State v. Stringham, 2004 UT App 465 (UT 12/16/2004)

• Decision Date: 16 December 2004
• Docket Number: Case No. 20030316-CA.
• Citation: 2004 UT App 465
• Parties: State of Utah, Plaintiff and Appellee, v. Kyle Kent Stringham, Defendant and Appellant.
• Court: Utah Supreme Court

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2004 UT App 465

State of Utah, Plaintiff and Appellee, v. Kyle Kent Stringham, Defendant and Appellant.

Case No. 20030316-CA.

Court of Appeals of Utah.

Filed December 16, 2004.

(Not For Official Publication)

Appeal from the Eighth District, Duchesne Department, The Honorable John R. Anderson.

Julie George, Salt Lake City, for Appellant.

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.

Before Judges Bench, Orme, and Thorne.

MEMORANDUM DECISION

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.

Defendant failed to provide the trial court the opportunity to rule on whether offense "063" should have been dismissed under Utah Code section 76-1-403(1). See Utah Code Ann. § 76-1-403(1) (2003). Generally, an issue must be preserved at the trial court before a party can obtain appellate relief. See State v. Richins, 2004 UT App 36,¶8, 86 P.3d 759 (explaining that, for purposes of appellate review, issue must be preserved unless "trial court committed plain error or the case involves exceptional circumstances"). "In order to preserve an issue for appeal, it 'must be raised in a timely fashion'" and it "'must be specifically raised such that the issue is sufficiently raised to a level of consciousness before the trial court.'" Id. (citation omitted). Despite Defendant's claim that the motion he submitted to the trial court called for the dismissal of offense "063," our review of the record reveals otherwise and further shows that he has not demonstrated plain error on the part of the trial court. Therefore, we are precluded from addressing this issue.

Defendant argues that both drug sale offenses were part of the same criminal episode for which he was arrested later the same day and, thus, both should have been dismissed under Utah Code section 76-1-403(1). However, Defendant fails to meet the briefing requirements of the Utah Rules of Appellate Procedure. See Utah R. App. P. 24. See also Utah Code Ann. § 76-1-403(1). Therefore, we decline to disturb the trial court's ruling concerning this issue. Even if Defendant had properly briefed this argument, we are skeptical as to its merit. We doubt his conduct throughout the day constituted a single criminal episode. See Utah Code Ann. § 76-1-403(1) (prohibiting multiple prosecutions for offenses arising out of single criminal episode). Rather, Defendant seems to have pursued multiple criminal objectives, involving different acts, substances, and persons, over the course of the day. See State v. Keppler, 1999 UT App 89,¶6, 976 P.2d 99 (determining drug offenses embedded in different subsections of...