Date: 01-16-2014

Case Style: State of Utah v. Michael W. Thompson

Case Number: 2014 UT App 14

Judge: McHugh

Court: The Utah Court of Appeals on appeal from the Third District Court, Salt Lake Department

Plaintiff's Attorney: Sean D. Reyes and Mark C. Field, Attorneys for Appellee

Defendant's Attorney: Linda M. Jones, Troy L. Booher, and Noella A. Sudbury, Attorneys for Appellant

Description: ¶1 Michael W. Thompson appeals from his conviction on two
counts of forcible sodomy, both first degree felonies. See Utah Code
Ann. § 76‐5‐403(1) to ‐403(3) (LexisNexis 2003) (current version at
Utah Code Ann. § 76‐5‐403 (LexisNexis Supp. 2013)). Among other
things, he claims that he received ineffective assistance of counsel.
Specifically, Thompson asserts that trial counsel failed to investigate
or challenge the qualifications of the State’s rebuttal witness,
failed to object to the witness’s testimony as improper extrinsic
character evidence, failed to object to instances of prosecutorial
misconduct, and failed to object to defective jury instructions. We
agree that trial counsel performed deficiently in some respects and
State v. Thompson
that but for counsel’s deficient performance, there is a reasonable
probability that the outcome of the trial would have been more
favorable to Thompson. Accordingly, we reverse and remand for
a new trial.
BACKGROUND1
¶2 Thompson’s convictions arose out of events involving a
sixteen‐year‐old girl (A.T.), at a time when Thompson was a thirtytwo‐
year‐old long‐haul truck driver living in Wisconsin. In late
August 2002, Thompson and a friend (Friend) were passing
through Salt Lake City and stayed two nights at A.T.’s home. Over
a year and a half later, in April or May 2004, A.T. reported to the
police that on the second morning of Thompson’s 2002 visit,
Thompson and A.T. engaged in two acts of oral sex. As a result, the
State ultimately charged Thompson with two counts of forcible
sodomy.
¶3 At a three‐day jury trial in March 2007, the State called A.T.
as the only witness in its case‐in‐chief. She testified that in early
August 2002, around her sixteenth birthday, she accompanied
Thompson on a long‐haul trip. While stopped in Laramie, Wyoming,
and then again when they reached Thompson’s house in
Wisconsin, Thompson and A.T. kissed and engaged in oral sex.2
A.T. also testified that in late August 2002, Thompson and Friend
stayed two consecutive nights at A.T.’s house in Salt Lake City.
1. “On appeal from a jury trial, we view the ‘facts in a light most
favorable to the jury’s verdict’ and ‘present conflicting evidence
only as necessary to understand issues raised on appeal.’ Because
the conflicting testimony is relevant to our analysis, we include it
as indicated.” State v. Losee, 2012 UT App 213, ¶ 1 n.2, 283 P.3d 1055
(quoting State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346).
2. These incidents are not the basis of the current charges.
20080546‐CA 2 2014 UT App 14
State v. Thompson
Thompson’s convictions are based on A.T.’s testimony that
Thompson came into her downstairs bedroom around 9:00 a.m. or
9:30 a.m. on the second morning of that visit and that he and A.T.
engaged in two acts of oral sex.
¶4 Thompson testified in his own defense, stating that he and
Friend stayed at A.T.’s house for two nights in August 2002, but
not consecutively. According to Thompson, they arrived in the
evening on August 20 and left for Las Vegas and California the
next morning. Thompson testified that he and Friend arrived back
in Salt Lake City on August 24 and spent a second night at A.T.’s
house. However, Thompson denied having oral sex with her.
Thompson claimed that he and Friend left early the next morning
because they were transporting produce. Specifically, Thompson
indicated that on the morning of August 25 he “got up at 6:00 a.m.,
got ready and got out of there,” and that he and Friend “were
rolling . . . by 6:30 in the morning” Central Time. Thompson
asserted that A.T.’s account could not be accurate because he was
on the road at the time she alleged the offenses had occurred.
When asked whether he had driver’s logs for this trip, Thompson
said he did and that he kept daily logs in accordance with federal
law. Thompson’s trial counsel then moved to excuse Thompson
and to recall him later in the trial, and the prosecutor deferred
cross‐examination until Thompson was recalled.
¶5 Next, Friend testified, corroborating Thompson’s account
that they stayed at A.T.’s house on two separate nights. Friend
testified that on the first morning at A.T.’s house, August 21, he
awoke between 8:00 a.m. and 9:00 a.m. Central Time, but that on
the second morning, August 25, he awoke between 6:30 a.m. and
7:30 a.m Mountain Time. He stated that Thompson was still asleep
when Friend awoke the second morning and that when Thompson
awoke around 7:30 a.m., Friend and Thompson went outside for a
few minutes to talk and smoke. When they returned inside, A.T.
was awake and upstairs. Friend indicated that he and Thompson
packed their things and left for Wisconsin shortly thereafter. On
cross‐examination, Friend testified that Thompson awoke at 9:00
20080546‐CA 3 2014 UT App 14
State v. Thompson
a.m. “that morning,” with the context of the testimony making the
date ambiguous.
¶6 Subsequently, Thompson was recalled to the stand. On
cross‐examination, the prosecutor asked Thompson about Friend’s
testimony. Interpreting Friend’s reference to “that morning” as a
reference to August 25, the prosecutor highlighted a possible
discrepancy in Friend’s testimony about when he and Thompson
awoke on August 25. The prosecutor asked, “So, one of those
wasn’t true. Which one was the truth? It was either you got up at
9:00, or you got up at 7:15. Or maybe it was something else. Why
don’t you tell us what happened.” In response, Thompson
explained that he could not be “a hundred percent right to the
second, time, hour, everything” of the time he arose on that
morning, which was six years before trial. When pressed again
about the possible discrepancy, Thompson said there was “[n]o
way [he] could have got up at 9:00” because he was “under a
produce load,” which could result in significant financial liability
if delivered late.3
¶7 During cross‐examination, the prosecutor also asked about
A.T.’s testimony that Thompson and A.T. had also had oral sex in
Laramie, Wyoming. Thompson denied the allegation, stating, “No.
Personally, I don’t go through Laramie, Wyoming.” At another
point during cross‐examination, Thompson stated that commercial
truck drivers are required to take an eight‐hour break after every
ten hours of driving (the Ten‐Hour Rule). The prosecutor asked
Thompson whether he followed this rule “religiously,” and
Thompson said he did.
3. Some confusion resulted from imprecise questioning, the fact
that three witnesses were testifying to different times relating to
two separate mornings six years in the past, and the fact that
witnesses switched back and forth between referring to Mountain
Time and Central Time.
20080546‐CA 4 2014 UT App 14
State v. Thompson
¶8 At some point during trial, Thompson’s trial counsel had
disclosed to the prosecutor, without any prior notice, that he
intended to introduce Thompson’s commercial truck driver’s logs.
The defense offered the driver’s logs to undermine A.T.’s credibility
and to support Thompson’s testimony that he could not have
had oral sex with A.T. at the time she claimed on August 25, 2002,
because he was already on his way back to Wisconsin. The
prosecutor moved to exclude the driver’s logs because they had
been provided on short notice despite being within the scope of an
earlier discovery request. The trial court denied the prosecutor’s
motion, but allowed him to use the lunch break to find a rebuttal
witness.
¶9 Thompson’s trial counsel offered the driver’s logs as an
exhibit on redirect. Thompson testified that the driver’s logs were
“accurately kept by [him] as a driver” and that if the driver’s logs
says “that’s the time that [he was] in those places, [then] that’s the
time that [he was] in those places.” Thompson’s driver’s logs
indicated that he arrived in Salt Lake City on August 20 at 10:30
p.m. Central Time and drove to Las Vegas the next day. The logs
also show that he and Friend returned to A.T.’s house on August
24 and that they “left Salt Lake City at 6:30 [a.m. Central T]ime” on
August 25. Relying on the driver’s logs, Thompson asserted that
“the testimony of [A.T.] that [he] had been with her at 9:00 o’clock,
or possibly 10:00 o’clock in the morning [Mountain Time], would
not be accurate.”
¶10 On re‐cross examination, the prosecutor again asked
Thompson whether he followed the Ten‐Hour Rule “religiously”
and whether he kept his driver’s logs accurately. Thompson
testified that he tried to follow the Ten‐Hour Rule, that he kept his
driver’s logs accurately to the best of his ability, and that he did not
“cook[] the books.” The prosecutor also elicited testimony from
Thompson explaining that truck drivers are limited to seventy
hours of on‐duty time in a seven‐day period (the Seventy‐Hour
20080546‐CA 5 2014 UT App 14
State v. Thompson
Rule).4 At the end of Thompson’s testimony, the trial court received
the driver’s logs into evidence.
¶11 After the lunch break, the State offered a civilian transportation
specialist for the Utah Highway Patrol (Specialist), as a
rebuttal witness to challenge the accuracy of Thompson’s driver’s
logs. Specialist testified that he supervised training and instruction
of the safety inspection division and motor vehicle safety section of
the Utah Highway Patrol and that he had expertise in the area of
training relating to drivers’ hours of service. Specialist then
described a computer software program called PC*Miler, which
uses trucking routes and speed limits to estimate travel times.
Specialist presented a report generated using the PC*Miler
program that calculated the time it would have taken Thompson to
drive the trip reflected in his driver’s logs from Rapid City, North
Dakota, to Salt Lake City, Utah, on August 20, 2002. Relying on the
PC*Miler report, Specialist testified that Thompson’s trip covered
between 664 and 727 miles, depending on the route, and would
have taken over fourteen hours to travel on either route. Specialist
further opined that Thompson’s driver’s log entry indicating that
he traveled the distance in ten hours could not be accurate because
it was “not physically possible.” Specialist informed the jury that
Thompson “definitely” violated the Ten‐Hour Rule and the
Seventy‐Hour Rule. Specialist further concluded that Thompson
had “cooked the books” to avoid documenting violations of the
rules governing how many hours a truck driver can spend on the
road without a break. On cross‐examination, Specialist admitted
that he did not know the exact route Thompson traveled, the
applicable speed limits, or the speed at which Thompson was
traveling. Specialist also acknowledged that he could not say with
certainty that Thompson was out of compliance as he could only
give “an estimate.” However, trial counsel did not inquire into
Specialist’s involvement in the preparation of the PC*Miler report
4. A later witness testified that the Seventy‐Hour Rule covered an
eight‐day period.
20080546‐CA 6 2014 UT App 14
State v. Thompson
or the data used to generate the report, or otherwise challenge
Specialist’s qualifications or testimony.5
¶12 At the close of evidence, the trial court asked counsel
whether they had reviewed the jury instructions and whether they
would “stipulate that those jury instructions are the law that
should be given to the jury prior to closing arguments.” Thompson’s
trial counsel responded in the affirmative. The trial court then
stated, “The prosecution and defense have stipulated that the 29
jury instructions are the law that should be given to the jury prior
to closing argument,” and neither the prosecutor nor trial counsel
registered any objections. Thereafter, the trial court used the
approved instructions to instruct the jury on the elements of
forcible sodomy. The instructions did not expressly indicate the
mental state required for a criminal conviction. In addition, the
instructions defined lack of consent according to the language of
Utah Code section 76‐5‐406 but also instructed jurors that they
were “not prevented from determining that circumstances outside
those listed above amount to lack of consent.”
¶13 During closing arguments, the prosecutor made a number
of statements indicating that A.T. and Specialist were credible and
that Thompson and Friend were not. He also opined on the ways
in which Thompson’s body language was consistent with untruthfulness.
The prosecutor then stressed the impact on A.T. and asked
the jury to “send[] a message to the defendant.” Finally, the
prosecutor argued that there had been no evidence presented that
Thompson had never traveled through Laramie, Wyoming—one
of the places where A.T. claimed an uncharged incident of oral sex
5. When the prosecutor offered the PC*Miler report as an exhibit at
the end of Specialist’s testimony, trial counsel objected. The court
heard arguments on the objection off the record. After a remand
under rule 23B of the Utah Rules of Appellate Procedure, the trial
court found that trial counsel “did not make objections to evidence
presented through [Specialist].”
20080546‐CA 7 2014 UT App 14
State v. Thompson
had occurred. Thompson’s trial counsel did not object to any of
these statements.
¶14 On March 7, 2008, the jury found Thompson guilty on both
counts of forcible sodomy. Subsequently, the trial court sentenced
Thompson to concurrent terms of five years to life for each count.
Thompson timely appealed and made a motion for remand to the
trial court pursuant to rule 23B of the Utah Rules of Appellate
Procedure to develop the factual record concerning Thompson’s
claim that trial counsel provided ineffective assistance. We granted
Thompson’s 23B motion and remanded for an evidentiary hearing
on factual issues concerning the claim of ineffective assistance of
trial counsel.
¶15 At the rule 23B hearing, conducted by a judge other than the
trial judge due to the latter’s retirement, Thompson’s trial counsel
admitted that he was aware of the existence of the driver’s logs but
initially did not believe it would be necessary to use them at trial.
Trial counsel testified that he decided to use the logs when he saw
them the day before trial and that he gave the logs to the State the
next day. Trial counsel admitted that, for strategic reasons, he did
not produce the driver’s logs to the prosecutor before that date
despite an almost year‐old discovery request. Trial counsel
explained that because the State has the burden to establish that
discovery in a criminal matter is needed, it was his practice to
disregard discovery requests until the State had convinced the trial
court to order production. In light of trial counsel’s belated decision
to use the logs and the resulting late notice given to the State, trial
counsel did not expect the prosecutor to find a rebuttal expert. Trial
counsel also testified that he did not seek a continuance to investigate
Specialist’s credentials or the PC*Miler report, or to find a
surrebuttal expert, based on his belief that any continuance would
work a hardship on Thompson and his family who had traveled to
Utah to attend the trial. He also indicated that he was familiar with
the trial judge, who did not like protracted litigation, delays, or
taking breaks, and who wanted all of his cases to move along
quickly. Trial counsel claimed that he evaluated what requests and
20080546‐CA 8 2014 UT App 14
State v. Thompson
objections to make based on the probable outcome. However, he
denied that he would make a decision contrary to Thompson’s
interest merely because the trial court wanted the case to be
concluded quickly and admitted that, in hindsight, he “might
handle this case differently today.”
¶16 A senior vice president at ALK Technologies (ALK), the
company that developed the PC*Miler program used at trial, also
testified at the 23B hearing. He explained that the PC*Miler
program was developed twenty‐four years ago and that ALK was
now on the twenty‐fourth version of the software. The ALK vice
president indicated that although Thompson drove the route in
2002, the report Specialist used at trial had been generated using a
1997 version of the PC*Miler software. The ALK vice president
further testified that even using the 1997 version of the program,
including its original default settings, he had been unable to
duplicate the travel time indicated in the report Specialist used at
trial. It was only when the ALK vice president reduced the
interstate speed limit from seventy‐five to fifty‐five miles per hour
that he was able to generate a travel time close to that in the report
offered by Specialist. When the ALK vice president ran the 1997
version of the program using the actual speed limits in place in
2002, the resulting travel time was nine hours and thirty‐eight
minutes. He also calculated the travel time with the 2002 version of
the PC*Miler program—the version he recommended using to
estimate travel times for a trip taken in 2002—which resulted in a
time of eleven hours and thirty‐three minutes when using the
default settings and nine hours and thirty‐six minutes when using
the actual speed limits. According to the ALK vice president, the
travel time results used at trial were “out of the range” of the
results obtained using not only PC*Miler, but competing programs
as well.
¶17 Specialist admitted at the 23B hearing that he did not
generate the PC*Miler report used at trial and was not present
when it was generated. Instead, Specialist indicated that he had
called a colleague who ran the report and faxed it to him. Specialist
20080546‐CA 9 2014 UT App 14
State v. Thompson
testified that he did not ask for this colleague to alter the program’s
settings, but also that he had no way of knowing if those settings
had been changed.
¶18 Based on the evidence at the 23B hearing, the trial court
found that trial counsel did not inquire about Specialist’s qualifications;
request his curriculum vitae; request a break to meet with
Specialist to discuss the PC*Miler report, foundational issues, or
other relevant issues concerning his testimony; or request a
continuance. In addition, the trial court found that trial counsel did
not object to Specialist’s testimony, attempt to contact representatives
of the company that produced PC*Miler, or otherwise
investigate the program or report.
¶19 In addition, the trial court found that “PC*Miler is programmable
software, and the results rely on the abilities of the end user
and the end user’s interpretations.” The trial court determined that
Specialist did not have “the requisite knowledge, skill, experience,
training and education to qualify as an expert for the PC*Miler
Program,” but that the ALK vice president did. The trial court
further found that “[b]ased on proper use of the PC*Miler program,
even if Thompson had to slow down at times while driving the
route from Rapid City to Salt Lake City, Thompson could drive the
route identified for August 20, 2002, in 10 hours.”
ISSUES AND STANDARDS OF REVIEW
¶20 Thompson raises several allegations of ineffective assistance
of counsel. “In ruling on an ineffective assistance claim following
a Rule 23B hearing, we defer to the trial court’s findings of fact, but
review its legal conclusions for correctness.” State v. Bredehoft, 966
P.2d 285, 289 (Utah Ct. App. 1998) (citation and internal quotation
marks omitted).
¶21 Thompson claims that even if none of trial counsel’s errors
individually prejudiced his defense, the cumulative effect of these
20080546‐CA 10 2014 UT App 14
State v. Thompson
errors warrants reversal of his convictions and remand for a new
trial. “Whether . . . errors can be classified as cumulatively harmful
turns on whether the errors undermine our confidence in the
verdict.” State v. Palmer, 860 P.2d 339, 350 (Utah Ct. App. 1993).6
ANALYSIS
I. Ineffective Assistance of Counsel
¶22 Thompson argues that trial counsel performed deficiently by
(A) failing to object to evidence that was inadmissible under rules
404, 405, and 608 of the Utah Rules of Evidence as extrinsic
evidence used to establish an untruthful character or untruthfulness
on a particular occasion; (B) failing to challenge the State’s
rebuttal witness and the foundation of a report on which the
witness relied but which had not been generated by him; and (C)
failing to object to numerous instances of prosecutorial
misconduct.7
¶23 The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the effective assistance of counsel.
See U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668,
6. Thompson also advances his arguments under the doctrine of
plain error. However, we do not address Thompson’s plain error
arguments because we ultimately conclude that trial counsel’s
ineffectiveness violated Thompson’s Sixth Amendment right to a
fair trial, and viewing the cumulative effect of trial counsel’s
ineffectiveness, our confidence in the verdict is undermined. See
infra ¶ 86. Reversal on this basis obviates the need to consider the
additional issues raised on appeal.
7. Given our resolution of this appeal, we need not address
Thompson’s argument that his counsel also performed deficiently
by failing to call a surrebuttal expert witness.
20080546‐CA 11 2014 UT App 14
State v. Thompson
684–86, 688 (1984). To support a claim that this right has been
violated, the defendant must show that his attorney’s representation
“fell below an objective standard of reasonableness” and that
there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 688, 694; accord State v. Hales, 2007
UT 14, ¶ 68, 152 P.3d 321. To make such a showing, the defendant
“must overcome the strong presumption that trial counsel rendered
adequate assistance and exercised reasonable professional
judgment.” State v. Bullock, 791 P.2d 155, 159–60 (Utah 1989).
Furthermore, “an ineffective assistance claim succeeds only when
no conceivable legitimate tactic or strategy can be surmised from
counsel’s actions.” State v. Tennyson, 850 P.2d 461, 468 (Utah Ct.
App. 1993); see also State v. Larrabee, 2013 UT 70, ¶ 19.
¶24 We address each of Thompson’s arguments in turn but
reserve our analysis of the prejudicial effect of any error until our
consideration of cumulative harm.
A. Trial Counsel Did Not Perform Deficiently by Failing to
Object to the Specialist’s Testimony Under Rules 404, 405,
and 608.
¶25 Thompson argues that the State used Specialist’s testimony
to establish Thompson’s character for untruthfulness in violation
of rules 404, 405, and 608 and that trial counsel was ineffective for
not objecting to it. The State responds that this testimony was
rebuttal or impeachment evidence rather than character evidence
because it “went only to his credibility on the accuracy of his
driver’s logs” and, therefore, rules 404, 405, and 608 do not apply.
Alternatively, the State argues that Thompson opened the door to
Specialist’s rebuttal testimony when he relied on his driver’s logs
to establish that he could not have had oral sex with A.T. when she
claimed. The State contends that Thompson’s assertions “that his
driver’s logs were accurate, that he followed the rules, and that he
did not ‘cook’ his books” allowed it to “introduce on rebuttal any
testimony or evidence which would tend to contradict, explain or
20080546‐CA 12 2014 UT App 14
State v. Thompson
cast doubt upon the credibility of [Thompson’s] testimony.”
(Citation and internal quotation marks omitted.) Thompson
counters that the State could not use its cross‐examination of him
to open the door to rebuttal on collateral matters.
¶26 Rule 404 states that subject to enumerated exceptions,
“[e]vidence of a person’s character or character trait is not admissible
to prove that on a particular occasion the person acted in
conformity with the character or trait.” Utah R. Evid. 404(a)(1); see
also id. R. 404(a)(2), (a)(3), (c) (listing exceptions).8 If character
evidence is admissible under one of the exceptions listed in rule
404(a), the methods of proving character are limited by rules 405
and 608. See State v. Leber, 2009 UT 59, ¶¶ 13, 20, 216 P.3d 964; State
v. Campos, 2013 UT App 213, ¶¶ 87, 90, 309 P.3d 1160; see also Utah
R. Evid. 608 advisory committee note (stating that rule 608 “should
be read in conjunction with Rule 405”). Rules 405 and 608 generally
limit character evidence to testimony about the person’s reputation
and testimony in the form of an opinion. Utah R. Evid. 405(a); id. R.
608(a); Leber, 2009 UT 59, ¶ 13; Campos, 2013 UT App 213, ¶¶ 87, 90.
However, under rules 405 and 608, specific instances of conduct
may be inquired into on cross‐examination of the character witness
“for the purpose of challenging the credibility of the reputation or
opinion testimony.” See Leber, 2009 UT 59, ¶ 20; see also Utah R.
Evid. 405(a); id. R. 608(b). In addition, rule 405 allows evidence of
specific instances of conduct to be introduced “[w]hen a person’s
character or character trait is an essential element of a charge,
claim, or defense.” Utah R. Evid. 405(b). Finally, rule 608 provides
that “extrinsic evidence is not admissible to prove specific instances
of a witness’s conduct in order to attack or support the witness’s
character for truthfulness.” Id. R. 608(b).
8. The Utah Rules of Evidence have been amended since
Thompson’s trial. See Utah R. Evid. 404 advisory committee note.
Because the changes are not material to the resolution of this
appeal, we cite the current version of the rules unless otherwise
noted.
20080546‐CA 13 2014 UT App 14
State v. Thompson
¶27 For any of these rules to be applicable here, Specialist’s
testimony must have been offered to establish Thompson’s
character or character trait. See id. R. 404(a) (limiting the admissibility
of “[e]vidence of a person’s character or character trait”); id.
R. 405(a) (governing the methods of proving “a person’s character
or character trait”). And rule 608 is even more limited in application,
governing only evidence offered “to attack or support the
witness’s character for truthfulness.” Id. R. 608(b).
¶28 “Character evidence is evidence of a person’s general
propensity, such as the propensity to be honest or truthful. It refers
to broad, cross‐situational traits—propensities that supposedly
influence a wide range of conduct.” Roger Park & Tom Lininger,
The New Wigmore: A Treatise on Evidence: Impeachment and Rehabilitation
§ 3.1, at 91 (2012) (emphasis in original) (footnote omitted).
Furthermore, the ban on extrinsic evidence of specific instances of
conduct “applies only when the specific act is being used to show
character.” Id. § 3.2, at 109. “Sometimes specific acts of lying may
be admissible for a non‐character purpose.” Id.; see also id. § 3.3.2,
at 121 (noting that “where the extrinsic proof relates to a substantive
issue in a lawsuit, it is also admissible”). Thus, if extrinsic
evidence is “not offered as character evidence, then it is not
covered by the ban.” Id. § 3.3.3, at 121; see also id. § 3.3.3, at 122
(“There are many ways in which extrinsic evidence of bad acts by
a witness might be offered for some purpose other than showing
character.”).
¶29 Rule 608 of the Utah Rules of Evidence expressly incorporates
this limitation, stating that extrinsic evidence of specific
conduct is not admissible to attack or support a witness’s character
for truthfulness. See Utah R. Evid. 608(b). But this limitation does not
apply to evidence used to directly rebut a witness’s testimony or
other evidence. See Park & Lininger, The New Wigmore § 3.3.3, at 122
(noting that although extrinsic evidence of other acts may “incidentally
reflect on character for truthfulness,” such extrinsic
evidence is not covered by rule 608’s ban when it is offered “for
some purpose other than showing character”). Previously, rule 608
20080546‐CA 14 2014 UT App 14
State v. Thompson
stated that extrinsic evidence could not be used “for the purpose of
attacking or supporting the witness’[s] credibility.” See Utah R.
Evid. 608(b) (2004). The rule was amended effective November 1,
2004, replacing the reference to “credibility” with “character for
truthfulness.” Id. (2005). The 2004 amendment was intended to
make Utah’s rule consistent with rule 608 of the Federal Rules of
Evidence, which had been similarly amended in 2003. See id.
advisory committee note; Fed. R. Evid. 608 advisory committee
notes (2004). The advisory committee notes to the federal rule state
that “the overbroad term ‘credibility’” was replaced with “character
for truthfulness” to emphasize that the rule excluded extrinsic
evidence “only if the sole purpose for offering the evidence was to
prove the witness’[s] character for veracity,” “leav[ing] the
admissibility of extrinsic evidence offered for other grounds of
impeachment (such as contradiction, prior inconsistent statement,
bias and mental capacity) to Rules 402 and 403.” Fed. R. Evid. 608
advisory committee notes (2004).
¶30 Therefore, once the defendant offers evidence or makes an
assertion as to any fact, the State may cross‐examine or introduce
on rebuttal any testimony or evidence “which would tend to
contradict, explain or cast doubt upon the credibility of his testimony.”
State v. Green, 578 P.2d 512, 514 (Utah 1978) (emphasis
added); State v. Reed, 820 P.2d 479, 482 (Utah Ct. App. 1991).
¶31 Here, Specialist did not opine about Thompson’s general
propensity to be dishonest or untruthful. His testimony was
limited to an opinion about the accuracy of the driver’s logs
Thompson placed into evidence. During Thompson’s testimony,
Thompson vouched for the accuracy of the driver’s logs and
indicated that the logs proved that A.T.’s testimony about when
Thompson had oral sex with her was not accurate. Once Thompson
offered the driver’s logs during his testimony to establish that he
was on his way to Wisconsin at the time A.T. alleged the crimes
had occurred, the State could use extrinsic evidence to prove that
Thompson had fabricated the information in the logs. See Park &
Lininger, The New Wigmore § 3.3.3, at 122 (noting that evidence of
20080546‐CA 15 2014 UT App 14
State v. Thompson
specific instances of deceitful conduct may be used for the noncharacter
purpose of establishing opportunity); cf. United States v.
Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994) (holding that Federal
Rule 608 does not apply “when extrinsic evidence is used to show
that a statement made by a defendant on direct examination is
false, even if the statement is about a collateral issue”). To rule
otherwise would permit the defendant to introduce a document to
establish a fact critical to the case without allowing the prosecution
to challenge the underlying premise that the document is accurate.
See Fleming, 19 F.3d at 1331 (“A defendant may not make false
statements on direct examination and rely on the government’s
inability to challenge his credibility as to the truth of those statements.”).
¶32 Nevertheless, Thompson contends that it was the State that
elicited the testimony on cross‐examination that was later rebutted
by Specialist and, Thompson argues, “the State cannot open the
door to its own rebuttal witness.” See State v. Saunders, 1999 UT 59,
¶ 22, 992 P.2d 951 (plurality opinion) (“Given the fact that the
prosecution had already introduced a great deal of specific
evidence related to [the events in question], [defendant] clearly was
entitled, indeed required as a practical matter, to rebut or explain
that evidence by his testimony. To say that defendant ‘opened the
door’ and therefore was responsible for the admission of the . . .
evidence, as the State contends, is patently incorrect.”); id. ¶ 72
(Zimmerman, J., concurring and dissenting) (agreeing with the
plurality that the defendant had not “opened the door”). In
particular, Thompson relies on the State’s cross‐examination of
Thompson after his direct testimony that federal law mandated
that he keep a daily driver’s log and that he kept such logs on this
trip. In response to the State’s question about how many hours
Thompson drove, Thompson indicated that he was not permitted
to drive more than ten hours at a time without an eight‐hour break.
This was the first mention of the Ten‐Hour Rule. The State then
asked whether Thompson followed that requirement “religiously”
and Thompson replied, “Yes, I do.” On redirect, Thompson
introduced the driver’s logs and provided detailed testimony about
20080546‐CA 16 2014 UT App 14
State v. Thompson
the logs, their accuracy, and their relevance to the charges against
him. The State’s further questioning and rebuttal witness came in
response to this testimony.
¶33 While the State introduced the issue of Thompson’s
compliance with the Ten‐Hour Rule, it did so only after trial
counsel elicited testimony from Thompson that he kept the driver’s
logs as required by law. The State presented a rebuttal witness only
after Thompson testified that the logs could be relied upon to
establish where he was at any given time and that the driver’s logs
established that A.T.’s testimony could not be true. The State was
entitled to challenge the accuracy of the driver’s logs to rebut
Thompson’s testimony, including providing an explanation for
why Thompson may have kept false driver’s logs even before being
charged with forcible sodomy. “[W]hen a defendant waives his
right not to testify, his testimony, like that of any other witness, is
subject to being impeached by cross‐examination or by rebuttal
evidence.” State v. Houskeeper, 2002 UT 118, ¶ 28, 62 P.3d 444
(affirming the admission of extrinsic evidence used by the prosecution
to establish that the defendant lied on the stand); see also State
v. Lopez, 626 P.2d 483, 485–86 (Utah 1981) (same); State v. Wells, 603
P.2d 810, 812 (Utah 1979) (same); Green, 578 P.2d at 514 (same);
State v. Atkin, 2006 UT App 155, ¶ 18 & n.2, 135 P.3d 894 (same);
Reed, 820 P.2d at 482 (same); State v. Tucker, 800 P.2d 819, 822–24
(Utah Ct. App. 1990) (same).9
¶34 We conclude that the State could offer extrinsic evidence on
the reliability of the driver’s logs to rebut Thompson’s assertion
that they accurately indicated that he was in transit at the time A.T.
testified he had oral sex with her. Therefore, trial counsel did not
9. Several cases decided before rule 608 was amended to replace
“credibility” with “character for truthfulness” reach a contrary
conclusion. See State v. Speer, 750 P.2d 186, 188–89 (Utah 1988); State
v. LeVasseur, 854 P.2d 1022, 1024 (Utah Ct. App. 1993); State v.
Martinez, 848 P.2d 702, 704–05 (Utah Ct. App. 1993).
20080546‐CA 17 2014 UT App 14
State v. Thompson
perform deficiently in not objecting to the evidence on the ground
that it was improper character evidence. See State v. Kelley, 2000 UT
41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not
constitute ineffective assistance of counsel.”).
B. Trial Counsel Performed Deficiently in Failing to Inquire as
to Specialist’s Qualifications and the Foundation for the
PC*Miler Report.
¶35 Although the Utah Rules of Evidence allow the State to offer
extrinsic evidence to rebut Thompson’s use of the driver’s logs to
prove he could not have committed the crimes at the time alleged
by A.T., the evidence itself must be otherwise competent. The
admissibility of expert testimony is governed by rule 702 of the
Utah Rules of Evidence, which places the burden on the proponent
of the evidence to establish that the testimony will assist the trier
of fact and that the expert is qualified in the methods employed.
Utah R. Evid. 702. The proponent must also make a threshold
showing that the principles or methods employed are reliable, have
been reliably applied, and are based upon sufficient facts or data.
Id. If the proponent cannot make that showing, the expert testimony
should not be admitted. Haupt v. Heaps, 2005 UT App 436,
¶ 25, 131 P.3d 252 (“[E]vidence not shown to be reliable cannot, as
a matter of law, assist the trier of fact to understand the evidence
or to determine a fact in issue and, therefore, is inadmissible.”
(alteration in original) (citation and internal quotation marks
omitted)). According to Thompson, trial counsel’s failure to
challenge Specialist’s qualifications and the foundation for the
PC*Miler report constitutes ineffective assistance of counsel.
¶36 While the burden on the defendant to prove ineffective
assistance is great, it is not insurmountable. The Utah Supreme
Court has instructed that counsel performs deficiently when he
fails to make reasonable investigation or inquiry. State v. Templin,
805 P.2d 182, 188 (Utah 1990) (“If counsel does not adequately
investigate the underlying facts of a case, including the availability
of prospective defense witnesses, counsel’s performance cannot fall
20080546‐CA 18 2014 UT App 14
State v. Thompson
within the ‘wide range of reasonable professional assistance.’”
(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984))); see also
State v. Hales, 2007 UT 14, ¶¶ 82–83, 152 P.3d 321 (holding that trial
counsel’s failure to engage an expert to review CT scans was
deficient performance). Furthermore, the failure to object to
inadmissible evidence may constitute deficient performance under
some circumstances. See State v. Ott, 2010 UT 1, ¶¶ 24, 33, 247 P.3d
344 (holding that trial counsel’s failure to object to the introduction
of portions of a victim’s impact statement at a capital sentencing
hearing was objectively deficient).
¶37 Here, trial counsel did nothing to inquire into Specialist’s
qualifications or the foundation of the PC*Miler report, despite the
fact that the State admitted at trial that it had hurriedly located a
witness “who may or may not be an expert and may or may not be
able to explain how these logs work.” The entire inquiry into
foundation for the report consisted of a single question asked by
the prosecutor: “What does that program do?” Specialist answered,
“The program goes into the shortest route or the most practical
route, and it gives you a time that it would take to do it; it gives
you the mileage that it would take to do that.” Specialist was never
asked to explain the program’s reliability, how the program was
used in conjunction with the particular facts of this case, what facts
or data the report was based on, or the general acceptability of the
program in the relevant expert community. See Utah R. Evid. 702
(setting forth requirements for admission of expert testimony);
State v. Braun, 787 P.2d 1336, 1340–42 (Utah Ct. App. 1990) (holding
that it was error to admit expert opinion where “[t]he state offered
no foundational testimony as to the scientific reliability or general
acceptability for the [bases of the expert’s] testimony,” but concluding,
under a prior version of rule 702, that the error was not
obvious). Specialist testified without objection or voir dire into his
qualifications, and the PC*Miler report was received as an exhibit
without trial counsel inquiring into Specialist’s involvement in its
preparation or other facts establishing foundation. Trial counsel
objected to the admission of the exhibit itself at the end of Specialist’s
testimony. However, Specialist had already discussed the
20080546‐CA 19 2014 UT App 14
State v. Thompson
contents of the report at length, without any objection from trial
counsel. Relying on the report, Specialist testified that it was
physically impossible for Thompson to have completed a trip in the
time the driver’s logs indicated that he had done so, that Thompson
had definitely violated the Ten‐Hour Rule, that Thompson had also
violated the Seventy‐Hour Rule, and that Thompson had “cooked
the books.” Although this testimony was damaging to Thompson’s
defense based on the claimed accuracy of the driver’s logs, trial
counsel allowed the testimony to be admitted without exploring
Specialist’s personal involvement in the preparation of the report,
his familiarity with the PC*Miler program, or the data used to
generate the report.
¶38 Thompson also argues that his trial counsel should have
objected to Specialist’s testimony because the PC*Miler report on
which it was based was inadmissible hearsay.10 The Utah Rules of
Evidence prohibit the admission of hearsay unless the evidence
meets one of several specific exceptions. See Utah R. Evid. 802. The
rules define hearsay as “a statement that: (1) the declarant does not
make while testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted in the
10. As mentioned above, trial counsel did object to the admission
of the report itself. The trial court overruled the objection and
admitted the report. However, because the discussion was held off
the record, the basis for trial counsel’s objection is not clear. Given
our conclusion below that the report constituted hearsay, see infra
¶ 39, two possibilities present themselves under the facts of this
case: trial counsel either performed deficiently by objecting but not
raising proper grounds for objection or by not doing so with
sufficient specificity to obtain a ruling on the issue, or trial counsel
properly objected but the trial court abused its discretion by
overruling the objection and admitting the report. However, rather
than focusing his appeal on the admission of the report, Thompson
focuses on his trial counsel’s failure to object to Specialist’s
testimony about the contents of the report.
20080546‐CA 20 2014 UT App 14
State v. Thompson
statement.” Id. R. 801(c). A “written assertion” qualifies as a
“statement,” id. R. 801(a), and a “declarant” is limited to “the
person who made the statement,” id. R. 801(b).
¶39 In this case, the PC*Miler report was generated by a third
party who was not present at trial. The author of the report, not
Specialist, made the assertion in the report as to the time required
to travel the specific routes and was thus the “declarant.” Therefore,
the report qualified as a statement that “the declarant does not
make while testifying at the current trial or hearing.” See id.
R. 801(c)(1). The PC*Miler report asserted that it would have taken
a driver over fourteen hours to travel between Rapid City, North
Dakota, and Salt Lake City, Utah. The State used this assertion to
undermine Thompson’s claim that his driver’s logs reliably
established that he was not in Salt Lake City at the time A.T.
reported the abuse to have occurred. The PC*Miler report was thus
used “to prove the truth of the matter asserted in the statement.”
See id. R. 801(c)(2).11
¶40 The State does not challenge Thompson’s assertion that the
PC*Miler report is hearsay. Rather, the State argues that Specialist
11. Thompson also argues that Specialist’s reliance on the PC*Miler
report violated the Confrontation Clause of the United States
Constitution. See generally U.S. Const. amend. VI; Williams v. Illinois,
132 S. Ct. 2221 (2012) (discussing the application of the
Confrontation Clause to the in‐court use of a report generated by
someone who does not appear at trial); Bullcoming v. New Mexico,
131 S. Ct. 2705 (2011) (same); Melendez‐Diaz v. Massachusetts, 557
U.S. 305 (2009) (same). Because we conclude that Specialist’s
reliance on the report violated the Utah Rules of Evidence, we need
not determine whether it also violated the Confrontation Clause.
See State v. Gonzalez‐Camargo, 2012 UT App 366, ¶ 27 n.7, 293 P.3d
1121 (“It is a fundamental rule that this court should avoid
addressing constitutional issues unless required to do so.” (citation
and internal quotation marks omitted)).
20080546‐CA 21 2014 UT App 14
State v. Thompson
appropriately relied on the report under rule 703 of the Utah Rules
of Evidence. Rule 703 provides,
An expert may base an opinion on facts or data in the
case that the expert has been made aware of or
personally observed. If experts in the particular field
would reasonably rely on those kinds of facts or data
in forming an opinion on the subject, they need not
be admissible for the opinion to be admitted. But if
the facts or data would otherwise be inadmissible,
the proponent of the opinion may disclose them to
the jury only if their probative value in helping the
jury evaluate the opinion substantially outweighs
their prejudicial effect.
Utah R. Evid. 703. The State argues that the PC*Miler report is the
type of facts or data that experts in the field reasonably rely on and
that Specialist could therefore use the report “to explain the basis
of his opinion that [Thompson’s] driver’s logs were inaccurate.”
¶41 Our supreme court rejected a similar argument in State v.
Workman, 2005 UT 66, 122 P.3d 639. In Workman an expert testified,
based on toxicology reports prepared by her subordinate, that
substances found in the defendant’s residence were methamphetamine
and methamphetamine precursors. Id. ¶¶ 2, 5. The supreme
court ruled that the report, which constituted hearsay, was not
admissible under the residual hearsay exception. Id. ¶¶ 12–22. The
State argued that the trial court’s erroneous admission of the report
was harmless because under rule 703, the expert “could have given
basically the same testimony that she gave at trial without admitting
the reports.” Id. ¶ 24. In rejecting that argument, the supreme
court explained the difference between relying on facts or data
under rule 703 and testifying to the conclusions of a report:
While [the expert] could conceivably testify to the
general nature of the tests used, how she herself has
used them, or even how [the author of the report,
20080546‐CA 22 2014 UT App 14
State v. Thompson
whom the expert supervised,] had performed such
tests in the past, she could not, relying solely upon
the conclusions stated in the reports, have given
probative testimony on the particular tests performed
to reach those conclusions.
Id. The court concluded that rule 703 did not allow an expert to
testify as to “the conclusions drawn from the tests, absent personal
involvement in the testing process.” Id. We see no material
difference between the facts of Workman and the present case.
Specialist testified as to the conclusions of the report, stating that
it would have taken Thompson at least fourteen hours to travel
from Rapid City, South Dakota, to Salt Lake City, Utah. Finally,
even if we assume that the conclusions of the PC*Miler report are
the type of “facts or data in the case” that are covered by rule 703,
the report was so unreliable in this case, as demonstrated by the
23B findings, that it could not be helpful to the jury. Thus its
“probative value in helping the jury evaluate the opinion” could
not “substantially outweigh[ its] prejudicial effect.” See Utah R.
Evid. 703.
¶42 The State further contends that trial counsel had “a legitimate
strategic reason for not objecting to Specialist’s testimony.”
The State argues that trial counsel knew that if he objected, the trial
court might exclude Thompson’s driver’s logs because the late
production of them placed the State at a disadvantage. However,
there is no indication in the record that the trial court would have
excluded the driver’s logs where they were important to Thompson’s
defense and the State never sought an order enforcing its
discovery request or excluding the logs from admission. Cf. State
v. Ison, 2006 UT 26, ¶¶ 32–33, 135 P.3d 864 (concluding that there
was no strategic reason not to try to submit exculpatory evidence
in light of its admissibility being an open question under Utah law
and despite “the speculative possibility that the trial judge might
have exercised his discretion” under rule 403 of the Utah Rules of
Evidence to exclude it). Finally, trial counsel was not in a position
to weigh the relative risks of objecting against the need to object
20080546‐CA 23 2014 UT App 14
State v. Thompson
without at least investigating whether Specialist was qualified and
whether there was adequate foundation for the PC*Miler report.
See State v. Hales, 2007 UT 14, ¶ 83, 152 P.3d 321 (concluding that
defendant’s trial attorneys “‘were not in a position to make a
reasonable strategic choice’” not to engage an expert “‘because the
investigation supporting their choice was unreasonable’” (quoting
Wiggins v. Smith, 539 U.S. 510, 536 (2003))). Accordingly, trial
counsel’s conduct fell below an acceptable level of performance.12
C. Trial Counsel Performed Deficiently in Failing to Object to
Several Instances of Prosecutorial Misconduct.
¶43 Thompson next argues that several of the prosecutor’s
remarks during cross‐examination and closing argument were
improper and that trial counsel’s failure to object constituted
ineffective assistance of counsel. “Prosecutors are held to a high
standard regarding their conduct, given ‘the possibility that the
jury will give special weight to the prosecutor’s arguments, not
only because of the prestige associated with the prosecutor’s office,
but also because of the fact‐finding facilities presumably available
to the office.’” State v. Todd, 2007 UT App 349, ¶ 17, 173 P.3d 170
(quoting ABA Standards for Criminal Justice: Prosecution Function
and Defense Function § 3–5.8 cmt. (1993)). In examining a claim of
prosecutorial misconduct, we first determine “if the actions or
remarks call to the attention of the jurors matters they would not
12. At the 23B hearing, trial counsel indicated he did not seek a
continuance in part because he thought that it would work a
hardship on Thompson and his family who had traveled to Utah
to attend the trial. The State does not argue on appeal that such
concern constitutes a legitimate strategy. Nor are we persuaded
that any concern for the inconvenience caused to Thompson and
his family by a continuance could justify the failure to make
evidentiary objections reasonably designed to prevent the greater
inconvenience of a conviction and lengthy prison sentence.
20080546‐CA 24 2014 UT App 14
State v. Thompson
be justified in considering in determining their verdict.” State v.
Tillman, 750 P.2d 546, 555 (Utah 1987).
¶44 It is misconduct for a prosecutor to make statements during
closing argument “that prompt[] the jury to consider matters
outside the evidence.” State v. King, 2010 UT App 396, ¶ 22, 248
P.3d 984; see also State v. Hopkins, 782 P.2d 475, 478 (Utah 1989)
(“[C]ounsel is precluded from arguing matters not in evidence.”).
However, that prohibition is balanced against the “considerable
latitude” the Utah Supreme Court has afforded each side during
closing arguments to “discuss fully his or her viewpoint of the
evidence and the deductions arising therefrom.” State v. Bakalov,
1999 UT 45, ¶ 56, 979 P.2d 799 (citation and internal quotation
marks omitted); King, 2010 UT App 396, ¶ 22. Accordingly,
prosecutors “must have the freedom to present closing argument
with logical force,” but they must do so “within the constraints
imposed upon their office.” Todd, 2007 UT App 349, ¶ 18. “Thus,
the conduct of the prosecutor at closing argument is [appropriately]
circumscribed by the concern for the right of a defendant to
a fair and impartial trial.” Id. ¶ 17 (alteration in original) (citation
and internal quotation marks omitted).
¶45 Accordingly, we first determine whether the prosecutor’s
statements were improper. Next, we examine whether trial counsel
performed unreasonably in not objecting to any improper comments.
We then consider whether any deficient conduct was
prejudicial. In the present case, we reserve this final issue of
prejudice until our examination of Thompson’s claim of cumulative
harm. See infra Part II.
1. Propriety of the Prosecutor’s Statements
¶46 Thompson argues that the prosecutor committed prosecutorial
misconduct in cross‐examining Thompson by (a) asking
Thompson to comment on the credibility of another witness.
Thompson also argues that the prosecutor committed prosecutorial
misconduct during his closing argument by: (b) vouching for the
testimony of A.T.; (c) vouching for the testimony of Specialist; (d)
20080546‐CA 25 2014 UT App 14
State v. Thompson
expressing his personal opinion regarding Friend’s credibility; (e)
stating that Thompson was lying during his testimony; (f) providing
unchecked, impermissible “expert” testimony regarding
Thompson’s body language; (g) referring to facts not in evidence
by implying that Thompson sometimes traveled through Laramie,
Wyoming; and (h) appealing to the jurors’ passions and prejudices.
The State argues that the prosecutor’s statements were merely
deductions that he urged the jury to reasonably draw from the
evidence.
a. The Prosecutor Did Not Improperly Ask Defendant to
Comment on Another Witness’s Testimony.
¶47 Thompson argues that in cross‐examining Thompson, the
prosecutor misstated the evidence, implied that either Thompson
or Friend was lying, and asked Thompson to comment on the
veracity of Friend’s testimony. The State responds that the prosecutor
sought only to clarify apparent discrepancies and general
confusion between Thompson’s and Friend’s testimonies.
¶48 “[I]t is improper to ask a criminal defendant to comment on
the veracity of another witness.” State v. Emmett, 839 P.2d 781, 787
(Utah 1992). Such questioning is improper “because it is argumentative
and seeks information beyond the witness’s competence.” Id.
“The prejudicial effect of such a question lies in the fact that it
suggests to the jury that a witness is committing perjury even
though there are other explanations for the inconsistency” and “it
puts the defendant in the untenable position of commenting on the
character and motivations of another witness who may appear
sympathetic to the jury.” Id. However, a prosecutor may ask
questions that seek “to clarify defendant’s testimony in relation to
prior testimony of another witness.” State v. Taylor, 884 P.2d 1293,
1299 (Utah Ct. App. 1994). For example, in State v. Davis, 2013 UT
App 228, 311 P.3d 538, we held that a prosecutor improperly asked
the defendant whether another witness was lying about a conversation
with the defendant. Id. ¶¶ 37–39. However, there we concluded
that the prosecutorial misconduct was cured when “the trial
20080546‐CA 26 2014 UT App 14
State v. Thompson
court reframed the question as a request for [the defendant] to
repeat his own account of the disputed conversation without
speculating on why his account differed from that of the [other
witness].” Id. ¶ 39; see also State v. Stevenson, 884 P.2d 1287, 1289,
1291 (Utah Ct. App. 1994) (stating that, “while attempting to point
out how the testimony of State witnesses conflicted with defendant’s
testimony,” the prosecutor improperly “asked defendant if
he believed that the police officer and another State witness were
lying,” but concluding that the misconduct was harmless because
“[d]efendant’s answer alerted the jury that there could be conflicts
in testimony based on reasons other than that one party was
lying”).
¶49 In cross‐examining Thompson, the prosecutor reviewed
Thompson’s and Friend’s testimonies about the time each witness
arose the two mornings they stayed at A.T.’s house in Salt Lake
City. After suggesting a discrepancy in the testimony, the prosecutor
stated, “So, one of those wasn’t true. Which one was the truth?
It was either you got up at 9:00, or you got up at 7:15. Or maybe it
was something else. Why don’t you tell us what happened.” The
prosecutor later returned to the issue and asked, “You think
[Friend is] wrong about that?”
¶50 The prosecutor’s questions were appropriate. Thompson’s
argument on appeal conflates inaccuracy with perjury. By asking,
“You think [Friend is] wrong about that?” and “[O]ne of those
wasn’t true. Which one was the truth?” the prosecutor was not
suggesting perjury or asking Thompson to comment on Friend’s
character or motivations. Rather, the prosecutor was highlighting
a perceived discrepancy in the testimony and asking Thompson to
clarify his testimony in relation to Friend’s testimony. See Taylor,
884 P.2d at 1298–99 (finding no plain error when a prosecutor’s
questioning served only to clarify testimony and “[a]ny inference
from the prosecutor’s questions that a previous witness lied [was]
slight”). Such questioning appropriately furthers the search for
truth in a criminal trial. See State v. Knight, 734 P.2d 913, 920 (Utah
1987) (“Rules that govern criminal proceedings are meant to ensure
20080546‐CA 27 2014 UT App 14
State v. Thompson
that a trial is a search for truth and that the verdict merits confidence.”).
13
b. The Prosecutor Did Not Improperly Vouch for A.T.
¶51 As discussed, courts grant considerable freedom during
closing arguments for counsel “to discuss fully from their standpoints
the evidence and the inferences and deductions arising
therefrom.” State v. Lafferty, 749 P.2d 1239, 1255 (Utah 1988)
(citation and internal quotation marks omitted). However, counsel
may not “assert[] personal knowledge of the facts in issue or
express[ a] personal opinion, being ‘a form of unsworn, unchecked
testimony [which] tend[s] to exploit the influence of the prosecutor’s
office and undermine the objective detachment that should
separate a lawyer from the cause being argued.’” State v. Parsons,
781 P.2d 1275, 1284 (Utah 1989) (third and fourth alterations in
original) (quoting Lafferty, 749 P.2d at 1255–56). In particular, a
prosecutor must avoid “‘vouching for the credibility of witnesses
and expressing his personal opinion concerning the guilt of the
accused.’” State v. Hopkins, 782 P.2d 475, 479 (Utah 1989) (quoting
United States v. Young, 470 U.S. 1, 18–19 (1985)).
¶52 Vouching poses two dangers. First, “such comments can
convey the impression that evidence not presented to the jury, but
known to the prosecutor, supports the charges against the defendant
and can thus jeopardize the defendant’s right to be tried solely
on the basis of the evidence presented to the jury.” Id. at 479–80
(citation and internal quotation marks omitted). Second, “the
prosecutor’s opinion carries with it the imprimatur of the Government
and may induce the jury to trust the Government’s judgment
13. Thompson also argues that the prosecutor improperly
misstated the evidence. To the extent the prosecutor did misstate
the evidence, any error was cured because the misstatement was
posed as a question to Thompson, who was given the opportunity
to correct it.
20080546‐CA 28 2014 UT App 14
State v. Thompson
rather than its own view of the evidence.” Id. at 480 (citation and
internal quotation marks omitted). Therefore, a prosecutor’s
statements about the veracity of a witness’s testimony are permissible
only if it is a conclusion that “the jury could have reasonably
inferred from the evidence.” See State v. Cummins, 839 P.2d 848, 854
(Utah Ct. App. 1992). In contrast, such comments are improper
when “the jury could reasonably believe that the prosecutor was
indicating a personal belief in the witness’[s] credibility.” State v.
Carter, 776 P.2d 886, 892 (Utah 1989) (citation and internal quotation
marks omitted).
¶53 During closing argument, the prosecutor made the following
statements: “You had an opportunity to view [A.T.]. You could see
her; you could see that she was forthright. I think you could see
that she’s the kind of person who would not make up a story like
this to get revenge at [Thompson]”; “[A.T.] told the truth to you
about Michael Thompson as well. She had nothing to gain by
lying”; and “If she were making up a story about it,” she could
have said other things, but “[A.T.] told you the truth. You have
every reason to believe her.” Thompson argues that these statements
constitute improper vouching for A.T.
¶54 In State v. Bakalov, 1999 UT 45, 979 P.2d 799, the defendant
raised a similar challenge after the prosecutor stated during closing
argument, “You know that [the victim] told the truth” and, “She
told the truth.” Id. ¶ 57. In rejecting the defendant’s argument that
these statements were impermissible testimonials to the credibility
of the victim, the Utah Supreme Court distinguished between
impermissible “express[ions of] personal opinion or assert[ions of]
personal knowledge of the facts” and “permissible deductions from
the evidence and . . . assertions about what the jury may reasonably
conclude from those deductions.” Id. The supreme court concluded
that the challenged comments “were not statements of personal
belief but, rather, assertions about what the jury should infer from
the evidence during their deliberations.” Id. The Bakalov court also
relied upon the fact that the prosecutor’s statements were made in
response to the defense’s theory that the victim had fabricated the
20080546‐CA 29 2014 UT App 14
State v. Thompson
rape allegations. Id. Under those circumstances, the court stated
that it was “very unlikely that a juror would consider these
statements to be factual testimony from the prosecutor.” Id.
(citation and internal quotation marks omitted); see also State v.
Bryant, 965 P.2d 539, 549–50 & n.10 (Utah Ct. App. 1998) (holding
that the prosecutor’s comparison of the victim to Aunt Bea from the
Andy Griffith Show and comment that “she didn’t lie once on the
stand,” made after defense counsel argued that the victim lied
throughout trial, was not misconduct (emphasis and internal
quotation marks omitted)).
¶55 In the present case, the prosecutor’s comments clearly reflect
a deduction from evidence in the record. The prosecutor expressly
referred the jurors to their own observations of A.T., arguing that
they “could see her” and “could see that she was forthright.”
Rather than expressing his personal opinion, the prosecutor stated,
“I think you could see that she’s the kind of person who would not
make up a story like this to get revenge at [Thompson].” While the
prosecutor also stated that A.T. “told the truth,” he explained the
basis of that deduction by pointing to the evidence that A.T. “had
nothing to gain by lying” and that if she had fabricated the story,
she could have made it more compelling. A fair interpretation of
the prosecutor’s statements is that the jurors should find that A.T.
told the truth because the evidence gave them “every reason to
believe her.” Furthermore, the prosecutor was responding to
Thompson’s theory that A.T. fabricated the allegations in retaliation
for Thompson’s interference with A.T.’s romantic involvement
with another adult. When considered in the context of the argument
and evidence, it is unlikely that a juror would have interpreted
the prosecutor’s statements about A.T. to be based on
personal opinion or knowledge of extra‐record facts. The prosecutor
argued that if the jurors considered the evidence and their own
observations and impressions of A.T., they would see that A.T. was
telling the truth. These comments were not improper.
20080546‐CA 30 2014 UT App 14
State v. Thompson
c. The Prosecutor Impermissibly Vouched for Specialist.
¶56 The prosecutor’s comments about Specialist’s testimony
highlight the difference between permissible argument and
impermissible vouching. “The test for improper vouching is
whether the jury could reasonably believe that the prosecutor was
indicating a personal belief in the witness’[s] credibility,” either by
“making explicit personal assurances of the witness’[s] credibility,”
or by “indicating that information not presented to the jury
supports the testimony.” Carter, 776 P.2d at 892 (citation and
internal quotation marks omitted).
¶57 In closing argument, the prosecutor stated, “We heard from
a witness, an expert, who came and testified on very short notice,
and I think he was credible, that Michael Thompson was cooking
his books.” Unlike the statements approved in Bakalov, see 1999 UT
45, ¶ 57, the prosecutor here did not urge the jurors to rely on the
evidence and their observations to deduce that Specialist was
credible. Instead, he shared his personal opinion on the matter by
explicitly stating, “I think he was credible . . . .” The prosecutor
reiterated his personal assurance of Specialist’s credibility during
his rebuttal argument, stating, “[Y]ou heard from [Specialist]—who
I think came across as a very reliable witness—that these log books
were cooked.” We agree with Thompson that this is improper
vouching. See United States v. Kerr, 981 F.2d 1050, 1053–54 (9th Cir.
1992) (reversing a defendant’s conviction for plain error where the
prosecutor impermissibly vouched for prosecution witnesses in
closing argument by stating, “I think [the witness] was very
candid” and, “I think [another witness] was candid. I think he was
honest”). The prosecutor’s indication of his personal belief in the
reliability of Specialist’s testimony was impermissible bolstering of
Specialist’s credibility that “carrie[d] with it the imprimatur of the
Government and may [have] induce[d] the jury to trust the
Government’s judgment rather than its own view of the evidence.”
See State v. Hopkins, 782 P.2d 475, 480 (Utah 1989) (citation and
internal quotation marks omitted).
20080546‐CA 31 2014 UT App 14
State v. Thompson
d. The Prosecutor Inappropriately Expressed His Opinion of
Friend’s Credibility.
¶58 Referring to Friend’s testimony during closing argument,
the prosecutor stated, “[Friend’s] story is all over the place. I think
you can tell he wasn’t being forthright with you.” Like the comments
on A.T.’s testimony, the prosecutor’s initial commentary that
Friend “wasn’t being forthright” was a permissible deduction from
the evidence in the record. Friend had admitted he was “not
positive” about the details of his testimony, and Friend had to
correct and explain his testimony on several occasions. However,
on rebuttal, the prosecutor argued to the jurors that they could
“disregard what happened with respect to the testimony of
[Friend],” stating, “I don’t think [he] was credible. I think he was
being dishonest with you.” These later statements were
“‘[e]xpressions of personal opinion’” and amounted to “‘a form of
unsworn, unchecked testimony’” that would “‘tend to exploit the
influence of the prosecutor’s office and undermine the objective
detachment that should separate a lawyer from the cause being
argued.’” See State v. Lafferty, 749 P.2d 1239, 1256 (Utah 1988)
(quoting ABA Standards for Criminal Justice § 3–5.8 (2d ed. 1980)).
Accordingly, these statements amount to prosecutorial misconduct
because they induce the jury to trust the prosecutor’s judgment
rather than to form their own view of the evidence. See Hopkins, 782
P.2d at 480.
e. The Prosecutor’s Statement that Thompson Was Lying Was
a Permissible Inference to Be Drawn from the Evidence.
¶59 The prosecutor also attacked Thompson’s testimony by
arguing that his “story” was “incredible” and that he was “lying,
lying” about the logs because he “has a lot at stake” and “has
everything to gain by lying.” This court has suggested that the law
is unclear on whether calling a defendant a liar is improper. See
State v. Otterson, 2008 UT App 139, ¶ 24, 184 P.3d 604 (assuming,
without deciding, that it was error for the State to call the defendant
a liar during closing argument, but holding that the error was
20080546‐CA 32 2014 UT App 14
State v. Thompson
harmless because it could be fairly inferred from the evidence that
the defendant had lied); State v. Johnson, 2007 UT App 184,
¶¶ 45–46, 163 P.3d 695 (same); id. (collecting cases on the split of
authority among jurisdictions on whether it is improper for the
prosecutor to call a criminal defendant a liar during closing
argument). However, subsequent cases have made clear that a
prosecutor’s statement that a witness is lying is analyzed under the
same test as any other comment on the credibility of a witness:
To be clear, the evil to be guarded against in such
cases is that a juror would consider [such] statements
to be factual testimony from the prosecutor. Consequently,
a prosecutor engages in misconduct when
he or she expresses personal opinion or asserts
personal knowledge of the facts. However, a prosecutor
may draw permissible deductions from the
evidence and make assertions about what the jury
may reasonably conclude from those deductions.
State v. Davis, 2013 UT App 228, ¶ 35, 311 P.3d 538 (alteration in
original) (citations and internal quotation marks omitted).
¶60 For example, in State v. Bragg, 2013 UT App 282, we held
that a prosecutor’s statement was improper, though harmless
under the facts of that case, when he stated during cross‐examination
of the defendant, “‘Would it surprise you that I don’t believe
a word you just told me?’” See id. ¶¶ 25–26. In contrast, in State v.
Lebeau, 2012 UT App 235, 286 P.3d 1, cert. granted, 298 P.3d 69 (Utah
2013), we rejected a defendant’s claim of misconduct despite the
prosecutor’s statement during closing argument that the defendant
had lied to his girlfriend in a telephone call from jail. Id. ¶¶ 9, 20.
We held that the prosecutor’s comment was a reasonable inference
based on the evidence. Id. ¶ 20; see also Davis, 2013 UT App 228,
¶¶ 31–36 (finding no plain error when prosecutor asked defendant
whether he had lied when he made several statements); State v.
Cummins, 839 P.2d 848, 854 (Utah Ct. App. 1992) (concluding that
“the prosecution’s reference to defendant as a liar, while intemper‐
20080546‐CA 33 2014 UT App 14
State v. Thompson
ate, only disclosed what the jury could have reasonably inferred
from the evidence”).
¶61 Here, the jury would not have viewed the prosecutor’s
statements as expressions of personal opinion or assertions of
personal knowledge. A fair inference from Thompson’s confused
testimony and its apparent inconsistency with that of A.T., Friend,
and Specialist was that Thompson lied about the time he left Salt
Lake City on the morning of the offense. Likewise, the evidence
fairly supported the prosecutor’s statement that Thompson had a
motive to lie because he had everything to lose if he were convicted.
f. The Prosecutor Impermissibly Offered Unchecked Expert
Opinion and Argued Matters Not in Evidence.
¶62 The prosecutor did not limit his attack on Thompson’s
credibility to what could be inferred from the record. The prosecutor’s
closing argument also included his opinion on how to use
body language as a lie detection method:
And I hope you observed him. I hope you observed
his body language. It was very negative. [Thompson]
had his hands out before him like this, blocking. I
think that’s a classic sign of someone who’s hiding.
And if you noticed, when I would ask him a question
of particular significance about the acts he performed
on [A.T.], he would shut his eyes and shake his head
‘no.’ To me that’s a classic sign of his dishonesty. He
couldn’t look me in the eyes and tell me the answer
to the question.
These comments were improper and amounted to prosecutorial
misconduct.
¶63 In closing arguments, a prosecutor may draw “reasonable
inferences based upon the demeanor of the witness.” Cummins, 839
20080546‐CA 34 2014 UT App 14
State v. Thompson
P.2d at 854. However, “counsel is precluded from arguing matters
not in evidence.” State v. Hopkins, 782 P.2d 475, 478 (Utah 1989).
Furthermore, “a prosecutor engages in misconduct when he or she
expresses personal opinion or asserts personal knowledge of the
facts.” State v. Bakalov, 1999 UT 45, ¶ 57, 979 P.2d 799.
¶64 At no point during Thompson’s trial did any expert testify
regarding the physical gestures or verbal cues that may generally
indicate that a witness is being untruthful. The prosecutor’s
statements consisted of improper factual testimony. See id. Furthermore,
by instructing the jurors as an expert on how to interpret
Thompson’s body language, the prosecutor impermissibly
intruded on the jurors’ role as the fact‐finders. Cf. State v. Graham,
2011 UT App 332, ¶ 32, 263 P.3d 569 (“It is within the province of
the jury, as the finder of fact, to make credibility determinations.”).
14 Consequently, the prosecutor’s statements constituted
14. Furthermore, this court has held that this type of body language
interpretation can constitute reversible error even when it has been
introduced through a trial witness. See State v. Vail, 2002 UT App
176, ¶ 15, 51 P.3d 1285 (reversing the defendant’s conviction of
child sexual abuse because a detective’s “testimony as to whether
the [victims] exhibited those [body language] indicators that [the
detective] equates with trustworthiness [was] inadmissible” (citing
Utah R. Evid. 608(a))); cf. State v. Rimmasch, 775 P.2d 388, 392 (Utah
1989) (holding that one witness may not testify as to the credibility
of statements made by another person). Other jurisdictions have
rejected attempts to instruct the jury on how to assess credibility
from a witness’s body language. See, e.g., United States v. Williams,
133 F.3d 1048, 1052–53 (7th Cir. 1998) (reversing the defendant’s
conviction because, among other reasons, a special agent
“purport[ed] to be a human lie detector” by describing the
defendant’s body language during an interview); State v.
Christiansen, 163 P.3d 1175, 1180–81 (Idaho 2007) (holding that the
prosecutor’s attempt to elicit an opinion from a police interviewer
(continued...)
20080546‐CA 35 2014 UT App 14
State v. Thompson
misconduct. See Bakalov, 1999 UT 45, ¶ 58 (“It is error for a prosecutor
to bolster his or her case by implying ‘that a jury has an
obligation to convict a defendant on some basis other than solely
on the evidence before it.’” (quoting State v. Andreason, 718 P.2d
400, 402 (Utah 1986) (per curiam))).
g. The Prosecutor’s Argument Regarding Thompson’s Presence
in Laramie, Wyoming, Was a Permissible Inference
from the Evidence.
¶65 During closing argument, the prosecutor also stated, “You
never heard any testimony from [Thompson] that he had never
gone through Laramie. [A.T.] talked about oral sex that occurred
in Laramie, Wyoming.” Thompson argues that this commentary
establishes that the prosecutor misrepresented evidence during
closing argument because when asked on cross‐examination if he
had had oral sex with A.T. in Laramie, Thompson testified, “No.
Personally, I don’t go through Laramie, Wyoming.”
¶66 In context, we are not convinced that the prosecutor
misrepresented the evidence. Immediately after making his initial
14. (...continued)
about the defendant’s truthfulness based on his body language and
demeanor was “clearly improper”); Tolliver v. State, 922 N.E.2d
1272, 1278–79 (Ind. Ct. App. 2010) (disapproving of “body
language testimony” and holding that the trial court erred in
finding police officer was a “skilled witness” who was “somehow
uniquely qualified” to assess the defendant’s truthfulness based on
body language (internal quotation marks omitted)). But see People
v. Theis, 2011 IL App (2d) 091080, ¶¶ 51–59, 963 N.E.2d 378
(concluding that prosecutor’s discussion of witness’s body
language was invited by defense counsel’s initial discussion of
witness’s body language and was based on the evidence, which
included an interviewer’s statement describing the witness’s
conduct in an interview and the videotape of the interview).
20080546‐CA 36 2014 UT App 14
State v. Thompson
statement that the jury had not heard testimony that Thompson
had never traveled through Laramie, the prosecutor clarified that
although Thompson generally takes a travel route that does not
include Laramie, the jury “didn’t have any testimony that’s the
route that Mr. Thompson always takes, that he’s never been in
Laramie.” Although the initial statement could be interpreted as
inconsistent with Thompson’s trial testimony, the prosecutor
quickly acknowledged Thompson’s testimony and argued only
that Thompson had not explicitly denied ever traveling through
Laramie. In the context of the evidence and the closing argument
in its entirety, the prosecutor’s statement falls within the “considerable
latitude” given to counsel in making closing argument and
was a permissible inference “of the evidence and the deductions
arising therefrom.” See Bakalov, 1999 UT 45, ¶ 56 (citation and
internal quotation marks omitted).
h. The Prosecutor Impermissibly Appealed to the Jurors’
Passions and Prejudices.
¶67 A prosecutor may not “‘make arguments calculated to
appeal to the prejudices of the jury.’” State v. Todd, 2007 UT App
349, ¶ 19, 173 P.3d 170 (quoting ABA Standards for Criminal
Justice: Prosecution Function and Defense Function § 3–5.8(c)
(1993)). Thus, a prosecutor’s comments are improper if they invoke
the passion and prejudice of the jury by “asking jurors to put
themselves in the victim’s place,” id., stating “how a victim would
have testified had he or she been alive to testify,” id., suggesting
that the jury should find the defendant guilty “out of vengeance or
sympathy for the victim,” State v. Campos, 2013 UT App 213, ¶ 52,
309 P.3d 1160, or “contending that the jury has a duty to protect the
alleged victim—to become her partisan,” State v. Wright, 2013 UT
App 142, ¶ 41, 304 P.3d 887. “Furthermore, ‘reference to the jury’s
societal obligation’ is inappropriate when it suggests that the jury
base its decision on the impact of the verdict on society and the
criminal justice system rather than the facts of the case.” Campos,
2013 UT App 213, ¶ 51 (quoting State v. Dunn, 850 P.2d 1201, 1224
(Utah 1993)); see also Andreason, 718 P.2d at 402; State v. Smith, 700
20080546‐CA 37 2014 UT App 14
State v. Thompson
P.2d 1106, 1112 (Utah 1985). Such argument “diverts [the jurors’]
attention from their legal duty to impartially apply the law to the
facts in order to determine if [the defendant] had committed the
crimes . . . for which he was on trial.” See Wright, 2013 UT App 142,
¶ 41.
¶68 During his closing argument, the prosecutor indicated that
“this is the kind of crime that occurs very often,” and toward the
end of his argument he stated, “[A.T. is] going to be dealing with
the emotional and psychological scarring[] of this for a long time.
She’s going to have to deal with it for the rest of her life . . . .”
Additionally, the prosecutor told the jury, “[Y]our [guilty] verdict
is vital, because it sends a message to [Thompson] that what he did
was wrong, that you know that what he did was wrong, and that
you’re not going to stand for it. That the people of Utah won’t
stand for that kind of crime.”
¶69 The prosecutor’s comments regarding the long‐term effects
of these crimes on A.T. were “a self‐evident proposition well
within the common understanding of lay jurors.” See State v.
Cummins, 839 P.2d 848, 854 n.12 (Utah Ct. App. 1992). Such selfevident
propositions have been held to be either permissible, see id.
at 853–54 & n.12, or harmless, see State v. Pearson, 943 P.2d 1347,
1352–53 (Utah 1997) (concluding that although the prosecutor
referred to facts outside the evidence, the reference was harmless
because the comments “addressed matters that are within the
general realm of human experience and common sense”). Furthermore,
the comments were not likely to inflame the passions of the
jurors. The statement that A.T. would deal with the effects of the
alleged crimes for the rest of her life was unlike the statements we
have found improper in other cases. See Campos, 2013 UT App 213,
¶ 52 (deeming improper a reference to the defendant’s “‘stealing
from [the victim] his ability to run, his ability to bike, his ability to
walk his daughter down the aisle’”); Wright, 2013 UT App 142, ¶ 41
(deeming improper the statement “‘[y]ou have the power to make
that [(the abuse)] stop’” (alteration in original)); Todd, 2007 UT App
349, ¶ 21 (deeming improper “several impassioned references to
20080546‐CA 38 2014 UT App 14
State v. Thompson
what [the victim] ‘might have told [the jury]’ had she been alive to
testify” (second alteration in original)). Here, the prosecutor’s
comments simply acknowledged the likely long‐term effect of the
alleged crime on A.T. without calling for the jurors to protect A.T.
from future offenses, place themselves in her position, or seek
revenge or otherwise act on their sympathy for A.T.
¶70 However, the prosecutor’s statement was made in conjunction
with an unsupported factual assertion that “this is the kind of
crime that occurs very often,” and with an admonition that the jury
should use its verdict to send a message to Thompson. Asking the
jury to send a message to the defendant may not be as egregious as
asking the jury to send a message to other potential criminals. See
Andreason, 718 P.2d at 402 (deeming improper the statements that
the type of criminal behavior in question was “pervasive” and that
“everytime we have a jury trial, people are watching. People are
watching to see how we administer justice . . . . [T]hese two
Defendants . . . are not the only ones we need to be concerned
about”); United States v. Sanchez, 659 F.3d 1252, 1256–57 (9th Cir.
2011) (holding that the prosecutor’s request that the jury “send a
memo” to other drug traffickers urged the jury to convict for
reasons irrelevant to the defendant’s guilt or innocence); State v.
Woodard, 2013 ME 36, ¶¶ 16, 32–36, 68 A.3d 1250 (holding that the
trial court’s failure to intervene when the prosecutor requested that
the jury “send a message” to other would‐be criminals with a
guilty verdict was plain error). However, the prosecutor’s argument
that a guilty verdict would send a message that the people of
Utah would not stand for such crimes does suggest that the jury
should “find [the defendant] guilty out of vengeance.” See Campos,
2013 UT App 213, ¶ 52. The statement was thus impermissibly
calculated to inflame the passions of the jurors and diverted the
attention of the jurors from their duty to impartially apply the law
to the facts of this case. See Wright, 2013 UT App 142, ¶ 41. Such
argument is inappropriate.
20080546‐CA 39 2014 UT App 14
State v. Thompson
2. Deficient Performance
¶71 Thompson’s trial counsel performed deficiently by failing
to object to or otherwise challenge the repeated instances of
prosecutorial misconduct. The prosecutor’s unchecked testimony
about Thompson’s body language was particularly egregious and
should have drawn some response. Because the critical issue before
the jury was whether Thompson or A.T. was telling the truth, we
can conceive of no reasonable trial strategy that would include
failing to object to this misconduct. See State v. Larrabee, 2013 UT 70,
¶ 19. While the other instances of prosecutorial misconduct,
standing alone, may not have required an objection from trial
counsel, the repeated impropriety required some response. Several
of the instances of prosecutorial misconduct involved witness
credibility, an issue which was central to this case. See infra
¶¶ 80–81, 84. Left unchecked, the prosecutor was able to bolster
Specialist’s testimony, undermine Friend’s testimony, and inflame
the passions of the jurors against Thompson. Accordingly, trial
counsel performed deficiently by not objecting, responding in
rebuttal, or requesting curative instructions relating to these
repeated instances of prosecutorial misconduct. See State v. Ison,
2006 UT 26, ¶ 32, 135 P.3d 864 (concluding that trial counsel
performed deficiently when there was no strategic reason for
counsel’s actions).
II. Cumulative Harm
¶72 We have concluded that trial counsel’s performance was
deficient for failing to investigate and challenge Specialist’s
qualifications and the foundation for the PC*Miler report, for
failing to object to Specialist’s testimony as hearsay, and for failing
to object to repeated instances of prosecutorial misconduct during
closing argument. We now consider the second prong of the
ineffective assistance of counsel analysis: whether but for trial
counsel’s deficient performance there is a reasonable probability
that the outcome of trial would have been different. See Strickland
v. Washington, 466 U.S. 668, 694 (1984); State v. Hales, 2007 UT 14,
20080546‐CA 40 2014 UT App 14
State v. Thompson
¶ 68, 152 P.3d 321. Such a reasonable probability exists “when the
appellate court’s confidence in the verdict is undermined.” State v.
Whittle, 1999 UT 96, ¶ 17, 989 P.2d 52. In our analysis of this issue,
we consider the cumulative effect of trial counsel’s ineffectiveness.
See State v. Campos, 2013 UT App 213, ¶¶ 61, 72, 309 P.3d 1160
(reversing based on the cumulative prejudicial effect of trial
counsel’s deficient performance).
¶73 “Under the cumulative error doctrine, we will reverse only
if the cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.” State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993) (omission in original) (citation and internal
quotation marks omitted). “While we more readily find errors to be
harmless when confronted with overwhelming evidence of the
defendant’s guilt, we are more willing to reverse when a conviction
is based on comparatively thin evidence.” State v. King, 2010 UT
App 396, ¶ 35, 248 P.3d 984 (citation omitted); see also Strickland, 466
U.S. at 695–96. Likewise, courts are more likely to reverse a jury
verdict if the pivotal issue at trial was credibility of the witnesses
and the errors went to that central issue. See, e.g., State v. Templin,
805 P.2d 182, 188–89 (Utah 1990) (deeming prejudicial counsel’s
failure to investigate and call a witness who would have undermined
victim’s testimony and explaining that because the testimony
of the uncalled witness “affects the credibility of the only
witness who gave direct evidence of defendant’s guilt, the testimony
affects the ‘entire evidentiary picture’” (quoting Strickland,
466 U.S. at 696)); State v. Rimmasch, 775 P.2d 388, 407–08 (Utah 1989)
(concluding, but not in the context of an ineffective assistance
claim, that there was a reasonable likelihood of a more favorable
outcome when the case “hinged on a determination of credibility,”
there was no corroborating physical evidence, and the victim’s
version of events was bolstered principally by inadmissible expert
testimony), superseded by rule on other grounds as stated in State v.
Maestas, 2012 UT 46, 299 P.3d 892.
¶74 We begin our assessment of the cumulative impact of trial
counsel’s deficient performance with the failure to investigate or
20080546‐CA 41 2014 UT App 14
State v. Thompson
object to Specialist’s qualifications and the foundation for the
PC*Miler report. We are assisted in this task by the trial court’s
findings entered after the 23B hearing that Specialist “lacked the
requisite knowledge, skill, experience, training and education to
qualify as an expert for the PC*Miler program”; “did not generate
the printout he used at trial”; and “was not physically present
when the printout was generated.” Based on these findings, we
conclude that proper inquiry by trial counsel would have revealed
deficiencies in Specialist’s qualifications and the foundation for the
PC*Miler report. Notwithstanding these failings, the State argues
that Specialist’s testimony and the PC*Miler report would have
been admissible even if challenged at trial.
¶75 The State first contends that Specialist was not offered as an
expert in the PC*Miler software but as “a transportation specialist
with expertise in the area of driver’s logs and hours of service in
the trucking industry.” If Specialist’s testimony had been confined
to explaining the use of driver’s logs and the limitations on truck
driver hours generally, the State’s argument might be persuasive.
However, Specialist opined not only on those requirements but on
Thompson’s compliance with them. His opinion that Thompson
had cooked his books and that the travel times recorded in his
driver’s logs were not possible was formed based on the PC*Miler
report that he had not prepared and was not qualified to testify
about.
¶76 Next, the State contends that Specialist was entitled to rely
upon the report because the PC*Miler program did not require
specialized training to operate and Specialist used it routinely
throughout his career. Unlike the free online programs such as
MapQuest that the State uses as a comparison, the PC*Miler
program is a commercial product developed specifically for the
trucking industry that allows the user to customize various settings
and to modify other features affecting the results. Specialist
admitted that he had never used those aspects of the PC*Miler
program and that he did not know what settings were used to
generate the report he relied upon at trial. Under these circum‐
20080546‐CA 42 2014 UT App 14
State v. Thompson
stances, he was not qualified to offer an opinion based upon the
PC*Miler report used at trial.15
¶77 We now turn to the prejudicial effect, if any, that Specialist’s
testimony based on the inadmissible report had on the outcome of
the trial. Thompson argues that “[t]he inadmissible evidence went
to the central issue of credibility and unfairly tipped the balance
against [him].” The State disagrees and claims that Specialist’s
testimony served only to rebut Thompson’s statements and that
even without this testimony, there was “sufficient reason for the
jury to question the veracity of [Thompson’s] version of events.”
The State points to the inconsistency between Thompson’s and
Friend’s testimonies about the time Thompson awoke on the
morning of the alleged crimes, as well as the lack of supporting
documentation to verify the accuracy of the driver’s logs. The State
also contends that trial counsel “essentially neutralized Specialist’s
testimony through an effective cross‐examination,” thereby
minimizing any prejudicial impact.
¶78 First, it is not surprising that Friend and Thompson could
not be certain of the times and sequences of activities they engaged
in on a morning approximately six years before their trial testimony.
That is why the driver’s logs and Thompson’s testimony
that the logs accurately reported the time he left Salt Lake City
were critical pieces of evidence for the defense. Indeed, A.T. also
had inconsistencies in her statements. She first reported the
allegations through a written statement given to the police.
However, in a subsequent interview with the police, she did not
mention the sexual allegations against Thompson and even stated
that nothing happened, though she explained at trial that she
thought the interviewer had been asking about the first morning
15. The State also argues that the prosecutor could have simply
called the preparer of the report to testify had Thompson’s trial
counsel objected to Specialist’s testimony based on the report.
However, this assertion is speculative and not supported by any
citation to the record.
20080546‐CA 43 2014 UT App 14
State v. Thompson
Thompson was at her house. Second, while trial counsel’s impromptu
cross‐examination of Specialist was skillful, it was not a
substitute for preventing Specialist from testifying in the first
instance. Trial counsel established through cross‐examination that
Specialist did not know the assumptions underlying the report, but
the jury was still left with the impression that a computer program
routinely used by the Utah Highway Patrol indicated that the times
stated in Thompson’s driver’s logs were not physically possible
and proved that Thompson fabricated his driver’s log entries to
avoid being cited for regulatory violations. As a result, Specialist’s
testimony effectively undermined the defense theory that the
driver’s logs established that Thompson was on his way to
Wisconsin at the time A.T. claims he had oral sex with her.
¶79 In State v. Workman, 2005 UT 66, 122 P.3d 639, the Utah
Supreme Court used two considerations to guide its decision on
the prejudicial impact of a trial court’s error in admitting lab
reports as proof that certain substances seized at a crime scene
were methamphetamine and methamphetamine precursors
without making the analyst available for cross‐examination. Id.
¶¶ 26–27. Each consideration turned on the centrality of the
inadmissible evidence to the state’s case. See id. First, the court
noted that it was not necessary to prove that controlled substances
or precursors were present to establish the charged crime—that the
premises were being used as a clandestine laboratory. Id. ¶ 26.
Second, the court determined that there was “adequate independent
evidence,” including equipment and other ingredients, to prove
the defendant was operating a methamphetamine lab without
considering the erroneously admitted toxicology reports and
testimony. Id. ¶ 27. Accordingly, the Workman court held that the
erroneous admission of the toxicology reports was harmless. Id.
¶ 28.
¶80 Here, the State was not required to prove the inaccuracy of
Thompson’s driver’s logs to prove forcible sodomy, nor, as the
State notes, was it required to prove the precise time of any offense.
Cf. id. ¶ 26. Nevertheless, the State was required to prove that
20080546‐CA 44 2014 UT App 14
State v. Thompson
Thompson, in fact, engaged in two nonconsensual acts of sodomy
with A.T. See Utah Code Ann. § 76‐5‐403(1), (2) (LexisNexis 2003)
(current version at Utah Code Ann. § 76‐5‐403 (LexisNexis Supp.
2013)). Because there were no witnesses to or physical evidence of
the offense, the State’s case was dependent upon the jury’s
determination of whether A.T. or Thompson was telling the truth.
Specialist’s testimony effectively rebutted Thompson’s use of the
driver’s logs to establish that A.T.’s allegations could not be true
with respect to the timing of the offense. Specialist testified that the
travel time reflected in a particular entry was physically impossible
and advanced the prosecution’s theory that none of Thompson’s
entries could be trusted because he “cooked the books” to deceive
trucking regulators. In context, Specialist’s testimony and the
PC*Miler report provided evidence on the central issue of who was
telling the truth.
¶81 Furthermore, unlike in Workman, there was not ample
evidence of Thompson’s guilt in the absence of Specialist’s
testimony. See 2005 UT 66, ¶ 27. As discussed, there was no
physical evidence of the offense or any witnesses to it. A.T. waited
over a year and a half to report the incident to authorities, and
when she first reported it, her allegations were arguably inconsistent
as to whether the charged crimes occurred. The evidence
included testimony that A.T. was a person of “questionable”
honesty and had made up stories in the past, and that her motive
for doing so in this instance was retaliation for Thompson’s
interference with A.T.’s sexual relationship with another adult
male. Similarly, her allegations of the uncharged sexual conduct
involving Thompson, including the incidents in Wisconsin and
Wyoming, were unsupported by physical evidence or third party
corroboration and were also belatedly reported. It is also relevant
to our analysis that the prosecutor relied heavily on Specialist’s
testimony and the PC*Miler report for his statement during closing
argument that Thompson lied.
¶82 However, we need not decide whether trial counsel’s
deficient performance in not investigating or objecting to Special‐
20080546‐CA 45 2014 UT App 14
State v. Thompson
ist’s qualifications or the foundation for the PC*Miler report
standing alone was harmful. Trial counsel also performed deficiently
by failing to object to numerous instances of prosecutorial
misconduct during closing argument, including vouching for the
testimony of Specialist, expressing his personal opinion regarding
Friend’s credibility, instructing the jurors on how to determine
credibility based on body language, and appealing to the jurors’
passions and prejudices. Thompson argues that the prosecutor’s
misconduct substantially affected his right to a fair trial and
improperly shaped the jury’s interpretation of the evidence.
¶83 Our assessment of the harmful effect of these comments
begins with the premise that “[a] criminal conviction is not to be
lightly overturned on the basis of the prosecutor’s comments
standing alone.” State v. Todd, 2007 UT App 349, ¶ 31, 173 P.3d 170
(alteration in original) (citation and internal quotation marks
omitted). Instead, improper comments by the prosecutor require
reversal only when they “substantially affected the defendant’s
right to a fair trial.” Id. (citation and internal quotation marks
omitted). That threshold is met when “‘the likelihood of a different
outcome [is] sufficiently high to undermine [our] confidence in the
verdict.’” Id. (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)).
In assessing the prejudicial effect of prosecutorial misconduct, “we
must view those statements ‘in context of the arguments advanced
by both sides as well as in context of all the evidence.’” State v.
Lebeau, 2012 UT App 235, ¶ 20, 286 P.3d 1 (quoting State v. Bakalov,
1999 UT 45, ¶ 56, 979 P.2d 799), cert. granted, 298 P.3d 69 (Utah
2013). As part of that analysis, we look at the evidence of the
defendant’s guilt. State v. Troy, 688 P.2d 483, 486 (Utah 1984). “If
proof of defendant’s guilt is strong, the challenged conduct or
remark will not be presumed prejudicial,” but when the evidence
is “less compelling” we “will more closely scrutinize the conduct.”
Id. (citation and internal quotation marks omitted). “If the conclusion
of the jurors is based on their weighing conflicting evidence or
evidence susceptible of differing interpretations, there is a greater
likelihood that they will be improperly influenced through remarks
of counsel.” Id.; see also State v. Andreason, 718 P.2d 400, 403 (Utah
20080546‐CA 46 2014 UT App 14
State v. Thompson
1986) (per curiam) (“When the evidence in the record is circumstantial
or sufficiently conflicting, jurors are more likely influenced
by an improper argument. In such instances, they are more
susceptible to the suggestion that factors other than the evidence
before them should determine a defendant’s guilt or innocence.”).
We also examine “whether defense counsel addressed the improper
statements during closing argument and the prosecution
then ‘restricted his []rebuttal comments to the evidence and made
no further mention of’ the improper comments,” and “whether the
trial court gave a curative instruction admonishing the jury to
‘dispassionately consider and weigh the evidence’ and instructing
them ‘not to consider the statements of counsel as evidence.’” Todd,
2007 UT App 349, ¶ 34 (quoting State v. Dunn, 850 P.2d 1201, 1225
(Utah 1993)).
¶84 Here, the State’s case relied almost entirely upon A.T.’s
allegations, which Thompson denied. Thus, the jurors were tasked
with weighing that conflicting evidence and deciding who was
telling the truth. The prosecutor’s improper vouching for Specialist,
improper expression of opinion about Friend’s credibility, and
improper statements about Thompson’s body language bore
directly on this pivotal function of the jury. Furthermore, trial
counsel failed to “address[] the improper statements during closing
argument,” and the prosecution did not thereafter “restrict[] his
[]rebuttal comments to the evidence and [make] no further mention
of the improper comments.” See id. (citation and internal quotation
marks omitted). In fact, one of the prosecutor’s two improper
statements vouching for Specialist and the statements of personal
opinion regarding Friend occurred during the prosecutor’s rebuttal
arguments.
¶85 The trial court did provide an instruction admonishing the
jury to “conscientiously and dispassionately consider and weigh
the evidence” and “reach a just verdict regardless of what the
consequences of such verdict may be,” and instructing them not to
consider or be influenced by “any statement of counsel as to facts
not shown in evidence” or “any statements of counsel as to what
20080546‐CA 47 2014 UT App 14
State v. Thompson
the evidence is, unless it is stated correctly.” However, this
instruction was provided before closing arguments, and trial
counsel did not ask the trial court to remind the jury of these
obligations during or immediately after closing arguments. See id.
While this instruction may be sufficiently curative in some
situations, we do not believe that is the case here due to the lessthan‐
overwhelming evidence supporting the verdict, the pervasiveness
of the prosecutor’s misconduct, and the centrality of the issue
of credibility to this case.
¶86 When the cumulative impact of trial counsel’s deficiencies
with respect to Specialist, the PC*Miler report, and the prosecutor’s
misconduct are considered, our confidence in the verdict is
undermined. We are convinced that there is a reasonable probability
that but for trial counsel’s deficient performance, the outcome
of trial would have been different. See State v. Larrabee, 2013 UT 70,
¶ 37. Accordingly, we reverse Thompson’s convictions and remand
for a new trial.
III. Issues on Remand
¶87 Because it will likely arise again on remand, we next address
Thompson’s challenge to the trial court’s jury instruction regarding
lack of consent (Instruction 19).16 See State v. James, 819 P.2d 781, 795
(Utah 1991) (“Issues that are fully briefed on appeal and are likely
to be presented on remand should be addressed by this court.”).
On appeal, Thompson claims that Instruction 19 is an incorrect
statement of the law.17
16. Thompson also challenges the omission of the mens rea element
from the jury instruction on forcible sodomy. Because we are
confident that any omission regarding the mental state required to
prove forcible sodomy will not be repeated on remand, we do not
address Thompson’s challenge further.
17. Instruction 19 states,
(continued...)
20080546‐CA 48 2014 UT App 14
State v. Thompson
¶88 A jury instruction must inform the jury “what each element
is and that each must be proved beyond a reasonable doubt.” State
v. Laine, 618 P.2d 33, 35 (Utah 1980) (emphasis omitted). Lack of
consent is an element of forcible sodomy. See Utah Code Ann.
§ 76‐5‐403(2) (LexisNexis 2003) (current version at Utah Code Ann.
§ 76‐5‐403 (LexisNexis Supp. 2013)). Section 76‐5‐406 of the Utah
Code states that lack of consent is established by “any of the
following circumstances” and then lists several sets of circumstances,
three of which were included in the instruction. See id. § 76‐
5‐406. But Instruction 19 deviates from the statute by also stating,
“You are not prevented from determining that circumstances
outside those listed above amount to lack of consent. You may also
apply the common, ordinary meaning of lack of consent to the
totality of the facts and circumstances in making your determination
regarding lack of consent.” Thompson argues that this
17. (...continued)
An act of sodomy is without consent of a person
under any, all or a combination of the following
circumstances:
1. The victim expresses lack of consent
through words or conduct; or
2. The victim was 14 years of age or older, but
younger than 18 years of age, and the actor was more
than three years older than the person and enticed or
coerced the victim to submit or participate.
3. The victim was younger than 18 years of
age and at the time of the offense the actor occupied
a position of special trust in relation to the person.
You are not prevented from determining that
circumstances outside those listed above amount to
lack of consent. You may also apply the common,
ordinary meaning of lack of consent to the totality of
the facts and circumstances in making your
determination regarding lack of consent.
20080546‐CA 49 2014 UT App 14
State v. Thompson
language is incorrect and improperly allowed the jury to consider
factors outside the statutory definition of lack of consent.
¶89 The Utah Supreme Court has held that “whether . . . consent
was present or absent in any given case is factual in nature, and is
thus a matter for determination by the finder of fact.” State v.
Herzog, 610 P.2d 1281, 1283 (Utah 1980). The statute defining lack
of consent for sexual offenses provides a list of “specific circumstances
which will rebut an allegation of consent.” In re J.F.S., 803
P.2d 1254, 1257–58 (Utah Ct. App. 1990). In State v. Salazar, 2005 UT
App 241, 114 P.3d 1170, we considered the effect of that statutory
list on the State’s ability to prove lack of consent in a prosecution
for forcible sodomy.
¶90 In Salazar, the defendant entered the victim’s bed where she
and her boyfriend were sleeping and began to perform oral sex on
her. Id. ¶ 2. When the victim first awoke, she presumed it was her
boyfriend and did not resist. Id. Eventually, however, the victim
realized it was not her boyfriend and pushed the defendant off the
bed. Id. The defendant fled the house, the victim reported the
incident to the police, and the defendant was arrested and charged
with forcible sodomy. Id. ¶¶ 2–3. Before trial, the defendant moved
to dismiss on the ground that the victim’s consent was established
as a matter of law because the facts did not meet any of the
circumstances establishing lack of consent listed in the statute. Id.
¶ 5. We rejected the defendant’s argument, explaining that the
statute “sets out a list of circumstances under which there is
deemed to be no consent to sexual activity as a matter of law” but
does not preclude the fact‐finder from “determining that circumstances
outside those defined in [the statute] may still amount to
lack of consent in any particular case.” Id. ¶¶ 6, 8–9. We thus
concluded that the evidence was sufficient to establish lack of
consent under “the common, ordinary meaning of lack of consent.”
Id. ¶ 10. Accordingly, Instruction 19 correctly indicates that the jury
is “not prevented from determining that circumstances outside
those listed [in the statute] amount to lack of consent” and that the
20080546‐CA 50 2014 UT App 14
State v. Thompson
jury can consider whether the totality of the evidence supports a
finding of lack of consent under its common, ordinary meaning.

Outcome: ¶91 Trial counsel performed deficiently by failing to investigate
or challenge the qualifications of the State’s rebuttal witness and
the foundation for the PC*Miler report, by failing to object to the
rebuttal witness’s testimony, and by failing to object to repeated
instances of prosecutorial misconduct during closing argument.
The cumulative effect of these errors undermines our confidence in
the verdict and convinces us that, but for trial counsel’s deficient
performance, there is a reasonable probability that the outcome
would have been different. As a result, we reverse Thompson’s
convictions and remand for a new trial.
20080546‐CA 51 2014 UT App 14

Plaintiff's Experts:

Defendant's Experts:

Comments: