State v. Wall

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                          Appellee,
                             v.
                      WAYNE ADAM WALL,
                         Appellant.

                             Opinion
                        No. 20221019-CA
                     Filed February 27, 2025

            Eighth District Court, Vernal Department
               The Honorable Edwin T. Peterson
                          No. 181800755

           Freyja Johnson and Hannah Leavitt-Howell,
                     Attorneys for Appellant
              Derek E. Brown and William M. Hains,
                     Attorneys for Appellee

    JUDGE JOHN D. LUTHY authored this Opinion, in which
 JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
                        concurred.

LUTHY, Judge:

¶1      Wayne Adam Wall appeals his conviction on two counts of
aggravated sexual abuse of a child. He asserts four claims on
appeal. First, he argues that the district court improperly
prevented him from asking a particular question of potential
jurors during voir dire. Second, he asserts that the court abused
its discretion by overruling his objection to certain statements by
the prosecutor during closing arguments. Third, he contends that
his trial counsel (Counsel) was ineffective by not objecting to
additional statements by the prosecutor during closing
                           State v. Wall


arguments. 1 Finally, he maintains that Counsel was ineffective by
not objecting to certain hearsay admitted at trial. Wall’s
arguments are unavailing, and we affirm his convictions.


                        BACKGROUND 2

                         The Fishing Trip

¶2     For a number of years, Wall and the father (Father) of a
blended family were “good friends” and “like brothers” to each
other. Father and his wife have three children, two girls and one
boy. Father is the stepparent of the son and one daughter
(Daughter), and he is the biological parent of the other daughter.
For some years, until the “spring of 2017ish,” Wall lived with
Father’s family and, during that time, often babysat the children,
becoming known as “Uncle Wayne.” Even after Wall moved out,
he would still visit “once every other week or so” and would still
occasionally babysit the children.

¶3     In June 2018, when Daughter was six years old, Father took
the three children to a reservoir to go fishing. Father and the
children were to be joined by Wall. As Father and the children
pulled up to the reservoir, Daughter told Father that “Uncle
Wayne would take her in his room and pull her panties down and
put his bad spot under her bum.” Father “instantly” became
“angry and frustrated” and asked Daughter “if she was telling the

1. Wall and the State were each represented by two attorneys
below. For simplicity, we refer to the defense attorneys and the
prosecutors in the singular.

2. “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).


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                           State v. Wall


truth.” He told her that this kind of accusation was “not
something [they] need[ed] to joke [about] or make up.” Father
then instructed the children to wait in the car, and he “went to
[Wall’s] truck and confronted him about the situation.” When
Father confronted Wall with the allegation, Wall “instantly leaned
back” and “got very defeated.” “His eyes started going back and
forth really fast,” and “[h]e was stammering his words.”

¶4     Eventually, the children—including Daughter—got out of
the car and began “playing by the lake.” As they played, Father
continued to watch Wall, who had also exited his vehicle, and
noted that he was pacing and smoking more than usual. Father
contemplated how he could “kill [Wall] without [the] kids seeing
and dispos[e] of his body.” Father later testified, however, that he
also “wanted [Daughter’s accusation] to not be true” because his
“best friend [was] being accused of molesting [his] daughter.”

¶5     While the children were playing at the reservoir, Daughter
was hit in the head by a rock. Father bandaged her wound and
took the children home. He then contacted the police, who put
him in touch with an officer (Officer). Officer set up an interview
for Daughter for later that day with a detective (Detective) at the
local Children’s Justice Center (CJC).

       The CJC Interviews, Medical Examination, and Charges

¶6     During Detective’s initial interview with Daughter, she did
not disclose any abuse by Wall; instead, she talked about having
been hit in the head with a rock. Detective ended the interview
and asked CJC personnel to arrange for Daughter to be examined
by a pediatric sexual assault nurse practitioner (Nurse).

¶7     Two days later, Nurse met with Daughter. Nurse
explained that she performs “checkups on kids to make sure their
bodies are healthy” and that she would “see a child if someone
has been mean to them or been hurting their bodies.” Nurse asked
Daughter “if she knew where her private parts were” and what


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                            State v. Wall


she calls them. Daughter pointed “between her legs up at her
crotch” and said that she calls that area her “bad spot.” Nurse next
asked Daughter if anybody had touched her bad spot, and
Daughter replied, “Uncle Wayne when he lived with us.” Nurse
then conducted a physical exam of Daughter, which indicated
normal results for a child her age.

¶8     A few weeks later Detective interviewed Daughter again.
This time she recounted her allegation against Wall, including
that he had touched her inappropriately, though she gave
inconsistent numbers—including 8 and 100—when asked how
many times this had occurred. Wall was then charged with two
counts of aggravated sexual abuse of a child. Wall denied the
allegations, and the case proceeded to trial.

                              Voir Dire

¶9      Prior to trial, both the prosecutor and Counsel submitted
lists of proposed questions to be asked of potential jurors. At a
pretrial hearing, the court noted that the parties had “submitted
lengthy voir dire” and said, “If you really want any of the
questions asked, please highlight them for me because I’ve got
several pages of stuff. And . . . with the booklets we sent out to the
people, most of the questions are taken care of or I take care of
them in my preamble questions.”

¶10 Counsel subsequently informed the court that there were
five questions she specifically wanted to ask, one of which was,
“Do you believe children are capable of lying about significant
events?” As to that question, the court responded, “I’m not going
to give [it]. You make your own case when we get to it, but I’m
not going to ask whether they think any particular type of witness
is lying or not. I’ll allow you to make your arguments on that, but
I’m not going to ask that in voir dire.”

¶11 The court was also hesitant to allow the next question in
Counsel’s list: “Are you or a member of your family or a friend a


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                            State v. Wall


sexual assault counselor, social worker, psychotherapist,
psychologist, or psychiatrist?” The court explained that because
there were “only about four” such people in the local community,
Wall would “probably have to convince [the court] why [he]
need[ed]” the question. Wall responded by suggesting that the
question be modified and combined with a previously approved
question: “Have you, or any member of your family[,] or [a]
relative, or a friend been the victim of sexual assault or rape, or
been accused as the perpetrator of sexual assault or rape[,] . . . or
served as a juror on a sexual assault or rape case?” Counsel
suggested that the court simply add “or work[ed] in this field” to
that already approved inquiry. The court assented to that
suggestion.

                             The Trial

¶12    Father was the State’s first witness at trial. After
recounting Daughter’s disclosure on the way to the reservoir,
Father testified that the other children had partially confirmed
Daughter’s account. Specifically, on questioning by the
prosecutor, Father testified:

       Q. And did you confirm with the other kids
       anything?

       A. Yes.

       Q. What did you confirm?

       A. I confirmed that he had been taking her in his
       room by herself.

       Q. And by “her,” you mean [Daughter]?

       A. Yes.

Father then testified about meeting Wall at the reservoir and the
other events of that day. On cross examination, Counsel asked


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                          State v. Wall


specifically whether Father confirmed with the other children that
Wall would take Daughter alone into his room. Father confirmed
that he had. Counsel then asked, “And you didn’t tell [Officer]
that?” to which Father replied that he could not remember.

¶13 The State also called Detective, Nurse, and Daughter (who
was ten years old at the time of trial). Together, the State’s
witnesses testified to the facts recited above. The defense then
called Officer, a CJC interviewer, Father, and a former police
officer who had experience with sex crimes and who had
conducted “several hundred” forensic interviews of children.
When Officer took the stand for the defense, Counsel asked
Officer whether Father had reported “that he verified with the
other children what [Daughter’s] accusation was,” and Officer
answered, “No.”

          The Closing Arguments, Conviction, and Appeal

¶14 During closing arguments, Counsel began by focusing on
the State’s burden of proof. She then turned to Daughter’s
statements, saying, “Let’s take a moment to examine [Daughter’s]
story, or, rather, her five stories.” Counsel then walked the jury
through inconsistencies that had appeared in Daughter’s story
over time, and she highlighted questions about Daughter’s story
that had not been answered by the evidence presented. Counsel
also reviewed Father’s testimony, similarly calling into question
his credibility. In one instance, Counsel observed that “for the
very first time” at trial, Father had said that he confirmed
Daughter’s accusation with his other children but that Father had
not reported this to Officer or Detective. Counsel then argued,
“[Father] performed for you and told you that.”

¶15 Counsel then addressed the State’s investigation, saying,
among other things,

      After story number one, they didn’t charge Wayne
      Wall; after story number two, they didn’t charge


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                          State v. Wall


      Wayne Wall; after story number three, they did not
      . . . charge Wayne Wall. [Detective] had to make it
      happen, and so he went back and got story number
      four.

            And when that story didn’t . . . make sense,
      he took action to create the story.

Counsel identified additional questions that had been left
unanswered by the evidence, and she noted potential witnesses
who had not been called to testify, including Daughter’s siblings,
saying, “This is an example of the State showing you only what
they want you to see” and “the State is withholding those
witnesses from you because they don’t have anything of value.”

¶16   Counsel also critiqued the prosecutor, asserting,

      From the questioning, it became very clear that the
      prosecutor[] had met with [Daughter] prior to her
      testimony and reviewed what was there and what
      wasn’t there, and they needed to come up with an
      explanation.

             As I said to you, every single time a story was
      told by [Daughter], an adult came in and cleaned it
      up. [The prosecutor] did [that] for [Daughter] on the
      witness stand.

Finally, Counsel concluded by arguing, “It’s the job of the
government, with all of their resources, with all of their
professionals, all of their—the people on their CJC team, to seek
justice for everyone; but somewhere and somehow that has
changed into seeking convictions.”

¶17 In her rebuttal closing argument, the prosecutor responded
by saying,




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                             State v. Wall


       [Counsel] spoke about a lot of things that simply
       aren’t in evidence. She put words in people’s
       mouths . . . she wants to make you think or try to get
       you to believe that people thought something or
       should have thought something or said something,
       including me, which just simply are incorrect.

              Some of those things are just not in evidence.
       She wants to make a big deal about that, that they’re
       not in evidence and, therefore, there’s no case; but I
       would just ask you to not worry about all of that side
       stuff.

The prosecutor continued, “I don’t have anything to attack or
anything to defend. I just simply want to tell the story . . . .”

¶18 The prosecutor then recounted some of the testimony of
each of the State’s witnesses. In the midst of this recitation, the
prosecutor observed,

       It seems like [Counsel] want[s] to make a big deal
       that steps were done improper, that I’m only here to
       get a conviction. [Counsel] wants you to believe that
       there was corruption in all of these different steps,
       when we’re each just doing our jobs and following
       up on some allegations that [Daughter] made about
       [Wall].

¶19 Later, the prosecutor said, “[Daughter has] had the same
consistent story all along . . . . She has no reason to lie; she has no
reason to elaborate. This family has no reason to lie. I have no
reason to misconstrue details.” Counsel objected to this last
statement as “bolstering the witness.” The court overruled the
objection, explaining that “it’s closing argument and, you know,
everybody gets to say what they think about what the witness has
testified.”




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                              State v. Wall


¶20 Following the closing arguments, the jury found Wall
guilty on both counts of aggravated sexual abuse of a child, and
Wall now appeals.


             ISSUES AND STANDARDS OF REVIEW

¶21 Wall raises four issues on appeal. He first asserts that the
district court improperly limited voir dire when it did not allow
his question regarding the believability of children. “We review a
judge’s decision imposing limits on voir dire questioning for an
abuse of discretion.” 3 State v. Reece, 

, 

.

¶22 Second, Wall claims that the district court erred when it
overruled Counsel’s objection to certain statements in the
prosecutor’s closing argument. “[W]hen a prosecutorial
misconduct objection is made below, we review the district
court’s ruling on the objection for abuse of discretion.” State v.
Lyden, 

, 

.

¶23 Wall’s third and fourth claims are that Counsel was
ineffective by (1) not objecting to additional statements the
prosecutor made during her closing argument and (2) not
objecting to Father’s hearsay statements regarding what the other
children told him. “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




3. The State contends that part “of Wall’s voir dire claim is
unpreserved.” We address Wall’s voir dire claim without
resolving the preservation issue. See State v. Kitches, 

, 

 (“[I]f 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.”).


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                           State v. Wall


law.” State v. Guerro, 

, 

 (cleaned
up).


                            ANALYSIS

                       I. Limits to Voir Dire

¶24 Wall asserts that the district court exceeded its discretion
by rejecting his requested voir dire question, “Do you believe
children are capable of lying about significant events?” We
conclude that the court did not abuse its discretion.

¶25 “The purpose of voir dire examination is both the detection
of actual bias and the collection of data to permit informed
exercise of the peremptory challenge.” State v. Reece, 

, 

 (cleaned up). District courts are not required to
“permit every question that might disclose some basis for counsel
to favor or disfavor seating a particular juror.” 

 (cleaned up).
However, district courts “should be permissive in allowing voir
dire questions and should exercise their discretion in favor of
allowing counsel to elicit information from prospective jurors.” 

(cleaned up). Despite this permissiveness, defendants do not have
a right to have questions asked “in a particular manner.” 

(cleaned up).

¶26 Additionally, the range of discretion a court has in
deciding whether to permit a particular voir dire question varies
depending on the topic at issue. “If the proposed question directly
relates to bias and prejudice, the scope of the [district] court’s
discretion is strictly limited” and “must be exercised in favor of
allowing discovery of biases or prejudice in prospective jurors.”
State v. Leleae, 

, 

 (cleaned up).
On the other hand, the court’s discretion “increases . . . as the
direct relationship of the question to bias and prejudice
decreases.” 

 And when questions “are more clearly directed at
discovering jurors who would be favorable” to the defendant’s



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                           State v. Wall


“theory of the case,” the district court “has the greatest degree of
freedom to exclude them.” State v. Piansiaksone, 

(Utah 1998). Indeed, “questions or statements about specific
defenses, scenarios, or evidence—even presented as
hypotheticals—should be excluded from juror examination.”
State v. Williams, 

, 

. “Simply
stated, these types of ‘stakeout’ questions are improper.”4 

¶27 The question at issue here—“Do you believe children are
capable of lying about significant events?”—was quite clearly
aimed at discovering jurors who would be favorable to the
defense’s theory that Daughter was lying about the abuse. Our
opinion in State v. Leleae, 

, 

, is
instructive on this point. There, the district court rejected a
proposed voir dire question that read, “Do any of you believe that
an eyewitness can never make a mistake?” Id. ¶ 29. We viewed
that question as not addressing “a possible prejudice or bias” but,
rather, as “a thinly veiled attempt to ferret out which jurors were
more likely to believe [the] defendant’s theory of the case,” id.
¶ 30, namely, that an eyewitness who identified the defendant as
having been among the people who assaulted the victim was
mistaken, see id. ¶¶ 6‒12. Similarly here, the proposal to ask
potential jurors whether they “believe children are capable of
lying about significant events” was at least as much about Wall’s
theory of the case—that Daughter was lying—as it was a neutral
inquiry into potential juror bias regarding child witnesses. And it


4. In State v. Williams, 

, 

, we
acknowledged that there are exceptions to the general prohibition
of stakeout questions when “matters of intense controversy” are
involved. 

 ¶ 31 n.11 (cleaned up). But we said that those
exceptions did not apply in Williams, which involved sexual abuse
of children. See id. ¶¶ 1, 31 n.11. Because we implicitly decided in
Williams that child sex abuse cases are not matters of intense
controversy for purposes of voir dire, the exceptions we
acknowledged in Williams do not apply here.


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                            State v. Wall


appears that the district court viewed the question this way when,
in rejecting the question, it said, “You make your own case when
we get to it . . . . I’ll allow you to make your arguments on that,
but I’m not going to ask that in voir dire.” We therefore see no
abuse of discretion in the court’s refusal to allow that question.

¶28 At the same time, we acknowledge that Wall’s question
was also arguably aimed, at least in part, at discovering bias
regarding child witnesses, which, when relevant, may be a proper
subject of voir dire. Accordingly, Wall contends that the court’s
denial of the opportunity to ask the question he proposed was a
refusal by the court to permit any inquiry into potential juror bias
regarding child witnesses. For three interrelated reasons, we
disagree.

¶29 First, a question could have been constructed to discover
bias regarding child witnesses without simultaneously
telegraphing Wall’s specific theory of the case. For example, the
court asked the potential jurors the following appropriately
worded question about bias regarding law enforcement officers:
“Would you give more or less weight to the testimony of a law
enforcement officer just because the witness is a law enforcement
officer, or would you treat a law enforcement officer the same as
any other witness?” And a similarly worded question could have
been asked about child witnesses.

¶30 Second, it was not the court’s responsibility to craft a
proper question about potential bias regarding child witnesses,
especially where, after the question he proposed was rejected,
Wall never alerted the court that the purpose of his question was
to discover such bias and not to ferret out which jurors were
amenable to his theory of the case. See State v. Dixon, 

 (Mo. 1986) (en banc) (agreeing that the defendant was
entitled to voir dire inquiry on a particular subject, but noting that
after an objection to his initial voir dire was sustained, “[c]ounsel
did not attempt to frame [an appropriate] question,” and



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                             State v. Wall


concluding that “[t]he court had no obligation to frame a question
for him”).

¶31 Finally, there is no indication that the court would not have
been amenable to a rephrased question aimed at discovering bias
related to child witnesses if Wall had proposed one. Indeed,
immediately after the court rejected Wall’s question about the
truthfulness of child witnesses, it expressed hesitancy to ask
Wall’s next proposed question as well. Wall responded by
suggesting that the question be modified and combined with a
previously approved question. The court approved that
suggestion, evidencing a willingness to work with Wall to craft
voir dire questions that addressed appropriate topics while
eschewing inappropriate ones.

¶32 For the foregoing reasons, the court did not exceed its
discretion in refusing to allow Wall’s voir dire question, “Do you
believe children are capable of lying about significant events?”
And by refusing to allow that question, the court did not prevent
all inquiry into potential juror bias regarding child witnesses. In
sum, Wall’s arguments in this regard provide no basis for
reversal.

     II. The Objection to the Prosecutor’s Closing Argument

¶33 Wall next asserts that the district court abused its discretion
when it overruled his objection to the following statements of the
prosecutor during closing arguments: “[Daughter has] had the
same consistent story all along . . . . She has no reason to lie; she
has no reason to elaborate. This family has no reason to lie. I have
no reason to misconstrue details.” We ascertain no such abuse of
discretion.

¶34 At trial, Counsel objected to the prosecutor’s statements as
“bolstering the witness.” “We acknowledge the impropriety of a
prosecutor bolstering a witness by vouching for [the witness’s]
credibility.” State v. Ashcraft, 

, 

 (cleaned


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                           State v. Wall


up). Such “impermissible vouching . . . occurs when the
prosecution places the prestige of the government behind the
witness by making explicit personal assurances of the witness’[s]
credibility, or implicitly indicates that information not presented
to the jury supports the testimony.” 

 (cleaned up).

¶35 Wall argues that by telling the jury she “ha[d] no reason to
misconstrue the details,” the prosecutor impermissibly “crosse[d]
the line into ‘personal assurances’” (quoting id.) and “gave ‘the
impression that evidence not presented to the jury, but known to
the prosecutor, supports the charges against the defendant,’ and
invited ‘the jury to trust the Government’s judgment rather than
its own view of the evidence’” (quoting State v. Thompson, 

, 

). We disagree.

¶36 The prosecutor did not indicate explicitly that she had
access to evidence that had not been presented to the jury. And
when viewed in context, her comment did not implicitly convey
that she was relying on extra-record evidence to vouch for any
witness’s credibility either.

¶37 Counsel had ended her closing argument by questioning
the prosecutor’s motive, saying that rather than “seek[ing]
justice,” the prosecutor was “seeking convictions” and that the
prosecutor was doing so by “com[ing] up with an explanation”
for evidence Counsel claimed was missing and by helping
Daughter to “clean . . . up” her story “on the witness stand.”
Against that backdrop, the prosecutor used her rebuttal closing
argument to summarize key evidence, explain why the State did
not have and present other evidence, and give common sense,
evidence-based reasons why Father and Daughter should be
believed. In that context, the prosecutor’s statement that she
“ha[d] no reason to misconstrue the details” was clearly a
comment on her own candor in summarizing the evidence, not as
a personal assurance of any witness’s credibility. Because the
prosecutor gave no “personal assurances of [a] witness’[s]



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                             State v. Wall


credibility,” Ashcraft, 

 (emphasis added) (cleaned
up), the prohibition against witness bolstering simply is not
implicated here.

¶38 Wall further argues, however, that the prosecutor’s
assertion that she had no reason to misconstrue the details
“inaccurately conveyed that the prosecutor was neutral and
objective in asking the jury to convict” and that this inaccuracy
was impermissibly “misleading.” In other words, Wall asserts,
“the prosecutor effectively urged the jury to take her word for it,
as a neutral party without a reason to spin the evidence one way
or another,” and thereby “improperly bolstered the State’s case.”
(Emphasis added.) We are not convinced.

¶39 In State v. Redcap, 

, 

, abrogated
on other grounds as recognized by State v. Hosman, 

,

, a case arising out of a prison fight, the defense
attorney asserted in closing that one of the testifying officers in
the case had acted as he did because he “had ‘a job to do and that’s
to try to get a conviction.’” Id. ¶¶ 1, 36. In response, the prosecutor
asserted that the officers in the case “‘ha[d] no bias,’ because ‘their
job is to protect everybody out there’ and ‘[t]hey’re on duty to
protect all the inmates.’” Id. ¶ 36. On appeal, the defendant
claimed that his trial counsel had been ineffective for not objecting
to the prosecutor’s response. See id. ¶¶ 31‒36. We observed,
however, that “the doctrine of fair reply allows a prosecutor to
make a counteracting statement after defense counsel opens the
door on the issue.” Id. ¶ 38 (cleaned up). We then concluded that
“the prosecutor’s comments about the credibility of the testifying
officers were a fair reply to defense counsel’s argument that the
officers were not credible and that they were tasked to secure a
conviction.” Id. ¶ 39.

¶40 Just as defense counsel in Redcap argued that the officer
was pursuing an agenda of simply “try[ing] to get a conviction,”
id. ¶ 36, Counsel argued here that “somewhere and somehow” the



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                             State v. Wall


prosecutor had “changed” from “seek[ing] justice” to simply
“seeking convictions.” Even though the prosecutor’s response in
this case was in support of her own professional integrity rather
than that of a witness, the fair reply doctrine still applies. Her
assurance that she had no reason to misconstrue the details of the
case was a fair reply to Counsel’s argument that she was merely
seeking a conviction.

¶41 For the foregoing reasons, the district court did not abuse
its discretion by overruling Wall’s objection to the prosecutor’s
closing argument.

               III. Ineffective Assistance of Counsel

¶42 Finally, Wall contends that Counsel provided ineffective
assistance by (1) failing to object to other statements made by the
prosecutor in her closing argument and (2) failing to object to
Father’s hearsay testimony. To establish that Counsel provided
ineffective assistance of counsel, Wall must establish “that
counsel’s performance was deficient” and that this “deficient
performance prejudiced the defense.” Strickland v. Washington,

 (1984). Because Wall must establish both prongs
of this test, if he fails to make either showing, his claims fails. See

 As explained below, we conclude that Wall failed to establish
that counsel performed deficiently under either of his theories,
and we therefore affirm Wall’s convictions.

A.     The Prosecutor’s Statements

¶43 Wall first argues that Counsel provided ineffective
assistance by failing “to object to additional prosecutorial
misconduct maligning defense counsel.” The specific statements
that Wall contends reasonable counsel would have objected to fall
into three groups.

¶44 First, Wall points to several instances where the prosecutor
claimed Counsel had made inaccurate assertions. Specifically, the



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                          State v. Wall


prosecutor said that Counsel had “put words in people’s mouths”
and tried “to get [the jury] to believe that people thought
something or should have thought something or said something,
including [the prosecutor], which just simply [were] incorrect.”
Counsel did not perform deficiently by failing to object to these
statements because she had made inaccurate assertions. For
example, although the prosecutor never questioned Daughter
about whether she heard any sounds when Wall abused her,
Counsel argued, “She was asked that question by [the
prosecutor]: ‘Did you hear any sounds? Did he say anything?’
Nope.” Similarly, even though Detective testified that he
interviewed Father’s other daughter, Counsel argued that “[n]o
one interviewed” her. Thus, in the face of the claim that she had
put words in people’s mouths and tried to get the jury to believe
things that were not correct, Counsel might reasonably have
forgone an objection to avoid the prosecutor responding by
pointing out specific instances where Counsel had done just that.

¶45 Second, Wall contends that Counsel performed deficiently
by not objecting when, after noting to the jury that Counsel had
made both inaccurate assertions and “a big deal” about things
that were not in evidence, the prosecutor asked the jury to “not
worry about all of that side stuff.” But reasonable counsel could
conclude that there was nothing improper about a prosecutor
characterizing misstatements of the evidence, and matters that
were not in evidence, as “side stuff” and therefore forgo an
objection.

¶46 Lastly, Wall asserts that Counsel performed deficiently by
not objecting when the prosecutor (1) asserted that Counsel
wanted the jury to “believe that there was corruption” in the way
the State actors investigated the case; (2) pushed back on the
notion that the prosecutor was “only [there] to get a conviction”;
and (3) represented that the prosecutor “[didn’t] have anything to
attack or anything to defend” and the State actors were “each just




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                           State v. Wall


doing [their] jobs and following up on some allegations that
[Daughter] made about [Wall].”

¶47 Yet Counsel had just argued that even after Daughter had
told three “stories” about the abuse, the State knew it could not
charge Wall and, therefore, tasked Detective with “[going] back
and [getting] story number four.” “And when that story didn’t . . .
make sense,” Counsel had contended, “[Detective] took action to
create the story.” She had said that the prosecution was showing
the jury “only what [it] want[ed] [the jury] to see” and
“withholding [certain] witnesses from” the jury. She had asserted
that “the prosecutor[] had met with [Daughter] prior to her
testimony and reviewed what was there and what wasn’t there,”
knew the prosecution “needed to come up with an explanation,”
and therefore had “an adult [come] in and clean[] . . . up” “every
single time a story was told by [Daughter].” And Counsel had
concluded by contending that, although “[i]t’s the job of the
government . . . to seek justice[,] . . . somewhere and somehow that
[had] changed into seeking convictions.”

¶48 Given the picture the foregoing assertions could paint,
Counsel might have reasonably believed, along the lines of our
analysis above, see supra ¶¶ 38‒40, that any objection to the
prosecutor’s statements in response would have been overruled
on the basis that they were fair reply. Counsel might also have
reasonably chosen not to risk undercutting her own credibility by
appearing, through an objection based on “improper maligning
of the defense,” to be seeking an unfair advantage by depriving
the prosecutor of the chance to respond to Counsel’s own harsh
criticism.

¶49 For the foregoing reasons, Wall has not shown that
Counsel performed deficiently by failing to lodge additional
objections to the prosecutor’s closing argument, and this
ineffective assistance claim therefore fails.




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                           State v. Wall


B.     Father’s Hearsay Testimony

¶50 Wall also contends that Counsel provided ineffective
assistance “by failing to object to [Father’s] hearsay testimony.”
At trial, Father was asked whether, after learning from Daughter
about Wall’s abuse, he “confirm[ed] with the other kids
anything.” Father responded, “Yes. . . . I confirmed that [Wall] had
been taking [Daughter] in his room by herself.” Failure to object
to this statement was not deficient performance.

¶51 The failure to object “to an error does not automatically
render counsel’s performance deficient.” State v. Ray, 

, 

. Rather, to succeed on his claim, Wall must
“overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Strickland v. Washington, 

 (1984) (cleaned up). And
sound trial strategy may include using improper testimony to the
defendant’s advantage. See Ray, 

 (“If it appears
counsel’s actions could have been intended to further a reasonable
strategy, a defendant has necessarily failed to show unreasonable
performance.”). Such is the case here.

¶52 Counsel used Father’s hearsay testimony for impeachment
by asking Father if he had reported to the police the other
children’s statements. Father responded, “I don’t remember.”
Counsel then had Officer, to whom Father initially reported the
abuse, testify. Counsel asked Officer whether Father had reported
“that he verified with the other children what [Daughter’s]
accusation was,” and Officer responded, “No.” Then in closing,
Counsel argued that because Father had not initially reported the
other children’s statements, his testimony on that point at trial
was merely a “perform[ance] for” the jury. Additionally, Counsel
appears to have anticipated that if she had succeeded on a hearsay
objection, the prosecution would have called the other children to
testify. Therefore, instead of objecting, she used their absence to
her advantage, arguing in closing that because “[t]hose children



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                            State v. Wall


didn’t come in and testify,” they were among the witnesses “the
State [was] withholding . . . from [the jury] because they don’t
have anything of value.” In short, Counsel made a calculated and
reasonable decision to use Father’s hearsay testimony to Wall’s
advantage. Thus, the decision not to object to that testimony was
not deficient performance, and this ineffective assistance claim
also fails.


                          CONCLUSION

¶53 The district court did not abuse its discretion when it
rejected Wall’s proposed voir dire question about the truthfulness
of child witnesses. Neither did the court abuse its discretion when
it overruled Wall’s objection to statements made by the
prosecutor during closing arguments at trial. And Counsel did
not provide ineffective assistance by failing to object to additional
statements by the prosecutor or by failing to object to hearsay
statements by Father. Accordingly, we affirm Wall’s convictions.




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