City of Orem v. Harvey

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City of Orem v. Harvey

IN THE UTAH COURT OF APPEALS

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City of Orem,

Plaintiff and Appellee,

v.

Scott Harvey,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981651-CA

F I L E D

(March 11, 1999)

1999 UT App 078

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Fourth District, Orem Department

The Honorable John C. Backlund

Attorneys: Scott Harvey, Salt Lake City, Appellant Pro Se

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Before Judges Greenwood, Billings, and Jackson.

PER CURIAM:

This matter is before the court on its own motion for summary disposition on the basis that this court does not have jurisdiction due to the lack of a final order and, in the alternative, on the basis that the grounds for review are so insubstantial as not to merit further proceedings and consideration by the appellate court. We grant the motion on the latter ground and affirm the district court.

Appellant essentially raises two issues on appeal. First, appellant asserts that the trial court did not give him a fair and impartial hearing and the opportunity to express himself on the issue of intent. Second, he challenges the sufficiency of the evidence to support the verdict, asserting that the trial court unfairly accepted the alleged false testimony of the prosecution's witness.

The Fifth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant due process of law by entitling every criminal defendant to a fair and impartial trial. See State v. Beltran-Felix, 922 P.2d 30, 33 (Utah Ct. App. 1996); State v. Mitchell, 824 P.2d 469, 473 (Utah Ct. App. 1991). The defendant bears the burden of establishing that he was denied a fair trial. Beltran-Felix, 922 P.2d at 33.

Appellant contends that he was denied his due process right to a fair trial on the issue of intent. We disagree. Appellant fails to point to anything in the record or to cite to any legal authority that supports his contention. The heart of procedural fairness requires that the defendant be given timely and adequate notice of the claims against him and an opportunity to be heard in a meaningful way. In Re Worthen, 926 P.2d 853, 876 (Utah 1996). The record on appeal reveals that appellant was given plenty of notice and appeared at trial and defended himself. He was given the opportunity to cross-examine the prosecution's witness regarding the issue of intent and any other issues raised on direct examination. Appellant elected not to exercise this right. Accordingly, he waived the right and cannot now complain that he was denied the opportunity to exercise it. See generally Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660 (1944) (constitutional rights may be forfeited in a criminal as well as civil case by failure to make timely assertion thereof). Moreover, the record clearly reflects that the trial court gave the appellant ample opportunity to call his own witnesses, and testify in his own behalf. Indeed, the trial court questioned appellant extensively regarding the issue of intent, attempting to elicit a reasonable explanation of why appellant would not have known that the officers were police. Appellant was not denied his constitutional right to a fair and impartial hearing.

When reviewing challenges to the sufficiency of the 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. Layman, 953 P.2d 782, 786 (Utah Ct. App. 1998); State v. Strieby, 790 P.2d 98, 100 (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). In the case at hand, questions of credibility and demeanor aside, the weight of the evidence does not oppose the verdict.

Utah Code Ann. ยง 76-8-507 makes it unlawful for a person, with intent to mislead a peace officer, to knowingly give a false name to the officer acting in the lawful discharge of his official duties. The trial court, electing to believe the testifying officer rather than appellant, found that appellant violated this statute. This finding is not against the clear weight of the evidence.

The officer testified that he identified himself to appellant, and, thereafter, appellant gave him a false name. Appellant testified that he intentionally and knowingly gave the false name. From this evidence, it can be inferred that appellant meant to mislead the officer with the false information. Although appellant insists he did not mean to mislead a police officer as he thought he was giving the false information to a parking official rather than to a police officer, the trial court elected not to believe that appellant did not know that the officers were police, given the clear weight of the evidence to the contrary, including the officers' conduct and verbal communications, the uniforms, and the lighting in the parking lot.

Based upon the foregoing, we affirm the district court.

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Pamela T. Greenwood,

Associate Presiding Judge

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Judith M. Billings, Judge

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Norman H. Jackson, Judge