WVC v. Norris

----ooOoo----

West Valley City,
Plaintiff and Appellee,

v.

Richard F. Norris,
Defendant and Appellant.
MEMORANDUM DECISION

(Not For Official Publication)

Case No. 990028-CA

F I L E D
September 27, 2001 2001 UT App 279 -----

Third District, West Valley Department
The Honorable Anthony B. Quinn

Attorneys:
Steven D. Miller, Salt Lake City, for Appellant
Elliot R. Lawrence, West Valley City, for Appellee

-----

Before Judges Greenwood, Jackson, and Bench.

GREENWOOD, Presiding Judge:

Defendant appeals his conviction of Child Abuse, a Class B Misdemeanor, in violation of Utah Code Ann. § 76-5-109 (1999), for injuring his daughter, A.N. We affirm.

Defendant argues the trial court erred in denying his request on the day of trial for a continuance to locate Officer Orvalle. Orvalle was the desk officer who took A.N.'s, her sister's, and their mother's statements regarding the abuse. "A trial court's decision to either grant or deny a continuance is clearly within its discretion." State v. Tolano, 2001 UT App 37,¶5, 19 P.3d 400. Further, When moving for a continuance, the moving party must show that denial of the motion will prevent the party from obtaining material and admissible evidence, that any additional witnesses it seeks can be produced within a reasonable time, and that it has exercised due diligence in preparing for the case before requesting the continuance. State v. Horton, 848 P.2d 708, 714 (Utah Ct. App. 1993).

Defendant has failed to meet at least two of the Horton prongs. First, defendant did not show that Orvalle would have offered material evidence. Counsel for defendant argued Orvalle could testify as to whether marks were present on A.N. when A.N. filed her report three days after the abuse occurred. However, both the police record and A.N.'s testimony indicated that A.N. had no marks when she filed her report with Orvalle. Therefore, on that point Orvalle's testimony would not have been material. Defense counsel also suggested that, because Orvalle spoke to the sisters and their mother, Orvalle could "maybe question their veracity a little bit." However, "[w]here the content of the prospective witness' testimony is speculative . . . , it is not an abuse of discretion to deny a continuance." State v. Creviston, 646 P.2d 750, 752 (Utah 1982).

Second, defendant's only claim regarding his exercise of due diligence was that he requested assistance from the prosecutor's office in locating Orvalle. Defendant, although aware that the witness was in the military, never requested that the military assist in locating the witness. Further, the record indicates that defendant also requested the first of two continuances to locate this witness on May 8, 1999. The trial court continued the trial from May 14, 1999 to June 29, 1999 to accommodate the request, but defendant failed to take further steps to locate the witness. Therefore, defendant did not meet his due diligence requirement.

Defendant also challenges the sufficiency of the evidence to support a finding of child abuse. "When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or if [we] otherwise reach[] a definite and firm conviction that a mistake has been made." American Fork City v. Rothe, 2000 UT App 277,¶4, 12 P.3d 108 (quotations and citations omitted). "Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Utah R. Civ. P. 52(a).

In the present case, the evidence supports the trial court's determination that defendant intentionally injured A.N. A.N., her sister, and her mother testified that defendant grabbed A.N.'s arm and threw her, resulting in red marks on her arm. Both girls and their mother testified that these marks remained at least two days. Defendant argues the testimony of Mrs. Evans indicated A.N. was wearing a heavy parka on the day of the incident that would have protected her arm. Defendant's other witness testified the girls were told to lie about the abuse. However, the trial court did not find Mrs. Evans as credible as the girls. The trial court found the other witness also lacked credibility and also found Mrs. Evans's testimony to be improper. Giving deference to the trial court for its first-hand experience with the witnesses, we conclude the evidence supports the trial court's finding that defendant abused A.N. We further conclude that the trial court did not err in determining the red marks constituted "physical injury" within the meaning of Utah Code Ann. § 76-5-109(1)(c) (1998).

Defendant raises other issues on appeal claiming ineffective assistance of counsel and no valid waiver of a right to a jury trial. However, after an examination of these issues, we find both are inadequately briefed and without merit, and we therefore do not address them further.

Affirmed.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge