State v. Carter

2023 UT 18

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH
Respondent,
v.
DOUGLAS JACK CARTER,
Petitioner.

No. 20220297
Heard March 8, 2023
Filed August 17, 2023

On Certiorari to the Utah Court of Appeals

Fifth District, Cedar City
The Honorable Matthew L. Bell
No. 181500817

Attorneys:
Sean D. Reyes, Att’y Gen., Thomas Brunker, Deputy Solic. Gen., Salt
Lake City, Chad E. Dotson, Iron County, Cedar City, for respondent
Emily Adams, Freyja Johnson, Cherise Bacalski, Bountiful,
for petitioner

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,
JUSTICE POHLMAN, and JUDGE JOHNSON joined.
Having recused herself, JUSTICE HAGEN does not participate herein;
DISTRICT COURT JUDGE KRISTINE E. JOHNSON sat.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION
¶1 A jury convicted Douglas Carter of aggravated arson. Carter
did not dispute that he had started the fire that burned down the
empty house that once belonged to his grandparents. Carter’s entire
defense turned on whether he had set fire to a “habitable structure”—
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Opinion of the Court

a distinction that meant the difference between a conviction for arson
and aggravated arson.
¶2 Carter argued to the court of appeals that he had been denied
the effective counsel the Sixth Amendment guarantees. See State v.
Carter, 2022 UT App 9, ¶¶ 1, 16, 504 P.3d 179. Carter claimed that his
trial counsel should have moved for a directed verdict because, under
a correct reading of the aggravated arson statute, there was
insufficient evidence before the jury that he had set fire to a habitable
structure. Id. ¶ 29. He also argued that his counsel should have
objected to the testimony of an expert who opined that the structure
was habitable. Id. ¶ 25. A divided court of appeals affirmed his
conviction. Id. ¶ 35. We affirm.
BACKGROUND
¶3 A house belonging to Douglas Carter’s relative (Relative)
caught fire twice in one week. The house was unoccupied at the time
of the fires and had been for quite some time. In the year leading up
to the fires, Relative had undertaken home-improvement projects.
Although Relative kept the place connected to utilities, he stayed at a
hotel when he worked on the house.
¶4 The house first caught fire in October 2018. That fire burned
part of the house’s exterior and extended to the roofline. Carter was
not charged for this first fire.
¶5 Three days later, the house caught fire again. This time it
suffered extensive damage. Suspicion soon landed on Carter, who
eventually confessed to the police that he had started the second fire.
¶6 The State charged Carter with aggravated arson, a first-degree
felony. The aggravated arson statute required the State to prove that
Carter had, “by means of fire or explosives,” “intentionally and
unlawfully damage[d] . . . a habitable structure.” UTAH CODE § 76-6-
103(2)(a). The statute in place at the time defined a “habitable
structure” as “any building, vehicle, trailer, railway car, aircraft, or
watercraft used for lodging or assembling persons or conducting
business whether a person is actually present or not.” UTAH CODE
§ 76-6-101(1)(b) (2022). 1

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1 The Utah Legislature amended the statute in 2023 to define
“habitable structure” as “a structure that has the apparent purpose of
or is used for lodging or assembling persons or conducting business
whether a person is actually present or not.” UTAH CODE § 76-6-
101(1)(d) (2023).
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¶7 At trial, the State called a fire marshal as an expert witness. The
State asked if, in the marshal’s “expert opinion,” the house was “a
habitable structure.” The marshal replied, “Yes.” Carter’s counsel did
not object.
¶8 Carter’s counsel cross-examined the fire marshal. Counsel
asked the marshal what expertise he possessed that would allow him
to opine on whether a structure was habitable. The marshal replied
that it was based on “a matter of experience over the years of . . .
knowing . . . what people are willing to live in.” Carter’s counsel also
asked the marshal why he thought the structure, which had already
suffered one fire, was habitable. The marshal allowed that “after the
second fire, it would have probably been less habitable” but then
opined that he had “seen structures that were considerably more
damaged” than the house, “that people have moved back into.”
¶9 Outside the jury’s presence, the State, Carter, and the court
discussed how to instruct the jury on the definition of “habitable.”
Carter wanted an instruction that would explain: “The focus of the
definition of ‘Habitable Structure’ is on the actual use of the particular
structure, not on the usual use of similar types of structures.” State v.
Carter, 2022 UT App 9, ¶ 7, 504 P.3d 179.
¶10 Carter justified the proposed instruction with caselaw he
argued required the State to show that the structure “was actually
being used as a home.” The district court disagreed and told Carter
that, the way it read the statute, “[y]ou don’t have to show it’s being
actually lived in. It’s a habitable structure.”
¶11 The district court also rejected the State’s proposed
instruction, which would have told the jury that “habitable structure
includes any dwelling house, whether occupied, unoccupied, or
vacant.” The court informed counsel that it would instruct the jury by
giving it, without further explanation, the statutory language defining
habitable structure. And the court indicated that it would allow
counsel to argue to the jury what that language meant.
¶12 In closing arguments, each side argued its interpretation of
the statute. The State told the jury that the house “was classified as a
habitable structure by . . . an expert witness,” that “[t]he primary
purpose of this type of structure is lodging,” that “[t]he law does not
require that somebody be living there full time and that they just
happen to not be home,” and, finally, that, “if a business, if a trailer, if
a railway car, a watercraft, or an aircraft can constitute a habitable
structure under the law, then this home surely constituted a habitable
structure.”

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Opinion of the Court

¶13 Carter’s counsel asked the jury to “focus on the word . . .
‘used,’” and to ask themselves: “what’s the actual use of this property,
this structure, at this time?” Counsel also addressed the fire marshal’s
testimony and said that his testimony related to the condition— rather
than the use—of the house. He then emphasized that “[w]e’re not
talking about condition. This statute is talking about use. . . . [T]he
condition of the property is irrelevant. It’s the use of the property.
What was the property being used for?”
¶14 The jury convicted Carter of aggravated arson. Carter
appealed, arguing that his counsel was ineffective for not objecting to
the fire marshal’s testimony that the house was habitable. Id. ¶ 16.
Carter also claimed that his counsel provided ineffective assistance
when he failed to move for a directed verdict. Id.
¶15 The court of appeals upheld Carter’s conviction. Id. ¶ 1.
Carter argued that the State’s expert had offered “an impermissible
legal conclusion” when he opined that the house was habitable. Id.
¶ 25. The court did not directly address whether the opinion fell
outside the permissible bounds of expert testimony. Id. ¶ 25 n.6. But it
concluded that Carter’s counsel was not ineffective for not objecting
even if the opinion was improper. Id. ¶¶ 25–28.
¶16 The court of appeals concluded that reasonable counsel
“could have decided to cross-examine the fire marshal in this situation
rather than object and move for the testimony to be stricken.” Id. ¶ 25.
The court noted that Carter’s counsel had cross-examined the expert
about his opinion and elicited testimony that the marshal was not
opining that the house met the statutory definition of “habitable
structure.” Id. ¶ 26. The court also pointed to Carter’s counsel’s closing
argument wherein he emphasized to the jury that “all that mattered”
under the statute “was whether the house was being lived in at the
time of the second fire, which the fire marshal said was not the case.”
Id. ¶ 28.
¶17 Carter’s second argument centered on the proper
interpretation of the statute defining “habitable structure” and
whether his attorney was ineffective for not moving for a directed
verdict. Id. ¶ 29. Carter argued that “objectively reasonable trial
counsel would have moved for a directed verdict when the State
presented no evidence of ongoing use of the house because ongoing
use is what the statutory definition of habitable structure requires.”
Id. (cleaned up). The majority opinion rejected this argument for two
reasons.

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¶18 It first reasoned that Carter could establish neither deficient
performance nor prejudice for his ineffective assistance claim because
a motion for directed verdict “had no chance of success.” Id. ¶ 30
(cleaned up). The majority opinion concluded that the directed verdict
motion would have been futile because it was based on a theory about
the way the statute should be interpreted and “the district court had
already indicated its disagreement with that theory.” Id. ¶ 31.
¶19 The majority next reasoned that, because the district court
had ruled that the statute did not require the State to show that the
house was “actually lived in,” Carter’s counsel could have reasonably
perceived a risk in raising the issue anew. Id. ¶ 33. More specifically,
the court opined that “counsel could have reasonably seen a potential
risk that in the discussion that would follow such a motion, the court
might be prompted to curb counsel’s ability to make his argument to
the jury that the house had to be in continual use to be considered
habitable.” Id.
¶20 The majority opinion drew both a concurring and dissenting
opinion. Then-Judge Hagen dissented from the conclusion that
counsel’s decision to not file a directed verdict motion was objectively
reasonable. Id. ¶ 60 (Hagen, J., dissenting). Judge Hagen took
particular issue with the majority’s determination that because the
district court had expressed an opinion on the correct reading of the
statute—a reading at odds with Carter’s—it would have been futile
for Carter’s counsel to bring the motion. See id. ¶¶ 62–69. Judge Hagen
argued that the court “cannot use a motion’s futility as shorthand for
reasonable performance without examining the merits of the motion.”
Id. ¶ 66. Moreover, Judge Hagen did “not view the district court’s jury
instruction decision as a de facto rejection of Carter’s argument.” Id.
¶ 72. She argued that the record did not suggest that trial counsel
“risked losing his chance to argue the theory to the jury if he moved
for a directed verdict on the same grounds.” Id. ¶ 76.
¶21 Judge Tenney “join[ed] the majority opinion in full” and
wrote separately to respond to the dissent. See id. ¶ 36 (Tenney, J.,
concurring). Judge Tenney was moved by the majority opinion’s take
on the futility question because “the district court had already been
presented with” Carter’s interpretation of habitability “when the
defense requested a jury instruction that was based on it,” and the
court “expressed its clear disagreement with it.” Id. ¶ 43. Judge
Tenney allowed that examining the merits of an unfiled motion
“would be one way for us to analyze futility in a case,” but he rejected
Judge Hagen’s assertion that it was the only way. Id. ¶¶ 51–52.

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Opinion of the Court

¶22 Judge Tenney noted that though the district court “had
already expressed its own disagreement with the defense’s proposed
interpretation,” it “nevertheless still decided to allow defense counsel
to make this argument to the jury.” Id. ¶ 55. Judge Tenney described
this as a “delicate and necessary gain.” Id. ¶ 57. And he reasoned that
counsel was not ineffective because counsel “could reasonably decide
to leave well enough alone, accept the court’s invitation to take this
case to the jury, and push for an acquittal there.” Id. ¶ 58.
ISSUES AND STANDARD OF REVIEW
¶23 Carter raises two arguments. Carter first argues that the court
of appeals majority erred when it held that his counsel’s failure to file
a directed verdict motion did not constitute ineffective assistance.
¶24 Carter next argues that the court of appeals erred when it
held that his counsel did not render ineffective assistance when he did
not object to an expert’s testimony that the house was “habitable.”
¶25 The question of whether an attorney’s ineffective
representation deprived a defendant of his Sixth Amendment right to
counsel presents a question of law that we review for correctness. State
v. Scott, 2020 UT 13, ¶ 27, 462 P.3d 350.
ANALYSIS
I. THE COURT OF APPEALS MAJORITY CORRECTLY
DETERMINED THAT CARTER’S COUNSEL’S DECISION NOT
TO MOVE FOR A DIRECTED VERDICT DID NOT CONSTITUTE
INEFFECTIVE ASSISTANCE
¶26 Carter first argues that his counsel denied him the
representation the Sixth Amendment guarantees because counsel
forwent a meritorious directed verdict motion. The test for ineffective
assistance of counsel comes from Strickland v. Washington, 466 U.S. 668
(1984).
¶27 Strickland requires a defendant to demonstrate that
(1) counsel’s representation fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the
defense. Id. at 687–88. It presents a deliberately stringent standard that
requires us to “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id.
at 689. Even if a defendant can meet that burden, the standard requires
the defendant to “show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.

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¶28 Carter’s first ineffective assistance argument focuses on what
he contends is the correct interpretation of the aggravated arson
statute. And, more specifically, the correct interpretation of the word
“habitable.”
¶29 In a nutshell, “arson” becomes “aggravated arson” if a person
uses fire or explosives to “intentionally and unlawfully damage[] . . .
a habitable structure.” UTAH CODE § 76-6-103(2)(a). At the time of the
fire, the statute defined a “habitable structure” as “any building,
vehicle, trailer, railway car, aircraft, or watercraft used for lodging or
assembling persons or conducting business whether a person is
actually present or not.” UTAH CODE § 76-6-101(1)(b) (2022). 2
¶30 Whether the statute required the burned structure to be lived
in or just capable of being lived in became a hot topic at trial. The issue
arose in the context of how to instruct the jury. Carter’s counsel
pressed for an instruction that explained: “The focus of the definition
of ‘Habitable Structure’ is on the actual use of the particular structure,
not on the usual use of similar types of structures.” State v. Carter, 2022
UT App 9, ¶ 7, 504 P.3d 179.
¶31 The State, for its part, wanted to instruct the jury that
“habitable structure includes any dwelling house, whether occupied,
unoccupied, or vacant.” Id. ¶ 8.
¶32 The district court did not select either of the proffered
instructions. Instead, the court told counsel that it would give the jury
the statutory language defining “habitable structure,” without
additional explanation. The court also indicated that it would allow
each side to argue to the jury its view of what that language meant.3
¶33 During this discussion, the district court appeared to show
some skepticism about Carter’s counsel’s statutory interpretation. The
court said: “You don’t have to show it’s being actually lived in. It’s a
habitable structure.” It is against this backdrop that Carter’s counsel

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2 The statute has been amended in a way that may, in the future,

foreclose the argument Carter made to the district court. See supra ¶ 6
n.1.
3 Neither party challenges the district court’s decision to let the

parties argue the meaning of the law to the jury. Because of that, we
will simply emphasize that it “is the prerogative of the court, not
counsel, to instruct the jury as to the applicable law.” State v. Smith,
675 P.2d 521, 526 (Utah 1983).
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Opinion of the Court

decided to not file a motion for directed verdict premised on the way
he read the statute.
¶34 Carter argued to the court of appeals that this constituted
ineffective assistance of counsel because “objectively reasonable trial
counsel would have moved for a directed verdict when the State
presented no evidence of ongoing use of the house because ongoing
use is what the statutory definition of habitable structure requires.”
Id. ¶ 29 (cleaned up).
¶35 A divided court of appeals rejected this argument. Judge
Orme authored the majority opinion. That opinion relied on court of
appeals caselaw declaring that a “futile motion necessarily fails both
the deficiency and prejudice prongs of the Strickland analysis because
it is not unreasonable for counsel to choose not to make a motion that
would not have been granted, and forgoing such a motion does not
prejudice the outcome.” Id. ¶ 30 (cleaned up). The majority decided
Carter’s directed verdict motion would have been futile because “it
would have been abundantly clear to counsel that because the court
had previously denied an instruction to the jury directing that
ongoing use was required, it would not have granted a directed
verdict motion premised on the State’s inability to prove ongoing
use.” Id. ¶ 31.
¶36 The majority also concluded that reasonable counsel could
have decided to forgo the directed verdict motion because of a
“potential risk that . . . the court might be prompted to curb counsel’s
ability to make his argument to the jury that the house had to be in
continual use to be considered habitable.” Id. ¶ 33.

¶37 Then-Judge Hagen dissented from that decision. The dissent
criticized the majority for deciding that the motion was futile without
analyzing the merits of the hypothetical directed verdict motion. Id.
¶¶ 62–66 (Hagen, J., dissenting). The dissent reiterated the
concurrence’s point that futility “is not a standalone third element” of
the well-known two-part Strickland test. Id. ¶ 63 (quoting id. ¶ 47
(Tenney, J., concurring)). Instead, futility is “a shorthand descriptor”
“for why one of the two ineffective assistance elements was not
established in a particular case.” Id. (cleaned up).
¶38 Judge Hagen also noted that the State had not “addressed the
merits” of Carter’s statutory interpretation argument. Id. ¶ 69. The
dissent reasoned that when an “appellee fails to present us with any
argument, an appellant need only establish a prima facie showing of
a plausible basis for reversal.” Id. (cleaned up). The dissent concluded
that Carter had made a prima facie showing that Carter was entitled to

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a directed verdict and that counsel’s failure to move for a directed
verdict was unreasonable under the circumstances. Id. ¶¶ 69, 78, 79,
81.
¶39 Judge Tenney penned a concurring opinion. The concurrence
acknowledged that “the dissent is correct that our futility cases have
commonly turned on our own assessment of the missing motion’s
merits.” Id. ¶ 41 (Tenney, J., concurring). But the concurrence
regarded this as “a feature of how these cases usually come up” and
not “a prescriptive rule.” Id. ¶ 42.
¶40 The concurrence saw Carter’s case as “atypical” because “the
district court had already been presented with [Carter’s] very
interpretation” and “expressed its clear disagreement with it.” Id.
¶ 43. In this situation, the concurrence did not see the need to assess
the motion’s strength, because it reasoned that reasonable counsel
could, based upon the district court’s apparent distaste for the
argument, decide to not file a meritorious motion that was destined
for failure. Id. ¶ 50.
¶41 Before we turn to the merits of Carter’s challenge, we want to
spend a moment discussing the court of appeals’ excellent work in this
case. We appreciate the careful thought that went into each of the
three opinions. Each offers a view of what futility could mean and
how a court should employ the futility analysis.
¶42 Such a careful explication of futility gives us hope that we
might be able to have nice things in our jurisprudence. We have, at
times, been forced to prune back shorthand phraseology and
analytical tools when we have seen that they threatened to overtake
the test they described. In State v. Gallegos, for example, we observed
that the shorthand “a conceivable basis for trial counsel’s decision”
was causing us to develop “a tendency to ask whether there is a
conceivable tactical basis for an attorney’s decision as a proxy for
analyzing whether a trial attorney’s challenged decision is objectively
reasonable.” 2020 UT 19, ¶¶ 53, 55, 463 P.3d 641. In Gallegos, we noted
that “[l]anguage matters and, over time, even small variations can
take on lives of their own and distort the analysis.” Id. ¶ 58. And this
has caused us to sometimes reiterate that while shorthand phrases can
be helpful, we need to make sure that they don’t supplant the test.
¶43 Here, the court of appeals’ careful discussion and
acknowledgment that futility was a shorthand reference and not an
addition to, or a restatement of, the Strickland test goes a long way
towards keeping the analytical focus where it belongs: Strickland’s
two-part inquiry. Even if the court of appeals could not agree on what

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Opinion of the Court

it meant for a motion to be futile, it recognized that futility could not
be allowed to supplant the test the United States Supreme Court gave
us in Strickland.
¶44 That is important because, while futility can sometimes be a
helpful way to describe why an attorney’s decision was reasonable or
why a defendant was not prejudiced by a failure to file a losing
motion, it is not a key that unlocks every door. We can envision
instances where failure to file even a losing motion—to ensure an
issue is preserved, for example—might constitute unreasonable
performance. And we don’t want to allow otherwise-helpful
shorthand to short-circuit thoughtful analysis.
¶45 Carter argues that it was objectively unreasonable for his
attorney to fail to file a directed verdict motion. Strickland instructs
that an assessment of objective reasonability requires the reviewing
court to “reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. In other words, we “judge the
reasonableness of counsel’s challenged conduct[,] . . . viewed as of the
time of counsel’s conduct.” Id. at 690.
¶46 As such, we look at what the record tells us about what the
world looked like when Carter’s counsel forwent the directed verdict
motion. And in this case that requires us, as then-Judge Hagen
observed, to factor in the strength of the motion Carter faults his
counsel for not filing.
¶47 At the close of evidence, Carter’s counsel was faced with a
mixed bag of a case. Carter’s counsel had an argument about what the
aggravated arson statute required for conviction. But he did not have
a published case that dictated the interpretation he advocated. Even
assuming that he was interpreting the statute correctly, all he had at
that point was his personal belief that he was correctly interpreting an
uninterpreted statute.4 In other words, Carter’s counsel had a
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4 We realize that it may be disappointing that we assume the merits

of the argument rather than analyze the extensive arguments that
Carter’s appellate counsel has given the court about the meaning of
“habitable structure”; arguments that include an intricate corpus
linguistics analysis of the word “habitable.” As much as we appreciate
the time and energy that went into that analysis, we cannot escape the
fact that the Legislature has amended the statute in a fashion that
would make our analysis inapplicable to future cases. Rather than
render an opinion (and possibly competing opinions) on the meaning
(continued . . .)
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potentially meritorious argument but, without controlling precedent,
no guarantee of success.
¶48 Carter’s counsel also knew that he had presented his
interpretation to the district court and that the district court had not
bought what he was selling. The court had, however, left the door
open for Carter to present his interpretation directly to the jury.
¶49 Against this backdrop, if Carter’s counsel were to game out
the potential outcomes of filing the directed verdict motion, he could
reasonably expect one of three outcomes. First, the district court could
reverse course on the interpretation question and grant the motion.
This would, of course, have been an immediate, ideal result for Carter.
Second, the court could deny the motion but still allow Carter to argue
his interpretation to the jury. This could be almost immediately good
for Carter as he could prevail in front of the jury. Or it could be
eventually good for Carter because, even if the jury did not accept his
argument about the meaning of “habitability,” he would have
ensured that he had preserved the argument for appeal. Third, the
court could deny the directed verdict motion and, because the motion
forced the court to revisit the statutory interpretation, double down
on the way it read the statute and take away Carter’s argument
concerning habitability. In this scenario, Carter’s counsel loses his
only path to a favorable jury verdict and must hope for an appellate
decision endorsing his statutory interpretation for his client to prevail.
In all of these scenarios, trial counsel would need to factor into the
calculus that although he had great confidence in his statutory
interpretation argument, he did not have a published opinion to rely
on.
¶50 Presented with this choice, we cannot say that it was
professionally unreasonable for Carter’s counsel to decide that his
best shot was to take what the district court had already given him: a
chance to argue his interpretation to the jury. This is especially so
when reasonable counsel would have at least entertained the concern
that moving for a directed verdict could cause him to lose the basis of
his defense. At that point in the trial, Carter’s counsel had presented
his statutory interpretation argument to the court and was better
positioned than we are to predict whether this would prompt the
court to revisit its earlier decision. Carter’s counsel had also observed
the jury respond to testimony and other evidence and could better

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of statutory text that no longer exists, we will assume, without
deciding, that Carter’s interpretation is correct.
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assess whether he preferred arguing his case to this jury now or his
statutory interpretation to the appellate courts later.
¶51 Strickland requires that we “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. We can certainly see reasonable
counsel filing the motion in this circumstance, but we cannot say that
a reasonable attorney could not make the choice that Carter’s counsel
did. The court of appeals majority did not err when it reached that
conclusion. 5
II. THE COURT OF APPEALS CORRECTLY CONCLUDED
THAT COUNSEL WAS NOT INEFFECTIVE WHEN HE
FAILED TO OBJECT TO THE FIRE MARSHAL’S TESTIMONY
¶52 Carter next argues that the court of appeals erred when it
concluded that Carter’s counsel did not perform deficiently when he
failed to object to the fire marshal’s expert testimony that the house
was a “habitable structure.”
¶53 Carter argued to the court of appeals that the fire marshal’s
opinion contained “an impermissible legal conclusion” that the Utah
Rules of Evidence forbid. State v. Carter, 2022 UT App 9, ¶ 25 & n.6,
504 P.3d 179. Carter averred that “failing to object to expert testimony
improperly opining on the only legal conclusion that matters is not a
defensible course of action.” Id. ¶ 25 (cleaned up).
¶54 The court of appeals assumed, without deciding, that the
objection to the fire marshal’s testimony would have been sustained. 6

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5 We hasten to emphasize the unique nature of each Strickland

inquiry. This opinion should not be read to hold that it is always
professionally reasonable to forgo a motion when the district court has
expressed hostility to the motion’s underlying argument or when
there is no controlling precedent to ensure success. The lesson we
hope to reinforce is that Strickland can be intensely fact-specific and
requires an examination of—as Strickland instructs—all the
circumstances that surrounded counsel’s decision. Indeed, Strickland
reminds us that “[r]epresentation is an art, and an act or omission that
is unprofessional in one case may be sound or even brilliant in
another.” Strickland, 466 U.S. at 693.
6 We will likewise assume, without deciding, that the expert
testimony was improper. But we note that it can sometimes be
difficult to discern the line we have drawn between permissible and
(continued . . .)
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Id. ¶ 25 n.6. But it nevertheless concluded that Carter’s counsel had
not performed deficiently, because “counsel is not required to correct
every error that might have occurred at trial.” Id. ¶ 25 (cleaned up).
¶55 The court of appeals noted that the challenged expert
testimony came at the end of the fire marshal’s direct examination and
that Carter’s counsel began his cross-examination by attacking that
opinion. Id. ¶ 26. The court of appeals further concluded that Carter’s
counsel “was able to elicit testimony from the fire marshal suggesting
he meant only that the house was capable of being lived in and was
not opining” about the meaning of the statute. Id. This, combined with
Carter’s counsel’s affirmative use in his closing argument of the fire
marshal’s testimony that no one was living in the house at the time of
the fire, led the court of appeals to conclude that “‘considering all the
circumstances,’ we cannot say that ‘counsel’s acts or omissions were
objectively unreasonable’ in relying on cross-examination of the fire
marshal to attempt to establish the defense’s theory of the case rather
than objecting outright.” Id. ¶ 28 (quoting State v. Scott, 2020 UT 13,
¶ 36, 462 P.3d 350).
¶56 Carter argues this was error because cross-examination was
not a reasonable alternative to objecting to the testimony’s admission.
Carter argues that in “context, correcting the testimony was
sufficiently important that counsel’s failure to correct—leaving that
damning evidence on the table—was objectively unreasonable.”
Carter lists eleven reasons that he argues demonstrate that cross-
examination—in lieu of objecting—was objectively unreasonable.

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impermissible expert testimony that touches on legal standards. For
example, in State v. Larsen, we concluded that a district court did not
abuse its discretion when it allowed a securities fraud expert to testify
that certain information would have been material to investors while
at the same time acknowledging that the expert “certainly should
have avoided employing the specific term ‘material’” because that
was the language the statute used. 865 P.2d 1355, 1362 (Utah 1993).
The court of appeals appears to have interpreted Larsen to mean that
an expert can testify that information is “material” if the expert does
not say the words “material under Utah law” or “material under the
Utah Uniform Securities Act.” See State v. Tenney, 913 P.2d 750, 756
(Utah Ct. App. 1996). So, while here we will assume that an objection
to the fire marshal’s testimony would have been sustained, there is
ample reason to believe that we could do a better job of drawing the
line between admissible and inadmissible expert testimony in a future
case or by rule amendment.
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 STATE v. CARTER
Opinion of the Court

None of these convince us that the court of appeals erred when it
concluded that reasonable counsel could have preferred cross-
examination to objection.
¶57 To start, three of the eleven reasons simply reiterate Carter’s
contention that the testimony was improper. 7 The court of appeals
assumed that the testimony would have been struck had an objection
been made. As such, these assertions do not shed light on whether the
court of appeals erred when it decided it was not objectively
unreasonable to decide to address the improper testimony through
cross-examination instead of by objection.
¶58 Another of Carter’s reasons fails to convince us because it
takes an after-the-fact look at whether counsel’s gambit paid off rather
than provide the at-the-time-the-decision-was-made examination that
Strickland requires. See Strickland v. Washington, 466 U.S. 668, 689
(1984) (holding that a court must “evaluate the conduct from counsel’s
perspective at the time”). Carter argues that counsel’s cross-
examination bolstered rather than undercut the expert’s
impermissible testimony. Reasonable minds may differ on whether
Carter’s counsel executed the cross-examination in the way he might
have hoped. But the fact that cross-examination might not have
panned out the way Carter’s counsel wanted does not tell us that the
decision to cross-examine rather than object was unreasonable at the
time he made it.
¶59 Three more of Carter’s reasons appear to reference other,
later, decisions that Carter’s counsel made that are not themselves the
subject of Carter’s ineffective assistance challenge. For example,
Carter complains that the jury was not properly instructed on expert
testimony. But this is not part of the ineffective assistance challenge
that Carter lodged in front of the court of appeals. Carter similarly
laments that the State referenced the fire marshal’s testimony in
closing argument and that counsel did not tell the jury in his closing
argument that the fire marshal was not allowed to define
“habitability.” But, again, Carter did not focus his ineffective
assistance claim on a failure to object to the State’s use of the testimony
in closing, or a failure to argue the proper scope of expert testimony
to the jury. While these decisions may say something about whether
_____________________________________________________________
7 These are: “the testimony was inadmissible”; “counsel knew that

the expert’s testimony was inadmissible ultimate-issue testimony”;
and “the expert’s testimony bypassed both the State’s and the
defense’s interpretation of the statute” “[because it] did, in fact, go to
the ultimate issue.”
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 Cite as: 2023 UT 18
Opinion of the Court

the decision to choose cross-examination over objection was
reasonable, Carter uses them to engage in the after-the-fact second-
guessing that Strickland forbids.
¶60 This leaves just four proffered reasons that speak to the core
question Strickland requires us to ask. Carter first argues that the
rationale his counsel offered to the court for not objecting was not part
of a rational strategy. This argument does not work under Strickland
because it attempts to improperly shift the inquiry from an objective
examination of what reasonable counsel would do to a subjective
assessment of what Carter’s counsel thought he was doing. See State
v. Gallegos, 2020 UT 19, ¶ 47, 463 P.3d 641 (upholding the court of
appeals’ decision to not grant a rule 23B remand to allow the
defendant to put on the record counsel’s subjective reasons for not
calling a witness because the “Strickland inquiry is objective, not
subjective”).
¶61 We largely agree with Carter’s other three points—the
habitability question was Carter’s entire defense, any evidence of
habitability presented to the jury undercut that defense, and cross-
examination would not instruct the jury to ignore the improper
testimony. Habitability was, indeed, the crux of Carter’s defense, and
evidence that did not support his interpretation of “habitable” was
harmful. Objectively reasonable counsel would have to include those
considerations in the calculus. But recognizing the truth of those
assertions does not answer whether it was objectively unreasonable
for counsel to decide that he could advance his client’s interests by
forgoing the objection and relying on cross-examination to make his
case to the jury.
¶62 We, like the court of appeals, cannot say that it was
objectively unreasonable to forgo the objection to the fire marshal’s
testimony. As the court of appeals noted, the questionable opinion
came in at the end of the State’s direct examination. Carter’s counsel
could have reasonably thought that he would try and get a concession
from the fire marshal on what he meant by “habitability” because
these points would be more impactful for the jurors if they heard them
from the mouth of the State’s expert. Carter’s counsel could reason
that he would be able to get the fire marshal to say, directly after the
objectionable testimony, that his opinion was based on his experience
of “what people are willing to live in” and not because anyone was
living in the house. This is, in fact, what Carter’s trial counsel did. This
was consistent with counsel’s reading of what the statute required and
the theme he later developed in his closing argument.

15
 STATE v. CARTER
Opinion of the Court

¶63 Although reasonable minds could differ on what the best
approach would have been, we cannot say that, on this record, the
court of appeals erred when it concluded that reasonable counsel
could decide to challenge the expert’s opinion through cross-
examination rather than object to the testimony. Carter has not
convinced us that the court of appeals incorrectly concluded that it
was reasonable for counsel to decide to cross-examine the fire marshal
instead of objecting to his testimony that the house was “habitable.”
CONCLUSION
¶64 Carter contends that the court of appeals majority erred when
it concluded that his counsel had not rendered ineffective assistance
by deciding to forgo a motion for directed verdict. We agree with the
court of appeals that reasonable counsel, presented with the palette of
options Carter’s counsel faced, could have decided to not file the
motion. Carter also argues that the court of appeals erred when it
decided that Carter’s counsel was not ineffective for cross-examining
an expert who offered an improper opinion, instead of objecting to
that testimony. We affirm the court of appeals’ decision that this did
not deprive Carter of the counsel the Sixth Amendment guarantees.

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