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Tag: expert testimony

2024 UT App 51 – Bailey v. Bailey – evidence, sanctions

2024 UT App 51 – Bailey v. Bailey

THE UTAH COURT OF APPEALS

AMY L. BAILEY, Appellee, v. DANNY RAY BAILEY, Appellant.

Opinion No. 20220534-CA Filed April 11, 2024

Second District Court, Farmington Department

The Honorable Michael D. DiReda No. 094701582

Julie J. Nelson, Attorney for Appellant Brian E. Arnold, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1        In 2019, nine years after her divorce, Amy L. Bailey (Amy) filed a petition to modify the child support provisions of the divorce decree, asserting that her ex-husband Danny Ray Bailey’s (Danny[1] income had significantly increased. The matter proceeded to trial, where the district court sanctioned Danny for noncompliance with pretrial disclosure obligations. Among other sanctions, the court prohibited Danny from presenting any evidence, and from refuting any evidence Amy presented, regarding his income. At the conclusion of this rather one-sided trial, the court made findings and conclusions regarding Danny’s income that Danny believes are inaccurate.

¶2        Danny now appeals those findings and conclusions, as well as the court’s underlying sanctions order. Danny asserts that the sanctions order was inappropriate and that he is entitled to a new trial at which he may present evidence regarding his income. We agree with Danny, and therefore vacate the court’s modification order and remand the case for a new trial.

BACKGROUND
The Petition to Modify

¶3        Amy and Danny divorced in 2010; at that time, the parties were able to reach a negotiated settlement which was later incorporated into a decree of divorce (the Decree). The parties have three children together, all of whom were minors at the time of their divorce; only one of the children was a minor at the time of trial. Under the terms of the Decree, Amy was awarded primary physical custody of the children, and Danny was awarded certain parent-time. Danny is self-employed, and his income for child support purposes was determined to be $8,837 per month. Amy’s earnings at that time were determined to be $4,071 per month. Using these income figures, Danny’s child support obligation was calculated to be $1,485 per month.

¶4        In 2019, nine years after entry of the Decree, Amy filed a petition to modify, seeking, among other things, a modification of Danny’s child support obligation. Discovery and disclosure deadlines were set, with fact discovery scheduled to close in November 2019 and expert discovery scheduled to close in March 2020. The expert discovery deadline passed, and neither party designated any expert witnesses. But in September 2020, Amy filed a statement of discovery issues, asserting that Danny had not disclosed certain financial documents, including his 2019 tax return, and asking that Danny be ordered to do so. Amy further requested that she be allowed “to designate an expert to opine on the limited issue of [Danny’s] expenses versus business expenses.” Danny objected to this request, arguing that expert discovery deadlines were “far past” and that Amy “should not be allowed to re-open expert discovery and further extend this matter.” After a hearing, the court ordered both parties to disclose their 2018 and 2019 tax returns and associated financial documents to the other, but the court agreed with Danny on the expert disclosure issue, denying Amy’s request and stating that it was “not inclined to extend discovery deadlines.”

¶5        Eventually, after some delays due to matters not relevant here, the court scheduled a one-day trial regarding the child-support-related issues to occur on November 10, 2021. In its pretrial order, the court ordered that, “at least 28 days before” trial, the parties were to “provide . . . pre-trial disclosures,” including “[t]he name . . . of each witness who will be called at trial,” “an updated financial declaration,” and “copies of their federal income tax returns for the two most recent tax years.”

¶6        On November 2, eight days before trial, Danny filed a motion to continue, asserting that he had “been unable to complete his 2020 tax return due to problems with his accounting software,” and requesting that the trial be continued so that the parties could “proceed with current and accurate income information.” Additionally, Danny brought to the court’s attention that, on October 20, just twenty-one days before trial— and notwithstanding the court’s previous reticence to extend discovery deadlines—Amy had, “for the first time,” identified two expert witnesses that she intended to call at trial. Danny asserted that these disclosures should have been made “within 14 days after the close of fact discovery,” which, in this case, was some two years earlier in November 2019. Danny asked the court to bar Amy from calling these witnesses at trial and, alternatively, stated that if the court was inclined to allow Amy to call these experts, he should be afforded “the appropriate disclosures and discovery opportunities set forth” in rule 26 of the Utah Rules of Civil Procedure. As an added precaution, Danny filed a notice indicating that—contingent on the court’s ruling as to their admissibility—he would like “to receive written reports” from Amy’s newly-disclosed expert witnesses.

¶7        On the same day Danny filed his request for a continuance, Amy filed an objection. While pressing the court to move forward with the trial as scheduled, Amy simultaneously defended the timing of her expert disclosures. On this point, Amy argued that she was attempting to follow the court’s pretrial order, which stated that the list of witnesses that would be called to testify only needed to be provided twenty-eight days before the trial. And, according to Amy, she was doing just that by identifying in her pretrial disclosures the two expert witnesses she intended to call at trial. She argued that these two witnesses were “absolutely necessary” because she intended to rely on “their expert opinion” to demonstrate Danny’s “true income and the expenses being reported on his personal and business income taxes.”

¶8        Three days later, the court held a hearing on Danny’s motion. At the conclusion of the hearing, the court granted Danny’s request for a continuance of the trial date and rescheduled the trial to occur on March 1, 2022. The court also indicated that it would allow Amy to call the expert witnesses and it further observed that the continuance would give Danny time to consider whether he wanted to call a rebuttal expert witness of his own. At the conclusion of the hearing, the court noted that the main reason for continuing the trial was so that Danny could complete his 2020 tax return and disclose it to Amy, and it asked the parties whether they wanted to “set a deadline on the tax return.” Danny’s attorney stated that he’d rather not set a specific deadline, and Amy’s attorney didn’t argue for one either, stating that he and Danny’s attorney had “worked well together on that kind of stuff” and that he didn’t think any specific deadline for disclosure of the tax return would be necessary. The court pushed back a bit, asking, “Not a deadline? You’re okay just leaving it out there?” Amy’s attorney responded by stating that he was “fine with that.” In accordance with the parties’ wishes, the court set no specific deadline for Danny’s production of his 2020 tax return. The court’s previous pretrial order remained in place, however; as noted, it specified that all pretrial disclosures—including recent tax returns—were due “at least 28 days before” trial, which given the scheduled trial date would be February 1, 2022.

¶9        Not long after the November hearing on the motion to continue, Danny’s attorney withdrew. Danny then elected to proceed to trial pro se.

¶10      On February 3, less than four weeks before the trial date, the court held a status conference. At the conference, Amy’s attorney indicated that he had recently received Danny’s newly-completed 2020 tax return—specifically stating that he “just got those the other day”—but that he was still waiting to receive certain bank statements from Danny. In response, Danny—now representing himself—raised certain issues with Amy’s disclosures, indicating that he had not received all of her bank account information. After hearing from both parties, the court ordered Danny to provide Amy with the requested bank statements and ordered Amy “to do the same.”

¶11      During the status conference, the court also discussed the expert witness issue, and it asked Danny if he “had a chance to speak with or read the report from” Amy’s experts. Danny indicated that he had not received any such report. Amy’s attorney stated that he believed the report had been provided either to Danny or his previous counsel, but he offered to “resend” the report to Danny just in case.

The Trial

¶12      On March 1, the trial proceeded as scheduled, with Danny representing himself and Amy represented by counsel. At the start of the proceeding, before any evidence had been presented, Danny brought to the court’s attention that, two weeks earlier, he had filed an objection to Amy’s experts, asking that they be excluded from testifying because he still had not received any reports from them. At this, the court turned to Amy’s attorney for an explanation. Amy’s attorney this time did not claim that any expert report had ever been disclosed to Danny; instead, Amy’s attorney explained that Amy had been unable to “supplement[]” her earlier disclosures with the new experts’ reports because Danny had failed to timely provide Amy with financial information—including, most significantly, the 2020 tax return— that the court “had ordered [Danny] numerous times” to disclose. Amy’s attorney proposed that if the court was disinclined to allow these witnesses to testify as experts, they could, instead, be allowed to testify as “factual witness[es]” just to “tell [the court] what a line means on a tax return.”

¶13 Concerned about possible disclosure failings on both sides, the court asked Amy’s attorney whether it was “still the case” that Danny had failed to deliver “the documents, the returns, the information that [the court] ordered be delivered.” To this, Amy’s attorney responded, “Not timely.” Seemingly dismayed at the lack of cooperation between the parties, the court reminded them that the reason it had continued the trial was so that the parties could “exchange documents,” yet they had apparently still failed to “timely” comply with its instructions. Addressing Danny, the court stated, “So if you’re going to come to me and ask . . . that I exclude a witness, you’ve got to come in with clean hands. If your hands are soiled because you yourself have not complied with the rule and you’ve not told me that, that’s a problem, because I’m not going to apply the rules unevenly.” The court—without Amy making any specific request for a negative-inference sanction[2]—then told Danny that his apparent untimely disclosure of the 2020 tax return was “a problem that leads [the court] to think that perhaps a negative inference should be drawn against you . . . because why wouldn’t you just turn over the information that is critical to the [c]ourt’s determination on income since this is an income case?”

¶14      Before ruling on the matter, the court wanted to know how much time had elapsed between the completion of Danny’s 2020 tax return and Danny’s disclosure of that return to Amy. Danny indicated that “[p]robably two months” had elapsed between completion and disclosure. The court then asked, “Why wouldn’t you have just disclosed [the return] immediately once you had them done? Why did you wait two months to disclose [it]?” Danny explained that he was looking for new counsel at that time and that his understanding was that his “obligation was to supply” those documents with his pretrial disclosures, twenty-eight days before trial, which he did. Danny also reminded the court—twice—that, at the conclusion of the November hearing, no specific deadline for disclosure of the tax return had been set. The court then, without prompting from Amy’s attorney, began to read from rule 26 of the Utah Rules of Civil Procedure, stating to Danny that, as soon as he learned that his disclosure was “incomplete,” he was required to “timely serve on the other parties the additional or correct information.”

¶15 After allowing both sides to argue the matter, the court determined that “at the end of the day,” Danny was the one who “didn’t disclose timely.” The court therefore told Danny that Amy “couldn’t have given you a full expert report, because you hadn’t given them the predicate information that was needed so the expert could do his or her job.”

¶16      After a recess to allow the parties one last opportunity to negotiate, the court considered what, if any, sanction should be imposed on Danny for his apparent untimely disclosure of his 2020 tax return. The court believed that it could impose any of the sanctions set forth in rule 37(b) of the Utah Rules of Civil Procedure. After argument, the court determined it would be “inequitable” to allow Danny “to go forward and argue” what he thought his income should be when he “deprived the other side of [the] complete and accurate financial information that their [experts] needed in order to present a complete picture” of Danny’s finances. It therefore ordered that, during the trial, Danny would be prohibited from refuting any evidence that Amy introduced about Danny’s income, and he would not be allowed “to introduce [his] own evidence in support of what [he] believe[d]” his income should be. Basically, the only thing that Danny would be able to do at trial would be to present or challenge evidence presented related to Amy’s income.

¶17      Concerning Amy’s experts, the court determined it would be appropriate to allow them to testify as fact witnesses. Amy ended up calling only one of the two expert witnesses she listed in her pretrial disclosures, a forensic accountant (Accountant). At the beginning of his testimony, Accountant was reminded that he was not permitted to give “expert opinion” because he would, as Amy’s counsel described it, be a “factual witness.”

¶18      During his direct examination, Accountant was presented with exhibits containing Danny’s tax returns—including his 2020 tax return—and other financial documents and was asked questions concerning those documents. For example, Accountant was asked about the purpose of lines “28 A and B” on one of the forms, and he responded, “Those are there to present to the IRS sources of income from businesses that the taxpayer owns.” At another point in the trial, Accountant was also asked whether the W-2 wage on another form was for Danny or if it was “a qualified deduction” from Danny’s company. Accountant responded it was “neither,” and that “the income from the business” would be different from the amount represented on the form “because [it] specifically calculates adjusted income for [that] specific tax deduction.” Direct examination of Accountant continued in this fashion, with him testifying about several line items contained in Danny’s tax returns and what information should or should not be contained therein.

¶19 Amy was the only other witness to testify at trial. After submission of the evidence, Amy’s attorney made a closing argument. The court then went back and forth with Amy’s attorney, discussing the various figures that had been presented and what implications they might have on the calculation of child support arrearages going back to the date Amy filed her petition. After completing the calculation, the court made an oral ruling that, for child support purposes, Danny’s monthly income was $42,555 (as opposed to $8,837 under the original Decree) and that Amy’s monthly income was $6,265 (as opposed to $4,071 under the original Decree). Based on those figures, the court then calculated Danny’s ongoing child support obligation, as well as arrearages owed dating back to the month after Amy filed her petition to modify. Specifically, the court determined that Danny owed Amy $108,027 in back child support. Because of the “sizable back child support due and owing,” the court declined Amy’s request for attorney fees. A few weeks later, the court entered a written order memorializing its oral ruling.

ISSUES AND STANDARDS OF REVIEW

¶20 Danny now appeals the court’s modification order. In particular, Danny challenges the court’s findings and conclusions regarding his own monthly income, and he asserts that the court’s determinations in that regard are infirm because it improperly sanctioned him and did not allow him to present evidence supporting his position or refuting Amy’s position on that issue. Thus, Danny’s appeal centers on the court’s application of Utah rules regarding discovery, disclosure, and sanctions.

¶21      A district court’s interpretation of the Utah Rules of Civil Procedure is reviewed for correctness. Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 19, 493 P.3d 1131. For this reason, a court’s decision regarding the adequacy of a party’s disclosures is reviewed for correctness. See Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶ 17, 508 P.3d 619 (stating that “we review for correctness the district court’s conclusion that [a party’s] disclosures were inadequate, because that determination is at root a question of interpretation of” the applicable rules).

¶22      But when a district court’s interpretation of the applicable rules is correct, we extend “a great deal of deference” to the court’s decisions regarding its choice of sanctions, and we will only disturb such rulings “if abuse of discretion is clearly shown.” Raass Bros. Inc. v. Raass, 2019 UT App 183, ¶ 11, 454 P.3d 83 (quotation simplified). Similarly, we review deferentially a “district court’s decision to admit or exclude evidence,” including its “determination regarding the admissibility of expert testimony” for an abuse of discretion. Northgate Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117 (quotation simplified). A court’s determination that a witness’s testimony is “not expert testimony” is similarly reviewed for an abuse of discretion. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d 1176.

ANALYSIS

¶23      Danny’s primary challenge on appeal concerns the district court’s imposition of sanctions, which he contends were unwarranted. For the reasons discussed herein, we find merit in Danny’s position, and agree that the court erred by imposing rule 37 sanctions on Danny.

¶24 There are two different rules of civil procedure that concern discovery sanctions: rule 26 and rule 37. These two rules, “although couched in different terms,” are both “aimed at encouraging good faith compliance with the discovery obligations imposed under the rules of civil procedure and both provide the court with the authority to sanction those who fail to live up to the requirements of those rules.” PC Crane Service, LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 34, 273 P.3d 396. But despite certain commonalities, the sanctions available pursuant to these rules are different and have distinct prerequisites.

¶25 The sanctions that a court may impose pursuant to rule 26(d) are narrow, but they are also “automatic and mandatory” when the prerequisites are met. See Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 48, 476 P.3d 542. That rule provides, in relevant part, as follows:

(4)   If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.

(5)   If a party learns that a disclosure or response is incomplete or incorrect in some important way, the party must timely serve on the other parties the additional or correct information if it has not been made known to the other parties. The supplemental disclosure or response must state why the additional or correct information was not previously provided.

Utah R. Civ. P. 26(d)(4), (5).[3] Thus, when a party fails to comply with rule-based disclosure requirements, that party is “presumptively barred” from relying on that witness, document, or material at trial. See Dierl v. Birkin, 2023 UT App 6, ¶ 31, 525 P.3d 127, cert. denied, 527 P.3d 1107 (Utah 2023). A party seeking sanctions under rule 26(d)—usually a party whose litigation opponent has failed to timely disclose a required item—does not need to file a motion for sanctions and obtain a court order beforehand; rather, sanctions under this rule are “automatic and mandatory” and do “not require a predicate discovery order.” Eskamani, 2020 UT App 137, ¶¶ 47–48. Courts should, upon request, presumptively impose sanctions for noncompliance unless “the party seeking relief from disclosure requirements” can demonstrate that its noncompliance was harmless or excused by good cause. Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 18 & n.7, 445 P.3d 434; see also Utah R. Civ. P. 26 advisory committee notes (stating that sanctions are “the usual and expected result” of noncompliance).

¶26        But the sanctions available under rule 26(d) are narrow and specific: a party who fails to comply with rule-based disclosure obligations, and who cannot show harmlessness or good cause, “may not use the undisclosed witness, document, or material at any hearing or trial.” See Utah R. Civ. P. 26(d)(4). Rule 26, by itself, does not speak of or authorize any other sanction.

¶27        Rule 37, by contrast, is not self-executing: a party wishing to take advantage of its more expansive sanctions menu must first obtain a discovery order from the court. Subsection (a) of that rule allows a party to “request that the judge enter an order regarding any discovery issue.” Id. R. 37(a)(1). And subsection (b) allows a “court, upon motion, [to] impose appropriate sanctions for the failure to follow its orders.” Id. R. 37(b) (emphasis added). Interpreting the language of this rule, we have recently held that imposition of sanctions under rule 37 is available only for violation of a specific court order. See Eskamani, 2020 UT App 137, ¶ 49 (“Unlike rule 26, rule 37 conditions the availability of discovery sanctions upon the failure of a party to follow a discovery order.”).

¶28      But rule 37 offers a wide variety of sanctions options, and it allows for sanctions that can be more severe than the sanction authorized under rule 26. Where the violation in question is disobedience of a court order (as opposed to noncompliance with a rule-based disclosure requirement), rule 37 authorizes a court to (among other things) “deem [a] matter . . . to be established,” give an “adverse inference” instruction, order attorney fees, hold a party in contempt, or even dismiss a party’s claim or defense. See Utah R. Civ. P. 37(b)(1), (4)–(7). As relevant here, a court may also opt to “prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence.” Id. R. 37(b)(2).

¶29      In imposing sanctions on Danny, the district court applied rule 37. It read subsection (b) of that rule to Danny, and then walked the parties through the sanctions options provided by rule 37(b). After discussion, and after a brief break to allow additional negotiations, the court told Danny that he would not be “permitted to refute” any evidence Amy presented regarding his income, and that he would not “be permitted to introduce [his] own evidence in support of what [he] believe[s his own] income should be.” This is one of the sanctions listed in rule 37(b). See id.

¶30      But under these circumstances, this sanction was improper. Rule 37 is properly invoked only for violation of a court order, see id. R. 37(b); Eskamani, 2020 UT App 137, ¶ 49, and Danny was not in violation of any court order. The only potentially applicable order is the pretrial order that commanded the parties to disclose their trial exhibits—including, significantly, their latest tax returns and other updated financial information—at least twenty-eight days prior to trial.[4] Danny complied with this order when he submitted his 2020 tax return on or before February 1, 2022—which was at least twenty-eight days prior to the scheduled March 1 trial date.[5] And on appeal, at least, Amy makes no argument to the contrary.[6] In the absence of any evidence that Danny was in violation of a court order, the court was not permitted to impose sanctions on Danny pursuant to rule 37.

¶31        Danny’s sin, as perceived by the district court, was not the violation of any specific court order. Instead, the court was apparently upset with Danny for waiting some two months after the belated completion of his 2020 tax return to provide a copy of that return to Amy. This action was arguably a violation of rule 26(d)(5), which commands parties to “timely” supplement their initial disclosures. See Utah R. Civ. P. 26(d)(5).[7] Courts certainly have authority to punish untimely supplementations. But such punishment must be imposed pursuant to rule 26(d) and not—in the absence of a violation of a court order—pursuant to rule 37(b).

¶32        Under rule 26(d), the court could have penalized Danny for his two-month disclosure delay, but any such penalty should have been limited to preventing Danny from “us[ing]” the 2020 tax return “at any hearing or trial.” See id. R. 26(d)(4). Even if we were to assume, for purposes of the discussion, that under rule 26(d) the court properly barred Danny from introducing that document on his own account, we are aware of no rule or authority that would allow the court to bar him from introducing other properly disclosed evidence about his income, or from attempting to rebut evidence about his income that Amy introduced at trial. In this vein, we note that, during her evidentiary presentation at trial, Amy introduced Danny’s 2020 tax return into evidence; Danny should not have been barred from engaging with that evidence once Amy voluntarily elected to introduce it. Thus, under the circumstances, the district court’s sanctions order was improper and unduly punitive.

¶33      And in this situation, the court’s improper sanctions order prejudiced Danny. Prejudice is demonstrated when a party shows that the court’s error “impacted the outcome of the dispute.” In re Western Ins. Co., 2022 UT 38, ¶ 55, 521 P.3d 851. In other words, a party is prejudiced if “there is a reasonable likelihood that, absent the error, the result would have been different.” Id. (quotation simplified). Danny asserts that his income is actually less than half of what the court found it to be after the one-sided evidentiary presentation, and he argues that, had he been able to present evidence as to his income, the court would not have made the same determination in that regard. Danny asserts that, if he had not been sanctioned, he would have presented (among other things) his earlier tax returns and evidence regarding his “necessary business expenses,” and would have been able to demonstrate that certain income had been improperly attributed to him. Danny plausibly contends that this would have likely made a difference, and here on appeal, Amy makes no argument to the contrary. And it appears that the district court more or less agreed with this notion, at one point stating that the sanctions imposed were “almost the equivalent of a default.”

¶34 In sum, then, the court entered an improper and unduly punitive sanctions order against Danny. That order prejudiced Danny because it prevented him from meaningfully engaging with the court and with Amy on the subject of his own income; absent the sanctions order, we think the court likely would have reached a different conclusion regarding Danny’s income. Accordingly, we vacate not only the court’s sanctions order but also its modification order (the order containing its findings regarding Danny’s income), and we remand this case to the district court for a new trial on Amy’s petition to modify.

¶35 Our opinion could end here. But we elect to address one of Danny’s other criticisms of the court’s handling of Amy’s petition to modify, in the hope that our guidance on this issue might prove useful on remand. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our decision, we retain the authority to reach issues when we believe our analysis could prove helpful on remand.”); see also Young H2ORE LLC v. J&M Transmission LLC, 2024 UT App 10, ¶ 48, 543 P.3d 1264 (electing to “offer some guidance that we hope will prove useful” on remand where the issues in question “are certain to arise again”).

¶36 Danny asserts that the court acted improperly when it allowed Accountant to testify at trial as a “factual witness.”[8] We agree with Danny that Accountant’s testimony was improper.

¶37 After Amy made a late designation of expert witnesses (which the court eventually authorized Amy to do), Danny asked for a report from those witnesses, including Accountant, in lieu of taking their depositions. But despite certain initial incorrect representations from Amy’s attorney to the contrary, Amy never provided Danny with any report from Accountant.

¶38      Expert witnesses from whom reports have been requested should not be allowed—absent a showing of good cause or harmlessness—to testify about matters not “fairly disclosed in” the requested reports. See Utah R. Civ. P. 26(a)(4)(B) (stating that expert witnesses “may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report”); id. R. 26(d)(4); see also R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (stating that, “where it is undisputed that an expert witness report has been untimely filed, the proper inquiry is whether” the party’s failure to timely submit the report was “harmless” or excused by “good cause” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014). It follows, then, that an expert from whom a report has been requested but who has not provided one should not be allowed to testify at all, absent a finding of good cause or harmlessness, since nothing was “fairly disclosed” in any report. See Utah R. Civ. P. 26(a)(4)(B).

¶39        In this case, the district court allowed Accountant to testify, despite the fact that Accountant never provided an expert report to Danny. The court allowed this, at Amy’s request, on the ground that Accountant would not be asked to offer any expert opinion as to Danny’s income but, instead, would merely be “a factual witness” who would offer testimony about “what a line means on a tax return.” But the court never engaged in any analysis of whether Amy’s failure to provide an expert report from Accountant should be excused for “good cause.” See id. R. 26(d)(4). While Danny’s two-month delay in supplementing his initial disclosures with his 2020 tax return may have provided some cause for Accountant’s inability to timely form opinions regarding Danny’s post-2019 income, neither Amy nor the court ever offered an explanation as to why Danny’s delay in disclosing his 2020 tax return provided any cause for Accountant’s failure to provide a report containing opinions about what line items on a tax return mean.

¶40      And we are not persuaded by Amy’s effort to characterize this kind of testimony as “fact testimony.” As an initial matter, even fact witnesses have to be disclosed in a timely manner, and— although Amy did obtain permission to make a late expert designation of Accountant—Amy did not disclose Accountant as a fact witness in a timely manner. Any such disclosure should have been made in Amy’s initial disclosures, in order to give Danny the opportunity to depose (or seek other discovery from) the witness. It is not proper, absent specific leave of court, for a party to disclose a fact witness for the first time in connection with its final pretrial disclosures. After all, witnesses and exhibits disclosed in final pretrial disclosures are intended to be merely a subset of the witnesses and exhibits already disclosed earlier in the case. See Ader v. SimonMed Imaging Inc., No. CV-17­02085, 2020 WL 13442907, at *2 (D. Ariz. Sept. 22, 2020) (stating that, “[t]ogether, initial and supplemental disclosures reveal the full universe of potentially relevant evidence for every claim or defense,” and that in preparation for making final pretrial disclosures, the parties must then “sift through” that earlier-disclosed evidence to arrive at a “narrowed universe” of evidence “aimed at trial preparation”). Allowing a party to use its pretrial disclosures to introduce new evidence and new witnesses would therefore be contrary to the very purposes of rule 26. See Johansen v. Johansen, 2021 UT App 130, ¶ 18, 504 P.3d 152 (stating that where a party’s pretrial disclosures, submitted only “28 days before trial,” identified for the first time the witnesses that the party intended to rely on at trial, that disclosure was contrary to “the purpose of rule 26, which is to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been properly disclosed” (quotation simplified)); see also In re Morrissey, No. AP 20-2045, 2022 WL 666803, at *5 (Bankr. D. Utah Mar. 4, 2022) (noting that if a party “were permitted to treat the [pretrial disclosure] deadline as though it were the [initial disclosure] deadline, it would completely undermine the purposes of” the rule governing initial disclosures).

¶41 But more to the point, the testimony that Accountant ended up giving at trial was not fact testimony; it was expert testimony. A “fact witness” is someone “who has firsthand knowledge of something based on the witness’s perceptions through one [or] more of the five senses.” Fact Witness, Black’s Law Dictionary (11th ed. 2019). “Lay fact testimony”—which is the type of testimony that the district court and Amy assert that Accountant provided—is “factual testimony not based on scientific, technical, or other specialized knowledge.” State v. Rothlisberger, 2006 UT 49, ¶ 11, 147 P.3d 1176; see also Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 8, 257 P.3d 1096 (stating that testimony that is “clearly based on scientific, technical, or other specialized knowledge” should be considered as “expert testimony rather than fact testimony” (quotation simplified)), cert denied, 268 P.3d 192 (Utah 2011). A fact witness is thus only allowed to “testify in the form of fact or opinion” if the testimony “is helpful to the finder of fact” and is within the witness’s “personal knowledge or perception.” State v. Sellers, 2011 UT App 38, ¶ 26, 248 P.3d 70; see also Utah R. Evid. 701.

¶42        Here, Accountant had no firsthand knowledge concerning the family in general or about Danny’s income in particular, yet he was presented with various financial exhibits, including Danny’s tax returns, and was allowed to offer testimony about them. Amy’s attorney then questioned Accountant about certain line items in those documents. At one point, for instance, Accountant explained how a wage on a W-2 form was neither for Danny nor was it “a qualified deduction” from Danny’s company, because “the income from [Danny’s] business” would be different from the amount represented in the form which “specifically calculates adjusted income for [that] specific tax deduction.” We have no difficulty concluding that this sort of testimony was expert testimony, not fact testimony, because it was based not on Accountant’s own personal observations but, instead, on his “technical” and “specialized knowledge.” See Utah R. Evid. 701.

¶43      Accountant should not have been allowed to provide this sort of testimony under these circumstances. Despite the court’s stated intention not to “apply the [discovery] rules unevenly,” in our view that is exactly what happened here. The court imposed an inappropriately severe sanction on Danny, while at the same time allowing Amy to offer undisclosed expert testimony. We trust that, on remand, these errors will be corrected.

CONCLUSION

¶44      Because Danny did not violate any discovery or disclosure order, the court’s effort to sanction him pursuant to rule 37 was improper. In addition, the court erred by allowing Accountant to offer expert testimony without having provided a requested expert report. We therefore reverse the imposition of sanctions on Danny, vacate the court’s order modifying the Decree, and remand the matter to the district court for a new trial.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Because the parties share the same last name, we refer to them by their first names for ease of reference, with no disrespect intended by the apparent informality.

[2] Prior to the trial, Amy had filed a document stating a general objection to Danny’s pretrial disclosures, asserting that some of Danny’s exhibits had not been disclosed “in a timely manner” and asking the court to enter an order barring Danny from using such exhibits at trial. Neither in that document nor at trial did Amy ask for a negative-inference sanction (at least not until after the court brought it up on its own).

[3] An earlier version of rule 37 contained a provision similar to rule 26(d)(4). See Utah R. Civ. P. 37(h) (2013). That provision was deleted in 2015, apparently because the drafters considered it redundant. See id. R. 37 advisory committee notes to 2015 amendment (“Former paragraph (h), which prohibited a party from using at a hearing information not disclosed as required, was deleted because the effect of non-disclosure is adequately governed by Rule 26(d).”). In the rules’ current iteration, this language appears only in rule 26(d)(4).

[4] Recall that the court itself—at the hearing at which it ordered a continuance of the November trial date—had been inclined to order a specific deadline for Danny’s disclosure of the belatedly prepared 2020 tax return, but ended up not doing so after both attorneys asked the court not to impose any deadline.

[5] This pretrial order was also in place in advance of the scheduled November 2021 trial date, and Danny was—at least temporarily— out of compliance with that order when he failed to hand over his 2020 tax return within twenty-eight days of the November trial date. He explained, however, that he was unable to generate the tax return because of software issues, and on that basis the court continued the November trial date, rescheduling the trial for March 2022. This continuance had the effect of curing Danny’s temporary noncompliance with the court’s pretrial order; as noted, Danny fully complied with it as it relates to the March 2022 rescheduled trial date.

[6] At trial, Amy’s attorney represented to the court that Danny’s disclosure of the 2020 tax return had been “[n]ot timely.” As discussed below, we generously interpret this as an allusion to Danny’s obligation to timely supplement his rule 26 disclosures. See Utah R. Civ. P. 26(d)(5). To the extent that this comment represented an assertion that Danny’s disclosure violated a court order, that assertion was inaccurate. Indeed, on appeal, Amy concedes that Danny produced his 2020 tax return to her “twenty-nine (29) days before trial.”

[7] 7. Conduct similar to Danny’s might, under some circumstances, also be a violation of rule 26.1(f), which provides that a party’s “[f]ailure to disclose all assets and income in the Financial Declaration and attachments” in a domestic relations action “may subject the non-disclosing party to sanctions under Rule 37.” See Utah R. Civ. P. 26.1(f). Indeed, Amy invites us to affirm the court’s sanctions order on this basis. We decline this invitation because, in our view, this alternative ground for affirmance is not apparent on the record. See Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 25, 344 P.3d 180 (“We will not affirm a judgment if the alternate ground or theory is not apparent on the record.” (quotation simplified)). As an initial matter, this argument is unpreserved; at trial, there was no discussion of rule 26.1 from any party or from the court, and there is no indication in the record that the court intended to base its sanction on rule 26.1(f). Moreover, it is far from apparent to us that the language of rule 26.1(f) authorizes rule 37 sanctions in the absence of a court order; certainly, Amy has not persuaded us that this is the case, especially given the plain language of rule 37(b) and our case law. See, e.g.Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 49, 476 P.3d 542.

[8] Danny also complains that Amy never submitted initial disclosures, and that—despite a court order—she did not produce any documentation about a second source of income (rental properties). As near as we can tell from the record, Danny’s complaints are accurate. We see no need for further discussion of them here, however; Danny remains free to seek relief from the district court regarding these issues on remand.

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

2019 UT App 205 – THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOHNNY BRICKMAN WALL,
Appellant.

Opinion
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
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
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.

BACKGROUND

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.

ISSUES AND STANDARDS OF REVIEW

¶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).

ANALYSIS

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).

CONCLUSION

¶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 | divorceutah.com | 801-466-9277

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[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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