2017 UT App 177

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

RUSSELL EDWARD YALOWSKI,

Appellant.

Opinion

No. 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, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY

concurred.

MORTENSEN, Judge:

¶1 Two loud bangs 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 we affirm. 
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BACKGROUND

¶2 Defendant and Victim began dating in December 2012 

and broke up one year later. On December 20, 2013, after the 

breakup, 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 bathtub, 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” and “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. Defendant 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 two 

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, see Utah Code Ann. § 76-9-

702(1) (LexisNexis Supp. 2016), but the jury acquitted Defendant 

on that charge.
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house, damage to the back door of the house, and damage to the 

bathroom door. 

¶5 Defendant 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 crossexamine 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 police 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 

broken 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 prosecutor 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 observed 
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“some shoe impressions on the steps leading up to the back 

door” and “a small, faint shoe impression 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 the 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 children 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 also 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. Make 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 set of fresh footprints in the snow leading to 

the back door. He then “pointed out several things that needed 

to be photographed” 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:
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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 shoes. 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 impressions. . . . 

[i]n the snow.”

¶11 A second officer testified that he took Defendant’s shoes 

into evidence. He also recounted his investigation, during which 

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 was “[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 district 
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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 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 (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 introduction 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 and 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 expert 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.” State v. 

Davis, 2013 UT App 228, ¶ 16, 311 P.3d 538 (citation and internal

quotation marks omitted). 
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20150270-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 character 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 

prejudicial.” 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 discretion 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 (Utah 1988). The trial court 

immediately “admonished the jury to disregard the statement” 

and denied the defendant’s motion for a mistrial. Id. On appeal, 

the 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

20150270-CA 8 2017 UT App 177

¶20 Likewise, 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. The prosecutor 

immediately redirected Victim’s testimony. Victim’s entire 

statement was: “We were at my 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?”, and 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. 

No 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 security 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 “given the totality 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 emphasizes the phrase 

“Getting violent” as being problematic. 

3. We note that Defendant did not request a limiting instruction. 
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20150270-CA 9 2017 UT App 177

and the reasonable 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 trial court was ‘plainly wrong’ 

in denying [a] motion for a mistrial.” Id.

¶22 Here, the prosecutor did not elicit Victim’s statement that 

Defendant had gotten violent. The comment was spontaneously

made, and the two words—“Getting violent”—are “buried in” 

more than 200 transcript pages. See id. The 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 convicted. We consider Victim’s brief comment 

to be akin to the testimonies 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 motion for a mistrial. 

II. Cross-Examination 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) challenge 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” by 
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20150270-CA 10 2017 UT App 177

raising 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 alerting the trial court that 

Defendant sought admission under rule 608(c), this explanation 

actually tracks the language of rule 608(b), which allows crossexamination about “specific instances of a witness’s conduct . . . 

if they are probative of the character 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 refused to allow crossexamination 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 

conviction 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 

applicability 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. 
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20150270-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 discretion “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 abeyance 

was dismissed weigh against allowing cross-examination 

because they lessen the probative value of the events. 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 Rules of Evidence). 

¶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 strong 

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”). The 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 disallowed 

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

20150270-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 crossexamination 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 visited 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 resulted in charges and lacked detail concerning 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 Tschaggeny v. Milbank Ins. Co., 2007 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 

another 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 questioning 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. She provided 

the details of where she found Defendant and the threats he 

made to her, and her story was corroborated 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 the 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 was wearing when he was arrested.
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20150270-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 resulted” 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, Defendant 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 able 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 perception;” 

(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 rule 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 a 
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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-examination, he clarified that he was “not 

testifying as an expert today, [he was] testifying as the person 

who gathered this evidence.”

¶34 Even assuming that the trial court understood 

Defendant’s objection7 to pertain to the forensic technician’s 

testimony—which 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.
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20150270-CA 15 2017 UT App 177

at 190–91. And while Defendant attempts to distinguish the 

present case from Ellis because 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. During 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 admitted 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. They 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 allows 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 difficult to understand how Mr. Austin’s lay 

testimony in the form of an opinion became expert 

testimony. Simply because a question might be 
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20150270-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 true that “if [a question] is capable of 

scientific determination, then expert testimony is 

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. (additional 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 impressions 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 

the “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 shoeprints 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 technician 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 forming 
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20150270-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 forensic 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 another 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 several 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 identified 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

20150270-CA 18 2017 UT App 177

State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 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 We conclude that there is no merit to Defendant’s 

challenges on appeal. Victim’s statement that Defendant had 

previously been violent was not dwelt upon, was made in 

passing, and likely had no effect on the proceedings. Defendant’s 

inability to cross-examine 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.