2015 UT App 208

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

SKYLER J. SHEPHERD,

Defendant and Appellant.

Opinion

No. 20130169-CA

Filed August 13, 2015

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 121900387

Samuel P. Newton, Attorney for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys

for Appellee

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

STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

ORME, Judge:

¶1 This case is one of several arising from the tragic death of 

a swimmer who was killed by a boat in Pineview Reservoir, near 

Ogden. Defendant Skyler J. Shepherd appeals from his 

convictions for reckless endangerment, a class A misdemeanor; 

obstruction of justice, a class A misdemeanor; and failure to 

render assistance at an accident, a class B misdemeanor. See Utah 

Code Ann. §§ 73-18-13, 73-18-21, 76-5-112, 76-8-306 (LexisNexis 

2012). We affirm all three convictions.

BACKGROUND

¶2 On August 21, 2011, a man who lived near Pineview 

Reservoir was working in his yard when he heard “blood 
State v. Shepherd

20130169-CA 2 2015 UT App 208

curdling” screams. To him, it was clear that the person 

screaming “was in intense pain.” The man ran to a knoll behind 

his house that overlooked the reservoir. He could see a boat 

stopped in the water and three men inside it, all of whom were 

standing up and looking over the side of the boat. He heard one 

of the occupants ask, “Hey, lady, are you okay?” Moments later, 

the boat sped off, and he could see someone in the water. 

¶3 The man got into his own boat and rowed out to where he 

had seen the person in the water. He came upon a woman, the 

victim in this case, who faintly pleaded, “Help me, help me.” 

The man positioned his boat near the victim and grabbed her 

hand, and she grabbed onto the boat. Because the man was in a 

small, aluminum rowboat, he could not pull her in without 

capsizing. Instead, he held her hand and called 911.

¶4 It had taken the man approximately five-and-a-half 

minutes to reach the victim. It took deputies another eleven 

minutes to arrive after the 911 call. The victim’s right leg had 

been “almost totally severed,” and by the time the deputies

reached the victim, her “pupils were fixed, she was not 

breathing, she had no pulse.” The victim had apparently been hit 

by the propeller of a boat, and she suffered massive injuries to 

her pelvis and legs. One injury to her right leg completely 

transected her femoral artery, and she bled to death.

¶5 Police began their investigation by preventing boats from 

leaving the reservoir and speaking with the occupants of each 

vehicle near the boat ramp. Officers spoke to Defendant, who 

said nothing about being in an accident or seeing the victim. A

few days later, however, the police received information that 

Defendant’s boat might have been the one that hit the victim.

Detectives went to Defendant’s home and spoke to him about 

the victim’s death. Defendant said he had been boating that day 

but had not seen the victim and only knew what he had learned 

from the news. He specifically “denied that he had hit anything 

recently” with his boat. 
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20130169-CA 3 2015 UT App 208

¶6 A few days after detectives interviewed Defendant at his 

home, he called and asked to speak with them again. He was 

interviewed at the sheriff’s office—this time with his attorney 

present. At this interview, Defendant changed his story 

significantly. He told detectives that on the day the victim died, 

he had been on the reservoir with a group of friends. When the 

group decided to take the boat for one last run, Defendant’s 

friend was at the wheel. The friend suddenly swerved to avoid a 

swimmer, then began “freaking out” to the point that he could 

no longer drive, so Defendant took the wheel. 

¶7 Defendant claimed that he drove the boat over to the 

victim. He claimed that the victim was using her arms and legs 

to keep herself afloat and that she told the men in the boat that 

she was okay, but she was angry with them for driving so close 

to her and told them to “get out of there.” According to 

Defendant, he never heard the victim scream or ask for help; he 

saw no blood in the water; and it was not until he was at the boat 

ramp and heard that a swimmer had been hit that “the fear 

started to set in” and he wondered if his boat might have been 

involved. 

¶8 The State charged Defendant with reckless endangerment, 

obstruction of justice, and failing to give assistance at the scene 

of an accident.1 A jury convicted Defendant on all counts. 

Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Defendant advances several claimed errors that he 

believes warrant reversal of his convictions. First, he argues that 

 

1. Defendant was alternatively charged as an accomplice on each 

count. Because we affirm Defendant’s convictions with regard to 

his actions as a principal, we need not explore the alternative 

theory of accomplice liability.
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20130169-CA 4 2015 UT App 208

there was insufficient evidence to support his conviction for

reckless endangerment.

In considering [a] challenge to the sufficiency of the 

evidence, we review the evidence and all reasonable 

inferences drawn therefrom in the light most 

favorable to the verdict. If, during our review, we 

find some evidence or inferences upon which 

findings of all the requisite elements of the crime 

can reasonably be made, we affirm.

State v. Germonto, 868 P.2d 50, 55 (Utah 1993) (internal citation 

omitted). 

¶10 Next, Defendant argues that evidence related to his initial

failure to talk to police was improperly admitted in violation of 

his Fifth Amendment right to remain silent. We review the 

resolution of constitutional issues for correctness. State v. Gallup, 

2011 UT App 422, ¶ 12, 267 P.3d 289.

¶11 The third issue raised on appeal is whether the trial court 

erroneously allowed the testimony of a boating expert whose 

opinion primarily focused on how sound travels over water. 

“‘The trial court has wide discretion in determining the 

admissibility of expert testimony, and such decisions are 

reviewed under an abuse of discretion standard. Under this 

standard, we will not reverse [a decision to admit or exclude 

expert testimony] unless the decision exceeds the limits of 

reasonability.’” State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794

(alteration in original) (quoting State v. Larsen, 865 P.2d 1355, 

1361 (Utah 1993)).

¶12 Somewhat relatedly, Defendant argues that the trial court 

improperly allowed witnesses to present “ultimate issue” 

testimony and opinions regarding Defendant’s truthfulness. The 

State concedes that some of this testimony was improper but 

“even obvious error by the district court will not result in the 

reversal of a criminal conviction unless the error was prejudicial, 
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20130169-CA 5 2015 UT App 208

i.e., unless it created ‘a sufficiently high likelihood of a different 

result such that our confidence in the outcome is undermined.’” 

State v. Bragg, 2013 UT App 282, ¶ 32, 317 P.3d 452 (quoting State 

v. Adams, 2000 UT 42, ¶ 20, 5 P.3d 642). 

¶13 Finally, we are asked to determine whether Defendant’s 

trial counsel rendered constitutionally ineffective assistance by 

failing to object to what Defendant characterizes as “multiple 

instances of prosecutorial misconduct.” “An ineffective 

assistance of counsel claim raised for the first time on appeal 

presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 

P.3d 162.

ANALYSIS

¶14 We acknowledge at the outset that Defendant, in his brief, 

provides an explanation that puts his actions in a much more 

innocent light than the version of events apparently accepted by 

the jury. But when arguments on appeal touch on the sufficiency 

of evidence or the interpretation of it, we review that evidence 

not in the way Defendant spins it but in the light most favorable 

to the jury’s verdict. See, e.g., State v. Bergwerff, 777 P.2d 510, 511 

(Utah Ct. App. 1989). 

It is the jury’s prerogative to weigh the 

evidence, infer the material facts from it, and apply 

the law stated in the jury instructions to the facts. 

In order to preserve this prerogative, we review the 

evidence in the light most favorable to the verdict, 

and do not overturn a jury’s verdict of criminal 

conviction unless reasonable minds could not 

rationally have arrived at a verdict of guilty 

beyond a reasonable doubt based on the law and 

on the evidence presented.

Id. (footnote omitted).
State v. Shepherd

20130169-CA 6 2015 UT App 208

I. Sufficiency of the Evidence

¶15 In claiming that the evidence was insufficient to convict 

him of reckless endangerment, Defendant argues that he did 

not create the risk that the victim would die because he was not

driving the boat when the victim was hit.2 The State contends

that Defendant created the risk not by striking the victim with 

his boat but because he made the “decision to drive the boat 

away, rather than stopping and giving aid to” the victim as 

required by law. We agree with the State.

¶16 The relevant statute criminalizes “recklessly engag[ing] in 

conduct that creates a substantial risk of death or serious bodily 

injury to another person.” Utah Code Ann. § 76-5-112 

(LexisNexis 2012). We have previously considered this statute 

and explained that “[r]eckless in this context requires a showing 

that the defendant was ‘aware of but consciously disregard[ed] a 

substantial and unjustifiable risk.’” State v. Carter, 2005 UT App 

232U, para. 3 (per curiam) (second alteration in original) 

(quoting Utah Code Ann. § 76-2-103(3) (LexisNexis 2003)). We 

 

2. At least for purposes of this appeal, Defendant does not 

contest that his boat struck the victim and that the victim 

ultimately died as a result of those injuries. He acknowledges 

that there was evidence presented to the jury that could support 

findings (1) that Defendant’s friend struck the victim with the 

boat, “severing her femoral artery and causing severe damage to 

her lower body”; (2) that Defendant drove the boat over to the 

victim, “asked if she was ok, [and] saw that she was severely 

injured”; (3) that he then “left the scene of the accident”; and (4) 

that the victim “had a slight chance of living had [Defendant] 

rendered emergency care.” The evidentiary insufficiency, 

Defendant claims, “lies in the fact that [Defendant’s] behavior 

was not the proximate cause of [the victim’s] death under the 

statute and did not create the substantial risk of death.”
State v. Shepherd

20130169-CA 7 2015 UT App 208

agree with courts of other jurisdictions that have considered 

analogous cases and concluded “that the conduct proscribed by 

the reckless endangerment statute includes the wilful failure to 

perform a legal duty.” See, e.g., State v. Kanavy, 4 A.3d 991, 996 

(Md. 2010).3 Thus, the evidence was sufficient to convict 

 

3. In State v. Kanavy, 4 A.3d 991 (Md. 2010), the Court of Appeals 

of Maryland decided that reckless endangerment could include 

the failure to act in certain situations. Id. at 996. It found support 

for this conclusion from several authorities. Id. at 996–97. See 

People v. Sanford, 808 N.Y.S.2d 274, 275 (App. Div. 2005) 

(reversing the dismissal of a multi-count indictment that was 

based in part on the defendant’s failure to render or summon

aid); State v. Nelson, 198 P.3d 439, 442 (Or. Ct. App. 2008) (“[T]o 

obtain a conviction under the reckless endangerment statute, the 

state generally has to prove, first, that the defendant performed 

an act, or omitted to perform an act as required by law[.]”); 

Model Penal Code § 1.13(5) (2001) (defining “conduct” as “an 

action or omission and its accompanying state of mind, or,

where relevant, a series of acts and omissions”); Black’s Law 

Dictionary 292 (7th ed. 1999) (defining “conduct” as “[p]ersonal 

behavior, whether by action or inaction”). We note that 

Maryland, New York, and Oregon have reckless endangerment 

statutes very similar to Utah’s. Compare Md. Code Ann., Crim. 

Law § 3-204 (West 2015) (“A person may not recklessly: (1) 

engage in conduct that creates a substantial risk of death or 

serious physical injury to another[.]”), N.Y. Penal Law § 120.20 

(McKinney 2015) (“A person is guilty of reckless endangerment 

in the second degree when he recklessly engages in conduct 

which creates a substantial risk of serious physical injury to 

another person.”), and Or. Rev. Stat. Ann. § 163.195 (West 2015)

(“A person commits the crime of recklessly endangering another 

person if the person recklessly engages in conduct which creates 

a substantial risk of serious physical injury to another person.”), 

with Utah Code Ann. § 76-5-112 (LexisNexis 2012) (“A person 

commits reckless endangerment if, under circumstances not 

(continued...)
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20130169-CA 8 2015 UT App 208

Defendant of reckless endangerment if Defendant owed the 

victim a legal duty to act and the jury could reasonably have 

found that (1) he was aware of the substantial risk of death or 

serious bodily injury to the victim should he fail to act and (2) he 

consciously disregarded that risk by failing to act. We first 

consider whether Defendant owed the victim a duty to act. 

¶17 The State suggests, and we accept for purposes of this 

appeal, that a passing, uninvolved boater might not be guilty of 

reckless endangerment. But “[i]t is the duty of the operator of a 

vessel involved in an accident . . . to render aid to those affected 

by the accident as may be practicable.” Utah Code Ann. § 73-18-

13(2)(a) (LexisNexis 2012). The State rightly points out that “by 

its plain language, this statutory duty is notably not restricted to 

the person who was driving at the time of the accident,” but 

rather the focus is on a vessel’s involvement in an accident. 

Thus, as soon as Defendant became the operator of the boat, the 

boat having been involved in an accident, he bore a duty to 

render aid to the victim.

¶18 We next consider whether the jury could have properly

found that Defendant was aware of the risk posed by his failure 

to render aid. See Utah Code Ann. § 76-5-112. Defendant 

concedes that there was evidence from which the jury could 

have found that he was aware of the victim’s injuries. See supra

note 2. What we must determine, then, is whether the jury also 

could reasonably have found that Defendant’s decision not to 

help the victim presented a substantial risk that those injuries 

would culminate in her death or serious bodily injury, which he 

consciously disregarded.

 

(...continued)

amounting to a felony offense, the person recklessly engages in 

conduct that creates a substantial risk of death or serious bodily 

injury to another person.”).
State v. Shepherd

20130169-CA 9 2015 UT App 208

¶19 According to the man who called 911, the victim was alive 

and responsive when he reached her, which was more than five 

minutes after Defendant’s boat struck her. He immediately 

called 911, and help arrived approximately eleven minutes later. 

Specifically, from the testimony given at trial, the jury could 

have found that the victim was hit by the boat at 8:08 pm; the 

man reached the victim at 8:14 pm, at which point the victim 

was upright and treading water with her arms; the victim was 

still moving at 8:17 pm; her mouth was moving at 8:24 pm; and 

emergency responders arrived at 8:25 pm, at which point the 

victim had died. 

¶20 The jury also could reasonably have found that within 

that same time frame, if Defendant had promptly rendered aid 

as he had a duty to do, the victim could have survived. Evidence 

on this point included testimony that if Defendant had rendered 

aid by bringing the victim aboard his boat and lying her down, 

her blood loss would have slowed and she likely would have 

survived long enough to receive first aid from firefighters on a 

nearby beach had Defendant driven the boat there. And if 

Defendant had done nothing more than call 911 immediately 

after the collision, “life flight” could have been dispatched and 

the victim could have gotten to the nearest hospital by 8:24 pm—

the time at which the victim was still alive and her mouth was 

still moving even though she had remained vertical, a position 

which, according to one expert, maximized her blood loss, and 

even though she was not receiving medical care, as she would 

have while being transported on life flight. 

¶21 Thus, Defendant could have given the victim a chance to 

survive simply by calling 911 or providing even the most 

rudimentary first aid—like getting the victim out of the water 

and into a horizontal position. And while his decision not to 

render aid did not guarantee her death, the jury could have 

easily found on the evidence before it that this decision posed a

substantial risk that the victim would die, much less that she 

would sustain serious bodily injury. It follows that Defendant’s 
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20130169-CA 10 2015 UT App 208

conviction of reckless endangerment is supported by legally 

sufficient evidence.

II. Defendant’s Right to Remain Silent

¶22 Defendant also argues that the trial court erroneously 

allowed the State to use Defendant’s initial silence as a basis 

from which the jury could infer his guilt. His argument is 

unavailing.

¶23 To begin with, we are not persuaded that Defendant ever 

invoked his right to remain silent. The United States Supreme 

Court has explained “that a witness confronted with questions 

that the government should reasonably expect to elicit 

incriminating evidence ordinarily must assert the privilege rather 

than answer if he desires not to incriminate himself.” Minnesota 

v. Murphy, 465 U.S. 420, 429 (1984) (emphasis added). “The 

privilege ‘is deemed waived unless invoked.’” Rogers v. United 

States, 340 U.S. 367, 371 (1951) (quoting United States v. Murdock, 

284 U.S. 141, 148 (1931)). See also Salinas v. Texas, 133 S. Ct. 2174, 

2184 (2013) (plurality opinion) (“Before petitioner could rely on 

the privilege against self-incrimination, he was required to 

invoke it.”).

¶24 Defendant spoke with law enforcement on three separate 

occasions regarding the incident at issue and, while his story 

evolved from one occasion to the next, he never asserted his 

constitutional right not to answer the detectives’ questions. He 

did, however, selectively provide detectives with false 

information and half-truths. A defendant may not provide law 

enforcement with a version of a story that benefits him and then 

later claim that the Fifth Amendment protects falsities included 

therein or pertinent information he chose to leave out.4 Cf. United 

 

4. Of course, this does not preclude individuals from deciding to 

invoke their right to remain silent after they have already started 

answering questions. See Miranda v. Arizona, 384 U.S. 436, 473–74 

(continued...)
State v. Shepherd

20130169-CA 11 2015 UT App 208

States v. Wong, 431 U.S. 174, 178 (1977) (“[T]he Fifth Amendment 

privilege does not condone perjury. It grants a privilege to 

remain silent without risking contempt, but it ‘does not endow 

the person who testifies with a license to commit perjury.’”) 

(quoting Glickstein v. United States, 222 U.S. 139, 142 (1911)). 

Defendant does not attempt to explain when or how he invoked 

his Fifth Amendment right to remain silent, and the record does 

not support a conclusion that Defendant ever invoked this

privilege.

¶25 But even if we were to assume that something in the course 

of Defendant’s conversations with police could be construed as 

an invocation of his right to remain silent, the result would be 

the same. To the extent that any comment on what Defendant 

did not say was improper, it was nevertheless harmless beyond 

a reasonable doubt. See generally State v. Maas, 1999 UT App 325, 

¶ 14, 991 P.2d 1108 (“[W]hen a [constitutional] violation has 

occurred, the State bears the burden of demonstrating that the 

improperly elicited testimony was harmless beyond a reasonable 

doubt.”) (citation and internal quotation marks omitted).

¶26 The first comment of which Defendant complains came 

about during the State’s case-in-chief. The State asked its 

witness, an officer involved in the investigation, whether 

Defendant had offered him any information about the accident, 

either at the scene or in a subsequent interview. The officer 

testified that Defendant offered no pertinent information. 

¶27 Defendant also argues that the State, during its closing 

argument, improperly commented on his silence. The closing 

 

(...continued)

(1966) (“If the individual indicates in any manner, at any time 

prior to or during questioning, that he wishes to remain silent, 

the interrogation must cease.”). But that is not what happened 

here.
State v. Shepherd

20130169-CA 12 2015 UT App 208

argument addressed Defendant’s failure to speak up at the boat 

ramp and general failure to “come forward.” 

¶28 To determine whether an error is harmless beyond a 

reasonable doubt, we consider the importance of the 

complained-of evidence to the prosecution’s case, whether that

evidence was cumulative, and the overall strength of the 

prosecution’s case. State v. Gallegos, 967 P.2d 973, 980–81 (Utah 

Ct. App. 1998). The testimony indicating that Defendant initially 

failed to provide detectives with information about what had 

happened at the reservoir, and the State’s reminder of this fact in 

argument, was not greatly important and likely did little to 

convince the jury of Defendant’s guilt. The jury had before it 

Defendant’s own admission that he had seen the victim in the 

water after his friend swerved the boat and began “freaking 

out.” There was also the testimony from the man who heard the 

victim’s screams and immediately looked out to see Defendant’s 

boat near the victim before it sped away.5 Even if we were to 

conclude that the trial court erred by allowing comments on 

Defendant’s theorized invocation of his right to remain silent, 

with this sort of evidence before the jury, any such error was 

harmless beyond a reasonable doubt.

III. Opinion Testimony

¶29 Defendant asserts that the trial court erred in allowing 

certain opinion testimony at trial. First, he contends that the trial 

court should have excluded testimony from the State’s expert 

witness because the testimony violated rule 702 of the Utah 

 

5. Defendant makes much of the fact that the man said he saw a 

white boat with a blue stripe, while Defendant’s boat is white 

with a green stripe. When the man was later shown Defendant’s 

boat, he indicated that it was the boat he had seen near the 

victim. He said it still looked blue to him. One detective who 

worked on the case explained that although the stripe was green, 

it looked blue in certain light. 
State v. Shepherd

20130169-CA 13 2015 UT App 208

Rules of Evidence. Next, he argues that the State’s witnesses 

were erroneously permitted to offer opinions on an ultimate 

issue in the case. Finally, Defendant claims that his convictions 

should be reversed because several of the State’s witnesses 

testified as to their opinion of Defendant’s truthfulness. We 

consider each alleged error below.

A. Expert Witness

¶30 We will first consider Defendant’s argument that the trial 

court erred in allowing the testimony of the State’s boating 

expert.6 The State called its boating expert mainly to testify about 

 

6. The briefs of both sides suggest some confusion about the 

applicable rules governing expert testimony. An objection to 

such testimony, or an appeal alleging error in the admission of 

the same, should be couched in terms of rule 702 of the Utah 

Rules of Evidence. See R. Collin Mangrum & Dee Benson, 

Mangrum & Benson on Utah Evidence 569 (2014–15 ed.) (“To 

preserve an issue on appeal for expert testimony, an objection of 

‘speculative’, hearsay, or lack of foundation will not preserve an 

objection for lack of qualification.”) (footnote omitted). In his 

brief, Defendant argues broadly that the boating expert’s 

testimony “failed to meet Rule 702’s requirements for 

expert testimony.” His specific arguments are that the boating 

expert (1) “was not an expert, but he made expert-like 

conclusions which were improperly admitted”; (2) “did not have 

the proper experience to make the claims he asserted”; and (3) 

“did not follow the scientific method in his analysis.” The first of 

these arguments is actually an assertion that the witness offered 

improper lay opinion under rule 701 of the Utah Rules of 

Evidence. Because no 701 objection was made to the trial court, 

that objection is not a proper ground for appeal. See State v. 

Olsen, 860 P.2d 332, 335 (Utah 1993) (“As we have repeatedly 

held, failure to object constitutes waiver of the objection.”). The 

second argument appears to be a challenge to the expert’s 

(continued...)
State v. Shepherd

20130169-CA 14 2015 UT App 208

 

(...continued)

qualifications, see Utah R. Evid. 702(a), but we readily conclude 

that the trial court acted within its discretion in accepting this 

particular witness as a boating expert, given his qualifications, 

see infra ¶ 33. Furthermore, at trial, Defendant’s counsel 

admitted, “I don’t dispute he has a lot of experience with boats.” 

His final argument, that the boating expert failed to follow the 

scientific method, appears to be a challenge to application. See 

Utah R. Evid. 702(b)(3) (“Scientific, technical, or other specialized 

knowledge may serve as the basis for expert testimony only if 

there is a threshold showing that the principles or methods that 

are underlying in the testimony . . . have been reliably applied to 

the facts.”). While Defendant did not specifically object on 

application grounds during the course of the boating expert’s 

testimony, he did lodge a general objection to the witness’s 

testimony before the witness took the stand. The content of that 

objection further supports a conclusion that Defendant’s real 

problem with the boating expert constitutes a challenge under 

rule 702(b)(3). Defendant’s counsel argued:

[T]he problem is when I talk to [the boating 

expert,] he never tested [Defendant]’s boat, and 

he’s never been in the Pineview area. I think it’s 

going to mislead the jury to say, “Well, just because 

I can hear things in my boat,” nobody tested the 

noise level of [Defendant]’s engine.

So I think there’s a real problem here with 

this expert. 

Having waded through the record and Defendant’s arguments 

and concluded that the crux of the 702 challenge concerns 

application, we could elect to confine our analysis to this point. 

But because we believe that the parties and other readers of this 

opinion might benefit from an explanation of rule 702 and the 

proper flow of analysis under it, our opinion also briefly 

explores the foundational aspects of expert testimony other than 

application.
State v. Shepherd

20130169-CA 15 2015 UT App 208

“how sound travels over water.” He also testified about his 

experiences when hitting items in the water, particularly what 

can be felt, heard, and seen in such situations. “‘The trial court 

has wide discretion in determining the admissibility of expert 

testimony,’” and we will reverse a trial court’s ruling on the 

admissibility of expert testimony “only when it ‘exceeds the limits 

of reasonability.’” Gunn Hill Dairy Props., LLC v. Los Angeles 

Dep't of Water & Power, 2012 UT App 20, ¶ 16, 269 P.3d 980

(quoting Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Ctr., 2010 

UT 59, ¶ 5, 242 P.3d 762).

¶31 The trial court could properly admit the boating expert’s 

testimony if the court reasonably determined (1) that scientific, 

technical, or other specialized knowledge would assist the jury 

to understand the evidence or determine a fact in issue; (2) that 

the witness was qualified as an expert by knowledge, skill, 

experience, training, or education; and (3) that the State made a 

threshold showing that the principles or methods underlying the 

testimony were reliable, were based on sufficient facts or data, 

and had been reliably applied to the facts of this case. See Utah R. 

Evid. 702. See also R. Collin Mangrum & Dee Benson, Mangrum & 

Benson on Utah Evidence 543–45 (2014–15 ed.).

¶32 Part of the jury’s role was to make determinations

regarding Defendant’s subjective knowledge. Specifically, it had 

to decide whether Defendant was aware of and consciously 

disregarded a substantial risk to the victim. See supra ¶ 16. It was 

therefore reasonable for the trial court to decide that it would be 

helpful for the jury to hear expert testimony regarding what 

could have been heard and felt on the water. Thus the 

preliminary requirement of rule 702—that expert testimony 

must be helpful to the finder of fact—was met. See Utah R. Evid. 

702(a). See also State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993)

(“Under rule 702, the question that must be posed prior to the 

admission of any expert evidence is whether, ‘on balance, the 

evidence will be helpful to the finder of fact.’”) (quoting State v. 

Rimmasch, 775 P.2d 388, 398 n.8 (Utah 1989)).
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20130169-CA 16 2015 UT App 208

¶33 The trial court likewise could have reasonably concluded 

that the boating expert was qualified by his knowledge, 

experience, or training. His qualifications included time in the 

Coast Guard, more than ten years as a boating officer at Lake 

Powell, more than ten years as the boating director for the state 

park system, and more than 20,000 hours spent on the water.

Utah courts “have routinely allowed persons to testify as experts 

based on the totality of their qualifications and experience, and 

not on licensing or formal standards alone.” State v. Kelley, 2000 

UT 41, ¶ 15, 1 P.3d 546. Given the nature and extent of the 

witness’s experience with boating, it was within the trial court’s 

discretion to consider the witness a boating expert.

¶34 All that is left to consider, then, is whether the State made 

the requisite threshold showing under rule 702(b). The first 

inquiry under rule 702(b) is whether the principles or methods 

used by the expert were reliable. State v. Turner, 2012 UT App 

189, ¶ 21, 283 P.3d 527. The boating expert offered experiential 

opinions, meaning he “did not need to identify a particular 

methodology.” See id. See also United States v. Bynum, 604 F.3d 

161, 167 (4th Cir. 2010) (explaining that “although ‘[e]xperiential 

expert testimony . . . does not rely on anything like a scientific 

method,’ such testimony is admissible under Rule 702 so long as 

an experiential witness ‘explain[s] how [his] experience leads to 

the conclusion reached, why [his] experience is a sufficient basis 

for the opinion, and how [his] experience is reliably applied to 

the facts’”) (alterations and omission in original) (quoting United 

States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007)).

¶35 In the present case, the boating expert testified about 

the training he had received on boat accident investigation, the

opportunity he had to assist scientists in conducting a test on 

the noise emitted by boats, his personal experiences operating 

boats like the kind Defendant owned, and his own observations 

when hitting objects in the water. It is entirely reasonable to 

conclude that these sorts of experiences were sufficient under 
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20130169-CA 17 2015 UT App 208

rule 702(b)(1) for the boating expert to offer opinions within the 

scope of his experience.

¶36 Next, under rule 702(b)(2), we consider whether the 

boating expert based his opinion on sufficient facts or data. See 

Utah R. Evid. 702(b)(2). Under the facts of this case, some of the 

same details that demonstrate the reliability of the boating 

expert’s methods also show that his opinion was based on 

sufficient facts. He had experience driving boats similar to 

Defendant’s. He spent over a decade working on Lake Powell, 

which gave him extensive experience on the water. He reviewed 

specifics from this case in the form of police reports, the 

statement of Defendant, and photographs of Defendant’s boat, 

including the motor and the operating system. Thus, the expert’s 

testimony met the threshold requirement of rule 702(b)(2).

¶37 Finally, we look to rule 702(b)(3) and consider whether 

the boating expert’s methods were reliably applied to the facts of 

this case. See Utah R. Evid. 702(b)(3). We reiterate that the State 

was only required to make a threshold showing on this point. 

“Contrary and inconsistent opinions may simultaneously meet 

the threshold; it is for the factfinder to reconcile—or choose 

between—the different opinions.” Id. R. 702 advisory committee 

note. Defendant’s argument that the boating expert “was 

incorrect about a number of factors” is therefore insufficient to 

convince us that the threshold was not met.

¶38 Defendant also alleges that the boating expert “did not 

follow the scientific method.” We repeat that a scientific 

methodology is unnecessary for experiential opinions. See supra

¶ 34. But we understand the particulars of Defendant’s 

argument to speak more to application. Defendant points to the 

facts that the expert did not personally test or examine 

Defendant’s boat or visit Pineview Reservoir. But as we 

explained above, the boating expert had access to and made use 

of specific information regarding Defendant’s boat and the 

reservoir. “The opinion of an expert is not rendered inadmissible 

because it may be based upon facts proved by the observations 
State v. Shepherd

20130169-CA 18 2015 UT App 208

of others.” Universal Inv. Co. v. Carpets, Inc., 400 P.2d 564, 567

(Utah 1965). The boating expert’s election to rely on facts 

established by the State’s investigation therefore does not render 

his opinion legally inadequate under rule 702(b)(3).

¶39 One specific incident recounted by the boating expert is 

referenced repeatedly in Defendant’s brief. As part of his

testimony regarding what an individual might feel, hear, and see 

when he hits an object with a boat, the boating expert related a 

story from when he was in the Coast Guard and his boat struck 

a harbor seal. He explained that he “felt it on the steering wheel 

slightly, heard it go underneath the boat, [and saw a] red spot in 

the water.” At trial, Defendant objected on relevance grounds, 

his counsel rhetorically asking, “How can you compare a seal to 

a person?” Even overlooking the fact that Defendant now 

attempts to use this relevance objection as one predicated on rule 

702, we conclude that this is the sort of “concern[] best reserved 

for the weight of the evidence rather than its threshold reliability 

for purposes of admissibility.” See Gunn Hill Dairy Props., LLC v. 

Los Angeles Dep't of Water & Power, 2012 UT App 20, ¶ 45, 269 

P.3d 980. Of course there are differences between seals and 

humans, but it would be illogical to conclude that only those 

individuals who have hit a human with their boat could 

properly provide expert opinion in this case as to the physical 

manifestations of striking an unseen object in the water. Instead, 

the boating expert used his experience of hitting a large, living 

thing to draw an analogy to the instant case. Any weaknesses in 

that analogy could be—and were—attacked on cross-examination 

and highlighted in closing argument, but an adequate threshold 

showing was nonetheless made under rule 702(b)(3). 

¶40 The boating expert’s testimony was likely to help the jury, 

and the expert exhibited the requisite qualifications to be 

considered an expert under rule 702 of the Utah Rules of 

Evidence. Furthermore, the State properly made a threshold 

showing of the reliability of the boating expert’s methods, the 

adequacy of the information relied upon, and the reliability of 
State v. Shepherd

20130169-CA 19 2015 UT App 208

the application of his methods to the particular facts of this case. 

Because all elements of rule 702 were met, there was no error in 

the trial court’s allowing the testimony of the boating expert.

B. Ultimate Issue Testimony

¶41 Defendant argues that it was error for the trial court to 

allow the boating expert and a detective, both witnesses for the 

State, to testify that Defendant would have heard the victim’s 

screams above the roar of the boat’s engine. We agree with the 

State that this argument fails because “the testimony at issue 

concerned the ability of a person to hear sounds or see sights 

while on the water [and] was not an ‘ultimate issue’ for purposes 

of the relevant rule.” 

¶42 An ultimate issue is one that the jury is asked to decide.

See State v. Larsen, 828 P.2d 487, 493 n.7 (Utah Ct. App. 1992), 

aff’d, 865 P.2d 1355 (Utah 1993). In the instant case, that would 

include issues such as whether Defendant acted recklessly or 

created a substantial risk of death or serious bodily injury. See 

Utah Code Ann. § 76-5-112 (LexisNexis 2012). The jury was not, 

however, asked to decide whether Defendant heard the victim’s 

screams; rather, that was a question of fact that the jury might 

have considered in reaching one or more ultimate conclusions.

Therefore, we need not analyze whether such testimony was

properly admitted under rule 704 of the Utah Rules of Evidence, 

because this is simply not the sort of testimony that is governed 

by that rule. See Utah R. Evid. 704.

C. Testimony Regarding Truthfulness

¶43 The next issue concerns two of the State’s witnesses, who 

testified that they did not believe that Defendant was telling the 

truth when he insisted that he neither heard the victim scream

nor saw the victim’s injuries. The State concedes that this 

testimony violated the rule that “a witness may ‘not offer a 

direct opinion’ of another[’s] truthfulness on a particular 

occasion.” See State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 984
State v. Shepherd

20130169-CA 20 2015 UT App 208

(quoting State v. Adams, 2000 UT 42, ¶ 13, 5 P.3d 642). See also

Utah R. Evid. 608. But the State’s concession only establishes 

error; we must also consider whether the improper testimony 

was prejudicial. See State v. Stefaniak, 900 P.2d 1094, 1096 (Utah 

Ct. App. 1995) (“Having determined that the court erred in 

admitting the testimony bolstering the victim’s credibility, we 

must separately determine whether the error was prejudicial 

in this case.”). If we conclude that absent this testimony there is 

a reasonable likelihood that the jury would have returned a 

verdict more favorable to Defendant, we must reverse. Id.

¶44 In Stefaniak, we determined that allowing testimony that 

bolstered the victim’s credibility was reversible error because 

“[t]he State’s case against Stefaniak hinged entirely on the 

credibility of the victim.” Id. In contrast, the present case relied 

very little, if at all, on the challenged testimony. That testimony 

established that two of the State’s witnesses did not believe 

Defendant when he said that he did not hear the victim scream

or see evidence of the victim’s injuries. Absent that testimony, 

the jury would still have had before it the testimony of the man 

who called 911, who was first alerted to the problem in the water 

when he heard the victim’s screams from several hundred feet 

away. There were also officers who testified about their 

involvement with a reenactment of the accident; they said that 

they could easily hear screams over the noise of the boat. A 

medical doctor testified that the victim would have been 

“bleeding extensively,” given her injuries, and that the blood 

would have necessarily been visible in the water. The jury also 

had the opportunity to view a photograph of the victim, which 

showed her extensive injuries, and jurors could have formed 

their own conclusions regarding what Defendant would have 

been able to see and hear. 

¶45 We are not convinced that the testimony regarding 

Defendant’s truthfulness mattered much. The jury had before it 

ample other evidence that called into question Defendant’s 

credibility, in particular his inconsistent accounts early in the 
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20130169-CA 21 2015 UT App 208

police investigation of this case. See supra ¶¶ 5–7. With or 

without the testimony regarding Defendant’s truthfulness, the 

jury would have come to the same conclusion, and the outcome 

would have been no better for Defendant. The admission of this 

testimony therefore constitutes harmless error.

IV. Prosecutorial Misstatements and Ineffective Assistance

¶46 Finally, Defendant argues that his trial counsel should 

have objected to “several objectionable statements” made by the 

prosecutor during his closing argument. He claims that the 

decision not to object rendered his trial counsel’s performance 

constitutionally deficient. To succeed on this claim, Defendant 

must establish that (1) “counsel’s representation fell below an 

objective standard of reasonableness” and (2) “there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

See Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).

¶47 The Utah Supreme Court recently considered a similar 

claim and clarified that “[w]hen we review an attorney’s failure 

to object to a prosecutor’s statements during closing argument, 

the question is ‘not whether the prosecutor’s comments were 

proper, but whether they were so improper that counsel’s only 

defensible choice was to interrupt those comments with an 

objection.’” State v. Houston, 2015 UT 40, ¶ 76 (emphasis in 

original) (quoting Bussard v. Lockhart, 32 F.3d 322, 324 (8th Cir.

1994)). We agree with the State that the complained-of comments 

were “largely benign” and were not so improper as to warrant 

reversal for trial counsel’s failure to object to them. 

A. Statements on Credibility and Personal Opinion

¶48 Defendant’s first complaint about the prosecutor concerns 

his statements about the credibility of witnesses and the 

interjection of his personal opinions. During his closing 

argument, the prosecutor asserted that some of Defendant’s 
State v. Shepherd

20130169-CA 22 2015 UT App 208

statements were untrue and that he did not personally believe 

Defendant’s version of events.7

¶49 Our view of the prosecutor’s statements regarding

Defendant’s truthfulness is in line with our previous discussion 

of the improper testimony that was admitted regarding whether 

Defendant was telling the truth on a particular occasion. See 

supra ¶¶ 43–45. We determined that the credibility testimony 

was harmless because of the extent of the other evidence 

properly before the jury and because Defendant’s inconsistent 

accounts, which were known to the jury, were enough to call his 

credibility into question. Similarly, we conclude that not 

objecting to these portions of the State’s closing argument did

not prejudice Defendant. The decision not to object therefore did 

not render trial counsel’s performance constitutionally 

ineffective. See Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 

(“In the event it is ‘easier to dispose of an ineffectiveness claim 

on the ground of lack of sufficient prejudice,’ we will do so 

without analyzing whether counsel’s performance was 

 

7. Defendant points to “seven instances of the prosecutor’s use of 

the personal pronoun ‘I’ coupled with assertions [of] the 

credibility [or] believability of a witness.” First, after posing the 

question of whether Defendant had a motive to testify 

untruthfully, the prosecutor stated, “I’d submit that he does.” 

The prosecutor stopped short of actually offering an opinion on 

Defendant’s truthfulness, and we see no error in this statement. 

The second and third statements involved the prosecutor saying 

“I think” that certain things Defendant said were truthful. It is 

unclear how the prosecutor opining that Defendant was truthful

could have prejudiced Defendant. This leaves four statements 

for our consideration. Three times the prosecutor asserted that 

something Defendant had said was “not a truthful statement.” 

He also said, regarding Defendant’s version of events, “I don’t 

believe that. That isn’t what happened.” 
State v. Shepherd

20130169-CA 23 2015 UT App 208

professionally unreasonable.”) (quoting Strickland, 466 U.S. at 

697).

¶50 We now turn to trial counsel’s decision not to object to the 

prosecutor’s personalization in his closing argument. This will 

not be considered deficient performance if “there were 

conceivable tactical bases” for not objecting. See State v. Bryant, 

965 P.2d 539, 543 (Utah Ct. App. 1998).

¶51 To begin with, our prior decisions have recognized that 

even when a prosecutor makes improper statements during 

closing argument, a defense attorney might forgo objecting so as 

to avoid “emphasiz[ing] the negative aspects of the case to the 

jury.” West Valley City v. Rislow, 736 P.2d 637, 638 (Utah Ct. App. 

1987). That could very well have been the case here. The 

prosecutor’s statement was rather innocuous; he essentially 

anticipated opposing counsel’s closing argument by indicating, 

“[Defendant’s counsel] wants to say, ‘Oh, [the victim] was in 

shock. She said she was okay. It was okay for them to go.’” The 

prosecutor followed up with, “I don’t believe that. That isn’t 

what happened.” 

¶52 In his closing argument, Defendant’s trial counsel did 

exactly what the prosecutor previewed. He talked about the 

effects of going into shock and why Defendant might have 

believed it was okay to leave the victim. There are several 

possible tactical reasons for defense counsel’s decision not to 

object, one of which is that counsel might not have wanted 

to highlight the State’s attempts to discredit his closing argument 

before he had a chance to make it. Another is that objecting 

might suggest to the jury that it is a troublesome point—one 

worth objecting to—while letting it go demonstrated counsel’s 

confidence in the jury’s ability to distinguish between evidence 

and argument, a subject covered in the jury instructions.

¶53 Additionally, Defendant’s trial counsel may well have 

had no interest in promoting ground rules that would foreclose 

personalization during closing argument. His own closing 
State v. Shepherd

20130169-CA 24 2015 UT App 208

argument was very personal, including a story about himself 

and a request that the jurors envision themselves in Defendant’s 

situation. Trial counsel could have decided that objecting to the 

more personal aspects of the State’s closing argument might 

have increased the likelihood that the State would successfully 

object to the personal aspects of his own closing argument.

B. Reference to Plea Negotiations

¶54 Next, Defendant takes issue with the prosecutor’s 

references to pretrial plea negotiations because “no evidence was 

presented on [this] topic.” Defendant argues that these 

references encouraged the jury to consider matters not in 

evidence. See State v. Bakalov, 1999 UT 45, ¶ 59, 979 P.2d 799. But 

contrary to Defendant’s claim, there was evidence presented on 

this point, and it was evidence Defendant insisted that the jury 

hear.

¶55 During the testimony of one of the State’s witnesses, the 

jury saw video of a police interview with Defendant. On crossexamination, Defendant’s trial counsel said that the State had 

“cut off the first couple of minutes” of the video and indicated 

that he would “like them to see the whole thing.” The jury then 

watched the beginning of the video, which included negotiations 

regarding Defendant’s willingness to cooperate with the police

in exchange for the State not bringing other charges against him. 

¶56 Defendant opened the door through which the evidence 

he now challenges entered by bringing in evidence of the 

negotiations,8 and the prosecutor was therefore within his rights 

 

8. Opening the way to the introduction of evidence of the plea 

negotiations was not itself ineffective assistance by defense 

counsel. Counsel may well have considered that this evidence 

would suggest that the State knew its case was not all that strong 

or that Defendant’s role was comparatively minor, warranting 

not bringing certain charges.
State v. Shepherd

20130169-CA 25 2015 UT App 208

to comment on that evidence during his closing argument. 

Against this background, there was nothing improper about 

these references, and any objection by Defendant’s trial counsel 

would have been futile. Accordingly, this failure to object does 

not constitute deficient performance. See Codianna v. Morris, 660 

P.2d 1101, 1109 (Utah 1983) (“[T]he failure of counsel to make 

motions or objections which would be futile if raised does not 

constitute ineffective assistance.”) (citation and internal 

quotation marks omitted).

C. Reference to Charging Decisions

¶57 Defendant next argues that the prosecutor engaged in 

misconduct when he indicated in his closing argument that 

“[w]hen you look at this case you may think, you know, maybe 

there should be more serious charges on these guys than 

misdemeanor.” We assume without deciding that this statement 

constituted misconduct and focus our analysis on whether the 

statement prejudiced Defendant. See State v. King, 2010 UT App 

396, ¶ 22, 248 P.3d 984 (explaining that “a prosecutor’s statement 

during closing argument that prompts the jury to consider 

matters outside the evidence constitutes prosecutorial 

misconduct”).

¶58 We acknowledge that in some close cases, a statement like 

this could prejudice the defendant. But this was not a close case. 

There was Defendant’s own admission that his boat had been 

near the victim and that he had seen her in the water. There was 

testimony from an eyewitness who heard the victim’s screams 

and was able to identify Defendant’s boat as the only one near

the victim when she screamed. There was medical and expert 

testimony that shed light on what Defendant likely heard and 

saw when his boat was near the victim.

¶59 Given the evidence presented to the jury, it is entirely 

possible that the prosecutor actually risked making the jurors 

angry with him by reminding them that he had only charged 

Defendant with misdemeanors. It is unlikely, though, that this 
State v. Shepherd

20130169-CA 26 2015 UT App 208

reminder negatively impacted the jury’s treatment of Defendant, 

as the evidence overwhelmingly supported a guilty verdict on 

the charged counts. Because there was no prejudice to Defendant, 

the decision not to object to this statement does not constitute 

ineffective assistance.

D. Jury’s Role

¶60 Finally, Defendant argues that the prosecutor, in his 

closing argument, improperly “vouched for specific jurors’ 

role[s].” The prosecutor told the jurors:

Again, just remember reasonable doubt has to be 

based on reason. You were picked for this jury 

because I believe you all have common sense. . . . I 

asked you in voir dire if we were able to prove our 

case beyond a reasonable doubt could you all 

return a guilty verdict. You all indicated that you 

could. I’m asking you to do that now.

Defendant provides us no explanation as to how the authority he 

cites supports a conclusion that this statement was improper. He 

does cite State v. Thompson, 2014 UT App 14, 318 P.3d 1221, for 

the proposition that prosecutors may not ask a jury to render a 

verdict based on its societal obligation or the impact the verdict 

might have on society. See id. ¶ 67. While this is a correct 

proposition, it has no bearing here.

¶61 The prosecutor did not demand that the jury return a 

guilty verdict. He did not reference the jurors’ obligations as 

members of society. He instead expressed a self-evident truth, 

that jurors are allowed to employ their common sense during 

deliberation, and he reminded them of something explained in 

their instructions, that a reasonable doubt is based on reason. 

Because we cannot see how this statement was improper, we 

cannot conclude that Defendant’s trial counsel had any reason to 

object to it.
State v. Shepherd

20130169-CA 27 2015 UT App 208

CONCLUSION

¶62 All of Defendant’s arguments on appeal are without 

merit. There was sufficient evidence to support his conviction for

reckless endangerment because he owed the victim a legal duty 

to render aid and he opted not to fulfill that duty. In so doing, he 

consciously disregarded a substantial risk that the victim would 

die or at least sustain serious bodily injury. This sufficient 

evidence largely resolves almost every other issue before us, 

because even if there were errors in the admission of particular 

bits of evidence, those errors did not prejudice Defendant.

¶63 The State did not improperly comment on Defendant’s 

silence, because Defendant never invoked his Fifth Amendment

rights. Even if he did, the error was harmless. The trial court did 

not abuse its discretion in admitting expert testimony. The trial 

court did not allow any inadmissible ultimate-issue opinions. 

The introduction of improper evidence regarding credibility was 

harmless. And Defendant’s trial counsel was not ineffective for 

choosing not to object to the State’s closing argument.

¶64 Affirmed.