STATE of Utah, Plaintiff and Appellee, v. Skyler J. SHEPHERD, Defendant and Appellant.
No. 20130169-CA
Court of Appeals of Utah
Aug. 13, 2015
2015 UT App 208
¶ 5 To the extent that Jones challenges the role of the Utah Board of Pardons and Parole, those issues as applied to his case, are not within the ambit of
¶ 6 Accordingly, we affirm.
Sean D. Reyes and Ryan D. Tenney, Salt Lake City, Attorneys for Appellee.
Opinion
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
BACKGROUND
¶ 2 On August 21, 2011, a man who lived near Pineview Reservoir was working in his yard when he heard “blood 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.
¶ 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
ISSUES AND STANDARDS OF REVIEW
¶ 9 Defendant advances several claimed errors that he believes warrant reversal of his convictions. First, he argues that 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, 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).
I. Sufficiency of the Evidence
¶ 15 In claiming that the evidence was insufficient to convict him of reckless endan-
¶ 16 The relevant statute criminalizes “recklessly engag[ing] in conduct that creates a substantial risk of death or serious bodily injury to another person.”
¶ 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.”
¶ 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
¶ 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 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, 570 U.S. 178, 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
¶ 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
¶ 27 Defendant also argues that the State, during its closing argument, improperly commented on his silence. The closing 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
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 “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
¶ 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
¶ 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
¶ 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
¶ 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
¶ 36 Next, under
¶ 37 Finally, we look to
¶ 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 of others.” Universal Inv. Co. v. Carpets, Inc., 16 Utah 2d 336, 400 P.2d 564, 567 (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
¶ 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
¶ 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
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
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 984 (quoting State v. Adams, 2000 UT 42, ¶ 13, 5 P.3d 642). See also
¶ 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 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, 353 P.3d 55 (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 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 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
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 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
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 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.
¶ 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.
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.
GREGORY K. ORME
JUDGE
Notes
[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.