State v. Shepherd

• Decision Date: 13 August 2015
• Docket Number: No. 20130169–CA.,20130169–CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Skyler J. SHEPHERD, Defendant and Appellant.
• Court: Utah Court of Appeals

357 P.3d 598

2015 UT App 208

STATE of Utah, Plaintiff and Appellee

v.Skyler J. SHEPHERD, Defendant and Appellant.

No. 20130169–CA.

Court of Appeals of Utah.

Aug. 13, 2015.

Samuel P. Newton, Attorney for Appellant.

Sean D. Reyes and Ryan D. Tenney, Salt Lake City, Attorneys for Appellee.

Judge GREGORY K. ORME authored this Opinion, in which Judges STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

Opinion

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 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.

¶ 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 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, 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).

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, 2005 WL 1177063 (per curiam) (second alteration in original) (quoting Utah Code Ann. § 76–2–103(3) (LexisNexis 2003)). We 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, 416 Md. 1, 4 A.3d 991, 996 (2010).³ Thus, the evidence was sufficient to convict 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...