State of Utah v. Norcross

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State of Utah,
Plaintiff and Appellee,

v.

Shaun Brett Norcross,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981146-CA

F I L E D
April 1, 1999
  1999 UT App 100 -----

Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
Kenneth L. Combs, St. George, for Appellant
Ryan J. Shaum, St. George, for Appellee

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Before Judges Wilkins, Davis, and Orme.

PER CURIAM:

Appellant Shaun B. Norcross appeals his conviction of violation of a protective order, a class A misdemeanor.

Norcross now concedes the trial court did not err in finding he was properly served with the protective order and further concedes the contention the protective order was vague, ambiguous and failed to put him on notice of the prohibited conduct was not preserved for appellate review. The remaining claim challenges the sufficiency of the evidence supporting the verdict.

"In reviewing a challenge to the sufficiency of the evidence in a bench trial, we review the evidence to see whether the verdict is clearly erroneous." State v. Walker, 743 P.2d 191, 193 (Utah 1987). Under the clearly erroneous standard, the verdict will be set aside only if it is against the clear weight of the evidence or "if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." Id.

Norcross focuses almost exclusively on a lack of evidence that he was physically present on his ex-wife's property, arguing that he did not violate the prohibition to "stay away" from the property by riding a bicycle in the street in front of the property or stopping across the street from the property. Norcross also asserts there was no evidence that while on property belonging to someone else he was harassing or attempting to harass Ms. Norcross. This argument ignores the obvious inferences from the fact he positioned himself directly across a narrow street from the property in a manner calculated to make himself visible. Having determined that Ms. Norcross' testimony was more credible than that of the defendant, the trial court's ruling that Norcross intentionally violated the protective order was supported by sufficient evidence and is not clearly erroneous. See Promax Development Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct. App.), cert. denied, 953 P.2d 449 (Utah 1997). ("[I]t is the trial court's role to assess witness credibility, given its advantaged position to observe testimony first hand, and normally, we will not second guess the trial court's findings in this regard.").

Accordingly, we affirm the judgment.
 
 
 

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Michael J. Wilkins,
Presiding Judge
 
 
 

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James Z. Davis, Judge
 
 
 

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Gregory K. Orme, Judge