author: JACKSON, Judge:

text:
    2004 UT App 214
    STATE of Utah, Plaintiff and Appellee, v. Anthony James VALDEZ, Defendant and Appellant.
    No. 20030089-CA.
    Court of Appeals of Utah.
    June 24, 2004.

      John D. O’Connell Jr. and Lori Seppi, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Christine Soltis, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, P.J., GREENWOOD and JACKSON, JJ.
   OPINION

JACKSON, Judge:

¶ 1 Anthony James Valdez appeals convictions for aggravated burglary, a first-degree felony, in violation of Utah Code Annotated section 76-6-203 (2002); possession of a dangerous weapon by a restricted person, a second-degree felony, in violation of Utah Code Annotated section 76-10-503(2)(a) (2002); and criminal mischief, a class B misdemean- or, in violation of Utah Code Annotated section 76-6-106 (2002). ~ We reverse and remand.

BACKGROUND

¶ 2 Valdez was prosecuted for various domestic violence charges, including the violent crimes listed above. On October 29, 2002, the district court conducted voir dire to select a jury for Valdez’s trial. Following the jury selection, Valdez objected to the State’s use of its peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In order to demonstrate a prima facie case of discrimination under Batson, Valdez’s counsel noted that the State used all four of its peremptory challenges to exclude women from the jury. Valdez further noted that in a domestic violence jury trial, gender issues tend to be highly charged. Ultimately, he argued, the State’s exclusion of only women from the jury cannot be disregarded, on its face, in the context of this case.

¶3 The State did not argue that Valdez had failed to present a prima facie case of discrimination, but instead argued Valdez’s Batson challenge was untimely. Without addressing the timeliness of Valdez’s challenge, the district court ordered the State to explain its challenges. The State explained its challenges as follows:

[T]he State chose to strike Ms. Valerio because she stated that she worked for a nonprofit brain injury type of place. That is not a basis upon which to strike her [for cause], but I felt her responses lined up in a way that would make her not a helpful [juror] for the State and that she would be somewhat overly compassionate.
The second [juror] was Ms. Gonzalez. She had heard of the case and seemed— though she said that it wouldn’t bother her, her responses to me seemed matter of fact and I felt like her responses would not make her a good juror for the State.
Ms. Thornton had also heard of the case and I don’t recall what it was, there was something that I immediately decided that I would make her one of my strikes. She’d also been on a jury and he was found guilty of a manslaughter, which I thought was probably a one-step reduction, at least that’s the assumption. So again, I felt like she was not going to be a helpful one for the State.
The last one I agonized over whether to strike, No. 19, Paul[a] Morely or 21 Ron Hardy, I conferred with my colleague, ... and we talked about it and she brought to my attention he was a hunter and that she felt like a hunter would know things about guns and brought that point about that potential juror and another one. And after conferring with her I changed my mind and went with [her] — and that was simply — she was simply towards the end. I suppose there was also it felt like she was not strong, not — I’m sorry, I’m trying to read my notes here....
There was this pattern of — her responses made me think she would be somebody, again, that might be willing to let bygones be bygones, what I would say overly compassionate, and it was just based on her responses about position, her responses to little subtle things like her teaching piano lessons and the magazines she chose. We don’t have a lot to base these things on, so that’s how I made those choices.

(First alteration in original.) Ultimately, the district court accepted the State’s explanations and overruled Valdez’s objection.

¶ 4 During the jury trial, the victim recanted her accusation against Valdez. The State called an expert in Battered Women Syn-drom (BWS) to explain why many victims of abuse recant their accusation against their abuser. Valdez objected to the testimony, but the district court overruled the objection. The jury found Valdez guilty of aggravated burglary, possession of a dangerous weapon by a restricted person, and criminal mischief. Valdez appeals.

ANALYSIS

¶ 5 Valdez challenges the district court’s ruling that the State offered nondiscriminatory reasons for its use of peremptory strikes.

I. Procedural Issues

¶ 6 As a preliminary matter, the State raises two threshold procedural issues that, according to the State, bar appellate review of Valdez’s challenges.

A. Timeliness

¶ 7 First, the State contends Valdez did not raise his Batson challenge in a timely manner. Under Batson, a challenge to a peremptory strike must be timely. See Batson v. Kentucky, 476 U.S. 79, 99-100, 106 S.Ct. 1712, 1724-25, 90 L.Ed.2d 69 (1986) (allowing for local timeliness rules to bar Batson challenges); Salt Lake County v. Carlston, 776 P.2d 653, 655 (Utah Ct.App. 1989) (stating, in context of Batson challenge, “[i]t is axiomatic that, before a party may advance an issue on appeal, the record must clearly show that it was timely presented to the trial court in a manner sufficient to obtain a ruling thereon”). “Issues not raised in the trial court in timely fashion are deemed waived, precluding this court from considering their merits on appeal.” Carlston, 776 P.2d at 655. What constitutes a timely challenge under Batson depends entirely upon local procedures, see id.; Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991), but only “ ‘firmly established and regularly followed state [procedure]’ may be interposed by a State to prevent subsequent [appellate] review” of this important constitutional claim. Id. at 423-24, 111 S.Ct. at 857 (citation omitted).

¶ 8 Valdez waited to raise his Batson challenge until after the venire had been dismissed, the jury had been sworn in, and the court preliminarily instructed the jury. The State refers us to several other jurisdictions that require a Batson challenge to be raised no later than “in the period between the selection of the jurors and the administration of their oaths.” Id. at 422, 111 S.Ct. at 857; see also Carlston, 776 P.2d at 655-56 (citing favorably, in dicta, several jurisdictions that require Batson challenge to be raised prior to dismissing venire). The reason for barring a Batson challenge after the jury is sworn in has been variously stated as follows:

The “timely objection” rule is designed to prevent defendants from “sandbagging” the prosecution by waiting until trial has concluded unsatisfactorily before insisting on an explanation for jury strikes that by then the prosecutor may largely have forgotten. Furthermore, prosecutorial misconduct is easily remedied prior to commencement of trial simply by seating the wrongfully struck venireperson. After trial, the only remedy is setting aside the conviction.

Id. at 656 (citations omitted); see also People v. Holder, 153 Ill.App.3d 884, 106 Ill.Dec. 700, 506 N.E.2d 407, 408 (1987) (stating waiver rule enforced “so as not to allow a defendant to object to that which he has acquiesced in” throughout trial).

¶ 9 Furthermore, the State argues, this rule is consistent with Utah Rule of Criminal Procedure 18(c)(2), which provides “[a] challenge to an individual juror may be made only before the jury is sworn ... except the court may, for good cause, permit it to be made after the juror is sworn but before any of the evidence is presented.” In State v. Harrison, the Utah Supreme Court applied rule 18⅛ good cause provision to review an untimely Batson challenge. See 805 P.2d 769, 776 (Utah 1991). However, in that case the challenge was “made and argued immediately after the jury was sworn in, before the challenged jurors were excused from service, and before opening statements of counsel.” Id. This is significant, the State maintains, because once the venire and the challenged jurors have been dismissed, the remedy of reinstating the wrongly challenged juror is no longer available. Thus, under the State’s argument, Harrison represents the “outside limit” in Utah to timely raising a Batson challenge.

¶ 10 However, under Harrison, a district court may consider a defendant’s Bat-son challenge beyond the dismissal of the venire, even if it has made no specific finding of good cause pursuant to rule 18 of the Utah Rules of Criminal Procedure. See 805 P.2d at 776. So long as it “allow[s] counsel to proceed with their [Batson ] arguments,” the district court impliedly finds good cause under rule 18 to consider the constitutional claim. Id. In this case, the district court did just that by ignoring the State’s timeliness argument and requiring the parties to proceed directly to arguments on the merits. Thus, the district court impliedly found good cause under rule 18 to allow a challenge to the State’s peremptory strikes beyond the usual limits.

¶ 11 However, even if we adopted the State’s position, we could not “interpose[ ]” it “to prevent subsequent [appellate] review” in this case. Ford, 498 U.S. at 424, 111 S.Ct. at 857. The rule the State proposes, which would prohibit Batson challenges after the venire has been dismissed and the jury has been sworn, has not heretofore been a “ ‘firmly established and regularly followed state [procedure].’ ” Id. at 423, 111 S.Ct. at 857 (1991) (citations omitted). At best, this rule could be gleaned by analogy and implication from Harrison and rule 18. However, rule 18 itself allows Batson challenges at a later time than the State’s proposed rule, because it allows challenges “before any of the evidence is presented.” Utah R.Crim. P. 18(c)(2). Thus, in the absence of any firmer and more established authority on the subject, we could not prevent appellate review of Valdez’s constitutional claim due to lack of timeliness.

B. Preservation

¶ 12 Second, the State argues Valdez failed to preserve his objection to the State’s explanation for the strikes. Specifically, Valdez did not challenge the validity of the prosecutor’s explanations for the strikes. Consequently, the State argues, Valdez is precludéd from attacking the State’s explanations for the first time on appeal. “[T]o ensure the trial court’s opportunity to consider an issue, appellate review of criminal cases in Utah requires ‘that a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record.’ ” State v. Brown, 856 P.2d 358, 360 (Utah App. 1993) (quoting State v. Tillman, 750 P.2d 546, 551 (Utah 1987)).

¶ 13 We are persuaded by Valdez, however, that his initial objection to the State’s use of peremptory challenges to strike women from the jury constituted sufficient preservation of his constitutional claim. Ford v. Georgia held that an appellate court cannot prevent review by applying a “rule unannounced at the time of petitioner’s trial.” 498 U.S. 411, 424, 111 S.Ct. 850, 858, 112 L.Ed.2d 935 (1991). In Utah, there is no clear rule requiring a defendant to renew a Batson objection or to object specifically to the State’s offered explanations. Rather, Utah courts do “not require a party to continue to object once a motion has been made, and the trial court has rendered a decision on the issue.” State v. Hoffhine, 2001 UT 4,¶ 14, 20 P.3d 265. Here, Valdez objected to the State’s use of peremptory challenges, thereby preventing any claim that he strategically hid his objection until after obtaining an unsatisfactory result, which seems to be the State’s strongest objection to Valdez’s challenge.

II. Issue and Standard of Review

¶ 14 Valdez specifically challenges the district court’s ruling that the State offered a nondiscriminatory reason for its use of peremptory strikes. We are unaware of any cases properly applying an appropriate standard of review for such challenges. State v. Chatwin appears to set forth a “clearly erroneous” standard of review for such challenges. See 2002 UT App 363,¶ 5, 58 P.3d 867. “Chatwin argues that the prosecution’s stated reason for striking the potential juror was not neutral and constituted illegal discrimination.... Absent a showing of clear error, we will not overturn a trial court’s determination concerning the discriminatory intent embodied in a party’s explanation for the exercise of a peremptory challenge.” Id. To establish the clearly erroneous standard of review in the step two context, however, Chatwin cited, without analysis, State v. Cannon, 2002 UT App 18,- ¶ 5, 41 P.3d 1153. That case set forth the clearly erroneous standard of review in the step three context, and is inapplicable here. Chatwin went further, however, and decided the step two question as a matter of law, rather than applying the clearly erroneous standard it previously set forth. Here, our decision will analyze and clarify the appropriate standard of review for step two challenges. Accordingly, we must determine the appropriate standard of review, relying on analogy to other standards of review applicable in cases involving alleged discrimination in the voir dire process.

¶ 15 The challenge at issue involves the second step of a tripartite process for determining whether the prosecution has engaged in prohibited discrimination in the jury selection process. See Chatwin, 2002 UT App 363 at ¶ 7, 58 P.3d 867. The first step of that test requires that a defendant challenging the prosecutor’s use of a peremptory challenge must present a prima facie case of discrimination. See id. A trial court’s determination that a defendant has presented a prima facie case of discrimination is a matter of some discretion on the part of the trial court, and we will only reverse that determination where the trial court has abused its discretion. See State v. Alvarez, 872 P.2d 450, 456 (Utah 1994). The purpose for allowing the trial court some discretion in determining whether the defendant has presented a prima facie case of discrimination was stated by the Utah Supreme Court as follows:

The abuse of discretion standard of review is particularly appropriate to this question .... [T]he United States Supreme Court was reluctant to define in detail what facts will raise an inference of discrimination. Likewise, we have not articulated specific factors that amount to a “strong likelihood” that minority jurors were challenged because of their racial or ethnic group membership. By according discretion to the trial court in this area, we permit “experience to accumulate at the lowest court level” until we “see more clearly what factors are important to [the] decision and how to take them into account.”

See id. at 456 n. 3 (citations omitted). What may constitute a prima facie showing of discrimination in the context of one case may not constitute a showing of discrimination in the context of another case. This is so because each ease may turn on different issues, or even subtly different nuances. Thus, we allow the trial court discretion in making the determination whether, in the context of the specific case, a defendant has presented a prima facie case of discrimination.

¶ 16 The third step of the tripartite process for determining whether the prosecution engaged in prohibited discrimination during the jury selection process requires the trial court to weigh the evidence and “look beyond the explanation, if possible, to determine whether the strike was purposefully discriminatory.” Chatwin, 2002 UT App 363 at ¶ 7, 58 P.3d 867. More than being dependant on the particular issues, circumstances and nuances of a particular case, this determination requires the trial court to delve into a weighing of the evidence and the credibility of the prosecutor. See Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991). This is an intensely factual determination, see State v. Cannon, 2002 UT App 18,¶ 13, 41 P.3d 1153, and we thus review the trial court’s factual findings for clear error. See State v. Jensen, 2003 UT App 273,¶ 7, 76 P.3d 188.

¶ 17 In our view, the issue involved here, whether the prosecutor offered a legitimate, nondiseriminatory reason for the peremptory strikes, is closely analogous to the step one issue. It seems less like a factual issue because the trial court does not weigh evidence, but instead looks to the face of the State’s explanations. See Chatwin, 2002 UT App 363 at ¶ 7, 58 P.3d 867 (stating prosecutor’s explanation “must be, at the very least, facially neutral” (emphasis added)). The trial court’s examination of the facial neutrality of the State’s explanation also considers the general context of the case and the specific issues involved, see id. (stating prosecutor’s explanation “must be ... related to the case being tried”), similar to the way the trial court considers whether the defendant has presented a prima facie case of discrimination. See Alvarez, 872 P.2d at 455-56. Indeed, the district court’s consideration of the context of the case is an indispensable portion of the step two analytic framework, as we will discuss below. Thus, steps one and two in the analytical process appear to be analytic reciprocals. Accordingly, it is appropriate to consider this issue one of discretion with the trial court and to review the trial court’s determination for abuse of that discretion.

III. Batson and its Progeny

¶ 18 Valdez claims the State engaged in impermissible gender discrimination during the selection of the jury. In Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution governs the use of peremptory challenges by prosecutors in criminal trials. See 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court stated that although a defendant has “no right to a ‘petit jury composed in whole or in part of persons of his own race,’ ” id. at 85, 106 S.Ct. at 1717 (citation omitted), a “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiseriminatory criteria.” Id. at 85-86, 106 S.Ct. at 1717. In J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the United States Supreme Court extended the holding of Batson to protect litigants from gender discrimination in the jury selection process: “We have recognized that ... litigants ... have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.... We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.” Id. at 128-29, 114 S.Ct. at 1421.

The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings....
When state actors exercise peremptory challenges in reliance on gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women. Because these stereotypes have wreaked injustice in so many other spheres of our country’s public life, active discrimination by litigants on the basis of gender during jury selection “invites cynicism respecting the jury’s neutrality and its obligation to adhere to the law.” The potential for cynicism is particularly acute in cases where gender-related issues are prominent, such as cases involving rape, sexual harassment, or paternity. Discriminatory use of peremptory challenges may create the impression that the judicial system has acquiesced in suppressing full participation by one gender or that the “deck has been stacked” in favor of one side.

Id. at 140, 114 S.Ct. at 1427 (citations omitted).

¶ 19 Pursuant to Batson, Utah courts apply a three-step test to determine whether the prosecutor has engaged in prohibited discrimination during the jury selection process. See State v. Cantu, 778 P.2d 517, 518 (Utah 1989) (applying three-step test to question of racial discrimination). This test equally applies in cases of gender discrimination. See State v. Jensen, 2003 UT App 273,¶ 13, 76 P.3d 188 (applying three-step test to question of gender discrimination). We have stated the test as follows:

“[0]nce the opponent of a peremptory challenge has made out a prima facie case of [gender] discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a [gender-neutral explanation (step 2). If a [genderj-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful [gender] discrimination.”

Id. at ¶ 13 (quoting State v. Colwell, 2000 UT 8,¶ 17, 994 P.2d 177 (other citation omitted)) (alterations in original).

¶ 20 In the State’s brief, it concedes that it waived the issue of whether Valdez presented a prima facie case of discrimination. See Colwell, 2000 UT 8 at ¶ 18, 994 P.2d 177 (stating prosecution must challenge sufficiency of prima facie case before providing rebuttal explanation for strike, or issue is waived). Thus, we examine only step two of the analysis.

¶ 21 Under this step, even “suspect” explanations must be deemed “facially valid” unless they are “inherently discriminatory.” State v. Cannon, 2002 UT App 18,- ¶ 10, 41 P.3d 1153; see also Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (“Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed [gender] neutral.”). Although this step “does not demand an explanation that is persuasive, or even plausible,” Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995), it does “require[ ] the proponent of the peremptory challenge, the prosecutor in this case, to come forward with a [gender]-neutral explanation for the challenge.” Colwell, 2000 UT 8 at ¶ 17, 994 P.2d 177. Utah courts have enumerated a number of factors that must be considered within the context of the case at hand to determine whether the prosecution has offered a legitimate explanation:

The second step [of the analysis] requires “the prosecutor to come forward with a race-neutral explanation for the challenge.” This step “does not demand an explanation that is persuasive, or even plausible.” So long as the reasons given are “ ‘(1) neutral, (2) related to the case being tried, (3) clear and reasonably specific, and (4) legitimate,’ ” “ ‘the reason[s] offered will be deemed race neutral.’ ”

Cannon, 2002 UT App 18 at ¶ 9, 41 P.3d 1153 (citations omitted).

¶22 The courts have been instructive in defining and applying each of these factors. For example, in Hidalgo v. Fagen, Inc., the Tenth Circuit was asked to decide whether a defendant’s explanation for a peremptory strike was facially neutral. See 206 F.3d 1013, 1018 (10th Cir.2000). In that case, the defendant struck a Hispanic woman from the venire, explaining that it was because of her youth. See id. The court, looking specifically at the facial validity of the defendant’s explanation, concluded the strike was neutral, holding: “A neutral explanation means an explanation based on something besides the race of the juror.... Unless discriminatory intent is inherent in the justification, the reason offered will be deemed race neutral.” Id. at 1019. Such a rationale is similarly applied to show gender neutrality.

¶ 23 The “legitimate” factor is closely related to the “neutral” factor. As this court has noted, the Supreme Court has provided guidance in determining whether the reason for a peremptory strike is legitimate: “ ‘a “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection.’ ” State v. Merrill, 928 P.2d 401, 404 (Utah Ct.App.1996) (citation omitted). For example, in Merrill, the defendant claimed that the reason the prosecutor gave for his peremptory challenge was not legitimate. See id. The prosecutor had dismissed a potential juror who was Asian. See id. at 402. The reason for the dismissal, the prosecutor explained, was because he feared the potential juror would be biased against law enforcement due to a recent speeding ticket. See id. We concluded that was a legitimate explanation because it “does not deny a potential juror equal protection.” Id. at 404.

¶24 The reason for a peremptory strike must also be related to the case being tried. In State v. Cantu, a prosecutor’s reason for a peremptory strike of a Hispanic potential juror was invalidated in part because it was unrelated to the juror or the case. See. 778 P.2d 517, 519 (Utah 1989). The prosecutor’s proffered reason for the strike was because he was angry with defense counsel. See id. The Utah Supreme Court held that this explanation was desultory, and thus insufficient to fulfill the Batson requirement that peremptory strikes must be based upon grounds reasonably related to the case at bar'. See id.

¶25 Finally, the reason for a peremptory strike must be clear and reasonably specific. This factor prevents a prosecutor from merely denying the existence of a discriminatory motive or by generally proclaiming good faith, ensuring that equal protection will not become a “vain and illusory requirement.” Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 1724, 90 L.Ed.2d 69 (1986). Rather, it requires the prosecutor “to articulate a neutral explanation related to the particular case, giving a clear, concise and reasonably specific legitimate explanation for excusing those jurors.” New Mexico v. Aragon, 109 N.M. 197, 784 P.2d 16, 21 (1989). There must also be support in the record for such an explanation. See State v. Macial, 854 P.2d 543, 547 (Utah Ct.App. 1993). For example, in Aragon, the prosecutor struck two prospective jurors who were black because they were possibly related to the defendant. See 784 P.2d at 17. The New Mexico Supreme Court noted that nothing in the record showed the prosecutor had any basis for his opinion that the potential jurors might be untrustworthy, other than his own statement of their possible blood relationship. See id. As a result, the court ruled that “[t]he prosecutor’s explanation was hardly ‘a clear, concise, and reasonably specific explanation for excusing those jurors.’ ” Id. at 21 (citation omitted). Accordingly, the court reversed the trial court. See id.

IV. Yaldez’s Batson Challenge

¶ 26 With that analytical framework in mind, we approach Valdez’s step two challenge. Valdez’s argument that the State’s peremptory challenges violated equal protection is persuasive. Specifically, Valdez argues that the State’s reason for using peremptory challenges to strike only women was not reasonably clear or specific. As in Ara-gon, there is little in the record to demonstrate that the State had any basis for its strikes of these four women. For example, as Valdez aptly notes, the State explains that Jurors Morely and Valerio were “overly compassionate” and Gonzalez was “matter of fact” without providing any clear basis for its opinions other than these cursory descriptions. Further, the prosecutor stated variously “I felt her responses lined up in a way that would make her not a helpful witness for the State.... [H]er responses to me seemed matter of fact and I felt like her responses would not make her a good juror for the State.... I don’t recall what it was [about Ms. Thornton], there was something that I immediately decided that I would make her one of my strikes.” These explanations all fall short of being reasonably clear and specific. It is not enough for the prosecutor simply to describe a nondiscriminatory motive without tying it to something specific about the juror herself. See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (holding prosecutor’s explanation that he struck juror because “I just got a feeling about him” “obviously [fell] short” of being reasonably clear and specific). .

¶ 27 If the prosecutor cites demean- or as a reason for striking a juror, courts should apply “particularly careful scrutiny” because “such after-the-fact rationalizations are susceptible to abuse.” Brown v. Kelly, 973 F.2d 116, 121 (2nd Cir.1992). Although not required, prosecutors “would be well advised ... to make contemporaneous notes as to the specific behavior on the prospective juror’s part that renders such person unsuitable for service on a particular case.” Id. In this case, however, the State was hardly clear, concise, or reasonably specific in its explanations. It offered nothing more than vague and generic descriptions of the jurors that anyone would concede are nondiscriminatory, but which do not appear to have anything to do with the jurors themselves. This is not sufficient to satisfy our equal protection jurisprudence, and is sufficient in itself to reverse the trial court’s treatment of the State’s peremptory strike.

¶ 28 In addition to not being reasonably clear and specific, some of the State’s explanations were unrelated to the case at hand. For example, the State struck Thornton because she had been on a jury that had found a defendant, who had been charged with murder,, guilty of manslaughter. As Valdez correctly notes, other than being a criminal offense, manslaughter has nothing to do with the pi’esent case. Valdez was not charged with manslaughter or any other lesser-included offenses. Furthermore, Thornton’s participation on a jury that convicted another defendant of manslaughter does not undermine her ability to be impartial in the present case.

¶29 The State argues in its brief that these explanations were not inherently discriminatory because nothing in the explanations themselves pointed directly to the sorts of invidious stereotypes the law condemns. While this may be true, the test for determining the legitimacy and facial neutrality of an explanation in the Batson context is the list of factors outlined in Cannon, see 2002 UT App 18,¶ 9, 41 P.3d 1153, and analyzed above. Unless the neutral explanation offered by the State may, on its face, be tied to the issues, evidence, and context of the ease at hand, the explanation will not be considered legitimate. Rather, we will consider the explanation mere pretext as a matter of law, unrelated as it is to the reality of the proceedings before the district court.

¶ 30 Were we to hold otherwise, we would sanction the use of fanciful and spurious explanations for even the most sinister discriminatory motives. Without the requirement that the explanation at least have, on its face, a grounding in the context of the case itself, racist or sexist motives could more easily be masked by unrelated but inherently nondiscriminatory explanations. In such a case, the district court would have no need to proceed to step three to plumb the depths of the prosecutor’s motivations because the State had offered nothing concrete by way of explanation. See State v. Chatwin, 2002 UT App 363,¶ 20, 58 P.3d 867 (holding State did not offer legitimate step two explanation, obviating the need to proceed to step three). This is just such a case. The prosecutor’s explanations had no clear and specific basis in the case at hand. Thus, we hold it was an abuse of the district court’s discretion to determine the explanations were nondiscriminatory and to proceed to step three.

CONCLUSION

¶ 31 The State’s peremptory strikes should have been invalidated by the trial court because the State failed to offer facially legitimate, nondiscriminatory explanations. The explanations were neither clear and specific nor related to the case being tried. Accordingly, we reverse and remand for a new trial.

¶ 32 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . This issue would best be addressed by an amendment to the Utah Rules of Criminal Procedure. This opinion should not be read as a comment, positive or negative, on the appropriateness of the rule the State proposes.

      . Because Valdez’s step two challenge constitutes a sufficient basis to reverse, we do not reach his alternate step three argument. Further, we do not reach Valdez’s arguments regarding the admissibility of Battered Woman Syndrome evidence within the context of this case. See State v. Heaton, 958 P.2d 911, 919 (Utah 1998) (holding where one argument is dispositive of the appeal, we need not address the defendant's remaining arguments).


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    2004 UT App 211
    STATE of Utah, Plaintiff and Appellee, v. Luis A. GUZMAN, Defendant and Appellant.
    No. 20030019-CA.
    Court of Appeals of Utah.
    June 24, 2004.

      Heather Johnson, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BENCH, Associate P.J., ORME and THORNE, Jr., JJ.
   OPINION

ORME, Judge:

¶ 1 Defendant appeals his conviction for aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (2003), and aggravated kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (2003), growing out of a home invasion robbery. Defendant primarily challenges the trial court’s decision to let the victim testify how certain she was of her several identifications of Defendant. We affirm.

BACKGROUND

¶2 On April 18, 2001, the victim in this case, a young woman, was driving home from work to her South Salt Lake townhouse, where she lived with three roommates. Meanwhile, Defendant and six others, including Fernando Fernandez and a woman named Miguella, met at a park where they ingested cocaine and methamphetamine. The group decided they were going to raid a “known” drug house for cocaine and money. Defendant and Miguella were to gain entry first and then telephone the others to follow. The group parked down the street from the targeted house, and Defendant and Miguella walked toward the house while the others remained in the van.

¶ 3 As the victim approached her townhouse and turned into the driveway, she saw a man and woman, who were later identified as Defendant and Miguella, walking along the road toward her house. The victim pulled into her garage, shut off the engine of her car, and gathered her belongings. Defendant and Miguella entered the victim’s garage, and Defendant knocked on the driver’s side window of her ear. The victim rolled down her window, and Defendant demanded money and drugs, showed her a handgun, and told her to shut the garage door. Defendant opened the car door, showed the victim that the gun was loaded, and put the gun to her head as he ordered her out of the car.

¶ 4 After the victim exited the car, Defendant took her cell phone and cigarettes, then pushed her onto the garage floor, and Migu-ella tied her hands and feet together while Defendant continued to point the gun at her and demand money and drugs. The victim offered the six dollars in her wallet and tried to explain that only she and her roommates lived there, and they had no money or drugs.

¶ 5 Unpersuaded, Defendant went inside the house, leaving Miguella in the garage with the victim. Soon thereafter, the victim heard several other people moving around inside her house. Three of those individuals, one of whom had a “clown-jester-type” tattoo and was later identified as Fernandez, came to the doorway of the garage and peeked at the victim. After fifteen to twenty minutes of rummaging through the house, the group determined they were in the wrong house. They finally departed, taking some jewelry and an old cell phone. They left the victim tied up in the garage, and she eventually worked herself free, went inside to the kitchen, and vomited.

¶ 6 The victim reported the incident to the police, and an officer arrived, gathered some information, and enlisted the services of a crime scene technician. On May 23, 2001, more than a month after the incident, Detective Jewkes met with the victim and showed her a group of photographs. She promptly identified Defendant as the gunman. At trial, the victim testified that at the time of the identification she rated her confidence in her identification as a “10” on a scale of one to ten, and she stated that “[she] will never forget his face.” She further testified that the man in the photo she picked had one eye that was “just kind of deformed,” like the gunman’s, and that “[everything about his face” was consistent with her memory of the gunman. Additionally at trial, Jewkes testified that at the time of the identification, the victim stated she was “100 percent positive” of her identification.

¶ 7 From a second photo array, the victim identified another man, Fernandez, as one of the robbers who had stood in the doorway of the garage. At trial, the victim testified that at the time of the photo lineup, she rated her confidence in this identification as a “six or seven,” because she “didn’t get to see his face very long,” but added that she “will never forget [his] tattoo.” Eight months later, the victim went to an in-person lineup at the police station, and she again identified Defendant as the gunman. At trial, she testified that she was “100 percent” certain of this identification and was able to identify Defendant within “[s]eeonds, as soon as he walked out.”

¶ 8 Both Fernandez and Defendant were originally charged with aggravated robbery and aggravated kidnaping, with weapons and “gang” enhancements. Fernandez entered into a plea agreement, and pursuant to the agreement, he pled guilty to one count of simple robbery in exchange for his testimony against Defendant.'

¶ 9 Before trial, Defendant filed a motion in limine seeking to preclude testimony about the victim’s level of confidence in her two pretrial identifications of Defendant. The trial court heard oral arguments on this issue and denied the motion, concluding that the witness’s confidence in her identifications was a factor that the jury could legitimately consider in evaluating the evidence.

¶ 10 At the close of trial, the court refused to give a jury instruction, requested by Defendant, concerning the jury’s evaluation of Fernandez’s testimony. The trial court determined that the instruction would direct the jury to pay special attention to a particular witness and, therefore, use of the jury instruction would be improper. However, the court did include an instruction regarding the jury’s role in evaluating and weighing the credibility of all the witnesses. After due deliberation, the jury returned a verdict of guilty on both the aggravated kidnaping and the aggravated robbery charges. It also found that Defendant used a firearm and acted in concert with two or more persons, subjecting him to enhanced penalties under Utah Code Ann. §§ 76-3-203 and -203.1 (Supp.2000). Defendant was subsequently sentenced to consecutive terms of six years to life imprisonment for aggravated robbery and fifteen years to life for aggravated kid-naping. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Defendant argues that it was error to allow the victim and Detective Jewkes to testify as to the certainty of the victim’s identifications of Defendant. 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. Hubbard, 2002 UT 45,¶ 22, 48 P.3d 953. Thus, our review employs “a correctness standard, which incorporates a clearly erroneous standard for the review of subsidiary factual determinations.” State v. Ramirez, 817 P.2d 774, 782 n. 3 (Utah 1991). This standard of review applies to both federal and state due process analysis. See Hubbard, 2002 UT 45 at ¶ 22, 48 P.3d 953.

¶ 12 Defendant also contends that the prejudicial effect of allowing the jury to hear the certainty testimony substantially outweighs its probative value. See Utah R. Evid. 403. “[Bjalancing of the probative value against any prejudicial effect must necessarily rest within the sound discretion of the trial court; and the determination [it] makes thereon should not be disturbed on appeal unless there was clear abuse of discretion.” State v. Gibson, 565 P.2d 783, 786-87 (Utah 1977) (footnote omitted).

¶ 13 Finally, Defendant argues that Utah and federal case law support the inclusion of a cautionary jury instruction regarding an accomplice’s credibility when he testifies as part of a plea bargain. A trial court’s giving of a special cautionary instruction relating to corroborated accomplice testimony “is entirely discretionary with the [trial] court,[] and we will reverse only when it has abused that discretion.” State v. Pierce, 722 P.2d 780, 782 (Utah 1986).

ANALYSIS

A. Certainty Testimony

¶ 14 On appeal, Defendant’s primary argument is that the trial court erred in denying his motion to preclude any reference to the victim’s level of confidence in her pretrial identifications of Defendant as the gunman. Defendant argues that there is no correlation between how certain a person feels about her identification and the actual accuracy of the identification. Therefore, he argues, certainty testimony should not be admitted given its inherent unreliability. Defendant contends that the admission of such testimony at trial constituted prejudicial error, violated his due process rights under the Utah and United States Constitutions, and also violated Utah Rule of Evidence 403.

¶ 15 In considering Defendant’s argument, we must keep in mind the separate and distinct roles that the judge and the jury play in determining the reliability of eyewitness testimony under the due process clauses of the United States and Utah Constitutions. “The judge, ‘as arbiter of the constitutional admissibility of an identification,’ is required to scrutinize proffered evidence for constitutional defects.” State v. Nelson, 950 P.2d 940, 943 (Utah Ct.App.1997) (quoting State v. Ramirez, 817 P.2d 774, 778 (Utah 1991)). The judge “must preliminarily determine whether the identification is sufficiently reliable that its admission and consideration by the jury will not deny the defendant due process.” Id. Then, “if reliable and therefore admissible, the jury determines the credibility of that identification.” Id.

¶ 16 “We apply separate analyses when determining the reliability of eyewitness identifications under the Utah and Federal Constitutions.” State v. Mincy, 838 P.2d 648, 657 (Utah Ct.App.), cert denied, 843 P.2d 1042 (Utah 1992).

- 1. Federal Due Process

¶ 17 We begin with an analysis of whether Defendant’s federal due process rights were violated. Defendant argues that under federal due process analysis, the admission of the evidence was in error because it “was unreliable and it undermined the jury’s objective consideration of the eyewitness identification evidence.” Under the federal constitutional standard, “the trial court ... must preliminarily determine whether the identification is sufficiently reliable that its admission and consideration by the jury will not deny the defendant due process.” Ramirez, 817 P.2d at 779. In determining reliability, “the court is to consider ‘all the circumstances’ surrounding the identification and appraise those circumstances in light of five factors which were identified by the United States Supreme Court in Biggers as important to a determination of the reliability of an identification.” Id. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). As set forth in Biggers,

the factors to be considered in evaluating the likelihood of misidentification include 1) the opportunity of the witness to view the criminal at the time of the crime, 2) the witnesses] degree of attention, 3) the accuracy of the witnesses] prior description of the criminal, 4) the level of certainty demonstrated by the witness at the confrontation, and 5) the length of time between the crime and the confrontation.

409 U.S. at 199, 93 S.Ct. at 382 (emphasis and numbering added). Defendant’s federal due process argument clearly fails because Biggers specifically recognizes “the level of certainty demonstrated by the witness at the confrontation” as a valid factor for a court to consider in determining the reliability of an identification. Id.

2. State Due Process

¶ 18 “Utah’s due process analysis pertaining to the constitutional reliability of eyewitness testimony is different than, but ‘as stringent as, if not more stringent than, the federal analysis.’ ” State v. Nelson, 950 P.2d 940, 942 (Utah Ct.App.1997) (quoting Ramirez, 817 P.2d at 784). Our Supreme Court has criticized and “specifically rejected the ‘level of certainty demonstrated by the witness at the confrontation’ as a factor to be used in determining the constitutional reliability of an identification.” State v. Hoffhine, 2001 UT 4,¶ 16, 20 P.3d 265 (quoting, without attribution, Biggers, 409 U.S. at 199, 93 S.Ct. at 382). In State v. Long, 721 P.2d 483 (Utah 1986), the Utah Supreme Court itemized “areas of concern” that should be addressed in determining reliability under Utah due process analysis:

1) the opportunity of the witness to view the actor during the event; 2) the witness’s degree of attention to the actor at the time of the event; 3) the witness’s capacity to observe the event, including his or her physical and mental acuity; 4) whether the witness’s identification was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion; and 5) the nature of the event being observed and the likelihood that the witness would perceive, remember and relate it correctly.

Id. at 493. “If the court finds the identification reliable in light of these five factors, then it is admissible under the Due Process Clause of the Utah Constitution.” Nelson, 950 P.2d at 943.

¶ 19 Defendant argues that because the level of confidence in an identification is not included as a factor to be considered by the court, the testimony regarding the victim’s confidence in her identifications must not be admitted at trial at all. We believe Defendant’s argument blurs the distinction between what the trial court must consider in determining whether the eyewitness identification evidence is sufficiently reliable to be admitted and what the jury may consider in weighing the credibility of such evidence if it is properly admitted. Defendant relies on several Utah cases to support his contentions. Although we disagree with Defendant’s argument that these cases support his conclusion, we do think it is relevant to discuss each of these cases because they illuminate the path Utah case law has taken on this issue.

¶ 20 Defendant cites State v. Long as a case that recognizes the “poor relationship between witness confidence and accuracy of identification.” 721 P.2d at 490. In Long, the Utah Supreme Court was “presented with the question of the reliability of eyewitness identifications in the context of a claim that an instruction cautioning the jury about the fallibility of such identifications was required where the accuracy of an identification was at issue.” Ramirez, 817 P.2d at 779. To answer this question, the Court examined the numerous “empirical studies documenting the unreliability of eyewitness identification,” Long, 721 P.2d at 488, recognized the lack of awareness among juries of the inherent unreliability of this type of testimony, and concluded that “at a minimum, additional judicial guidance to the jury in evaluating such testimony is warranted ... whenever eyewitness identification is a central issue in a case.” Id. at 492.

¶ 21 The Court in Long “laid the foundation for a' separate Utah constitutional due process analysis of the reliability of eyewitness identifications.” Ramirez, 817 P.2d at 779. The Court concluded that failure to give a cautionary instruction, when eyewitness identification is a crucial issue, would “ ‘deny the defendant due process of law under article I, section 7 of the Utah Constitution.’ ” Id. at 780 (quoting State v. Long, 721 P.2d at 492) (emphasis omitted). This is significant because, prior to Long, the Court had “previously said that whether such instructions must be given in a particular case is a matter left largely to the discretion of the trial court.” Long, 721 P.2d at 487. See, e.g., State v. Tucker, 709 P.2d 313, 316 (Utah 1985) (“[T]he question of whether such an instruction is required in a particular case has been left to the discretion of the trial courts.”).

V 22 Long recognized “the weaknesses inherent in eyewitness identification,” 721 P.2d at 490, and determined that this potential problem can be ameliorated by mandating the trial court to include an appropriate jury instruction. The Long court offered a cautionary jury instruction that, “[i]f used, ... would certainly satisfy [the Court’s] expressed concerns about the need for cautionary instructions.” Id. at 494-95. The Court did not conclude that certainty testimony must be wholly excluded from trial. Nor did the Court suggest the five “areas of concern” it identified were an exhaustive list of eyewitness identification criteria, as those factors were characterized as “example[s]” of the difficulty such testimony presents, and the jury instruction the Court approved by no means mirrored the “areas of concern.” Id. at 493.

¶ 23 Next, Defendant cites to State v. Ramirez, 817 P.2d 774 (Utah 1991), as support for his argument. In Ramirez, the Utah Supreme Court recognized that the “[p]oten-tial for role confusion and for erosion of constitutional guarantees inheres in this overlap of responsibility of judge and jury to determine the same issue.” Id. at 778. The Court stated that “courts cannot properly sidestep them responsibility to perform the required constitutional admissibility analysis,” id., because “[t]he danger of such an abdication of responsibility is particularly serious where the admissibility of an eyewitness identification is concerned.” Id. at 779.

¶ 24 The Court compared the factors identified in Long to those that originated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Ramirez distinguished “[t]he analytical model to be followed under article I, section 7 of the Utah Constitution,” 817 P.2d at 781, from the Biggers factors and concluded that “Long teaches that we do not agree entirely with the Biggers listing of the relevant criteria for determining the reliability of eyewitness identifications.” Id. at 780. “In Biggers, the [United States Supreme] Court listed as a factor ‘the level of certainty demonstrated by the witness at the confrontation,’ ” id. at 781 (quoting Biggers, 409 U.S. at 199, 93 S.Ct. at 382), while “[i]n Long, we criticized this factor and essentially rejected it as an indicator of an identification’s reliability.” Id. See Long, 721 P.2d at 490. The Court in Ramirez concluded that “[t]he ultimate question to be determined is whether, under the totality of the circumstances, the identification was rehable.” 817 P.2d at 781.

¶ 25 In Ramirez, unlike in Long, see supra note 6, the court was primarily focused on the trial court’s role in deciding to admit such testimony rather than the jury’s role in considering it if admitted. See Ramirez, 817 P.2d at 778-80. However, despite its criticism of including certainty in the context of passing on the admissibility of such evidence under state due process analysis, the Court did not state that certainty testimony was so unreliable that it must be excluded from trial altogether. In other words, the trial court’s mandated appraisal of reliability for purposes of admissibility does not include the witness’s self-described certainty, but it does not follow that the jury should be prevented from knowing the witness’s own estimation of her certainty.

¶ 26 Defendant next cites to State v. Hoffhine, 2001 UT 4, 20 P.3d 265, in which a witness identified the defendant prior to trial and, at the time, rated his level of certainty in the identification as a “ ‘nine and a half ” on a ten point scale. Id. at ¶ 7. At the preliminary hearing, the witness testified that although “he had positively identified defendant as the robber at the showup identification on the night of the robbery,” he later became less certain of his confidence in the identification. Id. at ¶ 9. The trial court subsequently granted the defendant’s motion to suppress this eyewitness identification testimony, but ruled that the witness was “allowed to testify about the facts and circumstances surrounding the showup identification.” Id. at ¶ 10. “At trial, [the witness] testified that he was ‘pretty positive’ that defendant was the robber at the time of the showup, telling [the officer] that he was ‘a nine and a half on a ten point scale, in terms of the degree of his certainty.” Id. at ¶ 18 n. 3 (emphasis omitted).

¶ 27 On appeal, the defendant argued that the trial court erred in “admitting into evidence the underlying facts of the showup identification,” id. at ¶ 12, and the Utah Supreme Court agreed that it was erroneous “to admit evidence of the showup procedure after granting the motion to suppress and concluding that the showup ... did not satisfy the Ramirez factors for constitutional reliability.” Id. at ¶ 16. The Court ruled that “allowing the victim to testify about the underlying facts of the showup was erroneous,” id. at ¶ 17, given the trial court’s previous ruling on the evidence’s admissibility. Nevertheless, the Supreme Court concluded this inconsistency was harmless error because its own application of the Long factors resulted in the determination that the evidence “met the threshold test for constitutional reliability,” and therefore, “all evidence of the show-up could [properly] have been admitted.” Id. at ¶ 19.

¶ 28 In its application of the Long factors, the Court characterized the witness’s testimony that “he was ‘pretty positive’ that defendant was the robber at the time of the showup,” and that the witness was “ ‘a nine and a half on a ten point scale, in terms of the degree of his certainty,” id. at ¶ 18 n. 3 (emphasis omitted), as evidence that the “identification was made spontaneously,” “remained consistent,” and was not “the product of suggestion.” Id. at ¶ 18. Although the Court did not specifically state that the witness’s certainty testimony was properly admitted as such, it included the evidence in its application of the Long factors in concluding that “the showup identification could have been admitted in its entirety.” Id. at ¶ 17 (emphasis added).

¶ 29 Although Defendant only briefly mentioned State v. Hubbard, 2002 UT 45, 48 P.3d 953, as supporting his argument, that case is particularly insightful and merits a full discussion in resolving the issue before us. In Hubbard, the Utah Supreme Court stated that “[w]hile these [Long] 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.” Hubbard, 2002 UT 45 at ¶ 27, 48 P.3d 953. The Court applied the Long factors to the facts of the case and “conclude[d] that the pretrial photo identification was sufficiently reliable such that defendant’s due process rights were not violated by permitting [i.e., admitting] the identification testimony of [the two eyewitnesses].” Id. at ¶ 28.

¶ 30 In the Court’s examination of the Long factor dealing with “whether the witnesses’] identification was made spontaneously and remained consistent thereafter,” State v. Long, 721 P.2d 483, 493 (Utah 1986), the Court included the witnesses’ certainty testimony as being illustrative of its reliability. In its analysis, the Court noted: “When asked to describe his certainty to [the officer, the first witness] said, ‘I’m positive.’ [The second witness] immediately identified defendant and indicated her level of certainty as seven on the ten point scale.” Hubbard, 2002 UT 45 at ¶ 28, 48 P.3d 953. The Court concluded that the “witness identifications were not so unreliable as to warrant exclusion of the identification testimony from consideration by the jury.” Id. at ¶30. The Court’s analysis in Hubbard suggests that not only can certainty testimony be considered by a jury in evaluating eyewitness identification testimony otherwise properly admitted, but it can be considered by the trial court as it considers admissibility if it assists the court in determining whether the eyewitness identification was sufficiently reliable. Thus, the trial court, in its gatekeeping function, determines “whether the proffered evidence is sufficiently reliable such that it can be presented to the jury for their deliberation,” id. at ¶ 30, and “it is the role of the jury to decide how much weight to give the testimony of particular witnesses.” Id. at ¶ 15. We agree that the weight to be given certainty evidence in identification eases is best considered by the jury in determining the credibility of a witness’s testimony. “Courts need not, nor should they, step into the province of the jury and decide the ultimate matter of identification for the jurors.” Id. at ¶ 30.

¶ 31 We reject Defendant’s argument that certainty testimony may not be admitted at trial at all. The eases Defendant cites, far from supporting his argument that certainty testimony must not be admitted because of its inherent unreliability, actually establish these principles: (1) certainty testimony is not a separate admissibility factor under Long and Ramirez; (2) certainty testimony may nonetheless be relevant in the trial court’s admissibility assessment, insofar as it sheds light on the spontaneity/consistency admissibility factor; and (3) certainty testimony is, in any event, relevant once the eyewitness identification is deemed admissible, insofar as it assists the jury’s evaluation of the credibility of the identification testimony and the weight to be accorded it.

3. Rule 403

¶ 32 Defendant’s last argument regarding certainty testimony is that its admission violated rule 403 of the Utah Rules of Evidence. Defendant argues that the probative value of the victim’s certainty testimony is substantially outweighed by its prejudicial effect on the jury. Rule 403 states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Utah R. Evid. 403. “When applying rule 403, it is necessary to determine first whether the proffered evidence has an unusual propensity to unfairly prejudice, inflame, or mislead the jury.” State v. Dunn, 850 P.2d 1201, 1221 (Utah 1993). “If not, we indulge a presumption in favor of admissibility.” Id. at 1221-22. We only overturn the court’s determination if it is “ ‘beyond the limits of reasonability’ ” and, even if it is, if admission of the evidence was prejudicial. Id. at 1221 (quoting State v. Hamilton, 827 P.2d 232, 240 (Utah 1992)).

¶ 33 Defendant fails to cite any Utah cases supporting his argument that, under rule 403, certainty testimony “has an unusual propensity to unfairly prejudice, inflame, or mislead the jury,” id., nor has he otherwise persuaded us that such is the case. “Rule 403 is not to be used to allow the trial judge to substitute his assessment of the credibility of testimony for that of the jury by excluding testimony simply because he does not find it credible.” State v. Branch, 743 P.2d 1187, 1190 (Utah 1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1597, 99 L.Ed.2d 911 (1988). “The trial judge was correct in allowing the jury to assess the credibility of the eyewitness” rather than to make that determination on his own. Id. We conclude that the trial court’s decision to permit the certainty testimony in the face of a Rule 403 challenge was well within the limits of reasonability.

B. Cautionary Jury Instruction

¶ 34 Defendant also argues on appeal that the trial court erred in refusing to give the cautionary jury instruction Defendant submitted regarding the testimony of Fernandez, who testified at trial against Defendant as part of a plea agreement. Defendant argues that the cautionary instruction would have advised the jury to carefully evaluate Fernandez’s testimony, in light of his plea agreement and his status as an accomplice, without implying that his testimony was unbelievable. Defendant argues that not only is the use of an instruction, such as the one he submitted, supported by federal and Utah case law and the rules of evidence but, moreover, it is necessary to enlighten the jury about Fernandez’s motivation to lie and his untrustworthiness.

¶ 35 According to Utah Code Ann. § 77-17-7(2) (2003), a cautionary instruction may be given if the accomplice testimony is “uncorroborated” and shall be given if the trial judge finds the accomplice testimony “self-contradictory, uncertain or improbable.” See supra note 5 & accompanying text. See also State v. Dunn, 850 P.2d 1201, 1226 (Utah 1993) (stating that defendant was not prejudiced by his attorney’s failure to request an accomplice instruction given the substantial evidence supporting his conviction).

¶ 36 While it is true that Fernandez’s story and, subsequently, his testimony at trial varied from time to time, the testimony of the victim was, for the most part, consistent with and served to corroborate Fernandez’s testimony. Such corroboration means section 77-17-7 did not apply, by its own terms, although even in the case of corroborated accomplice testimony, giving such an instruction is discretionary. See State v. Pierce, 722 P.2d 780, 782 (Utah 1986) (per curiam). Where the testimony is corroborated, we would of course be especially reluctant to find an abuse of discretion in the failure to give such an instruction, and we see no abuse of discretion here. ■

¶ 37 In this case, such an instruction was simply not necessary to prompt the jury to question Fernandez’s veracity. Fernandez himself admitted in testimony before the jury that he had lied to the police on numerous occasions' about his involvement in the robbery and that he entered into a plea agreement with the State, in which he was allowed to plead guilty to reduced charges in exchange for his testimony at trial against Defendant. This testimony alerted the jury to Fernandez’s possible motive for testifying with less than total candor. Additionally, the jury was informed that Fernandez had previously been convicted of a felony and had served time in prison on an unrelated conviction.

¶ 38 The jury was also instructed generally about its obligations in judging the credibility of the witnesses and the weight of the evidence. Specifically, the court instructed the jury that it was allowed to take into consideration a witness’s bias, interests, motives to testify, contradictions of themselves, candor, or any other fact or circumstance which the jurors believed had an impact on the witness’s truthfulness and accuracy. ‘We have held that it ‘is not error to refuse a proposed instruction if the point is properly covered in the other instructions.’ ” State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993) (quoting State v. Hamilton, 827 P.2d 232, 238 (Utah 1992)). We conclude that between Fernandez’s own admissions and the general instruction given on evaluating witness testimony, the jury was adequately apprised that Fernandez’s testimony was to be taken with a grain of salt. We see no error in the trial court’s refusal to give the additional instruction requested by Defendant.

CONCLUSION

¶ 39 Defendant’s federal and state due process rights were not violated by the admission of the victim’s and Detective Jewkes’s testimony regarding the victim’s confidence in her pretrial identifications of Defendant as the gunman. Nor did the trial court exceed the bounds of sound discretion in determining that the certainty testimony’s potential for unfair prejudice did not outweigh its probative value. Lastly, we conclude that the jury instruction given on weighing and judging the credibility of all witnesses was adequate to advise the jury how to evaluate Fernandez’s testimony, especially given that the need for caution was evident from his own testimony. Therefore, the trial court did not abuse its discretion in refusing to give an additional cautionary jury instruction.

¶ 40 Affirmed.

¶ 41 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . "As a convenience to the reader, and because the provisions in effect at the relevant times do not differ materially from the statutory provisions currently in effect, we cite to the most recent statutory codifications throughout this opinion, unless otherwise noted.” State v. Davis, 965 P.2d 525, 527 n. 1 (Utah Ct.App.1998), cert. denied, 982 P.2d 88 (Utah 1999).

      . The jury instruction requested by Defendant reads as follows:
      You are hereby instructed that the testimony of an informer who provides evidence against a defendant must be examined and weighed by you with greater care than the testimony of an ordinary witness. Whether the informer’s testimony has been affected by interest or prejudice against the defendant is for you to determine. In making that determination, you should consider (1) whether the witness has received anything (including pay, immunity from prosecution, leniency in prosecution, personal advantage, or vindication) in exchange for testimony; (2) any other case in which the informant testified or offered statements against an individual but was not called, and whether the statements were admitted in that case, and whether the informant received any deal, promise, inducement or benefit in exchange for that testimony; (3) whether the-informant has ever changed his or her testimony; (4) the criminal history of the informant; (5) any other evidence relevant to the informer’s credibility.

      . The jury instruction given reads as follows:
      You are the exclusive judges of the credibility of the witnesses and the weight of the evidence. In judging the credibility of the witnesses and the weight of their testimony, you can take into consideration their bias, if any is shown, their interest, if any, in the result of the lawsuit, either as parties or otherwise, or any probable motive or lack thereof to testify as they do, if any is shown. You may consider whether any witness contradicted himself, the witnesses’ deportment upon the witness stand, the reasonableness or lack thereof of their statements, their apparent frankness or candor or the want of it, their opportunity to know, their ability to understand, their capacity to remember and any other fact or circumstance which you believe may have a bearing on the truthfulness or accuracy of the statements of witnesses, and determine therefrom, in accordance with your honest convictions, what weight and credibility you should give to the testimony of each witness, measured by reason and common sense and the rules set forth in these instructions.

      . In April 2001, when the crimes were committed, the version of the statute in effect was the 2000 version. Subsequent amendments have no bearing on this case, although it should be noted that the 2003 amendment to section 76-3-203 "transferred the language dealing with dangerous weapons to a new section, Section 76-3-203.8.” Utah Code Ann. § 76-3-203 amendment note (2003).

      . Even giving such an instruction concerning unconoborated accomplice testimony is discretionary. See Utah Code Ann. § 77-17-7(2) (2003) ("In the discretion of the court, an instruction to the jury may be given to the effect that such uncorroborated testimony should be viewed with caution[.]”) (emphasis added). In contrast, "such an instruction shall be given if the trial judge finds the testimony of the accomplice to be self contradictory, uncertain or improbable.” Id. (emphasis added).

      . Although the holding in State v. Long, 721 P.2d 483 (Utah 1986), is relevant, it primarily focuses on the jury’s role in evaluating and weighing the credibility of the eyewitness testimony and not the judge’s role of determining the constitutional reliability, and thus the admissibility, of the evidence in the first place. Subsequent cases have more particularly focused on the judge’s role in admitting such evidence.

      . It should be noted that the factors the Long court suggests be included in the jury instruction are the same factors the trial court considers in determining the reliability and admissibility of the identifications. The Long factors are applicable to both the judge’s role in admitting the identification testimony and the jury's role in evaluating such testimony.

      .The approved jury instruction can be found in footnote 8 of the Long opinion. See 721 P.2d at 494-95 n. 8. The Long instruction discusses the importance of identifying the defendant as the person who committed the crime and the prosecution's role in proving beyond a reasonable doubt that the defendant was the person who committed the crime. See id. Additionally, it states that multiple factors can affect the accuracy of a witness’s identification of the defendant as the person who committed the crime. See id. The instruction includes most of the Long factors, as well as additional, more specific, factors to be considered when examining the evidence. See id.

      . To support his argument regarding the inherent deficiencies of certainly testimony, Defendant also cites to Utah cases that he contends prevented him from presenting expert testimony at trial to educate the jury about these deficiencies. See, e.g., State v. Butterfield, 2001 UT 59,¶¶ 41-44, 27 P.3d 1133 (noting that the requirement that the trial court give a cautionary jury instruction 'has not extended ... to include additional expert testimony concerning eyewitness identification’ ”) (quoting State v. Kinsey, 797 P.2d 424, 427 (Utah Ct.App.), cert. denied, 800 P.2d 1105 (Utah 1990)). Defendant alleges that this limitation on expert testimony further emphasizes the need to exclude certainty testimony because the jury has no other means of learning of its unreliability. We disagree with the-premise. We think that in appropriate cases expert testimony could be allowed to advise a jury of the potential unreliability of certainty testimony. See, e.g., State v. Hubbard, 2002 UT 45,¶ 14, 48 P.3d 953 ("We have not adopted a per se rule of inadmissibility of expert testimony regarding eyewitness identification."). In this case, however, Defendant did not seek the admission of expert testimony regarding the confidence/accuracy correlation, and we conclude that the cautionary jury instruction given, which was modeled after the example in Long, was adequate to advise the jury of the problems with eyewitness identification testimony.

      . In ruling on Defendant's motion in limine, the trial court stated that "I think the jury would want to know how confident the witness was in their identification. They may choose to believe it. At least they are entitled to know how confident the witness is.” We agree with the trial court — and so, surely, would Defendant if the thrust of the witness’s testimony was that she was not very certain of her identification of Defendant or if she characterized the level of her certainty as only being a two or three on a scale of one to ten.

      . As we have concluded that none of the claimed errors were errors in actuality, it follows that Defendant’s cumulative error argument is also unavailing.


author: STEWART, Judge.

text:
    STATE of Alaska, Appellant, v. Brian SIMPSON, Appellee.
    No. A-8582.
    Court of Appeals of Alaska.
    July 23, 2004.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellant.
    Quinlan Steiner, .Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

In State v. Simpson, 53 P.3d 165 (Alaska App.2002), we reversed the superior court’s ruling that two 1999 Montana convictions for “driving under the influence” did not qualify as prior convictions for purposes of AS 28.35.030(n), felony driving while intoxicated. We decided that the elements of Montana’s “driving under the influence” charge were “similar” to the elements of AS 28.35.030. Accordingly, we reinstated the indictment.

This case has returned to us because the superior court again dismissed Simpson’s indictment. The superior court ruled that due process was violated by charging Simpson with felony driving while intoxicated because Simpson’s Montana convictions arose from non-jury trials at which he was tried in absentia.

The record shows that Simpson was represented by counsel in both of his Montana cases. The Montana court had personally served Simpson with his trial notices and informed him that he would be tried in ab-sentia and without a jury if he did not appear for the trials. (Article 2, section 26 of the Montana Constitution provides that upon “default of appearance ..., all cases may be tried without a jury or before fewer than the number of jurors provided by law.”) On the day set for each trial, Simpson did not appear, although his counsel was present. The court discharged the jury panel called for each case and proceeded with bench trials. After each trial, the court entered written findings convicting Simpson of driving under the influence.

Simpson argues that these convictions cannot be used as predicate convictions for felony DWI because the Montana convictions are “constitutionally infirm.” Simpson relies on two of our cases, State v. Peel and Pananen v. State.

In Pananen, we addressed a prior out-of-state conviction where the defendant had not been afforded a right to counsel. Pananen was convicted of two counts of driving while intoxicated. The trial court sentenced the defendant as a third offender because he had two prior convictions for that offense in Wisconsin. On appeal, Pananen argued that the first of the two Wisconsin DWI convictions was invalid to enhance his sentence because Wisconsin law did not afford the right to court-appointed counsel in his first case. We concluded “that an uncounseled conviction is simply too unreliable to be depended on for purposes of imposing a sentence of incarceration, whether that sentence is imposed directly or collaterally.” Based on this conclusion, we held that “[bjecause Wisconsin law did not extend to Pananen the right to court-appointed counsel for his first DWI offense, Pananen’s first Wisconsin conviction should not have been relied upon by the district court as a basis for determining the applicable mandatory minimum sentence.”

In Peel, we addressed whether a prior driving while intoxicated conviction, obtained where the defendant had been denied the right to a jury trial, could be used to support a mandatory minimum sentence under Alaska law for driving while intoxicated. Peel had been denied a jury trial because Louisiana law did not permit a jury trial for the offense. The trial court decided that the Louisiana conviction could not be used to trigger a mandatory minimum sentence. The State attempted to distinguish Pananen by arguing that the right to a jury trial was not as critical as the right to counsel. We relied on Baker v. City of Fairbanks and O’Donnell v. Municipality of Anchorage, Alaska decisions that equated the right to counsel and the right to a jury trial, and upheld the trial court’s decision not to use the Louisiana driving while intoxicated conviction to trigger the mandatory minimum sentencing provisions.

Simpson’s case is distinguishable. In both Pananen and Peel, state law categorically denied the defendant the right to a jury trial or court-appointed counsel. But Simpson had counsel in both Montana cases. In addition, the Montana court had informed Simpson of his trial date and had told him that his trial would proceed, without a jury, if he did not appear. Thus, Simpson had the absolute right to a jury trial if he appeared. And in both eases, the Montana judgment reflects that a jury was available for Simpson’s trial.

Although Montana afforded Simpson the right to a jury trial, the Montana Constitution provides that a defendant may be tried without a jury if the defendant does not appeal'. And Montana statutory law provides that if a defendant does not appear for a scheduled trial, the court may “proceed with the trial after finding that the defendant had knowledge of the trial date and is voluntarily absent.” The record shows that Simpson, who was represented by counsel, and who had been warned that the trial would proceed without a jury if he did not appear for trial, failed to appear for both trials. The court found in each ease that he had notice of the trial date, and elected to discharge the jury and proceed with trial, a procedure that was permitted by Montana law and, as the Montana judgments reflect, had been explained to Simpson by the judge. The court implicitly found that Simpson’s failure to appear was voluntary. We conclude that Simpson, by his conduct, waived his right to a jury trial.

Simpson also claims that his Montana convictions cannot be used as predicate convictions for felony DWI because he was tried in absentia. Simpson maintains that a defendant has a fundamental right to be present at all stages of the proceedings and that this right is implemented procedurally in Alaska by Criminal Rule 38. Simpson argues that Criminal Rule 38(b) permits a trial to proceed with the defendant absent only when the defendant was “initially present.”

But Criminal Rule 38(c)(2) allows a defendant, by written consent, to waive his or her appearance at “arraignment, plea, trial, and imposition of sentence” in a misdemeanor case. Even though our criminal rules permit an entire trial to proceed without the defendant’s presence, Simpson argues that his conduct in failing to appear at his Montana trials should not operate as a waiver of his right to be present at trial. But in Gottschalk v. State, the Alaska Supreme Court concluded that a defendant’s conduct in failing to retain counsel in the months that lapsed between his mistrial and retrial constituted a waiver. And waiver by conduct underlies Criminal Rule 38(b)(1), because that rule provides that a trial may continue when a defendant is absent voluntarily after the trial commenced. Thus, we conclude that the Montana court’s reliance on Simpson’s conduct to establish his waiver of his right to be present at trial satisfies Alaska’s concepts of due process such that the convictions obtained in absen-tia can be used as prior convictions for purposes of charging Simpson with felony DWI.

Therefore, we conclude that due process was not violated, and we reinstate Simpson’s indictment. The State can rely on Simpson’s Montana convictions as qualifying convictions to charge felony DWI.

Conclusion

The decision of the superior court is REVERSED. The indictment is reinstated, and this case is remanded to the superior court for further proceedings on the indictment.

      . Simpson, 53 P.3d at 170.

        . See former AS 28.35.030(o)(4) (amended 2002).

      . 843 P.2d 1249 (Alaska App.1992).

      . 711 P.2d 528 (Alaska App.1985).

      . See Pananen, 711 P.2d at 529.'

      . Id.

      . Id. at 530 ("Under Wisconsin law, a first-offense DWI is treated as a civil forfeiture, not as a crime. The offense is not punishable by imprisonment.... Accordingly, an indigent person charged with a first-offense DWI in Wisconsin is not entitled to court-appointed counsel.”).

      . Id. at 532.

      . Id.

      . Peel, 843 P.2d at 1250.

      . Id.

      . 471 P.2d 386 (Alaska 1970).

      . 642 P.2d 835, 836 n. 2 (Alaska App.1982).

      . Peel, 843 P.2d at 1251.

      . Montana Constitution, Article II, § 26; State v. Kempin, 308 Mont. 17, 38 P.3d 859, 863 (2001).

      . Montana Statute 46-16-122(2)(d).

      . 602 P.2d 448 (Alaska 1979), cert. denied, 447 U.S. 920, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980).

      . Id. at 451.