State v. Lievanos , 298 P.3d 662 ( 2013 )

2013 UT App 49_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ISAAC LIEVANOS,
Defendant and Appellant.
Opinion
No. 20110432‐CA
Filed February 28, 2013
Third District, Salt Lake Department
The Honorable Royal I. Hansen
No. 081901868
David M. Corbett, Steve S. Christensen, and Craig L. Pankratz,
Attorneys for Appellant
John E. Swallow and John J. Nielsen, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion,
in which JUDGES CAROLYN B. MCHUGH
and J. FREDERIC VOROS JR. concurred.
ORME, Judge:
¶1 Defendant appeals from convictions on five counts of
aggravated kidnapping, see Utah Code Ann. § 76‐5‐302 (LexisNexis
2012); one count of aggravated burglary, see id. § 76‐6‐203; and one
count of aggravated robbery, see id. § 76‐6‐302, all first degree
State v. Lievanos
felonies, each with an in‐concert enhancement, see id. § 76‐3‐203.1
(LexisNexis 2008).1 We affirm.
BACKGROUND
¶2 Around midnight on March 3, 2008, a woman woke to a
large crashing sound and was suddenly pulled from her bed and
thrown to the floor. She and four others—her son, two of his
friends, and another resident of the home—were forced into the
living room, at gunpoint, by intruders. Demanding money and
drugs, the intruders tied the victims up with electrical cords and
ransacked the house. After taking electronics, tools, and jewelry,
they fled out the back door when one of the intruders answered his
cell phone and yelled, “Policia!”
¶3 Meanwhile, a neighbor had seen two suspicious looking
cars—one white and one gray—arrive at the residence, had seen
several men emerge from the vehicles and rush into the house with
weapons, and had instructed his sister to call the police, who soon
responded. The victims reported that at least two of the intruders
had flashlights and wore masks. The victims said they had been
repeatedly told that if they looked up they would be shot. Based on
the various voices they heard, they believed there were at least
three men involved. The victims said the cell phone’s ringtone
sounded like Spanish or mariachi music. One of the intruders was
reported to have worn white or off‐white gloves. White wax had
been spilled all over one of the rooms in the home after one of the
1. The other statutory provisions have not been materially changed
since the incident at issue in this case. Accordingly, we cite the
current version of the Utah Code with respect to those provisions,
as a convenience to the reader. Section 76‐3‐203.1 has, however,
been significantly amended. See Utah Code Ann. § 76‐3‐203.1
(LexisNexis 2012). Accordingly, we cite the version of this
provision that was in effect at the time of the incident. See id. § 76‐3‐
203.1 (LexisNexis 2008).
20110432‐CA 2 2013 UT App 49State v. Lievanos
intruders upset a candle warmer while using its cord to tie up the
victims.
¶4 Police began searching for the intruders and found
Defendant and another man hiding behind a shed several blocks
away. Defendant had a cell phone with a ringtone that played
Spanish or mariachi music.2 Defendant’s companion had a
flashlight in his pocket and white wax all over his pants. Among
other items, a shotgun, a camera that had been stolen from the
house, a flashlight, a ski mask, and a pair of off‐white gloves were
found scattered in nearby yards.
¶5 Defendant initially told police that he and his companion
were in the area looking for car stereos to steal but had not been
involved with the home invasion and kidnapping. At trial,
however, Defendant testified that he had lied to police the night of
the robbery. He claimed that he had actually gone to a party that
night. While at the party, some members of the group decided to
go somewhere else. Defendant testified that he decided to go along
with them and climbed into a gray car. The vehicle was following
a white car when Defendant overheard the others talking as if they
were plotting something. Because he was “the kind of person that
does not like to be in trouble,” Defendant asked to be let out, and
he wandered around the neighborhood for fifteen or twenty
minutes. Defendant said he then saw some of the others running
toward him and yelling for him to run as well. He began to run, hid
behind a shed, and was arrested soon after.
¶6 At trial, testimony was given by a DNA analyst from the
Utah State Crime Lab who had processed some of the evidence.
She had initially concluded that DNA found on the ski mask and
the white gloves had a significant statistical match to Defendant’s
DNA profile. She outlined her findings in an official report
submitted on August 3, 2009, and a corrected report a few days
2. Defendant denied at trial that his ringtone was mariachi music,
pointing out that it did not include any music produced by brass
instruments.
20110432‐CA 3 2013 UT App 49State v. Lievanos
later. The corrected report took into account updates to crime lab
software that had not been installed on the analyst’s computer the
first time she ran the report. The analyst followed Utah State Crime
Lab procedures by including her findings in a formal report that
was technically reviewed and signed by another DNA expert.
¶7 After the second report was issued but before trial, new
recommendations for how statistical chances of DNA matches
should be calculated were issued by the Scientific Working Group
on DNA Analysis Methods (SWGDAM). SWGDAM guidelines are
not mandatory but are followed by the Utah State Crime Lab as
general guidelines and viewed as best practices. A prosecutor
contacted the analyst prior to trial and asked if there would be any
change in the statistical match between Defendant’s DNA and the
evidence if the new SWGDAM recommendations were applied.
The analyst ran the new numbers and determined that there would
be a change. While the new statistical calculations did not exclude
a match between Defendant and one of the gloves and ski mask,
the numbers were now in a range considered scientifically
“inconclusive.” However, the new calculations still supported a
high statistical match between Defendant and DNA found on the
cuff of the other glove. According to the updated calculations, the
chances that the DNA found on this glove belonged to someone
other than Defendant ranged from 1 in 450 billion to 1 in 82
quadrillion.3 These estimates were reviewed and approved by
another crime lab employee, but a new formal report was not
issued.
3. To put these odds in perspective, 450 billion is roughly sixty‐
three times the current population of the Earth. See WorldPOPClock,
U.S. C E N S U S B U R E A U (Feb. 7, 2013, 3:25 p.m.),
http://www.census.gov/population/popclockworld.html. On the
other end of this statistical spectrum, eighty‐two quadrillion
is more than five thousand times the national debt. See The
Debt to the Penny and Who Holds It, BUREAU OF THE PUB. DEBT,
U.S. DEP’T OF THE TREASURY (Feb. 6, 2013, 11:30 a.m.),
http://www.treasurydirect.gov/NP/BPDLogin?application=np. In
other words, the glove fits.
20110432‐CA 4 2013 UT App 49State v. Lievanos
¶8 The analyst sent the requested numbers to the prosecutor in
an e‐mail rather than issuing a new formal report because “there
was no need to generate a new laboratory report” under the crime
lab’s practices. The analyst explained that the e‐mail did not
“replace what was done in 2009” because “[i]n 2009 the case was
finished, and it was under the correct guidelines at that time, and
it is not our practice or procedure to go back and update every
single report when SWGDAM or the FBI come through with a new
guideline.” She explained this policy exists because “[o]therwise,
we would always have to go back and rechange every report for
every single case. So there are times that we are asked to apply the
new guidelines just as a side issue to a case that was done in the
past.” She also explained that another technical review and formal
report were unnecessary because there had been no change to the
underlying DNA sample or data. While issuing a new, corrected
report is required when there is “deviation” or “nonconformance,”
all that had changed in this case was the recommended statistical
analysis for the previously—and correctly—gathered data.
¶9 Defendant made no objection to the analyst’s initial
testimony, her certification by the trial court as an expert witness,
or her use of the numbers sent by e‐mail during her testimony.
Instead, Defendant grilled the analyst about the reporting methods
she had used. Defendant then called his own DNA expert.
¶10 After both experts had finished testifying and been excused,
Defendant moved to exclude all of the analyst’s previous testimony
“under Rule 702.” Defendant did not explain which provision of
rule 702 of the Utah Rules of Evidence the analyst failed to meet or
the grounds for striking two days of testimony. Defendant merely
requested that the testimony be stricken and then quoted large
portions of rule 702. The trial court, apparently able to deduce the
essence of Defendant’s concern, addressed it thus: “[The analyst]
appears to be qualified and satisfies the requirements of Rule 702.”
As to her testimony and the report on which it was based, the trial
court determined that “the Defense has every right to raise
20110432‐CA 5 2013 UT App 49State v. Lievanos
questions regarding the adequacy of that report,” and ruled that its
credibility was an issue for the jury. Defendant now appeals.
ISSUE AND STANDARD OF REVIEW
¶11 Defendant claims the trial court abused its discretion in
failing to strike the testimony of the analyst. “The trial court has
wide discretion in determining the admissibility of expert
testimony, and such decisions are reviewed under an abuse of
discretion standard.” State v. Larsen, 865 P.2d 1355, 1361 (Utah
1993). We will only reverse if the “decision exceeds the limits of
reasonability.” Id.ANALYSIS
¶12 Defendant argues that by allowing the jury to determine the
credibility of the analyst’s report, “the trial court abandoned its
non‐delegable gatekeeping function and, therefore, abused its
discretion by failing to strike [the analyst’s] testimony.” Trial
courts, however, have only a “preliminary . . . obligation to
determine whether the proposed expert testimony satisfies a
‘threshold showing’ of reliability.” Gunn Hill Dairy Props., LLC v.
Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 33, 269 P.3d
980. This court has adopted the definition of “threshold showing”
found in the advisory committee note to rule 702 of the Utah Rules
of Evidence, i.e., “‘a basic foundational showing of reliability.’” Id.(quoting Utah R. Evid. 702 advisory committee note) (emphasis in
original). Meeting this threshold is only the “beginning of a
reliability determination,” however, and once the trial court has
determined expert testimony meets this initial showing of
reliability, “[i]t is up to the trier of fact to determine the ultimate
reliability of the evidence.” Id. (emphasis in original).
¶13 We conclude that the trial court did not exceed the limits of
reasonability by determining that the analyst’s testimony met the
preliminary threshold required under Gunn Hill Dairy. See id. ¶ 33.
20110432‐CA 6 2013 UT App 49State v. Lievanos
The analyst repeatedly testified that she followed the procedures
and guidelines established at the Utah State Crime Lab in
preparing the reports and calculations she shared at trial, and
Defendant does not challenge the validity of her methodologies or
calculations. In fact, the change in statistical analysis worked to
Defendant’s advantage because it excluded two bits of evidence
that the earlier analysis would have permitted. And again, the
changed analysis was only the result of applying new
recommendations from SWGDAM—a group the Utah State Crime
Lab looks to for guidelines, not mandates.
¶14 Defendant claims both experts testified that sending the new
statistical calculations by e‐mail and failing to have the new
numbers documented in a formal, technically reviewed report “fell
short of the generally accepted scientific standards and varied from
the state crime laboratory’s own standards.” But this is simply not
true. The analyst testified that the decision not to issue a new report
was in full conformity with the practices of the Utah State Crime
Lab. And while Defendant’s own DNA expert testified that “best
science” dictates following SWGDAM’s recommendation to have
results technically reviewed by another scientist, he also stated: “It
is important to note that these are guidelines. SWGDAM hasn’t
come out and said you have to adhere to these. [It] is not something
that a crime laboratory has to go and apply these. It is not forced.
It is not an absolute standard.”
¶15 While her testimony may have raised some questions of
ultimate reliability, as noted by the trial court, it was not
unreasonable for the trial court to find that the analyst’s testimony
demonstrated enough reliability to meet the “basic foundational
showing” required by Gunn Hill Dairy. See id. It was therefore also
entirely appropriate, and not an abandonment of its gatekeeping
function, for the trial court to leave the ultimate question of
credibility regarding the analyst’s testimony to the jury.
20110432‐CA 7 2013 UT App 49State v. Lievanos
CONCLUSION
¶16 Because we conclude the trial court did not abuse its
discretion by refusing to strike the DNA analyst’s testimony, we
affirm.
20110432‐CA 8 2013 UT App 49