Opinion
Case No. 20020298-CA.
FILED February 6, 2003. (Not For Official Publication)
Third District, Murray Department, The Honorable Bruce Lubeck.
Kent R. Hart and Robert K. Heineman, Salt Lake City, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Jackson, Billings, and Bench.
MEMORANDUM DECISION
Raymond F. Silvaz appeals his conviction for the second degree felony of enticing a minor over the internet with intent to commit a first degree felony, in violation of Utah Code Ann. § 76-4-401 (Supp. 2002) (Enticement Statute). We affirm.
Silvaz first argues the Enticement Statute is so internally inconsistent that it deprived him of notice of a crime. Under the Enticement Statute,
[a] person commits enticement of a minor over the [i]nternet when, not amounting to an attempt, conspiracy, or solicitation under Section 76-4-101, 76-4-201, or 76-4-203, the person knowingly uses a computer to solicit, seduce, lure, or entice, or attempt to solicit, seduce, lure, or entice a minor or a person the defendant believes to be a minor to engage in any sexual activity which is a violation of state criminal law.
Utah Code Ann. § 76-4-401(1) (emphasis added). Silvaz claims this statute "requires the State to prove both the nonexistence and the existence of the same crime" by "requir[ing] the State to prove that a person has not committed the crimes of attempt, conspiracy, or solicitation but then obligat[ing] the State to show that a person has used a computer to solicit, seduce, lure, or entice a minor or has attempted to do so." However, Silvaz fails to cite the attempt, conspiracy, or solicitation statutes and fails to explain how any are the same as "knowingly us[ing] a computer to solicit, seduce, lure, or entice, or attempt to solicit, seduce, lure, or entice a minor. . . ." Id.
Further, Silvaz fails to adequately address case law on the Enticement Statute's "not amounting to" language, which is contrary to his position. See State v. Reed, 2000 UT 68,¶ 33, 8 P.3d 1025 (noting "`the only rule that is realistic and makes sense'" regarding a statute with similar "not amounting to" language "`is that the State need prove only that which it has charged and should be able to ignore proof as to lack of any greater offense to which the accused just may be required to respond'" (citing State v. Peters, 550 P.2d 199, 199-200 (Utah 1976))); see also State v. Montoya, 910 P.2d 441, 445 (Utah Ct.App. 1996). In distinguishing prior case law, Silvaz claims attempt, conspiracy, and solicitation are not greater offenses than internet enticement, yet provides no analysis in support of his claim. Because Silvaz's analysis "is so lacking as to shift the burden of research and argument" to this court, we refuse to reach the merits of his claim. State v. Thomas, 961 P.2d 299, 305 (Utah 1998).
Silvaz next claims the Enticement Statute is unconstitutionally vague. This issue is raised for the first time on appeal, requiring a showing of plain error or exceptional circumstances. See State v. Brown, 856 P.2d 358, 359 (Utah Ct.App. 1993) (noting constitutional arguments fall under the rules for plain error). In a footnote, Silvaz insists the Enticement Statute satisfies the three plain error requirements, see State v. Garcia, 2001 UT App 19,¶ 6, 18 P.3d 1123, "because it is obviously contradictory and is, therefore, vague." By failing to provide any further plain error analysis, Silvaz improperly "dump[s] the burden of argument and research" on this court, and we therefore dismiss Silvaz's claim. Thomas, 961 P.2d at 305 (quotations and citations omitted).
Third, Silvaz challenges the sufficiency of the evidence presented to the jury regarding Silvaz's state of mind. Silvaz's brief makes only a cursory reference to "[t]he marshaled evidence supporting the conviction," with an incomplete listing of trial evidence favoring the prosecution. Thus, Silvaz fails his marshaling burden to "present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial . . . support[ing] the very findings the appellant resists." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991). We therefore do not reach this claim.
Finally, Silvaz argues the prosecution tainted the jury's verdict with prejudicial comments during its closing argument. "Because [Silvaz] did not object [at trial], we review the [prosecution's] comments for plain error." State v. Baker, 963 P.2d 801, 804 (Utah Ct.App. 1998). Thus, Silvaz must show, among other things, the existence of an error that "should have been obvious to the trial court." Id. at 803 (quotations and citation omitted). In its closing argument the prosecution stated:
What we don't have evidence of is these friends who told [Silvaz] what to say [during the internet communication]. That's convenient. We don't know who these friends are, we don't know what they hounded him to say. That's all convenient. That's exactly what probably should be said, I don't think it was a kid, I didn't think I was going to actually do anything. That's not what's important.
Silvaz construes these statements as referring to Silvaz's failure to call his online friends as witnesses, without the prosecution obtaining an "advance[d] ruling from the trial court." State v. Thompson, 776 P.2d 48, 50 (Utah 1989) (quotations and citation omitted). According to Silvaz, this violation of the "missing witness rule" was "clear" and thus should have been obvious to the trial court.
In looking to "the totality of the evidence presented at trial," State v. Wright, 893 P.2d 1113, 1118 (Utah Ct.App. 1995) (quotations and citation omitted), the prosecution's comments were not "obvious" error. At trial, Silvaz testified that three online friends coaxed him into much of his discussion with the police decoy, including questions about "his sexual preference" and "what kind of stuff he liked to do." On cross-examination, Silvaz refused to give the friends' names, and on redirect explained he was reluctant to give them "[b]ecause they [did not] want to be mentioned in the news." The prosecution's statements could have referred to this testimony, rather than Silvaz's failure to call his "friends" as witnesses. Given this reasonable interpretation, there was no obvious error and Silvaz's claim fails. See Baker, 963 P.2d at 805 (finding ambiguity in interpreting prosecution's closing statements a factor in finding no plain error).
WE CONCUR: Norman H. Jackson, Presiding Judge, and Russell W. Bench, Judge.