Opinion
20220182-CA
12-21-2023
State of Utah, Appellee, v. Christopher Weaver, Appellant.
Nicolas D. Turner, Attorney for Appellant Sean D. Reyes and Emily Sopp, Attorneys for Appellee
Fifth District Court, St. George Department The Honorable Keith C. Barnes No. 201501532
Nicolas D. Turner, Attorney for Appellant
Sean D. Reyes and Emily Sopp, Attorneys for Appellee
Judge Amy J. Oliver authored this Opinion, in which Judges Ryan M. Harris and Ryan D. Tenney concurred.
OPINION
OLIVER, Judge
¶1 The State charged Christopher Weaver with criminal automobile homicide after he slammed his speeding pickup truck into a stopped car at a red light, killing the young driver. A jury acquitted Weaver of criminal automobile homicide and instead convicted him of the lesser included charge of negligent automobile homicide. Weaver appeals that conviction on three grounds: (1) his trial counsel rendered constitutionally ineffective assistance by stipulating to an improper Allen charge, see Allen v. United States, 164 U.S. 492 (1896), (2) the trial court wrongly admitted text messages between him and his estranged wife, and (3) there was insufficient evidence he had been impaired while driving. We reject these arguments and affirm his conviction.
"On appeal, we recite the facts from the record in the light most favorable to the jury's verdict and present conflicting evidence only as necessary to understand issues raised on appeal." State v. Huey, 2022 UT App 94, n.2, 516 P.3d 345 (cleaned up).
¶2 On a clear October morning in 2019, Weaver was driving to work on I-15 in his lifted Ford F-350 pickup truck when an eyewitness observed him swerving in and out of his lane "excessively." That same morning, twenty-year-old Kelly was on her way to hike in Zion National Park after visiting her grandmother during fall break. Weaver took an exit at 72 miles per hour and sped past the flashing yellow light warning of a stoplight ahead. Weaver later claimed he intended to turn left at the intersection to go to the gas station, but he did not enter the empty left-turn lane. Instead, he smashed his truck into the back of Kelly's compact car-which was stopped at the red light-at 57 miles per hour. The impact slammed Kelly's car into the truck in front of her and spun her car until it stopped sideways in the traffic lane.
A pseudonym.
¶3 Several witnesses rushed to help Kelly and Weaver. Kelly was severely injured in the crash and died shortly after witnesses managed to remove her from her car. Weaver requested to be taken to a hospital, where he was diagnosed with a concussion and treated for a nasal fracture. No field sobriety tests were conducted at the crash site.
¶4 Approximately three and a half hours after the crash, Weaver's blood was drawn at the hospital, and the toxicology report showed he had 46 nanograms per milliliter of oxycodone in his system. Weaver had told emergency responders multiple times that he had taken a sleeping aid that day, but he did not disclose taking any opioids. To treat his chronic back pain, Weaver had a prescription for oxycodone and oxymorphone.
¶5 Two days earlier, on October 9, Weaver had texted his estranged wife to ask if she wanted him to "pee in a cup" before he picked up their son. She responded that he did not need to, so long as he promised not to drive their son with "anything" in his system because it was "not worth any kind of risk." Weaver promised he would not drive with "stuff" in his system. In a text to his wife on October 10, Weaver admitted to drinking "2 shots and a beer." On October 11, the morning of the crash, Weaver's wife texted him at 5:28 a.m. to see if he could drive their son to school. Weaver did not respond until 8:49 a.m.-several hours before the crash-and apologized for missing the text. His wife replied she was worried he had been "taking drugs" and was "too asleep" to hear his phone. Weaver told her he had only taken sleeping pills.
¶6 After the crash, Weaver was charged with criminal automobile homicide, a second-degree felony, and speeding, an infraction. Prior to trial, Weaver filed a motion in limine seeking to exclude the text messages between him and his wife, as well as his pre-crash internet searches for "[b]est synthetic urine for sale," the rules on refilling prescriptions, and substance abuse therapy. In response, the State filed a motion in limine seeking to introduce into evidence Weaver's internet searches; the text messages between him and his wife on October 9 and October 10; and two items found in Weaver's truck after the crash-a rolled-up dollar bill with white residue and an open alcohol container. Following a hearing on the motions, the court ruled that the October 10 text about drinking, the rolled-up dollar bill, and open alcohol container were inadmissible. However, the court found the October 9 texts about Weaver's offer to "pee in a cup" were "relevant to whether [Weaver] acted with criminal negligence" because they showed "his consciousness of the risk associated with having anything in his system that could impair his driving."
¶7 At trial, the State's first witness (Eyewitness) testified he had been driving behind Weaver on I-15 and paying close attention to Weaver's "good-looking black Ford truck" because his "hobby is lifted trucks." Eyewitness testified about Weaver's "excessive[] swerving," describing it as follows:
[A]t first, [Weaver] was going into the shoulder of the road . . . by a good 18 inches, maybe two feet, [and] his tires were over that white line. And he drifted over, stayed that way for a few seconds, drifted back into the lane, and then he started drifting back into the left lane.
Now, he did that several times. He'd go back into the left lane, . . . [and] he went back over to the right, went again 18 to 24 inches into the shoulder, but he seemed to be excessively leaning towards the left, the center line. And he kept getting further out each time.
At one point in time just before . . . the Hurricane exit, half of his truck was in the-the other person's lane . . . . And I noticed that because his center differential was over the dotted line. And there were several cars that needed to pass him that were moving faster than him on the freeway, and they saw what he was doing, and they just held back.
Eyewitness "wouldn't move past him either" and stayed behind Weaver. Eyewitness, having taken the same exit off the freeway, saw Weaver's truck smash into Kelly's car and described trying to render aid to both Weaver and Kelly.
¶8 The State's next witness was the forensic toxicologist (Toxicologist) who analyzed Weaver's toxicology report. She testified that Weaver's blood sample, taken over three and a half hours after the crash, showed he had 46 nanograms per milliliter of oxycodone in his system. She explained how oxycodone is a central nervous system depressant with "common impairment effect[s]"-including "sleepiness, fatigue, dizziness, and drowsiness"-so the oxycodone packaging warns not to operate heavy machinery, "such as driving." On the issue of impairment, Toxicologist explained how it "is difficult to predict the impairment" caused by oxycodone "based on blood concentration alone" and that someone "within the therapeutic range . . . may also feel the impairment that comes with" the drug. Toxicologist opined the "best way to determine impairment" on an individual basis is by "eyewitness testimony of the accident" or by a "field sobriety test." On cross-examination, Toxicologist confirmed that the amount of oxycodone in Weaver's blood was within the therapeutic range.
¶9 The State then called a Utah Highway Patrol officer (Officer) specially trained in road accident reconstruction. He testified that Weaver's truck contained a crash data retrieval system that measures the car's velocity and speed to know when to deploy the airbags, giving the last five seconds of "precrash data." From that data and his analysis of the crash, he determined Weaver's truck was going 72 miles per hour four seconds before impact and calculated the speed at impact was 57 miles per hour. This information showed that Weaver was "not braking very hard" in the few seconds before impact.
¶10 Next, the State called various medical personnel who treated Kelly and Weaver. The emergency room physician testified that Weaver was alert and "oriented to person, place, and time" when he arrived at the hospital, and confirmed that Weaver did not list oxycodone among the medications he was taking.
¶11 The State then sought to introduce the text messages between Weaver and his wife from October 9 and October 11. Weaver's attorney (Trial Counsel) objected. After taking a brief recess, the court affirmed that it had previously ruled in its written order that the October 9 texts-where Weaver's wife told him it was "not worth any kind of risk" for him to drive with their son with "anything in [his] system"-were admissible. The court also orally ruled that the October 11 texts-where Weaver's wife expressed her concern he was "taking drugs" and was "too asleep" to hear his phone-were also admissible because they showed Weaver's "consciousness of the risk associated with having anything in his system that could impair his driving" and were therefore "relevant to whether he acted with criminal negligence." The State introduced the texts as Exhibit 26 and had the texts read aloud to the jury.
¶12 After the State rested, Trial Counsel moved for a directed verdict on the criminal automobile homicide charge. Trial Counsel asserted the State had not met its burden of proof on the element of impairment. See Utah Code § 76-5-207(2)(a)(ii)(B) (requiring proof the actor "is under the influence of . . . any drug . . . to a degree that renders the actor incapable of safely operating a vehicle"). Trial Counsel pointed out Weaver's blood draw showed the amount of oxycodone in his system was within the therapeutic range and there is "no other evidence that was put on of impairment." In response, the State claimed there was "ample evidence that [Weaver] was under the influence of oxycodone," referencing Eyewitness's account of Weaver's erratic driving and Weaver's blood draw revealing oxycodone in his system, which was taken almost four hours after the crash. The court denied Weaver's motion.
¶13 In his defense, Weaver presented two witnesses: a nurse practitioner (Nurse) at a "concierge medication" business who had been prescribing opioids for Weaver's back pain since 2018, and a toxicology expert. Nurse acknowledged Weaver's wife considered Weaver "unsafe to drive" when taking opioids and had asked him to take Weaver off narcotics. Nurse also admitted the United States Drug Enforcement Administration investigated him and he can no longer prescribe controlled substances, including opioids. On cross-examination, Nurse confirmed that his business was located in Salt Lake and that Weaver claimed he drove up there instead of going to a doctor in St. George, where he lived, for convenience.
¶14 The toxicology expert opined that Weaver was not impaired at the time of the crash, based on how Weaver "appeared coherent" and "answered the questions appropriately" at the hospital after the crash. He also testified that "[f]or opioid narcotics, the therapeutic range isn't very helpful, it doesn't preclude that the patient could be impaired in the therapeutic range." He was not concerned by the level of oxycodone in Weaver's blood because it was within the therapeutic range of 5-50 nanograms per milliliter, but he estimated Weaver's blood concentration at the time of the crash- three and a half hours earlier-"might be close to 80" nanograms per milliliter.
¶15 After Weaver rested his case, the State called an anesthesiologist specializing in pain management as a rebuttal witness. She explained that Weaver's prescription amounted to the equivalent of 360 milligrams of morphine a day and opined "that is a boatload" that would kill "an opioid naïve person." She explained how drug "impairment unlike alcohol for instance," is more difficult to define because "[t]here's no data within our medical literature that says, as soon as you reach this [level of] nanograms per milliliter . . . that you are now impaired."
¶16 After receiving instructions from the court, including on Weaver's presumed innocence and the State's burden of proof, and hearing closing argument from Trial Counsel, who repeatedly emphasized both of these instructions, the jury began its deliberation. While deliberating, the jury sent two written questions to the court. The first question came after approximately three hours of deliberation and asked if it was possible to vote guilty on the charge of negligent automobile homicide "without voting guilty on . . . incapable of safely operating due to alcohol, drugs." The court responded, with the stipulation of both counsel, "No." About an hour later, the jury asked, "We have reached unanimous agreement on Count #2, speeding, but will not be able to reach unanimous agreement on Count #1. What to do?" The court responded, again with the stipulation of both counsel, by giving the jury the following supplemental instruction, commonly called an Allen charge:
An instruction to a deadlocked jury is "called an Allen instruction or an Allen charge, named after the case in which the United States Supreme Court approved the use of supplemental jury instructions to help a deadlocked jury reach a unanimous verdict." State v. Martinez, 2021 UT App 11, ¶ 33 n.6, 480 P.3d 1103 (cleaned up).
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. You should not, however, change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.
I also remind you that in your deliberations, you are to consider the instructions that I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.
What I have just said is not meant to rush you or pressure you into agreeing on a verdict. Take as
much time as you need to discuss things. There is no hurry.
Four hours after the Allen charge was given, the jury returned its verdict. The jury acquitted Weaver of criminally negligent automobile homicide but convicted him of the lesser included offense of negligent automobile homicide as well as speeding. The court later sentenced Weaver to a prison term of zero to five years for the third-degree felony.
ISSUES AND STANDARDS OF REVIEW
¶17 Weaver now appeals, raising three issues. First, he argues the Allen charge was improper. Weaver acknowledges he failed to preserve this issue for appellate review but asks us to review it under ineffective assistance of counsel, which is an exception to our preservation requirement. "Failure to preserve an issue in the district court generally precludes a party from arguing that issue in an appellate court, absent a valid exception." State v. Haar, 2021 UT App 109, ¶ 51, 500 P.3d 102 (cleaned up). "The three distinct exceptions" to this preservation requirement are "plain error, ineffective assistance of counsel, and exceptional circumstances." Id. (cleaned up). "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Popp, 2019 UT App 173, ¶ 19, 453 P.3d 657 (cleaned up).
Weaver also asks that we review this issue for plain error. But we need not review this argument because where "a defendant affirmatively approved of the jury instructions the invited error doctrine precludes our examining the purported errors under the plain error doctrine." See State v. Carrick, 2020 UT App 18, ¶ 24, 458 P.3d 1167 (cleaned up).
¶18 Second, Weaver challenges the trial court's admission of the October 9 and October 11 text messages into evidence. "We afford district courts a great deal of discretion in determining whether to admit or exclude evidence and will not overturn an evidentiary ruling absent an abuse of discretion." State v. Rallison, 2023 UT App 34, ¶ 7, 528 P.3d 1235 (cleaned up). A trial court "abuses its discretion when it applies the wrong legal standard or when its decision to admit or exclude evidence is beyond the limits of reasonability." Id. (cleaned up).
¶19 Third, Weaver argues there was insufficient evidence of impairment. "In assessing a claim of insufficiency of the evidence, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645 (cleaned up).
ANALYSIS
I. The Allen Charge
¶20 Weaver first asserts Trial Counsel provided ineffective assistance by stipulating to an Allen charge that he believes was coercive. To prove ineffective assistance of counsel, a defendant must show (1) "that counsel's performance was deficient" and (2) "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a defendant "must show that trial counsel's representation fell below an objective standard of reasonableness when measured against prevailing professional norms." Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d 182 (cleaned up). The "proper inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. "Our scrutiny of counsel's performance must be highly deferential" and "measure counsel's performance under prevailing professional norms." State v. Samples, 2022 UT App 125, ¶ 59, 521 P.3d 526 (cleaned up), cert. denied, 525 P.3d 1279 (Utah 2023).
¶21 "Prejudice exists when there is a reasonable probability that the case would have had a different outcome had trial counsel not performed deficiently." State v. Whytock, 2020 UT App 107, ¶ 28, 469 P.3d 1150, cert. denied, 481 P.3d 1043 (Utah 2021). "A defendant attempting to show that there was a reasonable probability of a different outcome faces a relatively high hurdle to overcome." Id. (cleaned up). And when we assess prejudice, "we consider the totality of the evidence before the judge or jury, as well as the circumstances of the case as a whole." State v. Alarid, 2022 UT App 84, ¶ 47, 514 P.3d 610 (cleaned up), cert. denied, 525 P.3d 1261 (Utah 2022).
¶22 Utah law allows a trial court to give deadlocked juries a supplemental instruction called an Allen charge, see supra note 4, in which it may "impress upon jurors the importance of the case, urge them to come to agreement, and send them back for further deliberation." State v. Scott, 2022 UT App 81, ¶ 20, 514 P.3d 590 (cleaned up), cert. denied, 525 P.3d 1264 (Utah 2022). Although "many courts have expressed concern about the continued propriety of the Allen instruction because of its perceived tendency to pressure jurors to give up their sincere convictions," we have "upheld the non-coercive use of Allen charges because we believe such charges to be a reasonable and proper exercise of the court's power to guide the jury to a fair and impartial verdict." State v. Harry, 2008 UT App 224, ¶ 6, 189 P.3d 98 (cleaned up). We also acknowledge there are "legitimate purposes served by such a charge, namely, the avoidance of the societal costs of a retrial both in time and money, and the possible loss of evidence that a new trial would entail." Id. (cleaned up).
¶23 This court has created a two-part test to determine whether an Allen charge "will be deemed coercive, which requires us to consider whether (1) the language of the supplemental charge can properly be said to be coercive per se, or (2) it is coercive under the specific circumstances of the case." Scott, 2022 UT App 81, ¶ 21 (cleaned up). Here, Weaver asserts only that the Allen charge was coercive per se. Thus, we need look only at the language in the Allen charge itself to decide whether it was coercive.
¶24 Notably, "there is no prescribed ritual of words indicating whether the language of an Allen charge is coercive." State v. Lactod, 761 P.2d 23, 30 (Utah Ct. App. 1988) (cleaned up). "However, there are certain inherently coercive ideas which should not be included in an Allen charge," such as (1) misstatements of the law, (2) overemphasis on the importance of an agreement, (3) suggestion that jurors surrender their "independent judgment," or (4) "anything from which the jury could possibly infer that the court is indicating anxiety for or demanding some verdict." Id. at 31 (cleaned up). Along with what should not be included in an Allen charge, we have provided guidance on what trial courts may, but not must, include. See id. at 30-31 (stating a "judge may appropriately admonish the jury to deliberate together in an atmosphere of mutual deference and respect," a judge "may counterbalance such an admonition with a charge . . . to not give up their conscientiously held opinions," and a judge "may also remind the jurors of the presumption of defendant's innocence and the burden of proof imposed upon the State" (emphases added) (cleaned up)). Weaver reads this guidance as setting forth requirements, and he claims in particular that an Allen charge must remind jurors of the defendant's presumption of innocence and the state's burden of proof, even if the jury had already been properly instructed regarding those legal principles. We disagree.
¶25 "It is axiomatic that when reviewing jury instructions, we look at the jury instructions in their entirety and affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case." Alarid, 2022 UT App 84, ¶ 36 (cleaned up). The jury here was reminded of this concept in the Allen charge itself when the trial court stated, "I also remind you that in your deliberations you are to consider the instructions that I have given you as a whole" and that the instructions "are all equally important." The jurors were then instructed to consider all the jury instructions together-including the one that reminded them who bore the burden of proof-and "we generally presume that a jury will follow the instructions given it." State v. Maama, 2015 UT App 234, ¶ 16, 359 P.3d 1266 (cleaned up). Thus, contrary to Weaver's assertion, the Allen charge was not coercive per se, and Trial Counsel did not perform deficiently by stipulating to it.
¶26 Moreover, even if we were to assume, for purposes of argument, that there was a deficiency in the Allen charge or in Trial Counsel's stipulation to it, we do not perceive a reasonable probability of a different outcome in this case had the trial court included in the Allen charge the admonitions Weaver advocates. Here, the jury had already been instructed on Weaver's presumed innocence and the State's burden of proof, both of which were repeated multiple times by Trial Counsel in closing arguments. Thus, it is unlikely that repeating these instructions, yet again, would have resulted in a more favorable outcome for Weaver.
¶27 In sum, the trial court's Allen charge contained no "misstatement of law," did not "overemphasize the importance of an agreement," and did not "suggest that any juror surrender [the juror's] independent judgment, or say or do anything from which the jury could possibly infer that the court [was] indicating anxiety for or demanding some verdict." Lactod, 761 P.2d at 31 (cleaned up). Instead, the instruction urged the jurors to reach "a unanimous verdict" only "if each of you can do so . . . without violating your individual judgment and conscience" and to "not single out any part of any instruction, including this one, and ignore others." The court urged the jurors "to consider the instructions that I have given you as a whole." Finally, the court clarified the instruction "is not meant to rush you or pressure you into agreeing on a verdict. . . . There is no hurry." Thus, because the instruction was not coercive per se, it was reasonable for Trial Counsel to stipulate to it, and Weaver was not prejudiced by Trial Counsel's stipulation to the instruction.
II. Admission of the Text Messages
¶28 Next, Weaver challenges the trial court's rulings that allowed the State to introduce two text message exchanges-on October 9 and October 11-between Weaver and his wife. The State asserts the text messages were properly admitted to prove Weaver acted with criminal negligence. We agree with the State.
¶29 Rule 404(b) of the Utah Rules of Evidence prohibits "[e]vidence of a crime, wrong, or other act" when used "to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character." But such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. Thus, rule 404(b) "allows prior bad act evidence in a criminal trial where it is offered to show any element of the alleged crime." State v. Nielsen, 2012 UT App 2, ¶ 11, 271 P.3d 817 (cleaned up).
¶30 Three requirements must be met for evidence to be admissible under rule 404(b). First, the "trial court must . . . determine whether the bad acts evidence is being offered for a proper, noncharacter purpose." State v. Balfour, 2018 UT App 79, ¶ 28, 418 P.3d 79 (cleaned up). "Second, the court must determine whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence." Id. (cleaned up). Third, "the trial court must determine whether the bad acts evidence meets the requirements of rule 403." Id. (cleaned up). See generally Utah R. Evid. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.").
¶31 Here, the trial court undertook the proper analysis. Its written ruling on the parties' motions in limine considered the noncharacter purpose of the numerous items the State wanted to introduce into evidence, analyzed whether the items were relevant, and decided "whether the probative value of the evidence [was] substantially outweighed by the danger of unfair prejudice." See Nielsen, 2012 UT App 2, ¶ 16. The trial court excluded items it considered irrelevant-the internet searches, the text messages in which Weaver admitted to drinking "2 shots and a beer," and the items found in the truck-because there was no evidence of alcohol in the toxicology report. But the court found, in both its written and oral rulings, that the text messages from the morning of the crash and from two days earlier were admissible because they showed Weaver's "consciousness of the risk associated with having anything in his system that could impair his driving" and thus were "relevant to whether [Weaver] acted with criminal negligence."
¶32 We agree with the trial court's rulings. The October 9 and October 11 texts go directly to an element of criminal negligence: whether Weaver was aware of the risk of driving with oxycodone in his system. Showing a defendant "ought to be aware of a substantial or unjustifiable risk" is a key element to proving criminally negligent automobile homicide. See Utah Code § 76-2-103(4) (stating a person is criminally negligent "when [that person] ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur").
¶33 In the October 9 text, Weaver's wife asked Weaver to promise not to drive their son with "anything" in his system because it is "not worth any kind of risk." Weaver promised he would not drive with "stuff" in his system, demonstrating an awareness that driving with opioids or "anything" in his system was a risk. Likewise, the October 11 text indicated Weaver's wife was worried he was "taking drugs" and "too asleep" to hear his phone. Evidence that Weaver's wife expressed to Weaver her concern that he was taking drugs he knew would impair his driving on the same morning of the crash was appropriately admitted to prove criminal negligence.
¶34 Weaver contends the text messages could invite "improper speculation" about Weaver's character and whether he had driven on opioids in the past. Yet the "possibility [of an improper inference] is not enough to dictate the exclusion of [the texts] under rule 404(b)." See State v. Thornton, 2017 UT 9, ¶ 58, 391 P.3d 1016. Evidence "is presumptively admissible (subject to rule 402 and 403 analyses)" so long as it "has a plausible, avowed purpose beyond the propensity purpose that the rule deems improper." Id. Moreover, "[w]here evidence is undeniably probative of the central issue in a case, the danger of unfair prejudice substantially outweighing the probative value of the evidence is low." Anderson-Wallace v. Rusk, 2021 UT App 10, ¶ 24, 482 P.3d 822. Thus, we find no abuse of discretion in the court's narrow ruling admitting the text messages because the texts show Weaver was aware of the risk he took by driving with oxycodone in his system on the morning of the crash.
III. Sufficiency of the Impairment Evidence
¶35 Finally, Weaver argues the State presented insufficient evidence of impairment. The elements of negligent automobile homicide are met when an actor "is under the influence of . . . any drug . . . to a degree that renders the actor incapable of safely operating a vehicle" and the actor "operates a vehicle in a negligent or criminally negligent manner causing the death of another individual." Utah Code § 76-5-207(2). "In assessing a claim of insufficiency of the evidence, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645 (cleaned up). Thus, our "procedural posture" requires us to "view the evidence in the light most favorable to the State." State v. Graydon, 2023 UT App 4, ¶ 39, 524 P.3d 1034 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023). The State provided sufficient evidence of these elements, including (1) testing of Weaver's blood that showed oxycodone in his system, (2) Weaver's failure to report taking oxycodone, (3) the text messages showing his awareness of the risk of driving with anything in his system, and (4) Eyewitness's and Officer's testimonies of Weaver's erratic driving.
¶36 The State presented evidence at trial of Weaver's toxicology report that showed Weaver had oxycodone in his system at the time of the crash. Weaver's blood was not tested until almost four hours had passed since the crash, but even at that point, the toxicology report showed Weaver still had 46 nanograms per milliliter of oxycodone in his system. Weaver's own toxicology expert estimated that Weaver's blood level at the time of the crash was "80 nanograms per milliliter instead of 46," in excess of the therapeutic range. Yet Weaver failed to disclose his opioid use to emergency responders and medical personnel treating him the day of the crash; instead, he reported taking only a sleeping aid that day. And, as discussed earlier, the text messages admitted at trial showed Weaver was aware of the risk of driving with "anything" in his system and that Weaver's wife considered him "unsafe to drive" when taking opioids.
¶37 Eyewitness testified Weaver was "excessively swerving" into the shoulder "by a good 18 inches, maybe two feet" and then over into the adjacent lane "several times" shortly before the crash occurred. Weaver "kept getting further out each time" until "his center differential was over the dotted line" and Weaver's truck was straddling two lanes. Eyewitness also confirmed there was a flashing light warning drivers about the stop light ahead. Officer's testimony likewise supported a reasonable inference of impaired driving. Officer testified that Weaver's truck was going 72 miles per hour only four seconds before impact and 57 miles per hour at impact. Officer concluded Weaver was "not braking very hard" in the three seconds of braking before his truck crashed into Kelly's car. This testimony about Weaver's erratic driving and unusual braking aligns with Toxicologist's explanation that oxycodone is a central nervous system depressant with "common impairment effect[s]"-including "sleepiness, fatigue, dizziness, and drowsiness"-which is why the oxycodone packaging warns not to operate heavy machinery, "such as driving."
¶38 Weaver takes issue with the State's evidence of impairment, arguing that erratic driving alone cannot show impairment. While we agree that momentarily straying into another lane, for instance, might not on its own be enough to prove impaired driving, Weaver's erratic driving here was prolonged: he was seen swerving "several times" in and out of both sides of his lane to the point that half of his truck was in the other lane; his speed was excessive given the flashing light indicating a stop light ahead; and he applied the brakes not as an alert, sober driver would when approaching a red light at over 70 miles per hour, but in such a way that he was still going 57 miles per hour at impact. The State also presented evidence that road conditions and visibility were good on the day of the crash, and there was no evidence that Weaver's prolonged erratic driving was caused by anything other than impairment. Thus, we are persuaded that the evidence of impairment was sufficient.
CONCLUSION
¶39 Weaver failed to demonstrate that Trial Counsel rendered constitutionally ineffective assistance, the trial court did not abuse its discretion when it admitted the October 9 and October 11 text messages, and the State presented sufficient evidence of impairment. Accordingly, we affirm Weaver's conviction.