State of Utah, v. Lehi

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Rodney Lehi,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010139-CA

F I L E D
April 11, 2002 2002 UT App 107 -----

Seventh District, Monticello Department
The Honorable Lyle R. Anderson

Attorneys:
William L. Schultz, Moab, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

-----

Before Judges Bench, Davis, and Orme.

BENCH, Judge:

Utah Code Ann. § 41-6-44(6)(a)(ii) (1998)(1) provides, in part, that "[a] third or subsequent conviction for a [DUI or alcohol related] violation committed within six years of two or more prior convictions under this section is a: . . . third degree felony." Id.

In charging Defendant with a third degree felony, the State asserted that it would prove three prior convictions, although the statute only requires proof of two. Defendant argues that the State failed to meet its burden of proving three prior DUI convictions for enhancement to a third degree felony and that it should not have been allowed to amend the information after the jury had reached its verdict. The parties stipulated beforehand that the trial would be bifurcated, with the jury deciding whether Defendant was guilty of a DUI, and the court ruling on the enhancement issue. The State did not amend the information regarding the number of convictions it would prove, two instead of three, until after the jury returned its verdict. The State did, however, amend the information before the issue of enhancement was decided by the court.

For a DUI to be enhanced to a third degree felony, a third conviction for a violation committed within six years of two or more prior convictions is necessary. See Utah Code Ann. § 41-6-44(6)(a). The State submitted certified copies of two prior convictions at trial: one from Wayne County Court, dated 1998, and another from San Juan County Court, dated 1994. Defendant's current conviction was for a 1999 violation. Therefore, all the requirements for enhancement to a third degree felony have been met. See id.

Defendant claims that his constitutional right to notice was violated since the State did not prove the three prior convictions it had alleged at the preliminary hearing. A defendant has a right to adequate notice of the charged offense under the Utah Constitution. See State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991). Article I, section 12 of the Utah Constitution states "the accused shall have the right . . . to demand the nature and cause of the accusation against him." The constitutional requirement of notice is met as long as the defendant is sufficiently aware of the State's evidence upon which the charge is based, so that the defendant can prepare an adequate defense. See Wilcox, 808 P.2d at 1031-32.

Defendant admitted to knowing of the State's intent to prove prior convictions for enhancement to a third degree felony. Defendant concedes that this information gave him notice that he was answering to a felony DUI charge. Defendant's statements demonstrate that he was sufficiently aware of the charges against him, and that he had sufficient knowledge to prepare an adequate defense. An alleged additional conviction, beyond what the statute requires, would increase--not diminish--Defendant's awareness of the need to defend against a felony charge. As the trial court noted, there was no prejudice or unfair surprise to Defendant, because Defendant clearly had knowledge regarding the statute. Based on the foregoing, we conclude that Defendant's constitutional right to notice was satisfied.

Finally, Defendant challenges the sufficiency of the evidence. The Utah Supreme Court has stated that, "[a]s a general rule, claims not raised before the trial court may not be raised on appeal . . . unless the defendant can demonstrate that 'exceptional circumstances' exist or 'plain error' occurred." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346 (citations omitted). To preserve a claim challenging the sufficiency of the evidence on appeal, a defendant must raise the issue "by proper motion or objection." Id. at ¶16. We find no preservation of this claim in the record. On appeal, Defendant has not even attempted to demonstrate that "exceptional circumstances" exist or that "plain error" occurred.

Accordingly, we affirm the judgment of the trial court.
 
 

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

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Utah Code Annotated § 41-6-44 has subsequently been revised by the legislature. We quote the version in effect at the time of Defendant's conviction.