State v. Hartman

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Howard Hartman,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020731-CA
 

F I L E D
(May 27, 2004)
 

2004 UT App 175

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Fifth District, St. George Department

The Honorable James L. Shumate

Attorneys: Margaret P. Lindsay, Provo, for Appellant

Brock R. Belnap and O. Brenton Rowe, St. George, for Appellee

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Before Judges Bench, Davis, and Greenwood.

BENCH, Associate Presiding Judge:

Defendant Howard Hartman argues that the evidence presented at trial was insufficient to establish that he violated a protective order. It is well established that "'when reviewing a bench trial for sufficiency of evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence.'" State v. Larsen, 2000 UT App 106,¶10, 999 P.2d 1252 (other quotations and citations omitted). Furthermore, in challenging the sufficiency of the evidence, a defendant "'must marshal all of the evidence in support of the trial court's findings of fact and then demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the findings against an attack.'" Id. at ¶11 (citation omitted).

On appeal, Hartman fails to marshal at least two critical pieces of evidence offered by the State on which the trial court ultimately based its decision. First, while Hartman concedes that a protective order preventing him from contacting his wife by telephone was issued on September 27, 1999, he does not mention that the order was in effect until December 2099. Second, Hartman makes no reference to a written statement made by his wife to the police when he called her on December 12, 1999. Therefore, Hartman fails to "marshal all of the evidence in support of the trial court's findings." Id.

In any event, the evidence is sufficient to support the court's finding of guilt. At trial, Hartman's wife's written statement to the police was received into evidence without objection. The statement clearly shows that Hartman made a telephone call to his wife during the time the protective order was in effect. Further, Hartman offers no evidence to refute, or even challenge, the validity of the protective order, or the truthfulness of his wife's written statement. Accordingly, the court's finding that Hartman violated the protective order was not "against the clear weight of the evidence." Id. at ¶10.

Hartman also argues that the trial court committed plain error by not dismissing the charges for insufficient evidence. However, as indicated above, the evidence was sufficient to find that Hartman violated the protective order. Thus, Hartman's plain error argument is without merit.

We therefore affirm.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge