State v. Woodard

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 162
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ERIC D. WOODARD,
Defendant and Appellant.
Opinion
No. 20120927-CA
Filed July 10, 2014
Second District Court, Ogden Department
The Honorable Mark R. DeCaria
No. 101900071
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
STEPHEN L. ROTH and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
ORME, Judge:
¶1 A jury convicted Eric D. Woodard (Defendant) of possession
of a controlled substance with intent to distribute, a second degree
felony. He now appeals that conviction, arguing that fingerprint
evidence was improperly admitted and that the expert witness who
testified about the fingerprint evidence was unreliable. We affirm.

State v. Woodard
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence only
as necessary to understand issues raised on appeal.” State v.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
3. “Obama ecstasy” is not actually ecstasy, but an ecstasy mimic
that contains benzylpiperazine, a Schedule I controlled substance.
See Utah Code Ann. § 58-37-4(2)(a)(i)(I) (LexisNexis Supp. 2013).
20120927-CA 2 2014 UT App 162
BACKGROUND2
The Search
¶2 In 2009, North Ogden police obtained a warrant to search
Defendant’s home but did not execute it immediately. Police
officers went to Defendant’s residence eight days later in response
to a noise complaint. The officers detained Defendant outside while
they attempted to get inside to search the home. However, a group
of eight to ten house guests, several of whom were visiting from
California, remained inside the home and “weren’t cooperating
with the efforts to serve the warrant.” After several hours and
multiple attempts to lure the guests out of the home, the police
forcibly entered and began to search the house.
¶3 During the search, officers discovered, among other things,
a small bag of marijuana, a digital scale, and cigarette rolling
papers. Defendant stipulated at trial that these items belonged to
him.
¶4 Officers also found a large plastic bag full of pills in a
shoebox in Defendant’s closet. The bag contained 478 pills of
“Obama ecstasy.” The pills were shaped like the head of President3
Barack Obama, and none of the officers had heard of this particular
drug or previously seen it in Utah. Defendant denied having any
knowledge of the pills.

State v. Woodard
20120927-CA 3 2014 UT App 162
The Trial
¶5 At Defendant’s trial, the State introduced testimony from an
expert who took a fingerprint from the bag containing the Obama
ecstasy and another expert who matched that fingerprint to one
taken from Defendant when he was booked into jail. Sandra
Grogan, a crime scene examiner, testified that she processed the
bag with superglue fumes causing a latent fingerprint to turn white
for better visibility. She also photographed the print a number of
times with different lighting conditions and angles. After
processing the fingerprint and taking photographs, Grogan
uploaded the photographs to a database called the Digital Image
Management System (DIMS). All of the original photos were
admitted into evidence without objection.
¶6 Paul Rimmasch, another crime scene investigator and a
certified latent fingerprint examiner, then testified about his
examination of the fingerprint. He testified that Grogan provided
him with her photos of the latent print as well as a card, often
referred to as a ten-print card, containing Defendant’s known
fingerprints, taken when he was booked into jail. Rimmasch
testified that he found seventeen matching points between the
latent fingerprint and one of Defendant’s fingerprints from the ten-
print card. He also stated that while there are no national standards
requiring a certain number of matching points, ten matching points
is considered all but conclusive and at twelve matching points the
odds “exceed the population of the earth that it could be anyone
else.” Based on the seventeen matching points that Rimmasch
identified between the latent print and the ten-print card, he
concluded that the print on the baggie belonged to Defendant.
¶7 Rimmasch attempted to illustrate his findings with an
exhibit showing a side-by-side comparison of an image of the
fingerprint from the bag and an image of the fingerprint from the
ten-print card (Exhibit 15). Defendant’s trial counsel questioned
Rimmasch extensively about the source of the images on Exhibit 15.
Rimmasch explained that the first image came from the ten-print
card and that he had the card with him in court. He testified that he

State v. Woodard
20120927-CA 4 2014 UT App 162
received the card from Grogan and that the prints were originally
taken by Officer Cory Stark, whose name was written on the back
of the card.
¶8 Trial counsel then questioned Rimmasch about the source of
the other fingerprint displayed in Exhibit 15. Rimmasch testified
that after Grogan processed the bag, she put the images on the
DIMS database, and Rimmasch “retrieved that image from DIMS.”
Trial counsel then turned to asking Rimmasch if he knew exactly
which photograph from the group taken by Grogan he had used in
his comparison. Rimmasch responded that it would take some
time, but that he might be able to ascertain the particular
photograph he used.
¶9 The trial court then asked Defendant’s trial counsel if he was
planning to allow the State “to try and lay the appropriate
foundation for [Rimmasch’s] testimony.” Trial counsel answered,
“Well, I’m going to challenge it, your Honor. I don’t—he can’t
testify where this image came from. . . . So I’m going to move to
strike the admission of [Exhibit 15] as an inadequate foundation.”
The State then responded,
Ms. Grogan testified earlier today that she took the
photograph that she processed and documented and
that she gave the photograph to Mr. Rimmasch to
compare. I can get her back here and ask her where
she got the ten print card and lay some additional
foundation with her. . . . I think that Mr. Rimmasch
has testified that he has an original ten print card,
and I can try to lay some more foundation with that.
I’m not certain if it will suffice for the Court.
¶10 Finally, the trial court ruled, “Well, at least for now the
Court is going to sustain [trial counsel’s] objection, but I will grant
you some time to perfect this matter. So maybe you can cure it.
We’ll just see.” The State then asked Rimmasch about the
identifying information on the ten-print card from which one of the
Exhibit 15 images was taken. Trial counsel also objected to this line
of questioning as lacking foundation. The trial court stated,

State v. Woodard
20120927-CA 5 2014 UT App 162
There may be other information on [the ten-print
card] that he can testify to, and certainly he can read
it. He’s certainly—what has been sustained is that he
can’t make a comparison until we can guarantee that
that ten print card has any meaning in this particular
case. . . . [T]he objection is overruled.
The State continued questioning Rimmasch about the identifying
information on the ten-print card—which included the name of the
jail where the fingerprints were collected, the date and time of
collection, the name of the officer who took the prints, an FBI
tracking number, the date of arrest, and Defendant’s address. Trial
counsel then stipulated to the admission of the ten-print card,
“subject to the State being able to in the future verify that that in
fact was taken from [his] client.” The trial court replied, “[L]et me
just ask a question. Is the client—is [Defendant’s] name on the
document anywhere?” And Rimmasch responded, “Yes, it is, and
also his Social Security number and date of birth.” A few moments
later, a discussion occurred at the bench off the record, and the trial
court instructed the State to proceed, at which point the State asked
Rimmasch if he had verified that the image on Exhibit 15 was the
same as the image on the ten-print card. Rimmasch replied
affirmatively. When the State then moved to admit Exhibit 15,
Defendant’s trial counsel stated, “No objection at this time, your
Honor.” The State also moved to admit the ten-print card into
evidence, and again trial counsel had no objection. The original
images of the fingerprint taken from the bag had already been
admitted without objection.
¶11 Rimmasch continued his testimony, explaining the
methodology he used in examining the fingerprint evidence. He
noted that “there isn’t a national standard on how everything
should be done” but there “is one overarching kind of practice that
is advocated throughout, and that’s the ACE-V methodology.” The
acronym “ACE-V” stands for the steps that an analyst must take
when evaluating fingerprints: analyze, compare, evaluate, and
verify. Rimmasch then described the process in some detail,
including the final step—verify—where “another examiner goes
through the same process [as the original examiner] and looks at

State v. Woodard
20120927-CA 6 2014 UT App 162
the print again.” The State then asked, “Is that what happened on
this print?” Rimmasch replied, “Yes.” Later, Rimmasch explained
the verification step further, noting, “[N]othing would leave our
office with just one person having compared it. It always needs a
verifier. . . . [N]o print would leave the office, no arrests would be
made without a verification.”
¶12 At the close of the State’s case, Defendant’s trial counsel
moved for a directed verdict. Specifically, trial counsel moved to
strike all testimony regarding the fingerprint evidence because he
alleged that the crime scene analysts failed to follow the ACE-V
protocol. Without the fingerprint evidence, he claimed, the State
had not met its evidentiary burden and a directed verdict was
appropriate. The trial court denied the motion to strike the
fingerprint testimony because the court concluded that any
potential problems with the fingerprint-analysis protocol went “to
the weight of that evidence and not to its admissibility” and could
have been attacked by Defendant’s counsel by calling his own
expert witness. The court also denied the motion for directed
verdict because the State had presented at least a prima facie case.
¶13 The jury convicted Defendant of possession of a controlled
substance with intent to distribute, a second degree felony, and
possession of marijuana and possession of drug paraphernalia,
both class B misdemeanors. Defendant appeals only the conviction
of possession of a controlled substance with intent to distribute.
ISSUES AND STANDARDS OF REVIEW
¶14 Defendant first contends that the trial court erred in
admitting fingerprint evidence that he claims lacked foundation.
“A trial court’s determination that there was a proper foundation
for the admission of evidence . . . [is reviewed for] an abuse of
discretion.” State v. Burke, 2011 UT App 168, ¶ 17, 256 P.3d 1102
(alterations in original) (citation and internal quotation marks
omitted). This means that we will reverse the trial court’s decision
to admit evidence only if the ruling is beyond the limits of
reasonability. Id.

State v. Woodard
4. Defendant frames his appeal as a challenge to the sufficiency of
the evidence. However, he recognizes in his brief that his challenge
to the sufficiency of the evidence depends on our concluding that
the fingerprint evidence was improperly admitted. Because we
conclude that the fingerprint evidence was properly before the
jury, we do not further discuss Defendant’s sufficiency of the
evidence claim.
20120927-CA 7 2014 UT App 162
¶15 Defendant also argues that the trial court erred in failing to
exclude expert testimony. “The trial court has wide discretion in
determining the admissibility of expert testimony, and such
decisions are reviewed under an abuse of discretion standard.”
State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993). We will only
reverse the trial court’s decision to admit expert testimony if the
decision exceeds the limits of reasonability. Id.
ANALYSIS
I. The Trial Court Did Not Err in Admitting the Fingerprint
Evidence.
¶16 Defendant claims that the trial court should not have
admitted Exhibit 15 because it was not properly authenticated
under rule 901 of the Utah Rules of Evidence. “[T]he process of4
authentication deals . . . with the foundation required for admitting
evidence, and the adequacy of that foundation is determined by the
trial judge.” State v. Jacques, 924 P.2d 898, 901 (Utah Ct. App. 1996)
(citation and internal quotation marks omitted). Rule 901 requires
that the proponent of an item of evidence authenticate or identify
it with “evidence sufficient to support a finding that the item is
what the proponent claims it is.” Utah R. Evid. 901(a). The rule also
provides a nonexhaustive list of means by which authentication can
be achieved. For example, rule 901 provides for authentication by
the testimony of a witness with knowledge “that an item is what it
is claimed to be.” Id. R. 901(b)(1). It also allows authentication
based on the “appearance, contents, substance, internal patterns, or

State v. Woodard
20120927-CA 8 2014 UT App 162
other distinctive characteristics of the item, taken together with all
the circumstances.” Id. R. 901(b)(4).
¶17 “Proper authentication does not require conclusive proof
but, instead, requires only that the trial court determine that there
is ‘evidence sufficient to support a finding of the fulfillment of [a]
condition’ of fact.” State v. C.D.L., 2011 UT App 55, ¶ 24, 250 P.3d
69 (quoting Utah R. Evid. 104(b) (2011)) (alteration in original). See
also Fed. R. Evid. 901 advisory committee notes (explaining that the
“requirement of showing authenticity or identity falls in the
category of relevancy dependent upon fulfillment of a condition of
fact and is governed by the procedure set forth in Rule 104(b)”).
Therefore, “the jury is ultimately responsible for determining
whether the evidence is in fact authentic once the evidence is
admitted,” but the trial court “must fulfill its screening function
under rule 104(b).” Jacques, 924 P.2d at 901.
¶18 The trial court originally sustained the objection of
Defendant’s trial counsel but granted the State time to lay
foundation for the admission of Exhibit 15. Defendant now
contends that this foundation was never laid, Exhibit 15 was never
authenticated, and the fingerprint evidence was therefore
improperly before the jury. We disagree.
¶19 The trial court had sufficient evidence before it to support a
finding that both images on Exhibit 15 were what the State claimed
they were. See Utah R. Evid. 901. First, both Grogan and Rimmasch
testified about the source of the fingerprint image taken from the
bag found in Defendant’s bedroom. Grogan testified that she
enhanced the fingerprint with superglue vapor, photographed the
fingerprint a number of times, and loaded those photos onto the
DIMS database. Rimmasch then testified that he retrieved the
image from the DIMS database and used that image for his
comparison with the fingerprints from the ten-print card. This
testimony squares with the rule 901 option of authenticating
evidence by testimony of a witness with knowledge “that an item
is what it is claimed to be.” See id. R. 901(b)(1).

State v. Woodard
5. Defendant also contends that he received ineffective assistance
of counsel because his trial counsel failed to renew his objection to
the admission of Exhibit 15 at the close of the State’s case.
However, we have concluded that Exhibit 15 was properly
admitted, and therefore, any objection to its admission would have
been futile. “Failure to raise futile objections does not constitute
ineffective assistance of counsel.” State v. Kelley, 2000 UT 41, ¶ 26,
1 P.3d 546.
20120927-CA 9 2014 UT App 162
¶20 Next, the image taken from the ten-print card was
authenticated both by Rimmasch’s testimony and by the
“appearance, contents, substance, internal patterns, or other
distinctive characteristics” of the card, which was itself admitted
into evidence, “taken together with all the circumstances.” See id.
R. 901(b)(4). Rimmasch testified that the card contained a number
of identifying characteristics, such as the name of the jail where the
fingerprints were collected, the date and time of collection, the
name of the officer who took the prints, an FBI tracking number,
the date of arrest, and Defendant’s address. Then, in response to an
objection by Defendant’s trial counsel and a question from the trial
court, Rimmasch further noted that the card contained Defendant’s
name, social security number, and date of birth. Once Rimmasch
made clear that the image he used to create Exhibit 15 came from
the ten-print card, the ten-print card itself was entered into
evidence.
¶21 We conclude that Exhibit 15, as well as the fingerprint
images from which Exhibit 15 was created, were properly
authenticated under rule 901 of the Utah Rules of Evidence, and
therefore the trial court “fulfill[ed] its screening function under rule
104(b).” See State v. Jacques, 924 P.2d 898, 901 (Utah Ct. App. 1996).5
II. The Trial Court Did Not Err in Allowing Expert Testimony
About the Fingerprint Comparison.
¶22 Defendant next contends that the State’s fingerprint expert
did not meet the reliability standards set forth in rule 702 of the

State v. Woodard
20120927-CA 10 2014 UT App 162
Utah Rules of Evidence. Defendant argues that because the ACE-V
protocol requires verification by a second fingerprint examiner as
its final step, the State should have been required to produce the
second examiner to testify about the procedures used in verifying
Rimmasch’s conclusions. Defendant also contends that even if
Rimmasch properly followed the ACE-V protocol, the
methodology is not sufficiently reliable.
¶23 Rule 702 “assigns to trial judges a ‘gatekeeper’ responsibility
to screen out unreliable expert testimony.” Utah R. Evid. 702
advisory committee notes. Thus, under rule 702 the State must
make a “threshold showing that the principles or methods that are
underlying in the testimony (1) are reliable, (2) are based upon
sufficient facts or data, and (3) have been reliably applied to the
facts.” Id. R. 702(b). This threshold showing “is satisfied if the
underlying principles or methods, including the sufficiency of facts
or data and the manner of their application to the facts of the case,
are generally accepted by the relevant expert community.” Id.
R. 702(c). And rule 702’s threshold showing “requires only a basic
foundational showing of indicia of reliability for the testimony to
be admissible, not that the opinion is indisputably correct.” Id.
R. 702 advisory committee notes. We conclude that an adequate
threshold showing was made in this case.
¶24 Rimmasch testified that while “there isn’t a national
standard on how everything should be done,” there “is one
overarching kind of practice that is advocated throughout, and
that’s the ACE-V methodology.” Rimmasch explained that there
are four steps involved in the ACE-V protocol—analyze, compare,
evaluate, and verify—and testified that he followed each of these
steps in comparing Defendant’s known fingerprint with the
fingerprint found on the bag of Obama ecstasy. Rimmasch also
emphasized that his office always completed the verification step,
noting, “[N]othing would leave our office with just one person
having compared it. It always needs a verifier. . . . [N]o print would
leave the office, no arrests would be made without a verification.”

State v. Woodard
20120927-CA 11 2014 UT App 162
¶25 This testimony provides a basic foundational showing that
the underlying methods and principles applied to analyze
Defendant’s fingerprints are “generally accepted by the relevant
expert community” and therefore sufficiently reliable to be
presented to the jury. See id. R. 702(b)–(c). And we agree with the
trial court that the failure of the State to call the ACE-V verifier as
an additional expert witness is not relevant to Rimmasch’s
reliability as an expert but instead goes to the weight and
credibility of his testimony, which is to be evaluated by the jury. See
State v. Clayton, 646 P.2d 723, 726–27 (Utah 1982).
¶26 Defendant nonetheless maintains that fingerprint analysis
is inherently unreliable and points to publications from the
National Academy of Sciences and its operational arm, the
National Research Council, that have recently noted a lack of
empirical validation of fingerprint evidence and specifically
questioned the efficacy of the ACE-V methodology. While this
information indicates that the science of fingerprint examination
may continue to evolve, it does not establish the unreliability of the
ACE-V protocol relied on in this case. When applying rule 702,
“judges should approach expert testimony with ‘rational
skepticism.’” Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010
UT 59, ¶ 12, 242 P.3d 762 (quoting Utah R. Evid. 702 advisory
committee notes). But the degree of scrutiny that should be applied
to expert testimony by trial judges “‘is not so rigorous as to be
satisfied only by scientific or other specialized principles or
methods that are free of controversy or that meet any fixed set of
criteria fashioned to test reliability.’” Id. (quoting Utah R. Evid. 702
advisory committee notes). Therefore, although there is, as
Rimmasch testified, no specific national standard for fingerprint
analysis, and although there may be organizations calling for the
use of more precise fingerprint identification procedures,
Rimmasch’s testimony that ACE-V is an “overarching kind of
practice that is advocated throughout” the country satisfied the
threshold showing of reliability required under rule 702.
¶27 Additionally, a threshold showing “marks only the beginning
of a reliability determination.” Gunn Hill Dairy Props., LLC v. Los

State v. Woodard
6. Trial counsel did not do much to elicit information that might
have prompted the jury to give Rimmasch’s testimony less weight.
He did not, for instance, try to get Rimmasch to admit that he did
not know if the independent verification step was actually
completed in this case. He did not point out that the records
Rimmasch relied on did not include any details confirming when
the verification was done or by whom. He did not even ask
Rimmasch if he recalled who actually did the verification in this
case.
7. The trial court focused on this latter point, stating that an
“assault on the methodology used by the State . . . would require
an expert witness from the defense that could come in and testify
that the procedures were faulty for this or that reason.” This
statement did not improperly shift the burden of persuasion to
Defendant, as he contends, but was merely an indication as to how
his trial counsel could have gone about undercutting Rimmasch’s
testimony.
20120927-CA 12 2014 UT App 162
Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 33, 269 P.3d 980
(emphasis in original). “The court’s role is only preliminary; the
factfinder bears the ultimate responsibility for evaluating the
accuracy, reliability, and weight of the testimony.” Id. ¶ 47.
Defendant’s trial counsel had full opportunity to challenge the
ACE-V methodology and Rimmasch’s credibility on cross-
examination, to ascertain the identity of the verifier Rimmasch6
used and endeavor to call him or her as a witness, or to call his own
expert witness to testify about the fingerprint analysis done in this
case or about potential problems with fingerprint analysis in
general. See Clayton, 646 P.2d at 726–27. See also Utah R. Evid. 7027
advisory committee notes (noting that the rule “is broad enough to
permit testimony that is the product of competing principles or
methods in the same field of expertise” and explaining that
“[c]ontrary and inconsistent opinions may simultaneously meet the
threshold; it is for the factfinder to reconcile—or choose
between—the different opinions”).

State v. Woodard
8. Defendant’s brief contains a footnote stating that “to the extent
defense counsel did not object to Rimmasch’s hearsay statement
that the results were verified, he was ineffective.” However, in
order to meet his burden of persuasion, Defendant must lay out his
“contentions and reasons . . . with respect to the issues presented,
including the grounds for reviewing any issue not preserved in the
trial court, with citations to the authorities, statutes, and parts of
the record relied on.” See Utah R. App. P. 24(a)(9). Defendant’s
perfunctory argument that his trial counsel should have objected
to Rimmasch’s testimony on hearsay grounds, without more, does
not meet this burden.
20120927-CA 13 2014 UT App 162
¶28 Defendant alternatively contends that Rimmasch’s
testimony about the results of the independent verification step of
the ACE-V protocol was inadmissible hearsay. But Defendant’s
trial counsel never advanced this objection before the trial court in
such a way that the trial court had an opportunity to rule on it. See
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. While
trial counsel objected generally to the expert’s testimony, a hearsay
objection was never specifically raised. Therefore, Defendant’s
hearsay arguments are not preserved for appeal.8
CONCLUSION
¶29 The trial court properly admitted the fingerprint evidence
contained in Exhibit 15 under rules 901 and 104 of the Utah Rules
of Evidence. Additionally, the expert testimony met the threshold
reliability requirements of rule 702(b).
¶30 Affirmed.