State of Utah v. Cherry

State v. Cherry

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Thomas T. Cherry,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 990899-CA
 

F I L E D

(February 21, 2003)
 

2003 UT App 47

 

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Fourth District, Provo Department

The Honorable Donald J. Eyre Jr.

Attorneys: Margaret P. Lindsay, Provo, for Appellant

Mark L. Shurtleff, Laura B. Dupaix, and E. Neal Gunnarson, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Davis.

BENCH, Judge:

Defendant argues that the "evidence was insufficient to sustain the jury's verdicts that [Defendant] 'willfully' offered or sold a security." In reviewing the sufficiency of the evidence to sustain a jury verdict, we view "'the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury.'" State v. Brown, 948 P.2d 337, 343 (Utah 1997) (citation omitted). We will reverse a jury conviction for insufficient evidence "'only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he . . . was convicted.'" Id. (citation omitted).

"'It is well established that a defendant's burden on appeal when challenging the sufficiency of the evidence after a jury trial is to marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.'" State v. Lopez, 2001 UT App 123,¶18, 24 P.3d 993 (quoting State v. Silva, 2000 UT App 292,¶25, 13 P.3d 604).

In order to properly discharge the duty of marshaling the evidence, the [challenging party] must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the [challenging party] resists. After constructing this magnificent array of supporting evidence, the [challenging party] must ferret out a fatal flaw in the evidence.

West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991).

Defendant fails to meet his marshaling burden in this case. Defendant presents a lengthy summary of the testimony from witnesses but does not "ferret out [the] fatal flaw in the evidence" that supports the verdict. Id. Defendant claims that "Hewitt's testimony is contradicted by every other significant witness" and then points to the favorable testimony of the other witnesses "who had nothing to hide nor gain from their testimony." Defendant is simply "attempting to reargue the weight of the evidence on appeal." Lopez, 2001 UT App 123 at ¶19. "The fact that defendant's evidence contradicts the jury's determination does not require reversal on appeal." State v. Bingham, 732 P.2d 132, 133 (Utah 1987).

Accordingly, we affirm Defendant's convictions.

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Russell W. Bench, Judge

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WE CONCUR:

Norman H. Jackson,

Presiding Judge

James Z. Davis, Judge