2017 UT App 177



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ee , v. R USSELL E DWARD Y ALOWSKI , Appell ant

.

Opinion N o. 20150270

- CA Filed September 21, 2017

Third District Court, Salt Lake Department The Honorable Robin W. Reese The Honorable Paul B. Parker No. 141903380

Alexandra S. McCallum
, Attorney for Appellant

Sean D. Reyes, Laura B. Dupaix, and Jeanne B. Inouye
, Attorney s for Appellee

J UDGE D AVID N. M ORTENSEN authored th is Opinion
, in which J UDGES M ICHELE M. C HRISTIANSEN and K ATE A. T OOMEY concurred

.

MORTENSEN
, Judge :

¶1 Two loud ban gs announced an unidentified intruder’s arrival at Victim’s house . The short

- lived mystery was solved when Victim drew back the shower curtain to step out of her bathtub

. There stood her ex

- boyfriend

— Defendant Russell Edward Yalowski. While urinating on the walls of the bathroom, Defendant yelled that he had “about eight N words out[side] waiting to shoot up the house

. ” Defendant was charged and a jury convicted him of burglary, a second degree felony; threat of violence, a class B misdemeanor; and criminal mischief, a class B misdemeanor. See Utah Code Ann. §§ 76

- 6

- 202, 76

- 5

- 107, 76

- 6

- 106(2)(c) (LexisNexis 2012). Defendant appeals, and w e affirm

.State v. Yalowski

20150270

- CA 2 2017 UT App 177 BACKGROUND

¶2 Defendant and Victim began dating in December 2012 and broke up one year later. On December 20, 2013, after the break up, Victim was at home with her children, her cousin, and her cousin’s children. Victim went upstairs to bathe, but
, after a few minutes in the bath tub
, she heard two loud bangs. When Victim opened the shower curtain, she saw Defendant standing in the bathroom. Defendant threatened her , saying he “had people outside” who were “waiting to shoot up the house,” before “[h]e started urinating all over [her] walls near the shower.” 1

¶3 Victim dressed as she pleaded with Defendant “to calm down.” As Defendant continued yelling, Victim made her way to her bedroom and dialed 911, setting the phone down because she felt she “couldn’t talk” a nd “couldn’t say anything because he was still standing there in the hallway.” When Victim “got nervous that he might know that the phone was sitting off the hook,” she “turned it off.”

¶4 Eventually, Victim convinced Defendant to walk outside with her. Defen dant continued threatening her, telling her “he was going to take [her] somewhere and beat [her] up and leave [her] for dead where nobody could find [her].” While the t wo were outside, police arrived and arrested Defendant. Officers found keys to Victim’s house and car in Defendant’s pocket, which Victim said she had never given him. Police took Defendant’s shoes into evidence, and a forensic technician photographed shoe impressions in the snow around Victim’s

1

. Victim testified she could “see [Defendant’s] genitalia” during this incident. Defendant was accordingly charged with lewdness, a class B misdemeanor
, s ee Utah Code Ann. § 76

- 9

- 702(1) (LexisNexis Supp. 2016 ) , b ut the jury acqu itted Defendant on that charge.State v. Yalowski

20150270

- CA 3 2017 UT App 177 house, damage to the back door of the house, an d damage to the bathroom door.

¶5 Defendan t was charged with lewdness, see supra ¶ 2 note 1, burglary of a dwelling, threat of violence, and criminal mischief. Before trial began
, Defendant informed the trial court that he and the State had stipulated “that no prior acts of violence or abuse will be admitted.” He also requested that the court “exclude any testimony that the shoe impressions found at [Victim’s] home matched [Defendant’s] footwear.” He based his objection on rules 701 and 702 of the Utah Rules of Evidence, which differentiate between lay and expert opinion testimony. See Utah R. Evid. 701, 702. The court reserved ruling, indicating it would “have to rule on that when [it] hear[d] what the witness [said] .” Finally, Defendant requested permission to cross

examine Victim about three prior instances of her dishonesty

— a plea in abeyance for theft by deception, using someone else’s identification to enter the jail to visit Defendant, and an arrest for theft by deception and giving a false name to a pol ice officer. The
court said it would allow Defendant to question Victim about her use of someone else’s identification but denied Defendant ’ s request to bring up the plea in abeyance or the arrest.

¶6 During trial, Victim testified that she and Defendant had broke n up because Defendant was “constantly fighting with [her]. Getting violent.” Defendant objected, arguing that the testimony violated the stipulation not to introduce evidence regarding his prior acts of violence. The court agreed and directed the pro secutor to speak to the witness, instructing her not to mention Defendant’s past behavior. Defendant also moved for a mistrial, but the court explained, “I’m going to deny the motion, Counsel. I agree that it shouldn’t have been brought up, but I don’t see that there’s significant harm. There was no description of any violent events . It was just a brief mention.”

¶7 The State later called the forensic technician to testify. He explained that when he arrived at Victim’s home, he observedState v. Yalowski

20150270

- CA 4 2017 UT App 177 “some shoe impressions on the steps leading up to the back door” and “a small, faint shoe imp ression on the back door itself. ” He went on to testify, without further objection from Defendant, that the tread pattern shown on the pictures of the shoe impressions appeared to be a “ similar pattern, similar block. Identical” to th e pattern on Defendant’s shoes.

¶8 The jury also heard testimony from Victim’s cousin and responding police officers. Victim’s cousin testified that she heard two loud bangs at Victim’s house before finding out that Defendant was upstairs. Because she “was kind of afraid at first,” she “tried to keep [the children] all in the same space.” She and the ch ildren were “ in the closet

. . . hiding, because [she] heard [Victim and Defendant] arguing upstairs.” After she felt it was safe to come out of the closet, she walked upstairs. She first saw that the frame of the back door was broken, and then she “noticed that the bathroom door was al so broken.” At trial, the cousin indicated that the damage to the back door and bathroom door had not previously been there.

¶9 The first officer ( the backup officer ) testified that he responded to Victim’s house after multiple 911 hangups

. He was

a “backup officer,” meaning his job was to “[m]ostly kind of stay out of the investigation. Ma k e sure [the investigating officer was] safe. Make sure nothing happens to him or nobody resists him, or while he’s conducting the investigation no one interferes with that .” After Defendant was placed in a police car, the backup officer entered Victim’s house and spoke with her. Victim showed him the damage inside the house and filled out a witness statement. The backup officer walked around the house, where he found one se t of fresh footprints in the snow leading to the back door. He then “pointed out several things that needed to be photograph ed” to the forensic technician.

¶10 At trial, the backup officer took time to show and explain the resulting photographs to the jury. He pointed out characteristics of the shoeprints :State v. Yalowski

20150270

- CA 5 2017 UT App 177 So right here there’s flat, round, circular. And then around it several small circle lines. Right here is a void in the shoe, so an indent. On the top of it closest to the toes is somewhat curved. And in the back, right in here, there’s another round impression, with a similar small one on the side.
He went on to explain that the details of the shoeprints were “[s]imilar to marks that we can see on the . . . door” and similar to the pattern on Defendant’s shoe s. He later reiterated that there were “white marks” on the door “that are similar to the ones in size and shape that we saw on the shoe print imp ressions. . . . [i]n the snow.”

¶11 A second officer testified that he took Defendant’s shoes into evidence. He also recounted his investigation, during whic h he saw Victim’s bathroom door : “It looked like it had been forced open. The door jamb was broken, the latch plate was off.” And the back door wa s “[j]ust basically kicked in.”

¶12 The jury convicted Defendant of burglary, threat of violence, and criminal mischief, but it found him not guilty of lewdness. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Defendant raises three issues for our review, and he alternatively contends that the three issues, taken together, warrant reversal under the cumulative error doctrine. First, he challenges the trial court’s denial of his motion for a mistrial when Victim testified, contrary to the parties’ stipulation, that Defendant had been violent in the past.

Because a district judge is in an advantaged position to determine the impact of courtroom events on the total proceedings, once a districtState v. Yalowski

20150270

- CA 6 2017 UT App 177 court has exercised its discretion and denied a motion for a mistrial , we will not reverse the court’ s de cision 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 , 200 5 UT 11, ¶ 39, 108 P.3d 730 (quoting State v. Wach , 2001 UT 35, ¶ 45, 24 P.3d 948).

¶14 Next, Defendant challenges the trial court’s refusal to allow him to question Victim about her plea in abeyance and her uncharged arrest. We review the trial court’s decisions regarding the scope of cross

- examination, including whether to exclude or allow the i ntroduction of certain evidence, under an abuse of discretion standard. See State v. Gomez , 2002 UT 120, ¶ 12, 63 P.3d 72.

¶15 Defendant also challenges the admission of the forensic technician’s testimony regarding the similarities between Defendant’s shoes a nd the shoe impressions found at Victim’s house. He argues that such testimony “required specialized knowledge” and that the technician was not qualified to provide such testimony. “We review decisions relating to the qualification of a witness as an exper t or as a lay witness for an abuse of discretion.” State v. Rothlisberger , 2004 UT App 226, ¶ 9, 95 P.3d 1193
, aff’d , 2006 UT 49, 147 P.3d 1176

.
¶16 Finally, Defendant argues that the errors he alleges, taken together, “undermine confidence in the fairness of [Defendant’s ] trial.” “Under the cumulative error doctrine, we apply the standard of review applicable to each underlying claim or error” and “reverse only if the cumulative effect of multiple errors undermines our confidence that a fair trial was had.” S tate v. Davis , 2013 UT App 22 8, ¶ 16, 311 P.3d 538 ( citation and internal quotation marks omitted).State v. Yalowski

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- CA 7 2017 UT App 177 ANALYSIS

I. Victim’s Testimony Regarding Defendant’s Past Violence

¶17 First, Defendant argues that we should “reverse because the trial court improperly denied the defense’s motion for mistrial after [Victim] testified about [Defendant’s] prior acts of violence in violation of rule 404(b) of the Utah Rules of Evidence.” The State counters that granting a mistrial was unnecessary because the statement “was unprompted, made in passing, and likely had no effect on the verdict.” We agree with the State.

¶18 Under rule 404(b), “ Evidence of a crime, wrong, or other act is not admissible to prove a person’s charac ter in order to show that on a particular occasion the person acted in conformity with the character.” Utah R. Evid. 404(b)(1). In Defendant’s view, Victim’s testimony that Defendant “previously became violent constituted 404(b) evidence that was prejudici al.” But because Victim’s statement lacked detail, was not elicited by the prosecutor, and was not emphasized or dwelt on during trial, we conclude that Defendant was not prejudiced by the statement and that the trial court therefore did not abuse its disc retion in denying Defendant’s motion for a mistrial.

¶19 In State v. Griffiths , “the prosecutor unintentionally evoked a response which revealed the existence of an outstanding warrant for defendant’s arrest in another unrelated matter.” 752 P.2d 879, 883 (Ut ah 1988). The trial court immediately “admonished the jury to disregard the statement” and denied the defendant’s motion for a mistrial. Id. On appeal,
t he Utah Supreme Court reasoned that “[w]hile it was error to introduce evidence of other wrong

- doing by defendant,” the error was harmless. Id. “The witness’s reference to the warrant was very brief and was only made in passing, stating no details of the circumstances which caused the warrant to issue or of the offense to which it was related.” Id.State v. Yalowski

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- CA 8 2017 UT App 177 ¶20 Likewis e, Victim’s statement

— that Defendant was “just constantly fighting with [her]. Getting violent”

— was brief, was made in passing, and stated no details of Defendant’s prior violence. See id. Victim did not explain how Defendant had been violent or how often. 2 Although the trial court did not instruct the jury to disregard Victim’s statement, 3 the approach taken by the prosecutor was likely just as effective. T he prosecutor immediatel y redirected Victim’s testimony. Victim’s entire statement was: “We were at m y house and I broke up with him. I just told him I couldn’t do it anymore. He was constantly accusing me of things I wasn’t doing and just constantly fighting with me. Getting violent.” The prosecutor followed up with the question, “You broke it up? ” , a nd Victim replied, “I broke it up.” The prosecutor drew the focus away from any discussion of Defendant’s past violence and instead focused on the fact that Victim was the one who ended the relationship with Defendant. N o further mention was made of Defendant getting violent.

¶21 In State v. Wach , a witness had “violated the parties’ stipulation not to introduce evidence of prior bad acts in accordance with rule 404(b ) of the Utah Rules of Evidence ” when she testified that she often wore a secur ity alarm necklace when the defendant was around. 2001 UT 35, ¶ ¶ 44, 46 n.5, 24 P.3d 948. But this testimony “was not elicited by the prosecutor, and was an isolated, off

- hand remark, buried in roughly 244 pages of testimony. ” Id. ¶ 46. And “giv en the tota lity of the evidence

. . .

2

. We note that Victim did use the word “constantly” to describe how often Defendant fought with her. She said that Defendant “was constantly accusing [her] of things [she] wasn’t doing and just constantly fighting with [her].” However, Defendant does not argue that this sentence was improper or grounds for a mistrial. Instead, throughout his brief, he emp hasizes the phrase “Getting violent” as being problematic.

3 . We note that Defendant did not request a limiting instruction.State v. Yalowski

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- CA 9 2017 UT App 177 and the r easonable inferences therefrom,” this statement did not “cause [] the jury to convict.” Id. For these reasons, the Utah Supreme Court determined the challenged statement “did not render [the] trial so unfair that the tria l court was ‘plainly wrong’ in denying [a] motion for a mistrial.” Id.

¶22 H ere, the prosecutor did not elicit Victim’s statement that Defendant had gotten violent. The comment was spontaneously made , and the two words

— “G etting violent ”

— are “buried in ” more th an 200 transcript pages. See id. T he totality of the testimony presented by Victim, her cousin, the forensic technician, and the two responding police officers was more than sufficient to establish the elements of the crimes for which Defendant was convict ed. We consider Victim’s brief comment to be akin to the testimon ies given in Griffiths and Wach and similarly conclude that the statement did not prejudice Defendant. Accordingly, the trial court did not abuse its discretion when it denied Defendant’s mot ion for a mistrial.

II. Cross

- E xamination of Victim

¶23 Next, Defendant complains that he should have been able
to cross

- examine Victim regarding her plea in abeyance for theft by deception and an arrest for both giving a false name to a police officer and theft by deception. Defendant bases this challenge on rules 608(b), 608(c), and 403 of the Utah Rules of Evidence.

¶24 As a threshold matter, we agree with the State’s contention that Defendant’s rule 608(c) challeng e is unpreserved. That rule provides , “Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by other evidence.” Utah R. Evid. 608(c). On appeal, Defendant argues that these events “reveal a motive to testify untruthfully.” But to preserve this challenge for our review, Defendant must have “provide[d] the trial court with the opportunity to address, and correct, a claimed error” byState v. Yalowski

20150270

- CA 10 2017 UT App 177 ra ising it “ specifically.” See State v. Crabb , 2011 UT App 440, ¶ 2, 268 P.3d 193 (per curiam)

.
¶25 When Defendant sought permission to question Victim about the plea in abeyance and the arrest, he did so “under Rule 608, which allows examples of conduct probative of truthfulness or untruthfulness.” Rather than alert ing the trial court that Defendant sought admission under rule 608(c), this explanation actually tracks the language of rule 608(b), which allows cross

examination about “specific instances of a witness’s conduct . . . if they are probative of the characte r for truthfulness or untruthfulness of . . . the witness.” See Utah R. Evid. 608(b). Defendant thus preserved only his rule 608(b) argument. 4 We therefore turn to the question of whether the trial court abused its discretion under rule 608(b) when it refu sed to allow cross

examination regarding Victim’s plea in abeyance and arrest.

¶26 We have previously indicated that “the cross

- examination of a witness is not wholly unrestrained, especially when inquiring about prior bad acts that did not result in the convi ction of a crime.” State v. Valdez , 2006 UT App 290, ¶ 9, 141 P.3d 614. And under rule 608(b), “no party is entitled to inquire of a witness’s prior bad acts. The trial court is afforded broad discretion to allow or disallow inquiry concerning the witness’ s prior bad acts, even if probative of the witness’s truthfulness or

4 . Defendant states in conclusory fashion that even if his rule 608(c) challenge is unpreserved, “the court plainly erred by precluding cross

- examination on [Victim’s] plea in abeyance and 2014 arrest.” But Defendant’s one

- paragraph analysis of the applicab ility of the plain

- error exception to our preservation rules is unpersuasive. It fails to address rule 608(c) specifically and Defendant instead applies his analysis to “any aspect of this issue [that] is not preserved.” Defendant’s plain

- error argument is thus inadequately briefed and we decline to consider it further.State v. Yalowski

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- CA 11 2017 UT App 177 untruthfulness.” Id. (emphasis in original). In Valdez , even where the “ case turn[ed] largely on [the witness’s] credibility,” we concluded that the trial court did not abuse its discreti on “by prohibiting cross

- examination into [a] dismissed charge .” Id. ¶¶ 10, 12.

¶27 The present case is akin to Valdez . Defendant sought to

cross

- examine Victim about an arrest for which she had not yet been charged and “a plea in abeyance that was eventually dismissed.” Obviously, rule 608(b) does not require a conviction before a prior bad act can be introduced. But the fact that there was no charge brought and the fact that the plea in abe yance was dismissed weigh against allowing cross

- examination because they lessen the probative value of the event s

. See Utah R. Evid. 403; State v. Gomez , 2002 UT 120, ¶ 34, 63 P.3d 72 (discussing the interplay between rules 403 and 608(b) of the Utah Rule s of E vidence).

¶28 Nevertheless , Defendant disagrees and claims that Victim’s “prior acts of dishonesty are highly probative of her character for untruthfulness.” He further argues that “the danger of unfair prejudice did not substantially outweigh the stron g probative value.” But in this regard, Defendant’s argument seems to assume that the trial court’s exclusion of these two prior acts was based solely on rule 403. See Utah R. Evid. 403 (allowing a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of

. . . unfair prejudice”)

. T he record does not indicate that the trial court made such a determination. 5 Instead, the probative value of the

5

. The trial court’s order on this point does not explain its reasoning. For instance, we find it curious that the court allowed inquiry into Victim’s use of a false identification but disa llowed inquiry into the arrest and plea in abeyance, without explaining why. But curious as that may be, the decision was nevertheless squarely within the trial court’s discretion.State v. Yalowski

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- CA 12 2017 UT App 177 arrest and plea in abeyance seems to have factored into the trial court’ s exercise of its discretion in not allowing the cross

examination under rule 608(b). It permitted Defendant to question Victim about her use of a false identification, which was recent. Furthermore, this use of false identification occurred when Victim vi sit ed Defendant while he was in jail for reasons related to the events of this case. By contrast, the trial court did not have before it information regarding when the plea in abeyance took place. And the arrest, although fairly recent, had not yet resulte d in charge s and lacked detail conce rning the precipitating events. In other words, this is not a scenario in which “there is no reasonable basis for the decision” of the trial court and thus its decision does not constitute an abuse of discretion. See Tsc haggeny v. Milbank Ins. Co. , 200 7 UT 37, ¶ 16, 163 P.3d 615 (citation and internal quotation marks omitted).

¶29 We also conclude that the trial court’s exclusion of the requested cross

- examination was harmless. This case bears

a nother similarity to Valdez because while the trial court limited

cross

- examination, it did not leave Defendant entirely unable to impeach Victim’s credibility. See 2006 UT App 290, ¶ 10 (reviewing a trial court’s refusing cross

- examination about dismissed charge but allowing questi oning on prior conviction)

. And while in Valdez the case hinged on the witness’s credibility, see id. , here, Victim’s testimony was not as crucial. S he provided the details of where she found Defendant and the threats he made to her, and her story was corr oborated by witnesses whose credibility was not attacked.

¶30 Victim’s cousin testified about Defendant’s presence in the house , about the damage done to the doors after his arrival, and about the arguing that she heard between Defendant and Victim. During th e incident, Victim ’s cousin was fearful enough that she hid with her children in a closet. The jury received physical evidence showing the damage to the doors, including pictures and testimony regarding shoeprints left on the door and the shoes Defendant w as wearing when he was arrested.State v. Yalowski

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- CA 13 2017 UT App 177 ¶31 Defendant’s ability to question Victim about her use of false identification, combined with the plentiful testimony supporting Defendant’s convictions, leads us to conclude that there is no “likelihood that injustice result ed” from the limitations placed on Defendant’s cross

- examination of Victim

. See id. ¶ 12 (citation and internal quotation marks omitted). Thus, there was no abuse of discretion nor a harmful error

.
III. The Forensic Technician’s Opinion Testimony

¶32 Finally, Defen dant argues that the trial court erred “by admitting lay opinion testimony regarding shoe impression evidence that required specialized knowledge and was not helpful to the jury.” Specifically, he argues that the forensic technician should not have been ab le to compare and analyze the shoe impression evidence because it “failed to assist the jury and required specialized knowledge.” In other words, Defendant argues that the forensic technician’s testimony violated rule 701 of the Utah Rules of Evidence. We conclude that it did not
, but even if it did, the testimony was harmless.

¶33 Rule 701 allows “a witness [who] is not testifying as an expert” to give “testimony in the form of an opinion” so long as the opinion is (1) “rationally based on the witness’s perce ption;” (2) “helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and” (3) “ not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Utah R. Evid. 701. Before trial, Defendant moved to exclude “testimony from one of the police officers that shoe prints match [Defendant’s] footwear . . . because [he] believe[d] that’s appropriate for an expert under 702 and [not] a lay witness.” The trial court explained that it would

have to ru le on that when I hear what the witness says, I guess . Just initially without having heard any evidence, I think that a layperson could say something to the effect that “ That footprint looks aState v. Yalowski

20150270

- CA 14 2017 UT App 177 lot like his shoe. ” But if the witness is going to say,

“ I’ve done an expert examination, I’ve matched [ 6 ] tread ” and so forth, then he probably couldn’t go that far.
Then, during his testimony, the forensic technician explained, “On the tread pattern this similar pattern, similar block. Identical.” On cross

- exam ination, he clarified that he was “not testifying as an expert today, [he was] testifying as the pers on who gathered this evidence.”

¶34 Even assuming that the trial court understood Defendant’s objection 7 to pertain to the forensic technician’s testimony

— whic h is unclear because the motion referenced “one of the police officers” and two witnesses testified regarding the shoeprints

— the opinion given was proper lay opinion testimony. See id. R. 701; State v. Ellis , 748 P.2d 188, 190

– 91 (Utah 1987). In Ellis , the Utah Supreme Court determined that the lay opinion given by a security guard and former police officer describing shoeprints did not run afoul of rule 701. See 748 P.2d

6

. In fact, when the backup officer used the word “match” while discussing tread patterns during his testimony, the trial court sustained an objection and sua sponte struck the statement from the record.

7

. Despite Defendant’s motion in limine, we are not convinced this particular challenge was preserved. His motion referenced testimony opining that shoeprints matched Defendant’s shoes, but he was not any more specific than that. He did not even indicate which particular witness he anticipated would provide such testimony. Furthermore, when the forensic technician offered his testimony that the shoeprints were “Identical,” Defendant made no objection. But because we are able to resolve this issue on its merits, we do not consider further whether this issue was properly preserved.State v. Yalowski

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- CA 15 2017 UT App 177 at 190

– 91. And while Defendant attempts to distinguish the present case from Ellis bec ause of the forensic technician’s use of the word “identical,” in our view, Ellis is dispositive of this issue.

¶35 In Ellis , the defendants argued
that the trial court erred when it admitted the lay opinion testimony of Bruce Austin. Mr. Austin, a security guard and former police officer, was one of the first to arrive at the scene. He examined the premises and discovered two sets of footprints in the mud beneath the broken window, as well as footprints inside the house leading away from the broken window. D uring his testimony, Mr. Austin compared the footprints outside the house to those inside. He said that one exhibit, a photograph of a footprint “with the distinctive heel marking appeared to be the one on the inside of the carpet.” The trial court admitte d the testimony, reasoning that a witness is allowed to testify from personal experience and observation.

Id. at 190. “Based on that testimony,” the defendants argued “that Mr. Austin gave an opinion which, as a lay witness, he was not qualified to give. T hey also argue[d] that the slight probative value of the opinion was far outweighed by the danger that the jury construed it as that of an expert and gave it undue weight.” Id. at 191. The supreme court reasoned:

Rule 701 of the Utah Rules of Evidence allo ws a lay witness to give an opinion when it is rationally based on the witness’ s perception and helpful to a clear understanding of the testimony or the determination of a fact in issue. Utah R. Evid. 701. It is difficu lt to understand how Mr. Austin’ s lay testimony in the form of an opinion became expert testimony. Simply because a question might beState v. Yalowski

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- CA 16 2017 UT App 177 capable of scientific determination, helpful lay testimony touching on the issue and based on personal observation does not become expert opinion. It is t rue that “if [a question] is capable of scientific determination, then expert testimony i s admissible with respect to it ”; however, that does not mean that lay opinion testimony is prohibited if the provisions of the evidentiary rule are met.

Id. ( additio nal citations omitted).

¶36 Like the defendants in Ellis , Defendant argues in part that the forensic technician was not qualified to give the challenged testimony because he “brought no legitimate methodology to bear in drawing the inference that the shoe impr essions were identical” and he did not conduct “the type of subtle analysis that qualified him to comment, using terms of certainty, on the degree of similarity between complex tread patterns.” But in making this argument, Defendant misstates the forensic technician’s testimony. The witness merely explained his process of taking photographs of the scene and then opined that the pattern on the shoes was consistent with the pattern on the shoe impression. He did not opine “using terms of certainty” or about
t he “degree of similarity” between the patterns. He stated that the patterns appeared identical and then demonstrated, using the exhibits, how the patterns were “consistent” or “similar.”

¶37 In other words, regarding comparisons between Defendant’s shoes and s hoeprints found at Victim’s home, “[s]imply because [the] question might be capable of scientific determination, helpful lay testimony touching on the issue and based on personal observation [did] not become expert opinion. ” Id. Instead, the forensic techn ician based his opinion on his personal observations, and the jury was provided the very photographs on which he expressed his opinion. It was made clear to the jury that the forensic technician was not an expert witness, and there was nothing prohibiting jurors from formingState v. Yalowski

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- CA 17 2017 UT App 177 their own conclusions based on their observation of the photographs. Instead, the forensic technician’s testimony merely helped them to focus on important aspects of the photographs. See Utah R. Evid. 701(b) (specifying that lay opinion testimony should be “helpful to clearly understanding the witness’s testimony”).

¶38 Additionally , nearly identical testimony was introduced through the backup officer, and that testimony was not challenged at trial nor is it challenged on appeal. The backup officer testified that the tread marks on the door were similar to the tread on Defendant’s shoes. That witness also walked the jury through the pictures taken at Victim’s house , pointing out details of the marks the same way the forensic technician did. Thus, even without the forensic technician’s testimony, the jury would have had the same information before it and likely would have reached the same conclusions.

¶39 Because the fo rensic technician’s testimony was based on his personal observations, was helpful to the jury, and was not the sort of testimony subject to rule 702, it was proper opinion testimony under rule 701. Furthermore, because the same testimony was offered by ano ther witness, admission of the forensic technician’s testimony was harmless.

IV. Cumulative Error

¶40 Defendant also makes a claim of cumulative error. Under the cumulative error doctrine, [appellate courts] will reverse only if the cumulative effect of the sever al errors undermines our confidence . . . that fair trial was had.” State v. Dunn , 850 P.2d 1201, 1229 (Utah 1993) (omission in original) (citation and internal quotation marks omitted). “In assessing a claim of cumulative error, we consider all the identi fied errors, as well as any errors we assume may have occurred.” Id. But if the appellant’s claims do not constitute error, or the errors are “so minor as to result in no harm, the doctrine will not be applied.”State v. Yalowski

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- CA 18 2017 UT App 177 State v. Gonzales , 2005 UT 72, ¶ 74, 125 P.3 d 878. Because we have determined in every instance that either no error occurred or that any error was harmless
, our confidence in the fairness of Defendant’s trial is not undermined. Accordingly, we reject Defendant’s cumulative error claim.

CONCLUSION

¶41 W e conclude that there is no merit to Defendant’s challenges on appeal. Victim’s statement that Defendant had previously been violent was not dwel t up on, was made in passing, and likely had no effect on the proceedings. Defendant’s inability to cross

- examin e Victim regarding her arrest and plea in abeyance was not harmful, particularly where he was able to

cross

- examine her about her use of false identification and where other witnesses corroborated her testimony. And the forensic technician’s testimony that the pattern on Defendant’s shoes was identical to the mark left on Victim’s door did not run afoul of the relevant rules of evidence and was harmless in any event

.
¶42 Affirmed

.