2017 UT App 43



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH
, Appell ee ,

v.
L EVI G ENE K ING
, Appell ant

.
Opinion

N o. 20130223

- CA

Filed March 9, 2017

Second District Court, Farmington Department

The Honorable Thomas L. Kay

No. 121701223

Scott L. Wiggins

, Attorney for Appellant

Sean D. Reyes, Ryan D. Tenney, and William M.

Hains

, Attorney s for Appellee

J UDGE M ICHELE M. C HRISTIANSEN authored th is Opinion

, in
which J UDGE S K ATE A. T OOMEY and D AVID N. M ORTENSEN
concurred

.

CHRISTIANSEN

, Judge :

Defendant Levi Gene King appeals from his convictions ¶1
for theft as a second

- degree felony, theft as a third

- degree felony, and failure to stop at the command of a law enforcement officer
as a class A misd emeanor. See Utah Code Ann. § 76

- 6

- 404 (LexisNexis 2012); id. § 76

- 6

- 412(1); id. § 76

- 8

- 305.5. Primarily , he
contends that his trial counsel was constitutionally ineffective for failing to introduce expert testimony rega rding the reliability of eyewitness identification

. Because declining to introduce potentially harmful testimony wa s sound trial strategy under the
facts of this case , w e affirm.State v. King

20130223

- CA 2 2017 UT App 43 BACKGROUND

‚ On appeal from a jury verdict, we view the evidence and ¶2 all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly. ‛ State v. Dozah , 2016 UT App 13, ¶ 2 , 368 P.3d 863 . ‚ We include conflicting evidence as relevant and necessary to u nderstand the issues on appeal.‛ Id.

Victim parked his truck outside his wife’s s alon one ¶3 morning. He left the keys and his wife’s iPod on the truck’s center console while he unloaded supplies. Later that morning,

V ictim’s wife (Wife) drove to her salon. As she pulled into a side street behind the salon, she saw her husband’s truck bei ng driven the other way. Wife slowed to a stop and rolled down her window. To her surprise, the other driver was not her husband. She noted that the driver had a shaved head and was wearing a
white tee shirt. She hurried to the salon and tol d her husband

t hat somebody was driving off in his truck. Victim borrowed
Wife ’s SUV to go look for his truck while she called 911.

D escription s of the stolen vehicle and the driver w ere ¶4 relayed to police in the area. A police officer (Officer) spotted the
truck at an in tersection and ‚focused on the driver‛ to see if he matched the description. It was daytime and Officer could see that the driver was a ‚white male, short, dark hair‛ and was wearing a ‚white shirt.‛ Officer turned to follow the truck,
which accelerated ab ove the speed limit and turned onto a curving side street. He lost sight of the truck for one to two minutes but then spotted it parked behind a building. The driver seen by Officer earlier was still inside but the driver’s door was partially open. No one else was nearby.

The driver spotted Officer , fled the vehicle, and hopped a ¶5 nearby fence. Officer gave chase, radioing nearby police to let them know he had found the truck. While pursuing the driver,
Officer saw that the driver was wearing a white tee shi rt with a ‚dark logo on the back of it‛ and jeans with a hole around the right knee.State v. King

20130223

- CA 3 2017 UT App 43 Several minutes later, a witness (Witness) was in his front ¶6 yard preparing to take his daughter to school when a man approached and asked if he could get inside W itness’s car. W itness testified that the man was ‚wearing a white tee shirt with some sort of logo on the back‛ and ‚blue jeans.‛ After Witness refused to let the man into his car, the man went onto Witness’s porch and tried to enter the house. A police car then pulled up and the man tried to run away but was apprehended. The man apprehended was Defendant.

Shortly after Defendant’s capture, Officer arrived and ¶7 identified Defendant as the person he had seen driving the stolen truck and giv en chase to. Victim and Wife then arrived;
Victim identified the truck as his and Wife identified Defendant as the man she had seen driving it

. A search of Defendant’s person revealed Wife’s iPod. Neither Officer nor Wife was presented with a lineup of sus pects; rather, at the scene of his

arrest, each was only shown Defendant

— a procedure often referred to as a showup.

At trial, the State argued that Defendant stole the truck ¶8 and the iPod and failed to heed a police officer’s orders to stop. Defendant prese nted alternative facts . Defendant testified that he had left his house that morning intending to apply for jobs at local businesses until the local library opened. He claimed that he had run into an acquaintance named Kyle, 1 who was sitting in
a black truc k. According to Defendant, Kyle offered to sell
Defendant an iPod for $30 . Although he initially hesitated, Defendant decided to buy the iPod. He testified that he then began to smoke marijuana, that Kyle grew increasingly nervous, and that Kyle eventually jumped out of the truck, ran behind it

, and disappeared over a fence. Defendant further testified that he saw a police car drive by and that, when the car turned around,

1 . Defendant either did not know or could not remember Kyle’s surname. Kyle was not apprehended and did not appear at trial.State v. King

20130223

- CA 4 2017 UT App 43 he took off running as well. Defendant admitted that he had not stopped when the poli ce officer told him to. 2

During jury selection and opening statements, a deputy ¶9 sat behind Defendant. Before testimony began, trial counsel objected to the presence of ‚an armed deputy in unif orm sitting behind my client.‛ Trial counsel conceded that offic ers were generally present for security reasons but asserted that such officers were normally ‚dre ssed in plainclothes.‛ Trial counsel stated that ‚if he wants to sit in the back of the court, that’s fine, but I don’t think sitting behind my client is appr opri ate‛ and
that Defendant was un likely to be a threat because he had

‚ handcuffs on.‛ The judge asked the officer to ‚sit a little farther
back‛ in the audience and trial counsel raised no further objection.

Before Defendant testified, and outside the jur y’s ¶10 presence, the court and counsel discussed the logistics of his testimony. Trial counsel suggested seating Defendant in the witness box and swearing him in before the jury returned to the room. The court agr eed to ‚have him seated up here‛ and explained that ‚ we’ll have him sworn before the jury comes in.‛

T he court later decided ‚we’ll just have him sworn in just after
the jury comes in, so why don’t we have the jury come in. So when I say, ‘You can be seated,’ just stand or just stay standing
and then *the court deputy+ will swear you in.‛

The defense presented no other witnesses. In closing ¶11 argument , trial counsel argued that Wife and Officer were mistaken in their identifications. She highlighted the height
difference between Victim’s truck and Wife’s SUV and noted
that both Wife and Officer had observed the driver of the truck while it was in motion. Trial counsel did not request an

i nstruction regarding eyewitness

- identification pitfalls

.

2 . Nevertheless, he challenges his conviction for failure to stop at
the command of a law enforcement officer.State v. King

20130223

- CA 5 2017 UT App 43 The jury convicted Defendant on all three charges

. As part ¶12
of his appeal, Defendant sought a rule 23B remand for findings necessary to determine whether he received ineffective
assistance from trial counsel. See Utah R. App. P. 23B. After this

court granted that motion, the trial court conducted a hearing
and entered findings. T he parties have now addressed those findings in supplemental brie fing to this court.

ISSUES AND STANDARDS OF REVIEW

Defendant first contends that trial counsel ’s failure to call ¶13 an expert witness to testify about the pitfal ls of eyewitness
iden tification deprived him of his constitutional right to the
effective assi stance of counsel

. ‚In ruling on an ineffective assistance [of counsel] claim following a Rule 23B hearing, we defer to the trial court’s findings of fact, but review its legal
conclu sions for correctness.‛ State v. Patterson , 2013 UT App 11, ¶ 7, 294 P.3d 662 (citation and internal quotation marks omitted)

.

Defendant next contends that the trial court deprived him ¶14 of his right to a fair and impartial trial by ‚having *Defendant+
handc uffed during the jury trial with a uniformed officer sitting directly behind him.‛ Because this issue was not preserved for appeal

, see infra ¶ 31, Defendant seeks review under the plain

error doctrine. ‚The plain error standard of review requires an appel lant to show the existence of a harmful error that should
have been obvious to the district court.‛ State v. Waterfield , 2014 UT App 67, ¶ 18, 322 P.3d 1194.

Defendant also contends that the cumulative effect of ¶15 these errors merits reversal pursuant to the cumulative

- error doctrine. But the cumulative

- error doctrine may only be considered when the appellate court has determined, or assumed without deciding, that two or more errors occurred. Only when this court has determined that multiple errors
occurred below do we apply the standard of review applicable to each underly ing claim of error and reverse if the cumulativeState v. King

20130223

- CA 6 2017 UT App 43 effect of the several errors undermines our confidence that a fair
trial was had. S ee S tate v. McNeil , 2013 UT App 134, ¶ 16, 302 P.3d 844, aff’d , 2016 UT 3, 365 P.3d 699.

ANALYSIS

I. Eyewitness Identification

A. Failure to Present Expert Witness Testimony

Defendant contends that trial counsel was constitutionally ¶16 ineffective for failing to present an expert witness to testify about
the un reliabilit y of eyewitness identification s

. ‚To succeed on a claim of ineffective assistance of counsel, a defendant must show that trial counsel’s performance was deficient and that the defendant was prejudiced thereby.‛ State v. Hards , 2015 UT App 42, ¶ 18, 345 P.3 d 769 (citing Strickland v. Washington , 466 U.S. 668, 687 (1984)). ‚Because both deficient performance and resulting prejudice are requisite elements of an ineffective assistance of counsel claim, a failure to prove either element
defeats the claim. ‛ Id. ( citing Strickland , 466 U.S. at 697). To
demon strate deficient performance, ‚ the defendant must overcome the presumption that, under the circumstances, the challenged action might be c onsidered sound trial strategy. ‛
Strickland , 466 U.S. at 689 (citation an d internal quotation marks omitted)

. ‚In order to ‘eliminate the distorting effects of hindsight,’ our examination of an attorney’s tactical decisions must ‘evaluate the conduct from counsel’s perspective at the
time’‛ of the now

- challenged decision. Burke v. State , 2015 UT App 1, ¶ 21, 342 P.3d 299 (quoting Strickland , 466 U.S. at 689).

Here, trial counsel testified at the rule 23B remand ¶17 hearing . The trial court then found that trial counsel had ‚consciously decided to not consult with an eyewitness
ident ification expert before trial or ca ll such an expert at trial.‛ The question before us is therefore whether trial counsel’s
conscious decision not to consult or call an eyewitness

-State v. King

20130223

- CA 7 2017 UT App 43 identification expert amounted to deficient performance, i.e.,
whether that decision could not have be en considered ‚ sound trial strategy ‛ at the time it was made

. See Strickland , 466 U.S. at 689; see also , e.g. , State v. Lee , 201 4 UT App 4 , ¶ 13

, 318 P.3d 1164 ( discussing deficient performance in the context of failure to call

a particular witness) . This question requires us to consider the
then

- apparent advantages and disadvantages of introducing an eyewitness

- identification expert’s testimony as well as the advantages and disadvantages of not doing so

.

The United States Supreme Court and the Utah Supreme ¶18
Court have recognized that ‚‘the vagaries of eyewitness
identification are well

- known; the annals of criminal law are rife
with instances of mistaken identification.’‛ State v. Long , 721 P.2d 483, 491 (Utah 1986) (brackets omitte d) (quoting United States v.
Wade , 388 U.S. 218, 228 (1967)). ‚Decades of study, both before and particularly after Long , have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present .‛ State v. Clopten , 2009 UT 84, ¶ 15, 223 P.3d 1103. ‚*T+here is little doubt that juries are generally unaware of [the] deficiencies in human perception and memory and thus give great weight to eyewitness identifications. Indeed, jurie s seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy.‛ Id. (citation omitted).

The Utah Supreme Court has noted that expert testimony ¶19
about the deficiencies of eyewitness identi fication can be helpful to juries and shoul d therefore routinely be admitted

. Id. ¶ ¶ 1 6

, 49

. However, such expert testimony does not always benefit the
defendant. When the factors that impact the reliability of eyewitness testimony

— ‚such as the amount of t ime the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit’s appearance, and the presence of a weapon or other distr a ctions‛

— weigh in favor of a reliable identification, ‚expert testimony actually makes jurors more likely to convict.‛ See id. ¶¶ 15, 20. As a result, when anState v. King

20130223

- CA 8 2017 UT App 43 eyewitness

- identification expert’s testimony is likely to reinforce the credibility of identifications made by eyewitnesses, declining to bring the expert to the witness stand may be sound trial

s trategy. Consequently

, trial counsel’s failure to call such an expert as a witness does not necessarily translate into a finding
of deficient performance.

In Clopten , the Utah Supreme Court identified a ¶20
nonexhaustive list of factors that may affect the reliability of an eyewitness identification and divided that list into three

cate go ries : those relating to the eyewitness, those relating to the event witnessed, and those relating to the identification itself. See
id. ¶ 32 n. 22. The first category includes ‚factors such as uncorrected visual defects, fatigue, injury, intoxication, presence of a bias, an exceptional mental condition

. . . , age

. . . , and the race of the eyewitness relati ve to the race of the suspect.‛ Id. The second catego ry includes ‚the effects of stress or fright, limited visibility, distance, distractions, the presence of a weapon

. . . , disguises, the distinctiveness of the suspect’s appearance, the amount of attention given to the event by the eyewitness, and
whether the eyewitness was aware at the time that a crime was occurring.‛ Id. And the third category includes ‚such factors as the length of time between observation and identification, any instances in which the eyewitness failed to identify the suspect

or gave an inconsistent description, the value of lineups compared to showups, the value of photo identifications compared to in

- person identifications, and any exposure of the eyewitness to influences such as news reports or interaction with
other witnesses.‛ Id. The third category also includes ‚potentially suggestive police conduct, such as the instructions given to the eyewitness by police, the composition of the lineup, the way in which the lineup was carried out, and the be haviors of the person conducting the lineup.‛ Id. Not every Clopten factor

is present in every case nor are the factors always of equal weight; consequently, determining the value of eyewitness

identification expert testimony is more complex than simply tallying the number of factors suggest ing reliability and th e number of factors suggesting unreliability.State v. King

20130223

- CA 9 2017 UT App 43 Wife and Officer were the two eyewitnesses , and both ¶21
testified at the rule 23B hea ring on remand. Defendant’s proposed eyewitness

- identification expert, Dr. Dodd, then explained how he would have interpreted their testimony at trial with respect to the Clopten factors . The trial court entered findings regarding what Wife and Officer w ould have testified
to at trial had they been questioned about Clopten factors and regarding Dr. Dodd’s i nterpretation . We must defer to the se factual findings. See State v. Patterson , 2013 UT App 11, ¶ 7, 294
P.3d 662.

According to the trial court’s factual findings, Dr. Dodd ¶22
would have testified that some factors suggested that the eyewitness identification s were unreliable : (1) neither Wife nor Officer viewed the suspect for a lengthy period of time, (2) the showups f ocused exclusively on Defendant ( as op posed to
multi

- suspect lineups), (3) the eyewitnesses did not provide

‚statement [ s ] of certainty‛ at the time of the identifications, and (4) when she spotted Victim’s car, Wife had a poor angle from which to view the suspect. The court further found that , on

cross

- examination, Dr. Dodd would ha ve testified that other factors suggested that the identificatio ns were reliable : (1) both eyewitnesses observed the suspect in daylight; (2) both eyewitnesses were of the same race as the suspect; (3) neither eyewitness was impaired by fatigue ; (4) neither eyewitness was impaired by dru g use; (5) neither eyewitness wa s impaired by alcohol; ( 6 ) neither eyew itness suffered from uncorrected visual defects; ( 7 ) neither eyewitness suffered from an exceptional mental condition; ( 8 ) neither eyewitness was distracted by a weapon; ( 9 ) neither eyewitness’s observation was impaired by a disguise ; ( 10 ) neither eyewitness was under any marked degree of stress; and ( 11 ) both eyewitnesses had particular reasons to pay attention to the suspect

— Wife was trying to see who was driving her husba nd’s truck and Officer was trying to locate and stop the stolen truck. Based on these factual findings, t he trial

court came to the legal conclusion that trial counsel ‚made an informed, reasonable strategic decision that an eyewitness identification exper t would not be helpful to the defense butState v. King

20130223

- CA 10 2017 UT App 43 would instead likely end up hurting it.‛ In so concluding, the
trial court appears to have credited trial counsel’s testimony that she had consciously decided not to call an eyewitness identification expert to the stand because she ‚was concerned that it would actually provide more credibility to the State’s

witnesse s‛ and because an expert’s testimony on all of the Clopten factors could be ‚used against [Defendant] to show there actually wasn’t a pro blem with the i dentification.‛

Defendant contends that this conclusion was erroneous as ¶23 a matter of law. But his argument in this regard merely highlights that some of the expert’s t estimony would have undermined the reliability of the identifications made by Wife
and Of ficer . Defendant does not men tion that other portions of the expert’s testimony may have reinforced the credibility of the eyewitnesses by suggesting that their identifications were in fact
reliable. Nor does Defendant explain why , or even claim that

, the helpful aspects of the expert’s tes timony would have outweighed its harmful aspects

. See State v. Heywood , 2015 UT App 191, ¶ 29, 357 P.3d 565 ( evaluating the reasonableness of a trial counsel’s decision not to call an eyewitness identification expert by weighing the factors suggesting eyewitness reliability against the factors suggesting unreliability). Accordingly,
Defendant has failed to show error in the trial court’s conclusi on that trial counsel performed reasonably in deciding that the
harms brought about by presenting expert testimony outweighed the benefits of such testimony in this case. 3

3 . In Defendant’s pre

- remand brief, he states that ‚*t+he fact that each party may be able to benefit from the expert witness does not diminish the court’s holding and requirement ‘that, in cases where eyewitnesses are identifyi ng a stranger and where one or more established factors affecting accuracy are present, the testimony of an eyewitness expert will meet rule 702’s requirement to ‚assist the trier of fact.‛’‛ (Quoting State v. Clopten , 2009 UT 84, ¶ 32, 223 P.3d 1103.) But rule 702 of the Utah (continued...)State v. King

20130223

- CA 11 2017 UT App 43 Moreover, we can see no such error. The Utah Supreme ¶24
Court has explicitly recognized that unfavorable eyewitness

identification expert testimony ‚makes jurors more likely to

convict.‛ See State v. Clopten , 2009 UT 84, ¶ 20, 223 P.3d 1103. We therefore agree with the trial court that trial counsel’s election to forgo expert testimony was s ound trial strategy when trial counsel reasonably determined that the testimony was likely to be more harmful than helpful to the defense.

B. Failure to Consult an Expert

Defendant also contends that trial counsel’s performance ¶25
was deficient because ‚trial co unsel failed to fulfill her duty to conduct an adequate investigation of the fac ts and evidence in
this case.‛ But Defendant does not explain why he believes trial
counsel’ s investigation was inadequate. In fact, while he does cite supporting case law, Def endant does not tie that case law to any of the facts of his case. ‚An appellate court is not a depository in which a party may dump the burden of argument
and research.‛ Allen v. Friel , 2008 UT 56, ¶ 9, 194 P.3d 903 (brackets, citation, and internal quota tion marks omitted)

. Accordingly, t his conclusory cont ention is inadequately briefed,

s ee Utah R. App. P. 24(a)(9), and we reject it.

In any event, to the extent Defendant is arguing that trial ¶26 counsel should have consulted an eyewitness

- identification

expe rt before determining whether the expert’s testimony would
have be en more harmful than helpful , that argument fails on its

(...continued) Rules of Evidence governs only the admissibility of expert testimony, and Clopten did not transform admissible expert testimony into required expert testimony. The issue of whether Dr. Dodd’s testimony would have been legally admissib le sheds no light on whether the admission of that (seemingly harmful) testimony was desirable, or whether trial counsel was required
to seek its admission.State v. King

20130223

- CA 12 2017 UT App 43 merits . ‚The Sixth Amendment to the United States Constitution
does not require counsel to fully investigate every potential
lead .‛ Burke v. State , 2015 UT App 1, ¶ 20, 342 P.3d 299 (emphasis in original) (brackets, ellipsis, citation, and internal quotation marks omitted). Rather, ‚c ounse l has a duty to make
reasonable investigations or to make a reasonable decision that makes part icular investigations unnecessary.‛ Strickland v. Washington , 466 U.S. 668, 691 (1984). ‚*S+trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the
limitations o n investigation.‛ Id. at 690

– 91; see also State v. Montoya , 2004 UT 5, ¶ 24, 84 P.3d 1183 (‚If counsel has reason to believe that pursuing certain evidence would be fruitless or even harmful, a tactical decision not to investigate may indeed be
reasonable. ‛ (Citation and internal quotation marks omitted))

.

O n rule 23B remand, the trial court found that trial ¶27 counsel was experienced, having practiced law for over twenty years; that trial counsel was ‚generally familiar‛ with ‚the issues surrounding eyewitnes s identifications‛; and that trial counsel had ‚consulted with eyewitness identification experts in several of her past cases.‛ The trial court noted that counsel had questioned such experts in some cases but, in others, had ‚consciously chosen not to call eyewitness experts to testify at trial because, under the circumstances, she believed the expert’s testimony would not have been helpful to the defense.‛

Here, t rial counsel compared her knowledge of the ¶28 Clopten factors to the facts of Defendant’s case an d determine d that calling an eyewitness

- identification expert to the stand

wo uld be detrimental to the defense. Trial counsel recounted, ‚In fact, my concern was that if I brought an expert in, it actually could have been turned against us and created more of a problem for the defense.‛ Specifically, trial counsel explained
that the fact that the eyewitnesses wer e of the same race as Defendant, that they saw him in daytime , that there was no weapon involved, and that not h ing obscured Defendant’s face

, led counsel to conclude that an eyewitness

- identification expert’sState v. King

20130223

- CA 13 2017 UT App 43 testimony ‚would actually provide more credibility to the State’s witnesses than it would be helpful in the defense .‛ In light of
trial counsel ’s familiarity with eyewit ness

- identification issu es and her previous consultations, we do not think trial counsel was required to consult an expert to make a reasonable determination regarding trial strategy

. 4

We conclude that the trial court was correct in ruling that ¶29
trial counsel did not perform defic iently when she declined to introduce what appeared to be testimony harmful to Defendant.

4 . At oral argument before this court, Defendant also suggested
that trial counsel was ineffective for failing to consult an eyewitness

- identification expert with regard to the suggestiveness of the showup

— i.e., ‚whether the witness’s identification was the product of suggestion‛ as a result of the use of a single

- suspect showup rather than a multi

- susp ect lineup. See State v. Ramirez , 817 P.2d 774, 784 (Utah 1991) (ellipsis omitted) (expressing concern with the ‚blatant suggestiveness of the showup‛ procedure). But the trial court found that trial
counsel was familiar with the Clopten factors, and the

s uggestiveness of a poorly conducted showup is one of the Clopten factors. We cannot say it was outside the ‚wide range of reasonable professional assistance‛ for an attorney, familiar with those factors and confronted with these circumstances, to decide

th at it was unnecessary to consult an expert before determining that the benefits of expert testimony regarding the suggestiveness of the showup would be outweighed by the expert’s accompanying cross

- examination testimony that the
other Clopten factors suppo rted the eyewitnesses’ identifications. See Strickland v. Washington , 466 U.S. 668, 689 (1984) (explaining that, for ineffective assistance of counsel purposes, deficient performance exists only when counsel’s conduct falls outside the ‚wide range of reaso nable professional assistance‛).State v. King

20130223

- CA 14 2017 UT App 43

II. Courtroom Logistics

Defendant contends th at the trial court ‚erred in having ¶30 Defendant appear at trial before a jury wearing handcuffs with a
uniformed and armed offi cer sitt ing directly behind him.‛

A. Presence of a Uniformed Officer

A uniformed officer sat directly behind Defendant during ¶31 jury selection and opening state ments . T rial counsel objected to that arrangement before the jury re

- entered the room for the evidence phase of trial

. T he trial court asked the officer to sit
further back in the gallery , and trial counsel acquiesced to this
solution. Thus, the record does not support Defendant’s assertion that the jury saw ‚a uniformed and armed officer

sitt ing directly behind [Defendant] ‛ during the trial. By agreeing to the court’s proposed solution, trial counsel waived appellate

review. See State v. Binkerd , 2013 UT App 216, ¶ 21, 310 P.3d 755 ; see also State v. McNeil , 2013 UT App 134, ¶ 23, 302 P.3d 844 (‚A claim is not preserved for appeal if a party initially ob jects but later, while ‘the wheel’s still in spin,’ abandons the objection and stipulates to the court’s intended action.‛ ( Q uoting Bob Dylan, The Times They Are A

– Changin’ (Columbia Records , 1964)) ), aff’d , 2016 UT 3, 365 P.3d 699

.

To the extent that the jury saw the officer dur ing jury ¶32 selection and opening state ments, counsel did not raise an objection or move for a mistrial. Because De fendant’s challenge

is thus unpreserved

, he seeks plai n

- error review

. See State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346 (‚As a general rule, claims not raised before the trial court may not be raised on appeal.‛)

. ‚The plain error standard of review requires an appellant to
show the existence of a harmful e rror that should have been
obvious to the district court.‛ State v. Waterfield , 2014 UT App 67, ¶ 18, 322 P.3d 1194.

Defendant argues that this alleged error was obvious ¶33 ‚because Defendant’s right to a fair and impartial trial and theState v. King

20130223

- CA 15 2017 UT App 43 court’s duty to affirmatively afford him this right under the
aforementioned circumstances were well settled at the time of

tria l.‛ However, the mere presence of one or more additional
uniformed officers at a trial is not an error that should have been
obvious to the tria l court. T here may be compelling secu rity

concerns necessitating extra safety measures , and a j udge has no affirmative duty to determine the appropriate number o f officers
for each trial and limit the number present accordingly. Cf. Holbrook v. Flynn , 475 U.S. 560, 570

– 71 (1986) (concluding that

, during a trial of six codefendants, the presence of ‚four uniformed state trooper s ‛ ‚ quietly sitting in the first row,‛ in addition to two deputy sheriffs and ‚six Committing Squad officers,‛ did not create an unac ceptable risk of prejudice, because ‚*f+our troopers are unlikely to have been taken as a sign of anything other than a normal official concern for the safety and order of the proceedings

. ‛ ); id. at 571 (‚Even had the jurors been aware that the deployment of troopers was not common practice in Rhode Island, we cannot believe that the use of the four troopers tended to brand respondent in their eyes with an unmistakable mark of guilt.‛ (citation and internal quotation marks omitted)). We conclude that Defend ant cannot establish plain error, because allowing a uniformed officer , in addition to the assigned courtroom security officer, to sit behind Defendant during jury selection and opening state ments was not an error that should have been obvious to the trial court.

B. Restraints

Absent compelling security reasons, ‚*t+he rule that a ¶34 defendant be tried in the ‘garb of innocence’ has generally been extended to include a defendant’s right to be tried without being shackled, chained, bound, handcuffed, gagged, or ot herwise physically restrained.‛ State v. Mitchell , 824 P.2d 469, 473 (Utah Ct. App. 1991)

. But see State v. Yocum , 2006 UT App 334U, para. 4 (‚If necessary to secure the courtroom, a trial court may even require a defendant t o be shackled.‛).State v. King

20130223

- CA 16 2017 UT App 43 T rial counsel noted before trial, ‚My client’s got handcuffs ¶35 on,‛ but di d not obje ct to that situation. Only after the State
rested its case and Defendant e lected to testify in his defense did trial counsel raise an objection. Specifically, both the trial c ourt and trial counsel were concerned that Defendant ‚walk*ing+ up
there‛ to the witness box would be problematic. The solution they hit upon was ‚to have him seated [in the witness box] and sworn in before the jury comes in.‛ 5 Trial counsel also
considere d whether Defendant’s restraints would be visible i f

every one stood for the jury to exit. She noted, ‚I was just looking to see how he stands up , so when the jury goes to leave and he stands up, is that going to be noticeable, and I don’t see that it is.
S o I think we’re okay.‛

The State argues that the concern expressed by the trial ¶36 court and trial counsel regarding Defen dant moving about the

courtroom and their lack of concern regarding Defendant sitting
at the counsel table or at the stand indicate that ‚despite *trial counsel’s+ offhand reference to ‘handcuffs’ before [ the ] trial began, what actually occurred at trial was some form of leg restraint that would only be visible to the jury if it saw him walking.‛ We agree. Trial counsel’s concern with court room logistics s hows that she was not only alert to the prejudice
associated with r estraints but also that she actively raised objections and took steps to prevent that prejudice from accruing . It does not seem plausible that trial counsel would

express concern with the visibility of Defendant’s restraints if he walked across the courtroom while ignoring the visibil ity of
handcuffs throughout trial while Defendant was at the counsel table or being sworn in. And the record is devoid of any
indication that any kind of restraint was visible to the jury after the precautions taken by the court and counsel.

5 . The record reflects that Defendant was in the witness box when the jury entered the courtroom and sworn in after the jury
was seated.State v. King

20130223

- CA 17 2017 UT App 43 We conclude that the record does not support ¶37 Defendant’s assertion that the jury saw a uniformed officer sitting behind him during trial

, and we also conclu de that there was no plain error in allowing a uniformed officer to sit behind Defendant during jury selection and opening arguments. We further conclude that there is no record support for Defendant’s

assertion that his restr aints were visible to the jury

. We therefore
do not further address his contention based on the possib ility
that he suf fered resulting prejudice

. 6

III. Cumulative Error

Defendan t contends that the cumulative

- error doctrine

, ¶38
also known as the cumulative

- prejudice doctrine, mandates

vacatur o f his convictions. ‚Under the doctrine of cumulative prejudice, we will reverse ‘i f the cumulative effect of the several
errors undermines our confidence that a fair trial was had. ’ ‛ See State v. Campos , 2013 UT App 213, ¶ 61 , 309 P.3d 1160 ( ellipsis omitted) (quoting State v. Dunn

, 850 P.2d 1201, 122 9 (Utah 1993))

.

‚ ‘In assessing a claim of cumulative error, we consider all the identified errors, as well as any errors we assume may have
occurred.’‛ State v. Cheek

, 2015 UT App 243, ¶ 75 , 361 P.3d 679 (quotin g Dunn , 850 P.2d at 1229 ) . Because we have identified no errors amongst Defendant’ s claims , it follows that there can be

n o prejudice resulting from multiple errors for us to consider cumulatively.

CONCLUSION

Trial counsel did not perform deficiently by relying on ¶39
her extensive understanding of eyewitness

- identification issue s

6 . Defendant does not argue that trial counsel was ineffective for acquiescing to the trial court’s proposed solutions to her objections or for failing to raise further objections in response to
those solutions.State v. King

20130223

- CA 18 2017 UT App 43 to evaluate the potential harms and pote ntial benefits of introducing expert testimony on that subject. Nor did t rial
counsel perform de ficiently by declining to inject testimony into
Defendant’s trial that she reasonably believed would be more harmful than helpful to his defense. Defendant did not preserve his challenge to the presence of a uniformed officer sitting in the audience galler y at trial

, and no exception to the preservation rule applies. Defe ndant’s factual claims regarding restraints and
the potentially prejudicial placement of the uniformed officer in the gallery during the presentation of the evidence are unsupported by the record

. And, i n the absence of error, the
cumulative

- error doctrine has no application.

Affirmed. ¶40