State of Utah v. Miller

State v. Miller

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Michael Miller and Janeina Jeffs Miller,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20011014-CA
 

F I L E D
(March 20, 2003)
 

2003 UT App 76

 

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Eighth District Juvenile, Vernal Department

The Honorable Larry A. Steele

Attorneys: Julie George, Salt Lake City, for Appellants

G. Mark Thomas, Vernal, for Appellee

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Before Judges Bench, Orme, and Thorne.

THORNE, Judge:

Janeina and Mike Miller appeal from their convictions for supplying alcohol to minors.(1) We affirm.

The Millers assert that the trial court committed plain error in three instances. For their claims to succeed, the Millers have "'the burden of showing (i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.'" State v. Dean, 2002 UT App 323,¶3, 57 P.3d 1106 (quoting State v. Hittle, 2002 UT App 134,¶5, 47 P.3d 101).

The Millers first argue that the trial court erred because the State failed to prove jurisdiction, and absent proof of jurisdiction the court should have acquitted the Millers. However, the Millers confuse jurisdiction with venue. Compare Utah Code Ann. § 76-1-201 (1999) (defining jurisdiction for the purpose of criminal prosecutions) with Utah Code Ann. § 76-1-202 (1999) (defining venue for the purpose of criminal prosecution). The Millers do not argue that the alleged offense took place outside the State of Utah, see id. § 76-1-201(1)(a), which would suggest that the court did not have jurisdiction over the offense. Rather, the Millers argue that the State failed to introduce evidence that the offense took place within the county over which the district court has subject matter jurisdiction. Thus, the Millers' argument actually centers on venue. See id. § 76-1-202(1). However, any objection to the State's chosen venue is waived if a defendant fails to raise it prior to trial. See id. § 76-1-202(2); State v. Dunbar, 665 P.2d 1273, 1274 (Utah 1983). Considering the waiver provision of section 76-1-202, and the fact that the Millers failed to object to the State's chosen venue prior to trial,(2) we conclude that the Millers have failed to satisfy even the first element required to prove plain error.

The Millers next argue that the trial court plainly erred in permitting the State to submit as evidence videotaped statements of witnesses relied upon by the State to convict the Millers. Assuming for the sake of argument that the content of the videotape was inadmissible hearsay, we will not consider a plain error claim "if a party through counsel has made a conscious decision to refrain from objecting or has led the trial court into error." State v. Bullock, 791 P.2d 155, 158 (Utah 1989). Here, when the State offered the videotape,(3) the trial court asked whether defense counsel had any objection. Counsel responded, "No objection." Thus, because defense counsel waived any objection to the submission of the videotape, we will not consider the Millers' second claim.(4)

Finally, the Millers argue that the trial court committed plain error in convicting them of the charged crime as well as the crime charged in the alternative. Rule 30 of the Utah Rules of Criminal Procedure establishes that "[a]ny error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded." See also State v. Johnson, 771 P.2d 1071, 1073 (Utah 1989) (concluding that "we will not reverse a conviction unless the error is substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there would have been a more favorable result for the defendant"). Here, while the trial court's oral announcement appears to support the Millers' assertion,(5) the written record does not. After reviewing the record, we conclude that the trial court convicted the Millers of just one crime--supplying alcohol to minors--and sentenced them accordingly. Because the evidence clearly supports this verdict, we conclude that any error that might have occurred is harmless because no reasonable likelihood exists that the result would change if the Millers were to receive a new trial. Thus, we deny the Millers' final plain error argument.

Accordingly, we affirm the Millers' convictions of supplying alcohol to minors.

______________________________

William A. Thorne Jr., Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Gregory K. Orme, Judge

1. While the Millers initially filed their appeals separately, based on their status as co-defendants and the identical issues presented on appeal, we consolidated their appeals and address both in this decision.

2. Nor do the Millers argue on appeal that venue was inappropriate in Uintah County. Instead, the Millers argue that venue is an element of the charged crime and as such must be proven at trial. To the extent that we entertain this argument, it is sufficient to note that, first, venue is not an element of the charged crime, and second, the State is required to prove venue by only a preponderance of the evidence. See State v. Mitchell, 3 Utah 2d 70, 278 P.2d 618, 620 (1955). While we believe that the burden to prove venue vests only if venue is challenged before trial, see Utah Code Ann. § 76-1-202(2) (1999), in this case, we conclude that the testimony provided by both parties supported venue in Uintah County.

3. Although the State relied on the videotape throughout the trial, at the trial's conclusion, the trial court apparently returned it to the custody of the Deputy Sheriff responsible for the recording. While the trial court's decision to return the videotape has no impact on our decision today, we caution the court from similar actions in the future. Many issues presented to this court on appeal require the submission of a complete trial record, and the absence of material evidence is likely to have an adverse impact on our review. See Utah R. App. P. 24(a)(11)(C).

4. The Millers also briefly argue that the prosecution never moved to admit the videotape as evidence, and thus the trial court erred in considering the videotape. This claim, however, fails not only because the Millers' trial counsel actively waived any objection to the use of the videotape, see State v. Bullock, 791 P.2d 155, 158 (Utah 1989), but also because their argument seems to focus on the form of the prosecutor's offer. We are unaware of any authority that would require the use of certain "magic language" by an attorney when offering an exhibit into evidence, and, if such a requirement did exist, the Millers' trial counsel waived any objection to the offer and its form. See id.; see generally State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986).

5. At trial's end, the trial court orally found the Millers guilty of both the crime charged and the crime charged in the alternative. However, the court then recognized that the Millers could not be sentenced for both and, after consulting with the prosecuting attorney, sentenced the Millers for the crime charged and not the crime charged in the alternative. Any error inherent in this procedure was later eliminated when the trial court issued a written judgment limiting the Millers' convictions and sentences to the crime charged; viz., supplying alcohol to minors.