State v. Fraughton

556 P.3d 118

2024 UT App 118

STATE of Utah, Appellee,

v.Troy P. FRAUGHTON, Appellant.

No. 20210810-CA

Court of Appeals of Utah.

Filed August 15, 2024

Fourth District Court, Provo Department, The Honorable Christine S. Johnson, No. 191402497

Staci Visser and Ann Marie Taliaferro, Salt Lake City, Attorneys for Appellant

Sean D. Reyes and Jonathan S. Bauer, Salt Lake City, Attorneys for Appellee

Judge Amy J. Oliver authored this Opinion, in which Judges Ryan M. Harris and John D. Luthy concurred.

Opinion

OLIVER, Judge:

[1] ¶1 Troy P. Fraughton was arrested after he caused a collision while driving on the wrong side of the road. A jury convicted Fraughton of driving under the influence, a third-degree felony due to his prior DUIs. Fraughton now appeals, asserting that the trial court abused its discretion in allowing police officers to offer opinion testimony as to whether Fraughton was incapable of safely operating a motor vehicle. Fraughton also moves for a remand under rule 23B of the Utah Rules of Appellate Procedure to develop a record to support an ineffective assistance of counsel claim. For the reasons set forth below, we deny the rule 23B motion and affirm Fraughton’s conviction.

BACKGROUND ¹

¶2 On a clear June afternoon in 2019, Fraughton caused a low-speed, head-on collision when he drove down the wrong side of Center Street in Spanish Fork, Utah. The road had two lanes in each direction with a turning lane in the middle. The driver of the other vehicle (Driver) was traveling east in the left lane when he saw Fraughton’s car crest the hill, going west in Driver’s lane. Traffic prevented Driver from moving to the right, so he drifted into the center turn lane to avoid Fraughton’s oncoming car. But as Driver moved, so did Fraughton, and the cars collided.

¶3 Driver got out of his car to see if Fraughton was okay. As he approached Fraughton’s vehicle, he overheard Fraughton on his phone saying, "I’m going to jail." Driver was familiar with how people "under the influence of alcohol" look and act, and he thought Fraughton "looked like he was impaired." Fraughton "kind of slurred his words" and suggested to Driver that they both leave the scene. Driver told Fraughton he would not leave until officers arrived. Driver then went back to his vehicle where he told his passenger (Passenger), "I think lie’s been drinking. He wants to go. You need to call the police."

¶4 The first officer to arrive at the scene (Officer 1) had over twenty years of experience, including "thousands" of situations involving individuals under the influence of alcohol. Officer 1 saw Fraughton’s vehicle "touching bumpers" with Driver’s, halfway in the left-turn lane and partially blocking one lane of eastbound traffic. As Officer 1 approached Fraughton’s vehicle, he heard Fraughton on his phone saying, "Mom, come and get me from the jail." Officer 1 smelled the "distinct [odor] of an alcoholic beverage emanating from" Fraughton.

¶5 Officer 1’s body camera footage recorded his interaction with Fraughton. Officer 1 asked Fraughton whether he "had a little too much to drink." Fraughton denied drinking anything that day. Officer 1 pointed out that he could smell it on Fraughton, that his eyes were bloodshot, that his face was red and puffy, and that he was struggling to keep his balance and was holding onto the car during the conversation. Then Officer 1 asked Fraughton whether he was "gonna stick with [his] story" that he had not been drinking, and Fraughton replied, "Yep."

¶6 Officer 1 asked dispatch if there were any "new guys that want[ed] to do a DUI for practice," explaining, "it’s an easy one." A newer officer (Officer 2) responded and arrived on the scene. He smelled alcohol "coming from inside [Fraughton’s] vehicle and off his breath" and noticed Fraughton’s speech was "[s]omewhat slurred." According to Officer 2, Fraughton stumbled as he exited his vehicle and then "turned around and placed his hands behind his back and said, ‘Let’s go.’ " Officer 2 understood that as meaning, "[L]et’s go to jail." Fraughton was transported to the Spanish Fork police station for field-sobriety tests to be conducted on "a smoother surface" than on the inclined road where the accident occurred.

¶7 At the station, Fraughton became "belligerent" and "very agitated." Refusing to take the tests, he was transported to the Utah County Jail. Officer 2 obtained a warrant for a blood draw, and a forensic nurse (Nurse) drew Fraughton’s blood, approximately two hours after the accident. After the blood sample was tested at the state lab, its blood alcohol concentration (BAC) was determined to be .27—over five times the legal limit.

¶8 Fraughton was charged with driving under the influence of alcohol, a third-degree felony due to his prior convictions.² The case proceeded to a three-day jury trial. Driver and Passenger testified about the collision and their interactions with Fraughton. Officer 1 also testified about the events recounted above, and his body camera footage was played for the jury. Officer 1 reiterated why he believed Fraughton was intoxicated, describing how Fraughton smelled like alcohol, had bloodshot and watery eyes, a red and puffy face, and displayed an "inability to balance without holding on to something."

¶9 The State concluded its direct examination of Officer 1 by asking if Fraughton was "capable of safely operating a vehicle." Fraughton’s counsel (Counsel) objected, and the. court allowed the testimony as a lay opinion under rule 701 of the Utah Rules of Evidence. Officer 1 then testified that he "would not have allowed [Fraughton] to get back in that car and drive that car."

¶10 The State then presented testimony from Officer 2 and played his body camera footage for the jury. The State asked Officer 2 about his opinion on whether Fraughton was "capable of safely operating a vehicle" based on his "interactions with him on that day" and on his "observations of him" and his "experience dealing with DUIs." Counsel objected, asserting that the question asked for "a legal conclusion." The State responded that, similar to Officer 1’s opinion, Officer 2’s opinion "comes under Rule 701." The court agreed and allowed the question of whether Fraughton "was able to safely operate a vehicle," to which Officer 2 responded, "No, he was not." When asked why not, Officer 2 explained that it "was obvious [Fraughton] was under the influence of alcohol or some sort of substance" and "was involved in an accident," so it "did not appear as if he was able to safely operate a vehicle."

¶11 Nurse testified that, at the time of trial, she had over fourteen years of experience in drawing blood and taking urine samples for suspected DUIs and had performed "a few thousand" blood draws for DUI cases. Nurse described how she took the two vials of Fraughton’s blood, placed them in the middle of a seal, and secured the seal so it was "completely sealed over the sample." This method, she explained, is designed so "if there’s any contamination at all, … it would rip the seal."

¶12 Nurse continued to elaborate on the blood sample’s chain of custody, stating that she placed the sealed vials inside an envelope she then sealed before placing it inside a biohazard bag, which she also sealed. The triple-sealed sample was then placed in Nurse’s secured lockbox, the key to which she kept on her key ring, and then kept in a mini-fridge at her home until her supervisor picked it up. Nurse drew Fraughton’s blood at 4:53 p.m. on June 15, and her supervisor picked up the sample at 2:25 p.m. on June 17. The following day, her supervisor signed the sample over to the post office at 2:20 p.m., where it was mailed to the state lab.

¶13 The lab toxicologist who analyzed Fraughton’s sample (Toxicologist) testified that Fraughton’s BAC was .27 and estimated a 200-pound man would have to drink approximately twelve standard drinks of alcohol to reach that BAC level. She explained how the lab typically processes samples: the samples routinely arrive by mail, and two employees at the lab process them by checking the information on the samples against the "toxicology analysis request form" and then entering that information into the lab’s computer system. Toxicologist explained that anything abnormal about the sample would be entered at that time. The form for Fraughton’s sample was properly processed and did not indicate there was anything abnormal about the sample.

¶14 The jury convicted Fraughton of DUI. Using a special verdict form, the jury found Fraughton guilty on two separate grounds. First, they found that Fraughton "had sufficient alcohol in his body that a subsequent chemical test showed that he had a blood alcohol concentration of .05 grams or greater at the time of the test." Second, they found that Fraughton "was under the influence of alcohol to a degree that rendered him incapable of safely operating a vehicle."

¶15 The trial court sentenced Fraughton to a suspended prison sentence "not to exceed five years" and placed him on probation for thirty-six months. Fraughton was also given a 210-day jail sentence and ordered to have an ignition interlock device installed when he was released.

ISSUES AND STANDARDS OF REVIEW

¶16 Fraughton requests that we remand his case under rule 23B of the Utah Rules of Appellate Procedure for entry of findings of fact to support an argument that Counsel rendered ineffective assistance in (1) failing to investigate the chain of custody of the blood sample, (2) failing to file a motion challenging the admissibility of the blood sample based on potential issues with the chain of custody, and (3) failing to consult and use an expert regarding the blood evidence. A rule 23B remand is "available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Utah R. App. P. 23B(a).

[2, 3] ¶17 Fraughton also contends that the trial court abused its...