State v. Dutton

2025 UT App 139

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
BREANNA DUTTON,
Appellant.

Opinion
No. 20220515-CA
Filed September 25, 2025

Sixth District Court, Kanab Department
The Honorable Mandy Larsen
No. 201600056

Ramon Ortiz, Debra M. Nelson, and Benjamin Miller,
Attorneys for Appellant
Derek E. Brown and Jeffrey D. Mann, Attorneys for
Appellee, assisted by law student Sara Blamires. 1

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 A jury convicted Breanna Dutton of driving under the
influence of alcohol or drugs (DUI). See Utah Code § 41-6a-502.
Dutton now appeals, arguing that because the arresting officer
lacked probable cause to arrest her, the district court erred in
denying her motion to suppress the evidence resulting from the
arrest. Dutton additionally argues that her trial counsel rendered
ineffective assistance in failing to request a specific unanimity jury
instruction when “the State relied on multiple ‘scenarios’ for

1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
State v. Dutton

conviction.” We are not persuaded by either argument, and we
affirm Dutton’s conviction.

BACKGROUND

¶2 On July 15, 2020, Dutton left her home in Kanab, Utah, to
drive to a nearby bank. Reportedly concerned that her boyfriend
was withdrawing money from her accounts without her
authorization, she intended to go into the bank to discuss the
issue. However, due to COVID-19 pandemic restrictions, the
lobby of the bank was closed, and Dutton was required to use the
drive-up window. The employees at the bank were concerned
about Dutton’s driving, noting that it was “pretty iffy” whether
Dutton “would even make it in there correctly,” referring to the
drive-up window. The employees next noticed that Dutton’s
speech was “slow” and that she “seemed kind of out of it.”
Further, she did not “really seem like she knew what she wanted.”
The employees conferred with each other about the situation and,
out of concern for Dutton and the safety of the public, called 911
to report her driving and behavior. In the call, one employee
explained, “[W]e are a little worried . . . that she should even be
driving, she looks pretty intoxicated.”

¶3 A sergeant with the Kanab City Police Department
(Sergeant) was notified by dispatch about the situation and was
asked to respond. Dispatch relayed that it had been reported by
bank employees that an individual named Breanna Dutton “just
wasn’t acting right at the [drive-up window] and they thought she
might be under the influence.” Dispatch gave Sergeant a
description of the vehicle Dutton was driving. Sergeant had a
history with Dutton, having known her a “very long time”—since
the time she was about sixteen years old (she was thirty-four years
old when arrested). Sergeant’s wife had been Dutton’s drill team
coach in high school. And when he had needed to visit her
family’s home for one reason or another, he would interact with
her. Most recently, he had run into her at the local elementary

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State v. Dutton

school and had a friendly conversation with her. Based on all
these interactions, Sergeant was confident in his ability to
recognize Dutton’s typical behavior when she was not under the
influence of alcohol or drugs.

¶4 When Sergeant arrived at the bank, Dutton’s vehicle was
no longer there. Sergeant then spotted the vehicle “up the street,”
so he drove after it. After catching up to the vehicle and seeing “a
taillight or a break light out on the vehicle,” he attempted to pull
Dutton over. Because she was almost to her house, Dutton parked
her car in her driveway. When Sergeant approached Dutton, and
before he had even asked for her driver license and registration,
Dutton handed him “a whole bunch of paperwork.” Sergeant had
no need for most of the papers—which included a debit card and
a receipt from the bank—and handed back everything except her
registration. He had to ask separately for her driver license. As he
talked with Dutton, Sergeant immediately noticed that she was
acting abnormally. He observed that “her speech was very
slurred” and “thick tongued.” He asked her to step out of the
vehicle, and she “stumbled” while complying with his request.

¶5 Sergeant then began to question Dutton. Her speech
continued to be “slurred, a little bit hard to understand, [and]
prolonged,” and her “words [were] drawn out more” than would
be the case in a typical conversation. He tried to have a casual
conversation with her to figure out what was going on. Although
Sergeant “couldn’t smell any alcohol” on Dutton, her responses
“didn’t flow” and were “kind of scattered,” almost like she was
“disoriented.” It took Sergeant “a minute to kind of comprehend
what exactly . . . it was that she said to make it fit in the context of
the question that was asked.” He later explained, “This told me
that there was something wrong. This was not the Breanna I
knew.” Sergeant also had previous training as a drug recognition
expert and in other DUI recognition methods, having investigated
“[c]lose to a thousand” DUI cases over the course of his career. In
Sergeant’s experience, the behavior Dutton was exhibiting

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State v. Dutton

usually indicated alcohol or drug use. Accordingly, he asked her
to perform field sobriety tests.

¶6 Sergeant started with the horizontal gaze nystagmus
(HGN) test. In an HGN test, an officer uses a stimulus, “usually a
pen or pen light,” and the individual being tested is told to follow
the stimulus movement with his or her eyes. The officer then
follows the movement of the pupils, looking for a nystagmus or a
“bouncing of the eye.” During the HGN test, the officer is looking
for a series of clues in three separate areas for each eye for a total
of six clues: lack of smooth pursuit, nystagmus at maximum
deviation, and onset of nystagmus before forty-five degrees.

¶7 Dutton presented four clues during the HGN test (two for
lack of smooth pursuit and two for nystagmus at maximum
deviation). And “according to the standardized training”
Sergeant had received, four clues is “usually a pretty good
indicator that someone is over or at about the .08 limit for
alcohol.” 2 And although not all drug use “show[s] nystagmus,”
Sergeant later explained, “[I]f I see nystagmus in someone’s eye
and I don’t smell any alcohol, my first thought is . . . that it’s going
to be some sort of depressant that someone is on.” Thus, the four
clues reinforced Sergeant’s suspicion that Dutton was under the
influence of some drug.

¶8 Typically, in such a situation, Sergeant would then proceed
with two other field sobriety tests, but after learning that Dutton
had an injured back and that she was about to have surgery on it,
he decided against more tests, both for her safety and because the
tests would likely have been ineffective. At this point, Sergeant
spoke with a deputy from the Kane County Sheriff’s Office who

2. Although Sergeant’s testimony regarding his training refers to
Utah’s previous blood alcohol concentration limit of .08 grams, see
Utah Code § 41-6a-502(1) (2018), the current limit of .05 grams was
in effect at the time of Dutton’s arrest, see id. § 41-6a-502(1) (2019).

20220515-CA 4 2025 UT App 139
State v. Dutton

had just arrived on scene, and they deliberated on how to proceed.
Sergeant “was very hesitant about actually arresting [Dutton],”
but due to her speech issues and failed nystagmus test, he “felt it
was necessary” to arrest her. As he later reported, “I did not
believe she was safe to drive.”

¶9 Sergeant then arrested Dutton for driving under the
influence. Her blood was also drawn, and subsequent testing
revealed methamphetamine, amphetamine, diazepam,
nordiazepam, and temazepam. The methamphetamine was in a
toxic range. The amphetamine, diazepam, and nordiazepam were
in clinical or therapeutic ranges, while the temazepam was in the
subtherapeutic range. These levels were “consistent with
someone who could be impaired.”

¶10 Dutton was charged with driving under the influence,
enhanced to a third-degree felony because she had two or more
prior DUI convictions. Dutton’s attorney (Counsel) filed a motion
to suppress the evidence resulting from the arrest, arguing that
Dutton “was arrested without probable cause” in violation of the
United States Constitution. Counsel contended that the probable
cause standard “is an objective, not subjective standard” and,
therefore, that Sergeant’s prior experience with Dutton was
inappropriately considered in the probable cause calculation.
After an evidentiary hearing, the district court denied Dutton’s
motion. The court explained that while Sergeant’s prior
relationship with Dutton “carrie[d] some significant weight with
[the court]” in finding probable cause, there were independent,
objective factors that led Sergeant to conclude that Dutton was
under the influence. These included (1) that “he was told that
there was possibly an intoxicated driver having a hard time in the
drive-up” window at the bank, (2) that “he immediately noticed
what he said was thick tongue and slurred speech,” (3) that
Dutton handed him multiple unnecessary documents—including
a debit card and a receipt—when he approached the vehicle,
(4) that Dutton “stumbled” when she exited the vehicle, and

20220515-CA 5 2025 UT App 139
State v. Dutton

(5) that there were multiple clues presented during the HGN test.
The court commented that there was a practical problem with
requiring a small-town cop who “has a personal relationship with
his people . . . to set all of the knowledge aside when he knows
somebody is not acting normally, when he knows what they’re
like when they . . . act normal.” The court concluded, therefore,
that Sergeant’s personal knowledge of Dutton “coupled with” the
objective facts listed above were sufficient to establish probable
cause.

¶11 At trial, the State called three witnesses, who testified as to
the facts set forth above: the employee at the bank who called 911,
Sergeant, and the forensic toxicologist who tested Dutton’s blood.
The defense’s only witness was Dutton. In her defense, Dutton
explained that she handed multiple documents to Sergeant
because she had them out from her visit to the bank and because
she was borrowing her father’s car and did not know exactly
where the registration was. She noted that she originally was not
nervous because she felt she had not done anything wrong and
because she knew Sergeant. However, she said she began to
become more nervous when she saw Sergeant talk with three
other officers who had arrived on scene, causing her to panic
because she realized “this wasn’t just [a stop because] a taillight
[was] out.” Dutton testified, “I was just trying to stay calm and
not get erratic . . . because I had no idea what this was about. . . . I
was all over the place . . . .”

¶12 Dutton explained that while Sergeant was talking with the
other officers, she ingested drugs: “I had a straw in my purse with
a methamphetamine and Valium. I smashed that and snorted it,
threw it[,] and knew I was going to jail.” She had purchased the
drugs weeks before her arrest, just before she left Utah to attempt
detoxing on her own. She testified that it was the first time that
day she had used drugs and that she had been clean for a couple
of weeks. While she acknowledged that she was in control of the
vehicle when she snorted the drugs in the driveway, she argued,

20220515-CA 6 2025 UT App 139
State v. Dutton

“[T]here was no way I would have been impaired at that time.”
She stated that it “was an hour” between her ingestion of the
drugs and the eventual blood draw.

¶13 During the State’s rebuttal, Sergeant was questioned about
the inconsistency between Dutton’s testimony and his own
previous testimony. He noted that he only remembered one other
officer at the scene but said, “[I]t wouldn’t surprise me if a couple
others showed up and then left.” Sergeant explained that the
period of time when he stepped away from Dutton—the time in
which Dutton claimed to have snorted the drugs—was “less than
five minutes” and that he maintained “a visual of her the entire
time.” When asked whether he could “completely see what she
was doing,” he explained he could “see her sitting in the vehicle”
but not “what her hands were doing.” He also testified that when
he returned to the car, he saw no evidence of recent drug use. He
estimated that the time between the stop and the blood draw was
“30 to 45 minutes.”

¶14 Jury instructions were read to the jury. These instructions
included the State and the defense’s “stipulation of fact” that “the
defendant was in actual physical control of a vehicle while she
was parked in her driveway, until she exited the vehicle at the
request of [Sergeant].” The jury was also instructed on the
elements of DUI, as follows:

You cannot convict her of this offense unless, based
on the evidence, you find beyond a reasonable
doubt each of the following elements: [1], Breanna
Dutton; [2], A, operated a vehicle or, B, was in actual
physical control of a vehicle; and, [3], was under the
influence of any drug to a degree that rendered her
incapable of safely operating a vehicle.

The jury was further instructed that “a unanimous concurrence of
all jurors is required before a verdict can be reached.”

20220515-CA 7 2025 UT App 139
State v. Dutton

¶15 In his closing argument, the prosecutor highlighted the
State’s theory of the case against Dutton: “I think it’s pretty
obvious under—under the State’s story of what happened that
she ingested those drugs before she went to the bank, that she was
under the influence of those drugs, and she wasn’t safe to drive.”
But the prosecutor also addressed the alternative story told by
Dutton: “Now, you’ve heard a different story from the defendant,
right? Her story is, Nope, didn’t take the drugs until after I
stopped the vehicle. Even under her scenario, she’s still guilty.
She—we’ve agreed that she was in actual physical control at that
time—at the time that she says that she took those drugs. And she
also agrees that that amount of drugs would make her not safe to
drive.”

¶16 The jury ultimately found Dutton guilty of DUI. Since this
was her third DUI conviction in ten years, the court entered the
conviction as a third-degree felony. The court suspended her
prison sentence and placed her on probation. Dutton now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Dutton first argues that because Sergeant lacked probable
cause to arrest her, the district court erred in denying her motion
to suppress. “A [district] court’s decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation is
a mixed question of law and fact. Factual findings are reviewed
for clear error, but legal conclusions are reviewed for correctness.”
State v. Evans, 2021 UT 63, ¶ 20, 500 P.3d 811 (quotation
simplified).

¶18 Dutton also argues that Counsel provided constitutionally
ineffective assistance by not requesting a specific unanimity jury
instruction. “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

20220515-CA 8 2025 UT App 139
State v. Dutton

deprived of the effective assistance of counsel as a matter of law.”
State v. Alires, 2019 UT App 206, ¶ 15, 455 P.3d 636 (quotation
simplified).

ANALYSIS

I. Denial of the Motion to Suppress

¶19 Dutton contends that the district court erred in denying her
motion to suppress the evidence from her arrest. She argues that
the court based its denial on the personal relationship between
Sergeant and herself, in effect endorsing a subjective probable
cause standard that “is irrelevant under the Fourth Amendment”
and its objective standard. She argues that the “objective facts—
without [Sergeant’s] background knowledge—weren’t enough to
establish probable cause.” Although we agree with Dutton that
Sergeant’s “prior experiences with [her] heavily influenced the
district court’s ruling,” we ultimately agree with the State that the
court did not err because even without considering the factors
that Dutton objects to, there remained “sufficient probable cause
to arrest Dutton based on the totality of the circumstances.” 3

3. This is not to say, however, that we agree with Dutton that
Sergeant’s (or the district court’s) reliance on subjective
knowledge here was entirely improper. See 2 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 3.2(d) (6th
ed. 2024) (discussing Brinegar v. United States, 338 U.S. 160 (1949),
wherein the United States Supreme Court determined that “the
defendant’s criminal record” was “probative evidence [that] was
properly taken into account in deciding that the officer acted with
probable cause,” and noting that “[o]n essentially this reasoning,
other courts have held that a suspect’s prior convictions and prior
arrests or charges are not barred from consideration on the issue
of probable cause” (footnotes omitted)). We also recognize the
(continued…)

20220515-CA 9 2025 UT App 139
State v. Dutton

¶20 When an officer does not have a warrant, the officer can
still arrest an individual “if there is probable cause to believe that
[that individual] has committed or is committing an offense.”
State v. Trane, 2002 UT 97, ¶ 26, 57 P.3d 1052 (quotation
simplified). “Probable cause is an objective standard” that “strikes
a balance between the rights of individual citizens and the
interests of the people as a whole in law enforcement.” State v.
Spurgeon, 904 P.2d 220, 226 (Utah Ct. App. 1995). The United
States Supreme Court has explained, “The probable-cause
standard is incapable of precise definition or quantification into
percentages because it deals with probabilities and depends on
the totality of the circumstances. . . . However, . . . the substance
of all the definitions of probable cause is a reasonable ground for

difficulty that the district court referenced of expecting “the town
cop, who has been a cop for 30 years, [and] has a personal
relationship with his people . . . to set all of the knowledge aside
when he knows somebody is not acting normally, when he knows
what they’re like when they . . . act normal.” But in this case we
need not engage in definitive line-drawing on this matter because
the totality of the circumstances clearly supported the court’s
determination of probable cause. Thus, any inappropriate reliance
on subjective factors would at most amount to only harmless
error. See State v. Hernandez, 2024 UT App 71, ¶ 25, 549 P.3d 643
(“Even if there is error on the part of the [district] court, an error
is harmless and does not require reversal if it is sufficiently
inconsequential that we conclude there is no reasonable
likelihood that the error affected the outcome of the
proceedings. . . . When addressing claims involving the violation
of a federally protected constitutional right, federal law sets a
higher standard and instructs that we cannot declare federal
constitutional error harmless unless we sincerely believe that it
was harmless beyond a reasonable doubt.” (quotation
simplified)), cert. denied, 558 P.3d 86 (Utah 2024).

20220515-CA 10 2025 UT App 139
State v. Dutton

belief of guilt . . . .” Maryland v. Pringle, 540 U.S. 366, 371 (2003)
(quotation simplified).

¶21 “In addressing the requirement of probable cause to arrest
without a warrant,” the Utah Supreme Court has explained that
the objective probable cause standard considers “whether from
the facts known to the officer, and the inferences which fairly
might be drawn therefrom, a reasonable and prudent person in
[the officer’s] position would be justified in believing that the
suspect had committed the offense.” State v. Anderson, 910 P.2d
1229, 1232–33 (Utah 1996) (quotation simplified). Both the
“quantity and quality” of those facts “are considered in the
totality of the circumstances.” State v. Hinmon, 2016 UT App 215,
¶ 12, 385 P.3d 751 (quotation simplified). And when the officer is
aware of an “informant’s tip,” that tip is also appropriately
included in the totality of the circumstances considered. Id. ¶ 18
(quotation simplified).

¶22 Here, considering the totality of the circumstances,
Sergeant had probable cause to arrest Dutton even without any
reliance on his background knowledge of her. First, Sergeant had
received notice of a tip from an informant that Dutton seemed to
be driving under the influence. Then, after pulling Dutton over,
Sergeant observed Dutton acting in a manner that indicated she
was under the influence of some substance. Finally, Dutton
presented four clues during the HGN test. These three facts taken
together would lead a reasonable person to justifiably believe that
Dutton was driving under the influence.

¶23 As to the informant’s tip, Dutton argues that because
Sergeant did not “hear the 911 call from the bankers” and did not
“interview those witnesses,” he could not have used the tip from
them in determining whether he had probable cause. While it is
true that Sergeant did not personally hear the 911 call or talk with
the employees at the bank, he nonetheless was told by dispatch
that someone from the bank reported Dutton “just wasn’t acting

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State v. Dutton

right at the [drive-up window] and they thought she might be
under the influence.” And “[i]t is well-established in this state that
the articulable facts supporting reasonable suspicion may come
from an officer’s own observations as well as external information
such as an informant’s tip via police dispatch, or information,
bulletins or flyers received from other law enforcement sources.”
State v. Kohl, 2000 UT 35, ¶ 13, 999 P.2d 7. Moreover, as the State
points out, the tip had several characteristics indicating reliability,
including that the tip was not anonymous, that it was based on
first-hand knowledge, and that it involved assessing something—
intoxication—that is within the general public’s common
knowledge. See State v. Purser, 828 P.2d 515, 517 (Utah Ct. App.
1992) (“[R]eliability and veracity are generally assumed when the
informant is a citizen who receives nothing from the police in
exchange for the information.”); State v. Van Dyke, 2009 UT App
369, ¶ 24, 223 P.3d 465 (“We have recognized that members of the
general public have a common knowledge about whether a
person is under the influence of alcohol. Further, these details are
considered more reliable when, as was the case here, the
informant personally observes the incident and makes the report
as the events are unfolding.” (quotation simplified)).

¶24 Furthermore, the observations reported in the tip were
confirmed by various of Sergeant’s personal observations.
Sergeant, after pulling Dutton over, immediately noticed odd
behavior indicating she was possibly under the influence of
something. When he first approached the car, Dutton handed
Sergeant a stack of documents that were unrelated to her driver
license and registration. Sergeant also noticed during the
encounter that Dutton’s speech was “thick tongued,” “slurred,”
and “slow.” Sergeant then saw Dutton stumble as she exited her
vehicle and observed that she continued to speak in a slow,
halting, and strange manner. And when they conversed, Sergeant
noticed that Dutton’s answers to questions “didn’t flow like [they]
should have in a normal conversation,” that she exhibited

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“scattered thought,” and that “she acted disoriented.” Finally,
Dutton presented four of the six clues during the HGN test. 4

¶25 Thus, even when we set aside Sergeant’s subjective
knowledge about Dutton and what was “normal” for her, the
totality of the remaining circumstances with which Sergeant was
presented justified a reasonable belief that Dutton had been
driving a vehicle while intoxicated and, thus, provided probable
cause to arrest Dutton. Just because Sergeant knew that these
problematic signs displayed by Dutton (such as her slurring,
confusion, and stumbling) were not normal for her, the signs still
remain objective factors indicative of intoxication that supported
the finding of probable cause. Thus, the district court did not err
in denying Dutton’s motion to suppress.

II. Ineffective Assistance of Counsel

¶26 Dutton additionally argues that because there were two
theories about when she became intoxicated—that she took the
drugs sometime before she left her house to go to the bank or that

4. Dutton contests this characterization of her performance on the
HGN test, pointing to the district court’s oral finding that
Sergeant “found two clues that he testified to.” But it appears
quite clear from the immediately preceding language that the
court’s finding, when taken in context, was not that two clues were
found, but that two of the areas tested resulted in clues (which
would mean four total clues—one for each eye in each area where
a clue was presented): “There was lack of smooth pursuit, slow
response. It’s not definitive but it’s part of the totality of the
evidence. There was maximum deviation in both eyes. He did not
find onset.” Thus, the record demonstrates that the court credited
Sergeant’s testimony regarding finding four clues in conducting
the HGN test (two related to lack of smooth pursuit, two related
to nystagmus at maximum deviation, and none related to onset of
nystagmus before forty-five degrees).

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she, instead, ingested the drugs shortly after she was pulled over
while Sergeant had stepped away from her car—Counsel
performed deficiently in failing to request a specific unanimity
jury instruction and, therefore, reversal of her conviction is
warranted. We disagree.

¶27 Obtaining a reversal of a conviction due to the ineffective
assistance of trial counsel entails two showings. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). “First, the defendant must
show that counsel’s performance was deficient,” that is, “that
counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. “Second, the defendant must show that the
deficient performance prejudiced the defense,” that is, “that
counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” Id. Here, Dutton fails to
make the second showing. See id. at 697 (“The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed.”).

¶28 “The constitutional requirement that a jury must be
unanimous as to distinct counts or separate instances of a
particular crime is well-established in our law.” State v. Alires,
2019 UT App 206, ¶ 19, 455 P.3d 636 (quotation simplified); see also
Utah Const. art. I, § 10 (“In criminal cases the verdict shall be
unanimous.”). But we see no likelihood that the jury was not
unanimous in its verdict here.

¶29 Dutton argues that the jury was presented with two
distinct theories upon which to convict: “Either (1) [Dutton] drove
her vehicle while under the influence to and from the bank or
(2) [Dutton] was under the influence while parked in her
driveway, waiting for [Sergeant’s] return, while in actual physical
control of the vehicle.” But the primary problem for Dutton is that

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based upon the testimony given at trial, the second theory strains
credibility. That is, we think it incredibly unlikely that any juror
would believe that Dutton was not under the influence until after
she was pulled over—that she had not been intoxicated when she
had so much trouble navigating the bank drive-up window that
it prompted a call to 911, that she was not intoxicated when she
(unprompted) shoved all the unnecessary documents at Sergeant,
and that she was not intoxicated when she was slurring her words
and speaking with a “thick tongue” at the outset of the stop.
Though the results of the blood test taken about an hour after
Dutton was arrested showed high levels of drugs in Dutton’s
system and could explain either theory, it is not likely that the jury
believed Dutton’s version.

¶30 Thus, even had the jury been specifically instructed as to
unanimity, we see no real probability—let alone a reasonable
probability—that the result here would have been different. See
Strickland, 466 U.S. at 694 (“The defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”).
Thus, Dutton’s ineffective assistance of counsel claim fails for a
failure to show prejudice.

CONCLUSION

¶31 The district court did not err in concluding that there was
probable cause to support Dutton’s arrest and in denying her
motion to suppress. And Dutton has not demonstrated ineffective
assistance of counsel because the alleged deficient performance
was not prejudicial under the circumstances of this case. We
therefore affirm.

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