State of Utah v. Christensen

MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

R.G. Christensen,
Defendant and Appellant.

Case No. 981017-CA

F I L E D
October 29, 1998
-----

Fourth District, Provo Department
The Honorable Ray M. Harding, Sr.

Attorneys:
Richard P. Gale, Provo, for Appellant
Jan Graham and Kris C. Leonard, Salt Lake City, for Appellee

----- Before Judges Bench, Billings, and Orme.

BILLINGS, Judge:

Defendant appeals his conviction, claiming the State failed to provide him with the required notice of its intention to call an explosives expert witness as required by Utah Code Ann. 77-17-13 (1995).

"[A] trial court's decision to admit or bar testimony for failure to adhere to discovery obligations lies within the trial court's discretion." State v. Arellano, 347 Utah Adv. Rep. 14, 15 (Utah Ct. App. 1998) (citing State v. Begishe, 937 P.2d 527, 530 (Utah Ct. App. 1997)). Such decisions will not be disturbed on appeal absent a clear abuse of discretion. See id. at 15. Section 77-17-13 of the Utah Code provides: (1) (a) If the prosecution or the defense intends to call any expert to testify in a felony case at trial or any hearing, excluding a preliminary hearing, the party intending to call the expert shall give notice to the opposing party as soon as practicable but not less than 30 days before trial or ten days before the hearing. Notice shall include the name and address of the expert, the expert's curriculum vitae, and a copy of the expert's report. Utah Code Ann. 77-17-13 (1995). The remedy provided by the statute for failing to meet these requirements is a continuance of the trial. See Arellano, 347 Utah Adv. Rep. at 15-16; see also Utah Code Ann. 77-17-13(3).

Christensen argues the trial court abused its discretion by not granting him a continuance to respond to the State's expert's testimony. However, as the State correctly argues, a party may not claim wrongful denial of a continuance on appeal when no request for a continuance was made in the court below. See State v. Larson, 775 P.2d 415, 418 (Utah 1989). At trial, defense counsel told the court, "We're not asking for a continuance of the trial. We're asking that this witness be precluded from testifying because we didn't receive notice." Thus, we conclude that where Christensen did not seek a continuance at trial, he is precluded from claiming a denial of a continuance as reversible error.

Christensen also asserts the State's expert's testimony should have been excluded because it was prejudicial. "However, the statute limits the court's discretion to impose 'sanctions,' such as excluding expert testimony, except upon finding bad faith." Arellano, 347 Utah Adv. Rep. at 16 (citing Utah Code Ann. 77-17-13(3)). The trial court clearly did not find the State acted in bad faith and thus we conclude the court did not abuse its discretion in refusing to exclude the expert testimony.

For the foregoing reasons, we affirm Christensen's conviction.
 
 

______________________________
Judith M. Billings, Judge

----- WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge