State of Utah, v. Thompson

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

James L. Thompson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990437-CA

F I L E D
April 11, 2002 2002 UT App 101 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
David O. Black, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.
ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

Sufficiency of the Evidence

Both intent and willfulness, as mens rea elements of a crime, are defined by Utah statute, see Utah Code Ann. § 76-2-103(1) (1995), and "we presume that when the legislature defines a term of art and later uses that term in the same body of statutes, it intends a consistent meaning." State v. Vigil, 842 P.2d 843, 847 (Utah 1992). Our review of the record confirms that the evidence was sufficient to support findings that Thompson acted intentionally and willfully, as defined by applicable Utah statute, in attempting to evade payment of income tax and in filing a false income tax return. See Utah Code Ann. § 76-8-1101(1)(b), (c) (1995).

"Good Faith" Jury Instruction

Thompson's argument is foreclosed by our holding and analysis in State v. Stringham, 2001 UT App 13,¶¶17-23, 17 P.3d 1153. Under Stringham, jury instructions 18, 19, 22, 28-30, and 34 were sufficient to obviate the need for a separate instruction on good faith.

Motion for New Trial

"[I]n order to constitute grounds for a new trial, evidence [not introduced at trial] 'must meet three criteria[, the first of which is that i]t must be such as could not with reasonable diligence have been discovered and produced at the trial[.]'" State v. James, 819 P.2d 781, 793 (Utah 1991) (quoting State v. Gellatly, 22 Utah 2d 149, 449 P.2d 993, 996 (1969)). Here, the prosecutor informed defense counsel just prior to trial that Davis would testify that he obtained the ledger from Thompson's wife. Thus, Thompson cannot show that evidence of Davis's alleged perjury could not have been discovered and produced at trial. The other claims concerning Davis that Thompson raises in support of his argument for a new trial have no record support and were not raised below. We thus decline to address them. See State v. Litherland, 2000 UT 76,¶17, 12 P.3d 92.

Reconstruction of Record

"[R]econstruction of the record may be appropriate in circumstances where only a minor portion of the record is missing[.]" State v. Tunzi, 2000 UT 38,¶3, 998 P.2d 816 (Mem.). Such was the case here.

Affirmed.
 
 

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

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
James Z. Davis, Judge