State of Utah v. Mecham

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Darwin A. Mecham,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010757-CA

F I L E D
November 29, 2002 2002 UT App 402 -----

Eighth District, Duchesne Department
The Honorable A. Lynn Payne

Attorneys:
Julie George, Salt Lake City, for Appellant
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Thorne.

THORNE, Judge:

Darwin A. Mecham appeals from his convictions of possession of clandestine laboratory equipment or precursors within five-hundred feet of a residence, a first degree felony, and absconding from supervision, a third degree felony. We affirm.

Mecham's argument on appeal is that the trial court erred when it allowed the jury to twice view him while in handcuffs during his trial. Because Mecham failed to bring his allegation to the trial court's attention during his trial, on appeal we review it under the plain error doctrine. See State v. Evans, 2001 UT 22,¶16, 20 P.3d 888. To demonstrate plain error, Mecham must show first that the error occurred. See id. He then must demonstrate that the error should have been obvious to the trial court and that he was prejudiced because of the error. See id. However, [w]hen a defendant predicates error to this Court, he has the duty and responsibility of supporting such allegations by an adequate record. Absent that record, defendant's assignment of error stands as a unilateral allegation which the review[ing] court has no power to determine. This Court simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record. State v. Wulffenstein, 657 P.2d 289, 293 (Utah 1982).

Here, we conclude that nothing in the trial court record supports Mecham's assertion.(1) There seems to be no question that Mecham was indeed handcuffed at different points during his trial. However, our review of the record suggests that the trial court took appropriate measures to insulate the jury from this information and, absent some indication on the record, we have no reason to conclude otherwise. Had Mecham's argument instead focused on the effectiveness of his trial counsel, he may have been able to supplement the record through a motion made pursuant to rule 23B of the Utah Rules of Appellate Procedure. However, because he does not question the effectiveness of his trial counsel and has failed to provide this court with a record supporting his assertion, we are in no position to conclude that an error occurred.(2)

Accordingly, we affirm Mecham's convictions of possession of clandestine laboratory equipment or precursors within five-hundred feet of a residence and absconding from supervision.
 
 

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

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge

1. On appeal, rather than pointing to any record cite located within the course of his trial, Mecham attempts to rely on a letter he sent to the trial court five days after his conviction. His reliance on this letter is unpersuasive.

2. The inclusion of this language should in no way be interpreted as an evaluation of the effectiveness of Mecham's trial counsel.