State v. Shepherd ( 2015 )

2015 UT App 208THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
SKYLER J. SHEPHERD,
Defendant and Appellant.
Opinion
No. 20130169-CA
Filed August 13, 2015
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 121900387
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.
ORME, Judge:
¶1 This case is one of several arising from the tragic death of
a swimmer who was killed by a boat in Pineview Reservoir, near
Ogden. Defendant Skyler J. Shepherd appeals from his
convictions for reckless endangerment, a class A misdemeanor;
obstruction of justice, a class A misdemeanor; and failure to
render assistance at an accident, a class B misdemeanor. See Utah
Code Ann. §§ 73-18-13, 73-18-21, 76-5-112, 76-8-306 (LexisNexis
2012). We affirm all three convictions.
BACKGROUND
¶2 On August 21, 2011, a man who lived near Pineview
Reservoir was working in his yard when he heard “blood
State v. Shepherd
curdling” screams. To him, it was clear that the person
screaming “was in intense pain.” The man ran to a knoll behind
his house that overlooked the reservoir. He could see a boat
stopped in the water and three men inside it, all of whom were
standing up and looking over the side of the boat. He heard one
of the occupants ask, “Hey, lady, are you okay?” Moments later,
the boat sped off, and he could see someone in the water.
¶3 The man got into his own boat and rowed out to where he
had seen the person in the water. He came upon a woman, the
victim in this case, who faintly pleaded, “Help me, help me.”
The man positioned his boat near the victim and grabbed her
hand, and she grabbed onto the boat. Because the man was in a
small, aluminum rowboat, he could not pull her in without
capsizing. Instead, he held her hand and called 911.
¶4 It had taken the man approximately five-and-a-half
minutes to reach the victim. It took deputies another eleven
minutes to arrive after the 911 call. The victim’s right leg had
been “almost totally severed,” and by the time the deputies
reached the victim, her “pupils were fixed, she was not
breathing, she had no pulse.” The victim had apparently been hit
by the propeller of a boat, and she suffered massive injuries to
her pelvis and legs. One injury to her right leg completely
transected her femoral artery, and she bled to death.
¶5 Police began their investigation by preventing boats from
leaving the reservoir and speaking with the occupants of each
vehicle near the boat ramp. Officers spoke to Defendant, who
said nothing about being in an accident or seeing the victim. A
few days later, however, the police received information that
Defendant’s boat might have been the one that hit the victim.
Detectives went to Defendant’s home and spoke to him about
the victim’s death. Defendant said he had been boating that day
but had not seen the victim and only knew what he had learned
from the news. He specifically “denied that he had hit anything
recently” with his boat.
20130169-CA 2 2015 UT App 208State v. Shepherd
¶6 A few days after detectives interviewed Defendant at his
home, he called and asked to speak with them again. He was
interviewed at the sheriff’s office—this time with his attorney
present. At this interview, Defendant changed his story
significantly. He told detectives that on the day the victim died,
he had been on the reservoir with a group of friends. When the
group decided to take the boat for one last run, Defendant’s
friend was at the wheel. The friend suddenly swerved to avoid a
swimmer, then began “freaking out” to the point that he could
no longer drive, so Defendant took the wheel.
¶7 Defendant claimed that he drove the boat over to the
victim. He claimed that the victim was using her arms and legs
to keep herself afloat and that she told the men in the boat that
she was okay, but she was angry with them for driving so close
to her and told them to “get out of there.” According to
Defendant, he never heard the victim scream or ask for help; he
saw no blood in the water; and it was not until he was at the boat
ramp and heard that a swimmer had been hit that “the fear
started to set in” and he wondered if his boat might have been
involved.
¶8 The State charged Defendant with reckless endangerment,
obstruction of justice, and failing to give assistance at the scene
of an accident. 1 A jury convicted Defendant on all counts.
Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 Defendant advances several claimed errors that he
believes warrant reversal of his convictions. First, he argues that
1. Defendant was alternatively charged as an accomplice on each
count. Because we affirm Defendant’s convictions with regard to
his actions as a principal, we need not explore the alternative
theory of accomplice liability.
20130169-CA 3 2015 UT App 208State v. Shepherd
there was insufficient evidence to support his conviction for
reckless endangerment.
In considering [a] challenge to the sufficiency of the
evidence, we review the evidence and all reasonable
inferences drawn therefrom in the light most
favorable to the verdict. If, during our review, we
find some evidence or inferences upon which
findings of all the requisite elements of the crime
can reasonably be made, we affirm.
State v. Germonto, 868 P.2d 50, 55 (Utah 1993) (internal citation
omitted).
¶10 Next, Defendant argues that evidence related to his initial
failure to talk to police was improperly admitted in violation of
his Fifth Amendment right to remain silent. We review the
resolution of constitutional issues for correctness. State v. Gallup,
2011 UT App 422, ¶ 12, 267 P.3d 289.
¶11 The third issue raised on appeal is whether the trial court
erroneously allowed the testimony of a boating expert whose
opinion primarily focused on how sound travels over water.
“‘The trial court has wide discretion in determining the
admissibility of expert testimony, and such decisions are
reviewed under an abuse of discretion standard. Under this
standard, we will not reverse [a decision to admit or exclude
expert testimony] unless the decision exceeds the limits of
reasonability.’” State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794(alteration in original) (quoting State v. Larsen, 865 P.2d 1355,
1361 (Utah 1993)).
¶12 Somewhat relatedly, Defendant argues that the trial court
improperly allowed witnesses to present “ultimate issue”
testimony and opinions regarding Defendant’s truthfulness. The
State concedes that some of this testimony was improper but
“even obvious error by the district court will not result in the
reversal of a criminal conviction unless the error was prejudicial,
20130169-CA 4 2015 UT App 208State v. Shepherd
i.e., unless it created ‘a sufficiently high likelihood of a different
result such that our confidence in the outcome is undermined.’”
State v. Bragg, 2013 UT App 282, ¶ 32, 317 P.3d 452 (quoting State
v. Adams, 2000 UT 42, ¶ 20, 5 P.3d 642).
¶13 Finally, we are asked to determine whether Defendant’s
trial counsel rendered constitutionally ineffective assistance by
failing to object to what Defendant characterizes as “multiple
instances of prosecutorial misconduct.” “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162.
ANALYSIS
¶14 We acknowledge at the outset that Defendant, in his brief,
provides an explanation that puts his actions in a much more
innocent light than the version of events apparently accepted by
the jury. But when arguments on appeal touch on the sufficiency
of evidence or the interpretation of it, we review that evidence
not in the way Defendant spins it but in the light most favorable
to the jury’s verdict. See, e.g., State v. Bergwerff, 777 P.2d 510, 511
(Utah Ct. App. 1989).
It is the jury’s prerogative to weigh the
evidence, infer the material facts from it, and apply
the law stated in the jury instructions to the facts.
In order to preserve this prerogative, we review the
evidence in the light most favorable to the verdict,
and do not overturn a jury’s verdict of criminal
conviction unless reasonable minds could not
rationally have arrived at a verdict of guilty
beyond a reasonable doubt based on the law and
on the evidence presented.
Id. (footnote omitted).
20130169-CA 5 2015 UT App 208State v. Shepherd
I. Sufficiency of the Evidence
¶15 In claiming that the evidence was insufficient to convict
him of reckless endangerment, Defendant argues that he did
not create the risk that the victim would die because he was not
driving the boat when the victim was hit. 2 The State contends
that Defendant created the risk not by striking the victim with
his boat but because he made the “decision to drive the boat
away, rather than stopping and giving aid to” the victim as
required by law. We agree with the State.
¶16 The relevant statute criminalizes “recklessly engag[ing] in
conduct that creates a substantial risk of death or serious bodily
injury to another person.” Utah Code Ann. § 76-5-112(LexisNexis 2012). We have previously considered this statute
and explained that “[r]eckless in this context requires a showing
that the defendant was ‘aware of but consciously disregard[ed] a
substantial and unjustifiable risk.’” State v. Carter, 2005 UT App
232U, para. 3 (per curiam) (second alteration in original)
(quoting Utah Code Ann. § 76-2-103(3) (LexisNexis 2003)). We
2. At least for purposes of this appeal, Defendant does not
contest that his boat struck the victim and that the victim
ultimately died as a result of those injuries. He acknowledges
that there was evidence presented to the jury that could support
findings (1) that Defendant’s friend struck the victim with the
boat, “severing her femoral artery and causing severe damage to
her lower body”; (2) that Defendant drove the boat over to the
victim, “asked if she was ok, [and] saw that she was severely
injured”; (3) that he then “left the scene of the accident”; and (4)
that the victim “had a slight chance of living had [Defendant]
rendered emergency care.” The evidentiary insufficiency,
Defendant claims, “lies in the fact that [Defendant’s] behavior
was not the proximate cause of [the victim’s] death under the
statute and did not create the substantial risk of death.”
20130169-CA 6 2015 UT App 208State v. Shepherd
agree with courts of other jurisdictions that have considered
analogous cases and concluded “that the conduct proscribed by
the reckless endangerment statute includes the wilful failure to
perform a legal duty.” See, e.g., State v. Kanavy, 4 A.3d 991, 996
(Md. 2010). 3 Thus, the evidence was sufficient to convict
3. In State v. Kanavy, 4 A.3d 991 (Md. 2010), the Court of Appeals
of Maryland decided that reckless endangerment could include
the failure to act in certain situations. Id. at 996. It found support
for this conclusion from several authorities. Id. at 996–97. See
People v. Sanford, 808 N.Y.S.2d 274, 275 (App. Div. 2005)
(reversing the dismissal of a multi-count indictment that was
based in part on the defendant’s failure to render or summon
aid); State v. Nelson, 198 P.3d 439, 442 (Or. Ct. App. 2008) (“[T]o
obtain a conviction under the reckless endangerment statute, the
state generally has to prove, first, that the defendant performed
an act, or omitted to perform an act as required by law[.]”);
Model Penal Code § 1.13(5) (2001) (defining “conduct” as “an
action or omission and its accompanying state of mind, or,
where relevant, a series of acts and omissions”); Black’s Law
Dictionary 292 (7th ed. 1999) (defining “conduct” as “[p]ersonal
behavior, whether by action or inaction”). We note that
Maryland, New York, and Oregon have reckless endangerment
statutes very similar to Utah’s. Compare Md. Code Ann., Crim.
Law § 3-204 (West 2015) (“A person may not recklessly: (1)
engage in conduct that creates a substantial risk of death or
serious physical injury to another[.]”), N.Y. Penal Law § 120.20(McKinney 2015) (“A person is guilty of reckless endangerment
in the second degree when he recklessly engages in conduct
which creates a substantial risk of serious physical injury to
another person.”), and Or. Rev. Stat. Ann. § 163.195 (West 2015)
(“A person commits the crime of recklessly endangering another
person if the person recklessly engages in conduct which creates
a substantial risk of serious physical injury to another person.”),
with Utah Code Ann. § 76-5-112 (LexisNexis 2012) (“A person
commits reckless endangerment if, under circumstances not
(continued…)
20130169-CA 7 2015 UT App 208State v. Shepherd
Defendant of reckless endangerment if Defendant owed the
victim a legal duty to act and the jury could reasonably have
found that (1) he was aware of the substantial risk of death or
serious bodily injury to the victim should he fail to act and (2) he
consciously disregarded that risk by failing to act. We first
consider whether Defendant owed the victim a duty to act.
¶17 The State suggests, and we accept for purposes of this
appeal, that a passing, uninvolved boater might not be guilty of
reckless endangerment. But “[i]t is the duty of the operator of a
vessel involved in an accident . . . to render aid to those affected
by the accident as may be practicable.” Utah Code Ann. § 73-18-
13(2)(a) (LexisNexis 2012). The State rightly points out that “by
its plain language, this statutory duty is notably not restricted to
the person who was driving at the time of the accident,” but
rather the focus is on a vessel’s involvement in an accident.
Thus, as soon as Defendant became the operator of the boat, the
boat having been involved in an accident, he bore a duty to
render aid to the victim.
¶18 We next consider whether the jury could have properly
found that Defendant was aware of the risk posed by his failure
to render aid. See Utah Code Ann. § 76-5-112. Defendant
concedes that there was evidence from which the jury could
have found that he was aware of the victim’s injuries. See supra
note 2. What we must determine, then, is whether the jury also
could reasonably have found that Defendant’s decision not to
help the victim presented a substantial risk that those injuries
would culminate in her death or serious bodily injury, which he
consciously disregarded.
(…continued)
amounting to a felony offense, the person recklessly engages in
conduct that creates a substantial risk of death or serious bodily
injury to another person.”).
20130169-CA 8 2015 UT App 208State v. Shepherd
¶19 According to the man who called 911, the victim was alive
and responsive when he reached her, which was more than five
minutes after Defendant’s boat struck her. He immediately
called 911, and help arrived approximately eleven minutes later.
Specifically, from the testimony given at trial, the jury could
have found that the victim was hit by the boat at 8:08 pm; the
man reached the victim at 8:14 pm, at which point the victim
was upright and treading water with her arms; the victim was
still moving at 8:17 pm; her mouth was moving at 8:24 pm; and
emergency responders arrived at 8:25 pm, at which point the
victim had died.
¶20 The jury also could reasonably have found that within
that same time frame, if Defendant had promptly rendered aid
as he had a duty to do, the victim could have survived. Evidence
on this point included testimony that if Defendant had rendered
aid by bringing the victim aboard his boat and lying her down,
her blood loss would have slowed and she likely would have
survived long enough to receive first aid from firefighters on a
nearby beach had Defendant driven the boat there. And if
Defendant had done nothing more than call 911 immediately
after the collision, “life flight” could have been dispatched and
the victim could have gotten to the nearest hospital by 8:24 pm—
the time at which the victim was still alive and her mouth was
still moving even though she had remained vertical, a position
which, according to one expert, maximized her blood loss, and
even though she was not receiving medical care, as she would
have while being transported on life flight.
¶21 Thus, Defendant could have given the victim a chance to
survive simply by calling 911 or providing even the most
rudimentary first aid—like getting the victim out of the water
and into a horizontal position. And while his decision not to
render aid did not guarantee her death, the jury could have
easily found on the evidence before it that this decision posed a
substantial risk that the victim would die, much less that she
would sustain serious bodily injury. It follows that Defendant’s
20130169-CA 9 2015 UT App 208State v. Shepherd
conviction of reckless endangerment is supported by legally
sufficient evidence.
II. Defendant’s Right to Remain Silent
¶22 Defendant also argues that the trial court erroneously
allowed the State to use Defendant’s initial silence as a basis
from which the jury could infer his guilt. His argument is
unavailing.
¶23 To begin with, we are not persuaded that Defendant ever
invoked his right to remain silent. The United States Supreme
Court has explained “that a witness confronted with questions
that the government should reasonably expect to elicit
incriminating evidence ordinarily must assert the privilege rather
than answer if he desires not to incriminate himself.” Minnesota
v. Murphy, 465 U.S. 420, 429 (1984) (emphasis added). “The
privilege ‘is deemed waived unless invoked.’” Rogers v. United
States, 340 U.S. 367, 371 (1951) (quoting United States v. Murdock,
284 U.S. 141, 148 (1931)). See also Salinas v. Texas, 133 S. Ct. 2174,
2184 (2013) (plurality opinion) (“Before petitioner could rely on
the privilege against self-incrimination, he was required to
invoke it.”).
¶24 Defendant spoke with law enforcement on three separate
occasions regarding the incident at issue and, while his story
evolved from one occasion to the next, he never asserted his
constitutional right not to answer the detectives’ questions. He
did, however, selectively provide detectives with false
information and half-truths. A defendant may not provide law
enforcement with a version of a story that benefits him and then
later claim that the Fifth Amendment protects falsities included
therein or pertinent information he chose to leave out. 4 Cf. United
4. Of course, this does not preclude individuals from deciding to
invoke their right to remain silent after they have already started
answering questions. See Miranda v. Arizona, 384 U.S. 436, 473–74
(continued…)
20130169-CA 10 2015 UT App 208State v. Shepherd
States v. Wong, 431 U.S. 174, 178 (1977) (“[T]he Fifth Amendment
privilege does not condone perjury. It grants a privilege to
remain silent without risking contempt, but it ‘does not endow
the person who testifies with a license to commit perjury.’”)
(quoting Glickstein v. United States, 222 U.S. 139, 142 (1911)).
Defendant does not attempt to explain when or how he invoked
his Fifth Amendment right to remain silent, and the record does
not support a conclusion that Defendant ever invoked this
privilege.
¶25 But even if we were to assume that something in the course
of Defendant’s conversations with police could be construed as
an invocation of his right to remain silent, the result would be
the same. To the extent that any comment on what Defendant
did not say was improper, it was nevertheless harmless beyond
a reasonable doubt. See generally State v. Maas, 1999 UT App 325,
¶ 14, 991 P.2d 1108 (“[W]hen a [constitutional] violation has
occurred, the State bears the burden of demonstrating that the
improperly elicited testimony was harmless beyond a reasonable
doubt.”) (citation and internal quotation marks omitted).
¶26 The first comment of which Defendant complains came
about during the State’s case-in-chief. The State asked its
witness, an officer involved in the investigation, whether
Defendant had offered him any information about the accident,
either at the scene or in a subsequent interview. The officer
testified that Defendant offered no pertinent information.
¶27 Defendant also argues that the State, during its closing
argument, improperly commented on his silence. The closing
(…continued)
(1966) (“If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease.”). But that is not what happened
here.
20130169-CA 11 2015 UT App 208State v. Shepherd
argument addressed Defendant’s failure to speak up at the boat
ramp and general failure to “come forward.”
¶28 To determine whether an error is harmless beyond a
reasonable doubt, we consider the importance of the
complained-of evidence to the prosecution’s case, whether that
evidence was cumulative, and the overall strength of the
prosecution’s case. State v. Gallegos, 967 P.2d 973, 980–81 (Utah
Ct. App. 1998). The testimony indicating that Defendant initially
failed to provide detectives with information about what had
happened at the reservoir, and the State’s reminder of this fact in
argument, was not greatly important and likely did little to
convince the jury of Defendant’s guilt. The jury had before it
Defendant’s own admission that he had seen the victim in the
water after his friend swerved the boat and began “freaking
out.” There was also the testimony from the man who heard the
victim’s screams and immediately looked out to see Defendant’s
boat near the victim before it sped away. 5 Even if we were to
conclude that the trial court erred by allowing comments on
Defendant’s theorized invocation of his right to remain silent,
with this sort of evidence before the jury, any such error was
harmless beyond a reasonable doubt.
III. Opinion Testimony
¶29 Defendant asserts that the trial court erred in allowing
certain opinion testimony at trial. First, he contends that the trial
court should have excluded testimony from the State’s expert
witness because the testimony violated rule 702 of the Utah
5. Defendant makes much of the fact that the man said he saw a
white boat with a blue stripe, while Defendant’s boat is white
with a green stripe. When the man was later shown Defendant’s
boat, he indicated that it was the boat he had seen near the
victim. He said it still looked blue to him. One detective who
worked on the case explained that although the stripe was green,
it looked blue in certain light.
20130169-CA 12 2015 UT App 208State v. Shepherd
Rules of Evidence. Next, he argues that the State’s witnesses
were erroneously permitted to offer opinions on an ultimate
issue in the case. Finally, Defendant claims that his convictions
should be reversed because several of the State’s witnesses
testified as to their opinion of Defendant’s truthfulness. We
consider each alleged error below.
A. Expert Witness
¶30 We will first consider Defendant’s argument that the trial
court erred in allowing the testimony of the State’s boating
expert. 6 The State called its boating expert mainly to testify about
6. The briefs of both sides suggest some confusion about the
applicable rules governing expert testimony. An objection to
such testimony, or an appeal alleging error in the admission of
the same, should be couched in terms of rule 702 of the Utah
Rules of Evidence. See R. Collin Mangrum & Dee Benson,
Mangrum & Benson on Utah Evidence 569 (2014–15 ed.) (“To
preserve an issue on appeal for expert testimony, an objection of
‘speculative’, hearsay, or lack of foundation will not preserve an
objection for lack of qualification.”) (footnote omitted). In his
brief, Defendant argues broadly that the boating expert’s
testimony “failed to meet Rule 702’s requirements for
expert testimony.” His specific arguments are that the boating
expert (1) “was not an expert, but he made expert-like
conclusions which were improperly admitted”; (2) “did not have
the proper experience to make the claims he asserted”; and (3)
“did not follow the scientific method in his analysis.” The first of
these arguments is actually an assertion that the witness offered
improper lay opinion under rule 701 of the Utah Rules of
Evidence. Because no 701 objection was made to the trial court,
that objection is not a proper ground for appeal. See State v.
Olsen, 860 P.2d 332, 335 (Utah 1993) (“As we have repeatedly
held, failure to object constitutes waiver of the objection.”). The
second argument appears to be a challenge to the expert’s
(continued…)
20130169-CA 13 2015 UT App 208State v. Shepherd
(…continued)
qualifications, see Utah R. Evid. 702(a), but we readily conclude
that the trial court acted within its discretion in accepting this
particular witness as a boating expert, given his qualifications,
see infra ¶ 33. Furthermore, at trial, Defendant’s counsel
admitted, “I don’t dispute he has a lot of experience with boats.”
His final argument, that the boating expert failed to follow the
scientific method, appears to be a challenge to application. See
Utah R. Evid. 702(b)(3) (“Scientific, technical, or other specialized
knowledge may serve as the basis for expert testimony only if
there is a threshold showing that the principles or methods that
are underlying in the testimony . . . have been reliably applied to
the facts.”). While Defendant did not specifically object on
application grounds during the course of the boating expert’s
testimony, he did lodge a general objection to the witness’s
testimony before the witness took the stand. The content of that
objection further supports a conclusion that Defendant’s real
problem with the boating expert constitutes a challenge under
rule 702(b)(3). Defendant’s counsel argued:
[T]he problem is when I talk to [the boating
expert,] he never tested [Defendant]’s boat, and
he’s never been in the Pineview area. I think it’s
going to mislead the jury to say, “Well, just because
I can hear things in my boat,” nobody tested the
noise level of [Defendant]’s engine.
So I think there’s a real problem here with
this expert.
Having waded through the record and Defendant’s arguments
and concluded that the crux of the 702 challenge concerns
application, we could elect to confine our analysis to this point.
But because we believe that the parties and other readers of this
opinion might benefit from an explanation of rule 702 and the
proper flow of analysis under it, our opinion also briefly
explores the foundational aspects of expert testimony other than
application.
20130169-CA 14 2015 UT App 208State v. Shepherd
“how sound travels over water.” He also testified about his
experiences when hitting items in the water, particularly what
can be felt, heard, and seen in such situations. “‘The trial court
has wide discretion in determining the admissibility of expert
testimony,’” and we will reverse a trial court’s ruling on the
admissibility of expert testimony “only when it ‘exceeds the limits
of reasonability.’” Gunn Hill Dairy Props., LLC v. Los Angeles
Dep't of Water & Power, 2012 UT App 20, ¶ 16, 269 P.3d 980(quoting Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010
UT 59, ¶ 5, 242 P.3d 762).
¶31 The trial court could properly admit the boating expert’s
testimony if the court reasonably determined (1) that scientific,
technical, or other specialized knowledge would assist the jury
to understand the evidence or determine a fact in issue; (2) that
the witness was qualified as an expert by knowledge, skill,
experience, training, or education; and (3) that the State made a
threshold showing that the principles or methods underlying the
testimony were reliable, were based on sufficient facts or data,
and had been reliably applied to the facts of this case. See Utah R.
Evid. 702. See also R. Collin Mangrum & Dee Benson, Mangrum &
Benson on Utah Evidence 543–45 (2014–15 ed.).
¶32 Part of the jury’s role was to make determinations
regarding Defendant’s subjective knowledge. Specifically, it had
to decide whether Defendant was aware of and consciously
disregarded a substantial risk to the victim. See supra ¶ 16. It was
therefore reasonable for the trial court to decide that it would be
helpful for the jury to hear expert testimony regarding what
could have been heard and felt on the water. Thus the
preliminary requirement of rule 702—that expert testimony
must be helpful to the finder of fact—was met. See Utah R. Evid.
702(a). See also State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993)
(“Under rule 702, the question that must be posed prior to the
admission of any expert evidence is whether, ‘on balance, the
evidence will be helpful to the finder of fact.’”) (quoting State v.
Rimmasch, 775 P.2d 388, 398 n.8 (Utah 1989)).
20130169-CA 15 2015 UT App 208State v. Shepherd
¶33 The trial court likewise could have reasonably concluded
that the boating expert was qualified by his knowledge,
experience, or training. His qualifications included time in the
Coast Guard, more than ten years as a boating officer at Lake
Powell, more than ten years as the boating director for the state
park system, and more than 20,000 hours spent on the water.
Utah courts “have routinely allowed persons to testify as experts
based on the totality of their qualifications and experience, and
not on licensing or formal standards alone.” State v. Kelley, 2000
UT 41, ¶ 15, 1 P.3d 546. Given the nature and extent of the
witness’s experience with boating, it was within the trial court’s
discretion to consider the witness a boating expert.
¶34 All that is left to consider, then, is whether the State made
the requisite threshold showing under rule 702(b). The first
inquiry under rule 702(b) is whether the principles or methods
used by the expert were reliable. State v. Turner, 2012 UT App
189, ¶ 21, 283 P.3d 527. The boating expert offered experiential
opinions, meaning he “did not need to identify a particular
methodology.” See id. See also United States v. Bynum, 604 F.3d
161, 167 (4th Cir. 2010) (explaining that “although ‘[e]xperiential
expert testimony . . . does not rely on anything like a scientific
method,’ such testimony is admissible under Rule 702 so long as
an experiential witness ‘explain[s] how [his] experience leads to
the conclusion reached, why [his] experience is a sufficient basis
for the opinion, and how [his] experience is reliably applied to
the facts’”) (alterations and omission in original) (quoting United
States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007)).
¶35 In the present case, the boating expert testified about
the training he had received on boat accident investigation, the
opportunity he had to assist scientists in conducting a test on
the noise emitted by boats, his personal experiences operating
boats like the kind Defendant owned, and his own observations
when hitting objects in the water. It is entirely reasonable to
conclude that these sorts of experiences were sufficient under
20130169-CA 16 2015 UT App 208State v. Shepherd
rule 702(b)(1) for the boating expert to offer opinions within the
scope of his experience.
¶36 Next, under rule 702(b)(2), we consider whether the
boating expert based his opinion on sufficient facts or data. See
Utah R. Evid. 702(b)(2). Under the facts of this case, some of the
same details that demonstrate the reliability of the boating
expert’s methods also show that his opinion was based on
sufficient facts. He had experience driving boats similar to
Defendant’s. He spent over a decade working on Lake Powell,
which gave him extensive experience on the water. He reviewed
specifics from this case in the form of police reports, the
statement of Defendant, and photographs of Defendant’s boat,
including the motor and the operating system. Thus, the expert’s
testimony met the threshold requirement of rule 702(b)(2).
¶37 Finally, we look to rule 702(b)(3) and consider whether
the boating expert’s methods were reliably applied to the facts of
this case. See Utah R. Evid. 702(b)(3). We reiterate that the State
was only required to make a threshold showing on this point.
“Contrary and inconsistent opinions may simultaneously meet
the threshold; it is for the factfinder to reconcile—or choose
between—the different opinions.” Id. R. 702 advisory committee
note. Defendant’s argument that the boating expert “was
incorrect about a number of factors” is therefore insufficient to
convince us that the threshold was not met.
¶38 Defendant also alleges that the boating expert “did not
follow the scientific method.” We repeat that a scientific
methodology is unnecessary for experiential opinions. See supra
¶ 34. But we understand the particulars of Defendant’s
argument to speak more to application. Defendant points to the
facts that the expert did not personally test or examine
Defendant’s boat or visit Pineview Reservoir. But as we
explained above, the boating expert had access to and made use
of specific information regarding Defendant’s boat and the
reservoir. “The opinion of an expert is not rendered inadmissible
because it may be based upon facts proved by the observations
20130169-CA 17 2015 UT App 208State v. Shepherd
of others.” Universal Inv. Co. v. Carpets, Inc., 400 P.2d 564, 567
(Utah 1965). The boating expert’s election to rely on facts
established by the State’s investigation therefore does not render
his opinion legally inadequate under rule 702(b)(3).
¶39 One specific incident recounted by the boating expert is
referenced repeatedly in Defendant’s brief. As part of his
testimony regarding what an individual might feel, hear, and see
when he hits an object with a boat, the boating expert related a
story from when he was in the Coast Guard and his boat struck
a harbor seal. He explained that he “felt it on the steering wheel
slightly, heard it go underneath the boat, [and saw a] red spot in
the water.” At trial, Defendant objected on relevance grounds,
his counsel rhetorically asking, “How can you compare a seal to
a person?” Even overlooking the fact that Defendant now
attempts to use this relevance objection as one predicated on rule
702, we conclude that this is the sort of “concern[] best reserved
for the weight of the evidence rather than its threshold reliability
for purposes of admissibility.” See Gunn Hill Dairy Props., LLC v.
Los Angeles Dep't of Water & Power, 2012 UT App 20, ¶ 45, 269
P.3d 980. Of course there are differences between seals and
humans, but it would be illogical to conclude that only those
individuals who have hit a human with their boat could
properly provide expert opinion in this case as to the physical
manifestations of striking an unseen object in the water. Instead,
the boating expert used his experience of hitting a large, living
thing to draw an analogy to the instant case. Any weaknesses in
that analogy could be—and were—attacked on cross-examination
and highlighted in closing argument, but an adequate threshold
showing was nonetheless made under rule 702(b)(3).
¶40 The boating expert’s testimony was likely to help the jury,
and the expert exhibited the requisite qualifications to be
considered an expert under rule 702 of the Utah Rules of
Evidence. Furthermore, the State properly made a threshold
showing of the reliability of the boating expert’s methods, the
adequacy of the information relied upon, and the reliability of
20130169-CA 18 2015 UT App 208State v. Shepherd
the application of his methods to the particular facts of this case.
Because all elements of rule 702 were met, there was no error in
the trial court’s allowing the testimony of the boating expert.
B. Ultimate Issue Testimony
¶41 Defendant argues that it was error for the trial court to
allow the boating expert and a detective, both witnesses for the
State, to testify that Defendant would have heard the victim’s
screams above the roar of the boat’s engine. We agree with the
State that this argument fails because “the testimony at issue
concerned the ability of a person to hear sounds or see sights
while on the water [and] was not an ‘ultimate issue’ for purposes
of the relevant rule.”
¶42 An ultimate issue is one that the jury is asked to decide.
See State v. Larsen, 828 P.2d 487, 493 n.7 (Utah Ct. App. 1992),
aff’d, 865 P.2d 1355 (Utah 1993). In the instant case, that would
include issues such as whether Defendant acted recklessly or
created a substantial risk of death or serious bodily injury. See
Utah Code Ann. § 76-5-112 (LexisNexis 2012). The jury was not,
however, asked to decide whether Defendant heard the victim’s
screams; rather, that was a question of fact that the jury might
have considered in reaching one or more ultimate conclusions.
Therefore, we need not analyze whether such testimony was
properly admitted under rule 704 of the Utah Rules of Evidence,
because this is simply not the sort of testimony that is governed
by that rule. See Utah R. Evid. 704.
C. Testimony Regarding Truthfulness
¶43 The next issue concerns two of the State’s witnesses, who
testified that they did not believe that Defendant was telling the
truth when he insisted that he neither heard the victim scream
nor saw the victim’s injuries. The State concedes that this
testimony violated the rule that “a witness may ‘not offer a
direct opinion’ of another[’s] truthfulness on a particular
occasion.” See State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 98420130169-CA 19 2015 UT App 208State v. Shepherd
(quoting State v. Adams, 2000 UT 42, ¶ 13, 5 P.3d 642). See also
Utah R. Evid. 608. But the State’s concession only establishes
error; we must also consider whether the improper testimony
was prejudicial. See State v. Stefaniak, 900 P.2d 1094, 1096 (Utah
Ct. App. 1995) (“Having determined that the court erred in
admitting the testimony bolstering the victim’s credibility, we
must separately determine whether the error was prejudicial
in this case.”). If we conclude that absent this testimony there is
a reasonable likelihood that the jury would have returned a
verdict more favorable to Defendant, we must reverse. Id.¶44 In Stefaniak, we determined that allowing testimony that
bolstered the victim’s credibility was reversible error because
“[t]he State’s case against Stefaniak hinged entirely on the
credibility of the victim.” Id. In contrast, the present case relied
very little, if at all, on the challenged testimony. That testimony
established that two of the State’s witnesses did not believe
Defendant when he said that he did not hear the victim scream
or see evidence of the victim’s injuries. Absent that testimony,
the jury would still have had before it the testimony of the man
who called 911, who was first alerted to the problem in the water
when he heard the victim’s screams from several hundred feet
away. There were also officers who testified about their
involvement with a reenactment of the accident; they said that
they could easily hear screams over the noise of the boat. A
medical doctor testified that the victim would have been
“bleeding extensively,” given her injuries, and that the blood
would have necessarily been visible in the water. The jury also
had the opportunity to view a photograph of the victim, which
showed her extensive injuries, and jurors could have formed
their own conclusions regarding what Defendant would have
been able to see and hear.
¶45 We are not convinced that the testimony regarding
Defendant’s truthfulness mattered much. The jury had before it
ample other evidence that called into question Defendant’s
credibility, in particular his inconsistent accounts early in the
20130169-CA 20 2015 UT App 208State v. Shepherd
police investigation of this case. See supra ¶¶ 5–7. With or
without the testimony regarding Defendant’s truthfulness, the
jury would have come to the same conclusion, and the outcome
would have been no better for Defendant. The admission of this
testimony therefore constitutes harmless error.
IV. Prosecutorial Misstatements and Ineffective Assistance
¶46 Finally, Defendant argues that his trial counsel should
have objected to “several objectionable statements” made by the
prosecutor during his closing argument. He claims that the
decision not to object rendered his trial counsel’s performance
constitutionally deficient. To succeed on this claim, Defendant
must establish that (1) “counsel’s representation fell below an
objective standard of reasonableness” and (2) “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
See Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).
¶47 The Utah Supreme Court recently considered a similar
claim and clarified that “[w]hen we review an attorney’s failure
to object to a prosecutor’s statements during closing argument,
the question is ‘not whether the prosecutor’s comments were
proper, but whether they were so improper that counsel’s only
defensible choice was to interrupt those comments with an
objection.’” State v. Houston, 2015 UT 40, ¶ 76 (emphasis in
original) (quoting Bussard v. Lockhart, 32 F.3d 322, 324 (8th Cir.
1994)). We agree with the State that the complained-of comments
were “largely benign” and were not so improper as to warrant
reversal for trial counsel’s failure to object to them.
A. Statements on Credibility and Personal Opinion
¶48 Defendant’s first complaint about the prosecutor concerns
his statements about the credibility of witnesses and the
interjection of his personal opinions. During his closing
argument, the prosecutor asserted that some of Defendant’s
20130169-CA 21 2015 UT App 208State v. Shepherd
statements were untrue and that he did not personally believe
Defendant’s version of events. 7
¶49 Our view of the prosecutor’s statements regarding
Defendant’s truthfulness is in line with our previous discussion
of the improper testimony that was admitted regarding whether
Defendant was telling the truth on a particular occasion. See
supra ¶¶ 43–45. We determined that the credibility testimony
was harmless because of the extent of the other evidence
properly before the jury and because Defendant’s inconsistent
accounts, which were known to the jury, were enough to call his
credibility into question. Similarly, we conclude that not
objecting to these portions of the State’s closing argument did
not prejudice Defendant. The decision not to object therefore did
not render trial counsel’s performance constitutionally
ineffective. See Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232(“In the event it is ‘easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice,’ we will do so
without analyzing whether counsel’s performance was
7. Defendant points to “seven instances of the prosecutor’s use of
the personal pronoun ‘I’ coupled with assertions [of] the
credibility [or] believability of a witness.” First, after posing the
question of whether Defendant had a motive to testify
untruthfully, the prosecutor stated, “I’d submit that he does.”
The prosecutor stopped short of actually offering an opinion on
Defendant’s truthfulness, and we see no error in this statement.
The second and third statements involved the prosecutor saying
“I think” that certain things Defendant said were truthful. It is
unclear how the prosecutor opining that Defendant was truthful
could have prejudiced Defendant. This leaves four statements
for our consideration. Three times the prosecutor asserted that
something Defendant had said was “not a truthful statement.”
He also said, regarding Defendant’s version of events, “I don’t
believe that. That isn’t what happened.”
20130169-CA 22 2015 UT App 208State v. Shepherd
professionally unreasonable.”) (quoting Strickland, 466 U.S. at
697).
¶50 We now turn to trial counsel’s decision not to object to the
prosecutor’s personalization in his closing argument. This will
not be considered deficient performance if “there were
conceivable tactical bases” for not objecting. See State v. Bryant,
965 P.2d 539, 543 (Utah Ct. App. 1998).
¶51 To begin with, our prior decisions have recognized that
even when a prosecutor makes improper statements during
closing argument, a defense attorney might forgo objecting so as
to avoid “emphasiz[ing] the negative aspects of the case to the
jury.” West Valley City v. Rislow, 736 P.2d 637, 638 (Utah Ct. App.
1987). That could very well have been the case here. The
prosecutor’s statement was rather innocuous; he essentially
anticipated opposing counsel’s closing argument by indicating,
“[Defendant’s counsel] wants to say, ‘Oh, [the victim] was in
shock. She said she was okay. It was okay for them to go.’” The
prosecutor followed up with, “I don’t believe that. That isn’t
what happened.”
¶52 In his closing argument, Defendant’s trial counsel did
exactly what the prosecutor previewed. He talked about the
effects of going into shock and why Defendant might have
believed it was okay to leave the victim. There are several
possible tactical reasons for defense counsel’s decision not to
object, one of which is that counsel might not have wanted
to highlight the State’s attempts to discredit his closing argument
before he had a chance to make it. Another is that objecting
might suggest to the jury that it is a troublesome point—one
worth objecting to—while letting it go demonstrated counsel’s
confidence in the jury’s ability to distinguish between evidence
and argument, a subject covered in the jury instructions.
¶53 Additionally, Defendant’s trial counsel may well have
had no interest in promoting ground rules that would foreclose
personalization during closing argument. His own closing
20130169-CA 23 2015 UT App 208State v. Shepherd
argument was very personal, including a story about himself
and a request that the jurors envision themselves in Defendant’s
situation. Trial counsel could have decided that objecting to the
more personal aspects of the State’s closing argument might
have increased the likelihood that the State would successfully
object to the personal aspects of his own closing argument.
B. Reference to Plea Negotiations
¶54 Next, Defendant takes issue with the prosecutor’s
references to pretrial plea negotiations because “no evidence was
presented on [this] topic.” Defendant argues that these
references encouraged the jury to consider matters not in
evidence. See State v. Bakalov, 1999 UT 45, ¶ 59, 979 P.2d 799. But
contrary to Defendant’s claim, there was evidence presented on
this point, and it was evidence Defendant insisted that the jury
hear.
¶55 During the testimony of one of the State’s witnesses, the
jury saw video of a police interview with Defendant. On cross-
examination, Defendant’s trial counsel said that the State had
“cut off the first couple of minutes” of the video and indicated
that he would “like them to see the whole thing.” The jury then
watched the beginning of the video, which included negotiations
regarding Defendant’s willingness to cooperate with the police
in exchange for the State not bringing other charges against him.
¶56 Defendant opened the door through which the evidence
he now challenges entered by bringing in evidence of the
negotiations, 8 and the prosecutor was therefore within his rights
8. Opening the way to the introduction of evidence of the plea
negotiations was not itself ineffective assistance by defense
counsel. Counsel may well have considered that this evidence
would suggest that the State knew its case was not all that strong
or that Defendant’s role was comparatively minor, warranting
not bringing certain charges.
20130169-CA 24 2015 UT App 208State v. Shepherd
to comment on that evidence during his closing argument.
Against this background, there was nothing improper about
these references, and any objection by Defendant’s trial counsel
would have been futile. Accordingly, this failure to object does
not constitute deficient performance. See Codianna v. Morris, 660
P.2d 1101, 1109 (Utah 1983) (“[T]he failure of counsel to make
motions or objections which would be futile if raised does not
constitute ineffective assistance.”) (citation and internal
quotation marks omitted).
C. Reference to Charging Decisions
¶57 Defendant next argues that the prosecutor engaged in
misconduct when he indicated in his closing argument that
“[w]hen you look at this case you may think, you know, maybe
there should be more serious charges on these guys than
misdemeanor.” We assume without deciding that this statement
constituted misconduct and focus our analysis on whether the
statement prejudiced Defendant. See State v. King, 2010 UT App
396, ¶ 22, 248 P.3d 984 (explaining that “a prosecutor’s statement
during closing argument that prompts the jury to consider
matters outside the evidence constitutes prosecutorial
misconduct”).
¶58 We acknowledge that in some close cases, a statement like
this could prejudice the defendant. But this was not a close case.
There was Defendant’s own admission that his boat had been
near the victim and that he had seen her in the water. There was
testimony from an eyewitness who heard the victim’s screams
and was able to identify Defendant’s boat as the only one near
the victim when she screamed. There was medical and expert
testimony that shed light on what Defendant likely heard and
saw when his boat was near the victim.
¶59 Given the evidence presented to the jury, it is entirely
possible that the prosecutor actually risked making the jurors
angry with him by reminding them that he had only charged
Defendant with misdemeanors. It is unlikely, though, that this
20130169-CA 25 2015 UT App 208State v. Shepherd
reminder negatively impacted the jury’s treatment of Defendant,
as the evidence overwhelmingly supported a guilty verdict on
the charged counts. Because there was no prejudice to Defendant,
the decision not to object to this statement does not constitute
ineffective assistance.
D. Jury’s Role
¶60 Finally, Defendant argues that the prosecutor, in his
closing argument, improperly “vouched for specific jurors’
role[s].” The prosecutor told the jurors:
Again, just remember reasonable doubt has to be
based on reason. You were picked for this jury
because I believe you all have common sense. . . . I
asked you in voir dire if we were able to prove our
case beyond a reasonable doubt could you all
return a guilty verdict. You all indicated that you
could. I’m asking you to do that now.
Defendant provides us no explanation as to how the authority he
cites supports a conclusion that this statement was improper. He
does cite State v. Thompson, 2014 UT App 14, 318 P.3d 1221, for
the proposition that prosecutors may not ask a jury to render a
verdict based on its societal obligation or the impact the verdict
might have on society. See id. ¶ 67. While this is a correct
proposition, it has no bearing here.
¶61 The prosecutor did not demand that the jury return a
guilty verdict. He did not reference the jurors’ obligations as
members of society. He instead expressed a self-evident truth,
that jurors are allowed to employ their common sense during
deliberation, and he reminded them of something explained in
their instructions, that a reasonable doubt is based on reason.
Because we cannot see how this statement was improper, we
cannot conclude that Defendant’s trial counsel had any reason to
object to it.
20130169-CA 26 2015 UT App 208State v. Shepherd
CONCLUSION
¶62 All of Defendant’s arguments on appeal are without
merit. There was sufficient evidence to support his conviction for
reckless endangerment because he owed the victim a legal duty
to render aid and he opted not to fulfill that duty. In so doing, he
consciously disregarded a substantial risk that the victim would
die or at least sustain serious bodily injury. This sufficient
evidence largely resolves almost every other issue before us,
because even if there were errors in the admission of particular
bits of evidence, those errors did not prejudice Defendant.
¶63 The State did not improperly comment on Defendant’s
silence, because Defendant never invoked his Fifth Amendment
rights. Even if he did, the error was harmless. The trial court did
not abuse its discretion in admitting expert testimony. The trial
court did not allow any inadmissible ultimate-issue opinions.
The introduction of improper evidence regarding credibility was
harmless. And Defendant’s trial counsel was not ineffective for
choosing not to object to the State’s closing argument.
¶64 Affirmed.
20130169-CA 27 2015 UT App 208