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March 12, 2026 Get Citation Alerts Download PDF Add Note

State v. Horn

Court of Appeals of Utah

• Citations: 2026 UT App 35

• Docket Number: Case No. 20230970-CA

• Opinion

• Authorities (23)

• Cited By (0)

• Summaries (0)

• Similar Cases (17.4K)

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Combined Opinion

2026 UT App 35

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MICHAEL ANTHONY HORN,
Appellant.

Opinion
No. 20230970-CA
Filed March 12, 2026

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 221100099

Lyla Mahmoud, Wendy Brown, Debra M. Nelson,
and Benjamin Miller, Attorneys for Appellant
Derek E. Brown and Natalie M. Edmundson,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1 A Utah Highway Patrol trooper (Trooper 1) attempted to
pull over a car matching the description of a vehicle reported to
have been driving dangerously, but the car sped away. Michael
Anthony Horn was subsequently identified as the car’s driver,
arrested, and charged with failure to respond to an officer’s signal
to stop. At trial, Trooper 1 testified that he had clearly seen Horn
driving the car, and a jury convicted Horn of the charge.

¶2 Horn now appeals, arguing that Trooper 1’s identification
testimony was inherently improbable because the morning in
question was rainy and overcast, the incident occurred just after
dawn while motorists still had their headlights on, and the car
State v. Horn

passed Trooper 1 at a high speed. Anticipating that his inherent
improbability claim may not have been preserved for appeal,
Horn argues alternatively that the trial court plainly erred by not
sua sponte determining that Trooper 1’s identification testimony
was inherently improbable and, on that basis, granting Horn’s
directed verdict motion. We conclude that Horn’s inherent
improbability claim was not preserved. We also conclude that
because Trooper 1’s identification testimony was not internally
inconsistent and was corroborated by other evidence that Horn
was the driver, the court did not plainly err by denying Horn’s
directed verdict motion.

¶3 Horn also asserts that his trial counsel (Counsel) provided
ineffective assistance by failing to argue that this was a process-
of-elimination case and by failing to move to exclude Trooper 1’s
identification testimony—or at least to request a cautionary jury
instruction related to it—under rule 617 of the Utah Rules of
Evidence. We conclude that this was not a process-of-elimination
case and that Counsel acted reasonably in not presenting it as one.
Additionally, because the factors enumerated in rule 617 do not
indicate that Trooper 1’s testimony was unreliable, we determine
that Counsel did not perform deficiently by not requesting
exclusion or by, instead, choosing to highlight weaknesses in
Trooper 1’s testimony through cross-examination and closing
argument.

¶4 Because we reject each of Horn’s arguments, we affirm his
conviction.

20230970-CA 2 2026 UT App 35
State v. Horn

BACKGROUND 1

Trooper 1 Initially Observes Horn

¶5 On the morning of March 31, 2022, Trooper 1 was on patrol
in Box Elder County. Around 7:20 a.m., he heard dispatch
broadcast an “attempt to locate” a “silver sports car” with Texas
license plates that was reported to be “not maintaining its lane”
and “going . . . towards oncoming traffic.” Trooper 1 drove
toward where the vehicle had been reported, and he spotted—
between one hundred and two hundred yards away—a silver
sports car with Texas plates driving toward him. After spotting
the car, Trooper 1 shifted his “focus and concentration” to “who
was operating the vehicle.” As Trooper 1 and the car passed each
other, Trooper 1 “g[ot] a clear look at who was driving the
vehicle.” The day was rainy and there was “cloud cover,” but
Trooper 1 saw the driver—including the driver’s facial hair—
clearly enough that he felt he could say, “[I]f I see him again, I’ll
know who it is.”

¶6 Trooper 1 “flipped around” and caught up to the car. He
was able to read the license plate number and see that the car’s
registration tags were expired. He called in the plate number, and
he also ran the plate number on his computer. The car was
registered to M. Horn and T. Swickard and was not reported as
stolen. Trooper 1 confirmed with dispatch that the person who
made the initial report was willing to testify to having witnessed
“bad driving behavior.” At that point, Trooper 1 activated his
overhead lights to initiate a stop, which also started Trooper 1’s
dashcam recording. The time marker on the dashcam footage

1. “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Alvarado, 2023 UT App 123, n.2, 538 P.3d 633 (cleaned up).

20230970-CA 3 2026 UT App 35
State v. Horn

indicates that the recording began at 7:24 a.m. 2 Trooper 1 saw the
car’s brake lights come on as if it was going to stop, but then the
car accelerated and sped through a four-way intersection. The
intersection and roads were somewhat busy, and Trooper 1 did
not want to “put the public at risk.” So given his confidence that
he “could identify the driver and the vehicle,” Trooper 1 stopped
pursuing the car. Instead, Trooper 1 alerted troopers south of him
that the car was headed in their direction.

Other Officers See the Car and Eventually Stop It

¶7 Soon after, one of these troopers (Trooper 2) saw the car
heading southbound. The car came up behind Trooper 2 and
“slowed down to about fifty-five miles an hour, and then [it]
passed [Trooper 2] and sped up to about ninety.” “As it passed
[Trooper 2], the driver appeared to look away,” so Trooper 2
could not see the driver’s facial features. Trooper 2 followed the
car as it crossed into Weber County and exited the freeway, but
the car “sped off” after entering a school zone, and Trooper 2
discontinued his pursuit and radioed law enforcement in Weber
County about the car. Trooper 2 noted that he spoke to a Weber
County deputy sheriff (Deputy) about the car at 8:13 a.m.

¶8 Meanwhile, Trooper 1 received a call from Deputy, who
said he was familiar with the car and that M. Horn was Michael
Horn and T. Swickard was Tiffany Swickard. Trooper 1 searched
Facebook for a Michael Horn from Texas and saw that the pictures

1. Trooper 1 testified at trial that his dashcam uses a continual loop system such that activating his overhead lights captures video beginning about thirty seconds prior to the activation. The dashcam footage thus did not capture Trooper 1’s initial view of the car, but it captured him following the car before activating his overhead lights.

20230970-CA 4 2026 UT App 35
State v. Horn

of Horn “on Facebook were the same as the person that
[Trooper 1] saw operating that vehicle on that morning.”

¶9 In the early afternoon, Deputy found the car parked at a
gas station in Weber County. Deputy called in other officers, and
as the car moved to the gas pump area, the officers “conducted a
high-risk or a felony stop” of the car. The driver who exited the
car was Swickard; Horn was not in the car. Swickard informed the
officers that Horn was in a nearby grocery store, and the officers
found him, took him into custody, and brought him back to the
gas station.

Trooper 1 Speaks with Swickard and Horn

¶10 Trooper 1 arrived on scene, and his bodycam captured
footage of a brief conversation he had with Swickard before
speaking to Horn. After advising Swickard that she was not under
arrest and was free to leave, Trooper 1 asked her, “Where were
you this morning?” Swickard responded, “Asleep in the
passenger seat.” She said she and Horn had been sleeping at a
truck stop nearby and she “didn’t even know [they] left from
there.” She continued, “I’m apparently a harder sleeper than I
thought I was ‘cause I didn’t know we left the [truck stop].” She
said that she did not remember anything from that morning.

¶11 After this, Deputy turned Horn over to Trooper 1’s
custody. Trooper 1’s bodycam captured footage of his
conversation with Horn while driving Horn to jail. Trooper 1
referred to Horn fleeing from him in Box Elder County earlier that
morning, and Horn said that was “impossible” because Horn did
not know that area and there was “no way [he] was all the way
up [t]here.” Horn insisted he was at a truck stop that morning—
the one mentioned by Swickard—and that Trooper 1 must be
mistaking his car for someone else’s. Trooper 1 told Horn he had
identified the license plate of Horn and Swickard’s car, but Horn
was adamant that he “wasn’t in Box Elder [that] morning.” Horn

20230970-CA 5 2026 UT App 35
State v. Horn

claimed that he had been “asleep in [his] car . . . [w]ith [his] dogs
and [his] wife” at the truck stop and that he left the truck stop
around 8:00 a.m. Trooper 1 asked, “Was your car with you the
whole time?” Horn responded, “Yes, sir.” Trooper 1 asked, “[Y]ou
didn’t . . . let anybody drive your car this morning, did you?”
Horn responded, “No, sir.”

Horn is Charged and the Case Goes to Trial

¶12 The State charged Horn with failure to respond to an
officer’s signal to stop. 3 The case proceeded to a two-day jury trial.
The State called Trooper 1, Trooper 2, and Deputy as witnesses,
and they testified in accordance with the account given above.

¶13 Trooper 1 also testified that he had received training in
identifying the operator of a vehicle. In addition, he said, “In the
past, I’ve had people try to switch drivers on me, . . . [and] [b]ased
on the [attempt to locate], I was concerned that it was possibly a
DUI, and knowing past history of people switching drivers, I
wanted to be sure of who was driving, so I paid close attention to
the driver of the vehicle.” Trooper 1 testified that he was “a
hundred percent sure” that Horn was the driver he saw.

¶14 Trooper 1 also stated that the speed limit in the area where
he saw, passed, and then followed Horn was fifty-five miles per
hour and that Trooper 1 was driving between forty-five and fifty-
five miles per hour when he passed Horn. During cross-
examination, Trooper 1 acknowledged that because Horn was
driving in the opposite direction, it was equivalent to seeing
someone go by at about one hundred miles per hour. Counsel
played some of Trooper 1’s dashcam footage and asked Trooper 1
whether he was able to identify any of the drivers of the cars

1. The State also charged Horn with owning and operating a motor vehicle without insurance but dropped this charge at the beginning of Horn’s trial.

20230970-CA 6 2026 UT App 35
State v. Horn

shown in the footage. Trooper 1 replied, “My camera resolution’s
not good enough for me to see. . . . If I was in my patrol car, I could
identify them.” Trooper 1 acknowledged that the dashcam
showed that cars had their headlights on at the time. On redirect,
the prosecutor asked Trooper 1 whether he was able to read Horn
and Swickard’s car’s license plate from the dashcam footage, and
Trooper 1 responded, “I can’t read it with this resolution and the
camera limitations.” He also could not see from the dashcam
video that the plate was from Texas. The prosecutor asked how
he knew the correct license plate number on the day of these
events, and Trooper 1 responded, “[M]y eyes are much better than
this camera resolution.” And he agreed that his ability to identify
the driver was also “very much better” than the dashcam footage
showed.

¶15 Deputy, too, testified that what he could see with his eyes
was “considerably better” than what he could see in the dashcam
video from his patrol vehicle that day. And he said that while
Horn’s license plate in his dashcam footage was “fuzzy,” he was
able to see it clearly in person.

¶16 Trooper 1 was later recalled to the witness stand. Trooper 1
testified that when he saw Horn driving the car, he “clearly saw
facial hair.” He said that when he later saw Horn in Deputy’s
custody, he recognized Horn’s facial hair—as well as his facial
features—from earlier. Also, on recross-examination, Counsel
asked Trooper 1 whether he saw anyone else in the car that
morning. Trooper 1 responded that he “was looking for the driver
specifically” and “wasn’t looking beyond that.” He also noted that
when the car was stopped that afternoon at the gas station, “the
passenger seat was laid back all the way, so even if there was
someone, [he] probably wouldn’t have seen them.” He continued,
“[Swickard] told me . . . that she was sleeping all morning, so I’d
assume if she was sleeping, it was laid back.”

20230970-CA 7 2026 UT App 35
State v. Horn

¶17 After the State rested, Counsel moved for a directed
verdict. Counsel’s argument, in its entirety, was as follows: “We
don’t believe that the State has presented evidence sufficient for a
reasonable jury to convict Mr. Horn beyond a reasonable doubt.”
The trial court responded, “Given the evidence that’s been
presented at this time, I’m going to deny your motion. There has
been sufficient evidence that a reasonable jury could determine
and find [Horn] guilty [of] . . . failing to stop at the command of a
police officer. So I’ll deny that, [Counsel].”

¶18 Swickard testified in Horn’s defense. She said that she and
Horn arrived at the truck stop around 1:40 a.m., that she woke up
at the truck stop between 10:30 and 11:00 a.m., and that Horn was
already awake. She said that she was in the passenger seat and
Horn was in the driver seat. On cross-examination, she reiterated
that she was never in the driver seat that morning and agreed that
there was “zero reason for anybody else but [Horn] to be in the
driver[] seat.”

¶19 In closing argument, Counsel highlighted purported
problems with Trooper 1’s identification of Horn. Counsel
emphasized that at 7:20 a.m. the sun had risen only moments
before, that “it was raining and overcast,” that “the headlights
from oncoming traffic were [on]” so Trooper 1 “wasn’t able to see
anything through someone else’s windshield because there
would’ve been headlights hitting him right in the . . . eye,” that
the drivers’ speeds were “the equivalent of someone flying past
you on the road at over a hundred miles an hour,” and that
Trooper 1 “had no idea if there was anyone else in the vehicle”
because “[h]e wasn’t paying enough attention.” Counsel also
discussed the malleability of memory and implied that
Trooper 1’s identification testimony was unreliable.

¶20 The jury found Horn guilty, and he now appeals.

20230970-CA 8 2026 UT App 35
State v. Horn

ISSUES AND STANDARDS OF REVIEW

¶21 Horn argues that Trooper 1’s testimony—particularly that
he clearly saw Horn as the driver when Horn and Trooper 1 drove
past each other—is inherently improbable and that without this
testimony the State’s evidence was insufficient to support the
jury’s verdict. He contends that this argument was preserved and
that if it was not, the trial court plainly erred by not sua sponte
ruling that Trooper 1’s identification testimony was inherently
improbable and, on that basis, granting his motion for a directed
verdict. We conclude that Horn’s inherent improbability
argument is not preserved, and we therefore address it through
the lens of plain error. Because a plain error claim involves no
lower court ruling, we decide such claims in the first instance as a
matter of law. State v. Dew, 2025 UT App 22, ¶ 28, 566 P.3d 53, cert.
denied, 568 P.3d 264 (Utah 2025).

¶22 Horn also asserts that Counsel provided ineffective
assistance by (1) failing to argue that this was a process-of-
elimination case and (2) failing to move to exclude Trooper 1’s
identification testimony—or at least request a cautionary jury
instruction related to it—under rule 617 of the Utah Rules of
Evidence. Because an ineffective assistance of counsel claim raised
for the first time on appeal involves no lower court ruling, we
decide it in the first instance as a matter of law. Id.

ANALYSIS

I. Inherent Improbability

¶23 Horn first asks us to “reject [Trooper 1’s] testimony
claiming to have been able to identify [Horn] because that
testimony was physically impossible or incredibly dubious, both
of which render [Trooper 1’s] testimony as to identity inherently
improbable.” The State contends that this argument was

20230970-CA 9 2026 UT App 35
State v. Horn

unpreserved. Horn responds that either this claim was preserved
or the trial court plainly erred by not sua sponte rejecting
Trooper 1’s identification testimony as inherently improbable. We
first assess preservation and determine that this claim was not
preserved. We then consider plain error and conclude that the
court did not plainly err by not sua sponte rejecting Trooper 1’s
identification testimony as inherently improbable. Accordingly,
we determine that the court did not err in denying Horn’s directed
verdict motion.

A. Preservation

¶24 Horn argues that “any motion targeted at the general
sufficiency of the evidence also encompasses the inherent
improbability of that evidence for preservation purposes.” He
acknowledges caselaw from our court holding that a party must
specifically preserve the issue of inherent improbability and that
a general insufficiency-of-the-evidence argument does not
accomplish this. See, e.g., State v. Lewis, 2020 UT App 132, ¶ 45 n.5,
475 P.3d 956 (“Because [the defendant’s] directed verdict motion
was general, asserting only that the State failed ‘to make a prima
facie case on all three counts,’ he did not preserve any specific
inherent improbability claim.”). But he asserts that “[t]he
inherent-improbability doctrine was never meant to have a
preservation requirement narrower than the general directed
verdict motion.” He bases this argument on his reading of State v.
Stricklan, 2020 UT 65, 477 P.3d 1251.

¶25 In Stricklan, a stepdaughter claimed that her stepfather had
touched her inappropriately, but she later recanted. Id. ¶¶ 1, 6, 13.
At trial, the stepfather moved for a directed verdict after the State
rested. Id. ¶ 24. The stepfather “relied on cases holding that a
single, out-of-court and uncorroborated statement cannot sustain
a conviction as a matter of law.” Id. After this motion was denied
and the jury convicted the stepfather, he moved to arrest
judgment, “again argu[ing] the State had not presented evidence

20230970-CA 10 2026 UT App 35
State v. Horn

to corroborate [the stepdaughter’s] recanted, out-of-court
statement.” Id. ¶ 26. On appeal, the stepfather also “argue[d] that
[the stepdaughter’s] testimony was inherently improbable,”
pointing to our supreme court’s decision in State v. Robbins, 2009
UT 23, 210 P.3d 288, “in which [the court] tossed out a conviction
because the victim’s testimony was inherently improbable.”
Stricklan, 2020 UT 65, ¶ 124. The State asserted that this argument
was unpreserved. Id. ¶ 125. In response, our supreme court
reasoned,

An issue is preserved if it was presented
before the district court in such a way that the court
has an opportunity to rule on it. To provide the
court with this opportunity, the issue must be
specifically raised by the party asserting error, in a
timely manner, and must be supported by evidence
and relevant legal authority.

Here the district court did not have an
opportunity to rule on the Robbins issue. Indeed, the
district court never would have known that [the
stepfather] wanted it to assess the inherent
improbability of [the stepdaughter’s] testimony.
None of the arguments below articulated a Robbins
argument nor suggested that [the stepdaughter’s]
testimony was inherently improbable.

Id. ¶¶ 127–28 (cleaned up). The court acknowledged that the
stepfather’s motion to arrest judgment referenced State v.
Workman, 852 P.2d 981, 984 (Utah 1993), in which our supreme
court stated that “a trial court may arrest a jury verdict when the
evidence, viewed in the light most favorable to the verdict, is so
inconclusive or so inherently improbable as to an element of the
crime that reasonable minds must have entertained a reasonable
doubt as to that element.” Stricklan, 2020 UT 65, ¶ 130 (cleaned
up). But the court stated that the stepfather never argued to the

20230970-CA 11 2026 UT App 35
State v. Horn

trial court that the stepdaughter’s testimony was inherently
improbable. Id. Accordingly, the court held that the stepfather’s
inherent improbability claim was not preserved. Id. ¶ 131.

¶26 Horn posits that Stricklan stands for the limited proposition
that a motion arguing insufficiency of the evidence that is
premised on a particular legal theory does not preserve another
argument of insufficiency premised on a different legal theory. He
asserts that because, here, Counsel “argued in very general terms
that the evidence was insufficient,” his motion “captured within
it the inherent-improbability problem.” And Horn further
contends that a series of opinions from our court indicating that
claims of inherent improbability must be specifically preserved
have strayed from the preservation standard our supreme court
provided, declaring that “[a]ny of this [c]ourt’s case law to the
contrary should be disregarded.” We are not persuaded.

¶27 First, our caselaw requiring that criminal defendants
specifically preserve an inherent improbability claim is consistent
with Stricklan and with our general preservation requirements. As
the Stricklan court emphasized, preservation requires a party to
present an issue such that a court has an opportunity to rule on it.
See id. ¶ 127. And a general motion asserting insufficient evidence
does not present an issue of inherent improbability such that a
court has an opportunity to rule on that issue. This is because the
latter “goes far beyond what was argued” in the former. State v.
Skinner, 2020 UT App 3, ¶ 29, 457 P.3d 421 (cleaned up). “In
arguing that [a witness’s] testimony should be excluded as
inherently improbable, [a defendant] is not merely asking us to
find that the evidence presented was insufficient. Instead, [the
defendant] is asking us to disregard [the witness’s] testimony in
its entirety and then evaluate whether the State’s evidence—
without [that] testimony—is sufficient to support a conviction.”
Id. We do not and cannot expect trial courts to read into a general
insufficiency argument (1) a claim that a particular—and
unspecified—witness’s testimony is inherently improbable, (2) a

20230970-CA 12 2026 UT App 35
State v. Horn

request to disregard that testimony completely or in unspecified
infected part, and (3) an argument that the evidence was
insufficient without that testimony to support a verdict against
the defendant. Hence, our cases requiring specific preservation of
an inherent improbability claim have not run afoul of Stricklan or
our guiding preservation principles but, rather, align with both.

¶28 Second, we are bound in any event by our previous
caselaw on this point. “Under the doctrine of horizontal stare
decisis, the first decision by a court on a particular question of law
governs later decisions by the same court.” State v. Legg, 2018 UT
12, ¶ 9, 417 P.3d 592 (cleaned up). “Therefore, one panel on the
court of appeals owes great deference to the precedent established
by a different panel on the court of appeals.” Id. “However, our
presumption against overruling precedent is not equally strong in
all cases.” Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553.
Thus, our supreme court has set forth “two broad factors” we
must use to “distinguish between weighty precedents and less
weighty ones: (1) the persuasiveness of the authority and
reasoning on which the precedent was originally based, and
(2) how firmly the precedent has become established in the law
since it was handed down.” Id. ¶ 22. Horn has not meaningfully
engaged with these factors, and we are not otherwise convinced
that our caselaw requiring specific preservation of an inherent
improbability claim has “proven to be unpersuasive and
unworkable, create[d] more harm than good, and [not] created
reliance interests.” Legg, 2018 UT 12, ¶ 10 (cleaned up).
Accordingly, we decline to overrule that line of cases.

¶29 Given this, Horn’s present argument is unpreserved. His
directed verdict motion made no mention of inherent
improbability, provided no argument that any witness’s
testimony was inherently improbable, and pointed to no
authority supporting such a claim. Thus, Horn failed to present
the issue to the trial court in a manner that provided the court with
an opportunity to rule on the issue. In sum, his general argument

20230970-CA 13 2026 UT App 35
State v. Horn

about insufficiency of the evidence did not preserve his later-
formed inherent improbability claim. See Skinner, 2020 UT App 3,
¶ 29 (“A defendant who wants a trial court to disregard a
witness’s testimony under Robbins before, or in connection with,
undertaking a sufficiency-of-the-evidence review must make that
request known to the trial court so that the court has an
opportunity to rule on the issue. Because [the defendant] did not
ever make such a request to the trial court, he did not properly
preserve it for our review on appeal.”); see also State v. Cecala, 2021
UT App 141, ¶ 28 n.5, 502 P.3d 790 (“To the extent that [the
defendant] asks us to entirely disregard [one witness’s] testimony,
we agree with the State that [the defendant’s] general motion for
a directed verdict did not preserve that theory for appeal.”); State
v. Lewis, 2020 UT App 132, ¶ 45 n.5, 475 P.3d 956 (“Because [the
defendant’s] directed verdict motion was general, asserting only
that the State failed ‘to make a prima facie case on all three counts,’
he did not preserve any specific inherent improbability claim.”);
State v. Law, 2020 UT App 74, ¶ 29, 464 P.3d 1192 (“[A] Robbins
challenge to a witness’s testimony must be specifically raised
before the trial court to be preserved.”); State v. Doyle, 2018 UT
App 239, ¶¶ 2, 14, 437 P.3d 1266 (“[The defendant’s] motion for a
directed verdict . . . did not preserve his distinct claim that [the
victim’s girlfriend’s] testimony should have been disregarded in
its entirety as inherently improbable.”); State v. Gallegos, 2018 UT
App 112, ¶ 14, 427 P.3d 578 (“Where a motion for a directed
verdict makes general assertions but fails to assert the specific
argument raised on appeal, the directed verdict motion itself is
insufficient to preserve the more specific argument for appeal.”
(cleaned up)).

B. Plain Error

¶30 Because Horn’s inherent-improbability argument is
unpreserved, we consider whether the trial court committed plain
error by not determining sua sponte that Trooper 1’s
identification testimony was inherently improbable. “To

20230970-CA 14 2026 UT App 35
State v. Horn

demonstrate plain error, a defendant must establish that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(cleaned up).

¶31 “Though [a] court must ordinarily accept the jury’s
determination of witness credibility, when the witness’s
testimony is inherently improbable, the court may choose to
disregard it.” State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288
(cleaned up). “[W]itness testimony is inherently improbable and
may . . . be disregarded if it is (1) physically impossible or
(2) apparently false.” Id. The latter of these “include[s]
circumstances where a witness’s testimony is incredibly
dubious,” such as “where a sole witness presents inherently
contradictory testimony that is equivocal or the result of coercion,
and there is a complete lack of circumstantial evidence of guilt.”
Id. ¶ 18 (cleaned up).

¶32 Horn asserts that Trooper 1’s identification testimony was
inherently improbable because Trooper 1’s “claim that he could
clearly see and identify Mr. Horn as the driver of the car that
morning directly contradicts everything he said about the
conditions present when he saw the driver.” Horn specifically
notes that “it was dark and rainy out, the car had its headlights
on, and both cars were traveling at high speeds in opposite
directions.” Horn also highlights that “[w]hile reviewing the dash
camera footage of drivers in oncoming traffic at the trial,
[Trooper 1] was unable to see the faces of the drivers.” Horn
asserts that “[t]hese drivers were in the exact same position as the
driver of the silver car would have been—where [Trooper 1]
claimed he saw [Horn] driving that morning.”

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State v. Horn

¶33 Horn’s argument is unavailing. The weather and lighting
conditions did not themselves prevent drivers from observing
details around them, as evidenced by the fact that various cars
were driving safely on the road and at the intersection where
Horn sped away from Trooper 1. And while headlights may
obscure vision at some angles, they also help illuminate, and the
fact that headlights were on does not render impossible Trooper 1
getting a clear look at Horn while the two drove past each other.
Trooper 1 did not need a long time to observe Horn if he was able
to get a clear look at him, and Trooper 1 testified that he saw Horn
clearly. Although the combined speed of the two cars was high, it
is not impossible for a driver to observe outside details while
passing them at effectively one hundred miles per hour.
Moreover, Trooper 1 testified that he received training in
identifying drivers, so his skills in this area were presumably
better than those of average drivers. Additionally, Trooper 1
testified that after identifying Horn and Swickard’s car as the one
described in the attempt to locate, he shifted his “focus and
concentration” to “who was operating the vehicle,” so he was able
to negate other distractions while looking at Horn’s face. Trooper
1 explained his motivation for paying close attention to the driver:
he was concerned about a possible DUI and had experienced
drivers switching seats before, so he wanted to be absolutely sure
who was driving. Additionally, Trooper 1 testified that he “clearly
saw facial hair” on the driver, and when Horn was taken into
custody, he had facial hair that matched what Trooper 1 had seen.

¶34 The fact that Trooper 1 could not identify other drivers or
Horn’s license plate from the dashcam footage during trial does
not offer Horn the support he desires. Trooper 1 testified that his
camera’s resolution was significantly poorer than what he could
observe naturally with his eyes. And this was corroborated by the
fact that Trooper 1 was able to see clearly enough on the day of
Horn’s arrest to read Horn’s license plate and both enter it into his
computer and relay it to dispatch. Trooper 1 noted that he was not

20230970-CA 16 2026 UT App 35
State v. Horn

even able to tell from the dashcam footage that the plate was from
Texas—a fact that was clear to Trooper 1 from one to two hundred
yards away on the morning in question. In fact, that day Trooper
1 was able to see that the car’s plates were expired, which further
supports the difference in visibility in the dashcam footage versus
in person. Furthermore, in addition to Trooper 1’s testimony,
Deputy testified similarly that what he could see with his eyes
was “considerably better” than what he saw in his dashcam
footage, and he also said he was able to see Horn’s license plate
clearly on the day in question, while it was “fuzzy” in the footage.
This combined evidence provides strong support for Trooper 1’s
insistence that he saw Horn clearly. Under these circumstances,
we do not conclude that Trooper 1’s testimony was obviously
“inherently contradictory.” See State v. Robbins, 2009 UT 23, ¶ 18,
210 P.3d 288 (cleaned up).

¶35 Moreover, Trooper 1 was not the “sole witness” to identify
Horn as the driver of the subject car that morning, and this is not
a case where “there is a complete lack of circumstantial evidence
of guilt.” See id. (cleaned up). Horn’s and Swickard’s statements
both identified Horn as the sole operator of the car that morning.
Although Horn insisted while being taken to jail that he was at a
truck stop more than thirty miles from Trooper 1’s position until
about 8:00 a.m., that testimony is highly suspect given the attempt
to locate that was issued around 7:20 a.m. and Trooper 1’s
subsequent ability to report the license plate number belonging to
Horn and Swickard’s car, as well as Trooper 1’s timestamped
dashcam footage showing the car at 7:24 a.m. But Horn did
confirm that this car was with him throughout the morning and
that no one else drove the car that morning. Swickard agreed that
Horn was in the driver seat all morning. The agreement between
Swickard and Horn that Horn was in the driver seat supports
Trooper 1’s identification testimony where Horn offered no
evidence or argument to dispute that Trooper 1 spotted the car
soon after the attempt to locate, captured footage of the car on his

20230970-CA 17 2026 UT App 35
State v. Horn

dashcam, and was able to identify the car’s license plate—and
where Trooper 2 testified that he saw the car a little after 8:00 a.m.
in Box Elder County.

¶36 Because of this, there was not “a complete lack of
circumstantial evidence of guilt” here, see id. (cleaned up), and we
cannot say that Trooper 1’s testimony was obviously “incredibly
dubious,” see id. In fact, the evidence against Horn was quite
strong, and it consistently pointed to him as the driver.
Accordingly, Trooper 1’s testimony was not inherently
improbable, and the trial court did not plainly err by not sua
sponte determining as much.

¶37 Horn’s contention that the evidence was insufficient to
support his conviction hinges on his argument that Trooper 1’s
identification testimony was inherently improbable and should
have been disregarded. See generally State v. Barnes, 2023 UT App
148, ¶¶ 19–20, 542 P.3d 108 (“If we determine that the challenged
testimony is inherently improbable, we then [disregard it] and
determine if sufficient evidence remains under which a
reasonable jury could have convicted. . . . On the other hand, if we
determine that the challenged evidence is not inherently
improbable, our sufficiency-of-the-evidence analysis will include
the challenged evidence.” (cleaned up)). Horn does not contend
that the evidence was insufficient if Trooper 1’s identification
testimony is not disregarded. Thus, our conclusion that
Trooper 1’s identification testimony was not inherently
improbable sounds the death knell for Horn’s claim of error in the
trial court’s denial of his motion for a directed verdict based on
insufficiency of the evidence. We therefore affirm the trial court’s
denial of Horn’s motion for a directed verdict.

II. Ineffective Assistance

¶38 We next consider Horn’s ineffective assistance claims. He
asserts that Counsel provided ineffective assistance in two

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State v. Horn

respects: (A) by failing to argue that this was a process-of-
elimination case and (B) by failing to move to exclude Trooper 1’s
identification testimony—or, at minimum, to request a cautionary
jury instruction related to it—under rule 617 of the Utah Rules of
Evidence.

¶39 To succeed on either claim, Horn must first “show that
[C]ounsel’s performance was deficient.” Strickland v. Washington,
466 U.S. 668, 687 (1984). Second, Horn “must show that the
deficient performance prejudiced [his] defense.” Id. Horn “must
establish both deficient performance and prejudice, and if either
is lacking, the claim fails and this court need not address the
other.” State v. Bush, 2025 UT App 87, ¶ 20, 572 P.3d 449 (cleaned
up), cert. denied, Jan. 2, 2026 (No. 20250889).

¶40 To demonstrate deficient performance, Horn “has the
burden to overcome a strong presumption that Counsel’s conduct
falls within the wide range of reasonable professional assistance.”
State v. Hunter, 2021 UT 44, ¶ 68, 496 P.3d 119 (cleaned up).
“Deficient performance is not determined in a vacuum; rather, it
involves asking whether the strategy Counsel employed was that
of a reasonable, competent lawyer . . . .” State v. Wilkes, 2020 UT
App 175, ¶ 24, 479 P.3d 1142 (cleaned up). “The ultimate question
is always whether, considering all the circumstances, Counsel’s
acts or omissions were objectively unreasonable.” State v. Scott,
2020 UT 13, ¶ 36, 462 P.3d 350 (cleaned up).

A. Process of Elimination

¶41 Horn argues that “[t]he prosecution pursued a case that
involved a process of elimination, and it should have been argued
to both the trial court and the jury as such.” Horn contends that
Counsel should have argued this theory either as part of his
directed verdict motion or else in closing argument and that the
failure to do either constituted deficient performance. We
disagree.

20230970-CA 19 2026 UT App 35
State v. Horn

¶42 When the State employs a process-of-elimination theory,
it assumes the burden of “eliminat[ing] all other possible
suspects” who could have committed the crime. State v. Meyer,
2023 UT App 65, ¶ 39, 532 P.3d 583; see also id. ¶ 36 (“If the
prosecution intends to obtain a conviction by the process of
elimination by showing that no one else but the defendant could
have been guilty, the burden is upon it to show that there was no
one else in the other room.” (cleaned up)). But here the State did
not present its case through a process of elimination. Its theory
was not that “no one else but the defendant could have been
guilty,” id. ¶ 36 (cleaned up), but, rather, that it could directly
prove Horn was the driver of the car. The State did not need to
approach the case as a process-of-elimination case because
Trooper 1 affirmatively identified Horn and testified that Horn
was the driver he saw. The State’s theory would have been
different if Trooper 1 had not seen the driver but had, instead,
only been able to identify the car and license plate. Under such
circumstances, the State would have needed to convince the
jury—based solely on circumstantial evidence—that no one but
Horn could have been driving. But because Trooper 1 testified
that he saw Horn driving the car, the State was not required to
prove that Swickard—or anyone else—was not driving the car.
Therefore, Counsel did not perform deficiently by not framing the
State’s case as a process-of-elimination case, and this ineffective
assistance claim fails.

B. Rule 617

¶43 Finally, Horn asserts that Counsel provided ineffective
assistance related to rule 617 of the Utah Rules of Evidence. Horn
contends that Counsel should have either moved to exclude
Trooper 1’s identification of Horn under rule 617 or else requested
a cautionary jury instruction under this rule. We consider each
contention in turn.

20230970-CA 20 2026 UT App 35
State v. Horn

1. Exclusion

¶44 Rule 617(b) of the Utah Rules of Evidence states,

In cases where eyewitness identification is
contested, the court shall exclude the evidence if the
party challenging the evidence shows that a
factfinder, considering the factors in this subsection
(b), could not reasonably rely on the eyewitness
identification. In making this determination, the
court may consider, among other relevant factors,
expert testimony and other evidence on the
following:

(1) Whether the witness had an adequate
opportunity to observe the suspect committing the
crime;

(2) Whether the witness’s level of attention to the
suspect committing the crime was impaired because
of a weapon or any other distraction;

(3) Whether the witness had the capacity to observe
the suspect committing the crime, including the
physical and mental acuity to make the observation;

(4) Whether the witness was aware a crime was
taking place and whether that awareness affected
the witness’s ability to perceive, remember, and
relate it correctly;

(5) Whether a difference in race or ethnicity between
the witness and suspect affected the identification;

(6) The length of time that passed between the
witness’s original observation and the time the
witness identified the suspect;

20230970-CA 21 2026 UT App 35
State v. Horn

(7) Any instance in which the witness either
identified or failed to identify the suspect and
whether this remained consistent thereafter;

(8) Whether the witness was exposed to opinions,
photographs, or any other information or influence
that may have affected the independence of the
witness in making the identification; and

(9) Whether any other aspect of the identification
was shown to affect reliability.

Horn argues, “When applying the [foregoing] factors to [this]
case, it becomes clear that [Trooper 1’s] testimony should have
been excluded under rule 617.” We disagree.

¶45 These factors largely either cut against exclusion here or
are countered by facts supporting the reliability of Trooper 1’s
identification. We examine each factor below.

(1) Adequate Opportunity to Observe: It is true that Trooper 1
had only a few seconds to observe the driver and that the
cars passed each other at a high combined speed. However,
identifying outside details is feasible at this speed, and at
the time the cars passed each other, they were quite close
to one another. Additionally, Trooper 1 testified that he
saw the subject car one to two hundred yards away and
then shifted his focus to the driver, so he spent the full
remaining time looking at the driver rather than at other
things. Trooper 1 also testified that he saw Horn clearly,
and his notice of Horn’s facial hair corroborated this.

(2) Impaired or Distracted Attention: Horn contends that the
weather and lighting conditions made it impossible for
Trooper 1 to see him clearly. While the weather may have
been a general distraction on the morning of these events,

20230970-CA 22 2026 UT App 35
State v. Horn

it was not so bad that Trooper 1 or other drivers were
unable to see their surroundings. We are unwilling to
adopt the position that observations made on rainy,
overcast days are inherently unreliable, and Trooper 1’s
dashcam footage shows that there was passable visibility
that morning. And again, Trooper 1 testified that after
identifying the car, he was able to shift his “focus and
concentration” to “who was operating the vehicle,”
thereby reducing the effects of other distractions and
increasing his level of attention to Horn’s face. And
Trooper 1 was able to see clearly enough to read Horn’s
license plate number and see that his registration was
expired. Thus, the weather was not sufficiently distracting
that it rendered Trooper 1’s observation unreliable.

(3) Witness’s Capacity to Observe: There is no contention that
Trooper 1 lacked the physical or mental acuity to observe
Horn. Furthermore, Trooper 1’s training increased his
capacity to make such observations. In this respect,
Trooper 1’s identification of Horn may well have been
more reliable than if a layperson had made the observation.

(4) Witness’s Awareness that a Crime Was Occurring:
Trooper 1 was aware that Horn and Swickard’s car
matched the one described in the attempt to locate, which
car had been described as “not maintaining its lane” and
“going . . . towards oncoming traffic.” Because Trooper 1
was a trained officer, this knowledge likely positively
impacted his ability to perceive, recall, and relate his
observations because he knew he would need to be
accurate to investigate the driver and pursue justice.

(5) Difference in Race or Ethnicity: Horn has not argued that
this factor negatively impacted Trooper 1’s identification,
and the record evidence does not support a finding that it
did.

20230970-CA 23 2026 UT App 35
State v. Horn

(6) Time Between Observation and Identification: While
several hours passed from the time Trooper 1 saw Horn
driving to the time Trooper 1 took Horn into his custody,
this was not a great length of time. We do not think it likely
that Trooper 1 forgot what he observed, particularly given
his communication with other officers and continued
involvement in the case. Also, there is no suggestion that
Horn materially changed his appearance during this
window such that Trooper 1 could not accurately identify
him.

(7) Witness’s History of Identifying or Failing to Identify the
Suspect: Trooper 1 identified Horn on Facebook before
meeting him in person. Horn suggests that this should
negatively impact our assessment of Trooper 1’s
identification, but that is not necessarily true. Trooper 1
was able to match his memory of Horn’s face with Horn’s
pictures on Facebook, thereby identifying Horn before
meeting him in person. And Trooper 1 consistently
maintained from that point on that Horn was the person he
saw driving.

(8) Outside Information or Influence: On the other hand,
Trooper 1’s exposure to Horn’s Facebook photos—after
learning Horn’s first name from Deputy—may have
affected the independence of Trooper 1’s later in-person
identification of Horn.

(9) Other Possible Factors: We are not convinced that
Trooper 1’s identification was otherwise unreliable.

¶46 Overall, then, the factors do not support exclusion here.
Only factor eight falls clearly in Horn’s favor, while factors three,
four, five, and seven support the reliability of Trooper 1’s
identification and factors one, two, six, and nine are best classified
as neutral. The circumstances of high speed and rainy, overcast

20230970-CA 24 2026 UT App 35
State v. Horn

driving conditions are negated by Trooper 1’s testimony as to his
training, focus on the driver, and ability to see Horn clearly. And
while factor eight could support exclusion, given that there is no
dispute that Horn and Swickard’s car was the one Trooper 1 saw
and recorded in the morning, that the car was registered to Horn
and Swickard, and that both Horn and Swickard said Horn was
in the driver seat all morning, we think any risk of Trooper 1
misidentifying Horn as the driver is negligible. Accordingly, we
are persuaded that a factfinder could have reasonably relied on
Trooper 1’s eyewitness identification. Therefore, had Counsel
made a motion to exclude Trooper 1’s testimony under rule 617,
it is unlikely that the court would have granted the motion, so
Counsel did not perform deficiently in choosing to forgo the
motion. See State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550
(“Because the decision not to pursue a futile motion is almost
always a sound trial strategy, counsel’s failure to make a motion
that would be futile if raised does not constitute deficient
performance.” (cleaned up)).

1. Cautionary Jury Instruction

¶47 Finally, Horn asserts that Counsel provided ineffective
assistance by not requesting a cautionary jury instruction under
rule 617. Rule 617(f) states, “When the court admits eyewitness
identification evidence, the court may, and shall if requested,
instruct the jury consistent with the factors in subsections (b) and
(c) and other relevant considerations.” Utah R. Evid. 617(f). Such
a cautionary instruction is often referred to as “a Long
instruction.” See State v. Long, 721 P.2d 483, 492 (Utah 1986)
(directing trial courts to give a cautionary jury instruction on the
potential unreliability of eyewitness identifications “whenever
eyewitness identification is a central issue in a case and such an
instruction is requested by the defense”).

¶48 As a starting point, we note that our supreme court has
rejected the notion “that in every case in which eyewitness

20230970-CA 25 2026 UT App 35
State v. Horn

identification is an issue, trial counsel’s performance is per se
deficient if a cautionary instruction is not requested.” State v.
Maestas, 1999 UT 32, ¶ 32 n.2, 984 P.2d 376. Instead, trial counsel’s
performance must be evaluated in light of the facts of the
particular case. See id.

¶49 Instructively for purposes of ineffective assistance of
counsel in this context, our supreme court concluded in State v.
Hunter, 2021 UT 44, 496 P.3d 119, that although the eyewitness
identification testimony in that case was susceptible to attack
under some of the rule 617 factors, defense counsel did not
perform deficiently by not requesting a Long instruction because
other factors would have bolstered the eyewitness identification
testimony. See id. ¶¶ 68–95. In Hunter, two police officers “set up
surveillance to look for drug activity near a downtown homeless
shelter.” Id. ¶ 5. They “conducted their surveillance operation in
two adjacent, second-story office rooms in a building just over a
hundred yards from the shelter” and “used binoculars to observe
the goings on” below. Id. (cleaned up). At one point, they
observed what they believed to be a drug transaction between two
men, and they radioed officers on the street to inform them of
what they had seen. See id. ¶¶ 6, 11, 19. Based on the surveillance
officers’ real-time identification of the defendant as the seller in
the transaction they had witnessed, the defendant was arrested
and found to have methamphetamine in his possession. See id.
¶¶ 19, 22–23. He was subsequently charged with “distribution of
or arranging to distribute a controlled substance.” Id. ¶ 25.
However, the defendant maintained that “the police got the
wrong man.” Id. ¶ 1. He admitted that “he possessed
methamphetamine,” but he said he was “not the same man the
police saw distributing methamphetamine.” Id. A jury
nevertheless convicted the defendant of distributing or arranging
to distribute a controlled substance, based in part on eyewitness
identification testimony by the surveillance officers. See id.

20230970-CA 26 2026 UT App 35
State v. Horn

¶50 On appeal to this court, the defendant asserted ineffective
assistance because his trial counsel did not request a Long
instruction. See id. ¶ 34. Instead, trial counsel had “presented a
theory of mistaken identification in his opening and closing
arguments” and had “cross-examined the prosecution’s witnesses
about weaknesses, inconsistencies, and gaps in their testimony.”
Id. ¶ 2. We rejected the ineffective assistance claim, and—on
certiorari review—the supreme court rejected it as well. See id.
¶¶ 4, 34–35. The supreme court held that “[a] competent attorney,
on the facts of [that] case, could reasonably conclude that a Long
instruction might backfire by causing the jury to think the officers’
identification testimony was more reliable than they would
otherwise think without the instruction.” Id. ¶ 4. The court
explained that “[a] reasonable, competent lawyer could have
looked at the factors that a Long instruction would have
highlighted and determined that such an instruction would be
unhelpful, or even hurtful, to his [or her] client’s defense.” Id. ¶ 77
(cleaned up). Thus, the court said, “[c]ompetent counsel could
have reasonably concluded that using opening and closing
arguments and cross-examinations to highlight specific
weaknesses in the State’s case was the safer route.” Id.

¶51 We reach the same conclusion here. For the same reasons
given above, see supra ¶¶ 45–46, more relevant factors fell in favor
of the reliability of Trooper’s identification than fell against it, and
several facts that suggested unreliability were countered by facts
supporting reliability. While requesting a cautionary instruction
may have drawn the jury’s attention to the weather conditions,
speed of the cars, and the potentially suggestive influence on
Trooper 1 of seeing Facebook photos of Horn, thus aiding Horn’s
defense, the instruction would have likely bolstered Trooper 1’s
testimony regarding the other factors. Specifically, the instruction
would have invited the jury to place extra weight on the evidence
that Trooper 1 was trained to make these types of observations,
focused his attention on observing Horn’s face, got a clear view of

20230970-CA 27 2026 UT App 35
State v. Horn

Horn’s face as he passed by, noticed that Horn had facial hair,
could see clearly enough despite the weather and lighting
conditions to read out Horn’s license plate number and tell his
plates were expired, and never wavered in his identification of
Horn. Thus, Counsel could—like defense counsel in Hunter—
have reasonably decided that a cautionary instruction would have
been “unhelpful, or even hurtful, to his client’s defense.” 2021 UT
44, ¶ 77; see also Long, 721 P.2d at 492 n.5 (recognizing, based on
study data at the time, that when an eyewitness identification
instruction is “given in conjunction with strong eyewitness
testimony, it bolster[s] jurors’ beliefs in the correctness of the
identification”). Also like defense counsel in Hunter, Counsel
could have reasonably chosen to instead use “opening and closing
arguments and cross-examination[] to highlight specific
weaknesses in the State’s case.” See 2021 UT 44, ¶ 77.

¶52 And it is evident from the record that this is what Counsel
did, apparently deeming it “the safer route.” See id. For example,
during cross-examination, Counsel got Trooper 1 to acknowledge
that Trooper 1’s and Horn’s combined speeds were about one
hundred miles per hour, revealed Trooper 1’s inability to identify
any drivers from the dashcam footage, and exposed Trooper 1’s
failure to identify or remember whether anyone besides Horn was
in the car. And in closing, Counsel argued that there were
problems with Trooper 1’s identification of Horn, including that
the sun had just risen, that “it was raining and overcast,” that
headlights from oncoming traffic would have prevented
Trooper 1 from seeing oncoming drivers, that the cars were going
too fast for Trooper 1 to identify the driver, and that Trooper 1 did
not see if there was anyone else in the car. Counsel also suggested
that Trooper 1’s identification testimony was unreliable because
memory is malleable. In other words, Counsel did grapple with
the issues affecting the reliability of Trooper 1’s identification
testimony; he simply did so through cross-examination and

20230970-CA 28 2026 UT App 35
State v. Horn

argument to the jury, where he did not have to acknowledge the
factors supporting Trooper 1’s testimony.

¶53 For these reasons, Horn has not overcome the strong
presumption that Counsel’s conduct fell within the wide range of
reasonable professional assistance. See id. ¶ 68. We therefore
conclude that Counsel did not render deficient performance by
not requesting a cautionary instruction.

CONCLUSION

¶54 Horn’s argument that Trooper 1’s identification testimony
was inherently improbable was not preserved, and the trial court
did not plainly err in failing to disregard Trooper 1’s testimony on
this ground. And because Trooper 1’s identification testimony
rightly was not disregarded, the trial court also correctly denied
Horn’s directed verdict motion. Finally, Counsel did not perform
deficiently by failing to argue that this was a process-of-
elimination case, to move to exclude Trooper 1’s identification
testimony under rule 617, or to request a cautionary jury
instruction under the same rule. We affirm.

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