State v. King

State v. King

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Mario King,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030544-CA
 

F I L E D
(December 30, 2004)
 

2004 UT App 491

 

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Fifth District, Cedar City Department

The Honorable J. Philip Eves

Attorneys: Randall C. Allen, Cedar City, for Appellant

Mark L. Shurtleff and Brett J. Delporto, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    Appellant Mario King was convicted, based upon unconditional guilty pleas, of Forgery, a third degree felony, and Attempted Unlawful Use of a Credit Card, a class A misdemeanor. In an earlier memorandum decision, we partially dismissed this appeal insofar as it challenged the convictions, but allowed the appeal to continue as to any sentencing issues. See State v. King, 2004 UT App 79 (per curiam).

    The presentence investigation report (PSI) recommended that King pay restitution in the amount of $2,300, which was the retail value of the merchandise he obtained. The PSI stated that the merchandise had been confiscated by police and had not been returned to the merchant at the time of the report's preparation. King failed to object to the restitution amount, but asserts that the district court committed plain error because the property was not lost or destroyed. See Utah Code Ann. § 78-38a-302(5)(b)(i) (2003) (stating restitution may include "the cost of the damage or loss if the offense resulted in damage to or loss or destruction of property of a victim of the offense").

In general, to establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.

State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993). "If any one of these requirements is not met, plain error is not established." Id.

    King has not established that the claimed error "should have been obvious to the trial court." Id. The State argues that it could not have been obvious to the district court "that the merchant suffered no loss or that the amount was incorrect," absent a timely objection. We agree. The State notes that "although the PSI here talks about the property being confiscated, it does not state what has happened to that property, whether it will ever be returned to the merchant, or if so, whether the merchant will be able to sell the merchandise at the same price it could have at the time of the theft." If King had made a timely objection, the district court could have addressed the issues regarding the proposed restitution amount.

    Under the circumstances of this case, King has not established the existence of plain error and is not entitled to appellate relief from the alleged error because he failed to make a timely and proper objection. Based upon our determination that King failed to preserve the issues regarding restitution and is not entitled to review under the plain error exception, we affirm the district court's restitution order. It is unnecessary to consider the State's additional arguments on appeal.

    Accordingly, we affirm the sentence, including the amount of restitution determined by the district court.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge