text:
    2002 UT App 125
    HOLLADAY DUPLEX MANAGEMENT COMPANY, L.L.C., a Utah limited liability company, Plaintiff and Appellant, v. Dale G. HOWELLS and Lois Howells, Trustees of the Howells Family Trust U/A/D 06/17/91; et al., Defendants and Appellees.
    No. 20010369-CA.
    Court of Appeals of Utah.
    April 25, 2002.

      Lincoln W. Hobbs and Akiko Kawamura, Hobbs & Adondakis LC, Salt Lake City, for Appellant.
    H. Ralph Klemm, Bountiful, for Appellees.
    Before BENCH, DAVIS, and ORME, JJ.
   OPINION

DAVIS, Judge.

¶ 1 Plaintiff Holladay Duplex Management Company, L.L.C., a Utah limited liability company, argues the trial court erred in ruling as a matter of law that a restrictive covenant contained in deeds to property in the Ellison Woods subdivision is unambiguous. We affirm.

¶ 2 Deeds and restrictive covenants are interpreted in the same manner as contracts. See Swenson v. Erickson, 2000 UT 16, ¶ 11, 998 P.2d 807, Canyon Meadows Home Owners Assoc. v. Wasatch County, 2001 UT App 414, ¶ 7, 40 P.3d 1148; Capital Assets Fin. Servs. v. Lindsay, 956 P.2d 1090, 1093 (Utah Ct.App.1998). "Interpretation of contract terms is a question of law." Canyon Meadows, 2001 UT App 414 at ¶ 7, 40 P.3d 1148; see also Dixon v. Pro Image, Inc., 1999 UT 89, ¶ 14, 987 P.2d 48. We review the trial court's rulings on questions of law for correctness. See Canyon Meadows, 2001 UT App 414 at ¶ 7, 40 P.3d 1148. It is well settled that whether a contract is clear and unambiguous or ambiguous and capable of two or more reasonable interpretations is a question of law properly resolved by the court. See Dixon, 1999 UT 89 at ¶ 14, 987 P.2d 48; Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991); Plateau Mining Co. v. Utah Div. of State Lands & Forestry, 802 P.2d 720, 725 (Utah 1990). "Generally, unambiguous restrictive covenants should be enforced as written." Swenson, 2000 UT 16 at ¶ 11, 998 P.2d 807. "It is [a] court's duty to enforce the intentions of the parties as expressed in the plain language of the covenants." Id. at ¶ 19. "[S]uch language is to be taken in its ordinary and generally understood and popular sense, and is not to be subjected to technical refinement nor the words torn from their association and their separate meanings sought in a lexicon." Freeman v. Gee, 18 Utah 2d 339, 423 P.2d 155, 163 (1967).

¶ 3 From our review of the restrictive covenant at issue here, we conclude that it is clear and unambiguous as written. It provides that the grantee takes the property subject to a restriction on the type of buildings that can be built on the property. The covenant speaks of limiting the types of buildings to "a one family dwelling house" and such other outbuildings as fit within the description: "a barn, garage and the customary outhouses." We see no ambiguity here. The purpose of the covenant, as expressed by its language, was to preserve the residential character of the development by limiting the types of buildings allowed to one family dwellings-what we now term single family homes.

¶ 4 Plaintiff argues that even if the covenant does limit the type of homes allowed, it is unclear whether the covenant limits the amount of homes allowed on a lot. Plaintiff points to the use of the plural "houses" in the second sentence of the covenant as expressing support for its position that more than one single family dwelling house may be placed on the same lot. From this, Plaintiff argues the entire covenant is ambiguous.

¶ 5 The covenant at issue is comprised of three sentences. The first sentence deals with what type of buildings are allowed, the minimum dollar value of a permitted dwelling house, and a minimum setback for "a dwelling house costing less than $5,000.00." The second sentence of the covenant further restricts the location of the main building, while the third restricts the locations for outbuildings. When read as a whole, as it must be, see Dixon, 1999 UT 89 at ¶ 14, 987 P.2d 48, the meaning is clear. The first sentence limits the type of building and the purpose to which it can be put. This first sentence speaks of "a one family dwelling house," and contains the singular "house" in two other places. Thus, when the parties were discussing the type and use of the permitted buildings they used the singular "house" exclusively; further, they wrote "a one family dwelling house" to specifically identify the type of home and its use, that is: one house, one family. See Freeman, 423 P.2d at 162 (" 'A restriction limiting the construction of a building on premises to a dwelling house means a building designed as a single dwelling to be used by one family.'" (citation omitted) (emphasis added)). The word "houses" does not appear until the see-ond sentence of the covenant, and the singular form "house" appears after that in the third sentence. Moreover, the plural "houses" is used in conjunction with the phrase "lot or lots." Thus, despite Plaintiff's argument to the contrary, the use of the plural "houses" does not make the whole instrument ambiguous because the only reasonable interpretation is that this plural use of "houses" references multiple lots. Read together, we are convinced that the use of the plural "houses" in the second sentence of the covenant alone does not render the whole instrument ambiguous. See Swenson, 2000 UT 16 at ¶¶ 14-15, 998 P.2d 807 (reading multiple sections of a restrictive covenant together to divine the purpose and meaning thereof).

¶ 6 Plaintiff also argues that we should not read the indefinite article "a" as limiting the number of dwellings to one. Plaintiff points to Lewis v. Spies, 43 A.D.2d 714, 350 N.Y.S.2d 14 (1973), for the proposition that "a" may mean "any." The Lewis court cited the definition of "a" in the fourth edition of Black's Law Dictionary, and ruled that the use of the word "a" in a restrictive covenant did not limit to one the number of homes that could be built on the defendant's property. However, we note that the latest edition of Black's omits this definition for the word "a." Black's Law Dictionary 1 (7th ed. 1999). Moreover, the Lewis court primarily relied on the fact that there were twenty-three other deeds containing similar language to the covenant at issue in that case, and in all the others, "each of the deeds contained an additional clause which specifically limits the number of private homes (in most cases to one and in some to two) which could be constructed on the parcel conveyed." Lewis, 350 N.Y.S.2d at 14; see also Pleasants Invs. Lid. P'ship v. Department of Assessments & Taxation, 141 Md.App. 481, 786 A.2d 13, 19-21 (2001) (rejecting property owners' argument that "a" meant "any" in tax exemption statute and distinguishing Lewis v. Spies, 43 A.D.2d 714, 350 N.Y.S.2d 14 (1973)). Thus, Lewis is easily distinguishable from the covenant at issue here, as are the other cases cited by Plaintiff in support of this argument.

¶ 7 The definition for "a" found in Webster's includes: "used as a function word before most singular nouns" and "used with a plural noun only if few, very few, good many, or great many is interposed." Webster's Third New Int'l Dictionary 1 (1986). Although Plaintiff is correct that the indefinite article "a" does not always mean one, in this case, we conclude that in the context it is used, "a" means one. See Pleasants Invs., 786 A.2d at 20 (relying on context to conclude that the word "a" means one). The effect of accepting Plaintiffs reading of the covenant would be to allow any number of single family homes to be erected on a lot. "The drafters could not have intended such a result." Swenson, 2000 UT 16 at ¶ 16, 998 P.2d 807.

¶ 8 The use of the word "a," the use of the singular "house," and the underlying purpose of the covenant-to restrict construction and preserve the residential character of the development-convince us that the phrase "a one family dwelling house" means one single family home. See Walker v. Haslett, 44 Cal.App. 394, 186 P. 622, 624 (1919) (holding "a first class private residence" means one single family home); Schadt v. Brill, 173 Mich. 647, 139 N.W. 878, 879-81 (1918) (holding "a dwelling house with the usual appurtenances thereto" means one single family home); Skillman v. Smathehurst, 57 N.J. Eq. 1, 40 A. 855, 856-57 (N.J.Ch.1898) (holding "a private dwelling" excludes a duplex or apartment building).

¶ 9 Affirmed.

1 10 WE CONCUR: RUSSELL W. BENCH and GREGORY K. ORME, Judges.

      . The covenant provides that:
      The Grantee, his heirs, successors and assigns will not erect or permit to be erected on the lot or lots above described and purchased by him, any building or construction to be used for any purpose other than a one family dwelling house, excepting only a barn, garage and the customary outhouses, and that no dwelling house shall be erected or permitted to be erected on said lot or lots which shall cost less than $1,000.00 and that a dwelling house costing less than $5,000.00 shall be set at least 100 feet back from the street frontline. All dwelling houses built on front 100 feet of said lot or lots shall cost at least $5,000.00 and shall be set back at least 20 feet from front line of lot. And all outbuildings such as coops, sheds, privies, etc., and not including garages attached to house, shall be set back at least 125 feet from the street frontline.
      The covenants of different property owners are the same excepting minor differences that have no bearing on the outcome of this appeal.

      . Plaintiff's complaint for declaratory judgment also asked the court, if it upheld the covenant, to rule that Plaintiff's proposed construction would not violate the terms of the covenant. We conclude that, even if Plaintiff preserved this issue, because the covenant clearly and unambiguously limits permitted residences to one single family home, duplexes or "twin homes" are not allowed.
      Plaintiff also argues the court erred in failing to reconsider, during trial, its earlier ruling that the covenant was unambiguous. Nevertheless, Plaintiff conceded at oral argument that we owe the trial court's conclusion no deference on the issue of whether the covenant is ambiguous. Thus, even if the trial court erred in refusing to reconsider its ruling either before or after judgment, such error would be harmless error because we, like the trial court, conclude that the restrictive covenant is clear and unambiguous. See Utah R. Civ. P. 61 ("[N]o error or defect in any ruling or order ... is ground for granting a new trial or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.").

      . Plaintiff also argues that paragraph two of the judgment should be stricken because it does not reflect the jury verdict, and therefore, it was error to deny Plaintiff's motion to alter or amend or correct the judgment. This argument has no merit. All paragraph two does is recite that the covenant remains valid and enforceable with respect to limiting construction to single family dwellings. As we have indicated above, the covenant clearly and unambiguously does this, and therefore, paragraph two properly reflects the outcome of the trial, the verdict of the jury, and the judgment of the court.


source: Caselaw Access Project

author: GREENWOOD, Judge.

license: Public Domain

text:
    2002 UT App 135
    STATE of Utah, Plaintiff and Appellee, v. David Leroy LUCERO, Defendant and Appellant.
    No. 20000920-CA.
    Court of Appeals of Utah.
    April 25, 2002.

      Maurice Richards, Public Defender Association, Ogden, for Appellant.
    Brandon J. Maynard, Weber County Attorney's Office, Ogden, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   OPINION

GREENWOOD, Judge.

¶ 1 Defendant appeals his convictions for terroristic threat, a class B misdemeanor, in violation of Utah Code Ann. § 76-5-107 (1999); and threatening an elected official, a class B misdemeanor, in violation of Utah Code Ann. § 76-8-313 (1999). Defendant argues that there was insufficient evidence for the jury to find beyond a reasonable doubt that he made a terroristic threat or that he threatened to inflict bodily injury upon an elected official. Because Defendant failed to adequately brief his issues in compliance with Rule.24 of the Utah Rules of Appellate Procedure, we decline to review them. Therefore, we affirm.

BACKGROUND

¶ 2 On January 31, 2000, Defendant had an appointment with his psychologist, Dr. Larry Carcelli. During this appointment, Defendant made statements that alarmed Dr. Car-celli. Dr. Carcelli testified that Defendant was depressed and very distraught about being denied disability benefits. Defendant complained that the social sécur'ity agency felt he could work and yet would not provide him job training. Defendant told Dr. Carcel-li that he wanted to "bring it to light" and that he felt "it might be a good idea to harm [Senator Pete Suazo] in order to get some public serutiny around [inaudible] situation."

¶ 3 Defendant had earlier communicated with Senator Suazo by phone and by letter asking the Senator for help with his disability problems. Senator Suazo testified that he was unable to help Defendant, but had received Defendant's permission to fax his letter to a civil rights attorney. Dr. Carcelli testified that Defendant felt Senator Suazo had treated him in a rude manner and that Defendant "was chagrined" when Senator Suazo did not appear receptive to Defendant's plight. Defendant then told Dr. Car-celli that he had obtained Senator Suazo's address and had driven by his home. Dr. Carcelli testified that Defendant told him he was considering killing Senator Suazo. Dr. Carcelli told Defendant he was very concerned about his statements and had a legal obligation to report a threat like that but would be willing to work with Defendant if he kept in touch and committed to treatment. Defendant supplied no other details regarding his threat.

¶ 4 When Defendant failed to show up at Dr. Carcelli's office the next day as scheduled, Dr. Carcelli became concerned. He called Defendant the next morning but received a fast busy signal. Dr. Carcelli called the phone company and was told that Defendant's phone was no longer in service. Dr. Carcelli called Senator Suazo's office at the Capitol and told his staff about Defendant's threat.

¶ 5 Trooper David Mayeock, a member of the legislative security force, was notified of the threat and informed Senator Suazo that he needed to be placed into protective custody. Senator Suazo testified that he was scared and very concerned for the safety of his wife. Senator Suazo remained in protective custody until Defendant was apprehended.

¶ 6 Once Defendant was placed under arrest and read his Miranda rights, Sergeant Fred Baird of the Utah Criminal Investigative Bureau spoke with Defendant about the threats he had made. During his conversation with Sergeant Baird, Defendant described his frustration with being unemployed and unable to receive disability benefits. Defendant told Sergeant Baird that he was on anti-depressants and pain medication, but had stopped taking them thirty days before his arrest. Defendant admitted that he had expressed some "stupid thoughts" to Dr. Carcelli during his session. Defendant claimed that he would not have carried out those thoughts.

¶ 7 A jury found Defendant guilty on both counts. Defendant filed a motion to arrest judgment pursuant to Rule 28 of the Utah Rules of Criminal Procedure, arguing that the evidence was insufficient to sustain a conviction. The trial court denied Defendant's motion. Defendant was sentenced to probation for twelve months and ordered to complete 200 hours of community service and to reimburse the county $250 for his public defender. This appeal followed.

ANALYSIS

¶ 8 Defendant argues there was insufficient evidence to find him guilty of making a terroristic threat and threatening an elected official. The State urges this court not to reach the issues because Defendant failed to comply with Rule 24 of the Utah Rules of Appellate Procedure. "It is well established that a reviewing court will not address arguments that are not adequately briefed." State v. Parra, 972 P.2d 924, 926 (Utah Ct.App.1998); see also Burns v. Summerhays, 927 P.2d 197, 199-200 (Utah Ct.App.1996) (citing cases where this court has declined to reach merits of claims because appellants' briefs failed to comply with rule 24).

¶ 9 When considering arguments on appeal, we look to the requirements of rule 24 to determine whether an appellant has adequately briefed the issues. Rule 24 requires that an appellant's brief contain

[a] statement of the issues presented for review, including for each issue: the standard of appellate review with supporting authority; and
(A) citation to the record showing that the issue was preserved in the trial court

Utah R.App. P. 24(a)(5)(A). In addition, this rule requires that "[the argument shall contain the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes, and parts of the record relied on." Utah R.App. P. 24(a)(9).

¶ 10 First, Defendant failed to cite where in the record the issues concerning insufficiency of evidence or improper statutory interpretation 'were preserved for appeal as required by rule 24(a)(5)(A). Second, Defendant failed to set forth the proper standard of review to challenge a finding by a jury for insufficiency of the evidence. Instead, Defendant cites the standard of review as requiring reversal if the finding was "against the clear weight of the evidence." This is the standard of review for reviewing the sufficiency of the evidence in a bench trial, not a jury trial. See State v. Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252 (stating standard of review is clear weight of the evidence when reviewing the sufficiency of the evidence in a bench trial); State v. Hopkins, 1999 UT 98, ¶ 14, 989 P.2d 1065 (stating that party challenging sufficiency of the evidence supporting jury verdiet "must marshal the evidence in support of the verdict and then demonstrate that evidence is insufficient when viewed in the light most favorable to the verdict") (Citations omitted).

¶ 11 Third, Defendant's argument section failed to include any relevant citations, authority, or meaningful legal analysis that would support his allegations that the evidence was insufficient. For example, Defendant asserts that his "comment" that he had a thought to kill Senator Suazo was insufficient for a jury to find that he made a terroristic threat against the senator. Defendant quotes the section of the code under which he was 'convicted, then immediately thereafter quotes language from an entirely different statute dealing with witness tampering. See Utah Code Ann. § 76-8-508 (1999). Using the language from the witness tampering statute referring to a reasonable person standard, Defendant asserts that the jury in his case was under a duty "to determine whether a reasonable person would have understood the appellant's statement to be a threat of bodily injury." Defendant never cites any case law to support how these two completely different statutes are somehow analogous. Defendant then regurgitates portions of the facts, and, in his last paragraph, asserts that there was insufficient evidence for the jury to find "that the Defendant made a threat that a reasonable person could take seriously, without additional evidence of the reality of the threat." . Defendant failed to cite a single case to support his contentions, asserted his argument using an irrelevant statute, and provided no legal analysis whatsoever.

¶ 12 Similarly, Defendant's argument that the evidence was insufficient for a jury to find that Defendant made any threat to either "impede, intimidate or interfere with Senator Suazo's official duties as a State Senator" is inadequately briefed. Defendant asserts that Senator Suazo was acting outside his official duties when he assisted Defendant with his problem and since there is no indication that Defendant took any action to implement his statement, he cannot be convicted for violating section 76G-8-318. Again, Defendant cites no applicable case law nor does he provide this court with any meaningful analysis on which to review his claims. Defendant has essentially "dump[ed] the burden of argument and research" on this court. State v. Gamblin, 2000 UT 44, ¶ 6, 1 P.3d 1108 (citation omitted). "While failure to cite to pertinent authority may not always render an issue inadequately briefed, it does so when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court." State v. Thomas, 961 P.2d 299, 305 (Utah 1998).

¶ 13 This court has stated in the past that the purpose of rule 24 is to "focus the briefs, thus promoting more accuracy and efficiency in the processing of appeals." Burns v. Summerhays, 927 P.2d 197, 199 (Utah Ct.App.1996).

[T]o permit meaningful appellate review, briefs must comply with the briefing requirements sufficiently to enable us to understand ... what particular errors were allegedly made, where in the record those errors can be found, and why, under applicable authorities, those errors are material ones necessitating reversal or other relief.

Id. (quotations and citations omitted).

¶ 14 Defendant's argument section is six and a half pages. Of those six and a half pages, only three paragraphs set forth his argument. Because Defendant's brief fails to comply with the requirements or purpose of rule 24, it would be difficult for this court to review his claims.

CONCLUSION

{15 Defendant failed to provide adequate legal analysis or authority to support his contentions on appeal that would permit any meaningful review by this court, Due to Defendant's inadequate briefing, we affirm.

¶ 16 WE CONCUR: JAMES Z. DAVIS, and WILLIAM A. THORNE Jr., Judges.

      . For instance, Defendant did not cite State v. Fixel, 945 P.2d 149 (Utah Ct.App.1997) (holding mere utterance of a threat, without a specified intent, could not satisfy Utah Code Ann. § 76-8-316 (1999)), which may have application to his case.


author: GREENWOOD, Judge:

text:
    2002 UT App 128
    STATE of Utah, Plaintiff and Appellee, v. Kent Karl KIRKWOOD, Defendant and Appellant.
    No. 20010321-CA.
    Court of Appeals of Utah.
    April 25, 2002.
    Kent R. Hart, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee..
    Before Judges BILLINGS, GREENWOOD, and ORME.
   OPINION

GREENWOOD, Judge:

¶ 1 Defendant Kent Kirkwood appeals his conviction for Possession of a Dangerous Weapon by a Restricted Person, a third degree felony, in violation of Utah Codé Ann. § 76-10-503(2)(a) (1999). Defendant argues that the trial court committed reversible error under Rule 404(b) of the Utah Rules of Evidence by conditionally ruling that the State could introduce evidence of Kirkwood's past crime if he testified. The State argues that the record is insufficient for this court to review Kirkwood's claim because he did not testify. We agree and therefore affirm.

BACKGROUND

¶ 2 In August 2000, Defendant was serving probation for a second degree felony robbery conviction, during which he had used a knife. One condition of his probation was that he not possess any dangerous weapons. Pursuant to Defendant's probation agreement, Officers Hansen and Poor visited Defendant's home to conduct an impromptu search. Defendant voluntarily submitted to a pat down search that failed to uncover any weapons or contraband on Defendant's person.

¶ 3 The officers then searched Defendant's home. Upon searching Defendant's bedroom, the officers discovered a knife on the table next to Defendant's bed. The knife had a curved, four-inch blade with a handle made of wood or bone. Defendant stated that he had used the knife to eat the night before and to cut tape. However, Officer Hansen found no trace of food on the knife or other evidence that Defendant had eaten in the room.

¶ 4 Officer Poor also found a folding knife with a three-inch blade inside a duffel bag. There was nothing else inside the bag. Defendant explained that the knife in the bag belonged to a friend. The officers then arrested Defendant. Upon further questioning, Defendant revealed he also had a multipurpose tool containing several blades. The officers also discovered a pocket knife located inside & tool box. Other police officers arrived later and searched the entire house, with the exception of kitchen drawers and cupboards, and found no other weapons.

¶ 5 Despite the other knives in his room, the State charged Defendant only for the knife on the table next to the bed and the knife in the duffel bag. At trial, the parties stipulated that Defendant was a restricted person because of his probation status. During opening statements, defense counsel told the jury that Defendant would testify that he intended to use the knife as a utensil and not as a weapon.

¶ 6 On cross-examination of Officer Hansen, defense counsel elicited testimony that Defendant could legally use a knife to eat and as a tool to cut tape. On redirect, the State requested a hearing outside the jury's presence to discuss whether the State could elicit from Officer Hansen that Defendant had committed his robbery offense with the use of a knife. The State claimed that Defendant had opened the door to this type of questioning by distinguishing between the use of the knife as a tool and as a dangerous weapon. The State claimed that because Defendant used a knife in his past crime, he was more likely to possess the knife as a weapon in the present case. Defendant objected on the basis that the evidence was not relevant and would be unfairly prejudicial. The trial court ruled that the State could not ask Officer Hansen about the knife because she did not have personal knowledge of Defendant's past robbery offense.

¶ 7 After the State had rested, however, the trial court changed its ruling. During a hearing outside of the presence of the jury, the trial court ruled that if Defendant testified, the State would be allowed to ask about his use of a knife in his past robbery offense in order to show intent in the present case. The trial court ruled that while the use of the knife was not "overwhelmingly relevant" to determine whether Defendant intended to possess a weapon in this case, it was relevant enough. The trial court further ruled the evidence of the knife in the prior offense was not unfairly prejudicial since the jury already knew Defendant had been convicted of robbery. Finally, the trial court ruled that Defendant's distinction between using the knife as a tool and as a weapon opened the door for the State to ask about the use of a knife in the prior offense.

¶ 8 Following the trial court's ruling, the defense rested without presenting any witnesses. The jury acquitted Defendant of possessing the knife in the gym bag, but convicted him for possessing the knife on the table next to his bed. The trial court sentenced Defendant to a term of up to five years in prison and ordered his sentence to run consecutively to the sentence for his robbery conviction. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 9 Because we are persuaded by the State's argument that Defendant failed to preserve his claim, and thus the record is insufficient for appellate review, we address only that issue. We determine whether the record is adequate for appellate review as a matter of law. See State v. Wetzel, 868 P.2d 64, 67 (Utah 1993) ("This Court simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record." (citations and quotations omitted)). We also determine whether, as a matter of law, a defendant must testify to preserve a claim under rule 404(b).

ANALYSIS

¶ 10 The State argues that we should apply the Utah Supreme Court's rationale in State v. Gentry, 747 P.2d 1032, 1036 (Utah 1987), to this case by requiring criminal defendants to testify in order to preserve their objection under Utah Rule of Evidence 404(b) for appellate review. In Gentry, the supreme court held that under Rule 609(a) of the Utah Rules of Evidence, "[t]o preserve for appellate review a claim of improper impeachment with a prior conviction, a defendant must testify." Id. The Gentry court adopted the United States Supreme Court's reasoning in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984):

Requiring that a defendant testify in order to preserve Rule 609(a) claims, will enable 'the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to "plant" reversible error in the event-of conviction.

Gentry, 747 P.2d at 1036 (quoting Luce, 469 U.S. at 42, 105 S.Ct. at 464).

¶ 11 Only three jurisdictions have addressed whether Luce should be applied to rule 404(b) cases. In United States v. Johnson, 767 F.2d 1259, 1269 (8th Cir.1985), the government filed pretrial motions expressing its intent to introduce other erimes evidence against the defendants if the defendants testified. See id. at 1269. The defendants chose not to testify, allegedly because of the trial court's ruling. See id. The court ruled that even though Luce was decided under rule 609(a)(1), the "logic [of Luce] applies with equal force to motions under rule 404(b)." Id. at 1270. The Johnson court noted that both rules 404(b) and 609(a)(1) require that the trial court balance probative value and unfair prejudice. See id. at 1270 n. 9; Fed.R.Evid. 404(b), 609(a)(1); see also United States v. Ortiz, 857 F.2d 900, 905 (2d Cir.1988) ("[Defendant] cannot now challenge the evidentiary ruling because the [defendant's failure to testify] caused an inadequate record for review. Otherwise, we would be foreed to speculate on whether an evidentia-ry ruling denied [the defendant] a fair trial or was merely harmless error."). Since both rules require a similar balancing test, a reviewing court needs the same amount of detail in the record to review rule 404(b) objections as it does for rule 609 objections.

¶ 12 Alaska has also addressed this issue. In Page v. State, 725 P.2d 1082 (Alaska Ct.App.1986), the court granted the state's motion in limine to introduce past crimes evidence under rule 404(b) if the defendant testified; thus allegedly causing the defen-: dant not to testify. See id. at 1086. The Alaska Court of Appeals ruled that because it did not know what the defendant would have testified to, and did not know if the prosecution would actually address the prior convictions, it did not have an adequate record from which to review the defendant's claims since it would have to speculate. See id. at 1086-87.

¶ 13 We are persuaded by the reasoning of the above authorities, and therefore hold that a defendant must testify to preserve his objection to a conditional in limine ruling under rule 404(b). To hold otherwise would require appellate courts to speculate as to whether the alleged error was harmful.

¶ 14 Accordingly, Defendant's objection is not preserved for appeal in view of his decision not to testify. Otherwise, any possible harm flowing from the trial court's conditional ruling is wholly speculative because the jury never heard the past crimes evidence, never heard Defendant's testimony, and never received a limiting instruction from the trial court. By its nature, an in limine ruling is subject to change by the trial court. See Luce, 469 U.S. at 41, 105 S.Ct. at 463 ("[The district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling."). Defendant's refusal to testify deprived the trial court of the opportunity to alter its ruling or issue a limiting instruction that would minimize any unfair prejudice that may have resulted from the admission of the evidence. See State v. Smith, 700 P.2d 1106, 1110 (Utah 1985) (holding that trial court should issue a limiting instruction cautioning the jury to use past crimes evidence admitted under rule 404(b) only for the purpose for which it was admitted). Moreover, unless Defendant is required to testify to preserve his objection,

almost any error would result in the windfall of automatic reversal; the appellate court could not logically term "harmless" an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve ... claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to "plant" reversible error in the event of conviction.

Luce, 469 U.S. at 42, 105 S.Ct. at 463-64; see also Ortiz, 857 F.2d at 906 (stating that unless the defendant testifies the "reviewing court is obliged to indulge in unacceptable appellate speculation"). Therefore, because the jury never heard the past crimes evidence to which Defendant objects, this court is left to speculate about the harm Defendant may have suffered, if any, had he testified and had the State introduced the evidence unmodified by a limiting instruction.

¶ 15 While conceding that the jury did not hear any of the past crimes evidence, Defendant argues that the trial court's ruling forced Defendant not to testify, thus denying him due process. However, this argument is contrary to the Utah Supreme Court's decision in Gentry. In Gentry, the defendant argued that he was denied due process because the trial court granted the State's motion in limine to allow the State to inquire about past convictions, thus forcing the defendant not to testify. 747 P.2d at 1036. The supreme court stated:

Defendant misconstrues the nature of the constitutional right in question. The Constitution affords an accused a choice: He may refuse to become a witness, or he may elect to take the witness stand and testify in his own behalf.... The defendant having exercised his constitutional right to remain silent and not testify, cannot now be heard to complain that the court forced the choice upon him and thereby denied him due process.

Id. at 1036 (quoting State v. McCumber, 622 P.2d 358, 358 (Utah 1980)).

¶ 16 Defendant further argues that not being able to testify harmed him by denying him his right to an appeal pursuant to Utah Constitution Article I, § 12 and Article VIII, § 5. Both of these constitutional provisions guarantee a eriminal defendant the right to an appeal. See Utah Const. art. I, § 12 ("In criminal prosecutions the accused shall have ..., the right to appeal in all cases."); art. VIII, § 5 ("Exeept for matters filed originally with the Supreme Court, there shall be in all cases an appeal of right from the court of original jurisdiction to a court with appellate jurisdiction over the cause.").

¶ 17 However, Defendant has waived his right to appeal because, by not testifying, he cannot demonstrate that the trial court committed reversible error. For an appellate court to reverse a trial court on an evidentiary ruling, the appellant must show: (1) that the trial court erred; and (2) that but for the error, "there is a reasonable likelihood of a more favorable result for the defendant." State v. Featherson, 781 P.2d 424, 481 (Utah 1989). Defendant's argument that he was harmed by not being able to preserve his argument for appeal proves nothing as to whether he would have received more favorable treatment from the trial court and therefore strands this court in a land of speculation into which appellate courts ought not to wander. This is consistent with a basic tenet of appellate practice that an issue must be presented in the trial court to be considered on appeal. See, e.g., State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230 ("As a general rule, claims not raised before the trial court may not be raised on appeal." (citation and quotations omitted)); State v. Chapman, 921 P.2d 446, 455 (Utah 1996) (holding that court could not address appellant's claims because he failed to raise them in trial court below). Thus, Defendant has waived his right to appeal by failing to provide an adequate record that this court can use to determine whether he would have received a more favorable verdict absent the trial court's alleged error.

CONCLUSION

¶ 18 Because he chose to not testify, Defendant has failed to preserve his objection under rule 404(b) for appellate review. Thus, the record is inadequate. Accordingly, we affirm.

19 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and GREGORY K. ORME, Judge.

      . The facts are stated in the light most favorable to the jury verdict. See State v. Webster, 2001 UT App 238, ¶ 2, 32 P.3d 976.

      . The prior version of Rule 404(b) of the Utah Rules of Evidence, in effect at the time of Defendant's trial, stated:
      (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In other words, evidence offered under this rule is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 403.
      Under Utah Rule of Evidence 403, the trial court must balance the probative value and prejudicial effect of the evidence. Furthermore, we note that even if the current rule 404(b) were at issue, the analysis would be the same. See Utah R. Evid. 404(b) Advisory Committee Note ("Evidence sought to be admitted under Rule 404(b) must also conform with Rules 402 and 403 to be admissible.").

      . Rule 609(a) of the Utah Rules of Evidence states: ©
      (a) General rule. For the purpose of attacking the credibility of a witness,
      (1) evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
      (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
      (Emphasis added.)

      . Defendant urges this court to adopt the reasoning in Wickham v. Alaska, 770 P.2d 757 (Alaska Ct.App.1989). In Wickham, the court allowed an appeal under rule 609, even though the defendant did not testify, because he provided a detailed proffer of testimony, see id. at 762 n. 2, and informed the court that he would testify unless the state's motion in limine was granted. See id. at 762. However, because we adopt State v. Gentry, 747 P.2d 1032 (Utah 1987), for rule 404(b) claims, we decline to follow Wickham because Wickham is inconsistent with Gentry's unequivocal adoption of Luce. See Gentry, 747 P.2d at 1036 ("'To preserve for appellate review a claim of improper impeachment with a prior conviction, a defendant must testify." (Emphasis added)).


author: DAVIS, Judge:

text:
    2002 UT App 126
    STATE of Utah, Plaintiff and Appellee, v. Angel Joseph MARTINEZ, Defendant and Appellant.
    No. 20001128-CA.
    Court of Appeals of Utah.
    April 25, 2002.

      Stephanie Ames and Gregory G. Skordas, Gustin, Christian, Skordas & Caston, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee.

      Before JACKSON, P.J., BILLINGS, Associate P.J., and DAVIS, J.
   OPINION

DAVIS, Judge:

T1 Appellant Angel Joseph Martinez (Martinez) appeals his convictions of aggravated burglary and murder. Martinez challenges whether the trial court's determination that the eyewitness identification of Martinez as the driver of a getaway car was constitutionally reliable, whether the trial court erred in denying Martinez's Motion for a Mistrial, and whether the State failed to provide sufficient evidence for a jury to con-viet Martinez of murder and aggravated burglary. We affirm.

BACKGROUND

T2 On August 3, 1999, two men with guns ran into the home of Matthew Moya (Moya). One of the intruders wore clothing that covered his face and the other wore sunglasses. The intruders ordered Moya's fiancé, Anita Archuleta (Archuleta), brother-in-law, and three young children to lie down on the floor. One of the intruders then went into the back room where Moya was sleeping. A struggle ensued between Moya and the intruder. During the struggle, the unidentified intruder shot Moya twice and Moya fell to the floor. As the two intruders were exiting the home, "they looked back at [Moya] and shot him one more time." Moya died as a result of the shooting.

T3 Earlier that day, about 8:20 p.m., Moya and his family had returned home from the grocery store. At about 8:80 p.m., Jay Ingle-by (Ingleby) and Mrs. Dikki Jo Black (Black), who was picking up her children from a babysitter's home, saw two men exit an old green car and run toward the Moya home. Ingleby thought it was strange that one of the men was wearing a large, hooded sweatshirt that concealed his face because it was 97 degrees outside. Just after Ingleby lost sight of the two men, he heard shots. He then noticed the same two men running from the Moya residence and saw one of the men stuff a revolver into his waistband. Just ahead of the men, Ingleby noticed an old, green Cadillac driving slowly up the block. He watched as the rear doors opened, the two men jumped into the back seat, and the car sped from the seene. Shortly thereafter Ingleby found himself calming Archuleta, who said Moya had just been shot.

{4 Black was standing in her babysitter's front yard where she saw the two men jump into the green car as it slowed down. At that time Black made eye contact with the driver for between ten to fifteen seconds. Initially, Black told the police that the man driving the car and the two men the driver picked up were between eighteen and twenty-five, Hispanic, with darker skin, short black hair, and dark eyes. Black stated that she was not good at the "age thing" and that the age range was for the group as a whole and did not specify an age for the driver of the vehicle. In addition, Black told the officer that the driver had "dark, shiny skin," but was not sure about the "shiny part."

T5 Before presenting Black with a photo spread, Officer Yoshikawa telephoned and asked whether it was possible that the person she saw driving the car could be older. Black indicated that it was possible. Two days later, Detective Yoshikawa arrived at Black's home and presented her with a photo spread that in addition to a photo of Martinez, contained five other men in their thirties resembling him. Black took her time reviewing the photographs and identified Martinez as the driver of the car. Black testified that she was unsure about the photograph until she saw a color copy from which she recognized his eyes, face, hairline, and the expression on his face. In addition, she pointed out how the color photograph captured the differences between his two eyes, "as if they could have belonged to two different people." In court, Black identified Martinez as the driver she saw on the day of the shooting based on his unique eyes and hairline.

T6 The car seen fleeing the scene was an older model, green, four-door Cadillac with Utah Centennial plates.. Ingleby specifically observed that the car was two-tone green, dark green on top and a brighter lime green on bottom. Ingleby also noticed that "on the back by the back bumper and taillights [there were] some rust spots across the back." Ingleby described the car as nice looking in pretty good condition.

17 Martinez was arrested and charged with aggravated burglary, a first degree felony, in violation of Utah Code Ann. § 76-6-208 (1999), and murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (1999). Notice was given that both offenses were subject to enhancement penalties under Utah Code Ann. $ 76-3-203,(1999), commission of offenses with a dangerous weapon, and Utah Code Ann. § 76-3-208.1 (1999), commission of offense in concert with two or more individuals.

T8 A hearing on Martinez's Motion to Suppress Witness Identification was held on January 14, 2000. Martinez was present and represented by counsel. Testimony was received from Detective Yoshikawa and Black. The court, being "aware of the criteria set forth in State v. Long, [72Ll P.2d 488 (Utah 1986)], for consideration of eyewitness testimony," denied the Motion and ruled orally that the procedure was not impermissibly suggestive, stating "[oln the contrary, it's sort of the textbook example of what one hopes an officer will do." In its written order, the court concluded that the "manner in which the photo spread was prepared by Detective Yoshikawa and presented to Mrs. Black establishes that it was not unduly suggestive." °

19 While Martinez was being held at Oxbow jail following his arrest, he confessed to Roger Ashworth, another inmate in the jail, to participating in the offense.

10 At trial, Roger Barney testified that in April 1999 he sold his father's 1977 two-toned green Fleetwood Cadillac to Martinez. At the time of the sale, the car was in "excellent shape except on the rear panel it was starting to get a little rust." Barney did not see the car again until it was at Evans & Sons Automotive, where it was smashed and crushed on a pile of cars.

T11' Steven Evans, who owns Evans & Sons Automotive, testified that on or about August 3, 1999 between 4:00 and 5:00 p.m., Martinez drove the Cadillac to Evans & Sons and told the owners to scrap the car out because it had a bad engine and was making noise. In the past, Martinez had car engines replaced by Evans. & Sons and Evans thought it out of character for Martinez to junk the car without first having a diagnosis done. Two months later, at the request of the prosecution investigator, Evans removed the Cadillac from the junk pile and found that the engine ran "okay" and "sounded fine" when he replaced the battery and starter motor. Evans's son Brad confirmed that the engine did not sound as though it was "blown" when it was later tested. After he heard the motor, Brad was surprised that the car had been junked.

112 On cross-examination by defense counsel, Archuleta testified that she had given Detective Yoshikawa the name of Jose Nava (Nava) as a possible suspect in the shooting because Moya owed Nava some money in connection with some dealings Moya had with Nava. On re-direct examination, Archuleta stated that Nava was a friend of Moya's because "they called [Moya] like twice before this had happened." She then testified that she knew this because "[Moyal told [her] that Jose [Naval called." Defense counsel objected to the testimony as hearsay and the objection was immediately sustained. Archuleta later testified, without objection, that it was her understanding that Moya made one of the calls to Martinez.

1183 Martinez then moved for a mistrial based on Archuleta's testimony claiming he was unaware the witness would testify about the nexus between Nava and Martinez. Detective Yoshikawa informed the court that he had interviewed Archuleta about the matter and made a report referencing the telephone conversation. This report was given to the prosecutor, who inadvertently neglected to provide a copy to the defense.

{14 The jury convicted Martinez of the offenses as charged and entered a special verdict, finding that Martinez had committed the murder with a dangerous weapon and acted in concert with two or more individuals in committing both crimes. The trial court sentenced Martinez to consecutive statutory nine years to life prison terms. Martinez appeals.

ISSUES AND STANDARD OF REVIEW

«15 Martinez argues that the introduction of Black's eyewitness identification at trial violated his right to due process of law under Article I, Section 7 of the Utah Constitution and the Fourteenth Amendment to the United States Constitution because the identification was unreliable and impermissibly suggestive. The trial court's decision to admit eyewitness identification evidence is a mixed question of fact and law. The trial court's findings are viewed in the light most favorable to the court's decision and will be reversed "only if they are against the clear weight of the evidence." State v. Ramirez, 817 P.2d 774, 782 (Utah 1991). We review for correctness the trial court's conclusion that the eyewitness identification evidence is reliable. See id.

[ 16 Second, Martinez argues that the trial court erred in denying his motion for mistrial when the court allowed the testimony by Archuleta to be admitted. "We review rulings on motions for a mistrial based on pros-ecutorial misconduct [ie., discovery violations] for abuse of discretion." State v. Reed, 2000 UT 68, ¶ 18, 8 P.3d 1025; see also State v. Harmon, 956 P.2d 262, 276 (Utah 1998) (stating standard is met only if error is "substantial and prejudicial") (quotations and citations omitted).

117 Finally, Martinez argues that the evidence presented at trial was insufficient to support a verdict of guilty. "When findings of all required elements of the crime can be reasonably made from the evidence, including the reasonable inferences that can be drawn from it, we stop our inquiry and sustain the verdict." State v. Colwell, 2000 UT 8, ¶ 42, 994 P.2d 177.

ANALYSIS

1 18 Martinez argues that the admission of Black's identification of him as the driver of the car seen leaving the seene of the crime violated his due process rights under both the Federal and Utah Constitutions because it was unreliable and induced by an overly suggestive photo spread. Martinez's federal constitutional challenge was not raised in the Motion to Suppress Eyewitness Identification submitted to the trial court. However, the trial court, in making its findings, applied both the federal and state requirements set forth in Ramirez and Long.

I. Eyewitness Identification

19 In Ramirez, the Utah Supreme Court extended its recognition that eyewitness testimony is both potent and yet fallible; thereby requiring the trial court, in instances where eyewitness identification is central to the case, to undertake "an in-depth appraisal of the identification's reliability," before admitting such testimony under Article I, Seetion 7 of the Utah Constitution. 817 P.2d at 780. Noting that "[the ultimate question to be determined is whether, under the totality of the cireumstances, the identification was reliable," the court listed the following pertinent factors for determining reliability:

(1) [The opportunity of the witness to view the actor during the event; (2) the witness's degree of attention to the actor at the time of the event; (8) the witness's capacity to observe the event, including his or her physical and mental acuity; (4) whether the witness's identification was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion; and (5) the nature of the event being observed and the likelihood that the witness would perceive, remember and relate it correctly. This last area includes such factors as whether the event was an ordinary one in the mind of the observer during the time it was observed, and whether the race of the actor was the same as the observer's.

Ramirez, 817 P.2d at 781 (quoting State v. Long, 721 P.2d 483, 498 (Utah 1986)) (alteration in original).

T20 Martinez argues that application of the five Ramirez factors shows Black's identification of him was constitutionally unreliable. Specifically, Martinez argues Black's identification should have been suppressed because at the time of the incident, she was focused on her children's safety, her observation lasted only a few seconds, and the presentation of the photo spread by Officer Yoshikawa was suggestive. The task before us is to "review the record evidence and determine from the totality of the cireum-stances whether the admission of the identification is consistent with the due process guarantees of article I, section 7." Ramires, 817 P.2d at 781.

A. Witness's Opportunity to Observe Defendant

121 The first Ramires factor relates to the witness's opportunity to view the defendant. See Ramires, 817 P.2d at 782. Examination of this factor includes considering "the length of time the witness viewed the actor; the distance between the witness and the actor; [and] whether the witness could view the actor's face." Id. In addition, the quality of light and presence of distractions are also considered. See id.

122 Detailed written findings concerning Black's observations were made. The trial court found that at approximately 8:30 p.m. on August 3, 1999, Black, who was picking up her children, was standing in front of her babysitter's home on Dale Avenue when she saw two men running up the street. At this time she also saw an older, two-toned, green American automobile turn onto Dale Avenue and proceed up the street towards her. As the car slowed down to allow two men to enter, Black made eye contact with the driver for between ten and fifteen see-onds. The driver's side window of the automobile was down and nothing obstructed her view of the driver. The trial court's findings, supported by the record, show that Black had ample opportunity to view Martinez in favorable conditions. -

~B. Witness's Degree of Attention

123 The second reliability factor requires the court to examine the witness's degree of attention to the defendant, by looking at whether the witness was fully aware of what was taking place. See id. at 788. With respect to this factor, the trial court found that Black's attention was aroused because she thought it unusual that one of the men was wearing a hooded sweatshirt on such a hot day, and that she initially thought there might be a shooting because both of the men and the car were moving vhastily together. As the two men entered the automobile, Black lost eye contact with the driver for about a second, but immediately regained it after the two men entered the automobile. Eye contact was maintained with the driver for about ten to fifteen seconds, until the car turned onto another street. The record supports the court's findings that Black's attention was focused on the developing action and particularly on the driver's face.

C. The Physical and Mental Capacities of the Witness

124 The third reliability factor focuses on the physical and mental capacities of the witness. See id. "Here the relevant cireumstances include whether the witness's capacity to observe was impaired by stress or fright at the time of the observation, by personal motivations, biases, or prejudices, by uncorrected visual defects, or by fatigue, injury, drugs, or alcohol." Id.

1 25 The court found that because the two men and the automobile were proceeding hastily in the same direction, Black initially thought a shooting might occur. The record clarifies the court's intent to show that if Black's capacity to observe the events was compromised because she thought a shooting might occur in the proximity of her children, that impediment was quickly removed. Once her children were safely inside her car, which was before the automobile had even slowed down, Black was able to focus on the approaching automobile and its occupants. In support of the court's findings, Black testified that she did not have trouble seeing at a distance and that she does not wear corrective lenses,. In addition, the court noted in its findings that there were no impediments between Black and the driver to block her view and that she was not taking any medications or anything else at that time.

D. Whether Identification Was a Product of Suggestion

$26 The fourth factor focuses on the genuineness of the identification by determining whether it "was made spontaneously and remained consistent thereafter or whether it was a product of suggestion." Id. The cireumstances considered involve:

length of time that passed between witness's observation at the time of the event and the identification of defendant; the witness's mental capacity and state of mind at the time of the identification; the witness's exposure to opinions, descriptions, identifications, or other information from other sources; instances when the witness or other eyewitnesses to the event failed to identify defendant; instances when the witness or other eyewitnesses gave a description of the actor that is inconsistent with defendant; and the circumstances under which defendant was presented to the witness for identification.

Id.

1 27 Martinez generally challenges the reliability of Black's identification under this factor, but does not attack the consistency of Black's identification. Rather, the only assertion is that the trial court erred in concluding the photo spread was not suggestive. As such, Martinez's claim goes only to the "cireumstances under which defendant was presented to the witness for identification." Id. Specifically, Martinez claims the photo spread did not include images of Hispanic men between the ages of eighteen and twenty-five, as Black had originally described, but images of Hispanic men in Martinez's age range, who was thirty-four. Therefore, Martinez concludes, the photo spread improperly suggested that the police had a suspect who was in his thirties and thus tainted Black's identification of Martinez.

128 In State v. Thamer, 777 P.2d 482 (Utah 1989), the Utah Supreme Court applied a two part test to determine whether a pre-information photo spread was so suggestive that subsequent admission of the in-court identification violated due process:

First, we must determine whether there was a pretrial photographic identification procedure used which was so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification. Second, if the photo array is impermissibly suggestive, then the in-court identification must be based on an untainted, independént foundation to be reliable. Reliability is, of course, the linchpin of the admissibility of identification evidence.

Id. at 485 (citations omitted).

¶ 29 The main question when evaluating the permissibility of a pretrial photo identification is "whether the photo line array emphasized the defendant's photo over the others." State v. Lopez, 886 P.2d 1105, 1111 (Utah 1994). Several things should be considered in making this determination, including:

whether the words or body language of the officers who presented the array conveyed an attitude of disinterest, whether the officers manipulated the photos to indicate their belief that one of the photos portrayed the perpetrator, and whether the photos themselves were selected so that the defendant's photo stood out from the rest.

Id. at 1111-12.

130 In Lopes, the defendant claimed the photo spread, which consisted of six pictures, was unconstitutionally suggestive because out of the six photos, only one appeared "marginally Hispanic like Lopez" Id. at 1112. The defendant further argued that the witness's description of the perpetrator vacillated and therefore was impermissibly suggestive. See id. The Utah Supreme Court rejected these claims and held:

Although the failure of an officer to match subjects according to ethnicity is usually a strong indication of impermissible suggestiveness, the suspect here was not clearly a member of the Hispanic ethnic group. The key is whether the descriptions of the subjects in the photo array match the description of the suspect.... [In this case, matching the subjects by skin tone was sufficient.

Id. The court also held the photo array was not impermissibly suggestive because, even though the descriptions of the witnesses were incomplete, they did not "indicate inappropriate behavior on the part of the police, nor [did] they tend to show that one photo in the array stood out from the rest." Id.

T31 In the case at hand, the trial court's detailed findings indicate that the photo array, as well as Detective Yoshikawa's presentation of the photo array to Black, correctly followed the guidelines set forth in Lopez. The court found that Black initially described the driver as appearing to be an eighteen to twenty-five year old Hispanic male, with dark, shiny skin and white teeth. However, Black indicated that this age range was for the group as a whole and did not specify an age for "the driver individually. Before going to Black's home, Detective Yoshikawa telephoned to ask if it was possible the driver might be older than she initially described. Black acknowledged that there was "a very good possibility" that the driver could be older. Based on this response Detective Yoshikawa prepared a computer generated photo array that included Martinez and five Hispanic males resembling him, whose ages ranged from thirty to thirty-seven.

32 The court found that on August 5, 1999, Detective Yoshikawa went to Black's home with the photo array. Before presenting the array, the Detective informed Black that the men depicted would appear older than the age description she had given to the police, that the driver of the automobile may be included, and that she should take her time as she viewed the entire spread and each individual photograph. The court also found that the Detective did not suggest anyone in the photo spread, that he did not help her make a selection, and that she did not feel compelled to make an identification from the photo spread.

138 Finally, the court found that although Black was not certain in selecting the photograph of Martinez as the driver of the automobile because the driver's facial skin appeared smoother than that in the photograph, she was struck by the similarities of Martinez and the driver both in the hairline and particularly in the eyes, which did not appear to match each other. The trial court thus correctly concluded that "Itlhe manner in which the photo spread was prepared by Detective Yoshikawa and presented to Mrs. Black establishes that it was not unduly suggestive."

E. Nature of Event Being Observed and Likelihood Witness Would Remember and Relate it Correctly

1 34 The last reliability factor concerns the nature of the incident observed and the likelihood of it being perceived and remembered correctly by the witness. See Ramires, 817 P.2d at 781. The trial court did not make specific findings on this point, and Martinez failed to raise the same as an issue on appeal.

¶ 35 Based upon the totality of the circumstances underlying the victim's eyewitness identification, the trial court's detailed findings, and consideration of all the cireum-stances surrounding the identification in light of the Ramirez factors, we conclude that it is reliable and therefore hold that the trial court did not err when it admitted the identification at trial.

II. Denial of Motion For a Mistrial

¶ 36 Martinez next argues the trial court abused its discretion by denying his motion for a mistrial. "A trial court's denial of a motion for mistrial will not be reversed absent an abuse of discretion." State v. Widdison, 2001 UT 60,¶ 54, 28 P.3d 1278. "This is because the trial court is in the best position to determine whether the incident prejudiced the jury." Id. "Therefore, we will not find an abuse of discretion unless 'a review of the record shows that the court's decision is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have a fair trial? " Id. (quoting State v. Robertson, 932 P.2d 1219, 1231 (Utah 1997)).

¶ 37 Specifically, Martinez argues the prosecution's failure to disclose a police report led his counsel to ask a witness a question that opened the door for the prosecutor to later elicit damaging testimony. Martinez's brief on appeal contains little analysis and legal authority in support of this contention and no citation to the record. See Utah R.App. P. 2A(a)(9).

¶ 38 The trial court denied Martinez's Motion for a Mistrial, finding any error in the discovery violation to be minimal, and that this was not enough to "rise[ ] to the mistrial level." The trial court noted that this oversight was out of character for the prosecutor, and because of defense counsel's quick objection any error would be minimal. See State v. Larson, 775 P.2d 415, 418 (Utah 1989) ("Rule 16(g) [of the Utah Rules of Criminal Procedure] grants a trial court ample discretion to remedy any prejudice to a party resulting from a breach of the eriminal discovery rules."); see also State v. Stites, 5 Utah 2d 101, 297 P.2d 227, 229 (Utah 1956) (holding any prejudice remedied when the trial court "promptly excluded" impermissible statements and instructed the jury to disregard those statements). In addition, the trial court offered to present the jury with a curative instruction if the parties desired. See e.g., State v. Menzies, 889 P.2d 393, 401 (Utah 1994) (holding discovery violation sufficiently cured when impermissible testimony was stricken and the jury was instructed to ignore it).

¶ 39 We agree that there is no indication that the prosecution intentionally or in bad faith withheld the police report. Further, we perceive no prejudice toward Martinez because of the prosecution's failure to supply the police report. We are not convinced that the trial court abused its discretion in denying Martinez's motion for a mistrial based on this oversight and hold that the prosecutor's oversight did not rise to the level of misconduct. In addition, the effect of the oversight did not undermine the fairness of the trial. c

III. Sufficiency of The Evidence

¶ 40 Martinez challenges the sufficiency of the evidence supporting his conviction for murder and aggravated burglary. The appellate court

"will reverse a jury verdict only when, after viewing the evidence and all inferences drawn therefrom in a light most favorable to the verdict, [the court] find[s] that the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust."

State v. Heaps, 2000 UT 5,¶ 19, 999 P.2d 565 (quoting Child v. Gonda, 972 P.2d 425, 433 (Utah 1998)). The burden is on the. appellant to "marshal all relevant evidence presented at trial which tends to support the findings and demonstrate why the findings are clearly erroneous." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1313 (Utah Ct.App.1991). To meet this burden, an appellant "must present, in comprehensive and fastidious order, every serap of competent evidence introduced at trial which supports the very findings the appellant resists." Id. at 1315. After compiling all evidence in support of the verdict, the appellant must then show that there is a flaw in the evidence, sufficient to show that the verdict is clearly erroneous. See id.

¶ 41 We first consider whether there was sufficient evidence to convict Martinez of aggravated burglary. Utah Code Ann. § 76-6-202(1) (1999) defines burglary as follows: "A person is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit a felony or theft or commit an assault on any person." Id. If, in the course of the burglary, the actor or another participant causes bodily injury to another, the burglary becomes aggravated. See id. § 76-6-208. It was undisputed that Martinez did not enter the home and shoot Moya; therefore, in order for the State to convict Martinez of aggravated burglary, it had to satisfy the requirements of the accomplice liability statute. See id. § 76-2202. This allows conviction for aggravated burglary if Martinez, "acting with the mental state required for the commission of [aggravated burglary] ... solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes [aggravated burglary]." Id. In other words, the State had to prove that Martinez intentionally aided the two men in entering Moya's home that resulted in the fatal shooting of Moya.

¶ 42 Martinez argues there was no reliable or conclusive evidence to support a finding that he acted as a party to the offense. To determine whether the evidence supporting the verdict was "completely lacking or was so slight and unconvineing as to make the verdict plainly unreasonable and unjust" we must look to the circumstantial evidence and all reasonable inferences drawn therefrom. Heaps, 2000 UT 5 at ¶ 19, 999 P.2d 565 (quotations and citations omitted).

¶ 43 The primary evidence on this issue is as follows: Martinez's green Cadillac clearly matched the description of the car given by three witnesses as being the one driven in commission of the murder. After the murder, Martinez attempted to destroy his Cadillac. Martinez claimed that the car had a bad engine, but he had driven the car to the scrap yard, and two months later the engine was in good working order. Black, an eyewitness to the crime, identified Martinez as the driver of the escape vehicle after having unobstructed eye contact with Martinez for ten to fifteen seconds. From a photo array presented two days later, Black identified Martinez as the driver noting his unique eyes that did not seem to match each other. While Martinez was being held at Oxbow jail following his arrest, he confessed to Roger Ashworth, another inmate in the jail, to participation in the offense. Specifically, Martinez admitted he had driven his brother to Moya's house where "all hell broke loose." Although Ashworth's credibility was challenged, the jury was entitled to fully credit his testimony. See State v. Stewart, 729 P.2d 610, 612 (Utah 1986) (observing that the jury is free to draw its own inferences and conclusions as to the credibility of a witness).

¶ 44 A jury could reasonably infer from this evidence that by driving the two men to Moya's home, dropping them off, waiting nearby, and picking them up when they fled the home, Martinez enabled the two men to enter the Moya home and fatally shoot him. "[In light of the evidence supporting the aggravated burglary charge and the reasonable inferences that could be drawn therefrom, a jury could reasonably conclude that [Martinez] intentionally aided [the two men] in entering [Moya's house] and intended ... a felony or assault [to occur] inside the [home]." State v. Holgate, 2000 UT 74,¶ 28, 10 P.3d 346.

¶ 45 Next, we consider whether the evidence was sufficient to sustain a conviction of murder. Pursuant to Utah Code Ann. § 76-5-203(1)(d) (1999) the jury was instructed that in order to convict Martinez of murder they must find from the evidence that he "while in the commission, attempted commission, or immediate flight from the commission or attempted commission of ... aggravated burglary, ... causes the death of another person other than a party." See id.

¶ 46 "Aggravated burglary is a predicate offense that removes intent as an element of [murder]." State v. Pierson, 2000 UT App 274,¶ 18, 12 P.3d 103. "Thus, as a theoretical matter, ... murder has all the elements of aggravated burglary." Id. Because we have determined that the evidence was sufficient to support the jury's finding that Martinez was guilty of aggravated burglary and the death of Moya resulted from this incident, we conclude that the evidence was sufficient to sustain a conviction of murder.

CONCLUSION

147 We affirm Martinez's convictions for murder and aggravated burglary. We hold that the trial court properly determined that the eyewitness identification was reliable. We also affirm the trial court's denial of Martinez's motion for mistrial because we are not convinced that the trial court abused its discretion in denying the motion. Finally, we conclude that the evidence was sufficient to support Martinez's convictions for murder and aggravated burglary.

{48 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and JUDITH M. BILLINGS, Associate Presiding Judge.

      . "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237.

      . Because, as Martinez concedes in his brief, the federal and state requirements "vary slightly," we do not apply the two tests individually. Martinez has provided little analysis and legal authority in support of his contention without citation to the record.
      In State v. Ramirez, [817 P.2d 774 (Utah 1991)], the Utah Supreme Court determined that the due process analysis under Article 1, Section 7 of the Utah Constitution for determining the reliability of eyewitness identifications "is certainly as stringent as, if not more stringent than, the federal analysis." Therefore, we, like the supreme court in Ramirez, do not undertake a separate analysis under the Fourteenth Amendment of the United States Constitution. We note, however, our conclusion would be no different under a Fourteenth Amendment analysis.
      State v. Perry, 899 P.2d 1232, 1236 (Utah Ct.App.1995).
      Therefore, we choose not to address the federal provision separately and limit our analysis to the state constitutional requirements. In so doing, we apply the requirements set forth in State v. Ramirez, 817 P.2d 774 (Utah 1991), which incorporate the federal test as well as an additional factor. "Based on federal case law and the Utah Supreme Court's decision in State v. Long, 721 P.2d 483, 493 (Utah 1986), the Ramirez court established a separate, more in-depth due process analysis 'of the reliability of eyewitness identifications under the Utah Constitution." State v. Nelson, 950 P.2d 940, 943 (Utah Ct.App.1997). If, after applying the five factors set forth in Ramirez, the identification is found to be reliable, "then it is admissible under the Due Process Clause of the Utah Constitution." Id.


author: LEHMAN, Chief Justice.

text:
    2002 WY 82
    George GRIFFIN, Appellant (Petitioner), v. STATE of Wyoming, ex rel., Wyoming DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
    No. 01-80.
    Supreme Court of Wyoming.
    May 28, 2002.

      R. Michael Vang of Kirkwood, Nelson & Vang, P.C., Laramie, WY, Representing Appellant.
    Hoke H.M. MacMillan, Attorney General; Rowena L. Heckert, Deputy Attorney General; and Mary L. Loos, Assistant Attorney General, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, and VOIGT, JJ., and BRACKLEY, D.J.
   LEHMAN, Chief Justice.

[¶ 1] George Griffin (Griffin) seeks judicial review of an order of the Office of Administrative Hearings (OAH) upholding his implied consent suspension of his driver's license. The agency decision arose from a contested case hearing on October 27, 1999, and the suspension resulted from Griffin's refusal to submit to a chemical test in violation of Wyoming's Implied Consent Law, Wyo. Stat. Ann. §§ 31-6-101 through -108. The district court upheld the agency action, and this appeal followed. We find that (1) the testimony of the police officer in administering and assessing field sobriety tests provided sufficient foundation to admit the officer's testimony regarding such tests in an administrative proceeding; (2) the hearing examiner did not err by admitting the evidence; and (8) there was substantial evidence of probable cause to arrest Griffin for driving while under the influence of alcohol (DWUI). We affirm.

ISSUES

[¶ 2] The parties are in agreement that the issues on appeal are:

1. Do standardized field sobriety tests utilized by the arresting officer require scientific or technical knowledge that require a proper foundation for their admission into evidence under W.R.E. 702 through 704?
2. Did the hearing examiner err by admitting and placing any significance on the standardized field sobriety maneuvers utilized by the arresting officer?
3. Was there sufficient admissible evidence to find that the arresting officer had probable cause to arrest the Petitioner for driving while under the influence of alcohol?

FACTS

[¶ 3] At approximately 2:00 a.m. on July 3, 1999, Police Officer Hampton observed Griffin driving between sixty and seventy m.p.h. in a forty m.p.h. zone, and he observed the vehicle swerve and cross the center line. As a result, the officer stopped Griffin's vehicle. Upon contact, the officer observed that Griffin had watery and bloodshot eyes, slurred speech, and smelled of alcohol. When questioned, Griffin admitted to drinking two or three beers. The officer asked to see Griffin's driver's license, which he had a hard time locating, taking three attempts to get the license out of his wallet and hand it to the officer. When the officer returned the license, Griffin dropped it. The officer then asked Griffin to exit the vehicle so that field sobriety maneuvers could be performed. Griffin agreed.

[¶ 4] Griffin performed a number of maneuvers, the first of which was the horizontal gaze nystagmus (HGN) test. When questioned about his qualifications to administer the HGN, the officer testified that he had been a police officer for a little more than three years and had completed DWUI training at the police academy, as well as refresher courses following academy graduation. The officer stated that he estimates the forty-five degree angle used in conducting the HGN as recommended in the National Highway Traffic Administration (NHTSA) manual. After confirming that Griffin was neither ill nor on medication, the officer held a pen eighteen to twenty-four inches from Griffin's nose and told Griffin to follow the pen as he moved it from side to side. The officer observed the tracking of Griffin's eyes and noted that Griffin showed a lack of smooth pursuit and had nystagmus onset prior to forty-five degrees in both eyes, which is an indication of intoxication.

[¶ 5] The officer next asked Griffin to recite the alphabet. Griffin recited the alphabet correctly, but, when he got to Z, he became confused and said he did not remember what came after Z. The officer next asked Griffin to perform the Rhomberg test. The officer told Griffin to stand with his feet together, bend his knees slightly, put his head back, close his eyes, and count to thirty. Griffin could not follow these directions and was confused about counting to thirty.

[¶ 6] The final maneuver Griffin was asked to perform was the walk and turn. The officer instructed Griffin on how to perform the maneuver, but he was confused and had to have the instructions repeated. When taking the first nine steps of the maneuver, Griffin appeared unsteady, and he missed the heel-to-toe requirement in four of the nine steps. Rather than continuing the maneuver, Griffin had to ask the officer what to do next. The officer told him to take a series of small steps so that he would be headed back in the direction from which he came, and then instructed Griffin to take nine steps heel to toe in that direction. Griffin began taking the small steps to turn around and, contrary to instructions, counted out those steps. Griffin then took nine steps towards the beginning point of the maneuver and missed the heel-to-toe requirement in five of the nine steps.

[¶ 7] The officer next asked Griffin to blow into an Alco-sensor, which is a small hand-held field unit that indicates if a person has been drinking. Griffin did not blow into the sensor as instructed. Based on his experience and observations, the officer decided that he had probable cause to arrest Griffin for DWULI. Following the arrest, Griffin was informed of the requirement for chemical testing and the consequences for refusal to submit to testing, according to the implied consent advisement required by statute. The officer asked Griffin to submit to a test of his blood or urine, as the breathalyser was out of service; Griffin refused.

[¶ 8] The Department of Transportation (Department) informed Griffin by letter dated July 12, 1999, that it intended to suspend his Wyoming driver's license and operating privileges based upon his refusal to submit to the required chemical testing of his blood, urine, or breath. The Department proposed an eighteen-month suspension because the certified record showed that Griffin had been convicted of a previous DWUI on June 1, 1998. This matter came before the Office of Administrative Hearings (OAH) on October 27, 1999. After the Office reviewed all of the evidence available to the officer at the time of Griffin's arrest, the OAH concluded that the officer had probable cause to arrest Griffin, and the proposed eighteen-month suspension was upheld. The district court upheld the suspension, and this appeal followed.

STANDARD OF REVIEW

[¶ 9] We accord no special deference to the district court's decision and will consider the case as if it came directly from the agency. In re Jensen, 2001 WY 51, ¶ 9, 24 P.3d 1133, ¶ 9 (Wyo.2001). Our review is limited to a determination of the factors specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001). The reviewing court shall:

( Compel agency action unlawfully withheld or unreasonably delayed; and
(#) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶ 10] "Absent evidentiary dispute, the standard of review for contested case hearings is simply stated as whether an agency's conclusions are in accordance with the law." Parodi v. Dep't of Transp., 947 P.2d 1294, 1295 (Wyo.1997). We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. In re Jensen,¶ 10. In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an ageney's findings. Id. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the ageney and must uphold the findings on appeal. Substantial evidence is relevant evi-denee that a reasonable mind might accept in support of the agency's conclusion, so long as there is more than a scintilla of evidence. Id. Findings of fact are supported by substantial evidence if, from the evidence preserved in the record, the reviewing court can discern a rational premise for those findings. World Mart, Inc. v. Ditsch, 855 P.2d 1228, 1236 (Wyo.1993) (quoting Mekss v. Wyoming Girls' School, 813 P.2d 185, 200 (Wyo.1991), cert. denied 502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992)).

DISCUSSION

Proper Foundation

[¶ 11] The first query is whether standardized field sobriety tests utilized by an arresting officer require scientific or technical knowledge that require a proper foundation for their admission into evidence under W.R.E. 702 through 704. However, W.R.E. 702 through 704 do not apply to administrative hearings. While scientific and technical evidence admissibility in a judicial proceeding is governed by W.R.E. 702 and the four-part Daubert test, administrative hearings are governed by the Wyoming Administrative Procedure Act (WAPA). See Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Administrative agencies acting in a judicial or quasi judicial capacity are not bound by the rules of evidence that govern trials by courts or juries. Smith v. State ex rel. Dep't of Transp., 11 P.3d 931, 934 (Wyo.2000). The WAPA, Wyo. Stat. Ann. §§ 16-3-101 to -115, sets the broad standard for admissibility of evidence at an administrative hearing: The evidence must be of the type that is "commonly relied upon by reasonably prudent men in the conduct of their serious affairs." § 16-3-108(a).

[¶ 12] This court recently articulated the rule of admissibility of field sobriety tests as follows: "If the evidence establishes the tests were properly administered by a qualified person, the foundation is sufficient for admission in an administrative hearing." Smith, 11 P.3d at 935. Given this rule of law, we analyze whether the police officer in the instant case was qualified to administer the field sobriety tests. The officer testified that he had a little more than three years of law enforcement experience; that he received additional certification; that he received training for the tests conducted on Griffin based on the NHSTA from the Wyoming Law Enforcement Academy; and that he had received additional instruction in this area from the Rawlins Police Department. Additionally, the officer testified that he did not look at each of the field maneuvers in isolation and did not relate Griffin's failure of them to any particular alcohol concentration.

[¶ 13] The officer's qualifications in the instant case are similar to those expressed in Smith, 11 P.8d at 986, wherein this court found the testing officer qualified to perform the field sobriety tests. There is sufficient evidence in the record to conclude that the officer conducted the testing and assessment in substantial accordance with his training. The officer testified how the tests were to be administered and how he administered the tests to Griffin. He also explained the manner in which he determined the results of the test. This evidence was sufficient for the agency to conclude that the officer was adequately trained in the administration and assessment of the field sobriety tests, and the foundation was sufficient for admittance of the evidence.

Admitting Evidence

[¶ 14] The second issue is whether the hearing examiner erred in admitting test evidence and placing significance on the standardized field sobriety tests. Whether the hearing officer erred is reviewed under an abuse of discretion standard. This court recently described the standard of an abuse of discretion as "reaching the question of reasonableness of the choice made by the trial court [agency]." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). "Judicial discretion is a composite off many things, among which are conclusions drawn from objective criteria; it means [exercising] sound judgment ... with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously." Id. (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of the witnesses. City of Casper v. Utech, 895 P.2d 449, 451 (Wyo.1995). The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 878, 875 (Wyo.1994).

[¶ 15] This court has permitted a hearing examiner to rely on field sobriety tests in addition to the officer's personal observations to determine whether the officer had probable cause during a DWUI stop. Nellis v. Dep't of Transp., 982 P.2d 741, 744 (Wyo.1997). The field sobriety test results are the type of evidence commonly relied on by reasonably prudent men in the conduct of their serious affairs. Smith, 11 P.3d at 985. We have found that proper foundation was laid as to the techniques used and the officer's qualifications, and conclude that the hearing officer did not abuse his discretion in admitting and placing significance on the standardized field sobriety maneuvers utilized by the arresting officer.

Probable Cause for Arrest

[T16] The final issue is whether the officer had probable cause to arrest Griffin for DWUL.

[Wie do not disturb the decision of the hearing examiner unless a claimant ... can demonstrate that it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. This rule affords the petitioner the opportunity to show that the findings of fact were contrary to the overwhelming weight of the evidence. When an agency's action or decision is "based on a consideration of relevant factors and is rational," we will not rule that the action or decision is arbitrary or capricious.

Helm v. State ex rel. Workers' Safety & Compensation Div., 982 P.2d 1236, 1240-41 (Wyo.1999) (emphasis added and footnote omitted) (quoting Mortgage Guaranty Ins. Corp. v. Langdon, 634 P.2d 509, 520 (Wyo.1981)).

[T17] Based on his experience and observation, Officer Hampton decided he had probable cause to arrest Griffin. The officer observed Griffin speeding and crossing the road's center line. He had watery and bloodshot eyes and smelled of alcohol. When asked, Griffin admitted to drinking that evening. The officer asked to see Griffin's driver's license, which he had a hard time locating, taking three attempts to get the license out of his wallet and handing it to the officer. When the officer returned the license, Griffin dropped it. After exiting his vehicle and during the field sobriety maneuvers, Griffin was confused, his speech slurred, and his balance unsteady. Prior to performing the HGN maneuver, Griffin was unable to reach out and touch the tip of the officer's pen. He touched the middle of the pen instead. Griffin also failed to successfully complete any of the field sobriety maneuvers. Consistent with the evidence, the hearing examiner concluded that probable cause existed for arrest. The cireumstances in this case justified a reasonable person to conclude that Griffin was intoxicated to the point that his ability to drive was impaired.

CONCLUSION

[¶ 18] This court finds that proper foundation was established for admitting the field sobriety tests and results utilized by Officer Hampton in determining probable cause. The court further concludes that even without the field sobriety tests, the record shows sufficient evidence to prove probable cause that Griffin had been driving upon a public street in violation of Wyo. Stat. Ann. § 81-5-233(b) (LexisNexis 2001). The Order of the administrative hearing agency is affirmed.