State of Utah v. Belt

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State of Utah,
Plaintiff and Appellee,

v.

Lynn L. Belt,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981688-CA

F I L E D
June 29, 2000 2000 UT App 205 -----

Second District, Farmington Department
The Honorable Darwin C. Hansen

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellant
Jan Graham and J. Frederic Voros, Jr., Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Davis.

JACKSON, Associate Presiding Judge:

Appellant Lynn Belt appeals his conviction for Assault by a Prisoner, arguing that the trial court committed plain error by conducting a conference to respond to a jury inquiry in Belt's absence. He further claims ineffective assistance of counsel because of trial counsel's failure to object to his absence. We affirm.

The trial judge's answer to the jury's question, given after consultation with counsel and opportunity for objection, was legally correct and the judge's written communication outside Belt's presence was not plain error. See State v. Lucero, 866 P.2d 1, 4 (Utah Ct. App. 1993) (holding that judge's instruction to jury was proper even without consultation but with later opportunity for objection).

Even if we assume that the trial court erred in not allowing Belt to be present at the conference in question, we would hold that any error was harmless. Appellant has not made any persuasive argument that the trial court's answer to the jury question was incorrect or misinformed the jury. Additionally, appellant has failed to articulate any circumstance under which the jury's verdict would have been different if some other correct answer to the jury's question had been given. Thus, appellant's absence was harmless error and not grounds for reversal. See Utah R. Crim. P. 30(a) ("Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded."); State v. Featherson, 781 P.2d 424, 431 (Utah 1989). Belt's ineffectiveness of counsel claim fails on the same basis. See State v. Geary, 707 P.2d 645, 646 (Utah 1985) (stating that a defendant must show different outcome was likely absent some error).

For all of the foregoing reasons, Belt's conviction is affirmed.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge