Orem City v. Sykes

----ooOoo----

Orem City,
Plaintiff and Appellee,

v.

Dwane J. Sykes,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981415-CA
F I L E D
May 4, 2000
  2000 UT App 126 -----

Fourth District, Orem Department
The Honorable John Backlund

Attorneys:
Randy M. Lish, Provo, for Appellant
Robert J. Church, Orem, for Appellee -----

Before Judges Jackson, Bench, and Billings.

BENCH, Judge:

Defendant argues that the evidence adduced at trial did not establish his guilt beyond a reasonable doubt. "Where there is any evidence, including reasonable inferences that can be drawn from it, from which findings of all the elements of the crime can be made beyond a reasonable doubt, . . . we will sustain the verdict." State v. Gardner, 789 P.2d 273, 285 (Utah 1989). Furthermore, when challenging the sufficiency of the evidence, a defendant "must marshal all of the evidence in support of the trial court's findings of fact and then demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the finding against an attack." State v. Moosman, 794 P.2d 474, 475-76 (Utah 1990). Instead of marshaling the evidence supporting his convictions and then demonstrating that the evidence was insufficient, defendant simply recounts his version of the facts. "Since defendant has not marshaled the evidence supporting his conviction[s], much less demonstrated why this evidence is so inconclusive that a reasonable [fact finder] could not have convicted him, it would be inappropriate for this court to entertain the merits of defendant's argument on this issue." State v. Scheel, 823 P.2d 470, 473 (Utah Ct. App. 1991). Accordingly, we do not address defendant's sufficiency of the evidence arguments.

We also do not address defendant's argument that "the prosecution should not have been allowed to introduce or use any documents which had been requested but not produced" because defendant did not raise this issue in the trial court. "When the prosecution introduces unexpected testimony, a defendant 'essentially waive[s] his right to later claim error' if the defendant fails to request a continuance or seek other appropriate relief under Rule 16(g)." State v. Rugebregt, 965 P.2d 518, 522 (Utah Ct. App. 1998) (citation omitted); see Utah R. Crim. P. 16(g) (permitting trial court to fashion appropriate remedy for failure to provide discovery, such as continuance or prohibition on introduction of previously undisclosed evidence). Defendant did not object to the prosecution's failure to provide discovery, he did not request a continuance, and he did not object to the testimony when it was offered. Further, defendant has not argued plain error or exceptional circumstances. Thus, defendant has "waived his Rule 16 challenge," Rugebregt, 965 P.2d at 523, and has failed to preserve it for appeal.

Defendant next argues that the admission of Officer Carter's hearsay testimony concerning the dispatcher's telephone call to defendant's home is grounds for reversal. The relevant portion of the officer's testimony simply revealed the following: the dispatcher called the defendant's home shortly after the incident; the dispatcher spoke with a woman who identified herself as Mrs. Sykes; and the woman indicated she would go and get defendant, whereupon the phone line went dead. Even if this testimony was improperly admitted, "a reversal is not warranted absent a showing of prejudice." State v. Wetzel, 868 P.2d 64, 69 (Utah 1993). Exclusion of the portion of Officer Carter's testimony concerning the dispatcher's telephone call would not have changed the outcome in this case because there was "ample evidence to convict defendant even without this testimony." Id. Hence, "[b]ecause defendant cannot show a 'reasonable likelihood that the error affected the outcome of the proceedings,' we hold that [any] error was harmless." Id. (citation omitted).

Defendant's final argument is that he was denied the effective assistance of counsel. "'In order to bring a successful ineffective assistance of counsel claim, [defendant] must show that his trial counsel's performance was deficient . . . and that the deficient performance prejudiced the outcome of the trial.'" State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998) (citations omitted). In analyzing defendant's claim, we can "skip to the [prejudice] prong . . . and determine that the ineffectiveness, if any, did not prejudice the trial's outcome." State v. Goddard, 871 P.2d 540, 545 (Utah 1994). Prejudice exists "only where the error undermines our confidence in the verdict against the defendant." State v. Snyder, 860 P.2d 351, 359 (Utah Ct. App. 1993). Our confidence in the outcome is not undermined by the alleged deficiencies in defendant's representation because the case against defendant was so strong that there was no reasonable probability of a more favorable outcome without the alleged deficiencies.

Affirmed.
 
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge