Orem City v. Jensen

----ooOoo----

Orem City,
Plaintiff and Appellee,

v.

Kristy R. Jensen,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981868-CA

F I L E D
June 15, 2000
  2000 UT App 183 -----

Fourth District, Orem Department
The Honorable John Backlund

Attorneys:
Randy M. Lish, Provo, for Appellant
Michael G. Barker, Orem, for Appellee -----

Before Judges Greenwood, Billings, and Davis.

BILLINGS, Judge:

Defendant appeals her conviction for retail theft, asserting there was insufficient evidence to support a conviction. We affirm.

"'To demonstrate that the evidence is insufficient to support [a] jury verdict, the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.'" State v. Hopkins, 1999 UT 98,¶14, 989 P.2d 1065 (quoting Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991)). In addition, "[f]ailure to marshal the evidence waives [a defendant's] right to have his claim of insufficiency considered on appeal." State v. Gallegos, 851 P.2d 1185, 1189-90 (Utah Ct. App. 1993).

Defendant has failed to meet her burden to marshal the evidence in support of the verdict. Instead, she merely reargues her position, ignoring the evidence supporting the verdict. In fact, "[d]efendant's brief is devoid of any mention of the evidence supporting the jury verdict." State v. Scheel, 823 P.2d 470, 473 (Utah Ct. App. 1991). The failure to marshal improperly leaves the burden "to the court to sort out what evidence actually supported" the verdict. Id. (citation omitted). When a defendant does not marshal the evidence and instead attempts to shift the burden to the reviewing court, we need not consider whether the evidence was insufficient. See Hopkins, 1999 UT 98 at ¶14; Scheel, 823 P.2d at 473. Defendant has not even cited to the record to support the facts she presents. See Utah R. App. P. 24(a)(7)(e) (requiring citations to the record in appellate briefs); Steele v. Board of Review of Indus. Comm'n, 845 P.2d 960, 962 (Utah Ct. App. 1993) ("If a party fails to provide a statement of the facts along with a citation to the record where those facts are supported, we will assume the correctness of the judgment."). Since defendant has not marshaled the evidence, let alone demonstrated why this evidence is so inconclusive that a reasonable jury could not have convicted her, this court will not consider defendant's arguments further. Accordingly, we affirm defendant's conviction.
 
 
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge