State v. Gilling

                THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                   SHANEAN MARQUIS GILLING,
                          Appellant.

                              Opinion
                         No. 20230632-CA
                       Filed August 21, 2025

         Second District Court, Farmington Department
               The Honorable David J. Williams
                         No. 221701190

            Freyja Johnson and Hannah Leavitt-Howell,
                      Attorneys for Appellant
               Derek E. Brown and Daniel W. Boyer,
                      Attorneys for Appellee

     JUDGE AMY J. OLIVER authored this Opinion, in which
   JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1     A jury convicted Shanean Marquis Gilling of two counts of
object rape. He now appeals, arguing that the trial court abused
its discretion in allowing certain expert testimony and in
prohibiting Gilling from calling alibi witnesses. In the alternative,
he argues that his counsel provided constitutionally ineffective
assistance. He has also filed a motion for remand under rule 23B
of the Utah Rules of Appellate Procedure related to one of his alibi
witnesses. We reject Gilling’s claims of error and ineffective
assistance of counsel, deny his rule 23B motion, and affirm his
convictions.
                          State v. Gilling


                        BACKGROUND 1

                           The Incidents

¶2     Marsha 2 met Gilling through her brother and her exboyfriend. After going through a tough time in her personal life,
Marsha began to use methamphetamine to cope with the trauma
she had experienced. Knowing that Gilling supplied her brother
with drugs, she began to buy drugs from him as well. Over the
years, they also developed a friendship.

¶3     When Gilling needed a place to stay, Marsha would let him
stay at her house on a temporary basis, and, in exchange, Gilling
would supply her with drugs. Gilling would typically let Marsha
know when he was coming over to stay, but sometimes he would
just show up at her house. Marsha never had a romantic
relationship with Gilling.

¶4     Eventually, Marsha “got sober and started a new life.”
Around this time, she also began dating someone (Boyfriend).
Unfortunately, Marsha relapsed in April 2021. She “took a few
days off of work to be able to come down to get sober” and “try
to stay straight.” When coming down from drugs, Marsha slept
“really heavy,” became emotional, ate a lot, and needed to rest.
Knowing she would require time alone, she told Gilling she was
getting sober and “needed some space” and told him not to come
around for a few days.” She also told him that Boyfriend would
take care of her.



1. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Kufrin,

, 

 (cleaned up).

2. A pseudonym.


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                          State v. Gilling


¶5      On April 11, 2021, Marsha was “sleeping really heavily”
and having “vivid dreams” that “got really weird.” When she
awoke, she found Gilling “on top of [her] with his fingers inserted
inside of [her]” vagina, moving them “in and out.” He was “dry
humping [her] leg, . . . kissing [her] neck,” and “moving his body.”
Though she had fallen asleep wearing clothes, her pants had been
“pulled down to about [her] mid thighs.” She said to Gilling,
“Whoa. Whoa. Whoa. Get off me,” as she “pulled up [her] pants
and scooted away” from him. Gilling said, “I thought you wanted
this,” to which Marsha replied, “No hard feelings.” Gilling left,
and Marsha tried to call Boyfriend. When she could not reach him,
she went back to sleep.

¶6     Marsha’s sleep was not restful. She cried frequently, had
nightmares and night sweats, and woke up regularly. She slept in
this way for around thirty-six hours. After that, Marsha ate,
watched some TV, and tried to reach Boyfriend again before going
back to sleep. When she woke up, the same thing was happening
again: Gilling on top of her, kissing her neck with his fingers
inside of her vagina, and “dry humping” her leg. She woke up
“feeling angrier that time.” She pulled herself away and said,
“You need to get off me.” Gilling then left, and Marsha went to
stay at Boyfriend’s house.

     Marsha Tells Boyfriend and Reports the Incidents to Police

¶7      Initially, Marsha did not tell anyone what happened
because it “was hard to process . . . [and] traumatic.” Eventually,
on June 5, Marsha told Boyfriend what occurred. Boyfriend could
“tell that she was upset” when she told him because she was
“wringing her hands and crying.”

¶8     The next day, Boyfriend and Marsha went to Marsha’s
house to get items she needed. When they arrived, Boyfriend saw
the back door was open. They called the police. A police officer
(Officer) spoke to Marsha over the phone. Marsha told Officer
what Gilling had done to her, but explained she did not want to


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                           State v. Gilling


press charges. She only wanted to have the incidents documented.
Marsha also asked Officer if he could assist her in getting the items
from her house because she was concerned Gilling would be
there. So, Officer walked through her house with Boyfriend but
found no one inside. Marsha gathered her belongings, and Officer
took witness statements from them. Officer then gave Marsha a
case number and informed her that if she decided she wanted to
press charges, he would reactivate the case.

¶9     On September 9, 2021, Marsha again contacted the police
because Gilling showed up at her house. Marsha expressed to
Officer that she wanted to press charges because “she’d been
thinking about it more and more” and decided to “just go for it.”
Officer reactivated the case and sent it to the investigations
division. Shortly thereafter, a detective (Detective) interviewed
Marsha.

¶10 In July 2022, Gilling was arrested and charged with one
count of object rape occurring on or about April 11, 2021 and one
count of object rape occurring on or about April 12, 2021.

                          The Alibi Notice

¶11 On April 16, 2023, eight days before trial, Gilling filed a
notice of alibi (the Alibi Notice). The Alibi Notice listed six
witnesses who would testify that Gilling was not in the house
with Marsha on the dates and times of the alleged crimes. These
witnesses included a defense investigator (Investigator), two
friends that were with Gilling from April 9 to April 11, a friend
who was with Gilling from April 11 to 13 “constantly because of
[the friend’s] medical situation,” Marsha’s employer, and Gilling
himself.

¶12 At a hearing on the Alibi Notice, the State orally moved to
exclude the alibi witnesses for failure to comply with the statutory
requirements. See Utah Code § 77-14-2(1) (stating that notice is
required “not less than 10 days before trial” and must include


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                          State v. Gilling


“specific information as to the place where the defendant claims
to have been at the time of the alleged offense”). The State
argued that the notice was untimely because it was due on April
14, 2023, and that it was insufficient because it did not
provide Gilling’s location on the specific dates. Given the late
notice and the number of witnesses, the State also did not believe
it had “the ability to do all [the] independent research within a
couple of days and . . . be prepared to cross-examine all of [the]
witnesses.”

¶13 Gilling’s trial counsel (Counsel) argued that because the
deadline was on Friday, the motion being filed on Sunday made
it untimely only by one business day. Counsel emphasized that
the State receiving the notice on Friday at 11:00 p.m. versus
Sunday would likely not make much of a difference in the ability
of the State to prepare to cross-examine these witnesses at trial.
Counsel also asserted, twice, that “[p]art of the reason in the
delay” in filing the Alibi Notice was that the State previously
implied it was “not going to nail . . . down” specific dates and
times as to when the alleged incidents occurred, so Counsel did
not know what days to obtain alibi witnesses for. Counsel then
reiterated that not knowing the dates “was a factor” in Counsel’s
delay. With respect to the Alibi Notice being insufficient, Counsel
asserted that providing the specific locations of the witnesses was
“less relevant” than the “individuals’ statements of where they
[were].” Counsel also expressed concern with the trial court
making “the most drastic ruling, which would be to exclude” the
alibi witnesses.

¶14 The trial court noted that the information listed “[p]retty
specific dates” that the defense had “known since the Information
was filed.” The court then granted the State’s motion because the
Alibi Notice was untimely and failed to “contain specific
information as to the place where the defendant claims to have
been at the time of the alleged offense.” The court indicated it
would likely allow Investigator to “testify about some things”



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                          State v. Gilling


depending on the direction his other testimony went and ruled
that Gilling was “always available to testify on his own behalf
regarding his alibi.”

¶15 Counsel then asked the court to continue the trial rather
than exclude the alibi testimony, which the State was open to
considering. However, the trial court declined to grant a
continuance because doing so would push the trial from April
“out till probably November.” And since the problem was not
caused by the State, the court noted it would be unlikely to release
Gilling from custody prior to trial.

                             The Trial

¶16 The State called Marsha, Boyfriend, Officer, and Detective,
who testified to the facts as described above. The State also called
a psychologist (Expert) who testified regarding how individuals
respond to sexual violence, misconceptions about perpetrators,
and the impact of trauma on the brain.

¶17 Expert further testified to the number of times he had seen
false reports of sexual violence in his career. On cross-examination, Counsel asked Expert whether he had treated
people in the past that Expert “knew or had strong concerns or
suspicions” were making false allegations, to which Expert
answered in the affirmative and spoke of two instances of false
reporting he experienced in his career. Following this question,
Counsel then asked Expert to clarify that in one of the instances,
the individual “didn’t actually say they made up the allegation,”
but “had other substantial life challenges that [Expert] was aware
of that [Expert] thought increased the chance that the person was
not being honest with [Expert] in that clinical setting.” Expert
confirmed this was accurate.

¶18 Then on redirect, the State asked Expert, “In
your experience, and with the research, . . . is this idea of false
allegations a common occurrence or an uncommon


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                           State v. Gilling


occurrence?” Expert replied, “Very uncommon.” Counsel
objected on the grounds that the testimony “gets to probability.”
The trial court sustained the objection, and a bench conference
was held.

¶19 During the bench conference, Counsel expressed concern
that the jury would think false allegations “are rare,” which in
turn would “increase[] the likelihood that this one is unlikely.”
The State argued that by asking Expert whether he had seen false
allegations in his career, Counsel “sort of [planted] in the jury’s
head that false allegations occur” and that the State should be able
to clarify that impression. The court ultimately reaffirmed it was
sustaining the objection. However, the court stated it would allow
the State to ask “something like . . . you just testified in your
clinical experience, you have been able to confirm that only one
or two were false allegations. Out of how many?” and explained
that it was allowing that line of questioning because Counsel
“opened the door.” Counsel agreed, stating, “I’m okay with that.
. . . I think I’ve invited that.”

¶20 Once the bench conference concluded, the State resumed
its examination of Expert and the following exchange occurred:

       [The State]: You were asked about one or two
       specific occurrences in your practice where
       someone had . . . reported a false allegation of sexual
       assault. Is that a fair assessment?

       [Expert]: That’s a summary, yes.

       [The State]: In your practice as a clinician, . . . how
       many other instances of false reports or false
       allegations have you experienced with your
       patients?




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                          State v. Gilling


      [Expert]: Those are the only two that come to mind
      specifically . . . . I would assume it may have
      happened one or two other times.

      ....

      [The State]: So we’ll just go conservatively. Roughly
      four out of approximately a thousand?

      [Expert]: Probably.

Expert further testified that substance abuse, hallucinations, and
suggestibility could contribute to false memories or “memory
error” but noted that he could not speak to the relationship
between methamphetamine use and hallucinations caused by
sleep deprivation as that was outside of his expertise.

¶21 After the State rested, Gilling called Investigator to testify
on his behalf. Investigator testified to how sexual assault
investigations work based on his experience as a former law
enforcement officer.

¶22 In closing argument, the State emphasized Expert’s
testimony for the jury, stating,

      [Expert] said in his 14 years as a clinician, that
      roughly two to four of them, approximately on a
      conservative note, out of a thousand sexual assault
      victims that he has helped . . . he’s sort of gotten a
      feeling that maybe it was false . . . . And I think that
      . . . when you sort of put the numbers out there, it
      equates to less than one percent. I don’t know
      exactly the number. But two to four out of
      approximately      conservatively        a     thousand
      incidences in his direct experience.




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                          State v. Gilling


And later, the State noted, “[I]t would be difficult to see someone
subjecting themselves to this level of scrutiny. Getting here,
testifying in a courtroom, if it was all just a fabrication. Which
[Expert] testified doesn’t happen very often.” The State then
“qualif[ied]” its statements, explaining that Expert testified to
seeing false allegations infrequently in his clinical experience “in
a therapy context, not a courtroom context . . . . Therapy context is
different than courtroom context. [Expert] didn’t [give] testimony
regarding what happens in the courtroom.”

¶23 Counsel discussed Expert’s testimony as well. Counsel
reiterated that Expert testified that false allegations “may be
simple and without details” and that false allegations can also
arise from false memories resulting from “trauma, substance
abuse, and even hallucinations.” Counsel argued that Marsha
“[knew] that [Gilling] was a problem, that his relationship with
her was toxic,” and that for these reasons, Marsha “was trying to
move on, and his presence was making that harder.” Counsel also
commented that Marsha “had suffered a traumatic life” that
“involved addiction,” which Gilling “bears some responsibility
for.”

¶24 Ultimately, the jury convicted Gilling on both counts of
object rape. He was sentenced to five years to life on each count.


            ISSUES AND STANDARDS OF REVIEW

¶25 Gilling raises several issues on appeal. He first argues that
the trial court abused its discretion in permitting expert testimony
that bolstered Marsha’s credibility through anecdotal statistical
evidence. “We review the admission of expert testimony under an
abuse of discretion standard.” State v. Bowdrey, 

, 

 (cleaned up), cert. denied, 

 (Utah
2024). In the alternative, he argues that Counsel was ineffective by
opening the door to such testimony. “An ineffective assistance of
counsel claim raised for the first time on appeal presents a


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                           State v. Gilling


question of law, which we review for correctness.” State v.
Whitchurch, 

, 

 (cleaned up),
cert. denied, 

 (Utah 2025).

¶26 Gilling next asserts that the trial court abused its discretion
in prohibiting Gilling from calling alibi witnesses. “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.”
State v. Tuinman, 

, 

 (cleaned up),
cert. denied, 

 (Utah 2023). In the alternative, he argues
that Counsel was ineffective by failing to timely file the Alibi
Notice, an issue which we review for correctness. See Whitchurch,

.

¶27 Finally, Gilling filed a motion under rule 23B of the Utah
Rules of Appellate Procedure requesting that this court remand
the case to the trial court for further factual findings. A motion
under rule 23B “will be 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.” Utah R. App. P. 23B(a).


                            ANALYSIS

                 I. Anecdotal Statistical Evidence

¶28 Gilling asserts that Expert improperly bolstered Marsha’s
testimony by testifying “that in his clinical experience of having
seen a thousand patients, he only believed two to have made false
allegations.” Gilling argues first that the trial court abused its
discretion by allowing such testimony. And then, in the
alternative, he argues that Counsel was ineffective for opening the
door to the testimony. We conclude neither argument is availing.




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                           State v. Gilling


A.     Abuse of Discretion

¶29 Gilling argues that the “trial court abused its discretion
when it ruled that Expert could testify about the frequency of false
allegations.” In response, the State argues that Gilling waived this
argument when he agreed with the trial court that he “invited”
the specific line of questioning. We agree with the State.

¶30 During cross-examination, Counsel asked Expert whether
he had treated people in the past that he “knew or had strong
concerns or suspicions” were making false allegations, to which
Expert answered in the affirmative and spoke to two instances of
false reporting he experienced in his career. During redirect, the
State asked Expert, “In your experience, and with the research, . . .
is this idea of false allegations a common occurrence or an
uncommon occurrence?” Counsel objected. The parties and the
court then engaged in a discussion about the appropriate
bookends for Expert’s testimony. The trial court sustained the
objection but stated that it would allow the State to ask Expert
how many times he had seen false allegations throughout his
career because Counsel had “opened the door.” Counsel agreed
that Expert could testify to his experience with the commonality
of false allegations, stating, “I’m okay with that” and “I think I’ve
invited that.”

¶31 “A defendant is generally precluded from obtaining
appellate review when he waives a right.” State v. Williams, 

, 

 (cleaned up). A waiver occurs when
a defendant “intentional[ly] relinquish[es] or abandon[s] . . . a
known right.” 

 (cleaned up). Here, Counsel made an initial
objection to the State asking Expert whether false accusations
were common or uncommon, which the trial court ultimately
sustained. But Counsel did not make an objection when the court
proposed a question for the State to ask Expert regarding his
experience with false allegations. Rather, Counsel stated, “I’m
okay with that. . . . I think I’ve invited that.” Counsel’s statement



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                           State v. Gilling


“was an affirmative representation to the [trial] court that . . .
Counsel had no objection . . . . As such, the statement constituted
a waiver of the issue and the invitation of any error resulting from
the” court permitting the State to ask the question. State v. Tafuna,

, 

; see also Williams, 

 (concluding that the defendant waived an issue
when he “intentionally relinquished or abandoned” his
objection). This issue was therefore waived.

B.     Ineffective Assistance of Counsel

¶32 In the alternative, Gilling argues that he received
ineffective assistance of counsel when Counsel “opened the door”
to the State asking Expert questions about the frequency of false
allegations and when Counsel admitted that he “invited that” line
of questioning. To show that counsel did not provide effective
assistance, a defendant must demonstrate both that “counsel’s
performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 

(1984). “Because failure to establish either prong of the test is fatal
to an ineffective assistance of counsel claim, we are free to address
[Gilling’s] claims under either prong.” State v. Popp, 

, 

 (cleaned up). We elect here to do so under
the prejudice prong.

¶33 To show prejudice, Gilling must demonstrate that “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 

. When we evaluate “a prejudice claim in
the ineffective assistance context, we assess counterfactual
scenarios—that is, what would have happened but for the
ineffective assistance.” State v. Forbush, 

, 

 (cleaned up), cert. denied, 

 (Utah 2024).

¶34 In the counterfactual scenario we must consider here,
Counsel would not have asked about Expert’s experience with
false allegations, and the State would not have asked Expert to


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                          State v. Gilling


quantify how many of his clients had made false allegations. But
these questions were not uniformly harmful to Gilling. In fact,
Counsel’s questions helped further his defense that Marsha’s
allegations were false. In response to Counsel’s question about
whether Expert “knew or had strong concerns or suspicions” that
clients of his were making false allegations, Expert responded that
“substantial life challenges” can increase “the chance” that a
person might make a false sexual assault allegation, and he
discussed his experience with one such person. This testimony
supported Gilling’s defense that Marsha made up the allegations
due to her “traumatic life” and that Gilling’s presence “was
making [it] harder” for her to “move on” from her drug
“addiction.” Eliminating these questions would also eliminate
Expert’s testimony supporting Counsel’s assertion that due to her
drug addiction, Marsha was lying about Gilling assaulting her.

¶35 We also think it noteworthy that, at trial, the State actively
tried to mitigate Expert’s testimony. The State initially said in
closing that in Expert’s fourteen years of experience, “roughly two
to four of them, approximately on a conservative note, out of a
thousand sexual assault victims that he has helped” may have
made false allegations and that “when you sort of put the
numbers out there, it equates to less than one percent.” But shortly
after making this statement, the State clarified that Expert was
speaking to false allegations “in a therapy context, not a
courtroom context . . . . Therapy context is different than
courtroom context. [Expert] didn’t [give] testimony regarding
what happens in the courtroom.” Because the impact of Expert’s
testimony was diminished by the State in its own closing
statement, it is unlikely that Expert’s testimony was the
cornerstone of the jury’s decision to convict Gilling. And where
Expert’s testimony on this issue was thus of limited significance,
it is not likely that a trial without Expert’s testimony would have
resulted in a different outcome for Gilling.




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                           State v. Gilling


¶36 For these reasons, Counsel’s opening the door to
Expert’s testimony did not prejudice him. And since Counsel’s
opening the door arguably assisted Gilling’s defense, it likewise
was not prejudicial for Counsel to acknowledge that he did in fact
open the door. Therefore, we conclude that Counsel was not
ineffective.

                         II. The Alibi Notice

¶37 Gilling asserts that the trial court abused its discretion
when it prohibited him from calling his alibi witnesses. In the
alternative, he argues that Counsel was ineffective for failing to
timely file the Alibi Notice. We are not persuaded by either
argument.

¶38 A defendant “shall, not less than 10 days before trial or at
such other time as the court may allow, file and serve on the
prosecuting attorney a notice, in writing, of the defendant’s
intention to claim alibi.” Utah Code § 77-14-2(1). 3 The notice must
“contain specific information as to the place where the defendant
claims to have been at the time of the alleged offense and, as
particularly as is known to the defendant or the defendant’s
attorney, the names and addresses of the witnesses by whom the
defendant proposes to establish alibi.” Id. “If a defendant . . . fails
to comply with the requirements of this section, the court may
exclude evidence offered to establish . . . alibi.” Id. § 77-14-
2(3) (emphasis added); see also State v. Ortiz, 

(Utah 1985) (noting that section 77-14-2(3) “grants a trial court
discretion to exclude evidence if the ten-day notice requirement is
not met”).




3. Because there have been no substantive changes to the relevant
code section since Gilling’s trial, we cite the current code for the
convenience of the reader.


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                           State v. Gilling


A.     Abuse of Discretion

¶39 Gilling asserts the trial court abused its discretion because
section 77-14-2 provides that the court “may” exclude witnesses
after a late notice and thus does not require the court to exclude
the witnesses. We agree with Gilling’s assertion that nothing in
the statute requires the trial court to exclude alibi evidence after a
late notice. But just as the statute does not require the court to
exclude alibi evidence, it also does not require the court to admit
the evidence. If the court chooses to exclude such evidence, it may
do so as long as it appropriately considered “the avoidance of
unfair surprise or prejudice to either party.” Ortiz, 

.
Based on the record before us, the trial court did just that.

¶40 The Alibi Notice provided six witnesses along with their
names and contact information.4 But, as the State explained and
the court ultimately agreed, the Alibi Notice did not provide
Gilling’s locations, as required by the statute. See Utah Code § 77-
14-2(1). Without this information, the State did not believe it had
“the ability to do all [the] independent research within a couple of
days and . . . be prepared to cross-examine all of [the] witnesses”
given Gilling’s untimely filing.

¶41 Gilling repeats on appeal his argument that because the
Alibi Notice was due on a Friday and Gilling filed it on Sunday,
“the State did not lose any business days or otherwise meaningful
preparation time.” But the statute does not draw a distinction
between business days and non-business days. See id. Given that
Gilling missed the ten-day deadline to file the Alibi Notice, the
State lost nearly two days of investigation, which could have been
crucial because the State would have had to track down each of


4. On appeal, Gilling challenges the exclusion of only one alibi
witness. But in order to evaluate whether the trial court abused its
discretion, we must examine the Alibi Notice that was presented
to the trial court, which contained six witnesses.


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                           State v. Gilling


the witnesses and learn how they specifically fit into Gilling’s alibi
before preparing to cross-examine them.

¶42 Gilling further claims that it was “overly harsh” for the trial
court to decline to continue the trial in lieu of excluding Gilling’s
alibi witnesses. But the trial court explained why, in addition to
Gilling’s untimely and unspecific notice, it was declining a
continuance. The trial was scheduled to occur in April 2023, and
the continuance would have pushed the case “out till probably
November.” It was therefore well within the trial court’s
discretion to exclude Gilling’s alibi witnesses and decline to
continue the trial.

B.     Ineffective Assistance

¶43 In the alternative, Gilling argues that he received
ineffective assistance when Counsel filed the Alibi Notice two
days late. “Counsel should be strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment and . . . the
burden to show that counsel’s performance was deficient rests
squarely on the defendant.” Burt v. Titlow, 

, 22–23
(2013) (cleaned up). Appellate courts thus give “trial counsel wide
latitude in making tactical decisions and will not question such
decisions unless there is no reasonable basis supporting them.”
State v. Wilkes, 

, 

 (cleaned up).
We therefore ask “whether the strategy [c]ounsel employed was
that of a reasonable, competent lawyer in the real-time context” of
trial. 

 “And even where a court cannot conceive of a sound
strategic reason for counsel’s challenged conduct, it does not
automatically follow that counsel was deficient. The ultimate
question is always whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable.” 

(cleaned up).

¶44 To overcome this strong presumption that Counsel did not
perform deficiently in failing to timely file the Alibi Notice,


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                           State v. Gilling


Gilling must show that Counsel’s actions were objectively
unreasonable. Here, Counsel explained twice that “[p]art of the
reason in the delay” in filing the Alibi Notice was that Counsel
was unsure what days to obtain alibi witnesses for. Counsel then
noted again that the lack of clarity in which days the defense
needed to find witnesses for “was a factor” in the delayed filing.
But Counsel did not elaborate on the record as to what the other
reasons or factors were that influenced the timing of filing the
Alibi Notice. Thus, we do not know the full context of why
Counsel filed the Alibi Notice after the deadline.

¶45 Gilling seeks to remedy this issue by filing a motion under
rule 23B of the Utah Rules of Appellate Procedure. This rule
allows a party in a criminal case to move the appellate 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). The
motion 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.” 

¶46 But Gilling’s rule 23B motion does not answer the question
of why Counsel filed the Alibi Notice late, which is crucial to
determining whether Counsel was ineffective. It only asserts that
one of Gilling’s alibi witnesses would have testified that during
the time of the sexual assaults, Gilling was providing the witness
“full-time medical care” following a car accident she was in,
including “changing [her] diaper, showering, making [her] meals,
and helping [her] adjust to [her] life after the accident.” Even with
this proffer, we still would have no basis for concluding that
Counsel’s performance was objectively unreasonable because the
record shows that there were other “part[s]” and “factor[s]” that




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                           State v. Gilling


caused Counsel to file the Alibi Notice late, and Gilling has not
proffered any explanation for what those other reasons were. 5

¶47 As the United States Supreme Court made clear in Burt v.
Titlow, 

 (2013), “the absence of evidence cannot
overcome the strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance.” 

 (cleaned up). Because we must “strongly presume[]” that
Counsel rendered adequate assistance, see 

 at 22–23 (cleaned
up), and because we are lacking information as to the other
“part[s] of the reason” why Counsel filed the Alibi Notice late, we
cannot conclude that Counsel provided less than constitutionally
effective assistance.


                          CONCLUSION

¶48 The trial court did not abuse its discretion when it ruled
that Counsel opened the door to Expert’s testimony or excluded
Gilling’s alibi witnesses for failing to timely file the Alibi Notice.
Nor was Counsel ineffective for opening the door to Expert’s
testimony or for acknowledging as much, or for filing the Alibi
Notice late. And, as Gilling’s rule 23B motion was insufficient, we
deny that as well. Accordingly, we affirm Gilling’s convictions.



5. We recognize that this creates a challenge for defendants to
anticipate and respond to gaps in the evidence when making an
ineffectiveness of assistance claim on appeal. But the burden lies
with the defendant to demonstrate that counsel’s performance
was objectively unreasonable considering all the circumstances.
See State v. Scott, 

, 

. And the
circumstances here show that Counsel had multiple reasons for
the late filing, but Gilling’s motion fails to address the other
“part[s] of the reason in the delay.” Without additional
information, we are unable to conclude that Counsel’s actions
constituted deficient performance.


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