State v. Anderson

State v. Anderson

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Evan B. Anderson,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020503-CA
 

F I L E D
(April 29, 2004)
 

2004 UT App 131

 

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Fifth District, St. George Department

The Honorable James L. Shumate

Attorneys: Evan B. Anderson, New Harmony, Appellant Pro Se

Matthew C. Miller and Brock R. Belnap, St. George, for Appellee

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Before Judges Billings, Jackson, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.

"When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court's judgment unless it is 'against the clear weight of the evidence, or if [we] otherwise reach[] a definite and firm conviction that a mistake has been made.'" State v. Goodman, 763 P.2d 786, 786 (Utah 1988) (quoting State v. Walker, 743 P.2d 191, 193 (Utah 1987)). To support his argument that his actions were not reckless, Defendant relies on the facts that he received the sheriff's permission to start the fire and that he employed a front-end loader to control the fire by moving and spreading the burning material. In determining whether the judgment is against the clear weight of the evidence, however, we consider all the evidence presented at trial. In this case, such evidence includes Defendant's testimony that he started the fire and did not have a large water source available or other means of immediately extinguishing the fire.

The evidence at trial clearly supports the trial court's conclusion that Defendant's conduct was reckless in that he created "a substantial and unjustifiable risk" that smoke from the fire would cause damage to nearby persons and property. Utah Code Ann. § 76-2-103(3) (2003). Defendant should have perceived, but failed to perceive, this risk, and the failure to perceive this risk "constitute[d] a gross deviation from the standard of care that an ordinary person would exercise." Id.

Defendant argues that there was no evidence that the smoke from his fire caused the death of Weston's finches. However, the trial court, as fact finder, was free to infer that the smoke killed the finches, given that all seven birds died within hours of exposure to the smoke. Mere coincidence, while of course possible, is much less likely. See Alder v. Bayer Corp., 2002 UT 115,¶87, 61 P.3d 1068 ("It is well established that causation may be proved by circumstantial evidence[.]") (quotations, citations, and alterations omitted); State v. Fedorowicz, 2002 UT 67,¶41, 52 P.3d 1194 ("[W]e will affirm [Defendant]'s conviction[] so long as the circumstantial evidence connecting him to the crime[] charged is sufficient."), cert. denied, 537 U.S. 1123, 123 S. Ct. 859 (2003).

Rule 4(d) of the Utah Rules of Criminal Procedure provides: "The court may permit an indictment or information to be amended at any time before verdict if no additional or different offense is charged(1) and the substantial rights of the defendant are not prejudiced." As there was no issue about which fire was the gravamen of the information, and Defendant readily acknowledged starting it, amending the date of the offense did not compromise his ability to defend the charge.(2) Therefore, Defendant was not prejudiced by the amendment to the information.

Utah Code Ann. § 76-6-101(4)(a) (2003) defines value as "[t]he market value of the property, if totally destroyed, at the time and place of the offense." In fixing a value, the fact finder is "free to disregard expert testimony." State v. Carter, 707 P.2d 656, 663 (Utah 1985). "Because an owner is presumed to be familiar with the value of his possessions, an owner is competent to testify on the present market value of his property." State v. Purcell, 711 P.2d 243, 245 (Utah 1985). Although an owner's testimony is admissible, it is "neither inviolate nor impervious to disbelief." State v. Harris, 30 Utah 2d 439, 441, 519 P.2d 247, 248 (Utah 1974). See Newmeyer v. Newmeyer, 745 P.2d 1276, 1278 (Utah 1987) ("When acting as the trier of fact, the trial judge is entitled to give conflicting opinions whatever weight he or she deems appropriate.").

It follows that the trial court is not obligated to select a value figure specifically tied to any particular testimony. Rather, evidence will be deemed to support the value set by the fact finder if it is within the range testified to. See Weston v. Weston, 773 P.2d 408, 410 (Utah Ct. App. 1989). The trial court's finding regarding the value of the finches was reasonably placed midrange between Weston's estimated market value and the expert witness's estimated market value.(3)

Affirmed.

______________________________

Gregory K. Orme, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

1. "Whether an amendment charges an additional or different offense turns on whether different elements are required to prove the offense charged in the amended information or whether the offense charged in the amended information increased the potential punishment from that originally charged." Tillman v. Cook, 855 P.2d 211, 215 (Utah 1993) (footnote omitted), cert. denied, 510 U.S. 1050, 114 S. Ct. 706 (1994). The change of date in the information in this case did not require the State to prove different elements, nor did the change increase the potential punishment.

2. The result could, of course, be different if the defense was one of alibi, tied to a particular date, or if Defendant had started a fire on the date originally stated in the information, which also caused damage to someone else's property, and therefore was led to believe that was the fire in question.

3. Weston testified that she had recently obtained a current sales list from the vendor of her finches, which showed her type of finches at $80 each. While surely relevant, this evidence was not conclusive because two of her adult birds were a breeding pair, which, according to trial testimony, is "very rare" and increases their market value.