State of Utah v. Nelson

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State of Utah v. Nelson, Case No. 991022-CA , Filed April 12, 2001 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Kenneth Nelson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991022-CA

F I L E D
April 12, 2001 2001 UT App 122 -----

Fifth District, Parowan Department
The Honorable J. Philip Eves

Attorneys:
Floyd W. Holm, Cedar City, for Appellant
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

Defendant appeals his convictions for theft of an operable motor vehicle, leaving the scene of an accident, and public intoxication. His appointed counsel has filed an Anders brief asserting that the issues on appeal are wholly frivolous and requesting permission to withdraw from representing defendant. See State v. Clayton, 639 P.2d 168, 169-70 (Utah 1981). Defendant did not file a separate brief or otherwise respond to counsel's brief.

We agree that the arguable issues on appeal are wholly frivolous. The trial court properly found that witness Robyn Iberg was unavailable to appear at trial, and that the State made diligent efforts to subpoena her, including hiring a private investigator to locate her. As to the claim that the trial court may have erred in admitting Iberg's preliminary hearing testimony that defendant told her daughter that he had stolen an automobile, we find that even if the evidence was improperly admitted, any error was clearly harmless. Defendant himself testified that he told Iberg that he had stolen a car. He further testified that he acknowledged to Officer Suttlemeyer that he made the statement to Iberg. Iberg's testimony regarding defendant's admissions to her that he stole the car and struck a gas line and Officer Suttlemeyer's testimony as to his conversation with defendant were properly admitted as nonhearsay under Utah Rule of Evidence 801(d)(2)(A). In sum, there was sufficient evidence, not challenged by defendant, to support the jury's verdict.

Accordingly, we affirm the conviction and grant counsel's motion to withdraw.
 
 
 

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Pamela T. Greenwood,
Presiding Judge
 
 

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Norman H. Jackson,
Associate Presiding Judge
 
 

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James Z. Davis, Judge