West Valley City, v. Peck

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West Valley City,
Plaintiff and Appellee,

v.

Edward Peck,
Defendant and Appellant

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981343-CA

F I L E D
March 25, 1999 1999 UT App 097 -----

Third District, West Valley Department
The Honorable Anthony B. Quinn

Attorneys:
Jerome H. Mooney and Michelle M. White, Salt Lake City, for Appellant
J. Richard Catten, West Valley City, for Appellee

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Before Judges Wilkins, Davis, and Orme.

PER CURIAM:

Following a bench trial, the district court convicted appellant of violating a protective order. Appellant appeals the conviction and sentence, asserting that there was insufficient evidence to support the conviction. We affirm.

When reviewing challenges to the sufficiency of evidence from a bench trial conviction, we will set aside the verdict only if it is against the clear weight of the evidence, or if we otherwise reach 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 are necessarily left to the trial court. State v. Wright, 744 P.2d 315, 317 (Utah Ct. App. 1987). In reviewing a bench verdict, we require 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).

An appellant claiming insufficiency of the evidence "must marshal the evidence supporting the . . . findings and demonstrate how the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the disputed findings." State v. Gallegos, 851 P.2d 1185, 1189 (Utah Ct. App. 1993) (citations omitted). "Failure to marshal the evidence waives an appellant's right to have his claim of insufficiency considered on appeal." Id. at 1189-90. See also State v. Moore, 802 P.2d 732, 738 (Utah Ct. App. 1990) (marshaling requirement applies to criminal bench trials.)

Appellant has not sustained his burden on appeal to marshal the evidence supporting the trial court's findings. Instead, he selectively presents facts supporting his assertions, and points to discrepancies between his testimony and that of the victim. We affirm the trial court on the basis of appellant's failure to marshal alone. In addition, based upon our review of the record and the evidence marshaled in the City's brief, we also conclude that the verdict is not against the clear weight of the evidence.

At trial, the city relied solely upon the testimony of appellant's ex-wife (the victim). The victim testified that appellant contacted her twice, late at night and very early in the morning, and did not identify the contact as relating to visitation. During the first call, appellant was upset, and the victim found a funeral notice for one of appellant's close friends in her car shortly thereafter. The victim also testified that, at the time of the calls, the parties were only communicating respecting visitation through third parties, and that the children were with her. Appellant simply denied making the calls.

The trial court was in the best position to determine the credibility of the parties. See State v. Pena, 869 P.2d 932, 936 (Utah 1994). The trial court obviously chose to believe the version of events narrated by the victim over appellant's denial that he made the calls. The victim's testimony, and all inferences reasonably drawn therefrom, including the inference that the calls were not for the purpose of discussing visitation, support the conclusion that the weight of the evidence does not oppose the verdict.

Affirmed.
 

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Michael J. Wilkins,
Presiding Judge
 

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James Z. Davis, Judge
 

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Gregory K. Orme, Judge