State of Utah v. Starkey

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State v. Starkey. Filed October 7, 1999 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


Brian Starkey,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981317-CA

October 7, 1999
    1999 UT App 282 -----

Firth District, Cedar City Department
The Honorable Robert T. Braithwaite

Aaron J. Prisbrey, St. George, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee


Before Judges Greenwood, Bench, and Orme.

BENCH, Judge:

Defendant first argues there was insufficient evidence to support his convictions. We reject defendant's claim in view of the evidence adduced at trial.

"We will reverse a criminal conviction for insufficient evidence only when the evidence is so inconclusive or so inherently improbable that 'reasonable minds must have entertained a reasonable doubt' that the defendant committed the crime." State v. Goddard, 871 P.2d 540, 543 (Utah 1994) (citation omitted). The evidence presented in this case is not inconclusive or inherently improbable. To the contrary, the jury received overwhelming and uncontroverted evidence of defendant's guilt on all charges. On the charge of assault by a prisoner, the jury heard testimony from two officers regarding the assault that occurred when defendant head-butted and otherwise accosted one of the officers while they were placing defendant in a holding cell. On the charge of threat against life or property, the jury heard undisputed evidence that defendant threatened the contract killing of one of the arresting officers. On the evidence before it, the jury reasonably concluded that defendant was guilty on all charges.

Defendant's final argument is that prejudicial "prosecutorial overreaching" and "judicial error" occurred at trial. Under this rubric, defendant makes four arguments: (1) prior bad acts were improperly introduced; (2) questioning about a prior felony conviction went too far; (3) the State used its rebuttal to improperly "rehash" its case; and (4) the trial judge improperly referred to other uncharged conduct. Because defendant did not raise any of these issues in the trial court, he has failed to preserve them for appeal. We therefore do not address them. See Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct. App. 1997) ("To preserve a substantive issue for appeal, a party must first raise the issue before the trial court."); see also Salt Lake County v. Carlston, 776 P.2d 653, 655 (Utah Ct. App. 1989) ("Issues not raised in the trial court in timely fashion are deemed waived, precluding this court from considering their merits on appeal.").

We affirm the convictions.

Russell W. Bench, Judge



Pamela T. Greenwood,
Associate Presiding Judge

Gregory K. Orme, Judge