State of Utah v. Moore

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State of Utah,
Plaintiff and Appellee,

v.

Bruce N. Moore,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971259-CA

F I L E D
November 4, 1999
  1999 UT App 319

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Eighth District, Roosevelt Department
The Honorable A. Lynn Payne

Attorneys:
Michael L. Humiston, Heber City, for Appellant
Jan Graham and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Davis.

BENCH, Judge:

Appellant first contends that the stop was illegal, arguing that Officer Draper needed probable cause to stop him. We disagree. The stop was legal because Draper "point[ed] to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant[ed] th[e] intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). Draper reasonably suspected that appellant had committed a probation violation. Given Draper's duties as a probation officer, his stop of appellant was justified. See State v. Davis, 965 P.2d 525, 529-30 (Utah Ct. App. 1998), cert. denied, 982 P.2d 88 (Utah 1999); see also Utah Code Ann. § 64-13-21(2)(A) (Supp. 1999) (providing that POST certified probation officers have duty to monitor, investigate, and supervise probationer's compliance with conditions of probation agreement).

Appellant next argues that the State failed to establish the elements of interfering with an arresting officer. We again disagree. The State established the elements by showing that appellant used force and refused to follow a lawful order even though he "ha[d] knowledge, or by the exercise of reasonable care should have [had] knowledge, that a peace officer [was] seeking to effect a lawful arrest or detention . . . ." Utah Code Ann. § 76-8-305 (1999). We believe appellant knew that Draper was a peace officer because Draper wore a full uniform, holstered gun, and a badge when he stopped appellant. Furthermore, appellant continued to resist even after he certainly should have known he was dealing with peace officers when backup officers arrived to assist Draper. Additionally, the officers here had probable cause to arrest appellant because he failed to respond to a lawful signal to stop. Appellant's knowledge that Draper and other officers attempted to arrest him, combined with his continued resistance, sufficiently support his conviction of interfering with an arresting officer. See State v. Gardiner, 814 P.2d 568, 575 (Utah 1991).

Appellant's final argument, made for the first time on appeal, is that Utah Code Ann. § 76-2-402(1) (1999) justified his use of force against the officers. However, we decline to address this issue. "Generally, a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal." State v. Archambeau, 820 P.2d 920, 922 (Utah Ct. App. 1991). Absent exceptional circumstances or plain error, neither of which has been asserted here, appellant has waived consideration of this claim. See State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996), cert. denied, 931 P.2d 146 (Utah 1997).

Accordingly, we affirm appellant's convictions.
 
 
 
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge