State v. Anderson

2024 UT App 65

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DARCY F. ANDERSON,
Appellant.

Opinion
No. 20220407-CA
Filed May 2, 2024

Fifth District Court, Cedar City Department
The Honorable Ann Marie McIff Allen
No. 201500370

Nicolas C. Wilde and Trevor J. Lee,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1 Darcy F. Anderson challenges his convictions on two
counts of sexual abuse of a child and one count of aggravated
sexual abuse of a child, arguing (1) the trial court erred in failing
to sua sponte hold a competency hearing, (2) his trial counsel
(Counsel) provided ineffective assistance in several respects, and
(3) the court plainly erred in admitting recorded interviews from
the Children’s Justice Center (CJC). We reject each of his
arguments and affirm his convictions.
State v. Anderson

BACKGROUND 1

¶2 Sixty-nine-year-old Anderson became “kind of like a
grandfather” to ten-year-old Hailey 2 and her sisters when he
moved in down the street, giving them gifts and money during
their frequent visits to his house. During one visit, Anderson put
his hand on the thigh of Hailey’s stepsister (Sister) and asked her
to kiss him, which she refused to do.

¶3 The next day, Hailey and three of her younger sisters,
including Sister, went inside Anderson’s house to watch a movie.
Anderson sat next to Hailey on the couch. While the movie
played, Anderson unbuttoned Hailey’s pants and “put his fingers
. . . in [her] vagina.” Hailey made an excuse to go to the bathroom,
but when she sat back down on the couch, Anderson put her hand
on his penis. He again unbuttoned her pants and put his fingers
in her vagina.

¶4 Anderson also asked Hailey to go into his bedroom. She
told him no. Hailey made another excuse to go to the bathroom,
and when she came out, Anderson was standing outside the door,
pointing his cane toward a bedroom down the hall. Hailey
followed him into the bedroom and got onto the bed with
Anderson, where he pulled her pants down to her knees. But
Hailey pulled her pants back up and fled the house. When she got
home, Hailey—who was “upset” and “crying so hard [that] she
was pale”—disclosed what had happened to her mother
(Mother), who contacted law enforcement, and to her stepfather

1. “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.
Cesspooch, 2024 UT App 15, n.1, 544 P.3d 1046 (cleaned up).

2. We employ a pseudonym and a descriptive term for the minor
children.

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State v. Anderson

(Stepfather), who quickly retrieved Hailey’s younger sisters from
Anderson’s house.

¶5 Two days later, Hailey and Sister were interviewed at the
CJC. Sister recalled how the day before Hailey was abused, the
girls had been at Anderson’s house and he had rubbed her leg and
asked her to kiss him. Sister also stated she had gone to
Anderson’s house on the day of the abuse but left before anything
happened to Hailey.

¶6 Hailey disclosed that Anderson “kept pulling off [her]
pants and touching [her] . . . vagina” on the couch. During a
sexual assault examination the same day, Hailey gave the nurse
(Nurse) a similar account, stating Anderson had “pulled down
her pants and put his fingers inside” her. Nurse found Hailey’s
vagina was slightly red and irritated, which concerned her, as the
exam occurred soon after the event. In an interview two days
later, Stepfather told a police lieutenant (Lieutenant) he had
wanted Hailey to “get checked immediately” to make sure she
was not making false accusations because she was sometimes
known to “do some storytelling.”

¶7 Lieutenant interviewed Anderson several times. During
the first interview—three days after the events at his house—he
admitted to holding hands with Hailey but denied going into the
bedroom with her. A few hours later, Anderson called Lieutenant,
saying he had gone into the bedroom with Hailey and that they
“laid down by each other holding hands” but he dozed off and
could not remember anything else. During his third interview
three days later, Anderson admitted to sitting on the couch and
lying on the bed with Hailey, pulling her pants down, and
touching her “on her tummy, a little lower.” He stated he touched
her “below the belly” “a time or two on the couch” and in the
bedroom. And he admitted Hailey touched his penis. Anderson
was later arrested and charged with two counts of sexual abuse of
a child and one count of aggravated sexual abuse of a child.

20220407-CA 3 2024 UT App 65
State v. Anderson

¶8 Prior to trial, the State filed notice of its intent to introduce
the recordings of Hailey’s and Sister’s CJC interviews under rule
15.5 of the Utah Rules of Criminal Procedure. At a pretrial
conference, the trial court asked Counsel whether he intended to
stipulate to the admission of these recordings, “provided they
comply with the rule.” Counsel said, “[W]e would do that, Your
Honor.” The court then stated it would allow the recordings to be
“utilized consistent with Rule 15.5.” At a later hearing, the court
noted that “the parties have also examined together Rule 15.5 and
all parties agree that all elements of Rule 15.5 have been met,” and
the court then made a “specific finding[]” that the recordings were
admissible under rule 15.5(a)(8). Counsel lodged no objection.

¶9 At the final pretrial conference, Anderson complained to
the court that his blood pressure was “out of whack,” something
was wrong with his neck, he was “on the verge of passing out
quite often,” he had a broken foot, and he had a self-diagnosed
“aneurysm.” He stated he had been in a car accident one month
before his arrest and his injuries had not been treated in jail
despite his requests for attention. Counsel then made a motion to
continue the trial—which was scheduled to begin the next day—
for “the purpose of looking into [Anderson’s] health issues.”
When asked to clarify what these health issues were, Counsel
informed the court that Anderson’s son had mentioned there
“may be some mental health issues” based on Anderson’s
behavior. But Counsel noted these were “offhand comments” and
there had been “[n]othing concrete, nothing finite, nothing
substantiated” as far as a formal mental health diagnosis. Counsel
assured the court there was “nothing that led [him] to think that
there would be . . . competency issues” or that Anderson could
not “appreciate what was going on or couldn’t understand or
couldn’t aid in his defense.” Counsel did note that Anderson was
confused about the trial date and could not remember receiving
transcripts of the CJC interviews from Counsel, though Counsel
knew he had read them. But the court was not concerned because
Anderson had been “quickly corrected” about his trial date, he

20220407-CA 4 2024 UT App 65
State v. Anderson

had “numerous opportunities” to review the CJC transcripts, and
Counsel confirmed that Anderson had actually done so. And
ultimately, Counsel, a self-identified “bit of an expert when it
comes to competency,” told the court there was not “enough to
do a competency petition.”

¶10 The court recognized that no competency petition had
been filed, there was “no formal diagnosis upon which [it] could
act,” and its own interactions with Anderson raised “no concern”
that he was not “involved, understanding, and aware.” And the
court noted that prior to the final pretrial hearing, “there were no
concerns expressed by [Anderson] or anyone involved with him
of a nature that would cause the [c]ourt to need to derail the trial.”
Thus, the court denied Anderson’s continuance motion.

¶11 The next morning, at the start of his trial, Anderson again
complained to the court about his “medical condition” and about
Counsel’s performance with respect to case investigation and
certain pre-trial motions, suggesting he might hire a new attorney.
Counsel renewed his previous motion to continue “for the same
reasons that [Anderson] has put on the record” and then
explained the steps he had taken to prepare for trial. The court
noted it had asked the State to “look into” Anderson’s complaints
about lack of medical treatment raised at the pretrial conference
the day before. The State informed the court it had “conferred
with jail staff” and had been “assured that medical personnel
ha[d] been working with [Anderson] regularly” since he arrived
and he had been checked “just prior to coming to court.” The court
stated Anderson had received adequate medical attention, had
plenty of opportunity to hire an attorney, and had raised “nothing
today or in the last few days that would necessitate a
continuance” and thus denied Anderson’s renewed motion.

¶12 During the State’s case, Hailey, Sister, Mother, Nurse, and
Lieutenant recounted the events above. Prior to Hailey’s
testimony, the State sought to play the recording of her CJC

20220407-CA 5 2024 UT App 65
State v. Anderson

interview. Before the recording was played, the court asked
Counsel whether “there has been a stipulation relative to the
applicability” of rule 15.5, to which Counsel replied, “Right.” The
interview was then played before Hailey’s testimony. Sister’s
interview was also played before her testimony.

¶13 Lieutenant testified that he had a “feeling” that Hailey
might have been coached in her CJC interview because she was
“calling her vagina by the technical term.” But he wrote in his
report that Hailey was being “very honest,” and he testified that
after interviewing Anderson, he was no longer concerned about
coaching as Anderson’s version of events corroborated Hailey’s
“down to details.” During Lieutenant’s testimony, the State
played portions of body camera footage showing his third
interview with Anderson. The jury heard Anderson admit to
touching Hailey “a time or two” on the couch and in the bedroom
and having her touch his penis. Anderson testified on his own
behalf, and portions of the interview were again played during
Anderson’s cross-examination, though he continued to deny the
allegations against him. The jury found him guilty on all counts.

ISSUES AND STANDARDS OF REVIEW

¶14 Anderson argues the trial court erred in failing to sua
sponte hold a hearing to evaluate his competency to stand trial.
The parties dispute the standard of review. Anderson asserts that
this court should evaluate the trial court’s conduct for “clear
error” and the State asserts that our review should be for plain
error because the issue was unpreserved. We agree with the
State. 3

3. This court “generally will not consider an issue unless it has
been preserved for appeal”—meaning it “has been presented to
the [trial] court in such a way that the court has an opportunity to
(continued…)

20220407-CA 6 2024 UT App 65
State v. Anderson

¶15 On direct appeal, claims that the trial court failed to sua
sponte evaluate a defendant’s competency are reviewed for plain
error. See State v. Arguelles, 2003 UT 1, ¶ 45, 63 P.3d 731; see also
State v. Poundstone, 2011 UT App 341, ¶ 3, 263 P.3d 1204. “To
demonstrate plain error, a defendant must establish that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome . . . .” State v.
Plazola, 2023 UT App 161, ¶ 21, 542 P.3d 559 (cleaned up).

¶16 Anderson also raises several claims of ineffective
assistance of counsel. “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. Naranjo, 2023 UT App 131, ¶ 23, 538 P.3d 1278
(cleaned up).

¶17 Finally, Anderson argues the court erred in admitting the
recordings of Hailey’s and Sister’s CJC interviews. Because
Anderson did not raise this issue below, it is unpreserved, and he
urges us to review it for plain error. But “under the doctrine of
invited error, we have declined to engage in even plain error

rule on it.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned
up). Here, Anderson never filed a competency petition, so he
asserts that he placed the issue before the trial court in his two
motions to continue. But in making the first motion to continue
“with the purpose of looking into [Anderson’s] health issues,”
Counsel informed the trial court that there was “[n]othing
concrete, nothing finite, nothing substantiated” and he had no
basis to file a competency petition. And in making the second
motion to continue, Counsel addressed only Anderson’s
complaints about Counsel’s performance. Thus, the trial court
was never asked to rule on Anderson’s competency—leaving the
issue unpreserved and thus reviewable for plain error.

20220407-CA 7 2024 UT App 65
State v. Anderson

review when counsel, either by statement or act, affirmatively
represented to the trial court that he or she had no objection to the
proceedings.” State v. Cruz, 2016 UT App 234, ¶ 20, 387 P.3d 618
(cleaned up).

ANALYSIS

I. The Trial Court’s Failure to Sua Sponte Hold a Competency
Hearing

¶18 Anderson contends the trial court erred by not holding a
competency hearing sua sponte. A defendant establishes plain
error by showing “(i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome.” State v. Plazola, 2023 UT App 161, ¶ 21, 542
P.3d 559 (cleaned up). Because Anderson cannot show that the
trial court erred in not sua sponte holding a competency hearing,
this claim fails. 4

¶19 “It is well established that due process requires that a
defendant be mentally competent to stand trial.” State v. Parry,
2018 UT App 20, ¶ 13, 414 P.3d 1044 (cleaned up). “To protect that
due process right, Utah law mandates that no person who is
incompetent to proceed shall be tried for a public offense.” State
v. Wolf, 2014 UT App 18, ¶ 18, 319 P.3d 757 (cleaned up); see also
Utah Code § 77-15-1. A defendant is incompetent to proceed if he
has a mental disorder which “renders him either (1) unable to
have a rational and factual understanding of the proceedings
against him or of the punishment specified for the offense charged

4. Even were we to review the trial court’s actions under the “clear
error” standard Anderson urges, we see no meaningful difference
from our plain error analysis. Both standards require a
determination that the trial court made an error, and we see no
error on the record before us.

20220407-CA 8 2024 UT App 65
State v. Anderson

or (2) unable to consult with his counsel and to participate in the
proceedings against him with a reasonable degree of rational
understanding.” Wolf, 2014 UT App 18, ¶ 19 (cleaned up); see also
Utah Code § 77-15-2. The trial court may “raise the issue of the
defendant’s competency at any time.” State v. Arguelles, 2003 UT
1, ¶ 49, 63 P.3d 731 (cleaned up). But in the absence of a
competency petition filed by the defendant, defense counsel, the
prosecution, or anyone acting as the defendant’s custodian, the
court is required to act sua sponte to hold a hearing to evaluate
the defendant’s competency “when there is a substantial question
of possible doubt as to a defendant’s competency” to proceed. 5 Id.
(cleaned up).

¶20 Thus, whether the trial court erred by not holding a
competency hearing turns on whether there was a substantial
question as to Anderson’s competency. In determining whether a
substantial question existed, we “consider only those facts that
were before the trial court” at the time. Id. ¶ 50 (cleaned up). Based
on Anderson’s interjections at the final pretrial hearing and on the
first day of his trial, the court knew that he had been in a car
accident one month before his arrest and he had numerous
concerns about his “medical condition.” But the court received
assurances that Anderson had regularly received medical
attention while in jail and had been “checked just prior to coming
to court,” with “no concerns to note.” 6 And we fail to see how

5. The case law largely discusses defendants’ competency to plead
guilty. However, the “test for competency to plead guilty is the
same as competency to stand trial,” York v. Shulsen, 875 P.2d 590,
594 (Utah Ct. App. 1994), making these cases applicable here.

6. Anderson argues that the court asking the State to “look into”
his medical concerns after the final pretrial hearing itself shows
the court had substantial doubt about his competency. He also
argues this inquiry was a violation of due process because the
(continued…)

20220407-CA 9 2024 UT App 65
State v. Anderson

these physical ailments—even in the aggregate—could have
affected Anderson’s competency to stand trial.

¶21 Aside from Anderson’s medical concerns, the court also
knew—based on Counsel’s representation—that Anderson’s son
had mentioned potential “mental health issues.” But Counsel was
quick to inform the court that these were “offhand comments,”
not made by a medical professional, and there was “[n]othing
concrete, nothing finite, nothing substantiated” as far as an official
“diagnosis or anything like that.” Such “an uncorroborated
assertion of mental illness at trial [is] not sufficient to require a
competency hearing.” State v. Young, 780 P.2d 1233, 1236 (Utah
1989) (cleaned up). Moreover, even if Anderson did have a
diagnosed mental disorder, “[a] defendant may be fit for trial
even though his mind is otherwise unsound.” Jacobs v. State, 2001
UT 17, ¶ 16, 20 P.3d 382 (quoting 21 Am. Jur. 2d Criminal Law § 97
(1998)); see also State v. Biebinger, 2018 UT App 123, ¶ 24, 428 P.3d
36 (“Mental illness is not equivalent to incompetency to stand
trial.” (cleaned up)).

¶22 Further, defense counsel is the person in the best position
to evaluate a client’s condition. See Wolf, 2014 UT App 18, ¶ 31.
Here, Counsel identified himself as a “bit of an expert when it
comes to competency” and assured the court that in all of his
interactions with Anderson, there was “nothing that led [him] to
think that there would be . . . competency issues” or that
Anderson “didn’t appreciate what was going on or couldn’t

court made an ex parte request for the State to gather information
and then used that information to evaluate his competency. But
Anderson’s medical condition did not have any bearing on his
legal competency. As we discuss above, see supra note 3,
Anderson’s competency was not an issue before the court. Thus,
the court’s inquiry into Anderson’s physical well-being did not
manifest doubt as to his competency, nor did it violate due
process.

20220407-CA 10 2024 UT App 65
State v. Anderson

understand or couldn’t aid in his defense.” Counsel did note that
Anderson had been mistaken about his trial date and could not
remember reading the transcripts of the CJC interviews Counsel
had given him. But even a defendant’s “amnesia” or inability to
remember the “incident for which [the defendant] is charged”
does not render him “per se incompetent.” York v. Shulsen, 875
P.2d 590, 597 (Utah Ct. App. 1994). And here, the court found that
Anderson’s confusion about the trial date had been “quickly
corrected” and that his lack of memory of the CJC transcripts was
not concerning given his “numerous opportunities” to review
them and Counsel’s assurances that Anderson had done so.

¶23 The trial court observed that Anderson had “always been
very appropriate in his behavior” in court and had given no
indication that he had not “been involved, understanding, and
aware.” Thus, the court did not have a substantial reason to doubt
Anderson’s ability to have a “rational and factual understanding
of the proceedings against him” or to “consult with his counsel”
and meaningfully participate in the proceedings. See Wolf, 2014
UT App 18, ¶ 19 (cleaned up). Indeed, if a defendant who displays
“irrational and disoriented” behavior and has a documented
history of mental illness may be declared competent, see State v.
Bailey, 712 P.2d 281, 282–85 (Utah 1985), there would have been
no question—let alone a substantial one—that Anderson, who
had not displayed any markedly irrational or disoriented
behavior and had no documented history of mental illness, was
competent too. Accordingly, we see no error in the trial court’s
failure to hold a competency hearing. Because no error occurred,
this claim fails.

II. Counsel’s Ineffective Assistance

¶24 Anderson also levies several critiques at Counsel, arguing
he provided ineffective assistance. To prevail on these claims,
Anderson must show “(1) that Counsel’s performance was
deficient and (2) that the deficient performance prejudiced the

20220407-CA 11 2024 UT App 65
State v. Anderson

defense.” State v. Weaver, 2023 UT App 154, ¶ 20, 541 P.3d 958
(cleaned up). To prove deficient performance, Anderson must
show that Counsel’s representation “fell below an objective
standard of reasonableness.” Id. (cleaned up). And to prove
prejudice, Anderson must show “a reasonable probability that the
case would have had a different outcome” absent Counsel’s
deficient performance. Id. ¶ 21 (cleaned up). “Because failure to
establish either prong of the test is fatal to an ineffective assistance
of counsel claim, we are free to address [his] claims under either
prong,” and “if it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, we will do so.” State
v. Samora, 2023 UT 5, ¶ 21, 529 P.3d 330 (cleaned up).

A. Failure to Call Stepfather as a Witness

¶25 Anderson urges that Stepfather’s statement to Lieutenant
that Hailey could “do some storytelling” would have undermined
Hailey’s credibility, so the failure to call Stepfather as a defense
witness at trial amounts to ineffective assistance. We disagree.

¶26 First, we fail to see how Stepfather’s testimony—even had
it been favorable to Anderson—could have outweighed the
evidence corroborating Hailey’s testimony. Sister testified that the
day before Hailey was sexually abused, Anderson had rubbed
Sister’s leg and asked her to kiss him. Mother testified about
Hailey’s distress immediately after returning home from
Anderson’s house on the day of the abuse. Nurse noted there had
been “redness and irritation” of Hailey’s vagina, which was
“concerning” because the exam occurred so soon after the
incident. The jury heard Anderson himself admit in the body
camera footage of his interview with Lieutenant that he had
touched Hailey “on her tummy, a little lower” and “below the
belly” “a time or two” and that Hailey had touched his penis.
Portions of this interview were played for the jury twice—once
during Lieutenant’s testimony and again during Anderson’s
cross-examination.

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State v. Anderson

¶27 Second, Anderson argues Stepfather’s testimony
would have cast even more doubt on Hailey’s credibility when
coupled with Lieutenant’s testimony that that there may have
been “some coaching going on” in her CJC interview. But while
Lieutenant did say he had an initial “feeling” that Hailey may
have been coached because she was “calling her vagina by the
technical term,” he wrote in his report that he believed she was
“being very honest,” and after interviewing Anderson, he no
longer believed she had been coached, as Anderson’s “version of
what happened on that day just corroborated” what Hailey had
told him, “down to details.” We are not persuaded that
Lieutenant’s testimony would have rendered Stepfather’s
testimony more impactful.

¶28 Thus, there is not a reasonable likelihood that Stepfather’s
general statement that Hailey could sometimes “do some
storytelling” could outweigh the strong evidence—including
Anderson’s own admissions—indicating that Hailey was not, in
fact, fabricating a story on this specific occasion about her abuse.
This claim therefore fails for lack of prejudice.

B. Stipulating to Admission of the CJC Interviews

¶29 Next, Anderson argues Counsel was ineffective for
stipulating to the State’s admission of Hailey’s and Sister’s
recorded CJC interviews. Under rule 15.5(a) of the Utah Rules of
Criminal Procedure, in any case involving a sexual offense
against a minor, “the oral statement of a victim or other witness
younger than 14 years of age which was recorded prior to the
filing of an information or indictment is, upon motion and for
good cause shown, admissible as evidence in any court
proceeding regarding the offense,” provided certain conditions
are met.

¶30 Anderson asserts there are “obvious issues” with
the reliability of the recorded interviews. He points to
Lieutenant’s testimony that he had “a feeling” that Hailey

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State v. Anderson

may have been coached in her interview and Stepfather’s
statement that Hailey could “do some storytelling,” arguing these
statements rendered the recordings of the CJC interviews
unreliable under rule 15.5(a)(8)—which requires the court to view
the recording and determine “that it is sufficiently reliable and
trustworthy”—and thus, that Counsel was ineffective for
stipulating to their admission. But again, even had Counsel
refrained from stipulating, we fail to see a reasonable likelihood
of a different outcome for Anderson.

¶31 Absent the parties’ stipulation, the court itself would
have evaluated the admissibility of the recordings under rule
15.5. Despite Anderson’s contentions, it is unlikely
that Lieutenant’s or Stepfather’s statements would have led the
court to conclude the recordings were unreliable or
untrustworthy under rule 15.5(a)(8). While Lieutenant might have
had an initial “feeling” that Hailey had been coached to use the
technical term for vagina, he did not believe the events she
recounted “had been fabricated or made up.” And Stepfather’s
initial statement that Hailey could “do some storytelling” is
undercut by his actions in quickly collecting Hailey’s younger
sisters from Anderson’s house on the afternoon of the abuse. And
the recordings met the other requirements of rule 15.5. Most
importantly, the children were “available to testify and to be
cross-examined at trial,” see Utah R. Crim. P. 15.5(a)(1), “no
attorney for either party [was] in the [girls’] presence” when their
statements were recorded, see id. R. 15.5(a)(2), and the
interviewers were both “present at the proceeding” and
“available to testify and be cross-examined,” see id. R. 15.5(a)(6).
Thus, there is no indication that the court would have found the
recordings inadmissible under rule 15.5.

¶32 Moreover, even if the recordings had been excluded, there
was nothing in them that was not elicited through Hailey’s or
Sister’s live testimony. Their trial testimony was remarkably
consistent with their CJC interviews. The jury would have heard

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State v. Anderson

them recount the events at Anderson’s house either way. Thus,
even without Counsel’s stipulation, there is not a reasonable
likelihood of a different outcome, and this claim also fails for lack
of prejudice.

C. Failure to File a Competency Petition

¶33 Finally, Anderson argues Counsel was ineffective for
failing to file a competency petition. But we “have previously
acknowledged that counsel does not perform deficiently by
failing to file a competency petition if [counsel] had no basis to
suspect the defendant was incompetent”—meaning the
defendant lacked “a rational and factual understanding of the
proceedings or of the punishment specified for the offense
charged, or ha[d] the inability to consult with counsel and to
participate in the proceedings with a reasonable degree of rational
understanding.” State v. Bruhn, 2019 UT App 21, ¶ 16, 438 P.3d
1031 (cleaned up).

¶34 Here, Counsel filed a motion to continue the trial “with the
purpose of looking into some health issues,” including
Anderson’s complaints about blood pressure, being “light of
head” and stumbling, a broken foot, and a self-diagnosed
“aneurysm.” And Counsel informed the court that Anderson’s
son had mentioned that Anderson might have some mental health
issues. But, as we discussed above, see supra Part I, Counsel stated
he had seen “nothing that [led] him to think that” Anderson
“didn’t appreciate what was going on or couldn’t understand or
couldn’t aid in his defense.” Without sufficient reason to suspect
Anderson was incompetent, Counsel did not perform deficiently
in failing to file a competency petition.

¶35 Accordingly, for the reasons stated, we reject all of
Anderson’s claims that Counsel rendered constitutionally
ineffective assistance.

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III. The Trial Court’s Admission of the CJC Interviews

¶36 Anderson also argues that the trial court plainly erred in
admitting Hailey’s and Sister’s recorded CJC interviews without
making adequate findings under rule 15.5 of the Utah Rules of
Criminal Procedure. But “under the doctrine of invited error, we
have declined to engage in even plain error review when counsel,
either by statement or act, affirmatively represented to the trial
court that he or she had no objection to the proceedings.” State v.
Cruz, 2016 UT App 234, ¶ 20, 387 P.3d 618 (cleaned up).

¶37 Here, the trial court admitted the recordings because
Counsel represented to the court that they met the requirements
of rule 15.5. Counsel agreed to stipulate to the admission during
a pretrial conference, “provided they comply with” rule 15.5. At a
later hearing, the court noted that “the parties have also examined
together Rule 15.5 and all parties agree that all elements of Rule
15.5 have been met.” And just before the first recording was
played for the jury, the court asked, “Counsel, to my
understanding there has been a stipulation relative to the
applicability [of] the rule . . . . Is that true[?]” Counsel replied,
“Right.” Anderson himself recognizes this as a stipulation for
purposes of his ineffective assistance argument. See supra Part II.B.
And such stipulation “represents a classic example of invited
error.” State v. McNeil, 2013 UT App 134, ¶ 19, 302 P.3d 844
(cleaned up). Thus, Anderson invited any error in the admission
of the recorded CJC interviews, precluding plain error review,
and his only option was to raise the issue through his ineffective
assistance claim, which we have rejected. See id. ¶ 25 (“While
invited error precludes a plain error claim, it does not preclude a
claim for ineffective assistance of counsel.”).

CONCLUSION

¶38 The trial court did not plainly err in failing to hold a
hearing to evaluate Anderson’s competency, Anderson cannot

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State v. Anderson

show that Counsel rendered ineffective assistance, and he invited
any error in the court’s admission of the CJC interviews. We
therefore affirm his convictions.

20220407-CA 17 2024 UT App 65