Opinion
Case No. 20020316-CA.
Filed June 5, 2003. (Not For Official Publication)
Appeal from the Fourth District, Orem Department, The Honorable John C. Backland.
Randy M. Lish, Provo, for Appellant.
Justin Johanson, Orem, for Appellee.
Before Judges Davis, Orme, and Thorne.
MEMORANDUM DECISION
Appellant Ricardo Abraham Carrasco appeals his conviction of Stalking, a class A misdemeanor.
Carrasco was convicted following a bench trial at which he was tried in absentia, but was represented by counsel. On appeal, he claims that (1) the trial court erred in denying a continuance of the trial, (2) the proceedings violated Carrasco's right to due process or denied him fundamental fairness, and (3) the evidence was insufficient to support the conviction.
"When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court's judgment unless it is `against the clear weight of the evidence or [this court] otherwise reaches a definite and firm conviction that a mistake has been made.'" State v. Goodman, 763 P.2d 786, 786 (Utah 1998) (quoting State v. Walker, 743 P.2d 191, 193 (Utah 1987)). Although Carrasco purports to state the facts developed in the trial court, he has not provided a transcript of the trial or any other proceeding. A party challenging a factual finding on appeal must marshal the evidence supporting the verdict, i.e., he must "present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists," then demonstrate that there is a "fatal flaw in the evidence."West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991). If an appellant fails to satisfy this substantial burden, the challenge to the sufficiency of the evidence must fail.
To meet the marshaling burden and allow the appellate court to review a claim of insufficiency of the evidence, an appellant must provide an adequate record on appeal. Accordingly, rule 11(e)(2) of the Utah Rules of Appellate Procedure states that "[i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Neither the court nor the opposing party is obligated to correct deficiencies in the record. See Utah R.App.P. 11(e)(2). In the absence of an adequate record, Carrasco cannot satisfy his burden on appeal to marshal the evidence, and this court cannot perform meaningful appellate review of the evidentiary support for the judgment. See Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct.App. 1990) (stating that absent a transcript of relevant evidence, appellate court presumes judgment was supported by sufficient evidence). Furthermore, this court cannot merely rely on a party's representation of the evidence he claims was presented at trial without appropriate citations to the record. See Utah R.App.P. 24(a)(9).
The lack of an adequate record is fatal to the remaining claims on appeal as well. In the absence of a transcript, we cannot determine whether Carrasco's counsel sought a continuance or if the court erred in proceeding by a trial in absentia, and we also cannot assess the claim of a due process violation. In the absence of an adequate record on appeal, the appellate court cannot address the issues raised and will presume the correctness of the disposition made by the trial court. See State v. Rawlings, 829 P.2d 150, 152-53 (Utah Ct.App. 1992).
We affirm the judgment of the trial court.
James Z. Davis, Judge, Gregory K. Orme, Judge, and William A. Thorne Jr., Judge, concur.