State v. Weaver

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2005 UT 49

This opinion is subject to revision before final
publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH

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State of Utah, No. 20030199
Plaintiff & Appellee,

Vv.
FILE D
Ken Weaver,
Defendant & Appellant. August 5, 2005

Third District, Salt Lake
The Honorable Dennis M. Fuchs
No. 021904483

Attorneys: Mark L. Shurtleff, Att’y Gen., Marian Decker, Asst.
Att’y Gen., Salt Lake City, for plaintiff
Kent R. Hart, Salt Lake City, for defendant

DURHAM, Chief Justice:

INTRODUCTION

qi Defendant Ken Weaver was convicted of possession of a
stolen motor vehicle and failure to respond to an officer’s
signal to stop. On appeal, he argues that (1) the jury
instructions defining reasonable doubt violated his due process
rights because they omitted the term “obviate,” (2) the trial
judge’s failure to reread preliminary jury instructions at the
close of evidence violated Utah law and federal due process
requirements, and (3) the trial court erred in not admitting a
police report offered into evidence by the defense.

q2 The legal questions generated by the first two issues,
regarding the jury instructions, are analyzed at length in our
opinions in State v. Reyes, 2005 UT 33, __P.3d and State v.
Cruz, 2005 UT 45, = P.3d =. ~=+We will therefore address
Weaver’s arguments on these points only as they specifically
relate to the instant case, noting the fuller discussion in Reyes
and Cruz. We will then address the third issue raised by Weaver,
specifically, the trial court’s decision not to admit into

No. 20030199 2
evidence the police report in question. Because Weaver failed to
preserve this issue below and failed to argue plain error in his
opening brief, we conclude that he has waived the right to assert
this challenge and affirm his conviction.
BACKGROUND
¶3 Ashley Roberts’s Ford Escort was stolen from her
driveway late in the evening of April 2, 2002 or early the next
morning. On the evening of April 3, an off-duty police officer
received a call from his neighbor reporting a suspicious vehicle
a few blocks from Roberts’s home. The officer checked police
records, which identified the car as Roberts’s stolen Ford
Escort. The officer then waited in his vehicle at the
neighborhood’s entrance road until he observed the Escort
leaving, and then activated his emergency lights, blocked the
car’s path, and exited his unmarked patrol car with his gun drawn
and badge showing. Weaver, who was driving the Escort, put the
car in reverse and sped away. The officer, after reentering his
patrol vehicle, pursued the Escort with his lights flashing until
it again stopped. Weaver and a passenger, Rathasa Esprit, then
got out and fled on foot. The officer first apprehended Esprit,
then found and secured Weaver, and held them both until the
county deputies arrived.
¶4 The State never charged Esprit with any crime. Several
months after Weaver’s arrest, Esprit was interviewed by police.
According to the police report of that interview, Esprit stated
that “a ‘friend’ had let [him and Weaver] use the car, but he did
not name the ‘friend.’” Esprit also claimed that he and Weaver
fled because the officer did not identify himself as a police
officer, his car was not a marked patrol car, and they feared for
their safety because they did not know who was chasing them.
¶5Following a one-day trial in which Weaver did not
testify or present any witnesses, he was convicted of possessing
stolen property and failing to respond to an officer’s signal to
stop. At trial, Weaver attempted to introduce the police report
containing Esprit’s statements, claiming the report was
admissible under the declaration against interest exception to
the hearsay rule. The trial court ruled that the police report
was inadmissible because the statements did not incriminate
Esprit but were instead self-serving and exculpatory.
ANALYSIS
I. REASONABLE DOUBT INSTRUCTION

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¶6 Weaver first argues that his due process rights were
violated because the jury instructions regarding reasonable doubt
omitted the term “obviate.” As noted in Cruz, “[g]enerally,
‘[w]hether a jury instruction correctly states the law presents a
question of law which we review for correctness.’” 2005 UT 45 at
¶ 16 (quoting State v. S.H., 2002 UT 118, ¶ 11, 62 P.3d 444).
However, where a defendant has failed to preserve an
objection, we will not review his claim unless he can demonstrate
plain error or exceptional circumstances. Because Weaver failed
to preserve his objection to the jury instructions, he attempts
to argue structural error on appeal. Citing no case law and
providing no discussion, Weaver argues that the three errors
raised in this appeal “constituted structural error which
requires no showing of harm.” As in Cruz, we need not determine
whether Weaver’s “failure to object to the reasonable doubt
instructions forecloses his claim of structural error because we
conclude that the trial court’s reasonable doubt instructions
were not erroneous--the first prong in structural error and plain
error analyses.” Id. at ¶ 18.
¶7 In Reyes, argued the same day as this appeal, we
overruled the Robertson test mandating that a reasonable doubt
instruction specifically require the state to “obviate all
reasonable doubt,” id. at ¶ 30 (citing State v. Robertson, 932
P.2d 1219, 1232 (Utah 1997), overruled on other grounds by State
v. Weeks, 2002 UT 98, ¶ 25 n.11, 61 P.3d 1000), and adopted the
standard for assessing the validity of a reasonable doubt
instruction announced in Victor v. Nebraska, 511 U.S. 1, 5
(1994). Under that standard, the determinative question now is
whether the instructions, taken as a whole, correctly communicate
that a defendant cannot be convicted of a crime “except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In re Winship,
397 U.S. 358, 364 (1970).
¶8 We hold that the jury instructions given during
Weaver’s trial, when viewed as a whole, adequately communicated
to the jury the concept of reasonable doubt. Jury instruction
fifteen informed the jury that the State had the burden of proof
and that “a defendant is presumed to be innocent unless proven
guilty beyond a reasonable doubt.” Jury instructions sixteen
through eighteen further explained the concept of reasonable
doubt, and instructions twenty-nine, thirty-four, and forty-one
set out the elements of the charged and lesser included offenses
and informed jurors that, if they were “not convinced beyond a
reasonable doubt of any one or more of the foregoing elements,
then [they] must find the defendant not guilty.” These
instructions provided a clear and accurate definition of proof

No. 20030199 4
beyond a reasonable doubt and correctly informed the jury of the
prosecution’s burden of proving the defendant’s guilt. The
instructions clearly and specifically conveyed all of the
information required by the Victor test, specifically that “the
court instruct the jury on the necessity that the defendant’s
guilt be proven beyond a reasonable doubt.” 511 U.S. at 5. In
sum, the trial court’s reasonable doubt instructions were not
erroneous and do not warrant a new trial.
II. JURY REINSTRUCTION
¶9 Weaver next contends that the trial court plainly erred
by failing to reinstruct the jury on the presumption of innocence
at the close of the evidence and the State’s burden of proving
guilt beyond a reasonable doubt, arguing that rule 17(g)(6) of
the Utah Rules of Criminal Procedure requires such recitation.1
Again, our opinion in Reyes is determinative in resolving this
issue.
¶10 The defendant in Reyes hewed to the same hidebound
interpretation of rule 17(g)(6) that Weaver urges us to adopt
here--namely, that the rule requires a trial judge to read all
instructions to the jury at the close of evidence, including
those instructions that the judge may have already read to the
jury earlier. 2005 UT 33 at ¶ 40. While we acknowledged in
Reyes that such an interpretation was “plausible,” we asserted
that it was by no means the only reasonable interpretation of
rule 17(g)(6). Id. at ¶ 43. Instead, we construed the rule to
“require trial judges to provide some instruction when the
evidence is concluded,” but we declined to “offer guidance on the
nature and extent of the instructions to be given at that stage
of the trial,” thereby “ceding to trial judges the discretion to
determine the appropriate instructions to deliver to the jury at
the close of evidence.” Id. at ¶ 45. Applying this
interpretation to a later case, State v. Cruz, we concluded that
“[a] trial court’s decision not to reread its preliminary
instructions at the close of evidence is erroneous only if it
reflects an abuse of discretion.” 2005 UT 45, ¶ 27, P.3d
.
¶11 In both Reyes and Cruz, we determined that two factors
established that the trial court had not abused its discretion in
declining to reread previously issued jury instructions at the
close of evidence: (1) the relatively short lapse of time
1 The rule provides that, “[w]hen the evidence is concluded
and at any other appropriate time, the court shall instruct the
jury.” Utah R. Crim. P. 17(g)(6).

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between “‘the trial court’s reading of the preliminary
instructions [and] the conclusion of the evidence,’” and (2) the
fact that “‘the jury was provided with a written copy of every
instruction.’” Id. at ¶ 28 (quoting Reyes, 2005 UT 33 at ¶ 49).
¶12 The facts in this case are even more compelling than
those in Reyes or Cruz. In Reyes, the lapse in time between the
trial court’s reading of preliminary instructions and the close
of evidence was “less than twenty-four hours.” 2005 UT 33 at
¶ 49. In Cruz, it was “just over forty-eight hours.” 2005 UT 45
at ¶ 29. Here, the time lapse was a mere five or six hours.
Moreover, the jury in this case was provided with a written copy
of every instruction. We cannot say that the court’s failure to
reread instructions to the jury that it had already read to them
only a few hours earlier, and of which all members of the jury
had a written copy, constituted any error, let alone plain error.
Thus, Weaver’s second argument also fails.
III. POLICE REPORT
¶13 Finally, Weaver argues that the trial court erred by
refusing to admit into evidence the police report containing
Esprit’s statements. The standard for reviewing a trial court’s
ruling on the admissibility of evidence turns on whether the
ruling was “one determining the facts to which the law will be
applied [or one] applying the law to determined facts.” State v.
Thurman, 846 P.2d 1256, 1270 n.11 (Utah 1993). Since the parties
do not dispute the content of the police report, the issue of
whether the trial court correctly refused to admit the report is
a question of law, which we review for correctness. State v.
Ramirez, 817 P.2d 774, 781 n.3 (Utah 1991). However, before any
review can be undertaken the issue must be preserved in the
proceedings below.
¶14 The police report containing Esprit’s statements was
clearly hearsay under rule 801(c) of the Utah Rules of Evidence,
and as such it was not admissible as evidence in the trial unless
it satisfied the requirements of an exception to the hearsay
rule. See Utah R. Evid. 801(c) (defining “hearsay” as “a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted”); id. 802 (providing that hearsay is not
admissible unless certain specified exceptions apply). At trial,
Weaver argued that the report was admissible under the statement
against interest exception, claiming that both the declarant,
Esprit, and the reporting police officer were unavailable to
testify and that the statements were contrary to Esprit’s
interests. See id. 804(a), (b)(3). The trial court correctly

No. 20030199 6
held however that Esprit’s statements did not in fact expose him
to possible criminal liability and were self-serving and
exculpatory in that they provided reason to exonerate him.
¶15 Weaver now argues on appeal that the report was
admissible under the exceptions for business and public records
set forth in rule 803(6) and (8) of the Utah Rules of Evidence.
Weaver notes that this court has held that “police reports of
crimes should ordinarily be admitted when offered by the
defendant in a criminal case to support his defense.” State v.
Bertul, 664 P.2d 1181, 1185 (Utah 1983). However, in the present
case, Weaver did not raise rule 803(6) or (8) as a basis for
admitting the report in the trial court, nor did he argue plain
error in his opening brief. Thus, as explained below, the claim
regarding the business records and public records exceptions is
unpreserved and procedurally barred.
¶16 In general, “a timely and specific objection must be
made [in the trial court] in order to preserve an issue for
appeal.” State v. Pinder, 2005 UT 15, ¶ 45, P.3d (citing
Utah R. Evid. 103(a)); see also State v. Lopez, 886 P.2d 1105,
1113 (Utah 1994). The principle underlying this rule is that the
trial court, as the court of first impression, must have “an
opportunity to address a claimed error and, if appropriate,
correct it” before appellate review is appropriate. State v.
Eldredge, 773 P.2d 29, 36 (Utah 1989); see also State v. Holgate,
2000 UT 74, ¶ 11, 10 P.3d 346.
¶17 Weaver concedes that he did not specify rule 803 of the
Utah Rules of Evidence as a basis for admitting the police report
into evidence, but he maintains that he communicated the legal
precept by arguing that the police report should be admitted as
evidence in place of testimony by the interviewing police officer
who wrote the report because it was “part of the investigations
of [a] police report.” However, the record indicates that the
discussion regarding the absence of the reporting police officer
occurred solely in connection with defendant’s argument on the
statement against interest exception. Because Weaver did not
distinctly or specifically allege rule 803, or the business and
public records exceptions as a basis for admitting the police
report, we hold that he did not preserve this claim for review on
appeal.
¶18 In Utah, we have recognized three instances in which an
appellate court may address an issue for the first time on
appeal: (1) where the appellant establishes that the trial court
committed “plain error”; (2) where “exceptional circumstances”
exist; or (3) in some situations, where a claim of ineffective

7 No. 20030199
assistance of counsel is raised on appeal. See State v. Hansen,
2002 UT 114, ¶ 21 n.2, 61 P.3d 1062; State v. Irwin, 924 P.2d 5,
7 (Utah Ct. App. 1996). In the present case, Weaver argued
neither exceptional circumstances nor ineffective assistance of
counsel. Thus, our determination of whether to consider the
issue on appeal, in spite of Weaver’s failure to assert it in the
lower court, rests on whether Weaver adequately alleged plain
error on appeal.
¶19 Weaver claims in his reply brief that he should be
allowed to raise the applicability of the business and public
records exceptions on appeal because the trial court plainly
erred in excluding the report. However, this court has required
the party seeking appellate review on issues not brought before
the lower court to articulate the justification for review in the
party’s opening brief. See Coleman v. Stevens, 2000 UT 98, ¶ 9,
17 P.3d 1122; see also Pinder, 2005 UT 15 at ¶ 45. In Coleman,
we held that “we will not consider matters raised for the first
time in the reply brief,” and thus we declined to review the
issues in question because of the failure to “properly raise
[the] issues in the trial court and thereby preserve them for
appellate review, and because [appellant] argued plain error
. . . for the first time in his reply brief.” 2000 UT 98 at ¶ 9.
Similarly, Weaver’s claim in the present case is procedurally
barred because he failed to argue plain error in his opening
brief.
CONCLUSION
¶20 The trial court did not plainly err in its jury
instructions regarding “reasonable doubt.” The jury was properly
instructed regarding the meaning of “reasonable doubt,” and there
was thus no violation of Weaver’s due process rights.
Additionally, the trial court did not plainly err by not
reinstructing the jury at the close of Weaver’s brief trial.
Finally, because Weaver did not specifically assert his claim for
admission of the police report under rule 803(6) and (8) of the
Utah Rules of Evidence in the trial court and because he did not
allege plain error in his opening brief on appeal, the issue is
both unpreserved and procedurally barred. We therefore affirm
Weaver’s conviction for possession of a stolen motor vehicle and
failure to respond to an officer’s signal to stop.
---
¶21 Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.

No. 20030199
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