Layton City v. Wolfe

Layton City v. Wolfe, Case No. 971422-CA, Filed October 8, 1998. MEMORANDUM DECISION (Not For Official Publication)

IN THE UTAH COURT OF APPEALS

----ooOoo----


Layton City, Plaintiff and Appellee, 

v. 

Richard Wolfe, Defendant and Appellant. 


Case No. 971422-CA


F I L E D (October 8, 1998) -----  

Second District, Layton Department

The Honorable K. Roger Bean

Attorneys: Martin V. Gravis, Ogden, for Appellant

Kristina M. Neal and Gary R. Crane, Layton, for Appellee -----  

Before Judges Billings, Greenwood, and Jackson.

PER CURIAM:

The district court convicted appellant of assault following a bench trial. Appellant appeals the conviction and sentence. We affirm.

Appellant contends that the district court erred in convicting him based solely upon the uncorroborated, repudiated written out-of-court statement of his victim.

When reviewing challenges to the sufficiency of evidence from a bench trial conviction, the verdict will be set aside only if it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm belief that a mistake has been made. State v. Strieby, 790 P.2d 98, 99 (Utah Ct. App. 1990). Determinations regarding credibility especially are left to the trial court. State v. Wright, 744 P.2d 315, 317 (Utah Ct. App. 1987). In reviewing a bench verdict, the appellate court requires that the weight of the evidence, discounting questions of credibility and demeanor, not oppose the verdict. State v. Goodman, 763 P.2d 786, 787 (Utah 1988).

A single, uncorroborated hearsay statement is not substantial evidence to support a verdict. State v. Webb, 779 P.2d 1108, 1115 (Utah 1989). See also State v. Ramsey, 782 P.2d 480, 484 (Utah 1989) (out-of-court statement which is denied at trial by declarant is insufficient by itself to sustain a conviction). In the case at hand, the written out-of-court statement made by the victim does not stand alone. It is neither uncorroborated nor repudiated. The trial court properly found that the city established through (1) the victim's and appellant's in-court testimonies, (2) their out-of-court oral statements made to the police and to the doctor, and (3) the testimonies of the officers and the doctor, that appellant assaulted the victim. The trial court also properly found that the city met its burden of proof that appellant did not act in self-defense through (1) the testimonies of several witnesses relating to the discrepancies between the victim's statements given at the time of the incident and given at trial, (2) evidence of the victim's injuries and state of mind at the time of the incident, and (3) evidence of the other witnesses' observations of both the victim and the appellant at the time of the incident. These findings are not clearly erroneous and corroborate the victim's written out-of-court statement. The weight of these findings, discounting issues of credibility and demeanor, does not oppose the verdict.

Appellant next contends that the court erred in considering the "pre-Miranda silence" of appellant as evidence against him, citing State v. Palmer, 860 P.2d 339, 348 (Utah Ct. App. 1993). We disagree. Appellant's statements at the time of the arrest about what happened were properly admitted, and any inferences that the trial court can draw therefrom are proper.

Accordingly, we affirm appellant's conviction and sentence.
 
 

______________________________

Judith M. Billings, Judge
 
 
 
 

______________________________

Pamela T. Greenwood, Judge
 
 
 
 

______________________________

Norman H. Jackson, Judge