author: WILKINS, Justice.

text:
    2002 UT 45
    STATE of Utah, Plaintiff and Appellee, v. Darryl HUBBARD, Defendant and Appellant.
    No. 20000233.
    Supreme Court of Utah.
    April 30, 2002.

      Janet Miller, Stephen R. McCaughey, Salt Lake City, for defendant.
    Mark L. Shurtleff, Att'y Gen., Karen A. Klueznik, Asst' Att'y Gen., Salt Lake City, for plaintiff.
   WILKINS, Justice.

"[ 1 Defendant Darryl Hubbard appeals his convictions of aggravated robbery, aggravated burglary, and aggravated assault. He argues that (1) the trial court should have allowed an expert witness to testify regarding the fallibility of eyewitness identification; (2) the trial court erred in denying his pretrial motion to suppress witness identification testimony because the pretrial photo array presented to the witnesses who identified him was impermissibly suggestive and unreliable and therefore violative of the due process clauses of the United States and Utah constitutions; and (8) the trial court erred in conducting voir dire of prospective jurors at sidebar out of the defendant's presence and off the record. We affirm.

FACTUAL BACKGROUND

[1,2] 12 We review the record facts in a light most favorable to the jury's verdict. State v. Evans, 2001 UT 22, 1 2, 20 P.3d 888; State v. Vargas, 2001 UT 5, 12, 20 P.3d 271. We present conflicting evidence only as necessary to understand issues raised on appeal. E.g., State v. Holgate, 2000 UT 74, % 2, 10 P.3d 846.

T3 On the evening of January 24, 1999, Jeffrey Gunderson and several guests were in the living room area of Gunderson's basement apartment smoking marijuana. Cheryl Moss, who was also in the apartment but not smoking marijuana, was in a back room drawing and listening to music. Gunderson and his guests heard a loud knock at the door. One guest, Ayza Wells, ascended the interior stairway of about ten stairs that led to the door to answer it. The person at the door identified himself as "Six Nine." Wells refused to open the door, and returned, stating that he didn't know anyone called "Six Nine." Gunderson then went to the door where the person again identified himself as "Six Nine." Even though Gunderson did not know anyone by the name of "Six Nine," he opened the door.

€ 4 The assailant then forced his way into the apartment, wielding a handgun which he pointed at Gunderson, shooting him in the leg below the knee. Gunderson lost his balance and fell down the stairs to the living room area. The assailant descended the stairs, grabbed Gunderson by the hair, and placed the pistol to CGunderson's head. The assailant then demanded guns, drugs, and cash from two safes that Gunderson had in the apartment. In particular, the assailant stated he knew one safe was behind Gunder-son's bar.

T5 Having heard the gunshot, Moss entered the living room area carrying a knife. Upon seeing that the assailant was armed, however, Moss set the knife down on a bookshelf. Gunderson's guests took cover, hiding in various locations inside the apartment. The assailant threatened Moss at gunpoint and ordered her into the kitchen where he duct-taped her arms behind her back and ordered her to the floor. The assailant then again demanded access to the safes.

T6 After returning to the living room, the assailant threatened the three guests, took an unloaded weapon from one of them, and repeated his demands regarding the safes. Moss retrieved keys for Gunderson who unlocked the safe behind the bar, and the assailant took the cash and marijuana inside. The assailant demanded more money. Gun-derson removed his wallet and offered the money to the assailant, pleading with him not to shoot. The assailant took the money and then demanded access to the other safe. The assailant proceeded to drag Gunderson by the hair to the bedroom, but then left the bedroom and fled the apartment.

T7 Within thirty minutes of the time the assailant fled, the police arrived. Gunderson and Moss told police that they had been attacked and robbed by an individual who identified himself as "Six Nine." Gunderson and Moss also described the assailant to police as a tall, African-American male of strong build, and of medium to light complexion, with a goatee-style beard. With this information Officer Merino obtained a photo from the Salt Lake County Sheriff's Office of a person who used the moniker "Six Nine," and whose photograph matched the description given by the victims. Merino prepared a photo array of six photographs: five photos of light-complected African-American men with goatee-style beards similar to defendant's beard, and defendant's photo.

T8 Approximately three weeks after the incident, Officer Merino presented the photo array separately to Gunderson and Moss. Officer Merino met Gunderson and Moss in the parking area behind Gundergon's apartment. Officer Merino instructed Moss to stand near the apartment building, approximately fifty feet away, while he presented the photo array first to Gunderson. Officer Merino explained to Gunderson that he was going to show him six photos, that the assailant might or might not be pictured in one of the photos, that the hair and facial hair might be different, and that the lighting of the photo might alter the skin tone. Officer Merino further explained to Gunderson that he should look at all of the photos, without looking on the back of the photos where personal information was located, and then indicate if he recognized one of the photos as the assailant. Gunderson, immediately, and without equivocation, identified defendant as the assailant. Officer Merino also asked Gunderson to assign a numerical value from one to ten indicating his certainty, with ten being positively certain. Gunderson never assigned a numerical value, but stated instead, "I'm positive." Officer Merino then sent Gunderson to stand- near the apartment building while Moss approached and looked at the photos. Merino instructed Moss as he instructed Gunderson. Moss immediately identified, defendant. Moss indicated her certainty as seven on the same ten point scale. ®

9 Before trial, defendant moved to suppress the eyewitness identification testimony to be offered by Gunderson and Moss. This motion was denied. Defendant also moved to allow an expert witness to testify regarding the fallibility of eyewitness identification testimony. The district court held a hearing on September 2, 1999, at which counsel argued whether the testimony was admissible under Utah Rule of Evidence 702 and State v. Rimmasch, TiS P.2d 888 (Utah 1989). Both sides also argued whether a jury instruction would sufficiently educate the jury regarding common misconceptions about potential deficiencies of eyewitness identification. Furthermore, as part of the motion, defense counsel explained the following as the substance of the proposed expert witness testimony: O -

The expert testimony that defendant seeks to admit to the Court at trial in this matter pertains to research and theory concerning memory, the reporting of memory, and the variables known to influence memory and memory reports. The testimony is designed to provide scientific information that may assist the trier of fact in interpreting contested adjudicated facts; statements of witnesses as to who and what they saw and happened.

T 10 The district court denied defendant's motion. In denying the motion, the court noted that permitting expert testimony in this case was not "required or advisable," that instruction of the jury regarding problems with eyewitness identification is "best accomplished through instruction," and that if the court were to permit expert testimony, it "would have a significant tendency to cause the jury to abdicate its role as fact finder, at least with respect to any issues that must be decided based on eyewitness testimony."

{11 The case proceeded to trial. During the jury selection process, the judge, prosecutor, and defense counsel discussed matters with prospective jurors at sidebar, without the defendant present. There is no evidence in the record that defendant objected to or opposed not being present at sidebar. During the trial, both Gunderson and Moss identified the defendant as their assailant. In instructing the jury, the trial court gave an extensive Long instruction.

12 The jury convicted defendant of aggravated robbery, aggravated assault, and aggravated burglary. Defendant appeals.

ANALYSIS

I. EXPERT EYEWITNESS IDENTIFICATION TESTIMONY

Defendant argues the trial court's exclusion of the proffered expert testimony regarding the dangers and fallibility of eyewitness identification testimony violated his rights to due process and to present a defense. The State counters that State v. Butterfield, 2001 UT 59, 27 P.8d 1183, specifically resolves this issue in the State's favor. We hold that the trial court did not abuse its discretion in disallowing the testimony of defendant's proposed expert witness regarding the fallibility of eyewitness identification.

T14 "Whether expert testimony on the inherent deficiencies of eyewitness identification should be allowed is within the sound discretion of the trial court." Butterfield, 2001 UT 59 at T 48, 27 P.3d 1183 (citing, inter alia, State v. Malmrose, 649 P.2d 56, 61 (Utah 1982)); see also State v. Griffin, 626 P.2d 478, 481 (Utah 1981). Because the admission of expert testimony on the reliability of eyewitness identification may not be improper in all instances, we noted parenthetically in Butterfield that the admission of eyewitness identification testimony is conditional. Butterfield, 2001 UT 59 at 143, 27 P.3d 1183 (quoting 81A Am.Jur.2d Expert and Opimion Evidence § 370 (1989)). We have not adopted a per se rule of inadmissibility of expert testimony regarding eyewitness identification. Instead, we recognize that whether to allow proffered expert testimony regarding eyewitness identification testimony is a matter best left to the trial court's discretion because of the trial court's superior position to judge the advisability of allowing such testimony.

§15 Certainly a- defendant may have witnesses, including expert witnesses, testify on his or her behalf. Whether testimonial evidence is admitted, however, including the testimony of an expert witness, is controlled by the trial judge. Proffered expert testimony about the deficiencies in the identification testimony of one or more percipient witnesses presents a dilemma. If the expert witness is permitted to testify, he or she will evaluate for the jury, either directly or indirectly, to what extent the percipient witness testimony should be believed. Permitting an expert witness, either directly or indirectly, to analyze the credibility of a percipient witness for the jury and thereby opine regarding whether eyewitness testimony is reliable or not, to a certain extent, steps into the province of the jury, see Gregory G. Sarno, Annotation, Admissibility, At Crimi-mal Prosecution, of Expert Testimony on Reliability of Eyewitness Testimony, 46 ALRAth 1047 § 3[a]; 81A Am.Jur.2d Expert and Opimion Evidence § 871 n. T1 (1989), and in our judicial system it is the role of the jury to decide how much weight to give the testimony of particular witnesses, not the role of independent experts. On the other hand, if a proposed expert witness is not permitted to testify about the limitations inherent in eyewitness identifications, the jury might not be educated about the potential deficiencies of eyewitness identification, and it will fall upon the court to instruct the jury on the limitations and problems that research has discovered.

116 In Butterfield this court acknowledged the limitations inherent in eyewitness testimony, and we reiterated that because of these inherent deficiencies "trial courts are required to give a cautionary. jury instruction when eyewitness identification 'is a central issue in a case and such an instruction is requested by the defense." " 2001 UT 59 at 11 42, 27 P.8d 1183 (quoting State v. Long, T2l P.2d 488, 492 (Utah 1986)). In Butterfield we stated, "the calling of expert witnesses to testify as to matters which would apply to any crime or any trial does not in the true sense offer testimony of a witness who has knowledge of the facts of the case. Rather, it would be in the nature of a lecture to the jury as to how they should judge the evidence." Id. at 148. We then reiterated that a trial court's refusal to admit evidence would not constitute an abuse of discretion when proffered expert testimony would amount to a lecture to the jury as to how they should weigh testimonial evidence. Id.

[ 17 In some cases, to permit one expert to analyze circumstances present when an eyewitness observed a defendant and suggest how accurate an eyewitness' identification is would undoubtedly result in a similar analysis by an opposing expert who would analyze the same circumstances and offer a contrary opinion. Such expert testimony, regardless of whether it is presented hypothetically or by applying the cireumstances of a particular case, will result in dueling experts evaluating for the jury how much weight to give to the testimony of percipient witnesses. In some cases, the proffered testimony might be a lecture to the jury regarding the scientific bases and research underlying the weaknesses inherent in eyewitness identification. Therefore, it is left to the trial court's sound discretion to decide whether the proffered expert testimony would constitute a lecture, the substance of which can be just as adequately conveyed to the jury through the judge in a jury instruction, as opposed to through expert testimony.

1 18 If the trial court determines that the better result would be to educate the jury through a Long instruction, counsel are certainly able to present proposed Long instructions that explain the potential effects of certain cireumstances on the powers of observation and recollection and present their positions on how the Long cautionary instruction should be given.

119 In this case the trial court gave a cautionary Long instruction instead of permitting expert testimony regarding eyewitness identification. The jury instruction could have better explained the substance of the proffered expert testimony, supra, n. 1, namely the research and scientific principles underlying the limitations of eyewitness identification. See Long, T21 P.2d at 488-494 (providing an overview of scientific research on the unreliability of eyewitness identification). Nevertheless, such proffered expert testimony is the type of lecture testimony that, in cases such as these, can be adequately conveyed to the jury through an instruetion.

€20 "[A] trial court's determination that expert testimony would amount to a lecture to the jury as to how they should judge the evidence, and its subsequent refusal to admit such testimony into evidence 'is not an abuse of discretion, particularly where there has been no showing that the excluded evidence would probably have had a substantial influence in bringing about a different verdict." " Butterfield,. 2001 UT 59 at " 48, 27 P.3d 1188 (quoting State v. Malmrose, 649 P.2d 56, 61 (Utah 1982)). Arguably, had the eyewitness identification expert testified the verdict might have been different because the substance of the proffered testimony-research and theory concerning memory, the reporting of memory, and the variables known to influence memory and memory reports-was not part of the Long instruction given. However, the trial court correctly found that the proffered expert testimony would amount to a lecture to the jury as to how they should judge the evidence, noting that the proffered testimony "would, in fact, merely lecture the jury," and that it would "have a significant tendency to cause the jury to abdicate its role as fact finder...." Moreover, we are not convinced that the expert's proffered testimony would probably have had a substantial influence in bringing about a different verdict. In the cautionary instruction the court admonished the jury to evaluate whether the witnesses' identification of the defendant was the product of their memory, asking them to consider the length between the incident and the photo array identification, the witnesses' capacities, the witnesses' exposure to opinions and descriptions of identifications given by other witnesses, whether any eyewitness gave a description inconsistent with the defendant's appearance, and the circumstances of the photo array presentation in the parking lot. Although this instruction was. not ideal, it tracks one of the proposed instructions in Long. Its failings do not disqualify it from use, and it satisfies "our expressed concerns about the need for cautionary instructions." Long, 721 P.2d at 495. We continue to trust, however, that trial courts will be able to specifically tailor instructions other than those offered in Long that address the deficiencies inherent in eyewitness identification. Id. Accordingly, we hold that the trial court did not abuse its discretion in refusing the expert testimony and in giving the instruction it did. |

II MOTION TO SUPPRESS WITNESS IDENTIFICATIONS

%T21 Défendant contends the trial court violated his right to due process guaranteed by the Fourteenth Amendment of the United States Constitution and article I, section 7 of the Utah Constitution in denying his motion to suppress the identification testimony of Gunderson and Moss. Defendant argues that, pursuant to the federal due process standard, the pretrial photo array presented to them was impermissibly suggestive. He also contends that the identifications violated the Utah due process standard because they were unreliable, especially because the witnesses' mental faculties were impaired by marijuana. The State insists that the photo array was not impermis-sibly suggestive and therefore not violative of federal due process. The State also advocates that the witnesses’ testimony about the photo array was reliable because Gunderson and Moss had an opportunity to view the assailant, because Moss was not under the influence of marijuana, and because the two witnesses independently identified the defendant. We hold that the photo array was reliable and not impermissibly suggestive and therefore not violative of the Utah or United States Constitutions. Because the witnesses’ testimony was reliable and based on untainted, independent foundations, it was not error by the trial court to deny defendant’s motion to suppress and admit testimony of the photo array identifications.

¶ 22 The standard for reviewing a trial court’s decision to admit eyewitness identification testimony requires us to consider the record evidence and determine whether the admission of the identification is consistent with the due process guarantees of the Fourteenth Amendment of the United States Constitution and article I, section 7 of the Utah Constitution. State v. Ramirez, 817 P.2d 774, 781 (Utah 1991). Whether a pretrial photo array violates a citizen’s constitutional right to due process is a question of law, which we review for correctness. Id, at 781 n. 3. At the same time, however, because this question of law requires the application of the record facts to the due process standard, we incorporate a clearly erroneous standard for the necessary subsidiary factual determinations. Id. We apply this same standard of review to both the federal and the state analyses.

A. Federal Due Process

¶ 23 The linchpin of determining whether the admission of eyewitness identification testimony violates the federal Due Process Clause is reliability. Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Where witnesses have identified a defendant in a pretrial photo array, we apply a two-part test in determining the reliability of the identification. State v. Lopez, 886 P.2d 1105, 1111 (Utah 1994); State v. Tkamer, 777 P.2d 432, 435 (Utah 1989). We must determine, given the totality of the circumstances, whether the pretrial photo identification procedure used by law enforcement unduly tainted the in-court identifications, that is, whether the procedure used was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Lopez, 886 P.2d at 1111 (quoting Thamer, 777 P.2d at 435 (citing Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968))). If the photo array was impermissibly suggestive, a subsequent in-court identification may still be admissible, but it “must be based on [an] untainted, independent foundation to be reliable.” Lopez, 886 P.2d at 1111 (quoting Thamer, 777 P.2d at 435 (citing Brathwaite, 432 U.S. at 114, 97 S.Ct. 2243)).

¶ 24 The pretrial identification procedures used by Officer Merino ⅛ this case were not impermissibly suggestive. As a result, irreparable misidentification was not substantially likely. The photo array did not emphasize defendant's photo over the others. See Lopes, 886 P.2d at 1111. The photos Officer Merino assembled were all photos of African-American males with light complexions and goatees. Some appear to have somewhat different skin tones, and the amount and style of facial hair differ somewhat among the photos. Nonetheless, Officer Merino presented Gunderson and Moss with six photos of light-complected African-American males, all of whom had similar goatee-style beards. Also, defendant's photo was neither first nor last in the group presented to the witnesses. Officer Merino further explained to the witnesses that the assailant might or might not have been included in the group presented, that the hair and facial hair of the individuals photographed might have been different from how they looked at the time the photo was taken, and that the lighting of the photo might have altered actual skin tone. Moreover, Officer Merino ensured that the two witnesses viewed the photos separately. Neither Gunderson nor Moss was permitted to stand near the other while he or she was viewing the photos. Gunder-son stood near the apartment building and away from Moss while she viewed the photos, and Moss stood near the apartment building and away from Gunderson when he looked at the photos. Given these procedures, the pretrial photo identification procedure did not taint the in-court identifications. The procedure was not impermissibly suggestive, and we therefore conclude the identifications were reliable and federal due process was not violated. As a result, we need not, and do not, address whether the subsequent in-court identifications were sufficiently based on untainted, independent foundations to be reliable.

B. Utah Due Process

125 The standard for determining whether defendant's right to due process as guaranteed by article I, section 7 of the Utah Constitution was denied is whether, under the totality of the cireumstances, the identifications were reliable. See State v. Hollen, 2002 UT 35, 26, 44 P.8d 794; State v. Ramires, 817 P.2d 774, 781 (Utah 1991) ("The ultimate question to be determined is whether, under the totality of the cireum-stances, the identification was reliable."). In Long, this court laid the foundation for a separate Utah constitutional due process analysis of the reliability of eyewitness identifications," Ramirez, 817 P.2d at 779 (construing Long ), and in Ramirez we explained "the analytical model to be used by a trial court in determining the admissibility of arguably suggestive eyewitness identifications under article I, section 7, the Utah due process provision." 817 P.2d at 779. In Utah,, the analysis for determining whether an in-court identification has been unduly tainted by an out-of-court identification such that it violates due process is two-fold: Utah courts examine the procedural actions taken by law enforcement officials in assembling and presenting a photo array to witnesses for due process, and Utah courts also make a preliminary determination on whether the identification is sufficiently reliable such that its admission and consideration by the jury will not violate defendant's right to due process. See id. at 780.

126 With respect to the first step of the state due process analysis, for the reasons outlined previously, see supra 124, we conclude that the procedural actions taken by Officer Merino in assembling and presenting the photo array were not impermissi-bly suggestive. With respect to the second step, trial-courts have a critical responsibility to serutinize proffered evidence for constitutional defects, and failure to do so "would leave protection of constitutional rights to the whim of a jury and would abandon the courts' responsibility to apply the law." Ra-mares, 817 P.2d at 778. The danger of abdicating this responsibility in cases where eyewitness identification is an issue is great because of the probability that such evidence, "even though thoroughly discredited{,] has a powerful effect on a jury." Id. at 779 (citing Long, T2l P.2d at 490). Even if law enforcement procedures are appropriate and do not violate due process, eyewitness identification testimony must still pass the gatekeeping function of the trial court and be subject to a preliminary - determination-whether - the identification is sufficiently reliable to be presented to the jury. Id. at T78-79.

127 Since Long we have used five factors as a test for analyzing, as a preliminary constitutional matter, whether an eyewitness identification is sufficiently reliable to be presented to the jury. See, eg., Hol-len, 2002 UT 35, 11 26-68, 44 P.3d 794; State v. Hoffhine, 2001 UT 4, 118, 20 P.3d 265 (quoting Ramirez, 817 P.2d at 781 (quoting Long, T21 P.2d at 498)); State v. Decorso, 1999 UT 57, ¶42, 993 P.2d 887 (quoting Long, 721 P.2d at 498). The factors are as follows:

(1) the opportunity of the witness to view the actor during the event; (2) the witness' degree of attention to the actor at the time of the event; (8) the witness' capacity to observe the event, including his or her physical and mental acuity; (4) whether the witness' identification was made spon-tancously 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.

Long, 721 P.2d at 498. While these factors provide guidance, the list is certainly not an exhaustive or exclusive list of factors that may be considered in determining whether an identification is reliable, and, therefore, not violative of due process.

128 We conclude that the pretrial photo identification was sufficiently reliable such that defendant's due process rights were not violated by permitting the identification testimony of Gunderson and Moss. Both Gunder-son and Moss had an adequate opportunity to view the assailant. Gunderson had an opportunity to view the assailant initially at the door, then later in the living room when the assailant demanded access to the safes, and in the bedroom where the assailant had directed Gunderson before fleeing. The attention of both Gunderson and Moss was focused on the assailant. Whether their attention was focused on the features of the assailant or whether their vision was blurred by fear or other factors is debatable, but it is clear that the focus of the witnesses attention was not on another event or occurrence such that the assailant was not the focus of their attention. They were not casual or passing observers. The witnesses' capacity to observe the event, particularly their physical and mental acuity, is debatable. Gunderson was smoking and under the influence of marijuana; Moss had not been smoking marijuana. The witnesses' identification was made spontaneously and remained consistent thereafter. Gunderson, according to Officer Merino, identified defendant as the assailant immediately, and without hesitation or equivocation. When asked to describe his certainty to Officer Merino, Gunderson said, "I'm positive." Moss immediately identified defendant and indicated her level of certainty as seven on the ten point scale. Officer Merino's procedures militate against concluding that the witnesses' identification was the product of suggestion. Officer Merino took care not to suggest that the witnesses identify one photo over another: he did not place defendant's photo first or last; he required Gunderson and Moss to look at the pictures separately; and he explained to both of them that the assailant might or might not be in the array, that the hair and facial hair might have changed, and that the photo lighting might have altered skin tones. Finally, the nature of the event being observed and the likelihood that the witnesses would perceive, remember and relate it correctly does not clearly influence us either way. Whether a traumatic event helps or hinders in identification is debatable.

129 In addition to the Long factors, we note that the witnesses provided accurate descriptive information to investigating officers which Officer Merino used to assemble the photo array: the approximate height, build, complexion, and facial hair of their assailant. In particular, Gunderson and Moss provided officers with the moniker the assailant used to identify himself, "Six Nine," and Officer Merino used this information in particular to obtain a photograph of defendant from the Salt Lake County Sheriff's Office.

30 We cannot know for certain whether the witnesses' attention was completely focused on identifying features of the assailant, nor can we determine whether the witnesses were mentally and physically sharp. Whether, because of the nature of the event the witnesses in this case were more perceptive or less perceptive, is also a point of debate. Our determination, however, is only whether the proffered evidence is sufficiently reliable such that it can be presented to the jury for their deliberation. Courts need not, nor should they, step into the province of the jury and decide the ultimate matter of identification for the jurors. Courts must simply decide whether the testimony was sufficiently reliable so as not to offend defendant's right to due process by permitting clearly unreliable identification testimony before the jury. In sum, given the above facts, the witness identifications were not so unreliable as to warrant exclusion of the identification testimony from consideration by the jury. As a result, we hold that admission of the identification testimony of Gunderson and Moss did not violate defendant's state constitutional right to due process.

III DISCUSSIONS WITH POTENTIAL JURORS AT SIDEBAR OUT OF DEFENDANTS PRESENCE AND OFF THE RECORD

1381 Defendant insists he has a right to be present at every stage of the proceedings and that the trial court erred in conducting off-the-record discussions at sidebar with potential jurors. Defendant claims that because article I, section 12 of the Utah Constitution and section 77-1-6 of the Utah Code entitle him to be present at all stages of trial, he was entitled to be present at the off-the-record sidebar discussions, and waiver of this right may not be presumed. The State counters that defendant waived any right he had to be present at sidebar during voir dire of prospective jurors by failing to assert it. We agree.

182 Because defendant did not raise, by objection or otherwise, his right to be present during voir dire, we review whether the defendant was denied this alleged right under a plain error standard. See, e.g., State v. Dunn, 850 P.2d 1201, 1208 (Utah 1998). In general, to establish plain error and obtain relief from an alleged error that was not properly objected to at trial, an appellant must demonstrate: (1) an error exists; (2) the error should have been obvious to the trial court; and (8) the error is harmful, le., absent the error, there is a reasonable likelihood of a more favorable outcome, or phrased differently, our confidence in the verdict is undermined. Id. at 1208-09.

133 A defendant charged with a crime is entitled to be present at all stages of trial. Utah Const. art. I, § 12 ("In eriminal prosecutions the accused shall have the right to appear and defend in person and by counsel ... to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed[.]"); Utah Code Ann. § 77-1-6(1) (1999) ("In criminal prosecutions the defendant is entitled: (a) To appear in person and defend in person or by counsel; ... (f) To a speedy public trial by an impartial jury of the county or district where the offense is alleged to have been committed[.]"); State v. Houtz, 714 P.2d 677, 678 (Utah 1986). In State v. Glenny, this court stated, "The right to be present at trial is conceded and guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. (Jury selection has been determined to be a part of the trial.)" 656 P.2d 990, 992 (Utah 1982) (per curiam) (footnote citations omitted). We need not analyze whether these authorities are so broad as to guarantee a right to be present during sidebar discussions between the court and the prospective jurors, however. We assume, without deciding the issue, for purposes of this appeal, that defendant has a right to be present at sidebar discussions with potential jurors during the jury selection process and conclude that defendant waived the right in this case.

34 We agree with the reasoning of the Wyoming Supreme Court in Campbell v. State, 999 P.2d 649 (Wy0.2000). In Campbell, the Wyoming Supreme Court determined that a defendant, who failed to object or assert her right to be present and whose attorney did attend the sidebar conferences and did not object to the court's failure to record the conferences, waived her right to be present during sidebar voir dire of potential jurors. Id. at 660-662. This case is strikingly similar to Campbell - Defense counsel for Mr. Hubbard did not assert defendant's right to be present at sidebar, nor did he object to defendant's absence at sidebar; and defense counsel, the court, the prosecutor, and the potential jurors discussed matters at sidebar off the record. As the United States Supreme Court stated in Gagnon, a trial court "need not get an express 'on the record' waiver from the defendant for every trial conference which a defendant may have a right to attend." Gagnon, 470 U.S. at 528, 105 S.Ct. 1482. A defendant knowing of a discussion must assert whatever right he may have to be present. Id. We noted in Flenny that "the right [to be present at triall is not absolute and may be waived by word or act of the person claiming it," 656 P.2d at 992, and under these particular cireumstances, we conclude that defendant waived his right to be present at the sidebar discussions. Because we find no error, the trial court could not have committed plain error.

CONCLUSION

1 35 We hold that (1) the trial court did not exeeed its permitted range of discretion in not allowing an expert witness to testify regarding the fallibility of eyewitness identification, (2) the trial court did not err in denying the motion to suppress testimony about the pretrial photo identifications because the identification testimony regarding the photo array was not violative of the due process clauses of the United States and Utah Constitutions, and (8) the defendant waived any right he may have had to be present while the trial court conducted voir dire of prospective jurors at sidebar. As a result, the jury verdict is affirmed.

136 Affirmed.

1 37 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON concur in Justice WILKINS opinion.

      . In the written motion, defense counsel specifically presented the following as the expert's proffered testimony:

        (1) Reliable studies show that there is a weak correlation between witness confidence and reliability of identification. Yet most lay persons believe that the more certain the identification, the more reliable the identification.
      Jurors over-believe eyewitnesses, have difficulty reliably differentiating accurate from inaccurate eyewitnesses and are not adequately sensitive to aspects of witnessing and identification conditions. A recent study also found that a major source of juror unreliability is reliance on witness confidence, which is a dubious indicator of eyewitness accuracy even when measured at the time an identification is made. Further, expert psychological testimony on the factors that influence eyewitness memory appears to reduce juror reliance on confidence and enhance use of other factors known to affect memory. R
      (2) Contrary to average juror expectations, stress actually decreases rather than increases accuracy of perception, with subsequent distortion of recall. 6 >
      (3) Empirical studies have demonstrated that pooling of information by eyewitnesses poses a danger that a witness' memory of the perpetrator will be unduly influenced by the recall of other participants involved in the pool, resulting in an identification which is not based upon the individual memory of the witness but rather upon the group determination of the features of the perpetrator.
      __ (4) Studies support the existence of a phenomenon called "photo bias identification" if the witness has created a composite picture, and a mental process called "blending" which can reinforce the composite if there have been subsequent photo identifications. ...
      (5) The photographic lineup process itself contains a high degree of suggestibility which is not generally understood by lay persons....
      (6) Memory is not a static concept but is continually changing, as influenced by subsequent events, the mind's need to fill in memory gaps, and by suggestion, both overt and subtle. Most lay [persons] do not understand the constructive process involved in memory....
      (7) Studies show that there is a phenomenon known as the "forgetting curve," i.e., the effect of time on memory as it relates to identification. Memory weakens at a non-constant rate with the passage of time, with most of the forgetting taking place within the first hours following the event. ...
      (8) An initial identification made by an eyewitness may influence that eyewitness's later identifications and perceived memories of the event. Several reliable studies have shown that once an identification is made from a photo spread, an eyewitness may make an erroneous in-court identification based upon the {ace initially identified in the photo spread....
      (internal citations to published papers omitted).

      . State v. Long, 721 P.2d 483 (Utah 1986).

      . The cautionary instruction given by the trial judge is as follows:
      One of the most important questions in this case is the identification of the defendant as the person who committed the crime. The prosecution has the burden of proving beyond a reasonable doubt, not only that the crime was committed, but also that the defendant was the person who committed the crime. If, after considering the evidence you have heard from both sides, you are not convinced beyond a reasonable doubt that the defendant is the person who committed the crime, you must find the defendant not guilty.
      The identification testimony that you have heard was an expression of belief or impression by the witness[es]. To find the defendant not guilty, you need not believe that the identification witness was insincere, but merely that the witness was mistaken in his/her belief or impression.
      Many factors affect the accuracy of identification. In considering whether the prosecution has proved beyond a reasonable doubt that the defendant is the person who committed the crime, you should consider the following:
      1. Did the witness have an adequate opportunity to observe the criminal actor? In answering this question, you should consider:
      (a) the length of time the witness observed the actor;
      (b) the distance between the witness and the actor;
      (c) the extent to which the actor's features were visible and undisguised;

        (d) the light or lack of light at the place and time of observation;
      (e) the presence or absence of distracting noises or activity during the observation;
      (f) any other circumstances affecting the witness' opportunity to observe the person committing the crime.
      2. Did the witnesses have the capacity to observe the person committing the crime? ...
      In answering this question, you should consider whether the witness is of a different race than the criminal actor. Identification by a person of a different race may be less reliable than identification by a person of the same race.
      3. - Was the witness sufficiently attentive to the criminal actor at the time of the crime?
      In answering this question, you should consider whether the witness knew that a crime was taking place during the time he/she observed the actor. Even if the witness had adequate opportunity and capacity to observe the criminal act, he/she may not have done so unless he/she was aware that a crime was being committed.
      4. Was the witness' identification of the defendant completely the product of his own memory?
      In answering this quesmon you should consider:
      (a) The length of time that passed between the witness' original observation and his identification of the defendant;
      (b) the witness' capacity and state of mind at the time of the identification;
      (c) the witness' exposure to opinions, descriptions of identifications given by other witnesses, to photographs or newspaper accounts, or to any other information 'or influence that may 'have affected the independence of his/her identification;
      (d) any instances when the witness, or any eyewitness to the crime, failed to identify the defendant;
      (e) any instances when the witness, or any eyewitness to the crime, gave a description of the actor that is inconsistent with the 'defendant's appearance;
      (f) the'circumstances under which the defendant was presented to the witness for identification.
      You may take into account that an identification made by picking the defendant from a group of similar individuals is generally more reliable than an identification made from the defendant being presented alone to the witness.
      You may also take into account that identifications made from seeing the person are generally more reliable than identification made from a photograph.
      I again emphasize that the burden of proving that the defendant is the person who committed the crime is on the prosecution. If, after considering the evidence you have heard from the prosecution and from the defense, and after evaluating the eyewitness testimony in light of the considerations listed above, you have a reasonable doubt about whether the defendant is the person who committed the crime, you must find him not guilty.

      . By noting the instruction given by the trial judge in this case we do not suggest that the instruction was ideal. Despite the examples given in Long, we have not adopted one specific instruction as the only formulation, but have granted trial courts and counsel a measure of latitude in formulating such instructions. Long, 721 P.2d at 492.

      . After discussing the published research on the deficiencies of eyewitness identification, Long notes that a proper instruction "should sensitize the jury to the factors that empirical research have shown to be of importance in determining the accuracy of eyewitness identifications, especially those that laypersons most likely would not appreciate." 721 P.2d at 492. The factors listed in the proposed instructions in Long, 721 P.2d at 493-95 nn. 7 & 8, are examples of factors that should be explained as part of the instruction. The instruction should be tailored, however, to the particular case. The jury should not simply be provided these factors without being instructed on how such factors are commonly misunderstood. Without an explanation from the court of how certain factors are commonly misunderstood, a list of factors to 'be considered is not particularly instructive on the deficiencies of eyewitness identification. The second and third-to-last paragraphs of the Long instruction given in this case are good examples of the type of instructions that educate the jury by not only providing factors to be considered, but by also concisely explaining why they are commonly misunderstood factors of eyewitness identification.

      . Under tire federal test, the first question is whether the pretrial photographic identification procedure tainted the subsequent in-court identification because the procedure was “so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifi-cation.” Lopez, 886 P.2d at 1111 (citation omitted). If the photo array was impermissibly suggestive, any in-court eyewitness identification must be based on an untainted and independent foundation to be reliable. Id. If the pretrial procedure was impermissibly suggestive, the factors to be weighed against the corrupting effect of the impermissibly suggestive procedure' include the following five factors set forth by the United States Supreme Court: (1) the opportunity of the witness to view; (2) the witness’ degree of attention; (3) the accuracy of the witness’ description; (4) the witness' level of certainly; (5) the time between the crime and the confrontation. See Manson v. Brath-waite, 432 U.S. 98, 113, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); see also State v. Thamer, 777 P.2d 432, 436 (Utah 1989); but see State v. Ramirez, 817 P.2d 774, 779 (Utah 1991) (suggesting that the federal due process standard always involves a preliminary determination of- whether an eyewitness identification is sufficiently reliable to be permitted to be presented to the jury, regardless of whether the pretrial procedure was impermissibly suggestive).

      . The United States Supreme Court has not expressly declared that such a specific federal due ~ process right exists. In United States v. Gagnon, however, the Court explained that while the right to presence is rooted in the Confrontation Clause, the right is further protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence. 470 U.S. 522, 526, 105 S.Ct. 1482, 84 LEd.2d 486 (1985). A defendant has a due process right to be present "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.... [The] presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108, 54 S.Ct 330, 78 LEd. 674 (1934)). The Gagnon Court went on to hold that defendants had no right to be present during an in camera discussion between a judge, juror, and defense counsel held in response to the juror's concerns about sketches the defendant had made of the jurors. Id. at 527, 105 S.Ct. 1482. The selection of particular jurors, on the other hand, arguably has a reasonably substantial relation to the fulness of a defendant's opportunity to defend against a charge, and a defendant's right to a fair and just hearing could be thwarted by his or her absence.


source: Caselaw Access Project

author: WILKINS, Justice:

license: Public Domain

text:
    2002 UT 46
    Dale WHEELER, Plaintiff and Appellant, v. Mark R. McPHERSON, an individual, and Kane County Sheriff's Department, Defendants and Appellees.
    No. 20010237.
    Supreme Court of Utah.
    April 30, 2002.

      Ronald E. Dalby, Salt Lake City, for plaintiff.
    Peter Stirba and Aimee K. Martinez, Salt Lake City, for defendants.
   WILKINS, Justice:

1 Plaintiff Dale Wheeler appeals from an order dismissing his complaint against Mark R. McPherson and the Kane County Sheriff's Department. The district court dismissed plaintiff's complaint for lack of subject matter jurisdiction because plaintiff failed to comply with the notice of claim requirements of the Utah Governmental Immunity Act. We affirm.

T2 This case arises from the same car accident mentioned in the recently-decided companion case, Wheeler v. McPherson, 2002 UT 16, 40 P.3d 682. On September 27, 1998, in Kane County, Utah, a vehicle driven by Mark McPherson, who plaintiff alleges was acting within the seope of his employment as an employee of Kane County, collided with a vehicle driven by plaintiff.

T3 In this case, plaintiff sued McPherson and the Kane County Sheriffs Department, alleging negligence. Prior to filing his complaint, plaintiff allegedly sent two letters, one dated August 3, 1999, and another dated September 24, 1999, entitled "Notice of Claim" to each of the three Kane County Commissioners. - Plaintiff also asserts he sent a copy of each letter to Kane County's insurer, the Utah Association of Counties Insurance Mutual. These letters were addressed to the Kane County Commissioners and sent by certified mail to the Kane County offices and received by Karla Johnson, clerk auditor of Kane County, who signed for the certified notices.

T 4 Defendants moved to dismiss, claiming plaintiff failed to strictly comply with the notice of claim requirement of the Governmental Immunity Act, Utah Code Ann. § 63-30-11(8)(b)@(B) (1998). The district court granted the motion and dismissed plaintiff's complaint for lack of subject matter jurisdiction. Plaintiff appeals, claiming the letters addressed and mailed to the Kane County Commissioners constitute adequate filing of a notice of claim under the Utah Governmental Immunity Act, and that Kane County should be estopped from raising its notice of claim defense. The parties, after acknowledging in correspondence with the court that the issues presented in this case were argued in Wheeler v. McPherson, 2002 UT 16, 40 P.3d 632, stipulated to submitting the case on the briefs.

T5 The law enunciated in the companion case of Wheeler v. McPherson, 2002 UT 16, 40 P.3d 632, is dispositive of the issues in this case. Neither party has demonstrated how the legal issues in this case differ from those presented and decided in that case. Accordingly, for the reasons explained in Wheeler v. McPherson, 2002 UT 16, 40 P.3d 632, the judgment of the trial court in the instant case is affirmed. '

T6 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON concur in Justice WILKINS opinion.

      . Plaintiff attached photocopies of these letters to his appellate brief, but the record does not contain copies of these letters The only record evidence that any such letters were delivered is found in the allegations of the complaint, the body of defendants' memorandum in support of the motion to dismiss, the body of plaintiff's memorandum in opposition to the motion to dismiss, and the district court's order dismissing the complaint. To the contrary, clearly included in the record is the affidavit of Karla Johnson, Kane County Clerk, indicating that no notice of claim was delivered and directed to the Kane County Clerk as of September 27, 1999.


text:
    2002 UT 48
    BROOKSIDE MOBILE HOME PARK, LTD., a Utah Limited Partnership dba Brookside Mobile Home Park, Petitioner, v. Sam PEEBLES aka Samuel B. Peebles, an individual; and Harold Boyd Peebles, an individual, Respondents.
    No. 20001078.
    Supreme Court of Utah.
    May 7, 2002.

      Dennis K. Poole, John L. Adams, Salt Lake City, for petitioner.
    Russell A. Cline, Salt Lake City, for respondents. -
   WILKINS, Justice.

T1 Brookside Mobile Home Park, Ltd. ("Brookside") seeks review of the decision of the court of appeals, Brookside Mobile Home Park, Ltd. v. Peebles, 2000 UT App 314, 14 P.3d 105, (1) affirming the trial court's denial of Brookside's summary judgment motion, (2) affirming the trial court's grant of a directed verdict in favor of Sam and Harold Peebles on Brookside's unlawful detainer claim, (8) affirming the denial of attorney fees to Brookside, and (4) awarding attorney fees to the Peebles. Sam and Harold Pee-bles also seek review of the decision of the court of appeals upholding the jury verdict finding that Brookside did not unreasonably withhold approval of a prospective purchaser of the Peebles' mobile home. For the reasons set forth below, we affirm the court .of appeals on all issues.

BACKGROUND

I 2 Brookside operates a mobile home park ("Park") located in West Jordan, Utah. Sam and Harold Peebles (son and father, respectively) owned a mobile home which occupied a space in the Park. Sam Peebles ("Peebles") entered into a lease for the underlying Park space with a former owner of the Park, Brookside Associates ("Associates"), in 1983. After several leases and failed sales of the mobile home, Peebles entered into a lease with an option to buy the mobile home with Richard Rowley in May 1994, who, in turn, entered into a lease with Associates for the underlying Park space. In December 1994 a trust purchased the Park from Associates and acquired all of Associates' interest in some of the leases of mobile home space at the Park. In 1995 Brookside acquired its interest in the Park from the trust. Rowley entered into a lease agreement for the Park space with Brookside in April 1995, but abandoned the mobile home in the fall of 1995.

13 Sometime shortly after Rowley's abandonment of the mobile home, Peebles began paying rent to Brookside for the underlying Park space. On November 29, 1995, Brook-side sent a notice to Peebles stating, "[YJou, as lien holder of record and now deemed a tenant at will are primarily liable to [Brook-side] for all rent and service charges aceru-ing ... if the mobile home is not moved." On December 11, 1995, Brookside sent Pee-bles a "Notice to Pay Rent or Quit," which stated, in relevant part, "Please take. notice that the rent on the premises ... which you now possess as a tenant, is past due.... You must ... pay the rent now due and owing . or, in the alternative, ... vacate the premises. ..." Around the same time, Brook-side advised Peebles that repair work needed to be done on the mobile home to bring it into compliance with Park rules. In March 1996 Brookside informed Peebles, through counsel, that he would need to sign a new lease for the Park space with Brookside. Peebles did not sign a lease. On April 11, 1996, Brookside posted a "Notice to Quit" on Peebles' mobile home. The Notice demanded that Peebles remove the mobile home from the Park within five days under section 78-36-83 of the Utah Code or face an unlawful detainer action. Peebles did not move the mobile home and Brookside filed an unlawful detainer action against Sam and Harold Pee-bles. The Peebles answered and asserted as an affirmative defense,. among other things, that Brookside had failed to comply with the fifteen-day notice requirement in the Utah Mobile Home Park Residency Act ("Residency Act"). See Utah Code Ann. § 57-16-6 (Supp.2001).

T4 On Septembér 25, 1996, Peebles entered into a contract to sell the mobile home to Jackie Southworth, subject to Brookside's approval of her Park residency application. Pursuant to. Brookside's instructions, South-worth ordered a eredit report, which was unable to verify her employment and bank information. - Southworth submitted the credit report to Brookside. The Park manager told Southworth that her application for residency had been denied by the owner. As a result, the Peebles filed a counterclaim, alleging, among other things, that Brookside unreasonably withheld approval of South-worth's residency application, in violation of the Residency Act.

T5 Brookside moved for summary judgment, arguing that because Peebles had no lease with Brookside, the Residency Act did not apply and that, consequently, under Utah's unlawful detainer statute, the five-day notice was sufficient. Brookside also asserted that as a bona fide purchaser of the Park, it had no notice of Peebles' lease and that, consequently, the lease was invalid as to Brookside, rendering the five-day notice sufficient. Peebles argued that because he had a lease with Associates, which had been assigned to Brookside, the Residency Act applied, and the five-day notice was therefore insufficient. The trial court determined that the claims turned on whether there was a lease between the parties. If so, then the Residency Act applied, and Brookside should have given the Peebles a fifteen-day notice; if not, Utah's unlawful detainer statute applied and Brookside's five-day notice was sufficient.

T6 The trial court initially granted summary judgment for Brookside, holding that, as a matter of law, Peebles had surrendered his lease with the Park by virtue of his knowledge that the residents of his mobile home entered into leases for the same space with Brookside. Shortly thereafter, the Pee-bles filed a motion for reconsideration asking the trial court to reconsider the summary judgment ruling based on a supplemental affidavit which put Peebles' intent to surrender the lease into dispute. The trial court granted this motion, finding that the existence of a lease was a disputed issue of material fact, and overturned its previous summary judgment ruling. The matter proceeded to trial.

T7 After Brookside presented its case, the Peebles moved for a directed verdict, arguing in part that, regardless of the existence of a lease, Sam Peebles. was an "owner resident" of the mobile home, Utah Code Ann. § 78-36-3(2) (1996) ("Unlawful detainer by an owner resident of a mobile home is determined under [the Residency Act]."), and, as such, was entitled to a fifteen-day notice. The trial court granted the motion. The court also dismissed all claims against Harold Peebles, finding that Brookside had presented no evidence at trial of any involvement on his part.

T8 Peebles then presented his counterclaims to the jury. Southworth testified that she had been prepared to explain the credit report deficiencies to Brookside, but had been denied an opportunity to do so and that the Park manager yelled at her when she protested Brookside's refusal to discuss the matter further. The Park manager testified that he is unable to yell due to throat cancer. The jury found (1) that Peebles had a lease with the Park before Brookside acquired it, (2) that Peebles had not surrendered the lease, (8) that Brookside had not assumed the lease, and (4) that Brookside had not unreasonably withheld approval of Southworth's residency in the Park. Both parties filed motions for attorney fees and costs under the Residency Act, which the trial court denied.

T9 Brookside appealed the trial court's reversal of its original summary judgment ruling, the grant of a directed verdict, and the denial of attorney fees and costs to the court of appeals. Peebles cross-appealed the jury's verdict that withholding approval of Southworth was not unreasonable and the denial of attorney fees and costs. The court of appeals reversed the trial court on the issue of attorney fees for Peebles, but affirmed on all other issues. The parties requested certiorari review, which this court granted.

ISSUES PRESENTED

110 The parties present six issues for our review, specifically, whether the court of appeals erred in (1) holding that Brookside did not preserve its bona fide purchaser argument for appeal; (2) upholding the trial court's reversal of its summary judgment ruling; (8) affirming the trial court's grant of Peebles' motion for directed verdict; (4) affirming the trial court's denial of attorney fees for Brookside and in allowing attorney fees for Peebles; (5) disregarding Brook-side's arguments that Harold Peebles should have been reinstated as a defendant; and (6) upholding the jury's finding that Brookside's rejection of a prospective buyer of Peebles mobile home was reasonable.

ANALYSIS

11 On certiorari, we review the decision of the court of appeals for correctness. E.q., State v. Visser, 2000 UT 88, 1 9, 22 P.3d 1242.

I. PRESERVATION OF BONA FIDE PURCHASER ARGUMENT

€ 12 In a footnote to its opinion, the court of appeals declined to address Brookside's bona fide purchaser argument, holding that, under Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998), the issue had not been properly preserved for appeal. Brookside Mobile Home Park, Litd. v. Peebles, 2000 UT App 314, 118 n. 3, 14 P.3d 105. Before addressing Brookside's arguments on this issue, we take this opportunity to clarify the requirements for preserving issues for appellate review.

$183 One of Brookside's arguments before the court of appeals centered around its contention that it should have been granted summary judgment based on its bona fide purchaser theory. Brookside raised this theory before the trial court in: support of its original motion for summary judgment, which the trial court granted. The court of appeals held that Brookside did not preserve this issue because it did not raise the argument again in response to Peebles' motion to reconsider the summary judgment ruling. In the eyes of the court of appeals, "[alt that crucial point, Brookside did not give the trial court the opportunity to consider" the bona fide purchaser theory as a basis for denying the motion. Brookside, 2000 UT App 314 at 18 n. 3, 14 P.3d 105. With this view, the court of appeals stated, "Brookside has not properly preserved the bona fide purchaser issue for appeal, and we decline to address it." Id. (citing Badger, 966 P.2d at 847).

114 The court of appeals was correct to look to Badger to determine whether Brookside properly preserved the issue for appeal. As Badger explains, in order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue. 966 P.2d at 847. Badger sets forth three specific factors which help determine whether the trial court had such an opportunity: "(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (8) a party must introduce supporting evidence or relevant legal authority." Id. (citations and internal quotations omitted). While the court of appeals correctly cites Badger for the preservation standard, it misinterprets Badger as requiring an appellant to raise issues more than onee at the trial court level, even after the trial court has already ruled on the issue. Badger does not require this. Under Badger, once trial counsel has raised an issue before the trial court, and the trial court has considered the issue, the issue is preserved for appeal. See id.; see also, e.g., Sittmner v. Schriever, 2000 UT 45, 2 P.8d 442 (holding that appellant need not have filed post-judgment motion to preserve issue for appeal where issue was briefed in summary judgment memorandum and other pleadings).

1 15 In the instant case, Brookside raised its bona fide purchaser argument before the trial court such that the court had an opportunity to rule on the issue. Specifically, Brookside raised the argument during the initial summary judgment phase of the trial court proceedings in its memorandum in support of motion for summary judgment and in its reply. Raising the issue in this fashion (1) was timely, (2) specifically raised the legal argument, and (3) provided relevant legal authority on the issue to the trial court. See Badger, 966 P.2d at 847. Thus, because the trial court had an opportunity to rule on the issue, in accordance with Badger, Brookside properly preserved this argument. See id.

116 Notwithstanding the fact that Brookside's bona fide purchaser argument was properly preserved, however, because the issue is moot we decline to address it. Ordinarily "we will not adjudicate issues when the underlying case is moot. A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants." - Ellis v. Swensen, 2000 UT 101, T 25, 16 P.3d 1288 (citations and internal quotations omitted). The jury found that a lease existed between Peebles and the Park, and that the lease had not been surrendered. Brookside does not challenge these findings on appeal. The Residency Act provides that a mobile home park may not terminate a lease "upon any ground other than as specified in this chapter." Utah Code Ann. § 57-16-4(1) (Supp.2001). Therefore, the lease can be terminated only in accordance with the Act. The purchase of a mobile home park by a buyer who does not know about an existing lease or who assumes a lease-the essence of Brookside's bona fide purchaser argument-is not a ground specified in the Act. See § 57-16-5(1). Consequently, regardless of the viability of Brookside's bona fide purchaser argument, summary judgment on that basis would be inappropriate. Because this issue cannot affect the rights of the parties, it is moot, and we decline to address it further. See Ellis, 2000 UT 101 at ' 25, 16 P.3d 1283.

II. TRIAL COURTS REVERSAL OF SUMMARY JUDGMENT

117 Brookside appears to argue that the court of appeals misstated the doctrine of surrender and asserts that the trial court's original grant of Brookside's motion for summary judgment should be reinstated. The trial court initially granted Brookside's summary judgment motion based on its understanding that under the doctrine of surrender, no lease existed between Brookside and Peebles and that, therefore, the Residency Act could not apply. The trial court reversed this ruling after Peebles clarified his position by submitting a supplemental affidavit alleging facts which showed that Peebles did not intend to surrender his lease. Brookside argues that under the doctrine of surrender, Peebles had no lease with Brook-side as a matter of law and that, because no lease existed, the Residency Act did not apply and summary judgment in favor of Brookside was appropriate.

118 Appellate courts review a trial court's grant of a motion to reconsider under an abuse of discretion standard. See, eg., Timm v. Dewsnup, 921 P.2d 1881, 18386 (Utah 1996). While the court of appeals did not address whether the trial court abused its discretion in granting the motion to reconsider, there is no indication that the trial court did so. Trial courts have clear discretion to reconsider and change their position with respect to any orders or decisions as long as no final judgment has been rendered. U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, 1 55, 990 P.2d 945; Utah R. Civ. P. 54(b). Summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and judgment is proper as a matter of law. Utah R. Civ P. 56(c) Based on our review of the evidence before the trial court at the time it granted the motion to reconsider, a question of material fact existed, specifically whether Peebles surrendered the lease, and we see no abuse of discretion in the trial court's acknowledgment that its previous ruling was in error.

119 The correctness of the denial of summary judgment for Brookside turns on whether the doctrine of surrender looks at the intent of the parties in determining surrender. The court of appeals correctly stated the doctrine. Brookside, 2000 UT App 314 at 120, 14 P.3d 105 (quoting Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 900 (Utah 1989)). As the court of appeals explained, surrender requires that parties intend a surrender. Id. Surrender should not be inferred "against the intent of the parties...." Belanger v. Rice, 2 Utah 2d 250, 252, 272 P.2d 1783, 174 (1954) (internal quotation omitted). Furthermore, "[the question of whether the acts and cireumstances constituted a surrender ... is one for the fact finder." Mariani Air Prods. Co. v. Gill's Tire Mit., 29 Utah 2d 291, 298, 508 P.2d 808, 810 (1978). Thus, evidence that showed that Peebles did not intend to surrender his lease created a disputed issue of material fact as to whether a lease existed between the parties, rendering summary judgment inappropriate. Utah R. Civ P. 56(c); The trial court was correct to reverse its earlier summary judgment ruling on this basis and did not abuse its discretion in granting the motion to reconsider. We therefore affirm the court of appeals on this issue.

III. TRIAL COURTS GRANT OF MOTION FOR DIRECTED VERDICT

T20 Brookside argues that the court of appeals erred in holding that the Residency Act governed Brookside's unlawful detainer action. Brookside's position is based on its view that the Residency Act requires that for a mobile home tenant to claim the protections of the Residency Act, a written lease must exist between the lessee and lessor and that no such lease exists between Peebles and Brookside.

121 In reviewing a trial court's grant of a directed verdict, appellate courts look to see if any evidence at trial raises a question of material fact which would support a verdict in the non-moving party's favor and preclude a judgment as a matter of law. Merino v. Albertsons, Inc., 1999 UT 14, 13, 975 P.2d 467. Section 78-86-8(2) of the Utah Code requires that "[u)nlawful detainer by an ouner resident of a mobile home [be] determined under ... [the] Mobile Home Park Residency Act." (emphasis added). If Pee-bles was an "owner resident" then Brookside was required to comply with the notice provisions of the Residency Act, regardless of the existence of a lease, rendering the trial court's grant of Peebles' motion for directed verdict proper.

1 22 There is no dispute over whether Pee-bles is an "owner." The Residency Act defines "resident" as "an individual who leases or rents space in a mobile home park." Utah Code Ann. § 57-16-3(8)(2000). As the court of appeals noted, "Brookside does not challenge the jury finding that Peebles had a written lease with the Park before Brookside brought the Park, nor does it challenge the finding that Peebles did not surrender the lease." Brookside Mobile Home Park, Ltd. v. Peebles, 2000 UT App 314, 28, 14 P.3d 105. Furthermore, it is undisputed that Pee-bles paid rent to Brookside after Rowley abandoned the mobile home, and the Notice to Pay Rent or Quit served by Brookside on December 11, 1995, referred to Peebles as a "tenant." Thus, as a matter of law, because Peebles leased or rented space in a mobile home park, Peebles is a "resident" under the Residency Act. $ 57-16-88). Under these facts, it follows that Peebles is an "owner resident" under section 78-86-38 and an unlawful detainer action against him could only proceed under the Residency Act. The Resi-deney Act provides for a fifteen-day notice period. § 57-16-5(2). - Brookside provided only a five-day notice. Thus, because Brook-side's notice was deficient, Peebles was entitled to judgment as a matter of law. We therefore affirm the court of appeals on this issue.

IV. ATTORNEY FEES

1283 Brookside argues that the court of appeals erred in affirming the trial court's denial of attorney fees to Brookside and in reversing the trial court's denial of attorney fees to the Peebles. Brookside's argument is premised on its view that the Peebles' counterclaim was raised pursuant to the Residency Act, which awards costs and fees to the prevailing party. Because Brookside was the prevailing party on this claim, the argument goes, it should be awarded fees for its successful defense of the claim. Additionally, because, as Brookside asserts, no written lease existed between the Peebles and Brookside, the Act was not applicable and an award of fees under the Act to the Peebles was improper.

124 The court of appeals correctly stated the general rule that a party is entitled to attorney fees only if authorized by statute or contract. E.g., R.T. Nielson Co. v. Cook, 2002 UT 11, €17, 40 P.3d 1119. The Residency Act provides that residents who "contest an eviction proceeding" and are the prevailing party may collect attorney fees and costs. Utah Code Ann. § 57-16-8 (2000) (emphasis added). As the court of appeals noted, we look to the plain language of a statute when interpreting the statute. Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81, 121, 18 P.8d 581. Based on the plain language of the attorney fee provisions of the Residency Act, it appears that the legislature intended prevailing parties to be able to collect fees and costs only when bringing or defending eviction claims.

125 Allowing parties to collect fees and costs for a claim having nothing to do with eviction but brought as part of an eviction proceeding goes contrary to this intent. The court of appeals correctly recognized that the Peebles' counterclaim, which dealt with Brookside's rejection of a prospective buyer of Peebles' mobile home, was not an eviction proceeding, even though it was brought as a counterclaim in an eviction proceeding. Because the counterclaim had no direct relationship with an eviction proceeding, the Residency Act provides no statutory basis upon which to award attorney fees to Brookside. See § 57-16-8. No other statutory or contractual basis for awarding fees has been argued by the parties. Therefore, in defending against Peebles' claim, Brookside is not entitled to fees and costs.

126 On the other hand, Brookside's claim was clearly an eviction proceeding. Therefore, as the successful parties, the Pee-bles are entitled to reasonable costs and fees in defending against this eviction proceeding at the trial court, court of appeals, and supreme court levels. Seq, eg., Valcarce v. Fitzgerald, 961 P2d 805, 319 (Utah 1998)("This court has interpreted attorney fee statutes broadly so as to award attorney fees on appeal where a statute initially authorizes them." (quoting Salmon v. Davis County, 916 P.2d 890, 895 (Utah 1996))). We therefore affirm the court of appeals on this issue and remand to the trial court to determine the amount of reasonable attorney fees and costs to be awarded the Peebles for their defense in the eviction proceeding at trial and on appeal.

V. REINSTATING HAROLD PEEBLES AS A DEFENDANT

127 Brookside argues that the court of appeals erred in disregarding its arguments pertaining to Harold Peebles. The trial court dismissed the causes of action which pertained to Harold Peebles based on its specific findings that Brookside presented no evidence at trial that indicated any involvement on the part of Harold Peebles. While Brookside mentioned that Harold Pee-bles was dismissed as a defendant in its brief to the court of appeals, it did not raise any argument accompanied by legal. authority addressing the trial court's dismissal of Harold Peebles as a defendant. Brookside simply asserts that Harold was a co-owner. As Brookside's argument was not adequately briefed before the court of appeals disputing this dismissal, we find no error in the court of appeals' alleged failure to address Harold Peebles' status. See, eg., Springville Citizens for a Better Omty. v. City of Springville, 1999 UT 25, 121 n. 2, 979 P.2d 882 (noting that appellate courts need not address issues where plaintiffs fail to brief them adequate ly). 2 s

VI. BROOKSIDE'S REJECTION OF PROSPECTIVE BUYER

128 In his cross-petition Peebles argues that the court of appeals erred in upholding the jury's finding that Brookside did not unreasonably withhold approval of South-worth's residency in the Park. The Residency Act requires that approval of a prospective buyer of a mobile home "may not be unreasonably withheld." Utah Code Ann. § 57-16-4(4)(2000). Peebles asserts that Brook-side's withholding of approval was per se unreasonable as Brookside refused to meet with Southworth to allow her to fill out a residency application.

129 We find no error in the court of appeals' ruling on this issue. The court of appeals used the correct standard of review in addressing this issue:

" '[Wle view the evidence in the light most supportive of the verdict, and assume that the jury believed those aspects of the evi-denee which sustain its findings and judgment.... [Wle will upset a jury verdict only upon a showing that the evidence so clearly preponderates in favor of the [cross] appellant that reasonable people would not differ on the outcome of the case." "

Brookside Mobile Home Park, Ltd. v. Peebles, 2000 UT App 314, 187, 14 P.3d 105 (quoting Billings v. Union Bankers Ins. Co., 918 P.2d 461, 467 (Utah 19986)).

{30 In appealing the jury verdict, the Peebles have failed to properly marshal all evidence supporting the jury verdict and explain how, in spite of this evidence, the jury verdict should be overturned. See, eg., Child v. Gonda, 972 P.2d 425, 488 (Utah 1998) ("[The one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed. in the light most favorable to the verdict." (citations omitted)). The Peebles argue that because the Residency Act requires that approval of prospective purchasers "may not be unreasonably withheld," § 57-16-4(4), a refusal to meet with or accept an application from a prospective resident violates the Residency Act as a matter of law. The Peebles further argue that Brookside's refusal to meet with Southworth is the only evidence they need to marshal to overturn the jury's verdict. We do not agree.

131 The Peebles do not adequately address evidence in, the record that Brookside had allowed Southworth to begin the application process by sending a credit report to the Park and that the Park had looked at the report. Alan Glover, the owner of the Park, testified that he had seen Southworth's credit report and that it could not verify South-worth's income and employment, two items which were "very important" in considering rental applications. While the Peebles argue that Southworth was prepared to discuss and explain her credit report deficiencies, they do not address evidence suggesting that South-worth's testimony could have been disbelieved by the jury. As the court of appeals noted, "the jury was free to disbelieve [Southworth] and to believe Brookside's witnesses to the contrary." Brookside, 2000 UT App 314 at T 88, 14 P.3d 105.

11 32 Despite the Peekbleg' efforts to have us hold otherwise, this review does not require us to determine the parameters of what is reasonable for purposes of section 57-16-4(4) of the Residency Act. The fact that the jury found that Brookside's withholding of approval was reasonable, and that this finding is supported by some evidence, is enough to permit us to uphold the jury verdict. See Billings, 918 P.2d at 467-68. By failing to marshal this evidence and demonstrate its insufficiency, the Peebles have failed to meet their marshaling burden. See Child, 972 P.2d at 488. We therefore affirm the court of appeals' holding on this issue.

CONCLUSION

833 Because the court of appeals committed no error, we affirm the court of appeals on all issues and remand to the trial court to determine the reasonable amount of attorney fees and costs to be awarded the Peebles for their defense of the eviction proceeding at the trial court, court of appeals, and supreme court levels.

1 34 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON concur in Justice WILKINS opinion.


author: RUSSON, Justice:

text:
    2002 UT 49
    PHOENIX INDEMNITY INSURANCE COMPANY and Jason David Merrill, Plaintiffs and Appellant, v. Marlene T. SMITH, aka Marlene Yardley, and Yardley Inn, a Utah limited liability company, Defendants and Appellees.
    No. 20000769.
    Supreme Court of Utah.
    May 10, 2002.

      Trent J. Waddoups, Taylor D. Carr, Salt Lake City, for Phoenix Indemnity Insurance Co.
    Paul M. Belnap, Andrew D. Wright, Byron G. Martin, Salt Lake City, for defendants.
   RUSSON, Justice:

T1 Phoenix Indemnity Insurance Company ("Phoenix") appeals the trial court's denial of its motion for partial summary judgment made prior to stipulated settlement of the case and entry of a final order of dismissal. Marlene Smith, ak.a. Marlene Yardley ("Yardley"), moves for summary disposition for lack of jurisdiction pursuant to rule 10(a)(1) of the Utah Rules of Appellate Procedure. We grant Yardley's motion for summary disposition and dismiss the appeal.

BACKGROUND AND PROCEDURAL HISTORY

2 This appeal arises out of an automobile accident that occurred between David Merrill ("Merrill") and Yardley on October 27, 1997. On July 20, 1998, Merrill's insurance company, Phoenix, filed a subrogation action against Yardley. On December 3, 1999, Phoenix moved the trial court for partial summary judgment, arguing that the undisputed facts entitled Phoenix to relief based upon a theory of indemnification. Yardley opposed this motion by filing a responsive memorandum of law. The trial court denied Phoenix's motion for partial summary judgment and treated Yardley's memorandum of law in opposition to Phoenix's motion as a cross-motion for partial summary judgment, which it granted. The case then continued to trial before a jury. After a two-day trial, the jury returned a verdict that apportioned liability to Merrill and Yardley and determined Merrill's damages. Subsequently, the parties were unable to resolve their disagreements regarding the form of the proposed order of judgment, and as a result, a final judgment on the jury verdict was never signed or entered by the trial: court. Eventually, the parties were able to agree that rather than submitting a proposed order of judgment to the trial court, Yardley and Phoenix would settle the case and the parties would file a stipulated motion to dismiss pursuant to Utah Rule of Civil Procedure 4l(a)(2). Phoenix drafted the stipulated motion, and both parties signed it. The trial court granted the stipulated motion to dismiss and signed the order of dismissal on August 3, 2000. On September 1, 2000, Phoenix filed a notice of appeal, seeking review of the trial court's prior denial of its motion for partial summary judgment. In response, on September 28, 2000, Yardley moved this court for summary disposition for lack of jurisdiction pursuant to Utah Rule of Appellate Procedure 10(a)(1). We deferred ruling on this motion until briefing and oral argument had been completed.

ANALYSIS

13 It is axiomatic that "[al party who voluntarily dismisses its complaint without prejudice generally has no right to appeal." Barton v. Utah Transit Auth., 872 P.2d 1036, 1039 (Utah 1994) (citing United States v. Procter & Gamble Co., 856 U.S. 677, 680, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)). A voluntary dismissal without prejudice " 'render[s] the proceedings a nullity and leave[s] the parties as if the action had never been brought." " Id. (alterations in original) (quoting In re Piper Aircraft Distribution Sys. Antitrust Litig., 551 F.2d 218, 219 (8th Cir. 1977)). Moreover, "[wlhere the actions of the parties themselves cause a settling of their differences, the case becomes moot," and "an appeal will be dismissed as moot where the matter raised was settled by agreement, such as by ... voluntary dismissal of a claim." 5 Am.Jur.2d Appellate Review § 654 (1995).

T4 In the instant case, the parties, after agreeing to settle the case, signed and submitted to the court a stipulated motion to dismiss the underlying complaint. The stipulated motion to dismiss, which was drafted by Phoenix and referenced in and relied upon by the trial court in its order of dismissal, dismissed Phoenix's action against Yardley, stating: |

Pursuant to Rule 41(a)(@2) of the Utah Rules of Civil Procedure, Plaintiffs and Defendants hereby jointly move and stipulate that the within action be dismissed. The underlying claim has been satisfactori.ly settled, and no counterclaims, objections, or motions remain pending.

The parties' stipulated motion to dismiss and the trial court's order of dismissal are clear. The litigants in this action, through their concerted efforts, ended the dispute between themselves by means of settlement and stipulation, and by doing so, rendered the foregoing proceedings a nullity, As a result, Phoenix has no right to appeal, and the appropriateness of the trial court's prior denial of Phoenix's motion for partial summary judgment is moot.

T5 Finally, Phoenix's argument that the parties had expressly agreed as part of their settlement and stipulation to dismiss that Phoenix reserved its right to appeal the denial of its motion for partial summary judgment is without merit. Phoenix relies on two letters exchanged by the parties that memorialized their agreement as evidence that Phoenix purportedly reserved its right to appeal. This correspondence, while referencing Phoenix's intention to appeal the trial court's denial of its motion for partial summary judgment, does not indicate that the parties agreed to a reservation of Phoenix's right to appeal. In fact, the responsive letter from Yardley to Phoenix regarding the settlement explicitly refuses to stipulate to a reservation of Phoenix's right to appeal the denial of its motion for partial summary judgment. In any event, it is well settled that "the parties to the action cannot, by agreement, confer jurisdiction upon the court" where it would otherwise have none. Myers v. E. Bench Irrigation Co., 32 Utah 215, 221, 89 P. 1005, 1006 (1907); see also 4 Am.Jur2d Appellate Review § Ti (1995) ("The parties may not confer jurisdiction on an appellate court by waiver, acquiescence, or consent.").

CONCLUSION

T6 Because the parties settled their dispute and voluntarily stipulated to dismiss the underlying action, Phoenix does not have the right to appeal the trial court's prior denial of its motion for partial summary judgment and the issue is moot. Therefore, Yardley's motion for summary disposition for lack of jurisdiction pursuant to Utah Rule of Appellate Procedure 10(@2)(1) is granted, and the appeal is dismissed.

' T7 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Judge JACKSON concur in Justice RUSSON's opinion.

T 8 Having disqualified himself, Justice HOWE does not participate herein; Court of Appeals Judge NORMAN JACKSON sat.

      . The trial court granted the voluntary stipulated dismissal pursuant to rule 41(a)(2). Under this rule, unless otherwise specifically indicated in the order of dismissal, a voluntary dismissal under this subsection of the rule is "without prejudice." Utah R. Civ, P. 41(a)(2).

      . In relevant part, Yardley's letter states: "We understand that you intend to appeal the stim-mary judgment denial pertaining io indemnity. We cannot stipulate, however, that your client has any greater or lesser rights pertaining to an appeal on the indemnity than what is provided under law." - (Emphasis added.)