State v. Yalowski

2017 UT App 177THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RUSSELL EDWARD YALOWSKI,
Appellant.
Opinion
No. 20150270-CA
Filed September 21, 2017
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
The Honorable Paul B. Parker
No. 141903380
Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes, Laura B. Dupaix, and Jeanne B.
Inouye, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY
concurred.
MORTENSEN, Judge:
¶1 Two loud bangs announced an unidentified intruder’s
arrival at Victim’s house. The short-lived mystery was solved
when Victim drew back the shower curtain to step out of her
bathtub. There stood her ex-boyfriend—Defendant Russell
Edward Yalowski. While urinating on the walls of the bathroom,
Defendant yelled that he had “about eight N words out[side]
waiting to shoot up the house.” Defendant was charged and a
jury convicted him of burglary, a second degree felony; threat of
violence, a class B misdemeanor; and criminal mischief, a class B
misdemeanor. See Utah Code Ann. §§ 76-6-202, 76-5-107, 76-6-
106(2)(c) (LexisNexis 2012). Defendant appeals, and we affirm.
State v. Yalowski
BACKGROUND
¶2 Defendant and Victim began dating in December 2012
and broke up one year later. On December 20, 2013, after the
breakup, Victim was at home with her children, her cousin, and
her cousin’s children. Victim went upstairs to bathe, but, after a
few minutes in the bathtub, she heard two loud bangs. When
Victim opened the shower curtain, she saw Defendant standing
in the bathroom. Defendant threatened her, saying he “had
people outside” who were “waiting to shoot up the house,”
before “[h]e started urinating all over [her] walls near the
shower.” 1
¶3 Victim dressed as she pleaded with Defendant “to calm
down.” As Defendant continued yelling, Victim made her way
to her bedroom and dialed 911, setting the phone down because
she felt she “couldn’t talk” and “couldn’t say anything because
he was still standing there in the hallway.” When Victim “got
nervous that he might know that the phone was sitting off the
hook,” she “turned it off.”
¶4 Eventually, Victim convinced Defendant to walk outside
with her. Defendant continued threatening her, telling her “he
was going to take [her] somewhere and beat [her] up and leave
[her] for dead where nobody could find [her].” While the two
were outside, police arrived and arrested Defendant. Officers
found keys to Victim’s house and car in Defendant’s pocket,
which Victim said she had never given him. Police took
Defendant’s shoes into evidence, and a forensic technician
photographed shoe impressions in the snow around Victim’s
1. Victim testified she could “see [Defendant’s] genitalia” during
this incident. Defendant was accordingly charged with
lewdness, a class B misdemeanor, see Utah Code Ann. § 76-9-
702(1) (LexisNexis Supp. 2016), but the jury acquitted Defendant
on that charge.
20150270-CA 2 2017 UT App 177State v. Yalowski
house, damage to the back door of the house, and damage to the
bathroom door.
¶5 Defendant was charged with lewdness, see supra ¶ 2 note
1, burglary of a dwelling, threat of violence, and criminal
mischief. Before trial began, Defendant informed the trial court
that he and the State had stipulated “that no prior acts of
violence or abuse will be admitted.” He also requested that the
court “exclude any testimony that the shoe impressions found at
[Victim’s] home matched [Defendant’s] footwear.” He based his
objection on rules 701 and 702 of the Utah Rules of Evidence,
which differentiate between lay and expert opinion testimony.
See Utah R. Evid. 701, 702. The court reserved ruling, indicating
it would “have to rule on that when [it] hear[d] what the witness
[said].” Finally, Defendant requested permission to cross-
examine Victim about three prior instances of her dishonesty—a
plea in abeyance for theft by deception, using someone else’s
identification to enter the jail to visit Defendant, and an arrest for
theft by deception and giving a false name to a police officer. The
court said it would allow Defendant to question Victim about
her use of someone else’s identification but denied Defendant’s
request to bring up the plea in abeyance or the arrest.
¶6 During trial, Victim testified that she and Defendant had
broken up because Defendant was “constantly fighting with
[her]. Getting violent.” Defendant objected, arguing that the
testimony violated the stipulation not to introduce evidence
regarding his prior acts of violence. The court agreed and
directed the prosecutor to speak to the witness, instructing her
not to mention Defendant’s past behavior. Defendant also
moved for a mistrial, but the court explained, “I’m going to deny
the motion, Counsel. I agree that it shouldn’t have been brought
up, but I don’t see that there’s significant harm. There was no
description of any violent events. It was just a brief mention.”
¶7 The State later called the forensic technician to testify. He
explained that when he arrived at Victim’s home, he observed
20150270-CA 3 2017 UT App 177State v. Yalowski
“some shoe impressions on the steps leading up to the back
door” and “a small, faint shoe impression on the back door
itself.” He went on to testify, without further objection from
Defendant, that the tread pattern shown on the pictures of the
shoe impressions appeared to be a “similar pattern, similar
block. Identical” to the pattern on Defendant’s shoes.
¶8 The jury also heard testimony from Victim’s cousin and
responding police officers. Victim’s cousin testified that she
heard two loud bangs at Victim’s house before finding out that
Defendant was upstairs. Because she “was kind of afraid at
first,” she “tried to keep [the children] all in the same space.” She
and the children were “in the closet . . . hiding, because [she]
heard [Victim and Defendant] arguing upstairs.” After she felt it
was safe to come out of the closet, she walked upstairs. She first
saw that the frame of the back door was broken, and then she
“noticed that the bathroom door was also broken.” At trial, the
cousin indicated that the damage to the back door and bathroom
door had not previously been there.
¶9 The first officer (the backup officer) testified that he
responded to Victim’s house after multiple 911 hangups. He was
a “backup officer,” meaning his job was to “[m]ostly kind of stay
out of the investigation. Make sure [the investigating officer was]
safe. Make sure nothing happens to him or nobody resists him,
or while he’s conducting the investigation no one interferes with
that.” After Defendant was placed in a police car, the backup
officer entered Victim’s house and spoke with her. Victim
showed him the damage inside the house and filled out a
witness statement. The backup officer walked around the house,
where he found one set of fresh footprints in the snow leading to
the back door. He then “pointed out several things that needed
to be photographed” to the forensic technician.
¶10 At trial, the backup officer took time to show and explain
the resulting photographs to the jury. He pointed out
characteristics of the shoeprints:
20150270-CA 4 2017 UT App 177State v. Yalowski
So right here there’s flat, round, circular. And then
around it several small circle lines. Right here is a
void in the shoe, so an indent. On the top of it
closest to the toes is somewhat curved. And in the
back, right in here, there’s another round
impression, with a similar small one on the side.
He went on to explain that the details of the shoeprints were
“[s]imilar to marks that we can see on the . . . door” and similar
to the pattern on Defendant’s shoes. He later reiterated that there
were “white marks” on the door “that are similar to the ones in
size and shape that we saw on the shoe print impressions. . . .
[i]n the snow.”
¶11 A second officer testified that he took Defendant’s shoes
into evidence. He also recounted his investigation, during which
he saw Victim’s bathroom door: “It looked like it had been
forced open. The door jamb was broken, the latch plate was off.”
And the back door was “[j]ust basically kicked in.”
¶12 The jury convicted Defendant of burglary, threat of
violence, and criminal mischief, but it found him not guilty of
lewdness. Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Defendant raises three issues for our review, and he
alternatively contends that the three issues, taken together,
warrant reversal under the cumulative error doctrine. First, he
challenges the trial court’s denial of his motion for a mistrial
when Victim testified, contrary to the parties’ stipulation, that
Defendant had been violent in the past.
Because a district judge is in an advantaged
position to determine the impact of courtroom
events on the total proceedings, once a district
20150270-CA 5 2017 UT App 177State v. Yalowski
court has exercised its discretion and denied a
motion for a mistrial, we will not reverse the
court’s decision unless it “is plainly wrong in that
the incident so likely influenced the jury that the
defendant cannot be said to have had a fair trial.”
State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quoting State v.
Wach, 2001 UT 35, ¶ 45, 24 P.3d 948).
¶14 Next, Defendant challenges the trial court’s refusal to
allow him to question Victim about her plea in abeyance and her
uncharged arrest. We review the trial court’s decisions regarding
the scope of cross-examination, including whether to exclude or
allow the introduction of certain evidence, under an abuse of
discretion standard. See State v. Gomez, 2002 UT 120, ¶ 12, 63 P.3d
72.
¶15 Defendant also challenges the admission of the forensic
technician’s testimony regarding the similarities between
Defendant’s shoes and the shoe impressions found at Victim’s
house. He argues that such testimony “required specialized
knowledge” and that the technician was not qualified to provide
such testimony. “We review decisions relating to the
qualification of a witness as an expert or as a lay witness for an
abuse of discretion.” State v. Rothlisberger, 2004 UT App 226, ¶ 9,
95 P.3d 1193, aff’d, 2006 UT 49, 147 P.3d 1176.
¶16 Finally, Defendant argues that the errors he alleges, taken
together, “undermine confidence in the fairness of [Defendant’s]
trial.” “Under the cumulative error doctrine, we apply the
standard of review applicable to each underlying claim or error”
and “reverse only if the cumulative effect of multiple errors
undermines our confidence that a fair trial was had.” State v.
Davis, 2013 UT App 228, ¶ 16, 311 P.3d 538 (citation and internal
quotation marks omitted).
20150270-CA 6 2017 UT App 177State v. Yalowski
ANALYSIS
I. Victim’s Testimony Regarding Defendant’s Past Violence
¶17 First, Defendant argues that we should “reverse because
the trial court improperly denied the defense’s motion for
mistrial after [Victim] testified about [Defendant’s] prior acts of
violence in violation of rule 404(b) of the Utah Rules of
Evidence.” The State counters that granting a mistrial was
unnecessary because the statement “was unprompted, made in
passing, and likely had no effect on the verdict.” We agree with
the State.
¶18 Under rule 404(b), “Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in
conformity with the character.” Utah R. Evid. 404(b)(1). In
Defendant’s view, Victim’s testimony that Defendant
“previously became violent constituted 404(b) evidence that was
prejudicial.” But because Victim’s statement lacked detail, was
not elicited by the prosecutor, and was not emphasized or dwelt
on during trial, we conclude that Defendant was not prejudiced
by the statement and that the trial court therefore did not abuse
its discretion in denying Defendant’s motion for a mistrial.
¶19 In State v. Griffiths, “the prosecutor unintentionally
evoked a response which revealed the existence of an
outstanding warrant for defendant’s arrest in another unrelated
matter.” 752 P.2d 879, 883 (Utah 1988). The trial court
immediately “admonished the jury to disregard the statement”
and denied the defendant’s motion for a mistrial. Id. On appeal,
the Utah Supreme Court reasoned that “[w]hile it was error to
introduce evidence of other wrong-doing by defendant,” the
error was harmless. Id. “The witness’s reference to the warrant
was very brief and was only made in passing, stating no details
of the circumstances which caused the warrant to issue or of the
offense to which it was related.” Id.20150270-CA 7 2017 UT App 177State v. Yalowski
¶20 Likewise, Victim’s statement—that Defendant was “just
constantly fighting with [her]. Getting violent”—was brief, was
made in passing, and stated no details of Defendant’s prior
violence. See id. Victim did not explain how Defendant had been
violent or how often. 2 Although the trial court did not instruct
the jury to disregard Victim’s statement, 3 the approach taken by
the prosecutor was likely just as effective. The prosecutor
immediately redirected Victim’s testimony. Victim’s entire
statement was: “We were at my house and I broke up with him. I
just told him I couldn’t do it anymore. He was constantly
accusing me of things I wasn’t doing and just constantly fighting
with me. Getting violent.” The prosecutor followed up with the
question, “You broke it up?”, and Victim replied, “I broke it up.”
The prosecutor drew the focus away from any discussion of
Defendant’s past violence and instead focused on the fact that
Victim was the one who ended the relationship with Defendant.
No further mention was made of Defendant getting violent.
¶21 In State v. Wach, a witness had “violated the parties’
stipulation not to introduce evidence of prior bad acts in
accordance with rule 404(b) of the Utah Rules of Evidence” when
she testified that she often wore a security alarm necklace when
the defendant was around. 2001 UT 35, ¶¶ 44, 46 n.5, 24 P.3d
948. But this testimony “was not elicited by the prosecutor, and
was an isolated, off-hand remark, buried in roughly 244 pages of
testimony.” Id. ¶ 46. And “given the totality of the evidence . . .
2. We note that Victim did use the word “constantly” to describe
how often Defendant fought with her. She said that Defendant
“was constantly accusing [her] of things [she] wasn’t doing and
just constantly fighting with [her].” However, Defendant does
not argue that this sentence was improper or grounds for a
mistrial. Instead, throughout his brief, he emphasizes the phrase
“Getting violent” as being problematic.
3. We note that Defendant did not request a limiting instruction.
20150270-CA 8 2017 UT App 177State v. Yalowski
and the reasonable inferences therefrom,” this statement did not
“cause[] the jury to convict.” Id. For these reasons, the Utah
Supreme Court determined the challenged statement “did not
render [the] trial so unfair that the trial court was ‘plainly wrong’
in denying [a] motion for a mistrial.” Id.¶22 Here, the prosecutor did not elicit Victim’s statement that
Defendant had gotten violent. The comment was spontaneously
made, and the two words—“Getting violent”—are “buried in”
more than 200 transcript pages. See id. The totality of the
testimony presented by Victim, her cousin, the forensic
technician, and the two responding police officers was more
than sufficient to establish the elements of the crimes for which
Defendant was convicted. We consider Victim’s brief comment
to be akin to the testimonies given in Griffiths and Wach and
similarly conclude that the statement did not prejudice
Defendant. Accordingly, the trial court did not abuse its
discretion when it denied Defendant’s motion for a mistrial.
II. Cross-Examination of Victim
¶23 Next, Defendant complains that he should have been able
to cross-examine Victim regarding her plea in abeyance for theft
by deception and an arrest for both giving a false name to a
police officer and theft by deception. Defendant bases this
challenge on rules 608(b), 608(c), and 403 of the Utah Rules of
Evidence.
¶24 As a threshold matter, we agree with the State’s
contention that Defendant’s rule 608(c) challenge is unpreserved.
That rule provides, “Bias, prejudice or any motive to
misrepresent may be shown to impeach the witness either by
examination of the witness or by other evidence.” Utah R. Evid.
608(c). On appeal, Defendant argues that these events “reveal a
motive to testify untruthfully.” But to preserve this challenge for
our review, Defendant must have “provide[d] the trial court
with the opportunity to address, and correct, a claimed error” by
20150270-CA 9 2017 UT App 177State v. Yalowski
raising it “specifically.” See State v. Crabb, 2011 UT App 440, ¶ 2,
268 P.3d 193 (per curiam).
¶25 When Defendant sought permission to question Victim
about the plea in abeyance and the arrest, he did so “under Rule
608, which allows examples of conduct probative of truthfulness
or untruthfulness.” Rather than alerting the trial court that
Defendant sought admission under rule 608(c), this explanation
actually tracks the language of rule 608(b), which allows cross-
examination about “specific instances of a witness’s conduct . . .
if they are probative of the character for truthfulness or
untruthfulness of . . . the witness.” See Utah R. Evid. 608(b).
Defendant thus preserved only his rule 608(b) argument. 4 We
therefore turn to the question of whether the trial court abused
its discretion under rule 608(b) when it refused to allow cross-
examination regarding Victim’s plea in abeyance and arrest.
¶26 We have previously indicated that “the cross-examination
of a witness is not wholly unrestrained, especially when
inquiring about prior bad acts that did not result in the
conviction of a crime.” State v. Valdez, 2006 UT App 290, ¶ 9, 141
P.3d 614. And under rule 608(b), “no party is entitled to inquire
of a witness’s prior bad acts. The trial court is afforded broad
discretion to allow or disallow inquiry concerning the witness’s
prior bad acts, even if probative of the witness’s truthfulness or
4. Defendant states in conclusory fashion that even if his rule
608(c) challenge is unpreserved, “the court plainly erred by
precluding cross-examination on [Victim’s] plea in abeyance and
2014 arrest.” But Defendant’s one-paragraph analysis of the
applicability of the plain-error exception to our preservation
rules is unpersuasive. It fails to address rule 608(c) specifically
and Defendant instead applies his analysis to “any aspect of this
issue [that] is not preserved.” Defendant’s plain-error argument
is thus inadequately briefed and we decline to consider it
further.
20150270-CA 10 2017 UT App 177State v. Yalowski
untruthfulness.” Id. (emphasis in original). In Valdez, even where
the “case turn[ed] largely on [the witness’s] credibility,” we
concluded that the trial court did not abuse its discretion “by
prohibiting cross-examination into [a] dismissed charge.” Id.
¶¶ 10, 12.
¶27 The present case is akin to Valdez. Defendant sought to
cross-examine Victim about an arrest for which she had not yet
been charged and “a plea in abeyance that was eventually
dismissed.” Obviously, rule 608(b) does not require a conviction
before a prior bad act can be introduced. But the fact that there
was no charge brought and the fact that the plea in abeyance
was dismissed weigh against allowing cross-examination
because they lessen the probative value of the events. See Utah R.
Evid. 403; State v. Gomez, 2002 UT 120, ¶ 34, 63 P.3d 72(discussing the interplay between rules 403 and 608(b) of the
Utah Rules of Evidence).
¶28 Nevertheless, Defendant disagrees and claims that
Victim’s “prior acts of dishonesty are highly probative of her
character for untruthfulness.” He further argues that “the danger
of unfair prejudice did not substantially outweigh the strong
probative value.” But in this regard, Defendant’s argument
seems to assume that the trial court’s exclusion of these two
prior acts was based solely on rule 403. See Utah R. Evid. 403
(allowing a court to “exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice”). The record does not indicate that the trial court
made such a determination. 5 Instead, the probative value of the
5. The trial court’s order on this point does not explain its
reasoning. For instance, we find it curious that the court allowed
inquiry into Victim’s use of a false identification but disallowed
inquiry into the arrest and plea in abeyance, without explaining
why. But curious as that may be, the decision was nevertheless
squarely within the trial court’s discretion.
20150270-CA 11 2017 UT App 177State v. Yalowski
arrest and plea in abeyance seems to have factored into the trial
court’s exercise of its discretion in not allowing the cross-
examination under rule 608(b). It permitted Defendant to
question Victim about her use of a false identification, which was
recent. Furthermore, this use of false identification occurred
when Victim visited Defendant while he was in jail for reasons
related to the events of this case. By contrast, the trial court did
not have before it information regarding when the plea in
abeyance took place. And the arrest, although fairly recent, had
not yet resulted in charges and lacked detail concerning the
precipitating events. In other words, this is not a scenario in
which “there is no reasonable basis for the decision” of the trial
court and thus its decision does not constitute an abuse of
discretion. See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 16,
163 P.3d 615 (citation and internal quotation marks omitted).
¶29 We also conclude that the trial court’s exclusion of the
requested cross-examination was harmless. This case bears
another similarity to Valdez because while the trial court limited
cross-examination, it did not leave Defendant entirely unable to
impeach Victim’s credibility. See 2006 UT App 290, ¶ 10
(reviewing a trial court’s refusing cross-examination about
dismissed charge but allowing questioning on prior conviction).
And while in Valdez the case hinged on the witness’s credibility,
see id., here, Victim’s testimony was not as crucial. She provided
the details of where she found Defendant and the threats he
made to her, and her story was corroborated by witnesses whose
credibility was not attacked.
¶30 Victim’s cousin testified about Defendant’s presence in
the house, about the damage done to the doors after his arrival,
and about the arguing that she heard between Defendant and
Victim. During the incident, Victim’s cousin was fearful enough
that she hid with her children in a closet. The jury received
physical evidence showing the damage to the doors, including
pictures and testimony regarding shoeprints left on the door and
the shoes Defendant was wearing when he was arrested.
20150270-CA 12 2017 UT App 177State v. Yalowski
¶31 Defendant’s ability to question Victim about her use of
false identification, combined with the plentiful testimony
supporting Defendant’s convictions, leads us to conclude that
there is no “likelihood that injustice resulted” from the
limitations placed on Defendant’s cross-examination of Victim.
See id. ¶ 12 (citation and internal quotation marks omitted).
Thus, there was no abuse of discretion nor a harmful error.
III. The Forensic Technician’s Opinion Testimony
¶32 Finally, Defendant argues that the trial court erred “by
admitting lay opinion testimony regarding shoe impression
evidence that required specialized knowledge and was not
helpful to the jury.” Specifically, he argues that the forensic
technician should not have been able to compare and analyze the
shoe impression evidence because it “failed to assist the jury and
required specialized knowledge.” In other words, Defendant
argues that the forensic technician’s testimony violated rule 701
of the Utah Rules of Evidence. We conclude that it did not, but
even if it did, the testimony was harmless.
¶33 Rule 701 allows “a witness [who] is not testifying as an
expert” to give “testimony in the form of an opinion” so long as
the opinion is (1) “rationally based on the witness’s perception;”
(2) “helpful to clearly understanding the witness’s testimony or
to determining a fact in issue; and” (3) “not based on scientific,
technical, or other specialized knowledge within the scope of
Rule 702.” Utah R. Evid. 701. Before trial, Defendant moved to
exclude “testimony from one of the police officers that shoe
prints match [Defendant’s] footwear . . . because [he] believe[d]
that’s appropriate for an expert under 702 and [not] a lay
witness.” The trial court explained that it would
have to rule on that when I hear what the witness
says, I guess. Just initially without having heard
any evidence, I think that a layperson could say
something to the effect that “That footprint looks a
20150270-CA 13 2017 UT App 177State v. Yalowski
lot like his shoe.” But if the witness is going to say,
“I’ve done an expert examination, I’ve matched[6]
tread” and so forth, then he probably couldn’t go
that far.
Then, during his testimony, the forensic technician explained,
“On the tread pattern this similar pattern, similar block.
Identical.” On cross-examination, he clarified that he was “not
testifying as an expert today, [he was] testifying as the person
who gathered this evidence.”
¶34 Even assuming that the trial court understood
Defendant’s objection 7 to pertain to the forensic technician’s
testimony—which is unclear because the motion referenced “one
of the police officers” and two witnesses testified regarding the
shoeprints—the opinion given was proper lay opinion
testimony. See id. R. 701; State v. Ellis, 748 P.2d 188, 190–91 (Utah
1987). In Ellis, the Utah Supreme Court determined that the lay
opinion given by a security guard and former police officer
describing shoeprints did not run afoul of rule 701. See 748 P.2d
6. In fact, when the backup officer used the word “match” while
discussing tread patterns during his testimony, the trial court
sustained an objection and sua sponte struck the statement from
the record.
7. Despite Defendant’s motion in limine, we are not convinced
this particular challenge was preserved. His motion referenced
testimony opining that shoeprints matched Defendant’s shoes,
but he was not any more specific than that. He did not even
indicate which particular witness he anticipated would provide
such testimony. Furthermore, when the forensic technician
offered his testimony that the shoeprints were “Identical,”
Defendant made no objection. But because we are able to resolve
this issue on its merits, we do not consider further whether this
issue was properly preserved.
20150270-CA 14 2017 UT App 177State v. Yalowski
at 190–91. And while Defendant attempts to distinguish the
present case from Ellis because of the forensic technician’s use of
the word “identical,” in our view, Ellis is dispositive of this issue.
¶35 In Ellis, the defendants argued
that the trial court erred when it admitted the lay
opinion testimony of Bruce Austin. Mr. Austin, a
security guard and former police officer, was one
of the first to arrive at the scene. He examined the
premises and discovered two sets of footprints in
the mud beneath the broken window, as well as
footprints inside the house leading away from the
broken window. During his testimony, Mr. Austin
compared the footprints outside the house to those
inside. He said that one exhibit, a photograph of a
footprint “with the distinctive heel marking
appeared to be the one on the inside of the carpet.”
The trial court admitted the testimony, reasoning
that a witness is allowed to testify from personal
experience and observation.
Id. at 190. “Based on that testimony,” the defendants argued
“that Mr. Austin gave an opinion which, as a lay witness, he was
not qualified to give. They also argue[d] that the slight probative
value of the opinion was far outweighed by the danger that the
jury construed it as that of an expert and gave it undue weight.”
Id. at 191. The supreme court reasoned:
Rule 701 of the Utah Rules of Evidence allows a lay
witness to give an opinion when it is rationally
based on the witness’s perception and helpful to a
clear understanding of the testimony or the
determination of a fact in issue. Utah R. Evid. 701.
It is difficult to understand how Mr. Austin’s lay
testimony in the form of an opinion became expert
testimony. Simply because a question might be
20150270-CA 15 2017 UT App 177State v. Yalowski
capable of scientific determination, helpful lay
testimony touching on the issue and based on
personal observation does not become expert
opinion. It is true that “if [a question] is capable of
scientific determination, then expert testimony is
admissible with respect to it”; however, that does
not mean that lay opinion testimony is prohibited
if the provisions of the evidentiary rule are met.
Id. (additional citations omitted).
¶36 Like the defendants in Ellis, Defendant argues in part that
the forensic technician was not qualified to give the challenged
testimony because he “brought no legitimate methodology to
bear in drawing the inference that the shoe impressions were
identical” and he did not conduct “the type of subtle analysis
that qualified him to comment, using terms of certainty, on the
degree of similarity between complex tread patterns.” But in
making this argument, Defendant misstates the forensic
technician’s testimony. The witness merely explained his process
of taking photographs of the scene and then opined that the
pattern on the shoes was consistent with the pattern on the shoe
impression. He did not opine “using terms of certainty” or about
the “degree of similarity” between the patterns. He stated that
the patterns appeared identical and then demonstrated, using
the exhibits, how the patterns were “consistent” or “similar.”
¶37 In other words, regarding comparisons between
Defendant’s shoes and shoeprints found at Victim’s home,
“[s]imply because [the] question might be capable of scientific
determination, helpful lay testimony touching on the issue and
based on personal observation [did] not become expert opinion.”
Id. Instead, the forensic technician based his opinion on his
personal observations, and the jury was provided the very
photographs on which he expressed his opinion. It was made
clear to the jury that the forensic technician was not an expert
witness, and there was nothing prohibiting jurors from forming
20150270-CA 16 2017 UT App 177State v. Yalowski
their own conclusions based on their observation of the
photographs. Instead, the forensic technician’s testimony merely
helped them to focus on important aspects of the photographs.
See Utah R. Evid. 701(b) (specifying that lay opinion testimony
should be “helpful to clearly understanding the witness’s
testimony”).
¶38 Additionally, nearly identical testimony was introduced
through the backup officer, and that testimony was not
challenged at trial nor is it challenged on appeal. The backup
officer testified that the tread marks on the door were similar to
the tread on Defendant’s shoes. That witness also walked the
jury through the pictures taken at Victim’s house, pointing out
details of the marks the same way the forensic technician did.
Thus, even without the forensic technician’s testimony, the jury
would have had the same information before it and likely would
have reached the same conclusions.
¶39 Because the forensic technician’s testimony was based on
his personal observations, was helpful to the jury, and was not
the sort of testimony subject to rule 702, it was proper opinion
testimony under rule 701. Furthermore, because the same
testimony was offered by another witness, admission of the
forensic technician’s testimony was harmless.
IV. Cumulative Error
¶40 Defendant also makes a claim of cumulative error. Under
the cumulative error doctrine, [appellate courts] will reverse
only if the cumulative effect of the several errors undermines our
confidence . . . that fair trial was had.” State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993) (omission in original) (citation and
internal quotation marks omitted). “In assessing a claim of
cumulative error, we consider all the identified errors, as well as
any errors we assume may have occurred.” Id. But if the
appellant’s claims do not constitute error, or the errors are “so
minor as to result in no harm, the doctrine will not be applied.”
20150270-CA 17 2017 UT App 177State v. Yalowski
State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878. Because we have
determined in every instance that either no error occurred or
that any error was harmless, our confidence in the fairness of
Defendant’s trial is not undermined. Accordingly, we reject
Defendant’s cumulative error claim.
CONCLUSION
¶41 We conclude that there is no merit to Defendant’s
challenges on appeal. Victim’s statement that Defendant had
previously been violent was not dwelt upon, was made in
passing, and likely had no effect on the proceedings. Defendant’s
inability to cross-examine Victim regarding her arrest and plea
in abeyance was not harmful, particularly where he was able to
cross-examine her about her use of false identification and where
other witnesses corroborated her testimony. And the forensic
technician’s testimony that the pattern on Defendant’s shoes was
identical to the mark left on Victim’s door did not run afoul of
the relevant rules of evidence and was harmless in any event.
¶42 Affirmed.
20150270-CA 18 2017 UT App 177