author: CHRISTIANSEN FORSTER, Judge:

text:
    Danielle Marie HARTVIGSEN, Appellant, v. Richard Myers HARTVIGSEN, Appellee.
    No. 20160069-CA
    Court of Appeals of Utah.
    Filed December 28, 2018
    Danielle Marie Hartvigsen, Appellant Pro Se
    Richard Myers Hartvigsen, Appellee Pro Se
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.
    Opinion

      Assisted by Leslie W. Slaugh.

   CHRISTIANSEN FORSTER, Judge:

¶1 This is an appeal from a district court's division of property and award of alimony in the aftermath of a contentious divorce between Danielle Marie Hartvigsen and Richard Myers Hartvigsen. Danielle contends that the court abused its discretion when it imputed income to her, declined to accept her claimed expenses at face value, and credited Richard's unrebutted testimony about his intent to convey real property to himself and Danielle as joint tenants. Danielle also contends that she was denied due process. We affirm.

BACKGROUND

¶2 Danielle and Richard married in 1995 and separated in 2005. Danielle filed for divorce in 2006, and in 2007 the district court entered a bifurcated decree of divorce, granting the divorce but reserving all other issues for later decision. After extensive litigation, a trial was held in 2012, and a supplemental decree of divorce was entered awarding Danielle a total property award of more than $1 million and alimony of $1,000 per month. Danielle filed several post-trial motions, including a motion for new trial which were denied in December 2015. Danielle appeals.

ISSUES AND STANDARDS OF REVIEW

¶3 Danielle first argues that the district court's alimony award was insufficient because the court exceeded its discretion by imputing income to her and in assessing her needs. We "review a district court's alimony determination for an abuse of discretion" and will not disturb its alimony ruling "as long as the court exercises its discretion within the bounds and under the standards [set by Utah appellate courts] and has supported its decision with adequate findings and conclusions." Dahl v. Dahl , 2015 UT 79, ¶ 84, --- P.3d ---- (quotation simplified).

¶4 Danielle next argues that because Richard transferred a home that he purchased before marriage to the couple as joint tenants, the district court erred in determining that the home should be considered Richard's separate property. "Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity." Id. ¶ 119 (quotation simplified). Accordingly, we will reverse only when "a clear and prejudicial abuse of discretion is demonstrated." Id. (quotation simplified). In reviewing the district court's decision, "we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous, and we give due regard to the district court's superior position from which to judge the credibility of witnesses." Id. ¶ 121.

¶5 Finally, Danielle asserts that the district court erred in refusing to grant her motion for new trial because misstatements by Richard in the pretrial phase precluded her from obtaining funds necessary to hire an attorney and resulted in a denial of due process. "Generally, we afford trial judges wide latitude in granting or denying rule 59 motions.... Consequently, we generally disturb a trial court's grant or denial of a rule 59 motion only if it constitutes an abuse of discretion." Sanpete Am., LLC v. Willardsen , 2011 UT 48, ¶ 28, 269 P.3d 118. Furthermore, we will not reverse a denial of a motion for new trial unless the appellant can demonstrate a reasonable likelihood that the outcome would have been different in the absence of the alleged error. See Pulham v. Kirsling , 2018 UT App 65, ¶ 38, 427 P.3d 261.

ANALYSIS

I. Alimony

¶6 Danielle first asserts that the district court's alimony award should be reversed because the court abused its discretion in imputing income to her and in calculating her needs. However, in light of the supporting evidence and the district court's articulated findings, Danielle's various arguments fail to convince us that the court abused its discretion.

A. Imputation of Income

¶7 Danielle first contends that "imputing income to [her] as a practicing attorney was an abuse of discretion" because she "had not worked as an attorney for nearly 19 years" and because "there was no competent evidence that a person with her experience could obtain employment as an attorney."

¶8 In calculating an alimony award, a court must consider, among other things, the recipient's ability to produce income. See Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis Supp. 2010) . When an individual "has no recent work history or [his or her] occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week." See id. § 78B-12-203(7)(c) (LexisNexis 2012). The court may impute greater income upon entering "specific findings of fact as to the evidentiary basis for the imputation." Id. (governing the imputation of income for child support purposes). Such imputation "shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics." Id. § 78B-12-203(7)(b).

¶9 The court heard extensive evidence related to Danielle's ability to produce income, including her education and the range of potential salaries for individuals with similar educational achievements. Danielle earned a juris doctor from Stanford Law School in 1988 and a master's degree in wildlife biology from Brigham Young University in 1996. She received scholarships for both her legal and wildlife biology education. Danielle was admitted to the Utah State Bar in 1990 and worked at two law firms immediately after that. Her employment at the later firm was terminated in 1993.

¶10 A vocational expert retained by Richard testified that there were "260 annual openings for attorneys in the state of Utah metro area" and that the entry-level annual salary for an attorney in the Provo/Orem area at the time of trial was between $61,318.40 and $70,886.40. The expert did not know how many applicants there were for the 260 attorney positions but admitted that the competition was "keen." The expert also testified that the entry-level annual salary for a wildlife biologist began at $40,788.80. Danielle did not present any contrary expert testimony.

¶11 The court ultimately imputed $50,000 in annual income to Danielle, identifying this sum as an "average" based on the vocational evaluator's testimony that Danielle could earn between $40,788.80 and $70,886.40. The court also made several findings about Danielle's ability to work as an attorney. For example, it found that Danielle's "lack of success as a lawyer was due to her failure to keep up with billable hours" but that "[t]his does not mean [she] is incapable of employment in a law job." The court pointed to evidence of Danielle's demonstrated negotiating and organizational capabilities, finding that her "testimony about her inability to be employed is not credible and she is fully employable." The court also noted the half-hearted efforts Danielle made to seek assistance from the Utah Department of Rehabilitation and to pursue mediation training and employment, ultimately finding that her "efforts to become self-sufficient have been inadequate."

¶12 On appeal, Danielle raises several objections to the district court's income imputation, namely that the vocational expert's testimony failed to establish that she could obtain employment as an attorney, that the court erred in concluding that her efforts to obtain employment had been inadequate, and that the court failed to judge her ability to earn against "persons of similar backgrounds in the community." See id. § 78B-12-203(7)(b).

¶13 Danielle first argues that "[t]here was no competent evidence that [she] could obtain employment as an attorney," because "there was no evidence concerning the number of qualified applicants" for the available positions. She concedes that the vocational expert testified that there were "260 annual openings for attorneys" but highlights the expert's admission that he did not know how many applicants there were for those jobs. She suggests that in the absence of evidence of the number of applicants, the evidence of the existence of job openings was insufficient to support the court's findings.

¶14 Danielle cites no authority supporting this proposition. Nor does this argument seem reasonable on these facts. Imputation, by definition, contemplates a degree of speculation. Indeed, the statute allows courts to impute income "based upon employment potential and probable earnings." See id. § 78B-12-203(7)(b) (emphases added). And "[n]either the statute nor any case law of which we are aware requires trial witnesses to identify a position with a specific employer that meets a spouse's employment needs." Bond v. Bond , 2018 UT App 38, ¶ 11, 420 P.3d 53.

¶15 Perhaps more importantly, Danielle did not present any evidence that the number of applicants overwhelmed the number of available jobs such that she had no reasonable likelihood of securing employment as an attorney. Thus, the only affirmative evidence before the court was that there were 260 job openings for lawyers in the Utah metro area each year and that "the entry level wage for an attorney" in the area was between $61,318.40 and $70,886.40. While the expert noted that the job market was tight, there was no evidence suggesting that the odds of Danielle securing one of the 260 jobs were so low as to make her ability to earn the imputed income improbable. We think the unrebutted evidence before the district court was sufficient to support the finding that, in light of her education, Danielle could reasonably be expected to earn $50,000 annually as an attorney. See Dahl v. Dahl , 2015 UT 79, ¶ 121, --- P.3d ---- (noting that it is the province of the fact finder to weigh competing evidence and that "we will not set aside findings of fact ... unless they are clearly erroneous").

¶16 Danielle also challenges the court's finding that her efforts to obtain employment were inadequate. Although not required to impute income, a finding of "voluntary unemployment or underemployment may be relevant when considering whether a party is concealing income or shirking in his or her efforts to earn income." Reller v. Argenziano , 2015 UT App 241, ¶ 33, 360 P.3d 768 (quotation simplified). Danielle asserts that she was not voluntarily or willfully unemployed because she had applied for jobs in 1993 but had been unsuccessful in finding employment as an attorney.

¶17 According to Danielle, the court's analysis should be limited to considering what she did "immediately after termination, not 19 years later." However, she again does not provide any authority to support this proposition. Danielle asserts that she "applied for 2 jobs per week for up to a year after she was fired in January of 1993." But her inability to secure employment as an attorney in 1993 is not dispositive of her ability to do so nineteen years later. Danielle's termination and unsuccessful job search nearly two decades before the court's ruling simply do not demonstrate clear error in the finding that she "has made no credible efforts to become employed or self-sufficient in the seven years since the parties' separation."

¶18 Danielle also argues that it was unreasonable for the court to determine that she could find work as an attorney when she had not worked as an attorney for the past nineteen years. In support of this assertion, she cites Spencer v. Utah State Bar , 2012 UT 92, 293 P.3d 360, in which the Utah Supreme Court enforced the Utah State Bar's requirement that an out-of-state applicant to the Utah Bar have practiced for three out of the preceding five years in order to be admitted without taking the Utah bar examination. See id. ¶¶ 16-18. Danielle argues that like the attorney in Spencer , she does not satisfy the three-out-of-the-last-five years rule and therefore is incapable of finding employment as an attorney in Utah. But that rule applied to out-of-state attorneys who wished to practice in Utah without taking and passing the Utah bar examination. See id. ¶¶ 9-13. In contrast, Danielle did take and pass the Utah bar examination. And there is no rule preventing attorneys who have passed that examination from activating their licenses and practicing law simply because they have not practiced law recently. Indeed, the absence of a rule to that effect suggests the opposite; it appears that in the view of the Utah State Bar, attorneys are presumptively competent to practice law in Utah, even if they have not practiced law recently, so long as they have passed the Utah bar examination and are eligible to be licensed.

¶19 Finally, Danielle argues that the court "did not properly apply [the] legal standard" for imputation of income because it failed to consider "prevailing earnings for persons of similar background in the community." See Utah Code Ann. § 78B-12-203(7)(b). Danielle asserts that the "similar background" requirement means that the court should have considered only the prevailing earnings of "attorney[s] who had been fired from their only law jobs, had not been able to find a job while applying for 2 per week for a year [after termination,] and hadn't worked in that occupation for over 19 years." Danielle provides no reasoned analysis to support her assertion.

¶20 It is a well-recognized canon of statutory interpretation that "we presume that the legislature used each word advisedly." Bylsma v. R.C. Willey , 2017 UT 85, ¶ 64 n.115, 416 P.3d 595 (quotation simplified). Here, the legislature employed the term "similar" rather than "identical" or "same." We presume that this choice reflects the legislature's intent not to limit a consideration of prevailing earnings to individuals with identical backgrounds. We therefore see no error in the district court's consideration of the prevailing earnings of "persons of similar background" as opposed to "persons of identical background." See Utah Code Ann. § 78B-12-203(7)(b).

¶21 Further, Danielle fails to acknowledge the ways in which the district court did take her background into account and even demonstrated leniency in its imputation. Although Danielle had several years of work experience as an attorney-albeit dated experience-the court based its imputation on salaries for entry-level attorneys. And even then, the court imputed only $50,000 of annual income to Danielle, more than $10,000 less than the low end of the vocational expert's estimate of attorney salaries. Thus, Danielle's assertion that the court failed to assess her potential income based on others of similar backgrounds is not supported by the record.

¶22 In short, none of the objections Danielle raises demonstrate that the district court exceeded its discretion in imputing income to her.

B. Determination of Need

¶23 Danielle next contends that the district court abused its discretion in determining the amount of her needs. In calculating an alimony award, courts are required to consider, among other things, "the financial condition and needs of the recipient spouse." Utah Code Ann. § 30-3-5(8)(a)(i) (LexisNexis Supp. 2010). Generally, courts are expected to assess need based on the standard of living existing at the time of the parties' separation. See id. § 30-3-5(8)(c).

¶24 In evaluating Danielle's needs, the court found that her "monthly needs ... are overstated and bear no relation to her historical needs or standard of living as of the date of separation" and that her "claimed need exceeds [Richard]'s take-home income earned during the parties' marriage." The court called out a number of expenses that it considered to be overstated. It also found that Danielle's "testimony regarding finances and expenses is not credible," that "[s]he failed to provide any credible evidence regarding expenses," and that her evidence contradicted itself. The court contrasted this with Richard's testimony regarding the marital standard of living, which it deemed to be "credible, detailed and specific."

¶25 We defer to the factfinder's advantaged position to weigh conflicting evidence and testimony, and we will not set aside findings of fact so long as evidence supports them. See Dahl v. Dahl , 2015 UT 79, ¶ 121, --- P.3d ---- ; Bonnie & Hyde, Inc. v. Lynch , 2013 UT App 153, ¶ 18, 305 P.3d 196. Danielle's evidence of her financial needs was largely limited to her testimony and was generally unsupported by documentation. Yet, rather than address the district court's credibility determination, on which its assessment of her needs largely rested, Danielle asks us to reconsider the reasonableness of her expenses. We decline to do so, because she has failed to demonstrate that the district court exceeded its discretion in its credibility determination, or even to address that determination. Moreover, in fashioning an alimony award, Danielle fails to address the district court's consideration of the extensive support Richard provided Danielle from the date of the parties' separation to the trial, the large property settlement Danielle received in the divorce, and the court's finding that Danielle wrongly diverted marital funds from the parties' joint accounts at the time of their separation.

¶26 Because the district court did not exceed its discretion in imputing income to Danielle and in calculating her need, we decline to disturb its alimony award.

II. Richard's Intent and Presumption of Gift

¶27 Danielle next contends that the district court erred by ruling that certain real property, owned solely by Richard before the marriage, remained his individual property despite being subsequently conveyed to Richard and Danielle as joint tenants. While a "transfer of otherwise separate property to a joint tenancy with the grantor's spouse is generally presumed to be a gift," Bradford v. Bradford , 1999 UT App 373, ¶ 22, 993 P.2d 887, it "is not conclusive [evidence] that a gift has been made." Jesperson v. Jesperson , 610 P.2d 326, 328 (Utah 1980). Generally, the gift must be "coupled with an evident intent to do so [to] effectively change[ ] the nature of that property to marital property." Bradford , 1999 UT App 373, ¶ 22, 993 P.2d 887. And "[t]he trial judge has wide discretion in the division of marital property (a matter of equity) and [the court's] findings will not be disturbed unless the record shows there has been an abuse of discretion." Jesperson , 610 P.2d at 328.

¶28 The two cases cited above are illustrative of the central role intent plays in dividing marital property. In Jesperson , the district court found that despite the fact that the parties' property was held in joint tenancy, "there was no intention by Plaintiff to create a one-half property interest in Defendant, nor any expectation by Defendant that he had received a one-half property interest." Id. The Utah Supreme Court upheld the district court's finding in light of the court's "wide discretion in the division of marital property." Id. In contrast, in Bradford , this court held that real property that a husband had conveyed to himself and his wife as joint tenants was marital property because the husband himself testified that he "intended at that time to give a one-half interest in the home to his wife" and nothing in the record indicated otherwise. See Bradford , 1999 UT App 373, ¶ 24, 993 P.2d 887.

¶29 In this case, Richard owned the property in question prior to the marriage but then conveyed it to himself and Danielle as joint tenants. At the divorce trial, Richard was asked why the house had been retitled jointly:

Q. Okay. You heard [Danielle] testify that the Woodland Hills house was titled jointly. How did that occur?
A. Ahhh, I believe it was several months after we were married she demanded that I put her name on the deed for the Woodland Hills house. She claimed that if I wouldn't do that she was going to leave me and leave the marriage.
Q. So you acquiesced in that?
A. I did.
Q. Did you intend for your premarital contribution to be a gift to her?
A. No, I didn't.
...
Q. Do you consider your premarital contribution [of the Woodland Hills house proceeds] to be a gift to [Danielle]?
A. No, I don't.
Q. Do you consider it a gift to the marriage?
A. No.

¶30 The court explained in its ruling on Danielle's motion for new trial that "there was no evidence of intent by [Richard] to change the nature of his separate property contributions to marital property" and that the court had therefore exercised its equitable discretion to award Richard his premarital property. In light of Richard's testimony that he added Danielle's name to the deed for the property only because Danielle threatened to leave him if he did not and the lack of any additional evidence, apart from the transfer itself, indicating that Richard intended to make a gift of the property, we conclude that the district court did not exceed its discretion in determining that Richard's property retained its premarital character.

III. Due Process

¶31 Finally, Danielle contends that she "was denied due process by [Richard's] misstatements to the court regarding financial matters, which resulted in [Danielle] having inadequate support to employ counsel" because the district court refused to release funds from the estate to her. She claims that this was a denial of due process and that the district court therefore should have granted her motion for new trial.

¶32 First, we are skeptical of Danielle's claim that the funds she had prior to trial were insufficient for her to hire legal counsel. Danielle concedes that in addition to her temporary alimony award, the court released $10,000 to each party on two separate occasions. And the parties further stipulated to a release of another $10,000 to each party. We also doubt Danielle's claim that she was utterly helpless in preparing for trial without an attorney, as she is herself an attorney, having both graduated from Stanford Law School and passed the Utah bar examination.

¶33 In any event, Danielle has failed to adequately brief this issue. See Utah R. App. P. 24(a)(8) ("The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal."). She claims to have been denied due process but fails to discuss any legal standards regarding due process. Her argument appears to assume that she had a due process right to representation by counsel in the divorce proceedings, but she provides no legal support for that proposition. See, e.g. , State v. Young , 853 P.2d 327, 354 (Utah 1993) (noting that there is generally "no right to counsel in a civil case"). She also makes cursory reference to the "doctrine of unclean hands" but fails to discuss this doctrine or explain how it applies in the context of her due process argument. Instead of supporting her due process claim with reasoned legal analysis, Danielle peppers her brief with conclusory statements asserting that various actions by Richard and the court "denied her due process." The rest of her argument consists of a list of complaints regarding the limitations she faced in preparing her case without an attorney in light of her claimed disabilities.

¶34 Essentially, Danielle's argument asks us to hold that she was denied due process simply because she was not able to prepare her case in the manner that she would have preferred and because the court's rulings did not come out in her favor. This does not establish an adequate basis for a due process claim, and we therefore conclude that Danielle has failed to carry her burden of persuasion on this issue.

CONCLUSION

¶35 The district court's factual findings supporting its imputation of income to Danielle and its assessment of her needs were supported by sufficient evidence and not clearly erroneous. Similarly, the court did not exceed its discretion by crediting Richard's testimony regarding his separate premarital property and awarding him a credit for the value of that property. Further, we reject Danielle's due process claims because she has failed to adequately brief them. Accordingly, we affirm the district court's findings and conclusions and its denial of Danielle's motion for new trial.

      As is our practice in cases where both parties share a last name, we refer to the parties by their first names with no disrespect intended by the apparent informality.

      Danielle also challenges the court's calculation of Richard's income. Specifically, she claims that the court should have considered Richard's W-2 for 2004. Danielle has not demonstrated that this argument was preserved. See Utah R. App. P. 24(a)(5). In fact, it does not appear that the disputed W-2 was admitted into evidence by the district court; we have not been able to locate the W-2 in the record on appeal, and Danielle does not provide a record citation to where the W-2 may be found. We therefore do not address this claim further. See id. R. 24(a)(8) ; id. R. 24(a)(12)(C) ; id. R. 24(e).

      Because the language of some statutes have changed, we cite to the version of the statutes in effect at the time of trial.

      "Although this section of the Utah Code addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context." Fish v. Fish , 2010 UT App 292, ¶ 14 n.5, 242 P.3d 787.

      The expert explained that the term "state of Utah metro area" referred to the region between Provo and Ogden.

      Danielle cites one case for the proposition that, when determining "a recipient's 'income and resources,' [the government] must ensure that any such income or resources 'actually exist,' be not 'fictitious' or 'imputed,' and 'be actually on hand or ready for use when it is needed.' " See Heckler v. Turner , 470 U.S. 184, 200, 105 S.Ct. 1138, 84 L.Ed.2d 138 (1985). But that case concerned public assistance from the government, not alimony. Moreover, the quoted language was describing a Social Security Board "policy statement applicable to various aid programs" and was not a legal holding by the Court. Id.

      Danielle was also awarded premarital assets in the amount of $8,482.

      At the outset of the divorce proceedings, the commissioner made a temporary award of $3,915 per month, of which half was child support and half was alimony. In arriving at this amount, the commissioner imputed to Danielle an after-tax income of $1,850 per month.

      We note that Danielle does not allege the court refused to allow her to be represented by counsel at her own expense. In such a case, our analysis would be different.

      Danielle also includes three claims regarding the adequacy of the record in her briefing of this issue. In all three, she essentially argues that a new trial should be granted due to the district court's failure to record certain post-trial proceedings. We reject these claims because Danielle did not show "that the issue was preserved" or provide a "statement of grounds for seeking review of an issue not preserved." See Utah R. App. P. 24(a)(5). Moreover, as the appellant, Danielle bears the burden of establishing a record adequate to support her claims on appeal. See, e.g. , Reperex, Inc. v. May's Custom Tile, Inc. , 2012 UT App 287, ¶ 13, 292 P.3d 694 ; see also Utah R. App. P. 11(e)(2). This burden entails either providing a transcript of the relevant hearings or, where no transcript can be made, reconstructing the proceedings through the participants' affidavits. See id. R. 11(g) ; see also Ajinwo v. Chileshe , 2018 UT App 39, ¶ 3, 420 P.3d 51. Danielle has not done the latter, and thus unable to carry her burden on appeal of showing prejudicial error.

      Danielle requests an award of fees on appeal. As she has not prevailed on appeal, we deny this request. See Leppert v. Leppert , 2009 UT App 10, ¶ 29, 200 P.3d 223. Also, Danielle is a pro se litigant and therefore not entitled to fees. See White v. White , 2017 UT App 140, ¶ 37, 402 P.3d 136.

      To the extent that we have not addressed other points or subpoints raised in Danielle's briefs, we have determined that they lack merit and decline to separately analyze them. See Lucas v. Wells Fargo Bank, NA , 2013 UT App 117, ¶ 14 n.4, 302 P.3d 1240 ; see also Centennial Pointe Owners' Ass'n v. Onyeabor , 2009 UT App 325U, para. 1 n.1, 2009 WL 3792261 (declining to address some of a pro se appellant's "inadequately briefed arguments"); Delta Delta Delta v. Theta Phi House Corp. , 2009 UT App 133U, para. 5 n.1, 2009 WL 1425362 ("Other issues raised by [the appellant] are without merit, and we decline to analyze them in detail.").


source: Caselaw Access Project

author: POHLMAN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Travis Lee DOYLE, Appellant.
    No. 20170024-CA
    Court of Appeals of Utah.
    Filed December 28, 2018
    Diana Pierson, Maren E. Larson, and Sarah J. Carlquist, Attorneys for Appellant
    Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Opinion
   POHLMAN, Judge:

¶1 Travis Lee Doyle appeals his conviction for aggravated assault. He contends that there was insufficient evidence to disprove his claim of self-defense beyond a reasonable doubt. We affirm.

BACKGROUND

¶2 On Christmas Eve 2010, Victim went to a party with his girlfriend (Girlfriend). The party was hosted by Girlfriend's uncle (Uncle) and included about two dozen guests, mostly Girlfriend's family. Uncle also invited Doyle, who attended the party with two friends. Girlfriend knew Doyle growing up, but Victim had never met him.

¶3 While Doyle, Girlfriend, and Victim were together in Uncle's kitchen, Girlfriend introduced Victim and Doyle. Victim, who had been keeping to himself, looked up as Girlfriend introduced him as her "old man." Victim smiled and said, "Hello," and Doyle responded, "Are you looking at me funny?" or, "You looking at me crazy fool?" Victim shook his head and said, "No," looking down to avoid a confrontation. According to Girlfriend, all three of them looked away and she thought they "were all cool."

¶4 The next thing Victim remembered was waking up on the kitchen floor. He did not remember getting punched but felt pain "shooting through [his] eye and the left side of [his] face." At trial, Girlfriend recalled that Doyle "cold clocked" Victim after they had all looked away. The punch knocked Victim "out cold," and Girlfriend testified that Doyle started hitting and kicking Victim while he lay unconscious on the floor. Girlfriend tried to stop the assault, but Doyle's two friends joined the attack and she was eventually pulled out of the kitchen by her cousin. In the fracas, Girlfriend was punched and had a tooth knocked out, but she did not know who hit her. Girlfriend later testified that the beating of Victim lasted for, what seemed to her, two to three minutes.

¶5 The other partygoers heard the commotion coming from the kitchen, and Girlfriend's family rushed to the scene and helped Victim. As people moved out of the kitchen, Uncle confronted Doyle to figure out what happened. Doyle was "hyped up" and "[r]eally aggressive" and told Uncle that Victim had disrespected him and "was giving him dirty looks" when the two were introduced. Doyle did not claim that Victim had acted aggressively toward him or that Doyle was defending himself.

¶6 Girlfriend's cousin also confronted Doyle, asking him if he hit Girlfriend. Doyle made "some cocky ass response" like, "You know I did." Sensing additional impending trouble, another partygoer (J.G.) stepped between them to prevent another fight. But when J.G. turned his back to Doyle, Doyle punched him in the back of the head. Another fight started, and Doyle's two friends again joined the fray. Someone called the police, and Doyle and one of his friends left, leaving the other friend behind.

¶7 Doyle was not gone for long. J.G. went outside to escape the "craziness" with his girlfriend, who was eight months pregnant. As she and J.G. were talking, Doyle and his friend approached them and started "talking crazy." J.G. and the pair again exchanged blows, and the friend took a swing at the girlfriend's stomach. J.G. was able to block the swing but was knocked down. Doyle yelled, "I'm going to try to catch a murder charge," and then he jumped in the car with his friend and left. The police arrived less than one minute later.

¶8 Victim later returned home, deciding not to go to the hospital that night because it was Christmas Eve. The next morning, he woke up and had Christmas with his kids but was in "an extreme amount of pain." Girlfriend took him to the emergency room, where he was referred to a plastic surgeon (Doctor). Doctor found that Victim had suffered numerous bone fractures around his left eye, but delayed surgery for more than two weeks due to swelling. When Doctor was able to perform the surgery, it took eleven hours to repair the damage to Victim's face and position three permanent titanium plates and one biodegradable plate. Doctor later testified at trial that, although it was possible Victim's injuries were caused by a single punch, it would have required a "significant amount of force." Based on his experience, Doctor was ultimately unsure how many times Victim was hit.

¶9 Due to his injuries, Victim did not return to work for nearly two months, lived off a liquid diet for two weeks, and was unable to communicate without pain and discomfort. To this day, Victim suffers from migraines and vision loss, conditions he never had before the incident.

¶10 The State charged Doyle with aggravated assault resulting in serious bodily injury, a second degree felony, and included an in-concert enhancement. At trial, Doyle argued self-defense, claiming that Victim threatened him with a beer bottle. Doyle testified that immediately after Girlfriend introduced them, Victim "turned around and grabbed a bottle off the counter" and raised it above his head in a threatening manner. To defend himself, Doyle hit Victim one time and then was "jumped" by Girlfriend's family. At the end of trial, Doyle moved for a directed verdict, arguing that the State did not meet its burden of disproving self-defense. The trial court denied the motion and found that there was a "disputed issue" as to self-defense that should go to the jury. The court instructed the jury on self-defense, explaining that the prosecution had the burden to "prove beyond a reasonable doubt that the defense [did] not apply." After a two-day trial, the jury found Doyle guilty of aggravated assault but rejected the in-concert enhancement. Doyle appeals.

ISSUE AND STANDARD OF REVIEW

¶11 Doyle asks us to reverse his conviction for aggravated assault, contending that the trial court should have granted his motion for a directed verdict because there was insufficient evidence to disprove his claim of self-defense. "We review a trial court's ruling on a motion for directed verdict for correctness." State v. Gonzalez , 2015 UT 10, ¶ 21, 345 P.3d 1168.

When a party moves for a directed verdict based on a claim of insufficiency of the evidence, we will uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.

State v. Hirschi , 2007 UT App 255, ¶ 15, 167 P.3d 503 (quotation simplified).

ANALYSIS

I. Preservation

¶12 Doyle's insufficiency challenge has two components: first, that the evidence supporting his conviction and disproving his self-defense claim was "inconclusive and speculative"; and second, that in evaluating the sufficiency of the evidence against Doyle, the trial court should have disregarded Girlfriend's testimony as "inherently improbable." The State counters that these issues were unpreserved. It acknowledges that Doyle moved for a directed verdict in the trial court but argues that he did not preserve his sufficiency challenges "because his blanket objections below ... were not specific to the claims he now raises."

¶13 To preserve an issue for appeal, a party must present it "to the trial court in such a way that the trial court has an opportunity to rule on that issue." State v. Gallegos , 2018 UT App 112, ¶ 14, 427 P.3d 578 (quoting 438 Main St. v. Easy Heat, Inc. , 2004 UT 72, ¶ 51, 99 P.3d 801 ). This means that a party must raise the issue "specifically" and "in a timely fashion," and support the argument with "evidence or relevant legal authority." Id. (quotation simplified). There is no dispute that Doyle's motion for a directed verdict was timely, but we must decide whether the issues were specifically raised and supported by relevant authority.

¶14 We conclude that Doyle's motion for a directed verdict preserved his inconclusive-and-speculative challenge but did not preserve his distinct claim that Girlfriend's testimony should have been disregarded in its entirety as inherently improbable.

A. Inconclusive and Speculative

¶15 On appeal, Doyle contends that the evidence relevant to his self-defense claim was "inconclusive and speculative," raising several arguments in support. See infra Part III. To support his claim that these arguments were preserved, Doyle relies principally on State v. Gonzalez , 2015 UT 10, 345 P.3d 1168, and State v. Gallegos , 2018 UT App 112, 427 P.3d 578. Under those cases, Doyle maintains that his arguments regarding the sufficiency of the evidence to disprove self-defense were clear from the context of the directed verdict motion. See Gonzalez , 2015 UT 10, ¶ 26, 345 P.3d 1168 ("When the specific ground for an objection is clear from its context, the issue is preserved for appeal."). And although he makes more developed arguments on appeal, he asserts that the arguments below "were not 'so tangential that [they do] not mirror [the] specific arguments on appeal.' " (Quoting Gallegos , 2018 UT App 112, ¶ 16, 427 P.3d 578.) The State, in response, relies primarily on State v. Bosquez , 2012 UT App 89, 275 P.3d 1032, and contends that Doyle's "general assertions" below failed to "assert the specific argument[s] raised on appeal." (Quoting Bosquez , 2012 UT App 89, ¶ 8, 275 P.3d 1032.)

¶16 Regarding Doyle's more generalized argument challenging the self-defense evidence as inconclusive and speculative, we agree that this case more closely resembles Gonzalez and Gallegos than Bosquez . As in Gallegos , Doyle's arguments on appeal merely present the self-defense argument from below "with more flesh on the bone." See 2018 UT App 112, ¶ 16, 427 P.3d 578. In his motion for a directed verdict, Doyle argued that the State had the burden to disprove self-defense and that it had to "present more than [it] ha[d]" to meet that burden. In Doyle's view, his testimony that he was threatened by Victim was never disproven. These arguments were tersely made, but were presented in context of the two-day trial in which self-defense was an important issue. In his motion, Doyle did not identify every perceived defect in the State's evidence, but it was clear he was arguing that the evidence presented was too inconclusive and speculative to disprove self-defense. This basic theory-that the State did not disprove that Doyle acted in self-defense-has not changed. See State v. Johnson , 2017 UT 76, ¶ 14 n.2, 416 P.3d 443 (explaining that, once through the preservation door, "new arguments" are allowed but "new legal theories" are not). Thus, the issue was "presented to the trial court in such a way that the trial court ha[d] an opportunity to rule on [it]." See Gallegos , 2018 UT App 112, ¶ 14, 427 P.3d 578 (quotation simplified). Because the issue was preserved, we will reach it on its merits. See infra Part III.

B. Inherent Improbability

¶17 We reach a different conclusion, however, on Doyle's inherent-improbability argument. Under State v. Robbins , 2009 UT 23, 210 P.3d 288, a court may disregard testimony that is "inherently improbable" when determining whether there is sufficient evidence for a conviction. Id. ¶ 13. The inherent improbability doctrine has very limited applicability and comes into play "only in those instances where (1) there are material inconsistencies in the testimony and (2) there is no other circumstantial or direct evidence of the defendant's guilt." Id. ¶ 19 ; see also State v. Prater , 2017 UT 13, ¶ 38, 392 P.3d 398 (explaining that the Robbins court relied on "inconsistencies in the [witness's] testimony plus the patently false statements the [witness] made plus the lack of any corroboration").

¶18 On appeal, Doyle argues that Girlfriend's testimony of a "prolonged assault by multiple attackers was inherently improbable" and that, in evaluating the sufficiency of the evidence, the trial court should have disregarded her testimony in its entirety under Robbins . In support, he asserts that Victim's injuries were inconsistent with Girlfriend's version of events: Victim had injuries only to the face with no other injuries to his body. According to Doyle, if Girlfriend's account were true-that Victim was punched and kicked for two to three minutes by three attackers-Victim would have had more serious injuries. In addition, Doyle asserts that Girlfriend's testimony was "patently false" and "uncorroborated." For these reasons, he maintains that Girlfriend's testimony cannot sustain the jury's verdict.

¶19 This goes far beyond what was argued in the motion for a directed verdict. Robbins may be a component of an insufficiency challenge, but not every insufficiency challenge raises a Robbins issue. Doyle's contention that the trial court should have evaluated the sufficiency of the evidence without Girlfriend's testimony does not merely add "more flesh on the bone." See State v. Gallegos , 2018 UT App 112, ¶ 16, 427 P.3d 578. Instead, it introduces a new legal theory: that the insufficiency should be reviewed only after Girlfriend's testimony is ignored as "inherently improbable." And unlike the arguments above, supra Part I.A., it would not have been clear from context that the motion for a directed verdict was making a Robbins challenge. Instead, the motion centered on the State's burden of proof and its alleged failure to disprove Doyle's testimony that he acted defensively based on all of the evidence presented. There was never any argument that Girlfriend's testimony was so inherently improbable that it should be disregarded before analyzing the sufficiency of the State's evidence. Thus, this particular challenge was not presented to the trial court and was not preserved for appeal. See Gallegos , 2018 UT App 112, ¶ 14, 427 P.3d 578.

II. Plain Error

¶20 Alternatively, Doyle contends that the trial court committed plain error by considering Girlfriend's testimony in reviewing his motion for a directed verdict. "The plain error doctrine serves as an exception to our long-standing rule that issues cannot be raised on appeal if they were not argued below at trial." State v. Bond , 2015 UT 88, ¶ 36, 361 P.3d 104. But we will not find plain error based on insufficient evidence unless the insufficiency is "obvious and fundamental." State v. Prater , 2017 UT 13, ¶ 28, 392 P.3d 398 (quotation simplified). "An example of an obvious and fundamental insufficiency is the case in which the State presents no evidence to support an essential element of a criminal charge." Id. (quotation simplified).

¶21 In Prater , our supreme court reviewed the inherent improbability of witness testimony for plain error. Id. ¶ 27. And there, the court emphasized that "the usual course" is to allow "the jury to assess the credibility of witness testimony." Id. ¶ 43. Only when testimony is "inherently improbable," that is, "incredibly dubious and, as such, apparently false," can the issue be taken from the jury. Id. ¶¶ 32-33.

¶22 Here, it is not obvious that the inconsistencies in Girlfriend's testimony "run so counter to human experience" that it renders her testimony "inherently improbable." See id. ¶ 39. As to Victim's injuries being inconsistent with Girlfriend's testimony, Doctor testified that Victim's significant injuries may have been caused by a single blow, or by many. Ultimately, Doctor could not say how many times Victim was hit. Thus, this question properly went to the jury. Doyle also asserts that Girlfriend's testimony that she had a tooth knocked out during the melee is inconsistent with her statement to police several hours after the incident, where she did not report that fact. But "pre-trial inconsistent statements do not render [a witness's] testimony 'apparently false.' " Id. Instead, they present routine credibility questions for a jury. Id. Next, Doyle attacks Girlfriend's estimation that the attack lasted two to three minutes, saying this estimation is patently false because "none of her approximately twenty family members intervened" and "even the [prosecutor] acknowledged that [Girlfriend] was wrong to testify that the incident lasted for two to three minutes." Yet the record shows that Girlfriend's family did intervene-even Doyle claimed that he was "jumped" as soon as he hit Victim. And besides, how long the attack lasted is irrelevant; the question is whether Doyle assaulted Victim-be it for three seconds or three minutes. This is not an obvious basis to disregard Girlfriend's entire testimony.

III. Sufficiency of the Evidence

¶23 Having concluded that Doyle preserved his insufficiency challenge as to the inconclusive and speculative nature of the evidence, we turn to the merits of that argument. In doing so, we note "[a] defendant must overcome a substantial burden on appeal to show that the trial court erred in denying a motion for directed verdict." State v. Gonzalez , 2015 UT 10, ¶ 27, 345 P.3d 1168. We view the evidence "in the light most favorable to the State" and will uphold the trial court's denial of a motion for a directed verdict if "some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." Id. (quotation simplified). We conclude that, "when viewed in the light most favorable to the State," there is indeed sufficient evidence "from which a reasonable jury could find beyond a reasonable doubt that" Doyle did not act in self-defense. See id. (quotation simplified).

¶24 "A person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person ... against another person's imminent use of unlawful force." Utah Code Ann. § 76-2-402(1)(a) (LexisNexis Supp. 2010). "Once the jury has been instructed on self-defense, the State has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense." State v. Lucero , 2012 UT App 202, ¶ 6, 283 P.3d 967 (quotation simplified). In assessing reasonable doubt, we recognize that the jury is the sole "arbiter of witness credibility." State v. White , 2011 UT App 162, ¶ 10, 258 P.3d 594 (quotation simplified). Our "inquiry ends when there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime [could] reasonably be made." Id. ¶ 8 (quotation simplified). Further, "[i]nferences may reasonably be drawn from circumstantial evidence." State v. Ashcraft , 2015 UT 5, ¶ 18, 349 P.3d 664. "And a jury's inference is reasonable unless it falls to a level of inconsistency or incredibility that no reasonable jury could accept." Id. (quotation simplified).

¶25 Doyle contends that the State did not disprove his claim of self-defense because it "did not present a witness who was looking at [Victim] before Doyle punched him." Because Victim and Girlfriend were looking away before the attack, and because there were no other eyewitnesses to the events, Doyle asserts that there is no proof that Victim did not first threaten Doyle with the beer bottle. In addition, Doyle contends that the evidence is speculative because "Doyle's behavior after the incident" does not speak to Doyle's actions in regard to Victim. We conclude both contentions lack merit.

¶26 First, there was at least one witness to the incident. Victim testified that (1) his memory of before he was hit was "[v]ery clear," (2) when Doyle asked him if he was looking at him funny, he looked away to avoid a confrontation, and (3) he "did not want to confront [Doyle]." Further, when asked whether he made "any threats toward Mr. Doyle" or did "anything aggressive towards Mr. Doyle before [he] got punched," Victim said, "No." And even assuming that Girlfriend did not witness the initial hit because she momentarily looked away after Victim and Doyle were introduced, she testified that, based on her observations and impressions, Doyle "cold clocked" Victim and that Doyle continued to hit and kick Victim while he was unconscious. At any rate, eyewitness testimony is not required to disprove self-defense. See Salt Lake City v. Carrera , 2015 UT 73, ¶ 11, 358 P.3d 1067 ("Circumstantial evidence alone may be sufficient to establish the guilt of the accused." (quotation simplified) ). Instead, the jury, "as the arbiter of witness credibility," White , 2011 UT App 162, ¶ 10, 258 P.3d 594 (quotation simplified), could reasonably find, and in fact did find, that Victim was credible and that Doyle was the aggressor.

¶27 Second, the evidence would not require rank speculation as Doyle contends. In this regard, Doyle misapprehends the distinction between speculation and reasonable inference. This distinction was explained by our supreme court in Carrera : "In short, the difference between an inference and speculation depends on whether the underlying facts support the conclusion. A jury draws a reasonable inference if there is an evidentiary foundation to draw and support the conclusion." 2015 UT 73, ¶ 12, 358 P.3d 1067. Victim testified that he did not want to fight Doyle and looked away before being punched. Girlfriend also testified that Victim looked away after the tense introduction. The fact that Victim looked down supports the reasonable inference that Victim did not grab a bottle off the counter to attack Doyle.

¶28 Moreover, J.G. testified that Victim is "such a nice guy" and a "nonviolent kind of guy." In contrast, J.G.'s girlfriend testified that Doyle was "hyped up" and "[r]eally aggressive." This is borne out by Doyle's actions throughout the night of the party. Doyle and his friends started several fights-with Victim, with J.G., and with a woman who was eight months pregnant. And when confronted by Uncle about the events in the kitchen, Doyle did not say Victim had threatened him. Instead, more consistent with Victim's and Girlfriend's accounts, Doyle told Uncle that Victim had "giv[en] him dirty looks" and "had disrespected him." These facts support a reasonable inference that, while Victim was nonviolent, Doyle was aggressive. They also support the further inference that Doyle did not defend himself in response to an unprovoked attack from Victim, but that Doyle felt disrespected and hit Victim as Victim was looking away. In short, there is "some evidence ... from which a reasonable jury could find" that Doyle did not act in self-defense. Gonzalez , 2015 UT 10, ¶ 27, 345 P.3d 1168 (quotation simplified). Therefore, we affirm the trial court's denial of Doyle's motion for a directed verdict. See id. ¶ 33.

CONCLUSION

¶29 We conclude that Doyle preserved part of his insufficiency challenge through his motion for a directed verdict but did not preserve his Robbins challenge as to Girlfriend's testimony. On the unpreserved Robbins claim, we conclude that the trial court did not plainly err in not disregarding Girlfriend's testimony. And on the merits of the preserved claim, we conclude that the State provided sufficient evidence to disprove Doyle's theory of self-defense beyond a reasonable doubt. We therefore affirm Doyle's conviction for aggravated assault.

      "When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly. We present conflicting evidence only when necessary to understand issues raised on appeal." State v. Tulley , 2018 UT 35, ¶ 4 n.1, 428 P.3d 1005 (quotation simplified).

      Doyle was charged with aggravated assault under Utah Code section 76-5-103. Utah Code Ann. § 76-5-103(2)(b) (LexisNexis Supp. 2010). Under section 76-3-203.1, a defendant is subject to an "enhanced penalty" for assault "if the trier of fact finds beyond a reasonable doubt that the person acted ... in concert with two or more persons." Id. § 76-3-203.1(2)(a), (5)(b). If the enhanced penalty applied to Doyle, it would have elevated his crime from a second degree felony to a first degree felony. See id. § 76-3-203.1(4)(d).

      At the end of trial, Doyle moved for two directed verdicts. The first was reserved by Doyle's counsel at the close of the State's case-in-chief and was presented with the second at the close of all the evidence. The first motion concerned the in-concert enhancement. In that motion, Doyle argued that "there were some considerable inconsistencies as to whether or not two or more people were involved" and that Girlfriend's testimony on this point was uncorroborated. In the second motion, Doyle argued self-defense, and that the State had not met its burden to disprove that defense. The State stresses that these motions were distinct and viewed in isolation by the trial court. Doyle counters in his reply brief that "the trial court understood Doyle's second motion incorporated the facts and argument from the first motion." We do not decide whether the motions can be viewed together. Even though the first motion made references to "inconsistencies," it made no suggestion that the trial court should disregard Girlfriend's testimony as inherently improbable. Considering both motions in context, neither raised, in isolation or together, the distinct Robbins issue Doyle raises on appeal. State v. Robbins , 2009 UT 23, ¶ 13, 210 P.3d 288. Therefore, we conclude that the issue is unpreserved.