State v. Lyden

2020 UT App 66
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
ELIESA VEA M ATTHEW LYDEN ,
Appellant.
Opinion
No. 20180426-CA
Filed April 23, 2020
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 171908256
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and K ATE A PPLEBY
concurred.
MORTENSEN, Judge:
¶1 	One evening around midnight, loud noises woke Victim.
The noises seemed to emanate from the main floor of his home,
so he went to investigate. As he entered his garage, Victim was
quickly set upon by two individuals, one with a baseball bat, the
other with brass knuckles. The evidence at trial indicated that
Eliesa Vea Matthew Lyden was the assailant wielding the brass
knuckles 	and 	that 	the 	attack 	was 	vengefully 	intended 	for
Victim’s son (Son) due to Son’s involvement in a previous drug
robbery. The jury convicted Lyden of aggravated burglary and
aggravated assault. Lyden appeals, claiming that the evidence
was insufficient to prove his identity and that serious bodily
injury befell Victim. He also claims that the prosecutor engaged

State v. Lyden
20180426-CA 	2 	2020 UT App 66
in misconduct. We reject these arguments and affirm Lyden’s
convictions.
BACKGROUND1
¶2 	A few days before Victim was attacked, Son and a friend
robbed a drug dealer, Andrew Renteria, at gunpoint. Renteria
and a friend, Tupou Finau, were upset about the robbery and
wanted revenge, so Finau called her cousin Lyden for help.
Lyden in turn recruited Sau Vi. The group met to plan. Through
the grapevine, they discovered the address of Victim and Son’s
house and that Son’s bedroom was in the basement.
¶3 	Lyden, Vi, and Renteria set off to exact revenge. They
arrived at the house around midnight and kicked in the door,
which 	woke 	up 	Victim. 	Victim 	got 	out 	of 	bed 	and 	went
downstairs to see what was going on. He thought it might just
be Son, so he wasn’t very worried. But when Victim made it to
the living room, he saw Lyden and Vi heading to the basement,
heard someone say, “oh, shit,” and then saw the two head to the
garage. Renteria was already in the basement and later escaped
through a basement window. He was not involved in the attack
on Victim.
¶4 	Thinking that Lyden and Vi were Son’s friends, Victim
went to talk them. But when Victim entered the garage, Vi
swung a wooden baseball bat at Victim’s head. Lyden then
joined 	in, 	repeatedly 	punching 	Victim 	with 	brass knuckles.
1. “When reviewing a jury verdict, we examine the evidence and
all 	reasonable 	inferences 	drawn 	therefrom 	in 	a 	light 	most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Tulley, 2018 UT 35, ¶ 4 n.1, 428
P.3d 1005 (cleaned up).

State v. Lyden
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Victim fell to the ground and tried to protect his head from an
onslaught of blows from the baseball bat and brass knuckles.
After landing numerous hits and breaking the baseball bat over
Victim’s head, the two fled.
The Investigation and Trial
¶5 	Victim sustained numerous injuries from the incident. At
the hospital, police officers photographed a gash over his eye;
another gash on the top, right side of his head; a severely
swollen left arm; and large welts on both arms. For months after
the 	attack, 	Victim 	suffered 	from 	cognitive 	problems,
lightheadedness, dizziness, and impaired hearing and vision.
Almost one year later, he still experienced headaches, short-term
memory loss, and tendon damage that prevented him from
lifting 	certain 	weights, 	popping 	wrists, 	and 	numbness 	and
aching in his fingers.
¶6 	Throughout the State’s investigation and prosecution of
Lyden, 	various 	witnesses 	identified 	Lyden 	as 	one 	of 	the
assailants. In a pre-trial photo lineup, Victim identified Lyden as
someone who “resemble[d] the offender in [the] case but [he
was] not positive.” At trial, Finau, Renteria, and Lyden’s sister
all testified 	about Lyden’s involvement. Finau testified that
Lyden left with Renteria and Vi to go to Victim’s house that
night. She also testified that Lyden admitted his involvement in
the night’s events to her and that he related details of the events:
he, 	Renteria, 	and 	Vi 	went 	in 	the 	house; 	they 	were 	going
downstairs; Victim came downstairs, which caused Lyden and
Vi to scamper to the garage; and they beat Victim with brass
knuckles and a baseball bat. She also testified that, when she
went to Lyden’s house, Lyden admitted to throwing away his
clothing because “[i]t was evidence” and “had blood on it.”
¶7 	Renteria’s testimony as to the events of that night was
consistent 	with 	the 	other 	testimonies 	and 	the 	police
investigation. He said that the three of them went to Victim’s

State v. Lyden
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house and forced the door open. He confirmed that Lyden had
brass knuckles. Renteria finally testified that he jumped out of
the basement window and ran when he heard someone yell, “oh,
shit,” upstairs.
¶8 	Lyden’s 	sister 	testified 	that, 	after 	the 	attack, 	Lyden
sent her Facebook messages with videos of himself washing
blood off of clothing, as well as a link to a news article about
the attack. She identified the hand in the videos as Lyden’s
from his heart-shaped hand tattoo. She also testified that Lyden
called her and told her that everything went wrong and that he
hit someone.
¶9 	The 	State 	also 	introduced 	evidence 	related 	to 	home
security footage from a neighbor’s camera. The video showed
Vi’s car pull up and stop at Victim’s house, two or three people
exit the car and walk toward Victim’s house, and one to two
people return to the car. Another neighbor testified that he saw
three people standing by Victim’s house, 	heard some loud
noises, and then saw two people running away from the house
that evening.
¶10 	After the State’s case-in-chief, Lyden moved for a directed
verdict, asserting that there was insufficient evidence of his
identity and serious bodily injury to Victim. The district court
denied the motion. During the State’s rebuttal closing argument,
the prosecutor said, “Attorneys have only so much we can do,
based off of the evidence that we have . . . . So, this is no
reflection on these two good attorneys, but their argument and
their theory is not good.” Lyden objected, saying, “I think this is
getting to the level of prosecutorial misconduct with respect to
commenting on the defense theory.” The court overruled the
objection. The prosecutor resumed, later stating, “These are two
good attorneys. But what their client has given them is not good
evidence.” No objection was lodged at this point. The prosecutor
later 	on 	said, 	“Again, 	this 	is 	no 	reflection 	upon 	the 	good
attorneys 	that 	have 	been 	here 	today, 	but 	we 	all 	have 	the

State v. Lyden
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evidence that we have or the lack thereof. . . . Follow the
evidence.” Again, no objection was made. The jury found Lyden
guilty of aggravated burglary and aggravated assault. Lyden
appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 	Lyden raises two issues on appeal. First, he contends that
the 	evidence 	was 	insufficient 	as 	to 	his 	identity 	on 	both
convictions and as to serious bodily injury on the aggravated
assault conviction. “We will not reverse a jury verdict if we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177,
299 P.3d 892 (cleaned up). Thus, “we may reverse a verdict only
when the evidence, so viewed, is sufficiently inconclusive or
inherently 	improbable 	that 	reasonable 	minds 	must 	have
entertained a reasonable doubt that the defendant committed the
crime of which he or she was convicted.” State v. Graves, 2019 UT
App 72, ¶ 17, 442 P.3d 1228 (cleaned up).
¶12 	Second, 	Lyden 	contends 	that 	the 	State 	engaged 	in
prosecutorial misconduct by making the three statements related
to 	the 	defense 	attorneys 	and 	their 	theory. 	Prosecutorial
misconduct is not “a standalone basis for independent judicial
review,” State v. Hummel, 2017 UT 19, ¶ 111, 393 P.3d 314,
meaning that we do not review the prosecutor’s actions; rather,
when a prosecutorial misconduct objection is made below, we
review the district court’s ruling on the objection for abuse of
discretion, State v. Reid, 2018 UT App 146, ¶ 40, 427 P.3d 1261;
State v. Fouse, 2014 UT App 29, ¶ 19, 319 P.3d 778. When a
prosecutorial misconduct objection is not made, however, “the
law of preservation controls and we review the issues under
established exceptions to the law of preservation.” Reid, 2018 UT
App 146, ¶ 40 (cleaned up).

State v. Lyden
20180426-CA 	6 	2020 UT App 66
ANALYSIS
I. Insufficient Evidence
A. 	Identity
¶13 	Lyden’s contention that there was insufficient evidence of
his identity rests on the premise that various testimonies were
inherently improbable.2 He argues that Finau’s, Renteria’s, and
his sister’s testimonies were inherently improbable, pointing out
various 	inconsistencies 	among 	the 	testimonies 	and 	internal
inconsistencies within each testimony. But, even in the face of
these inconsistencies, this case doesn’t come close to falling
under the inherent improbability exception.
¶14 	As a widely accepted general rule, weighing the evidence
and the choice between conflicting evidence is the factfinder’s
exclusive role. E.g., State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398
(explaining 	that 	appellate 	courts 	are 	“not 	normally 	in 	the
business of reassessing or reweighing evidence” and resolve
“conflicts in the evidence in favor of the jury verdict” (cleaned
up)); State v. Cegers, 2019 UT App 54, ¶ 41, 440 P.3d 924 (“The
jury serves as the exclusive judge of both the credibility of
witnesses and the weight to be given particular evidence.”
(cleaned up)). However, the inherent improbability exception—
2. Lyden also asserts that the jury speculated as to his identity,
offering alternative theories in an attempt to explain away some
of the evidence. But his arguments employ an overly broad
understanding 	of 	speculation. 	Merely 	providing 	alternative
explanations of the evidence to support a favorable conclusion
does 	not 	constitute 	speculation; 	rather, 	speculation 	has 	no
underlying evidence to support it. See Salt Lake City v. Carrera,
2015 UT 73, ¶ 12, 358 P.3d 1067. And there is certainly a robust
evidentiary basis to identify Lyden as one of Victim’s attackers.
See infra ¶¶ 16–18.

State v. Lyden
20180426-CA 	7 	2020 UT App 66
an extremely rare exception3—allows a court to disregard certain
testimony in considering whether there is sufficient evidence to
support a conviction. Prater, 2017 UT 13, ¶ 34; State v. Robbins,
2009 UT 23, ¶ 16, 210 P.3d 288. The exception applies only when
a party can prove three elements: (1) material inconsistencies in
an individual’s statements, (2) a complete lack of corroboration
(i.e., no other circumstantial or direct evidence of the defendant’s
guilt), and (3) patent falsity in the witness’s statements. Prater,
2017 UT 13, ¶ 38; Robbins, 2009 UT 23, ¶ 19.
¶15 	Here, we easily conclude that two of the elements—a
complete lack of corroboration and patent falsity—are missing,
and we address both. To be abundantly clear, however, the lack
of either defeats Lyden’s claim. See State v. Rivera, 2019 UT App
188, ¶ 24, 455 P.3d 112 (“On appellate review, because all three
elements of the inherent improbability exception must be met
. . . , where we identify that any one of them is missing, the claim
of inherent improbability fails.”).
1. 	Corroboration
¶16 	The 	witnesses’ 	testimonies 	that 	Lyden 	claims 	were
inherently improbable were corroborated in numerous ways,
which conclusively undermine Lyden’s claims. See id.; see also
Prater, 	2017 	UT 	13, 	¶ 	38 	(noting 	that 	a 	“lack 	of 	any
corroboration” 	is 	required 	for 	the 	inherent 	improbability
exception to apply); Robbins, 2009 UT 23, ¶ 19 (“The existence of
any additional evidence supporting the verdict prevents the
3. Utah caselaw is replete with propositions related to the
significant 	rarity 	of 	the 	inherent 	improbability 	exception’s
application. E.g., State v. Rivera, 2019 UT App 188, ¶ 23 n.6, 455
P.3d 112 (“A case which actually falls within the Robbins–Prater
rubric is exceedingly rare. In fact, we have not found a single
Utah decision examined under that rubric that has reversed a
verdict since Robbins.”).

State v. Lyden
20180426-CA 	8 	2020 UT App 66
judge from reconsidering the witness’s credibility.”). To start,
Lyden’s own incriminating admissions and actions corroborated
the testimonies. He sent his sister a video of himself washing
blood off of clothing and a link to a news article about the attack.
His sister knew it was Lyden’s hand in the video because she
recognized Lyden’s heart-shaped hand tattoo. He also called his
sister and told her that everything went wrong and that he hit
somebody. 	And 	Finau 	testified 	that 	Lyden 	admitted 	his
involvement to her and the details of the night’s events. She also
attested that she went to Lyden’s house and that Lyden admitted
throwing away some clothing because “[i]t was evidence” and
“had blood on it.”
¶17 	Beyond Lyden’s own corroborative guilty behavior and
statements, which in themselves would be plenty to defeat his
claims, other evidence is consistent with, and thus corroborates,
those testimonies. Initially, it should be noted that the witnesses’
testimonies corroborated each other, amounting to one logical
version of events and adding another layer of corroboration. See
Prater, 2017 UT 13, ¶¶ 13, 43 (noting the consistent testimony
among the three witnesses); Rivera, 2019 UT App 188, ¶ 26
(explaining that the victims “uniformly reported the abuse” and
that “the details in the [victims’] statements about the abuse”
were consistent). And while not directly establishing identity,
the neighbor’s testimony about seeing people stand by Victim’s
house, hearing loud noises, and then seeing two people running
from Victim’s house that night and the evidence related to the
video footage corroborated the narrative the witnesses related.
Similarly, although Victim did not identify Lyden as one of the
assailants 	during 	trial, 	Victim’s 	pre-trial 	identification 	that
Lyden 	resembled 	one 	of 	the 	assailants 	corroborated 	the
testimonies, regardless of its relatively low probative value.
¶18 	In sum, the witnesses’ trial testimonies were significantly
corroborated. 	Therefore, 	they 	do 	not 	come 	close 	to 	being
characterized as inherently improbable, and Lyden’s associated
claim that there was insufficient evidence as to his identity fails.

State v. Lyden
20180426-CA 	9 	2020 UT App 66
2. 	Patent Falsity
¶19 	Lyden’s inherent improbability claims also fail because
there 	is 	no 	indication 	of 	patent 	falsity 	in 	the 	witnesses’
testimonies. See Rivera, 2019 UT App 188, ¶ 24. To be inherently
improbable, the testimony must not simply be false, but patently
false. See, e.g., Prater, 2017 UT 13, ¶ 38 (noting that the testimony
must be patently false for the inherent improbability exception to
apply); 	Robbins, 	2009 	UT 	23, 	¶¶ 	17–18 	(holding 	that 	the
testimony 	must 	be 	“physically 	impossible” 	or 	“include
circumstances where a witness’s testimony is incredibly dubious
and, as such, apparently false”); Cegers, 2019 UT App 54, ¶¶ 42,
47 (explaining that for testimony to be inherently improbable it
must describe “an action that was physically impossible or is
manifestly false without any resort to inferences or deductions”
and holding that the victims’ testimonies were not inherently
improbable, 	in 	part, 	because 	they 	were 	not 	patently 	false
(cleaned 	up)). 	Patently 	means 	“clearly, 	obviously, 	plainly.”
Patently, Webster’s Third New Int’l Dictionary (1971). Therefore,
testimony will check the patent falsity box of the inherent
improbability exception only when it is physically impossible or
self-evidently false. See, e.g., Robbins, 2009 UT 23, ¶ 17.
¶20 	Nevertheless, Lyden advances several arguments that the
testimonies were patently false.4 He argues that his sister’s
testimony 	and 	Renteria’s 	testimony 	are 	both 	patently 	false
because 	they 	had 	motives 	to 	lie: 	his 	sister 	to 	protect 	her
boyfriend from being implicated and Renteria for leniency from
the State related to his own criminal charges. But this argument
ignores the very definition of patent falsity. A motive to lie does
not amount to patent falsity because such a motive would
require an inference or deduction that the witness is in fact
acting on that motive, and such a necessity in turn would mean
4. Other than a few conclusory statements, Lyden does not point
out why Finau’s testimony is patently false.

State v. Lyden
20180426-CA 	10 	2020 UT App 66
that the testimony is not self-evidently false. See id. (“Testimony
is apparently false if its falsity is apparent, without any resort to
inferences or deductions.” (cleaned up)); accord Prater, 2017 UT
13, 	¶ 	32. 	Moreover, 	our 	supreme 	court 	rejected 	this 	same
argument in Prater. 2017 UT 13, ¶ 41 (explaining that testifying
“in light of favorable treatment offered by the State goes to the
weight 	and 	credibility 	of 	the 	testimony” 	and 	that 	such
determinations 	are 	exclusively 	for 	the 	factfinder). 	And 	we
likewise rejected this argument in Cegers. 2019 UT App 54, ¶ 46.
In 	doing 	so, 	we 	reiterated 	that 	“a 	motive 	to 	lie 	does 	not
automatically render a witness’s testimony apparently false”;
rather, “it goes to the weight and credibility of the testimony”
and provides an opportunity to attack a witness’s credibility on
that basis during trial. Id. (cleaned up). Hence, the witnesses’
potential motives to lie were for the jury to consider, not this
court.
¶21 	Next, 	Lyden 	asserts 	that 	his 	sister’s 	testimony 	was
patently 	false 	because 	she 	testified 	that 	“Lyden 	took 	the
[baseball] bat used in the assault from their parents’ garage,”
and that it was “a silver, metal baseball bat, but the [baseball] bat
used in the assault was a black, wooden [baseball] bat.” But that
is not what the transcript of the sister’s testimony reflects. It is
true that she testified that Lyden took a metal baseball bat from
their parents’ garage. However, she never testified as to the
particular baseball bat used in the attack on Victim. After all, she
couldn’t 	have. 	The 	evidence 	indicates 	that 	she 	was 	not 	at
Victim’s house during the attack. Thus, this argument fails to
establish patent falsehood.
¶22 	In 	sum, 	Lyden 	has 	failed 	to 	convince 	us 	that 	the
testimonies were patently false. Indeed, there is nothing self-
evident from the testimonies that they were false; instead, the
testimonies 	described 	a 	logical 	narrative 	and 	completely
plausible event. And unlike allegations that would be physically
impossible, such as that the crime “occurred on the moon,” see
Robbins, 2009 UT 23, ¶ 17, the testimonies were nowhere near

State v. Lyden
20180426-CA 	11 	2020 UT App 66
physical impossibility. The testimonies do not present an issue of
patent falsity, and Lyden’s claim of inherent improbability fails
on this basis alone. Therefore, his claim of insufficient evidence
as to his identity as the perpetrator necessarily fails as well.
B. 	Serious Bodily Injury
¶23 	Lyden next argues that there was insufficient evidence
that Victim suffered serious bodily injury and that his conviction
for 	second-degree 	aggravated 	assault 	must 	therefore 	be
reversed. See Utah Code Ann. § 76-5-103(2)(a) (LexisNexis Supp.
2019).5 To illustrate his point, Lyden directs us to the different
statutory 	definitions 	of 	“bodily 	injury,” 	“substantial 	bodily
injury,” and “serious bodily injury” and to various precedents.
We disagree with Lyden.
¶24 	The Utah Criminal Code delineates three tiers of injury in
the 	criminal 	context: 	bodily 	injury 	being 	the 	lowest 	tier,
substantial bodily injury the middle, and serious bodily injury
the highest. State v. Ekstrom, 2013 UT App 271, ¶ 16, 316 P.3d 435.
Bodily injury is “physical pain, illness, or any impairment of
physical condition.” Utah Code Ann. § 76-1-601(3). Substantial
bodily injury is “bodily injury, not amounting to serious bodily
injury, that creates or causes protracted physical pain, temporary
disfigurement, or temporary loss or impairment of the function
of any bodily member or organ.” Id. § 76-1-601(16). And serious
bodily injury is “bodily injury that creates or causes serious
permanent disfigurement, protracted loss or impairment of the
function of any bodily member or organ, or creates a substantial
risk of death.” Id. § 76-1-601(15).
5. 	Although 	some 	of 	the 	statutory 	provisions 	have 	been
amended, they have not changed in any way material to our
analysis. Therefore, we cite the current version of the Utah Code
for the sake of convenience.

State v. Lyden
20180426-CA 	12 	2020 UT App 66
¶25 	“Utah appellate courts have been asked repeatedly to
clarify the injuries that fall within each [tier].” Ekstrom, 2013 UT
App 271, ¶ 16. And in many instances evidence of the victims’
injuries has been sufficient to present to the jury the issue of
whether serious bodily injury occurred. See, e.g., State v. Kirby,
2016 UT App 193, ¶ 24, 382 P.3d 644 (deep bruising, laceration,
strangulation marks, and a fractured orbital bone); State v. Hale,
2006 UT App 434U, para. 6 (torn rotator cuff); State v. Bloomfield,
2003 UT App 3, ¶ 18, 63 P.3d 110 (temporary unconsciousness);
State v. Leleae, 1999 UT App 368, ¶ 20, 993 P.2d 232 (broken jaw);
see also State v. King, 604 P.2d 923, 926 (Utah 1979) (temporary
unconsciousness and stab wound).
¶26 	In 	this case, 	Victim 	was hit 	numerous times with 	a
baseball 	bat 	and 	brass 	knuckles 	all 	over 	his 	arms, 	torso,
and 	head. 	From 	this 	attack, 	he 	sustained 	significant
injuries, including several gashes in his head and wounds all
over his arms. Victim also endured problems with cognition,
balance, hearing, and vision for months after the attack. And he
suffered 	from 	headaches, 	short-term 	memory 	loss, 	tendon
damage preventing him from lifting certain weights, popping
wrists, and numbness and aching in his fingers almost a year
later at the time of Lyden’s trial. These continuing health issues
were 	sufficient 	for 	the 	jury 	to 	conclude 	that 	there 	was
“protracted loss or impairment of the function of [Victim’s]
bodily member[s] or organ[s,]” namely his brain, wrists, and
fingers. See Utah Code Ann. § 76-1-601(15); see also Leleae, 1999
UT App 368, ¶ 20 (“Reasonable minds could conclude a broken
jaw that is wired shut for six weeks with resulting eating
difficulties, weight loss, extraction and later replacement of a
tooth, and continuing pain is a protracted loss or impairment of
the function of a bodily member.” (cleaned up)). Simply put,
evidence of these injuries was enough for a reasonable jury to
“find that [serious bodily injury] had been proven beyond a
reasonable doubt.” See State v. Maestas, 2012 UT 46, ¶ 177, 299
P.3d 892 (cleaned up).

State v. Lyden
20180426-CA 	13 	2020 UT App 66
II. Prosecutorial Misconduct
¶27 	Lyden argues that the district court erred by overruling
his 	objection 	alleging 	prosecutorial 	misconduct 	during 	the
State’s 	closing 	rebuttal. 	But 	Lyden 	objected 	only 	to 	the
prosecutor’s first comment, not to the second or third comments
with which he now takes issue on appeal. In so doing, Lyden
failed to preserve issues related to the latter two comments. See
State v. Hummel, 2017 UT 19, ¶ 119, 393 P.3d 314 (“[T]here is a
preservation problem. For all but one of the statements in
question, [the defendant] raised no objection at trial.”); see also
State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party
fails to raise and argue an issue in the [district] court, it has
failed to preserve the issue, and an appellate court will not
typically 	reach 	that 	issue 	absent 	a 	valid 	exception 	to
preservation.”). Therefore, we review the district court’s ruling
on the first comment for abuse of discretion, see State v. Reid,
2018 UT App 146, ¶ 40, 427 P.3d 1261, and we review the second
and third comments for plain error, which Lyden argues in the
alternative, see id.
A. 	First Comment
¶28 	During closing rebuttal argument, the prosecutor first
said, “Attorneys have only so much we can do, based off of the
evidence that we have . . . . So, this is no reflection on these two
good attorneys, but their argument and their theory is not good.”
(Emphasis added.) Lyden objected to this comment, arguing, “I
think this is getting to the level of prosecutorial misconduct with
respect to commenting on the defense theory.” We conclude that
the district court’s decision to overrule Lyden’s objection was
not an abuse of discretion.
¶29 	A claim of prosecutorial misconduct on appeal involves
establishing 	two 	things: 	misconduct—that 	the 	conduct 	was
improper—and prejudice—that the conduct was harmful such
that our confidence in the verdict is undermined. E.g., State v.

State v. Lyden
20180426-CA 	14 	2020 UT App 66
Fouse, 2014 UT App 29, ¶ 29, 319 P.3d 778. Broadly speaking, “to
determine whether a prosecutor’s remarks are so objectionable
as to merit a reversal, we must determine whether the remarks
call to the attention of the jurors matters which they would not
be justified in considering in determining their verdict.” State v.
Campos, 2013 UT App 213, ¶ 50, 309 P.3d 1160 (cleaned up).
¶30 	In the specific context of commenting on the defense’s
theory, “it is not improper for counsel to contest the opposing
party’s theories as irrelevant or improbable,” so long as “it does
not amount to a personal attack on defense counsel or an
insinuation that the defense intends to mislead the jury.” State v.
Jones, 2015 UT 19, ¶ 55, 345 P.3d 1195; see also Campos, 2013 UT
App 	213, 	¶ 	57 	(explaining 	that 	there 	is 	a 	line 	between
“permissible argument of the evidence 	to an 	impermissible
attack on defense counsel’s character”). For example, in Jones,
our supreme court held that there was no misconduct when the
prosecutor attacked the defense counsel’s arguments, making
“multiple references to red herrings” because they “did not
amount to an accusation that [the defendant] or his counsel
intentionally tried to confuse the jury.” 2015 UT 19, ¶ 55 (cleaned
up). And, in Fouse, this court held that calling the defense’s
arguments “red herrings” and “asinine” did not amount to
misconduct because “the statements were a comment about the
evidence rather than an attack on defense counsel’s personal
character or an argument that defense counsel was intentionally
attempting to mislead the jury.” 2014 UT App 29, ¶¶ 30–32.
¶31 	Conversely, 	in 	Campos, 	this 	court 	held 	that 	the
prosecutor’s comment rose to the level of misconduct. 2013 UT
App 213, ¶ 54. There, the prosecutor said, “They would have
you 	believe 	an 	almost 	unbelievable 	story. Why? Simply 	to
confuse and distract.” Id. ¶ 55. This court explained that this
comment was “an impermissible attack on defense counsel’s
character” in that it conveyed “that defense counsel intended to
mislead 	the 	jury.” 	Id. 	¶ 	57. 	But 	even 	the 	Campos 	court
acknowledged that attacks on the defense’s theory rather than

State v. Lyden
20180426-CA 	15 	2020 UT App 66
on counsel personally are appropriate. Id. ¶ 56 (“Referring to
defense 	counsel’s 	theory 	as 	a 	red 	herring 	would 	not 	be
inappropriate so long as the reference could be classified as a
comment on the strength of the evidence and the inferences and
deductions arising therefrom.” (cleaned up)).
¶32 	Here, like the comments in Jones and Fouse and further
supported 	by 	the 	acknowledging 	dictum 	in 	Campos, 	the
prosecutor’s first 	comment 	did 	not 	step 	into 	the 	forbidden
area of attacking defense counsel rather than the defense’s
theory. Indeed, the attack was explicitly not against the attorneys
and was instead directed toward their argument and theory:
“So, this is no reflection on these two good attorneys, but their
argument and their theory is not good.” Accordingly, the district
court 	did 	not 	abuse 	its 	discretion 	in 	overruling 	Lyden’s
prosecutorial misconduct objection because the comment was
not improper.
B. 	Second and Third Comments
¶33 	Although Lyden has failed to preserve issues related to
the prosecutor’s second and third comments, he has argued, in
the alternative, that we “should reverse for plain error.” We
therefore review “whether counsel’s missteps were so egregious
that it would be plain error for the district court to decline to
intervene sua sponte.” Hummel, 2017 UT 19, ¶ 110; see also State v.
Bond, 	2015 	UT 	88, 	¶ 	44, 	361 	P.3d 	104 	(holding 	that 	even
“unpreserved federal constitutional claims are not subject to a
heightened review standard but are to be reviewed under our
plain error doctrine”). “To demonstrate plain error, a defendant
must establish that (i) an error exists; (ii) the error should have
been obvious to the [district] court; and (iii) the error is harmful,
i.e., absent the error there is a reasonable likelihood of a more
favorable outcome for the appellant, or phrased differently, our
confidence in the verdict is undermined.” State v. Holgate, 2000
UT 74, ¶ 13, 10 P.3d 346 (cleaned up).

State v. Lyden
20180426-CA 	16 	2020 UT App 66
¶34 	Lyden argues that the prosecutor’s comments improperly
shifted 	the 	burden 	of 	proof. 	In 	his 	second 	comment, 	the
prosecutor said, “These are two good attorneys. But what their
client has given them is not good evidence.” Then, in his third
comment, the prosecutor said, “Again, this is no reflection upon
the good attorneys that have been here today, but we all have
the evidence that we have or the lack thereof. . . . Follow the
evidence.” 	Regardless 	of 	whether 	the 	comments 	were 	an
obvious improper shifting of the burden of proof, a proposition
which we view as dubious,6 they were certainly not prejudicial.
Therefore, Lyden’s plain error argument falls short.
¶35 	There 	was 	overwhelming 	evidence 	of 	Lyden’s 	guilt
presented to the jury. See supra ¶¶ 5–9. That evidence included
(1) 	Lyden’s 	own 	immensely 	incriminating 	admissions 	and
actions, (2) testimony from his accomplice Renteria regarding the
details of the events that night, (3) evidence related to the
neighbor’s video footage corroborating the witnesses’ narrative,
6. “Claims that the prosecutor’s argument shifted the burden of
proof rarely succeed.” State v. Davis, 2013 UT App 228, ¶ 54, 311
P.3d 538 (holding that the prosecutor’s comments on the lack of
evidence brought forth by the defendant did not improperly
shift the burden of proof), abrogated on other grounds by State v.
Ringstad, 2018 UT App 66, 424 P.3d 1052. More to the point, “it is
not improper for the prosecution to argue the case based on the
total picture shown by the evidence or the lack thereof or to fully
discuss from its perspective the evidence and all inferences and
deductions it supports.” State v. Maestas, 2012 UT 46, ¶ 167, 299
P.3d 892 (emphasis added) (cleaned up) (rejecting a claim that
the 	prosecutor’s 	argument 	that 	the 	defendant 	could 	have
obtained an independent DNA test shifted the burden of proof);
see also State v. Nelson-Waggoner, 2004 UT 29, ¶ 33, 94 P.3d 186
(explaining that a prosecutor is “free to highlight an overall
shortfall of defense evidence”).

State v. Lyden
20180426-CA 	17 	2020 UT App 66
(4) the other neighbor’s testimony corroborating the witnesses’
testimonies, (5) Victim’s testimony of the attack and his injuries,
(6) photographs of Victim’s injuries, and (7) Victim’s pre-trial
identification 	of 	Lyden 	as 	resembling 	one 	of 	the 	attackers.
Furthermore, the court and counsel reminded the jury at least
eight times that the prosecutor bore the burden of proving
Lyden’s guilt.
¶36 	Accordingly, we conclude that, absent the prosecutor’s
remarks, 	it 	is 	unlikely 	that 	the 	outcome 	would 	have 	been
different, and therefore we see no prejudice. Any claim of plain
error related to these comments fails.
CONCLUSION
¶37 	We hold that the evidence was sufficient both as to
Lyden’s identity and as to Victim’s serious bodily injury. We
also hold that the State’s first comment in closing argument did
not rise to the level of prosecutorial misconduct. We finally hold
that Lyden did not preserve issues related to the State’s second
and third comments in closing argument and that the district
court did not commit plain error by not intervening because
Lyden was not prejudiced by those comments.
¶38 	Affirmed.