Opinion
Case No. 981795-CA.
Filed October 4, 2001. (Not For Official Publication)
Appeal from the Fourth District, Provo Department, The Honorable Anthony W. Schofield.
Nelson Abbott, Provo, for Appellant.
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.
Before Judges Davis, Orme, and Thorne.
MEMORANDUM DECISION
While we have considerable doubt that the argument would have been availing in any event, it is clear that appellant's first argument was not preserved for appeal. Although a similar argument was raised in connection with sentencing, it was limited to defendant's challenge of the group crime enhancement. Invocation of "exceptional circumstances" in the reply brief will not cure the preservation problem. See State v. Blubaugh, 904 P.2d 688, 701 n. 8 (Utah Ct.App. 1995), cert. denied, 913 P.2d 749 (Utah 1996).
Despite the concern expressed at oral argument, given the conclusion reached by this court in State v. Nuttall, 861 P.2d 454, 458 n. 12 (Utah Ct.App. 1993), failure of the parties to request inclusion of the presentence report in the record precludes our consideration of appellant's second issue. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) (holding "stare decisis has equal application when one panel of a multi-panel appellate court is faced with a prior decision of a different panel").
Finally, the analogy urged by appellant in support of his third argument simply does not hold up. The eyewitness identification instruction is given precisely because it is counterintuitive. By contrast, the need to weigh with care the credibility of incriminating co-perpetrator testimony is not. Especially given the lack of authority directly supporting defendant's argument and the fact that the credibility of these witnesses was questioned through cross-examination and argument, it simply cannot be said that counsel's failure to request such an instruction was in any way "objectively deficient." State v. Cummins, 839 P.2d 848, 858 (Utah Ct.App. 1992), cert. denied, 853 P.2d 897 (Utah 1993).
Affirmed.
Gregory K. Orme, Judge
WE CONCUR: James Z. Davis, Judge
William A. Thorne, Jr., Judge