2006 UT 48
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah,
No. 20050269
Plaintiff and Petitioner,
v.
F I L E D
Tonya Althoff,
Defendant and Respondent.
September 8, 2006

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Seventh District, Monticello
The Honorable Lyle R. Anderson
No. 021700082
Attorneys: Mark L. Shurtleff, Att'y Gen., Brett J. Delporto,
Asst. Att'y Gen., Salt Lake City, Craig C. Halls,
Blanding, for plaintiff
William L. Schultz, Moab, for defendant
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On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1
In this case, we consider whether testimony as to the
quantity of methamphetamine typifying personal use is expert
testimony pursuant to rule 702 of the Utah Rules of Evidence and
therefore subject to the qualification and advance disclosure
requirements associated with that classification of testimony.
We conclude that fact or opinion testimony based on specialized
knowledge may be admitted only as expert testimony. We further
agree with the court of appeals that Chief Kent Adair's testimony
at trial regarding personal use quantities of methamphetamine was
expert testimony based on his specialized knowledge. Finally,
because it is not within the scope of the issue upon which we
granted certiorari, we do not address the State's alternative
argument that we should reverse the court of appeals because it
was harmless error to admit Chief Adair's testimony absent the

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required thirty days notice. We accordingly affirm the court of
appeals' decision.
BACKGROUND
¶2
The background in this case is the same as in the
companion case of State v. Rothlisberger1 released concurrently
with this opinion. The only material difference is that, because
Respondent Tonya Althoff was the driver and owner of the car, she
was also charged with driving with measurable controlled
substance in the body, a class B misdemeanor; driving on a
suspended or revoked operator's license, a class B misdemeanor;
and failure by new owner to secure new registration and new
certificate of title, a class C misdemeanor.
¶3
Althoff was convicted by the jury on all charges
against her, and she timely appealed. The court of appeals
adopted its reasoning in its State v. Rothlisberger case and
reversed all of her convictions.2 We granted certiorari to
review whether the court of appeals correctly determined that
Chief Adair's testimony regarding the quantity of methamphetamine
typical of personal use is expert testimony governed by rule 702
of the Utah Rules of Evidence. We have jurisdiction pursuant to
Utah Code section 78-2-2(3).
STANDARD OF REVIEW
¶4
On certiorari, we review the decision of the court of
appeals for correctness.3 In this case, the court of appeals
applied the appropriate standard of review, reviewing for abuse
of discretion the trial court's determination that Chief Adair's
testimony was not expert testimony.4
ANALYSIS
¶5
This case is a companion case to State v.
Rothlisberger5 and is before us on certiorari on an issue
identical to the issue in that case. Specifically, in the

1 2006 UT 49, ¶¶ 2-7, ___ P.3d ___.

2 State v. Althoff, 2005 UT App 69U, ¶¶ 2-3.

3 State v. Cram, 2002 UT 37, ¶ 6, 46 P.3d 230.

4 Alder v. Bayer Corp., 2002 UT 115, ¶ 20, 61 P.3d 1068.

5 2006 UT 49, ¶ 1, ___ P.3d ___.
No. 20050269
2

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companion case we considered whether Chief Adair's testimony as
to the quantity of methamphetamine typifying personal use was
expert testimony admissible only through rule 702 of the Utah
Rules of Evidence. In that case, we affirmed the court of
appeals and held that (1) both fact and opinion testimony based
on specialized knowledge fall within the scope of rule 702 of the
Utah Rules of Evidence,6 (2) rule 701 of the Utah Rules of
Evidence does not allow admission of testimony based on
specialized knowledge,7 and (3) Chief Adair's testimony as to the
quantity of methamphetamine typical of personal use was expert
testimony because it was based on knowledge beyond the ken of the
average bystander.8 We also concluded that the harmless error
issue urged by the State was outside the scope of the issue upon
which we granted certiorari review.9 We accordingly declined to
address that issue.10 As this case is equivalent to that case in
almost every respect, we adopt the same analysis here. We
recognize that the State has urged us to reinstate Althoff's
convictions unrelated to Chief Adair's testimony that were
reversed by the court of appeals. We decline to address this
issue, however, because it is not properly before us on
certiorari. The State did not petition the court of appeals for
rehearing and did not seek review of this issue in its petition
for certiorari.
CONCLUSION
¶6
For the reasons discussed above and in the companion
case of State v. Rothlisberger, we conclude that the district
court erred in characterizing Chief Adair's testimony as
nonexpert testimony. We therefore affirm the court of appeals'
decision.
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¶7
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant's
opinion.

6 Id. ¶¶ 14-20.

7 Id. ¶¶ 21-29.

8 Id. ¶¶ 30-36.

9 Id. ¶ 37.

10 Id.
3
No. 20050269

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No. 20050269
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