State of Utah v. Gilmore

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State of Utah v. Gilmore, Case No. 20000821-CA, Filed 9/20/01 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


Carl Webster Gilmore,
Defendant and Appellant.

(Not For Official Publication)

Case No. 20000821-CA

September 20, 2001 2001 UT App 273 -----

Fourth District, Fillmore Department
The Honorable Lynn W. Davis

James K. Slavens, Fillmore, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee


Before Judges Jackson, Orme, and Thorne.

JACKSON, Associate Presiding Judge:

Defendant appeals his conviction for Unlawful Distribution of a Controlled Substance, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(ii), -(4)(a)(ix) (1998). We affirm.

Defendant first challenges the trial court's pretrial determination that "[he] was not entrapped pursuant to Utah Code Ann. § 76-2-303 [(1999)]"(1) (the Entrapment Statute).(2)  This determination may be challenged in two ways. First, a defendant may argue that the trial court improperly "identified and interpreted the law regarding entrapment . . . . This clearly presents a question of law" to be reviewed for correctness. State v. Gallegos, 849 P.2d 586, 588 (Utah Ct. App. 1993); accord State v. Keitz, 856 P.2d 685, 689 (Utah Ct. App. 1993).

Second, if "the trial court has not [legally] erred," State v. Richardson, 843 P.2d 517, 522 (Utah Ct. App. 1992) (Bench, P.J., concurring), then the defendant's challenge is to "the trial court's ultimate factual finding that the police conduct was not entrapment." Id. at 521. We review this ultimate finding of fact for clear error. See Keitz, 856 P.2d at 689; Richardson, 843 P.2d at 518. Because "[D]efendant has not challenged the trial court's interpretation of the [E]ntrapment [S]tatute," the correctness standard does not apply."(3) Richardson, 843 P.2d at 521 (Bench, P.J. concurring). Thus, "we defer to the fact-finder's determination, unless we hold it to be erroneous as a matter of law." State v. J.D.W., 910 P.2d 1242, 1244 (Utah Ct. App. 1995); see alsoState v. Beddoes, 890 P.2d 1, 3 (Utah Ct. App. 1995) ("Entrapment cases are very fact-sensitive. We will therefore uphold the fact-finder's determination unless we can hold, based on the given facts, that reasonable minds cannot differ as to whether entrapment occurred. Only then can we hold that entrapment occurred as a matter of law."). "For a reviewing court to find clear error, it must decide that the factual findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination." State v. Pena, 869 P.2d 932, 935-36 (Utah 1994).

Viewing the facts this light, we cannot conclude that the trial court's finding was "not adequately supported by the record." Id. Defendant specifically indicated to the Sheriff's Office that he did not wish to participate in controlled buys. Defendant had once been paid by the Sheriff's Office as an informant. However, there is no further indication of contacts between Defendant and the Sheriff's Office concerning the two controlled buys of controlled substances with which Defendant was charged, although he had ample opportunity to keep law enforcement officials advised. Based on these facts, the trial court ruled that "Defendant's actions were voluntary and not induced or motivated by" actions of the Sheriff's Office. We agree that the facts do not indicate inducement or enticement by law enforcement personnel as the Entrapment Statute requires. See State v. Torres, 2000 UT 100,¶9, 16 P.3d 1242.

Defendant next challenges the trial court's denial of his motion for a reduced conviction and sentence under Utah Code Ann. § 76-3-402 (1999). Defendant presents four arguments as reasons to reverse the trial court's ruling, but cites no legal authority supporting these arguments. Moreover, our own search for legal authorities supporting Defendant's propositions has been fruitless. Thus, we conclude that Defendant's arguments regarding this issue are novel and unpersuasive. Accordingly, we
do not address them. SeeState v. Thomas, 961 P.2d 299, 304 (Utah 1998).


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


William A. Thorne, Jr., Judge -----


Gregory K. Orme, Judge

1. This statute provides, in pertinent part: (4) Upon written motion of the defendant, the court shall hear evidence on the issue and shall determine as a matter of fact and law whether the defendant was entrapped to commit the offense. . .

(5) Should the court determine that the defendant was entrapped, it shall dismiss the case with prejudice, but if the court determines the defendant was not entrapped, such issue may be presented by the defendant to the jury at trial. Utah Code Ann. § 76-2-303(4)-(5) (1999).

2. Defendant also challenges the trial court's denial of his motion to strike the presentence report. However, Defendant failed to adequately brief this issue. Specifically, Defendant failed to brief the correct standard of review, to provide any citations to the record for this issue whatever, or to furnish legal support for his argument regarding this issue. Accordingly, we do not address it. See Utah R. App. P. 24(a)(9); see also State v. Bishop, 753 P.2d 439, 450 (Utah 1988) ("'[A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which [a party] may dump the burden of argument and research.'" (alteration in original) (citation omitted)).

3. Defendant refers to statements made by the trial court to defense counsel, during a discussion of entrapment, as findings of fact upon which the trial court relied for support in its determination that no entrapment had occurred. From this discussion, Defendant argues that the trial court erred by reading into the Entrapment Statute additional requirements, such as "high pressure tactics," "active inducements," and "extensive interaction" with the defendant by the state, or involuntary action by the defendant, for entrapment to be invoked. However, the trial court's statements to which Defendant refers do not comprise the trial court's findings or conclusions.