Opinion
Case No. 20000400-CA.
Filed June 20, 2002. (Not For Official Publication)
Appeal from the Second District, Ogden Department, The Honorable Roger S. Dutson.
Chad B. McKay, Ogden, for Appellant.
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.
Before Judges Jackson, Greenwood, and Orme.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).
Defendant did not object at trial to any of the roughly fifteen references to his prior conviction made by both sides, and he does not argue plain error or exceptional circumstances on appeal. We therefore do not address his claim that evidence of his prior conviction should not have been admitted at trial. See State v. Labrum, 881 P.2d 900, 903 (Utah Ct.App. 1994).
Furthermore, evidence of Defendant's prior conviction was an element of the crime charged, see Utah Code Ann. § 76-5-404.1(3)(e) (1999), and thus an objection to admission of that evidence would have been futile in any event. Therefore, Defendant's ineffective assistance claim based on counsel's failure to object to evidence of Defendant's prior offense also fails. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.
Defendant's challenge to the sufficiency of the evidence is also unavailing, due to his failure to marshal the evidence supporting the verdict. See West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991). Thus, we decline to address this issue further. See State v. Widdison, 2001 UT 60, ¶ 61, 28 P.3d 1278.
Although Defendant outlined the testimony adduced at trial, the marshaling requirement is more exacting.
The marshaling process is not unlike becoming the devil's advocate. Counsel must extricate himself or herself from the client's shoes and fully assume the adversary's position. In order to properly discharge the duty of marshaling the evidence, 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. After constructing this magnificent array of supporting evidence, the challenger must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the court's finding resting upon the evidence is clearly erroneous.
See West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991).
As to Defendant's ineffective assistance claim based on counsel's failure to call the victim's brothers as witnesses, the record contains no indication of what the brothers would have testified had they been called. Defendant has thus failed to demonstrate any prejudice resulting from this failure. See State v. Arguelles, 921 P.2d 439, 441 (Utah 1996).
Affirmed.
WE CONCUR: Norman H. Jackson, Presiding Judge, and Pamela T. Greenwood, Judge.