State v. Schultz

• Decision Date: 07 November 2002
• Docket Number: No. 20010775-CA.,20010775-CA.
• Citation: 2002 UT App 366,58 P.3d 879
• Parties: STATE of Utah, Plaintiff and Appellee, v. Troy Lynn SCHULTZ, Defendant and Appellant.
• Court: Utah Court of Appeals

58 P.3d 879

2002 UT App 366

STATE of Utah, Plaintiff and Appellee, v. Troy Lynn SCHULTZ, Defendant and Appellant.

No. 20010775-CA.

Court of Appeals of Utah.

November 7, 2002.

Linda M. Jones and Lisa J. Remal, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, and Kenneth A. Bronston, Assistant Attorney General, Salt Lake City, for Appellee.

Before DAVIS, ORME, and THORNE, JJ.

OPINION

DAVIS, Judge.

¶ 1 Defendant Troy Lynn Schultz (Schultz) appeals his conviction of arson, a third degree felony, in violation of Utah Code Ann. § 76-6-102(1)(b) (1999). Schultz argues that the trial court erred by allowing expert testimony concerning the use of canine accelerant detection. We affirm.

BACKGROUND¹

¶ 2 On August 6, 2000, Ms. Teresa Villegas took her three daughters and two sons in the family's van to pick up her husband at the restaurant where he worked. She went inside the restaurant with her daughters and left her sons in the van to watch TV. Approximately fifteen minutes later, a person knocked on the window of the restaurant and stated that a van was burning. When Ms. Villegas exited the restaurant, a man jumped from the roof of the building and landed close to her.

¶ 3 Meanwhile, a witness observed a brief fight between three individuals, one of whom was Schultz. Prior to the fight, Schultz exited a bar that was connected to the restaurant, another bar, and a barber shop. After the fight, Schultz remained outside and appeared to be looking on the ground for something. The witness then heard Schultz say, "I'm going to get you guys." A few minutes later, the witness saw a cloud of black smoke and believed that the bar was on fire. He also observed Schultz on the roof of the building appearing to place a cloth into a ventilation duct. The witness ran across the street, saw Schultz jump off the roof, and began chasing him.

¶ 4 Another witness observed the cloud of black smoke and decided to drive his motorcycle to the scene. Schultz ran past him and the witness heard a person yell, "Get him." The witness chased Schultz and, during the chase, Schultz allegedly stopped and faced the witness with a knife in his hand. The witness knocked the knife out of Schultz's hand and ripped Schultz's shirt. Schultz then took off. Shortly thereafter, the police apprehended Schultz. While the witness was speaking with one of the police officers, he overheard Schultz say that he "didn't mean to catch the van on fire," and that it was an accident.

¶ 5 A third witness was driving down the street and observed the van on fire. She saw a man standing next to the van. Just prior to trial, the witness was shown pictures of Schultz and determined that the man in the picture looked "very familiar ... [and] quite a bit like the gentleman that I had seen." The witness's twelve-year-old daughter saw a man "throwing like a rag, or a white napkin into the van." The daughter believed that the pictures of Schultz also looked like the man she had seen by the van, but she could not say for sure.

¶ 6 Officer Lisa Pascadlo was on duty and also observed a black cloud of smoke. Upon arriving at the scene, the officer was told by witnesses that a van had been set on fire with possibly two children inside. The witnesses described the suspect and told the officer the direction he had gone. The officer then met Schultz, who matched the description provided by the witnesses, and, after some struggling, placed him in custody. While in custody, Schultz stated that he "didn't mean to do it" and that he "didn't mean to hurt anybody."

¶ 7 Schultz was charged with aggravated arson, arson, and aggravated assault. The aggravated arson charge was subsequently dismissed.

¶ 8 During a motion hearing, the State requested that a dog named "Oscar," used by the Salt Lake Fire Department for fire investigation, be allowed in the courtroom during his handler's testimony so that the jury could view "[h]is mannerisms" and judge "his credibility as to ... the accuracy of his sniffs and detection." Schultz challenged Oscar's presence as irrelevant but the court ruled that Oscar could be present in a limited manner—i.e., not all day.

¶ 9 Prior to trial, Schultz raised concern that the State's experts—Jeffrey Long, Rex Nelson, and Jennifer McNair—would testify as to whether "a canine's smelling abilities are better than a lab's abilities" and that a sufficient foundation may not be established for such evidence. Schultz also expressed concern that a dog handler would be unable to properly compare a dog sniff with a lab test and believed that an expert in veterinary science or forensic use of dogs was more appropriate.

¶ 10 During trial, the State called Jeffrey Long to testify. Mr. Long is a chief investigator for the Fire Investigation Bureau with the Salt Lake City Fire Department. He testified that he had arrived at the van fire scene and began to investigate the fire. He further testified that he initially could not locate a point of origin but noticed some unusual burn patterns and determined that the fire had burned too fast and that there was too much damage for the amount of time the van was occupied. Mr. Long testified that he then requested the assistance of Investigator Rex Nelson and Oscar to help detect the presence of an accelerant.² Oscar made two alerts. Mr. Long took samples from the areas where Oscar alerted. Oscar then hit again on the same areas. After Oscar alerted, Mr. Long continued his investigation and acknowledged the V patterns³ and the collapsed roof as indications of the origin of fire in the area where Oscar alerted. ¶ 11 Based upon the information at the fire scene, Mr. Long concluded that the fire was intentionally set. He based his conclusion on burn patterns, wood underneath the carpeting in the van, the time involved, the fast growth of the fire, and the absence of a fuel load.

¶ 12 While testifying, Mr. Long discussed investigative techniques and the process for determining the origin and cause of fires. He acknowledged that canine accelerant detectors are used as investigative tools, specifically noting that "the canine is just a tool. It's no different than the shovel, . . . a trowel[,] or a visual or witnesses." Mr. Long testified that the canine is used to help investigators determine the area of a fire's origin and find out "why that fuel is there and what it's doing." Once the dog makes an alert, investigators take a sample and submit it to the Utah State Crime Lab. During his testimony, Mr. Long read from the National Fire Protection Association 921: Guide for Fire and Explosion Investigations (2001) (the 921), a fire investigation guide from which new fire investigators are tested. Particularly, he noted that the 921 specifies that

[t]he proper use of detection canines is to assist with the location of [a] selection of samples. In order for the presence or absence of an ignitable liquid to be scientifically confirmed in the sample, that sample should be analyzed by a laboratory.. . . Any canine alert not confirmed by laboratory analysis should not be considered validated.

In addition, Mr. Long stated that there are times when a dog will alert to an area but a subsequent laboratory test will not detect an accelerant. Mr. Long also noted the 921 suggests canine detection should be used in conjunction with other fire investigation techniques and not as a replacement. Furthermore, he testified as to studies conducted by Dr. J.D. DeHann concerning canine accelerant detection teams. Upon cross-examination, Mr. Long acknowledged an article that analyzed a test conducted between 1992 and 1994 that found accuracy rates among canines to be between 50% and 82%.

¶ 13 Schultz objected to Mr. Long's testimony concerning the 921's discussion of canines, the use of canines as an investigative tool, and the olfactories of a canine. He also challenged the qualifications of Dr. DeHann because the studies were not conducted by veterinarians. Schultz further objected to Mr. Long relying on studies that lacked "proper expertise [in] that you would have to be a veterinarian and have special training in the area of fire investigation." The trial court overruled Schultz's objections and ruled that the expertise of Mr. Long was sufficient and that a veterinarian was not necessary.

¶ 14 Oscar's handler, Rex Nelson, is an investigator for the Salt Lake County Fire Department and was called to testify about Oscar's training. He noted that Oscar underwent imprinting at the Bureau of Alcohol, Tobacco, and Firearms for six weeks, that Mr. Nelson underwent training for five weeks, and that Oscar receives additional training seven days a week. Mr. Nelson stated that prior to entering a fire scene, Oscar is calibrated, meaning that his nose is checked by placing a scent on an item and asking Oscar to find the odor. He also testified that Oscar will hit on an accelerant, sit, and stay until fed. Mr. Nelson then places pressure on the leash to make sure it is not a false positive.

¶ 15 Mr. Nelson testified that at this particular fire scene, Oscar made two alerts. Mr. Nelson then conducted a discrimination line⁴ where Oscar accurately hit on the previously alerted samples. The next day, Oscar alerted to Schultz's socks and shoes, but not to his shorts.

¶ 16 Jennifer McNair, an employee of the State Crime Laboratory, testified that tests conducted on the samples from the canine alert, Schultz's socks, and Schultz's shoes did not detect any ignitable liquid residue. Although the shoes tested positive for toluene, a solvent used to dissolve paint or other plastics but also used as a glue in shoes, Ms. McNair testified that she believed that the toluene came from the glue in Schultz's shoes.

¶ 17 At the conclusion of the trial, the jury found Schultz guilty of arson and not guilty of aggravated assault. Schultz appeals.

ISSUE AND STANDARD OF REVIEW

¶ 18 Schultz contends that the trial court...