State v. Brown

• Decision Date: 12 May 1993
• Docket Number: No. 910464-CA,910464-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Randall BROWN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 358

856 P.2d 358

STATE of Utah, Plaintiff and Appellee, v. Randall BROWN, Defendant and Appellant.

No. 910464-CA.

Court of Appeals of Utah.

May 12, 1993.

Rehearing Denied June 28, 1993.

David C. Nye (argued), Merrill & Merrill, Chartered, Pocatello, ID, for defendant and appellant.

Jan Graham, State Atty. Gen., Marian Decker (argued), Asst. Atty. Gen., Governmental Affairs, Salt Lake City, for plaintiff and appellee.

Before GARFF, GREENWOOD and ORME, JJ.

GREENWOOD, Judge:

Defendant, Randall Brown, appeals his jury trial conviction for exhibiting harmful material to a minor in violation of Utah Code Ann. § 76-10-1206 (1989). Because defendant failed to preserve the issues upon which he bases his appeal, he has waived the right to assert these challenges. We therefore affirm defendant's conviction.

BACKGROUND

Sometime during May or June of 1989, defendant, a science teacher at the local middle school, asked a fifteen year old female student (L.F.) to come to his apartment. When L.F. arrived, defendant invited her to watch a video which she later described as showing "sexually active people" apparently engaged in heterosexual and homosexual activity. L.F. testified that she left defendant's apartment when he started "want[ing] [her] to do things that [she] didn't want to do."

Almost a year later, L.F. told police that she had engaged in sexual intercourse with defendant. The sheriff's department then detained defendant for questioning, during which defendant denied the sexual intercourse allegation but admitted to showing L.F. part of a "dirty movie." When the police re-interviewed L.F., she admitted that she had never had intercourse with defendant, but had lied to get even with him "about something."

Two years after L.F.'s visit to defendant's home, defendant was tried on the charge of exhibiting material harmful to a minor. Two days prior to the trial, two officers went to L.F.'s school and showed her parts of three X-rated video tapes, with permission from the prosecutor, but without her parents' consent or knowledge. During the trial, the prosecutor showed a portion of one of those videos to L.F. and the jury. The jury convicted defendant and the trial court sentenced him to five years imprisonment and imposed a $5000.00 fine. The trial court then stayed sentence, placing defendant on probation subject to his serving the fourteen day minimum mandatory sentence and abiding by other probation conditions. Defendant appealed his conviction.

After filing the appeal, defendant's attorney petitioned the trial court for a certificate of probable cause pursuant to Utah R.Crim.P. 27, seeking defendant's release during the pendency of his appeal. Although the trial court denied defendant's motion, this court subsequently determined that, based on the criteria in Utah Code Ann. § 77-20-10(1)(a) & (b), defendant's appeal merited issuance of a certificate of probable cause. On remand, however, the trial court concluded that defendant had not met his burden under section 77-20-10(1)(c) of proving that he would not flee and that his release would not pose a danger to another person or the community. Defendant was, therefore, ineligible for release and was required to serve the sentence originally imposed while this appeal was pending.

ANALYSIS

Preserving Issues for Appeal

On appeal, defendant challenges both the facial constitutionality of the statute and the enforcement procedure which formed the bases for his conviction. The State counters defendant's challenges on procedural grounds, asserting the threshold argument that defendant's failure to preserve these issues before the trial court constitutes a waiver which precludes our consideration of the issues on appeal.

As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances. State v. Brown, 853 P.2d 851 (Utah 1992); State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987); State v. Archambeau, 820 P.2d 920, 922 (Utah App.1991). ¹ See also State v. Loe, 732 P.2d 115, 117 (Utah 1987); State v. Belgard, 811 P.2d 211, 213-15 (Utah App.) cert. granted, 817 P.2d 327 (Utah 1991). The purpose of requiring a properly presented objection is to "put[ ] the judge on notice of the asserted error and allow[ ] the opportunity for correction at that time in the course of the proceeding." Broberg v Therefore, to ensure the trial court's opportunity to consider an issue, appellate review of criminal cases in Utah requires "that a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record." State v. Tillman, 750 P.2d 546, 551 (Utah 1987). See also State v. Emmett, 839 P.2d 781, 783-84 (Utah 1992); State v. Shickles, 760 P.2d 291, 301 (Utah 1988).

Hess, 782 P.2d 198, 201 (Utah App.1989). The trial court is considered "the proper forum in which to commence thoughtful and probing analysis" of issues. State v. Bobo, 803 P.2d 1268, 1273 (Utah App.1990) (requiring defendants to introduce their request for state constitutional interpretation before the trial court). Failing to argue an issue and present pertinent evidence in that forum denies the trial court "the opportunity to make any findings of fact or conclusions of law" pertinent to the claimed error. LeBaron & Assoc. v. Rebel Enter., 823 P.2d 479, 483 n. 6 (Utah App.1991) (discussing Turtle Management, Inc. v. Haggis Management, Inc., 645 P.2d 667 (Utah 1982)).

The requirements of specificity and timeliness for issue preservation are distinct, and the posture of this case has made each a separate consideration. Because defendant modified his trial issues in a post-trial petition, we must consider independently (1) whether defendant sufficiently specified the issues he appeals at trial to preserve them for our consideration, and (2) if not, whether defendant's post-trial petition for certificate of probable cause was sufficiently timely to preserve defendant's newly articulated challenges.

Specificity

The statute under which defendant was charged provides in pertinent part: "A person is guilty of dealing in harmful material when, knowing that a person is a minor, ... he (a) knowingly ... exhibits or offers to exhibit any harmful material to a minor." Utah Code Ann. § 76-10-1206(1) (1989). It excludes from culpability the parents or legal guardian of a minor, id. at § 76-10-1206(2)(a), or one who exhibits harmful material to a minor in the presence of his or her parents or legal guardian, id. at § 76-10-1206(2)(b).

At various times during the trial, defendant's counsel alluded to defendant's intent to challenge the constitutionality of the statute. For purposes of this challenge, the trial court gave defendant opportunities to elicit testimony from L.F. and the police officers which indicated that the minor's parents had not consented to the officers' showing videos to L.F. while she was at school and that they were not present during that showing. In a motion for a directed verdict, defendant's counsel presented two theories, for which he had evidently created this record, indicating the absence of parental consent or presence. First, he argued that the State failed to prove that defendant did not have parental consent to show L.F. the video. Second, he claimed that the statute's parental exception, allowing parents to exhibit to their children material harmful to minors, violated defendant's right to equal protection and due process. The trial court denied defendant's motion, ruling that the State had carried its burden of proof and the statute withstood the constitutional challenge because the parental exception reasonably anticipated a beneficial purpose for parents presenting otherwise harmful material to their own children.

In his post-conviction petition for certificate of probable cause and on appeal defendant recharacterized these challenges. First, he complained that while the statute's plain language does not criminalize the showing of harmful material by a minor's parent, it does forbid the spouse of a minor from showing the same material to his or her marital partner. Defendant invoked the overbreadth doctrine to allow him, on behalf of the spouse of a minor, to challenge what he considers to be a substantial infringement on the First Amendment and privacy rights of a lawfully wed couple, one of whose partners is a minor. Second, he asserted two objections to the behavior of the police involved in his case: (1) he claimed that the State violated his Utah courts require specific objections in order "to bring all claimed errors to the trial court's attention to give the court an opportunity to correct the errors if appropriate." VanDyke v. Mountain Coin Mach. Distrib., Inc., 758 P.2d 962, 964 (Utah App.1988) (failing to object specifically to a jury instruction constituted waiver); see also State v. Webb, 790 P.2d 65, 77 (Utah App.1990) (requiring suppression motions to be supported by precise averments of the grounds therefor, not conclusory generalizations); State v. Ross, 782 P.2d 529, 532 (Utah App.1989) (finding that Rule 103(a)(1) and (d) of the Utah Rules of Evidence require contemporaneous, specific objection to allegedly improper prosecutorial conduct). This specificity requirement arises out of the trial court's need to assess allegations by isolating relevant facts and considering them in the context of the specific legal doctrine placed at issue. For this reason, a general objection may be insufficient to preserve a specific substantive issue for appeal. State v. Elm, 808 P.2d 1097, 1099 (Utah 1991) (discussing State v. Whittle, 780 P.2d 819, 820-21 (Utah 1989); State v. Johnson, 774 P.2d 1141, 1144-45 (Utah 1989)). The "mere mention" of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal....