State v. Weaver

2023 UT App 154
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
C HRISTOPHER WEAVER ,
Appellant.
Opinion
No. 20220182-CA
Filed December 21, 2023
Fifth District Court, St. George Department
The Honorable Keith C. Barnes
No. 201501532
Nicolas D. Turner, Attorney for Appellant
Sean D. Reyes and Emily Sopp,
Attorneys for Appellee
JUDGE A MY J. O LIVER authored this Opinion, in which
JUDGES R YAN M. HARRIS and R YAN D. TENNEY concurred.
OLIVER, Judge:
¶1 	The 	State 	charged 	Christopher 	Weaver 	with 	criminal
automobile homicide after he slammed his speeding pickup truck
into a stopped car at a red light, killing the young driver. A jury
acquitted Weaver of criminal automobile homicide and instead
convicted 	him 	of 	the 	lesser 	included 	charge 	of 	negligent
automobile homicide. Weaver appeals that conviction on three
grounds: (1) his trial counsel rendered constitutionally ineffective
assistance by stipulating to an improper Allen charge, see Allen v.
United States, 164 U.S. 492 (1896), (2) the trial court wrongly
admitted text messages between him and his estranged wife, and
(3) there was insufficient evidence he had been impaired while
driving. We reject these arguments and affirm his conviction.

State v. Weaver
20220182-CA 	2 	2023 UT App 154
BACKGROUND1
¶2 	On a clear October morning in 2019, Weaver was driving
to work on I-15 in his lifted Ford F-350 pickup truck when an
eyewitness 	observed 	him 	swerving 	in 	and 	out 	of 	his 	lane
“excessively.” That same morning, twenty-year-old Kelly2 was on
her 	way 	to 	hike 	in 	Zion 	National 	Park 	after 	visiting 	her
grandmother during fall break. Weaver took an exit at 72 miles
per hour and sped past the flashing yellow light warning of a
stoplight ahead. Weaver later claimed he intended to turn left at
the intersection to go to the gas station, but he did not enter the
empty left-turn lane. Instead, he smashed his truck into the back
of Kelly’s compact car–which was stopped at the red light–at 57
miles per hour. The impact slammed Kelly’s car into the truck in
front of her and spun her car until it stopped sideways in the
traffic lane.
¶3 	Several witnesses rushed to help Kelly and Weaver. Kelly
was severely injured in the crash and died shortly after witnesses
managed to remove her from her car. Weaver requested to be
taken to a hospital, where he was diagnosed with a concussion
and treated for a nasal fracture. No field sobriety tests were
conducted at the crash site.
¶4 	Approximately three and a half hours after the crash,
Weaver’s blood was drawn at the hospital, and the toxicology
report showed he had 46 nanograms per milliliter of oxycodone
in his system. Weaver had told emergency responders multiple
times that he had taken a sleeping aid that day, but he did not
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Huey, 2022 UT App 94, n.2, 516 P.3d 345 (cleaned up).
2. A pseudonym.

State v. Weaver
20220182-CA 	3 	2023 UT App 154
disclose taking any opioids. To treat his chronic back pain,
Weaver had a prescription for oxycodone and oxymorphone.
¶5 	Two days earlier, on October 9, Weaver had texted his
estranged wife to ask if she wanted him to “pee in a cup” before
he picked up their son. She responded that he did not need to, so
long as he promised not to drive their son with “anything” in his
system because it was “not worth any kind of risk.” Weaver
promised he would not drive with “stuff” in his system. In a text
to his wife on October 10, Weaver admitted to drinking “2 shots
and a beer.” On October 11, the morning of the crash, Weaver’s
wife texted him at 5:28 a.m. to see if he could drive their son to
school. Weaver did not respond until 8:49 a.m.—several hours
before the crash—and apologized for missing the text. His wife
replied she was worried he had been “taking drugs” and was “too
asleep” to hear his phone. Weaver told her he had only taken
sleeping pills.
¶6 	After 	the 	crash, 	Weaver 	was 	charged 	with 	criminal
automobile homicide, a second-degree felony, and speeding, an
infraction. Prior to trial, Weaver filed a motion in limine seeking
to exclude the text messages between him and his wife, as well as
his pre-crash internet searches for “[b]est synthetic urine for sale,”
the rules on refilling prescriptions, and substance abuse therapy.
In response, the State filed a motion in limine seeking to introduce
into evidence Weaver’s internet searches; the text messages
between him and his wife on October 9 and October 10; and two
items found in Weaver’s truck after the crash–a rolled-up dollar
bill with white residue and an open alcohol container. Following
a hearing on the motions, the court ruled that the October 10 text
about 	drinking, 	the 	rolled-up 	dollar 	bill, 	and 	open 	alcohol
container 	were 	inadmissible. 	However, 	the 	court 	found 	the
October 9 texts about Weaver’s offer to “pee in a cup” were
“relevant to whether [Weaver] acted with criminal negligence”
because they showed “his consciousness of the risk associated
with having anything in his system that could impair his driving.”

State v. Weaver
20220182-CA 	4 	2023 UT App 154
¶7 	At trial, the State’s first witness (Eyewitness) testified he
had been driving behind Weaver on I-15 and paying close
attention to Weaver’s “good-looking black Ford truck” because
his “hobby is lifted trucks.” Eyewitness testified about Weaver’s
“excessive[] swerving,” describing it as follows:
[A]t first, [Weaver] was going into the shoulder of
the road . . . by a good 18 inches, maybe two feet,
[and] his tires were over that white line. And he
drifted over, stayed that way for a few seconds,
drifted back into the lane, and then he started
drifting back into the left lane.
Now, he did that several times. He’d go back
into the left lane, . . . [and] he went back over to the
right, went again 18 to 24 inches into the shoulder,
but he seemed to be excessively leaning towards the
left, the center line. And he kept getting further out
each time.
At one point in time just before . . . the
Hurricane exit, half of his truck was in the—the
other person’s lane . . . . And I noticed that because
his center differential was over the dotted line. And
there were several cars that needed to pass him that
were moving faster than him on the freeway, and
they saw what he was doing, and they just held
back.
Eyewitness “wouldn’t move past him either” and stayed behind
Weaver. Eyewitness, having taken the same exit off the freeway,
saw Weaver’s truck smash into Kelly’s car and described trying
to render aid to both Weaver and Kelly.
¶8 	The State’s next witness was the forensic toxicologist
(Toxicologist) who analyzed Weaver’s toxicology report. She
testified that Weaver’s blood sample, taken over three and a half

State v. Weaver
20220182-CA 	5 	2023 UT App 154
hours after the crash, showed he had 46 nanograms per milliliter
of oxycodone in his system. She explained how oxycodone is a
central nervous system depressant with “common impairment
effect[s]”—including 	“sleepiness, 	fatigue, 	dizziness, 	and
drowsiness”—so the oxycodone packaging warns not to operate
heavy machinery, “such as driving.” On the issue of impairment,
Toxicologist 	explained 	how 	it 	“is 	difficult 	to 	predict 	the
impairment” 	caused 	by 	oxycodone 	“based 	on 	blood
concentration alone” and that someone “within the therapeutic
range . . . may also feel the impairment that comes with” the drug.
Toxicologist opined the “best way to determine impairment” on
an individual basis is by “eyewitness testimony of the accident”
or by a “field sobriety test.” On cross-examination, Toxicologist
confirmed that the amount of oxycodone in Weaver’s blood was
within the therapeutic range.
¶9 	The State then called a Utah Highway 	Patrol officer
(Officer) specially trained in road accident reconstruction. He
testified that Weaver’s truck contained a crash data retrieval
system that measures the car’s velocity and speed to know when
to deploy the airbags, giving the last five seconds of “precrash
data.” From that data and his analysis of the crash, he determined
Weaver’s truck was going 72 miles per hour four seconds before
impact and calculated the speed at impact was 57 miles per hour.
This information showed that Weaver was “not braking very
hard” in the few seconds before impact.
¶10 	Next, the State called various medical personnel who
treated 	Kelly 	and 	Weaver. 	The 	emergency 	room 	physician
testified that Weaver was alert and “oriented to person, place, and
time” when he arrived at the hospital, and confirmed that Weaver
did not list oxycodone among the medications he was taking.
¶11 	The State then sought to introduce the text messages
between Weaver and his wife from October 9 and October 11.
Weaver’s attorney (Trial Counsel) objected. After taking a brief
recess, the court affirmed that it had previously ruled in its

State v. Weaver
20220182-CA 	6 	2023 UT App 154
written order that the October 9 texts—where Weaver’s wife told
him it was “not worth any kind of risk” for him to drive with their
son with “anything in [his] system”—were admissible. The court
also orally ruled that the October 11 texts—where Weaver’s wife
expressed her concern he was “taking drugs” and was “too
asleep” to hear his phone—were also admissible because they
showed Weaver’s “consciousness of the risk associated with
having anything in his system that could impair his driving” and
were therefore “relevant to whether he acted with criminal
negligence.” The State introduced the texts as Exhibit 26 and had
the texts read aloud to the jury.
¶12 	After the State rested, Trial Counsel moved for a directed
verdict 	on 	the 	criminal 	automobile 	homicide 	charge. 	Trial
Counsel asserted the State had not met its burden of proof on the
element of impairment. See Utah Code § 76-5-207(2)(a)(ii)(B)
(requiring proof the actor “is under the influence of . . . any drug
. . . to a degree that renders the actor incapable of safely operating
a vehicle”). Trial Counsel pointed out Weaver’s blood draw
showed the amount of oxycodone in his system was within the
therapeutic range and there is “no other evidence that was put on
of impairment.” In response, the State claimed there was “ample
evidence that [Weaver] was under the influence of oxycodone,”
referencing Eyewitness’s account of Weaver’s erratic driving and
Weaver’s blood draw revealing oxycodone in his system, which
was taken almost four hours after the crash. The court denied
Weaver’s motion.
¶13 	In his defense, Weaver presented two witnesses: a nurse
practitioner (Nurse) at a “concierge medication” business who
had been prescribing opioids for Weaver’s back pain since 2018,
and a toxicology expert. Nurse acknowledged Weaver’s wife
considered Weaver “unsafe to drive” when taking opioids and
had asked him to take Weaver off narcotics. Nurse also admitted
the United States Drug Enforcement Administration investigated
him 	and 	he 	can 	no 	longer 	prescribe 	controlled 	substances,
including opioids. On cross-examination, Nurse confirmed that

State v. Weaver
20220182-CA 	7 	2023 UT App 154
his business was located in Salt Lake and that Weaver claimed he
drove up there instead of going to a doctor in St. George, where
he lived, for convenience.
¶14 	The 	toxicology 	expert 	opined 	that 	Weaver 	was 	not
impaired 	at 	the 	time 	of 	the 	crash, 	based 	on 	how 	Weaver
“appeared 	coherent” 	and 	“answered 	the 	questions
appropriately” at the hospital after the crash. He also testified that
“[f]or opioid narcotics, the therapeutic range isn’t very helpful, it
doesn’t preclude that the patient could be impaired in the
therapeutic 	range.” 	He 	was 	not 	concerned 	by 	the 	level 	of
oxycodone 	in 	Weaver’s 	blood 	because 	it 	was 	within 	the
therapeutic 	range 	of 	5-50 	nanograms 	per 	milliliter, 	but 	he
estimated Weaver’s blood concentration at the time of the crash—
three and a half hours earlier—“might be close to 80” nanograms
per milliliter.
¶15 	After 	Weaver 	rested 	his 	case, 	the 	State 	called 	an
anesthesiologist specializing in pain management as a rebuttal
witness. She explained that Weaver’s prescription amounted to
the equivalent of 360 milligrams of morphine a day and opined
“that is a boatload” that would kill “an opioid naïve person.” She
explained how drug “impairment unlike alcohol for instance,” is
more difficult to define because “[t]here’s no data within our
medical literature that says, as soon as you reach this [level of]
nanograms per milliliter . . . that you are now impaired.”
¶16 	After receiving instructions from the court, including on
Weaver’s presumed innocence and the State’s burden of proof,
and 	hearing 	closing 	argument 	from 	Trial 	Counsel, 	who
repeatedly emphasized both of these instructions, the jury began
its deliberation. While deliberating, the jury sent two written
questions 	to 	the 	court. 	The 	first 	question 	came 	after
approximately three hours of deliberation and asked if it was
possible to vote guilty on the charge of negligent automobile
homicide “without voting guilty on . . . incapable of safely
operating due to alcohol, drugs.” The court responded, with the

State v. Weaver
20220182-CA 	8 	2023 UT App 154
stipulation of both counsel, “No.” About an hour later, the jury
asked, “We have reached unanimous agreement on Count #2,
speeding, but will not be able to reach unanimous agreement on
Count #1. What to do?” The court responded, again with the
stipulation of both counsel, by giving the jury the following
supplemental instruction, commonly called an Allen charge3:
As jurors, you have a duty to discuss the case with
one another and to deliberate in an effort to reach a
unanimous verdict if each of you can do so without
violating your individual judgment and conscience.
Each of you must decide the case for yourself, but
only after you consider the evidence impartially
with your fellow jurors. During your deliberations,
you should not hesitate to reexamine your own
views and change your opinion if you become
persuaded 	that 	it 	is 	wrong. 	You 	should 	not,
however, change an honest belief as to the weight or
effect of the evidence solely because of the opinions
of your fellow jurors or for the mere purpose of
returning a verdict.
I also remind you that in your deliberations,
you are to consider the instructions that I have given
you as a whole. You should not single out any part
of any instruction, including this one, and ignore
others. They are all equally important.
What I have just said is not meant to rush you
or pressure you into agreeing on a verdict. Take as
3. 	An 	instruction 	to 	a 	deadlocked 	jury 	is 	“called 	an 	Allen
instruction or an Allen charge, named after the case in which the
United States Supreme Court approved the use of supplemental
jury instructions to help a deadlocked jury reach a unanimous
verdict.” State v. Martinez, 2021 UT App 11, ¶ 33 n.6, 480 P.3d 1103
(cleaned up).

State v. Weaver
20220182-CA 	9 	2023 UT App 154
much time as you need to discuss things. There is no
hurry.
Four hours after the Allen charge was given, the jury returned its
verdict. 	The 	jury 	acquitted 	Weaver 	of 	criminally 	negligent
automobile homicide but convicted him of the lesser included
offense of negligent automobile homicide as well as speeding. The
court later sentenced Weaver to a prison term of zero to five years
for the third-degree felony.
ISSUES AND STANDARDS OF REVIEW
¶17 	Weaver now appeals, raising three issues. First, he argues
the Allen charge was improper. Weaver acknowledges he failed to
preserve this issue for appellate review but asks us to review it
under ineffective assistance of counsel, which is an exception to
our preservation requirement.4 “Failure to preserve an issue in the
district court generally precludes a party from arguing that issue
in an appellate court, absent a valid exception.” State v. Haar, 2021
UT App 109, ¶ 51, 500 P.3d 102 (cleaned up). “The three distinct
exceptions” to this preservation requirement are “plain error,
ineffective assistance of counsel, and exceptional circumstances.”
Id. (cleaned up). “When a claim of ineffective assistance of counsel
is raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of law.”
State v. Popp, 2019 UT App 173, ¶ 19, 453 P.3d 657 (cleaned up).
4. Weaver also asks that we review this issue for plain error. But
we need not review this argument because where “a defendant
affirmatively approved of the jury instructions the invited error
doctrine precludes our examining the purported errors under the
plain error doctrine.” See State v. Carrick, 2020 UT App 18, ¶ 24,
458 P.3d 1167 (cleaned up).

State v. Weaver
20220182-CA 	10 	2023 UT App 154
¶18 	Second, Weaver challenges the trial court’s admission of
the October 9 and October 11 text messages into evidence. “We
afford district courts a great deal of discretion in determining
whether to admit or exclude evidence and will not overturn an
evidentiary ruling absent an abuse of discretion.” State v. Rallison,
2023 UT App 34, ¶ 7, 528 P.3d 1235 (cleaned up). A trial court
“abuses its discretion when it applies the wrong legal standard or
when its decision to admit or exclude evidence is beyond the
limits of reasonability.” Id. (cleaned up).
¶19 	Third, Weaver argues there was insufficient evidence of
impairment. “In assessing a claim of insufficiency of the evidence,
we review the evidence and all inferences which may reasonably
be drawn from it in the light most favorable to the verdict of the
jury.” State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645 (cleaned up).
ANALYSIS
I. The Allen Charge
¶20 	Weaver first asserts Trial Counsel provided ineffective
assistance by stipulating to an Allen charge that he believes was
coercive. To prove ineffective assistance of counsel, a defendant
must show (1) “that counsel’s performance was deficient” and (2)
“that 	the 	deficient 	performance 	prejudiced 	the 	defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
deficient 	performance, 	a 	defendant 	“must 	show 	that 	trial
counsel’s representation fell below an objective standard of
reasonableness when measured against prevailing professional
norms.” Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d 182 (cleaned up).
The “proper inquiry must be whether counsel’s assistance was
reasonable considering all the circumstances.” Id. “Our scrutiny
of 	counsel’s 	performance 	must 	be 	highly 	deferential” 	and
“measure counsel’s performance under prevailing professional
norms.” State v. Samples, 2022 UT App 125, ¶ 59, 521 P.3d 526
(cleaned up), cert. denied, 525 P.3d 1279 (Utah 2023).

State v. Weaver
20220182-CA 	11 	2023 UT App 154
¶21 	“Prejudice exists when there is a reasonable probability
that the case would have had a different outcome had trial counsel
not performed deficiently.” State v. Whytock, 2020 UT App 107,
¶ 28, 469 P.3d 1150, cert. denied, 481 P.3d 1043 (Utah 2021). “A
defendant 	attempting 	to 	show 	that 	there 	was 	a 	reasonable
probability of a different outcome faces a relatively high hurdle to
overcome.” Id. (cleaned up). And when we assess prejudice, “we
consider the totality of the evidence before the judge or jury, as
well as the circumstances of the case as a whole.” State v. Alarid,
2022 UT App 84, ¶ 47, 514 P.3d 610 (cleaned up), cert. denied, 525
P.3d 1261 (Utah 2022).
¶22 	Utah law allows a trial court to give deadlocked juries a
supplemental instruction called an Allen charge, see supra note 4,
in which it may “impress upon jurors the importance of the case,
urge them to come to agreement, and send them back for further
deliberation.” State v. Scott, 2022 UT App 81, ¶ 20, 514 P.3d 590
(cleaned up), cert. denied, 525 P.3d 1264 (Utah 2022). Although
“many 	courts 	have 	expressed 	concern 	about 	the 	continued
propriety 	of 	the 	Allen 	instruction 	because 	of 	its 	perceived
tendency to pressure jurors to give up their sincere convictions,”
we have “upheld the non-coercive use of Allen charges because
we believe such charges to be a reasonable and proper exercise of
the court’s power to guide the jury to a fair and impartial verdict.”
State v. Harry, 2008 UT App 224, ¶ 6, 189 P.3d 98 (cleaned up). We
also acknowledge there are “legitimate purposes served by such
a charge, namely, the avoidance of the societal costs of a retrial
both in time and money, and the possible loss of evidence that a
new trial would entail.” Id. (cleaned up).
¶23 	This court has created a two-part test to determine whether
an Allen charge “will be deemed coercive, which requires us to
consider whether (1) the language of the supplemental charge can
properly be said to be coercive per se, or (2) it is coercive under
the specific circumstances of the case.” Scott, 2022 UT App 81, ¶ 21
(cleaned up). Here, Weaver asserts only that the Allen charge was

State v. Weaver
20220182-CA 	12 	2023 UT App 154
coercive per se. Thus, we need look only at the language in the
Allen charge itself to decide whether it was coercive.
¶24 	Notably, “there is no prescribed ritual of words indicating
whether the language of an Allen charge is coercive.” State v.
Lactod, 761 P.2d 23, 30 (Utah Ct. App. 1988) (cleaned up).
“However, there are certain inherently coercive ideas which
should 	not 	be 	included 	in 	an 	Allen 	charge,” 	such 	as
(1) misstatements of the law, (2) overemphasis on the importance
of 	an 	agreement, 	(3) 	suggestion 	that 	jurors 	surrender 	their
“independent judgment,” or (4) “anything from which the jury
could possibly infer that the court is indicating anxiety for or
demanding some verdict.” Id. at 31 (cleaned up). Along with what
should not be included in an Allen charge, we have provided
guidance on what trial courts may, but not must, include. See id.
at 30–31 (stating a “judge may appropriately admonish the jury to
deliberate together in an atmosphere of mutual deference and
respect,” a judge “may counterbalance such an admonition with a
charge . . . to not give up their conscientiously held opinions,” and
a judge “may also remind the jurors of the presumption of
defendant’s innocence and the burden of proof imposed upon the
State” 	(emphases 	added) 	(cleaned 	up)). 	Weaver 	reads 	this
guidance as setting forth requirements, and he claims in particular
that an Allen charge must remind jurors of the defendant’s
presumption of innocence and the state’s burden of proof, even if
the jury had already been properly instructed regarding those
legal principles. We disagree.
¶25 	“It is axiomatic that when reviewing jury instructions, we
look at the jury instructions in their entirety and affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” Alarid, 2022 UT App 84, ¶ 36 (cleaned up).
The jury here was reminded of this concept in the Allen charge
itself when the trial court stated, “I also remind you that in your
deliberations you are to consider the instructions that I have given
you as a whole” and that the instructions “are all equally
important.” The jurors were then instructed to consider all the

State v. Weaver
20220182-CA 	13 	2023 UT App 154
jury instructions together—including the one that reminded
them 	who 	bore 	the 	burden 	of 	proof—and 	“we 	generally
presume that a jury will follow the instructions given it.” State v.
Maama, 2015 UT App 234, ¶ 16, 359 P.3d 1266 (cleaned up). Thus,
contrary to Weaver’s assertion, the Allen charge was not coercive
per 	se, 	and 	Trial 	Counsel 	did 	not 	perform 	deficiently 	by
stipulating to it.
¶26 	Moreover, even if we were to assume, for purposes of
argument, that there was a deficiency in the Allen charge or in
Trial 	Counsel’s 	stipulation 	to 	it, 	we 	do 	not 	perceive 	a
reasonable probability of a different outcome in this case had
the trial court included in the Allen charge the admonitions
Weaver advocates. Here, the jury had already been instructed on
Weaver’s presumed innocence and the State’s burden of proof,
both of which were repeated multiple times by Trial Counsel in
closing arguments. Thus, it is unlikely that repeating these
instructions, yet again, would have resulted in a more favorable
outcome for Weaver.
¶27 	In 	sum, 	the 	trial 	court’s 	Allen 	charge 	contained 	no
“misstatement of law,” did not “overemphasize the importance of
an agreement,” and did not “suggest that any juror surrender [the
juror’s] independent judgment, or say or do anything from which
the jury could possibly infer that the court [was] indicating
anxiety for or demanding some verdict.” Lactod, 761 P.2d at 31
(cleaned up). Instead, the instruction urged the jurors to reach “a
unanimous verdict” only “if each of you can do so . . . without
violating your individual judgment and conscience” and to “not
single out any part of any instruction, including this one, and
ignore others.” The court urged the jurors “to consider the
instructions that I have given you as a whole.” Finally, the court
clarified the instruction “is not meant to rush you or pressure you
into agreeing on a verdict. . . . There is no hurry.” Thus, because
the instruction was not coercive per se, it was reasonable for Trial
Counsel to stipulate to it, and Weaver was not prejudiced by Trial
Counsel’s stipulation to the instruction.

State v. Weaver
20220182-CA 	14 	2023 UT App 154
II. Admission of the Text Messages
¶28 	Next, Weaver challenges the trial court’s rulings that
allowed the State to introduce two text message exchanges—on
October 9 and October 11—between Weaver and his wife. The
State asserts the text messages were properly admitted to prove
Weaver acted with criminal negligence. We agree with the State.
¶29 	Rule 	404(b) 	of 	the 	Utah 	Rules 	of 	Evidence 	prohibits
“[e]vidence of a crime, wrong, or other act” when used “to prove
a person’s character in order to show that on a particular occasion
the person acted in conformity with the character.” But such
evidence 	“may 	be 	admissible 	for 	another purpose, 	such 	as
proving 	motive, 	opportunity, 	intent, 	preparation, 	plan,
knowledge, identity, absence of mistake, or lack of accident.” Id.
Thus, rule 404(b) “allows prior bad act evidence in a criminal trial
where it is offered to show any element of the alleged crime.” State v.
Nielsen, 2012 UT App 2, ¶ 11, 271 P.3d 817 (cleaned up).
¶30 	Three 	requirements 	must 	be 	met 	for 	evidence 	to 	be
admissible under rule 404(b). First, the “trial court must . . .
determine whether the bad acts evidence is being offered for a
proper, noncharacter purpose.” State v. Balfour, 2018 UT App 79,
¶ 28, 418 P.3d 79 (cleaned up). “Second, the court must determine
whether the bad acts evidence meets the requirements of rule 402,
which permits admission of only relevant evidence.” Id. (cleaned
up). Third, “the trial court must determine whether the bad acts
evidence meets the requirements of rule 403.” Id. (cleaned up). See
generally Utah R. Evid. 403 (“The court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger 	of 	one 	or 	more 	of 	the 	following: 	unfair 	prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”).
¶31 	Here, the trial court undertook the proper analysis. Its
written ruling on the parties’ motions in limine considered the
noncharacter purpose of the numerous items the State wanted to

State v. Weaver
20220182-CA 	15 	2023 UT App 154
introduce 	into 	evidence, 	analyzed 	whether 	the 	items 	were
relevant, 	and 	decided 	“whether 	the 	probative 	value 	of 	the
evidence [was] substantially outweighed by the danger of unfair
prejudice.” See Nielsen, 2012 UT App 2, ¶ 16. The trial court
excluded items it considered irrelevant—the internet searches, the
text messages in which Weaver admitted to drinking “2 shots and
a beer,” and the items found in the truck—because there was no
evidence of alcohol in the toxicology report. But the court found,
in both its written and oral rulings, that the text messages from
the morning of the crash and from two days earlier were
admissible because they showed Weaver’s “consciousness of the
risk associated with having anything in his system that could
impair his driving” and thus were “relevant to whether [Weaver]
acted with criminal negligence.”
¶32 	We agree with the trial court’s rulings. The October 9 and
October 11 texts go directly to an element of criminal negligence:
whether Weaver was aware of the risk of driving with oxycodone
in his system. Showing a defendant “ought to be aware of a
substantial or unjustifiable risk” is a key element to proving
criminally negligent automobile homicide. See Utah Code § 76-2-
103(4) (stating a person is criminally negligent “when [that
person] ought to be aware of a substantial and unjustifiable risk
that the circumstances exist or the result will occur”).
¶33 	In the October 9 text, Weaver’s wife asked Weaver to
promise not to drive their son with “anything” in his system
because it is “not worth any kind of risk.” Weaver promised he
would not drive with “stuff” in his system, demonstrating an
awareness that driving with opioids or “anything” in his system
was a risk. Likewise, the October 11 text indicated Weaver’s wife
was worried he was “taking drugs” and “too asleep” to hear his
phone. Evidence that Weaver’s wife expressed to Weaver her
concern that he was taking drugs he knew would impair his
driving on the same morning of the crash was appropriately
admitted to prove criminal negligence.

State v. Weaver
20220182-CA 	16 	2023 UT App 154
¶34 	Weaver contends the text messages could invite “improper
speculation” about Weaver’s character and whether he had
driven on opioids in the past. Yet the “possibility [of an improper
inference] is not enough to dictate the exclusion of [the texts]
under rule 404(b).” See State v. Thornton, 2017 UT 9, ¶ 58, 391 P.3d
1016. Evidence “is presumptively admissible (subject to rule 402
and 403 analyses)” so long as it “has a plausible, avowed purpose
beyond the propensity purpose that the rule deems improper.” Id.
Moreover, “[w]here evidence is undeniably probative of the
central issue in a case, the danger of unfair prejudice substantially
outweighing 	the 	probative 	value 	of 	the 	evidence 	is 	low.”
Anderson-Wallace v. Rusk, 2021 UT App 10, ¶ 24, 482 P.3d 822.
Thus, we find no abuse of discretion in the court’s narrow ruling
admitting the text messages because the texts show Weaver was
aware of the risk he took by driving with oxycodone in his system
on the morning of the crash.
III. Sufficiency of the Impairment Evidence
¶35 	Finally, Weaver argues the State presented insufficient
evidence of impairment. The elements of negligent automobile
homicide are met when an actor “is under the influence of . . . any
drug . . . to a degree that renders the actor incapable of safely
operating a vehicle” and the actor “operates a vehicle in a
negligent or criminally negligent manner causing the death of
another individual.” Utah Code § 76-5-207(2). “In assessing a
claim of insufficiency of the evidence, we review the evidence and
all inferences which may reasonably be drawn from it in the light
most favorable to the verdict of the jury.” State v. Nielsen, 2014 UT
10, ¶ 30, 326 P.3d 645 (cleaned up). Thus, our “procedural
posture” requires us to “view the evidence in the light most
favorable to the State.” State v. Graydon, 2023 UT App 4, ¶ 39, 524
P.3d 1034 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023). The
State provided sufficient evidence of these elements, including
(1) testing of Weaver’s blood that showed oxycodone in his
system, (2) Weaver’s failure to report taking oxycodone, (3) the
text messages showing his awareness of the risk of driving with

State v. Weaver
20220182-CA 	17 	2023 UT App 154
anything 	in 	his 	system, 	and 	(4) 	Eyewitness’s 	and 	Officer’s
testimonies of Weaver’s erratic driving.
¶36 	The 	State 	presented 	evidence 	at 	trial 	of 	Weaver’s
toxicology report that showed Weaver had oxycodone in his
system at the time of the crash. Weaver’s blood was not tested
until almost four hours had passed since the crash, but even at
that point, the toxicology report showed Weaver still had 46
nanograms per milliliter of oxycodone in his system. Weaver’s
own toxicology expert estimated that Weaver’s blood level at the
time of the crash was “80 nanograms per milliliter instead of 46,”
in excess of the therapeutic range. Yet Weaver failed to disclose
his opioid use to emergency responders and medical personnel
treating him the day of the crash; instead, he reported taking only
a sleeping aid that day. And, as discussed earlier, the text
messages admitted at trial showed Weaver was aware of the risk
of driving with “anything” in his system and that Weaver’s wife
considered him “unsafe to drive” when taking opioids.
¶37 	Eyewitness testified Weaver was “excessively swerving”
into the shoulder “by a good 18 inches, maybe two feet” and then
over into the adjacent lane “several times” shortly before the crash
occurred. Weaver “kept getting further out each time” until “his
center differential was over the dotted line” and Weaver’s truck
was straddling two lanes. Eyewitness also confirmed there was a
flashing light warning drivers about the stop light ahead. Officer’s
testimony likewise supported a reasonable inference of impaired
driving. Officer testified that Weaver’s truck was going 72 miles
per hour only four seconds before impact and 57 miles per hour
at impact. Officer concluded Weaver was “not braking very hard”
in the three seconds of braking before his truck crashed into
Kelly’s car. This testimony about Weaver’s erratic driving and
unusual 	braking 	aligns 	with 	Toxicologist’s 	explanation 	that
oxycodone is a central nervous system depressant with “common
impairment effect[s]”—including “sleepiness, fatigue, dizziness,
and drowsiness”—which is why the oxycodone packaging warns
not to operate heavy machinery, “such as driving.”

State v. Weaver
20220182-CA 	18 	2023 UT App 154
¶38 	Weaver 	takes 	issue 	with 	the 	State’s 	evidence 	of
impairment, arguing that erratic driving alone cannot show
impairment. While we agree that momentarily straying into
another lane, for instance, might not on its own be enough to
prove 	impaired 	driving, 	Weaver’s 	erratic 	driving 	here 	was
prolonged: he was seen swerving “several times” in and out of
both sides of his lane to the point that half of his truck was in the
other lane; his speed was excessive given the flashing light
indicating a stop light ahead; and he applied the brakes not as an
alert, sober driver would when approaching a red light at over 70
miles per hour, but in such a way that he was still going 57 miles
per hour at impact. The State also presented evidence that road
conditions and visibility were good on the day of the crash, and
there was no evidence that Weaver’s prolonged erratic driving
was caused by anything other than impairment. Thus, we are
persuaded that the evidence of impairment was sufficient.
CONCLUSION
¶39 	Weaver failed to demonstrate that Trial Counsel rendered
constitutionally ineffective assistance, the trial court did not abuse
its discretion when it admitted the October 9 and October 11 text
messages, 	and 	the 	State 	presented 	sufficient 	evidence 	of
impairment. Accordingly, we affirm Weaver’s conviction.