Opinion
Case No. 20030391-CA.
Filed December 16, 2004. (Not For Official Publication).
Appeal from the Fifth District, St. George Department, The Honorable G. Rand Beacham.
Margaret P. Lindsay, Orem, for Appellant.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.
Before Judges Billings, Davis, 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). Moreover, the issues presented are readily resolved under applicable law.
Defendant argues that the trial court erred in admitting the two photographs into evidence, which he claims were more prejudicial than they were probative. However, it is well settled that no evidentiary challenge will be successful without also showing that an error was harmful. See Utah R. Evid. 103(a);Stevenett v. Wal-Mart Stores, Inc., 977 P.2d 508, 511 (Utah Ct.App. 1999) (stating "the person asserting error has the burden to show not only that the error occurred but also that it was substantial and prejudicial").
Even if we were to conclude that the trial court's decision regarding the admissibility of these photographs was in error, we would not reverse unless the error was harmful or, in other words, "`if absent the error there is a reasonable likelihood of an outcome more favorable to the defendant.'" State v. White, 880 P.2d 18, 21 (Utah Ct.App. 1994) (citations omitted). This likelihood must be high enough to undermine confidence in the jury's verdict. See Tingey v. Christensen, 1999 UT 68, ¶ 16, 987 P.2d 588.
Accordingly, we do not address Defendant's argument concerning the admissibility of these photographs. Defendant has not met "the burden of showing not only that an error occurred, but that it was substantial and prejudicial." Ashton v. Ashton, 733 P.2d 147, 154 (Utah 1987).
Nor are we otherwise convinced there is a reasonable likelihood that Defendant would have received a more favorable outcome had these photographs been excluded, especially to a degree that would undermine our confidence in the jury verdict. The victim's testimony alone adequately supports the conclusion the jury reached. In addition, her description of the incident was corroborated by the police dispatcher's testimony about the conversation she had with the victim during the incident and by the two police officers' testimony concerning what they observed when they investigated the incident.
Affirmed.
Judith M. Billings, Presiding Judge, James Z. Davis, Judge, Concur.