State v. Tuinman

2023 UT App 83

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
STEPHANIE ANN TUINMAN,
Appellant.

Opinion
No. 20210242-CA
Filed August 3, 2023

Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 181800122

K. Andrew Fitzgerald, Attorney for Appellant
Sean D. Reyes and John J. Nielsen,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 A jury convicted Stephanie Ann Tuinman of murder,
aggravated assault, and aggravated burglary. Stephanie 1 appeals
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her convictions, asserting that her right to a speedy trial was
violated, that the trial court made certain erroneous evidentiary
rulings, and that her trial attorney rendered constitutionally
ineffective assistance. We reject all of Stephanie’s arguments and
affirm her convictions.

1. Because of the numerous Tuinman family members involved,
we refer to many of those individuals by their first names, with
no disrespect intended by the apparent informality.
State v. Tuinman

BACKGROUND 2 1F

The Attack

¶2 On the evening of April 6, 2018, Stephanie was at her
mother’s (Mother) house with several family members, including
her brother Thomas and his wife Samantha. Just days earlier,
Thomas and Samantha had contacted police to report that their
eight-year-old son (D.T.) had told them that he had been sexually
abused by a family acquaintance (Roy). Thomas and Samantha
had known Roy and his longtime life partner (Sandra) 3 for over a
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decade. The two couples were once close enough that Roy and
Sandra would sometimes babysit Thomas and Samantha’s
children. Samantha testified at trial that she believed Sandra was
“just as involved” in the abuse as Roy and had been “in the room”
when it occurred. That April evening, D.T. asked if Roy had been
arrested yet and when he was told that Roy had not been arrested,
D.T. stated, “They didn’t believe me, did they?” Thomas, who had
been drinking heavily that night, asked D.T., “Do you want dad
to go beat him up?” D.T. answered, “Yes.”

¶3 Intent on taking “justice into [their] own hands,” Thomas
and Samantha got into their minivan, perhaps with certain other
family members, and headed for Roy and Sandra’s place, leaving
Mother’s house just after 9:00 p.m. Stephanie denies
accompanying Thomas and Samantha to Roy and Sandra’s place
that night, and claims that she wasn’t involved at all in what

2. “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.
Carrera, 2022 UT App 100, n.3, 517 P.3d 440 (quotation simplified),
cert. denied, 525 P.3d 1264 (Utah 2023).

3. Roy and Sandra are pseudonyms.

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happened next. Indeed, the main issue that the jury had to decide
was whether Stephanie was present during the events in question.

¶4 Samantha testified at trial that Stephanie did get into the
minivan and join them. As Samantha described it, she and
Thomas were joined in their endeavor by not only Stephanie but
also Stephanie’s fiancé Byron and Stephanie’s sister Kristy, as well
as by a cousin, Michael. She testified that she and Thomas traveled
to Roy and Sandra’s place in the minivan, with Stephanie and
Byron in the back seat; that Kristy followed behind in her own
“little silver SUV”; and that Michael met them at Roy and
Sandra’s place in a different vehicle.

¶5 Roy and Sandra were at their house that evening, sitting at
the kitchen table after dinner when Sandra heard a noise, went to
the front door, and yelled, “Tommy!” When he looked out the
front door, Roy “could see Tommy and Sammy,” and he told
Sandra to run out the back door. Thomas hit the front door with
both fists, breaking the windows in it and then stepping through.
Roy testified at trial that “Mikey” was there too, as well as Byron
and “one of the [Tuinman] sisters”; he stated that he couldn’t tell
which one because “[t]hey look alike.” Roy ran outside, following
Sandra, but “Tommy” got to him in the backyard and “just started
putting the boots to” Roy, kicking and hitting him while he was
on the ground and later hitting him with a piece of wood that Roy
thought was a “2x4.” Roy remembered being hit or struck not only
by Thomas, but also by “Sammy,” “Mikey,” Byron, and “one of
the [Tuinman] sisters.”

¶6 Samantha testified that she “had intentions to beat
[Sandra] up,” and when she saw Sandra “going through the gate”
in the yard, she began to chase her. In Samantha’s telling, she met
up with Stephanie during the chase, and the two of them “kind of
cornered” Sandra near a fence. Samantha grabbed Sandra by the
hair, “pulled [her] down to the ground,” and then “punched her
five or six times” and “kicked her once in her back.” Samantha

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testified that Byron, Kristy, and Michael also participated in the
attack on Sandra; she saw Byron kick Sandra in the face, Michael
kick Sandra in the head, and Kristy hit Sandra with a hammer.

¶7 With regard to Stephanie, Samantha testified that
Stephanie had a baseball bat in her hand, and that Stephanie
“brought the bat up over her head, and brought it down on top of
[Sandra’s] head.” Samantha stated that she was standing only
about four feet away from Stephanie at the time, and that
Stephanie hit Sandra “very hard.” After the blow with the bat,
Sandra stopped screaming and Samantha heard her make “a
moaning sound.” Roy had been able to hear Sandra “screaming
‘help’” during “the whole time when they were kicking” him.
After the attack was over, Roy found Sandra, and she said, “They
got me. They hit me with a baseball bat in the face.”

¶8 The attackers soon left, and one of them threw the bloodied
baseball bat out the minivan window as they drove away. Roy
and Sandra were eventually discovered by a neighbor (Neighbor),
who called 911 and reported that Sandra was “bleeding really
bad” from “her nose and her mouth” and looked like she’d been
“beat up pretty bad.” Neighbor reported to the 911 dispatcher that
Sandra was saying that “the Tuinmans did this to her.”

¶9 Roy sustained bruises and cuts all over, as well as several
broken ribs and severe damage to his knee. But Sandra was hurt
even worse, and medical personnel eventually decided to “life
flight[]” her to a hospital in Provo, Utah. Roy was taken to a local
hospital, where he spent nearly two weeks recovering; the injuries
to his knee required surgery. But Sandra never left the hospital;
she died about two weeks later from what the medical examiner
determined was “a stroke which resulted from blunt injuries to
her head” that she sustained in the attack.

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The Investigation

¶10 On the night of the attack, police officers arrived at the
scene and began questioning witnesses and collecting evidence.
One officer testified that Sandra was “distressed,” “hysterical,”
and “[v]ery bloody.” That same officer described Roy as “a bloody
mess,” and observed that his hair was “tangled in blood” and that
he was “bleeding from his face pretty bad too.” While still at the
scene, both Roy and Sandra told officers that “the Tuinmans” had
committed the assault. Officers also spoke with Roy and
Sandra again after they arrived at the hospital. Roy did not
specifically identify Stephanie as one of the Tuinmans who had
been at the house on the night in question because, as he
explained at trial, he could not tell the Tuinman sisters apart. But
at the hospital, Sandra apparently made certain statements to
the effect that Stephanie had been one of the Tuinman sisters
who had participated in the attack; in particular, Sandra stated
that the Tuinman sister who was dating Byron was among her
attackers.

¶11 In addition to speaking with Roy and Sandra, officers also
began looking for and questioning members of the Tuinman
family that night. At first, officers believed that the only Tuinmans
involved in the attack were Thomas, Samantha, Byron, and a
different Tuinman sister (Amy), who officers mistakenly believed
was the sister in a relationship with Byron. So when an officer
who had been instructed to look for Amy encountered Stephanie
in a traffic stop at about 1:00 a.m. later that night, he simply asked
her some questions largely aimed at ascertaining Byron’s
whereabouts. In responding to those questions, Stephanie denied
knowledge of or participation in the events at Roy and Sandra’s
house that night. She claimed to have left Mother’s house that
evening because she had been “bleeding really heavy” and had
gone to her house to “change [her] tampon”; she claimed that, by
the time she returned, her family members had come back and she
did not know where they had gone. Stephanie also claimed that

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Byron did not go with Samantha and Thomas that night. During
this initial traffic stop encounter, the officer asked Stephanie for
her cell phone; she had it with her at the time and provided it to
him. But because the officer did not at that point consider
Stephanie a suspect, he did not retain or search the phone, and
returned it to her after the encounter was over.

¶12 At various points during that first night, officers also
interviewed (among others) Samantha, Amy, and Byron.
Samantha told officers that she would only “talk about [her own]
involvement,” a statement officers took to mean that others were
involved as well. But Samantha would not state that anyone
else—other than she and Thomas—was involved. In fact, when
asked if anyone else had been there that night, she said no. Amy
denied any involvement at all. But Byron told officers that he and
Stephanie were in the minivan with Thomas and Samantha, that
they were at Roy and Sandra’s place on the night in question, and
that Stephanie had brought a baseball bat.

¶13 After conducting some of the other interviews—most
notably Byron’s—officers came to view Stephanie (rather than
Amy) as a potential suspect, and asked to speak with her again,
and she willingly complied. Officers conducted a second
interview with Stephanie at about 4:00 a.m. at a police station,
some three hours after their previous encounter. Wearing the
same gray sweatshirt and black sweatpants as earlier, Stephanie
again denied any involvement in the attack on Roy and Sandra.
Officers who interacted with Stephanie testified that they saw no
blood on Stephanie’s clothing or on the places where she sat.

¶14 Officers had a third pre-arrest encounter with Stephanie
the next night, on April 8, in connection with another traffic stop.
During this encounter, officers asked to see her cell phone that she
had willingly let them look at less than 48 hours earlier, but
Stephanie did not have it and claimed to have lost it.

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Pretrial Proceedings

¶15 On April 9, the State charged Stephanie with attempted
aggravated murder, aggravated assault, and aggravated
burglary, each with a “gang” enhancement asserting that the
crimes had been committed “in concert with two or more
persons.” 4 Later, after Sandra died, the State amended the first
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count to aggravated murder, a potentially capital offense. Six
months after that, however, the State amended the count again,
this time from aggravated murder to simple murder, rendering
the case no longer a potential capital case. From that time forward
until trial, Stephanie faced three charges: murder (a first-degree
felony), aggravated assault (a second-degree felony), and
aggravated burglary (a first-degree felony).

4. That same day, the State also filed charges against Thomas,
Samantha, Byron, and Michael. About seven months later, the
State filed charges against Kristy. All six of the cases have now
been resolved, at least at the trial level. As discussed herein,
Samantha pled guilty to a reduced charge of manslaughter in
August 2019, but was not sentenced until June 2021. See State v.
Samantha Tuinman, No. 181800121 (Eighth District Docket).
Kristy’s case went to trial in October 2020, and Kristy was
convicted; her case is currently on appeal. See State v. Whitchurch,
No. 20200938-CA. Shortly after Kristy’s trial, Byron pled “guilty
and mentally ill” to two counts. See State v. Thompson, No.
181800123 (Eighth District Docket). In early March 2021, Michael’s
case went to trial and he was acquitted. See State v. Michael
Tuinman, No. 181800120 (Eighth District Docket). Just two weeks
later, in late March 2021, this case went to trial, resulting in
Stephanie’s conviction. And in April 2021, after all other co-
defendants had been tried or had reached a plea agreement,
Thomas pled guilty to three counts. See State v. Thomas Tuinman,
No. 181800119 (Eighth District Docket).

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¶16 Nearly three years elapsed between the filing of the initial
information and the trial. Certain delays were involved with the
case being—for about six months—a potential capital case;
qualified capital defense counsel had to be located and retained.
And even after the case was no longer classified as potentially
capital, the case still involved serious charges involving five (and
eventually six) co-defendants, a situation that presented
difficulties in terms of trial presentation 5 and scheduling and that,
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in addition, placed something of a strain on the judicial and law-
enforcement resources of a relatively small county.

¶17 After some initial delays associated with getting counsel
appointed for all the defendants and with addressing some
discovery issues, in August 2018 the trial court scheduled a
preliminary hearing to take place in November 2018. At this
August hearing, Stephanie’s attorneys (Trial Counsel) orally
“invoke[d] the right to a speedy trial for the record.”

¶18 But a few days before the preliminary hearing was to occur,
it was postponed because the State amended the information (to
eliminate the capital charge) and provided new discovery to Trial
Counsel. The preliminary hearing occurred, as rescheduled, in
January 2019, and the magistrate later—in May 2019, after the
parties submitted briefing—issued a written ruling binding
Stephanie over for trial on all charges.

¶19 The State’s main witness at the preliminary hearing was
Samantha. Immediately after the attack, Samantha had been
unwilling to state that anyone other than she and Thomas was

5. See generally Bruton v. United States, 391 U.S. 123 (1968) (holding
that, in a criminal trial with two or more defendants, a co-
defendant’s out-of-court statement implicating the defendant’s
guilt cannot be offered against the defendant because it violates
the defendant’s Sixth Amendment right to confront and cross-
examine witnesses).

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involved. But in November 2018, Samantha had agreed to discuss
the involvement of others; at the preliminary hearing, she testified
that the State had offered to allow her to plead guilty to a “lesser
charge” in exchange for “giving testimony in this case.” And later,
at trial, she explained that she made the decision to tell “the rest
of the story” after D.T.—who was apparently “carrying the
weight of” the situation—tried to harm himself. In any event, she
submitted a written statement that was admitted into evidence at
the preliminary hearing in which she stated, among other things,
that Stephanie had not only been present during the attack but
that Stephanie had hit Sandra on the head with a baseball bat.

¶20 After bindover, the court held a scheduling conference to
discuss setting a trial date. But the court did not set one at that
hearing, because attorneys for some of the defendants indicated
they would file motions to sever the various trials. Indeed, just
days later, Trial Counsel filed such a motion on Stephanie’s
behalf, asking the court to “sever her case from those of her co-
defendants” so that “a jury can make a decision based upon the
actual evidence and not based upon the fact that there are a whole
bunch of people charged in this case.” At oral argument on the
motion, the court noted that the motions to sever could cause a
“big delay” in getting the case to trial, but Trial Counsel
nevertheless thought Stephanie’s motion to sever was “terribly
important because [Stephanie’s] defense is she wasn’t there” and
most of “the other defendants who were there are admitting it.”
At the end of the oral argument on the motion, the court reserved
ruling “due to other motions in limine and additional evidence
that was being developed by the State that could affect the motion
to sever.” And a few weeks later, Trial Counsel filed a motion to
change venue. Thus, by these motions, Stephanie asked that her
trial be held separately from the other co-defendants and that it
take place in a different county.

¶21 Several months passed, during which the parties updated
their briefing on the motions and resolved several discovery

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issues. At a hearing held in December 2019, even before issuing a
ruling on the motion to sever, the court set a trial date for at least
one trial, stating that—no matter how the motion to sever was
decided—it could “go ahead and hold the trial for the defendants
that haven’t asked for severed trials.” The date the court selected
for the first trial was August 2020. But because it hadn’t yet been
determined whether the trials would be severed, it was unclear
whether Stephanie’s trial would occur on that date.

¶22 In early March 2020, Trial Counsel filed fourteen separate
motions in limine, chiefly regarding evidentiary issues. Most
notably for purposes of this appeal, Stephanie asked the court to
exclude certain statements Sandra made to others on the night of
the attack, including statements indicating that Stephanie had
been present. And she asked the court to exclude from her trial all
statements made by the co-defendants, including Byron. In this
latter motion, she cited Confrontation Clause concerns with
regard to all co-defendant statements, and raised an additional
ground for exclusion that applied only to statements made by
Byron: that he was allegedly incompetent when he made the
statements in question.

¶23 Shortly after these motions were filed, the worldwide
COVID-19 pandemic entered the scene. On March 13, 2020,
Utah’s chief justice issued an administrative order postponing
all “non-essential” court hearings. 6 And in June 2020, the chief
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justice issued another administrative order suspending jury
trials in all counties in the “red phase,” noting that courts—even
more so than other branches of government—needed to be
cautious because “courts are in the unique position of having the

6. See Administrative Order for Court Operations During
Pandemic, Utah Supreme Court (Mar. 13, 2020),
https://legacy.utcourts.gov/alerts/docs/20200311%20-%20Pande
mic%20Administrative%20Order.pdf [https://perma.cc/3EGH-3
V3Z].

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authority to compel individuals to appear” in court. 7 Once a
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county moved to the “yellow phase” or the “green phase,” jury
trials could resume. At the time, Duchesne County was in the red
phase.

¶24 In April 2020, after the State withdrew its objection to the
various motions to sever, the trial court granted Stephanie’s
motion to sever, ordering that her trial be held “separately from
all co-defendants.” But the court denied the motion to change
venue, ruling that the trials would take place in Duchesne County.
The court then scheduled individual trial dates for the various
defendants, scheduling Thomas’s trial first, then Michael’s, both
in August 2020 during the dates previously set. The court then set
Stephanie’s trial for September 2020, followed by Kristy’s and
Byron’s, each of which was to take place in October.

¶25 With regard to the evidentiary motions Stephanie had
filed, the court ruled inadmissible all of the statements Sandra
had made on the night of the attack, including her
statement identifying Stephanie, and it ruled—presumably on
Confrontation Clause grounds, although the ruling was non-
specific—that “all out of court statements made by” Thomas,
Byron, Kristy, Amy, and Michael “will not be admitted at trial.”
The court made no mention of Stephanie’s argument that
Byron’s statements should be excluded due to his alleged
incompetence.

¶26 Several months before trial, Trial Counsel filed a notice of
alibi, indicating that Stephanie would be offering an alibi defense,
and stating that two witnesses would provide alibi evidence: Amy

7. See Administrative Order for Court Operations During
Pandemic, Utah Supreme Court (June 26, 2020),
https://legacy.utcourts.gov/alerts/docs/20200626%20-%20Amend
ed%20Pandemic%20Administrative%20Order.pdf [https://perma
.cc/9KE8-9U7R].

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and a medical expert. Notably, the notice of alibi did not list
Mother as a potential alibi witness.

¶27 On July 29, 2020, about six weeks prior to the scheduled
trial date, Trial Counsel filed a document captioned Speedy Trial
Invocation, purporting to “invoke[]” Stephanie’s “right to a
speedy trial pursuant to” the U.S. and Utah Constitutions, and
opposing “any further delays in proceeding to trial.” Stephanie
also filed an affidavit offering to waive her right to a jury trial and
have her case tried to the bench.

¶28 Soon thereafter, in mid-August 2020, the court, “upon
its own initiative,” struck Stephanie’s September 2020 trial
date, noting that Duchesne County was “still operating under
the Red Phase of the pandemic order” and that the court
was therefore prevented, by the chief justice’s administrative
order, from conducting “any criminal jury trials.” And the court
refused to “approve a waiver of the jury in this case” in order to
hold a bench trial by videoconference, citing rule 17(c) of the Utah
Rules of Criminal Procedure, and later explaining that, in this
case, it was “unwilling” to “make credibility determinations in a
remote setting.” See Utah R. Crim. P. 17(c) (“All felony cases shall
be tried by jury unless the defendant waives a jury in open court
with the approval of the court and the consent of the
prosecution.”).

¶29 At an ensuing scheduling conference in mid-September,
the court stated that it had been authorized by “the judicial
council to hold jury trials in Duchesne County now,” and that it
was planning to go ahead with Kristy’s trial, as previously
scheduled, in early October. The court even noted that Kristy’s
trial would “be the first trial in the State of Utah” following the
pandemic hold, and that “everybody” in the Utah legal
community would be “looking to us now to see how that works

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out.” 8 The court then offered Stephanie a November 2020 trial
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date, noting that Stephanie’s criminal case would take priority
over all civil cases on the court’s docket, and stating that if the
court “vacated” all the civil matters on its November docket as
well as perhaps one of its criminal law and motion calendars, it
could fit Stephanie’s trial into its November 2020 calendar, to
begin on November 4. Trial Counsel was unfortunately
unavailable for those November dates; the court then scheduled
Stephanie’s trial to take place in mid-December 2020, to follow on
the heels of Michael’s.

¶30 After the court struck the September 2020 trial date, Trial
Counsel filed a motion to dismiss the entire case, asserting that
Stephanie’s right to a speedy trial had been violated. In that
motion, Stephanie did not argue that Utah’s chief justice lacked
the authority to issue an administrative order putting criminal
jury trials on hold; indeed, she asserted that “the pandemic can
only be tangentially blamed for the delays.” Instead, Stephanie
pointed to the “scheduling chaos” that had resulted from six co-
defendants being tried in a small jurisdiction, and asserted that
“she cannot be held to account for the time lapse.” After full
briefing, the court denied Stephanie’s motion to dismiss in a
written ruling, concluding that the four-factor balancing test
mandated by Barker v. Wingo, 407 U.S. 514 (1972), did not point to
a violation of Stephanie’s constitutional right to a speedy trial. The
court determined that the delays in getting the case to trial were
“justified” and had been caused by “the complexity and

8. Kristy’s trial went forward as scheduled in October 2020, and it
was indeed the first jury trial to be conducted anywhere in Utah
after the pandemic hold. See Jessica Miller, Utah Held Its First Jury
Trial Since the Pandemic Started, Salt Lake Tribune (Oct. 24, 2020),
https://www.sltrib.com/news/2020/10/24/utah-held-its-first-jury
[https://perma.cc/F6TJ-PHMR].

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seriousness of the charges, the amount of discovery requests and
pre-trial motions, and, ultimately, the COVID-19 crisis.”

¶31 On November 24, 2020, just three weeks before Stephanie’s
trial was set to start, the court again struck the trial date for
COVID-related reasons. It noted that, since it set the trial date
back in September, “the transmission of COVID-19 throughout
the State increased dramatically,” and that Duchesne County was
back in the red phase. The court informed the parties that it had
been working with “medical experts who had been advising the
courts” to develop “pilot protocols” that would enable jury trials
to go forward even “under condition red.” But given the severity
of the recent spike in COVID-19 transmission, those experts had
“recommended that the courts not proceed with the pilot
program” because they “could not be confident that the protocols
could safeguard court participants.” At a scheduling conference
held in mid-December, the court rescheduled Stephanie’s trial,
this time scheduling it to begin on March 24, 2021.

¶32 In preparation for trial, Trial Counsel became aware that
Samantha—shortly after being arrested in April 2018—had a
conversation with an attorney (Attorney) who had, at the time,
been representing Michael. 9 Attorney had gone to the jail to visit
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Michael, but jail personnel mistakenly brought Samantha—
instead of Michael—to the interview room. Attorney explained to
Samantha that he was not her lawyer, but Samantha expressed a
desire to speak with him anyway, and she provided Attorney
with a version of events that was roughly consistent with what
she had told officers earlier: that she and Thomas were the only
ones who had participated in the attack, and that no other family
members were present. Attorney had offered this testimony at
Kristy’s trial in October 2020; he had been called at the behest of

9. The facts in this paragraph come from Attorney’s declaration
that is not part of the record, but was submitted in connection
with Stephanie’s rule 23B motion. See Utah R. App. P. 23B(a).

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Kristy’s attorneys, who used his testimony in an effort to impeach
Samantha’s story—relayed at Kristy’s trial—that Kristy had been
present and participated in the attack.

¶33 In the months leading up to Stephanie’s trial, some of the
other family members’ cases were resolved in various ways.
Kristy was convicted at her October 2020 trial. Just days after that
verdict, Byron pled “guilty and mentally ill” to certain charges.
And in early March 2021, just two weeks prior to the scheduled
start of Stephanie’s trial, a jury acquitted Michael on all counts.

The Trial

¶34 Stephanie’s jury trial began on March 24, 2021. In support
of its case-in-chief, the State presented testimony from (among
other witnesses) Samantha, Roy, various law enforcement
officers, the medical examiner who performed the autopsy on
Sandra, and Byron.

¶35 Samantha testified as she had at the preliminary hearing:
that Stephanie had been present at the attack and had participated
in it by, among other things, hitting Sandra over the head with a
baseball bat. The State acknowledged that this account differed
from what Samantha originally told officers and from what she
had told Attorney at the jail; the State preemptively asked
Samantha about these inconsistencies, and she explained how
D.T.’s struggles motivated her to tell “the truth of what had
happened.” She acknowledged that, in return for her testimony
against her co-defendants, the State offered her a plea of
manslaughter. When asked about Stephanie’s health, Samantha
stated that her sister-in-law has “menstrual bleeding issues” and
occasionally has to use oxygen, but Samantha testified that
Stephanie did not seem to have had trouble with ordinary
activities on April 6.

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¶36 On cross-examination, Trial Counsel followed up with
Samantha about her interaction with Attorney. Samantha
confirmed that she spoke with Attorney before meeting with her
own lawyers, and that Attorney “asked [Samantha] very
specifically who was present on the night of the attack.” Samantha
testified that she did not specifically recall what her answer was,
but she was “pretty sure [she] told him the same thing that [she]
had told the officers.” Trial Counsel also asked Samantha about
her plea arrangement, and Samantha explained that D.T. was
struggling a lot, that he “needs his mother,” and that she was
willing “to do whatever” it took to be with her son.

¶37 A detective (Detective) who had interviewed both
Samantha and Stephanie on the night of the attack testified that
when Samantha first spoke to him, she was hesitant and her
statement that she would “only talk about [her] involvement” led
him to believe that there were more people involved than just
Samantha. He recounted for the jury that, when he interviewed
Stephanie, she claimed she never went to Roy’s house and was in
the bathroom at Mother’s house when her siblings left. Detective
also testified that, at one point early in his interview with
Stephanie, he told her he thought she was lying because of “the
statements that” officers had already taken.

¶38 On cross-examination, Trial Counsel asked Detective about
his statement to Stephanie, during the interview, that he thought
she was lying, and suggested that Detective—by making that
statement—was employing aggressive interview techniques.
Detective replied that calling a suspect a liar during an interview
“could be” a tactic, but he clarified that the “main goal is to try to
get to the truth.” Trial Counsel then asked Detective, “Then why
would you call somebody a liar right out of the gate?” Detective
replied, “Because I didn’t think I was getting the truth.”

¶39 After this exchange, the State asked for a sidebar before
beginning its redirect examination of Detective. The trial court

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then ruled—outside the presence of the jury—that Trial Counsel,
by asking Detective about his reasons for calling Stephanie a liar,
had “opened the door” to the previously excluded statements of
Sandra and Byron to come in for their “effect on the hearer.” The
court explained that its earlier ruling excluding those statements
had caused the State to “steer[] clear of finding out why
[Detective] would want to investigate Stephanie,” but Trial
Counsel “went on to extensively question why he would call
[Stephanie] a liar and made a lot of hay out of him calling her a
liar and investigating her with no evidence or no reason to even
question her.” Detective was “bound by [the court’s] prior ruling
to not discuss any hearsay” so Trial Counsel’s questioning
“paint[ed] the picture that [Detective] was doing something
improper.” Thus, the court ruled that the previously excluded
hearsay statements from Sandra and Byron became admissible to
explain Detective’s skepticism of Stephanie’s account.

¶40 On redirect, Detective then explained to the jury why he
thought Stephanie had been less than truthful during the
interview. He testified that, at the time he interviewed Stephanie,
he already knew about two pieces of evidence: (1) Sandra’s
statement at the hospital that the Tuinman sister who was dating
Byron had been among her attackers, and (2) Byron’s statement
that Stephanie rode with him, Thomas, and Samantha to Roy’s
house the night of April 6. Detective explained that he called
Stephanie a liar because her answers to his questions were
inconsistent with Sandra’s and Byron’s statements.

¶41 The medical examiner testified that Sandra died from “a
stroke that resulted from blunt injuries that she sustained during
an assault.” Two of the bruises on Sandra, he explained, were
“pattern injuries that are consistent with having been inflicted by
a particular type of object.” He also stated that Sandra had bruises
that looked like she had been hit with a “rod-like object.”

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¶42 Finally, the State called Byron to testify. In pretrial
proceedings, Trial Counsel had tried to prevent Byron from
testifying not only because he was a co-defendant, but also
because he had been deemed incompetent for a brief period. 10 As
9F

noted above, Byron’s statements were initially deemed
inadmissible, presumably on Confrontation Clause grounds. But
any Confrontation Clause concerns had been resolved by Byron’s
October 2020 plea, and Trial Counsel did not make or renew, at
trial, any objection to Byron’s testimony. Instead, Trial Counsel
attempted to use Byron’s supposed incompetency as a basis to call
his credibility into question: he raised concerns with Byron’s
veracity in opening statement, on cross-examination, and in
closing argument, arguing that Byron had a low IQ, that he was
easily manipulated, that he heard voices, and that he had pled
“guilty but mentally ill” to the lesser charge of manslaughter.

¶43 In his trial testimony, Byron initially denied that Stephanie
went to Roy’s house the night of the attack. The State impeached
that testimony, however, with the prior inconsistent statement
Byron had made in his police interview, which statement was
admitted into evidence and played for the jury; in that statement,
Byron said that “[m]e, Samantha, and Stephanie” were in the
minivan with Thomas that night. After listening to his interview
statement, Byron then testified that he had in fact told police that
Stephanie was also in the van with them and that “she brought
the bat” with her, but he maintained that he had been
“intimidated” into saying that.

¶44 Stephanie called her sister Amy to testify as an alibi
witness. Amy testified that on the evening of April 6, she helped
clean up blood that was “everywhere” when Stephanie

10. At a court hearing on March 4, 2019, Byron was determined to
be incompetent to assist in his own defense. By June 3, 2019,
however, he was deemed competent to stand trial and was
ordered to proceed to trial in his case.

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hemorrhaged, and that Stephanie went home to get cleaned up a
couple of times, implying that Stephanie did not go to Roy and
Sandra’s house because Stephanie was only gone for about “10, 15
minutes.” Amy could not remember, however, the precise time
when Stephanie or her siblings came and went that evening.

¶45 During trial, Stephanie asked the court for permission to
present Mother as an additional alibi witness. The State objected,
noting that Mother was not listed on Stephanie’s notice of alibi.
Trial Counsel did not provide a reason why Mother was not listed
on the notice. The court ruled that Mother could not offer
evidence about a phone call Stephanie claimed to have made on
her way to Mother’s house or about the timing of when Stephanie
came back to the house. Mother did eventually testify, though,
about Stephanie’s medical issues, claiming that Stephanie had
bleeding problems “[e]very day, every month,” and that she had
been having such problems on April 6.

¶46 In closing, Trial Counsel urged the jury to consider how
“Samantha, by her own admission, has lied multiple times
throughout these proceedings and throughout this case.” He
reminded them that Samantha “told [Attorney] it was just her and
Tommy” but, when offered a deal for a lesser sentence, “she began
to implicate other people” and “began to tell the new narrative.”
In its rebuttal argument, the State acknowledged that Samantha
had said different things at different times about who was present
at the attack, and that “[t]here’s disagreement on how credible
[Samantha] is.” The State urged the jury, however, to credit
Samantha’s later version of events, the one she told after “what
happened with her son.”

¶47 After deliberation, the jury found Stephanie guilty of
murder, aggravated assault, and aggravated burglary, each with
a gang enhancement. Immediately after the verdict, the State
asked that sentencing happen quickly, stating that it was only
going to “request concurrent sentencing with just the . . .

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minimum mandatory as part of the sentence,” and that, in its
view, there was no need for a presentence report. The State further
explained that there was to be a “change in the law . . . in May,”
just a few weeks hence, that (if applicable) would make
Stephanie’s mandatory minimum sentence shorter on the murder
and burglary charges. The State therefore asked that Stephanie’s
sentencing take place before the new statute went into effect. Trial
Counsel did not object to the State’s request, at that time saying
simply that he was “not aware of the change in the law” and
therefore “not prepared” to address it.

¶48 Sentencing occurred on April 12, before the new statute
took effect. Trial Counsel lodged no objection to the timing of the
sentencing. At the conclusion of the sentencing hearing, the court
sentenced Stephanie to concurrent prison terms, including a term
of twenty years to life on the murder charge and a term of ten
years to life on the aggravated burglary charge.

ISSUES AND STANDARDS OF REVIEW

¶49 Stephanie appeals, raising five issues for our consideration.
First, she contends that the trial court violated her right to a
speedy trial. “Whether a defendant’s right to a speedy trial has
been violated presents a question of law, which we review for
correctness.” State v. Steele, 2010 UT App 185, ¶ 14, 236 P.3d 161.

¶50 Second, Stephanie challenges the trial court’s refusal to
allow Mother to offer alibi testimony. A trial court’s exclusion of
“an alibi witness because the defense had failed to timely notify
the prosecution” is reviewed for abuse of discretion. See State v.
Perea, 2013 UT 68, ¶¶ 87–88, 322 P.3d 624.

¶51 Third, Stephanie challenges the trial court’s ruling that
Trial Counsel opened the door to admission of previously
excluded statements. “Trial courts have broad discretion to admit

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or exclude evidence, and we will disturb an evidentiary ruling
only for an abuse of discretion.” State v. Samora, 2021 UT App 29,
¶ 18, 484 P.3d 1206 (quotation simplified), aff’d, 529 P.3d 330 (Utah
2023). And relatedly, Stephanie asserts that, if Trial Counsel
opened the door to admission of these statements, he rendered
constitutionally ineffective assistance. “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).

¶52 Fourth, Stephanie contends that the trial court erred in
moving forward with sentencing before a statutory change took
effect. If this challenge were preserved for appellate review, we
would review the court’s ruling for abuse of discretion. See State
v. Grover, 2022 UT App 48, ¶ 31, 509 P.3d 223. But in this instance,
Stephanie recognizes that her challenge is unpreserved for our
review, and she asks us to apply the “exceptional circumstances”
exception to our preservation rules.

¶53 And finally, in addition to the issues raised on direct
appeal, Stephanie has also filed a motion, pursuant to rule 23B of
the Utah Rules of Appellate Procedure, asking us to remand the
case to the trial court in order to supplement the record with
evidence to support a separate claim of ineffective assistance of
counsel, namely, that Trial Counsel was ineffective for choosing
not to call several witnesses at trial, including Attorney. “A
remand under rule 23B is available 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.” State v. Florez, 2020 UT App 76, ¶ 16, 465 P.3d 307
(quotation simplified).

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ANALYSIS

¶54 We discuss Stephanie’s five claims in turn. We first
evaluate her assertion that the trial court violated her right to a
speedy trial. We then analyze whether the court erred in
preventing Mother from offering alibi testimony. Next, we
discuss the issues Stephanie raises regarding the court’s ruling
that Trial Counsel “opened the door” to admission of previously
excluded statements. We then examine Stephanie’s complaint
about the timing of her sentencing. And finally, we assess the
merits of Stephanie’s rule 23B motion. For the reasons discussed,
we reject all of Stephanie’s claims.

I. Speedy Trial

¶55 “The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to a speedy and public
trial.” State v. Thompson-Jacobson, 2022 UT App 29, ¶ 9, 508 P.3d
604 (quotation simplified). But this “right is amorphous, slippery,
and necessarily relative as it must take into account the
defendant’s rights as well as the rights of public justice.” State v.
Samora, 2022 UT App 7, ¶ 18, 504 P.3d 195 (quotation simplified),
cert. denied, 525 P.3d 1254 (Utah 2022).

¶56 When assessing speedy trial claims, courts follow the four-
factor test set forth by the United States Supreme Court. Id. ¶ 19;
see also Barker v. Wingo, 407 U.S. 514, 530 (1972). The four Barker
factors are (1) “[t]he length of delay,” (2) “the reason for the
delay,” (3) “the defendant’s assertion of his right,” and
(4) whether the delay resulted in “prejudice to the defendant.”
Barker, 407 U.S. at 530.

A

¶57 The first factor—length of delay—constitutes a “double
enquiry.” See Doggett v. United States, 505 U.S. 647, 651 (1992). As

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an initial matter, we must inquire whether “the interval between
accusation and trial has crossed the threshold dividing ordinary
from presumptively prejudicial delay.” Id. at 651–52 (quotation
simplified). And here, that line has been crossed. The one-year
milestone is generally considered to “mark[] the point at which
courts deem the delay unreasonable enough to trigger the Barker
enquiry.” Id. at 652 n.1. Because the delay in this case is nearly
three years, we must engage in the full four-factor assessment of
whether Stephanie’s speedy trial rights were violated.

¶58 In addition, where—as here—the delay exceeds the one-
year threshold, we must engage in the second part of the first
factor’s “double enquiry” and “consider, as one factor among
several, the extent to which the delay stretches beyond the bare
minimum needed to trigger judicial examination of the claim.” Id.
at 652. Three years is certainly longer than the usual criminal case
takes to reach trial. And to that extent, this factor weighs at least
somewhat in Stephanie’s favor. But the reason for the delay is
much more important in a speedy trial analysis than a rote
counting of the number of days of delay and, as we explain
immediately below, much of the delay in this case can be
attributed to Stephanie and not much of it can be attributed to the
State. In light of these realities, we do not weigh this first factor
very heavily in Stephanie’s favor.

B

¶59 The second Barker factor—the reason for the delay—“is a
crucial factor” that is especially important; it has been described
as “the flag all litigants seek to capture.” State v. Hintze, 2022 UT
App 117, ¶ 29, 520 P.3d 1 (quotation simplified), cert. granted, 525
P.3d 1279 (Utah 2023). If a defendant is responsible for the delay,
then the State cannot be said to have violated that defendant’s
right to a speedy trial. See, e.g., United States v. Koerber, 10 F.4th
1083, 1109 (10th Cir. 2021) (refusing to find a speedy trial violation
where the defendant “intentionally delayed his case in order to

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try and obtain a dismissal with prejudice”). But even where the
State is responsible for some delay, it matters whether the State
delayed the case on purpose or not. See Barker, 407 U.S. at 531
(noting that “[a] deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against the
government,” but that “more neutral reason[s] such as negligence
or overcrowded courts should be weighted less heavily”).

¶60 In this case, various delays can be attributed to (1) the
pandemic, (2) the State, and (3) Stephanie, and our first task, in
assessing this important second factor, is to ascertain how much
of the 1,071-day time lapse is attributable to each of the three
potential agents of delay. The State asserts that 641 days of delay
are attributable to Stephanie, largely due to her motion to sever
and associated litigation; 233 days to “either the prosecution or
routine court delays”; and 197 days to the pandemic. Stephanie
does not take issue with the State’s calculations and, from our
review of the record, the State’s calculations appear to be sound. 11
10F

¶61 With regard to the 233 days of delay attributable to either
the State or to “routine court delays,” Stephanie makes no
allegation that any of this delay was intentional on the part of the
State; in fact, she does not even allege that any of this delay was
due to any negligence by the State. We find persuasive the State’s
contention that all of this delay “resulted from the complications

11. If anything, the State’s calculation regarding pandemic-related
delays is conservative. Recall that the court offered the parties a
November 2020 trial date, but that date was not acceptable to Trial
Counsel, resulting in the December 2020 setting that was
eventually canceled due to the pandemic. Assuming that the
November-to-December delay should be laid at the feet of
Stephanie rather than the pandemic, the pandemic-related delay
would be more like 160 or 170 days and Stephanie’s delay more
like 660 or 670 days. But for purposes of our analysis, we accept
the State’s numbers as accurate.

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of having a capital case” located in a small jurisdiction “with
multiple co-defendants.” As the State points out, Trial Counsel
“either stipulated to that delay or did not oppose it.” On this
record, we detect absolutely no gamesmanship, tactical delay, or
even negligence on the part of the State. While these 233 days of
delay must, by definition, be weighed against the State, under
these circumstances they weigh only lightly so.

¶62 With regard to pandemic-related delay, Stephanie asserts
that all 197 of these days should be held against the State. But she
can hardly blame Duchesne County prosecutors, or even the trial
court, for the delays attributable to a global pandemic, or for
following administrative orders handed down by Utah’s chief
justice or the judicial council. Instead, she attempts to blame the
chief justice and the judicial council, arguing here—for the first
time on appeal—that the Utah judiciary had no authority to issue
administrative orders suspending jury trials during the COVID-
19 pandemic. But this assertion is unpreserved; Stephanie did not
argue, before the trial court, that the court could or should ignore
the chief justice’s administrative orders, or that the court was
violating her constitutional rights by following them. Instead, she
made different arguments at trial, in particular stating that “the
pandemic can only be tangentially blamed for the delays.” And
because Stephanie does not ask us to apply any of the exceptions
to our preservation doctrines in this respect, we do not further
discuss her argument that the trial court may have violated her
constitutional rights by hewing to orders handed down from the
chief justice or the judicial council. 12
11F

12. Although we do not further discuss the issue, the State asserts
that nearly all courts to have considered the matter “have rejected
claims that the pandemic did not give courts authority to suspend
or toll speedy trial rights.” See Lemons v. State, No. 10-21-00136-
CR, 2022 WL 1259198, at *4 (Tex. Ct. App. Apr. 27, 2022); Belcher
(continued…)

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State v. Tuinman

¶63 Indeed, it seems to us that delays associated with a once-
in-a-century worldwide pandemic should not in fairness be held
against the State in a Sixth Amendment speedy trial analysis. This
view comports with that of nearly all courts to have considered
the matter, see, e.g., United States v. Chu, No. 19-cr-0678-WJM, 2022
WL 475615, at *4 (D.N.J. Feb. 16, 2022) (concluding that pandemic-
related delays were attributable to “nobody at all” and therefore
did not weigh in favor of finding a speedy trial violation), either
under the Sixth Amendment 13 or under specific speedy trial
12F

v. State, No. 82255, 2022 WL 1261300, at *4 (Nev. Apr. 27, 2022);
State v. Malachi, No. 1912018583, 2021 WL 4805515, at *2–3 (Del.
Super. Ct. Oct. 14, 2021); State v. Rodriguez, No. 1811005093, 2021
WL 1221461, at *2–3 (Del. Super. Ct. Mar. 30, 2021); People v.
Mayfield, 2021 IL App (2d) 200603, ¶¶ 16–25, 186 N.E.3d 571.

13. See Rodriguez, 2021 WL 1221461, at *3–6 (explaining that
COVID-related delay was not attributable to either party and thus
was not weighed in favor of a speedy trial claim under the Sixth
Amendment); see also Labbe v. State, 869 S.E.2d 520, 529–30, 530 n.5
(Ga. Ct. App. 2022); People v. Weis, No. 5-21-0076, 2022 IL App
(5th) 210076-U, ¶ 84 (Mar. 7, 2022); State v. Tesch, No. 21-0343, 2022
WL 1100922, at *2–4 (Iowa Ct. App. Apr. 13, 2022); Callender v.
State, No. 1070, Sept. Term, 2020, 2021 WL 5371209, at *15–17 (Md.
Ct. Spec. App. Nov. 18, 2021); State v. Jackson, 968 N.W.2d 55, 61
(Minn. Ct. App. 2021); Berryman v. State, No. 2020-KA-00710-
COA, 2021 WL 5192852, at *8 (Miss. Ct. App. Nov. 9, 2021); State
v. Brown, 964 N.W.2d 682, 693 (Neb. 2021); Belcher, 2022 WL
1261300, at *5; Lemons, 2022 WL 1259198, at *4; Commonwealth v.
Murphy, No. 0197-21-2, 2021 WL 3501732, at *5–6 (Va. Ct. App.
Aug. 10, 2021); People v. Williams, No. SX-2019-CR-00034, 2022 WL
1211307, at *4 (V.I. Apr. 21, 2022); Cotney v. State, 503 P.3d 58, 66–
67 (Wyo. 2022).

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statutes. 14 We therefore conclude that the 197 days of pandemic-
13F

related delay should be considered justified, or at least considered
“neutral” and weighed against neither side. 15 14F

¶64 Thus, in this case we have 641 days of delay attributable to
Stephanie, 233 days of non-negligent delay attributable to the
State, and 197 days of pandemic-related delay attributable to
“nobody at all.” See id. Under these circumstances, this factor does
not weigh in favor of Stephanie, and does not weigh in favor of
finding a Sixth Amendment violation.

14. See United States v. Olsen, 21 F.4th 1036, 1047 (9th Cir. 2022)
(holding that COVID-related delay was justified under the
Speedy Trial Act); see also United States v. Perez, No. 4:22-cr-00002-
DN-PK, 2022 WL 1004216, at *4 (D. Utah Apr. 4, 2022); Stanley v.
Superior Court of Contra Costa County, 50 Cal. App. 5th 164, 168–69
(2020); People v. Lucy, 467 P.3d 332, 337 (Colo. 2020); Smith v. State,
310 So. 3d 1101, 1102–04 (Fla. Dist. Ct. App. 2020); State v. Prano,
510 P.3d 690, 695 (Idaho Ct. App. 2021); Blake v. State, 176 N.E.3d
989, 994 (Ind. Ct. App. 2021); Commonwealth v. Lougee, 147 N.E.3d
464, 468 (Mass. 2020); State v. Brown, 964 N.W.2d 682, 693 (Neb.
2021); People v. Marin, 163 N.Y.S.3d 774, 780 (N.Y. Crim. Ct. 2022);
State v. Robinson, No. 110467, 2022 WL 1180668, at *11 (Ohio Ct.
App. Apr. 21, 2022). But see State v. Labrecque, 249 A.3d 671, 680–
82 (Vt. 2020) (holding that pandemic delay weighed against the
State on a Fifth Amendment pretrial detention claim).

15. We note, again, that Kristy’s trial was the first jury trial to take
place in Utah after the COVID-19 pandemic broke out. It is not an
overstatement to say that no trial judge in Utah worked harder
than this one did to make jury trials a reality as soon as possible
after the pandemic hold. We not only reject Stephanie’s attempts
to cast aspersions on this judge’s actions with regard to jury trials
during the pandemic, but we commend this judge for his efforts.

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C

¶65 “The third Barker factor requires examination of the
defendant’s assertion of his right to a speedy trial.” Hintze, 2022
UT App 117, ¶ 34. It is, of course, ultimately “the responsibility of
the courts and the prosecutors to assure that cases are brought to
trial, but defendants bear some responsibility to demonstrably
assert their right to a speedy trial.” Id. (quotation simplified). This
third factor, at root, is about whether the defendant’s “behavior
during the course of the litigation evinces a desire to go to trial
with dispatch.” United States v. Batie, 433 F.3d 1287, 1291 (10th Cir.
2006). “Defendants who drag their feet and only half-heartedly
express an interest in a speedy trial will have this factor weighed
against them. On the other hand, defendants who do everything
they could possibly do to evince a desire to go to trial will have
this factor weighed in their favor.” Hintze, 2022 UT App 117, ¶ 41
(quotation simplified).

¶66 In this case, Stephanie first invoked her right to a speedy
trial in August 2018, when Trial Counsel orally “invoke[d] the
right to a speedy trial for the record.” But this invocation of the
right is precisely the sort of “half-hearted” expression of interest
in a speedy trial that we were referring to in Hintze. After making
this invocation, “for the record,” Stephanie spent the next couple
of years litigating various motions—including her motion to sever
and motion to change venue—that she knew would cause “a big
delay.” Indeed, we have already noted that Stephanie was
responsible for 641 days of delay in this case, and most of that time
occurred after her initial invocation of the right to a speedy trial. 16
15F

16. We do not intend to call into question Trial Counsel’s choice
to file motions, including the motion to sever, that would result in
delay; after all, the motion was ultimately successful. But time
spent attending to even well-intentioned strategic defense
(continued…)

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¶67 In July 2020, some two years after Stephanie’s initial
invocation of her right to a speedy trial, Trial Counsel filed a
document captioned “Speedy Trial Invocation,” in which
Stephanie “invoke[d] her right to a speedy trial” and registered
her opposition to “any further delays in proceeding to trial.” At
this point, the pandemic was in full swing and the chief justice’s
orders restricting jury trials were in effect. And Stephanie even
offered to waive her right to a jury trial and have her case tried to
the bench. This July 2020 invocation of the right to a speedy trial
was in no sense half-hearted, and in our view represents the point
in time at which Stephanie truly invoked her right to a speedy
trial. Stephanie then followed up her July 2020 invocation of the
right with a September 2020 motion to dismiss her case for a
speedy trial violation.

¶68 But Stephanie’s problem, after that point, is that both the
trial court and the State did everything they could to schedule the
trial as speedily as possible. The court stood willing to cancel or
postpone all civil matters, and even some of its criminal law-and-
motion calendars, to get Stephanie’s trial scheduled in a timely
fashion. It set a trial date for September, but that date was
canceled due to the pandemic. It attempted to schedule a new date
for November, but that didn’t work with Trial Counsel’s
schedule. It then set a new date for December, but that too fell to
pandemic-related concerns. As noted, the case finally proceeded
to trial in March 2021.

¶69 In sum, Stephanie only half-heartedly invoked her right to
a speedy trial prior to July 2020. Viewed only up to that point, this

motions still counts against the movant, and not against the State,
in a speedy trial analysis. See, e.g., Newell v. State, 175 So. 3d 1260,
1269–70 (Miss. 2015) (stating that “well-taken motions” by a
defendant “may justify a delay in criminal cases” but such a delay
“caused by the actions of the defendant . . . tolls the running of the
time period for that length of time” (quotation simplified)).

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third factor should be weighed against Stephanie. But she did
quite vigorously assert her right after that, and so in the end we
view this factor as an ultimately neutral factor that weighs neither
strongly in favor of Stephanie nor strongly against her.

D

¶70 The final Barker factor “requires an examination of the
extent to which [Stephanie] was prejudiced” by the delay in
having a jury trial, and is—much like the second factor—
considered a “crucial factor.” See Hintze, 2022 UT App 117, ¶ 43.
“Prejudice, of course, should be assessed in the light of the
interests of defendants which the speedy trial right was designed
to protect.” Barker, 407 U.S. at 532. Specifically, those interests are
(1) “prevent[ing] oppressive pretrial incarceration;”
(2) “minimiz[ing] anxiety and concern of the accused;” and
(3) “limit[ing] the possibility that the defense will be impaired.”
Id. “Of these, the most serious is the last, because the inability of a
defendant adequately to prepare [her] case skews the fairness of
the entire system.” Id.

¶71 Stephanie did not assert at the trial court level, and does
not assert here on appeal, that she suffered any specific
impairment to her defense as a result of the three-year delay in
getting this case to trial. That is, she cannot identify any evidence
that was lost or witness that was rendered unavailable by the
passage of time. Thus, Stephanie has not demonstrated any
prejudice of the sort that is considered “the most serious”:
impairment to her defense. See id.

¶72 But Stephanie did sustain, at least at some level, the other
two types of prejudice. She was subject to a longer period of
pretrial incarceration due to the length of time it took to get her
case to trial, and she undoubtedly experienced additional anxiety
and concern about the pending proceedings. These elements of
prejudice are far from trivial, and even the State acknowledges

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that Stephanie did experience at least some additional prejudice as
a result of the delays in getting to trial.

¶73 We agree, however, with the State’s assessment of the way
this factor should be evaluated. Where Stephanie cannot
demonstrate any specific impairment to her defense, but can
demonstrate some additional anxiety and pretrial incarceration,
this factor weighs in Stephanie’s favor, but not heavily.

E

¶74 The last step of a Barker analysis is “to balance the
four factors.” Hintze, 2022 UT App 117, ¶ 68. Although two of
the factors—the length of delay and prejudice—weigh in favor
of Stephanie, those do not weigh heavily in her favor. In this
case, where the important reason-for-delay factor does not
weigh in her favor and where she can demonstrate only slight
prejudice, we do not view the overall balancing test coming out
in Stephanie’s favor. Certainly, three years is a long time to get a
case to trial. But here, all parties—Stephanie, the State, and
especially the trial court—worked very hard to get these
complicated cases tried as soon as possible in a small county in
the middle of a once-in-a-century public health crisis. And under
these circumstances, where the State did not even negligently—
let alone deliberately—contribute to any of the delay, we cannot
say that Stephanie’s right to a speedy trial was violated. We
therefore discern no error in the trial court’s decision to deny
Stephanie’s motion to dismiss.

II. Alibi Witness

¶75 Next, Stephanie challenges the trial court’s decision to
forbid Mother from offering alibi testimony at trial. Under Utah
law, a defendant “who intends to offer evidence of an alibi” must
provide written notice, at least ten days prior to trial, “of [her]
intention to claim alibi.” See Utah Code § 77-14-2(1). In particular,

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and among other information, this notice must contain “the
names and addresses of the witnesses by whom [the defendant]
proposes to establish alibi.” Id. If a defendant “fails to comply
with” the statute’s requirements, “the court may exclude evidence
offered to establish or rebut alibi.” Id. § 77-14-2(3). But the trial
court may, in its discretion and “for good cause shown, waive the
requirements” of the alibi notice statute. Id. § 77-14-2(4).

¶76 More than ten days prior to trial, Stephanie gave notice that
she intended to claim alibi. In that notice, she stated that she “was
not present at the scene of the alleged offense,” and that she
would present evidence that she “was at [M]other’s home when
the other alleged offenders left to go to the scene and that during
the commission of the alleged offense she had returned to her own
residence to handle a medical issue.” She indicated that a “lay
witness will be called by the defense and an expert witness will
be called to lay foundation for the alibi.” She then identified the
single lay witness as Amy. In the notice, Stephanie did not list
Mother as a potential alibi witness.

¶77 At trial, Stephanie presented Amy as an alibi witness, as
she had indicated in the notice. But then she asked the court for
permission to present Mother as an additional alibi witness. The
court ruled that Mother could take the stand, but that she could
not offer alibi evidence because she was not included in
Stephanie’s notice of alibi. In particular, the court ruled that
Mother could not testify about (1) a phone call Stephanie claimed
to have made on her way to Mother’s house or (2) the timing of
when Stephanie came back to Mother’s house. Stephanie
challenges this ruling on several grounds, first asserting that the
proffered evidence was not alibi evidence at all and therefore not
subject to the statutory notice requirement; next claiming that the
trial court should have allowed the testimony anyway; and finally
contending that the court’s ruling violated her constitutional
rights. We discern no infirmity in the court’s ruling.

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¶78 We first reject Stephanie’s assertion that Mother’s
proposed testimony about the phone call and the timing of
Stephanie’s return was not alibi evidence. It quite clearly was. The
purpose of offering Mother’s testimony about these things was to
demonstrate that Stephanie was not at the scene of the attack but
was, instead, either at Mother’s house or at her own residence
attending to her medical issues. We quite comfortably conclude
that Mother’s proposed testimony qualified as alibi evidence
within the ambit of the alibi notice statute.

¶79 And we likewise reject Stephanie’s assertion that the court
abused its discretion by enforcing the alibi notice statute
according to its terms in this situation. A court’s decision
regarding whether to waive the requirements of the alibi notice
statute is reviewed deferentially. See State v. Perea, 2013 UT 68,
¶¶ 87–88, 322 P.3d 624. Thus, it may well have been within the
court’s discretion to have allowed Mother’s testimony in this
instance. But we will reverse a court’s decision in this regard only
where we perceive an abuse of that discretion, something that is
reserved for clear cases. See, e.g., State v. Ortiz, 712 P.2d 218, 220
(Utah 1985) (concluding that a court abused its discretion when it
refused to allow a defendant to substitute a new alibi witness for
a disclosed one who had become unavailable immediately prior
to trial). Stephanie did not list Mother in her notice, and she
offered no good reason for the omission. Moreover, Stephanie was
able to call Amy, her listed alibi witness, who was available and
testified as anticipated. We cannot say that it was an abuse of
discretion for the court to have refused to allow Stephanie to call
a second alibi witness who had not been listed.

¶80 Finally, Stephanie raises constitutional concerns with the
alibi notice statute, claiming that she had a due process right to
present a defense to the criminal charges, and that the court’s
ruling pursuant to the statute impaired that right. Even assuming

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that this argument was preserved, 17 it fails on its merits. To be
16F

sure, criminal defendants have a constitutional “right to present a
defense.” See State v. Thornton, 2017 UT 9, ¶ 74, 391 P.3d 1016
(quotation simplified). But this right is “far from absolute,” id. ¶ 7,
and it does, “in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process,” see Michigan v.
Lucas, 500 U.S. 145, 149 (1991) (quotation simplified). State
procedural rules, including alibi notice statutes, represent the sort
of legitimate interests that can permissibly impact a defendant’s
right to present a defense. See Taylor v. Illinois, 484 U.S. 400, 411–
12 & n.16 (1988) (stating that “[t]he State’s interest in the orderly
conduct of a criminal trial is sufficient to justify the imposition and
enforcement of firm, though not always flexible, rules relating to
the identification and presentation of evidence,” and listing alibi
notice statutes as an example of the sort of discovery-based rule
that, if not followed, could result in a defendant not being allowed
to present desired evidence); Williams v. Florida, 399 U.S. 78, 84–86
(1970) (stating that “[n]othing in the Fifth Amendment privilege
entitles a defendant . . . to await the end of the State’s case before
announcing the nature of [the defendant’s] defense,” and
upholding alibi notice statutes as consistent with due process and
the right against self-incrimination); see also Ferdinand S. Tinio,
Annotation, Validity and Construction of Statute Requiring Defendant
in Criminal Case to Disclose Matter as to Alibi Defense, 45 A.L.R.3d
958, §§ 2, 4–9 (2022) (citing additional cases). Indeed, our supreme
court has stated that a defendant who failed to comply with the
alibi notice statute had not been deprived of the opportunity to

17. This argument does not appear to have been preserved for
appellate review. But where “the merits of a claim can easily be
resolved in favor of the party asserting that the claim was not
preserved, we readily may opt to do so without addressing
preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415
(quotation simplified), cert. denied, 496 P.3d 718 (Utah 2021). We
opt to do so here.

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present alibi evidence, because “[a]ll he needed to do was comply
with the [statutory] timing requirements.” See State v. Maestas, 815
P.2d 1319, 1325 (Utah 1991).

¶81 Stephanie had every opportunity to call Mother as an alibi
witness. She simply needed to list Mother, along with Amy, in her
notice of alibi. She did not do so, and failed to articulate to the trial
court any good reason why she hadn’t. 18 And she was able to call
17F

her listed alibi fact witness. Under these circumstances, we see no
infirmity in the trial court’s decision to limit Mother’s testimony
and refuse to allow her to provide undisclosed alibi evidence.

III. Opening the Door

¶82 Next, Stephanie takes issue with the trial court’s ruling that
Trial Counsel, during cross-examination of Detective, opened the
door to admission of previously excluded statements, and her
challenge takes two forms. First, she appeals the court’s ruling
directly, and contends that Trial Counsel actually didn’t open the
door. Second, and in the alternative, she asserts that, if Trial
Counsel opened the door, he rendered ineffective assistance in so
doing. We analyze each claim in turn.

A

¶83 Stephanie asserts that the trial court abused its discretion
in ruling that Trial Counsel had opened the door to the previously
excluded statements of Sandra and Byron. We disagree.

¶84 The statements at issue here are the statements Sandra and
Byron made to officers immediately after the attack: Sandra
indicated that one of her attackers was the Tuinman sister who

18. On appeal, Stephanie makes no assertion that Trial Counsel
rendered ineffective assistance by failing to list Mother in the
notice of alibi.

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was dating Byron, and Byron stated that he and Stephanie had
indeed been present at the attack. Officers were aware of these
two statements by the time they interviewed Stephanie at the
police station at 4:00 a.m. on the morning after the attack. And
these two statements gave officers reason to believe that
Stephanie had participated in the attack along with others, and
apparently gave Detective reason to believe that Stephanie was
lying when she denied any involvement in the evening’s events.

¶85 The trial court made a pretrial ruling excluding the
substance of these statements from being admitted at trial
(although, as discussed below, subsequent events changed
matters concerning Byron’s statement). In light of this ruling, the
State’s questioning of Detective on this particular point during
direct examination was cursory: the prosecutor merely elicited the
fact that Detective thought Stephanie was being less than fully
truthful when she denied any involvement, and that his basis for
that belief was that officers were in possession of certain
“statements.” But in keeping with the court’s ruling excluding
from evidence the content of those statements, the State did not
ask Detective any questions about what those “statements” were,
who made them, or what they might contain; as the court later
noted, the State “steered clear” of delving into the details of the
basis for Detective’s belief. And Trial Counsel lodged no objection
to the State’s direct examination in this regard.

¶86 On cross-examination, however, Trial Counsel made a
strategic decision to delve deeper into the reasons why Detective
accused Stephanie of not telling him the whole truth. He asked
Detective whether calling suspects “a liar” was “an interview
technique” designed to elicit more favorable answers. Detective
acknowledged that “[i]t could be” part of an interview technique,
but he maintained that his “main goal is to try to get to the truth.”
Trial Counsel established that Detective had called Stephanie a
liar quite early in the interview, and then asked him this open-
ended question: “Then why would you call somebody a liar right

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out of the gate?” Detective replied, “Because I didn’t think I was
getting the truth.”

¶87 After this exchange, the court ruled that Trial Counsel, by
asking Detective specific questions about his reasons for calling
Stephanie a liar, had “opened the door” for the previously
excluded statements to come in for their “effect on the hearer.”
The court noted that, in its view, Trial Counsel “extensively
question[ed]” Detective about “why he would call [Stephanie] a
liar and made a lot of hay out of him calling her a liar and
investigating her with no evidence or no reason to even question
her,” and thereby “paint[ed] the picture that [Detective] was
doing something improper.” Thus, the court ruled that the
statements from Sandra and Byron could come in to more
specifically explain Detective’s skepticism of Stephanie’s account.

¶88 “Once the defendant offers evidence or makes an assertion
as to any fact, the State may cross-examine or introduce on
rebuttal any testimony or evidence which would tend to
contradict, explain or cast doubt upon the credibility of [the
defendant’s] testimony.” State v. Thompson, 2014 UT App 14, ¶ 30,
318 P.3d 1221 (quotation simplified); see also State v. Guerro, 2021
UT App 136, ¶¶ 28–32, 502 P.3d 338 (holding that a district court
“did not abuse its discretion in admitting” previously excluded
evidence after opposing counsel “open[ed] the door to”
admission of that evidence by “elicit[ing] a misleading—if not
outright false—testimonial statement regarding the content” of
the evidence), cert. denied, 525 P.3d 1254 (Utah 2022); State v.
Eddington, 2023 UT App 19, ¶ 39, 525 P.3d 920 (holding that a
district court “exceeded its discretion” by refusing to allow a
defendant to introduce previously excluded evidence after the
State, through certain arguments and questions, opened the door
to its admission).

¶89 In this case, by engaging in detailed questioning about the
basis for Detective’s expressed skepticism of Stephanie’s account,

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and by suggesting that Detective had been employing aggressive
interview techniques, Trial Counsel placed directly at issue
Detective’s reasons for stating that Stephanie was lying. It was not
outside the bounds of the trial court’s discretion for it to conclude
that the State was entitled to rebut Trial Counsel’s suggestions
with the previously excluded details of Sandra’s and Byron’s
statements. We therefore discern no abuse of discretion in the
court’s ruling that Trial Counsel opened the door to admission of
those statements.

B

¶90 Alternatively, Stephanie asserts that Trial Counsel
rendered ineffective assistance by opening the door to the
admission of the previously excluded statements. To establish
that Trial Counsel was ineffective, Stephanie must show both
(1) that Trial Counsel’s performance was deficient, in that it “fell
below an objective standard of reasonableness,” and (2) that this
deficient performance “prejudiced the defense” such that “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord
State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24, 469 P.3d 871. Because “failure to satisfy either part of the
ineffective assistance test is fatal to a defendant’s claim,” State v.
Popp, 2019 UT App 173, ¶ 48, 453 P.3d 657 (quotation simplified),
cert. denied, 485 P.3d 943 (Utah 2021), we need not “address both
components of the inquiry if we determine that [Stephanie] has
made an insufficient showing on one,” see Archuleta v. Galetka,
2011 UT 73, ¶ 41, 267 P.3d 232 (quotation simplified).

¶91 The first part of the test requires Stephanie to show that
Trial Counsel’s performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified). In
evaluating the reasonableness of counsel’s actions, courts will
often look to whether the actions counsel took were motivated by

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trial strategy. See id. ¶ 35 (“To be sure, the performance inquiry
will often include an analysis of whether there could have been a
sound strategic reason for counsel’s actions.”). And while “the
ultimate question is not whether there was a possible strategic
reason for counsel’s conduct, but instead whether that conduct
was objectively reasonable,” id., “[i]f it appears counsel’s actions
could have been intended to further a reasonable strategy, a
defendant has necessarily failed to show unreasonable
performance,” Ray, 2020 UT 12, ¶ 34.

¶92 If Stephanie establishes that Trial Counsel rendered
deficient performance, she must next show that she was
prejudiced by that performance. “Prejudice exists when there is a
reasonable probability that the case would have had a different
outcome had trial counsel not performed deficiently.” State v.
Whytock, 2020 UT App 107, ¶ 28, 469 P.3d 1150, cert. denied, 481
P.3d 1043 (Utah 2021). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome” of the
proceeding. Strickland, 466 U.S. at 694. In assessing prejudice, we
“consider the totality of the evidence before the judge or jury and
then ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors.” State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171
(quotation simplified).

¶93 Even assuming, for purposes of our discussion, that Trial
Counsel performed deficiently by opening the door to admission
of the previously excluded statements, on this record Stephanie
has not demonstrated a reasonable likelihood that the outcome of
the trial would have been different if the door had not been
opened. The only two statements that came in through the opened
door were (1) Sandra’s statement that the Tuinman sister who was
dating Byron had been among her attackers, and (2) Byron’s
statement that Stephanie rode with him, Thomas, and Samantha
to Roy’s house. And we can necessarily eliminate the second of
these statements from our prejudice calculation, because Byron’s

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statement came into evidence anyway, through Byron’s own
testimony after the State called him as a witness.

¶94 The court had originally excluded Byron’s statements,
along with all of the other co-defendants’ statements, apparently
on Confrontation Clause grounds. But that issue was resolved
once Byron pled “guilty but mentally ill” to certain counts, so the
State called Byron as its own witness. When the time came for
Byron to take the stand, Trial Counsel did not lodge any
objections to his testimony, and Stephanie does not now allege, on
appeal, that Byron should not have been allowed to testify at trial
or that there were any evidentiary problems with his testimony.
And during that testimony, after Byron initially denied that
Stephanie went to Roy’s house the night of the attack, the State
introduced into evidence, by way of impeachment, Byron’s
statement to police in which he said that “[m]e, Samantha, and
Stephanie” were in the minivan with Thomas that night. After
listening to his interview statement, Byron then testified that he
had in fact told police that Stephanie was also in the minivan with
them and that “she brought the bat” with her, but he maintained
that he had been “intimidated” into saying that. Accordingly,
because the jury heard Byron’s statement through another means,
the fact that this statement also came in through the door Trial
Counsel opened cannot have caused Stephanie any prejudice.

¶95 Thus, the prejudice inquiry here revolves entirely around
Sandra’s statement. And we are simply not persuaded that there
is a reasonable likelihood of a different result in this case if the
jury had not heard Detective testify that, prior to interviewing
Stephanie, he had been made aware of Sandra’s statement that
one of her attackers was the Tuinman sister who was dating
Byron. Even without Sandra’s statement, the State still had strong
evidence supporting its case, most notably Samantha’s testimony
regarding Stephanie’s involvement in the attack and Byron’s
statement to police that Stephanie had been present at the scene.

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In our view, Stephanie has not carried her burden of
demonstrating Strickland prejudice here.

¶96 In sum, then, the trial court did not abuse its discretion by
determining that Trial Counsel had opened the door to admission
of the two previously excluded statements. And Stephanie has not
demonstrated that Trial Counsel rendered constitutionally
ineffective assistance in opening that door.

IV. Timing of Sentencing

¶97 Next, Stephanie contends that the trial court erred in
sentencing Stephanie in April 2021, before a May change in the
sentencing statutes took effect. A criminal defendant has the right
to be sentenced “not less than two nor more than 45 days after the
verdict or plea, unless the court, with the concurrence of the
defendant, otherwise orders.” Utah R. Crim. P. 22(a). Stephanie’s
sentence occurred thirteen days after the verdict, and therefore
fell comfortably within the prescribed window.

¶98 But in many cases, especially cases in which sentencing
may end up being severe or complicated, trial courts wait until
the end of the prescribed window—or, with the consent of
the defendant, a week or two beyond it—so that they may have
the benefit of a presentence investigation report prepared by
Adult Probation and Parole. In this case, the court ordered a
presentence report, but at the State’s request did not postpone
sentencing until after that report was received; instead, the court
held a sentencing hearing on April 12, 2021, before the report was
completed.

¶99 The State was quite transparent about its reason for
requesting a speedy sentencing: in the legislative session that had
just ended, our legislature enacted a statutory change, set to take
effect in May, that would, among other things, shorten by five
years the mandatory minimum sentence Stephanie would need to

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serve on the murder and aggravated burglary charges. 19 At the
18F

time the State made its request for a speedy sentencing—right
after the verdict—Trial Counsel stated simply that he was “not
aware of the change in the law” and was therefore “not prepared”
to address it. He did not lodge any objection to the State’s request
that Stephanie be sentenced prior to the new law going into effect,
and the court granted the State’s request for an unusually quick
sentencing process. On April 12, the court sentenced Stephanie,
imposing the higher twenty-years-to-life sentence (as opposed to
fifteen years to life under the new statute) on the murder count
and the higher ten-years-to-life sentence (as opposed to five years
to life under the new statute) on the aggravated burglary count.

¶100 On appeal, Stephanie acknowledges that her challenge to
the trial court’s expedited sentencing process is unpreserved. And
the only one of the three exceptions to our preservation doctrines
that Stephanie here invokes is the extraordinary circumstances
exception. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443
(explaining that under Utah law, there are “three distinct
exceptions to preservation: plain error, ineffective assistance of
counsel, and exceptional circumstances”). 20 This exception is
19F

19. Under Utah law, criminal sentences are steeper for crimes
committed “in concert with” multiple other people or otherwise
for the benefit of a “street gang.” See Utah Code § 76-3-203.1(2).
Prior to May 2021, any first-degree felony committed “in concert”
was subject to a five-year increase in the mandatory minimum
sentence. See id. § 76-3-203.1(4) (2020). But in the 2021 legislative
session, our legislature removed the minimum-mandatory
enhancement for first-degree felonies. See Act of Mar. 16, 2021,
ch. 207, § 1, 2021 Utah Laws 1356, 1356–58.

20. To be clear, Stephanie does not claim that the trial court plainly
erred by expediting the sentencing process, nor does she assert
(continued…)

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intended to cover situations in which “a rare procedural anomaly
has either prevented an appellant from preserving an issue or
excuses a failure to do so.” Id. ¶ 29 (quotation simplified).
Stephanie asserts that the change in the law that took effect in May
is the sort of “rare procedural anomaly” that justifies application
of the extraordinary circumstances exception. We disagree.

¶101 For the extraordinary circumstances exception to apply,
some “anomaly” must be present that either (a) prevented
Stephanie from objecting to the State’s request for a speedy
sentencing, or (b) excuses her failure to object. See id. No such
anomaly is present here. Certainly, there was nothing that
prevented Trial Counsel from objecting to the State’s request; after
all, the State put its cards squarely on the table when it asked for
the speedy sentencing, explaining that the law had been changed
to Stephanie’s benefit effective May 2021 and asking for
sentencing to occur before then. Trial Counsel could have objected
right then, even if he was not yet familiar with the precise
contours of the statutory amendment, or he could have objected a
few days later, after researching the issue. At a minimum, Trial
Counsel could have objected at the actual sentencing hearing
itself, and asked for a continuance. There was nothing here—
anomalous or otherwise—that prevented Stephanie or Trial
Counsel from objecting to the State’s request for an expedited
sentencing. And Stephanie does not even attempt to argue that
this change in the law somehow operated to excuse her failure to
preserve the issue for our review.

¶102 This situation is therefore a poor fit for application of the
extraordinary circumstances exception, and we decline the
invitation to apply it here. Because the only preservation
exception Stephanie invokes does not apply, we conclude that

that Trial Counsel rendered ineffective assistance by not objecting
to the expedited sentencing process. We therefore address neither
of these exceptions.

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Stephanie’s objection to the court’s sentencing process is
unpreserved, and we therefore decline to discuss it further.

V. Rule 23B Motion

¶103 Finally, we address Stephanie’s motion, filed pursuant to
rule 23B of the Utah Rules of Appellate Procedure, seeking an
order remanding the case to the trial court for further factfinding
relating to additional potential ineffective assistance of counsel
claims. Under rule 23B, a defendant “may move the court to
remand the case to the trial court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.” Utah R. App. P. 23B(a). “We
apply a four-part test to evaluate rule 23B motions.” State v.
Samora, 2021 UT App 29, ¶ 50, 484 P.3d 1206 (quotation
simplified), aff’d, 529 P.3d 330 (Utah 2023). First, the motion must
allege facts not already in the record. See State v. Griffin, 2015 UT
18, ¶ 18, 441 P.3d 1166. Second, those factual allegations must not
be speculative. Id. ¶ 19. Third, the allegations must demonstrate
that counsel performed deficiently, and fourth, the allegations
must show that counsel’s deficient performance prejudiced the
defendant. See Samora, 2021 UT App 29, ¶ 50.

¶104 In her rule 23B motion, Stephanie asserts that Trial Counsel
performed deficiently by failing to call three witnesses: Attorney,
Neighbor, and a private investigator (Investigator) who compiled
a report for the defense. Stephanie contends that had these
witnesses been called to testify, there “is a substantial possibility
that the outcome of Stephanie’s trial could have been acquittal.”

¶105 But Trial Counsel did not perform deficiently by deciding
not to call Attorney to testify. He was fully aware of what
Attorney had to say; after all, Attorney had testified at Kristy’s
trial, and Trial Counsel and Attorney had spoken several times
prior to Stephanie’s trial. During the opening days of Stephanie’s
trial, even the State appeared resigned to the fact that Stephanie

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would likely call Attorney to testify and rebut Samantha’s trial-
testimony version of events; during its direct examination of its
key witness, Samantha, the State preemptively introduced
evidence of Samantha’s conversation with Attorney. In the course
of this direct examination, Samantha acknowledged that she had
had a conversation with Attorney at the jail and that she had told
him the same story that she had initially told law enforcement:
that nobody else was involved in the attack aside from her and
Thomas. Trial Counsel, on cross-examination, followed up with
Samantha about this conversation, and she did not deny that the
conversation took place and again confirmed that she told
Attorney “the same thing that [she] had told the officers.”

¶106 There were only two participants in the conversation
between Samantha and Attorney. One of them—Samantha—
testified early in the trial about the conversation, and confirmed
that it had taken place largely as Attorney describes. Thus, the
evidence Trial Counsel would have wanted Attorney to introduce
was already in the trial record, without Attorney needing to
testify, and it had come in, without dispute, through Samantha’s
own testimony. In our view, a reasonable attorney could very well
have decided not to call Attorney under these circumstances. See
State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350 (stating that “the
ultimate question” in assessing counsel’s performance is
“whether [counsel’s] conduct was objectively reasonable”); see
also supra ¶ 91. 21
20F

21. Thus, most of Attorney’s proffered testimony ended up being
cumulative of and consistent with Samantha’s account of their
conversation. And the parts that weren’t cumulative—Attorney’s
proffered testimony that he could tell that Samantha was telling
the truth during their conversation—would have been
inadmissible in any event. See State v. Valdez, 2021 UT App 13,
¶ 55, 482 P.3d 861 (stating that “human lie detector” testimony is
inadmissible), cert. granted, 496 P.3d 715 (Utah 2021).

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¶107 The other part of Stephanie’s rule 23B motion—her claim
that Trial Counsel performed deficiently by not calling Neighbor
and Investigator as witnesses—we resolve on prejudice grounds,
because in our view Stephanie cannot demonstrate a reasonable
likelihood of a different result at a trial in which those two
witnesses took the stand. See Scott, 2020 UT 13, ¶ 43 (“The burden
is on the defendant to demonstrate a reasonable probability that
the outcome of his or her case would have been different absent
counsel’s error.”); see also supra ¶ 92. Stephanie claims that
Neighbor and Investigator should have been allowed to introduce
evidence that Neighbor heard only a “single vehicle” leave the
scene of the attack at around midnight. This testimony would
have been unhelpful for two reasons. First, Neighbor’s timing is
off by almost three hours because it was undisputed at trial—by
video surveillance of Samantha’s minivan around 9:00 p.m. and
by the 911 call made around 9:20 p.m.—that the attack occurred
shortly after 9:00 p.m. A discrepancy of almost three hours
seriously undermines the value of Neighbor’s testimony. Second,
testimony about there being only one vehicle would not have
changed the landscape for Stephanie—as opposed to, potentially,
Kristy or Michael—when testimony from Byron and Samantha
already established that Stephanie had arrived in the minivan, not
in another vehicle. Only Kristy and Michael were said to have
arrived in separate vehicles; thus, even if there had been
testimony that only one vehicle had driven to the scene that night,
such testimony would not have been much use to Stephanie. We
simply do not perceive a reasonable probability of a different
outcome if Stephanie’s trial had included testimony from
Neighbor and Investigator.

¶108 Under these circumstances, Stephanie has not met the
prerequisites for the granting of a rule 23B motion. Accordingly,
we deny Stephanie’s motion.

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CONCLUSION

¶109 Stephanie has not demonstrated that her constitutional
right to a speedy trial was violated here. The trial court did not
abuse its discretion by limiting Mother’s testimony to exclude
alibi evidence. The trial court also did not abuse its discretion by
determining that Trial Counsel had opened the door to admission
of the two previously excluded statements, and Stephanie has not
borne her burden of showing that Trial Counsel rendered
ineffective assistance by opening that door. Stephanie’s challenge
to the timing of her sentencing process is unpreserved for
appellate review. And we deny her rule 23B motion.

¶110 Accordingly, we reject all of Stephanie’s claims on appeal
and affirm her convictions.

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