State of Utah, Appellee, v. Kevin Tommy Neal, Appellant. (2026)

Opinion

¶1 Kevin Tommy Neal challenges his murder conviction stemming from a fatal stabbing outside a punk rock concert. At trial, Neal claimed that he had stabbed the victim, Thomas,¹ in self-defense, and he moved for a directed verdict, arguing that the State had not met its evidentiary burden of disproving his self-defense claim. The trial court's denial of that motion is the subject of the current appeal. We affirm, holding that the State presented sufficient evidence to withstand the directed verdict motion. We also deny Neal's motion seeking a remand under rule 23B of the Utah Rules of Appellate Procedure to supplement the record with evidence showing that his trial counsel (Counsel) was ineffective for not fully investigating the case.

BACKGROUND 2

¶2 The events in question took place on May 14, 2022, at an all-ages punk rock concert that Neal had organized and promoted. The concert was held at an outdoor venue behind a tattoo shop located on State Street in Salt Lake City. The only access to the venue was through a narrow alley between the tattoo shop and a neighboring building. An admissions table was placed at the end of the alley, which was staffed by a venue worker, Daphne.

The First Physical Altercation

¶3 Neal testified at trial that he was feeling “great” on the night of the concert until he observed Thomas approach Daphne at the admissions table. Neal knew Thomas “[t]hrough the music scene” and “did not like” him. According to Neal, Thomas used to be a drummer in Neal's roommate's band but eventually became “disconnected to the music scene” due to his “reputation of either being a rapist or a pedophile” and for “being violent and causing ․ problems at concerts.” Neal recounted an incident that occurred some five years before at a different concert where he and Thomas were both in the crowd. Neal alleged that Thomas wore “something sharp on the tip of his” boot that “cut the side” of Neal's own boot, resulting in Thomas being removed from the venue. Neal also testified that just a year earlier he had convinced the organizer of another concert to have Thomas removed and that Thomas had left without “any argument.”

¶4 Neal testified that on the night in question, Thomas was wearing a collar with large spikes around his neck while speaking to Daphne. Neal testified that he approached the table and “calmly” told Thomas “that he wasn't allowed [there], and he needed to leave.” Neal repeated this request “about 10 times.” Neal later explained that he did not want Thomas at the concert even if the allegations against Thomas were untrue because he did not “want to risk that.” Neal stated that his own calm demeanor changed when Thomas asked why he was not welcome. Neal responded that Thomas was “known for causing problems and starting fights,” and Neal testified that he “might have” also said it was because Thomas “was a pedophile.” Neal stated that as he was speaking, Thomas was standing so close to him that their shoes were almost touching and then they began “shoving each other.” Neal claimed that he hit his head against a metal pole during the altercation, which caused him to “have blurred vision momentarily.” He acknowledged that no weapons were involved in this brief altercation. And he testified that a few nearby onlookers quickly intervened to separate the two, and Thomas then left. Neal testified that he “was positive [Thomas] would come back” and a second physical altercation “would definitely happen.”

¶5 The testimony of Daphne and another eyewitness, Matthew, generally corroborated Neal's account of the first physical altercation. Daphne, who did not know Thomas personally but “knew his reputation,” testified that it was “unusual” for Thomas to be there because “he wasn't usually welcome at punk shows anymore, especially all ages punk shows.” Daphne alleged that Thomas “was known for wearing sharp objects in mosh pits” and “had a reputation of not being safe at shows.” She stated that as she was speaking with Thomas, Neal approached and told Thomas, “No, you can't come in.” She testified that this led to “a scuffle” between the two men, during which “a couple punches” were “thrown” and “[t]here was shoving,” but “it wasn't anything major.” Daphne stated that the altercation ended with Thomas leaving through the alley. She did not recall anybody intervening to stop the altercation. Daphne also stated that while she did not hear Thomas threaten to return, Neal told her he was “worried about [Thomas] trying to come back” and “was getting pretty ․ thought loop about it.” She testified that Neal never expressed fear for his own life if Thomas returned, but he felt responsible for everyone else's safety.

¶6 Matthew testified that he was speaking with Neal near the admissions table when Thomas first approached the table wishing to attend the concert. Matthew testified that the situation “was not aggressive” until Neal told Thomas that he could not enter the concert and called him “a fucking pedophile.” Matthew stated that Neal and Thomas then “grabb[ed] each other on the shoulder and kind of danc[ed] around in a circle” until about five other people intervened to break up the altercation. Matthew testified that Neal then returned to the table, Thomas was escorted out of the alley, and Matthew went back into the concert venue.

¶7 This first altercation lasted only a matter of seconds. Surveillance footage from a security camera at a nearby business captured Thomas parking his car on State Street and walking along the sidewalk until he turned into the alley leading to the concert venue. A spiked collar was visible on his neck. The footage showed that approximately 45 seconds later, Thomas, escorted by another person, reemerged out of the alley back into view of the camera, entered his vehicle, and drove off.

The Stabbing

¶8 The surveillance footage showed Thomas returning on foot some five or six minutes later. It is unclear from the footage whether Thomas was still wearing the spiked collar around his neck.³ Thomas also appeared to have an object in his hand and to make a “flipping motion” with that hand as he was walking. The footage showed that as Thomas turned to enter the alley, Neal suddenly stepped out of the alley toward Thomas. Until that moment, Neal would have been out of sight of anyone coming from Thomas's direction.

¶9 The ensuing fight is not very clear, appearing only in the upper left-hand corner of the surveillance footage. An enlarged version of the footage showed that Thomas immediately lifted his arm and swung at Neal and, either simultaneously or within a fraction of a second, Neal began repeatedly striking Thomas in the abdomen. Thomas's punch appears to have struck Neal in the head. The two continued to grapple for several more seconds—falling to the ground, getting up, and falling again—until an artist from the tattoo shop appeared and eventually broke them up. After the tattoo artist helped Thomas stand up, Thomas ran off, leaving behind a puddle and a trail of blood. It appears that he was not wearing the spiked collar while running away. Thomas made it about a block away, reaching the locked doors of a fast-food restaurant before collapsing.

¶10 Despite medical intervention, Thomas soon succumbed to his injuries. According to a medical examiner, Thomas had been stabbed nine times: three times in the chest, three times in the abdomen, and once each in “the left lateral neck,” “the back of the neck,” and the scalp. Six of these stab wounds would have been fatal on their own. Also of note, Thomas had an injury to his hand that the medical examiner opined “was consistent with a sharp object,” which could have been a spike from Thomas's collar.

¶11 Neal admitted to stabbing Thomas. At trial, he testified that following the first altercation, he was walking along the alley toward State Street when Thomas suddenly appeared in front of him. Neal stated that upon seeing Thomas again, he “felt threatened” and “was afraid [they] were going to fight.” Neal alleged that Thomas immediately lifted his hand to punch him, and he could see Thomas had “something shiny” and “metallic” that “looked like a weapon” “protruding from his fist.” Neal asserted that in response, he pulled a folding knife from his pocket and stabbed Thomas twice in the stomach as Thomas was throwing the punch. Neal said he stabbed Thomas while Thomas was “mid-swing,” and he did not remember whether Thomas's punch actually made contact with him. And although, according to Neal, “[y]ou have to use your thumb” to open the folding knife and it could not simply be “flip[ped] open,” he did not remember opening the knife. He also stated that Thomas tried to grab the knife while they were rolling on the ground, during which the knife cut Neal's thumb and wrist. And Neal asserted that Thomas was not wearing the spiked collar around his neck during this second altercation.

¶12 A concert attendee who happened upon Neal and Thomas at the tail end of the fight testified that after Thomas ran away, he heard Neal say, “I just stabbed somebody. I have to get out of here.” Both Daphne and the tattoo artist testified that Neal was “agitated” following the fight. And a band member who was performing at the concert testified that as she was standing in the alley, Neal, with “blood on his face and shirt,” approached her and stated, “You need to leave. I just stabbed someone.” Approximately 20 minutes later, the band member saw Neal again, but this time he “was wearing a jacket zipped up all the way, and ․ his face was clean and he didn't have blood on him.” She “asked him what was going on,” to which he replied, “I don't know.” And according to Neal, when he later went back out onto the sidewalk from the alley, the tattoo artist repeatedly asked him, “What were you thinking?” Neal did not answer and instead kept walking down the sidewalk.

The Investigation

¶13 Law enforcement soon arrived on the scene. They did not find any weapons on Thomas. But they did find a red vaping device in the pocket of his pants that could be flipped open by pressing a release button. In a trash can in the alley at the concert venue, investigators found a folding pocketknife and an unfastened spiked collar, both covered in blood. A detective opined at trial that the knife, which Neal acknowledged was the knife he used to stab Thomas, required two hands to be opened and that it could not open simply “by the flick of a wrist.” Regarding the spiked collar, the detective testified that even without pressing down on the sides of the collar's “latching mechanism,” “very little force” was needed to unlatch the collar.

¶14 Neal was arrested the next day. Investigators took photos of Neal, showing that he appeared to have no injuries to his head but did have a “minor scratch” to his neck, a small cut to a thumb, a “small marking” toward the middle of a knuckle, “a small scuff mark” on an elbow, and “some fresh abrasions” to both knees. A detective testified that Neal did not appear dizzy, or exhibit any kind of behavior suggesting a head injury.

¶15 Neal's phone records also revealed the following text exchange with his mother (Mother) that occurred shortly after the stabbing:⁴

Neal: Im sorry

Mother: For??

Neal: I might go to jail. Ill talk to you later if i dont

Bad

Mother: Oh no

Neal: Pedophile

Not me though

Mother: Of course no you !! I know better

The Trial

¶16 The State charged Neal with murder.⁵ A three-day jury trial was held in which the above evidence and witness testimony were presented. As recounted above, Neal did not deny stabbing Thomas. Rather, the trial centered on whether Neal acted out of perfect self-defense or, alternatively, imperfect self-defense.

¶17 At the close of the State's case-in-chief, Neal moved for a directed verdict, arguing that video evidence showed that Thomas made “a fairly long roundhouse punch right as he turns into that alley area,” which justified (either perfectly or imperfectly) the stabbing. The trial court denied the motion, stating that it was up to the jury to decide whether Thomas's “hand gesture” was aggressive or defensive. The court further stated that even if the jury determined that it was aggressive, the jury would still need to determine whether the punch justified the subsequent stabbing. Neal then presented his defense.

¶18 During closing argument, the State asserted that Neal's stabbing of Thomas was an act of murder rather than a justified act of self-defense. The State argued that the security footage showed that Neal did not have enough time to see something in Thomas's hand before pulling the knife out of his pocket and that he instead lay in wait at the alley entrance with his unfolded knife in hand, having “already made the decision what he's going to do when [Thomas] turns that corner.” The State asserted that the surveillance footage showed that Neal stepped out toward Thomas and “almost immediately start[ed] thrusting actions with his right hand” and that “as the thrusting action start[ed],” Thomas “raise[d] his hand as if to hit” Neal. The State pointed to a still image from the footage, contending that it showed that Neal stabbed Thomas before Thomas's punch had even come close to landing. The State also contended that Thomas was unarmed and posited that the object Thomas was seen “flipping out” as he approached the alley was merely the red vaping device later recovered from his pocket.

¶19 Counsel countered that Neal acted in self-defense. Counsel argued that based on Thomas's alleged reputation for violence, Neal knew that Thomas had come back intending to fight after being ejected from the concert venue the first time.⁶ Counsel further described Thomas's walk toward the alley as “aggressive,” and he asserted that Thomas threw the first punch, holding what appeared to Neal to be a weapon. Counsel speculated that Thomas may have wrapped his spiked collar around his fist as a makeshift weapon.⁷ And he suggested that in addition to other possible causes, the wound to Thomas's hand may well have been caused by a spike from the collar. Counsel alternatively argued that even if Neal was not justified in stabbing Thomas in self-defense, imperfect self-defense applied.

¶20 After being instructed on the elements of both perfect and imperfect self-defense, the jury returned a guilty verdict on the murder charge. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶21 Neal challenges the trial court's denial of his directed verdict motion, arguing that the State provided insufficient evidence to disprove his claim of perfect self-defense or, alternatively, his claim of imperfect self-defense. “We review the district court's denial of a motion for directed verdict for correctness.” State v. Graydon, 2023 UT App 4, ¶ 26, 524 P.3d 1034 (quotation simplified), cert. denied, 531 P.3d 731 (Utah 2023). Additionally, “when a defendant challenges the denial of a motion for a directed verdict based on the sufficiency of the evidence, the applicable standard of review is highly deferential” to the jury verdict, meaning “we will uphold the district court's denial if, when viewed in the light most favorable to the State, some evidence exists from which the elements of the crime could be proven beyond a reasonable doubt.” Id. (quotation simplified).

¶22 In the event that we reject his directed verdict challenges, Neal seeks remand of the case to the trial court pursuant to rule 23B of the Utah Rules of Appellate Procedure “for entry of findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel.” Utah R. App. P. 23B(a). “A remand under rule 23B will only be granted upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” State v. Roybal, 2025 UT App 27, ¶ 13, 566 P.3d 749 (quotation simplified), cert. denied, 570 P.3d 657 (Utah 2025).

ANALYSIS

I. Directed Verdict Motion

¶23 Under Utah law, self-defense and defense of others constitute affirmative defenses that justify an individual's use of “force intended or likely to cause death or serious bodily injury.” Utah Code Ann. § 76-2-402(2)(b) (LexisNexis Supp. 2025).⁸ But the force is justified “only if the individual reasonably believes that force is necessary to prevent death or serious bodily injury” caused by the “imminent use of unlawful force, or to prevent the commission of a forcible felony.” Id. When a defendant facing a murder charge claims self-defense, the State “has the burden to prove beyond a reasonable doubt that the killing was not in self-defense,” State v. Palmer, 2025 UT App 135, ¶ 29, 577 P.3d 1285 (quotation simplified), cert. denied, 585 P.3d 46 (Utah 2026), “by disproving any single element” of the self-defense claim, State v. Wilcox, 2025 UT 31, ¶ 25, 579 P.3d 277.

¶24 “Self-defense may be perfect or imperfect.” State v. Silva, 2019 UT 36, ¶ 25, 456 P.3d 718. “Perfect self-defense is a complete justification [that] bars a conviction ․ when a defendant reasonably believes that unlawful force against him is imminent and he is legally justified in using force to defend himself.” Id. (quotation simplified). Conversely, “imperfect self-defense is a partial justification” that “reduces a murder charge to manslaughter when a defendant reasonably, but mistakenly, believes that the circumstances provided a legal justification or excuse for the use of deadly force.” Id. (quotation simplified). See Utah Code Ann. § 76-5-203(4)(a) (LexisNexis Supp. 2025). In sum, while both forms of a self-defense claim require “defendants to have a reasonable belief that the force they use is necessary to defend themselves from an imminent use of unlawful force or a forcible felony,” State v. Jennings, 2026 UT 4, ¶ 50, 585 P.3d 1217 (quotation simplified), perfect self-defense additionally requires that the defendant's actions be legally justified, Silva, 2019 UT 36, ¶ 29.

¶25 In challenging the trial court's denial of his directed verdict motion, Neal contends that the State did not satisfy its burden of disproving, beyond a reasonable doubt, his claims of perfect and imperfect self-defense. Specifically, Neal contends that the State failed to disprove that he reasonably believed that (1) Thomas threatened him with an imminent use of unlawful force and (2) deadly defensive force was necessary under the circumstances. We conclude that the State presented sufficient evidence to disprove Neal's claims of both perfect and imperfect self-defense for purposes of withstanding a directed verdict motion. See State v. Clara, 2024 UT 10, ¶ 34, 546 P.3d 963 (“A party who moves for a directed verdict has the very difficult burden of showing that no evidence exists that raises a question of material fact. Where there is any evidence that raises a question of material fact, no matter how improbable the evidence may appear, a directed verdict is improper.”) (emphasis in original; quotation otherwise simplified).

¶26 Again, the “reasonable belief” standard “is the same for both” perfect and imperfect self-defense. Silva, 2019 UT 36, ¶ 33. It “has both a subjective and an objective component,” meaning that a defendant “must genuinely, subjectively believe that unlawful force (or a forcible felony) is imminent, and that the force they are using is necessary to defend ․ from it,” and “those subjective beliefs must be objectively reasonable.” Jennings, 2026 UT 4, ¶ 50. See Wilcox, 2025 UT 31, ¶ 27. Further, when determining “imminence or reasonableness,” “the trier of fact may consider” the following factors: “(a) the nature of the danger; (b) the immediacy of the danger; (c) the probability that the unlawful force would result in death or serious bodily injury; (d) the other individual's prior violent acts or violent propensities; (e) any patterns of abuse or violence in the parties’ relationship; and (f) any other relevant factors.” Utah Code Ann. § 76-2-402(5).

¶27 Regarding the imminence of the alleged threat Thomas posed to Neal, Neal stresses that Thomas had a “reputation for violence in the punk-rock community”; Thomas returned to the venue just five or six minutes after being physically escorted out following the first physical altercation, demonstrating an intent to re-engage in violence; and surveillance footage showed that as soon as Neal reached the sidewalk, Thomas immediately threw an “overhand, roundhouse-like punch at” him. Neal further emphasizes that he did not have to wait for Thomas to land the punch before acting to protect himself.

¶28 Concerning the necessity of defensive force, Neal asserts that drawing his pocketknife to counter an imminent, armed assault was an objectively reasonable defensive action and that the State failed to present legally sufficient evidence to disprove his justification. Neal points to his own testimony that he observed “[s]omething shiny” and “metallic” appearing to be a weapon in Thomas's fist as he threw the punch, which Neal contends is consistent with the defense theory that Thomas had wrapped his spiked collar around his fist as “a makeshift set of brass knuckles.” He further asserts his testimony was corroborated by the security footage showing Thomas “twirl[ing]” something in his hand while walking toward the alley.

¶29 Although this evidence did support Neal's self-defense claims, there was also ample evidence from which the jury could instead choose to believe the State's theory of the case. See State v. Palmer, 2025 UT App 135, ¶ 35, 577 P.3d 1285 (“Ultimately, the jury is the exclusive judge of credibility. And the jury could have chosen to discredit the self-defense testimony from [the defendant] due to the State's evidence.”) (quotation simplified), cert. denied, 585 P.3d 46 (Utah 2026). As an initial matter, it was uncontested that Neal harbored animosity toward Thomas. Neal himself testified at trial that his mood changed as soon as he saw Thomas approach the admissions table, stating that he “did not like” Thomas because Thomas had a “reputation of either being a rapist or a pedophile” and for “being violent and causing ․ problems at concerts.”⁹ Matthew testified that Neal called Thomas “a fucking pedophile” upon approaching, and Neal himself acknowledged that he “might have” done so. It was also uncontested that no weapons were involved in the first physical altercation, which lasted less than a minute, and it was never alleged that Thomas threatened to return or to offer any further harm.

¶30 As for the second altercation in which Neal stabbed Thomas, security footage showed that Neal stepped toward Thomas as Thomas rounded the corner. Neal acknowledged that the pocketknife the investigators retrieved from the trash can was the one he used in the stabbing, and a detective testified that the knife could not be opened “by the flick of a wrist” but instead needed two hands to be opened. Neal confirmed this, stating that “[y]ou have to use your thumb” to open the knife and it could not be “flip[ped] open.” And the security footage showing that Neal stabbed Thomas within a second or less of them seeing each other contradicts Neal's assertion that he pulled the knife out of his pocket upon seeing “[s]omething shiny” and “metallic” in Thomas's fist. Rather, this evidence strongly suggests that Neal was waiting at the alley entrance with the open knife already in hand, ready to strike, and then stepped toward Thomas as he approached. Further, it is very difficult to discern from the footage who struck first. At the very least, a jury could readily disbelieve Neal's testimony that he saw anything in Thomas's fist based on the speed at which the two reacted upon seeing each other.

¶31 The State also presented evidence that Thomas was not armed. Although it appears from the surveillance footage that Thomas struck Neal in the head when his punch landed, the State presented photographs of Neal's head showing no injury corresponding to being struck by makeshift brass knuckles. Indeed, Neal suffered only minor injuries from that physical altercation, and he attributed the cut to his hand and wrist to his own knife rather than the spiked collar. The detective also opined that a fleeting “sheen” visible in the footage suggested that Thomas was still wearing the spiked collar around his neck as he approached the alley for the second time. The State also provided evidence suggesting that the item Thomas had in his hand at one point while approaching the alley and with which he made a “flipping motion” was the red vaping device found in his pants pocket. Indeed, the motion of the object does not readily appear to correspond with that of a spiked collar wrapped around his hand.

¶32 Also notable is that following the stabbing, Neal never mentioned self-defense or otherwise claimed that Thomas was armed. Instead, he declared to bystanders, “I just stabbed somebody. I have to get out of here,” and he told a band member, “You need to leave. I just stabbed someone.” He also did not respond when the tattoo artist repeatedly asked him, “What were you thinking?” Similarly, Neal made no mention of self-defense when he texted his mother that he “might go to jail,” instead seeming more concerned with clarifying that he was not the “[p]edophile” he mentioned in a subsequent text.

¶33 All this evidence supported the State's theory that Neal acted out of personal hostility toward Thomas, rather than out of necessity and that Neal contrived his self-defense claim after the fact, which defeats a claim of both perfect and imperfect self-defense. Accordingly, the trial court did not err in denying Neal's motion for a directed verdict.

II. Rule 23B Motion

¶34 In the event his challenges to the denial of the directed verdict motion are unsuccessful, and we have determined that they are, Neal alternatively seeks remand pursuant to rule 23B of the Utah Rules of Appellate Procedure to supplement the record with evidence necessary to support his argument that Counsel was ineffective for not adequately investigating the case. Specifically, Neal asserts that he told Counsel about another witness, Stella, who could testify about Thomas's reputation for violence and specific instances of his violent behavior at punk rock concerts, but Counsel told him that they “had enough” for his case. In her affidavit supporting Neal's rule 23B motion, Stella recounted specific instances of Thomas's past violent behavior and attached screenshots of text messages Thomas sent to his ex-wife threatening physical harm against Stella and another individual. Neal also asserts that Counsel's inadequate investigation failed to uncover that Thomas had previously pled guilty to an assault charge.

¶35 To obtain remand under rule 23B, “a defendant must present the court with the evidence he or she intends to present on remand and explain how that evidence supports both prongs of the ineffective assistance of counsel test.” Cedar City v. Braget, 2025 UT App 39, ¶ 43, 566 P.3d 1273 (quotation simplified), cert. denied, 578 P.3d 748 (Utah 2025). “If the motion cannot meet the test for ineffective assistance of counsel, then there is no reason to remand the case.” Id. (quotation simplified). That is, the defendant must show that (1) “counsel's performance was deficient” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “Failure to establish either prong is fatal to a defendant's ineffective assistance claim.” State v. King, 2010 UT App 396, ¶ 30, 248 P.3d 984. And here, Neal has not shown that Counsel's alleged deficient performance prejudiced him, i.e., that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

¶36 Critically, Neal has not alleged that, at the time of the stabbing, he was aware of the additional instances of violence to which Stella attested in her affidavit or of Thomas's assault conviction.¹⁰ But Neal's use of deadly force would have been justified “only if” he “reasonably believe[d] that” the force was “necessary to prevent death or serious bodily injury.” Utah Code Ann. § 76-2-402(2)(b) (LexisNexis Supp. 2025) (emphasis added). Accordingly, Stella's testimony and Thomas's prior conviction would have been relevant, and therefore admissible, only if Neal actually knew about those specific instances at the time of the stabbing. See State v. Sorbonne, 2020 UT App 48, ¶ 24, 462 P.3d 409 (stating that the self-defense statute “does not bestow defendants with the right to present evidence with broad narrative value of the alleged victim's violent character but rather” defendants must still “demonstrate that the testimony would be admissible under rule 404” of the Utah Rules of Evidence), aff'd, 2022 UT 5, 506 P.3d 545; id. ¶ 26 (stating that evidence of a victim's prior violent acts would be “relevant only if [the defendant] actually knew about the [victim's] prior violent acts—otherwise the acts could have no bearing on [the defendant's] state of mind and whether he reasonably evaluated the risk that [the victim] posed”). Accordingly, because the proffered evidence would not have been relevant to Neal's state of mind, Counsel's alleged failure to sufficiently investigate the case did not prejudice Neal's defense. We therefore deny his rule 23B motion.

CONCLUSION

¶37 Because the State presented sufficient evidence to disprove Neal's claims of both perfect and imperfect self-defense beyond a reasonable doubt, we affirm the trial court's denial of his motion for a directed verdict. We also deny Neal's rule 23B motion seeking remand to the trial court because Neal has not shown that, even if the allegations in his motion were true, Counsel was ineffective.

¶38 Affirmed.

FOOTNOTES

1.   Except for Neal, we anonymize all individuals referred to in this opinion.

3.   At trial, a detective opined that a fleeting “sheen” visible in the footage suggested that Thomas was still wearing the spiked collar around his neck.

4.   We retain the original spelling and punctuation.

5.   The State also charged Neal with one count of obstruction of justice, but the jury acquitted him on that charge.

6.   In addition to the testimony of Neal and Daphne regarding Thomas's reputation for violence, Counsel also pointed to Thomas's tattoos that stated, “Drink,” “Fuck,” and “Fight.” To rebut Neal's claim that Thomas had a reputation for violence, the State called Thomas's wife to the stand, who described Thomas as “gentle,” “tender,” “loving,” and “compassion[ate] for animals.” She testified that Thomas had never been violent toward her and she had never witnessed him being violent with anyone else, stating that “he was very much dedicated to non-violence towards all sentient beings.” On cross-examination, Thomas's wife acknowledged that while she “[p]retty much” always accompanied him to “shows,” she had not attended any local concerts with him in the six months since she moved to Utah.

7.   The State asserted that Thomas did not use his spiked collar as a weapon, stating that although the camera angle did not clearly show Thomas's neck, “if you very carefully observe that video, you'll see the same reflections four or five times in his neck area, indicating he had that spiked collar on when he was walking down and was then confronted by Mr. Neal.”

8.   Because the applicable provisions of the Utah Code in effect at the relevant time do not substantively differ from those currently in effect in any way material to this appeal, we cite the most recent printed version of the code.

9.   Although Neal testified after Counsel lodged the directed verdict motion, we may nonetheless rely on the evidence presented after the trial court's denial of the motion in affirming the denial because “a defendant cannot complain of the insufficiency of the evidence to sustain the verdict, though the state failed to make a case, if he himself proved one for it.” State v. Bush, 2025 UT App 87, ¶ 15, 572 P.3d 449 (quotation simplified), cert. denied, 585 P.3d 44 (Utah 2026). Indeed, Neal's appellate argument points to his own testimony that he observed “[s]omething shiny” and “metallic” in Thomas's hand as Thomas threw the punch. In any event, the State also presented other evidence, such as Matthew's and Daphne's testimony and Neal's messages with Mother, demonstrating Neal's animosity toward Thomas.

10.   Neal already testified regarding one of the specific instances Stella mentioned in her affidavit: the concert Thomas attended five years earlier with a sharp object attached to his boots. And Daphne additionally testified that Thomas “was known for wearing sharp objects in mosh pits” and “had a reputation of not being safe at shows.” In light of this, Stella's testimony regarding that one instance would have been cumulative, and therefore her absence at trial as a defense witness was not prejudicial on that point. See State v. Samples, 2022 UT App 125, ¶ 74, 521 P.3d 526 (“Cumulative testimony typically doesn't offer anything new or additional to the evidentiary picture.”) (quotation simplified), cert. denied, 525 P.3d 1279 (Utah 2023).

ORME, Judge: