Opinion
Case No. 20020481-CA.
Filed September 5, 2003. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Dennis M. Fuchs.
F. Kevin Bond, Salt Lake City, for Appellant.
Jeanne Robison, Salt Lake City, for Appellee.
Before Judges Jackson, Billings, and Greenwood.
MEMORANDUM DECISION
Thomas James Taylor appeals his conviction for battery, a class B misdemeanor, in violation of Salt Lake City Municipal Code § 11.08.020 (2000). We affirm.
Taylor first challenges the sufficiency of the evidence presented at his bench trial, contending the district court relied on mere conjecture in finding guilt beyond a reasonable doubt. When challenging the district court's findings of fact in a bench trial, "`the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists [and then] ferret out a fatal flaw in the evidence . . . sufficient to convince the appellate court that the [district] court's finding . . . is clearly erroneous.'" West Valley City v. Hoskins, 2002 UT App 223, ¶ 13, 51 P.3d 52 (quoting West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991)).
Here, Taylor fails to satisfy the marshaling requirement. Taylor's brief fails to present all competent evidence supporting the conviction and upon which the district court could have relied in determining Taylor's guilt beyond a reasonable doubt. Instead, Taylor attempts to reargue his defense on appeal, selectively presenting evidence and arguments tending to exonerate him and excluding evidence pointing to his guilt. In addition to not meeting the marshaling requirement, Taylor also fails to point out any fatal flaws in the evidence that would lead this court to conclude the district court's findings are clearly erroneous. Hence, we do not reach Taylor's sufficiency claims.
For example, victim Breck testified he was standing on a utility easement or right-of-way at the time Taylor confronted him, accused him of trespassing, ordered him off the property, and then physically assaulted him. We can find no reference to this fact in Taylor's brief.
Second, Taylor asserts error because a written statement, given to prosecutors by one of the City's witnesses, was not made available to the defense until after trial began. Taylor argues the document revealed witness bias and that pursuant to rule 16 of the Utah Rules of Civil Procedure, it should have been made available for Taylor's use in preparing his defense. Taylor claims the City's failure to produce the written statement before trial was prejudicial, resulting in harmful error. We disagree.
The record reveals that the district court called a recess for defense counsel to review the written statement immediately upon learning that defense counsel had not been provided a copy of the document before trial. The district court informed Taylor that after reviewing the document, Taylor could decide to "proceed with trial today or . . . take a break" for the day. After the recess, Taylor chose to proceed. Taylor used the written statement during cross-examination of the witness, after which it was admitted into evidence. In short, Taylor was given adequate opportunity to incorporate the written statement into his defense, and therefore, any error was harmless and not prejudicial. See Carter v. Galetka, 2001 UT 96, ¶¶ 21-23, 44 P.3d 626 (finding harmless error in a criminal case where a failure to disclose potentially helpful information to the defense before trial did not create a reasonable probability of a different outcome at trial).
Based on the foregoing, we affirm Taylor's conviction.
WE CONCUR: Norman H. Jackson, Presiding Judge, and Pamela T. Greenwood, Judge.