1. The Honorable Russell W. Bench and the Honorable Pamela T.

Greenwood, Senior Judges, sat by special assignment as authorized

by law. See generally Utah Code Jud. Admin. R. 11-201(6).

2014 UT App 192

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

CHRISTOPHER B. DOUTRE,

Defendant and Appellant.

Opinion

No. 20120944-CA

Filed August 14, 2014

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 121900279

Samuel P. Newton, Attorney for Appellant

Sean D. Reyes, Daniel W. Boyer, and Michelle I.

Young, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which SENIOR

JUDGES RUSSELL W. BENCH and PAMELA T. GREENWOOD

concurred.1

ORME, Judge:

¶1 Defendant Christopher B. Doutre was convicted of

attempted kidnapping, a first degree felony. He appeals that

conviction, primarily arguing that the trial court improperly

discouraged him from attending a jury view and that his trial
State v. Doutre

2. “On appeal, we recite the facts from the record in the light most

favorable to the jury’s verdict and present conflicting evidence only

as necessary to understand issues raised on appeal.” State v. Bluff,

2002 UT 66, ¶ 2, 52 P.3d 1210 (citations and internal quotation

marks omitted).

20120944-CA 2 2014 UT App 192

counsel was ineffective for failing to object to the testimony of the

State’s expert witness. We reverse and remand.

BACKGROUND2

¶2 Making use of a few inches of late January snow before it

melted, three girls went sledding on a small hill in an undeveloped

lot in their Ogden neighborhood.One girl separated from the other

two girls and began walking toward a nearby house where her

mother was visiting with a friend. The girl testified that at some

point she fell through the ice that had formed at the bottom of the

hill and got stuck in the mud. She recounted that a man she had

never met approached her from behind and grabbed her hand. She

testified that he told her that her mother was by his truck, but she

knew her mother was in the nearby house.

¶3 The other girls began yelling, and, according to their

testimonies, the man fled. Based on the girls’ descriptions of the

truck and the clothes the man was wearing, police were able to find

and arrest Defendant at his nearby apartment.

¶4 Defendant did not testify at trial, but Defendant’s girlfriend

testified that Defendant told her that he was leaving the apartment

to get cigarettes. She told police that Defendant said that he saw a

girl fall and walked over to see if she needed help. A police officer

also testified that Defendant stated that he went out of his

apartment for a smoke and talked to the girl, but that he only told

her that her friends were calling her and that she should go with

them.
State v. Doutre

20120944-CA 3 2014 UT App 192

¶5 During trial, the State requested that the jury be allowed to

visit the sledding area in person. Defendant did not object to the

proposed jury view, but jail policy required that law enforcement

officers would need to restrain and escort Defendant during the

visit. Both the trial court and Defendant’s trial counsel were

concerned about the prejudicial effect this might have in the minds

of the jurors, and they engaged in an extended discussion about

how to properly conduct the jury view. During this discussion, the

trial court asked Defendant’s counsel why she wanted him to

attend the jury view at all, considering the high risk of unfair

prejudice. She replied, “I don’t want, but he may. That’s his

choice.” Defendant then volunteered, “I won’t go, Your Honor.”

The trial court did not immediately accept Defendant’s offer,

emphasizing that it did not want to “force [Defendant] one way or

the other,” and encouraged Defendant to discuss the matter with

his attorney. Defendant ultimately did not attend the jury view.

Defendant’s counsel was present during the jury view and did not

raise any objections to the way in which it was conducted.

¶6 Back in the courtroom, the jury heard from several

witnesses, including Detective Glenn Buss, one of the investigating

police officers. The jury had already met Buss because he was

appointed by the court to guide the jury during the jury view

earlier that day. In addition to testifying about his investigation in

general, the State used Buss as an expert witness to testify about

what appeared to be evidence of footprints left in the snow. Buss

claimed to have found footprints in the melting snow five days

after the attempted kidnapping that he identified in court as

coming from an adult wearing shoes and running—or at least

striding—down the hill. He agreed with the State that the

footprints “were consistent” with the girls’ story.

¶7 After hearing all the evidence, the jury convicted Defendant

of attempted kidnapping. He appeals.
State v. Doutre

20120944-CA 4 2014 UT App 192

ISSUES AND STANDARDS OF REVIEW

¶8 Defendant first argues that he was unlawfully deprived of

his right to attend the jury view during his trial. Defendant

contends that his trial counsel was ineffective for failing to object

to conducting the jury view in Defendant’s absence and that the

trial court plainly erred in its handling of the matter. A claim of

ineffective assistance of counsel raised for the first time on appeal

presents a question of law. State v. Alfatlawi, 2006 UT App 511, ¶ 11,

153 P.3d 804. Normally, a claim of plain error requires a showing

that “(i) [a]n error exists; (ii) the error should have been obvious to

the trial court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d

1201, 1208 (Utah 1993).

¶9 Defendant also asserts that his trial counsel was ineffective

for failing to object to the State’s expert witness on the grounds that

the expert lacked proper qualifications and that his testimony

violated rule 702 of the Utah Rules of Evidence. Whether

Defendant’s counsel was ineffective in this regard presents a

question of law. See Alfatlawi, 2006 UT App 511, ¶ 11.

ANALYSIS

I. Jury View

¶10 While they may be rare, jury views of crime scenes are

explicitly authorized under the Utah Rules of Criminal Procedure.

See Utah R. Crim. P. 17(j) (“When in the opinion of the court it is

proper for the jury to view the place in which the offense is alleged

to have been committed . . . it may order them to be conducted . . .

to the place, which shall be shown to them by some person

appointed by the court for that purpose.”). Generally, a criminal

defendant has a constitutional right to be present during all phases

of his or her trial, see Utah Const. art. I, § 12; State v. Hubbard, 2002

UT 45, ¶ 33, 48 P.3d 953, although it is not clear whether a simple

jury view, where no evidence is admitted and no testimony is
State v. Doutre

3. The State argues that this was also invited error on the part of

Defendant’s trial counsel. See generally State v. Dunn, 850 P.2d 1201,

1220 (Utah 1993) (explaining that the invited error doctrine

prevents a party from taking “advantage of an error committed at

trial when that party led the trial court into committing the error”).

If there was any error involved with the jury view itself, then it is

quite possible that trial counsel invited it by agreeing to the

conditions of the jury view, attending the jury view, and then

opting not to object to anything that occurred during the jury view.

However, because we determine that Defendant waived whatever

rights he may have had in that regard, we do not address the issue

of invited error.

20120944-CA 5 2014 UT App 192

given, merits the same protections, see State v. Scott, 541 P.2d 810,

810 (Utah 1975) (noting that jury views are discretionary and that

nothing in Utah law “gives the defendant or counsel any right or

even privilege to be included in the” jury view). See also Snyder v.

Massachusetts, 291 U.S. 97, 108–22 (1934) (holding that the

“Fourteenth Amendment does not assure to a defendant the

privilege to be present” at a jury view where no words are spoken

because “[t]here is nothing he could do if he were there, and almost

nothing he could gain,” but in all other circumstances “the justice

orinjustice of [excluding the defendant] must be determined in the

light of the whole record”), overruled in part on other grounds by

Malloy v. Hogan, 378 U.S. 1 (1964). But even assuming, arguendo,

that Defendant did have a constitutional right to attend the jury’s

visit to the crime scene, this right can be validly waived. “[F]ailure

by a criminal defendant to invoke his right to be present . . .

constitutes a valid waiver of that right.” United States v. Gagnon, 470

U.S. 522, 529 (1985) (dealing with a defendant’s right to be present

pursuant to rule 43 of the Federal Rules of Criminal Procedure).

The same principle applies here, and we conclude that whatever

right Defendant may have had to attend the jury view was waived

when he voluntarily stated that he wished to stay behind.3

¶11 Defendant knew the jury view was going to take place. The

trial court and trial counsel discussed several options to ensure that
State v. Doutre

20120944-CA 6 2014 UT App 192

Defendant would be able to attend the jury view in a way that

minimized, as much as possible, any prejudice. Defendant not only

failed to assert any right to attend the jury view, but he

affirmatively volunteered to stay behind. Under the circumstances,

we must conclude that his waiver was knowing and voluntary.

Thus, he cannot now claim plain error on the part of the trial court

for its acceptance of his valid waiver.

¶12 Furthermore, we conclude that Defendant’s trial counsel

was not deficient for failing to insist, against her client’s

clearly stated wishes, that he attend the jury view. To demonstrate

ineffective assistance of counsel, Defendant must show that his trial

counsel’s “representation fell below an objective standard of

reasonableness,” see Strickland v. Washington, 466 U.S. 668, 688

(1984), and that he was prejudiced thereby, see id. at 687. If the

“defendant has failed to prove that his counsel had no conceivable

tactical basis for his actions,” then we will not consider trial

counsel’s representation to be constitutionally deficient. See State v.

Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (internal quotation marks

omitted).

¶13 In this case, we can readily conceive of tactical and otherwise

reasonable bases for trial counsel’s decisions. To begin with, trial

counsel may have wisely concluded that the danger of the jury

catching even a glimpse of Defendant being shackled and escorted

like an already-convicted prisoner overwhelmed the scant benefit

of his being present but silent at the jury view. Even if there was

some imaginable way for Defendant to attend the jury view

without visible restraints, Defendant’s trial counsel may also have

been worried about how his body language at the scene could be

construed or misconstrued by attentive jurors. And she may well

have felt that she would be better able to keep an eye on the jurors

and their police escort if she was not also monitoring Defendant

and fielding his questions or comments. Finally, trial counsel, like

the trial court, may have accepted Defendant’s knowing and

voluntary waiver as sincere and sensible and therefore elected not

to raise an objection out of a desire to “advance the legitimate
State v. Doutre

4. While Defendant primarily challenges this aspect of the trial as

part of his comprehensive attack on the jury view, it more logically

fits as part of his challenge to trial counsel’s handling of Buss’s

testimony.

20120944-CA 7 2014 UT App 192

interests of” her client. See Utah Standards of Professionalism &

Civility 1. Because there is a conceivable tactical basis for trial

counsel’s actions, we conclude that she was not ineffective in this

regard.

II. Expert Testimony

¶14 Defendant next points to a number of problems with

Detective Buss testifying as an expert witness and asserts that his

trial counsel’s failure to properly object constituted ineffective

assistance of counsel. Again, to prevail on a claim of ineffective

assistance of counsel, a defendant must show, first, that trial

counsel’s “representation fell below an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),

and second, that the defendant was prejudiced thereby, id. at 687.

We conclude that Defendant’s trial counsel was ineffective in

failing to object to Buss’s testimony and that this failure prejudiced

Defendant.

A. Ineffectiveness

¶15 On appeal, Defendant directs our attention to a number of

problems with Detective Buss’s testimony: (1) Buss participated in

the jury view as the jury’s escort and narrator before being called

as a witness, (2) the State did not provide the required prior notice

4

that Buss was going to give expert testimony, (3) Buss was not

qualified to give expert testimony and his methods were unreliable,

and (4) Buss’s testimony improperly vouched for the credibility of

other witnesses.

¶16 First, it was significant that Buss was a witness and that on

the day he testified, he also servedas the court-appointed guide for
State v. Doutre

5. We cite Jones v. Commonwealth, 317 S.E.2d 482 (Va. 1984), only

because it articulates a common-sense principle and not because we

have determined that trial counsel must be aware of, and adhere to,

the jurisprudence of other jurisdictions.

6. Alternatively, trial counsel should have objected to Buss’s

serving as the jury’s escort and narrator during the jury view.

20120944-CA 8 2014 UT App 192

the jury view. While we have already determined that Defendant

waived his right to attend the jury view and that the jury view

appears to have been conducted in an otherwise unobjectionable

manner, trial counsel should have been sensitive to the impression

this unusual situation might have made on the jury. Even when a

defendant has waived his right to attend a jury view, there should

not be “permitted any irregularity . . . [that] might tend to influence

the trier of fact.” Jones v. Commonwealth, 317 S.E.2d 482, 485 (Va.

1984). This certainly seems to be such an irregularity, particularly 5

because the trial court told the jury that “[n]one of the witnesses

are going to be” at the jury view. Buss was, however, permitted to

be at the jury view, and was the only witness so privileged.

¶17 The State asked Buss during direct examination, “[I]s

visibility different today than it was on February 1st?” Buss was

allowed to answer this question by referencing how things

appeared at the scene earlier that day during the jury view. He

then explained the location of events that supported the State’s

theory of the case, even though he had served as the courtappointed guide who was supposed to impartially point out

landmarks for the benefit of the jurors during the jury view. All of

this had the probable effect of bolstering his credibility.

Considering the potential for confusion that his dual roles

presented, trial counsel should have objected to Buss’s testimony

on those grounds.

6

¶18 Second, the State failed to give Defendant notice that it was

going to call an expert witness, as required by Utah Code section

77-17-13. See Utah Code Ann. § 77-17-13(1)(a) (LexisNexis 2012)
State v. Doutre

7. Buss’s work as an Ogden City police detective entailed

investigation primarily of cases involving domestic violence or

children. His expertise in tracking was not acquired in the

discharge of these responsibilities but as a volunteer member of the

Utah County Sheriff’s Office Search and Rescue team. Ogden, of

course, is in Weber County, not Utah County.

20120944-CA 9 2014 UT App 192

(requiring any party intending to use an expert witness in a felony

case to give “notice to the opposing party as soon as practicable but

not less than 30 days before trial or 10 days before the hearing”).

The State argues that because Buss is an employee of a political

subdivision of the state, it should not be held to the thirty-day

notice requirement in subsection (1)(a), but instead should be

required only to give “reasonable notice” and make its witness

“available to cooperatively consult” with Defendant. See id. § 77-17-

13(6). The notice exception for an expert witness who is a state

employee, contained in subsection (6), most likely refers to an

expert witness who is testifying in his or her official role as a

government employee and not merely a government employee

who also happens to be an expert on a subject outside the scope of

his or her official work, as is the case here. But even if subsection 7

(6) applies to Buss, such that the thirty-day notice requirement does

not apply, the State failed to give even reasonable notice and did

not make Buss available to Defendant to cooperatively consult, as

is required by the rule. In fact, the State did not give Defendant a

witness list until three business days before the trial. This was not

a reasonable amount of time for Defendant to cooperatively consult

with Buss or to call a rebuttal expert witness. Trial counsel should

have objected to Buss’s testimony for lack of notice and asked for

a continuance or another appropriate remedy. See id. § 77-17-13(4).

¶19 Third, Buss’s testimony did not meet the threshold

requirements for expert testimony under rule 702 of the Utah Rules

of Evidence. Trial judges are required by rule 702 to “screen out

unreliable expert testimony.” Utah R. Evid. 702 advisory committee

note. Specialized knowledge, such as tracking, can be the basis of
State v. Doutre

20120944-CA 10 2014 UT App 192

expert testimony only if there is a threshold showing that the

principles or methods that are underlying the testimony (1) are

reliable, (2) are based on sufficient facts, and (3) have been reliably

applied to the facts. See Utah R. Evid. 702(b). In this case, Buss

testified that he was a four-year veteran of the Utah County

Sheriff’s Office Search and Rescue team and had training in

tracking people. While he did not say that he had actual experience

with tracking people, the trial court seems, at first blush, to have

concluded that Buss had made a “basic foundational showing” of

reliability for his testimony to be admissible. See id. R. 702 advisory

committee note. However, when Buss began to testify, it should

have been immediately apparent to trial counselthat the principles

and methods underlying his testimony were not (1) reliable,

(2) based on sufficient facts or data, or (3) reliably applied to the

facts of the case. See id. R. 702(b).

¶20 Buss testified that he visited the scene five days after the

alleged crime and identified marks in the snow as footprints. He

said the footprints were several days old, that they were made by

an adult going downhill, and that it was something more than a

“casual walk.” During cross-examination, Buss insisted that the

footprints could not have been made by a large child wearing

boots—as opposed to an adult wearing tennis shoes as he

claimed—because he “compared it relative to [his] size shoe and

the pattern was not a sliding pattern.” This testimony seems to

push the limits of Buss’s questionable qualification as a tracking

expert. Additionally, the fact that Buss did not examine the

unsecured scene until several days later, after others could have

walked through the snow, and after the sun had melted the snow

completely from some areas of the hill, draws into question the

sufficiency of the facts on which Buss based his opinion and the

reliability of his methods as applied to those facts.

¶21 The State argues that it was a reasonable trial strategy to

address these rule 702 defects during cross-examination and notes

that the United States Supreme Court has held that in “many

instances cross-examination will be sufficient to expose defects in
State v. Doutre

20120944-CA 11 2014 UT App 192

an expert’s presentation.” Harrington v. Richter, 131 S. Ct. 770, 791

(2011). While it is true that exposing the defects in an expert’s

testimony during cross-examination can be a sound strategy in

some cases, we cannot conceive of a sound basis for failing to object

on rule 702 grounds in this case when it should have been obvious,

before the bulk of Buss’s testimony was given, that it lacked the

threshold reliability required by rule 702. Accordingly, even if the

trial court would not have sustained the objection on notice

grounds that diligent trial counsel should have interposed, trial

counsel was remiss for not objecting to Buss’s testimony on the

grounds of unreliability.

¶22 Fourth, and finally, Defendant claims that Buss improperly

vouched for the veracity of the girls’ testimony and that his trial

counsel was ineffective for failing to object to that aspect of his

testimony. In general, rule 608 of the Utah Rules of Evidence does

not allow a witness to bolster the testimony of another witness

based on specific incidents or to offer general opinions about

credibility when the other witness’s reputation for truthfulness has

not been attacked. See Utah R. Evid. 608. Indeed, “insofar as the

expert testimony may be characterized as ‘bolstering’ or ‘vouching’

for the testimony of the child witness’s credibility regarding a

particular event, it [is] clearly impermissible.” State v. Hoyt, 806

P.2d 204, 211 (Utah Ct. App. 1991). In the instant case, the State

asked Buss, “[W]as the terrain that you observed and the prints

that you observed consistent with what was being told to you by

the girls?” He responded, “They were.” While Buss could testify

about his analysis of the footprint evidence and his investigation,

the final inferential step of determining the consistency of the

evidence presented with the testimony of particular witnesses is

rightly the province of the jury. This is an important distinction

“designed to prevent the fact-finder from exchanging common

sense for reliance on the imprimatur of a titled and learned expert

witness.” Id.

¶23 We can conceive, however, of a reasonable tactical basis for

trial counsel’s decision to forgo an objection to the State’s question.
State v. Doutre

20120944-CA 12 2014 UT App 192

See State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162. For instance, trial

counsel may have considered Buss’s intrusion into the jury’s

domain as minimal and ultimately harmless considering the

entirety of his testimony.Therefore, she may have wisely surmised

that objecting to the question might only underline the assertion

instead of dispelling it in the minds of the jurors. See State v. Ott,

2010 UT 1, ¶ 39, 247 P.3d 354 (“[A]voidance of drawing the jury’s

attention to certain facts or over-emphasizing aspects of the facts is

a well recognized trial strategy.”). Thus, we cannot conclude that

Defendant’s trial counsel was ineffective forfailing to object to this

part of Buss’s testimony.

¶24 Given the foregoing problems with Buss’s testimony, trial

counsel should have raised any available non-futile objections or

pursued some other reasonable alternative to keep the evidence

out. Instead, trial counsel failed to object to the irregularity of Buss

acting as both a guide during the jury view and the State’s witness

on the same day of trial. Trial counsel failed to object to the State’s

lack of notice of its intent to call Buss as an expert witness and

thereby lost the opportunity to prepare for his testimony. And,

perhaps because of the lack of adequate preparation to meet Buss’s

expert testimony, trial counsel failed to grasp the problems with

the testimony and to object to it as unreliable under rule 702. If

clearly inadmissable evidence has no conceivable benefit to a

defendant, the failure to object to it on nonfrivolous grounds

cannot ordinarily be considered a reasonable trial strategy. See id.

¶ 38. We conclude that, with the one exception noted, these

objections would have been well taken, and we can conceive of no

reasonable alternative to raising them. We therefore conclude that

trial counsel’s performance was deficient in this regard.

B. Prejudice

¶25 Next, we consider whether trial counsel’s ineffective

assistance harmed Defendant in a way that undermines our

confidence in the verdict. See Strickland v. Washington, 466 U.S. 668,

687 (1984). Defendant argues that the jury’s verdict hinged on
State v. Doutre

20120944-CA 13 2014 UT App 192

whether the jury believed the girls’ accounts—that Defendant ran

down the hill, attempted to kidnap the girl, and then ran away in

a different direction—or Defendant’s explanation—that he saw a

girl fall in the mud, walked a few feet over to help her, and then

left. Indeed, the photographs of the footprints and Buss’s

interpretation of those footprints were the only nonwitness

evidence presented at trial that supported the State’s version of the

story over Defendant’s version. And this was a significant aspect

of the State’s case.

¶26 During closing arguments, the State emphasized the

importance of the footprint evidence. Referring to one of the

photographs Buss took, the prosecutor said, “[A]s we see in [the

photograph] that’s been shown to you previously, he ran as they

approached. He ran away . . . and escaped that way.” The State also

acknowledged some of the problems with the girls’ accounts.

“When we’re dealing with young girls, it’s important—or young

kids of any age, it’s important . . . that you look at everything if

what they’re telling you makes sense. And you look for consistency

in the statements.” Defendant’s trial counsel, during her closing

argument, pointed out a number of inconsistencies in the girls’

stories. On rebuttal, the State emphasized the importance of Buss’s

testimony as it related to the credibility of the girls. “[A]gain, when

you deal with little kids that’s not going to be the most reliable. So

what did [Buss] do? He took them to the scene . . . . That’s how we

get corroboration . . . .” The State continued:

You heard about [Buss] testifying about those

footprints. I think that is critical because the

footprints go one way. They don’t return, and that

again corroborates what the girls said; that he didn’t

go back the same way that he came from. There’s one

set of adult-sized footprints, just coincidently

through the same area that the girls said he came.

What the officer is looking for is corroboration. . . .

And you heard him say that yes, everything that he
State v. Doutre

20120944-CA 14 2014 UT App 192

observed at the scene was consistent with what the

girls told him.

And he also said that visibility was much

different . . . than it is today. You saw the pictures

where you could see people at the top of the hill

because there are no leaves. Today I agree the

visibility is not good at all because of the leaves, but

you heard Officer Buss say it was much different,

and you see evidence of that in those

photographs. . . . 

When we put it into context, these girls were

consistent. . . . [Y]ou heard from all of them, and you

heard corroboration from Officer Buss that he ran

away from this. 

We have no better indicator of guilt than

someone’s actions after they’re confronted . . . .

¶27 Based on the foregoing, we readily conclude that the State

relied heavily on Buss’s testimony. If Defendant’s trial counsel had

objected to its admissibility, or at least moved for a continuance to

better prepare to refute the testimony, then there would have been

a reasonable likelihood of a more favorable outcome for Defendant.

CONCLUSION

¶28 Defendant waived whatever right he may have had to

attend the jury view when he volunteered in open court to stay

behind. His trial counsel was not ineffective for respecting her

client’s legitimate wishes in this regard, nor was the trial court in

error for accepting Defendant’s waiver.

¶29 Buss’s expert testimony and trial counsel’s response to that

testimony were problematic for a number of reasons. Trial counsel

was deficient for failing to object to the irregularity of Buss acting

both as the court-appointed guide during the jury view and as a

witness for the State once back at the courthouse. Trial counsel was
State v. Doutre

20120944-CA 15 2014 UT App 192

also deficient for failing to object to the State’s failure to give

reasonable prior notice of Buss’s expert testimony. And trial

counsel should have objected to Buss’s testimony as unreliable

under rule 702 of the Utah Rules of Evidence. Because the State

relied so heavily on Buss’s testimony, we conclude that trial

counsel’s deficient performance harmed Defendant, and our

confidence in the verdict is undermined. Accordingly, we reverse

Defendant’s conviction and remand for a new trial or such other

proceedings as may now be appropriate.