Weber County, v. Chambers

----ooOoo----

Weber County,
Plaintiff and Appellee,

v.

Ronnie Earl Chambers,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 951322-CA

F I L E D
March 4, 1999

1999 UT App 064 -----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
Scott L. Wiggins and Mark E. Arnold, Salt Lake City, for Appellant
Monette Hurtado, Ogden, for Appellee

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

Failure to Rule

We reject Chambers's challenge to the trial court's disposition on temporary remand because any error made by the trial court was harmless, i.e., "'"sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings."'" State v. Jacques, 924 P.2d 898, 902 (Utah Ct. App. 1996) (citations omitted). The motion to amend findings(1) disputed the court's findings of fact, arguing they were against the clear weight of the evidence. When reviewing whether the evidence was sufficient to support a trial court's factual findings, we "'will review the record to see if the clear weight of the evidence, not including demeanor and credibility, is contrary to the verdict.'" State v. Gurr, 904 P.2d 238, 241 (Utah Ct. App. 1995) (quoting State v. Goodman, 763 P.2d 786, 787 (Utah 1988)). Based upon our review of the record, we conclude that all the trial court's findings were amply supported by the evidence.

For example, Chambers disputed the trial court's finding that he failed to object to the admission of Plaintiff's Exhibit 1, yet the trial transcript fully supports this finding. After using Exhibit 1 with various witnesses without objection from Chambers, the following colloquy, with our emphasis, took place:
 
  MS. HURTADO: 

THE COURT: 
MR. ARNOLD: 
THE COURT:  At this time, Your Honor, I'd like to admit that into evidence, State's Exhibit  No. 1.
Any objections? We've all been using it.
I have no objections.
1 is received.

At no other time did Chambers expressly object to the admission of Exhibit 1 or move to strike it from the record. Further, contrary to his assertion, Chambers failed to register any objection to the admission of Exhibit 1 when, at the close of the County's case-in-chief, he moved to dismiss, arguing that the exhibit had an insufficient foundation and therefore should not be relied upon by the court. The statement by Chambers's counsel, "I don't think the Court can rely upon that to attach criminal activity to my client," in the context of express assent to the admission of Exhibit 1 and in the absence of any objection or motion to strike, merely argues the weight to be given to the exhibit, not its admissibility.(2)

Further, the finding that the prosecutor merely traced existing letters on Exhibit 1, rather than writing new letters, is also supported by ample evidence. All letters but the "E" in "RonniE" match the photocopied characters, and the prosecutor admitted she "took [her] pen and traced over the Defendant's name" on Exhibit 1. Further, Craig Barker, Edward Reed, and Glenn Burton all testified in a manner consistent with Chambers being the owner of the property described in Exhibit 1, and the legal description in Exhibit 16 matches that contained in Exhibit 1. Consequently, the clear weight of the evidence supported the court's finding that the prosecutor did not tamper with Exhibit 1 but merely traced over existing characters on it.

Sufficiency of the Evidence to Prove Ownership

Assuming, without deciding, that the ordinances required the county to prove Chambers owned the property on which the violations occurred, based upon our review of the record, we conclude the evidence clearly supported, beyond a reasonable doubt, that Chambers owned the property at issue. For example, Plaintiff's Exhibit 1 shows Chambers owned the property described with the partial serial number 0144. Craig Barker, Edward Reed, and Glenn Burton testified in a manner consistent with Chambers being the owner of the property where the zoning or fire code violations occurred. Further, Plaintiff's Exhibit 16 shows that Eric B. Story quit-claimed his interest in property to Ronnie Chambers on March 20, 1991, and Exhibit 16's description of the property thus transferred matches that of the property Exhibit 1 indicates is owned by Chambers. Finally, Chambers's brother, Greg Chambers, testified that Chambers "always told [Greg] that [Chambers was] the owner of the property."

Although no evidence expressly describes Chambers as the owner from September 22, 1992, through June 22, 1994, testimony and Exhibit 16 clearly show Chambers owned the property as of March 20, 1991. Ownership before the time of the offense supports a reasonable inference of ownership during the offense.(3) Moreover, with no evidence suggesting the property ever left Chambers's ownership, such as a deed from Chambers to another individual before the dates of violation, the inference is quite strong.

Accordingly, because there is ample evidence to support a finding beyond a reasonable doubt that Chambers owned the property in question and that, by inference, he owned it when the alleged violations occurred, his convictions were supported by sufficient evidence. Because the evidence at the close of the County's case-in-chief, with all reasonable inferences drawn in favor of the County, was sufficient to allow the fact finder to find all elements of the crime beyond a reasonable doubt, we likewise conclude the trial court did not err in denying Chambers's motion to dismiss. SeeState v. Taylor, 884 P.2d 1293, 1296 (Utah Ct. App. 1994).

" ' "[T]he rule is well settled that the court will not consider issues raised for the first time in a reply brief."'" Blubaugh, 904 P.2d at 701 n.8 (alteration in original; citations omitted). Accordingly, we do not address Chambers's claim of prosecutorial misconduct raised for the first time in his Reply Brief. See Utah R. App. P. 24(c) ("Reply briefs shall be limited to answering any new matter set forth in the opposing brief.").
 

Affirmed.
 
 

Gregory K. Orme, Judge

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WE CONCUR:
 
 

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Judith M. Billings, Judge
 
 

_____________________
James Z. Davis, Judge

1. Because Chambers's subsequent objection to the proposed findings and conclusions merely incorporated his motion to amend, with no new argument, our discussion of the motion to amend applies equally to the objection.

2. Indeed, because Chambers did not timely object to admission of Exhibit 1, "but actually consented to [its] consideration," Chambers will not now be heard to dispute its admissibility. State v. Miller, 674 P.2d 130, 132 (Utah 1983) (per curiam).

3. "It is well accepted that 'circumstantial evidence alone may be competent to establish the guilt of the accused.'" State v. Blubaugh, 904 P.2d 688, 694 (Utah Ct. App. 1995) (citation omitted).