State v. Hulse

2019 UT App 105
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
DOUGLAS JOHN H ULSE,
Appellant.
Opinion
No. 20150298-CA
Filed June 13, 2019
First District Court, Brigham City Department
The Honorable Thomas Willmore
No. 141100180
John Robinson Jr., Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 	Douglas John Hulse (Defendant) appeals his convictions
for aggravated assault and unlawful detention. He argues that
he received ineffective assistance of counsel because his attorney
(Trial Counsel) failed to investigate and use his victim’s prior
fraud conviction to attack her character for truthfulness, failed to
object to allegedly improper expert testimony, failed to object to
inadmissible evidence of his abusive nature, and failed to object
to inappropriate comments made by the State during closing
argument. We affirm.

State v. Hulse
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BACKGROUND1
¶2 	Defendant and the victim (Victim) were in a turbulent
on-again, off-again relationship spanning over 14 years. In 2014,
the couple spent Memorial Day weekend camping in Brigham
Canyon, where they both ingested “a lot of drugs.” By early
morning 	of 	the 	following 	Tuesday—May 	27, 	2014—Victim
wanted to return to their home in Tremonton. Victim testified
that she had not used any drugs that morning, but she believed
that Defendant had.
¶3 	On 	their 	way 	home, 	the 	couple 	decided 	to 	visit
Defendant’s father at a construction site in Brigham City. On the
way there, Defendant and Victim started arguing and yelling at
each other. Victim testified that such arguments were common
when Defendant used drugs. Upon arrival at the construction
site, Defendant tried to pull Victim out of the Jeep, but Victim
put the vehicle into drive and drove off, heading to Tremonton
without Defendant. Victim had almost made it home when her
Jeep ran out of gas on the interstate. She texted Defendant, and
he brought her some gas—the record does not reveal how. They
soon 	recommenced 	their 	arguing. 	Instead 	of 	continuing 	to
Tremonton, they headed back to the construction site in Brigham
City for Defendant to retrieve some tools from his father. At the
site, Defendant placed the tools between the Jeep’s two front
seats. 	The 	couple 	had 	not 	ceased 	arguing, 	so 	Defendant’s
father—who at trial described the two as “out of control” and
probably “on something”—requested that they leave.
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. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

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20150298-CA 	3 	2019 UT App 105
¶4 	Defendant and Victim next pulled into a gas station in
Brigham City. Defendant grabbed the keys out of the ignition
and began walking around. Victim, wanting to go home, began
yelling at Defendant and demanding to know where the keys
were. Defendant replied that he did not have them. The gas
station clerk soon approached them and requested that they
move their vehicle because it was blocking traffic at the pumps.
Frustrated, Victim continued to demand that Defendant return
the keys to the Jeep, and Defendant continued to insist that he
did not have them. They were both “screaming and yelling” at
each other. After approximately 45 minutes, Defendant, who
apparently no longer had the keys or at least pretended he did
not, 	was 	able 	to 	start 	the 	Jeep 	by 	“hot-wiring” 	it 	with 	a
screwdriver.
¶5 	Defendant and Victim then left the gas station and headed
toward Tremonton, with Defendant behind the wheel. During
the drive home, Victim “tr[ied] to be quiet and stay calm”
because she knew Defendant was irritated with her. Defendant
kept giving Victim “dirty looks,” mumbled that he hated her,
said that it was her fault that he was like this, and called her a
whore. Victim testified that Defendant had previously told her
that men should not hit women but that “whores deserve to be
beat and die.”
¶6 	Defendant eventually pulled the Jeep over in Deweyville.
Victim immediately became fearful and attempted to escape
the 	vehicle, 	but 	Defendant 	grabbed 	her 	by 	the 	hair 	and
pulled her back inside. He told her that if she knew “what’s
good for [her], [she] better stay in the . . . f’ing vehicle.” He
then put Victim in a headlock, bent her over toward him,
and started “pounding on” her with his fist and a pellet gun.
Defendant hit her in the ribs, on the back, and on the back of
her head. Victim managed to break away briefly, but Defendant
again 	grabbed 	her 	and 	slammed 	her 	face 	down 	onto 	the
tools that he had stored between the seats. One of the tools cut

State v. Hulse
20150298-CA 	4 	2019 UT App 105
her, 	leaving 	a 	gash 	across 	her 	forehead. 	While 	once
more 	holding 	Victim 	in 	a 	headlock, 	Defendant 	pointed
the screwdriver he had used to hot-wire the Jeep at her head;
again called her a “whore”; and told her “[she] deserved to
die, [she’d] be better off dead,” and “[her] kids would be better
off if [she] was dead.” Fearing for her life, Victim managed to
escape 	from 	Defendant’s 	grasp 	and 	ran 	toward 	the 	road.
Defendant did not pursue her, but he shouted for her to return
to the vehicle.
¶7 	Victim was able to convince the driver of a passing truck,
who had stopped to see if she needed help, to give her a ride to
Tremonton. Once home, one of her neighbors drove her to the
emergency room. Although Victim did not sustain a concussion
or broken bones, the assault left her covered in cuts and bruises.
The hospital notified the authorities, and Deputy Archuletta and
Deputy Palmer soon arrived. They discussed the assault with
Victim and took photographs of her injuries.
¶8 	Defendant was arrested later that evening. While being
interrogated by Deputy Palmer, Defendant admitted to being
with Victim at the construction site and gas station in Brigham
City earlier that day. During the course of the interrogation,
however, Defendant gave two differing answers as to where he
had last seen Victim. At one point, he told Deputy Palmer that
he had last seen her in Deweyville—the location of the assault.
But at another time, he stated that he last saw her at the gas
station in Brigham City. When Deputy Palmer asked about
Victim’s injuries, Defendant first stated that “she gets bruises at
work.”2 But after the deputy recounted Victim’s account to
Defendant, he responded, “If she said so.”
2. Victim acknowledged to the police that she does get bruised at
work, but she insisted that the bruises in the photographs “were
(continued…)

State v. Hulse
20150298-CA 	5 	2019 UT App 105
¶9 	The 	State 	charged 	Defendant 	with 	one 	count 	of
aggravated assault, a third-degree felony, see Utah Code Ann.
§ 76-5-103(1), (2)(a) (LexisNexis 2014), and one count of unlawful
detention, 	a 	class 	B 	misdemeanor, 	see 	id. 	§ 	76-5-304(1), (4).
Defendant pled not guilty to both charges. He was tried in
February 2015.
The Prosecution Case
¶10 	In its case-in-chief, the State relied on Victim’s testimony,
photographs of Victim’s injuries, the two deputies’ testimonies,
and a video recording of Defendant’s interrogation.3 Victim’s
injuries 	were 	difficult 	to 	discern 	in 	the 	photographs, 	and
the State acknowledged that the injuries were “hard to see.”
For that reason, the State asked Deputy Archuletta, who took
the photographs, to describe each photograph to the jury.
¶11 	In 	laying 	the 	foundation 	for 	Deputy 	Archuletta’s
testimony, the State asked generally about her training and
experience. After she replied that she was P.O.S.T. certified,4
the 	State 	inquired 	whether 	she 	had 	“receive[d] 	training
(…continued)
not from work.” The record does not disclose the nature of her
job, in connection with which bruising is commonplace.
3. The audio portion of the recording left much to be desired.
The judge noted that “there seems to be a lot of mumbling and
the recording is poor,” but he overruled Defendant’s objection to
its admissibility based on this deficiency.
4. “P.O.S.T.” is an acronym for “Peace Officer Standards and
Training,” the program by which law enforcement officers in
Utah are trained and certified. See Utah Code Ann. § 53-6-205
(LexisNexis 2015); id. § 53-13-105 (Supp. 2018).

State v. Hulse
20150298-CA 	6 	2019 UT App 105
in 	injuries 	involving 	domestic violence.” 	Deputy 	Archuletta
responded 	that 	she 	had. 	The 	State 	later 	asked 	how 	many
domestic violence calls she had responded to during her 17 years
of service. Deputy Archuletta responded that she “would not
want to even guess” but that “[she’d] had numerous” calls of
that 	nature. 	The 	State 	inquired 	whether 	some 	of 	the 	calls
involved injuries, to which she replied affirmatively. It then
asked whether she knew “the difference between fresh injuries
and old injuries,” and Deputy Archuletta responded that she
did.
¶12 	After laying this foundation, the State requested that
Deputy Archuletta describe each photograph to the jury and
asked whether the injuries depicted in the photographs were
“fresh.” 	For 	example, 	the 	following 	exchange 	addressed
exhibit 2:
[Deputy Archuletta]: Okay. Right here, she had
like psoriasis right here and you can see off to the
inner 	portion 	of 	the 	knee 	fresh 	markings, 	red
markings. This is a —has, I guess, an abrasion
has taken a portion of the psoriasis off. You can see
through, up through here like a—more still on
the kneecap, the line of like a, I don’t know, some
type of a dragging, but there’s—and this isn’t clear
here, but there’s a line through here and then red
up into here.
. . . .
[The prosecutor]: But this spot right here and these
spots right here that you pointed to outside of the
psoriasis, would you consider those fresh?
[Deputy Archuletta]: . . . [Y]es, this is fresh . . . .

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For the other exhibits, Deputy Archuletta indicated that the
photographs showed “fresh” injuries, including redness on the
back of Victim’s head, right arm and wrist, left rib, chin, jaw,
nose, right cheekbone, right eye, neck, shoulders, and clavicle.
She also identified some scratches, an abrasion on Victim’s
kneecap, “road rash” and the “stippling of . . . blood vessels” on
Victim’s right neck and shoulder area, and a fresh injury behind
her 	left 	ear. 	Deputy 	Archuletta 	also 	identified 	some 	“old
bruising” on Victim’s left leg.
¶13 	Trial Counsel did not object to the content of Deputy
Archuletta’s testimony as a whole, but he did object twice during
the course of her testimony. Trial Counsel first objected when
the State asked Deputy Archuletta to estimate a time frame for
one of Victim’s injuries. He next objected to the speculative
nature of Deputy Archuletta’s opinion concerning the cause of
one particular mark. The district court sustained both objections.
Trial Counsel did not cross-examine Deputy Archuletta.
¶14 	The State next called Deputy Palmer to testify. Because
Deputy 	Palmer 	was 	the 	officer 	primarily 	responsible 	for
questioning 	Victim 	at 	the 	hospital 	about 	her 	injuries, 	his
testimony mainly concerned that conversation and his later
interrogation of Defendant. But the State did ask Deputy Palmer
whether he was able to observe Victim’s injuries at the hospital
and whether they appeared to be “fresh.” He responded in the
affirmative to both questions.
The Defense Case
¶15 	Defendant denied that the alleged assault ever took place.
Rather, he claimed that Victim sustained her injuries during the
camping trip from which they had returned that same day.
Specifically, shifting from his initial bruising-at-work theory, he
alleged that Victim sustained her injuries the night before while
gathering firewood in dense underbrush. To corroborate this

State v. Hulse
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theory, Defendant called a friend who had accompanied them on
the camping trip. The friend testified that she and Victim had
gone searching for firewood on the last night of the trip. She
described the terrain as “pretty rough,” full of rocks, trees, and
fallen branches. As a result, the friend testified that she herself
“hit [her] head a couple of times on the trees” and “had scratches
all 	over 	[her]” 	arms 	and 	legs. 	Trial 	Counsel 	showed 	the
photographs of Victim’s injuries to the friend and asked whether
they were consistent with the kinds of injuries the friend had
sustained while gathering firewood. The friend replied, “Yeah.
Definitely.”
¶16 	In addition to providing an alternative theory concerning
the 	source 	of 	Victim’s 	injuries, 	Trial 	Counsel 	attempted 	to
impeach 	Victim’s 	account 	in 	a 	number 	of 	ways. 	On
cross-examination, Trial Counsel noted that although Victim had
testified that Defendant had threatened her with a screwdriver,
she made no mention of this in her written statement provided
to the police on the day of the assault. To contradict Victim’s
claim that the tools were located between the two front seats of
the Jeep at the time of the assault, Trial Counsel also called
another of Defendant’s friends as a witness. She testified that on
the day of the assault, Defendant had walked to her house in
Brigham City from the construction site and had asked whether
he could leave his tools there. After he stayed at her house for
approximately 45 minutes, she stated that she drove him to the
gas station. Trial Counsel also called Defendant’s mother as a
witness. She testified that Victim was a “chronical liar” and that
Victim admitted to her that, contrary to her denial at trial, she
had also used drugs on the day of the assault. Finally, Trial
Counsel called Victim as an adverse witness and successfully
elicited 	testimony 	that 	she 	often 	threatened 	self-harm 	to
manipulate Defendant.
¶17 	Despite 	Trial 	Counsel’s 	efforts, 	the 	jury 	convicted
Defendant 	on 	both 	charges. 	He 	was 	sentenced 	to 	an

State v. Hulse
20150298-CA 	9 	2019 UT App 105
indeterminate term not to exceed five years on the aggravated
assault 	charge 	and 	to 	a 	concurrent 	six-month 	term 	on 	the
unlawful detention charge.
Rule 23B Remand
¶18 	Defendant timely appealed his conviction. In conjunction
with the opening brief, Defendant’s prior appellate counsel filed
a motion for remand under rule 23B of the Utah Rules of
Appellate 	Procedure 	requesting 	an 	evidentiary 	hearing
regarding four of Defendant’s claims of ineffective assistance,
which motion we granted. The four claims subject to remand
included a claim for Trial Counsel’s failure to investigate and
present Victim’s prior fraud conviction at trial. Following the
hearing, the district court held that all four of the ineffective
assistance of counsel claims “fail[ed] one or both elements of the
[Strickland] test.”
¶19 	Shortly 	after 	the 	rule 	23B 	hearing, 	current 	appellate
counsel was substituted for prior appellate counsel. With the
stipulation of the State and our approval, current appellate
counsel filed a replacement brief in which he pursued only one
of the four claims of ineffective assistance that were the subject
of the rule 23B remand, namely the fraud matter. As such, the
claim of ineffective assistance for failure to investigate and use
Victim’s prior fraud conviction is the only claim dealt with in the
rule 23B hearing that is currently before us. Therefore, we
address 	that 	matter 	and 	three 	other 	claims 	of 	ineffective
assistance newly pursued on appeal, and so we have only
limited occasion to consider the rule 23B hearing.
ISSUES AND STANDARDS OF REVIEW
¶20 	Defendant alleges that Trial Counsel rendered ineffective
assistance of counsel when he (1) failed to investigate and use

State v. Hulse
20150298-CA 	10 	2019 UT App 105
Victim’s prior fraud conviction to impeach her testimony at trial,
(2) failed to object to Deputy Archuletta’s improper expert
testimony, 	(3) 	allowed 	the 	State 	to 	introduce 	inadmissible
character 	evidence 	of 	Defendant’s 	abusive 	behavior, 	and
(4) failed to object to inappropriate comments made by the State
during closing argument. Defendant’s first claim of ineffective
assistance was subject to the rule 23B remand. See Utah R. App.
P. 23B. “In ruling on an ineffective assistance of counsel claim
following a Rule 23B hearing, we defer to the district court’s
findings of fact, but review its legal conclusions for correctness.”
State v. King, 2017 UT App 43, ¶ 13, 392 P.3d 997 (quotation
simplified). 	The 	remaining 	claims 	were 	not 	subject 	to 	the
remand. “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.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587
(quotation simplified).
ANALYSIS
¶21 	“To ensure a fair trial, the Sixth Amendment of the
U.S. 	Constitution 	guarantees 	[to 	a 	criminal 	defendant] 	the
right to effective assistance of counsel.” State v. Campos, 2013 UT
App 213, ¶ 23, 309 P.3d 1160. To prevail on an ineffective
assistance of counsel claim, a defendant must first establish that
“counsel’s performance was deficient.” Strickland v. Washington,
466 U.S. 668, 687 (1984). Counsel’s performance is deficient when
it falls below an “objective standard of reasonableness,” id. at
688, 	which 	requires 	a 	defendant 	to 	“overcome 	the 	strong
presumption that his trial counsel rendered adequate assistance
by persuading the court that there was no conceivable tactical basis
for counsel’s actions,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(emphasis 	in 	original) 	(quotation 	otherwise 	simplified). 	We
will 	therefore 	“not 	second-guess 	trial 	counsel’s 	legitimate

State v. Hulse
20150298-CA 	11 	2019 UT App 105
strategic choices, however flawed those choices might appear in
retrospect,” State v. Tennyson, 850 P.2d 461, 465 (Utah Ct. App.
1993), 	“unless 	there 	is 	no 	reasonable 	basis 	supporting”
those decisions, Clark, 2004 UT 25, ¶ 6 (quotation simplified).
¶22 	After 	a 	defendant 	overcomes 	the 	high 	threshold 	of
demonstrating that his counsel performed deficiently, he must
next 	“show 	that 	the 	deficient 	performance 	prejudiced 	the
defense.” 	Strickland, 	466 	U.S. 	at 	687. 	Counsel’s 	deficient
performance is prejudicial if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding 	would 	have 	been 	different.” 	Id. 	at 	694. 	“A
defendant’s inability to establish either element defeats a claim
for ineffective assistance of counsel.” State v. Reid, 2018 UT App
146, ¶ 19, 427 P.3d 1261.
I. Prior Fraud Conviction
¶23 	Defendant 	first 	alleges 	that 	Trial 	Counsel 	rendered
ineffective assistance by not investigating the facts underlying
Victim’s prior fraud conviction and not using that conviction to
attack 	her 	character 	for 	truthfulness 	at 	trial. 	Victim 	had
claimed benefits on behalf of children who no longer resided
with 	her, 	and 	she 	was 	consequently 	convicted 	of 	workers’
compensation fraud, a third-degree felony, in October 2011.5
Defendant argues that Trial Counsel’s failure to investigate and
use her conviction to impeach Victim at trial was particularly
egregious because, due to the he-said-she-said nature of the
evidence, “the entire trial was . . . largely a test of [Victim’s]
credibility.”
5. Although documentary evidence of Victim’s conviction is not
part of the record, the State stipulated at the 23B hearing that
Victim was convicted of workers’ compensation fraud in 2011.

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20150298-CA 	12 	2019 UT App 105
¶24 	Following 	the 	rule 	23B 	hearing, 	the 	district 	court
determined 	that 	Trial 	Counsel 	did 	not 	render 	ineffective
assistance. We agree.6 Trial Counsel’s decision not to investigate
Victim’s prior fraud conviction or present it at trial did not
prejudice Defendant’s defense for two reasons.
¶25 	First, although Trial Counsel did not use Victim’s prior
conviction to attack her character for truthfulness, he directly
challenged the believability of Victim’s testimony in a number of
ways. 	On 	cross-examination 	of 	Victim 	during 	the 	State’s
case-in-chief, Trial Counsel noted that Victim made no mention
of Defendant threatening her with a screwdriver in the written
statement she made on the day of the assault. Later, during the
defense case, Trial Counsel called Victim as an adverse witness
and elicited testimony that she frequently threatened self-harm
to manipulate Defendant. Trial Counsel also called a number of
6. In reaching this decision, the district court referenced Trial
Counsel’s testimony explaining that he did not bring up Victim’s
past fraud conviction because he did not wish the jury to
perceive him as bullying a sympathetic victim. Determining this
to 	be 	an 	effective 	trial 	strategy, 	the 	court 	concluded 	that
Defendant’s “assertion fails the first element of the ineffective
assistance test.” We affirm the district court’s conclusion, but on
different grounds. See State v. Van Huizen, 2019 UT 01, ¶ 39, 435
P.3d 202 (“An appellate court may affirm the judgment appealed
from on any legal ground or theory apparent on the record.”)
(quotation simplified). Because Trial Counsel’s decision not to
investigate or use Victim’s fraud conviction did not prejudice the
defense, we do not reach the first element of the ineffective
assistance test. See Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d
232 (“In the event it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, we will do so
without 	analyzing 	whether 	counsel’s 	performance 	was
professionally unreasonable.”) (quotation simplified).

State v. Hulse
20150298-CA 	13 	2019 UT App 105
witnesses who provided testimony that contradicted portions of
Victim’s version of events: Defendant’s mother testified that
Victim had admitted to also using drugs on the day of the
assault; Defendant’s father testified that both Defendant and
Victim appeared to be under the influence of drugs that day;
Defendant’s friend testified that Defendant left his tools—one of
which Victim testified to cutting her forehead on—at her house
in Brigham City; and Defendant’s co-camper friend testified that
Victim’s injuries were similar to those she herself had sustained
on that same camping trip while finding and hauling firewood,
thus providing an alternative explanation for Victim’s injuries.
¶26 	Given that Trial Counsel’s efforts to directly contradict the
content of Victim’s testimony failed to sufficiently undermine
her credibility in the eyes of the jury, we are not persuaded that
it is reasonably probable that a limited mention of her prior
workers’ compensation fraud conviction, see infra ¶ 27, would
have tipped the scales in favor of Defendant.
¶27 	Second, although Trial Counsel did not know the specific
details of Victim’s fraud conviction, his limited knowledge of
Victim’s criminal past would have nonetheless allowed him to
ask her whether she had ever been convicted of fraud.7 But we
are not convinced that the specific details and circumstances of
Victim’s 	fraud 	conviction 	that 	Trial 	Counsel’s 	hypothetical
investigation 	would 	have 	uncovered 	would 	have 	been
admissible at trial. Had Trial Counsel chosen to attack Victim’s
character for truthfulness, he likely would have been permitted
to introduce the specific details of her workers’ compensation
fraud conviction only if she first “attempt[ed] to explain away
7. When asked at the rule 23B hearing whether he knew of
Victim’s workers’ compensation fraud conviction, Trial Counsel
responded that he generally “knew that she had a fraud,” but he
did not investigate the matter any further.

State v. Hulse
20150298-CA 	14 	2019 UT App 105
the effect of the conviction or to minimize [her] guilt.” See State v.
Alzaga, 	2015 	UT 	App 	133, 	¶ 	34, 	352 	P.3d 	107 	(quotation
simplified). See id. ¶ 33 (stating that rule 609 of the Utah Rules of
Evidence does not generally permit “an examining attorney [to]
parade the details of the prior crime in front of the jury”)
(quotation simplified); State v. Colwell, 2000 UT 8, ¶ 33, 994 P.2d
177 (“When impeaching a defendant, it is permissible to inquire
into the fact and nature of the prior conviction, but not the
details or circumstances surrounding the event, absent unusual
circumstances.”). We decline to speculate whether Victim, if
confronted 	with 	her 	prior 	fraud 	conviction, 	would 	have
attempted 	to 	explain 	away 	or 	minimize 	the 	crime, 	thereby
rendering the fruits of Trial Counsel’s hypothetical investigation
admissible. See State v. Nelson, 2015 UT 62, ¶ 10, 355 P.3d 1031
(“Proof that [trial counsel’s] acts or omissions prejudiced [the
defendant] must be a demonstrable reality and not a speculative
matter.”) (quotation simplified).
¶28 	Thus, given Trial Counsel’s many other efforts to directly
contradict Victim’s testimony and the limited way in which Trial
Counsel would have been allowed to present the fruits of a
hypothetical investigation, Defendant has not demonstrated a
“reasonable probability of a different outcome at trial sufficient
to undermine our confidence in the jury’s verdict.” See State v.
Garcia, 2017 UT 53, ¶ 48, 424 P.3d 171.
II. Expert Testimony
¶29 	Defendant 	next 	argues 	that 	Trial 	Counsel 	furnished
ineffective assistance by permitting Deputy Archuletta to give
improper expert testimony. Defendant asserts that the State
called Deputy Archuletta to testify as an expert without first
notifying the defense 	and that Trial Counsel was therefore
ineffective by failing to object to her testimony. See Utah Code
Ann. § 77-17-13(1)(a) (LexisNexis 2015) (requiring any party in a
felony case to give “notice [of its intent to use an expert witness]

State v. Hulse
20150298-CA 	15 	2019 UT App 105
to the opposing party as soon as practicable but not less than 30
days before trial”). In support of his contention that Deputy
Archuletta testified in an expert capacity, Defendant points both
to the foundation that the State laid in preparation for her
testimony and to the content of her testimony.
¶30 	Defendant 	first 	asserts 	that 	the 	State 	asked 	two
expert-related questions when laying the foundation for Deputy
Archuletta’s testimony: whether she had received training in
injuries involving domestic violence and whether she knew how
to 	differentiate 	between 	new 	and 	old 	injuries. 	On 	that
foundation, Defendant claims, Deputy Archuletta proceeded to
give expert testimony. Defendant argues that although “not all
of [Deputy] Archuletta’s testimony was in the nature of an
expert . . . many of her answers veered into [the territory of]
forensic 	expert” 	testimony. 	Defendant 	points 	to 	Deputy
Archuletta’s use of “technical terms,” such as “stippling of blood
vessels” and “clavicle,” and to her characterization of most of
Victim’s injuries as “fresh,” which Defendant asserts “calls for
some level of forensic expertise.”
¶31 	We disagree. Utah Code section 77-17-13(1)(a) did not
apply to Deputy Archuletta’s testimony because, despite the
foundation laid by the State, the subject matter of her testimony
fell within the confines of proper lay opinion. Trial Counsel
therefore did not perform deficiently by not objecting to the
deputy’s testimony.
¶32 	A lay witness may offer an opinion about matters that are
“rationally based on the witness’s perception,” helpful to the
jury 	in 	“determining 	a 	fact 	in 	issue,” 	and 	“not 	based 	on
scientific, technical, or other specialized knowledge.” Utah R.
Evid. 701. Lay opinion testimony is proper and an expert witness
is not required if “an average bystander would be able to
provide the same testimony.” State v. Rothlisberger, 2006 UT 49,
¶ 34, 	147 	P.3d 	1176. 	If 	the 	opinion 	testimony 	involves

State v. Hulse
20150298-CA 	16 	2019 UT App 105
“knowledge 	[that] 	is 	not 	within 	the 	ken 	of 	the 	average
bystander,” an expert witness is required. Id.
¶33 	In the present case, the State asked Deputy Archuletta to
describe the injuries in the photographs and to opine as to
whether they were “fresh.” Defendant recognizes that Deputy
Archuletta’s 	description 	of 	the 	injuries 	depicted 	in 	the
photographs 	was 	nonexpert 	testimony8 	and 	challenges 	as
improper expert testimony only the portions of her testimony
where she used technical terms and characterized the injuries as
“fresh.”
¶34 	Defendant identifies only two technical terms used by the
deputy 	in 	her 	testimony: 	“stippling 	of 	blood 	vessels” 	and
“clavicle.” Even assuming, without deciding, that both qualify as
technical terms, the use of a total of two such terms throughout
8. However, Defendant does challenge those nonexpert portions
of Deputy Archuletta’s testimony as independently inadmissible
under rule 701 of the Utah Rules of Evidence. Rule 701 states that
lay opinion is proper when it, among other things, helps the jury
“to 	clearly 	understand[] 	the 	witness’s 	testimony 	or 	to
determin[e] a fact in issue.” Utah R. Evid. 701(b). Defendant
asserts 	that 	Deputy 	Archuletta’s 	description 	of 	the 	injuries
depicted in the photographs was unhelpful because “the jury
could 	see 	the 	photos 	for 	themselves 	and 	use 	their 	shared
experience to evaluate them.” We disagree. Although the jury
was certainly not prevented from forming its own conclusions
based on its observations of the photographs, the extent of
Victim’s injuries was difficult to discern in the photographs. The
jury therefore benefitted from hearing descriptions of the injuries
from Deputy Archuletta—the person who took the photographs
and was able to observe the injuries in person—because it
helped focus the jurors on important aspects of the photographs.

State v. Hulse
20150298-CA 	17 	2019 UT App 105
the course of her entire testimony is insufficient to elevate her
testimony to expert status.
¶35 	More importantly, the average person is generally capable
of differentiating new scratches and bruises from old scratches
and bruises. As such, Deputy Archuletta’s opinion as to the
freshness of Victim’s wounds was well “within the ken of the
average bystander.” See id. Cf. State v. Lagasse, 410 A.2d 537, 543
(Me. 1980) (holding that a witness’s observation that the victim’s
“skin 	[was] 	swollen 	and 	red, 	it 	looked 	like 	she 	had 	been
slapped” 	was 	proper 	lay 	opinion 	testimony 	because 	“[t]he
bruises 	[the 	witness] 	observed 	are 	consistent 	in 	common
knowledge with those which would be present on the face of one
who had been ‘slapped’”); In re J.C., 892 S.W.2d 87, 89 (Tex. Ct.
App. 1995) (holding that testimony regarding the age of bruises
was 	properly 	admitted 	as 	lay 	opinion 	testimony). 	Having
personally observed Victim’s injuries at the hospital, Deputy
Archuletta went no further than to state that she believed most
of the injuries to be “fresh.” On the few occasions that the State
sought her opinion on matters that would arguably require
specialized knowledge—when she was asked to estimate the
timeframe of one injury and when she speculated as to the cause
of another injury—Trial Counsel immediately objected, and the
court sustained the objections.
¶36 	Thus, despite the nature of the foundation that the State
laid for Deputy Archuletta’s testimony, we conclude that the
subject matter of the testimony, to the extent it was opinion
testimony at all, was lay opinion and well within the confines set
by rule 701 of the Utah Rules of Evidence.9 Trial Counsel
9. 	Moreover, 	even 	if 	Deputy 	Archuletta’s 	testimony 	had
amounted to improper expert testimony, Trial Counsel 	still
would not have been deficient for not objecting. Defendant cites
State v. Doutre, 2014 UT App 192, 335 P.3d 366, in which we held
(continued…)

State v. Hulse
20150298-CA 	18 	2019 UT App 105
(…continued)
that “[t]rial counsel was . . . deficient for failing to object to the
State’s failure to give reasonable prior notice of [a witness’s]
expert testimony.” Id. ¶ 29. However, we can conceive of a
sound tactical basis in the present case for not objecting to the
deputy’s testimony, which was not the situation in Doutre. Cf. id.
¶ 21 (“[W]e cannot conceive of a sound [tactical] basis for failing
to object [to expert witness testimony] on rule 702 grounds in
this case.”). Trial Counsel may have chosen not to object to
Deputy 	Archuletta’s 	testimony 	concerning 	Victim’s 	injuries
given his plan to later elicit similar testimony from Defendant’s
co-camper 	friend. 	Both 	Deputy 	Archuletta 	and 	Defendant’s
friend were shown pictures of Victim’s injuries and were asked
to opine about them. The State asked Deputy Archuletta to
describe the injuries and to give her opinion whether they were
“fresh.” 	Similarly, 	Trial 	Counsel 	asked 	Defendant’s 	friend
whether Victim’s injuries were consistent with those she had
obtained while gathering firewood with Victim. We can readily
conceive that a competent attorney in Trial Counsel’s position
may 	have 	deliberately 	chosen 	not 	to 	object 	to 	Deputy
Archuletta’s testimony in order to set a testimonial baseline that
would help overcome potential objections to the content of
Defendant’s 	co-camper 	friend’s 	testimony—especially
considering 	that 	the 	friend’s 	testimony 	was 	crucial 	in
establishing the defense’s alternate theory as to the source of
Victim’s injuries.
Furthermore, Deputy Palmer also testified that Victim’s
injuries 	appeared 	to 	be 	“fresh,” 	but 	Defendant 	does 	not
challenge 	his 	testimony 	on 	appeal. 	Therefore, 	at 	least 	for
purposes 	of 	his 	ineffective 	assistance 	of 	counsel 	claims,
Defendant was not prejudiced by Deputy Archuletta’s testimony
because “the jury would have had the same information before it
and likely would have reached the same conclusions.” See State
v. Yalowski, 2017 UT App 177, ¶ 38, 404 P.3d 53.

State v. Hulse
20150298-CA 	19 	2019 UT App 105
therefore did not perform deficiently by not objecting to the
testimony on that ground. See State v. Akers, 2018 UT App 235,
¶ 22, 438 P.3d 70 (“Defense counsel does not render deficient
performance if counsel refrains from making futile objections.”).
III. Additional Claims
¶37 	Defendant makes two additional claims of ineffective
assistance 	of 	counsel.10 	First, 	Defendant 	argues 	that 	Trial
10. Defendant primarily argues these two claims in terms of the
cumulative error doctrine. He alleges that the prejudicial effect
of these two additional claims combined with the prejudicial
effect of the claims discussed in sections I and II justify the
application of the doctrine. See State v. Perea, 2013 UT 68, ¶ 33,
322 P.3d 624 (“We will reverse under the cumulative error
doctrine 	only 	if 	the 	cumulative 	effect 	of 	the 	several errors
undermines confidence that a fair trial was had.”) (quotation
simplified). Because we determine Trial Counsel did not perform
deficiently in connection with the claims discussed in sections
II and III.B., see id. (“[I]f [a defendant’s] claims do not constitute
error . . . we will not apply the doctrine.”), it follows that even
assuming Trial Counsel performed deficiently in the claims
discussed in sections I and III.A., the prejudice that resulted from
Trial 	Counsel’s 	deficient 	performance 	is 	still 	insufficient 	to
undermine our confidence that Defendant was given a fair trial.
In ruling as we do, we rely on the limited way in which Trial
Counsel would have likely been permitted to present the fruits
of his hypothetical investigation to the jury. See supra ¶ 27. And
we are mindful of the fact that the jury would still have heard
testimony 	of 	Defendant’s 	abusive 	behavior 	regardless 	of
whether Trial Counsel objected to the second exchange. See infra
¶¶ 41–42; State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d
1038 (stating that “before reversing a verdict or sentence under
the 	cumulative 	error 	doctrine,” 	appellate 	courts 	“must
(continued…)

State v. Hulse
20150298-CA 	20 	2019 UT App 105
Counsel erred by allowing the State to introduce improper
character 	evidence 	of 	Defendant’s 	abusive 	nature. 	Second,
Defendant claims that Trial Counsel performed deficiently when
he did not object to inappropriate comments made by the State
during its closing argument. We hold that neither claim supports
a determination of ineffective assistance of counsel.
A. 	Character Evidence
¶38 	Defendant argues that by not objecting, Trial Counsel
twice allowed the State to introduce otherwise inadmissible
evidence of his abusive nature. He asserts that the evidence was
inadmissible because he had not opened the door to evidence of
that character trait.11 See Utah R. Evid. 404(a)(1), (a)(2)(B); State v.
Leber, 2009 UT 59, ¶ 13, 216 P.3d 964. The State also referenced
this 	evidence 	during 	its 	opening 	statement 	and 	closing
argument—again without Trial Counsel’s objection.
¶39 	The 	first 	instance 	occurred 	during 	the 	State’s 	direct
examination of Victim. The State asked Victim for the reason she
surmised that Defendant had used drugs on the day of the
assault, and this exchange ensued:
(…continued)
determine that (1) an error occurred, (2) the error, standing alone,
has a conceivable potential for harm, and (3) the cumulative effect of
all the potentially harmful errors undermines its confidence in
the outcome”) (emphasis added).
11. Although Defendant is correct in so stating with regards to
the first and second exchanges, see infra ¶ 39, Defendant did
open the door to evidence of that particular character trait in a
third exchange that Defendant has not addressed on appeal, see
infra ¶ 41.

State v. Hulse
20150298-CA 	21 	2019 UT App 105
[Victim]: I know that there was still dope around
with us.
[The prosecutor]: And do you know his behavior?
[Victim]: Evil.
[The prosecutor]: Well, in terms of the drugs . . .
was it consistent with that behavior?
[Victim]: Yes.
Trial 	Counsel 	did 	not 	object 	to 	this 	brief 	exchange. 	The
second 	instance 	occurred 	after 	Defendant 	called 	Victim 	as
an 	adverse 	witness 	and 	elicited 	testimony 	that 	she 	often
threatened self-harm in order to manipulate Defendant. During
the State’s cross-examination of Victim, the following exchange
unfolded:
[The 	prosecutor]: 	You 	mentioned 	in 	your
testimony that you only got upset and threatened
to hurt yourself when, in your words, “he beats the
hell out of me?”
[Victim]: Uh-huh (affirmative).
[The 	prosecutor]: 	Is 	that 	what 	was 	happening
[when 	you 	sent 	Defendant 	a 	text 	message
threatening self-harm]?
[Victim]: You know what, it started to get to where
we 	went 	through 	a 	pattern 	. 	. 	. 	[proceeds 	to
describe pattern of abuse].
[The 	prosecutor]: 	So 	this 	behavior 	that 	you’re
talking about, on May 27th, 2014, the incident

State v. Hulse
20150298-CA 	22 	2019 UT App 105
we’re 	talking 	about, 	was 	he 	in 	one 	of 	those
moments?
[Victim]: He had been up, like I said, I know for six
days for sure that he’d been up, maybe seven.
[The prosecutor]: Violent?
[Victim]: Very violent.
. . .
[The prosecutor]: And did this for 14 years?
[Victim]: He’s been doing it for a lot longer.
Trial 	Counsel 	once 	more 	did 	not 	object 	to 	this 	line 	of
questioning. Defendant argues that Victim’s testimony about
Defendant’s prior abuse was inadmissible character evidence
under rule 404(a) of the Utah Rules of Evidence because he had
not opened the door to it and that Trial Counsel’s performance
was deficient because he allowed 	it to reach the jury. We
disagree.
¶40 	The first exchange during which Victim called Defendant
“evil” was brief, unprompted, and quickly passed over by the
State. It is conceivable that a competent attorney would have
chosen not to draw the jury’s further attention to the fleeting
exchange by objecting to its content. See State v. Spinks, 2003 UT
App 182U, para. 8 (“[I]t is conceivable that defense counsel
opted for the sound strategy of not calling further attention to
those remarks by objecting to them.”); State v. Shepherd, 2015 UT
App 208, ¶ 52, 357 P.3d 598.
¶41 	Regarding 	the 	second 	exchange, 	Defendant 	has 	not
demonstrated 	that 	Trial 	Counsel’s 	failure 	to 	object 	to 	the
exchange prejudiced his defense, particularly in light of a third

State v. Hulse
20150298-CA 	23 	2019 UT App 105
exchange that Defendant does not challenge.12 This prior, third
exchange 	occurred 	during 	the 	State’s 	case-in-chief. 	While
cross-examining Victim, Trial Counsel asked whether she hit
Defendant at the gas station in Brigham City. Victim replied that
she did not remember, but that it was possible. On redirect, the
topic was revisited during this exchange:
[The prosecutor]: Now, there was a discussion,
[Trial Counsel] asked . . . if you hit [Defendant]
when you were at [the gas station].
[Victim]: Uh-huh (affirmative).
[The prosecutor]: And you said, “I may have.”
[Victim]: I—I may have, I may not have. I honestly
don’t know and—
[The prosecutor]: Is hitting each other typical of
this relationship?
[Victim]: Yes.
[The prosecutor]: You wouldn’t deny that you hit
him before?
[Victim]: Oh, I’ve hit him before.
[The prosecutor]: And you wouldn’t deny that he’s
hit you before?
[Victim]: Oh, he’s hit me many . . . times.
12. 	We 	do 	not 	decide 	whether 	Trial 	Counsel 	performed
deficiently by not objecting to the second exchange.

State v. Hulse
20150298-CA 	24 	2019 UT App 105
¶42 	In light of this third exchange, in which the jury heard
testimony 	regarding 	Defendant’s 	abusive 	behavior 	toward
Victim, Defendant has failed to demonstrate how the second
exchange prejudiced his defense. The jury had already heard
testimony covering ostensibly the same subject matter as the
second exchange and, in light of this, it is unlikely that a jury
would 	have 	reached 	a 	different 	verdict 	had 	Trial 	Counsel
objected to the second exchange. Cf. State v. Yalowski, 2017 UT
App 177, ¶ 38, 404 P.3d 53 (stating that because “nearly identical
testimony was introduced” by another witness, “the jury would
have had the same information before it and likely would have
reached the same conclusions”).
B. 	Prosecutorial Misconduct
¶43 	Defendant 	lastly 	challenges 	Trial 	Counsel’s 	failure 	to
object to an inappropriate statement the State made during
closing argument. Toward the middle of its rebuttal, the State
referenced the 14 years of abuse by Defendant that Victim had
suffered, stating,
Finally, finally, finally, she comes forward and she
says, “I’ve had enough, I’m done.” And that’s why
we’re here today, not because she was a drug
addict, 	not 	because 	she 	liked 	[being] 	abused,
because she finally said, “I don’t want this life
anymore. Help me.” That’s why we’re here.
Defendant argues that this statement amounted to prosecutorial
misconduct and that Trial Counsel performed deficiently by not
objecting or taking other action to address the misconduct.
¶44 	“When we review an attorney’s failure to object to a
prosecutor’s statements during closing argument, the question is
not whether the prosecutor’s comments were proper, but whether
they were so improper that counsel’s only defensible choice was to

State v. Hulse
20150298-CA 	25 	2019 UT App 105
interrupt those comments with an objection.” State v. Houston,
2015 UT 40, ¶ 76, 353 P.3d 55 (emphasis in original) (quotation
otherwise simplified). Although the State’s comment likely did
cross the line in terms of proper argument, it was not so
improper as to render Trial Counsel ineffective for not objecting
to it. Moreover, there appears to be a sound tactical basis not to
object to the statement.
¶45 	The 	challenged 	statement 	was 	in 	the 	middle 	of 	the
rebuttal portion of the State’s closing argument. The statement
was followed by a lengthy discussion of, among other things, the
evidence, 	the 	credibility 	of 	Defendant’s 	witnesses, 	and 	the
elements of the crime. An appeal to the jurors’ emotions and
sense of duty to protect Victim was certainly not the main focus
of the rebuttal. Trial Counsel therefore may well have chosen not
to object to the statement to avoid highlighting Defendant’s past
abuse of Victim to the jury. See State v. Hummel, 2017 UT 19,
¶ 110, 393 P.3d 314 (“[T]he law recognizes the prerogative of
opposing 	counsel 	to 	swallow 	their 	tongue 	[during 	closing
argument] instead of making an objection that might have the
risk of highlighting problematic evidence or even just annoying
the 	jury.”). 	Accordingly, 	Trial 	Counsel 	did 	not 	perform
deficiently by not objecting to the statement made by the State
during rebuttal.
CONCLUSION
¶46 	Defendant did not receive ineffective assistance in any of
the 	four 	instances 	to 	which 	he 	has 	directed 	our 	attention.
Defendant was not prejudiced by Trial Counsel’s failure to
investigate the underlying facts of Victim’s fraud conviction,
because the fruits of the hypothetical investigation would very
likely have been inadmissible at trial. Trial Counsel did not
perform deficiently by not objecting to Deputy Archuletta’s
testimony regarding Victim’s injuries, because it did not amount

State v. Hulse
20150298-CA 	26 	2019 UT App 105
to expert testimony. Defendant has not demonstrated that he
was prejudiced by the admission of evidence of his abusive
behavior toward Victim, because such evidence was admitted at
a 	different 	point 	during 	trial. 	Finally, 	the 	inappropriate
statement made by the State during closing argument was not so
egregious as to require competent counsel to object.
¶47 	Affirmed.