More recently, however, our supreme court has indicated that appellate courts have "discretion" in this situation to either "raise a preservation issue on our own initiative when it provides an alternative basis for affirmance," or to "decide to address the matter on appeal despite the lack of preservation." See State v. Malo , 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. In this situation, we elect to address the matter despite the apparent lack of preservation; we do so not only because the parties have fully briefed the issue and presented it for our review, but also because we are reversing on the issue of the improperly-admitted shank evidence, and we therefore make an effort to give the parties guidance regarding the sentencing evidence that might be useful on remand.
While we can, of course, choose to bring up preservation issues sua sponte, "the State's failure to make the [preservation] argument" meant that Smith "could not address the argument in his reply." State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. We have said before that "such failure could mean we would decide to address the matter on appeal despite the lack of preservation."
The plain language of the statute is "the first step of statutory interpretation." State v. Malo, 2020 UT 42, ¶ 22, 469 P.3d 982 (quoting Garrard v. GatewayFin. Servs., Inc., 2009 UT 22, ¶ 11, 207 P.3d 1227). Here, the plain language of Utah Code section 26-2-11 presupposes judicial authority to adjudicate sex-change petitions.
It is "well within our prerogative to raise a preservation issue on our own initiative when it provides an alternative basis for affirmance, even if the State failed to brief the preservation argument." State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. In Cook Associates, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983), our supreme court confronted "[w]hether an objection by one party properly preserves an objection on appeal as to another party."
See Violent, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/violent [https://perma.cc/97HX-Z5XP]; Disorderly, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/disorderly [https://perma.cc/7CKU-W6SN]. See generally State v. Malo, 2020 UT 42, ¶ 22, 469 P.3d 982 (explaining that "the first step of statutory interpretation is to look to the plain language" (cleaned up)). In this way, the statute is targeted to encompass a disruptive reaction to incitement, not just "outward manifestations of fear" that an arachnophobic friend might display in response to receiving pictures of spiders.
When the statutory language is unambiguous, we do "not look beyond the same to divine legislative intent" because "we are guided by the rule that a statute should generally be construed according to its plain language." State v. Malo , 2020 UT 42, ¶ 22, 469 P.3d 982 (quotation simplified); see also Scott v. Scott , 2017 UT 66, ¶ 22, 423 P.3d 1275 ("When we can ascertain the intent of the legislature from the statutory terms alone, no other interpretive tools are needed, and our task of statutory construction is typically at an end." (quotation simplified)).
In light of the fact that the State does not assert that J.R.H.’s inherent-improbability argument is unpreserved, or that the doctrine does not apply in appeals from bench trials, we simply proceed to address the argument on its merits. See State v. Malo , 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. ANALYSIS
Our supreme court recently explained that in situations like this, where an issue is unpreserved and the appellee does not brief the preservation issue, appellate courts have discretion to either "raise a preservation issue on our own initiative when it provides an alternative basis for affirmance" or "decide to address the matter on appeal despite the lack of preservation." State v. Malo , 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. In this instance, we exercise our discretion to address this argument on the merits.