State v. Prettyman

2024 UT App 20
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A RLEN J. PRETTYMAN ,
Appellant.
Opinion
No. 20210868-CA
Filed February 15, 2024
Seventh District Court, Price Department
The Honorable Jeremiah Humes
No. 201700454
Emily Adams, Cherise Bacalski, Freyja Johnson, and
Hannah Leavitt-Howell, Attorneys for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
LUTHY, Judge:
¶1 	Arlen J. Prettyman was arrested after driving erratically
and failing subsequent field sobriety tests. A search of his vehicle
revealed 	approximately 	fifty 	grams 	each 	of 	heroin 	and
methamphetamine, along with drug paraphernalia and cash.
Prettyman was later convicted on two counts of possession of a
controlled substance with intent to distribute. He now appeals
those 	convictions, 	asserting 	that 	his 	trial 	counsel 	provided
ineffective assistance by not objecting on various grounds to
expert testimony regarding the amounts of these drugs that are
typically 	possessed 	for 	personal 	use 	and 	comparing 	those

State v. Prettyman
20210868-CA 	2 	2024 UT App 20
amounts to the quantities possessed by Prettyman. As to each of
his 	arguments, 	Prettyman 	has 	not 	shown 	that 	his 	counsel
performed deficiently, that he was prejudiced thereby, or both.
Accordingly, we affirm.
BACKGROUND
¶2 	In July 2020, police received a report of a white truck
“swerving all over the road, almost hitting the curb.” A Utah
Highway Patrol trooper (Trooper) responded and observed a
truck driving erratically. Trooper pulled the truck over and found
the driver to be Prettyman.
¶3 	Trooper instructed Prettyman to get out of the truck to do
some tests, explaining that the tests were to see if Prettyman was
“good to drive.” When Prettyman got out of the truck, he was
wearing only underwear, dirty socks with no shoes, and a winter
jacket. “His speech was slow and slurred,” “he had very dilated
pupils,” a “cigarette [was] falling out of his mouth,” “[h]e wasn’t
fully alert,” he “was struggling to understand or struggling to
respond to . . . questions,” and he had very poor balance. Trooper
administered several field sobriety tests, during which Prettyman
exhibited additional signs of impairment. Afterward, Trooper
explained to Prettyman that he believed Prettyman was “under
the influence of something,” specifically “some kind of drug,” and
on that basis he arrested Prettyman.
¶4 	Following the arrest, another trooper and a police officer
(Officer) performed a search of Prettyman’s truck. During the
search, they found multiple baggies of methamphetamine; a
“large chunk of heroin”; a fanny pack containing cash and several
smaller baggies, including some with heroin residue; and a false
can of iced tea for hiding contraband. The drugs were weighed,
and they totaled 44.702 grams of methamphetamine and 52.128
grams of heroin. The cash totaled $239.

State v. Prettyman
20210868-CA 	3 	2024 UT App 20
¶5 	Trooper then took Prettyman to the hospital for a blood
draw. The blood draw revealed methamphetamine as well as
morphine, a metabolite of heroin.
¶6 	The 	State 	charged 	Prettyman 	with 	two 	counts 	of
possession of a controlled substance with intent to distribute, one
count of driving under the influence of alcohol or drugs, one
count of possession of drug paraphernalia, and one count of
unsafe lane travel.
¶7 	At trial, Trooper and Officer testified to the foregoing facts.
Each also provided testimony comparing the quantity of drugs
found in Prettyman’s truck to quantities that, based on their
training and experience, are typically associated with personal
use. 	The 	State 	asked 	Trooper, 	“[S]o 	in 	your 	training 	and
experience[,] . . . with the fanny pack, the cash inside with all the
little separate baggies and the presence of these big chunks of this
dark substance and then all this crystal-like substance, all that
combined together, in your training and experience what does
that lead you to believe?” Trooper responded, “That it was
distribution. It was way more than a normal everyday user would
use.” The State then asked, “And how much would a normal
everyday 	user 	use 	typically?” 	Trooper 	responded, 	“[M]y
experience is a gram is about what a normal user would have on
them at any one time.”
¶8 	During cross-examination, Prettyman’s defense counsel
(Counsel) asked Trooper, “[H]ave you had . . . other occasions to
pull 	over 	people 	who 	have 	drugs 	in 	their 	car?” 	Trooper
responded, “Yes.” Counsel asked, “And have you ever pulled
over people that were later found to have been engaged in the
distribution of drugs?” Trooper responded, “Yes.” Trooper also
affirmed that about one gram a day is “generally what [he’s] seen”
with people who use narcotics. Then he had the following
exchange with Counsel:

State v. Prettyman
20210868-CA 	4 	2024 UT App 20
Q. And so heavy drug use would be more; right?
A. There’s a possibility, a little bit more.
Q. And even at the rate of one gram a day, if this
were Mr. Prettyman’s own drugs, . . . he would have
had less than a two month’s supply; correct?
A. . . . [N]o, it would be more than a two month’s
supply from what I experience . . . .
Q. You said about one gram a day. Was it either the
meth or the heroin was a little over 50 and the other
was a little under 50; correct?
A. I guess if he did both drugs in one day then,
yes . . . .
Q. Okay. And so if it was heavy use, it would be a
shorter period of time; correct?
A. Possibly, yes.
Q. So it’s conceivable that someone who is a heavy
drug addict could—if they are able [to—] . . . get
their hands on as much drugs as possible to . . . keep
their addiction fed for as long as possible; correct?
A. In my training and experience, no, they would
not have that amount of drugs on them.
Q. But they certainly could, couldn’t they?
A. Obviously they could, but it’s . . . not typical.
Upon redirect, Trooper again asserted that, in his experience, it
was not normal for people to carry approximately fifty grams of
each of these drugs in their vehicles for personal use.

State v. Prettyman
20210868-CA 	5 	2024 UT App 20
¶9 	Counsel did not object to any of these statements from
Trooper, but he did inquire into Trooper’s qualifications related
to narcotics. In response to Counsel’s questions, Trooper testified
that he had been with the highway patrol for about a year at the
time of Prettyman’s arrest, that he had gone through Peace Officer
Standards and Training (POST) for approximately sixteen weeks
at the beginning of that time, and that at POST he had “received
some training on drug trafficking and identification of drugs.”
Counsel characterized this as just “one of the multitude of
trainings that [Trooper had] received during POST” and then
asked Trooper if that was “the limit of [his] experience in those
matters.” Trooper responded, “No, that’s not,” and he stated that
he had also completed a “ride along with a more experienced
officer for 12 weeks,” with this having “a strong focus on
standardized field sobriety tests, as well as identification of
different drugs, narcotics and contraband.” Counsel stated, “So
you receive[d] drug training as one of a multitude of trainings at
POST and then you [went] on a 12-week-ride-along [where] you
cover[ed] pretty much everything that a highway patrolman
needs to cover in order to do his job?” Trooper responded, “Yes.”
Counsel continued, “Okay. And that’s the limit of your training
in such matters; correct?” And Trooper again said, “Yes.”
¶10 	Officer’s testimony was similar to Trooper’s with regard to
the implications of the quantities of drugs Prettyman possessed.
He said that what “stood out” to him about the heroin was that
“it was an amount that’s not commonly seen with a personal
amount of illicit substances when [he had] arrested people for
personal use.” The State then questioned Officer on his tenure and
experiences as a police officer. Officer testified that he had been
an officer—at the time of trial—for three years and seven months,
that he had arrested people who possessed heroin and people
who possessed methamphetamine, and that he had arrested some
users more than once. The State then asked, “Do you have some
experience knowing whether a person is . . . simply an addict,

State v. Prettyman
20210868-CA 	6 	2024 UT App 20
somebody who uses, who buys and uses drugs, and are you able
to distinguish that person sometimes from a seller or distributor
of those drugs?” Officer responded, “Yes.”
¶11 	Counsel then objected as to foundation, and the State said,
“[L]et me back up. . . . How many people have you arrested in
your lifetime for . . . drugs?” Officer responded, “Several. . . .
[B]eing 	in 	Carbon 	County, 	there 	is 	a 	known 	opioid 	abuse
problem. And with that being said, a lot of people I have taken to
jail usually have illicit substances on them, whether it’s marijuana,
heroin, [or] methamphetamine.” The State asked, “Have you
arrested people . . . on more than one occasion who have what
you’d call a personal use amount or a small use amount?” Officer
responded, “Yes, I have.” The State asked, “And what is the
typical 	small 	use 	amount 	that 	you 	see?” 	Officer 	replied,
“Commonly seen upon interviewing people [who] have admitted
to personal use, commonly seen with people who struggle with a
drug 	addiction 	usually 	is 	a 	half 	gram 	to 	a 	gram” 	of
methamphetamine or heroin. He repeated, “Typically that’s what
we commonly see people possess.”
¶12 	The State asked, “When you see more than that amount,
. . . does that alert any red flags to you?” Officer said that it did,
explaining, “Based on what I had observed that day with Mr.
Prettyman, with the large amount of suspected heroin and
methamphetamine, along with other paraphernalia items such as
baggies, those are commonly seen with people who distribute
illicit substances.” Officer confirmed that he had arrested “people
who’ve had significant amounts of” drugs and people who he had
“suspected of being drug dealers or who have had drugs that they
intended to sell.” The State asked, “How does the amount you
saw in Mr. Prettyman’s possession compare with other persons
you’ve arrested who have had more than say a gram?” Officer
replied, “[In] my personal experience, I had arrested somebody
with suspected methamphetamine that weighed out to be 2.2
ounces, which is a considerable amount. If you had to put that

State v. Prettyman
20210868-CA 	7 	2024 UT App 20
into terms, if you break that into grams, that’s a lot of times a
personal user would have to have that last.”
¶13 	The State asked, “Is it common if somebody is a known
user . . . to carry around with them personally a month’s worth or
two month’s worth of heroin or meth in their possession if they’re
simply users?” Officer responded, “No.” The State followed up,
“Why do you say that?” Officer replied, “Because a lot of times
from my experience of talking with people who struggle with a
drug addiction, they usually can’t afford large amounts of illegal
substances such as methamphetamine, heroin, [or] marijuana. So
typically they buy . . . enough to last them, you know, a week or a
couple of days depending on . . . how much they do use.”
¶14 	On 	cross-examination, 	Officer 	agreed 	with 	Counsel’s
statement 	that 	if 	a 	user 	was 	“able 	to 	pay, 	it 	wouldn’t 	be
unreasonable 	for 	them 	to 	get 	more 	rather 	than 	the 	bare
minimum,” but he said, “[I]n my experience I have never seen
someone have what we call simple possession of a known drug
user to carry 48 grams of methamphetamine or 50-plus grams of
heroin for personal use.” Counsel then said, “Now when you talk
about personal use or distribution, you’re talking about things
where you haven’t actually seen whether drugs were used for
personal use or for distribution. I mean, you’ve kind of reached
the conclusion yourself as to how they were used.” He continued,
“[I]n any case where distribution is alleged, often that’s denied.
And in those cases, you don’t have personal knowledge of how
the drugs were actually used, do you?” Officer replied, “It
depends. A lot of known drug users have admitted to me what
their personal amount is. And I will say there [are] times [it’s]
more than just a half a gram or a gram. I remember recently
arresting somebody that did have approximately . . . 12 grams of
methamphetamine that claimed it was their personal use.” He
continued, “But still, if we take into consideration the situation
that we’re here for today, even if you look at someone having 13
grams of methamphetamine compared to somebody having 40,

State v. Prettyman
20210868-CA 	8 	2024 UT App 20
almost 50 grams of methamphetamine, that would still lead me to
believe that that can’t be used for personal use.”
¶15 	The jury convicted Prettyman of all charges. He now
appeals both of his convictions for possession of a controlled
substance with intent to distribute.
ISSUE AND STANDARD OF REVIEW
¶16 	Prettyman 	asserts 	that 	Counsel 	provided 	ineffective
assistance by not objecting to testimony given by Trooper and
Officer related to the quantities of drugs that people typically
possess for personal use versus for distribution. “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. Guerro, 2021 UT
App 136, ¶ 25, 502 P.3d 338 (cleaned up), cert. denied, 525 P.3d 1254
(Utah 2022).
ANALYSIS
¶17 	To succeed on a claim of ineffective assistance of counsel,
an appellant must satisfy both prongs of the test articulated in
Strickland v. Washington, 466 U.S. 668 (1984). “First, the defendant
must show that counsel’s performance was deficient,” meaning
that “counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687–88. In assessing whether this element
is met, we afford “a strong presumption that counsel’s actions
were within the broad range of conduct considered a sound trial
strategy.” State v. Hutchings, 2012 UT 50, ¶ 18, 285 P.3d 1183
(cleaned up). “Second, the defendant must show that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687.
This requires a showing of “a reasonable probability that, but for

State v. Prettyman
20210868-CA 	9 	2024 UT App 20
counsel’s unprofessional errors, the result of the proceeding
would have been different,” thereby “undermin[ing] confidence
in the outcome.” Id. at 694. “Because failure to establish either
prong of the test is fatal to an ineffective assistance of counsel
claim, we are free to address [a defendant’s] claims under either
prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.
¶18 	Prettyman asserts that Counsel was ineffective for not
objecting to Trooper’s and Officer’s testimony because (1) neither
witness was qualified to provide expert testimony on narcotics
quantities typically possessed for personal use versus quantities
typically possessed for distribution; (2) each witness’s testimony
on 	this 	subject 	was 	improperly 	anecdotal, 	unfounded, 	and
unreliable; (3) the testimony was more prejudicial than probative;
and (4) Trooper’s testimony included an impermissible legal
conclusion. We address each argument in turn.
I. Counsel’s Failure to Object Based on Trooper’s and Officer’s
Qualifications as Expert Witnesses
¶19 	Prettyman asserts that he was deprived of the effective
assistance of counsel when Counsel did not object to Trooper and
Officer offering opinions regarding drug quantities typically
possessed for personal use versus quantities typically possessed
for distribution because Trooper and Officer failed to establish
that they had sufficient “knowledge, skill, experience, training, or
education” to testify as experts on that topic. (Quoting Utah R.
Evid. 702(a).) We disagree.
A. 	Deficient Performance
¶20 	Competent counsel could have reasonably decided not to
object on the basis that Trooper and Officer lacked sufficient
knowledge, skill, experience, training, or education. Under rule
702 of the Utah Rules of Evidence, “a witness who is qualified as
an expert by knowledge, skill, experience, training, or education

State v. Prettyman
20210868-CA 	10 	2024 UT App 20
may testify in the form of an opinion or otherwise if the expert’s
scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in
issue.” Utah R. Evid. 702(a). Because “[t]he quantity of [a narcotic]
involved and the nature of its packaging may support the
inference that it was possessed for sale rather than personal use,”
State v. Bankhead, 514 P.2d 800, 803 (Utah 1973), information about
the quantity of a drug that is typically possessed for personal use
may be helpful to the trier of fact. Thus, Utah case law is clear that
“[e]xperienced 	officers 	may 	give 	their 	opinions” 	related 	to
narcotics “quantity, packaging, and normal use of an individual.”
Id.
¶21 	This reference to “[e]xperienced officers,” id., does not
exclude the possibility that officers may qualify as experts on
narcotics 	quantities 	that 	are 	typical 	of 	personal 	use 	versus
quantities that are typical of distribution based on any of the other
grounds listed in rule 702(a), including “knowledge, . . . training,
or education,” Utah R. Evid. 702(a). See State v. Kelley, 2000 UT 41,
¶ 15, 1 P.3d 546 (“We have routinely allowed persons to testify as
experts based on the totality of their qualifications and experience,
and not on licensing or formal standards alone.”). An officer can
therefore qualify as an expert to testify on this subject based on
the officer’s training or experience or some combination of the
qualifications listed in rule 702(a).0F
1
¶22 	Trooper testified that he had been with the highway patrol
for about a year at the time of Prettyman’s arrest. He explained
that the first four months of that time he had attended POST,
1. Additionally, Prettyman has not argued, and we do not believe,
that an officer would necessarily need to be trained or experienced
in more nuanced facets of narcotics use or distribution to have
sufficient experience, knowledge, or training to qualify as an
expert on quantities of narcotics typically possessed for personal
use versus quantities typically possessed for distribution.

State v. Prettyman
20210868-CA 	11 	2024 UT App 20
which included specific training on “drug trafficking.” He said
that 	he 	spent 	the 	next 	three 	months 	riding 	with 	a 	more
experienced officer, which provided both patrol experience and
training with “a strong focus on . . . identification of different
drugs, narcotics and contraband.” Trooper had then had an
additional five months of patrol experience following his ride-
along 	experience. 	Moreover, 	Trooper 	testified 	that 	he 	had
experience pulling over drivers who had drugs in their cars, as
well as drivers who “were later found to have been engaged in
the distribution of drugs.”
¶23 	Officer testified that he had been a police officer for about
three and a half years at the time of the trial, meaning he had been
an officer for about two and a half years at the time of Prettyman’s
arrest. When Officer began to offer an expert opinion, Counsel
objected based on an asserted lack of foundation for his relevant
expertise. Officer then testified that he had experience arresting
“[s]everal” people for drugs—some for small quantities or simple
possession, including individuals arrested for methamphetamine
or heroin use, and some who had “significant amounts” of drugs,
whom he had “suspected of being drug dealers” or who “had
drugs that they intended to sell.” He also testified that based on
“a known opioid abuse problem” in the area, “a lot of people” he
had taken to jail had “illicit substances on them,” including
methamphetamine and heroin. He further testified that he had
“interview[ed] people [who had] admitted to personal use.”
¶24 	Based on Trooper’s and Officer’s respective responses
regarding their experience and training related to narcotics use
and trafficking, Counsel could have reasonably believed that
further objections on these grounds would likely be fruitless
because the witnesses could demonstrate sufficient “knowledge,
skill, experience, training, or education,” Utah R. Evid. 702(a), to
allow them to testify as to quantities of methamphetamine and
heroin 	typically 	possessed 	for 	personal 	use. 	Furthermore,
Counsel could have strategically decided that, rather than further

State v. Prettyman
20210868-CA 	12 	2024 UT App 20
object and thereby allow the officers to amplify their credibility by
relating additional qualifications under questioning by the State,1F
2
the better strategy would be to highlight weaknesses in their
qualifications through cross-examination. See State v. Carter, 2023
UT 18, ¶ 63, 535 P.3d 819 (affirming this court’s conclusion “that
reasonable counsel could decide to challenge the expert’s opinion
through cross-examination rather than object to the testimony”);
State v. Nunes, 2020 UT App 145, ¶ 20, 476 P.3d 172 (“Counsel may
well have made a reasonable tactical choice in forgoing the
objection even if there may have been grounds to object. Thus, the
dispositive question is whether counsel’s actions fell below an
objective standard of reasonableness . . . .” (cleaned up)), cert.
denied, 485 P.3d 943 (Utah 2021).
¶25 	This appears to be the route Counsel chose. When cross-
examining Trooper, Counsel attempted to cast doubt on Trooper’s
testimony by showing that his training was not specific or
extensive related to drug use and distribution: “So you receive
drug training as one of a multitude of trainings at POST and then
you go on a 12-week-ride-along when you cover pretty much
everything that a highway patrolman needs to cover in order to
do his job? . . . And that’s the limit of your training in such matters;
correct?” And when he cross-examined Officer, he said, “Now
when you talk about personal use or distribution, you’re talking
about things where you haven’t actually seen whether drugs were
used for personal use or for distribution. I mean, you’ve kind of
reached the conclusion yourself as to how they were used” and,
“[I]n any case where distribution is alleged, often that’s denied.
And in those cases, you don’t have personal knowledge of how
the drugs were actually used, do you?” Additionally, Counsel
2. Indeed, the objection Counsel did make to Officer’s testimony
invited the State to elicit additional details regarding Officer’s
experiences arresting people in possession of narcotics, and the
resulting testimony did no favors to Prettyman.

State v. Prettyman
20210868-CA 	13 	2024 UT App 20
successfully managed to obtain agreement from both Trooper and
Officer that it was feasible for a drug user to purchase more than
the amounts the officers indicated were typical of personal use if
the person was able to afford a longer-term supply. We cannot say
that Counsel’s decision to not further object to the officers’ expert
qualifications 	and, 	instead, 	to 	take 	the 	foregoing 	steps 	to
undermine the strength of their opinions overcomes our “strong
presumption that [C]ounsel’s actions were within the broad range
of conduct considered a sound trial strategy.” State v. Hutchings,
2012 UT 50, ¶ 18, 285 P.3d 1183 (cleaned up).
B. 	Prejudice
¶26 	Moreover, Prettyman has not shown that Trooper and
Officer actually were not qualified as experts on the subject of
drug 	quantities typically 	possessed 	for 	personal 	use 	versus
quantities typically possessed for distribution and, therefore, that
if Counsel had further objected, they would have been unable to
establish their qualifications. Specifically, Prettyman has not
sought a remand under rule 23B of the Utah Rules of Appellate
Procedure to establish the officers’ lack of qualifications. See Utah
R. App. P. 23B(a) (“A party to an appeal in a criminal case may
move the court to remand the case to the trial court for entry of
findings of fact, necessary for the appellate court’s determination
of 	a 	claim 	of 	ineffective 	assistance 	of 	counsel.”). 	Because
Prettyman has presented no evidence that either officer was
actually unqualified to testify on this subject, we cannot say, on
the record before us, that Prettyman was prejudiced by Counsel’s
decision not to further object based on their asserted lack of
qualifications. Cf. State v. Modes, 2020 UT App 136, ¶ 28 n.9, 475
P.3d 153 (“[The defendant] has not sought remand pursuant to
rule 23B to include an affidavit from any expert proffering the
proposed expert testimony he would have introduced at trial, and
therefore he cannot demonstrate prejudice by showing that such
expert 	testimony 	would 	have 	helped 	his 	defense.”). 	Thus,
Prettyman’s ineffective assistance claim based on the lack of

State v. Prettyman
20210868-CA 	14 	2024 UT App 20
further objection to the officers’ assertedly insufficient expert
qualifications fails both prongs of Strickland.
II. Counsel’s Failure to Object that the Expert Testimony Was
Anecdotal, Unfounded, and Unreliable
¶27 	Prettyman 	also 	asserts 	that 	he 	received 	ineffective
assistance when Counsel did not object to Trooper’s and Officer’s
expert 	opinions 	on 	the 	basis 	that 	they 	lacked 	adequate
foundation. Specifically, citing State v. Rammel, 721 P.2d 498 (Utah
1986), and related cases, Prettyman contends that Trooper’s and
Officer’s respective opinions regarding drug quantities typically
possessed for personal use versus quantities typically possessed
for distribution were not based on sufficient facts or data because
neither 	witness 	offered 	“testimony 	about 	how 	many 	drug
distribution arrests he had done or the quantity of drugs he had
seen 	in 	those 	arrests 	and 	how 	they 	compared 	to 	data 	on
possession cases” and because neither witness offered “testimony
about how many drug possession arrests he had done” (apart from
Officer’s testimony that he had done “several”) or “how the
quantity of drugs he had seen in those arrests compared to data
on possession cases.” Again, we disagree.
¶28 	Rule 702(b) of the Utah Rules of Evidence states, “Scientific,
technical, or other specialized knowledge may serve as the
basis for expert testimony only if there is a threshold showing that
the principles or methods that are underlying in the testimony . . .
are reliable, . . . are based upon sufficient facts or data, and . . .
have been reliably applied to the facts.” Utah R. Evid. 702(b). In
Rammel, applying the predecessor to rule 702(b), our supreme
court 	concluded 	that 	a 	detective’s expert testimony 	in 	that
case was improperly admitted. 721 P.2d at 500–01. The detective
had 	testified 	that 	“[b]ased 	on 	his 	experience 	interviewing
several hundred criminal suspects, . . . no criminal suspect ever
admitted ‘right off the bat’ to committing a crime” and that
“because most suspects lie when initially questioned by police, it

State v. Prettyman
20210868-CA 	15 	2024 UT App 20
would not have been ‘unusual’ for [the defendant] to lie during
the first police interrogation.” Id. at 500. The court concluded
that a foundation for this testimony was “utterly lacking” because
“[t]here was no showing that the anecdotal data from which
the detective drew his conclusions had any statistical validity.”2F
3
Id. at 501.
¶29 	We disagree with Prettyman that such a showing was
missing here. The requirement that anecdotal data be shown to
have statistical validity could be interpreted in two ways: it could
mean that expert witnesses must show they have collected
enough 	data 	points 	for 	their 	conclusions 	to 	be 	statistically
significant, or it could mean that they must show that the data is
of the type that makes statistical analysis possible. It cannot be
that the Rammel court viewed the detective’s expert opinion in
that case to lack foundation due to an insufficient sample size of
anecdotal data, because the detective in Rammel testified that he
had performed hundreds of criminal interviews—certainly an
adequate pool of experiences to draw from. Id. at 500. Instead, the
problem with the detective’s evidence was that he was attempting
to make statistical inferences from data about something that was
unquantifiable: 	another 	person’s 	truthfulness. 	See 	id. 	The
detective 	could 	not 	have 	determined 	what 	quantity 	of
truthfulness a particular suspect had demonstrated or what
3. The Rammel court determined that the detective’s expert
testimony in that case lacked foundation for the additional reason
that the State had not produced “any evidence to establish that
[the detective’s] experience uniquely qualified him as an expert”
on the topic at issue. State v. Rammel, 721 P.2d 498, 501 (Utah 1986).
We have already addressed the expert qualifications of Trooper
and Officer in this case and shown that Counsel did not perform
deficiently by not objecting to their opinions on the foundational
ground that they were not qualified to give them. See supra
¶¶ 19-25.

State v. Prettyman
20210868-CA 	16 	2024 UT App 20
amount 	of 	veracity 	was 	typical 	of 	a 	suspect 	in 	an 	initial
interrogation, so his attempt to infer something about a later
defendant’s 	truthfulness 	from 	prior 	suspects’ 	unquantifiable
honesty was not statistically valid. Later cases have confirmed this
reading. For example, in State v. Iorg, 801 P.2d 938 (Utah Ct. App.
1990), 	this 	court 	characterized 	Rammel 	and 	other 	cases 	as
“condemn[ing] 	anecdotal 	‘statistical’ 	evidence 	concerning
matters not susceptible to quantitative analysis such as witness
veracity.” Id. at 941; see also State v. Quas, 837 P.2d 565, 568 (Utah
Ct. App. 1992) (“Both Rammel and Iorg condemn the use of
evidence 	concerning 	matters 	not 	susceptible 	to 	quantitative
analysis such as witness veracity . . . .” (cleaned up)), cert. denied,
853 P.2d 897 (Utah 1992).
¶30 	The 	problem 	with 	the 	expert 	evidence 	in 	Rammel 	is
absent 	here. 	Trooper 	and 	Officer 	did 	not 	testify 	of 	an
unquantifiable 	concept 	like 	truthfulness 	but 	of 	measurable
quantities of drugs possessed by persons who clearly, and often
admittedly, possessed the drugs for personal use. This type of
testimony is capable of bearing statistical validity. And while
rule 702(b) also requires “a threshold showing that the principles
or methods that are underlying in the testimony . . . are based
upon sufficient facts or data,” see Utah R. Evid. 702(b), Counsel
was not ineffective for believing that the State had satisfied or
could satisfy that requirement. There is no magic number of data
points an expert witness is required to provide, and both Trooper
and 	Officer 	indicated 	that 	their 	opinions 	as 	to 	“common”
quantities of drugs possessed for personal use were based on
multiple arrests.
¶31 	Furthermore, Prettyman is wrong in asserting that Trooper
and Officer failed to testify as to the exact quantities of drugs they
had seen for personal use versus distribution. Officer said that
“upon interviewing people [who] have admitted to personal use,
commonly seen . . . is a half gram to a gram” of methamphetamine
or heroin. And Trooper stated that it was his experience that users

State v. Prettyman
20210868-CA 	17 	2024 UT App 20
typically possessed one gram of such drugs. Officer also testified
about one suspect he had arrested whose methamphetamine
“weighed out to be 2.2 ounces,” and he also testified that he had
“recently arrest[ed] somebody that [had] approximately . . . 12
grams of methamphetamine that claimed it was their personal
use.” Each of these statements offered specific, quantifiable data
points to the jury.
¶32 	In 	sum, 	Counsel 	did 	not 	perform 	deficiently 	by 	not
objecting for lack of foundation because it was reasonable to
conclude that Officer’s and Trooper’s testimonies satisfied the
foundational requirements.
III. Counsel’s Failure to Object that the Expert Testimony Was
More Prejudicial than Probative
¶33 	Next, 	Prettyman 	contends 	that 	Counsel 	should 	have
objected to Trooper’s and Officer’s expert opinions because they
were “more prejudicial than probative” and that because Counsel
did not object on this basis, Prettyman, again, received ineffective
assistance. And again, we disagree.
¶34 	Under rule 403 of the Utah Rules of Evidence, a court “may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Utah R. Evid. 403
(emphases added). Prettyman argues that the probative value of
Trooper’s and Officer’s opinions on drug quantities typically
possessed for personal use “was nil,” asserting, “The jury did not
need it. It already had photos and videos of the impounded drugs,
photos of and testimony about the paraphernalia, and testimony
from a State Crime Lab employee regarding the weight of the
drugs and that the drugs were methamphetamine and heroin.”
Prettyman continues, “To properly consider whether [Prettyman]
intended to distribute the drugs, the jury did not also need
unfounded, unreliable testimony that the drug amounts in [his]
possession were not ‘normal’ or ‘typical’ for addicts.”

State v. Prettyman
20210868-CA 	18 	2024 UT App 20
¶35 	Prettyman’s assertion of unfair prejudice seems to derive
from his contention that the officers’ opinions were unfounded
and unreliable, but—as we discussed above—they were not. See
generally State v. Wilson, 2020 UT App 30, ¶ 30, 461 P.3d 1124
(“[A]ll probative evidence, to some degree, tends to affect the
outcome. That’s why it’s considered probative. But if that is the
only manner in which a piece of evidence can be considered
‘prejudicial,’ its prejudice is by definition not unfair.”), cert. denied,
466 P.3d 1075 (Utah 2020). And the fact that the jury had other
evidence 	establishing 	the 	quantities 	of 	drugs 	Prettyman
possessed did not negate the probative value of Trooper’s and
Officer’s opinions. Without expert testimony, the jury would not
know the significance of those amounts, including whether the
amounts were higher or lower than those typically associated
with personal use. Indeed, as we have noted, the type of expert
testimony Trooper and Officer supplied has been specifically
identified as helpful evidence for the factfinder to have in these
types of cases. See State v. Bankhead, 514 P.2d 800, 803 (Utah 1973)
(“Experienced officers may give their opinions in cases involving
possession of heroin that the narcotics are held for purposes of
sale based upon such matters as the quantity, packaging, and
normal use of an individual; convictions based on such testimony
have been upheld.”). We are not convinced that any unfair
prejudice that may have resulted from this evidence outweighed
its 	probative 	value, 	much 	less 	that 	it 	substantially 	did 	so.3F
4
4. We acknowledge that this is a type of evidence from which
some amount of unfair prejudice could potentially result. In State
v. Rammel, 721 P.2d 498 (Utah 1986), our supreme court said that
“even where statistically valid probability evidence has been
presented,” “probabilities cannot conclusively establish that a
single 	event 	did 	or 	did 	not 	occur 	and 	are 	particularly
inappropriate when used to establish facts not susceptible to
quantitative analysis, such as whether a particular individual is
(continued…)

State v. Prettyman
20210868-CA 	19 	2024 UT App 20
telling the truth at any given time.” Id. at 501 (emphasis added)
(cleaned up). Thus, the Rammel court was concerned with both
(1) anecdotal evidence that is statistically problematic because it
is based on observations of things not susceptible to quantitative
analysis, like witness veracity (a circumstance not present here,
see supra ¶ 30), and (2) statistically valid anecdotal evidence being
used to establish a fact not susceptible to quantitative analysis (a
circumstance that may be present here since a person’s subjective
intent 	to 	distribute 	drugs 	is 	not 	necessarily 	susceptible 	to
quantitative analysis). See id. Based on this second concern,
subsequent to Rammel our supreme court named “statistical
evidence of matters not susceptible to quantitative analysis, such
as witness veracity,” as a category of evidence for which the
ordinary presumption of admissibility under rule 403 of the Utah
Rules of Evidence shifts. State v. Dibello, 780 P.2d 1221, 1229 (Utah
1989).
Here, however, Prettyman does not ask us to shift the rule 403
presumption. His argument goes no further than his statement
that 	“as 	with 	all 	evidentiary 	proffers, 	evidence 	based 	on
‘anecdotal statistical experience’ offered without foundation must
be more probative than prejudicial.” And the only authority he
cites is rule 403 itself. Thus, we have employed the ordinary
presumption of admissibility under rule 403.
But even if Prettyman had asked us to employ a burden shift,
we would not have been inclined to do so. In Dibello, our supreme
court identified two other categories of evidence to which a rule
403 burden shift should apply—“gruesome photographs of a
homicide victim’s corpse” and “a rape victim’s past sexual
activities with someone other than the accused.” Id. Yet there has
since been a full or partial retreat from applying a burden shift to
those categories of evidence. See Met v. State, 2016 UT 51, ¶ 83, 388
P.3d 447 (“The gruesomeness test . . . distract[s] from the plain
language 	of 	the 	Utah 	Rules 	of 	Evidence. 	Admissibility 	of
(continued…)

State v. Prettyman
20210868-CA 	20 	2024 UT App 20
Therefore, Counsel did not perform deficiently for not objecting
on these grounds.
IV. Counsel’s Failure to Object that Trooper Provided a Legal
Conclusion
¶36 	Finally, Prettyman maintains that Counsel was ineffective
for not objecting to a statement made by Trooper that Prettyman
claims provided a legal conclusion. We conclude that there is no
reasonable probability that the outcome of trial would have been
any better for Prettyman in the absence of Trooper’s statement
and, therefore, that this ineffective assistance of counsel claim also
fails.
¶37 	Rule 704 of the Utah Rules of Evidence states, “In a criminal
case, an expert witness must not state an opinion about whether
the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense. Those
allegedly gruesome materials should be assessed without the
gloss that we have placed upon rule 403.”); State v. Rallison, 2023
UT App 34, ¶ 25 n.7, 528 P.3d 1235 (indicating that “we are not
certain 	whether” 	a 	rule 	403 	burden 	shift 	“continues 	to 	be
applicable” to evidence of a rape victim’s past sexual activities
with someone other than the accused and that “we wait for the
supreme court to weigh in on this issue”). Moreover, our case law
regarding the use of drug quantity evidence to prove intent to
distribute contains no hint of a need to employ a burden shift in
this context. See State v. Bankhead, 514 P.2d 800, 803 (Utah 1973)
(“Experienced officers may give their opinions in cases involving
possession of heroin that the narcotics are held for purposes of
sale based upon such matters as the quantity, packaging, and
normal use of an individual . . . .”); State v. Warner, 788 P.2d 1041,
1043 n.2 (Utah Ct. App. 1990) (“The quantity of a drug may be a
factor in determining that it was possessed for sale rather than for
personal use.”).

State v. Prettyman
20210868-CA 	21 	2024 UT App 20
matters are for the trier of fact alone.” Utah R. Evid. 704(b). During
direct examination, the State asked Trooper, “[S]o in your training
and experience[,] . . . with the fanny pack, the cash inside with all
the little separate baggies and the presence of these big chunks of
this dark substance and then all this crystal-like substance, all that
combined together, in your training and experience what does
that lead you to believe?” Trooper responded, “That it was
distribution. It was way more than a normal everyday user would
use.” Prettyman contends that the statement “it was distribution”
was an improper legal conclusion based on the element of
Prettyman’s charges requiring the State to prove that Prettyman
had the intent to distribute the illegal substances he possessed. See
Utah Code § 58-37-8(1)(a) (“[I]t is unlawful for a person to
knowingly 	and 	intentionally 	. 	. 	. 	possess 	a 	controlled 	or
counterfeit substance with intent to distribute . . . .”).
¶38 	Even assuming, without deciding, that this statement
constituted an improper legal conclusion, see generally Colosimo v.
Gateway Cmty. Church, 2016 UT App 195, ¶ 33, 382 P.3d 667
(“There is no bright line between opinions that [permissibly]
embrace 	an 	ultimate 	issue 	and 	those 	that 	provide 	an
impermissible legal conclusion.” (cleaned up)), aff’d, 2018 UT 26,
424 P.3d 866, Prettyman was ultimately not prejudiced when
Counsel did not object to it. “[W]here testimony is merely
cumulative, we are disinclined to find prejudice even when the
testimony was improperly admitted.” State v. Jones, 2020 UT App
31, ¶ 35, 462 P.3d 372. And Prettyman does not assert that other
testimony 	making 	the 	same 	point 	as 	Trooper’s 	“it 	was
distribution” testimony amounted to an impermissible legal
conclusion. Specifically, Officer testified,
I remember recently arresting somebody that did
have 	approximately 	. 	. 	. 	12 	grams 	of
methamphetamine 	that 	claimed 	it 	was 	their
personal use. But still, if we take into consideration
the situation that we’re here for today, even if you

State v. Prettyman
20210868-CA 	22 	2024 UT App 20
look 	at 	someone 	having 	13 	grams 	of
methamphetamine compared to somebody having
40, almost 50 grams of methamphetamine, that
would still lead me to believe that that can’t be used
for personal use.
This statement—as much as the statement at issue—supported
the conclusion that the quantity of drugs Prettyman possessed
was simply too great for it to be believable that he possessed them
merely for personal use. Furthermore, both Trooper and Officer
testified that, in their experience, drug users typically possessed
between a half gram to a gram for personal use. While Prettyman
has argued that Counsel should have objected to those statements,
he has not convinced us that those statements should have been
excluded. Accordingly, the jury had before it multiple sources of
evidence it could consider besides Trooper’s statement that “it
was 	distribution” 	indicating 	that 	the 	quantities 	of 	drugs
Prettyman 	possessed 	were 	significantly 	larger 	than 	those
typically possessed for personal use.
¶39 	Because the statement that Prettyman asserts was an
improper legal conclusion is merely cumulative of this other
evidence, the jury was likely to reach the same conclusion
regardless of whether that statement was excluded. And because
there is no likelihood of a better outcome for Prettyman had
Counsel taken the action Prettyman now contends he should
have, Prettyman was not prejudiced by Counsel’s inaction on this
point.4F
5
5. Prettyman also argues that this court “should compound the
errors here and reverse under the cumulative error doctrine.” But
the cumulative error doctrine does not apply here because we
have determined that Counsel did not perform deficiently with
regard to the first three of Prettyman’s four claims of error and
(continued…)

State v. Prettyman
20210868-CA 	23 	2024 UT App 20
CONCLUSION
¶40 	Prettyman has not borne his burden of persuasion on any
of his ineffective assistance of counsel claims, and we therefore
affirm his convictions.
that the allegedly deficient performance in the fourth claim
resulted in no prejudice to Prettyman. See State v. Martinez-
Castellanos, 2018 UT 46, ¶ 40, 428 P.3d 1038 (“We have repeatedly
held that the [cumulative error] doctrine will not be applied when
claims are found on appeal to not constitute error, or the errors
are found to be so minor as to result in no harm. In other words,
the doctrine will only be applied to [multiple] errors that are
substantial enough to accumulate.” (cleaned up)).