State v. Main ( 2021 )

2021 UT App 81THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JAMES HUDSON MAIN JR.,
Appellant.
Opinion
No. 20190119-CA
Filed July 22, 2021
Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 161800433
Laura J. Fuller, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
SENIOR JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred. 1
APPLEBY, Senior Judge:
¶1 James Hudson Main Jr. was convicted of murder. On
appeal he challenges several of the district court’s evidentiary
determinations. He argues that the court admitted evidence of
other crimes in violation of rule 404(b) of the Utah Rules of
Evidence, that phone records he sought to admit should not
have been excluded on the basis that they lacked foundation,
and that color photographs of the crime scene should have been
excluded because they were gruesome. We reject these
arguments and affirm.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
State v. Main
BACKGROUND 2
¶2 Main and his father (Father) were staying at Father’s
remote cabin and experiencing interpersonal conflict during the
week leading up to Father’s death. Father called 911 twice that
week, first expressing that he was “afraid” of Main and needed
help from law enforcement, and then in the second call reporting
that Main had stolen his gun. According to some witnesses,
Main seemed paranoid that week, thinking “everybody was
trying to kill him” and, in particular, that Father was trying to
poison him. At some point, Main shot and killed Father and fled
in Father’s truck.
¶3 Main drove Father’s truck to the house of his friend, D.N.
D.N. and his girlfriend were asleep and “woke up to a gun in
[their] face[s].” Main told them he had just “shot [Father] in the
head and splattered his brains all over the cupboards” and
suggested that he was willing to shoot them too. Main then
asked for dry clothing and for all their electronic devices. After
Main changed into the clothing they provided and secured the
electronics in a bag, the three went into the kitchen, where D.N.’s
girlfriend gave Main some food.
¶4 The three moved outside, with Main still in possession of
the gun. He stated, “Well, we need to get out of here.” Because
D.N. had been having problems with his car and was worried
that it would stall, he suggested they use his work van. But after
they climbed into the van, D.N. realized he did not have the key
to it. At this point, Main fired a warning shot at the ground,
telling D.N. to “[h]urry up,” and D.N. decided they should go
ahead and take his car. D.N. drove the three of them in his car to
2. “We recite the facts in a light most favorable to the jury
verdict. We present conflicting evidence only when necessary to
understand issues raised on appeal.” State v. Vallejo, 2019 UT 38,
¶ 2 n.1, 449 P.3d 39 (quotation simplified).
20190119-CA 2 2021 UT App 81State v. Main
their friends’ house “to get some dope.” During the drive, D.N.
was focused on trying to make sure his car did not stall because
Main had threatened that if the car stopped or the police pulled
them over, he would shoot D.N. and D.N.’s girlfriend.
¶5 When they arrived at the friends’ house, Main changed
his mind and “decided he didn’t want to be there.” But when
D.N. tried to leave, his car’s brakes “grabbed,” which prompted
Main to say, “You’re dead,” and D.N. “heard the hammer click
right then.” D.N. suddenly released the clutch, and as the car
stalled and jerked forward, D.N. lunged toward Main to try to
wrestle the gun from him. It discharged during the struggle,
shooting out one of the car’s windows. The two continued to
struggle over the gun, and when D.N.’s girlfriend opened the car
door, the two men fell out, with D.N. landing on top of Main.
¶6 Having heard the gunshot, the friends came out of the
house and joined in the struggle, ultimately succeeding in
getting the gun away from Main. Main jumped into D.N.’s car
and fled to D.N.’s house, where he left the car and retrieved
Father’s truck.
¶7 When police arrived at the friends’ house, D.N. gave them
the gun and told them Main said he shot Father. Police
conducted a welfare check at the cabin and discovered Father’s
“obviously deceased” body inside. They began searching for
Main and ultimately captured him in Colorado the following
day.
¶8 In the course of their investigation, police searched
D.N.’s house and vehicles, finding several pieces of evidence
related to the murder: Main’s gun holster, found in D.N.’s
driveway; Main’s jeans, with Father’s blood on the bottom of one
leg, found in D.N.’s car; Main’s blood-stained jacket, found
inside D.N.’s work van; and Main’s bloody shoes, found in
D.N.’s bedroom.
20190119-CA 3 2021 UT App 81State v. Main
¶9 Main was charged with aggravated murder, aggravated
burglary, two counts of aggravated robbery, two counts of
aggravated kidnapping, felony discharge of a firearm,
possession of a firearm by a restricted person, carrying a loaded
firearm in an unlawful place, attempted aggravated murder, and
two counts of assault. After a preliminary hearing, the district
court determined there was probable cause to bind over Main on
the lesser included offense of murder, but not on aggravated
murder because the acts supporting the aggravating factor were
not part of the same criminal episode.
¶10 The defense successfully moved to bifurcate the
remaining eleven charges from the murder charge. As a result,
evidence supporting the bifurcated charges was not initially
expected to be admitted during the murder trial. But during
questioning on the first day of trial, it became clear that the
defense strategy was to suggest to the jury that D.N. was the
perpetrator based on his connection with the case, specifically,
that much of the evidence was found at D.N.’s house and in his
vehicles, that he told police Father had been shot, and that
Father’s gun was in his possession. At this point, the district
court addressed whether some evidence of the bifurcated
crimes—in particular, evidence of the interactions between Main
and D.N. and “subsequent events”—would be allowed or
whether rule 404(b) of the Utah Rules of Evidence prohibited its
presentation. The court determined that the evidence was
“outside the scope of 404(b)” because “the crimes are so linked
. . . with the crime charged in this case, in time and
circumstances, that one cannot be shown without proving the
other, or there are facts that must be shown in order to explain
evidence and where it was found and why it was found in this
case.” The court also determined that the evidence passed the
balancing test articulated in rule 403 of the Utah Rules of
Evidence, reasoning that (1) the evidence in question was “all
highly probative of why the [physical] evidence was found in
[D.N.]’s possession” and “why [D.N.] made reports that he [was]
20190119-CA 4 2021 UT App 81State v. Main
alleged to have made” and that (2) the evidence was not unfairly
prejudicial because it was “not something that [would] cause a
heightened emotional response in the jury” and because the
bifurcated charges were “less serious” than the murder charge at
issue in this case. The court also offered to include a jury
instruction to clarify the evidence’s limited purpose. 3 Thus, D.N.
was allowed to testify about some of the events related to the
bifurcated crimes.
¶11 In an attempt to challenge D.N.’s credibility, specifically
by rebutting his testimony that Main had taken the electronics
and put them in a bag, the defense sought to introduce phone
records from D.N.’s cell phone showing three data transmissions
during the period in question. The State objected on multiple
grounds, including hearsay, relevance, and lack of foundation.
The district court agreed with the defense that the document fell
within an exception to the rule against hearsay. But the court
agreed with the State that the evidence lacked foundation, ruling
that it would not be received because the defense had presented
no expert or other individual with personal knowledge who
could explain and interpret what the data transmissions
represented.
¶12 The district court also preemptively ruled on the
admission of two color 8ʺx11ʺ photographs of the crime scene
that the State intended to offer as exhibits to show that Father
was shot inside the cabin. The first photograph, State’s exhibit
35-A, showed Father in “his deceased condition” and “a fair
amount of dried blood,” but no “graphic wounds.” The second
photograph, State’s exhibit 35-B, was a closer view of content
included in the first photograph, showing in greater detail
Father’s uninjured right shoulder and arm, as well as “a small
3. The following jury instruction was given: “You may consider
this evidence, if at all, for the limited purpose of providing
context for the evidence presented in this case.”
20190119-CA 5 2021 UT App 81State v. Main
amount of dried blood.” The defense objected on the grounds
that the photographs were “gruesome,” arguing that this made
their use unfairly prejudicial. After analyzing several factors, the
court determined that the photographs were highly probative as
to where Father was shot and whether his body was moved after
he was shot. The court also found that, while 35-A was
somewhat “unpleasant,” neither photograph was gruesome or
unfairly prejudicial. Therefore, the court was prepared to allow
admission of the photographs should the State so request.
¶13 The trial proceeded with the State presenting testimony
from a police detective who had discovered Father’s deceased
body and taken photographs of it in the cabin. But the State did
not initially move for admission of either of the contested
photographs. On cross-examination, however, defense counsel
requested admission of the first photograph:
[DEFENSE COUNSEL]: The [defense] would move
for the admission of State’s Exhibit 35.[4]
THE COURT: The defense has moved for the
admission and the Court will receive it.
[PROSECUTOR]: And it is marked as State’s
Exhibit 35-A.
THE COURT: Yes. This is, was marked as State’s
Exhibit 35-A. It has been offered by the defense and
is received.
4. According to the transcript, defense counsel apparently stated
by mistake that the State was moving for admission of exhibit 35,
when by context it is clear that he meant that the defense was
seeking to introduce exhibit 35-A.
20190119-CA 6 2021 UT App 81State v. Main
[DEFENSE COUNSEL]: May I publish that to the
jury, Your Honor?
[PROSECUTOR]: No objection.
Later, in questioning another police detective, the State referred
to and then sought admission of the second photograph:
THE COURT: [Prosecutor], 35-A had been offered
by the defense.
[PROSECUTOR]: That’s correct.
THE COURT: 35-B’s not been offered.
[PROSECUTOR]: That’s correct. And the State now
moves—well, the State now offers 35-B.
THE COURT: Subject to the defense’s objection I’ll
receive 35-B.
[DEFENSE COUNSEL]: (Inaudible).
THE COURT: Okay. No objection at this time.
Thus, each photograph was admitted into evidence and shown
to the jury.
¶14 The jury ultimately found Main guilty of Father’s murder.
Main now appeals, contesting several of the district court’s
evidentiary rulings.
ISSUES AND STANDARD OF REVIEW
¶15 First, Main argues that the district court should have
excluded evidence related to the bifurcated charges under rule
404(b) and that such evidence also was unfairly prejudicial
20190119-CA 7 2021 UT App 81State v. Main
under rule 403. “We review a trial court’s decision to admit
evidence under rule 404(b) of the Utah Rules of Evidence under
an abuse of discretion standard.” State v. Lucero, 2014 UT 15,
¶ 11, 328 P.3d 841 (quotation simplified), abrogated on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Likewise,
“[a] trial court’s decision to admit evidence under rule 403 of the
Utah Rules of Evidence is reviewed for an abuse of discretion.”
State v. Kell, 2002 UT 106, ¶ 29, 61 P.3d 1019.
¶16 Second, Main argues that the district court erred in not
allowing introduction of the phone records from D.N.’s cell
phone based on the lack of foundation. Although we determine
that the court’s decision was based largely on relevance
concerns, our review is for abuse of discretion under either
ground, see Chapman v. Uintah County, 2003 UT App 383, ¶ 7, 81
P.3d 761 (“The trial court has broad discretion in determining
the relevancy of offered evidence, and error will be found only if
the trial court abused its discretion.” (quotation simplified));
State v. Torres, 2003 UT App 114, ¶ 7, 69 P.3d 314 (“A trial court’s
determination [as to whether] there was a proper foundation for
the admission of evidence will not be overturned unless there is
a showing of an abuse of discretion.” (quotation simplified)).
¶17 Finally, Main argues that the two crime scene
photographs of Father’s deceased body should not have passed
the rule 403 balancing test because, although relevant, there was
a great danger of unfair prejudice because they were gruesome.
Again, “[t]he responsibility of weighing relevance against
prejudice is that of the trial judge, and [that] decision will not be
overturned by this Court unless it is shown to be an abuse of
discretion.” State v. Garcia, 663 P.2d 60, 64 (Utah 1983). 5
5. Main also makes a cumulative error argument, but because he
shows no individual errors, the cumulative error doctrine does
not apply. See State v. Galindo, 2019 UT App 171, ¶ 17 n.4, 452
(continued…)
20190119-CA 8 2021 UT App 81State v. Main
ANALYSIS
I. Evidence Related to the Bifurcated Charges
¶18 Main argues that the district court erred by allowing
evidence that violated rule 404(b) of the Utah Rules of Evidence. 6
Under that rule, evidence of a defendant’s other crimes “is not
admissible to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the
character,” although such evidence “may be admissible for
another purpose.” Utah R. Evid. 404(b). But the rule “applies
only to evidence that is extrinsic to the crime charged.” State v.
Lucero, 2014 UT 15, ¶ 14 n.7, 328 P.3d 841 (quotation simplified),
abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d
1016. And “if the evidence of [other] acts is inextricably
intertwined with the crime that is charged, or if both the charged
crime and the [other] act are considered part of a single criminal
episode, then rule 404(b) would not apply.” 7 Id. (quotation
(…continued)
P.3d 519 (“There are no errors to accumulate here, rendering the
cumulative error doctrine inapplicable in this case.”).
6. The State argues that although Main objected at trial to the use
of this evidence, his objections were not sufficiently specific and
clear to preserve the issues he pursues on appeal. But because
we resolve these matters in the State’s favor, we need not
address whether they are preserved. See State v. Kitches, 2021 UT
App 24, ¶ 28, 484 P.3d 415 (“[I]f 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.” (quotation simplified)).
7. We note that although case law frequently refers to rule 404(b)
evidence as “prior bad acts” evidence, the rule itself makes no
(continued…)
20190119-CA 9 2021 UT App 81State v. Main
simplified). Instead, “the act would be considered part of the
case narrative and have important probative value that bears
directly on the crime charged.” Id.
¶19 Here, as the case progressed and the defense theory of the
case—blaming D.N. for the murder—became clear, the court
realized that the evidence related to the bifurcated charges was
inextricably intertwined with the facts presented in the murder
case:
[The evidence presented raises] the question of
how did all of those things happen? How did the
bloody clothing come to be in [D.N.]’s car and
house? . . . Why did [D.N.] have the firearm
ultimately? And why did [D.N.] know to call for
the welfare check? All of those things are integral
to the State’s case. Now that those issues have been
raised as a defense, likely defense, in the case, the
Court finds that the evidence of the other crimes
. . . are within the res [gestae] of the charged acts;
that the crimes are so linked, the subsequent crimes
are so linked with the crime charged in this case, in
time and circumstances, that one cannot be shown
without proving the other, or there are facts that
must be shown in order to explain evidence and
where it was found and why it was found in this
case. And so it is outside the scope of [rule] 404(b).
It is not being used as character evidence, but it is
being used as direct evidence of facts in this case.
(…continued)
reference to “prior” acts. See State v. Von Niederhausern, 2018 UT
App 149, ¶ 21 n.6, 427 P.3d 1277. Instead, the rule addresses all
“[e]vidence of a crime, wrong, or other act,” whether occurring
before or after the actions at issue in the current case. See Utah R.
Evid. 404(b).
20190119-CA 10 2021 UT App 81State v. Main
¶20 The district court next turned to the issue of unfair
prejudice under rule 403. See Utah R. Evid. 403 (“The court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice . . . .”). It
determined that the evidence of the bifurcated charges was
“highly probative” of why all the incriminating evidence was in
D.N.’s possession and why he made the police report. The court
further determined that evidence of the bifurcated charges was
“not something that [would] cause a heightened emotional
response in the jury that is unfairly prejudicial,” particularly
where the bifurcated charges were less serious than the murder
charge. And the court also said it would “certainly allow” an
instruction to the jurors “that they may use that evidence only
for the evidentiary purposes and not to draw conclusions with
regard to the homicide.” Thus, the court ultimately concluded,
“the probative value is so great that it outweighs any prejudice
by presenting the evidence” and “the evidence . . . passes the
balancing test under Rule 403.”
¶21 The district court did not abuse its discretion in
determining that the evidence was inextricably intertwined. The
evidence regarding the bifurcated charges was necessary to
explain D.N.’s relationship to many pieces of inculpatory
evidence. Thus, evidence regarding the bifurcated charges was
necessary to rebut the defense’s argument that D.N.’s connection
to the inculpatory evidence indicated that he was the true
perpetrator. And the court did not abuse its discretion in
determining that any danger of unfair prejudice from the
evidence was not so great as to “substantially outweigh[]” its
high probative value, see id.
¶22 Much of Main’s argument on this topic takes issue with
the district court making a “complete reversal of its prior ruling”
and allowing evidence after previously determining that it “was
so prejudicial as to require it be bifurcated.” This argument is
unavailing. First, it mischaracterizes the court’s prior ruling. The
court’s prior ruling determined that all the crimes initially
20190119-CA 11 2021 UT App 81State v. Main
charged were not part of the same criminal episode, which
resulted in failure to show an aggravating factor for the
aggravated murder charge, and therefore the court instructed
the State to file an amended information reducing that charge to
the lesser offense of murder. Although the defense thereafter
successfully moved to bifurcate the charges, Main identifies
nothing in the record in which the district court determined that
the charges must be bifurcated because of their highly
prejudicial nature. 8 Second, as Main acknowledges, there was a
change in circumstances between the court’s pretrial rulings and
its rulings at trial: the court had learned that the defense strategy
would be to suggest D.N. was “the true perpetrator.” Third,
whether the evidence regarding the bifurcated charges and the
murder were inextricably intertwined is not necessarily the same
determination as whether the crimes were all part of the same
criminal episode. See Lucero, 2014 UT 15, ¶ 14 n.7 (“If the
evidence of [other] acts is inextricably intertwined with the crime
that is charged, or if both the charged crime and the [other] act
are considered part of a single criminal episode, then rule 404(b)
would not apply.” (emphasis added) (quotation simplified)).
Thus, it is possible to have a situation in which the crimes are not
part of a single criminal episode yet the evidence of one is
inextricably intertwined with another.
¶23 Some confusion on this matter may be traced to Main’s
reliance on State v. Thornton, 2014 UT App 265, 339 P.3d 112, aff'd
in part, rev'd in part, 2017 UT 9, 391 P.3d 1016, in which this court
explained one relationship between the two terms: “When the
charged crime and the [other] act are considered part of a single
criminal episode, the evidence is inextricably intertwined and
8. We also note that the court’s ultimate rulings—that the
aggravated murder charge be reduced to a murder charge and
that the remaining charges be bifurcated from the murder
charge—remained unchanged.
20190119-CA 12 2021 UT App 81State v. Main
rule 404(b) is not implicated.” Id. ¶ 43 (quotation simplified).
Nevertheless, at most, this language instructs that when crimes
are part of a single criminal episode, the evidence necessarily
will be inextricably intertwined. It does not preclude the
possibility that crimes that are not part of a single criminal
episode might also have evidence that is inextricably
intertwined. 9
¶24 Furthermore, we note that the distinction under the facts
here is largely immaterial. The same considerations that
supported the district court’s determination that the evidence
was inextricably intertwined and therefore outside the scope of
rule 404(b) also would have supported the conclusion that the
evidence was admissible under rule 404(b). See generally State v.
High, 2012 UT App 180, ¶ 16, 282 P.3d 1046 (“[Rule 404(b)]
evidence is admissible if it is offered for a proper, noncharacter
purpose, if it is relevant under rules 401 and 402 of the Utah
Rules of Evidence, and if its probative value is not substantially
outweighed by the danger of unfair prejudice under rule 403 of
the Utah Rules of Evidence.”). The court discussed how the
evidence of the bifurcated charges was being used and
9. We do, however, recognize the “concerns with using [other]
acts evidence to ‘complete a story’ or ‘explain the circumstances’
of an alleged criminal act” and realize that an overly broad
definition of “inextricably intertwined” might be problematic in
such scenarios. See State v. Thornton, 2014 UT App 265, ¶ 43 n.10,
339 P.3d 112 (quoting United States v. Bowie, 232 F.3d 923, 928
(D.C. Cir. 2000)), aff'd in part, rev'd in part, 2017 UT 9, 391 P.3d
1016. But the evidence here regarding the bifurcated charges was
not used simply to provide a fuller narrative for the jury;
instead, the evidence was used to explain why all the
incriminating evidence was produced by D.N. and to rebut the
defense theory that D.N.’s involvement with the incriminating
evidence suggested that he was the real perpetrator.
20190119-CA 13 2021 UT App 81State v. Main
determined, “It is not being used as character evidence, but it is
being used as direct evidence of facts in this case.” Thus, the
court determined that the evidence was being offered for a
proper, noncharacter purpose. And where the court
characterized the evidence here as being “integral to the State’s
case,” it certainly considered the evidence relevant. 10 Finally, the
court performed an unfair prejudice analysis and concluded that
danger of unfair prejudice did not substantially outweigh the
probative value of the evidence. Thus, the result here would
remain unchanged under the rule 404(b) analysis Main
advocates. 11
II. Phone Records
¶25 On cross-examination, defense counsel asked D.N.
whether his cell phone records would show “zero activity”
during the time Main allegedly had possession of the electronics,
and D.N. responded, “Yes.” Later, the defense wanted to
impeach D.N. by presenting his cell phone records, which
showed three data transmissions during the time in question.
The State objected on multiple grounds, including hearsay and
absence of foundation. The district court ultimately excluded the
evidence for lack of foundation.
¶26 Main argues that because the district court determined
the phone records met an exception to the rule against hearsay,
10. Main concedes the evidence is relevant.
11. Because we determine the evidence was properly admitted,
we need not separately address Main’s argument that the district
court erred in refusing to grant his motion for a mistrial based on
these same arguments that the evidence of the bifurcated
charges was improperly admitted in violation of rule 404(b).
20190119-CA 14 2021 UT App 81State v. Main
they should not have been excluded for lack of foundation. 12 But
the court’s ruling that the phone records lacked foundation did
not relate to whether a proper foundation had been laid for their
admission under the hearsay rules, but rather whether there was
adequate foundation to establish the phone records’ relevance.
The court’s concern clearly was not whether the phone records
were reliable records but, rather, that their relevance was not
established without additional testimony:
[T]o be able to interpret what the data means, we
would need either an expert or someone with
personal knowledge of how [the cell phone
company’s] system works, one of the two. And
they would need to be able to explain what the
outgoing data—three times when this [phone] sent
information. But we don’t know what that means
without an expert or a person, someone with
personal knowledge of [the cell phone company’s]
system to interpret what that data means. And
because there’s no one here to lay foundation for
the meaning of the document . . . . [i]t’s not going
to be received because of a lack of foundation.
Thus, the court’s determination was specifically based on the
failure to lay foundation for the meaning of the phone records,
that is, to establish their relevance. 13
12. We express no opinion regarding the district court’s analysis
of either the business records exception, see Utah R. Evid. 803(6),
or the residual exception, see id. R. 807, to the rule against
hearsay.
13. Main recognizes that the State’s objection to this evidence
was also made on the grounds of relevance.
20190119-CA 15 2021 UT App 81State v. Main
¶27 We determine that the district court did not abuse its
discretion in this decision. The defense presented no evidence to
show whether the data might represent automatic data
transmissions of some kind or whether they indicated actual
phone usage initiated by some manual action. And without such
evidence, the relevance of the records was not established. See
Utah R. Evid. 401 (defining relevant evidence as evidence that
“has any tendency to make a fact [of consequence] more or less
probable than it would be without the evidence”). That is,
without any foundational information establishing that the data
transmissions indicated actual manual phone use, the phone
records were irrelevant to impeach D.N. Because the relevance
of these documents for impeachment purposes required
knowing precisely the kinds of transmissions they represented
and because Main had no witness to supply that information, we
cannot say the district court abused its discretion in excluding
them. 14
III. Crime Scene Photographs
¶28 Main argues that the district court erred in admitting two
crime scene photographs. Although defense counsel initially
objected to the admission of the photographs as “unfairly
prejudicial due to [their] gruesome nature,” the defense
ultimately, on cross-examination, moved to admit exhibit 35-A
and publish it to the jury. “Under the doctrine of invited error,
14. Main argues, in essence, that any problems of foundation
were the result of a timing issue caused by the district court’s
change of course in admitting evidence of the bifurcated charges
and therefore the court should have granted a continuance to
address any lack of foundation. But as the State correctly points
out, Main never requested a continuance. Although the record
included some discussion of surprise, no one requested a
continuance.
20190119-CA 16 2021 UT App 81State v. Main
we have declined to engage in even plain error review when
counsel, either by statement or act, affirmatively represented to
the trial court that he or she had no objection to the
proceedings.” State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171(quotation simplified). Thus, because the admission of exhibit
35-A was invited error, we do not engage in review of the
propriety of its admission. 15
¶29 But we do address on the merits the admission of exhibit
35-B, which the State moved to admit and which the court
received “[s]ubject to the defense’s objection.” 16
All relevant photographs, regardless of their
alleged “gruesomeness,” are subject to the
balancing test set out in rule 403. Thus, upon a
challenge to the admissibility of a photograph, the
15. In response to the State’s arguments, Main’s reply brief raises
several ineffective assistance of counsel claims. We will not
consider these claims because “it is well settled that issues raised
by an appellant in the reply brief that were not presented in the
opening brief are considered waived and will not be considered
by the appellate court.” State v. Lorenzo, 2015 UT App 189, ¶ 12,
358 P.3d 330 (quotation simplified).
16. The State argues, pointing to an exchange between the
district court and the defense, that the defense waived its prior
objection to the admission of exhibit 35-B. But because the
transcript is somewhat unclear as to the precise exchange on this
issue and because the issue is easily resolved on its merits, we
address it. We do, nonetheless, acknowledge that such a waiver
by the defense seems likely, considering that it had already
introduced exhibit 35-A, which was the more graphic of the two
photographs and included the subject matter depicted in exhibit
35-B.
20190119-CA 17 2021 UT App 81State v. Main
court “may exclude relevant evidence if its
probative value is substantially outweighed by a
danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
Met v. State, 2016 UT 51, ¶ 89, 388 P.3d 447 (quoting Utah R.
Evid. 403). “Unfair prejudice within [the rule 403] context means
an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” State v.
Maurer, 770 P.2d 981, 984 (Utah 1989) (quotation simplified).
¶30 Exhibit 35-B depicted Father’s uninjured right arm and
shoulder, as well as the right side of his body. The photograph
showed “several drops of blood on items in the cabin and on
[Father’s] hand and it show[ed] a small amount of dried blood
above his shoulder.” The district court, noting that “the defense
called into question during the trial whether [Father] was
perhaps shot somewhere outside the cabin,” determined that
exhibit 35-B was probative “with regard to the question of where
[Father] was shot and whether his body was moved or not.” The
court then determined that the probative value of the
photograph was not substantially outweighed by the risk of
unfair prejudice.
¶31 This determination was not an abuse of the district court’s
discretion. Exhibit 35-B did not show Father’s face or any of his
wounds; indeed, the only arguably unpleasant content of the
photograph was the depiction of a small amount of dried blood.
Furthermore, the content of this photograph was wholly
contained within the comparably more disturbing exhibit 35-A
introduced by the defense, which showed more blood and
Father’s entire body. It is unlikely that a closer look at some of
the dried blood would have such an impact on the jury that it
would make its decision on a purely emotional or other
improper basis. In sum, we see no likelihood that the probative
20190119-CA 18 2021 UT App 81State v. Main
value of exhibit 35-B was “substantially outweighed” by a
danger of unfair prejudice, see Utah R. Evid. 403, and we affirm
on this issue.
CONCLUSION
¶32 The district court did not abuse its discretion in allowing
evidence relating to the bifurcated charges, in refusing to admit
the phone records, or in allowing the admission of exhibit 35-B.
We therefore affirm.
20190119-CA 19 2021 UT App 81