Salt Lake County v. Gibson

Salt Lake County v. Gibson

IN THE UTAH COURT OF APPEALS
 

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Salt Lake County,

Plaintiff and Appellee,

v.

Robert Gibson,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030710-CA
 

F I L E D
(March 10, 2005)
 

2005 UT App 119

 

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Third District, Salt Lake Department

The Honorable Paul G. Maughan

Attorneys: David Maddox, South Jordan, for Appellant

David E. Yocom and R. Josh Player, Salt Lake City, for Appellee

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Before Judges Bench, Jackson, and Thorne

JACKSON, Judge:

    Robert Gibson challenges his conviction for violation of a protective order under Utah Code section 76-5-108. See Utah Code Ann. § 76-5-108 (1999). We affirm.

    Utah Code section 76-5-108 provides that "[a]ny person who is the respondent . . . subject to a protective order . . . who intentionally or knowingly violates that order after having been properly served, is guilty of a class A misdemeanor." Id. § 76-5-108(1). Under the terms of the protective order issued against him, Gibson "is ordered to stay away from the school, place of employment, and/or other places, and their premises, frequented by Petitioner, [and] the minor children." R.G. is one of the minor children covered by this order.

    Gibson first claims that the facts presented at trial were insufficient to convict him. The trial court found that Gibson was in the vicinity of R.G.'s school on a public street used to drop off and pick up students and that he intended to be there in violation of the protective order. We must sustain the sufficiency of the evidence in a bench trial, unless (1) the challenging party has "marshal[ed] the evidence in support of the findings," 438 Main St. v. Easy Heat, Inc., 2004 UT 72,¶69, 99 P.3d 801 (quotations and citation omitted), and (2) we determine that the court's judgment is "against the clear weight of the evidence, or . . . [we] otherwise reach[] a definite and firm conviction that a mistake has been made," State v. Gordon, 2004 UT 2,¶5, 84 P.3d 1167 (quotations and citations omitted) (alterations in original).

    Gibson's challenge fails to meet both requirements. Even if he had properly marshaled the evidence, we cannot conclude that the trial court's findings are against the clear weight of evidence. Determining the facts of this case depends largely on assessing Gibson's credibility, and as such, we defer to the trial court judge who is "'in the best position to assess the credibility of witnesses.'" State v. Green, 2005 UT 9,¶25, 518 Utah Adv. Rep. 30 (quoting State v. Pena, 869 P.2d 932, 936 (Utah 1994)). Thus, despite Gibson's claims that he was merely passing the school on a public road and that the encounter was accidental, we must agree with the trial court that Gibson intended to violate the protective order by remaining at the location near the school where he knew an encounter with R.G. was likely or certain.

    Gibson next claims that the conviction is improper because the trial court ruling, which stated he was "in the vicinity of the school," varies from the criminal information filed against him, which alleged the violation occurred at 12949 South 2700 West in Salt Lake County, the mailing address of the school. A criminal information must give a defendant sufficient notice of "the particulars of the charge to be able to 'adequately prepare his defense.'" State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991) (citation omitted). Here, the variance between "in the vicinity of" and the mailing address of the school is minimal and so was its practical impact. Gibson sought and received more detailed information about the case from the State, and he does not claim his defense was actually impeded. In short, the variance "does not affect the substantial rights of a party," and we may disregard it. Utah R. Crim. P. 30(a); see also State v. Burnett, 712 P.2d 260, 262 (Utah 1985).

    Finally, Gibson claims that the protective order itself is unconstitutionally vague because it fails to define the precise locations he is prohibited from visiting. However, he raises this issue for the first time on appeal. "'In order to preserve an issue for appeal, the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on the issue.'" 438 Main St., 2004 UT 72 at ¶51 (citation omitted) (alterations omitted). Specifically, during the trial proceedings, "'(1) the issue must be raised in a timely fashion[,] (2) the issue must be specifically raised[,] and (3) the challenging party must introduce supporting evidence or relevant legal authority.'" Id. (citation omitted). Here, the issue was not preserved because Gibson asked the court, after its ruling, only to clarify the scope of the protective order and did not specifically challenge its validity or reference constitutional concerns.

    Accordingly, we affirm.

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Norman H. Jackson, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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William A. Thorne Jr., Judge