State v. Tran

State v. Tran

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Khai Tran,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030533-CA
 

F I L E D
(October 7, 2004)
 

2004 UT App 347

 

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Second District, Ogden Department

The Honorable Pamela G. Heffernan

Attorneys: Randall W. Richards, Ogden, for Appellant

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

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Before Judges Billings, Greenwood, and Orme.

BILLINGS, Presiding Judge:

    Khai Tran appeals his conviction for retail theft. See Utah Code Ann. § 76-6-602 (1999). We affirm.

    Tran argues that the trial court erred by failing to grant a continuance under Utah Code section 77-17-13 when the State did not comply with that section's notice requirements for expert witnesses. See Utah Code Ann. § 77-17-13 (1999). Specifically, Tran argues that the jewelry store owner provided expert testimony regarding the diamond Tran was convicted of stealing. If a party fails to meet the notification requirements of section 77-17-13(1)(a), "the opposing party shall be entitled to a continuance of the trial or hearing sufficient to allow preparation to meet the testimony." Id. § 77-17-13(4)(a).

    A trial court's decision either to "grant or deny a continuance is clearly within its discretion," and this court "will not disturb such decisions absent a clear abuse of discretion." State v. Tolano, 2001 UT App 37,¶5, 19 P.3d 400 (quotations and citation omitted). Moreover, we give the trial court considerable discretion in determining what constitutes expert testimony, and "[a]bsent a clear abuse of this discretion," the trial court will not be overturned. State ex rel. G.Y. v. State, 962 P.2d 78, 83 (Utah Ct. App. 1998).

    Prior to trial, Tran properly objected to the witness's ability to testify as an expert, but agreed that the witness could provide nonexpert testimony as the owner of the store. However, at trial Tran did not object to any testimony of the owner as being expert testimony. Thus, Tran did not present the trial court with an opportunity to rule upon whether any of the testimony was expert and thereby waived any objection. See State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346 (stating that "claims not raised before the trial court may not be raised on appeal"). For this reason, the trial court did not abuse its discretion either by failing to grant a continuance for Tran to prepare to meet expert testimony or by admitting the testimony as nonexpert testimony.

    Even if the testimony was expert in nature and the objection had been preserved, however, admitting the evidence would have been harmless error. The elements of retail theft are: (1) taking possession of store merchandise, (2) with the intention of retaining or depriving the owner of the merchandise, and (3) without paying the retail value of the merchandise. See Utah Code Ann. § 76-6-602(1). If the retail value of the merchandise falls between $1000.00 and $5000.00, then the theft is a third-degree felony. See Utah Code Ann. § 76-6-412(1)(b)(i) (1999).

    On appeal, Tran claims that the State did not establish the retail value of the diamond except through the store owner's "expert" testimony.(1) Yet there was ample nonexpert testimony regarding the retail value of the diamond: there was evidence that the diamond actually sold for more than $1000.00 and a police officer testified as to the retail value without objection. Thus, even if the store owner's testimony had been expert in nature, ample other evidence established the value of the diamond, and therefore any error in admitting the testimony would have been harmless.

    For these reasons, we affirm.

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. Tran also argues that the retail value of the diamond should be offset by the value of the cubic zirconium with which Tran replaced the diamond. We disagree. The relevant value is "the value of the property" taken, Utah Code Ann. § 76-6-412(1)(b)(i) (1999) (emphasis added), not the net value of the exchange of property.