State v. Tucker, 17944
| Decision Date | 29 December 1982 |
| Docket Number | No. 17944,17944 |
| Citation | 657 P.2d 755 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Kerry J. TUCKER, Defendant and Appellant. |
| Court | Utah Supreme Court |
James A. Valdez, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Salt Lake City, for plaintiff and respondent.
From a conviction by the court sitting without a jury, of aggravated sexual assault, 1 defendant appeals on the ground that the victim's identification was inaccurate and prompted by a police officer's unfair photograph "lineup," suggesting inducement of such identification. He contends that there was insufficient evidence to convict him, and that the "array" of pictures in the photographic lineup was "suggestive" to the point of denying him due process of law, which resulted in an unwarranted conviction.
The claim that a police officer unfairly set up a "suggestive" array of pictures to induce the victim erroneously to identify the defendant as the rapist, is without merit. Although the victim was unable to assist in drawing an accurate composite of her attacker's facial features, she did accurately describe such things as defendant's height, weight, hair, mustache, and clothing. When shown a fair array of five photographs, the victim very quickly chose defendant as being her assailant.
The trial court summed up the evidence, including that as to identification, as follows:
I have to view this evidence as to whether or not Kathy's positive identification of this man is such as to convince me beyond a reasonable doubt that he perpetrated the crime. Looking at the factors I have mentioned of what took place, or her identification of him, of her quick identification of his photograph when it was shown to her, her positive identification of him as being the man that perpetrated the crime, leaves me to believe beyond a reasonable doubt that he was in fact the one that did it and I therefore find him guilty of the crime as charged.
From the record before us, we are convinced that there was nothing improper or suggestive as to the identification procedure. 2
As to the claim of insufficiency of evidence, there is nothing in the defendant's brief that is other than a controversion or a different analysis of the facts as found by the court. Under familiar rules of appellate review, we are constrained to affirm the trial court, viewing the evidence in a light favorable to the court's decision. 3
A separate and independent basis for the affirmance of the trial court is that the defendant failed to refer to any portion of...
To continue reading
Request your trial
-
State v. Blubaugh
...realleged his version of the facts. This is not sufficient to challenge the trial court's findings or conclusions. See State v. Tucker, 657 P.2d 755, 756-57 (Utah 1982). Thus, we uphold the trial court's ruling denying defendant's motion to suppress this b. Rule 403 Considerations with Resp......
-
Golden Key Realty, Inc. v. Mantas
...of appellate procedure require that parties cite to the record when factual assertions are made. Utah R.Civ.P. 75(p)(2); State v. Tucker, Utah, 657 P.2d 755 (1982). It is improper to make blanket assertions of fact and leave it to this Court to ferret out evidence from the record to support......
-
State v. Pursifull
...to suppress. Although this failure could provide an independent basis for affirming the trial court's determination, State v. Tucker, 657 P.2d 755, 756-57 (Utah 1982); Koulis v. Standard Oil Co., 746 P.2d 1182, 1184 (Utah App.1987), we choose instead to reach the merits of defendant's claim......
-
State v. Garza
...660 P.2d 252, 253 (Utah 1983) (court assumes correctness of judgment below if counsel on appeal fails to cite to record); State v. Tucker, 657 P.2d 755, 756 (Utah 1982) (court assumes correctness of findings when defendant's brief contained nothing more than defendant's version of facts fou......