District Court, Salt Lake Department The Honorable Robin W.
Reese The Honorable Paul B. Parker No. 141903380
Alexandra S. McCallum, Attorney for Appellant.
D. Reyes, Laura B. Dupaix, and Jeanne B. Inouye, Attorneys
David N. Mortensen authored this Opinion, in which Judges
Michele M. Christiansen and Kate A. Toomey concurred.
Two loud bangs announced an unidentified intruder's
arrival at Victim's house. The short-lived mystery was
solved when Victim drew back the shower curtain to step out
of her bathtub. There stood her ex-boyfriend-Defendant
Russell Edward Yalowski. While urinating on the walls of the
bathroom, Defendant yelled that he had "about eight N
words out[side] waiting to shoot up the house."
Defendant was charged and a jury convicted him of burglary, a
second degree felony; threat of violence, a class B
misdemeanor; and criminal mischief, a class B misdemeanor.
See Utah Code Ann. §§ 76-6-202, 76-5-107,
76-6-106(2)(c) (LexisNexis 2012). Defendant appeals, and we
Defendant and Victim began dating in December 2012 and broke
up one year later. On December 20, 2013, after the breakup,
Victim was at home with her children, her cousin, and her
cousin's children. Victim went upstairs to bathe, but,
after a few minutes in the bathtub, she heard two loud bangs.
When Victim opened the shower curtain, she saw Defendant
standing in the bathroom. Defendant threatened her, saying he
"had people outside" who were "waiting to
shoot up the house, " before "[h]e started
urinating all over [her] walls near the
Victim dressed as she pleaded with Defendant "to calm
down." As Defendant continued yelling, Victim made her
way to her bedroom and dialed 911, setting the phone down
because she felt she "couldn't talk" and
"couldn't say anything because he was still standing
there in the hallway." When Victim "got nervous
that he might know that the phone was sitting off the hook,
" she "turned it off."
Eventually, Victim convinced Defendant to walk outside with
her. Defendant continued threatening her, telling her
"he was going to take [her] somewhere and beat [her] up
and leave [her] for dead where nobody could find [her]."
While the two were outside, police arrived and arrested
Defendant. Officers found keys to Victim's house and car
in Defendant's pocket, which Victim said she had never
given him. Police took Defendant's shoes into evidence,
and a forensic technician photographed shoe impressions in
the snow around Victim's house, damage to the back door
of the house, and damage to the bathroom door.
Defendant was charged with lewdness, see supra
¶ 2 note 1, burglary of a dwelling, threat of violence,
and criminal mischief. Before trial began, Defendant informed
the trial court that he and the State had stipulated
"that no prior acts of violence or abuse will be
admitted." He also requested that the court
"exclude any testimony that the shoe impressions found
at [Victim's] home matched [Defendant's]
footwear." He based his objection on rules 701 and 702
of the Utah Rules of Evidence, which differentiate between
lay and expert opinion testimony. See Utah R. Evid.
701, 702. The court reserved ruling, indicating it would
"have to rule on that when [it] hear[d] what the witness
[said]." Finally, Defendant requested permission to
cross-examine Victim about three prior instances of her
dishonesty-a plea in abeyance for theft by deception, using
someone else's identification to enter the jail to visit
Defendant, and an arrest for theft by deception and giving a
false name to a police officer. The court said it would allow
Defendant to question Victim about her use of someone
else's identification but denied Defendant's request
to bring up the plea in abeyance or the arrest.
During trial, Victim testified that she and Defendant had
broken up because Defendant was "constantly fighting
with [her]. Getting violent." Defendant objected,
arguing that the testimony violated the stipulation not to
introduce evidence regarding his prior acts of violence. The
court agreed and directed the prosecutor to speak to the
witness, instructing her not to mention Defendant's past
behavior. Defendant also moved for a mistrial, but the court
explained, "I'm going to deny the motion, Counsel. I
agree that it shouldn't have been brought up, but I
don't see that there's significant harm. There was no
description of any violent events. It was just a brief
The State later called the forensic technician to testify. He
explained that when he arrived at Victim's home, he
observed "some shoe impressions on the steps leading up
to the back door" and "a small, faint shoe
impression on the back door itself." He went on to
testify, without further objection from Defendant, that the
tread pattern shown on the pictures of the shoe impressions
appeared to be a "similar pattern, similar block.
Identical" to the pattern on Defendant's shoes.
The jury also heard testimony from Victim's cousin and
responding police officers. Victim's cousin testified
that she heard two loud bangs at Victim's house before
finding out that Defendant was upstairs. Because she
"was kind of afraid at first, " she "tried to
keep [the children] all in the same space." She and the
children were "in the closet . . . hiding, because [she]
heard [Victim and Defendant] arguing upstairs." After
she felt it was safe to come out of the closet, she walked
upstairs. She first saw that the frame of the back door was
broken, and then she "noticed that the bathroom door was
also broken." At trial, the cousin indicated that the
damage to the back door and bathroom door had not previously
The first officer (the backup officer) testified that he
responded to Victim's house after multiple 911 hangups.
He was a "backup officer, " meaning his job was to
"[m]ostly kind of stay out of the investigation. Make
sure [the investigating officer was] safe. Make sure nothing
happens to him or nobody resists him, or while he's
conducting the investigation no one interferes with
that." After Defendant was placed in a police car, the
backup officer entered Victim's house and spoke with her.
Victim showed him the damage inside the house and filled out
a witness statement. The backup officer walked around the
house, where he found one set of fresh footprints in the snow
leading to the back door. He then "pointed out several
things that needed to be photographed" to the forensic
At trial, the backup officer took time to show and explain
the resulting photographs to the jury. He pointed out
characteristics of the shoeprints:
So right here there's flat, round, circular. And then
around it several small circle lines. Right here is a void in
the shoe, so an indent. On the top of it closest to the toes
is somewhat curved. And in the back, right in here,
there's another round impression, with a similar small
one on the side.
on to explain that the details of the shoeprints were
"[s]imilar to marks that we can see on the . . .
door" and similar to the pattern on Defendant's
shoes. He later reiterated that there were "white
marks" on the door "that are similar to the ones in
size and shape that we saw on the shoe print impressions. . .
. [i]n the snow."
A second officer testified that he took Defendant's shoes
into evidence. He also recounted his investigation, during
which he saw Victim's bathroom door: "It looked like
it had been forced open. The door jamb was broken, the latch
plate was off." And the back door was "[j]ust
basically kicked in."
The jury convicted Defendant of burglary, threat of violence,
and criminal mischief, but it found him not guilty of
lewdness. Defendant now appeals.
AND STANDARDS OF REVIEW
Defendant raises three issues for our review, and he
alternatively contends that the three issues, taken together,
warrant reversal under the cumulative error doctrine. First,
he challenges the trial court's denial of his motion for
a mistrial when Victim testified, contrary ...