State of Utah, v. Rees

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Troy Rees,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 991078-CA

F I L E D
February 1, 2001 2001 UT App 27 -----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
H. Don Sharp, Ogden, for Appellant
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Jackson, Orme, and Thorne.

JACKSON, Associate Presiding Judge:

Rees first challenges the trial court's ruling on his motion to suppress evidence. The record shows the trial court relied on evidence presented in the preliminary hearing to decide the suppression issue. However, Rees failed to incorporate the preliminary hearing transcript, the suppression hearing transcript, and the affidavit in support of the search warrant into the record. A complete record is essential in this case because "issues presented in search and seizure cases are highly fact sensitive." State v. Lovegreen, 798 P.2d 767, 770 (Utah Ct. App. 1990). Because some transcripts were not included in the record, we are unable to review pertinent factual findings by the trial court in our evaluation of whether someone had the authority to consent to a search. "In the absence of an adequate record on appeal, we cannot address the issues raised and [we] presume the correctness of the disposition made by the trial court." State v. Rawlings, 829 P.2d 150, 152-53 (Utah Ct. App. 1992); see also Utah R. App. P. 11(e)(2).(1)

Next, Rees challenges the trial court's finding that he possessed marijuana with intent to distribute. To successfully challenge a trial court's factual finding, Rees must first marshal the evidence in support of the finding and then show why that evidence is legally insufficient to support the finding. See Utah R. App. P. 24(a)(9) ("A party challenging a fact finding must first marshal all record evidence that supports the challenged finding."). Rees has failed to marshal the evidence, instead he only points to the evidence contrary to the trial court's ruling. See State v. Decorso, 1999 UT 57,¶41, 993 P.2d 837. Thus, we affirm the trial court's finding. See id.

Finally, Rees contends the trial court dismissed the case after witnesses for the State failed to appear at two scheduled preliminary hearings, and the trial court should not have allowed the State to refile charges without presenting new evidence. However, the record does not bear out Rees's assertions. First, the record does not show that the case was dismissed and charges were refiled. Second, the record shows that the scheduled April 1, 1999 preliminary hearing was continued at Rees's request so that Judge Baldwin could hear the case. The April 8, 1999 preliminary hearing was also continued at Rees's request. Because Rees has failed to provide an adequate record to support his contentions on appeal, we presume the correctness of the trial court's rulings. See Rawlings, 829 P.2d at 152-53.

Affirmed.
 
 

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

WE CONCUR:
 
 

______________________________
Gregory K. Orme, Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. We note that Rees did not file a reply brief. The State's brief argues several procedural failures which Rees did not address in his opening brief. Absent a reply brief, the State's characterization of the record and the important nature of the omitted transcripts stands unchallenged.