State of Utah in the interest of M.V.M.

Annotate this Case
M.V.M. v. State. Filed March 4, 1999  

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of M.V.M.,
a person under eighteen years of age.
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M.V.M.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981141-CA

F I L E D
March 4, 1999 1999 UT App 063

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Third District Juvenile, Salt Lake Department
The Honorable Andrew A. Valdez

Attorneys:
L. Clark Donaldson, Salt Lake City, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Jackson.

JACKSON, Judge:

Defendant first argues the trial court erred in admitting the victim's identification of defendant. "Our task is to review the record evidence and determine from the totality of the circumstances whether the admission of the identification is consistent with the due process guarantees of article I, section 7" of the Utah Constitution. State v. Ramirez, 817 P.2d 774, 781 (Utah 1991). This question presents a mixed issue of fact and law. Id. at 782. Although we review the trial court's factual findings with deference, "whether these facts are sufficient to demonstrate reliability is a question of law, which we review for correctness." Id.

"Reliability is . . . the linchpin of the admissibility of identification evidence." State v. Thamer, 777 P.2d 432, 435 (Utah 1989). To determine whether an eyewitness identification is reliable, the trial court must consider five factors bearing on the witness's capacity and opportunity to observe a defendant, including "'whether the witness's identification was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion.'" Ramirez, 817 P.2d at 781 (quoting State v. Long, 721 P.2d 483, 493 (Utah 1986)). Our careful review of the record leads us to conclude the trial court correctly determined the victim's identification of defendant was reliable under the totality of the circumstances.(1)

In addition, we conclude from the information available that the photo array was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."(2)Thamer, 777 P.2d at 435. We are equally persuaded that the victim's in-court identification was reliable because it was "based on an untainted, independent foundation," namely, her opportunity to observe defendant as they talked in her driveway for between one and three minutes. Id.

Defendant next argues his conviction should be reversed because the potentially exculpatory photo array was dissembled before his trial. We first must determine whether the evidence was "constitutionally material," that is, whether it "'is vital to the issues of whether the defendant is guilty of the charge . . . . "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial does not establish 'materiality' in the constitutional sense."'" State v. Shaffer, 725 P.2d 1301, 1305 (Utah 1986) (emphasis added & in original) (citations omitted). Because we conclude the victim's in-court identification was reliable independent of the photo array, and ample circumstantial evidence of defendant's guilt was presented, we must also conclude the array was not vital to the issue of defendant's guilt.

Because the array was not constitutionally material, to prevail on this issue defendant must show the State acted in bad faith, i.e., that "'the police . . . by their conduct indicate[d] that the evidence could form a basis for exonerating the defendant.'" State v. Holden, 964 P.2d 318, 323 (Utah Ct. App. 1998) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988)). We conclude that the array was not destroyed in bad faith, and we thus agree with the trial court that the destruction of the array does not warrant reversal of defendant's conviction.(3)SeeUnited States v. Bohl, 25 F.3d 904, 911-13 (10th Cir. 1994) (discussing bad faith standard and stating "even if the government destroys . . . evidence knowing of its potentially exculpatory value, there might exist innocent explanations for the government's conduct that are reasonable under the circumstances to negate any inference of bad faith").

Finally, defendant argues the trial court lacked sufficient evidence to conclude he intended to commit a theft in the victim's home, and his conviction should therefore be reduced to trespass. Whether defendant intended to commit a theft "can be inferred from [his] conduct and attendant circumstances in the light of human behavior and experience." State v. Brooks, 631 P.2d 878, 881 (Utah 1981). We agree with the trial court that there was sufficient evidence to support an inference that defendant intended to commit a theft inside the victim's home.

Affirmed.
 
 

Norman H. Jackson, Judge

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WE CONCUR:
 
 

Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

James Z. Davis, Judge

1. We agree that this issue was preserved even though defendant did not file a pretrial motion to suppress. See State v. Matsamas, 808 P.2d 1048, 1053 (Utah 1991). As to defendant's argument that the trial court failed to explicitly address each Ramirez factor, "this court may assume the trial court made findings in accord with its decision, if it would be reasonable to assume the trial court made those findings." State v. Nelson, 950 P.2d 940, 944 (Utah Ct. App. 1997).

2. "Ideally, we would apply this test by examining the photo array itself, but when that is impossible, a detailed description of the challenged photo array is sufficient." State v. Lopez, 886 P.2d 1105, 1111 (Utah 1994).

3. We decline defendant's request to address this issue under the Utah State Constitution because defendant has failed to "fully brief and argue the applicability of the state constitution." SeeState v. Bobo, 803 P.3d 1268, 1272 (Utah Ct. App. 1990).