State v. Kufrin

2024 UT App 86

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MICHAEL IGNATIUS KUFRIN,
Appellant.

Opinion
No. 20210499-CA
Filed June 6, 2024

Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 171402277

Emily Adams, Freyja Johnson, and Melissa Jo
Townsend, Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee

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

HARRIS, Judge:

¶1 After a thirteen-day trial, a jury convicted Michael Ignatius
Kufrin of murdering his girlfriend, Peggy Sue Case (Peggy), in
1988. Kufrin appeals that conviction, asserting that the trial court
should have declared a mistrial after one of the State’s witnesses
mentioned that Kufrin had “previous cellmates”; that the court
improperly admitted expert testimony from the medical examiner
(Examiner) regarding timelines for stages of body decomposition;
and that his trial attorneys rendered constitutionally ineffective
assistance by not lodging a particular objection to testimony from
Peggy’s coworkers about the status of her relationship with
Kufrin at the time of her disappearance. For the reasons set forth,
we reject all of Kufrin’s arguments and affirm his conviction.
State v. Kufrin

BACKGROUND 1

Peggy’s Mysterious Disappearance

¶2 On Saturday, July 9, 1988, Peggy and Kufrin—a
romantically involved couple who resided together—attended,
along with some of Peggy’s coworkers, a company barbeque and
a follow-on “hot tub party.” Some people at the events noticed
something off about Kufrin. One person thought that Kufrin “was
maybe the only person there that wasn’t having fun.” Others
noted that he appeared “angry-looking,” was not very social, and
spent his time “kind of in the distance.” Peggy, on the other hand,
“was having a good time” and was at times seen in the hot tub
socializing with some other men. At around 11:00 p.m., Peggy and
Kufrin left the party together, accompanied by no one else. That
was the last time anyone other than Kufrin saw Peggy alive.

¶3 On the following Monday, Peggy did not show up to work.
Her office did receive an explanation for her absence, though;
Kufrin called in that day and explained that Peggy was unable to
come to work because she was “going up to Salt Lake to look at a
car.” Meanwhile, Peggy’s family was worried and thought Peggy
might be missing; Peggy’s sister went over to Peggy and Kufrin’s
residence that evening and saw Kufrin outside “watering the
lawn.” Peggy’s sister observed that Kufrin was nervous—so
nervous, in fact, “that the water in his hand was shaking.”
Concerned, Peggy’s sister asked Kufrin where Peggy was. Kufrin
responded, “Well, she’s gone,” and he explained that Peggy had
gone “to Reno to get a car.”

1. In an appeal from a jury trial, “we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly,” and we “present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Speights,
2021 UT 56, n.1, 497 P.3d 340 (quotation simplified).

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State v. Kufrin

¶4 Over the next few days, Kufrin called Peggy’s office at least
two more times to explain her absence. In these later calls, Kufrin
told Peggy’s coworkers that Peggy “wasn’t feeling well” and
therefore couldn’t come to work. One of Peggy’s coworkers was
concerned, and she called Peggy’s telephone number; Peggy did
not answer, but the coworker heard a message on Peggy’s
answering machine that Kufrin had recorded, apparently
intended for Peggy. In the message, Kufrin stated, “If you have
any more trouble with the car, call the friends in Sparks and they
will come and get you, and then I will come and get you.”

¶5 By Friday, police had started an investigation into Peggy’s
disappearance. Officers interviewed Kufrin, and he said that
Peggy “had gone with [a friend] to Reno” to buy “a 1986 silver
Honda Prelude.” (That friend would later testify that she did not
go on a trip with Peggy to Reno.) Kufrin also said that he had last
seen Peggy on Sunday but that he had spoken with her on both
Tuesday and Thursday. According to Kufrin, Peggy told him
during one conversation that she was in Lake Tahoe and was on
her way to see her brother who was serving a religious mission in
California, and that she would be back by Monday. (That brother
would later testify that Peggy never went to see him.)

¶6 Starting Monday, officers regularly checked the residence
where Kufrin and Peggy lived to see if a new car was parked out
front, which would perhaps signify that Peggy had come home.
But every time they went by, they saw no new car. During a
Tuesday visit, police knocked on the door. Kufrin answered, and
he said that Peggy had come home. He pointed to a blue duffle
bag that he claimed Peggy used while traveling, and he explained
that Peggy had gone to pick up her paycheck and that she would
be back at the house soon. (That paycheck was never picked up.)
He then promised that when Peggy came home, he would tell her
to go over to the police station.

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State v. Kufrin

¶7 Over the course of the investigation, officers discovered
that Kufrin had been telling different stories to different people
about where Peggy was and what had happened to her. At trial,
the State presented testimony from many witnesses about the
various accounts—in addition to the ones already discussed—
that Kufrin gave, including the following:

• A neighbor testified that, on the day after the hot tub
party, Kufrin said that Peggy had “got[ten] drunk and
left” the party “with a couple of her coworkers” and
would call him in a few days and then come home.

• A coworker testified that, three days after the party,
Kufrin said that Peggy had gone to get a car because she
was mad that Kufrin “wouldn’t marry her.”

• A friend testified that, sometime in 1988, Kufrin said
that the “cops” were “accusing him of killing Peggy”
and that she had left Utah to go buy a car.

• Another friend testified that, sometime during the
week of Peggy’s disappearance, Kufrin said that Peggy
“needed to get away for a few days and that she had
gone out of town.”

• That same friend also testified that, near the end of July,
Kufrin said that Peggy had come home for a night and
that “he had to send her back . . . to California” where
she was either “getting a job or had got one.”

• A neighbor testified that, sometime at the end of July or
in early August, Kufrin said that “Peggy had been in
contact with him and that she had an RV and they were
going to meet somewhere and then leave from there.”

• One of the friends also testified that, sometime in 1988,
Kufrin said that Peggy “was at a motel in Nephi, but

20210499-CA 4 2024 UT App 86
State v. Kufrin

she was not allowed to talk to anybody per her lawyer’s
advice.”

• That same friend also testified that, sometime in 1988,
Kufrin said that he had just taken Peggy up to Park
City, that they were “going to get married,” and that
they wanted the friend to be a witness at the wedding.

¶8 Kufrin’s claim that he and Peggy were going to get married
was one that Peggy’s friends and coworkers found “surpris[ing].”
Prior to her disappearance, Peggy had told one coworker that she
was “dissatisfied” and “unhappy,” and that she was “looking for
a more committed relationship” with “someone who could plan
with her . . . for her life and her future.” She had left another
coworker with the “impression” that she “wanted to improve her
situation.” One of Peggy’s friends told police that Peggy had
“decide[d] that she wanted more out of her relationship with”
Kufrin and that if Kufrin “didn’t set some goals and have more
ambition, she was going to leave him.” A neighbor also testified
that before Kufrin moved in with her, Peggy “seemed happy,” but
that after Kufrin moved in, Peggy “became very withdrawn” and
“wouldn’t communicate at all.”

¶9 In August 1988, the police searched Kufrin’s trash. In it,
they found a “ripped-up photograph” of Peggy, as well as a torn-
up tendered check from Peggy’s account. The check was dated
one month after Peggy’s disappearance and was made out to
Kufrin in the amount of $100, and it bore a suspicious-looking
signature. Police also found one of Peggy’s bank statements, also
torn up, which indicated that the check made out to Kufrin had
effectively drained Peggy’s account.

¶10 With this new information in hand, police obtained a
warrant to search the residence Kufrin had shared with Peggy.
The police utilized both human officers as well as dogs (referred
to as K9s) in this search of the premises, but the K9s used in the
search were not trained and certified as “cadaver dogs.” During

20210499-CA 5 2024 UT App 86
State v. Kufrin

the initial search, which took place in early September, police
searched not only the house but also a “root cellar” located at the
back of the property. 2 This search of the root cellar was conducted
by both officers and a K9, and they found nothing of interest in
this first search of the root cellar.

¶11 In October, about a month after this initial search, Kufrin
moved out of the residence. But despite his relocation,
neighborhood rumors continued to run rampant that Peggy had
been murdered and buried somewhere on the premises. In an
attempt to quell these rumors, officers contacted the owner of the
premises and obtained “permission to go under the house and
around the yard and look for Peggy.” Officers (this time without
a K9) again searched the root cellar, and this time they “spaded”
the dirt floor with a shovel, although they did not go “more than
two spades deep in any one spot.” Officers again found nothing.

¶12 Police interviewed Kufrin again in January 1989. In that
interview, Kufrin stated that the last time he saw Peggy was at the

2. A “root cellar” is generally defined as “a structure, usually
underground or partially underground, used for storage of
vegetables, fruits, nuts, or other foods,” and the “name reflects the
traditional focus on root crops stored in an underground cellar.”
See Root Cellar, Wikipedia, https://en.wikipedia.org/wiki/Root_ce
llar [https://perma.cc/3NB8-WXJP]. In this case, though, the “root
cellar” was not located underground. Instead, it was located
entirely on ground level; it had concrete walls, a concrete roof, and
a dirt floor, and it required an average-sized person to crouch
down in order to enter. As depicted at trial, it was located away
from the house at the back of the property and was about ten feet
wide, eight feet long, and, once past the entryway, less than six
feet high. Even though this structure—essentially, an above-
ground concrete storage shed—does not entirely comport with
the general definition of “root cellar,” we use that term in this
opinion because that is the term the witnesses used to describe it.

20210499-CA 6 2024 UT App 86
State v. Kufrin

hot tub party at around midnight. He also claimed that Peggy had
later returned with a new car but that he never saw her. And he
said he delivered a cedar chest to her location in California, but he
declined to give the police “a specific location or a person that
[they] could confirm that with.”

¶13 After that, for nearly three decades, the case went cold.

The Discovery of Peggy’s Body

¶14 In 2012, a new tenant (Tenant) moved into the residence
where Peggy and Kufrin had lived in 1988. He used the root cellar
in the backyard for storage. When Tenant moved in, he found a
table and a five-gallon bucket of concrete in the root cellar that he
considered too heavy to move, so he placed his items around the
table and bucket. As he was doing so, he noticed that the dirt floor
underneath the table was “concave” and exhibited “a definite
depression,” and it made him wonder whether something might
have been buried there that had decayed. But Tenant took no
further action at that time.

¶15 A few years later, in 2016, Tenant was having a
conversation with a neighbor—who happened to be a former
police officer—about construction of a retaining wall along the
boundary between their respective properties. While talking, the
neighbor told Tenant about Peggy’s disappearance and
mentioned that “[h]er body [had] never been found.” Half-
jokingly, the neighbor pointed at the root cellar and said, “Maybe
she is in there.” This caused Tenant to think of the concave
depression he had observed in the floor of the root cellar, and he
told the neighbor, “Well, I know where she is at.” Tenant then
took the neighbor to the root cellar and showed him the
depression. Because of the heavy table and bucket, they did not
dig into the root cellar’s floor that day. But Tenant resolved to dig
into the floor later, when he moved from the property.

20210499-CA 7 2024 UT App 86
State v. Kufrin

¶16 About a year later, in May 2017, Tenant was about to move
out of the residence, and he asked a friend to help him move. After
they moved Tenant’s belongings out of the root cellar, they
decided to dig into the root cellar’s floor where the depression
was. About eighteen inches down, they found a blanket, and after
cutting a hole in the blanket they eventually found what looked
like a “skull.” At that point, Tenant and his friend “ran out of the
building” and contacted police.

¶17 Officers soon arrived and conducted an excavation of the
root cellar, and they were eventually able to identify the remains
as Peggy’s. The blanket was identified as one that Peggy’s mother
and sister had made for her decades earlier and that Peggy had
kept in her house. Officers also found a black tank top and black
shorts at the scene, which were the exact clothing Peggy had been
wearing at the hot tub party in July 1988. Investigators were also
able to use dental records to identify the remains as Peggy’s.

¶18 After examining the remains, investigators ruled Peggy’s
death a homicide, and they specifically found that she had
sustained “sharp force trauma,” likely from “a bladed
instrument” forcefully inserted into her ribcage. Peggy also had a
fractured bone in her neck, a fact that suggested she had been
strangled. Examiner eventually determined that Peggy died from
strangulation and “sharp force” injuries.

¶19 Investigators also determined that the root cellar was not
the first place that Peggy’s body had been interred. Peggy’s hair
was not located anywhere in the root cellar, a fact that suggested
that Peggy’s body had been “moved from the place where she was
initially left” and that her “body had undergone some
decomposition prior to moving to [her] final resting place.”

¶20 Officers tested the items found in the root cellar—
including the blanket and clothing—for DNA, but the results of
this testing were inconclusive and could neither confirm nor
exclude Kufrin as a possible contributor.

20210499-CA 8 2024 UT App 86
State v. Kufrin

¶21 Police eventually obtained an arrest warrant for Kufrin,
then located him and interviewed him in July 2017, more than
twenty-eight years after their last interview with him. In this
interview, Kufrin claimed that Peggy “ran away from home” after
the hot tub party, and he stated that he had nothing to do with her
disappearance.

The Trial

¶22 After completing its investigation, the State charged Kufrin
with murder. Eventually, the case proceeded to a thirteen-day
jury trial. Tenant testified about finding Peggy’s body. Various
law enforcement officers testified about the investigation. Some of
Peggy’s coworkers and friends testified about the hot tub party
and about their communications with Kufrin. A forensic
anthropologist testified about Peggy’s injuries. And Examiner
testified about what he thought caused Peggy’s death. Three parts
of the State’s evidence are especially relevant to this appeal, and
we discuss these parts in more detail.

¶23 First, the State asked some of Peggy’s coworkers and
friends to offer testimony about their perceptions of Peggy’s
relationship with Kufrin. During trial, Kufrin objected to the
admission of this testimony, and his objection was largely based
on hearsay grounds (although at one point Kufrin asserted that
the testimony was “not helpful to the trier of fact”). The court
entertained argument on these objections, and the attorneys
debated whether and to what extent various hearsay exceptions
applied to the testimony. The court largely overruled Kufrin’s
objections, although it did exclude one statement and cautioned
the State against offering others. The State then introduced the
evidence already described. See supra ¶ 8. At no point did Kufrin
ask the trial court to exclude this evidence pursuant to rule 403 of
the Utah Rules of Evidence.

¶24 Second, the State presented testimony from Examiner
regarding Peggy’s remains. Relevant here was the testimony that

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State v. Kufrin

Peggy’s hair was not found in the root cellar, leading investigators
to conclude that Peggy had initially been buried somewhere else.
In particular, the State previewed, during its opening statement,
that Examiner would testify that it was possible for Peggy’s scalp
and hair to have detached from her skull, due to partial
decomposition of the body, “in a matter of days, if not a few
weeks, at most,” after her death. Such evidence was important to
the State because Kufrin moved out of the residence in October
1988, some three months after Peggy’s disappearance, and it was
important for the State to establish that Peggy’s reburial—without
scalp and hair—in the root cellar could have taken place at some
point less than three months after her death.

¶25 Kufrin objected to Examiner’s proffered testimony that the
“scalp slippage” could have occurred within just a few days or
weeks after Peggy’s death. Kufrin’s objection was grounded in
rule 702 of the Utah Rules of Evidence. The court held an
evidentiary hearing, in the middle of the trial but outside the
jury’s presence, to consider Kufrin’s objection. Examiner was
present and testified at that hearing, and he was questioned by
counsel for both sides as well as by the court directly.

¶26 During that hearing, Examiner testified that during his
career, he had done about 5,000 postmortem exams, about one-
third of which had involved at least “mild to moderate . . . stages
of decomposition.” He testified that he had “seen bodies at every
stage of decomposition” during the course of his career. His
knowledge about body decomposition and scalp slippage came
not only from his own experience but also from consulting with
“other seasoned pathologists in [his] office.” He discussed his
familiarity with studies done at “body farms down in
Tennessee”—which he considered to be “fairly reliable”—where
“they essentially subject corpses to different conditions” to learn
about how decomposition works. He also offered his view that
“empirical data is available from time immemorial when
people—scientists and laypeople would observe . . . bodies that

20210499-CA 10 2024 UT App 86
State v. Kufrin

were left in . . . different conditions.” Based on this knowledge and
experience, he concluded that Peggy’s “body had undergone
some decomposition prior to moving to [her] final resting place.”

¶27 With regard to timing, Examiner noted that in the typical
situation, where “the body is intact and buried, the hair remains
with the body,” and he reiterated that, “without manipulation, . . .
the scalp hair doesn’t slough [off] on its own.” But he explained
that, once the body has begun to reach even “the initial stages of
decomposition,” the “hair can slip off with minimal physical
disturbance of the body with the scalp.” And he opined that the
decomposition processes, “given enough time,” will “undermine
the scalp to the point [that] when [a] body is disturbed, the scalp
hair sloughs off,” and that “under the right conditions” this could
occur “within a matter of days or weeks.” Examiner
acknowledged that he was unaware of “any studies that are
unique to the state of Utah or conditions that you see in the state
of Utah,” and that conditions in other parts of the country—due
to humidity—could be different from Utah. Later, in front of the
jury, he explained that the fastest time frame he had observed
“from last seen alive to full skeletonization happened . . . in [a case
in] Georgia,” in which “the whole decomposition process”
happened “within 12 to 14 days.”

¶28 The court then made a lengthy oral ruling overruling
Kufrin’s objection to Examiner’s testimony. The court noted the
“large body of experience and knowledge” underlying
Examiner’s testimony, and it observed that Kufrin would be
calling a competing expert on the same topic (body
decomposition and scalp slippage). In this situation, the court
concluded that both experts would be allowed to offer their
opinions on the matter and that Examiner’s testimony was
“appropriate as opinion testimony for the jury to help
understand, appropriately, from two different and possibly
opposing witnesses, when this event might have transpired.”
Later, in front of the jury and in accordance with the court’s

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State v. Kufrin

ruling, Examiner testified that it would have been possible for
Peggy’s scalp and hair to have separated from her body during
reburial if the body had been moved at least “days to maybe a
week or week-and-a-half, two weeks” after her death.

¶29 Third, one of the State’s law enforcement witnesses
mentioned—apparently inadvertently—during his testimony
that, during the investigation, he had spoken with some of
Kufrin’s “previous cellmates.” The State had come into the trial
with the belief that “it would be error to” introduce Kufrin’s prior
criminal history to the jury, and it had apparently made at least
some effort to educate its witnesses, before testifying, not to
mention anything about Kufrin having been previously
incarcerated. But despite those efforts, a mishap occurred. While
the State was examining the lead detective in the 2017
investigation, it asked, “Since that arrest in July of 2017 what else
have you done to further this investigation?” The detective
responded as follows:

Well, at that point, um, obviously I had been in
contact with the county attorney’s office, the
prosecution. I followed up on any leads or requests
that they may have had, whether it was—you know,
I went back and interviewed maybe previous
cellmates or family members or talked to [Kufrin’s]
mother and just any leads that—some of this had
also hit the media. We’d get phone calls randomly.
Just any leads we may or may not have had from
people . . . just randomly calling.

At that point, Kufrin’s counsel asked for a sidebar, which request
the court granted, even though it later commented that, in the
moment, it “didn’t know what the issue was.” During the sidebar,
Kufrin’s counsel asked the court to declare a mistrial, asserting
that the witness’s reference to “previous cellmates” had
“suggest[ed] to the jury” that Kufrin “has a criminal record and a

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State v. Kufrin

history of being an inmate in jail or prison,” which counsel
asserted “is a prejudicial statement . . . of character evidence.” The
State opposed the motion, and it cited some cases to the court as
support for its position. The court noted that it was a Friday
afternoon, and it declined to immediately rule on the motion for
a mistrial; instead, it gave the parties the opportunity to submit
additional authorities, and it indicated that it would revisit the
matter on Tuesday morning when the trial reconvened.

¶30 On Tuesday morning, the court indicated that it had read
all the cases the parties had mentioned on Friday and in addition
had read “some others that are cited in those cases.” The court
heard extensive oral argument from counsel, and then took a
recess until lunchtime so that it could compose a written decision
on the matter. When the court reconvened, it read aloud a written
decision it had composed that morning, in which it denied
Kufrin’s motion for a mistrial. The court noted that the State had
not intentionally elicited the witness’s comment, that it had been
made only in passing, and that it was relatively “innocuous
because it was only two words in a trial that has already lasted
seven days and is less than half over.” The court specifically
determined that the detective’s reference to “previous” cellmates
was “not unduly prejudicial.”

¶31 After the court’s ruling, the trial continued, and it lasted six
more days. Eventually, the State rested its case, and Kufrin then
presented five witnesses in his defense, including the following: a
soil scientist who noted that some of the soil found inside the
blanket was not from the root cellar, and who agreed with the
State’s investigators that Peggy had initially been buried
somewhere else; a dog handling expert who testified about the
abilities of cadaver dogs and dogs generally, and who opined that
even a non-cadaver dog would likely have exhibited “an alert
behavior of some level” in the root cellar during the September
1988 search; and a forensic pathologist who offered his own
opinions about body decomposition and scalp slippage. The

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pathologist testified that Examiner’s timeline—that Peggy’s body
could have experienced scalp slippage in “as little as a few days
and at most a few weeks if the remains were disturbed or
manipulated”—was “a little fast,” especially for Utah’s low
humidity conditions. He offered his view that it would take “[a]t
least weeks to months” for scalp slippage upon reburial to be
possible “in a Utah grave,” but he agreed on cross-examination
that a “mechanical intervention like a hand pulling it” could
“speed up the process” and result in scalp and hair removal “even
though the natural process hadn’t run its full course.”

¶32 After deliberation, the jury found Kufrin guilty. Later, the
court sentenced Kufrin to a prison term of five years to life.

ISSUES AND STANDARDS OF REVIEW

¶33 Kufrin appeals his conviction, and he raises three issues for
our consideration. First, he challenges the trial court’s decision to
deny his motion for a mistrial. We “review the denial of a motion
for a mistrial under an abuse of discretion standard,” State v.
Sorenson, 2023 UT App 159, ¶ 10, 542 P.3d 529 (quotation
simplified), and “we will not reverse the court’s decision unless it
is plainly wrong in that the incident so likely influenced the jury
that the defendant cannot be said to have had a fair trial,” State v.
Suhail, 2023 UT App 15, ¶ 70, 525 P.3d 550 (quotation simplified),
cert. denied, 531 P.3d 730 (Utah 2023).

¶34 Second, Kufrin challenges the trial court’s decision to
permit Examiner to offer timeline testimony regarding scalp
slippage. We review a “trial court’s determination regarding the
admissibility of expert testimony” for “abuse of discretion.” State
v. Griffin, 2016 UT 33, ¶ 14, 384 P.3d 186. Under this standard, “we
will not reverse unless the decision exceeds the limits of
reasonability.” Id. (quotation simplified).

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¶35 Finally, Kufrin asserts that his trial attorneys rendered
ineffective assistance by not lodging a rule 403 objection to
testimony about Peggy’s relationship with Kufrin. “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 (quotation simplified), cert. denied, 525
P.3d 1254 (Utah 2022).

ANALYSIS

I. Mistrial Motion

¶36 First, Kufrin asserts that the trial court abused its discretion
by denying his motion for a mistrial, made after the lead detective
mentioned that Kufrin had “previous cellmates.” While we agree
with Kufrin that this remark was unfortunate, we discern no
abuse of discretion in the trial court’s determination that the
remark did not warrant a mistrial.

¶37 “A mistrial is strong medicine.” State v. Whytock, 2020 UT
App 107, ¶ 16, 469 P.3d 1150, cert. denied, 481 P.3d 1043 (Utah
2021); see also State v. Roberts, 2019 UT App 9, ¶ 15, 438 P.3d 885
(“Declaring a mistrial is a particularly drastic remedy that is
warranted only when no reasonable alternatives exist.”
(quotation simplified)), cert. denied, 440 P.3d 694 (Utah 2019). And
in this context, we afford “a high level of deference” to a trial
court’s decision “because trial courts are in an advantaged
position to determine the impact of courtroom events on the total
proceedings.” Whytock, 2020 UT App 107, ¶ 17 (quotation
simplified). Accordingly, “we will not reverse the court’s decision
unless it is plainly wrong in that the incident so likely influenced
the jury that the defendant cannot be said to have had a fair trial.”
State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quotation simplified).

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¶38 Our supreme court, after reviewing Utah appellate
decisions in this area, has noted that “a mistrial is not required
where an improper statement is not intentionally elicited, is made
in passing, and is relatively innocuous in light of all the testimony
presented.” Id. ¶ 40; see also State v. Butterfield, 2001 UT 59, ¶ 47, 27
P.3d 1133 (finding no abuse of discretion in the denial of a mistrial
where the improper testimony was not intentionally elicited and
was “vague” and “fleeting”); State v. Decorso, 1999 UT 57, ¶ 39, 993
P.2d 837 (finding no abuse of discretion in the denial of a mistrial
where the improper testimony was “vague” and where “the
proceedings . . . move[d] along without undue interruption”
following the testimony), abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016. Three cases, in particular, are
especially relevant, not only because those cases present factual
situations similar to the one presented here, but also because they
illustrate the “high level of deference” we afford trial courts in this
context. See Whytock, 2020 UT App 107, ¶ 17.

¶39 In State v. Wach, a defendant was accused of assaulting and
kidnapping his mother, and the court made a pretrial ruling that
no evidence of the defendant’s previous bad acts would be
admitted. 2001 UT 35, ¶¶ 2, 19, 24 P.3d 948. During the mother’s
testimony, she volunteered information that implied that the
defendant may have previously assaulted her. Id. ¶ 19. The
defendant moved for a mistrial, but the court denied the motion.
Id. ¶¶ 20–21. Our supreme court affirmed, saying that the
statement “was not elicited by the prosecutor, and was an
isolated, off-hand remark, buried in roughly 244 pages of
testimony,” and concluding that the “isolated remark . . . did not
render [the] trial so unfair that the trial court was plainly wrong
in denying” the motion. Id. ¶ 46 (quotation simplified).

¶40 A few years later, in Allen, our supreme court held that a
court had not abused its discretion in denying a motion for a
mistrial when one of the State’s witnesses made an unsolicited
reference to the defendant being asked to “come in for a lie

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State v. Kufrin

detector test.” 2005 UT 11, ¶¶ 36, 43 (quotation simplified). In
analyzing the situation, the court listed six reasons that supported
its decision to affirm: (1) the prosecutor did not intentionally elicit
the statement; (2) the reference was “vague” and did not indicate
that the defendant had passed or failed any lie detector test, only
that he had been asked to take one; (3) the “reference was brief”;
(4) after the statement, “the proceedings continued without
undue interruption”; (5) the State brought “no further attention”
to the statement; and (6) the trial court offered to give a curative
instruction, which offer the defendant declined. See id. ¶ 43.

¶41 More recently, in Whytock, we held that a court had not
abused its discretion in denying a motion for a mistrial after one
of the State’s witnesses “volunteered,” without being asked, that
she had “got [the defendant] out on ankle monitor to her dad’s
house from the Salt Lake County jail.” 2020 UT App 107, ¶¶ 10, 49
(quotation simplified). The defendant asserted that this comment
had prejudiced him by implying that he had a criminal history. Id.
¶ 15. We agreed with the defendant “that the statement should
not have come into evidence,” but we nevertheless concluded
that, under the circumstances, the court had not abused its
discretion in refusing to declare a mistrial. Id. We noted that the
State had not intentionally elicited the statement, that it had been
made “in passing,” and that the State “made no further mention
of [the defendant’s] criminal history generally or of [the witness’s]
statement in particular.” Id. ¶ 24.

¶42 These cases are quite similar to the instant case, and they
compel the same result. As in these other cases, the detective’s
statement here was made in passing, it was not intentionally
elicited by the State, and the State made no further mention of it—
or of any criminal history Kufrin might have had—at any point in
the trial. We also note the ambiguous nature of the brief two-word
allusion and thus credit the trial court’s determination that the
statement was “relatively innocuous” in the overall context of the
trial. The jury would have known that Kufrin was arrested in July

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State v. Kufrin

2017 after Peggy’s body was discovered; in this context, a
reference to “cellmates” would not necessarily have triggered an
assumption that Kufrin had an unrelated criminal history. And it
is worth noting that the trial judge himself—who listened to the
statement in the moment—was unaware, until Kufrin’s counsel
explained his motion, that a potentially inadmissible statement
had been uttered. As in the other similar cases, the trial court’s
refusal to declare a mistrial was not an abuse of its discretion.

¶43 Kufrin resists this determination on two basic grounds.
First, he focuses on the word “previous” and asserts that the
reference to “previous cellmates” had to have referred to pre-2017
cellmates and not to cellmates Kufrin had following his arrest for
Peggy’s murder. We do not interpret the reference in quite the
same way as Kufrin does; in our view, it is quite possible that the
jury simply assumed the reference to be to post-arrest cellmates.
But even assuming, for purposes of the discussion, that the
reference was clearly one to pre-arrest cellmates and thus clearly
implied that Kufrin had a previously undisclosed criminal
history, that would not change our analysis. The statement was
made in passing, was unsolicited, and was never again mentioned
during the course of the thirteen-day trial. As illustrated by
Whytock—where the reference to criminal history was much
clearer than this one—a trial court retains discretion, depending
on the circumstances, to determine whether even direct references
to inadmissible criminal history warrant a mistrial. See id. For the
reasons already discussed, the trial court did not abuse that
discretion here.

¶44 Second, Kufrin directs our attention to two other cases that
he believes compel reversal, but these cases are distinguishable.
In State v. Courtney, the defendant was on trial for drug crimes,
and a potential juror stated, during voir dire in front of the entire
jury panel, that she knew the defendant from her “years in law
enforcement” and explained that she had had “affiliations with”
the defendant “during the time that [the potential juror] was

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serving as an agent for the Weber-Morgan Narcotics Strike Force.”
2017 UT App 62, ¶ 2, 415 P.3d 604. The court denied a motion for
a mistrial, and we reversed, finding an abuse of discretion given
the type of charges in the case and the direct implication that the
defendant had a history of criminal drug charges. See id. ¶¶ 23–24
(noting that the comment “suggested that [the defendant] had
repeatedly had some involvement in the type of crimes he was on
trial for”). Such concerns are not present here, where the comment
about “previous cellmates” contained no implication that Kufrin
had ever had involvement in any type of violent crime, let alone
the specific type of crime (murder) involved here.

¶45 Kufrin also directs our attention to State v. Craft, in which a
police detective stated—unsolicited and in passing—that the
defendant’s codefendants had said the defendant was present at
the scene of the crime. 2017 UT App 87, ¶ 13, 397 P.3d 889. The
defendant’s “entire defense” was that he hadn’t been present, and
he had successfully moved, prior to trial, to sever his trial from his
codefendants’ “for the very purpose of avoiding the introduction
. . . of incriminating statements made by his codefendants.” Id.
¶ 26. The offending statements thus directly implicated the
defendant; in that context, we determined that counsel had
rendered ineffective assistance by not moving for a mistrial. Id.
¶ 33. But the context here is materially different: the detective’s
statement did not directly implicate Kufrin in the commission of
the very crime in question.

¶46 Thus, this case is much more like Wach, Allen, and Whytock
than it is like Courtney and Craft. Under the circumstances here,
we discern no abuse of discretion in the trial court’s determination
that the detective’s statement was relatively innocuous in the
context of this thirteen-day trial, and we thus conclude that the
trial court did not abuse its discretion in its decision to deny
Kufrin’s motion for a mistrial.

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State v. Kufrin

II. Examiner’s Testimony

¶47 Next, Kufrin contends that the trial court abused its
discretion by allowing Examiner to offer expert testimony that
included a possible timeline within which body decomposition
and scalp slippage could have occurred. We discern no abuse of
discretion in the court’s ruling.

¶48 We begin our analysis with a discussion of the particulars
of Examiner’s testimony. In this regard, it is important to note that
the timeline opinion Kufrin challenges did not concern an
undisturbed body at rest; rather, Examiner’s opinion had to do
with time frames within which it might be possible, given
progressing decomposition, for a “disturbed” or “manipulat[ed]”
body to have its scalp and hair “slip off” during a reburial process.
Indeed, Examiner clarified that his opinion “presupposes some
. . . external physical disturbance to the body.” And Examiner did
not offer any opinion about when scalp slippage must have
occurred; rather, his opinion was couched in terms of when it
would have been “possible” for scalp “slippage to have
occurred.” So, to sum up, the opinion that is here challenged by
Kufrin amounted to this: that the scalp and hair slipped off of
Peggy’s body when her body was moved, and that it would have
been “possible,” due to progressing body decomposition, for this
to have occurred as early as “maybe a week or week-and-a-half,
two weeks” after her death.

¶49 Kufrin challenged the admissibility of this opinion under
rule 702 of the Utah Rules of Evidence. That rule allows “a witness
who is qualified as an expert by knowledge, skill, experience,
training, or education” to “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). But in order
for expert testimony based on “[s]cientific, technical, or other
specialized knowledge” to be admissible, the proponent of that

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State v. Kufrin

evidence must make “a threshold showing that the principles or
methods” used “(1) are reliable, (2) are based on sufficient facts or
data, and (3) have been reliably applied to the facts.” Id. R. 702(b);
see also State v. Lopez, 2018 UT 5, ¶ 20, 417 P.3d 116.

¶50 Kufrin does not challenge Examiner’s qualifications or the
general helpfulness of Examiner’s testimony. Instead, Kufrin
asserts that the State failed to make the “threshold showing” that
Examiner’s timeline testimony on “scalp slippage” was reliable
and based upon sufficient facts or data. In support of this
assertion, Kufrin claims that Examiner’s opinion was based
entirely on “his observation of one drowning death in Georgia,”
and argues therefrom that “[o]ne anecdotal example is not
‘sufficient facts or data.’” And Kufrin further claims that
Examiner’s “principles and methods” were not “reliably applied
to the facts” of this case, because Examiner had not adequately
accounted for how Utah’s weather and atmospheric conditions
might differ from more humid environments. We find Kufrin’s
assertions unpersuasive.

¶51 Examiner’s opinion was based on much more than one
isolated drowning death in Georgia. To be sure, Examiner used
that case as one example in which he had seen “full
skeletonization” occur “within 12 to 14 days” after death. But
Examiner’s opinions about when it would be possible for a
disturbed body to experience scalp slippage were based on much
more than just this one example. As already noted, at the
evidentiary hearing, Examiner testified that he had done some
5,000 postmortem exams, about one-third of which had involved
at least “mild to moderate . . . stages of decomposition,” and that
this experience had allowed him to see “bodies at every stage of
decomposition.” He further stated that his knowledge about body
decomposition and scalp slippage came not only from his own
experience but also from consulting with “other seasoned
pathologists in [his] office,” as well as from familiarity with “fairly
reliable” studies done at “body farms down in Tennessee” where

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State v. Kufrin

“they essentially subject corpses to different conditions” to learn
about how decomposition works. He also referenced “empirical
data . . . from time immemorial when people—scientists and
laypeople would observe . . . bodies that were left in . . . different
conditions.” And during his testimony in front of the jury, he
mentioned that he had done “a literature search” on the topic.
Examiner’s opinion was thus based on far more than just one
isolated example, and Kufrin’s argument to the contrary is
unsupported by the record.

¶52 Next, we acknowledge Kufrin’s point that some of the facts
and data forming the basis for Examiner’s opinion came from
places like Tennessee and Georgia, where environmental
conditions might be materially different from those in Utah. But
we do not see this as something that, in this situation, would
disqualify Examiner from offering his opinions; instead, this point
is something that can readily be (and was) explored during cross-
examination and that goes to the weight of the testimony rather
than its admissibility. See Alder v. Bayer Corp., 2002 UT 115, ¶ 60,
61 P.3d 1068 (stating that “opposing experts, additional tests,
experiments, and publications, all of which may increase or lessen
the value of [an] expert’s testimony,” do not “preclude admission
of the expert’s testimony—they go to the weight, not the
admissibility” of the testimony (quotation simplified)); see also
Eskelson v. Davis Hosp. & Med. Center, 2010 UT 59, ¶ 12, 242 P.3d
762 (stating that the “degree of scrutiny that should be applied to
expert testimony by trial judges is not so rigorous as to be satisfied
only by scientific or other specialized principles or methods that
are free of controversy or that meet any fixed set of criteria
fashioned to test reliability” (quotation simplified)).

¶53 Finally, we note that Kufrin’s own expert offered scalp-
slippage timeline testimony that was, in important ways, not all
that different from Examiner’s testimony. When asked about it,
Kufrin’s expert opined that Examiner’s timeline was “a little quick
for a Utah grave,” but even he acknowledged that scalp slippage

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State v. Kufrin

upon body disturbance could have occurred within “weeks to
months” of death, a timeline that could still allow for reburial to
have occurred before October 1988. Under these circumstances,
the trial court did not abuse its discretion when it overruled
Kufrin’s objection and allowed Examiner to offer expert opinion
regarding possible time frames for scalp slippage to have
occurred upon disturbance of Peggy’s body. We therefore reject
Kufrin’s argument to the contrary.

III. Ineffective Assistance of Counsel

¶54 Kufrin’s final argument is an assertion that his trial
attorneys rendered ineffective assistance by not lodging a
particular objection—one grounded in rule 403 of the Utah Rules
of Evidence—to testimony from Peggy’s friends and coworkers
about their perceptions of her relationship with Kufrin. We reject
this argument because Kufrin has not carried his burden of
demonstrating that his attorneys performed deficiently by not
making that objection.

¶55 To succeed on his ineffective assistance of counsel claim,
Kufrin must demonstrate both (1) “that counsel’s performance
was deficient” and (2) “that the deficient performance prejudiced
the defense” so as to “deprive the defendant of a fair trial.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Kufrin must
make a successful showing on both elements; indeed, if “either is
lacking, the claim fails and this court need not address the other.”
State v. Ames, 2024 UT App 30, ¶ 17, 546 P.3d 356 (quotation
simplified), cert. denied, No. 20240319 (Utah May 24, 2024).

¶56 In our view, Kufrin’s claim fails on the deficient
performance prong. That part of the test requires Kufrin to show
that his counsel’s performance “fell below an objective standard
of reasonableness.” State v. Scott, 2020 UT 13, ¶ 31, 462 P.3d 350
(quotation simplified). In evaluating the reasonableness of
counsel’s actions, courts will often look to whether the actions
counsel took were motivated by trial strategy. See id. ¶ 35 (“To be

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State v. Kufrin

sure, the performance inquiry will often include an analysis of
whether there could have been a sound strategic reason for
counsel’s actions.”). And while “the ultimate question is not
whether there was a possible strategic reason for counsel’s
conduct, but instead whether that conduct was objectively
reasonable,” see id., “[i]f it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance,” State v.
Ray, 2020 UT 12, ¶ 34, 469 P.3d 871.

¶57 In the specific context presented here—where a defendant
contends that his trial attorney performed deficiently by not
lodging a particular objection—Utah appellate courts have often
stated that an attorney does not perform deficiently if lodging the
objection in question would have been a futile exercise. See, e.g.,
State v. Ring, 2018 UT 19, ¶¶ 43, 47, 424 P.3d 845 (holding that,
where “counsel could have reasonably believed that an objection
was futile,” counsel did not perform deficiently by not lodging
that objection); 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.”). In this case,
Kufrin’s trial attorneys could reasonably have believed that
making a rule 403-based objection to the testimony in question
would have been a futile exercise, and that such an objection
lacked any other strategic value.

¶58 “Trial courts have wide latitude in making determinations
of relevance, probativeness, and prejudice under rules 401 and
403.” State v. Boyd, 2001 UT 30, ¶ 23, 25 P.3d 985 (quotation
simplified). And “it’s settled that under rule 403, courts should
indulge a presumption in favor of admissibility.” State v. Forbush,
2024 UT App 11, ¶ 44, 544 P.3d 1 (quotation simplified), petition
for cert. filed, Feb. 26, 2024 (No. 20240205). For evidence to be
subject to exclusion under rule 403, a court must conclude that the
risk of “unfair prejudice” posed by the evidence’s admission
“substantially outweigh[s]” “its probative value.” Utah R. Evid.

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State v. Kufrin

403. In this situation, the evidence in question had appreciable
probative value, yet the risk of unfair prejudice posed by its
admission was not especially significant.

¶59 As for probative value, the testimony in question shed light
on, and provided context for, a possible reason Kufrin may have
had for being upset with Peggy, especially in the wake of a hot
tub party at which Peggy socialized with other men. In cases
where a boyfriend stands accused of murdering his girlfriend,
testimony about the state of their relationship can often provide
important context for their actions or statements. And this was
certainly the case here.

¶60 We find unpersuasive Kufrin’s argument that the
testimony’s probative value was significantly diminished due to
the passage of time. To be sure, some of the witnesses stated
that—after the passage of some three decades—they could not
come up with “specific words” that Peggy had said to them, and
that they were offering more of a general perception of the status
of the relationship. But Kufrin was able to cross-examine the
witnesses about the extent to which their memories had faded
over time, and he even called a memory expert to discuss the
shortcomings of memory. Generally, these kinds of
“shortcomings go to the testimony’s weight, not its admissibility.”
See State v. Nunez, 2021 UT App 86, ¶ 35, 498 P.3d 458, cert. denied,
502 P.3d 270 (Utah 2021). 3

3. We likewise find unpersuasive Kufrin’s argument that the
testimony had diminished probative value because “the defense
had no opportunity to cross-examine Peggy concerning her
statements to her coworkers.” This is at least potentially the case
with all hearsay-type evidence admitted pursuant to one of the
many exceptions to the general ban on hearsay evidence. We
simply do not agree with Kufrin’s contention that his inability to
(continued…)

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State v. Kufrin

¶61 And we do not perceive this evidence as creating much risk
of unfairly prejudicing the jury. “All effective evidence is
prejudicial in the sense of being damaging to the party against
whom it is offered,” and “rule 403 does not require a court to
exclude all prejudicial evidence.” State v. Suhail, 2023 UT App 15,
¶ 85, 525 P.3d 550 (quotation simplified), cert. denied, 531 P.3d 730
(Utah 2023). Thus, evidence is not subject to exclusion under rule
403 simply because it is “prejudicial” to a party; to be subject to
exclusion, evidence must “create[] an undue tendency to suggest
decision on an improper basis, commonly but not necessarily an
emotional one, such as bias, sympathy, hatred, contempt,
retribution or horror.” Id. (quotation simplified); see also State v.
Sorenson, 2023 UT App 159, ¶ 17, 542 P.3d 529 (“Unfair prejudice
results only where the evidence has an undue tendency to suggest
decision upon an improper basis.” (quotation simplified)).

¶62 Certainly, the testimony from Peggy’s friends and
coworkers to the effect that Peggy was unhappy and unsatisfied
in her relationship with Kufrin, and that she was contemplating
leaving him, was not helpful to Kufrin’s defense. But this does not
mean that it was unfairly prejudicial. Kufrin does not even attempt
to argue that this evidence might have caused the jury to convict
him based on bias, sympathy, hatred, contempt, or the like.

¶63 Instead, he notes that the statements were admitted into
evidence under rule 803(3) of the Utah Rules of Evidence 4—the
exception to the hearsay rule for statements of a “declarant’s then-
existing state of mind”—and he asserts that statements admitted
under this specific hearsay exception carry a danger that the jury
might use them “as evidence of a defendant’s intentions, acts, or

cross-examine Peggy about the statements in question
appreciably reduced the probative value of those statements.

4. Kufrin does not mount an appellate challenge to the trial court’s
decision to admit these statements under rule 803(3).

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State v. Kufrin

culpability rather than the victim’s state of mind.” In support of
this argument, Kufrin cites State v. Auble, a case in which a friend
of the victim was allowed to testify that the victim told him that
the defendant “threatened to kill her if she moved out.” See 754
P.2d 935, 936 (Utah 1988). But Auble is materially distinguishable
from this case because the statement at issue there went directly
to the defendant’s state of mind, in addition to the victim’s. In this
case, by contrast, none of the testimony in question included
statements made by Kufrin; it consisted entirely of witnesses’
descriptions of their own perceptions of Peggy’s relationship with
Kufrin, as well as witnesses’ recollections of things Peggy had said
to them about her own perception of that relationship. This case,
therefore, simply does not present the same concerns as Auble
because there is no risk that the jury would use the friends’ and
coworkers’ testimony as evidence of Kufrin’s specific intentions
or actions. And we note, in any event, that the trial court’s
decision, in Auble, not to exclude the friend’s testimony under rule
403 was affirmed by our supreme court. See id. at 937–38.

¶64 Accordingly, Kufrin’s trial attorneys could have
reasonably believed that any objection based in rule 403 would
have been futile and that lodging it had no other strategic value,
and for that reason Kufrin has not carried his burden of
demonstrating that his attorneys performed deficiently by not
lodging that particular objection. On that basis, we reject Kufrin’s
ineffective assistance claim. 5

5. Kufrin also raises a cumulative error argument. But because we
have not identified any errors, Kufrin cannot succeed in making a
cumulative error argument. See State v. Modes, 2020 UT App 136,
¶ 12 n.5, 475 P.3d 153 (“Because we conclude that there are no
errors to accumulate here, the cumulative error doctrine is
inapplicable in this case.” (quotation simplified)).

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State v. Kufrin

CONCLUSION

¶65 The trial court did not abuse its discretion in denying
Kufrin’s motion for a mistrial, nor did it abuse its discretion in
allowing Examiner to offer timeline testimony about body
decomposition and scalp slippage. And Kufrin has not carried his
burden of demonstrating that his trial attorneys rendered
ineffective assistance in not lodging a rule 403 objection to various
witnesses’ testimony regarding their perception of Peggy’s
relationship with Kufrin. Indeed, after reviewing the record in
this case, we are left with the impression that the trial court, the
prosecutors, and the defense attorneys all rendered exemplary
work in trying Kufrin’s case. Accordingly, we reject all of Kufrin’s
appellate arguments and therefore affirm his conviction.

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