprived [the defendant] of a fair trial"); McBride v. State, 934 So.2d 1033, 1038 (Miss.Ct.App.2006) ("Where prosecutorial misconduct endangers the fairness of the trial and the impartial administration of justice, we must reverse." (citing Acevedo v. State, 467 So.2d 220, 226 (Miss.1985))); Valdez v. State, 124 Nev. 1172, 196 P.3d 465, 477 (2008) (recognizing the authority to reverse for prosecu-torial misconduct when "the misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process" (internal quotation marks omitted)); State v. Smith, 599 N.W.2d 344, 353 (S.D.1999) ("We will reverse only if the violation has prejudiced the party or denied the party a fair trial.").

9 . Nelson-Waggoner, 2004 UT 29, ¶ 30, 94 P.3d 186 (stating that the State's closing argument is generally unreviewable absent objection, unless "the defendant states that the failure to object was due to ineffective assistance of counsel").

10 . See, e.g., State v. Lenkart, 2011 UT 27, ¶ 25, 262 P.3d 1.

11 . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

12 . State v. Nelson-Waggoner, 2004 UT 29, ¶ 27, 94 P.3d 186 (internal quotation marks omitted).

13 . 466 U.S. at 689, 104 S.Ct. 2052 (stating that defendants must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy" (internal quotation marks omitted)). This presumption in favor of objective reasonableness has been adopted and applied widely. See, e.g., Bullock v. Carver, 297 F.3d 1036, 1046-48 (10th Cir.2002) (discussing the presumption imposed by Strickland and collecting cases).

14 . Bullock, 297 F.3d at 1046 (second alteration in original) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (internal quotation marks omitted).

15 . Id. (alteration added) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotation marks omitted)); see also Wayne R. LaFave ET. at, Criminat Proceoure § 11.10(c) (3d ed.2007) (explaining that Strickland "places upon the defendant the burden of showing that counsel's action or inaction was not based on a valid strategic choice").

16 . Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052.

17 . State v. Young, 853 P.2d 327, 349 (Utah 1993) (citing Urah Rules of Prof'l Conpuct R. 3.4(e)).

18 . Id. (citing United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)).

19 . State v. Span, 819 P.2d 329, 334 (Utah 1991) (internal quotation marks omitted).

20 . State v. Williams, 656 P.2d 450, 454 (Utah 1982).

21 . Young, 853 P.2d at 349.

22 . Span, 819 P.2d at 334.

23 . The dissent posits that the Contested Statement might have been viewed by the jury as "a mere hypothetical" and then asserts that its impact "in this context" was "relatively minor." Infra ¶ 46. But as stated above, within the context of a criminal trial for the sexual abuse of a child, we can think of nothing more prejudicial than a bald accusation that the defendant has a history of child sex abuse. And contrary to the dissent's belief that this remark was "vague" or "hypothetical," we note that the prosecutor did not use any language typically seen in vague, "merely hypothetical" statements, such as "if" or "had." Instead, the prosecutor used the words "when," "doing," and "he is," all of which imply that what is being described is fact, not fiction. And since the jury had heard nothing of these allegations prior to the prosecutor's remark, and since, as noted above, this case turned entirely on the jury's evaluation of Defendant's credibility, we find it hard to believe that the impact of these statements during the jury's deliberations would have been "relatively minor." For the jury to have been confronted, out of the blue and at the conclusion of the trial, with the allegation that Defendant had engaged in prior child sexual abuse had to have been shocking to them.

24 . Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotation marks omitted).

25 . We note that, where misconduct is concerned, defense counsel would have had to both object and move for a mistrial or request a curative instruction before the issue would have been preserved. See, e.g., Robert J. Martineau et al., Appreciate Practice & Procedure, Cases & Materials 101 (2d ed. 2005) ("[The cases are legion in holding that if an appellant objects and the objection is sustained but he does not move for a curative instruction or request a mistrial, he has received what he asked for and cannot be heard to complain on appeal.").

26 . We have previously held that such strategic decisions do not give rise to a claim for ineffective assistance of counsel. See, e.g., State v. Ott, 2010 UT 1, ¶ 34, 247 P.3d 344 (observing that "whenever there is a legitimate exercise of professional judgment in the choice of trial strategy, the fact that it did not produce the expected result does not constitute ineffectiveness of counsel" (internal quotation marks omitted)); see also State v. Harter, 2007 UT App 5, ¶ 16, 155 P.3d 116 (finding strategic decision in failure of defense counsel to argue for curative jury instruction on implication of defendant's flight because defense counsel did not want to emphasize the fact that defendant fled the scene of the crime).

27 . See infra ¶¶ 48-49.

28 . Infra, ¶ 56.

29 . The dissent characterizes our opinion as one that is "unfaithful" to Strickland (infra ¶ 41) when, in fact, it falls squarely within Strickland's analytical framework. Our conclusion, reduced to its simplest terms, is this: in failing to object to the prosecutor's improper, explicit reference to past child sexual abuse by Defendant, defense counsel's performance fell below Strickland's objective standard of reasonableness. And the dissent's position, reduced to its simplest terms, is this: it was a reasonable strategic decision for defense counsel not to object to the prosecutor's statement, even in a child sexual abuse case where only the Defendant's and the victim's credibility was at issue. The dissent's principal argument in favor of this conclusion is that such a strategy was reasonable because defense counsel may have feared highlighting the reference to past sexual abuse, as if absent such an objection this highly inflammatory reference might have slipped by the jury unnoticed. In our view, if failing to object to the allegations made by the prosecutor in this case does not rise to the level of ineffective assistance of counsel, then it is difficult to conceive of what might.

30 . This case provides a perfect example of an inadequate "fear of highlighting" argument. Here, the State attempted to impute to defense counsel the strategy of failing to object due to a fear of highlighting in a single sentence of its brief, without any argument regarding the reasonableness of such a strategy (other than the conclusory assertion that this was a legitimate strategy), or any analysis of the facts. While we recognize that the burden of proving ineffectiveness rests on the defendant, Strickland, 466 U.S. at 689, 104 S.Ct. 2052, in our view, "the mere incantation of strategy does not insulate attorney behavior from review." Fisher v. Gibson, 282 F.3d 1283, 1296 (10th Cir.2002) (internal quotation marks omitted).

31 . Nelson-Waggoner, 2004 UT 29, ¶ 27, 94 P.3d 186 (internal quotation marks omitted).

32 . Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

33 . State v. Templin, 805 P.2d 182, 187 (Utah 1990) (internal quotation marks omitted).