Cedar City v. Hafen

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Cedar City,
Plaintiff and Appellee,

v.

Jeri Ann Hafen,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000241-CA

F I L E D
July 28, 2000
2000 UT App 231
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Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
Jeri Ann Hafen, Cedar City, Appellant Pro Se
Scott M. Burns, Cedar City, for Appellee

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Before Judges Greenwood, Davis, and Orme.

PER CURIAM:

This matter is before the court on its own motion for summary disposition. Appellant, who appeals her class B misdemeanor conviction and sentence for domestic violence in the presence of a child, has failed to respond to the motion. For the reasons set forth below, we affirm appellant's conviction and sentence.

Appellant raises nine issues for review in her docketing statement. With respect to her first contention, the record demonstrates that appellant never made a written demand for a jury trial, and thus was properly tried without a jury. See Utah R. Crim. P. 17(d) ("All [nonfelony] cases shall be tried without a jury unless the defendant makes written demand at least ten days prior to trial"). With respect to her second contention, the record reveals that appellant was appointed trial counsel on January 12, 2000, only six days after the charges were filed and over a month before the trial was held, and that she was not incarcerated pending trial. Thus, she had ample opportunity to confer with counsel prior to trial. With respect to her third contention, the record contains no evidence of a subpoena seeking her testimony against her husband, and reveals that she was never called to testify against her husband. Accordingly, her third contention is without merit. With respect to appellant's fifth contention, the record demonstrates that she never filed a written request for discovery, and thus fails to support her allegation that she was denied access to evidence.

The record does not support appellant's fourth contention either. A transcript of the trial, which appellant has failed to provide, is necessary for this court to conduct a meaningful review of the circumstances surrounding her motion for a continuance. "The appellant has the burden of providing the reviewing court with an adequate record on appeal to prove [her] allegations." Call v. City of West Jordan, 788 P.2d 1049, 1052 (Utah Ct. App. 1990). Absent an adequate record on appeal, this court must presume the correctness of the disposition made below, as it is unable to review the evidence as a whole. See State v. Jones, 657 P.2d 1263, 1267 (Utah 1982); Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct. App. 1990). Because appellant failed to provide an adequate record to review her allegation of error, we presume the correctness of the trial court's disposition thereof.

Appellant's seventh, eighth, and ninth allegations of error are not properly before this court. Appellant did not file a timely motion to disqualify and accompanying affidavit of bias challenging the trial court's neutrality pursuant to Utah R. Crim. P. 29(c)(1)(A). Appellant also failed to challenge any alleged wrongful seizure of her person or personal property in the trial court. It is well settled that a defendant may not raise an issue, even a constitutional one, for the first time on appeal. See State v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990).

Finally, with respect to appellant's sixth allegation of error, it is axiomatic that questions of credibility are left to the province of the trial court. See State v. Wright, 744 P.2d 315, 317 (Utah Ct. App. 1987). Accordingly, we will not disturb the trial court's judgment regarding the credibility of the State's witnesses versus appellant's witnesses.

Affirmed.
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
James Z. Davis, Judge -----

I CONCUR IN RESULT:
 
 
 

______________________________
Gregory K. Orme, Judge