dissenting.
I dissent. I would affirm defendant’s conviction of sodomy upon a child.
First, I disagree with the majority’s assertion that it was not necessary for defendant’s counsel to make an objection when the trial judge took defendant’s motion to dismiss under advisement. The majority writes:
We have never required criminal defendants who have properly presented a *788claim1 to take exception2 to a trial court’s erroneous ruling in order to preserve the issue on appeal. Rather, our case law establishes that the doctrine of waiver has application if defendants fail to raise claims 3 at the appropriate time at the trial level, so the trial judge has an opportunity to rule on the issue....
I cannot accept this reasoning. The trial judge did not make an erroneous ruling. Instead, he made no ruling. When the judge took the motion to dismiss under advisement and directed defendant to put on his defense to the sexual abuse charge, I believe it was incumbent on defendant’s counsel to object so that the judge was alerted to the potential prejudice to defendant. This is exactly what the majority in the second sentence of the above quote seems to say is required. Defendant’s counsel by his silence did not accord the trial judge the required opportunity to stop and examine this procedure. Rule 20, Utah Rules of Criminal Procedure, states:
Exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party state his objections to the actions of the court and the reasons therefor. If a party has no opportunity to object to a ruling or order, the absence of an objection shall not thereafter prejudice him.
(Emphasis added.)
In State v. Stone, 18 Utah 2d 289, 422 P.2d. 194 (1967), the appellant complained that the trial court had admitted documentary evidence reserving the right to reconsider unless the lack of foundation was rectified or the evidence was connected up. This court held that it was incumbent upon the appellant’s counsel to call to the attention of the court that it had admitted the evidence subject to reservations and to request a final ruling on the admissibility. Otherwise, said this court, “one easily could invite error by silence.” 18 Utah 2d at 291, 422 P.2d at 195; see also State v. Barella, 714 P.2d 287, 288 (Utah 1986) (defense counsel was required to timely object to any limitation counsel believed the trial court had imposed in the cross-examination of a witness).
Second, I would not reach the issues raised by defendant as to prosecutorial misconduct. The record clearly indicates that defendant’s counsel made a purposeful, strategic decision not to object when the alleged misconduct occurred. At the hearing held on defendant’s motion for a new trial, counsel contended that the prosecutor was guilty of misconduct when he made reference to defendant’s prior conviction of a felony to prove that he had committed the crime with which he was now charged. Moreover, counsel contended that the prosecutor erred in questioning defendant whether he had been coached by his counsel as to what he should say when testifying. Defense counsel then admitted that he had purposely not objected to the alleged misconduct because:
You know, if you can — if defense counsel gets up and objects to that line of questioning, it only reinforces the line of questioning in the minds of the jury, and I don’t think that we should be prejudiced by electing not to object to something that is obviously inappropriate — an inappropriate line of questioning.
(Emphasis added.) Defense counsel then suggested to the trial court that if counsel’s decision not to object was poor judgment, the court should find ineffective assistance of counsel.
The trial court denied the motion for a new trial, stating:
I think counsel undertook a tactical decision not to object, and I think that’s counsel’s right to do that. If counsel felt like he was being prejudiced or his position was being prejudiced by the comments, then the law requires you to stand up and say so and let the jury know that and let — and to do it at a time when the judge can do something about *789it. To sit quietly and let the argument go on and then raise it later and say, “We get a new trial because I didn’t object,” to me makes no sense at all. If such were the case, no trial would ever be concluded.
The judge then observed that the case had been well tried, well argued, and well researched. He found nothing in the conduct of defense counsel which would indicate he was not effective. He suggested that had he been defense counsel, he might well have made the same decision not to object. He stated that the prosecutorial conduct, although not proper, was not of the type which would convince a jury that it ought to abandon its legal responsibilities and disregard the instructions and the evidence and decide the guilt of defendant on some other basis. He concluded that he did not think the misconduct caused the jury to arrive at a different conclusion than it would have otherwise done.
In view of defense counsel’s admission, I cannot join the majority in finding plain error and ordering a new trial. There is no plain error under our case law. State v. Bullock, 791 P.2d 155, 159 (Utah 1989). The majority has not considered the admission or the trial judge’s thoughtful comments at the hearing on the motion for a new trial. I would affirm the judge’s decision not to grant a new trial, there being no abuse of discretion.
ZIMMERMAN, J., concurs in the dissenting opinion of Associate Chief Justice HOWE..I assume that “raise claims” means to object.
. I assume the word "claim" means a motion.
. I assume "take exception" means to object, since rule 46, Utah Rules of Civil Procedure, provides that exceptions are unnecessary.