State of Utah v. Munoz

State v. Munoz

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Daniel Mario Gonzales Munoz,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020662-CA
 

F I L E D
(October 23, 2003)
 

2003 UT App 362

 

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Fourth District, Fillmore Department

The Honorable Donald J. Eyre Jr.

Attorneys: James K. Slavens, Fillmore, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

THORNE, Judge:

Defendant, Daniel Mario Munoz, appeals his conviction for the rape of a thirteen-year-old girl. We affirm.

Munoz claims that the trial court erred in seating a jury that included an uncle and niece, related only by marriage; erred in denying trial counsel's motion to withdraw; and erred in permitting the State to call to the jury's attention Munoz's decision not to testify. Rule 24(a)(9) of the Utah Rules of Appellate Procedure requires that appellate briefs include "citations to authorities, statutes, and parts of the record relied on." Moreover, rule 24 "requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority." State v. Thomas, 961 P.2d 299, 305 (Utah 1998). Because Munoz failed to meet his briefing duty for these arguments under rule 24, we are unable to perform an adequate appellate review and do not address these arguments. See Utah R. App. P. 24; Burns v. Summerhays, 927 P.2d 197, 199-200 (Utah Ct. App. 1996).

Munoz, next argues that the trial court erroneously admitted the statements of the victim as an excited utterance, that the trial court erred in admitting the videotape of her statement, and that the trial court erred in allowing portions of the transcript to be read to the jury. We conclude that Munoz either waived his objections to the admission of this evidence or that the trial court provided an alternate ground to admit the evidence that Munoz does not challenge on appeal. See Utah R. Crim. P. 12(d) ("Failure of the defendant to timely raise defenses or objections or to make requests which must be made prior to trial or at the time set by the court shall constitute waiver thereof . . . ."); State v. Wach, 2001 UT 35,¶38, 24 P.3d 948 (quoting Utah R. Crim. P. 12(d)).

Munoz argues that the videotape does not meet the criteria set forth in rule 15.5 of the Utah Rules of Criminal Procedure, that it is hearsay, and that the transcript unduly emphasizes the victim's testimony. Before the videotape was played for the jury, the court asked Munoz if he had any objections and he said that he did not. Furthermore, Munoz never raised below his objection that reading from the transcript inappropriately emphasized the victim's testimony and, thereby, waived this argument.

Here, the trial court admitted the victim's statements pursuant to Utah Code Annotated section 76-5-411 (1999)(1) and only classified the statements as an excited utterance in the alternative. Munoz does not challenge the admission of the victim's statements pursuant to section 76-5-411, thereby waiving any objection on this ground.

For these reasons, we affirm.

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William A. Thorne Jr., Judge

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WE CONCUR:

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

1. Utah Code Annotated section 76-5-411 (1999) allows courts to admit the out-of-court statements of a child victim of sexual abuse even if such statements do not qualify under an existing hearsay exception.