Opinion
Case No. 20030122-CA.
Filed October 28, 2004. (Not For Official Publication).
Appeal from the Fifth District, Cedar City Department, The Honorable J. Philip Eves.
J. Bryan Jackson, Cedar City, for Appellant.
Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Thorne.
MEMORANDUM DECISION
Dewey Bud Cammack appeals his convictions for theft, see Utah Code Ann. § 76-6-404 (2003), and forgery, see Utah Code Ann. § 76-6-501 (2003). Cammack argues that the district court erred by allowing a witness to testify concerning Cammack's reluctance to report his involvement in a real estate transaction to the authorities. The witness testified that he had encouraged Cammack to contact the authorities, but that Cammack declined, saying that he thought the county attorney's office was "out to get [him]." Cammack contends that the testimony was irrelevant. Cammack also contends that admitting this evidence was tantamount to allowing evidence of a prior criminal act because, as a condition of his probation, Cammack was required to inform the county attorney about any contract he entered into.
We review a district court's decision to admit evidence for abuse of discretion. See State v. Lindgren, 910 P.2d 1268, 1271 (Utah Ct.App. 1996). Under rule 401 of the Utah Rules of Evidence, testimony is relevant if it has "any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence." However, "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Utah R. Evid. 404(b).
We conclude that the testimony concerning Cammack's reluctance to contact authorities was relevant to show consciousness of guilt. See State v. Riggs, 1999 UT App 271, ¶¶ 10-14, 987 P.2d 1281 (noting that a jury may properly infer consciousness of guilt from a criminal defendant's flight from a crime scene). Moreover, rule 404(b) is not applicable to this evidence because the testimony referred to neither Cammack's prior criminal history, nor his probation. Thus, the district court properly admitted this testimony.
Cammack also claims that the district court improperly denied him assistance of counsel at his preliminary hearing. However, Cammack did not provide this court with a transcript of the preliminary hearing. The minute entry merely indicates that Cammack requested a continuance, the State objected, and the district court denied Cammack's request. "Consequently, in the face of `an [in]adequate record on appeal, [we] must assume the regularity of the proceedings below.'" State v. Penman, 964 P.2d 1157, 1162 (Utah Ct.App. 1998) (alterations in original) (quoting State v. Miller, 718 P.2d 403, 405 (Utah 1986) (per curiam)).
Finally, Cammack argues that the State presented insufficient evidence to support the convictions and that he was prejudiced at trial by prosecutorial misconduct. Cammack also contends that the district court improperly instructed the jury. However, we do not address these issues because Cammack failed to raise the claims before the district court. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 ("As a general rule, claims not raised before the trial court may not be raised on appeal."). In addition, Cammack does not argue plain error. See State v. Bloomfield, 2003 UT App 3, ¶ 12 n. 4, 63 P.3d 110 (declining to address a plain error argument raised for the first time in the defendant's reply brief).
For the foregoing reasons, we affirm Cammack's convictions.
WE CONCUR: Pamela T. Greenwood, Judge and William A. Thorne Jr., Judge.