State v. Althoff

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| 2006 Ur 48 |

This opinion is subject to revision before final
publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH

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State of Uabh, No. 20050269
Plaintiff and Petitioner,
Vv.
FILED
Tonya Althoff,
Defendant and Respondent. Septenber 8, 2006

Seventh District, Mbnticello
The Honorable Lyle R= Anderson
No. 021700082

Attorneys: Mark L. Shurtleff, Att’y Gen., Brett J. Del porto,
Asst. Att’y Gen., Salt Lake City, Craig C. Falls,
Blanding, for plaintiff
WlliamL. Schultz, Mab, for defendant

On Certiorari to the Wah Court of Appeals
DURRANI, Justice:

I NTRODUCTI ON

q1 In this case, we consider whether testinony as to the
quantity of nethanphetam ne typifying personal use is expert
testinony pursuant to rule 702 of the Uah Rules of Evidence and
therefore subject to the qualification and advance disclosure
requirenents associated wth that classification of testinwny.
VW conclude that fact or opinion testinony based on specialized
know edge nay be admtted only as expert testinony. W further
agree Wth the court of appeals that Chief Kent Adair’s testinony
at trial regarding personal use quantities of nethanphetamine was
expert testinony based on his specialized knowedge. Finally,
because it is not wthin the scope of the issue upon which ve
granted certiorari, we do not address the State’s alternative
argunent that we should reverse the court of appeals because it
was harmless error to admt Chief Adair’s testinony absent the

1 	2006 UT 49, ¶¶ 2-7, 147 P.3d 1176.
2 	State v. Althoff, 2005 UT App 69U, ¶¶ 2-3.
3 	State v. Cram, 2002 UT 37, ¶ 6, 46 P.3d 230.
4 	Alder v. Bayer Corp., 2002 UT 115, ¶ 20, 61 P.3d 1068.
5 	2006 UT 49, ¶ 1, 147 P.3d 1176.
No. 20050269 	2
required thirty days’ notice. 	We accordingly affirm the court of
appeals’ decision.
BACKGROUND
¶2 	The background in this case is the same as in the
companion case of State v. Rothlisberger 1 released concurrently
with this opinion. 	The only material difference is that, because
Respondent Tonya Althoff was the driver and owner of the car, she
was also charged with driving with measurable controlled
substance in the body, a class B misdemeanor; driving on a
suspended or revoked operator’s license, a class B misdemeanor;
and failure by new owner to secure new registration and new
certificate of title, a class C misdemeanor.
¶3 	Althoff was convicted by the jury on all charges
against her, and she timely appealed. 	The court of appeals
adopted its reasoning in its State v. Rothlisberger case and
reversed all of her convictions. 2 	We granted certiorari to
review whether the court of appeals correctly determined that
Chief Adair's testimony regarding the quantity of methamphetamine
typical of personal use is expert testimony governed by rule 702
of the Utah Rules of Evidence. 	We have jurisdiction pursuant to
Utah Code section 78-2-2(3).
STANDARD OF REVIEW
¶4 	On certiorari, we review the decision of the court of
appeals for correctness. 3 	In this case, the court of appeals
applied the appropriate standard of review, reviewing for abuse
of discretion the trial court’s determination that Chief Adair’s
testimony was not expert testimony. 4
ANALYSIS
¶5 	This case is a companion case to State v.
Rothlisberger 5 and is before us on certiorari on an issue
identical to the issue in that case. 	Specifically, in the

6 	Id. ¶¶ 14-20.
7 	Id. ¶¶ 21-29.
8 	Id. ¶¶ 30-36.
9 	Id. ¶ 37.
10 	Id.
3 	No. 20050269
companion case we considered whether Chief Adair’s testimony as
to the quantity of methamphetamine typifying personal use was
expert testimony admissible only through rule 702 of the Utah
Rules of Evidence. 	In that case, we affirmed the court of
appeals and held that (1) both fact and opinion testimony based
on specialized knowledge fall within the scope of rule 702 of the
Utah Rules of Evidence, 6 (2) rule 701 of the Utah Rules of
Evidence does not allow admission of testimony based on
specialized knowledge, 7 and (3) Chief Adair’s testimony as to the
quantity of methamphetamine typical of personal use was expert
testimony because it was based on knowledge beyond the ken of the
average bystander. 8 	We also concluded that the harmless error
issue urged by the State was outside the scope of the issue upon
which we granted certiorari review. 9 	We accordingly declined to
address that issue. 10 	As this case is equivalent to that case in
almost every respect, we adopt the same analysis here. 	We
recognize that the State has urged us to reinstate Althoff’s
convictions unrelated to Chief Adair’s testimony that were
reversed by the court of appeals. 	We decline to address this
issue, however, because it is not properly before us on
certiorari. 	The State did not petition the court of appeals for
rehearing and did not seek review of this issue in its petition
for certiorari.
CONCLUSION
¶6 	For the reasons discussed above and in the companion
case of State v. Rothlisberger, we conclude that the district
court erred in characterizing Chief Adair’s testimony as
nonexpert testimony. 	We therefore affirm the court of appeals’
decision.
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¶7 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.

No. 20050269
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