State v. Lintzen

2015 UT App 68
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ANTHONY LINTZEN,
Defendant and Appellant.

Opinion
No. 20120814-CA
Filed March 26, 2015

Fourth District Court, Heber Department
The Honorable Derek P. Pullan
No. 111500127

Dana M. Facemyer, Attorney for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JOHN A. PEARCE and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1

ROTH, Judge:

¶1 Defendant Anthony Lintzen appeals his conviction for
aggravated sexual abuse of a child, a first degree felony. We
affirm.

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).
 State v. Lintzen

BACKGROUND

¶2 Lintzen sexually abused his stepdaughter (Stepdaughter)
for several years.2 The first time the abuse occurred,
Stepdaughter was in kindergarten or first grade and Lintzen
licked her genital area. Following this first incident, Lintzen
continued to sexually abuse Stepdaughter in various ways over
the next several years. Lintzen also showed her pornographic
pictures and videos of adults and children engaged in sexual
acts.

¶3 Stepdaughter first reported the abuse to her biological
father who told her that if Lintzen tried to abuse her again,
Stepdaughter should tell her mother (Mother) or the police.
Stepdaughter eventually reported the abuse to her sister, who
told Mother. Mother asked Lintzen to move out, and he did so
for a few weeks. In the meantime, at Lintzen’s urging, Mother
allowed Stepdaughter to talk with a family friend (Friend), a
Peruvian citizen, who Lintzen believed ‚had some kind of
background‛ related to child pornography cases. Friend spoke
with Stepdaughter and then told Mother and Lintzen that it was
his opinion that Stepdaughter was being exposed to
pornographic material by someone but that it was not Lintzen.
Lintzen convinced Mother that he had done nothing wrong and
moved back in. Stepdaughter’s allegations were not reported to
authorities.

¶4 A few months later, in September 2011, when
Stepdaughter was ten years old, Lintzen abused Stepdaughter

2. ‚*W+e recite the facts in the light most favorable to the jury’s
verdict, but present conflicting evidence to the extent necessary
to clarify the issues raised on appeal.‛ State v. Vigil, 922 P.2d 15,
18 (Utah Ct. App. 1996) (citation and internal quotation marks
omitted).

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again while Mother was at work and Stepdaughter was home
with her brother and sister (the Charged Incident). Her siblings
were in the basement, and Stepdaughter fell asleep while
watching television on Mother’s bed. Lintzen entered the room
and began massaging Stepdaughter’s back. When she started to
wake up, he told her to go back to sleep and continued the
massage, eventually massaging her breasts and genitals both
over and under her clothing. Stepdaughter was alert enough to
feel the touching and looked down to see Lintzen touching her
vaginal area. After she awoke completely, Lintzen asked her if
she had had a nice dream.

¶5 A day or two later, Stepdaughter was waiting in the car
with her sister when she saw her neighbor who was a police
officer. Stepdaughter approached the officer and told him what
Lintzen had done to her during the Charged Incident. The officer
called the sheriff’s office, and another officer spoke with
Stepdaughter and filed a report. Stepdaughter was later
interviewed by a detective at the Children’s Justice Center (the
CJC). She reported that Lintzen had abused her multiple times
over the years and that some of these incidents had involved
Lintzen penetrating her both vaginally and anally with his penis
and his fingers. Stepdaughter also stated that, in addition to the
touching she had reported earlier to officers, Lintzen had
penetrated her with both his penis and his fingers during the
Charged Incident.

¶6 Lintzen was charged with aggravated sexual abuse of a
child. Before trial, the State filed a motion in limine seeking
admission of evidence of Lintzen’s prior abuse of Stepdaughter.
The trial court granted the motion, admitting evidence related to
the prior incidents of sexual abuse under rule 404(c) of the Utah
Rules of Evidence. The court admitted evidence of
Stepdaughter’s allegations that Lintzen showed her
pornography under rule 404(b).

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 State v. Lintzen

¶7 Stepdaughter testified at trial. After she described the first
time she was abused by Lintzen, Stepdaughter testified about
the Charged Incident. When Stepdaughter described Lintzen
touching her genitals with his hand, the State asked her whether
his fingers ‚stay*ed+ outside of *her+ body, or did they ever go
inside of *her+ body‛ during the incident. Stepdaughter replied,
‚*O+utside.‛3 Stepdaughter then testified about other incidents of
abuse that had occurred prior to the Charged Incident. Her
testimony about these events was also different from the
statements she had made at the CJC about these same incidents
because her testimony seemed to imply, at least in the defense’s
view, that no penetration, either vaginal or anal, had ever
occurred.4

¶8 The nurse practitioner who examined Stepdaughter after
the Charged Incident (the Nurse) also testified at trial. The Nurse
testified that she had recommended counseling for Stepdaughter
and her entire family, including an evaluation regarding
counseling for Stepdaughter’s brother (Brother). When defense
counsel asked the Nurse about the recommended evaluation and
counseling for Brother, she explained that Mother had told her

3. While it does not appear Stepdaughter was ever asked directly
if Lintzen penetrated her with his penis as well as his fingers
during the Charged Incident, the parties seem to be in agreement
that Stepdaughter’s testimony effectively refuted any prior claim
she may have made of penile penetration during the Charged
Incident.

4. The State contests this interpretation on appeal, arguing that
Stepdaughter’s testimony at trial amounted to a denial of
penetration during the Charged Incident but was consistent with
allegations that vaginal penetration had occurred during prior
incidents. Because of the way we resolve the issues on appeal,
we conclude that it is unnecessary to resolve this dispute.

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 State v. Lintzen

that Brother ‚had four or five years of problems with
pornography and masturbating in front of his siblings.‛ The
Nurse also testified that Mother had told her ‚that if anyone
could have been a sexual abuser it would have been *Brother+.‛
Lintzen then moved for admission of the written medical report
that the Nurse had prepared as a result of her examination and
interviews with Stepdaughter and her family. The trial court
denied the motion on hearsay grounds and also observed that
the document contained essentially the same statements about
Brother that the Nurse had already testified to and was therefore
cumulative as well.

¶9 The jury convicted Lintzen of one count of aggravated
sexual abuse of a child. Lintzen filed a motion for a new trial
arguing that the trial court had erred in its evidentiary rulings by
admitting the State’s evidence of prior abuse and by excluding
the Nurse’s written report from evidence. He also argued that he
was entitled to a new trial based on the discovery of new
evidence, namely the testimony of Friend, whose whereabouts
Lintzen had only recently discovered.5 The trial court denied the
motion, and Lintzen appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Lintzen argues that the trial court erred when it admitted
evidence of his prior abuse of Stepdaughter at trial. ‚A trial
court’s admission of prior bad acts evidence is reviewed for
abuse of discretion, but the evidence must be scrupulously

5. Lintzen told the court that he had intended to call Friend as a
witness but had been unable to locate him in time for trial. But
after the trial was over, Lintzen reported that Mother had
provided him with Friend’s contact information in Peru, where
he had moved before the trial began.

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 State v. Lintzen

examined by trial judges in the proper exercise of that
discretion.‛ State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673 (citation
and internal quotation marks omitted); see also State v. Bragg,
2013 UT App 282, ¶ 16, 317 P.3d 452.

¶11 Lintzen also argues that the trial court erred when it
denied his motion for a new trial. A trial court’s denial of a
motion for a new trial is reviewed for abuse of discretion. State v.
Billingsley, 2013 UT 17, ¶ 9, 311 P.3d 995. The trial court’s factual
findings underlying the decision are reviewed for clear error,
and the court’s application of law to those facts is reviewed for
correctness. Id.

ANALYSIS

I. The In Limine Order

¶12 Lintzen argues that the trial court ‚erred in entering the
[in] limine order,‛ which permitted evidence at trial of Lintzen’s
prior abuse of Stepdaughter. We conclude that the trial court
thoroughly considered the appropriate factors before deciding to
admit evidence of Lintzen’s prior abuse of Stepdaughter and
that the in limine order was an appropriate exercise of its
discretion regarding the admission of evidence.

¶13 Before trial, the State sought admission of ‚uncharged
crimes, wrongs, or acts committed by [Lintzen] against
*Stepdaughter+‛ under rules 404(b) and 404(c) of the Utah Rules
of Evidence. In particular, the State sought the admission under
rule 404(c) of evidence related to Stepdaughter’s statements in
the CJC interview that (1) Lintzen had sexually abused her
‚more than 20 times‛; (2) the first such incident occurred when
she was very young and involved Lintzen licking her genitals
while Mother was in the shower; (3) Lintzen had required her to
touch or lick his penis as many as four times; (4) Lintzen had
penetrated her anally with his penis more than once and ‚kinda‛

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penetrated her vaginally on one occasion; and (5) Lintzen had
shown her pornographic material, some of which depicted
children.

¶14 Rule 404(b) prohibits admission of evidence of ‚crime[s],
wrong[s], or other act*s+‛ for the purpose of proving ‚a person’s
character in order to show that on a particular occasion the
person acted in conformity with the character,‛ otherwise
known as propensity evidence. Utah R. Evid. 404(b)(1).
However, such evidence may be admitted for other purposes,
such as to prove ‚motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.‛ Id.
R. 404(b)(2). There is an important exception to the general bar
on admission of propensity evidence where ‚a defendant is
accused of child molestation‛; in such circumstances, rule 404(c)
permits a court to ‚admit evidence that the defendant committed
any other acts of child molestation to prove a propensity to commit
the crime charged.‛ Id. R. 404(c)(1) (emphasis added). ‚‘[C]hild
molestation’ means an act‛ involving ‚a child under the age of
14 which would, if committed in this state, be a sexual offense or
an attempt to commit a sexual offense.‛ Id. R. 404(c)(3).

¶15 Before admitting such evidence, a trial court must
consider whether ‚its probative value is substantially
outweighed by a danger of . . . unfair prejudice.‛ Id. R. 403; see
also State v. Verde, 2012 UT 60, ¶¶ 17–18, 296 P.3d 673 (holding
that rule 403 assessment ‚is essential to preserve the integrity of
rule 404(b)‛); State v. Ferguson, 2011 UT App 77, ¶ 15 n.4, 250
P.3d 89 (holding that evidence may come in under rule 404(c)
only after an analysis under rule 403). In conducting a rule 403
analysis, the trial court may consider what have become known
as the Shickles factors, which include (1) ‚‘the strength of the
evidence as to the commission of the other crime,’‛ (2) ‚‘the
similarities between the crimes,’‛ (3) ‚‘the interval of time that
has elapsed between the crimes,’‛ (4) ‚‘the need for the
evidence,’‛ (5) ‚‘the efficacy of the alternative proof,’‛ and (6)
‚‘the degree to which the evidence probably will rouse the jury

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 State v. Lintzen

to overmastering hostility.’‛ State v. Burke, 2011 UT App 168,
¶ 34, 256 P.3d 1102 (quoting State v. Shickles, 760 P.2d 291, 295–96
(Utah 1988)). Each factor need not be considered in every case,
but a district court evaluating 404(b) and 404(c) evidence should
consider those factors it finds ‚helpful in assessing the probative
value of the evidence.‛ State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d
841; Burke, 2011 UT App 168, ¶ 34 (applying the Shickles factors
to an analysis of evidence admitted under rule 404(b)); Ferguson,
2011 UT App 77, ¶ 15 n.4 (explaining that the Shickles factors are
also applicable to a rule 403 analysis of rule 404(c) evidence).

¶16 Here, the trial court determined the prior acts the State
sought to admit, other than the evidence related to allegations
that Lintzen showed Stepdaughter pornography, admissible
under rule 404(c).6 The trial court then analyzed the evidence
under rule 403 by applying the Shickles factors and determined
that the danger of unfair prejudice did not substantially
outweigh the probative value of the evidence. Lintzen argues the
trial court erred in reaching this conclusion. In doing so, Lintzen
appears to focus specifically on the trial court’s analysis of the
second and third Shickles factors—similarity of the crimes and
the time interval between the crimes—as the bulk of his
argument centers on his contentions that the prior acts are too
egregious in comparison to the Charged Incident or too distant
in time to warrant admission under rule 403.

¶17 In determining whether the prior acts and the Charged
Incident were sufficiently similar, the trial court acknowledged
the prior acts of sodomy were ‚more egregious‛ but ultimately

6. On appeal, Lintzen contests the admission of the 404(c)
evidence but not the court’s determination that the
pornography-related evidence was admissible under rule 404(b).
Accordingly, we do not address the pornography-related
evidence further.

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 State v. Lintzen

found all of the prior acts that Stepdaughter had described in her
statements were ‚generally consistent *with+ the digital
penetration‛ that was alleged to have occurred in the Charged
Incident. In a particularly thorough written analysis, the court
noted that ‚*b+efore Rule 404(c), one primary concern in
admitting other acts similar to the charged offense was that the
jury would engage in propensity reasoning, punishing the
Defendant because he was the sort of person who does this type
of thing.‛ However, the court then explained that ‚*a+fter Rule
404(c), the accused’s propensity is the reason for admission and
no longer constitutes unfair prejudice.‛ The trial court also
acknowledged the danger that a jury might be tempted to
convict a defendant not simply because the evidence supports a
conviction but to punish him for the other bad acts. However,
paraphrasing State v. Reed, 2000 UT 68, 8 P.3d 1025, the trial court
determined that

most important[ly], similar acts of abuse
committed by the same defendant, against the
same victim, during the same uninterrupted course
of conduct are not likely to prejudice a jury,
because jurors will either believe or disbelieve
[Stepdaughter] based on her own credibility, not
on whether she asserts that act occurred three
times or six times.

In considering the ‚interval of time‛ factor, the trial court again
relied on the ‚course of conduct‛ concept, determining that ‚*a+
period of five to six years is not a long interval of time‛ when
‚*t+he acts occurred frequently and were part of an on-going
course of conduct.‛

¶18 Lintzen criticizes the trial court’s reliance on Reed, but we
believe the case is useful here. In Reed, the defendant befriended
a ten-year-old child, eventually molesting him twenty to thirty
times over a three-and-a-half-year period. Id. ¶¶ 2, 6. The
defendant was charged with two counts of sodomy on a child

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and one count of aggravated sexual abuse. Id. ¶ 1. The defendant
opposed the admission at trial of evidence of other acts of
uncharged abuse against the same child, arguing that it was
unduly prejudicial. Id. ¶¶ 20, 30. But the supreme court held that
testimony about the other acts ‚allowed the victim to describe
the full scope of the context in which [the defendant] abused him
over three and one-half years.‛ Id. ¶ 31. The court also
determined that ‚*c+ontrary to *the defendant’s+ suggestion that
the aggravating offenses were ‘discrete and separate from the
primary’ offense, . . . they were essentially interchangeable, were
of the same nature and character as the primary offense, and
were carried out on the same victim during the same
uninterrupted course of conduct.‛ Id. While the Reed court noted
that prior acts evidence is not generally admissible in cases
involving multiple victims because it ‚could inappropriately
lead jurors to conclude that if the defendant abused [others],
then he likely also abused *the victim in question+,‛ the court
observed that ‚*t+his is clearly different from the situation in
which a defendant commits essentially interchangeable acts of
abuse against a specific victim through a specific course of
conduct.‛ Id. ¶ 31 n.5. The court therefore admitted the prior
acts, determining that ‚[s]uch evidence of multiple acts of
similar or identical abuse is unlikely to prejudice a jury; jurors
will either believe or disbelieve the testimony based on the
witness’s credibility, not whether the witness asserts an act
occurred three times or six.‛ Id. ¶ 31.

¶19 Like Reed, this case involves an adult defendant who had
a relationship with a young victim and then sexually abused that
child in a number of ways on multiple occasions over several
years. And the acts of ‚fondling the victim’s genitalia and anal
area, performing fellatio on the victim, and engaging in sodomy‛
that the Reed court characterized as ‚essentially interchangeable
acts of abuse,‛ id. ¶¶ 6, 31 n.5, are not unlike the course of prior
abuse that Stepdaughter described here. As in Reed, the trial
court here had a reasonable basis for its determination that
Lintzen’s prior acts of abuse against Stepdaughter were part of

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 State v. Lintzen

an ongoing pattern of abuse, a ‚course of conduct,‛ with
considerable probative weight because they were all acts of a
sexual nature committed against a single child victim. It was not
unreasonable for the trial court to conclude here, as the court did
in Reed, that jurors would ‚either believe or disbelieve the
testimony based on the witness’s credibility, not whether the
witness asserts an act occurred three times or six.‛ See id. ¶ 31.
Moreover, it is important to note that in weighing the probative
value of evidence against the danger of unfair prejudice, the
court in Reed was not working within the context of rule 404(c),
as that rule was still years away from being adopted. Here,
under rule 404(c), the probative weight of the prior acts evidence
was significantly greater—and the risk of unfair prejudice
considerably less—because the rule now permits juries to
consider a defendant’s propensity to molest children as
demonstrated by prior acts of child molestation. As the trial
court stated here, ‚the accused’s propensity is the reason for
admission and no longer constitutes unfair prejudice.‛

¶20 Despite Reed’s similarities to the case at hand, Lintzen
argues the trial court’s reliance on Reed was misplaced because it
failed to take into account the guidance of later cases,
particularly State v. Balfour, 2008 UT App 410, 198 P.3d 471, and
State v. Hildreth, 2010 UT App 209, 238 P.3d 444. He claims that
those cases ‚recently and repeatedly determined that
presentation of more egregious prior acts to a jury in a criminal
matter pertaining to sexual assault is prejudicial to a defendant.‛
But both of those cases involved questions about the
admissibility of evidence showing that the defendant had
committed prior sexual offenses against different adult victims;
there was no ‚course of conduct‛ against a single child victim as
there was here.

¶21 In Balfour, this court determined that the defendant’s
touching or attempted touching of the breasts of multiple
women were all acts similar to each other, but the same
defendant’s actions of rubbing his penis against a different

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 State v. Lintzen

woman’s vagina over her clothing sixteen months earlier was
not. 2008 UT App 410, ¶¶ 3, 4, 6, 7, 21, 30. It is not at all clear that
the court would have reached the same conclusion had all the
acts involved the same victim, especially had the victim also
been a child and the defendant’s propensity to molest children
thus a legitimate consideration for the jury.

¶22 Hildreth is similarly distinguishable. In that case, we
determined that four separate incidents occurring over a span of
three years, involving four different victims, ‚different body
parts, different levels of undress . . . , and different types of
touching‛ did not support a finding of ‚a parallel fact pattern.‛
Hildreth, 2010 UT App 209, ¶¶ 35–36 (citation and internal
quotation marks omitted). As such, Hildreth has limited
applicability in a case such as this where the prior acts sought to
be admitted involve a defendant’s repeated sexual abuse of the
same child victim over a prolonged period.

¶23 Lintzen argues these cases still support his position,
emphasizing that both Balfour and Hildreth couple factual
similarity and temporal proximity together. See Balfour, 2008 UT
App 410, ¶ 28 (determining joinder must involve circumstances
both ‚similar in facts and proximate in time‛); see also Hildreth,
2010 UT App 209, ¶ 37 (‚Our conclusion is underscored when
*the defendant’s+ conduct is viewed in light of the lack of
temporal proximity of the events.‛). As a result, he argues that
the trial court wrongly determined that the Charged Incident
and the prior acts were similar when they were as many as five
or six years removed from each other. But in both Hildreth and
Balfour, the courts did nothing more than what Shickles generally
prescribes—consider the implications of each of the applicable
factors under the circumstances of the case and then weigh and
balance them together to determine whether the probative value
of the prior acts evidence ‚is substantially outweighed‛ by the
danger of unfair prejudice under rule 403. See State v. Burke, 2011
UT App 168, ¶ 34, 256 P.3d 1102; see also Utah R. Evid. 403. Thus,
Balfour and Hildreth do not support a view that similarity is itself

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 State v. Lintzen

dependent on temporal proximity; rather, they simply
acknowledge that both factors should be appropriately
considered in the course of a Shickles analysis. As a consequence,
Lintzen misses the point when he argues that if sixteen months
was deemed too long to be considered temporally proximate in
Balfour, admission of the prior acts in this case was foreclosed
because they took place over a period of five or six years. The
trial court appropriately analyzed the temporal proximity issue
differently here because the prior acts involved a course of
conduct against the same child victim, a significant distinction
from the circumstances in Balfour.

¶24 Lintzen’s additional arguments related to the court’s
similarity analysis are also unpersuasive. Lintzen points to our
statement in Balfour that ‚*t+he evidence in this case involves the
touching of protected body parts‛ and not ‚allegations of more
intrusive conduct, such as rape or forcible sodomy,‛ 2008 UT
App 410, ¶ 26 (internal quotation marks omitted), to support an
argument that acts of rape or sodomy should always be
considered dissimilar from less egregious acts of sexual conduct,
such as the genital touching in the Charged Incident. And
Lintzen notes that, in contrast, the court in Reed found the prior
acts and the charged conduct to be ‚essentially interchangeable,‛
State v. Reed, 2000 UT 68, ¶ 28, 8 P.3d 1025, a characterization
Lintzen contends cannot apply in his case because the alleged
prior acts would constitute rape or sodomy of a child—more
egregious crimes than the aggravated sexual abuse charge he
was faced with. See Utah Code Ann. § 76-5-402.1 (LexisNexis
Supp. 2014) (rape of a child);7 id. § 76-5-403.1 (sodomy on a

7. Because no substantive changes have been made to the
relevant statutes, we cite the current version of the Utah Code
for the convenience of the reader.

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 State v. Lintzen

child); id. § 76-5-404.1 (aggravated sexual abuse of a child).8 But,
as we have discussed, the court’s determination in Reed that the
crimes were ‚essentially interchangeable‛ encompassed a range
of conduct—‚fondling the victim’s genitalia and anal area,
performing fellatio on the victim, and engaging in sodomy,‛
2000 UT 68, ¶¶ 6, 28—that was not unlike the prior acts of abuse
at issue here, though the charged crime (sodomy) was more
grave there.9 Further, the core circumstances in both Reed and
this case are perhaps the central distinction from both Balfour
and Hildreth: the prior acts were all variants of sexual abuse
committed by the defendant against a single child victim as part
of an ongoing course of conduct. And while the trial court
acknowledged prior acts of sodomy were ‚more egregious‛ than
the charged conduct, it concluded that the prior acts were still
‚generally consistent *with+ the digital penetration‛ alleged to
have occurred in the Charged Incident, essentially a finding the
prior acts were, as in Reed, ‚of the same nature and character as
the primary offense.‛ See id. ¶ 31. Were the prior acts here

8. While all are first degree felonies, aggravated sexual abuse of a
child carries a potential sentence of fifteen years to life and the
others twenty-five years to life. See Utah Code Ann. § 76–5–
402.1(2)(a) (LexisNexis Supp. 2014) (rape of a child); id. § 76-5-
403.1(2)(a) (sodomy on a child); id. § 76–5–404.1(5)(a)
(aggravated sexual abuse of a child).

9. In State v. Reed, 2000 UT 68, 8 P.3d 1025, the charged act was
among the more serious of the acts alleged, see id. ¶¶ 1, 6,
whereas here, the prior acts of rape and sodomy the State sought
to have admitted were more serious than the Charged Incident
in terms of their potential for punishment under Utah’s child sex
abuse laws. See supra note 8. While we recognize the admission
of acts more serious in criminal gravity to show a defendant’s
propensity is potentially prejudicial, the trial court adequately
addressed that concern.

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 State v. Lintzen

committed against different adult victims, the analysis would
have to be more in line with Balfour and Hildreth, which
understandably apply a more limited notion of similarity in that
context. Here, however, we find no abuse of discretion in the
trial court’s analysis of the similarity between the prior acts and
the Charged Incident under the circumstances of this case, which
involves a single child victim.

¶25 And it is important to recognize that the similarity of the
crimes and temporal proximity are just two of six factors that a
trial court may consider in determining the admissibility of prior
acts. See State v. Lucero, 2014 UT 15, ¶¶ 31–32, 328 P.3d 941. Here,
the trial court conducted a thorough written analysis of each of
the six Shickles factors and determined that five of the six factors
favored admission. As we have discussed, the court concluded
that the similarity and time-interval factors supported admission
and also concluded that three of the four remaining factors—
need for the evidence, efficacy of alternative proof, and the
degree to which jurors will be roused to overmastering
hostility—favored admission as well. With respect to the
remaining factor—the strength of the evidence—the court found
that the relative weakness of the sodomy evidence weighed
against its admission and the relative strength of the evidence of
the other prior acts weighed equally for and against admission.
After considering all of the factors together, the court
determined that admission of the prior bad acts evidence was
warranted. Lintzen does not challenge those conclusions, nor
does he adequately address the quality of the court’s weighing
and balancing of the Shickles factors as a whole. Rather, he
focuses on the similarity and temporal proximity factors, which
we have already decided were analyzed appropriately. In light
of the trial court’s detailed and thorough analysis of the Shickles
factors, we conclude that the court did not exceed its discretion
in entering the in limine order.

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 State v. Lintzen

II. Motion for a New Trial

¶26 After the verdict was entered, Lintzen filed a motion for a
new trial, which the trial court denied. On appeal, Lintzen
argues that a new trial was warranted for three reasons: (1) the
in limine order was wholly undermined by changes in
Stepdaughter’s testimony at trial, (2) the discovery of Friend’s
location made available significant new evidence, and (3) the
trial court had erred in refusing to receive the Nurse’s report into
evidence. We address each argument in turn.

A. Continued validity of the in limine order after
Stepdaughter’s trial testimony

¶27 Lintzen argues that even if the in limine order was
appropriate in the context of information initially available when
it was entered, once Stepdaughter testified at trial that no
penetration occurred during the Charged Incident, the basis for
the order was so sufficiently undercut that he should have been
granted a new trial. He contends that the trial court relied
heavily on evidence that the Charged Incident involved digital
penetration in its determination that the prior acts were
sufficiently similar to support admission under the Shickles
factors. Therefore, he argues, once Stepdaughter testified
contrary to her prior statements that no penetration had
occurred, the trial court’s analysis could no longer withstand
scrutiny. We conclude that Lintzen failed to preserve this claim
at trial and is therefore precluded from raising it on appeal.

¶28 Lintzen first raised this concern in his motion for a new
trial; he never brought the issue to the court’s attention during
the trial itself. ‚It is a well-established rule that a defendant who
fails to bring an issue before the trial court is generally barred
from raising it for the first time on appeal.‛ State v. Irwin, 924
P.2d 5, 7 (Utah Ct. App. 1996). Lintzen argues, however, that he
was not required to object at trial because he had already stated
his objections to the in limine order prior to trial and had been

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 State v. Lintzen

overruled. He points us to the Utah Rules of Evidence, which
state that ‚*o+nce the court makes a definitive ruling on the
record admitting or excluding evidence, either at or before trial,
a party need not renew an objection or offer of proof to preserve
a claim of error for appeal.‛ Utah R. Evid. 103.10 But that
principle is not applicable when the challenge to such an order is
based on circumstances arising after it has been decided. Thus,
‚subsequent developments‛ at trial can ‚affect the continuing
wisdom‛ of an in limine order to the extent that a defendant is
‚required to renew his request.‛ State v. Marks, 2011 UT App
262, ¶¶ 73–74, 262 P.3d 13. In other words, pretrial rulings are
subject to revision at trial as the evidentiary picture unfolds, but
a party must request such a reconsideration when circumstances
change. Id. This requirement is consistent with the rule that ‚*i+n
order to preserve an issue for appeal[,] the issue must be
presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.‛ 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (second alteration in original)
(citation and internal quotation marks omitted). Here, Lintzen
argues that Stepdaughter’s trial testimony about the Charged
Incident was significantly different from what she had told the
CJC detective. While a material difference between the evidence
expected and the testimony actually elicited at trial could have
warranted reconsideration of the in limine order at the time the
change became apparent, Lintzen let the unexpected testimony
pass without comment and made no objection to any of the
evidence of prior acts of abuse that was subsequently
introduced.

10. This rule was amended in 2011 to read, ‚Once the court rules
definitively on the record—either before or at trial—a party need
not renew an objection or offer of proof to preserve a claim of
error for appeal.‛ Utah R. Evid. 103(b). Lintzen refers us to the
wording found in the pre-2011 version of the rule. The
amendments were not substantive and do not affect our analysis.

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 State v. Lintzen

¶29 While Lintzen did raise these concerns eventually, they
were not brought to the trial court’s attention until well after the
trial had ended and the jury had rendered its verdict. By the time
Lintzen brought his motion for a new trial, it was too late for the
trial court to consider rescission or alteration of the in limine
order in any way that might have affected the trial. See State v.
McNeil, 2013 UT App 134, ¶ 46, 302 P.3d 844 (explaining that
objections are timely only if raised in time to give ‚the court an
opportunity to address a claimed error and, if appropriate,
correct it‛ (citation and internal quotation marks omitted)). His
objection was therefore untimely and his claim was
unpreserved. As a consequence, we may address Lintzen’s
argument on appeal only if he ‚establishes that the trial court
committed plain error; if there are exceptional circumstances; or
in some situations, if a claim of ineffective assistance of counsel
is raised on appeal.‛ See Irwin, 924 P.2d at 6 (citations and
internal quotation marks omitted). But Lintzen has failed to raise
any of these exceptions to the preservation rule. See State v.
Davie, 2011 UT App 380, ¶ 23, 264 P.3d 770 (determining that
because the defendant did not raise an objection and did not
argue plain error or exceptional circumstances on appeal, his
claim was waived). As a result, we will not consider his claim of
error.11

11. Lintzen asserts in his reply brief that any objection made at
the time when the no-penetration testimony came in would have
been futile because ‚the damage had already occurred.‛ Cf. State
v. Ashcraft, 2015 UT 5, ¶ 33 & n.8 (reiterating the principle that a
failure to preserve will be excused when ‚it is apparent that an
objection would be futile‛ (citation and internal quotation marks
omitted)). But Stepdaughter’s testimony that no penetration
occurred during the Charged Incident occurred very early in the
trial—relatively little of the testimony to which Lintzen now
objects had yet come in. That being the case, it is not self-evident
that any real damage actually had been done or that any
(continued...)

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 State v. Lintzen

B. Discovery of Friend’s location after trial

¶30 Lintzen argues that the trial court should have granted his
motion for a new trial based on newly discovered evidence,
specifically the post-trial discovery of Friend’s location and his
supposed availability to testify. In his motion for a new trial,
Lintzen represented that now that Friend had been located,
Friend would be able to testify that he had found no
pornography when he searched the hard drive on Lintzen’s
computer, that Stepdaughter ‚[d]emonstrated familiarity and
experience with a specific pornographic website,‛ and that
Stepdaughter had told him that Brother had exposed her to
pornography on a regular basis. A defendant is entitled to a new
trial based on newly discovered evidence when the evidence is
not ‚merely cumulative‛ and the evidence would ‚render a
different result probable on the retrial of the case.‛ State v.
Montoya, 2004 UT 5, ¶ 11, 84 P.3d 1183 (citation and internal
quotation marks omitted). Lintzen argues that the trial court
erred in determining that Friend was not available as a witness

(