Tag: December 12

2019 UT App 204 – In re H.F. incorrect analysis terminating parental rights


J.F., Appellant,
E.F., Appellee.

No. 20180348-CA
Filed December 12, 2019

Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1100472

Scott L. Wiggins and Lisa Lokken, Attorneys for Appellant
Joshua P. Eldredge, Attorney for Appellee
Martha Pierce, Guardian ad Litem



¶1           J.F. (Mother) appeals from the juvenile court’s termination of her parental rights to H.F. (Child). We reverse and remand for further proceedings.


¶2           Child was born in December 2012. Soon after Child’s birth, Mother discovered that her husband, E.F. (Father), had been using drugs. Suffering from postpartum depression, Mother also began using drugs with Father as a means of self-medicating.

¶3           In March 2014, the Division of Child and Family Services (DCFS) removed Child from Mother and Father’s home as a result of their drug use. Upon removal, DCFS placed Child with Mother’s parents (Grandparents). During this time, Grandparents facilitated visitation between Child and Father, as well as Father’s extended family.

¶4           Soon after Child was removed from the parents’ home, Mother began a relationship with “a really bad guy.” She left Utah with him, and they began committing crimes together. Eventually, the pair were arrested, convicted of multiple crimes, and incarcerated.

¶5           Conversely, Father began participating in drug treatment in June 2014. After completing treatment, he became involved in various peer support groups to help others with drug addiction and even obtained a full-time job as a peer recovery coach for a nonprofit addiction-recovery agency. In March 2015, Father filed for divorce from Mother and was granted a default divorce awarding him full legal and physical custody of Child. In May 2015, upon the State’s motion, the juvenile court terminated its jurisdiction and DCFS involvement. After Father regained custody of Child, Grandparents continued to provide regular daycare for Child.

¶6           In July 2016, Father moved the juvenile court to terminate Mother’s parental rights. Father was engaged to be married, and his fiancée (Fiancée) wanted to adopt Child, but they had not yet set a wedding date and were not yet living together.[1] Grandparents “had a heated conversation with” Father about his termination petition, and subsequently, he put Child in full-time daycare and did not permit Grandparents to see Child as often.

¶7           At Mother’s termination trial in December 2017, her former criminal attorney expressed his belief that Mother’s criminal actions had been “very much influenced by” her co­defendant but that she “was a model defendant”; continually showed concern for her family and a desire to take care of her children;[2] had come to understand, through participation in counseling, her responsibilities and the detrimental effects of her co-dependent relationship with her co-defendant; and ultimately told the truth about the criminal incidents even though her co­defendant was damaged by her admissions. Mother was still incarcerated at the time of the termination trial but was due to be released in April 2019. She had been participating in a voluntary drug-treatment program. She testified that prior to Child’s removal, she was his “sole care provider.” She testified that she has a bond with Child, that she has had regular telephone and video calls with him since losing custody and sends him letters, that Child had expressed his desire to be reunited with Mother, and that she wants to have “visitation as much as possible” and to “be in [Child’s] life as much as [she] can.” She testified that she regrets her past decisions and their effect on her children, but she also could not rule out the possibility of a relationship with her co-defendant when he is released from prison in eight or nine years.

¶8        Father testified that he was willing to support a continuing relationship between Child and Mother following termination of her rights so long as it was “safe” for Child. Although Father did not discourage Child’s contact with Mother, he did not directly facilitate Mother and Child’s contact; rather, this contact took place when Child visited Grandparents. Both Father and Fiancée testified that Child has a very good relationship with Fiancée, that she treats him like her own child, and that Child sees her as his mom. Father testified that he believed Child’s relationship with Mother’s family was “beneficial.” He claimed that Child’s relationship with Mother’s family would not change if Mother’s rights were terminated. He admitted that he “could make a better effort in . . . communicating to set” up time between Child and Mother’s extended family but explained that he had felt a need to set “boundaries” because the termination petition had “put a strain” on his relationship with Mother’s family.

¶9        Grandparents expressed fear that termination would “have a very negative impact on [their] relationship with [Child]” and that Father “would move on” and “find a way to take [Child] away from” Grandparents. Mother’s brother, who also had a close relationship with Father, expressed his belief that Father had become uninterested in Mother’s side of the family and that Father would not let Mother’s family see Child anymore if Mother’s rights were terminated. Another of Mother’s brothers likewise testified that the family’s contact with Child had been less frequent during the preceding year and that he believed Father would cut off contact between Child and Mother’s family if the court terminated Mother’s rights.

¶10 Following trial, the juvenile court found two grounds for termination: (1) that Mother was an unfit parent because she was unable to care for Child as a result of her incarceration and (2) that she had neglected child through her habitual and excessive use of controlled substances. See Utah Code Ann. § 78A-6-507(1)(b), (c) (LexisNexis 2018); id. § 78A-6-508(2)(c), (e) (Supp. 2019). The court further found that termination was in Child’s best interest.

¶11 In reaching its conclusion regarding Child’s best interest, the juvenile court limited its analysis to three factors—Child’s “bond with his caregivers,” his “need for permanence and stability,” and “the potential risk of harm if returned to [Mother’s] care.” The court found that there was not an intact parental relationship between Mother and Child because she had not acted as his caregiver for an extended period of time. It observed that although Child recognizes that Mother is his mom, he has developed a mother–child bond with Fiancée as well. The court also found that Fiancée intended “to adopt [Child] should he be legally free.” The court concluded that “[t]hese facts support the need for permanence and stability and that [Child] does have a bond with his caregivers.” The court further found that there was “a potential risk of harm to” Child from Mother because she could not rule out the possibility of a future relationship with her co-defendant, who had been described as a “really bad guy.” Finally, the court found that termination of Mother’s rights was “strictly necessary for [Child] to achieve permanency and stability.” Based on these findings, the court determined that it was in Child’s best interest that Mother’s parental rights be terminated. Mother now appeals.


¶12 Mother argues that the juvenile court exceeded its discretion in terminating her parental rights. “The ultimate decision about whether to terminate a parent’s rights presents a mixed question of law and fact.” In re B.T.B., 2018 UT App 157, ¶ 8, 436 P.3d 206 (quotation simplified), cert. granted, 440 P.3d 692 (Utah 2019). We review the court’s factual findings for clear error and its legal conclusions for correctness, “affording the court some discretion in applying the law to the facts.” Id. (quotation simplified). Nevertheless, “the proper interpretation and application of a statute is a question of law which we review for correctness.” In re A.M., 2009 UT App 118, ¶ 6, 208 P.3d 1058 (quotation simplified).


¶13 In assessing whether termination of parental rights is appropriate, a court must employ a “two-part test.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). “First, a trial court must find that one or more of the statutory grounds for termination are present,” and second, “a trial court must find that termination of the parent’s rights is in the best interests of the child.” Id. (quotation simplified). Mother does not contest the juvenile court’s determination that grounds existed to support termination, but she maintains that termination was not in Child’s best interest and that the court did not adequately consider all factors relevant to that determination.

¶14 “The ‘best interest’ test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” Id. ¶ 47; see also In re G.J.C, 2016 UT App 147, ¶ 24, 379 P.3d 58 (“Determining a child’s best interest in termination of parental rights proceedings is a subjective assessment based on the totality of the circumstances.”). Utah courts have identified numerous factors that may be relevant to this determination. For example, a court may consider “the physical, mental, or emotional condition and needs of the child”; “the effort the parent has made to adjust their circumstances, conduct, or conditions to make restoring the parent–child relationship in the child’s best interest”; “the child’s bond with caregivers”; the child’s “need for permanency and stability”; and “the potential risk of harm if returned to the parents’ care.” See In re G.J.C., 2016 UT App 147, ¶ 24 (quotation simplified). It may consider the parent’s “demeanor,” “attitude toward his or her child,” and “attitude in fulfilling parental obligations,” see In re T.E., 2011 UT 51, ¶ 44, 266 P.3d 739, and it may weigh the benefits of the child continuing a relationship with an unfit parent even where reunification is not an option, examine the child’s prospects for adoption, and even consider the child’s preferences in some circumstances, In re D.R.A., 2011 UT App 397, ¶¶ 19, 21, 266 P.3d 844; see also In re B.T.B., 2018 UT App 157, ¶ 56. Moreover, as part of the best interest analysis, Utah law requires courts to “analyze whether termination of a child’s parent’s rights is ‘strictly necessary,’” that is, the court must “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2018 UT App 157, ¶¶ 50, 55; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018) (“Subject to the protections and requirements of Section 78A-6-503, and if the court finds strictly necessary, the court may terminate all parental rights with respect to a parent if the court finds any one of the following [statutory factors] . . . .” (emphasis added)).

¶15 In conducting its best interest analysis, the juvenile court did not take the holistic approach that has been prescribed by this court. Rather than examining the totality of all circumstances affecting Child’s best interest, the court erroneously interpreted In re G.J.C., 2016 UT App 147, 379 P.3d 58, as articulating a best interest test composed of only three specific factors: (1) “bond with caregivers,” (2) “need for permanence and stability,” and (3) “the potential risk of harm if returned to the parent’s care.” See id. ¶ 24. Further, the court’s finding that termination was “strictly necessary” was conclusory and did not include an examination of feasible alternatives to termination, as required by In re B.T.B., 2018 UT App 157, 436 P.3d 206.[3]

¶16 The court’s reliance on only the three specific factors gleaned from In re G.J.C. unduly narrowed the “broad,” “holistic” best interest test, see In re B.T.B., 2018 UT App 157, ¶ 47, and its order did not accurately represent the direction given by this court in In re G.J.C.[4] The three factors identified in In re G.J.C. were not given as a definitive list of factors; rather the court stated that those three factors were “proper” factors to consider “in the context of a best-interest determination.” 2016 UT App 147, ¶ 24. Indeed, the court explicitly instructed that a best interest determination must be “based on the totality of the circumstances.” Id. This court reaffirmed and elaborated on this “holistic” approach in In re B.T.B., when it instructed “courts to examine all of the relevant facts and circumstances surrounding the child’s situation” and, in particular, “to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights,” in order to satisfy the legislature’s requirement that termination be limited to circumstances where it is “strictly necessary.” 2018 UT App 157, ¶¶ 47, 54–55.

¶17 Because of the court’s narrow focus on only three factors pertaining to the best interest analysis, its findings do not reveal whether the court considered a number of additional factors relevant to determining if termination of Mother’s rights was in Child’s best interest, including the fact that Child’s prospects for adoption by Fiancée were speculative, Child’s bond with Mother and any benefits of him continuing a relationship with Mother, and the effect of termination on Child’s relationship with his extended family, including his half-sister.[5] Further, while the court’s analysis emphasized Child’s need for stability, it is unclear how terminating Mother’s parental rights would achieve that goal. Child was not in DCFS custody or a short-term placement with a foster family with an unsettled future. Rather, Father had permanent sole legal and physical custody of Child. Child would continue to be raised primarily by Father and Fiancée, regardless of whether Mother’s parental rights were terminated. And while termination would free Child for adoption by Fiancée, Fiancée was not in an immediate position to adopt Child, and it was not certain that she would ever be in such a position, as she and Father were not actually married. Even the danger anticipated by the juvenile court if Mother eventually resumed her relationship with her co-defendant was mostly speculative, as the co-defendant would not be released from prison for many years. See In re D.R.A., 2011 UT App 397, ¶ 21 (determining that the State had failed to establish that termination was in a child’s best interest in part because “the benefits of severing” the parent–child relationship were “too speculative”). Finally, the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination. See In re B.T.B., 2018 UT App 157, ¶ 55. Therefore, the juvenile court’s findings do not support its determination that termination was in Child’s best interest.


¶18 Because the juvenile court did not employ the correct holistic analysis in assessing whether termination of Mother’s parental rights was in Child’s best interest and its findings do not support such a determination, we vacate the court’s order terminating Mother’s parental rights and remand for further proceedings consistent with this opinion.[6]

Utah Family Law, LC | | 801-466-9277


[1] Utah law requires a prospective adoptive stepparent to be married to the child’s custodial parent and to have lived with the custodial parent and the stepchild for at least one year prior to entry of the final decree of adoption. Utah Code Ann. § 78B-6¬ 117(2)(a) (LexisNexis Supp. 2019); id. § 78B-6-136.5(2)(a) (2018). Thus, as of the termination trial, Fiancée was at least one year away from being able to adopt Child.

[2] Mother has another child who was not included in the termination proceedings.

[3] Father argues that the juvenile court was not required to engage in the “strictly necessary” analysis prescribed by In re B.T.B. because that case was decided after the court issued its oral ruling in this case. However, Father makes no effort to explain why we should not apply this analysis. The “strictly necessary” language has been part of the statute since 2012, Act of March 7, 2012, ch. 281, § 6, 2012 Utah Laws 1331, 1334; In re B.T.B. merely interpreted that statutory language. And upon interpreting the language, the In re B.T.B. court sent that case back to the trial court for reconsideration: “Because we clarify and partially reformulate the test for termination of parental rights, we remand this case to the juvenile court for reconsideration in light of this opinion.” 2018 UT App 157, ¶ 2, 436 P.3d 206, cert. granted, 440 P.3d 692 (Utah 2019). Father also fails to acknowledge that the juvenile court’s final written order was actually signed one month after In re B.T.B. was issued. We therefore reject Father’s assertion that the court’s failure to engage in a more thorough “strictly necessary” analysis should be ignored on appeal.

[4] In re G.J.C. has limited utility in any event because it employed the now-disavowed principle that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” 2016 UT App 147, ¶ 25, 379 P.3d 58 (quotation simplified); see also In re B.T.B., 2018 UT App 157, ¶¶ 22–44 (disavowing the “almost automatically” line of cases).

[5] Our analysis should not be construed as prohibiting courts from focusing on those factors that it finds to be most probative in a particular case; not every factor will be relevant in every case, and even where evidence of a particular factor is present, a court may reasonably discount the factor and decline to discuss it in detail in its findings. The court’s ruling in this case is problematic not because it focused on limited relevant factors but because it misconstrued the best interest test as being limited to those factors and because it did not examine the feasibility of less-drastic alternatives to termination.

[6] Our decision should not be read as dictating any particular result on remand. Indeed, any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision. On remand, the court should expand its analysis of best interest to consider the totality of the circumstances, examine the feasibility of alternatives to termination, supplement its findings, and assess whether termination is in Child’s best interest in light of any such supplemental findings.

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2019 UT App 205, Utah Court of Appeals, State v. Wall – ex-wife murdered



No. 20151017-CA
Filed December 12, 2019

Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 131903972

Troy L. Booher, Freyja Johnson, and Beth Kennedy, Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
HAGEN, Judge:

¶1           A jury convicted Johnny Brickman Wall of murdering his ex-wife, Uta von Schwedler.[1] Wall appeals his conviction, arguing that there was insufficient evidence to convict him, that the district court erred in admitting certain DNA evidence, and that his trial counsel was ineffective in failing to object to the State’s closing argument involving the DNA evidence. We conclude that Wall has not carried his burden on appeal to show there was insufficient evidence to support his murder conviction. Further, the district court did not exceed its discretion in admitting certain DNA evidence, and Wall’s trial counsel did not perform deficiently in failing to object to the prosecutor’s characterization of that evidence in closing argument. Accordingly, we affirm Wall’s conviction.


Marriage and Divorce

¶2           In 1988, a mutual friend introduced Uta to Wall while they were each completing doctorate programs on the west coast. Wall and Uta married in 1990, and Wall graduated from medical school four years later. After medical school, Uta, Wall, and their newborn son moved to Utah for Wall’s residency program. Over the next few years, they had three more children together.

¶3           By 2005, the marriage had failed and Uta moved out of the family home, leaving the four children to live primarily with Wall. The couple divorced in 2006.

¶4           Wall and Uta responded differently to the divorce. According to their children, Wall was “very, very sad” and depressed after the divorce, but over time his mood changed from sadness to “anger, even hatred” toward Uta. Wall frequently complained to the children about Uta, saying that she was “a bad parent,” that she was “selfish,” and that she made his “life difficult.” The children said that Wall never treated Uta “nicely or kindly” after the divorce. At one point, Wall “physically removed” Uta from his property when she “tried to come in the front yard” to pick up the children for her parent time.

¶5 Most people who knew Wall knew that he “despised” Uta. He asked his friends, “Would it be bad if Uta wasn’t here anymore?” and “How would my life be if she weren’t around?” He sent emails to Uta accusing her of immoral acts and threatening to “move away” with the children “or continue towards obtaining full custody.” He blamed Uta for his unhappiness and accused her of “hurt[ing] people that matter deeply” to him. When she reached out to him regarding requests from the children’s friends for weekend trips, he asked her to “please stop inserting [herself] in [his] parent time.”

¶6           It was clear that Wall did not want Uta in the children’s lives. The summer before her death, Wall took the children to California but refused to tell them when they were returning to Utah because he did not want them to tell Uta. If the children attempted to communicate with Uta while they were with Wall, “he would become very upset” and would sometimes take their phones away from them. He was uncooperative with Uta regarding parent-time exchanges and adjustments to the custody arrangement. Wall frequently ignored Uta’s messages, and she had to organize parent-time schedules through her older children.

¶7           Uta’s response to the divorce was quite different. Her friends, family, coworkers, and other acquaintances who testified at trial knew Uta to be “very outgoing, very friendly, very cheerful,” and “full of life.” Those witnesses said her positive attitude continued after the divorce, and some people “certainly thought she was happier” after the divorce. She was welcoming to newcomers and frequently brought homemade treats to work or to social gatherings. She regularly engaged in physical activities such as swimming, running, hiking, skiing, and camping. Uta was in a “very happy” relationship with a man (the boyfriend) whom the children liked, and the two eldest children told family members that they “were so happy that Uta had [the boyfriend]” because he was “a really, really good match for Uta.” No witness testified that Uta was unhappy or suicidal, except for Wall.

¶8           Uta was very involved in her children’s lives. Although she “had a great love and passion for science,” she arranged with her supervisor to work a “30-hour work week” because “it was important to her to be available for [her children] after [school] hours.” “Uta’s greatest pleasure in life was the love of her four children,” and she wanted to spend more time with them. She attended their sporting events and musical performances and created photo albums for each of them.

¶9           One of the few things that upset Uta was attempting to work with Wall regarding the children. A few years after the divorce, Uta hired an attorney to file a petition to modify the divorce decree regarding parent time, and the court ordered mediation. Although Wall and Uta reached an agreement during mediation, Wall later refused to sign the proposed order. Thus, for years following the divorce, the custody arrangement was never sorted out and remained a “constant battle.”

¶10 Early in September 2011, after years of unsuccessfully attempting to work out a better custody arrangement outside of court, Uta reached out to her attorney to discuss filing a new petition to modify the divorce decree and to consider moving to appoint a custody evaluator. Wall ignored Uta’s inquiries related to the children, including whether he would either agree to sign the custody evaluation request or agree to the proposed parent-time schedule for the upcoming school year. He also frequently ignored his own attorney’s communications related to these requests. The week before Uta’s death, in an apparent change of course, Wall agreed to sign the custody evaluation request the following week. But after he left the children in Uta’s care for the weekend, Wall “excited[ly]” told a new acquaintance that “he was getting his kids back.”

Uta’s Final Days

¶11 The week before her death, Uta had made a discovery in her research that could advance a new treatment for childhood leukemia. According to her supervisor, the “long-term implications of that discovery” were “very exciting on a professional level, on a career level, both for Uta and . . . the lab, because [it would] lead[] to new peer-reviewed publications, grants, [and] presentations.” This was a “milestone” in Uta’s career that would have had “positive implications” for her.

¶12 On September 26, 2011, the day before her body was discovered, Uta had a meeting with her supervisor and another coworker related to this new discovery, and they were all “quite enthusiastic” because “[t]his was one of the biggest discoveries [they] had had thus far in the laboratory.” Later that evening, Uta attended one of the children’s soccer games and was “in a great mood.” She spread out a blanket and shared treats with other parents. Uta told a fellow parent that she “had been camping that weekend with her kids and [her boyfriend]” and was looking forward to her upcoming trip to California with her two youngest children later that week while Wall took the two eldest children to visit universities back east.

¶13 After the soccer game, Wall arrived at Uta’s house to take the children back home. When he arrived, Uta tried to talk with him to finalize the details for the California trip, but Wall “rolled up his window and ignored her.” According to the children, Wall appeared annoyed on the drive home.

¶14 With the children out of the house, Uta went about her usual Monday evening routine of “deep cleaning” the house. Uta called her boyfriend and made plans with him for the following night. At around 10:45 p.m., Uta spoke with a friend over the phone about potential plans for the next day. That was the last time anyone heard from Uta.

September 27, 2011

¶15 The following morning, on September 27, 2011, Uta’s neighbors did not see her at her kitchen table drinking coffee and reading her newspaper, as she did all other mornings. Instead, the newspaper remained in the driveway, and the garbage cans Uta put out for collection the night before remained on the street.

¶16 That same morning, Uta’s eldest daughter awoke at around 6:00 a.m. and got ready for school. She searched the house for Wall, who usually drove her to the light rail station, but she could not find him anywhere. The eldest daughter testified that if Wall had to leave for the hospital in the middle of the night, he would “generally . . . text [her] or call [her]” to let her know, but he had not left her any messages that morning. After calling him twice with no answer, the eldest daughter walked to the station to go to school. Wall was spotted by the eldest daughter’s schoolmate and her mother at 7:05 a.m., driving some distance away from and in the opposite direction of his house, and Wall still had not returned home to get the youngest children ready for school by the time the eldest son left for school around 7:30 a.m. But the two youngest children remembered speaking with Wall at some point before leaving for school. Specifically, they remembered seeing an injury to Wall’s eye. Wall told them that he had slept outside on the porch and had been scratched by their dog, but the youngest daughter thought Wall was acting “weird, almost paranoid.” Just after 8:00 a.m., a carwash facility photographed Wall dropping off his car. Wall took his car there to “detail the inside” and asked the carwash attendant to focus “extra heavy” in the trunk cargo area and on a spot on the driver’s side back seat.

¶17 After leaving his car to be detailed, Wall arrived late for appointments with patients. He “looked disheveled and anxious,” appeared not to have bathed, and wore the same clothes as the previous day. A medical assistant noticed that he had a scratch on the left side of his face and that his left eye was “reddened and bloodshot.” Although two people who worked in Wall’s office said that this scratch looked like it was caused by a fingernail, “Wall volunteered an explanation for the scratch, saying that his dog jumped on him and scratched his face while he was sleeping outside.” One of the assistants “thought [this] explanation was odd because [Wall] had his dog for a long time and she had never seen it scratch him before.” When Wall noticed that his assistant was looking at additional scratches on his arms, he “quickly” rolled down his sleeves. After seeing one patient, Wall left to see an eye doctor and did not return to work.

¶18 When the eldest children returned home, they too noticed the scratch to Wall’s face and eye. Wall told them that he had been sleeping outside occasionally over the past few months and that their dog had scratched him the night before while he slept outside on the porch. None of the children had ever seen Wall sleep outside on the porch, and none of them knew their dog to scratch anyone.

The Crime Scene

¶19 At around 7:45 p.m. on September 27, 2011, Uta’s boyfriend went to visit her as they had planned the night before. Uta’s garbage cans were still on the street, and her newspaper was still in the driveway. The boyfriend walked into her house through her unlocked door, which Uta normally locked before going to bed. He noticed that her bathroom door was slightly ajar and that the light was on. On his way to the bathroom, he walked past her bedroom and noticed that the blinds, which were always open, had been pulled shut. The boyfriend reached the bathroom, announced his presence, opened the door, and found Uta dead in her bathtub with the cold water running but not overflowing. She wore only her pajama shorts, and her bloodied tank top was folded at the edge of the bathtub. The boyfriend called the police, who quickly arrived on the scene.

¶20 Upon entering the house, the first responders noted that there were pills strewn across the bedroom floor, a lamp had toppled over on the bed, and a vase and books from the nightstand had been knocked onto the floor. The comforter on the bed had been balled up in a way that appeared to conceal several dried bloodstains. The fitted bed sheet contained one large pool of blood and two smaller pools of blood that “show[ed] motion in three different directions,” indicating “a sign of a real struggle.” There was also a bloodstain on the pillowcase. In the bathroom, there was blood smeared on the sink and below the windowsill located above the bathtub, but there was no blood smeared on the walls between Uta’s bedroom and bathroom or on any of the light switches. There was a shampoo bottle standing upright in the middle of the bathroom floor, which was usually kept in the windowsill above the bathtub. Under Uta’s body, the first responders found a large kitchen knife. Also in the bathwater was a magazine, the sports section of the newspaper (which Uta never read), and the youngest daughter’s photo album. There were dried bloodstains that looked like shoeprints on the kitchen floor.

¶21 Some of the officers testified that the scene appeared “suspicious,” as if “there could have been a struggle,” and that it “did not appear consistent with an overdose or accidental death.” After leaving the scene, one of the officers contacted detectives to conduct an investigation.

Wall’s First Version of the Events of September 26 and 27

¶22 Later that night, the detectives arrived at Wall’s house to ask him “if he was willing to come down to [the] police station to talk.” The officers did not tell Wall what they wanted to talk about, and he did not ask them.

¶23 While Wall waited to be interviewed, the detectives first interviewed the boyfriend. The boyfriend was “compliant” and “helpful.” He did not “have any trouble time-lining himself, explaining what he had been doing the weekend before, [or what happened] the day before. He seemed to be honest in all of his answers.”

¶24 In contrast, Wall’s responses to the detectives’ questions were vague and he spoke in generalities rather than directly answering questions about what occurred the previous night. When the detectives asked where he went the night before after picking up the children from Uta’s house, Wall said, “I don’t know . . . I don’t rem . . . I mean, I don’t usually remember every . . . what I do, but . . . ah . . . usually what we do.” (Omissions in original.) He went on tangents about what usually happened when he retrieved the children from Uta’s house at the conclusion of her parent time. The officers kept redirecting Wall, stating, “So what happened last night, though, [Wall]? This was just last night.” But Wall continued to respond to inquiries about the previous night with things the family “usually” did on Monday evenings or what the children “sometimes” did when they got back to Wall’s house. Wall could not say if he had been home the entire night or if he had gone back to Uta’s house after picking up the children. Wall evaded direct answers about the last time he had seen Uta, and he could not remember if he had recently touched Uta or the last time he had been inside Uta’s house. When directly asked if he had been inside Uta’s house on September 26 or 27, Wall responded, “I don’t think so.” When asked if there was “any reason, whatsoever, that [his] DNA . . . would be under [Uta’s] fingernails,” Wall responded, “I don’t know.” When he was asked if he killed Uta, he said, “I don’t think I did it,” “I don’t think I was there,” and, “If I did it, I did make a mistake, and I am sorry. But I don’t think I did it.”

¶25 Eventually, over the span of three hours, Wall gave an account of the things he did on September 27, 2011. He told the detectives that he went to a gas station near his house to purchase eggs between 6:45 a.m. and 7:00 a.m. He said he returned to the house and had breakfast with his two youngest children before taking them to school. Wall then went to a carwash facility because he had “extra time” that morning and there were “burritos spilled all over” the front passenger seat. He talked about going to his office, seeing the eye doctor regarding the scratch on his eye—which he again said his dog caused—and returning to the carwash to get his car before driving to his office at the hospital. At the hospital, Wall apparently parked his car and left his windows rolled down with his cell phone still inside the vehicle. He claimed that his cell phone had been stolen by the time he returned.

¶26 Wall could not tell the officers what he had done between 8:00 p.m. on September 26, 2011, and 6:45 a.m. the following day.

¶27 After interviewing Wall, the detectives had photographs taken of Wall’s injuries and had a technician take his fingerprints. Wall was not arrested, and a detective arranged a ride home for him. One of the detectives testified at trial that Wall was “surprised” that he was being released and asked, “[S]o I’m not going to jail?” When the detective said he was not, Wall responded, “[B]ut I’m a monster.”

Wall’s Conduct Following Uta’s Death

¶28 When Wall returned home from his interview with the detectives at around 2:30 a.m., he bluntly told the children, “Uta’s dead and they think I did it.” He told the youngest daughter “not to leave him alone because he was scared he would do something he would regret.” Wall curled up “in the fetal position” and cried. He started “babbling and rambling” and “saying things along the line of: ‘Am I a monster? Only a monster could have done this. How do I know what I do when I’m asleep? What if I did it and I don’t remember?’” The children and family friends testified that Wall repeatedly referred to himself as a monster in the days following Uta’s death. The eldest son explained that Wall’s ramblings made him “question[] [Wall’s] involvement in [his] mother’s death.”

¶29 One of the children called a family friend to help Wall. Wall told this friend, “Uta is dead and they think I did it . . . .” When she asked him, “[D]id you do these things that—that the police said you did?” Wall responded, “If I did them, I don’t remember.” When this friend started looking for some of Wall’s medications, he told her that he had been “sleeping outside recently” and that “the dog scratched him on his face.” She asked him, “Why are you telling me this?” And then he showed her his eye. The friend noticed other scratches and “gouges” on Wall’s body, which he quickly covered up. Because Wall was so “distraught,” the friend wanted to offer him a sedative and asked him if he was familiar with Xanax. Even though he was a medical doctor and had twice prescribed himself Xanax after his divorce from Uta, Wall claimed not to know what it was. After the friend explained Xanax’s purpose, Wall claimed to remember recently prescribing his mother Xanax “because she’s afraid to fly.” Wall then started telling the friend that “[a]ll he wanted was for Uta to be happy . . . and that’s all he ever wanted,” which the friend found to be “unusual because [she] felt like he was very angry at Uta” and did not believe that Wall really wanted her to be happy.

¶30 That same morning, Wall checked himself into a psychiatric facility where he stayed for about a week. While he was receiving treatment, the eldest son and a family friend visited him and asked him questions about Uta’s death. During this conversation, Wall asked his son, “If the police found my phone there [at Uta’s house,] what could I say to refute that?”

¶31 After Wall’s release from psychiatric treatment, the children resumed living with him, but his behavior changed. Over time, Wall restricted the children’s communication with Uta’s family and the boyfriend. Wall told the children that the boyfriend should have “come to him and comforted him in his time of need,” and therefore the boyfriend should not be allowed to communicate with the children. (Emphasis added.) Wall also began telling his children that Uta committed suicide and told the youngest son, “[M]aybe it’s better that she’s dead.” He became more “confrontational,” “aggressive and intimidating” toward the children regarding Uta’s death. The eldest son moved out of Wall’s house the day after an “uncomfortable incident” in January 2012, in which Wall asked him “what [he] knew about [his] mom’s death” and “what attorneys [he] had contacted.” By May of that year, the three other children were also no longer living with Wall.

¶32 After Uta’s death, the eldest son went to Uta’s house to collect the children’s photo albums to send them to Uta’s family in Germany. He could not enter the house on his own because the spare key that was normally left outside for the children was missing and never found. After receiving help from the boyfriend to gain access to the house, the eldest son retrieved the albums and sent them to Germany. The eldest son informed Wall that he had sent the photo albums to Germany and that Wall would receive copies of the albums. In November 2012, Wall sued the eldest son for conversion and demanded to have the photo albums returned to him. In response, the eldest son filed a counterclaim against Wall for Uta’s wrongful death.

Wall’s Second Version of the Events of September 26 and 27

¶33 At a hearing on the wrongful death claim, at which Wall was present, the lead detective testified that he was actively investigating Uta’s death as a homicide and that Wall was the primary suspect. He further testified that “DNA samples had been submitted to [a] lab for testing” and that those results were still pending.

¶34 After this hearing, Wall was deposed and asked about his whereabouts between September 26 and 27. During his deposition, Wall offered new details to account for how his or Uta’s DNA might have transferred to the areas tested by police. For instance, police took a swatch of fabric from the driver’s side back seat where Wall had pointed out a spot at the carwash. Wall volunteered that, when he picked up the children from Uta’s house the night before her death, Uta had opened the driver’s side rear passenger door to hug the youngest daughter. Wall also claimed, for the first time, that he had caught Uta walking out of his garage later that night. Wall said he pursued Uta and “[s]he turned around and hit [him] in the face” and might have scratched him. He claimed that Uta had broken into his basement “multiple times in the previous months,” but that he never reported it to the police.

¶35 Although the DNA results were still pending, counsel deposing Wall asked him, “Why is your DNA in Uta’s bedroom?” He said he did not know if his DNA was there, but that Uta had invited him into her bedroom before “to seduce [him],” although he declined her advances. He could not remember when she last invited him into her bedroom but said that it could have been one or two months before her death.

¶36 Wall also testified in his deposition that Uta attempted suicide once on their honeymoon in 1991 and again while she was pregnant with their youngest son. But Wall said that he never reported either suicide attempt[2] or helped Uta seek counseling or treatment.

¶37 Finally, Wall gave a different version of events regarding his whereabouts on September 27, 2011, than what he told the detectives. This time, Wall explained that after allegedly chasing Uta away and being hit by her in the face, he went back inside his house to sleep. He woke up around 5:00 a.m. and decided to go to the hospital to work on his patients’ charts but realized that he forgot his identification and could not enter the hospital. Wall said he decided to go for a hike up a nearby canyon before the sun rose and before going to the carwash facility and then to work. Unlike the story he told at his police interview, this version of events did not include Wall being at home that morning with the two youngest children and the newly purchased eggs before school, even though the youngest children testified to that effect.

The Investigation

¶38 While Wall was getting psychiatric treatment in September 2011, Uta’s body was sent to a medical examiner to perform an autopsy. Although some of the officers believed there could have been foul play and that her death appeared suspicious, an investigator’s report provided to the medical examiner said her death was “a probable suicide overdose.” The medical examiner later testified that, had the “case been presented . . . as a suspicious death or homicide,” he would have taken more photographs of the body and conducted a more thorough examination. The medical examiner noted “sharp force injuries on her left wrist . . . in three separate locations,” a bruise on her lip, an abrasion on her cheek, and a laceration to her lower leg. Uta also had internal hemorrhages in her neck, which could have been sustained by a “broad and/or soft blunt object being applied in that location,” and petechiae (burst capillaries) in her right eye, each of which were consistent with strangulation. Uta had a near-lethal dose of Xanax in her system, but there were no pill remnants in her stomach. The medical examiner was “not looking specifically for an injection site anywhere,” because the case was brought to him as a probable suicide, but he testified that any of the injuries on Uta’s body “could potentially obscure an injection site” if that was how the Xanax got into her system. The medical examiner explained that the nature of Uta’s wounds was “not like anything [he] had ever seen in a suicide,” because they appeared to be defensive rather than self-inflicted, and that he had concerns that the police were “dealing with a homicide.”

¶39 After conducting the autopsy, the medical examiner concluded that Uta’s cause of death was drowning but could not determine the manner of death. Based on his concerns that the manner of death may have been homicide, the medical examiner asked the officers to meet with him to discuss his findings. Because he could not determine how the Xanax got into her system, he asked the officers if they were conducting further investigation. The sergeant in charge of the case at that time “basically [said] that we think this is a suicide, period.” The medical examiner told the officers that he was “not going to call this a suicide,” and that the manner of death was “undetermined” based on what he knew. The medical examiner explained that the scene of the crime was “suspicious,” that it appeared “more consistent with homicide than anything else,” and that “but for the Xanax” in Uta’s system, he “would have certified the death as a homicide.”

¶40 A few weeks after the medical examiner performed the autopsy, the investigation stalled. Between November 2011 and November 2012, the boyfriend, an ex-boyfriend, the eldest son, and some of Uta’s other family members kept pressing the police to investigate the case as a homicide. Finally, in November 2012, the investigation resumed in earnest.

¶41 A crime scene reconstructionist reviewed the photographs taken by the investigators the night Uta’s body was found, visited Uta’s house after it had been cleaned, and reviewed the items collected from the scene. The reconstructionist determined that Uta had been murdered and that the murderer had staged the scene to look like a suicide. The reconstructionist, who had special training and expertise in “blood pattern interpretation,” analyzed the blood patterns on Uta’s comforter and fitted sheet and concluded that a “violent struggle” occurred and that Uta struggled “under a restraint.” The reconstructionist also analyzed Uta’s bloodied tank top that had been folded and laid over the side of the bathtub. Although there was one saturated spot on the chest where it appeared Uta had held her bleeding wrist against her body, there was “no hand transfer” of blood onto the tank top where one would expect to see it if Uta had removed the tank top herself. The reconstructionist opined that the bloodstains in the bathroom under the windowsill and on the sink appeared to have occurred while Uta was being pushed into the bathroom. The bloodstains were not consistent with Uta being “intoxicated and stumbling around her house on her own” because there were no apparent patterns on the walls of someone staggering or touching surfaces to get from the bedroom to the bathroom.

¶42 Forensic testing also revealed that there were bloody shoeprints in the bathroom and the bedroom and that there was a bloody spot above Uta’s headboard. These blood stains initially went undetected because they had been cleaned up before the boyfriend discovered Uta’s body and first responders arrived at the scene. A crime scene technician discovered these bloodstains using a special chemical that changes color when it comes into contact with blood protein, which helped to make the “partially visible” or “faint” bloodstains in the bedroom and on the bathroom floor more visible.

¶43 Unlike the faint bloodstains that were overlooked by the first responders, dried-blood shoeprints had been immediately apparent in Uta’s kitchen. The crime scene reconstructionist explained that those stains would not have come from “rehydrated blood” because if the blood had dried and a person with a wet shoe stepped into the blood and started walking, that person “might get flakes . . . [or] portions” of blood, but it would not make a full bloody shoeprint. The reconstructionist concluded that the evidence showed another person had been present and attacked Uta and that “this scene was a homicide that was staged to look like a suicide.”

¶44 Investigators searched to find where the Xanax may have come from. Uta was never prescribed Xanax, she had never told anyone she had taken it, and no prescription bottle for it was found at her house. Even though Uta sometimes stored her medication in film canisters, those canisters were always labeled. Further, Uta kept a yearly “medicine calendar” in which she dutifully documented the medications she took, the amount she took, and her “level of wellness” related to those medications. Nowhere on these calendars did Uta document taking Xanax.

¶45 On the other hand, Wall had twice prescribed himself .5 milligrams of Xanax following the divorce. And, just four months before Uta’s death, Wall wrote a prescription for the highest dosage of immediate release Xanax, which is 2 milligrams, and filled that prescription at a pharmacy that he had never used before or since. Wall claimed that he filled this prescription for his mother who lived in California, but in their initial interviews with investigators, Wall’s parents could not confirm whether they ever received such a medication.

¶46 At the crime scene, the investigators collected, among other things, a pillowcase and scrapings from underneath Uta’s fingernails to be tested for DNA evidence. Using different techniques, investigators extracted DNA samples from each of these items. The forensic analysis revealed that Wall was a possible contributor to the DNA located on the pillowcase, but Wall could not be included or excluded as a possible contributor to the male DNA located under Uta’s fingernails. Uta’s ex-boyfriend, the boyfriend, and the first responders were all excluded as possible contributors to the DNA located under Uta’s fingernails.

¶47 More than two years after Uta’s death, the State charged Wall with murder. During the four-week jury trial, the State presented the evidence detailed above. The jury also heard, among other things, from two forensic pathologists who were given Uta’s autopsy report with photographs, police reports, crime scene photographs, crime laboratory reports, photographs of Wall’s face taken on September 27, 2011, the report from Wall’s eye doctor, the preliminary hearing testimony of the medical examiner, and Uta’s healthcare reports. Both agreed that Uta’s wounds to her wrists and leg were not self-inflicted and were instead defensive wounds. They both determined that, although there was a near-lethal dose of Xanax in her system, the low level of Xanax in Uta’s stomach was consistent with either the drug being injected into her body or swallowed as a slurry­ meaning that the pills had been crushed and mixed with a liquid. Both of the forensic pathologists concluded that Uta’s manner of death was homicide.

¶48 The jury convicted Wall of murder. Wall now appeals.


¶49 Wall argues that the evidence of guilt was insufficient to support the jury’s verdict “because the inference that [Wall] killed [Uta] is less likely than the inference that [Uta] killed herself, whether accidentally or intentionally.” “In considering an insufficiency-of-evidence claim, we review the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict.” State v. Jones, 2015 UT 19, ¶ 15, 345 P.3d 1195 (cleaned up). “We will reverse only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted.” Id. (cleaned up).

¶50 Wall next argues that the district court erroneously admitted certain DNA evidence through expert testimony. We review the district court’s decision to admit expert testimony under an abuse-of-discretion standard, and “we will not reverse a decision to admit or exclude expert testimony unless the decision exceeds the limits of reasonability.” Walker v. Hansen, 2003 UT App 237, ¶ 12, 74 P.3d 635 (cleaned up).

¶51 Wall also argues that his trial counsel “was ineffective for failing to object when the State mischaracterized the DNA results” in closing argument. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law. In such a situation, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Archuleta, 2019 UT App 136, ¶ 17, 449 P.3d 223 (cleaned up).


I. Sufficiency of the Evidence

¶52 Wall argues that “the evidence is insufficient to exclude reasonable doubt.” Specifically, he argues that “the State’s construal of circumstantial evidence . . . that [Uta] was attacked, restrained, and injected with Xanax, all without leaving restraint marks on her body or any DNA evidence . . . was physically possible,” but “it [was] not the most reasonable explanation.” Instead, he claims that the most reasonable explanation is that Uta’s death was an accident or a suicide.

¶53 To succeed on a sufficiency of the evidence challenge, the appellant “has the burden to marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.” State v. Jones, 2015 UT 19, ¶ 68, 345 P.3d 1195 (cleaned up). On appeal, we do not reweigh the evidence presented to the jury. “When the evidence presented is conflicting or disputed, the jury serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.” State v. Workman, 852 P.2d 981, 984 (Utah 1993). “Ordinarily, a reviewing court may not reassess credibility or reweigh the evidence, but must resolve conflicts in the evidence in favor of the jury verdict.” Id. We are thus restricted to “evaluat[ing] whether the evidence is so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt.” Id.

¶54 Wall concedes throughout his brief that “suicide and homicide are at least equally probable.” He says that all of the evidence is “consistent with homicide” but that the same evidence is at least “equally consistent” with suicide and that some evidence is “more consistent” with suicide. In making this argument, Wall relies on language from State v. Cristobal, 2010 UT App 228, 238 P.3d 1096. In that case, we suggested that “[w]hen the evidence supports more than one possible conclusion, none more likely than the other, the choice of one possibility over another can be no more than speculation.” Id. ¶ 16. But as our supreme court has since clarified, “the fact that we can identify an ‘equally’ plausible alternative inference is not nearly enough to set [a] verdict aside.” State v. Ashcraft, 2015 UT 5, ¶ 25, 349 P.3d 664. On appeal, “[t]he question presented is not whether some other (innocent) inference might have been reasonable,” but “simply whether the inference adopted by the jury was sustainable.” Id. ¶ 27.

¶55 Wall argues that the jury’s verdict was not based on reasonable inferences, but on speculation. He posits that the “distinction [between reasonable inferences and speculation] turns on whether there are equally likely interpretations of the evidence.” Here, because “the evidence and inferences did not preclude the reasonable alternative hypothesis presented by the defense,” he contends that the jury’s verdict was based on speculation, which does not constitute proof beyond a reasonable doubt. (Quoting State v. Cardona-Gueton, 2012 UT App 336, ¶ 11, 291 P.3d 847 (cleaned up).) Despite the broad language used in some of our past opinions, “the law is well established that the existence of one or more alternate reasonable hypotheses does not necessarily prevent the jury from concluding that a defendant is guilty beyond a reasonable doubt.” Cardona-Gueton, 2012 UT App 336, ¶ 11 (cleaned up). “It is the exclusive province of the jury to weigh the competing theories of the case, in light of the evidence presented and the reasonable inferences drawn therefrom, and to conclude which one they believe.” Id. (cleaned up). Therefore, “despite the existence of theoretically ‘reasonable’ hypotheses, it is within the province of the jury to judge the credibility of the testimony, assign weight to the evidence, and reject these alternate hypotheses.” State v. Blubaugh, 904 P.2d 688, 694–95 (Utah Ct. App. 1995). Indeed, “a finding that a defendant is guilty beyond a reasonable doubt is necessarily a finding that any alternative hypothesis of innocence presented at trial was not reasonable under the jury’s view of the evidence.” Cardona-Gueton, 2012 UT App 336, ¶ 12.

¶56 Consequently, it is not enough for Wall to show that the evidence would have permitted a reasonable juror to accept the defense’s theory that Uta’s death was an accident or suicide. “These are fair arguments for counsel to present to the jury in closing.” Ashcraft, 2015 UT 5, ¶ 24. But once the jury has rejected the alternative explanation offered by the defense, “an appellate court will reverse such a finding only where no reasonable juror could have taken that view of the evidence.” Cardona-Gueton, 2012 UT App 336, ¶ 12. “The question presented is not whether we can conceive of alternative (innocent) inferences to draw from individual pieces of evidence, or even whether we would have reached the verdict embraced by the jury.” Ashcraft, 2015 UT 5, ¶ 24. Instead, it is “simply whether the jury’s verdict is reasonable in light of all of the evidence taken cumulatively, under a standard of review that yields deference to all reasonable inferences supporting the jury’s verdict.” Id.

¶57 The jury’s determination that Uta was murdered is well supported by the evidence admitted at trial. As to the crime scene, multiple witnesses testified that there was evidence of a “violent struggle.” Items throughout Uta’s bedroom were knocked over onto the floor and the bed, even though there was no blood pattern on the walls to suggest that Uta might have caused the disarray by stumbling around the room on her own. The blood patterns on Uta’s comforter and sheet showed that Uta struggled “under a restraint.” The bloodstains under the bathroom windowsill and sink were consistent with Uta being pushed into the bathroom with blood on her hands. The lack of hand-transfer bloodstains on Uta’s tank top suggested that she had not removed it herself. And although the defense expert drew different conclusions from this same evidence, the weight to be given to such conflicting expert opinions is solely the province of the jury. See State v. Berchtold, 357 P.2d 183, 186 (Utah 1960).

¶58 As to Uta’s injuries, she sustained defensive wounds on her arms and on the back of one of her legs, suggesting that she tried to defend herself from an attacker. She had hemorrhaging in her neck and petechiae in her eye, each of which is consistent with strangulation. She also had male DNA under her fingernails, which is consistent with scratching an attacker.

¶59 Additional evidence supported the prosecution’s theory that a second person left the home shortly after Uta had been subdued. The blinds in Uta’s bathroom and bedroom—which were normally open—had been shut, and bloody shoeprints in those rooms had been wiped clean, as well as a bloody spot above Uta’s headboard. In the kitchen, which had no blinds, no effort had been made to clean up dried-blood shoeprints. The prints did not match any of the first responders’ or the boyfriend’s shoes. In any event, the reconstructionist testified that Uta’s blood would have dried in the hours between her death and the discovery of her body and that the prints were inconsistent with the later transfer of rehydrated blood. Evidence that someone had tracked fresh blood through the kitchen around the time of Uta’s death and had tried to clean up blood in those rooms where the activity could take place behind closed blinds was strong evidence supporting the jury’s conclusion that Uta was murdered.

¶60 Other evidence further undercut the defense’s theory that Uta’s death was a suicide or accidental overdose. Without exception, the witnesses who knew Uta testified that she was not suicidal. To the contrary, she was excited about a breakthrough at work, was looking forward to an upcoming trip with the younger children, and was making plans up until the night before her death. And although there was a near-lethal dose of Xanax found in Uta’s system, there was no evidence that Uta had ever been prescribed or taken Xanax, and no prescription bottles or labeled film canisters for the drug were found at Uta’s house. In addition, there were no pill remnants in her stomach that would account for the concentration of Xanax in her system, supporting the prosecution’s theory that Uta was either injected with or forced to swallow a slurry containing a high concentration of Xanax.

¶61 Two forensic pathologists reviewed all of the relevant reports from the police, medical practitioners, and the autopsy and testified that the cause of death was homicide. Even the medical examiner, who had been told that Uta’s death was “a probable suicide overdose,” found the evidence to be “more consistent with homicide than anything else,” refused “to call this a suicide,” and “would have certified the death as a homicide” had it not been for the ambiguity created by the Xanax in Uta’s system. The medical examiner’s uncertainty was understandable because, as the crime scene reconstructionist explained, “this scene was a homicide that was staged to look like a suicide.” Based on all of this evidence, a reasonable jury could find beyond a reasonable doubt that Uta was murdered.

¶62 There was also sufficient evidence to support the jury’s determination that Wall was the murderer. Wall had a well-established motive to kill Uta. They were involved in an acrimonious ongoing custody dispute, and those familiar with him knew that Wall “despised” Uta. He often complained that she made his “life difficult” and blamed her for his unhappiness. Mere days before Uta’s body was discovered, Wall informed a new acquaintance that he was “getting his kids back.” And after her death, Wall told their youngest son that “maybe it’s better that she’s dead.”

¶63 Wall also had the opportunity to commit the murder. He could not account for his whereabouts around the time of Uta’s death. In his first police interview, Wall told the detectives that he had gone to a gas station near his house to purchase eggs between 6:45 a.m. and 7:00 a.m. and then returned home to make breakfast. But his older children indicated that he was already gone when they awoke for school around 6:00 a.m. and had not returned by the time the eldest son left for school at 7:30 a.m. In a deposition more than a year later, he claimed that he woke up early and went to the hospital to work on charts, even though a hospital witness testified that doctors know that they cannot access the medical records office before 8:00 a.m. Wall claimed that he could not access the hospital because he had forgotten his identification and then decided to go on a pre-dawn hike, despite having left no word for his children, as had been his practice. No one could corroborate his whereabouts between the time the children went to bed the night before and 7:05 a.m. the next morning when he was spotted driving his car some distance from his house.[3] He later appeared for work disheveled and wearing the same clothes as the day before as if he had not been home to sleep or get ready for work. Not only did Wall have the time and opportunity to commit the murder, the jury had ample reason to find his evolving story incredible.

¶64 The lack of forced entry at Uta’s home also supported the conclusion that the crime was not committed by a stranger. When Uta’s body was discovered, the door to her house was unlocked, even though Uta always locked it before bed. The eldest son testified that Uta kept a spare key hidden outside the house for the children and that the key was missing after Uta’s death. The jury could reasonably infer that Wall knew of the spare key and used it to enter the house on the night of the murder.

¶65 Wall also had access to the drug used to subdue Uta. In fact, he had recently written a prescription for the highest dose of Xanax, purportedly for his mother who lived in California, although she could not confirm receiving it. The jury could reasonably conclude that Wall filled the prescription at a pharmacy that he had not used before or since (and later feigned ignorance of the drug) to make it harder to link him to the drug he used in the course of killing Uta.

¶66 The jury could also reasonably conclude that Wall’s behavior and statements showed consciousness of guilt. When the police asked him if he killed Uta, he responded with equivocal statements such as, “I don’t know, I don’t think I did it,” “I don’t think I was there,” and “If I did it, I made a mistake, and I am sorry. But I don’t think I did it.” When Wall was released after the police interview, he was surprised and said, “[B]ut I’m a monster.” When he returned home, Wall announced to the children, “Uta’s dead and they think I did it.” Rather than comfort the children, Wall acted “distraught,” curled into the fetal position and cried, and forced the children to take care of him because “he was scared he would do something he would regret.” He kept calling himself a monster and repeatedly asked the children, “What if I did it and I don’t remember?”

¶67 Furthermore, Wall volunteered implausible explanations for physical evidence that might connect him to the crime. Even before Uta’s body was discovered, Wall tried to explain the scratch on his eye by telling everyone that he had recently started sleeping on his porch and that his dog scratched him while he slept. No one ever saw him sleep on the porch, and no one had ever seen the dog scratch anyone. And to those who testified, the scratch to Wall’s eye looked like it was caused by a fingernail. Wall also had scratches on his arms and legs that he quickly covered up when people noticed. When interviewed by police, he was vague about the last time he had seen or touched Uta and whether he might have been in her house around the time of her death. He told the police that his cell phone was stolen from his unsecured car that same day but later asked his eldest son, “If the police found my phone [at Uta’s house] what could I say to refute that?”

¶68 Significantly, Wall offered new explanations when he knew that DNA test results were pending. When he was deposed in the wrongful death lawsuit, Wall offered a new story that would explain why his DNA might be found under Uta’s fingernails. For the first time, Wall claimed that he had not only seen Uta again after picking up the children on the night of her death, but that the two of them had gotten into an altercation and that she had struck him in the face. He also claimed that she had once tried to seduce him in her bedroom, which could explain why his DNA might be found at the crime scene. And Wall took care to mention that Uta had leaned into the back seat of his car the night before her death to give their daughter a hug, touching the part of the seat that the investigators collected to search for DNA evidence, although her DNA ultimately was not found in that sample. The jury could reasonably infer that Wall offered these explanations because he knew that the results of the DNA testing could link him to the crime.

¶69 While this summary is by no means an exhaustive review of all of the evidence supporting Wall’s guilt, it is more than sufficient to demonstrate that the jury’s verdict was supported by substantial evidence. This is not a case in which the evidence was so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt. The State presented sufficient evidence to support the jury’s conclusion that Uta was murdered and that Wall was her murderer.

II. Admissibility of DNA Evidence

¶70 Wall next argues that the district court should have excluded the DNA evidence that was extracted from Uta’s pillowcase because “the State failed to make the threshold showing that [the forensic laboratory’s] methodology was reliable or reliably applied” under rule 702(b) of the Utah Rules of Evidence. Rule 702(b) provides that “[s]cientific, 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 the testimony” are “reliable,” “based upon sufficient facts or data,” and “have been reliably applied to the facts.” Utah R. Evid. 702(b).

¶71 In applying rule 702(b), the district court “performs an important gatekeeping function, intended to ensure that only reliable expert testimony will be presented to the jury.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 31, 269 P.3d 980. But this function is “limited” to “ensuring a minimal ‘threshold’ of reliability for the knowledge that serves as the basis of an expert’s opinion” and must not “displace the province of the factfinder to weigh the evidence.” State v. Jones, 2015 UT 19, ¶ 26, 345 P.3d 1195 (cleaned up). Although “the line between assessing reliability and weighing evidence can be elusive,” appellate courts “must be mindful of this important distinction because the factfinder bears the ultimate responsibility for evaluating the accuracy, reliability, and weight of the testimony.” Id. (cleaned up). “When performing their gatekeeping function, judges should approach expert testimony with rational skepticism. But the degree of scrutiny that should be applied to expert testimony by trial judges is not so rigorous as to be satisfied only by scientific or other specialized principles or methods that are free of controversy or that meet any fixed set of criteria fashioned to test reliability.” Gunn Hill Dairy Props., 2012 UT App 20, ¶ 32 (cleaned up).

¶72 Before trial, Wall moved to exclude, among other things, the DNA results from the pillowcase, arguing that he “should be excluded as a possible contributor” because some alleles were missing from the sample and because the “statistical probability” calculated by the forensic laboratory was unreliable. The district court held an evidentiary hearing to determine whether the evidence and expert testimony met the minimum threshold of reliability necessary for its admission.

¶73 At that hearing, the court heard testimony from two experts from the forensic laboratory that conducted the DNA tests and one expert for the defense. All of the experts testified to DNA composition in general and forensic DNA testing. DNA is made up of twenty-three pairs of chromosomes and is found in most cells of the human body. Twenty-two of the chromosomal pairs control non-sex traits (autosomal) and the twenty-third chromosome is sex determining—either male or female. Except for identical twins, no person has the same DNA as another person. But only one percent of human DNA differs from person to person based on short tandem repeats (STRs), which are patterns of alleles at a certain locus within human DNA. “At each given locus, you would expect to see two alleles because you get one from your mother and one from your father.” But sometimes there is only one allele at a given locus, which occurs “when you get the same [allele] from both your mother and your father.” Forensic DNA analysts focus on these patterns to discover the identity of the source of the DNA.

¶74 When conducting an autosomal STR analysis, as was done in this case, the forensic analyst targets sixteen of the individualized STR locations along the twenty-two autosomal chromosomes. There are five steps to the test: extraction, quantification (determining how much DNA was isolated at the targeted sixteen loci), amplification (creating copies of the DNA sample by splitting the DNA “ladder” down the middle and re-bonding the DNA to create a sufficient number of copies of the sample for testing), the actual testing (using florescent dye and an electrophoresis machine), and analysis.

¶75 The experts further explained that, during the testing stage, the analyst injects the DNA with fluorescent dye and runs it through an electrophoresis machine, which measures the alleles’ fluorescence in “relative fluorescence units” (RFUs). Then, a software program creates a graph of this data and shows the “peaks” of each allele (i.e., the strength of the fluorescence) at the sixteen tested loci. The peaks will appear taller or shorter depending on how much DNA is present at that allele and a taller peak means it “has more DNA.” If an allele reaches a peak of fifty RFUs, then it has reached the “analytical threshold” and the analyst can rely on that as a match of alleles on that locus between the crime-scene sample and the possible-contributor sample. If an allele’s peak is below fifty RFUs, it is unclear whether the allele represents DNA or “background noise.”

¶76 After providing this background, the analysts from the forensic laboratory (the State’s experts) then testified directly to the DNA samples and comparisons in this case. Relevant to the sample collected from the pillowcase using the M-Vac process,[4] the State’s experts found that Wall’s entire autosomal STR profile was present in that sample, but that three of the alleles were detected below the analytical threshold. Because three alleles did not meet the analytical threshold, the State’s experts followed the laboratory’s policy to conduct a second amplification test to see if the results were reproduced. The second test produced the same results,[5] and the analysts determined that Wall could not be excluded as a possible contributor because a “repeat” event “gives more credence or reliability to that event.” The State’s experts explained that a finding that a person cannot be excluded as a possible contributor does not mean that the person is an “actual” contributor. The defense’s expert disagreed with the laboratory’s policy to retest the sample and concluded that any DNA sample with an allele that does not reach the analytical threshold should amount to an exclusion of the individual as a possible contributor to the sample.

¶77 Following the hearing, the court issued a detailed written order denying Wall’s motion to exclude the evidence. The court explained that although the director of the forensic laboratory determined that there was “questionable activity” with respect to alleles on three loci within the DNA sample, it is the laboratory’s policy “not to disregard it.” Instead, the director determined that these results showed that Wall could not be excluded as a possible contributor to the DNA sample because the three loci where the alleles were recorded “below the analytic threshold at the points where [Wall’s] alleles should have been” showed that “it is possible these loci could contain” Wall’s alleles based on the results of the repeat amplification. The court found that many laboratories have similar policies and that this particular laboratory’s “policy has been subjected to third party assessment and has been approved by auditing companies and at least one previous director of the lab.” The court explained that although there was conflicting expert testimony from the State and the defense regarding the reliability of the results of this DNA sample, it was “not the court’s role to decide which expert is correct,” and the court determined that Wall’s “objection to this evidence is a matter of weight rather than reliability.” The court concluded that the State “made a threshold showing of reliability” and admitted the evidence.

¶78 On appeal, Wall asserts that the forensic laboratory’s “director . . . testified that the [laboratory’s] method of including [Wall] as a possible contributor was unreliable.” But as articulated above, the director testified that data below the analytical threshold is “not reliable” with respect to conclusively including or excluding an individual for statistical purposes, but that the laboratory is “not going to put blinders on and just completely ignore it.” This is because the presence of “some activity” or “amplification” at these loci shows that something is “detected.” The director explained that ignoring the below-threshold information with respect to certain alleles and excluding an individual as a possible contributor can make “exclusion inaccurate.”

¶79 Wall also asserts that the “State did not demonstrate that . . . [the laboratory’s] methods were reliable and reliably applied to include [Wall] as a possible contributor.” But the district court made specific findings that the laboratory’s policy against excluding a person where a possible match is detected below analytical thresholds is consistent with the practice of other laboratories and that recent audits and third-party assessments have approved this policy. The district court acted well within its discretion in relying on this evidence to conclude that the laboratory’s methods met the minimum threshold of reliability.

¶80 We therefore conclude that Wall has not shown that the district court exceeded its discretion when it admitted the DNA evidence and expert testimony under rule 702(b) of the Utah Rules of Evidence.

III. Ineffective Assistance of Counsel

¶81 Finally, Wall argues that his trial counsel was ineffective in failing to object to the prosecutors’ statements in closing argument that he asserts misconstrued the DNA evidence.[6] To prove that trial counsel was ineffective, Wall must show that trial “counsel’s performance was deficient, in that it fell below an objective standard of reasonable professional judgment,” and “that counsel’s deficient performance was prejudicial.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92; see also Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The “failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim.” State v. Torres, 2018 UT App 113, ¶ 14, 427 P.3d 550 (cleaned up). Consequently, “there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. Here, Wall has not shown that his counsel performed deficiently.

¶82 When we review a claim of deficient performance, we “presume[] that counsel has rendered adequate assistance,” and “if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel.” State v. Kingston, 2002 UT App 103, ¶ 8, 46 P.3d 761 (cleaned up). “When 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 (cleaned up). This is because “counsel for both sides have considerable latitude in their closing arguments. They have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports.” Id. (cleaned up). “Moreover, a prosecutor has the duty and right to argue the case based on the total picture shown by the evidence.” Id. (cleaned up). Through this lens, we review the three points in the State’s closing arguments to which Wall claims any reasonably competent trial counsel would have lodged an objection.

¶83 First, Wall challenges a statement made by the prosecutor in the first part of the State’s closing arguments. The prosecutor stated, “We have male DNA being found under [Uta’s] right-hand fingernail clippings. I would submit to you it was as if [Uta] was standing in this courtroom and pointing to [Wall] as her killer.” Wall argues that this statement violated the court’s order related to DNA evidence, which informed the parties that they could not use the DNA evidence to show conclusively that he was the contributor to the DNA, and therefore trial counsel was deficient in failing to object to it. The prosecutor correctly noted that male DNA was found under Uta’s fingernail, not that Wall’s DNA was underneath her fingernail, but essentially told the jury that the reasonable inference was that Wall’s DNA was under Uta’s fingernail. Assuming without deciding that this statement was improper, trial counsel may have based his decision to forgo an objection on sound trial strategy, choosing instead to undermine the State’s characterization of the fingernail-DNA evidence in his own closing argument.[7] This is exactly what trial counsel did. Trial counsel argued that the DNA evidence was “just meaningless,” it “doesn’t prove anything” because Wall was excluded as a possible contributor to some of the DNA samples, the DNA test results were “unreliable,” and the DNA evidence “doesn’t put [Wall] in [Uta’s] house.” We therefore conclude counsel was not deficient in failing to object to the State’s characterization of the fingernail-DNA evidence. See State v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980 (explaining that counsel performs deficiently only where there is no “conceivable tactical basis for counsel’s actions” (cleaned up)).

¶84 Next, Wall argues that in the State’s rebuttal closing argument, the prosecutor improperly told the jury that it was in a better position to determine Uta’s cause of death because the medical examiner who wrote the report “didn’t know about all the DNA work” and that counsel should have objected to that statement. The challenged statement was a direct response to statements made by Wall’s trial counsel in his closing argument. Specifically, Wall’s counsel made the following argument:

Here’s the part you guys have been waiting for, the conclusion. There’s been a lot of evidence introduced here. And we’ve heard a lot of evidence about the relationship of two people, about their lives, their mental states, their problems. You’ve heard a lot of evidence about forensics, about shoe identification, blood stains and pathology. But the most critical testimony in this case, the most critical input came from the state medical examiner.

He went on to explain that the medical examiner’s testimony was key because it “indicated that [Uta’s death] was either a homicide or suicide” and that the medical examiner’s “opinions were affected by the presence of Xanax in [Uta’s] body.” The defense theory was that the medical examiner’s inability to conclude one way or the other “establishe[d] reasonable doubt.”

¶85 In rebuttal, the prosecutor opened with the following response:

I’d like to start first with the last thing that was said [in trial counsel’s closing argument], the critical piece of evidence was the medical examiner. And I want you to remember what the medical examiner said because you all have a better position than he did when he wrote that report. He said he didn’t have [Uta’s] medical and mental health records. He didn’t know about all the DNA work. He didn’t know about all the witnesses that [testified]. You, ladies and gentlemen, know more about this case than he did when he wrote his report . . . . You know everything. You know all the witnesses who said she was not suicidal, that she didn’t do this. And so you can confidently find this individual guilty.

¶86 The prosecutor’s statement that the medical examiner “didn’t know about all the DNA work” is an accurate characterization of the evidence. The medical examiner testified that he did not have all of Uta’s medical records, all of the police reports or witness statements, the crime scene reconstructionist’s report, the bloodstain expert reports, or “any of the DNA reports that had been done.” Moreover, the prosecutor’s statement did not suggest, as Wall claims, that the DNA evidence alone conclusively established that Uta had been murdered. Instead, the prosecutor pointed to “everything” the jury heard during the trial that the medical examiner did not know, including not just the DNA evidence, but also information about Uta’s medical and mental health records and the testimony of numerous witnesses offered during the four-week trial. In context, the prosecutor’s argument neither misstated the evidence nor overemphasized the importance of the admittedly inconclusive DNA evidence. As a result, any objection made by trial counsel to this statement would have been futile and did not constitute deficient performance. See State v. Perez-Avila, 2006 UT App 71, ¶ 7, 131 P.3d 864 (“It is well settled that counsel’s performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests.”).

¶87 Wall also argues that trial counsel should have objected to the prosecutor’s statements about DNA found on Uta’s comforter. One of the forensic laboratory’s analysts testified that the laboratory collected DNA using different methods on five areas of Uta’s comforter and submitted them for testing. Four of the test results either excluded Wall or were inconclusive for male DNA. The fifth test included Wall as possible contributor. The analyst also conceded on cross-examination that, based on the results of the test, all four children’s alleles are accounted for [and Wall’s] alleles are accounted for” in that sample. Wall contends that the prosecutor erroneously “insisted the DNA must be from [Wall] rather than the Wall children” because the State mischaracterized how the DNA samples were collected from the comforter when it said that the DNA came from “pinpoint location[s].”

¶88 As an initial matter, we note that trial counsel moved to exclude all of the DNA evidence prior to trial based on “inaccurate statistical evidence for DNA mixtures” but later withdrew that motion with respect to the DNA collected from Uta’s comforter. Trial counsel chose instead to advance the theory at trial—through the defense’s own expert testimony and through cross-examination of the State’s experts—that there was a “possibility of all of the children being [contributors]” to some of the DNA samples, including the comforter, and therefore “it’s impossible to determine if [Wall’s] DNA is in that sample.” Trial counsel reiterated this point in closing argument:

Now [the State] is probably going to talk to you about if [Wall’s] and [Uta’s] allele charts are both present, if their genetic patterns are both there, then all the kids are going to be there too. Use your common sense. You have four kids living in the house and [Uta] living in the house . . . . Whose DNA is going to be on the comforter? The people living in the house.

. . . .

And if you remember the hypothetical that I gave to [the State’s expert] that if all the children used the towel when they’d been out hiking or sweating and had DNA placed in the towel . . . to a sufficient degree that it could be tested, that even if [Wall] was in Australia, . . . he would be found to be a possible contributor.

¶89 In the State’s rebuttal closing argument, the prosecutor reminded the jury that the two eldest children testified they had “never been on [Uta’s] bed for a long time . . . [s]o their DNA won’t be there.” He also said that the DNA was not “all over the comforter” and was instead at “a very pinpoint location.” He further explained:

That’s where you are going to find [Wall’s] DNA. And it’s not going to be because the children were there, because you need to have all four children to be on that same spot. And you’re going to tell me that at these particular locations all four children went and equally touched that spot to make that combination? That’s ridiculous. The more likely and the real reasonable is that one person touched it, and it’s [Wall].

¶90 It is unclear why trial counsel would be deficient for failing to object to the very argument that he forecasted for the jury in his own closing argument. Trial counsel had already presented a counterargument to the State’s theory by providing the jury an alternative explanation for why certain DNA samples could have included Wall’s DNA without Wall having ever touched the relevant items. And trial counsel reiterated at many points throughout trial and in closing argument that the DNA evidence was “meaningless” because Wall was excluded as a possible contributor to some of the DNA samples and that he should have been excluded as a possible contributor to other DNA samples because the laboratory’s methods were “unreliable.” Trial counsel’s strategy related to this DNA evidence was clear, and his strategic decision not to object to the State’s alternative characterization of this same evidence was not deficient.

¶91 Further, any objection to the prosecutor’s statement would have been futile. See Perez-Avila, 2006 UT App 71, ¶ 7. Just as trial counsel was free to argue that it was more reasonable that the children’s DNA had combined on the comforter to create a sample that happened to be consistent with Wall’s DNA, the State was free to argue that it was more likely that a single person, Wall, was the contributor. See Houston, 2015 UT 40, ¶ 76 (recognizing that “counsel for both sides have considerable latitude in their closing arguments,” that “they have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports,” and that the State has “the duty and right to argue the case based on the total picture shown by the evidence” (cleaned up)).

¶92 Relatedly, Wall has not persuaded us that trial counsel was deficient in failing to object to the prosecutor’s statement that the DNA was extracted at a “pinpoint location” and that all of the children would have had to touch that exact spot. The State’s expert testified that the DNA was collected via M-Vac only on the locations where there were bloodstains. Thus, the samples were not drawn from the entire comforter, as Wall suggests. And trial counsel could have reasonably determined that objecting would have been futile and would have drawn greater attention to that evidence. See Perez-Avila, 2006 UT App 71, ¶ 7; see also State v. Ott, 2010 UT 1, ¶ 39, 247 P.3d 344 (noting “that avoidance of drawing the jury’s attention to certain facts or over-emphasizing aspects of the facts is a well recognized trial strategy”).

¶93 “The object of an ineffectiveness claim is not to grade counsel’s performance.” Strickland v. Washington, 466 U.S. 668, 697 (1984). Instead, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. In this case, Wall has not shown “that the challenged actions cannot be considered sound strategy under the circumstances.” See State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (cleaned up).


¶94 We conclude that there was sufficient evidence to support Wall’s murder conviction. We further conclude that the district court did not exceed its discretion in admitting certain DNA evidence because the State made the threshold showing that the forensic laboratory’s methods and policies were reliable. Finally, Wall has not persuaded us that his trial counsel performed deficiently in failing to object to certain parts of the State’s closing arguments because the State did not mischaracterize the evidence and the arguments fairly responded to the theories argued by the defense.

¶95 Affirmed.

Utah Family Law, LC | | 801-466-9277


[1] “This court typically does not include the names of crime victims, witnesses, or other innocent parties in its decisions. We make an exception in this case due to the considerable notoriety this criminal episode has attracted. The [victim’s] identity is well known, and obscuring her identity in this decision would serve no purpose.” State v. Chavez-Reyes, 2015 UT App 202, ¶ 2 n.2, 357 P.3d 1012. Additionally, although we generally refer to relevant parties by their last names, we will refer to the victim in this case as Uta because that is how all of the witnesses referred to her at trial.

[2] Wall claimed to have told Uta’s father, but Uta’s father had died before Uta and therefore could not corroborate this claim.

[3] On appeal, Wall makes much of the fact that the autopsy report did not document any changes to Uta’s skin, known as “washerwoman syndrome,” from having been immersed in water for a long period of time. Wall argues that the absence of such evidence conclusively proves that Uta’s death occurred shortly before her body was found in the evening rather than during the early morning hours when Wall had no alibi. But the medical examiner testified that, although he did not note washerwoman changes in his report, he had not been looking for them because the death had not been presented as a possible homicide. And there was conflicting testimony from defense and State experts about whether washerwoman changes could be seen in the autopsy photographs. The jury could reasonably conclude that the apparent absence of washerwoman syndrome was entitled to less weight than the defense believed it deserved.

[4] According to expert testimony, “[a]n M-Vac is basically like a DNA wet vac[uum]” that has a “buffer” in it that will not degrade or harm the DNA sample. The M-Vac soaks the targeted area and then “sucks up the liquid.” The liquid is “run through a series of filters” to extract the DNA from the targeted area for forensic analysis.

[5] One of the alleles that was above the analytical threshold in the first test was below the threshold in the second test. But the State’s experts explained in great detail why this could occur and why it did not undermine their confidence in that allele.

[6] In his opening brief, Wall argued that trial counsel was also ineffective for failing to object to certain statements elicited on direct examination of the State’s expert witnesses. But at oral argument, appellate counsel conceded that “the issue about the DNA is all about closing argument and closing argument only.” This court asked the clarifying question, “Your [ineffective assistance of counsel claim] is failure to object during closing arguments, not the failure to object during the expert testimony?” And appellate counsel responded, “That’s right.” We therefore do not address whether trial counsel was ineffective for failing to object during direct examination of the State’s expert witnesses.

[7] At oral argument, this court asked, “Why wouldn’t it be reasonable to wait and rebut the prosecutor’s statements during the defense’s closing argument rather than object?” And appellate counsel responded, “So far I’m with you,” apparently conceding that failing to object to this statement alone was not sufficient to establish deficient performance.

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2019 UT App 202 – State v. Baize – protective order challenge


STATE OF UTAH, Appellee,

No. 20180326-CA
Filed December 12, 2019

Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 161100835

Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee


¶1           Nathan David Baize appeals his convictions for violating a protective order. We affirm.


¶2           Baize and his former wife (Victim) were married in 2010 and divorced in 2014. Victim had sole physical custody of their child and shared joint legal custody with Baize. After enduring several instances of verbal and physical abuse, Victim sought a protective order against Baize. The court issued a protective order after a hearing, at which Baize was present, directing Baize not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” Baize was also ordered, “Do not contact, phone, mail, e-mail, or communicate in any way with [Victim], either directly or indirectly,” with the exception that Baize could email Victim about their child, provided his communications were “civil in nature.”

¶3           After the entry of the protective order, Baize sent numerous emails to Victim that were not about their child, not civil in nature, and arguably abusive. Much of the content of the emails was directed toward Victim’s qualities and character. Baize sent emails to Victim telling her that she was a “spoiled brat,” “lazy,” “irresponsible,” “vindictive,” “selfish,” “uncooperative,” “incapable,” “fake,” and lacking “integrity.” Baize also sent emails to Victim telling her to “[u]se your brain blondie,” to “[k]eep it simple stupid, [Victim’s name],” and that he was “sick and tired . . . of [Victim’s] blonde, lazy, messed up approach to cooperation.” Additionally, on several occasions, Baize threatened to call the police for “custodial interference charges.”

¶4           On another occasion, Baize emailed Victim—with a copy also sent to Victim’s new husband—complaining about Victim and alleging that Victim engaged in certain improprieties during their marriage. Victim’s husband spoke to Baize at length and told him that he “need[ed] to stop the belligerent, degrading emails to [Victim].” Baize responded that his emails “will never stop.” Furthermore, Baize told Victim that she was “a weak, weak person” because she would “construe [his email comments] as personal attacks.”


¶5        The content of Baize’s emails to Victim prompted the State to charge him with four counts of violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018). These charges were enhanced from misdemeanors to third degree felonies because Baize already had a prior conviction for violating the same protective order. See id. § 77-36-1.1(2)(c) (Supp. 2019) (describing enhanced penalties for violating a protective order). Baize moved to dismiss the charges, arguing that the protective order was an unconstitutional prior restraint of speech and that requiring his emails to be “civil in nature” was unconstitutionally vague. Baize also asked the court to give the jury an instruction defining the terms “harassing,” “threatening,” and “abuse” in the protective order as “forms of violence or threats of violence.” The court denied both motions.

¶6        At trial, Baize stated that while the tone in his emails might indicate that he was “[f]rustrated,” “feeling dejected,” “[h]elpless, hopeless, [and] concerned,” the emails were never uncivil. Rather, Baize asserted that he was just being “honest” and “clear.” However, Baize also testified that he suspected Victim would be offended by the emails and that Victim was “weak” for reading his emails as insults. Baize also admitted that his emails were similar in tone and content to emails he had sent previously to Victim, which formed the basis of his prior conviction for violating the same protective order. The jury found Baize guilty of three counts of violating a protective order. Baize appeals.


¶7        The first issue on appeal is whether the restriction in the protective order requiring that Baize’s communication with Victim be “civil in nature” rendered the order unconstitutionally vague or acted as a prior restraint on speech. “Whether [an order] is constitutional is a question of law that we review for correctness, giving no deference to the trial court.” State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).


¶8           Baize’s second challenge on appeal is that the trial court erred in denying his request to instruct the jury on the “legal definitions” of terms in the protective order. This issue presents a question of law, and both parties agree that we review the trial court’s decision on this point for correctness. See State v. Dozah, 2016 UT App 13, ¶ 12, 368 P.3d 863 (“We review a district court’s refusal to give a requested jury instruction for correctness.”).


I. Constitutional Challenges to the Protective Order

¶9           At the outset, we must determine whether Baize is permitted, “in this criminal proceeding, [to] collaterally attack the protective order entered in the prior civil proceeding.” See State v. Hegbloom, 2014 UT App 213, ¶ 10, 362 P.3d 921. The State contends that as “a threshold matter, this Court should not address either constitutional claim because the collateral bar rule precludes Baize from challenging the validity of the protective order in a prosecution for violating that order.”

¶10 A collateral attack is “where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or revised or modified or by a proceeding in equity to prevent its enforcement.” Olsen v. Board of Educ. of Granite School Dist., 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified). “Under the collateral bar doctrine, a party may not challenge a district court’s order by violating it. Instead, [the party] must move to vacate or modify the order, or seek relief in an appellate court.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 13, 391 P.3d 239 (quotation simplified). “With rare exception, when a court with proper jurisdiction enters a final judgment, . . . that judgment can only be attacked on direct appeal.” State v. Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111.

¶11 The proper forum for a defendant to challenge a protective order’s terms is in the original action, not in a subsequent criminal case resulting from its violation. This court has already addressed this issue in Hegbloom, where we stated that a civil protective order is not subject to collateral attack and that there is “nothing fundamentally unfair in not allowing a litigant to challenge collaterally a judgment he could have challenged directly had he chosen to do so.” 2014 UT App 213, ¶¶ 15, 22; see also Olsen, 571 P.2d at 1338 (explaining that when an issue is erroneously decided, the proper remedy is to directly, rather than collaterally, attack it); Iota, 2016 UT App 231, ¶ 18 (“The proper method for contesting an adverse ruling is to appeal it, not to violate it.” (quotation simplified)). Courts in other jurisdictions are in accord.[2]

¶12 Thus, our precedent and that of other jurisdictions make clear that the collateral bar rule applies to situations in which a defendant seeks to attack the validity of a protective order in a criminal proceeding for addressing a violation of that same protective order. See State v. Winter, 979 A.2d 608, 615 (Conn. App. Ct. 2009) (“The collateral bar rule has been extended to apply to situations in which . . . the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order.” (quotation simplified)).

¶13 Here, Baize was ordered not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” The relevant portion of the protective order also provided the following prohibition: “Do not contact, phone, mail, e-mail or communicate in any way with [Victim], either directly or indirectly,” the only exception being that Baize could contact Victim “via email about Child,” provided the emails were “civil in nature.” Not only did Baize sign the protective order as a whole, but he initialed each provision of the order, including those he now challenges on constitutional grounds. Thus, at the outset and even before he signed it, Baize had the opportunity to seek clarification of any provision in the order that he believed was too restrictive or vague. And after the protective order was entered by the court, Baize still could have challenged the order on direct appeal. But he never did so. Instead, Baize raised his prior restraint and vagueness challenges to the protective order only after he was criminally charged a second time with violating the order.

¶14 Precedent—both that of Utah and other jurisdictions­ states that a defendant cannot attack the validity of a protective order in a prosecution for violating the order. And that is exactly what Baize attempts to do here. Thus, we conclude that Baize cannot collaterally attack a protective order arising from a civil proceeding in this criminal proceeding. Put simply, this is not the proper forum to address constitutional challenges to the protective order’s terms.[3]

II. Legal Definitions in the Protective Order

¶15 The protective order prohibited Baize from “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” to Victim. Baize argues that the trial court erred when it denied his request to define for the jury certain “legal terms” contained in the protective order.

¶16 Jury instructions require no specific form as long as they accurately convey the law. “To determine if jury instructions correctly state the law, we look at the jury instructions in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.” State v. Painter, 2014 UT App 272, ¶ 6, 339 P.3d 107 (quotation simplified); see also State v. Hobbs, 2003 UT App 27, ¶ 31, 64 P.3d 1218 (stating that jury instructions will be upheld when they “fairly tender the case to the jury even where one or more of the instructions, standing alone, are not as full or accurate as they might have been” (quotation simplified)).

¶17 Baize was charged with violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018) (stating that any person who is “subject to a protective order” and “who intentionally or knowingly violates that order after having been properly served” is guilty of a misdemeanor or felony, depending on the circumstances). The court instructed the jury that to find Baize guilty of violating the protective order, it would need to find beyond a reasonable doubt the following elements:

  1. Nathan David Baize;
  2. While subject to a protective order issued by a Utah Court;
  3. After having been properly served with the protective order;
  4. Intentionally or knowingly violated the protective order; and
  5. Is or was a cohabitant of the alleged victim.

¶18 Baize contends that the court erred when it denied his motion requesting a jury instruction that defined the terms “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” as forms of violence or the threat of violence. Baize argues that “because the protective order only prohibits stalking, harassing, threats, and abuse insofar as these terms could mean violence or a threat of violence,” the definitions of those terms should be “limited . . . to that realm.” (Quotation simplified.) Specifically, Baize requested that the court instruct the jury on the definitions of harassment and physical harm as those terms are defined in Utah’s criminal code or in the Cohabitant Abuse Procedures Act. See Utah Code Ann. § 76-5-106(1) (LexisNexis 2017) (defining harassment as intentionally frightening or harassing another by communicating “a written or recorded threat to commit any violent felony”); id. § 77-36-1(4) (Supp. 2019) (defining domestic violence as “any criminal offense involving violence or physical harm or threat of violence or physical harm”).[4]

¶19 The violence-based definitional language Baize requested is not found in the protective order or in the statute he was accused of violating. But Baize asserts that because Utah Code section 76-5-108 does not define the terms in the protective order (namely, harassing and threatening), the court should have given the jury the statutory meanings of those terms pulled from other provisions of the criminal code instead of allowing the jury to rely on the general understanding of the terms. Baize’s argument misses the mark. He was not charged with harassing or any other violent behavior pursuant to a separate statute. Rather, he was charged pursuant to Utah Code section 76-5-108 with four counts of violating the protective order, and the jury instructions on those four counts closely tracked the language of that section. Moreover, Baize presents no evidence that the protective order adopted the specific violence-based statutory definitions he proposed.

¶20 We conclude that the trial court did not err when it denied Baize’s request that the jury be instructed using Baize’s restrictive definitions of certain terms and allowed the jury to determine whether Baize violated the protective order based on common definitions of the terms contained in the protective order.[5]


¶21 We hold that the proper forum for Baize to challenge the protective order was the original civil proceeding pursuant to which the order was entered. Because Baize had notice and the opportunity to appeal the protective order, he is barred from collaterally challenging it in the subsequent criminal proceeding resulting from its violation. We also conclude that the trial court did not err in denying Baize’s request to define for the jury certain terms contained in the protective order. Accordingly, the judgment of the trial court is affirmed.

Utah Family Law, LC | | 801-466-9277


[1] “On appeal, we recite the facts from the record in the light most favorable to the jury’s verdict and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

[2] 2. Other jurisdictions also explicitly bar collateral attack in this context. See, e.g., State v. Grindling, 31 P.3d 915, 918–19 (Haw. 2001) (stating that a domestic restraining order is not subject to collateral attack in the criminal proceeding for its violation and collecting cases stating the same); Wood v. Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005) (stating that a party “may not launch a collateral attack on the validity of an emergency protective order in a subsequent prosecution for violation of that order”); Truesdell v. State, 304 P.3d 396, 399 (Nev. 2013) (“[A] party may not collaterally attack the validity of a [protective order] in a subsequent criminal proceeding based on violation of the [protective order].”); Best v. Marino, 2017-NMCA-073, ¶ 18, 404 P.3d 450 (“The collateral bar rule precludes a restrained party from challenging the merits of [a protective order] after a finding of contempt.”); City of Seattle v. May, 256 P.3d 1161, 1165 (Wash. 2011) (en banc) (“The collateral bar rule precludes challenges to the validity . . . of a court order in a proceeding for violation of such an order except for challenges to the issuing court’s jurisdiction to issue the type of order in question.”).

[3] 3. Even if we were to conclude that Baize could attack the validity of the civil protective order here and agree with him that the “civil in nature” language in the protective order is unconstitutionally vague, Baize ignores the alternative restriction imposed on him by the protective order, namely that his communication with Victim must pertain to their child. Baize’s emails to Victim appear to have violated this provision.

Baize’s communications variously described Victim in unflattering terms and accused her of indiscretions. Indeed, our review of the record reveals that Baize’s emails to Victim are replete with examples of Baize directing his comments to Victim’s alleged attributes rather than a discussion of co-parenting needs or the needs of the child.

We find the argument that Baize’s comments took place in the context of communication about their child unpersuasive. Baize’s concerns regarding their child’s well-being or Victim’s parenting could have been effectively communicated without personal commentary about Victim. In fact, Baize admitted at trial that he was “[g]ambling on” Victim construing the comments he made in his emails as “personal attacks.”

[4] Baize also argues on appeal that the jury should have been instructed on the definition of stalking. But at trial, the State stipulated that the court would consider instructing the jury on the definition of stalking only “[i]f the State [brought] in evidence of stalking.” The State did not attempt to introduce evidence of stalking, and Baize did not again request that the trial court instruct the jury on the issue of stalking. Consequently, Baize waived this aspect of his argument below and cannot raise it on appeal. See State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443 (“Waiver, in the context of raising an issue before a court, is generally the relinquishment or abandonment of an issue before a trial or appellate court. . . . If an issue has been waived in the trial court, that issue is not preserved for appeal.”).

[5] 5. We resolve this aspect of Baize’s appeal by declining to apply strict statutory definitions, but we note that the language of the relevant provisions of the protective order was written broadly and did not suggest that Baize was prohibited from engaging in only physically violent behavior or in making threats of violence. Baize’s violence-based reading of the protective order’s terms conflicts with the public policy underlying the entire domestic violence statutory scheme:

Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders . . . because of the need to provide ongoing protection for the victim . . . . [T]he court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless the court determines by clear and convincing evidence that the victim does not . . . have a reasonable fear of future harm or abuse.

Utah Code Ann. § 77-36-5.1(6)(a)–(b) (LexisNexis Supp. 2019); see also State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645 (“The state has an inarguably significant interest in protecting the health and well-being of its citizens. In furtherance of this goal, the state has created a mechanism whereby the victims of domestic violence may obtain civil orders of protection against their abusers. As part of this protection, the court may prohibit the abuser from having any contact, direct or indirect, with the victim or the victim’s family.”). Thus, the statute’s purpose is to protect domestic abuse victims from further abusive behavior in the broad sense, including psychological abuse and other forms of controlling behavior. Baize’s violence-based interpretation of the protective order’s terms appears to run contrary to the significant interest the State has in protecting the overall health and emotional well-being of its citizens.

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2019 UT App 201 – Bradshaw v. Pelley-Whelan – UCCJEA

2019 UT App 201 – Bradshaw v. Pelley-Whelan


No. 20181003-CA
Filed December 12, 2019

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 174906242

Theodore R. Weckel, Attorney for Appellant
Jennifer L. Falk, Cassie J. Medura, Jarrod H. Jennings,
and Adrienne Nash Wiseman, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which


¶1        “Facts are stubborn things.”[1] In this appeal, Cairo Bradshaw asks us to reverse the district court’s legal conclusion that it lacked subject matter jurisdiction to make an initial custody determination concerning her minor child (Child) under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The crux of Bradshaw’s argument is that the district court erroneously determined that Child’s home state is California. Specifically, Bradshaw argues that the court’s error lies in its conclusion that Child was only temporarily absent from California during the relevant six-month period leading up to when Bradshaw filed her parentage petition in Utah. However, Bradshaw assumes facts that were not adopted by the district court. And what’s more, Bradshaw does not challenge the court’s actual findings of fact. Accordingly, Bradshaw falls short of showing that the district court’s legal conclusion concerning subject matter jurisdiction was erroneous as a matter of law. Therefore, we affirm.


¶2           Bradshaw and Christopher Pelley-Whelan are the parents of Child, who was born in California on July 2, 2016. On October 10, 2017, Bradshaw filed a parentage petition in Utah requesting that the court make an initial custody determination of Child. Pelley-Whelan filed a motion to dismiss Bradshaw’s petition for lack of subject matter jurisdiction under the UCCJEA on the ground that Child’s home state was California, not Utah.[2]

¶3           On March 13, 2018, after reviewing the pleadings and conducting a hearing, a commissioner deemed Child’s home state to be California and recommended that the Utah court dismiss Bradshaw’s petition for lack of jurisdiction. Bradshaw objected to the commissioner’s recommendation as authorized by rule 108(a) of the Utah Rules of Civil Procedure.

¶4           After the commissioner recommended that the district court deny her parentage petition, Bradshaw, in a separate case, filed a petition for a protective order against Pelley-Whelan, alleging two incidents of abuse which had taken place several months earlier in Massachusetts and two weeks earlier in California. On June 13, 2018, a commissioner recommended that Bradshaw’s petition for a protective order be denied. Bradshaw objected to the recommendation and requested that the objections to the parentage petition and the protective order be consolidated.

¶5           On June 20, 2018, the parties presented oral argument on jurisdiction and the protective order. Bradshaw primarily argued the district court should exercise jurisdiction under the UCCJEA because Utah, not California, was Child’s home state. In the alternative, Bradshaw argued that Child had no home state. Finally, she argued the court should exercise emergency jurisdiction under the UCCJEA because the allegations of abuse in the protective order illustrated a risk of danger for Child. Pelley-Whelan argued that Child’s home state was California because Child was born in California and had lived there ever since. The court set an evidentiary hearing to determine Child’s home state for the six-month period leading up to the time Bradshaw filed her parentage petition in Utah—April 9 through October 9, 2017.

¶6 At the evidentiary hearing, Bradshaw offered the following evidence in support of her petition: (1) documents showing that Bradshaw purchased a home in Utah in January 2016, and paid $1,000 in expenses to move personal possessions from Pelley-Whelan and Bradshaw’s home in Huntington Beach, California; (2) tax documents showing that Bradshaw filed state income tax returns in Utah for the years 2016 and 2017; (3) credentials showing that Bradshaw maintained a Utah driver license and voter registration certificate; (4) a table showing Bradshaw’s credit card transactions in Utah; (5) a table showing Bradshaw’s flights to Utah; and (6) pictures showing Child and Child’s belongings in Utah or at Bradshaw’s Utah house.

¶7           Pelley-Whelan offered rebuttal evidence in support of his position that Child’s home state for the relevant period was California. Specifically, Pelley-Whelan offered evidence that (1) Child was born in California and remained there for at least six to eight weeks; (2) Child’s doctor is in California; (3) Child was enrolled in ballet class in California; (4) although Bradshaw had purchased a home in Utah, she continued to own and live in the Huntington Beach, California home, which Pelley-Whelan had spent $90,000 renovating in anticipation of Child’s birth; (5) Bradshaw and Pelley-Whelan jointly owned a second property in Big Bear, California; (6) Bradshaw’s phone records indicate that she was in Utah for only fifty-five days during the entire 2017 year; and (7) the majority of Child’s belongings remained in California.

¶8           Bradshaw also raised the protective order at the evidentiary hearing, but only to point out that it was “relevant in terms of whether Utah should invoke jurisdiction” over the custody dispute. While the court did allow some testimony on the protective order—such as the location of the alleged instances of abuse—it limited many questions and indeed barred one of Bradshaw’s witnesses from discussing specific details of the alleged abuse that occurred in Massachusetts. At the close of the evidentiary hearing, the district court asked the parties to submit additional briefing on both the jurisdictional issue and the protective order.

¶9           The district court entered a written order denying Bradshaw’s objections on November 15, 2018. Therein, the court made the following findings: (1) in light of the fact that Bradshaw maintained two homes in California, and the fact that she purchased a home in Utah and spent $1,000 to move personal possessions from California to Utah, did not indicate that she intended to, or did, relocate to Utah; (2) although Bradshaw offered evidence that she periodically worked from her Utah home, that evidence was incomplete as to when or how often she actually did; (3) competing evidence demonstrated that the majority of Child’s belongings are in California; (4) evidence that Pelley-Whelan spent $90,000 to remodel the Huntington Beach house in anticipation of Child and Bradshaw residing in California was credible; (5) Bradshaw’s tax return evidence did not demonstrate that she had relocated to Utah because although Bradshaw filed Utah income tax returns for the years 2016 and 2017, both of those returns were prepared by a California accountant, the 2016 return showed that Bradshaw received a credit because she claimed to be a resident of another state, and Bradshaw used her California driver license when she filed the 2017 return; (6) Bradshaw’s Utah driver license and voter registration credentials were issued after October 9, 2017, and therefore did not show that Bradshaw had relocated to Utah during the relevant time period; (7) Bradshaw redacted and/or omitted large sections of her flight history and credit card information, and therefore this evidence was not credible to show that Bradshaw had relocated to Utah; and (8) Pelley­-Whelan’s phone record analysis was credible and showed that Bradshaw was in Utah for only fifty-five days in all of 2017, and thus was not in Utah for the majority of the relevant six-month period.

¶10 The district court found that “[Bradshaw] has presented insufficient evidence to establish that either California is no longer [Child’s] home state or that Utah is now [Child’s] home state.” Citing Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App. 2016), the court also concluded that Child was only ever temporarily absent from California and that California was therefore Child’s home state for the relevant six-month period. Thus, the court concluded that it lacked jurisdiction under the UCCJEA and dismissed Bradshaw’s parentage petition. The court also denied Bradshaw’s petition for a protective order, stating that “the evidence does not support the entry of a protective order.”

¶11 Bradshaw appeals.[3]


¶12 Bradshaw contends that the district court erred in concluding that Child’s home state was California and in turn concluding that it lacked subject matter jurisdiction under the UCCJEA. “Both jurisdictional questions and questions of statutory interpretation are questions of law that we review for correctness,” Meyeres v. Meyeres, 2008 UT App 364, ¶ 3, 196 P.3d 604 (cleaned up), “though we will review the [district] court’s underlying findings of fact using the clearly erroneous standard,” In re W.A., 2002 UT 127, ¶ 8, 63 P.3d 607 (cleaned up).[4]


¶13 Bradshaw challenges the district court’s conclusion that Child’s home state is California and that any time Child spent outside of California was only a “temporary absence.” The UCCJEA provides: “Except as otherwise provided in Section 78B-13-204, a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding . . . .” Utah Code Ann. § 78B-13-201(1) (LexisNexis 2018). The UCCJEA defines “home state” as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

Id. § 78B-13-102(7).

¶14 Here, the district court correctly concluded that Child’s home state is California under the UCCJEA. First, the court correctly found—and Bradshaw does not challenge—that “[Child’s] home state was California for the two months following her birth.” See Nevares v. Adoptive Couple, 2016 UT 39, ¶ 16, 384 P.3d 213 (explaining that Utah was arguably the child’s home state for the first eight days of his life under the UCCJEA when he was born in Utah and remained for eight days before moving out of state). Although this conclusion is not determinative of the issue before us, it is helpful to give context in this case.

¶15 Second, the court made a factual finding that “[Bradshaw] has presented insufficient evidence to establish that either California is no longer [Child’s] home state or that Utah is now [Child’s] home state.” In fact, the majority of the district court’s written order is dedicated to explaining why it found Bradshaw’s evidence to be unpersuasive, incomplete, irrelevant, or lacking credibility. See supra ¶ 9. Accordingly, the court adopted findings of fact consistent with Pelley-Whelan’s evidence that Child lived in California for six consecutive months leading up to the time Bradshaw filed her parentage petition in Utah. Although Bradshaw dedicates the majority of her brief to reciting the evidence and making arguments criticizing how the court weighed the evidence in this case,[5] she adamantly maintains that she is not challenging the court’s factual findings.[6]

¶16 Third, the court correctly determined that any time Child allegedly spent away from California during the relevant six-month period was only a temporary absence. See Utah Code Ann. § 78B-13-102(7) (stating that temporary absences are credited toward the consecutive six-month period required for a home state determination). The court first made two crucial factual findings—which Bradshaw does not challenge­ (1) “[Bradshaw] spent only 55 days in Utah in 2017” and thus she “spent the majority of her time during the relevant period in California,” and (2) “[Bradshaw’s] decision to purchase a home in Utah does not establish [her] intent to relocate [from California to Utah].”

¶17 Citing Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App. 2016), the district court next applied a totality of the circumstances approach to determine that any time that Child was allegedly away from California counted only as a temporary absence. Id. at 914 (adopting and applying a totality of the circumstances test, which is “an analysis that encompasses these considerations: the duration of the absence and whether the parties intended the absence to be permanent or temporary, as well as additional circumstances that may be presented in the multiplicity of factual settings in which child custody jurisdictional issues may arise” (cleaned up)).[7] In Garba, a Maryland court concluded that when a child spent four out of six of the relevant months in Maryland, id. at 913, and the mother failed to evidence her intent to permanently relocate out of Maryland, id. at 915, the child’s absences from Maryland were only temporary, id. at 915–16.

¶18 Applying this sound approach to its factual findings­ that Bradshaw had not evidenced her intent to relocate from California to Utah and that she and Child indeed spent the majority of their time in California—the district court correctly determined that any time Child spent outside of California was only a temporary absence. Therefore, the district court properly concluded that California was Child’s home state for purposes of the UCCJEA. As a result, the court lacked subject matter jurisdiction and properly dismissed the parentage petition.


¶19 Bradshaw does not challenge the district court’s findings flowing from these stubborn facts. Bradshaw failed to present evidence sufficient to demonstrate that California ceased to be Child’s home State. And she has failed to demonstrate that the court’s ultimate conclusion—that it lacked jurisdiction under the UCCJEA—was in error. Therefore, we affirm.

Utah Family Law, LC | | 801-466-9277

[1] Many attribute this quote to John Adams, see Quote Details: John Adams: Facts are stubborn things, http://www.quotationspage. com/quote/3235.html []. However The Yale Book of Quotations credits this saying to Bernard Mandeville. The Yale Book of Quotations 612 (Fred R. Shapiro Ed., Yale Univ. Press 2006) (discussing Bernard Mandeville, An Enquiry into the Origin of Honor, and the Usefulness of Christianity in War (1732)).

[2] Pelley-Whelan filed a parentage petition in California after Bradshaw filed her petition in Utah. Because we conclude that Child’s home state is California, and that California therefore has jurisdiction under the UCCJEA, the California case is relevant to our review to note only that the California court did not decline jurisdiction.

[3] Bradshaw does not appeal the denial of her petition for a protective order.

[4] Bradshaw also argues that the court erred in declining to exercise emergency jurisdiction under the UCCJEA. The UCCJEA states, “A court of this state has temporary emergency jurisdiction if the child is present in this state and . . . it is necessary in an emergency to protect the child because . . . [a] parent of the child, is subjected to or threatened with mistreatment or abuse.” Utah Code Ann. § 78B-13-204(1) (LexisNexis 2018). Under the plain language of the statute, Child must have been present in Utah for emergency jurisdiction to obtain. Id. But Bradshaw did not demonstrate that Child was in Utah when the petition was filed or that there was an emergency requiring invocation of the court’s jurisdiction to protect Child. Therefore, a Utah court could not exercise emergency jurisdiction.

Bradshaw also argues that Pelley-Whelan consented to the court exercising personal jurisdiction over him by using the district court’s subpoena power during the proceedings. But even if this were true, Bradshaw has not demonstrated that the district court had subject matter jurisdiction under the UCCJEA to make an initial custody determination. Accordingly, we decline to address this argument further.

[5] For example, Bradshaw argues, “In focusing primarily on the evidence regarding the amount of time that [Bradshaw] could prove that she was living in Utah, the Court failed to weigh the fact that [Bradshaw] testified that she didn’t use her credit card every day that she was in Utah.” She also argues, “The Court failed to consider and weigh the testimony of [Bradshaw’s] two corroborating witnesses . . . who testified that they saw [Bradshaw] in Utah for much larger periods of time than [Bradshaw’s] personal phone records and [Bradshaw’s] bank account statements showed.”

[6] Bradshaw confirmed at oral argument that she is not challenging any factual findings. Where Bradshaw has expressly declined to challenge the court’s factual findings, and where these unchallenged findings could lead only to a conclusion that Child’s home state never ceased to be California, we are hard-pressed to see how a conclusion that Child’s home state is anyplace but California could follow.

[7] Utah’s version of the UCCJEA does not define temporary absence for purposes of a home-state analysis, but at least three different tests have been used in other jurisdictions to determine whether absences from a home state are temporary or permanent: “duration, intent, and totality of the circumstances.” Garba v. Ndiaye, 132 A.3d 908, 914 (Md. Ct. Spec. App. 2016); see also Andrea Charlow, There’s No Place Like Home: Temporary Absences in the UCCJEA Home State, 28 J. Am. Acad. Matrim. Law. 25, 30–37 (2015) (summarizing the “duration,” “intent,” and “totality of the circumstances” tests). We conclude not only that the totality of the circumstances test was appropriate in this case, but that it was properly applied by the district court.

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