dissenting:
I dissent. The district court held that Anastaeio Fernandez, Jr.’s conviction was constitutionally defective because he did not receive the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. The trial court’s findings establish a serious and unjustifiable failure to investigate and interview witnesses, a failure to cross-examine a key witness on a critical issue, and an inexplicable failure to introduce a report written by that witness that seriously challenged the veracity of the complaining witness’s claim that she had had intercourse with defendant many times over a long period of time. The trial court found that but for those failures on the part of defense counsel, there was a reasonable probability that the outcome of the trial would have been different.
The majority reverses the trial court’s ruling without determining that any of its findings of fact are clearly erroneous. In failing to address the validity of the trial court’s findings, the majority abandons elementary rules of appellate procedure and cavalierly tries to cast doubt on those findings by calling them conclusions of law.
The Court asserts that Fernandez “has failed to show how he was prejudiced by counsel’s performance.” This is incorrect. Fernandez showed prejudice with compelling evidence at the habeas hearing. The Court avoids reviewing the trial court’s findings by asserting that the issue of prejudice is an issue of law to be determined by the Court.1 Prejudice, however, cannot be determined in the abstract apart from the facts of the case. It is not appropriate for this Court to decide the issue of prejudice by ignoring the facts found by the trial court.2
*879The trial court’s findings unequivocally demonstrate prejudice under the relevant constitutional standard. The court ruled that defense counsel’s “representation fell outside the range of competent assistance” because he failed “to properly prepare for trial and prosecute the case vigorously.” The trial judge stated:
[Tjhere is ... a reasonable probability that a different result would have occurred in this case had counsel interviewed witnesses; prepared petitioner and his wife for their trial testimony; cross-examined the victim vigorously about the number of times she had engaged in sex with her father and their relationship; more effectively cross-examined Dr. Gibbs to establish the fact that the examination he prepared was inconclusive as to whether or not [Fernandez’s daughter] had sexual intercourse with [him]; had obtained an independent opinion as to the validity or invalidity of Dr. [Sazama’s] conclusions so that counsel could prepare to rebut or minimize the effect of the doctor’s testimony; and had presented sufficient testimony evidence to prove that [Fernandez’s daughter] had fabricated her story.
In a case where the alleged victim’s testimony was absolutely critical to the prosecution’s case, these findings cannot be legitimately dismissed on the theory that counsel’s failures represent trial tactics. That label cannot be stretched as far as the majority does without damaging the constitutional right to the effective assistance of counsel.
In a memorandum decision, the Honorable John A. Rokich placed this case in the proper light. He wrote:
Since the court has found that Judkins failed to investigate and/or to prepare, the Court can conclude that the first prong of the Strickland test has been met.
As to the second prong of the test, it is the Court’s opinion that because of the totality of counsel’s errors as set forth in its prior Memorandum Decision, the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
After reviewing the Court’s prior Findings of Fact and Conclusions of Law, and hearing oral argument again, the Court’s prior ruling of ineffectiveness of counsel was reaffirmed.
Counsel’s claim that his discovery efforts were limited because he only received $100.00 plus a pistol, is no excuse for rendering a defense that would fall well below reasonable standards.
The court believes that the performance of counsel was so deficient in this case that regardless of petitioner’s guilt or innocence, he should be afforded a new trial.
If the courts were to allow this■ case to stand as a standard for reasonable assistance of counsel in defending those charged with criminal offenses, the Sixth Amendment would not mean much to the person charged with a crime. Defendants ought to at least have the benefit of counsel who meet the Strickland test which our Utah Supreme Court reaffirmed in State v. Templin.
(Emphasis added.)
The evidence of defense counsel’s failure to prepare is apparent in many particulars throughout this case. Counsel failed to investigate adequately and interview witnesses, failed to arrange for any expert of his own, and even more importantly, failed to adduce favorable physical evidence tending to show that the complaining witness’s testimony may well have been fabricated.
For example, the complaining witness alleged to police investigators and to a social worker that Fernandez had had sexual intercourse with her more than one hundred times in a period of a year and a half, beginning from the time she was eleven until she was thirteen. Dr. Gibbs, the examining physician, testified at the trial for the prosecution that he could not rule out the possibility that sexual intercourse'occurred. Incredibly, Dr. Gibbs’ written report, submitted before trial, which stated that “[he] would be sur*880prised if [the complaining witness] was regularly sexually active,” was not even put into evidence by defense counsel. Indeed, Dr. Gibbs was not even examined by defense counsel on this critical point. This evidence directly challenged the complaining witness’s allegation that the defendant had intercourse with her three to seven times a week for a year and a half. Given the facts of this case, I see no valid trial tactic that justifies a failure to adduce such important evidence.
The trial court’s findings also establish a number of other failures by defense counsel to perform to reasonable minimum standards in a criminal case.
In sum, the district court ruled that Fernandez’s counsel was unprepared and that there was a “reasonable probability that a different result would have occurred” had counsel been prepared. Fernandez comes to .this Court armed with a presumption that those findings are correct. Instead of requiring the State to demonstrate that the district court’s factual findings were “clearly erroneous,” the majority stands appellate procedure on its head and shifts the burden sub silentio to Fernandez to demonstrate that the numerous, serious instances of ineffectiveness found by the trial court did not prejudice the outcome and were merely routine trial tactics. The district court was correct in stating that “the Sixth Amendment does not mean much” if this case stands for what the reasonableness of counsel means.
The trial court’s finding that “there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different” was not clearly erroneous; it was correct both factually and legally and established the requisite prejudice. If the Sixth Amendment means anything, Fernandez is entitled to a new trial.
. The majority states:
While Fernandez asserts that counsel's performance fell below an objective standard of reasonableness in many respects, he fails to address the Strickland prejudice requirement. With regard to all but one of his claims of counsel’s deficiencies, Fernandez is silent as to the required showing of prejudice. The one time Fernandez does address possible prejudice resulting from counsel's errors, he simply states, "[The trial] cannot be relied upon as having produced a just result.” This is merely rephrasing that which must ultimately be shown to satisfy the second prong of the Strickland test but is clearly insufficient to affirmatively demonstrate a reasonable probability that the trial result would have been different if counsel had not performed deficiently. Fernandez' claims of ineffectiveness, therefore, become only speculation.
(Footnotes omitted.) Our role as an appellate court is to review what the trial court did. The Court inexcusably confuses the arguments made on appeal with the findings and conclusions of the trial court.
. The majority cites State v. Thurman, 846 P.2d 1256 (Utah 1993), for the proposition that the Court can review a finding of prejudice without deference to the trial court's findings. The findings of prejudice in this case flow inexorably from factual findings. This case was extensively litigated in the trial court, and explicit findings were made as to the failure of trial counsel to prepare for trial and cross-examine witnesses. It *879is a dodge to say that this Court can ignore those findings on the ground that the issue of prejudice is a legal issue.