2023 UT 18 

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH

Respondent, 

v. 

DOUGLAS JACK CARTER, 

Petitioner.

No. 20220297 

Heard March 8, 2023 

Filed August 17, 2023 

On Certiorari to the Utah Court of Appeals

Fifth District, Cedar City

The Honorable Matthew L. Bell

No. 181500817 

Attorneys:

Sean D. Reyes, Att’y Gen., Thomas Brunker, Deputy Solic. Gen., Salt 

Lake City, Chad E. Dotson, Iron County, Cedar City, for respondent

Emily Adams, Freyja Johnson, Cherise Bacalski, Bountiful,

for petitioner

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court, 

in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, 

JUSTICE POHLMAN, and JUDGE JOHNSON joined.

Having recused herself, JUSTICE HAGEN does not participate herein; 

DISTRICT COURT JUDGE KRISTINE E. JOHNSON sat.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 A jury convicted Douglas Carter of aggravated arson. Carter 

did not dispute that he had started the fire that burned down the 

empty house that once belonged to his grandparents. Carter’s entire 

defense turned on whether he had set fire to a “habitable structure”—
STATE v. CARTER

Opinion of the Court

2 

a distinction that meant the difference between a conviction for arson 

and aggravated arson. 

¶2 Carter argued to the court of appeals that he had been denied 

the effective counsel the Sixth Amendment guarantees. See State v. 

Carter, 2022 UT App 9, ¶¶ 1, 16, 504 P.3d 179. Carter claimed that his 

trial counsel should have moved for a directed verdict because, under 

a correct reading of the aggravated arson statute, there was 

insufficient evidence before the jury that he had set fire to a habitable 

structure. Id. ¶ 29. He also argued that his counsel should have 

objected to the testimony of an expert who opined that the structure 

was habitable. Id. ¶ 25. A divided court of appeals affirmed his 

conviction. Id. ¶ 35. We affirm. 

BACKGROUND

¶3 A house belonging to Douglas Carter’s relative (Relative) 

caught fire twice in one week. The house was unoccupied at the time 

of the fires and had been for quite some time. In the year leading up 

to the fires, Relative had undertaken home-improvement projects. 

Although Relative kept the place connected to utilities, he stayed at a 

hotel when he worked on the house.

¶4 The house first caught fire in October 2018. That fire burned 

part of the house’s exterior and extended to the roofline. Carter was 

not charged for this first fire.

¶5 Three days later, the house caught fire again. This time it

suffered extensive damage. Suspicion soon landed on Carter, who 

eventually confessed to the police that he had started the second fire.

¶6 The State charged Carter with aggravated arson, a first-degree

felony. The aggravated arson statute required the State to prove that 

Carter had, “by means of fire or explosives,” “intentionally and 

unlawfully damage[d] . . . a habitable structure.” UTAH CODE § 76-6-

103(2)(a). The statute in place at the time defined a “habitable 

structure” as “any building, vehicle, trailer, railway car, aircraft, or 

watercraft used for lodging or assembling persons or conducting 

business whether a person is actually present or not.” UTAH CODE

§ 76-6-101(1)(b) (2022).1

_____________________________________________________________ 

1 The Utah Legislature amended the statute in 2023 to define 

“habitable structure” as “a structure that has the apparent purpose of 

or is used for lodging or assembling persons or conducting business 

whether a person is actually present or not.” UTAH CODE § 76-6-

101(1)(d) (2023).
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Opinion of the Court

3 

¶7 At trial, the State called a fire marshal as an expert witness. The 

State asked if, in the marshal’s “expert opinion,” the house was “a 

habitable structure.” The marshal replied, “Yes.” Carter’s counsel did 

not object.

¶8 Carter’s counsel cross-examined the fire marshal. Counsel 

asked the marshal what expertise he possessed that would allow him 

to opine on whether a structure was habitable. The marshal replied 

that it was based on “a matter of experience over the years of . . . 

knowing . . . what people are willing to live in.” Carter’s counsel also 

asked the marshal why he thought the structure, which had already 

suffered one fire, was habitable. The marshal allowed that “after the 

second fire, it would have probably been less habitable” but then

opined that he had “seen structures that were considerably more 

damaged” than the house, “that people have moved back into.”

¶9 Outside the jury’s presence, the State, Carter, and the court 

discussed how to instruct the jury on the definition of “habitable.” 

Carter wanted an instruction that would explain: “The focus of the 

definition of ‘Habitable Structure’ is on the actual use of the particular 

structure, not on the usual use of similar types of structures.” State v. 

Carter, 2022 UT App 9, ¶ 7, 504 P.3d 179. 

¶10 Carter justified the proposed instruction with caselaw he 

argued required the State to show that the structure “was actually 

being used as a home.” The district court disagreed and told Carter 

that, the way it read the statute, “[y]ou don’t have to show it’s being 

actually lived in. It’s a habitable structure.”

¶11 The district court also rejected the State’s proposed 

instruction, which would have told the jury that “habitable structure 

includes any dwelling house, whether occupied, unoccupied, or 

vacant.” The court informed counsel that it would instruct the jury by 

giving it, without further explanation, the statutory language defining 

habitable structure. And the court indicated that it would allow 

counsel to argue to the jury what that language meant.

¶12 In closing arguments, each side argued its interpretation of 

the statute. The State told the jury that the house “was classified as a 

habitable structure by . . . an expert witness,” that “[t]he primary 

purpose of this type of structure is lodging,” that “[t]he law does not 

require that somebody be living there full time and that they just 

happen to not be home,” and, finally, that, “if a business, if a trailer, if 

a railway car, a watercraft, or an aircraft can constitute a habitable 

structure under the law, then this home surely constituted a habitable 

structure.”
STATE v. CARTER

Opinion of the Court

4 

¶13 Carter’s counsel asked the jury to “focus on the word . . . 

‘used,’” and to ask themselves: “what’s the actual use of this property, 

this structure, at this time?” Counsel also addressed the fire marshal’s 

testimony and said that his testimony related to the condition— rather 

than the use—of the house. He then emphasized that “[w]e’re not 

talking about condition. This statute is talking about use. . . . [T]he

condition of the property is irrelevant. It’s the use of the property. 

What was the property being used for?”

¶14 The jury convicted Carter of aggravated arson. Carter 

appealed, arguing that his counsel was ineffective for not objecting to 

the fire marshal’s testimony that the house was habitable. Id. ¶ 16. 

Carter also claimed that his counsel provided ineffective assistance 

when he failed to move for a directed verdict. Id.

¶15 The court of appeals upheld Carter’s conviction. Id. ¶ 1. 

Carter argued that the State’s expert had offered “an impermissible 

legal conclusion” when he opined that the house was habitable. Id.

¶ 25. The court did not directly address whether the opinion fell 

outside the permissible bounds of expert testimony. Id. ¶ 25 n.6. But it 

concluded that Carter’s counsel was not ineffective for not objecting 

even if the opinion was improper. Id. ¶¶ 25–28. 

¶16 The court of appeals concluded that reasonable counsel 

“could have decided to cross-examine the fire marshal in this situation 

rather than object and move for the testimony to be stricken.” Id. ¶ 25. 

The court noted that Carter’s counsel had cross-examined the expert 

about his opinion and elicited testimony that the marshal was not 

opining that the house met the statutory definition of “habitable 

structure.” Id. ¶ 26. The court also pointed to Carter’s counsel’s closing 

argument wherein he emphasized to the jury that “all that mattered” 

under the statute “was whether the house was being lived in at the 

time of the second fire, which the fire marshal said was not the case.” 

Id. ¶ 28. 

¶17 Carter’s second argument centered on the proper 

interpretation of the statute defining “habitable structure” and 

whether his attorney was ineffective for not moving for a directed 

verdict. Id. ¶ 29. Carter argued that “objectively reasonable trial 

counsel would have moved for a directed verdict when the State 

presented no evidence of ongoing use of the house because ongoing 

use is what the statutory definition of habitable structure requires.”

Id. (cleaned up). The majority opinion rejected this argument for two 

reasons.
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Opinion of the Court

5 

¶18 It first reasoned that Carter could establish neither deficient 

performance nor prejudice for his ineffective assistance claim because 

a motion for directed verdict “had no chance of success.” Id. ¶ 30 

(cleaned up). The majority opinion concluded that the directed verdict 

motion would have been futile because it was based on a theory about 

the way the statute should be interpreted and “the district court had 

already indicated its disagreement with that theory.” Id. ¶ 31. 

¶19 The majority next reasoned that, because the district court 

had ruled that the statute did not require the State to show that the 

house was “actually lived in,” Carter’s counsel could have reasonably 

perceived a risk in raising the issue anew. Id. ¶ 33. More specifically, 

the court opined that “counsel could have reasonably seen a potential 

risk that in the discussion that would follow such a motion, the court 

might be prompted to curb counsel’s ability to make his argument to 

the jury that the house had to be in continual use to be considered 

habitable.” Id.

¶20 The majority opinion drew both a concurring and dissenting 

opinion. Then-Judge Hagen dissented from the conclusion that 

counsel’s decision to not file a directed verdict motion was objectively 

reasonable. Id. ¶ 60 (Hagen, J., dissenting). Judge Hagen took 

particular issue with the majority’s determination that because the 

district court had expressed an opinion on the correct reading of the 

statute—a reading at odds with Carter’s—it would have been futile 

for Carter’s counsel to bring the motion. See id. ¶¶ 62–69. Judge Hagen 

argued that the court “cannot use a motion’s futility as shorthand for 

reasonable performance without examining the merits of the motion.” 

Id. ¶ 66. Moreover, Judge Hagen did “not view the district court’s jury 

instruction decision as a de facto rejection of Carter’s argument.” Id.

¶ 72. She argued that the record did not suggest that trial counsel 

“risked losing his chance to argue the theory to the jury if he moved 

for a directed verdict on the same grounds.” Id. ¶ 76. 

¶21 Judge Tenney “join[ed] the majority opinion in full” and 

wrote separately to respond to the dissent. See id. ¶ 36 (Tenney, J., 

concurring). Judge Tenney was moved by the majority opinion’s take 

on the futility question because “the district court had already been 

presented with” Carter’s interpretation of habitability “when the 

defense requested a jury instruction that was based on it,” and the 

court “expressed its clear disagreement with it.” Id. ¶ 43. Judge 

Tenney allowed that examining the merits of an unfiled motion 

“would be one way for us to analyze futility in a case,” but he rejected 

Judge Hagen’s assertion that it was the only way. Id. ¶¶ 51–52. 
STATE v. CARTER

Opinion of the Court

6 

¶22 Judge Tenney noted that though the district court “had 

already expressed its own disagreement with the defense’s proposed 

interpretation,” it “nevertheless still decided to allow defense counsel

to make this argument to the jury.” Id. ¶ 55. Judge Tenney described 

this as a “delicate and necessary gain.” Id. ¶ 57. And he reasoned that 

counsel was not ineffective because counsel “could reasonably decide 

to leave well enough alone, accept the court’s invitation to take this 

case to the jury, and push for an acquittal there.” Id. ¶ 58. 

ISSUES AND STANDARD OF REVIEW

¶23 Carter raises two arguments. Carter first argues that the court 

of appeals majority erred when it held that his counsel’s failure to file 

a directed verdict motion did not constitute ineffective assistance.

¶24 Carter next argues that the court of appeals erred when it 

held that his counsel did not render ineffective assistance when he did 

not object to an expert’s testimony that the house was “habitable.” 

¶25 The question of whether an attorney’s ineffective 

representation deprived a defendant of his Sixth Amendment right to 

counsel presents a question of law that we review for correctness. State 

v. Scott, 2020 UT 13, ¶ 27, 462 P.3d 350. 

ANALYSIS

I. THE COURT OF APPEALS MAJORITY CORRECTLY

DETERMINED THAT CARTER’S COUNSEL’S DECISION NOT

TO MOVE FOR A DIRECTED VERDICT DID NOT CONSTITUTE

INEFFECTIVE ASSISTANCE

¶26 Carter first argues that his counsel denied him the 

representation the Sixth Amendment guarantees because counsel 

forwent a meritorious directed verdict motion. The test for ineffective 

assistance of counsel comes from Strickland v. Washington, 466 U.S. 668 

(1984).

¶27 Strickland requires a defendant to demonstrate that 

(1) counsel’s representation fell below an objective standard of 

reasonableness and (2) the deficient performance prejudiced the

defense. Id. at 687–88. It presents a deliberately stringent standard that 

requires us to “indulge a strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance.” Id.

at 689. Even if a defendant can meet that burden, the standard requires 

the defendant to “show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Id. at 694. 
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Opinion of the Court

7 

¶28 Carter’s first ineffective assistance argument focuses on what 

he contends is the correct interpretation of the aggravated arson 

statute. And, more specifically, the correct interpretation of the word 

“habitable.” 

¶29 In a nutshell, “arson” becomes “aggravated arson” if a person

uses fire or explosives to “intentionally and unlawfully damage[] . . . 

a habitable structure.” UTAH CODE § 76-6-103(2)(a). At the time of the 

fire, the statute defined a “habitable structure” as “any building, 

vehicle, trailer, railway car, aircraft, or watercraft used for lodging or 

assembling persons or conducting business whether a person is 

actually present or not.” UTAH CODE § 76-6-101(1)(b) (2022).2

¶30 Whether the statute required the burned structure to be lived 

in or just capable of being lived in became a hot topic at trial. The issue 

arose in the context of how to instruct the jury. Carter’s counsel 

pressed for an instruction that explained: “The focus of the definition 

of ‘Habitable Structure’ is on the actual use of the particular structure, 

not on the usual use of similar types of structures.” State v. Carter, 2022 

UT App 9, ¶ 7, 504 P.3d 179. 

¶31 The State, for its part, wanted to instruct the jury that 

“habitable structure includes any dwelling house, whether occupied, 

unoccupied, or vacant.” Id. ¶ 8. 

¶32 The district court did not select either of the proffered 

instructions. Instead, the court told counsel that it would give the jury 

the statutory language defining “habitable structure,” without 

additional explanation. The court also indicated that it would allow 

each side to argue to the jury its view of what that language meant.3

¶33 During this discussion, the district court appeared to show 

some skepticism about Carter’s counsel’s statutory interpretation. The 

court said: “You don’t have to show it’s being actually lived in. It’s a 

habitable structure.” It is against this backdrop that Carter’s counsel 

_____________________________________________________________ 

2 The statute has been amended in a way that may, in the future,

foreclose the argument Carter made to the district court. See supra ¶ 6 

n.1. 

3 Neither party challenges the district court’s decision to let the 

parties argue the meaning of the law to the jury. Because of that, we 

will simply emphasize that it “is the prerogative of the court, not 

counsel, to instruct the jury as to the applicable law.” State v. Smith, 

675 P.2d 521, 526 (Utah 1983). 
STATE v. CARTER

Opinion of the Court

8

decided to not file a motion for directed verdict premised on the way 

he read the statute.

¶34 Carter argued to the court of appeals that this constituted 

ineffective assistance of counsel because “objectively reasonable trial 

counsel would have moved for a directed verdict when the State 

presented no evidence of ongoing use of the house because ongoing 

use is what the statutory definition of habitable structure requires.” 

Id. ¶ 29 (cleaned up).

¶35 A divided court of appeals rejected this argument. Judge 

Orme authored the majority opinion. That opinion relied on court of 

appeals caselaw declaring that a “futile motion necessarily fails both 

the deficiency and prejudice prongs of the Strickland analysis because 

it is not unreasonable for counsel to choose not to make a motion that 

would not have been granted, and forgoing such a motion does not 

prejudice the outcome.” Id. ¶ 30 (cleaned up). The majority decided 

Carter’s directed verdict motion would have been futile because “it 

would have been abundantly clear to counsel that because the court 

had previously denied an instruction to the jury directing that 

ongoing use was required, it would not have granted a directed 

verdict motion premised on the State’s inability to prove ongoing 

use.” Id. ¶ 31.

¶36 The majority also concluded that reasonable counsel could 

have decided to forgo the directed verdict motion because of a 

“potential risk that . . . the court might be prompted to curb counsel’s 

ability to make his argument to the jury that the house had to be in 

continual use to be considered habitable.” Id. ¶ 33.

¶37 Then-Judge Hagen dissented from that decision. The dissent 

criticized the majority for deciding that the motion was futile without 

analyzing the merits of the hypothetical directed verdict motion. Id.

¶¶ 62–66 (Hagen, J., dissenting). The dissent reiterated the 

concurrence’s point that futility “is not a standalone third element” of 

the well-known two-part Strickland test. Id. ¶ 63 (quoting id. ¶ 47 

(Tenney, J., concurring)). Instead, futility is “a shorthand descriptor” 

“for why one of the two ineffective assistance elements was not 

established in a particular case.” Id. (cleaned up).

¶38 Judge Hagen also noted that the State had not “addressed the 

merits” of Carter’s statutory interpretation argument. Id. ¶ 69. The 

dissent reasoned that when an “appellee fails to present us with any 

argument, an appellant need only establish a prima facie showing of 

a plausible basis for reversal.” Id. (cleaned up). The dissent concluded 

that Carter had made a prima facie showing that Carter was entitled to 
Cite as: 2023 UT 18

Opinion of the Court

9

a directed verdict and that counsel’s failure to move for a directed 

verdict was unreasonable under the circumstances. Id. ¶¶ 69, 78, 79, 

81.

¶39 Judge Tenney penned a concurring opinion. The concurrence 

acknowledged that “the dissent is correct that our futility cases have 

commonly turned on our own assessment of the missing motion’s 

merits.” Id. ¶ 41 (Tenney, J., concurring). But the concurrence 

regarded this as “a feature of how these cases usually come up” and 

not “a prescriptive rule.” Id. ¶ 42.

¶40 The concurrence saw Carter’s case as “atypical” because “the 

district court had already been presented with [Carter’s] very 

interpretation” and “expressed its clear disagreement with it.” Id.

¶ 43. In this situation, the concurrence did not see the need to assess 

the motion’s strength, because it reasoned that reasonable counsel 

could, based upon the district court’s apparent distaste for the 

argument, decide to not file a meritorious motion that was destined 

for failure. Id. ¶ 50.

¶41 Before we turn to the merits of Carter’s challenge, we want to 

spend a moment discussing the court of appeals’ excellent work in this 

case. We appreciate the careful thought that went into each of the 

three opinions. Each offers a view of what futility could mean and 

how a court should employ the futility analysis.

¶42 Such a careful explication of futility gives us hope that we 

might be able to have nice things in our jurisprudence. We have, at 

times, been forced to prune back shorthand phraseology and 

analytical tools when we have seen that they threatened to overtake 

the test they described. In State v. Gallegos, for example, we observed

that the shorthand “a conceivable basis for trial counsel’s decision” 

was causing us to develop “a tendency to ask whether there is a 

conceivable tactical basis for an attorney’s decision as a proxy for 

analyzing whether a trial attorney’s challenged decision is objectively 

reasonable.” 2020 UT 19, ¶¶ 53, 55, 463 P.3d 641. In Gallegos, we noted 

that “[l]anguage matters and, over time, even small variations can 

take on lives of their own and distort the analysis.” Id. ¶ 58. And this 

has caused us to sometimes reiterate that while shorthand phrases can 

be helpful, we need to make sure that they don’t supplant the test.

¶43 Here, the court of appeals’ careful discussion and 

acknowledgment that futility was a shorthand reference and not an 

addition to, or a restatement of, the Strickland test goes a long way 

towards keeping the analytical focus where it belongs: Strickland’s

two-part inquiry. Even if the court of appeals could not agree on what 
STATE v. CARTER

Opinion of the Court

10

it meant for a motion to be futile, it recognized that futility could not 

be allowed to supplant the test the United States Supreme Court gave 

us in Strickland.

¶44 That is important because, while futility can sometimes be a 

helpful way to describe why an attorney’s decision was reasonable or 

why a defendant was not prejudiced by a failure to file a losing 

motion, it is not a key that unlocks every door. We can envision 

instances where failure to file even a losing motion—to ensure an 

issue is preserved, for example—might constitute unreasonable 

performance. And we don’t want to allow otherwise-helpful 

shorthand to short-circuit thoughtful analysis.

¶45 Carter argues that it was objectively unreasonable for his 

attorney to fail to file a directed verdict motion. Strickland instructs 

that an assessment of objective reasonability requires the reviewing 

court to “reconstruct the circumstances of counsel’s challenged 

conduct, and to evaluate the conduct from counsel’s perspective at the 

time.” Strickland, 466 U.S. at 689. In other words, we “judge the 

reasonableness of counsel’s challenged conduct[,] . . . viewed as of the 

time of counsel’s conduct.” Id. at 690.

¶46 As such, we look at what the record tells us about what the 

world looked like when Carter’s counsel forwent the directed verdict 

motion. And in this case that requires us, as then-Judge Hagen 

observed, to factor in the strength of the motion Carter faults his 

counsel for not filing.

¶47 At the close of evidence, Carter’s counsel was faced with a 

mixed bag of a case. Carter’s counsel had an argument about what the 

aggravated arson statute required for conviction. But he did not have 

a published case that dictated the interpretation he advocated. Even 

assuming that he was interpreting the statute correctly, all he had at 

that point was his personal belief that he was correctly interpreting an 

uninterpreted statute.4 In other words, Carter’s counsel had a 

_____________________________________________________________

4 We realize that it may be disappointing that we assume the merits 

of the argument rather than analyze the extensive arguments that 

Carter’s appellate counsel has given the court about the meaning of 

“habitable structure”; arguments that include an intricate corpus 

linguistics analysis of the word “habitable.” As much as we appreciate 

the time and energy that went into that analysis, we cannot escape the 

fact that the Legislature has amended the statute in a fashion that 

would make our analysis inapplicable to future cases. Rather than 

render an opinion (and possibly competing opinions) on the meaning 

(continued . . .)
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Opinion of the Court

11

potentially meritorious argument but, without controlling precedent, 

no guarantee of success.

¶48 Carter’s counsel also knew that he had presented his 

interpretation to the district court and that the district court had not 

bought what he was selling. The court had, however, left the door 

open for Carter to present his interpretation directly to the jury.

¶49 Against this backdrop, if Carter’s counsel were to game out 

the potential outcomes of filing the directed verdict motion, he could 

reasonably expect one of three outcomes. First, the district court could 

reverse course on the interpretation question and grant the motion. 

This would, of course, have been an immediate, ideal result for Carter. 

Second, the court could deny the motion but still allow Carter to argue 

his interpretation to the jury. This could be almost immediately good 

for Carter as he could prevail in front of the jury. Or it could be 

eventually good for Carter because, even if the jury did not accept his 

argument about the meaning of “habitability,” he would have 

ensured that he had preserved the argument for appeal. Third, the 

court could deny the directed verdict motion and, because the motion 

forced the court to revisit the statutory interpretation, double down 

on the way it read the statute and take away Carter’s argument 

concerning habitability. In this scenario, Carter’s counsel loses his 

only path to a favorable jury verdict and must hope for an appellate 

decision endorsing his statutory interpretation for his client to prevail.

In all of these scenarios, trial counsel would need to factor into the 

calculus that although he had great confidence in his statutory 

interpretation argument, he did not have a published opinion to rely 

on.

¶50 Presented with this choice, we cannot say that it was 

professionally unreasonable for Carter’s counsel to decide that his 

best shot was to take what the district court had already given him: a 

chance to argue his interpretation to the jury. This is especially so 

when reasonable counsel would have at least entertained the concern 

that moving for a directed verdict could cause him to lose the basis of 

his defense. At that point in the trial, Carter’s counsel had presented

his statutory interpretation argument to the court and was better 

positioned than we are to predict whether this would prompt the 

court to revisit its earlier decision. Carter’s counsel had also observed 

the jury respond to testimony and other evidence and could better 

_____________________________________________________________

of statutory text that no longer exists, we will assume, without 

deciding, that Carter’s interpretation is correct.
STATE v. CARTER

Opinion of the Court

12

assess whether he preferred arguing his case to this jury now or his 

statutory interpretation to the appellate courts later.

¶51 Strickland requires that we “indulge a strong presumption 

that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Id. at 689. We can certainly see reasonable 

counsel filing the motion in this circumstance, but we cannot say that 

a reasonable attorney could not make the choice that Carter’s counsel 

did. The court of appeals majority did not err when it reached that 

conclusion.5

II. THE COURT OF APPEALS CORRECTLY CONCLUDED

THAT COUNSEL WAS NOT INEFFECTIVE WHEN HE

FAILED TO OBJECT TO THE FIRE MARSHAL’S TESTIMONY

¶52 Carter next argues that the court of appeals erred when it 

concluded that Carter’s counsel did not perform deficiently when he 

failed to object to the fire marshal’s expert testimony that the house 

was a “habitable structure.”

¶53 Carter argued to the court of appeals that the fire marshal’s 

opinion contained “an impermissible legal conclusion” that the Utah 

Rules of Evidence forbid. State v. Carter, 2022 UT App 9, ¶ 25 & n.6, 

504 P.3d 179. Carter averred that “failing to object to expert testimony 

improperly opining on the only legal conclusion that matters is not a 

defensible course of action.” Id. ¶ 25 (cleaned up).

¶54 The court of appeals assumed, without deciding, that the 

objection to the fire marshal’s testimony would have been sustained.6

_____________________________________________________________

5 We hasten to emphasize the unique nature of each Strickland 

inquiry. This opinion should not be read to hold that it is always 

professionally reasonable to forgo a motion when the district court has 

expressed hostility to the motion’s underlying argument or when 

there is no controlling precedent to ensure success. The lesson we 

hope to reinforce is that Strickland can be intensely fact-specific and 

requires an examination of—as Strickland instructs—all the 

circumstances that surrounded counsel’s decision. Indeed, Strickland

reminds us that “[r]epresentation is an art, and an act or omission that 

is unprofessional in one case may be sound or even brilliant in 

another.” Strickland, 466 U.S. at 693.

6 We will likewise assume, without deciding, that the expert 

testimony was improper. But we note that it can sometimes be

difficult to discern the line we have drawn between permissible and 

(continued . . .)
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Opinion of the Court

13

Id. ¶ 25 n.6. But it nevertheless concluded that Carter’s counsel had 

not performed deficiently, because “counsel is not required to correct 

every error that might have occurred at trial.” Id. ¶ 25 (cleaned up).

¶55 The court of appeals noted that the challenged expert 

testimony came at the end of the fire marshal’s direct examination and 

that Carter’s counsel began his cross-examination by attacking that 

opinion. Id. ¶ 26. The court of appeals further concluded that Carter’s 

counsel “was able to elicit testimony from the fire marshal suggesting 

he meant only that the house was capable of being lived in and was 

not opining” about the meaning of the statute. Id. This, combined with 

Carter’s counsel’s affirmative use in his closing argument of the fire 

marshal’s testimony that no one was living in the house at the time of 

the fire, led the court of appeals to conclude that “‘considering all the 

circumstances,’ we cannot say that ‘counsel’s acts or omissions were 

objectively unreasonable’ in relying on cross-examination of the fire 

marshal to attempt to establish the defense’s theory of the case rather 

than objecting outright.” Id. ¶ 28 (quoting State v. Scott, 2020 UT 13, 

¶ 36, 462 P.3d 350).

¶56 Carter argues this was error because cross-examination was 

not a reasonable alternative to objecting to the testimony’s admission. 

Carter argues that in “context, correcting the testimony was 

sufficiently important that counsel’s failure to correct—leaving that 

damning evidence on the table—was objectively unreasonable.” 

Carter lists eleven reasons that he argues demonstrate that crossexamination—in lieu of objecting—was objectively unreasonable.

_____________________________________________________________

impermissible expert testimony that touches on legal standards. For 

example, in State v. Larsen, we concluded that a district court did not 

abuse its discretion when it allowed a securities fraud expert to testify 

that certain information would have been material to investors while 

at the same time acknowledging that the expert “certainly should 

have avoided employing the specific term ‘material’” because that 

was the language the statute used. 865 P.2d 1355, 1362 (Utah 1993). 

The court of appeals appears to have interpreted Larsen to mean that 

an expert can testify that information is “material” if the expert does 

not say the words “material under Utah law” or “material under the 

Utah Uniform Securities Act.” See State v. Tenney, 913 P.2d 750, 756 

(Utah Ct. App. 1996). So, while here we will assume that an objection 

to the fire marshal’s testimony would have been sustained, there is 

ample reason to believe that we could do a better job of drawing the 

line between admissible and inadmissible expert testimony in a future 

case or by rule amendment.
STATE v. CARTER

Opinion of the Court

14

None of these convince us that the court of appeals erred when it 

concluded that reasonable counsel could have preferred crossexamination to objection.

¶57 To start, three of the eleven reasons simply reiterate Carter’s 

contention that the testimony was improper.7 The court of appeals 

assumed that the testimony would have been struck had an objection 

been made. As such, these assertions do not shed light on whether the 

court of appeals erred when it decided it was not objectively 

unreasonable to decide to address the improper testimony through

cross-examination instead of by objection.

¶58 Another of Carter’s reasons fails to convince us because it 

takes an after-the-fact look at whether counsel’s gambit paid off rather 

than provide the at-the-time-the-decision-was-made examination that 

Strickland requires. See Strickland v. Washington, 466 U.S. 668, 689 

(1984) (holding that a court must “evaluate the conduct from counsel’s 

perspective at the time”). Carter argues that counsel’s crossexamination bolstered rather than undercut the expert’s 

impermissible testimony. Reasonable minds may differ on whether 

Carter’s counsel executed the cross-examination in the way he might 

have hoped. But the fact that cross-examination might not have 

panned out the way Carter’s counsel wanted does not tell us that the 

decision to cross-examine rather than object was unreasonable at the 

time he made it.

¶59 Three more of Carter’s reasons appear to reference other, 

later, decisions that Carter’s counsel made that are not themselves the 

subject of Carter’s ineffective assistance challenge. For example, 

Carter complains that the jury was not properly instructed on expert 

testimony. But this is not part of the ineffective assistance challenge 

that Carter lodged in front of the court of appeals. Carter similarly 

laments that the State referenced the fire marshal’s testimony in 

closing argument and that counsel did not tell the jury in his closing 

argument that the fire marshal was not allowed to define 

“habitability.” But, again, Carter did not focus his ineffective 

assistance claim on a failure to object to the State’s use of the testimony 

in closing, or a failure to argue the proper scope of expert testimony 

to the jury. While these decisions may say something about whether

_____________________________________________________________

7 These are: “the testimony was inadmissible”; “counsel knew that 

the expert’s testimony was inadmissible ultimate-issue testimony”; 

and “the expert’s testimony bypassed both the State’s and the 

defense’s interpretation of the statute” “[because it] did, in fact, go to 

the ultimate issue.”
Cite as: 2023 UT 18

Opinion of the Court

15

the decision to choose cross-examination over objection was 

reasonable, Carter uses them to engage in the after-the-fact secondguessing that Strickland forbids.

¶60 This leaves just four proffered reasons that speak to the core 

question Strickland requires us to ask. Carter first argues that the 

rationale his counsel offered to the court for not objecting was not part 

of a rational strategy. This argument does not work under Strickland

because it attempts to improperly shift the inquiry from an objective 

examination of what reasonable counsel would do to a subjective 

assessment of what Carter’s counsel thought he was doing. See State 

v. Gallegos, 2020 UT 19, ¶ 47, 463 P.3d 641 (upholding the court of 

appeals’ decision to not grant a rule 23B remand to allow the 

defendant to put on the record counsel’s subjective reasons for not 

calling a witness because the “Strickland inquiry is objective, not 

subjective”).

¶61 We largely agree with Carter’s other three points—the 

habitability question was Carter’s entire defense, any evidence of 

habitability presented to the jury undercut that defense, and crossexamination would not instruct the jury to ignore the improper 

testimony. Habitability was, indeed, the crux of Carter’s defense, and 

evidence that did not support his interpretation of “habitable” was 

harmful. Objectively reasonable counsel would have to include those 

considerations in the calculus. But recognizing the truth of those 

assertions does not answer whether it was objectively unreasonable 

for counsel to decide that he could advance his client’s interests by 

forgoing the objection and relying on cross-examination to make his 

case to the jury.

¶62 We, like the court of appeals, cannot say that it was 

objectively unreasonable to forgo the objection to the fire marshal’s 

testimony. As the court of appeals noted, the questionable opinion 

came in at the end of the State’s direct examination. Carter’s counsel 

could have reasonably thought that he would try and get a concession 

from the fire marshal on what he meant by “habitability” because 

these points would be more impactful for the jurors if they heard them 

from the mouth of the State’s expert. Carter’s counsel could reason 

that he would be able to get the fire marshal to say, directly after the 

objectionable testimony, that his opinion was based on his experience 

of “what people are willing to live in” and not because anyone was 

living in the house. This is, in fact, what Carter’s trial counsel did. This 

was consistent with counsel’s reading of what the statute required and 

the theme he later developed in his closing argument.
STATE v. CARTER

Opinion of the Court

16

¶63 Although reasonable minds could differ on what the best 

approach would have been, we cannot say that, on this record, the 

court of appeals erred when it concluded that reasonable counsel 

could decide to challenge the expert’s opinion through crossexamination rather than object to the testimony. Carter has not 

convinced us that the court of appeals incorrectly concluded that it 

was reasonable for counsel to decide to cross-examine the fire marshal 

instead of objecting to his testimony that the house was “habitable.”

CONCLUSION

¶64 Carter contends that the court of appeals majority erred when 

it concluded that his counsel had not rendered ineffective assistance 

by deciding to forgo a motion for directed verdict. We agree with the 

court of appeals that reasonable counsel, presented with the palette of 

options Carter’s counsel faced, could have decided to not file the 

motion. Carter also argues that the court of appeals erred when it 

decided that Carter’s counsel was not ineffective for cross-examining 

an expert who offered an improper opinion, instead of objecting to 

that testimony. We affirm the court of appeals’ decision that this did 

not deprive Carter of the counsel the Sixth Amendment guarantees.