Opinion
Case No. 20030283-CA.
Filed July 15, 2004. (Not For Official Publication).
Appeal from the Second District, Ogden Department, The Honorable Michael Lyon.
Dee W. Smith, Ogden, for Appellant.
Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Jackson.
MEMORANDUM DECISION
Steven Manchester appeals a conviction of forgery, a third-degree felony in violation of Utah Code Annotated section 76-6-501 (2002); and theft, a class A misdemeanor, in violation of Utah Code Annotated section 76-6-404 (2002). We affirm.
"[A]ppellate courts will not consider an issue . . . raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances." State v. Brown, 856 P.2d 358, 359 (Utah Ct.App. 1993); see also Utah R. App. P. 24(a)(5)(A) (requiring appellants to give "citation to the record showing that the issue was preserved in the trial court"). This rule applies equally to "constitutional questions advanced for the first time on appeal." State v. Archambeau, 820 P.2d 920, 922 (Utah Ct.App. 1991). "In order to preserve an issue for appeal, it . . . `must be specifically raised . . . to a level of consciousness before the trial court, and must be supported by evidence or relevant legal authority.'" State v. Richins, 2004 UT App 36, ¶ 8, 86 P.3d 759 (emphasis added) (citation omitted).
Manchester argues on appeal that the district court violated his due process rights by allowing the jurors to pose questions, through the prosecutor, to the State's witnesses. Specifically, he argues that such questions impermissibly allow the jurors to "fill in holes" in the State's case, "absolves the prosecutor of its burden," and improperly identifies the prosecutor with the jury by confusing their roles. However, Manchester has not pointed to anything in the record that would indicate he made these arguments below. Manchester has cited only his objections that the questions were irrelevant and were asked and answered. Further, Manchester stated "I've got the Sixth Amendment denied his right to (Inaudible) counsel to allow jurors to ask questions which may influence defense counsel's (Inaudible) that's improper at (Inaudible) ask questions." The record of this objection is entirely unintelligible, and does not demonstrate that Manchester "`specifically raised'" the substance of his appellate challenge "`to a level of consciousness before the trial court.'" Id. (emphasis added) (citation omitted). Thus, these arguments were not preserved in the court below, and we will not address them.
Manchester could have availed himself of the remedy provided by rule 11(f) of the Utah Rules of Appellate Procedure. Rule 11(f) provides that
the parties may prepare and sign a statement of the case, showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the trial court may consider necessary fully to present the issues raised by the appeal, shall be approved by the trial court.
The appellant has the burden of providing a complete record, see Utah R. App. P. 11(e)(2), and in the absence of an adequate record on appeal, we presume the disposition of the trial court was correct. See Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct.App. 1990).
Manchester also argues it was impermissible for the prosecutor to ask follow-up questions not specifically posed by the jurors themselves. However, a review of the record reveals that Manchester never objected to the prosecutor's follow-up questions, and the argument is therefore not preserved. "[I]n order to preserve a question . . ., generally a party must object to improper questions and inadmissible evidence at his earliest opportunity. [Manchester]'s objection was not timely made in the instant case as it was not made when the questions were propounded."State v. Pierre, 572 P.2d 1338, 1353 (Utah 1977).
"[B]ecause defendant `does not argue that "exceptional circumstances" or "plain error" justifies a review of the[se] issue[s],' this court will `decline to consider [them] on appeal.'" State v. Bryant, 965 P.2d 539, 547 (Utah Ct.App. 1998) (alterations in original) (citation omitted). Accordingly, we affirm.
It is well settled in Utah, pursuant to both rule and precedent, that jurors may pose questions to witnesses. See Utah R. Crim. P. 17(i); Utah R. Civ. P. 47(j); State v. Johnson, 784 P.2d 1135 (Utah 1989); State v. Martinez, 7 Utah 2d 387, 326 P.2d 102 (1958); State v. Anderson, 108 Utah 130, 158 P.2d 127 (1945). However, even if we were inclined to declare such questioning unconstitutional per se, as Manchester urges us to do, we would be powerless to overturn clear Utah Supreme Court precedent permitting such questioning. See State v. Menzies, 889 P.2d 393, 398 n. 3 (Utah 1994) (explaining this court's duty to strictly adhere to Utah Supreme Court precedent, pursuant to doctrine of stare decisis);State v. Reyes, 2004 UT App 8, ¶ 21, 84 P.3d 841 ("Only the Utah Supreme Court can correct any deficiencies in [supreme court precedent].").
WE CONCUR: Judith M. Billings, Presiding Judge and James Z. Davis, Judge.