State of Utah v. Ivie

State of Utah v. Ivie

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

James Patrick Ivie,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 971656-CA

F I L E D

(December 10, 1998)

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Eighth District, Roosevelt Department

Honorable A. Lynn Payne

Attorneys: Brent A. Gold and Raymond S. Shuey, Park City, for Appellant

Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Davis, Billings, and Greenwood.

GREENWOOD, Judge:

Defendant, James Patrick Ivie, appeals his conviction of driving under the influence of alcohol, a third degree felony, in violation of Utah Code Ann. § 41-6-44 (Supp. 1998). We affirm.

Defendant argues that, under Utah Rule of Evidence 803(5), the court should have excluded the DUI Report (the report) made on the night of his arrest. While trial courts are generally accorded broad discretion in making evidentiary rulings, see State v. Pena, 869 P.2d 932, 938 (Utah 1994), a trial court's application of a particular rule of evidence is subject to a correction of error standard. See Corbett v. Seamons, 904 P.2d 229, 232 (Utah Ct. App. 1995). Because defendant challenges the trial court's application of Rule 803(5) in admitting the report, we review the trial court's evidentiary ruling for correctness.

At trial, Officer Marx read from his report to refresh his recollection of defendant's exact answers to the interview questions asked on the night of the arrest. Although a memorandum used to refresh a witness's recollection may be read into evidence, it "may not itself be received as an exhibit unless offered by an adverse party." Utah R. Evid. 803(5) (emphasis added). In this case, the trial judge not only allowed Officer Marx to read from the report while testifying, but also admitted the report as an exhibit, allowing the jury to use it in deliberations. Because Rule 803(5) prohibits the admission of memoranda used to refresh a witness's testimony from being received as an exhibit, the trial court erred in allowing the jury to receive as an exhibit the report prepared by Officer Marx.

Although the trial court erred in admitting the report as an exhibit, we will not grant a new trial if the error was harmless. See State v. Jacques, 924 P.2d 898, 902 (Utah 1996). "Harmless errors are those that are sufficiently inconsequential so no reasonable likelihood exists that the error affected the outcome of the proceedings." Jones v. Cyprus Plateau Mining Corp., 944 P.2d 357, 360 (Utah 1997); Utah R. Evid. 103(a); Utah R. Crim. P. 30(a). In addition, this court has held that "'erroneous admission of evidence is harmless if there is convincing, properly admitted evidence of all essential elements of the case.'" State v. Diaz, 859 P.2d 19, 23 (Utah Ct. App. 1993) (citation omitted). Thus, whether a new trial is warranted in this case depends on whether the result in the case would have been more favorable to defendant if the report had been excluded; that is, whether the jury would have convicted defendant even without admission of the report.

We agree with the State's contention that admission of the report was harmless error. First, the testimony of three officers and the results of the breathalyzer test provided the jury with sufficient evidence to convict defendant without admission of the report. See State v. Bruce, 779 P.2d 646, 656 (Utah 1989) (holding improper admission of evidence harmless error where State presented sufficient evidence and eyewitness testimony to convict defendant). Moreover, the information contained in the report was cumulative of several witness's testimony. See State v. Thomas, 777 P.2d 445, 450 (Utah 1989) (harmless error when erroneously admitted evidence was cumulative of other testimony). Accordingly, because exclusion of the report would not have resulted in a more favorable outcome for defendant and because the jury had already heard the contents of the report several times, admission of the report, while error, was harmless.(1)

In sum, the trial court erred in failing to exclude the report under Utah Rule of Evidence 803(5). However, because this error did not prejudice defendant, we deny defendant's request for a new trial and affirm his conviction.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Judith M. Billings, Judge

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James Z. Davis, Judge

1. Because our finding of harmless error under Rule 803(5) is dispositive, we do not address defendant's challenge under Utah Rule of Evidence 801(d)(1)(B).