2020 UT App 66

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ELIESA VEA MATTHEW 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 DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY 

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

20180426-CA 3 2020 UT App 66

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

20180426-CA 4 2020 UT App 66

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

20180426-CA 5 2020 UT App 66

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 selfevident 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.