Can defendants avoid preservation rules by claiming ineffective assistance after representing themselves? State v. Balfour Explained

In State v. Balfour, the Utah Court of Appeals addressed a unique preservation issue: whether a defendant can claim ineffective assistance of counsel for arguments he failed to raise when representing himself at trial.

Background and Facts
Defendant Ozwald Balfour was charged with forcible sodomy after allegedly luring a 17-year-old victim to his office under false promises of modeling opportunities. The case involved testimony from three additional women who described strikingly similar encounters with Balfour. After cycling through multiple attorneys due to conflicts over litigation strategy, Balfour elected to represent himself with standby counsel.

Key Legal Issues
The primary issue was whether Balfour could claim ineffective assistance regarding his second attorney’s failure to pursue a malicious delay of prosecution argument, even though Balfour himself failed to raise this argument when representing himself. The court also addressed the admission of Rule 404(b) evidence and the exclusion of defense witnesses as discovery sanctions.

Court’s Analysis and Holding
The Court of Appeals held that defendants cannot avoid preservation requirements by claiming ineffective assistance when they had the opportunity to raise arguments during self-representation but failed to do so. The court explained that after Balfour chose to represent himself, “nothing prevented Defendant from asserting this argument,” yet he “declined to include the due process argument” in his own motion to dismiss.

Regarding the prior bad acts evidence, the court affirmed its admission under Rule 404(b) to rebut Balfour’s fabrication defense. The court noted that when multiple independent victims tell similar stories, “it strains credulity to suggest that three other women would similarly accuse Defendant falsely.”

Practice Implications
This decision establishes important boundaries for ineffective assistance claims in cases involving self-representation. Practitioners should note that defendants who choose to represent themselves cannot later claim their former counsel was ineffective for failing to raise arguments that the defendant could have—but did not—raise during self-representation. Additionally, the decision reinforces that Rule 404(b) evidence may be admitted to rebut fabrication defenses when multiple victims provide similar accounts, even when such evidence is highly prejudicial.