State of Utah, v. Aranda

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Debra Larece Aranda,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000720-CA

F I L E D
February 22, 2002 2002 UT App 52 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Catherine E. Lilly and David V. Finlayson, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Thorne.

GREENWOOD, Judge:

Defendant appeals her convictions of Aggravated Burglary, a first degree felony, in violation of Utah Code Ann. § 76-6-203 (1999); two counts of Aggravated Robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1999); Unlawful Possession of a Controlled Substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1999). We affirm.

Defendant argues that the trial court exceeded its discretion by denying her motion for a continuance and subsequent motion for a new trial because the testimony of Terry Pierce, the missing witness, would have supported her compulsion defense.

To establish that the trial court exceeded its discretion in denying defendant's motion to continue based on the absence of her witness, defendant must show that the testimony sought is material and admissible. See State v. Creviston, 646 P.2d 750, 752 (Utah 1982) (listing factors required to justify continuance). Similarly, for defendant to show an abuse of discretion in the denial of a motion for a new trial, she must "make some plausible showing that the testimony of the absent witness 'would have been both material and favorable to [her] defense.'" State v. Schreuder, 712 P.2d 264, 274 (Utah 1985) (citations omitted); see also Utah R. Crim. P. 24(a) ("[C]ourt may, upon motion of a party or upon its own initiative, grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party.").

For testimony to be considered material and therefore its exclusion prejudicial,(1) there must be "a reasonable probability that its presence would [have] affect[ed] the outcome of the trial. 'A reasonable probability is a probability sufficient to undermine the confidence in the outcome.'" Schreuder, 712 P.2d at 275 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. Id.

Defendant fails to establish how Pierce's testimony would have been material within the context of her compulsion defense. For defendant to have successfully asserted the compulsion defense, she needed to show that she or the victims were "faced with . . . specific imminent threat[s]" at the time when the crimes were occurring, and that there was "no reasonable legal alternative to violating the law." State v. Ott, 763 P.2d 810, 812 (Utah Ct. App. 1988). Even assuming that all of Pierce's testimony would have been admissible, it is difficult to see how it would have been material in establishing defendant's compulsion defense. Furthermore, given the overwhelming evidence presented against defendant by the State, we cannot say that Pierce's testimony would have changed the outcome of the trial. Therefore, defendant fails to meet the materiality element required to show abuse of discretion under both a motion to continue and a motion for a new trial.

Defendant also argues that under Utah Rule of Evidence 405(b), the trial court erred when it excluded evidence, on the basis of hearsay, regarding her two co-perpetrators' violent criminal history and character. Rule 405(b) states: "In cases in which character or a trait of character of a person is [an] essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct." Id. (emphasis added).

We fail to see how evidence regarding the violent criminal history and character of defendant's co-perpetrators would have established an "essential element" to defendant's compulsion defense. This defense requires that defendant or the victims at the time were "faced with a specific, imminent threat of death or serious bodily harm" if defendant did not assist her co-perpetrators in committing these crimes, and that "there [were] no reasonable legal alternative[s] to violating the law." Ott, 763 P.2d at 812. The evidence offered fails to relate to any "specific" or "imminent" threat at the time of the crime.

We conclude that this evidence was not an "essential element" of defendant's compulsion defense. Consequently, any error in excluding this evidence was harmless. See Utah R. Evid. 405(b). Thus, we do not reach defendant's hearsay argument.

Accordingly, we affirm.
 
 
 

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

WE CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. Because a showing of materiality is needed under both a motion for a continuance and a new trial, we address the materiality element under the more specific criteria of a motion for a continuance.