State v. Bowdrey ( 2024 )

2024 UT App 113THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KENNETH BOWDREY,
Appellant.
Opinion
No. 20220237-CA
Filed August 8, 2024
Third District Court, Salt Lake Department
The Honorable Todd Shaughnessy
The Honorable Heather Brereton
No. 201914494
Janet Lawrence and Jon D. Shuman,
Attorneys for Appellant
Sean D. Reyes and Hwa Sung Doucette,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
MORTENSEN, Judge:
¶1 Kenneth Bowdrey worked with a colleague to sell
“bindles” of cocaine. 1 Unbeknownst to Bowdrey, his activity was
being watched by police officers, one of whom (Sergeant) was
using a spotting scope to observe the transactions. Bowdrey was
charged with arranging to distribute a controlled substance. The
1. “Bindle” is a slang term for “a small package, envelope, or
paper containing a narcotic (as morphine, heroin, or cocaine).” See
Bindle, Webster’s Third New Int’l Dictionary (2002).
State v. Bowdrey
State did not give Bowdrey notice that Sergeant would be
testifying as an expert witness until about ten days before
Bowdrey’s trial. On appeal, Bowdrey alleges that the district court
exceeded its discretion in admitting Sergeant’s expert testimony,
both because of the late notice and on prejudice grounds.
Bowdrey also argues that the district court plainly erred in
submitting the case to the jury because the State failed to present
sufficient evidence to support a conviction. We affirm.
BACKGROUND
The Surveillance
¶2 A team of five police officers was conducting surveillance
on a parking lot in an area where residents and business owners
had reported drug activity taking place. Sergeant, who was part
of the team, used a spotting scope and sat in an unmarked vehicle
about 200 feet away to view the area of suspected drug activity.
With the scope, Sergeant said he was able to view the activity as
if he were only about fifteen feet away.
¶3 Sergeant testified that he saw a man (Buyer) approach
Bowdrey and give him some cash. Bowdrey took the cash and
gave it to another man (Seller). After taking the cash, Seller “took
something out of his pocket and dropped it on the ground.”
Bowdrey then picked up this item and gave it to Buyer. The
dropped item that was given to Buyer “appeared to be a white
substance.” After Buyer received this item, he walked back to his
car and left the area. Sergeant communicated to his team members
a description of Buyer’s vehicle so that “takedown officers” on the
team could stop it.
¶4 While he was waiting for the takedown officers to stop
Buyer’s vehicle, Sergeant continued to observe Bowdrey and
Seller. He watched them “conduct a similar transaction to the one
20220237-CA 2 2024 UT App 113State v. Bowdrey
that [he] just previously watched” but with a different buyer who
was never identified. Sergeant said this unidentified buyer
approached Bowdrey and gave him cash. In turn, Bowdrey gave
the cash to Seller, who “reached into some portion of his clothing,
took out what appeared to be another white bindle or baggy and
dropped it on the ground.” Bowdrey then “picked it up” and
“appeared to bite into it.” He then took a “portion for himself”
and gave “the unidentified buyer the remaining portion.”
¶5 Meanwhile, the takedown officers initiated a traffic stop
with Buyer and ordered him out of his car. One of the officers
observed a small “plastic bindle” on the driver seat, the contents
of which later tested positive for cocaine. In addition, a “loose
piece of [a] white rock-like substance,” which the officer
recognized as crack cocaine, was found in Buyer’s pocket. Buyer
was released from custody but told that he would be charged.
¶6 Advised by Sergeant that Bowdrey was leaving the scene
on foot, one of the officers caught up with him and took him into
custody, but nothing illegal or pertinent to the investigation was
found on him when he was searched.
¶7 Another officer returned to the parking lot where the
transaction had taken place and arrested Seller. A search of Seller
revealed that he had two $20 bills and a plastic bag that contained
nine smaller baggies, the contents of which later tested positive
for cocaine.
¶8 In December 2020, Bowdrey was charged with one count
of distributing or arranging to distribute a controlled substance.
The Proceedings
¶9 In February 2021, Sergeant testified at Bowdrey’s
preliminary hearing about the transactions described above
involving Bowdrey, Seller, Buyer, and the other unidentified
20220237-CA 3 2024 UT App 113State v. Bowdrey
buyer. Sergeant also testified “that based on his experience, he
believed [Bowdrey] was involved in the sale of narcotics.”
¶10 Bowdrey’s trial was scheduled to begin on August 31, 2021.
On August 20, the State filed notice that it intended to call
Sergeant as an expert witness. See Utah Code § 77-17-13(1)(a) (“If
the prosecution or the defense intends to call any expert to testify
in a felony case at trial or any hearing, . . . the party intending to
call the expert shall give notice to the opposing party as soon as
practicable but not less than 30 days before trial or 10 days before
the hearing.” (emphasis added)). Specifically, the State indicated
that Sergeant would “be called to testify as to the drugs possessed,
the amount and street value of the drugs, and street level
distribution.” Bowdrey filed a motion to exclude Sergeant’s
expert testimony based on the late notice and rules 702 and 403 of
the Utah Rules of Evidence. See Utah R. Evid. 702(b) (“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 (1) are
reliable, (2) are based upon sufficient facts or data, and (3) have
been reliably applied to the facts.”); see also id. R. 403 (“The court
may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”).
¶11 In addressing the motion to exclude Sergeant from
testifying as an expert, the district court asked, “So if this is . . .
testimony from . . . a police officer about the sort of standards and
customs . . . based upon that police officer’s knowledge and
experience, the standard and customs when it comes to
distribution of narcotics, what about that type of testimony would
the Defense not have been on notice of?” Bowdrey’s counsel
(Counsel) did not give a responsive answer but instead said that
the notice was late and allowing Sergeant to testify as an expert
20220237-CA 4 2024 UT App 113State v. Bowdrey
would allow him to “self-authenticate his investigation and
validate the lack of corroborating evidence by analogizing to
other investigations and other times.”
¶12 Confirming that Sergeant’s testimony at the preliminary
hearing had provided “at least some opportunity” for cross-
examination, the court ruled that Sergeant could testify as an
expert at trial. More specifically, the court noted, “[T]here’s been
fair notice both that [Sergeant] would be a witness and it would
not be a surprise to anyone that his testimony is going to venture
into the area of testifying about his knowledge and experience as
. . . a law enforcement officer with what is common or standard
practices among those who are distributing illegal substances.”
The court also ruled that to “ameliorate . . . any prejudice,”
Counsel could meet with Sergeant prior to his testimony “to better
understand” what he would “testify about.” Counsel stipulated
to Sergeant’s expert qualifications related to his training,
experience, and knowledge.
Sergeant’s Testimony at Trial
¶13 Sergeant testified that he had been in law enforcement for
nearly twenty years and had received specialized training in
narcotics. He said that he had been involved in “several hundred
narcotic-related investigations and arrests” over the course of his
career, specifically noting that he had “observed thousands of
hand-to-hand drug transactions” and was “well acquainted with
the way [drug transactions] transpire, what they look like, what’s
involved,” and “what to look for.” After he had revealed his
qualifications, the State moved that Sergeant “be declared as an
expert in the field of narcotics distribution,” and Counsel
immediately stated, “[W]e’ll stipulate that Sergeant . . . is a
qualified, experienced law enforcement officer and can testify
about his investigation.” As relevant here, Sergeant then
addressed the way that drugs are sold in areas such as where he
and his colleagues were conducting surveillance:
20220237-CA 5 2024 UT App 113State v. Bowdrey
Prosecutor: [A]re there different types of distribution
arrangements that you typically see?
Sergeant: Yes.
Prosecutor: And what are those?
Sergeant: Sometimes the person will just go directly
up to a dealer. And usually we watch people and
look for people who go and park in a specific
area. They’ll park in the [market’s] parking lot, or
they’ll park in the adjacent parking lot. They’ll
walk in and they’ll contact the dealer directly.
Other times you’ll have individuals who go out
and seek these buyers and bring them to the
dealers. And . . . a lot of times they do that for
either cash or more frequently they’ll do that too
for their own drug habit.
Prosecutor: Okay. Is it common for just one person to
be selling drugs and taking the money?
Sergeant: Yes.
Prosecutor: In your experience, is it more common to
involve multiple people on a team?
Sergeant: For selling?
Prosecutor: Yes.
Sergeant: Typically, we see both. There’s not one that
happens more often than the other. But usually
it’s just a single buyer, single dealer. But I’ve seen
hundreds of times where there’s an arranger
involved or a middleman.
When asked by the prosecution to describe Bowdrey’s and Seller’s
roles, the following exchange took place:
Prosecutor: And how would you characterize the
role of . . . Bowdrey, in [the] transaction?
20220237-CA 6 2024 UT App 113State v. Bowdrey
Sergeant: He’d be an arranger.
Prosecutor: Okay. And how would you characterize
the role of [Seller] in [the] transaction?
Sergeant: The distributor, the main drug dealer.
Prosecutor: And based on your training and
experience, did it appear to you that . . . Bowdrey
and [Seller] were working as a team?
Sergeant: Yes.
Prosecutor: Based on what you observed, were you
surprised that [Seller] is the only individual that
kept both the money proceeds and the drugs on
him, on his person?
Sergeant: Not at all.
Prosecutor: Is that unusual?
Sergeant: No.
Prosecutor: Okay. Why would a team do this?
Sergeant: Well, a lot of times the arrangers are in it
for themselves. A lot of times they’re addicts
themselves, so they’re trying to score a little bit.
A lot of times the seller will give them a portion
of drugs. If you help them get so many buyers,
they’ll be able to get some drugs to help feed their
addiction. Or as what I saw in this case—and I’ve
actually verified it with some of our undercover
officers who have made transactions, the
arranger will break off a piece of the drugs for
themself from these buyers as kind of a finder’s
fee . . . .
Notably, Counsel did not object to Sergeant’s characterization of
Bowdrey as an “arranger.”
20220237-CA 7 2024 UT App 113State v. Bowdrey
¶14 The jury found Bowdrey guilty as charged. Bowdrey
appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 Bowdrey first argues that the district court exceeded its
discretion in admitting Sergeant’s expert testimony. “We
review the admission of expert testimony . . . under an abuse
of discretion standard.” State v. Lopez, 2018 UT 5, ¶ 18, 417 P.3d
116.
¶16 Bowdrey next asserts that the district court should have
granted a continuance based on the State’s late formal notice of
Sergeant’s expert testimony. We review a district court’s
“decision to grant or deny a continuance under an abuse of
discretion standard.” State v. Bernards, 2007 UT App 238, ¶ 14, 166
P.3d 626.
¶17 Bowdrey’s third claim is that the district court plainly
erred in submitting the case to the jury because the State failed
to present sufficient evidence to convict Bowdrey of
distribution. “To demonstrate plain error, a defendant
must establish that (i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful. If any
one of these requirements is not met, plain error is not
established.” State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443(cleaned up). 2
2. Bowdrey also asserts that he was deprived of a fair trial given
the cumulative effect of the errors. “But there are no errors to
accumulate here, rendering the cumulative error doctrine
inapplicable in this case.” State v. Sundara, 2021 UT App 85, ¶ 35
n.6, 498 P.3d 443 (cleaned up).
20220237-CA 8 2024 UT App 113State v. Bowdrey
ANALYSIS
I. Sergeant’s Expert Testimony
¶18 Bowdrey first asserts that the district court exceeded its
discretion in admitting expert testimony from Sergeant.3
Bowdrey’s argument consists of several facets. First, Bowdrey
claims that the court exceeded its discretion when it failed to limit
the scope of Sergeant’s “testimony and conclusory remarks”
because Sergeant’s expert testimony “improperly bolstered” his
fact testimony. Bowdrey next argues that Sergeant
“impermissibly addressed the ultimate issue” in his expert
testimony when he characterized Bowdrey as an “arranger.”
Lastly, Bowdrey asserts that the district court should have
excluded certain aspects of Sergeant’s testimony because the State
failed to show the principles supporting Sergeant’s
“middleman/arranger” theory of conducting transactions were
reliable.
A. Bolstering Effect of Sergeant’s Status as an Expert Witness
¶19 Bowdrey argues that Sergeant’s “opinion as an expert”
conflated with his “opinion as a fact witness” to interfere “with
the jury’s role to determine whether Bowdrey was guilty or not
guilty of distribution.” Thus, Bowdrey argues that the jury should
have been allowed to ascertain Bowdrey’s alleged involvement in
3. The State argues that Bowdrey did not preserve certain aspects
of this claim. However, “if the merits of a claim can easily be
resolved in favor of the party asserting that the claim was not
preserved, we readily may opt to do so without addressing
preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415(cleaned up). “Because we can easily dispose of” this claim on its
“merits, we choose to exercise our prerogative to simply assume
that [it was] preserved and proceed to consideration of the
merits.” Id.20220237-CA 9 2024 UT App 113State v. Bowdrey
the distribution without Sergeant’s expert testimony bolstering
his “testimony about his investigation as a fact witness.” Along
these same lines, Bowdrey argues that the district court failed to
engage in the balancing required by rule 403 of the Utah Rules of
Evidence before it admitted Sergeant’s expert testimony.
Bowdrey argues that Sergeant’s playing “competing roles as an
expert witness and a fact witness was unduly prejudicial in that it
bolstered his credibility as a fact witness by lending the weight of
an expert verifying his observations and conclusions,” a “dual
role” that Bowdrey says “could have confused or misled the jury
about their role as factfinders in deciding the ultimate issue—
whether Bowdrey functioned as an arranger in a drug
transaction.”
¶20 Bowdrey has not met his burden of persuasion on this
point. Rather, his argument in this respect is almost entirely
conclusory. Bowdrey says that Sergeant “was appropriately
called as a fact witness to testify about his observations and
[Bowdrey’s] actions.” But, Bowdrey claims, Sergeant “exceeded
his scope as a fact witness in a manner that improperly bolstered
the credibility of his testimony and interfered with the jury’s fact-
finding role when he testified as an expert.” Bowdrey cites no
authority to support his proposition that Sergeant’s “dual role” as
a fact witness and an expert witness confused or misled the jury.4
But insofar as this was his argument, it was Bowdrey’s well-
established burden to support it with reasoned analysis. See Utah
R. App. P. 24(a)(8) (“The argument [in a party’s brief] must
explain, with reasoned analysis supported by citations to legal
authority and the record, why the party should prevail on
4. Indeed, as the State pointed out at oral argument, it is
commonplace, for example, that medical examiners testify both as
fact witnesses (namely, by relaying to the jury what they saw) and
as expert witnesses (namely, by recounting the medical
conclusions they reached).
20220237-CA 10 2024 UT App 113State v. Bowdrey
appeal.”); see also Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d
196 (“An appellant that fails to devote adequate attention to an
issue is almost certainly going to fail to meet its burden of
persuasion. A party must cite the legal authority on which its
argument is based and then provide reasoned analysis of how that
authority should apply in the particular case, including citations
to the record where appropriate.”); State v. Drommond, 2020 UT 50,
¶ 132, 469 P.3d 1056. Without some sort of minimally compelling
argument, citation of legal authority, and factual analysis to
provide a nexus between Sergeant’s status as an expert witness
bolstering his credibility as a fact witness, Bowdrey simply fails to
carry his burden of persuasion on appeal.
B. Sergeant’s Expert Testimony Addressing the Ultimate
Issue
¶21 Bowdrey also argues that Sergeant’s expert testimony
“impermissibly addressed the ultimate issue” when he testified
that Bowdrey was “an arranger.” Bowdrey argues that this was
the very question the jury was tasked with deciding: “Before you
can convict [Bowdrey] of the offense of Distribution or Arranging
to Distribute a Controlled Substance . . . you must find from all of
the evidence and beyond a reasonable doubt . . . [that Bowdrey
did] . . . agree, consent, offer, or arrange to distribute cocaine . . . .”
¶22 “Although there is no absolute ban on expert testimony
that embraces an ultimate issue, expert opinions that tell the jury
what result to reach or give legal conclusions are impermissible.”
State v. Rust, 2017 UT App 176, ¶ 25, 405 P.3d 869 (cleaned up).
This is because “testimony that renders a legal conclusion tends
to blur the separate and distinct responsibilities of the judge, jury,
and witness,” creating “a danger that a juror may turn to the
witness’s legal conclusion rather than the judge for guidance on
the applicable law.” State v. Davis, 2007 UT App 13, ¶ 15, 155 P.3d
909 (cleaned up). And while “no bright line separates permissible
ultimate issue testimony under rule 704 and impermissible
20220237-CA 11 2024 UT App 113State v. Bowdrey
overbroad legal responses a witness may give during
questioning,” our caselaw “has recognized that expert witnesses
who tie their opinions to the requirements of Utah law are quite
clearly offering impermissible legal conclusions.” State v. Moore,
2015 UT App 112, ¶¶ 21–22, 349 P.3d 797 (cleaned up); see also
Utah R. Evid. 704(b) (“In a criminal case, an expert witness must
not state an opinion about whether the defendant did or did not
have a mental state or condition that constitutes an element of the
crime charged or of a defense. Those matters are for the trier of
fact alone.”).
¶23 Bowdrey’s claim here fails because he does not show that
any error was made. Put another way, Bowdrey has not shown
that Sergeant’s testimony embraced the “ultimate issue” in such a
way that he gave “legal conclusions” or told the jury “what result
to reach.” See Rust, 2017 UT App 176, ¶ 25 (cleaned up). Nor did
Sergeant suggest that he was drawing a legal conclusion about
Bowdrey’s guilt or that he was invoking Utah law to support his
conclusions. Instead, Sergeant’s use of the term “arranger” to
describe Bowdrey’s role in the drug transaction was used as a
vernacular synonym for “middleman,” a point that Sergeant
made explicitly clear when he said that he had “seen hundreds of
times where there’s an arranger involved or a middleman” in
drug deals. Given this context, there was no error for the court to
address because Sergeant was not making a legal conclusion,
tying his opinion to the requirements of Utah law, or telling the
jury what result to reach. Rather, he was speaking colloquially to
convey his observations of the role Bowdrey played in the drug
sale. Accordingly, this claim fails.
C. Reliability of Sergeant’s Expert Testimony
¶24 The final aspect of Bowdrey’s argument concerning
Sergeant’s expert testimony is that the State failed to make a
threshold showing that Sergeant’s arranger theory of conducting
drug transactions was reliable as required by the Utah Rules of
20220237-CA 12 2024 UT App 113State v. Bowdrey
Evidence. See Utah R. Evid. 702(b)–(c) (“The threshold showing
[for reliability] is satisfied if the underlying principles or methods,
including the sufficiency of facts or data and the manner of their
application to the facts of the case, are generally accepted by the
relevant expert community.”). Bowdrey argues that instead of
meeting the requirement that Sergeant’s “observations about
drug transactions are generally accepted by those who specialize
in the field,” the State offered only Sergeant’s “anecdotal
musings” and “conclusory testimony.” And, quoting State v.
Turner, 2012 UT App 189, 283 P.3d 527, Bowdrey says the district
court abused its discretion in failing to fulfill its “gatekeeper”
function to “screen out unreliable expert testimony” due to its
potential for prejudice. Id. ¶ 18 (cleaned up).
¶25 As an initial matter, Counsel invited any error regarding
Sergeant’s qualifications as an expert. At trial, the State moved
that Sergeant “be declared as an expert in the field of narcotics
distribution.” (Emphasis added.) Counsel immediately stated,
“[W]e’ll stipulate that Sergeant . . . is a qualified, experienced law
enforcement officer and can testify about his investigation.” On
appeal, Bowdrey argues that he did not actually stipulate to
Sergeant’s testimony being reliable enough to warrant testifying
about his theory of drug distribution. This assertion is
unconvincing. After all, the State asked that Sergeant be declared
as an expert in the “field of narcotics distribution,” and Counsel
unequivocally and without reservation stipulated to his
qualifications in that regard. To now say that the stipulation
excluded narcotics distribution is a stretch. And Bowdrey cannot
now complain that the district court acted exactly as he advocated
with regard to Sergeant’s qualifications as an expert. See State v.
Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (“Our invited error
doctrine arises from the principle that a party cannot take
advantage of an error committed at trial when that party led the
trial court into committing the error.” (cleaned up)).
20220237-CA 13 2024 UT App 113State v. Bowdrey
¶26 But Bowdrey argues more than that Sergeant was not
generally qualified as an expert in the field of narcotics
distribution. He also asserts that the State “failed to make a
threshold showing that [Sergeant’s] ‘middleman/arranger’ theory
of drug transactions is a reliable theory” and that the “district
court erred in allowing [Sergeant] to give expert testimony” in the
absence of such a showing. Specifically, Bowdrey claims that the
State “did not address the primary question the district court
needed to answer—whether [Sergeant’s] observations about drug
transactions are generally accepted by those who specialize in the
field.” Instead, Bowdrey argues that Sergeant “offered only
anecdotal musings about what he had observed in the field” and
the State “offered no statistical data backing up these claims and
no verification by any other source that they are valid or reliable.”
¶27 We disagree with this more specific aspect of Bowdrey’s
argument regarding the reliability of Sergeant’s
“middleman/arranger” theory. Bowdrey pushes the requirements
of rule 702 too far in this situation. He ignores that rule 702
requires a party to make only a “threshold showing” that the
“principles or methods” underlying expert testimony are
“reliable.” Utah R. Evid. 702(b). Contrary to what Bowdrey
suggests, this “threshold is not so rigorous as to be satisfied only
by methodology or data that are free of controversy.” California
College Inc. v. UCN Inc., 2019 UT App 39, ¶ 22, 440 P.3d 825(cleaned up). Instead, “an expert may rely on his or her own
interpretation of data that have a foundation in the evidence, even
if the data is in dispute,” so long as there is “some evidence
underpinning” the data used by the expert. Id.¶28 Here, Sergeant’s expert testimony satisfied the threshold
reliability principles laid down in Eskelson ex rel. Eskelson v. Davis
Hospital & Medical Center, 2010 UT 59, 242 P.3d 762, as applied to
the criminal context. In Eskelson, a young boy got a bead stuck in
his ear. Id. ¶ 2. In an unsuccessful attempt to remove the bead, an
emergency room doctor ended up puncturing the boy’s eardrum.
20220237-CA 14 2024 UT App 113State v. Bowdrey
Id. The boy’s parents attempted to introduce expert testimony
from another doctor to establish that the emergency room doctor
had departed from the standard of care in various ways. Id. ¶ 3.
The emergency room doctor moved to strike the expert’s
testimony, arguing that it did not meet the requirements of rule
702. Id. ¶ 4. The district court granted the motion to strike after
determining that the expert’s “testimony was not based on any
. . . . technical . . . or other scientific knowledge” and “that his
methods were not generally accepted by the relevant scientific
community.” Id. Our supreme court reversed the district court’s
determination that the expert’s testimony did not meet the
reliability threshold. Id. ¶ 14. Specifically, our supreme court
clarified that the doctor’s expert testimony, based on “his
experience as a physician[] in dealing with similar situations . . . ,
constitute[d] a threshold showing of reliability.” Id. ¶ 15. The
court unequivocally stated that “rule 702 require[d] no more”
than the expert’s experience to make a threshold showing in this
situation:
What is required for a threshold showing of
reliability will vary depending on the complexity of
the particular case. In this case, the fact that [the
expert] had experience with the removal of foreign
objects from the ears of children satisfies the
threshold showing that his testimony was reliable.
Identification of a methodology is not necessary
where exposure to a nearly identical situation forms
the basis of the expert’s opinion. Because [the
expert’s] expertise was unchallenged, his
specialized knowledge met the threshold showing
of reliability required for the admission of his expert
testimony.
Id. While we are obviously dealing with a different situation
here—a police officer testifying about how people use an arranger
to sell drugs versus a doctor testifying about the proper way to
20220237-CA 15 2024 UT App 113State v. Bowdrey
remove foreign objects from children’s ears—the parallel with
Eskelson is obvious. Both experts testified based on knowledge
gleaned from exposure to “nearly identical situation[s],” id., as to
those at issue. Sergeant’s testimony was based not only on his
extensive training on the subject but on his experience observing
“thousands of hand-to-hand drug transactions.” Given this
extensive experience—experience that was not only
“unchallenged,” id., but stipulated to—Bowdrey simply cannot
show that the State failed to lay a foundation that Sergeant’s
middleman/arranger theory was reliable under rule 702. Nor can
he show that the district court abused its discretion in allowing
Sergeant’s testimony that in his experience as a law enforcement
officer, drug dealers often use middlemen to conduct a sale.
Indeed, this is the quintessential expression of the precept that
“law enforcement officers may offer expert testimony on a range
of subjects,” such as the behavior of drug traffickers, “provided
that sufficient foundation is laid for the specific testimony.” State
v. Harvey, 2019 UT App 108, ¶ 17, 446 P.3d 125.
¶29 In sum, the district court did not exceed its discretion in
admitting Sergeant’s expert testimony. Accordingly, Bowdrey’s
first claim of error fails. 5
II. Continuance
¶30 Bowdrey next asserts that the district court abused its
discretion in not ordering a continuance after the State filed late
notice that Sergeant would testify as an expert witness, well short
of the thirty days required by statute. See Utah Code § 77-17-
13(1)(a) (requiring notice of an expert at least thirty days before
trial). Bowdrey argues that he should have been given a
5. We could also resolve Bowdrey’s first issue on prejudice. Given
the overwhelming evidence of Bowdrey’s involvement in a drug
transaction—indeed two drug sales—the possibility of an
acquittal was beyond remote.
20220237-CA 16 2024 UT App 113State v. Bowdrey
continuance to prepare for Sergeant’s expert testimony in order to
prevent prejudice. See id. § 77-17-13(4)(a). Bowdrey’s claim of
error here fails for two reasons.
¶31 First, the district court had no duty to sua sponte order a
continuance. State v. Perez, 2002 UT App 211, 52 P.3d 451, is
dispositive on this point. Perez makes clear that Utah Code section
77-17-13(4)(a)
does not mandate that trial judges shall continue a
trial when the opposing party fails to give notice of
expert testimony. Rather, it states that the opposing
party shall be entitled to a continuance of the trial in
that circumstance. ‘Entitle’ is defined as [to] furnish
with proper grounds for seeking or claiming
something. Thus, the plain language of subsection
(4)(a) [grants a defendant] the right to a
continuance, the granting of which [is] contingent
on [the defendant] seeking or claiming it. In the
absence of a request, the trial court [has] no duty to
order a continuance.
2002 UT App 211, ¶ 41 (cleaned up). Here, Bowdrey never sought
a continuance. On the contrary, he seemed perfectly content with
the idea that the dispute could be resolved at a hearing proposed
by the district court. When informed of the late notice, the district
court told Bowdrey that the remedy for the late notice would be
“either a continuance of the trial or a hearing.” The court then
proposed a date on which it could be ready for a hearing. And
Counsel said he could be ready for “some kind of hearing on that
issue.” At the hearing, Counsel made no mention of a
continuance. Instead, in line with section 77-17-13(6), the court
resolved the matter by noting that Bowdrey had “fair notice” that
Sergeant “would be a witness and it would not be a surprise to
anyone that his testimony is going to venture into the area of
testifying about his knowledge and experience . . . as a law
20220237-CA 17 2024 UT App 113State v. Bowdrey
enforcement officer with what is common or standard practices
among those who are distributing illegal substances” based on
Sergeant’s testimony at the preliminary hearing. The court,
therefore, did not abuse its discretion in not sua sponte continuing
the trial in the absence of Bowdrey’s request for a continuance.
¶32 Second, Bowdrey had fair notice that Sergeant would
testify about the manner in which Bowdrey distributed the drugs.
Sergeant testified at the preliminary hearing that “based on his
experience, he believed [Bowdrey] was involved in the sale of
narcotics.” Sergeant also testified at the preliminary hearing that
he observed Bowdrey receive money from Buyer and deliver that
money to Seller, who dropped an item on the ground, which
Bowdrey subsequently picked up and delivered to Buyer.
Sergeant further testified at the preliminary hearing that he
observed Bowdrey repeat the same procedure with an
unidentified buyer while the takedown team apprehended Buyer.
Thus, based on Sergeant’s preliminary hearing testimony,
Bowdrey was on fair notice that Sergeant would be testifying
about the nature of Bowdrey’s involvement in the drug sale.
¶33 This fair notice gleaned from the preliminary hearing is
significant because Utah Code section 77-17-13(6) states that the
thirty-day formal notice requirement
does not apply to the use of an expert who is an
employee of the state or its political subdivisions, so
long as the opposing party is on reasonable notice
through general discovery that the expert may be
called as a witness at trial, and the witness is made
available to cooperatively consult with the opposing
party upon reasonable notice.
Given that Bowdrey was on fair notice that Sergeant would be
testifying and Sergeant was made available to consult with
Bowdrey, the district court did not exceed its discretion in not
20220237-CA 18 2024 UT App 113State v. Bowdrey
ordering an unrequested continuance under the circumstances of
this case. 6
¶34 For these reasons, Bowdrey’s claim regarding the lack of a
continuance after the State’s late notice fails.
III. Sufficiency of the Evidence
¶35 Bowdrey’s final assertion is that the “evidence presented
in this case was insufficient to sustain a reasonable inference that
[he] was acting as an arranger for drug transactions.” Since there
was no physical evidence tying him to the crime, Bowdrey argues
that his “role can only be a matter of speculation” such that his
guilt was not proved beyond a reasonable doubt. Bowdrey argues
that Sergeant’s testimony, while it did provide evidence of
Bowdrey’s involvement in the drug exchange, was simply too
6. Citing State v. Torres-Garcia, 2006 UT App 45, 131 P.3d 292,
Bowdrey asserts that Sergeant was not made available to
cooperatively consult with Counsel in a meaningful way. See id.
¶ 20. We are not persuaded by this line of argument because
Torres-Garcia is easily distinguished. In that case, the state’s expert
was not called until the second day of the trial, id. ¶ 8, and the
only notice the state had attempted to give was having sent the
expert’s name, address, and curriculum vitae to an attorney
apparently not associated with the case, id. ¶ 13. Actual defense
counsel learned of the state’s intention to use the expert from a
comment made only five days before trial. Id. Moreover, there was
no indication that the expert in Torres-Garcia was made available
to consult with the defendant’s counsel until after the trial started.
Id. ¶ 14. Here, the situation is markedly different. Sergeant was
part of the case from the start and had participated in the
preliminary hearing. Accordingly, Bowdrey had every reason to
know that Sergeant would be testifying. Moreover, opportunity
to consult was provided before the trial started. Given these
significant differences, Torres-Garcia is of little help to Bowdrey.
20220237-CA 19 2024 UT App 113State v. Bowdrey
speculative to allow the jury to draw a reasonable inference of
guilt. Given this alleged evidentiary deficiency, Bowdrey asserts
that the district court plainly erred in submitting the case to the
jury since “[r]easonable minds must have entertained a
reasonable doubt about Bowdrey’s guilt.”
¶36 “To establish plain error regarding the sufficiency of the
evidence, an appellant must show first that the evidence was
insufficient to support a conviction of the crimes charged and
second that the insufficiency was so obvious and fundamental
that the district court erred in submitting the case to the jury.”
State v. Gilliard, 2020 UT App 7, ¶ 29, 457 P.3d 1128 (cleaned up).
“An example is the case in which the State presents no evidence
to support an essential element of a criminal charge.” State v.
Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. But in Bowdrey’s case, the
evidence was abundant and convincing. And while the evidence
might have required the jury to make some inferences, it was far
from speculative. “[T]he difference between an inference and
speculation depends on whether the underlying facts support the
conclusion. A jury draws a reasonable inference if there is an
evidentiary foundation to draw and support the conclusion. In the
case of speculation, however, there is no underlying evidence to
support the conclusion.” Salt Lake City v. Carrera, 2015 UT 73, ¶ 12,
358 P.3d 1067.
¶37 Sergeant observed the drug deal through a spotting scope.
And while he was 200 feet away, the power of the scope allowed
him to observe the events as if he were only about fifteen feet
away. Sergeant watched Bowdrey receive cash from Buyer, take
that money to Seller, and exchange the cash for a small white
object that Seller dropped on the ground. Bowdrey retrieved that
item and proceeded to deliver it to Buyer, who went to his car and
drove off. Moreover, Sergeant observed Bowdrey perform this
same basic routine with another unidentified buyer. When Buyer
was stopped by other members of the surveillance team, a
“bindle” of cocaine was found on the driver seat. Seller was found
20220237-CA 20 2024 UT App 113State v. Bowdrey
with $20 bills and nine additional plastic baggies of cocaine.
Sergeant’s observations, coupled with the physical evidence
collected from Buyer and Seller, provided an evidentiary
foundation from which a jury could easily infer that Bowdrey had
cooperated with Seller to arrange to distribute a controlled
substance.
¶38 Given the robust evidentiary landscape that accompanied
this case, we fail to see how the district court plainly erred in
submitting the case to the jury. Simply put, it falls far outside the
category of cases that require speculation to reach a conviction.
CONCLUSION
¶39 The district court did not exceed its discretion in admitting
Sergeant’s expert testimony. Nor did the court exceed its
discretion in not granting an unrequested continuance based on
the late notice of Sergeant’s expert testimony. And there was
sufficient evidence to support Bowdrey’s conviction.
¶40 Affirmed.
20220237-CA 21 2024 UT App 113