State v. Hamberlin

2025 UT App 131

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ALAN DUDLEY HAMBERLIN,
Appellant.

Opinion
No. 20230212-CA
Filed August 28, 2025

Sixth District Court, Kanab Department
The Honorable Mandy Larsen
No. 211600067

Freyja Johnson and Rachel Phillips Ainscough,
Attorneys for Appellant
Derek E. Brown and Natalie M. Edmundson,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 A hunter, aided by a guide, claimed to have shot a mule
deer in Arizona near the border with Utah, in an area for which
he had drawn a tag to hunt. The hunter and guide purportedly
pursued the wounded animal into Utah until it succumbed to its
injuries and died, at which point they field dressed it and carried
certain portions back to Arizona, where an acquaintance picked
them up. 1 But another hunting party saw things differently and

1. Field dressing refers to the process of removing the internal
organs at the site of the kill to preserve the meat and other
(continued…)
State v. Hamberlin

reported to authorities that the deer had been illegally shot in
Utah. An investigation produced significant evidence that the
deer had, in fact, been shot in Utah. A jury convicted the hunter
of wanton destruction of protected wildlife. On appeal, the
hunter, Alan Dudley Hamberlin, raises several claims of
ineffective assistance of counsel. His claims are not availing, and
we affirm. 2

BACKGROUND 3

The Hunt

¶2 The events leading to Hamberlin’s conviction began when
he drew a tag to hunt mule deer in unit 12B, an area of land
located in Arizona near the Utah border. Given the border’s
proximity, knowledge of its exact location was, in Hamberlin’s
words, “very important.” Hamberlin had considered hiring Sam
Dieringer to act as his hunting guide but ultimately found his fee
too high. He ended up hunting with Ryan Hatch (another guide)
and other acquaintances instead.

valuable parts of the animal. See Center for Biological Diversity v.
United States Forest Service, 80 F.4th 943, 947 (9th Cir. 2023).

2. This is a companion case to State v. Hatch, 2025 UT App 132,
which resolves the guide’s appeal from his related conviction of
assisting in wanton destruction of protected wildlife.

3. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Skinner, 2020 UT App 3, n.1, 457
P.3d 421 (cleaned up).

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State v. Hamberlin

¶3 Hamberlin and Hatch tracked a mule deer, which
Hamberlin maintained he shot in Arizona. According to
Hamberlin, he was south of the border when he took the shot. But
Hamberlin said the deer wandered northward after being hit.
Hamberlin recalled being “a little bit nervous” while following
the deer, as they were “very close to the border” of Utah.
Eventually, they found the deer where it had collapsed and died.
They proceeded to field dress it.

The Report from Another Hunting Party

¶4 Dieringer and his companions were also hunting in unit
12B that day, specifically near an area known as White Pocket, an
area in Arizona just south of the Utah border. This group was
tracking two deer: one that was located in Arizona and another
that was several miles into Utah. Dieringer’s group did not pursue
the Utah deer because its members lacked the necessary hunting
tags for Utah. But they were watching the Utah deer to see if it
would cross into Arizona, where they could legally shoot it. The
Utah deer appeared to “bed down” in Utah behind some trees and
showed no signs of moving toward Arizona.

¶5 A few hours after seeing the deer bed down, several
members of Dieringer’s group heard a single gunshot coming
from the north. Approximately five to fifteen minutes after the
shot, they saw Hamberlin and Hatch in the same spot where the
deer had bedded down in Utah. The group then observed
Hamberlin and Hatch field dress the deer in the place where it
had died. Following these observations, Dieringer used a tipline
to report Hamberlin and Hatch to wildlife authorities. Dieringer
provided Arizona and Utah officials with a possible location of
the deer carcass based on Dieringer’s GPS readings.

The Investigation

¶6 Wildlife officers from Arizona and Utah launched an
investigation upon receiving the report. Officer Stout from the

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Utah Division of Wildlife Resources (Utah DWR) found the deer’s
carcass in Utah by using the coordinates provided by Dieringer
and following boot tracks “coming out of the area.” The carcass
was “headless, skinned, and quartered” and was surrounded by
a “bunch of tracks.” Though darkness prevented a full necropsy,
Officer Stout did collect samples for DNA analysis at that time.
The distance from the location of the carcass in Utah to the
Arizona border was just over a mile.

¶7 Before learning that Officer Stout had found the carcass,
Ranger Legler from the Bureau of Land Management and Officer
Pierce from the Arizona Game and Fish Department located
Hamberlin and Hatch at their Arizona campsite and asked them
about the deer Hamberlin had shot. Officer Pierce told Hatch,
“[W]e heard it was shot in Utah.” After about a four-second
pause, Hatch responded, “[S]hot in Utah? No,” insisting instead
that they had shot the deer near White Pocket in Arizona. Neither
Hamberlin nor Hatch mentioned that the deer had wandered into
Utah after being shot. Officer Pierce took a tooth sample from the
deer to conduct a DNA analysis. Subsequent testing confirmed
that the DNA from the tooth matched the carcass that Officer
Stout found in Utah.

¶8 After being informed by Officer Stout that he found the
carcass in Utah, Officer Pierce and Officer Six from the Utah
DWR returned to the camp area to seize Hatch’s and
Hamberlin’s boots and cellphones and the deer’s head and
hide. But Hatch had already left the campsite with the deer’s
parts. He was pulled over near Kanab by a county sheriff, and
Officer Six was called to investigate. Officer Six asked Hatch
where the head and meat of the deer were, but Hatch “didn’t
really tell” him and “kind of avoided the question.” When Officer
Six asked where the deer was shot, Hatch responded that he was
“not sure where [they] shot it.” Again, Hatch never gave any
indication to Officer Six that the deer had been shot in Arizona
and then ran into Utah. Officer Six seized Hatch’s boots, but the

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deer parts and Hatch’s cellphone were not located, even after
Officer Six searched the vehicle.

¶9 Officers Stout, Pierce, and Six, accompanied by Officer
White from the Utah DWR, returned to the location of the carcass
the next day to continue the investigation. Officer Stout found
three bullet fragments in the carcass—two in the gut and one near
the ribs. There was also a laceration to the deer’s heart. Officer
Stout concluded that the injury to the heart occurred premortem
because there was bruising along the edge of the wound. There
were no bullet fragments in the heart, nor was there an exit wound
in the heart.

¶10 The wildlife officers also investigated the area around the
carcass. They identified the area where the deer had bedded down
as the “kick-out” spot, which refers to the area where the deer was
shot and kicked out with its legs in response to being shot. This
particular kick-out spot was “a half-moon shape” in the sand.
After leaving the kick-out spot, the deer ran about 117 yards to
where it collapsed and its carcass was found. Notably, the kick-
out spot was in Utah. Wildlife officers also located the spot from
which they suspected the shot that killed the deer had been fired.
This area showed “a great disturbance” on the ground—the “sand
had been displaced” where someone had been kneeling or sitting
and there was “a lot of activity . . . in that spot.” This spot was in
Utah as well. There were also marks from a tripod or bipod
present at the suspected shot location. The walking distance from
the suspected shot location to the kick-out spot was just over five
minutes or approximately 370 yards.

¶11 Boot prints found near the carcass appeared to match the
pattern of the soles of the boots worn by Hamberlin and Hatch.
Moreover, Hamberlin’s tracks, Hatch’s tracks, and the deer’s
tracks converged at the kick-out spot. From there, the deer’s tracks
indicated that the animal had been running until it collapsed.
Officer White found the deer’s tracks concentrated in the areas of

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Utah described above and could not find any tracks coming from
Arizona to Utah. Further, he did not recall seeing any deer tracks
running south to north, which he would have expected to see if
hunters were following the deer from Arizona into Utah.

¶12 Officers Pierce and Six followed the boot tracks away from
the carcass. They led to a road in Arizona. The walking distance
from the carcass to the road where Hamberlin and Hatch were
apparently picked up by an acquaintance was about forty-eight
minutes.

¶13 Based on this evidence, Hamberlin was charged with one
count of wanton destruction of protected wildlife. Hatch was
charged with one count of aiding or assisting wanton destruction
of protected wildlife and one count of obstruction of justice.

The Trial

¶14 At a joint trial, the State presented testimony from
members of Dieringer’s hunting group and law enforcement
officers. They testified to the facts as summarized above and the
following as relevant on appeal.

¶15 Colton Lee, a member of the Dieringer group, testified that
he heard the gunshot on the day the deer was killed and began
making notes to ensure that there would be “a timeline . . . on
what had happened.” Those notes, which Lee read as part of his
testimony, indicated the following: Dieringer had spotted a “big
buck, approximately one mile into Utah” around 8:00 a.m.;
another member of the group saw Hatch and Hamberlin headed
northbound in a truck toward the deer around 8:30 a.m.; around
11:30 a.m., two members of the group heard the gunshot; at
around 11:45 a.m., Dieringer saw Hamberlin and Hatch in the
spot where the deer had been seen, from which point they tracked
it for about a hundred yards; and, also at 11:45 a.m., Hamberlin
and Hatch were seen field dressing the deer.

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¶16 Lee also testified that he had hunted since he was a “young
kid” and had been a guide, hunting around fifty or sixty deer over
the years. He testified that there was a “broad spectrum” of how
deer react after being shot. He had seen deer run twenty-five or
thirty yards and then stop after being shot, but he had also on rare
occasion seen them “run and run and run.” In addition, Lee
testified that if a deer is shot and leaves the hunting boundary, the
“proper procedure is to contact” the state’s wildlife officers to
notify them: “[S]ay it went into Utah, you would contact Utah
game and fish and they would document the fact that it was in
Utah.”

¶17 Dieringer testified that he ran a guide business and
had hunted hundreds of times. He agreed that it was
“reasonable for a deer . . . shot with heart damage and in the gut .
. . to run 125 yards” before lying down and dying but that it
“wouldn’t be normal” for a deer to run a mile or more after having
been shot in that way, explaining that when deer are shot in the
vital organs, “it causes too much damage for them to . . . travel
that far.” Dieringer also said that if a deer is shot and leaves the
hunting boundary, a hunter should call wildlife officers to notify
them.

¶18 Wyle Soller testified that he was part of Dieringer’s
group and had guided hunts about thirty-five times. He said that
in his experience, if a deer was shot in the gut with some heart
damage, it might run for 125 yards before lying down to die.
He also testified that, in his experience, a deer would not run
for a mile when its heart had been hit by a shot. Finally, Soller
stated that if a deer leaves the hunting boundary after being shot,
the hunter should call state wildlife officers to report the
movement.

¶19 Ranger Legler, who was an experienced hunter, similarly
testified that hunters should notify game officers if a deer leaves
a hunting boundary after being shot. He further testified that most

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deer travel only “a short distance” after being shot and that “if it’s
a critical wound, heart, lungs, something like that, then they
expire pretty quickly.”

¶20 Officer Pierce testified that he had “gutshot” three deer,
none of which traveled more than a half mile after being hit.

¶21 Officer Stout, who testified about his examination of the
deer carcass, stated that he had degrees in zoology and forensic
science, with an emphasis in ballistics. He had worked for the
Utah DWR for twenty-one years (thirteen of which were spent as
an investigator with a focus on ballistic analysis). He stated that
he had performed between 300 and 500 necropsies. He testified
that he examined the heart of the deer Hamberlin shot and found
a “through-and-through” wound on the side caused by a bullet
fragment. He clarified that he did not see an “exit hole” caused by
a bullet; rather he found a wound “on the edge of the heart, not
. . . going through the heart” but “[i]nto the heart on the side.” He
also stated that he assessed the amount of damage the heart had
sustained by “look[ing] at the entire heart” as he held it “in [his]
hands.”

¶22 Officer Stout further testified that he did not “believe that
a deer could run . . . very far with that damage to the heart.”
Specifically, he concurred that a deer with the damage to the heart
he observed could not have traveled over a mile after being shot.
Officer Stout stated that while he agreed that the “wound to the
heart was a fatal wound,” he clarified that the “bullet wound and
subsequent damage . . . likely all contributed” to the deer’s death
and that “what would have killed it most quickly was the damage
to the heart.” As relevant here, Officer Stout did not collect the
heart, instead choosing to document the damage with
photographs, which were introduced as evidence at trial. And
while he didn’t dissect the heart, he used a metal detector to
determine that there were no bullet fragments lodged in the
organ.

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¶23 After the State rested, the defense called Garth Carter, a
retired Utah DWR officer with a degree in wildlife management,
to testify as an expert witness. When asked if he had ever “seen a
gutshot deer run a mile and a half before” dying, Carter replied
that while he couldn’t recall a “particular incident where it
happened,” he would not be surprised if it did happen because a
wounded animal can “go far,” depending on the seriousness of
the injury. Carter further described the investigation by the
wildlife officers as “botched” because investigating officers “had
an opportunity to collect the evidence and they didn’t.”

¶24 Hamberlin testified in his own defense. He said that he and
his hunting party had gone to White Pocket 4 to hunt. Hamberlin
said that he and Hatch eventually spotted the deer in question.
Hamberlin said he shot the deer at a location that he estimated
was about 300 yards inside the Arizona border but then lost sight
of it. He claimed that he and Hatch located where the deer was hit
and proceeded to track the wounded animal as it headed north.
Knowing that they were very close to the border, Hamberlin
testified that he was a “little bit nervous.” He said they built a fire
to warm their hands and then spotted the deer laboring to move
in the distance. Hamberlin testified that he couldn’t notify the
Utah DWR because he and Hatch didn’t have a phone signal. So
Hamberlin purportedly left his rifle near the campfire as they
continued to pursue the deer. He testified that they eventually
saw the deer drop to the sand, at which point they waited about
thirty minutes for it to die. Hamberlin explained that the spot
where they waited was the location that investigators had

4. Several of the trial exhibits were maps of the area. These maps
indicate that White Pocket was 4.49 miles south of the kick-out
location, which was 117 yards west of the carcass location, which
was, in turn, 1.05 miles north of the Utah-Arizona border.
Accordingly, the jury would have easily been able to see from
these map exhibits that White Pocket was in Arizona, at least three
miles south of the Utah border.

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identified as the suspected shot location. He also claimed that
Hatch had his tripod with him to use with his binoculars. After
determining the deer had died, Hamberlin and Hatch walked
over to the deer and proceeded to field dress it. He asserted that
they then loaded up the head, the hide, and some of the meat into
their packs and walked back to Arizona, where they met up with
another member of their hunting party.

¶25 Hatch did not testify.

¶26 The jury convicted Hamberlin of wanton destruction of
protected wildlife. And Hatch was convicted of assisting in
wanton destruction of wildlife. However, Hatch was acquitted on
the obstruction of justice charge because the acts supporting that
charge had all occurred in Arizona; indeed, the State conceded in
closing that it “probably didn’t prove” the obstruction count and
expressed that it did “not feel comfortable” asking the jury to
return a guilty verdict on that count.

The Motion for a New Trial

¶27 Following his conviction, Hamberlin, represented by new
counsel, filed a motion for a new trial. His motion rested on the
assertion that his trial counsel (Counsel) had been ineffective in
two critical ways. First, Hamberlin contended that Counsel failed
to adequately investigate and present exculpatory expert
testimony regarding the deer’s cause of death and its ability to
travel after being shot. This claim specifically highlighted a
missed opportunity to seek a continuance to secure such an expert
when Officer Stout presented what Hamberlin contended were
previously undisclosed opinions during the trial. In support of
this point, Hamberlin provided a veterinarian’s affidavit. The
veterinarian’s affidavit proffered that a necropsy and dissection
were essential for an accurate determination of the deer’s cause of
death. Furthermore, the veterinarian believed that the damage to
the heart was likely not the direct cause of death and that
biological evidence suggested that the deer’s death was not

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State v. Hamberlin

immediate. He would have opined that the death was probably
due to prolonged bleeding and bacterial infection from gut
leakage, combined with shock and blood loss. The veterinarian
would have also testified that his review of the evidence
suggested that “the subject deer had the strength to travel several
miles after being shot.” Hamberlin also argued that Counsel was
ineffective for not asserting a due process violation based on the
State’s failure to preserve the deer’s heart, which Hamberlin
asserted was key evidence in the case.

¶28 The district court denied Hamberlin’s motion for a new
trial. The court provided specific reasoning for its decision,
finding that Counsel was not ineffective in either area. Regarding
the expert testimony claim, the court reasoned that Counsel’s
cross-examination of Officer Stout was thorough. Counsel
successfully elicited testimony that there was no evidence of
internal damage to the heart. The court noted that the State never
presented evidence of internal heart damage, thus rendering a
veterinarian’s testimony on that specific point unnecessary.
Additionally, the court noted that the defense did present Carter’s
testimony confirming that a gut-shot deer could indeed travel the
distance Hamberlin claimed. Regarding the due process claim for
not preserving the heart, the court similarly determined that
Counsel was not ineffective. It reasoned that the State never
contended “there was internal heart damage.” Therefore, the
court concluded—referencing Officer Stout’s testimony—that
preserving the heart would have offered no benefit in proving
there was no bullet in the heart’s chamber.

ISSUE AND STANDARD OF REVIEW

¶29 Hamberlin appeals, arguing that the district court should
have ruled that Counsel was ineffective. “[W]hen a district court
rules on a criminal defendant’s claim that he was deprived of his
Sixth Amendment right to counsel due to ineffective assistance,
the district court’s determination of whether the defendant

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State v. Hamberlin

received constitutionally ineffective assistance is reviewed for
correctness.” State v. Torres-Orellana, 2024 UT 46, ¶ 6, 562 P.3d
706. 5

ANALYSIS

¶30 To succeed on a claim of ineffective assistance of counsel, a
defendant must meet two foundational legal requirements: first,
proving that counsel’s performance was deficient and, second,
proving that this deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant’s
failure to establish either deficient performance or prejudice
“defeats a claim for ineffective assistance of counsel.” State v.
Cruz, 2020 UT App 157, ¶ 17, 478 P.3d 631 (cleaned up).

¶31 To establish deficient performance, a “defendant must
show that counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. Because
there is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” id. at 689,
“even if an act or omission [was] inadvertent and not due to a

5. The State filed a motion to strike two footnotes in Hamberlin’s
opening brief on appeal that refer to comments made by a
purported juror on an internet forum. Under rule 606(b)(1) of the
Utah Rules of Evidence, the “court may not receive a juror’s
affidavit or evidence of a juror’s statement” on “any statement
made or incident that occurred during the jury’s deliberations; the
effect of anything on that juror’s or another juror’s vote; or any
juror’s mental processes concerning the verdict.” The motion is
granted, and we do not consider those footnotes in reaching our
conclusions herein. See Jessop v. Hardman, 2014 UT App 28, ¶ 29,
319 P.3d 790 (concluding that a trial court was “well within its
discretion” to strike a declaration describing jury “deliberations
themselves and one juror’s opinion of other jurors’ mental states
and voting motivations”).

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State v. Hamberlin

purposeful strategy, relief is not automatic,” State v. Torres-
Orellana, 2021 UT App 74, ¶ 28, 493 P.3d 711 (cleaned up), aff’d,
2024 UT 46, 562 P.3d 706. The ultimate question in determining
deficient performance remains “whether, considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350.

¶32 To establish prejudice, the defendant must show that the
deficient performance harmed the defense. Strickland, 466 U.S. at
687. This means that “a defendant must present sufficient
evidence to support a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different,” Archuleta v. Galetka, 2011 UT 73, ¶ 40,
267 P.3d 232 (cleaned up), so as to erode our “confidence in the
outcome,” Strickland, 466 U.S. at 694. “In determining prejudice,
an appellate court should consider the totality of the evidence,
taking into account such factors as whether the errors affect the
entire evidentiary picture or have an isolated effect and how
strongly the verdict is supported by the record.” Torres-Orellana,
2021 UT App 74, ¶ 29 (cleaned up). Courts are “more readily”
inclined to conclude errors are “harmless when confronted with
overwhelming evidence of the defendant’s guilt.” State v. King,
2010 UT App 396, ¶ 35, 248 P.3d 984. Conversely, they “are more
willing to reverse when a conviction is based on comparatively
thin evidence.” Id.

I. Failure to Obtain an Expert

¶33 Hamberlin first argues that the district court erred when it
determined that Counsel did not provide ineffective assistance in
failing to obtain an expert who could have provided purportedly
exculpatory evidence about the cause of the deer’s death.
Specifically, Hamberlin asserts that an “expert would have
opined that the biological evidence supported that the deer could
have lived long enough to travel into Utah” after being shot in
Arizona. Considering “the defense’s theory of the case that

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[Hamberlin] shot the deer in Arizona and tracked it into Utah
before the deer died,” Hamberlin argues that “reasonable counsel
would have understood that a crucial question would be whether
the deer could have traveled the distance in question after being
shot” because it “was critical to know why and when the deer
died.” He argues that this “evidence did not come in through any
other witness, leaving a significant gap in the evidentiary
picture.”

¶34 This claim of ineffective assistance fails on both the
deficient performance and prejudice prongs. We address each in
turn.

¶35 Counsel did not perform deficiently in failing to obtain an
additional expert who could opine about this specific deer’s cause
of death. As our supreme court has made clear, “counsel has a
duty only to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” Menzies v. State, 2014 UT 40, ¶ 183, 344 P.3d 581
(cleaned up), abrogated on other grounds by McCloud v. State, 2021
UT 51, 496 P.3d 179. And while “there must be a reasonable,
articulable reason for not interviewing a particular witness or for
not following a particular lead, . . . the mere fact that other
witnesses might have been available or that other testimony
might have been elicited from those who testified is not a
sufficient ground to prove ineffectiveness of counsel.” Id. (cleaned
up). Instead, in “any ineffectiveness case, a particular decision not
to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Strickland v. Washington, 466 U.S. 668, 691
(1984).

¶36 Here, the record is clear that Counsel did recognize the
need for an expert witness in this case. After all, Counsel retained
a retired Utah DWR officer with a degree in wildlife management
to testify as an expert witness. Hamberlin—in hindsight—

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maintains that Counsel should have hired an additional expert
with a background in veterinary medicine. While it is true that
Counsel did not hire the expert that Hamberlin now insists he
should have hired, that does not mean that Counsel failed to
conduct a reasonable investigation as required by the Sixth
Amendment. After all, a “fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689. It is entirely within the realm
of adequate assistance for counsel “to make a reasonable decision
that makes particular investigations unnecessary.” Id. at 691. This
means that even when there are “any number of hypothetical
experts . . . whose insight might possibly have been useful,”
counsel is nevertheless “entitled to formulate a strategy that was
reasonable at the time and to balance limited resources in accord
with effective trial tactics and strategies.” Harrington v. Richter, 562
U.S. 86, 107 (2011).

¶37 Given the discretion to engage in reasonable trial tactics
and strategies, it was also reasonable for Counsel to opt to avoid
transforming the “case into a battle of the experts.” Id. at 109.
Whether to choose one particular expert over another is a
quintessential strategic decision that we are loath to second-guess
with the benefit of hindsight. See State v. Houston, 2015 UT 40, ¶ 90,
353 P.3d 55 (characterizing the assertion “that appellate counsel
would have called and retained different experts than those trial
counsel decided to present to the jury” as a tactical decision);
Brown v. State, No. 09-22-00057-CR, 2023 WL 5948365, at *3 (Tex.
App. Sept. 13, 2023) (stating that because the court could “imagine
a strategic motivation for not retaining or calling another expert,”
the defendant had “failed to overcome the presumption that this
was sound trial strategy“); Hall v. State, No. E2004-01635-CCA-R3-
PD, 2005 WL 2008176, at *32 (Tenn. Crim. App. Aug. 22, 2005)
(“Counsel’s decision not to call another expert is one of trial
strategy, and we will not second-guess that decision on appeal.”);

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cf. McCloud v. State, 2021 UT 51, ¶ 38, 496 P.3d 179 (“Counsel did
not perform deficiently by not consulting experts; rather, he made
a reasonable strategic decision based on the law and facts of the
case and his theory of the defense.”).

¶38 One reasonable strategic basis for Counsel to choose not to
call the veterinary expert Hamberlin now suggests was to avoid
the risk of the State calling its own rebuttal experts. For instance,
calling an expert in veterinary medicine would have risked the
State responding by calling its own veterinary medicine expert—
or experts—in rebuttal. The State had, in fact, informed the district
court that it was prepared to do so when it indicated it had been
in contact with two other experts: (1) an experienced heart
surgeon who had “shared his professional opinion about the
many ways a laceration to the heart would be fatal” and (2) a
doctor of veterinary medicine who worked for the Utah DWR and
who would have countered the claims of Hamberlin’s proposed
expert.

¶39 In this scenario, Counsel would know that Hamberlin
faced a numerical disadvantage, with the State having more
experts than Hamberlin. Thus, Counsel could have reasonably
wanted to steer clear of what looked like a losing battle and avoid
giving the State a chance to present more robust testimony
through these additional experts. This demonstrates how the
decision to hire a particular expert, or to forgo one, is often a
deeply strategic choice aimed at managing potential risks and
advantages in court—a decision on the part of counsel that is
inherently reasonable in many circumstances, this one included.
Moreover, Counsel had vigorously cross-examined Officer Stout
and likely reached the reasonable conclusion that he had made the
points he needed to make, thus reducing the need for an
additional expert.

¶40 In addition to failing to show deficient performance,
Hamberlin has also not demonstrated how he was harmed—even

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if we were to assume that Counsel’s performance fell short of
reasonable representation. Several reasons compel this
conclusion.

¶41 First, the State never argued that there was internal
damage to the heart. Nor did Officer Stout ever testify that there
was internal damage to the heart. Rather, he said the bullet
fragment went “through-and-through” along the side of the heart.
More specifically, he clarified that he did not see an “exit hole”
caused by a bullet. Instead, he found a wound “on the edge of the
heart, not . . . going through the heart” but “[i]nto the heart on the
side.” And he documented exactly what he observed through
photographs, which were introduced at trial and available for
review by any expert. In other words, the State never presented
evidence that the deer was shot in the heart such that it caused
any internal damage. The expert evidence that Hamberlin asserts
should have been obtained would have, at best, offered additional
evidence about the damage to the heart, but the amount of
damage to the heart was never really in question.

¶42 Second, there was abundant physical evidence that the
deer was in Utah when it was shot, was shot from a point in Utah,
and died in Utah. Investigators pinpointed where the deer was
located when it was shot. From this location, they determined the
path it took to the spot where it died. Moreover, they identified
the location from where the shot was likely taken. And perhaps
most telling, all the deer’s tracks were found entirely in Utah. For
Hamberlin’s account to have been believable to the jury, there
would have to be some evidence of deer tracks leading from
Arizona into Utah. But none were found—in spite of the fact that
they would likely have been readily visible along with the tracks
that were found in Utah. Hamberlin has not assailed or undercut
the evidentiary picture these facts established.

¶43 In addition, the competing hunting party heard a nearby
shot and then saw Hamberlin and Hatch field dressing the deer

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State v. Hamberlin

no more than fifteen minutes later. And, if the deer had been shot
in Arizona, Hamberlin would have needed more than fifteen
minutes to get to the location in Utah where he and Hatch began
field dressing it for his story to be credible. In short, given this
abundant evidence that the deer was never in Arizona during the
events that resulted in its death, there is simply no likelihood of a
better result for Hamberlin even if his proposed expert had
testified. Even had his expert testified that the deer could have
traveled for some distance after having sustained a wound to the
heart such as it suffered, it would do nothing to overcome the
weighty evidence that the deer was in Utah during the entire
episode. As such, any testimony Hamberlin’s proposed expert
could have offered would likely have been inconsequential in
swaying the jury to adopt Hamberlin’s version of events.

¶44 So, while the damage done to the heart was relevant to the
cause and timing of the deer’s death, we do not see a reasonable
probability that any evidence that Hamberlin’s expert could have
offered in this respect would have overcome the plentiful
evidence that Hamberlin shot the deer in Utah. And Hamberlin
has not offered a persuasive argument that the jury would have
returned a more favorable verdict had it heard the testimony of
his proposed expert.

¶45 Because Hamberlin has failed to show either deficient
performance or prejudice, we detect no error in the district court’s
conclusion that Hamberlin did not receive ineffective assistance
of Counsel on this point.

II. Failure to Move for a Continuance

¶46 Hamberlin also argues that the district court erred in
concluding that Counsel did not provide ineffective assistance
despite the failure to seek a “continuance to obtain an expert at
trial when [Officer Stout] gave opinions at trial about the damage
to the deer heart and cause of the deer’s death.” This assertion is

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State v. Hamberlin

unsuccessful for the same fundamental reasons that his first claim
failed.

¶47 First, Counsel did not perform deficiently in deciding to
forgo seeking a continuance that would have likely transformed
the case into a battle of the experts—a battle which would have
likely ended up, for the reasons we have identified,
compromising Hamberlin’s case more than helping it. See supra
¶¶ 37–39.

¶48 Second, for the same reasons as identified, see supra ¶¶ 41–
44, we conclude that Hamberlin was not prejudiced by this
alleged deficiency. In other words, there is no reasonable
probability that additional expert testimony would have changed
the evidentiary landscape that led to the conclusion that
Hamberlin shot the deer in Utah.

III. Failure to Allege a Due Process Violation

¶49 Hamberlin’s final claim is that the district court incorrectly
concluded that Counsel did not provide ineffective assistance for
failing to allege a due process violation based on the State’s failure
to preserve evidence. Hamberlin argues that the State should have
preserved the deer’s heart, dissected it, and taken samples from
it. He asserts that this evidence would have been exculpatory
because it would have shown “that the heart did not have internal
damage from a bullet fragment.”

¶50 “To determine whether the State’s [loss or] destruction of
potentially exculpatory evidence violates due process, the Utah
Supreme Court has established a threshold requirement that is
followed by a balancing test.” State v. Steele, 2019 UT App 71, ¶ 15,
442 P.3d 1204 (cleaned up). A defendant must “establish as a
threshold matter a reasonable probability that the lost or
destroyed evidence would have been exculpatory.” State v.
DeJesus, 2017 UT 22, ¶ 19, 395 P.3d 111. “Only after the defendant
has established this point—and accordingly established that there

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State v. Hamberlin

was a due process violation resulting from the loss of evidence—
should a court” move on to “balance the culpability of the State
and the prejudice to the defendant in order to gauge the
seriousness of the due process violation and to determine an
appropriate remedy.” Id. ¶¶ 27, 29.

¶51 Hamberlin develops this argument under State v. DeJesus,
2017 UT 22, 395 P.3d 111, and State v. Tiedemann, 2007 UT 49, 162
P.3d 1106, the latter being the foundational case addressing
preservation of evidence in Utah. Hamberlin is unable to
demonstrate that DeJesus and Tiedemann are applicable here
because he “cannot meet the threshold requirement of showing a
reasonable probability that the [heart] would have been
exculpatory.” See State v. Mendoza, 2025 UT App 46, ¶ 20, 568 P.3d
265, cert. denied, 570 P.3d 661 (Utah 2025). At most, it would have
shown that the bullet fragment never caused any internal damage
to the heart. But this is no different from what Officer Stout said,
namely that the fragment went through the side of the heart,
causing a laceration or glancing injury to the organ.

¶52 The district court’s determination that Counsel was not
ineffective for failing to allege a due process violation concerning
the deer’s heart was based on the State’s position that it did not
contend that any internal heart damage had occurred.
Consequently, the court said that “there was no reason to save a
heart to dissect it.” In other words, the heart’s preservation would
not have helped Hamberlin’s defense because it related to a point
no one was contesting—that there was no bullet in the heart’s
chambers. Indeed, Officer Stout’s opinion on the deer’s cause of
death did not hinge on whether the heart’s chambers had been
penetrated. Even though Officer Stout’s examination already
indicated that a bullet fragment had not entered the heart,
Hamberlin still argues that proper preservation and dissection of
the heart would have confirmed no internal damage from a bullet
fragment. He asserts that such evidence would have undermined
Officer Stout’s claim that a bullet fragment “entered the heart”

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State v. Hamberlin

and caused the deer’s death. But again, that was not Officer
Stout’s testimony.

¶53 Hamberlin’s proposed expert—the veterinarian—asserted
in his affidavit that there was “substantial evidence that the
wound found on the surface of the heart did not enter the chamber
(inside) of the heart.” Indeed, the veterinarian even cited Officer
Stout’s testimony that the wound was “on the side” of the deer’s
heart to support his opinion. The veterinarian goes on to state that
an injury “to the heart muscle would not in and of itself be a fatal
injury.” But nowhere does the veterinarian assert that preserving
the heart for later examination would have done anything to show
that the wound to the heart was something other than what
Officer Stout had testified to—a laceration to the side of the heart.
Thus, a later physical examination of the heart would—according
to the veterinarian—not have shown any more or any less damage
than what Officer Stout had already testified to. Given that—
according to the veterinarian—preserving the heart for later
examination would have shown what was already revealed in
Officer Stout’s testimony, we fail to see “a reasonable probability”
the heart evidence “would have been exculpatory.” DeJesus, 2017
UT 22, ¶ 19.

¶54 Hamberlin’s proposed expert also stated that had the
heart been preserved, tests could have been performed to
determine how long the deer lived after it had received the wound
to the heart. Specifically, he stated that testing could determine
“whether a wound was inflicted less than 5 minutes, 5–15
minutes, or 15 minutes to several hours before death.” (Quoting
an unidentified medical or forensic journal.) The veterinarian then
asserted that such testing on the heart would have “disproven the
prosecution’s assertions” that “the deer died in ten seconds” after
being shot and would have shown the members of Dieringer’s
group “were lying.”

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State v. Hamberlin

¶55 The problem with the veterinarian’s claims is that the
prosecution never asserted that the deer died within ten seconds
after being shot. Rather, insofar as our reading of the record
indicates, Officer Stout testified that the deer ran for “a matter of
seconds” after being shot. Specifically, the prosecutor argued that
the deer got shot, jumped up, ran 117 yards, and then died. From
this, it appears that Hamberlin’s proposed expert calculated that
this “would [have taken] approximately ten seconds to transpire”
and stated that the prosecution represented that the deer died ten
seconds after being shot. But this is not what the State argued—it
argued the deer ran 117 yards to the spot where it eventually died,
not that the deer dropped dead after ten seconds. What the
veterinarian suggests is nothing more than a straw-man argument
constructed to defeat an imagined assertion falsely attributed to
the prosecution. As such, it does not meet the threshold of
establishing reasonable probability that the heart would have
been exculpatory. Put more bluntly, the veterinarian’s opinion
about how lost evidence could defeat a phantom argument
simply is of no help to Hamberlin. Rather, it is “only speculation
as to what forensic evidence might have been found.” Mendoza,
2025 UT App 46, ¶ 20 (cleaned up). It certainly “does not rise to
the level of reasonable probability,” which is required to establish
that lost or destroyed evidence “would have been exculpatory.”
Id. (cleaned up). Our supreme court has stated that “a reasonable
probability” in the Tiedemann context “is a probability sufficient
to undermine confidence in the outcome.” State v. Mohamud, 2017
UT 23, ¶ 20, 395 P.3d 133 (cleaned up). But “there must be more
than speculation” that the evidence would have shown something
other than what was expressly conceded by the prosecution. Id.

¶56 Ultimately, Hamberlin’s claim of ineffective assistance fails
because he cannot demonstrate that the heart evidence would
have been exculpatory. Therefore, Counsel had no grounds to
raise a Tiedemann claim and did not perform deficiently by failing
to do so.

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State v. Hamberlin

CONCLUSION

¶57 Hamberlin has not demonstrated that he received
ineffective assistance when Counsel did not hire an additional
expert, did not move for a continuance, and did not allege a due
process violation. Accordingly, his conviction is affirmed.

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