State of Utah v. Hatch

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Kandice Jean Hatch,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981585-CA

F I L E D
February 10, 2000
  2000 UT App 024 -----

Eighth District, Vernal Department
The Honorable A. Lynn Payne

Attorneys:
Wesley M. Baden, Vernal, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

ORME, Judge:

"As we have repeatedly held, failure to object constitutes waiver of the objection[,]" and, consequently, any issue not preserved is ordinarily not appealable. State v. Olsen, 860 P.2d 332, 335 (Utah 1993). See Utah R. Crim. P. 12(d). Without making a proper objection, "[a] defendant is precluded from presenting an issue for the first time on appeal unless the defendant, on appeal, persuades us the trial court committed plain error or that there are other exceptional circumstances." State v. Sepulveda, 842 P.2d 913, 917-18 (Utah Ct. App. 1992).

Hatch basically concedes that no pertinent objection was made during opening statements, during the in-chambers discussions, during cross-examination of Hatch, or during the officer's rebuttal testimony. Hatch identifies no alternative grounds for seeking appellate review in her opening brief.(1)

Hatch, in her reply brief, does allege that the trial court's sua sponte treatment of certain issues in chambers made it unnecessary for her to object. Even if this contention were presented in the opening brief, we would reject it. Commendably, the trial court put its in-chambers conference on the record, thus giving counsel the ready opportunity to register any objections on the record if so inclined. In fact, the prosecution did object to the trial court's decision not to allow Hatch's admissions under Rule 404(b), providing a contemporaneous precedent for Hatch's counsel if counsel were unsure of the ground rules for the conference. Failure to interpose appropriate objections during the conference constitutes waiver of any complaint about how those issues were resolved. SeeOlsen, 860 P.2d at 335.

Hatch invokes the plain error doctrine, but we will not address arguments raised for the first time in the reply brief, including claims of plain error. See State v. Blubaugh, 904 P.2d 688, 700 n.8 (Utah Ct. App. 1995), cert. denied, 913 P.2d 749 (Utah 1996). Consequently, Hatch's Rule 608 and 609 issues, as well as her claims of prosecutorial misconduct, are not appealable.

The only remaining issues before us are (1) Hatch's claim that the prosecution failed to lay a proper foundation before the officer testified about her reputation for untruthfulness in the community and (2) her claim of insufficient evidence to convict. We have carefully considered these issues and conclude they are without merit. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (holding that appellate court "need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal"). See also id. at 889 ("[I]t is a maxim of appellate review that the nature and extent of an opinion rendered by an appellate court is largely discretionary with that court."). Cf. Reese v. Reese, 984 P.2d 987, 991 (Utah 1999) (to facilitate Supreme Court certiorari review, court of appeals must "at the very least identif[y] the basis for refusing to treat an issue").

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge

1. Utah Rule of Appellate Procedure 24 states: The brief of the appellant shall contain . . . [a] statement of the issues presented for review, including for each issue: the standard of appellate review with supporting authority; and (A) citation to the record showing that the issue was preserved in the trial court; or (B) a statement of grounds for seeking review of an issue not preserved in the trial court. No doubt with this rule in mind, Hatch did a nice job in her opening brief of identifying the issues presented for review, and she appropriately identified the standard of review for each. It is rather telling that her opening brief is nonetheless devoid of any citation to the record indicating where the issues were preserved. Nor does that brief contain, for any of the issues, a statement of alternative grounds for seeking review.