State v. Larson, 860553
| Decision Date | 01 June 1989 |
| Docket Number | No. 860553,860553 |
| Citation | 775 P.2d 415 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Wayne J. LARSON, Defendant and Appellant. |
| Court | Utah Supreme Court |
Gerald S. Wight, Ogden, for defendant and appellant.
R. Paul Van Dam and Kimberly K. Hornak, Salt Lake City, for plaintiff and appellee.
Defendant Wayne J. Larson appeals from his conviction, following a jury trial, of the offense of sodomy on a child, a first degree felony. Utah Code Ann. § 76-5-403.1 (Supp.1986) (amended 1988). On appeal, Larson advances three arguments. He claims that the trial court erred in denying his pretrial motion to dismiss or continue the action, in excluding from evidence certain police reports, and in improperly commenting on the lack of relevance of those police reports. We affirm.
In January of 1986, Larson was arrested and charged with committing sodomy on a child, a violation of section 76-5-403.1 of the Code. Utah Code Ann. § 76-5-403.1 (Supp.1986) (amended 1988). The child was thirteen at the time of the alleged abuse. When the child first reported the abuse in December of 1985, he was living with his father and stepmother in New Mexico. He alleged that he had been abused by Larson while he was living with his mother and stepfather in Davis County, Utah. He initially claimed that the incident occurred a year earlier, during November or December of 1984. Later, he changed the date to March or April of 1985, and by the time of trial, he contended that it had occurred between March 28 and April 7, 1985. The jury trial was held in May of 1986. It amounted essentially to a test of the child's credibility. Larson did not testify. He was convicted and sentenced to a minimum mandatory prison term of five years under section 76-5-403.1(2) of the Code. Utah Code Ann. § 76-5-403.1(2) (Supp.1986).
Larson's first argument on appeal is that the court erred in denying his motion made four days before trial to either dismiss the charges or continue the trial. The basis for this motion was Larson's claim that the prosecution had failed to comply with certain discovery requests and with a court order compelling discovery. Some background concerning this discovery issue is necessary. No physical evidence of the alleged abuse existed. Larson's defense strategy was to show that the child was not a believable witness. Larson knew that the child had been arrested several times and had been incarcerated in juvenile detention facilities on occasion. Larson hoped to show that the child was in custody at the time of the alleged abuse.
In furtherance of this effort, Larson made a discovery request under criminal procedure rule 16 in February of 1986 for, inter alia,
any and all police records relating in any manner to the alleged victim ... including but not limited to actual charges filed against said individual, investigations in which said individual was a suspect, records of any Court proceedings concerning said individual, any periods of incarceration of said individual and any and all records respecting placement in foster care or any other protective services.
Utah R.Crim.P. 16 (codified at Utah Code Ann. § 77-35-16 (1982)). In March, Larson made a motion to compel under criminal procedure rule 16, having concluded that the prosecution's response was inadequate. On March 20th, the court ordered the prosecution to provide Larson with the documents requested. The prosecution contacted the juvenile court, showed it the order, and requested the documents described in the request. The juvenile court agreed to release only records showing the child's detentions in juvenile court facilities, a total of two documents. It refused to turn over other documents covered by the discovery request. The prosecution sent copies of the two documents to Larson's counsel in early April. On May 21st, over a month and a half later and six days before the scheduled trial date, Larson filed a second motion pursuant to criminal procedure rule 16(g). This time, he asked the court to dismiss the charges or continue the trial on grounds that the prosecution had not adequately responded to the request or the order.
A hearing on this motion was held on Friday, May 23rd. The trial court denied Larson's motion, informing his counsel that the State did not have the right to secure additional documents from the juvenile court, that it was his responsibility to subpoena the custodians of those records if he wished to acquire them, and that immediately after the hearing, Larson's attorney and the prosecutor were to see if they could contact those people to arrange for production of the remaining documents. The custodians were identified as the director of the Moweda juvenile detention facilities near Roy, Utah, and the Director of Family Services for the Utah area where the child used to live. The court also indicated that if Larson needed more time to prepare his defense after contacting the custodians, it would consider continuing the trial date.
Following the hearing, Larson's counsel directed a process server to subpoena the custodians. Four days later, on the morning of the trial, the custodians did not appear and the documents were not produced. Larson's counsel was unsure whether these individuals had been served. However, he did not request a continuance. The one-day trial proceeded, and Larson was convicted.
Larson argues that criminal procedure rule 16(g) vested the trial court with wide discretion to remedy the prosecution's failure to comply with his discovery requests and claims that the court abused this discretion when it denied his pretrial motion to dismiss the charges or continue the trial. 1 Rule 16(g) provides:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.
Utah R.Crim.P. 16(g) (codified at Utah Code Ann. § 77-35-16(g) (1982)). Rule 16(g) grants a trial court ample discretion to remedy any prejudice to a party resulting from a breach of the criminal discovery rules. State v. Knight, 734 P.2d 913, 918 (Utah 1987). However, the crux of a rule 16(g) motion is a requirement that the moving party show that the other party has failed to furnish discovery as required by rule 16. In the present case, Larson has made no such showing.
As the trial court informed Larson's counsel on May 23rd, when the motion to dismiss or continue came on for hearing, the prosecution had complied with the court's order compelling discovery. It had made a reasonable attempt to acquire the requested juvenile court records and had promptly sent Larson copies of the two documents it obtained. The remaining documents were not within the prosecution's control; therefore, failing to produce them certainly was not a violation of the earlier order or of the rule. Because there was no legal basis for Larson's rule 16(g) motion, the trial court properly denied it.
But even if the trial court erred in denying Larson's rule 16(g) motion, we still would not find reversible error. Although the court denied Larson's motion on May 23rd, it indicated that it would consider a request to continue the trial date if Larson's counsel felt that a continuance was necessary after he had subpoenaed the juvenile record holders. On May 27th, the trial date, Larson's counsel informed the court that he was unsure whether the record holders had been served. He did not, however, request that the trial be continued. Therefore, by not requesting a continuance at that point, Larson essentially waived his right to later claim error. See generally Utah R.Evid. 103(a); State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986).
Larson's second argument is that the trial court erred in excluding from evidence some of the police reports about which the child and a police officer, Don Roundy, were cross-examined. A brief review of those examinations will assist in disposing of this claim. During the child's...
To continue reading
Request your trial
-
State v. Bakalov
...trial court ample discretion to remedy any prejudice to a party resulting from a breach of the criminal discovery rules." State v. Larson, 775 P.2d 415, 418 (Utah 1989) (citing State v. Knight, 734 P.2d 913, 918 (Utah 1987)); see also Barnard, 514 F.2d at 746 (stating that the opportunities......
-
State v. Woolley
...we reverse only if the trial court has abused its discretion. State v. Gotschall, 782 P.2d 459, 462 (Utah 1989) (citing State v. Larson, 775 P.2d 415, 419 (Utah 1989); State v. Verde, 770 P.2d 116, 120 (Utah 1989)). 2 The Utah Supreme Court has noted, however, that the exercise of the trial......
-
State v. Kooyman
...must show (1) that the State failed to furnish information required by rule 16 of the Rules of Criminal Procedure, see State v. Larson, 775 P.2d 415, 418 (Utah 1989), and (2) that there is "a reasonable likelihood of a more favorable" outcome had the State provided the information. State v.......
-
State v. Taylor
...where admission of the evidence amounted to prejudicial error. State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989); State v. Larson, 775 P.2d 415, 419 (Utah 1989); State v. Gentry, 747 P.2d 1032, 1035 (Utah B. Rule 404(b) Rule 404(b) of the Utah Rules of Evidence, provides: Evidence of other ......