State of Utah v. Snyder

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Patricia Ann Snyder,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000822-CA

F I L E D
September 7, 2001 2001 UT App 260 -----

Fifth District, Cedar City Department
The Honorable J. Philip Eves

Attorneys:
Patricia Ann Snyder, Cedar City, Appellant Pro Se
Paul A. Bittmenn, Cedar City, for Appellee

-----

Before Judges Jackson, Billings, and Davis.

JACKSON, Associate Presiding Judge:

Patricia Ann Snyder appeals from her conviction for Wrongful Appropriation, a class A misdemeanor under Utah Code Ann. § 76-6-404.5 (1999). Snyder argues that section 76-6-404.5 is unconstitutional because "the terms 'without consent' and 'unauthorized control' are void for vagueness." She also argues, for the first time in her reply brief, that the trial court committed plain error by failing to consider a right of adequate assurances. See Utah Code Ann. § 70A-2-609 (1997). We affirm.

Snyder did not raise her constitutional challenge in the trial court. "[W]e will review issues raised for the first time on appeal only if exceptional circumstances or 'plain error' exist[]." Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994). This rule applies equally "to constitutional questions advanced for the first time on appeal." State v. Archambeau, 820 P.2d 920, 922 (Utah Ct. App. 1991). Here, "because [Snyder] 'does not argue that "exceptional circumstances" or "plain error" justifies a review of [this] issue[],' this court will 'decline to consider [it] on appeal.'" State v. Bryant, 965 P.2d 539, 547 (Utah Ct. App. 1998) (citation omitted).

Snyder also argues, for the first time in her reply brief, that the trial court committed plain error by not applying section 70A-2-609, which provides that a party to a contract for sale has the right to adequate assurances of performance by the other party. See Utah Code Ann. § 70A-2-609 (1997). "Under rule 24(c) of the Utah Rules of Appellate Procedure, a reply brief is 'limited to answering any new matter set forth in the opposing brief.'" State v. Kruger, 2000 UT 60,¶21, 6 P.3d 1116 (quoting Utah R. App. P. 24(c)). Snyder asserts that her argument responds to the argument in the State's brief that she did not argue plain error in her initial brief. However, the State's argument only attacks Snyder's constitutional argument and does not address the adequate assurances argument. Thus, the State's assertion that Snyder's constitutional argument failed to argue plain error does "not constitute a 'new matter' entitling [Snyder] to brief the [adequate assurances] issue in [her] reply brief." Id. Accordingly, we decline to address the merits of Snyder's adequate assurances argument.

We affirm.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
James Z. Davis, Judge