Salt Lake City v. Woitock

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Salt Lake City,
Plaintiff and Appellee,

v.

David Woitock,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990226-CA

F I L E D
December 2, 1999
  1999 UT App 341 -----

Third District, Salt Lake Department
The Honorable Sheila K. McCleve

Attorneys:
Andrea J. Garland, Salt Lake City, for Appellant
T. Langdon Fisher, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Jackson.

PER CURIAM:

David Woitock appeals from his conviction of Battery, a class B misdemeanor. Woitock concedes that the issue related to his sentence has become moot. He did not seek a stay of his sentence pending this appeal. We agree that the issue is moot and decline to consider whether the trial court erred in sentencing Woitock.

The remaining issue is whether the trial court erred in excluding evidence regarding the level of police protection. The City argues that this issue was not properly preserved, has not been adequately briefed, and is without merit. We agree. Woitock argues that the excluded evidence was relevant to the self defense claim because he "reasonably believed that force was necessary to defend himself from Mr. Headman's imminent use of unlawful force," and the police had failed in their duty to protect residents on prior occasions. However, there was no evidence offered at trial to indicate that any use of force by the 14-year-old victim was either threatened or imminent. Accordingly, the self defense argument is fundamentally flawed.

Woitock's claim that evidence related to lack of police protection was erroneously excluded was neither adequately preserved nor adequately briefed on appeal. A verdict will not be "set aside . . . because of the erroneous exclusion of evidence unless a proffer of evidence appears of record, and we believe that the excluded evidence would probably have had a substantial influence in bringing about a different verdict." State v. Arguelles, 921 P.2d 439, 445 (Utah 1996). Nowhere in the record is there a proffer of the evidence that Woitock contends was improperly excluded. However, even assuming that the evidence suggested that the police had failed to effectively respond to complaints, or that tolerating vandalism by students was conducive to crime, Woitock has failed to demonstrate that the excluded evidence would probably have produced a different verdict. The contention that Woitock reasonably believed he had to defend himself from an imminent threat that the victim would use unlawful force is without any support in the record. Because Woitock's belief that he needed to defend himself was not reasonable, the excluded evidence was unlikely to produce a different verdict.

Affirmed.
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
Norman H. Jackson, Judge