State of Utah v. Gimple

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Michael S. Gimple,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990989-CA

F I L E D
June 20, 2002 2002 UT App 210 -----

Fourth District, Provo Department
The Honorable Lynn W. Davis

Attorneys:
Vanessa Ramos-Smith, Salt Lake City, for Appellant
John J. Easton, Provo, for Appellee -----

Before Judges Billings, Bench, and Orme.

ORME, Judge:

"On appeal from a bench trial, '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.'" Tanner v. Carter, 2001 UT 18,¶2, 20 P.3d 332 (quoting Utah R. Civ. P. 52(a)). Given the testimony regarding Gimple's driving behavior prior to the accident coupled with the testimony about the weather conditions, the weight of his load, and his use of a "non-braked" trailer, we cannot say that the evidence, as a matter of law, manifested nothing more than a routine mistake of judgment or ordinary negligence. Thus, the trial court's finding of criminal negligence was not clearly erroneous.

As to the corpus delicti issue, while it might be something of an overstatement to characterize Defendant's action as a stipulation, Defendant stated prior to trial, in a motion in limine, that "[s]ince William S. Ellwood was killed in the accident, the only issue to be determined at trial is whether Defendant's actions rise to the level of criminal negligence." The prosecution and the trial court were entitled to rely on Gimple's factual concession and his characterization of what was in issue at trial, unilateral though they may have been.

Finally, "[t]he general rule is that '"[a]n erroneous decision to admit or exclude evidence does not constitute reversible error unless the error is harmful."'" State v. Jaegar, 1999 UT 1,¶30, 973 P.2d 404 (citations omitted). The rather stale evidence of Gimple's prior assault charges was admitted for the sole purpose of impeaching Dressen's credibility. Dressen had, however, already been effectively impeached.(1) Thus, even assuming error in the admission of that evidence, any such error was harmless. See State v. Diaz, 859 P.2d 19, 23 (Utah Ct. App. 1993).

Affirmed.(2)
 
 

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

WE CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge

1. Dressen specifically denied that when Gimple passed Grenerlee's truck, Gimple nearly collided with a vehicle traveling the opposite direction, and Dressen repeatedly stated that she and Gimple were not in a hurry. Yet her denial of a near collision was directly contradicted by Grenerlee's testimony, and her assertion that she and Gimple were not in a hurry was challenged by nearly every other eyewitness that took the stand.

2. Gimple raises two other issues, each meriting only brief comment. First, we see no abuse of discretion in the trial court's admission of evidence relating to Gimple's driving at various times prior to the accident. See State v. Park, 17 Utah 2d 90, 404 P.2d 677, 679 (1965). On the contrary, the trial court commendably parsed evidence of Gimple's driving behavior, excluding some evidence as relating to incidents too remote in time and limiting other evidence to credibility only.

Second, the court made extensive inquiry of the witnesses who violated the exclusionary rule and permitted extensive impeachment of those witnesses. Gimple has not demonstrated an abuse of discretion in the court's failure to grant a mistrial due to the exclusionary rule violations. See State v. McGrath, 749 P.2d 631, 634 (Utah 1988); State v. Dodge, 564 P.2d 312, 313 (Utah 1977).