Opinion
Case No. 991004-CA.
FILED December 21, 2000. (Not For Official Publication)
Appeal from the Eighth District, Vernal Department, The Honorable A. Lynn Payne.
Cindy Barton-Coombs, Roosevelt, for Appellant.
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee.
Before Judges JACKSON, DAVIS, and THORNE.
MEMORANDUM DECISION
Defendant Harry Gooch appeals from convictions for Aggravated Kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302(1) (1997), and Aggravated Burglary, a first degree felony, in violation of Utah Code Ann. § 76-6-203(1) (1999). We affirm.
Defendant raises the following arguments on appeal: (1) Utah Code Ann. § 76-6-203(1) (1999), the aggravated burglary statute, is "vague and overbroad," and thus, is unconstitutional; and (2) the aggravated kidnaping charge merges into defendant's aggravated burglary conviction. While defendant concedes that he failed to raise the merger claim in the trial court, our review of the record in this matter reveals that defendant failed to adequately raise either claim below. Initially, we note that "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.'" State v. Brown, 856 P.2d 358, 361 (Utah Ct.App. 1993) (citation omitted).
Regarding defendant's constitutional claim, defendant concedes that he did not "say the magic word `unconstitutional,'" but that "[d]efendant argued at the Preliminary Hearing and at the Trial that [the statute] is illogical, that aggravated burglary does not contain a burglary." Defendant's contention is that claiming the aggravated burglary statute is "illogical" is tantamount to raising a claim that the statute is unconstitutional. The argument is unconvincing. "`"[F]or an issue to be sufficiently raised, even if indirectly, it must be raised to a level of consciousness such that the trial judge can consider it."'" State v. Brown, 856 P.2d 358, 361 (Utah Ct.App. 1993) (emphasis added) (citations omitted).
"As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (citing State v. Marvin, 964 P.2d 313, 318 (Utah 1998)). The preservation rule, as it is known, "applies to every claim, including constitutional questions." Id. (emphasis added) (citing Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996); State v. Lopez, 886 P.2d 1105, 1113 (Utah 1995)). Utah does, however, recognize three exceptions to the preservation rule: (1) plain error, (2) exceptional circumstances, and (3) ineffective assistance of counsel. See State v. Irwin, 924 P.2d 5, 7 (Utah Ct.App. 1996).
A. Plain Error
Defendant argues plain error, for the first time in his reply brief, solely in relation to his constitutional claim. Defendant's failure to argue plain error in his initial brief effectively waives the plain error argument.
Nevertheless, we address defendant's plain error argument. To establish plain error, defendant must show that "`(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.'" Holgate, 2000 UT 74 at ¶ 13 (citation omitted).
After reviewing defendant's plain error argument, we conclude that it is cursory at best, citing no legal authority or constitutional provisions, but merely listing the elements required to establish plain error and applying little legal analysis as to how the specific elements are satisfied. See State v. Helmick, 2000 UT 70, ¶ 7, 9 P.3d 164 (stating that appellate courts are not depositories "`in which the appealing party may dump the burden of argument and research'" (citations omitted)). Accordingly, we find no merit in defendant's untimely plain error argument.
B. Exceptional Circumstances
Defendant next argues exceptional circumstances. He raises this argument for the first time in his reply brief, solely in relation to his constitutional claim. Defendant's failure to raise this argument in his initial brief effectively waives it.
Nevertheless, were we to look beyond the waiver, our supreme court has explained that the exceptional circumstance exception applies "`primarily to rare procedural anomalies.'" Holgate, 2000 UT 74 at ¶ 12 (quotingState v. Dunn, 850 P.2d 1206, 1209 n. 3 (Utah 1993)). Defendant concedes that the preservation rule "applies to constitutional issues," but argues that exceptional circumstances are present when a "a person's liberty is at stake." Johnson v. Department of Employment Sec., 782 P.2d 965, 972 (Utah Ct.App. 1989). However, defendant's reliance on Johnson is misplaced and inappropriate. "The fact that liberty is at stake . . . is no longer a sufficient basis for deviating from the [preservation] rule."Irwin, 924 P.2d at 11.
Defendant argues no other exceptional circumstances aside from his liberty interest, and from our review of the record, no "rare procedural anomalies" occurred below. Holgate, 2000 UT 74 at ¶ 12. Accordingly, we find no merit in defendant's argument.
C. Ineffective Assistance of Counsel
Finally, defendant argues ineffective assistance of counsel. Defendant raises this argument for the first time in his reply brief, solely in relation to his merger claim. As we have stated, defendant's failure to raise arguments in his initial brief waives them. The same holds true here.
Notwithstanding, the record reveals no unusual or peculiar circumstances warranting review of defendant's merger claim. Defendant's counsel simply concedes that "[t]he truth of the matter is that this attorney never considered the issue of merger until she read State v. Finlayson, 956 P.2d 283 (Utah [Ct.] App. 1998)." Moreover, defendant's counsel on appeal was also counsel below. See State v. Vessey, 967 P.2d 960, 964 (Utah Ct.App. 1998). We find no merit to defendant's ineffective assistance of counsel claim, and accordingly, decline to reach the merits of defendant's merger claim.
The judgment below is affirmed.
WILLIAM A. THORNE, Jr., Judge.
WE CONCUR: NORMAN H. JACKSON, Associate Presiding Judge and JAMES Z. DAVIS, Judge.