State of Utah v. Cunningham

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State of Utah,
Plaintiff and Appellee,

v.

Justin Cunningham,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990959-CA

F I L E D
February 23, 2001 2001 UT App 49 -----

Eighth District, Vernal Department
The Honorable John R. Anderson

Attorneys:
Julie George, Salt Lake City, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Thorne.

PER CURIAM:

Cunningham appeals his conviction for aggravated assault, carrying a concealed weapon, and carrying a loaded firearm in a vehicle arguing that: 1) there was insufficient evidence to prove he had a gun; 2) the trial court erred in refusing to grant counsel's request for a continuance of the trial; and 3) the trial court erred in not allowing Bruce Christofferson to testify.

When reviewing a case for sufficiency of the evidence, we will overturn a jury's verdict only "when the evidence is so lacking and insubstantial that reasonable men could not possibly have reached a verdict beyond a reasonable doubt." State v. Lamm, 606 P.2d 229, 231 (Utah 1980). There were several witnesses who testified that Cunningham had a gun, and shortly after the incident, police recovered a gun in the truck in which Cunningham was a passenger. Cunningham and a defense witness testified that Cunningham did not have a gun, but the jury, to whom we must defer, did not find this testimony credible. See State v. Pedersen, 802 P.2d 1328, 1331 (Utah Ct. App. 1990) ("Credibility is within the province of the jury, to which we defer").

The decision to grant or deny a continuance lies within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion. See State v. Oliver, 820 P.2d 474, 476 (Utah Ct. App. 1991). Cunningham argues that his counsel needed more time before trial to obtain a transcript of the preliminary hearing. However, it has not been shown why counsel needed the transcript. A review of the trial transcript suggests that counsel was adequately prepared for trial. Counsel was familiar with the legal issues and facts, effectively cross-examined the State's witnesses, and put on several relevant defense witnesses. Thus, it does not appear that the trial court abused its discretion in refusing to continue the trial.

Finally, Cunningham has not shown that the trial court erred in refusing to allow Bruce Christofferson to testify. Christofferson could only testify about an earlier confrontation he allegedly had with the Coltons. Because Christofferson was not present at the time of the subject altercation and could not provide information about the charged offenses, the trial court was justified in not allowing him to testify. See State v. Colwell, 2000 UT 8,¶26, 994 P.2d 177 ("When deciding the relevance of testimony and evidence at a trial, a trial court is generally accorded broad discretion."); see also Utah R. Evid. 403 ("evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence").

Accordingly, we affirm.
 

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Pamela T. Greenwood,
Presiding Judge
 

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James Z. Davis, Judge
 

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William A. Thorne, Jr., Judge