State v. Fraughton

2024 UT App 118
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
TROY P. F RAUGHTON ,
Appellant.
Opinion
No. 20210810-CA
Filed August 15, 2024
Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 191402497
Staci Visser and Ann Marie Taliaferro,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE A MY J. O LIVER authored this Opinion, in which
JUDGES R YAN M. HARRIS and JOHN D. LUTHY concurred.
OLIVER, Judge:
¶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.

State v. Fraughton
20210810-CA 	2 	2024 UT App 118
BACKGROUND1
¶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 he’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,
1. On appeal from a jury trial, “we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly,” 	and 	“we 	present 	conflicting 	evidence 	only 	as
necessary to understand issues raised on appeal.” State v. Speights,
2021 UT 56, n.1, 497 P.3d 340 (cleaned up).

State v. Fraughton
20210810-CA 	3 	2024 UT App 118
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.

State v. Fraughton
20210810-CA 	4 	2024 UT App 118
¶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
2. 	Fraughton 	was 	also 	charged 	with 	and 	convicted 	of 	the
infraction of failure to stay in one lane during this incident, but
that conviction is not at issue in this appeal.

State v. Fraughton
20210810-CA 	5 	2024 UT App 118
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

State v. Fraughton
20210810-CA 	6 	2024 UT App 118
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).
¶17 	Fraughton also contends that the trial court abused its
discretion in allowing Officer 1 and Officer 2 to offer opinions as
to whether Fraughton was incapable of safely operating a motor

State v. Fraughton
20210810-CA 	7 	2024 UT App 118
vehicle. “We review the [trial] court’s decision regarding the
admissibility of testimony for an abuse of discretion.” Erickson v.
Erickson, 2018 UT App 184, ¶ 8, 437 P.3d 370. “If we determine the
testimony was erroneously admitted, the defendant must show
that the error was prejudicial.” State v. Harvey, 2019 UT App 108,
¶ 12, 446 P.3d 125 (cleaned up).
ANALYSIS
I. Rule 23B Remand
¶18 	We first address Fraughton’s request for a rule 23B remand
to present evidence that would have supported a motion to
exclude the BAC evidence at trial. See Utah R. App. P. 23B.
Fraughton contends that this evidence will support his argument
that Counsel was ineffective for not investigating the blood
sample’s chain of custody, not filing a motion to challenge the
admissibility of the blood evidence, and not consulting with or
calling experts to testify regarding that evidence.
¶19 	As noted above, 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.” Id. R. 23B(a). We will grant an
appellant’s rule 23B motion only if the following requirements are
met: “(1) the motion must be supported by affidavits alleging facts
outside the existing record, (2) the alleged facts must be non-
speculative, and (3) the alleged facts, if true, must establish both
elements 	of 	a 	traditional 	ineffective-assistance 	claim, 	i.e.,
counsel’s deficient performance and resulting prejudice.” State v.
Miller, 2023 UT App 85, ¶ 52, 535 P.3d 390 (cleaned up), cert.
denied, 540 P.3d 78 (Utah 2023). Fraughton has not satisfied the
first two requirements.
¶20 	Fraughton’s rule 23B motion relies on opinions from two
experts on how the chain of custody was handled for Fraughton’s

State v. Fraughton
20210810-CA 	8 	2024 UT App 118
blood sample.3 After reviewing this case’s materials, the experts
expressed “concerns” about the blood sample’s security “that
shed 	doubt 	on 	its 	probative 	value 	as 	an 	indicator 	of 	Mr.
Fraughton’s BAC.” Specifically, the experts believed Nurse’s use
of her mini-fridge at home was improper because there was no
evidence at trial that Nurse’s home “qualifies as [a] secure
facility” or that her mini-fridge “is temperature monitored.”
Additionally, the experts were concerned about where the blood
sample was kept during the twenty-four hours when it was in the
supervisor’s possession before he mailed it. And finally, the
experts argued the state lab did not follow standard practice when
it failed to document the condition of the seals or the sample upon
receipt.
¶21 	Taken as a whole, this evidence does not amount to the
“nonspeculative allegation of facts” not already in the record
required for a rule 23B motion. See Utah R. App. P. 23B(a). The
experts’ opinions, set forth in a three-page summary letter,
express 	“concerns” 	about 	potential 	problems 	regarding 	the
refrigeration and the physical security of the blood sample, but
they do not provide any facts to support that Fraughton’s blood
sample was actually handled improperly. Fraughton needed to
provide affidavit testimony from someone with knowledge about
an actual problem related to the blood sample’s refrigeration or
security—such as Nurse or her supervisor—or documentation
that showed tampering or mishandling of the sample. The
experts’ “concerns” alone do not satisfy the requirements of rule
23B.
3. Fraughton also included in his rule 23B motion (1) an affidavit
from appellate counsel confirming that Counsel did not consult
with 	an 	expert 	or 	speak 	to 	Nurse 	prior 	to 	trial, 	(2) 	the
documentation of Fraughton’s blood testing, and (3) forensic
standards for test samples.

State v. Fraughton
20210810-CA 	9 	2024 UT App 118
¶22 	“The purpose of a remand is not to allow for a fishing
expedition to discover new, non-record facts but to provide the
opportunity to supplement the record with facts already discovered
that could support a claim of ineffective assistance of counsel.”
State v. Crespo, 2017 UT App 219, ¶ 49, 409 P.3d 99 (emphasis
added) (cleaned up); State v. Griffin, 2015 UT 18, ¶ 19, 441 P.3d
1166 (stating that the “mere hope that an individual may be able
to provide information if subpoenaed to testify is not sufficient”
and that an “affiant must submit specific facts and details that
relate to specific relevant occurrences” in support of a rule 23B
motion). Here, there are no already discovered facts showing an
actual problem related to the blood sample’s refrigeration or
security. Accordingly, we deny Fraughton’s rule 23B motion.
II. Opinion Testimony
¶23 	Having denied Fraughton’s rule 23B motion, we can easily
dispatch with his argument that the trial court erred in allowing
testimony from Officer 1 and Officer 2 about whether Fraughton
was incapable of safely operating a motor vehicle. To prevail on
appeal, Fraughton must show both that the evidentiary ruling
was erroneous and that it resulted in prejudice. State v. Harvey,
2019 UT App 108, ¶ 12, 446 P.3d 125. But even if we assume that
the officers’ testimony should have been excluded, Fraughton
cannot show prejudice here because the jury found him guilty of
driving under the influence on the alternative ground that his
BAC was greater than .05.
¶24 	The jury in this case was asked to complete a special verdict
form with respect to driving under the influence of alcohol. That
form provided two alternative grounds upon which the jury
could find Fraughton guilty: (1) he “had sufficient alcohol in his
body that a subsequent chemical test showed that he had a blood
or breath alcohol concentration of .05 grams or greater at the time
of the test” or (2) he “was under the influence of alcohol to a
degree that rendered him incapable of safely operating a vehicle.”

State v. Fraughton
20210810-CA 	10 	2024 UT App 118
The jury found him guilty on both grounds. Exclusion of the
officers’ testimony would only have affected the second ground
on which the jury reached its verdict, and would not have affected
the first ground—that his BAC was over .05 grams at the time of
the test. Thus, Fraughton cannot demonstrate that admission of
the officers’ testimony resulted in prejudice.
CONCLUSION
¶25 	We deny the motion to remand under rule 23B because
Fraughton has not alleged nonspeculative and already-known
facts that, if true, would establish his ineffective assistance of
counsel 	claim. 	And 	we 	determine 	that 	Fraughton 	was 	not
prejudiced 	by 	admission 	of 	the 	challenged 	testimony.
Accordingly, we affirm.