State v. Graydon

2023 UT App 4
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
GARY JOSEPH GRAYDON ,
Appellant.
Opinion
No. 20190918-CA
Filed January 20, 2023
Third District Court, West Jordan Department
The Honorable Chelsea Koch
The Honorable Katie Bernards-Goodman
No. 171404075
Janet Lawrence and Steffen Soller,
Attorneys for Appellant
Sean D. Reyes and Jeffrey D. Mann,
Attorneys for Appellee
JUDGE R YAN D. T ENNEY authored this Opinion, in which
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER and S ENIOR JUDGE
K ATE A PPLEBY concurred.1
TENNEY, Judge:
¶1 	A jury convicted Gary Graydon of aggravated assault and
reckless driving after he displayed a gun during a road rage
incident. On appeal, Graydon argues that there was insufficient
evidence to support his conviction for aggravated assault, that the
district court should have declared a mistrial after a police officer
testified that Graydon had been in “a similar situation” before,
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

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20190918-CA 	2 	2023 UT App 4
and that the district court should have suppressed the victim’s
identification of him. For the reasons set forth below, we affirm.
BACKGROUND2
Wife’s 911 Call
¶2 	Around 8:30 p.m. on August 5, 2017, Graydon’s wife (Wife)
called 911 and told the dispatcher that Graydon was suicidal and
had just left their home in Riverton, Utah, with a handgun. Wife
also reported that Graydon was driving a “goldish/brown” 2000
Lexus RX 350. An officer with the Unified Police Department
(Officer 1) responded to the call and interviewed Wife.
The Incident
¶3 	Sometime within the next twenty minutes or so, the victim
(Victim) was driving north on Highland Drive in Draper, Utah. A
vehicle “pulled out in front of [him] and there wasn’t much room
at all, so [he] hit [his] brakes and slowed down.” Victim later
recalled that the vehicle was a “silverish-blue” Lexus and that it
was a “small SUV” model, like “an RX350.” After pulling in front
of Victim, the Lexus driver “slammed” on the brakes and “came
to a complete stop.” When the Lexus didn’t move, Victim drove
around it, and he could see the Lexus driver yelling and shaking
his fist at Victim. Victim later identified the Lexus driver as
Graydon.
¶4 	“[A]bout five seconds later,” Graydon came “whizzing”
past Victim, slammed on his brakes, and then started “swerving
2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (quotation
simplified).

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20190918-CA 	3 	2023 UT App 4
back and forth.” Victim decided to pull over to the side of the road
because he thought Graydon would just keep going. After Victim
pulled over, other vehicles followed suit and parked behind him.
¶5 	But Graydon did not keep going. Instead, he pulled to the
side of the road about 30 feet in front of Victim, got out of his
vehicle, and came running back towards Victim. Victim got out of
his truck too. At trial, when asked why he exited his vehicle,
Victim explained that his truck was new and he was worried that
Graydon would damage it. Graydon met Victim at Victim’s
driver-side door, said, “Let’s go,” and kicked Victim in the side at
about rib height. Victim was able to mostly block the kick with his
elbow. Graydon then swung at Victim with his fist, but he missed.
Victim swung back at Graydon, hitting him and knocking him to
the ground. Victim hit Graydon “probably” “two, three more
times” because he was afraid that if he “let [Graydon] up for a
second,” Graydon would “swing” or “kick” at Victim again.
When 	Graydon 	said, 	“I’ve 	had 	enough,” 	Victim 	stopped
swinging.
¶6 	The two men returned to their respective vehicles, and
because the fight had happened near Victim’s truck, Victim
arrived at his first. When Victim got to his door, he “stood there
for just a second” and watched Graydon to make sure that
Graydon didn’t “run back” at him. Victim then got into his truck
when Graydon reached his Lexus. But Graydon didn’t get into his
vehicle— instead, he leaned in and pulled out “a silver pistol.”
Graydon then stood by his door and tried to “rack a round” by
pulling the slide “at least six or seven times,” but it “looked like it
was jammed.” As Graydon did this, he didn’t “draw a bead on”
Victim, but the gun “was pointing towards [Victim at] about a
45-degree angle in [his] general direction.”
¶7 	Victim was frightened and wanted to drive away, but he
could back up only a few feet because a vehicle was parked
behind him. He was also afraid that Graydon would shoot him if
he pulled forward. So Victim “froze like a deer in the headlights

State v. Graydon
20190918-CA 	4 	2023 UT App 4
for a second.” After the unsuccessful attempts to chamber a
round, Graydon threw the gun into his Lexus and “sped off.”
¶8 	Victim pulled out and drove behind Graydon, “hoping to
follow him long enough that the cops could catch him.” But
Graydon was driving “erratically,” so after “about a half a mile,”
Victim pulled over and called 911.
The Investigation and Preliminary Hearing
¶9 	At 8:44 p.m., an officer from the Draper City Police
Department (Officer 2) responded to Victim’s 911 call. Victim and
Officer 2 met just off Highland Drive, and Officer 2 observed that
Victim “was in somewhat of a panic or looked stressed.” Victim
described what had happened, and Officer 2’s body camera
captured at least some of Victim’s description.3
¶10 	After talking with Victim, the police identified Graydon as
a suspect in the case because Victim’s description of the driver and
vehicle from his confrontation mostly matched the description of
Graydon and his vehicle that Wife had given to officers earlier.
Sometime within an hour of the incident, an officer presented
Victim with a photograph lineup that included a headshot of
Graydon. Victim was unable to identify Graydon from the lineup,
however, because in his opinion, “the pictures were not good to
go off of.”
¶11 	The State later charged Graydon with aggravated assault
and reckless driving. About four to six weeks after the incident,
3. The record contains four accounts from Victim about the
incident: a transcript of the portion of the bodycam footage
described 	above 	that 	was 	later 	played 	at 	trial; 	Victim’s
preliminary hearing testimony; Victim’s testimony at the hearing
on the motion to suppress; and Victim’s testimony at trial. As
explained below, the accounts have some inconsistencies, but we
don’t consider those inconsistencies to be material.

State v. Graydon
20190918-CA 	5 	2023 UT App 4
Victim received a notice about the upcoming preliminary hearing,
saw Graydon listed as the defendant, and looked up his Facebook
page. When looking at some of Graydon’s photos, Victim became
“absolutely 100 percent” certain that Graydon was the driver
from 	the 	confrontation. 	At 	the 	preliminary 	hearing 	(which
occurred about seven months after the incident), Victim described
what happened and identified Graydon as the driver. He also
acknowledged that he had looked at Graydon’s Facebook page
before the hearing.
Graydon’s Motion to Suppress
¶12 	After the preliminary hearing, Graydon filed a motion to
suppress Victim’s eyewitness identification. Graydon contended
that the identification was “unconstitutionally unreliable,” and he
based his argument on the factors laid out in State v. Ramirez, 817
P.2d 774 (Utah 1991). For example, he argued that although
Victim had the “opportunity to observe the unknown individual
during the event,” Victim was likely more focused on the fight
than on identifying the other man and “that the stress from the
fight caused him to be distracted and not focused.” Graydon also
argued that Victim’s identification “was influenced by his own
independent 	research” 	and 	that 	Victim 	“may 	have 	simply
identified the man he searched for online after being given the
name of the individual by the State.” Graydon accordingly argued
that 	Victim’s 	identification 	was 	“unreliable 	and 	should 	be
excluded at trial.”
¶13 	The district court held a hearing on Graydon’s motion to
suppress. Victim was the only witness, and he testified to the
events described above. Relevant to Graydon’s motion, Victim
testified that on the day of the incident, he had not consumed any
drugs or alcohol, he was wearing his contacts and could see
clearly, it was “[v]ery light” outside, and the other driver’s face
was not covered. Victim described the other driver as being
“about” his height with a muscular build, and he said that the
driver was either barefoot or wearing flip-flops. He also said the

State v. Graydon
20190918-CA 	6 	2023 UT App 4
Lexus was either an RX350 or an RX330, that it was “maybe 10
years old,” and that it was “[s]ilver with maybe a little bit of blue
to it.” He said that he saw the Lexus in the parking lot at the
preliminary hearing. And although Victim admitted that he was
unable to identify Graydon at the earlier photo lineup, he said that
he was “absolutely 100 percent” certain that Graydon was the
driver after looking at Graydon’s Facebook page.
¶14 	After 	argument 	from 	both 	sides, 	the 	court 	denied
Graydon’s motion to suppress. In doing so, the court found that
Victim 	“had 	sufficient 	opportunity 	to 	observe 	the 	person
assaulting him for 20–30 seconds at close range,” that “it was light
outside,” that Victim’s “attention was completely on the person
assaulting him,” that Victim “was wearing contacts[,] giving him
clear vision,” and that Victim “was not on any substances that
would 	impair 	his vision 	or 	mental 	acuity.” 	The 	court 	also
concluded that “looking up photos on Facebook is no more
suggestive 	than 	coming 	to 	a 	court 	hearing 	and 	seeing 	the
Defendant sitting next to his attorney.” The court thus held that
the “identification made by [Victim] by looking up photos of
[Graydon] on Facebook [was] sufficiently reliable for admission
and consideration by a jury.” But the court also ruled that
Graydon could “discuss the suggestive event with the jury,”
“have an expert,” and cross-examine Victim “to try and damage
the weight of the identification.”
The Trial
¶15 	At trial, the State presented four witnesses: Victim, the 911
dispatcher (Dispatcher) who answered Wife’s call, Officer 2, and
Officer 1.
¶16 	Victim testified to the events as described above. On
cross-examination, trial counsel (Counsel) asked Victim about the
photo lineup and the Facebook search. Victim confirmed that he
was unable to pick Graydon out of the lineup and that he was only
able to identify him after viewing his Facebook page. Counsel also

State v. Graydon
20190918-CA 	7 	2023 UT App 4
questioned Victim about the inconsistencies among his four
accounts of the incident.
¶17 	Officer 2 testified next, and on cross-examination, Counsel
played bodycam footage of the officer’s interview of Victim.
Counsel also questioned Officer 2 about Victim’s inability to
identify Graydon in the photo lineup.
¶18 	Dispatcher and Officer 1 each testified about Wife’s 911
call. Officer 1 explained that he had at some point become aware
of a road rage incident involving a vehicle and driver that
matched Wife’s description of Graydon. The prosecutor asked if
he found “out any more information about” Graydon, and
Officer 1 responded “[t]hat there was a similar situation several
years earlier.” Counsel objected to this statement, but before the
court could rule, the prosecutor reworded his question and asked
whether the police ever located Graydon.
¶19 	After Officer 1 finished testifying, and outside the jury’s
presence, Counsel asked for a mistrial based on Officer 1’s
statement “[t]hat there was a similar situation several years
earlier.” The court accessed Graydon’s criminal history and saw
that he had no prior assault convictions or road rage incidents.
But the court declined to grant a mistrial and instead gave the jury
the following curative instruction:
You heard an officer—you heard an objection when
an officer said something about a prior incident or a
prior similar incident. So we just waited to the break
to look into it. I want to instruct you that there is no
prior similar incident. The defendant does not have
a prior road rage. He does not have any prior
aggravated assaults. So we don’t know what that
was. 	The 	officer 	could 	have 	been 	looking 	up
something and it could have been somebody else’s.

State v. Graydon
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So you need to decide this case on the evidence you
hear today with this incident and not try to consider
anything from the past.
¶20 	After the State presented its case in chief, Counsel moved
for a directed verdict based on several grounds. First, he argued
that Victim’s identification of Graydon was tainted because of
Victim’s “research through Facebook.” Second, he asked the court
to “strike” and “disregard” Victim’s testimony because Victim
made “himself out to be extremely innocent,” which was “not
believable.” Third, Counsel argued that the case wasn’t “true to
aggravated assault” because there were “indications” that Victim
initiated the fight, that Victim “beat [Graydon] up,” and that
Graydon was just “playing with his gun” and “was not pointing
it at” Victim.
¶21 	The district court denied the directed verdict motion. The
court understood Counsel to be arguing, in part, that Victim’s
various accounts of the incident were too inconsistent to support
a conviction. And the court acknowledged that there were some
inconsistencies among Victim’s four accounts of the incident.
Among others, Victim was inconsistent about whether he honked
at Graydon, how close the two vehicles were when Graydon
pulled in front of Victim, and whether Victim had called Graydon
a “paper dragon.”4 But the court explained that despite these or
any 	other 	inconsistencies, 	there 	were 	no 	inconsistencies 	in
Victim’s account about “who started the fight first, and what
happened during the fight, and whether or not there was a gun
4. 	The 	term 	“paper 	dragon” 	can 	refer 	to 	something 	that
deceptively “appears to be powerful and capable.” John Mac
Ghlionn, 	China 	Is 	No 	Paper 	Dragon, 	National 	Review,
https://www.nationalreview.com/2021/05/china-is-no-paper-dra
gon/ [https://perma.cc/4NBR-WBPN]. As one essayist put it, “All
bark, no bite. The dragon exists, but it breathes no fire.” Id.

State v. Graydon
20190918-CA 	9 	2023 UT App 4
present, and whether it was pointed in [Victim’s] direction.” The
court thus denied the motion.
¶22 	Graydon was the defense’s only witness. In his testimony,
Graydon acknowledged that he had been in a physical altercation
with Victim, and his account mostly tracked Victim’s, though
with some key differences. Graydon testified that he was driving
on Highland Drive because he was interested in moving to that
area. He acknowledged that he pulled in front of Victim, but he
claimed that it was not intentional and that he had simply
misjudged Victim’s speed. Graydon said that he then “heard a
sustained car horn,” which startled him, so he stopped in the road.
Nothing seemed to be wrong, so he continued to drive, at which
point he “started hearing horns again” and saw Victim tailgating
him, “honking his horn repeatedly,” “gesturing with . . . sign
language,” and “flashing his brights.” Graydon said that he
“slowed down significantly,” after which Victim pulled up beside
him and they “began exchanging sign language.” Graydon said
that he then pulled over and saw Victim pull behind him and get
out of his vehicle.
¶23 	Graydon said that he got out of his vehicle too and “went
back to” Victim because he “wanted to get in [Victim’s] face.”
Graydon testified that as he approached Victim, Victim had taken
a “fighting position,” which “put [Graydon] in a defensive
posture.” Graydon acknowledged that he kicked Victim before
Victim began punching him.
¶24 	According to Graydon, he went back to his vehicle after
Victim’s last punch and then turned to see Victim standing by his
vehicle and giving him “a very menacing look.” Graydon testified
that he wanted to leave at that point but that his eye was swollen
shut, thus making it hard to find his keys. Graydon said that he
was worried that Victim would come after him, so he picked up
his handgun—which he claimed was in “disrepair”—and “threw
the slide a few times.” He said that he did this to give Victim “the
impression that [he] had a capable weapon,” but he insisted that

State v. Graydon
20190918-CA 	10 	2023 UT App 4
he never pointed the gun at Victim. Graydon said that he then
found his keys, got in his vehicle, and left. Graydon testified that
he later received surgery to try to repair his eye. All in all,
Graydon chalked up the incident to “a couple of guys being
idiot[s] with each other.”
¶25 	After each side rested and presented closing arguments,
the jury found Graydon guilty of aggravated assault and reckless
driving. Graydon now appeals his aggravated assault conviction.
ISSUES AND STANDARDS OF REVIEW
¶26 	Graydon first argues that the district court erred when it
denied his motion for a directed verdict. “We review the district
court’s denial of a motion for directed verdict for correctness.”
State v. Barner, 2020 UT App 68, ¶ 9, 464 P.3d 190 (quotation
simplified). When a defendant “challenges the denial of a motion
for a directed verdict based on the sufficiency of the evidence, the
applicable standard of review is highly deferential,” and “we will
uphold the district court’s denial if, when viewed in the light most
favorable to the State, some evidence exists from which the
elements of the crime could be proven beyond a reasonable
doubt.” State v. Washington, 2021 UT App 114, ¶ 8, 501 P.3d 1160
(quotation simplified).
¶27 	Second, Graydon argues that the court erred when it
denied his motion for a mistrial and instead gave a curative
instruction. “A trial court’s denial of a mistrial motion is reviewed
for [an] abuse of discretion.” State v. Dunne, 2020 UT App 56, ¶ 18,
463 P.3d 100.
¶28 	Finally, Graydon argues that the court erred by denying his
motion 	to 	suppress 	Victim’s 	eyewitness 	identification. 	As
explained below in Part III, we conclude that the admissibility of
Victim’s identification is governed by rule 403 of the Utah Rules
of Evidence. A district court’s “decision to admit evidence under

State v. Graydon
20190918-CA 	11 	2023 UT App 4
rule 403 of the Utah Rules of Evidence is reviewed for an abuse of
discretion.” State v. Wright, 2021 UT App 7, ¶ 25, 481 P.3d 479
(quotation simplified); see also id. ¶ 41 (“Consequently, our review
is limited to determining whether the district court abused its
discretion under rule 403 in admitting Eyewitness’s testimony.”).
ANALYSIS
I. Motion for a Directed Verdict
¶29 	Graydon argues that the district court erred in denying his
motion for a directed verdict. In Graydon’s view, (A) there was
insufficient evidence to show that he committed the actus reus for
aggravated assault, (B) there was insufficient evidence to disprove
his self-defense claim, and (C) Victim’s trial testimony was
inherently 	improbable 	because 	of 	inconsistencies among 	his
various accounts of the incident. In response, the State contends
that each argument was unpreserved and, in any event, meritless.
We address these arguments in turn.
A. 	Actus Reus of Aggravated Assault
¶30 	The 	State 	charged 	Graydon 	with 	aggravated 	assault.
Under the statute, aggravated assault can be committed a number
of ways. See Utah Code § 76-5-103(2). As charged here, the State
needed to prove beyond a reasonable doubt that Graydon made
“a threat, accompanied by a show of immediate force or violence,
to do bodily injury to another.” Id. § 76-5-103(2)(a)(ii). In closing,
the prosecutor thus argued that Graydon made a threat when “he
went back to his [vehicle and] pulled the gun out.” And he further
argued that Graydon made a show of force when he pointed the
gun in Victim’s “direction and began to rack it.”
¶31 	On appeal, Graydon contends that the State “attempted to
prove both threat and show of force by one act—Graydon’s
exhibition 	of 	the 	gun.” 	He 	further 	contends 	that 	the 	State

State v. Graydon
20190918-CA 	12 	2023 UT App 4
cannot rely on a single act to prove a threat and a show of
force. Put differently, Graydon argues that the State “failed
to prove the actus reus of aggravated assault” because it “did
not prove Graydon made both a threat and a separate show
of force as required by statute.” (Emphasis in original.) The
State contends that this argument was not preserved and that
Graydon has not shown plain error. We agree with the State on
both fronts.
1. 	Preservation
¶32 	“An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has
an opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 15,
416 P.3d 443 (quotation simplified). “[W]here a motion for a
directed verdict makes general assertions but fails to assert
the specific argument raised on appeal, the directed verdict
motion 	itself 	is 	insufficient 	to 	preserve 	the 	more 	specific
argument for appeal.” State v. Bosquez, 2012 UT App 89, ¶ 8, 275
P.3d 1032. “Such specificity is necessary to allow the district court
to assess allegations by isolating relevant facts and considering
them in the context of the specific legal doctrine placed at issue.”
State v. Rogers, 2020 UT App 78, ¶ 47, 467 P.3d 880 (quotation
simplified).
¶33 	In his motion for a directed verdict, Graydon did not argue
that the statute required “both a threat and a separate show of
force.” (Emphasis in original.) His arguments were limited to
asserting 	that his actions weren’t 	“true” aggravated assault
because he was just “playing with his gun” and “not pointing it
at” Victim. This was merely a “general assertion[]” about the
sufficiency of the evidence, and it was not specific enough to alert
the district court that it needed to consider whether the statute
requires two separate acts. See Bosquez, 2012 UT App 89, ¶ 8; see
also id. ¶ 10 (“Broadly challenging one of the elements of the
charge is insufficient to preserve for appeal any and every
argument that could possibly relate to that element.”).

State v. Graydon
20190918-CA 	13 	2023 UT App 4
¶34 	Graydon, 	however, 	asserts 	that 	this 	argument 	was
preserved because the “context” would have made his objection
“clear.” To be sure, an issue is preserved when “the specific
ground for an objection is clear from its context.” State v. Gonzalez,
2015 UT 10, ¶ 26, 345 P.3d 1168. But even so, we still see no place
in this record where Graydon argued that the statute requires
separate acts to prove the threat and show of force elements.
Because of this, we don’t see any context that would have made it
clear to the district court that Graydon was making this very
particular legal argument. We are accordingly unconvinced that
this argument was presented to the district court in a manner
sufficient to preserve it for appellate review.
2. 	Plain Error
¶35 	Because this argument was unpreserved, Graydon must
demonstrate that there was plain error to prevail on appeal. See id.
¶ 19. “To demonstrate plain error, a defendant must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful.” Id. ¶ 20 (quotation
simplified). “An error is obvious if from a review of the record,
the appellate court is led to the conclusion that given the
circumstances, the trial court should have been aware that an
error was being committed at the time.” State v. Marquina, 2020
UT 66, ¶ 30, 478 P.3d 37 (quotation simplified). To succeed,
Graydon must therefore show that it should have been obvious to
the district court that the State was required to point to separate
acts as proof of the threat and show of force elements. But we are
unpersuaded that there was any error, let alone an obvious error,
because in our view, a single act can satisfy both elements within
a single charged offense.5
5. The State argues that even if separate acts were required, there
was sufficient evidence for the jury to find that Graydon made a
threat and displayed a show of force in this case through separate
(continued…)

State v. Graydon
20190918-CA 	14 	2023 UT App 4
¶36 	Though this issue appears to have been unaddressed in a
Utah appellate opinion, other courts have held that a single act or
a single series of acts may be used to prove more than one element
of a crime.6 See, e.g., State v. Jarvis, 649 N.W.2d 186, 193 (Minn. Ct.
App. 2002) (“The same sequence of events can prove multiple
elements of one crime.”); State v. Mason, 2018 WI App 57, ¶ 28 n.4,
918 N.W.2d 78 (“As with many crimes, the same act may satisfy
two different elements.” (quotation simplified)). To illustrate, the
Minnesota Court of Appeals provided this example:
[A] defendant pulls a pistol out of his belt and says
to a man next to him with whom he was arguing, I
am going to kill you. The defendant pulls the pistol
up to shoulder level, aims it at the man, cocks the
trigger, pulls the trigger, and kills the man. That is
one series of acts. That same (one) series produces
evidence 	that 	permits 	the 	state 	to 	argue 	the
defendant (1) premeditated; (2) had intent to kill;
and (3) killed a human being.
Jarvis, 649 N.W.2d at 193.
¶37 	That same logic holds true in the assault context. As noted,
aggravated assault requires the State to prove that there was “a
threat, accompanied by a show of immediate force or violence, to
acts. But we need not address this alternative argument because
we conclude that, even if there was only a single act, that act was
sufficient to establish both the threat and the show of force.
6. Of course, criminal defendants may not be “twice punished for
committing a single act that may violate more than one criminal
statute.” State v. Bond, 2015 UT 88, ¶ 65, 361 P.3d 104 (quotation
simplified). But our holding today does not implicate the merger
doctrine or the Double Jeopardy Clause because we are simply
concluding that a single act may be used to prove multiple
elements within a single charge of aggravated assault.

State v. Graydon
20190918-CA 	15 	2023 UT App 4
do bodily injury to another.” Utah Code § 76-5-103(2)(a)(ii). “A
threat is the expression of an intention to inflict injury on another
through conduct or words.” Layton City v. Carr, 2014 UT App 227,
¶ 8, 336 P.3d 587 (quotation simplified). As for the “show of force”
element, that phrase is not defined in the Utah Code, and so far as
we can tell, no Utah case has defined it either. But the parties here
have agreed that it refers to a “display of one’s power, influence
or capability to cause harm, meant to act as a warning or deterrent
to others.” Though we need not decide whether this is the
definitive definition for this phrase, this seems to be a reasonable
expression 	of 	what 	it 	means. 	Accepting 	this 	definition 	for
purposes of this appeal, we see no error in the decision at issue.
¶38 	It’s true that a single act might not always satisfy both the
threat element and the show of force element. A person could
conceivably threaten another without making a show of force
(such as through a verbal threat, unaccompanied by anything
else), and a person might also make a show of force without
making any threat. But this doesn’t mean that, under some
circumstances, 	a 	single 	act 	couldn’t 	satisfy 	both 	elements.
Suppose that A and B have just been in a confrontation or have
some history of hostility. Against such a backdrop, if A silently
points a gun at B, this single act could serve as both an expression
of A’s intention to inflict injury on B through conduct (i.e., the
threat), as well as a display of A’s power, influence or capability
to cause harm, meant to act as a warning or deterrent to B (i.e., the
show of force).
¶39 	The same is true here. Again, in this procedural posture,
we must view the evidence “in the light most favorable to the
State.” State v. Washington, 2021 UT App 114, ¶ 8, 501 P.3d 1160
(quotation simplified). So viewed, the circumstances that led to
the “single act” in question were these: after having a fairly
aggressive 	on-the-road 	dispute 	about 	each 	other’s 	driving,
Graydon and Victim pulled over to the side of the road, got out of
their vehicles, and engaged in a physical altercation in which each
landed 	blows 	and 	which 	culminated 	in 	Victim 	repeatedly

State v. Graydon
20190918-CA 	16 	2023 UT App 4
punching Graydon in the face. After the two returned to their
respective vehicles, Graydon then performed the “single act” in
question—namely, he pointed a handgun in Victim’s general
direction. 	Against 	the 	backdrop 	of 	the 	just-concluded
confrontation, 	a 	jury 	could 	conclude 	that 	when 	Graydon
pointed the gun in Victim’s direction, he both threatened Victim
and made a show of force, thereby providing some evidence
from which the jury could conclude that each element had been
proven.
¶40 	Graydon, 	however, 	points 	to 	the 	statutory 	phrase
“accompanied 	by” 	and 	argues 	that 	this 	phrase 	would 	be
meaningless if a single act could constitute both a threat and a
show of force. But we read that language as requiring there to be
both a threat and a show of force. As explained, however, this can
be accomplished through a single act or through multiple acts. We
disagree with Graydon’s suggestion that this phrase requires
separate acts for each element.
¶41 	Graydon also points to several Utah cases affirming assault
convictions and contends that they support his conclusion that
there must be a threat and a separate show of force. Although
some of these cases involve separate acts, see, e.g., State v. Brown,
853 P.2d 851, 860 (Utah 1992) (defendant “raised a crescent
wrench in his hand, pulled it back,” and said, “Do you want some
of it too?”), none of them state that separate acts are required. And
having considered the issue here, we see no basis for imposing
such a requirement in either the statutory text or the understood
meanings of its terms.
¶42 	Because of all this, we conclude that the court did not err,
let 	alone 	obviously 	err, 	when 	it 	determined 	that 	the 	State
presented sufficient evidence that Graydon made “a threat,
accompanied by a show of immediate force or violence, to do
bodily injury to another.” Utah Code § 76-5-103(2)(a)(ii). This is so
because, even if the State did rely on a single act, that act could
establish both elements.

State v. Graydon
20190918-CA 	17 	2023 UT App 4
B. 	Self-Defense
¶43 	Graydon next argues that the district court should have
granted his motion for a directed verdict because the State failed
to disprove self-defense. Graydon makes three arguments in
support of this claim, but we reject all three because there was
sufficient evidence to disprove self-defense.7
¶44 	Graydon first argues that he was acting in self-defense
because 	he 	was 	not 	the 	initial 	aggressor. 	See 	Utah 	Code
§ 76-2-402(3)(a)(iii) (establishing that an individual who “was the
aggressor” “is not justified in using force”). In support, Graydon
asserts 	that 	Victim 	“began 	the 	confrontation 	by 	coming
dangerously close to Graydon’s rear bumper, honking his horn
and jockeying for a place with Graydon, pulling over first, exiting
his vehicle first, and initiating the fight.” (Quotation simplified.)
But 	this argument 	presents the 	evidence 	in 	the 	light 	most
favorable to Graydon, not the State.
¶45 	Viewed in the light most favorable to the State, however,
the evidence demonstrated that Graydon pulled in front of
Victim, Victim then drove past Graydon because Graydon had
stopped in the middle of the road, and Victim pulled over only
because Graydon accelerated past him and was swerving all over
the road. Moreover, Victim testified that Graydon ran toward
him, said, “Let’s go,” kicked him in the side, and attempted to
punch him. Indeed, in Graydon’s own testimony, he confirmed
that he made the first physical contact when he kicked Victim.
From all this, there was at least some evidence from which the
7. The State asserts that Graydon’s self-defense arguments were
not preserved. Where “the merits of a claim can easily be resolved
in favor of the party asserting that the claim was not preserved,
we readily may opt to do so without addressing preservation.”
State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (quotation
simplified). This is so here.

State v. Graydon
20190918-CA 	18 	2023 UT App 4
jury could conclude that it was Graydon—not Victim—who was
the initial aggressor. See Washington, 2021 UT App 114, ¶ 8.
¶46 	Graydon next argues that, even if he was the aggressor in
the initial stages of the confrontation, Victim’s “use of force”
during 	their 	physical 	exchange 	was 	“disproportionate 	to
Graydon’s use of force.” In Graydon’s view, this was so because,
after Victim’s first punch knocked Graydon to the ground and
damaged his eye, Victim “continued to punch Graydon in the
head even though Graydon had been neutralized as a potential
threat.” As a result, Graydon argues that Victim had become the
aggressor 	by 	the 	time 	Graydon 	exhibited 	his 	gun, 	thereby
allowing Graydon to then display the gun as an act of self-defense
against that aggression.
¶47 	It’s true, of course, that the “law on self-defense does not
allow for disproportionate use of defensive force,” and it’s
likewise true that “using force in excess of the amount necessary
to subdue any threat posed by another person is unjustified and
unreasonable.” State v. Wall, 2020 UT App 168, ¶ 19, 479 P.3d 355
(quotation simplified). But the problem with Graydon’s argument
is that he again doesn’t view the evidence in the light most
favorable to the State. Victim testified that he hit Graydon “a
couple more times” after Graydon was on the ground because he
was afraid that Graydon would get up and try to punch or kick
him again. He also testified that he stopped hitting Graydon once
Graydon said, “I’ve had enough.” This was sufficient evidence
from which the jury could conclude that Victim used only the
amount of force “necessary to subdue any threat posed by”
Graydon, see id. (quotation simplified), thereby also allowing the
jury to conclude that Graydon was not acting in self-defense when
he returned to his vehicle and grabbed his gun.
¶48 	Finally, Graydon argues that he was justified in displaying
his gun because Victim “remained a threat by maintaining a
menacing 	stance, 	not 	driving 	away 	from 	the 	scene, 	and
prolonging the encounter by chasing Graydon when Graydon

State v. Graydon
20190918-CA 	19 	2023 UT App 4
drove away.” (Quotation simplified.) But the fight was over and
the two men had already separated when Graydon grabbed his
gun. Moreover, Victim testified that he didn’t leave because there
was a car parked behind him and he was afraid to drive past
Graydon. And even though Graydon testified that Victim had “a
menacing look” and he was afraid Victim would “make some
kind of move,” Graydon never testified that Victim attempted to
make 	any 	such 	move. 	Furthermore, 	Victim’s 	actions 	after
Graydon displayed the gun—such as driving after Graydon—
cannot retroactively justify Graydon’s decision to display the gun
earlier. Viewing the evidence in the light most favorable to the
State, we conclude that there was sufficient evidence to disprove
Graydon’s claim that he was justified in displaying his gun.
¶49 	In short, because the State presented sufficient evidence to
disprove self-defense, the court did not err in rejecting Graydon’s
motion for a directed verdict on this point.
C. 	Inherent Improbability
¶50 	Graydon argues that there was insufficient evidence to
convict 	him 	because 	Victim’s 	testimony 	was 	inherently
improbable. 	We 	disagree. 	Although 	there 	were 	some
inconsistencies in Victim’s account, we conclude that his overall
accounts were at least materially consistent. As a result, the
inconsistencies didn’t warrant a directed verdict.8
¶51 	“We are not normally in the business of reassessing or
reweighing evidence, and we resolve conflicts in the evidence in
favor of the jury verdict.” State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d
398 (quotation simplified). “In some unusual circumstances,”
however, “we will conclude that the testimony presented to the
jury 	was 	so 	unreliable 	that 	it 	cannot 	form 	the 	basis 	of 	a
8. The State contends that this argument is unpreserved. But
because we easily resolve this issue in the State’s favor, we do not
address this argument. See Kitches, 2021 UT App 24, ¶ 28.

State v. Graydon
20190918-CA 	20 	2023 UT App 4
conviction.” 	Id. 	(quotation 	simplified). 	Such 	unusual
circumstances exist when the testimony is “so inconclusive or
inherently improbable that it could not support a finding of guilt
beyond a reasonable doubt.” Id. (quotation simplified).
¶52 	Our supreme court has “identified three factors that merit
consideration under an inherently improbable analysis: material
inconsistencies, patent falsehoods, and lack of corroborating
evidence.” State v. Jok, 2021 UT 35, ¶ 32, 493 P.3d 665 (emphasis
added). But the court has also cautioned that the “proper test is,
and always has been, whether reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime.” Id. (quotation simplified).
¶53 	The thrust of Graydon’s argument is that Victim’s four
accounts were so inconsistent with each other that Victim’s
testimony became inherently improbable. In support of this
argument, 	Graydon 	identifies 	eleven 	inconsistencies 	from
Victim’s accounts. And indeed, there were some inconsistencies.
For example, Victim’s accounts varied about how hard he braked
when Graydon pulled in front of him, how close he got to
Graydon when Graydon pulled in front of him, whether he
honked at Graydon, and whether Graydon gestured for him to
pull over. Furthermore, Graydon notes that when Victim spoke to
Officer 2, he called Graydon a “paper dragon,” but that at trial,
Victim said he didn’t even know what “paper dragon” meant.
¶54 	In 	our 	view, 	however, 	neither 	these 	nor 	any 	other
identified 	inconsistency 	rendered 	Victim’s 	testimony 	“so
unreliable that it [could not] form the basis of a conviction.” Prater,
2017 UT 13, ¶ 32. This is because Victim’s various accounts were
still materially consistent. Cf. Jok, 2021 UT 35, ¶ 27 (holding that
testimony 	was 	not 	inherently 	improbable 	where 	it 	was
“overwhelmingly consistent and free from statements that would
have cast substantial doubt on [the witness’s] testimony”). Even
with the differences identified by Graydon, Victim consistently
said the following: Graydon abruptly pulled in front of Victim

State v. Graydon
20190918-CA 	21 	2023 UT App 4
and stopped; Victim drove around Graydon; Graydon sped past
Victim and started swerving; Victim pulled over and got out of
his truck; Graydon pulled over, got out of his vehicle, and
approached Victim; Graydon kicked Victim and tried to hit him;
Victim punched Graydon several times; after the fight, the two
men went back to their vehicles; Graydon then pulled out a gun
and racked it several times; Victim wanted to leave but couldn’t
back up; and when Graydon left, Victim tried to follow him but
gave up and called 911.9
¶55 	These details about the fight at the side of the road were
central to the State’s proposed narrative of what happened that
night. And more particularly, the details about Graydon’s use of
the gun were the basis for the charged offense. As a result, these
details were far more important to the case than the ones
identified by Graydon and about which Victim was sometimes
inconsistent. 	Given 	that 	Victim 	was 	consistent 	about 	these
material details, we are unpersuaded that the inconsistencies
identified by Graydon rendered Victim’s testimony so inherently
improbable that it could not be relied on by the jury. As a result,
the district court appropriately let the jury decide how much
weight to place on the inconsistencies identified by Graydon. See
State v. Workman, 852 P.2d 981, 984 (Utah 1993) (“When the
evidence presented is conflicting or disputed, the jury serves as
the exclusive judge of both the credibility of witnesses and the
weight to be given particular evidence.”).
¶56 	Graydon, however, contends that these inconsistencies are
meaningful 	because 	“there 	was 	no 	physical 	or 	testimonial
9. We also note that Victim provided more detail in some accounts
than others. For example, Victim’s description of the incident at
the motion to suppress hearing was short in comparison to the
description he gave at trial. But that’s not surprising, because the
purpose of the motion to suppress hearing was to assess the
reliability of Victim’s eyewitness identification, not necessarily to
detail everything that happened.

State v. Graydon
20190918-CA 	22 	2023 UT App 4
evidence” corroborating Victim’s testimony. We disagree with
this description of the evidence. Graydon testified at trial, and
much of his own account matched the account given by Victim.
Like Victim, Graydon testified that he made “a regular driving
error” and pulled in front of Victim, that the two men pulled over,
that a fight started when Graydon kicked Victim, and that he
eventually went back to his vehicle, pulled out his gun, and
“threw the slide a few times.” Although Graydon nevertheless
described Victim as the aggressor, his sworn testimony still
corroborated Victim’s core claims that Graydon kicked him first
and later pulled out a gun and tried to rack it. As a result, we are
not 	convinced 	that 	Victim’s 	testimony 	was 	wholly
uncorroborated.
¶57 	Finally, Graydon contends that Victim’s testimony was
“incredibly dubious.” See State v. Robbins, 2009 UT 23, ¶ 18, 210
P.3d 288 (holding “that the definition of inherently improbable
must 	include 	circumstances 	where 	a 	witness’s 	testimony 	is
incredibly dubious and, as such, apparently false”). This is so,
according to Graydon, because Victim failed “to recognize his role
in the incident” and because Victim “presented himself as an
innocent, naive family man” despite also testifying that he hit
Graydon several times and “wanted to bring him to justice.” But
from our review, Victim’s testimony doesn’t “run so counter to
human experience that it renders the testimony inappropriate for
consideration in sustaining a finding of guilt.” Jok, 2021 UT 35,
¶ 36 (quotation simplified). Victim testified that Graydon was the
aggressor, that he hit Graydon in self-defense, and that he wanted
Graydon to be held responsible for what he had done. We don’t
view that as “incredibly dubious.” A jury could have decided that
Victim was insincere, of course, but we are not persuaded that all
reasonable jurors must have doubted Victim’s sincerity for the
reasons given by Graydon.
¶58 	In short, although there were some inconsistencies in
Victim’s accounts regarding some of the details, we are not
persuaded 	that 	these 	inconsistencies 	were 	so 	serious 	that

State v. Graydon
20190918-CA 	23 	2023 UT App 4
“reasonable minds must have entertained a reasonable doubt that
[Graydon] committed the crime.” Id. ¶ 32 (quotation simplified).
The district court therefore did not err in submitting the case to
the jury.
II. Motion for a Mistrial
¶59 	As noted, Officer 1 testified that there had been “a similar
situation 	several 	years 	earlier” 	involving 	Graydon. 	Counsel
moved for a mistrial as a result, but the district court denied the
motion and gave a curative instruction instead. On appeal,
Graydon argues that the court erred by not granting a mistrial.
We disagree.
¶60 	“A trial court should not grant a mistrial except where the
circumstances are such as to reasonably indicate that a fair trial
cannot be had and that a mistrial is necessary in order to avoid
injustice.” State v. Dunne, 2020 UT App 56, ¶ 18, 463 P.3d 100
(quotation simplified). “A district judge is in an advantaged
position to determine the impact of courtroom events on the total
proceedings.” Id. (quotation simplified). Thus, “once a district
court has exercised its discretion and denied a motion for a
mistrial, an appellate court will not reverse the court’s decision
unless it is plainly wrong in that the incident so likely influenced
the jury that the defendant cannot be said to have had a fair trial.”
Id. (quotation simplified).
¶61 	Our supreme court has cautioned that “a mistrial is not
required 	where 	an 	improper 	statement 	is 	not 	intentionally
elicited, is made in passing, and is relatively innocuous in light of
all the testimony presented.” State v. Allen, 2005 UT 11, ¶ 40, 108
P.3d 730. This was the case here. When Officer 1 stated that “there
was a similar situation several years earlier,” this was not
responsive to any question from the prosecutor that had asked for
this kind of information. When Counsel objected, the prosecutor
immediately rephrased his question to ask about Officer 1’s
attempts to locate Graydon. Officer 1 did not then expound on the

State v. Graydon
20190918-CA 	24 	2023 UT App 4
alleged prior incident any further. Given this, it seems apparent
that the challenged statement was “not intentionally elicited,”
was “made in passing,” and was “relatively innocuous.” Id. We
are thus not persuaded that a mistrial was essential to avoiding
injustice. See Dunne, 2020 UT App 56, ¶ 18.
¶62 	Our conclusion is further strengthened by the district
court’s subsequent curative instruction, wherein it instructed the
jury not to consider Officer 1’s reference to a “similar situation.”
“Curative instructions are ordinarily presumed on appeal to be
effective, absent a substantial and prejudicial underlying error or
irregularity.” State v. Curtis, 2013 UT App 287, ¶ 25, 317 P.3d 968
(quotation simplified); see also State v. Harmon, 956 P.2d 262, 271
(Utah 1998) (describing curative instructions as “a settled and
necessary feature of our judicial process and one of the most
important tools by which a court may remedy errors at trial”);
State v. Hodges, 517 P.2d 1322, 1324 (Utah 1974) (“In the absence of
the appearance of something persuasive to the contrary, we
assume that the jurors were conscientious in performing to their
duty, and that they followed the instructions of the court.”).
Graydon has not offered any persuasive reason why we should
conclude that this presumption was overcome in this case, and we
see none either.
¶63 	Moreover, 	in 	past 	cases, 	Utah 	appellate 	courts 	have
repeatedly held that a curative instruction was an appropriate
alternative to a mistrial. See, e.g., State v. Vallejo, 2019 UT 38, ¶¶ 90–
100, 449 P.3d 39; State v. Neilson, 2017 UT App 7, ¶¶ 16–19, 391
P.3d 398; State v. Allred, 2002 UT App 291, ¶¶ 19–20, 55 P.3d 1158.
And there’s good reason to think that the curative instruction here
effectively ameliorated any harm caused by Officer 1’s comment.
In addition to instructing the jury to not “consider anything from
the past,” the court went further and instructed the jury “that
there is no prior similar incident.” The court specifically told the
jury that Graydon did not “have a prior road rage” incident or
“any prior aggravated assaults.” So in addition to instructing the
jury to disregard the challenged statement—an instruction that

State v. Graydon
20190918-CA 	25 	2023 UT App 4
likely would have been sufficient on its own—the court also told
the jury that Officer 1’s comment about a prior “similar situation”
was actually inaccurate. We don’t see any basis for concluding
that the jury would have disregarded this direct instruction and
relied on the comment anyway.
¶64 	In sum, given the passing nature of Officer 1’s statement
and the curative instruction, the district court did not abuse its
discretion by denying Graydon’s motion for a mistrial.10
10. In further support of this argument, Graydon points to Officer
1’s statements at trial that Graydon was a “danger to himself [and
a] danger to other people and [the] officers involved” and that the
officers “didn’t want to put anyone else in danger.” Graydon
contends that these statements were “impermissible comments on
Graydon’s character trait of being violent or peaceful.” See Utah
R. Evid. 404(a)(1). But Counsel did not object to these statements,
so Graydon must show plain error, and as part of this, he must
show that the error should have been obvious to the court. See
State v. Johnson, 2017 UT 76, ¶¶ 18–20, 416 P.3d 443. Graydon has
not shown plain error because, from our review of the record, it
does not seem obvious that Officer 1 was providing character
evidence when he made these statements.
“Character evidence is evidence of a person’s good or bad
character—whether or not they are a generally good-hearted
person with positive qualities.” State v. Richins, 2021 UT 50, ¶ 10
n.2, 496 P.3d 158 (quotation simplified). It also includes “evidence
of specific traits or propensities a person might have, some of
which might be negative even if the person could be considered
generally a good person.” Id. (quotation simplified). Officer 1’s
testimony was not obviously evidence of whether Graydon was a
“good-hearted person” or whether he had “specific traits or
propensities.” See id. (quotation simplified). Rather, Officer 1
appears to have been explaining why he and other officers
decided not to speak with Graydon. Because this testimony was
(continued…)

State v. Graydon
20190918-CA 	26 	2023 UT App 4
III. Eyewitness Identification
¶65 	Graydon’s final argument is that the district court erred
when it rejected his motion to exclude Victim’s eyewitness
identification. We first identify the controlling law and then apply
that law to the facts of this case.11
A. 	Controlling Law
¶66 	Graydon contends that we should review the district
court’s decision under State v. Ramirez, 817 P.2d 774 (Utah 1991),
State v. Lujan, 2020 UT 5, 459 P.3d 992, and rules 403 and 617 of
the Utah Rules of Evidence. The State, however, asserts that the
admissibility of Victim’s identification should be assessed under
rule 403 only. We agree with the State.
¶67 	Utah 	courts 	previously 	evaluated 	eyewitness
identifications under Ramirez, which “identified five factors for
courts 	to 	consider 	in 	assessing 	the 	reliability 	(and 	hence
admissibility) of eyewitness identification testimony under the
due process clause of the Utah Constitution.” Lujan, 2020 UT 5,
¶ 1. 	But 	in 	Lujan, 	“our 	supreme 	court 	clarified 	that 	the
admissibility of eyewitness identification testimony is to be
measured in the first instance by our rules of evidence rather than
grounded in the events of that evening, it was not obviously an
effort 	to 	show that Graydon 	“acted 	in 	conformity 	with” 	a
“character or trait.” See Utah R. Evid. 404(a)(1). There was
accordingly no plain error.
11. The State contends that rule 403 of the Utah Rules of Evidence
is the controlling law and that because Graydon’s argument
below was not based on rule 403, his arguments on appeal are not
preserved. Although we agree that rule 403 is the controlling law,
we do not address the State’s preservation argument because we
can easily resolve this issue in its favor. See Kitches, 2021 UT App
24, ¶ 28.

State v. Graydon
20190918-CA 	27 	2023 UT App 4
by any due process standard.” State v. Wright, 2021 UT App 7,
¶ 34, 481 P.3d 479 (quotation simplified). In other words, concerns
about the reliability of an eyewitness identification “are more
appropriately addressed by our rules of evidence” than by the
Ramirez standard. Id. (quotation simplified). As a result, our
inquiry is guided by the Utah Rules of Evidence and not the
Ramirez factors.12 See id. ¶¶ 39–40 (reviewing the admissibility of
eyewitness testimony under rule 403 and not Ramirez).
12. “While the threshold standard of admissibility of eyewitness
testimony 	is 	provided 	by 	the 	Utah 	Rules 	of 	Evidence, 	the
governing case law preserves a role for due process.” State v.
Lujan, 	2020 	UT 	5, 	¶ 	46, 	459 	P.3d 	992. 	“When 	eyewitness
identification evidence is secured by unnecessarily suggestive
police action, the federal Due Process Clause adds a constitutional
backstop to our rules of evidence.” Id. (quotation simplified). And
Utah Supreme Court cases have “established a similar backstop
under the due process clause of the Utah Constitution.” Id.
Accordingly, “the Ramirez factors are entitled to stare decisis
respect, and will not be overridden, insofar as they provide
‘guidance’ of relevance to the purpose for which they have been
applied 	in 	[Utah 	Supreme 	Court] 	case 	law—as 	possible
considerations in assessing whether evidence produced as a result
of suggestive police activity should be excluded on the ground
that it leads to a substantial likelihood of misidentification.” Id.
¶ 49.
Graydon’s 	argument 	is 	that 	Victim 	tainted 	his 	own
memory by looking at Graydon’s Facebook profile. But because
he doesn’t suggest that the police were involved in this alleged
tainting, we don’t read his argument as implicating the federal
Due Process Clause. See Perry v. New Hampshire, 565 U.S. 228, 233
(2012) (“When no improper law enforcement activity is involved,
we hold, it suffices to test reliability through the rights and
opportunities generally designed for that purpose, notably, the
(continued…)

State v. Graydon
20190918-CA 	28 	2023 UT App 4
¶68 	Against that backdrop, Graydon identifies two potentially
relevant rules of evidence. First, he points to rule 403, which
allows a court to “exclude relevant evidence if its probative value
is substantially outweighed by a danger of,” among other things,
“unfair prejudice.” Utah R. Evid. 403. Second, he points to rule
617, which “establishes factors and standards for a trial court to
employ in judging the admissibility of eyewitness testimony.”
Lujan, 2020 UT 5, ¶ 30; see also Utah R. Evid. 617.
¶69 	The district court denied Graydon’s motion to suppress in
December 2018. And when Graydon raised the issue again at trial
in May 2019, the court again ruled that the testimony was
admissible. Rule 617 was not adopted until November 2019,
almost a year after the court denied the motion to suppress and
months after the conclusion of Graydon’s trial. See Utah R. Evid.
617.
¶70 	As a result, rule 617 was not in effect when the court ruled
on Graydon’s motion to exclude. We accordingly do not apply
rule 617 and instead focus our analysis on rule 403, which was in
effect when Graydon moved to suppress Victim’s identification.
presence 	of 	counsel 	at 	postindictment 	lineups, 	vigorous
cross-examination, 	protective 	rules 	of 	evidence, 	and 	jury
instructions on both the fallibility of eyewitness identification and
the 	requirement 	that 	guilt 	be 	proved 	beyond 	a 	reasonable
doubt.”).
It is an open question “whether the Utah due process
clause establishes a freestanding guarantee of the reliability of
eyewitness identification testimony that would attach in the
absence of state action.” Lujan, 2020 UT 5, ¶ 25. But Graydon has
not 	adequately 	briefed 	or 	argued 	the 	existence 	of 	such 	a
“freestanding guarantee,” so we will not answer that question in
this appeal. See generally Utah R. App. P. 24(a)(8) (“The argument
must explain, with reasoned analysis supported by citations to
legal authority and the record, why the party should prevail on
appeal.”).

State v. Graydon
20190918-CA 	29 	2023 UT App 4
See Lujan, 2020 UT 5, ¶ 31 (explaining that rule 617 “was not in
place at the time of the trial in [the relevant] proceeding” and thus
“could not have been applied” and that the rules in place at the
time “could and should have been applied”); Wright, 2021 UT
App 7, ¶ 37 n.3 (noting that Lujan “makes clear that the district
court would have been required to apply rule 403 only, given that
rule 617 was not in effect at the time of trial”); id. ¶ 25 (explaining
that “our supreme court recently clarified that for cases to which
the new rule 617 of the Utah Rules of Evidence does not apply, a
district 	court’s 	analysis 	to 	determine 	the 	admissibility 	of
eyewitness identification is rooted in rule 403 of the Utah Rules of
Evidence”); see also State v. Clopten, 2009 UT 84, ¶ 37, 223 P.3d 1103
(declining to apply the then-current version of rule 702 of the Utah
Rules of Evidence because it was not the law that existed at the
time of the trial).
B. 	Application of Rule 403
¶71 	Because we assess the district court’s decision under rule
403, we will not reverse unless it was an abuse of discretion for
the court to admit Victim’s identification. See Wright, 2021 UT App
7, ¶ 25. A district court “abuses its discretion under rule 403 if its
decision to admit or exclude evidence is beyond the limits of
reasonability.” State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981
(quotation simplified). Here, Graydon argues that the “probative
value” of Victim’s eyewitness identification was “substantially
outweighed by a danger of . . . unfair prejudice.” Utah R. Evid.
403. We disagree.
¶72 	Our decision in Wright provides a useful comparison.
There, 	an 	eyewitness 	to 	a 	shooting 	described 	the 	shooter’s
appearance and noted that the shooter had worn a wig. 2021 UT
App 7, ¶ 5. He also viewed a photographic lineup and identified
the defendant with “eighty to ninety percent certainty.” Id. ¶ 17.
After the defendant was arrested and charged, the eyewitness
identified 	him 	again, 	“this 	time 	with 	one 	hundred 	percent
certainty.” Id. Between the two identifications, the eyewitness had

State v. Graydon
20190918-CA 	30 	2023 UT App 4
downloaded the defendant’s photo and “digitally superimposed
various wigs on the photo until he came up with an image that he
believed matched the shooter.” Id. The defendant attempted to
suppress the identification, but the court denied the motion. Id.
¶ 18.
¶73 	On appeal, we outlined the findings made by the district
court, which included the following: (1) the eyewitness “had a
sufficient opportunity to view the shooter,” and “it was light
outside[] 	with 	no 	distracting 	noises, 	activity, 	or 	other
circumstances affecting [the eyewitness’s] opportunity to observe
the shooter,” id. ¶ 45 (quotation simplified); (2) the eyewitness’s
“attention was sufficiently focused on the shooter to provide a
reliable identification,” id. ¶ 46; (3) neither stress nor “witness
characteristics 	. 	. 	. 	had 	any 	appreciable 	impact 	on 	[the
eyewitness’s] capacity to observe the shooter,” id. ¶ 47 (quotation
simplified); (4) the details that the eyewitness was able “to
provide on the day of the shooting and consistently recall
thereafter demonstrated that his eventual identification of [the
defendant] in the photo-lineup was not tainted by memory
decay,” id. ¶ 48; and (5) “because it was not ordinary for [the
eyewitness] to observe an argument escalating to murder, the
nature of the event made it highly likely that [the eyewitness]
would correctly perceive, remember, and relate his observations,”
id. ¶ 49. Given these findings, we saw “no abuse of discretion in
the district court’s conclusion that [the eyewitness’s] testimony
was admissible.”13 Id. ¶ 51.
13. The district court in State v. Wright, 2021 UT App 7, ¶ 41, 481
P.3d 	479, 	evaluated 	the 	eyewitness 	identification 	using 	the
Ramirez factors. On appeal, the defendant asked for a remand so
that the district court could assess the identification under rule
403 of the Utah Rules of Evidence. Id. ¶ 43. We acknowledged that
a rule 403 analysis is not identical to a Ramirez analysis, but we
also concluded that they are “quite similar.” Id. ¶ 42. And we
(continued…)

State v. Graydon
20190918-CA 	31 	2023 UT App 4
¶74 	Here, the district court made several similar findings that
likewise indicated that Victim’s identification was reliable. Of
note, the court found that (1) Victim “had sufficient opportunity
to observe the person assaulting him for 20–30 seconds at close
range”; (2) “it was light outside”; (3) Victim’s “attention was
completely on the person assaulting him”; and (4) Victim “was
wearing contacts giving him clear vision, and [he] was not on any
substances that would impair his vision or mental acuity.” And
although the court acknowledged that Victim’s independent
research was problematic, it still concluded that the identification
was sufficiently reliable to be admitted. In essence, the court
decided that the probative value of Victim’s identification was not
ultimately declined to remand the case, explaining “that the
district court evaluated the relevant reliability factors and thus
substantively made a rule 403 inquiry, even if it never explicitly
invoked the rule.” Id. ¶ 43 (emphasis in original).
The district court here also applied the Ramirez factors, as
that was the governing law at the time. But Graydon has not
requested that we remand this case for further consideration.
And, as in Wright, we think the district court here “substantively
made a rule 403 inquiry” because its oral and written rulings both
indicate that it weighed the relevant variables before concluding
that the identification was sufficiently reliable. See Lujan, 2020 UT
5, ¶¶ 36–38 (identifying variables that “may be considered in
assessing both the probative value of a given piece of eyewitness
identification testimony and the possibility of it producing unfair
prejudice”). 	We 	are 	thus 	comfortable 	reviewing 	the 	court’s
decision 	under 	rule 	403, 	even 	though 	its analysis 	was 	not
explicitly based on that rule. See Wright, 2021 UT App 7, ¶ 41
(explaining that “appellate review of evidentiary decisions should
only assess whether the district judge made an error in admitting
or excluding the evidence in question and should thus affirm so
long as the trial court made the right decision, even if it was for a
mistaken reason” (quotation simplified)).

State v. Graydon
20190918-CA 	32 	2023 UT App 4
substantially “outweighed by a danger of . . . unfair prejudice.”
Utah R. Evid. 403.
¶75 	In our view, the court’s decision was not “beyond the limits
of reasonability.” Cuttler, 2015 UT 95, ¶ 12 (quotation simplified).
Although it is possible that Victim’s independent research tainted
his memory, there was also good reason to think the identification
was still reliable. As the district court found, Victim had a good
opportunity to view Graydon and “was not on any substances
that 	would 	impair 	his vision 	or 	mental 	acuity.” 	Moreover,
Victim’s description of Graydon and his vehicle (both of which he
provided well before he ever conducted the Facebook search) also
matched information about Graydon that Wife independently
gave to police. We thus don’t see an abuse of discretion in the
court’s 	decision 	that 	Victim’s 	identification 	was 	sufficiently
reliable to be admissible.14
14. While our conclusion above is both warranted under and
properly grounded in Utah law, we also note that courts in other
jurisdictions have reached similar conclusions in similar cases. See
State v. Lively, 153 So. 3d 1061, 1070–71 (La. Ct. App. 2014)
(holding 	that 	a 	court 	did 	not 	err 	in 	admitting 	eyewitness
testimony even though the eyewitness saw the defendant’s photo
on the news before selecting the same photo in a police lineup);
Commonwealth v. Fielding, 119 N.E.3d 328, 332–33 (Mass. App. Ct.
2019) (holding that the trial court did not abuse its discretion by
admitting eyewitness testimony even though someone showed
the 	eyewitness 	the 	defendant’s 	Facebook 	page 	before 	the
eyewitness identified the defendant); State v. Butler, 642 S.W.3d
364, 371–72 (Mo. Ct. App. 2022) (holding that a court did not abuse
its discretion in admitting eyewitness testimony even though the
eyewitness first identified the defendant by looking at Facebook
photos shown to her by a relative); State v. Webster, 104 A.3d 203,
205–09 (N.H. 2014) (holding that eyewitness testimony was
admissible even though the eyewitnesses saw the defendant’s
(continued…)

State v. Graydon
20190918-CA 	33 	2023 UT App 4
¶76 	To be clear: this isn’t to say that Victim’s Facebook search
was irrelevant, and our decision today should not be read as an
endorsement of Victim’s independent research. We are simply
holding that, to the extent that there were problems with Victim’s
identification, those problems went to the weight of Victim’s
testimony, not its admissibility. See State v. Guzman, 2004 UT App
211, ¶ 31, 95 P.3d 302 (holding that an eyewitness’s testimony
about how confident she was in her identification was “relevant
once the eyewitness identification [was] deemed admissible,
insofar as it assists the jury’s evaluation of the credibility of the
identification testimony and the weight to be accorded it”); see also
State v. Brown, 528 N.E.2d 523, 533 (Ohio 1988) (“The alleged
suggestiveness of the identification, therefore, goes to weight and
reliability of the testimony rather than admissibility.”). Graydon
could 	(and 	in 	fact 	did) 	put 	this 	issue 	before 	the 	jury 	by
cross-examining Victim about his identification, and he could
have gone further by presenting relevant expert testimony about
this. But under the circumstances of this case, we are unpersuaded
booking photo online and in the newspaper before they identified
the defendant); State v. Brown, 528 N.E.2d 523, 532–33 (Ohio 1988)
(holding that it was not error to admit eyewitness identification
when the eyewitness originally could not identify the defendant
but later identified her when he saw her walking through
the courthouse and “that any prejudicial effect of the testimony
could have been cured by effective cross-examination”); State v.
Reid, 91 S.W.3d 247, 271–73 (Tenn. 2002) (holding that it was not
error to admit an eyewitness’s identification even though the
eyewitness was unable to identify the defendant in a photo lineup
and identified the defendant only after seeing his arrest on
television).

State v. Graydon
20190918-CA 	34 	2023 UT App 4
that the court abused its discretion by allowing the State to present
Victim’s identification in the first instance.15
CONCLUSION
¶77 	The 	State 	presented 	sufficient 	evidence 	to 	support
Graydon’s convictions, so the district court did not err in denying
his motion for a directed verdict. And the court did not abuse its
discretion when it denied Graydon’s motion for a mistrial and
motion to suppress. For these reasons, we affirm Graydon’s
conviction.
15. Graydon argues that the cumulative effect of the claimed
errors requires reversal. But because there are no errors to
accumulate, the cumulative error doctrine is inapplicable. See
State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038.