State v. Gulbransen

2005 UT 7
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
Plaintiff and Appellee,
v.
Paul R. Gulbransen,
Defendant and Appellant.
No. 20020779
F I L E D
January 28, 2005
---
First District, Logan Dep't
The Honorable Gordon J. Low
Attorneys: Mark L. Shurtleff, Att'y Gen., Laura
B. Dupaix,
Asst. Att'y Gen., Salt Lake City, N. George
Daines, James M. Swink, Logan, for plaintiff

Peter D. Goodall, Ronald J. Yengich, Salt Lake
City,
for defendant
---
WILKINS, Associate Chief Justice:
¶1 The defendant appeals his conviction on
four counts of child sodomy for acts he committed
as a minor. He claims that the district court
erred when it (1) reinstated his conviction and
sentenced him ten months after it had transferred
his case back to juvenile court, (2) denied his
request for a bill of particulars, (3) admitted
into evidence at trial photographs of the
victim's anus, and (4) admitted testimony at
trial concerning laboratory evidence that the
State allegedly lost. We affirm.
INTRODUCTION
¶2 On November 6, 2000, the State charged
then-seventeen- year-old Paul Gulbransen with
three first degree felony counts of aggravated
sexual assault, three first degree felony counts
of sodomy on a child, two third degree felony
counts of dealing material harmful to a minor
(pornography), one second degree felony count of
burglary, and one class A misdemeanor count of
theft. Under the Serious Youth Offender Act
("SYOA"), the juvenile court bound over
Gulbransen to the district court to be tried as
an adult on all charges, except for one of the
pornography counts.

¶3 The four issues Gulbransen brings on appeal
arise from his conviction on the child sodomy
charges. The factual background of Gulbransen's
four claims will be discussed separately, in
conjunction with our analysis of each issue.
I. DISTRICT COURT JURISDICTION
A. Background
¶4 The first issue we are asked to consider on
appeal is whether the district court had
authority to reinstate Gulbransen's conviction
and sentence him ten months after it had
transferred his case to juvenile court. This
issue implicates the juvenile court's
responsibility under the SYOA to bind over
juveniles charged with certain crimes to district
court to stand trial as adults.
¶5 At the time the State charged Gulbransen,
he was seventeen years old and therefore came
under the purview of the SYOA provisions in Utah
Code section 78-3a-602. Utah Code Ann. § 78-3a-
602(1) (2002). That act requires a juvenile court
to bind over juveniles, sixteen years old and
over, to district court if the prosecution shows
that there is probable cause to believe that the
juvenile committed at least one of nine
enumerated serious youth offenses, including
aggravated sexual assault. Id. § 78-3a-602(1)-
(3). Furthermore, any lesser charges "arising
from the same criminal episode" are bound over to
district court along with the serious youth
offenses upon a finding of probable cause. Id. §
78-3a-602(7).

¶6 On November 13, 2000, the juvenile court
found probable cause to believe that Gulbransen
had committed the three acts of aggravated sexual
assault, thereby qualifying him to be tried as an
adult in district court. It also found probable
cause to believe Gulbransen had committed most of
the non-SYOA offenses charged, including the
three sodomy counts. Therefore, pursuant to the
SYOA, the juvenile court bound over Gulbransen to
district court to be tried as an adult for both
the SYOA and non-SYOA offenses.
¶7 On Gulbransen's motion, the district court
severed the sexual offenses from the nonsexual
counts. Gulbransen then negotiated a plea
agreement on the nonsexual counts, and the
district court set a trial date for the
aggravated sexual assault and child sodomy
charges.
¶8 Before trial, the State filed an amended
information in the sexual offenses case, dropping
the three aggravated sexual assault charges, the
only SYOA offenses, and adding a fourth child
sodomy charge. The matter went to trial in May
2001, and Gulbransen was convicted on all four
child sodomy counts.
¶9 After trial, but before the district court
sentenced Gulbransen, the court of appeals issued
its opinion in the case of State v. Tunzi, 2001
UT App 224, 31 P.3d 588 (Tunzi I), overruled by
State v. Tunzi, 2002 UT 119, 63 P.3d 70 (Tunzi
II). In that decision, the court of appeals
interpreted former section 78-3a-602(10) of the
SYOA, which allowed the juvenile court to regain

jurisdiction "over the juvenile when there is an
acquittal, a finding of not guilty, or dismissal
of the charges in the district court," Utah Code
Ann. § 78-3a-602(10) (1996) (amended 2002), to
mean that once the SYOA charges are eliminated,
the juvenile court regains jurisdiction even if
there are other, non-SYOA charges "arising from
the same criminal episode" properly before the
district court. Tunzi I, 2001 UT App 224 at ¶ 13.
¶10 Since Tunzi was only convicted of charges
"arising from the same criminal episode" as the
SYOA offenses, and not the SYOA offenses
themselves, the court of appeals held that former
section 78-3a-602(10) required transfer of the
non-SYOA offenses back to juvenile court. Id. at
¶ 18. The court of appeals therefore vacated
Tunzi's conviction in the district court on non-
SYOA charges and remanded to the district court
with instructions to transfer the case to
juvenile court for entry of an adjudication of
guilt on the non-SYOA charges. Id. at ¶ 19.
¶11 In light of Tunzi I, Gulbransen moved the
district court to transfer his case back to
juvenile court for sentencing on the district
court's verdict, since he was only convicted of
non-SYOA offenses. The State responded that,
according to Tunzi I, the district court lost
jurisdiction when the SYOA charges were dropped
from the information five days before trial, that
the trial was therefore a nullity, and that the
matter must be transferred back to the juvenile
court for new proceedings. The district court
agreed with the State's position and transferred
the case back to juvenile court by a November 26,

2001 order, finding that the "jury trial where
the defendant was found guilty of all counts
charged [was] a nullity."
¶12 Shortly after the juvenile court regained
jurisdiction over Gulbransen's case, the State
filed a motion to certify Gulbransen to stand
trial in the district court as an adult under
Utah's certification statute.(1) On February 6,
2002, the juvenile court bound over Gulbransen to
the district court under that statute.
¶13 Three weeks later, on February 27, 2002,
the Utah Legislature amended the SYOA to overrule
Tunzi I. The amendment added a new subsection
(10) to Utah Code section 78-3a-602 (the SYOA),
which states:
If a minor enters a plea to, or is found
guilty of, any of the charges filed or
any other offense arising from the same
criminal episode, the district court
retains jurisdiction over the minor for
all purposes, including sentencing.
¶14 The amendment also modified the previous
subsection (10), now subsection (11) of section
78-3a-602, as follows:
The juvenile court . . . and the Division
of Youth Corrections regain jurisdiction
and any authority previously exercised
over the juvenile when there is an
acquittal, a finding of not guilty, or
dismissal of the all charges in the
district court.

In effect, these amendments allow the district
court to retain jurisdiction over "other offenses
arising from the same criminal episode" as the
SYOA offenses, even if there is "an acquittal, a
finding of not guilty, or dismissal" of the SYOA
charges.
¶15 In light of this legislative action, the
State moved the district court to set a
sentencing date on the jury's guilty verdict from
Gulbransen's May 2001 trial. The State argued
that the district court's November 26, 2001 order
to transfer Gulbransen's case back to juvenile
court pursuant to Tunzi I was a nullity since the
legislative amendment overruling Tunzi I applied
retroactively to Gulbransen's case. As a
consequence, the State argued that the district
court never lost jurisdiction over Gulbransen's
case and could proceed to sentencing. In the
alternative, the State asked the district court
to reconsider its transfer order and to rule
that, in light of the SYOA amendments, the order
was harmless error, and that the court should
therefore proceed to sentencing on Gulbransen's
conviction.
¶16 On August 6, 2002, the district court
granted the State's motion to set sentencing. It
concluded that the SYOA amendments applied
retroactively in Gulbransen's case and set aside
its November 26, 2001 order, which had
transferred the case to juvenile court.
Gulbransen was sentenced in district court the
following month.

¶17 Four months later, on January 9, 2003, we
issued opinions in the cases of Tunzi II and
State v. S.H., 2002 UT 118, 62 P.3d 444, wherein
we reversed the court of appeals decision in
Tunzi I as an incorrect interpretation of former
section 78-3a-602(10) of the Utah Code.
Tunzi II, 2002 UT 119 at ¶ 4; S.H., 2002 UT
118 at ¶ 17.
¶18 Gulbransen now challenges the district
court's authority to set aside its November 26,
2001 transfer order and reinstate his conviction.
B. Analysis
¶19 The legal question of whether the district
court retained jurisdiction over Gulbransen, as
with all questions of law, is reviewed for
correctness. State v. One 1980 Cadillac, 2001 UT
26, ¶ 8, 21 P.3d 212.
¶20 Gulbransen's jurisdictional challenge
focuses primarily on how the district court
handled his conviction after Tunzi I was handed
down from the court of appeals. He argues that
the district court's order to transfer his case
to juvenile court as a result of the Tunzi I
decision was a de facto dismissal, and that this
case should therefore be remanded for a new
trial. The State counters by arguing that Tunzi I
is invalid given the subsequent SYOA amendments.
It then insists that those amendments apply
retroactively to Gulbransen's case, allowing the
district court to set aside its transfer order
and proceed to sentencing on the conviction.

¶21 However, we conclude that neither of these
arguments is necessary in light of our decisions
in Tunzi II and S.H. Because we reversed Tunzi I
and expressly overruled the court of appeals'
interpretation of the SYOA in those decisions,
Tunzi II, 2002 UT 119 at ¶ 4;
S.H., 2002 UT 118 at ¶ 17, Tunzi I's practical
effect of causing the district court to transfer
Gulbransen's case back to juvenile court is also
nullified. We hold that the district court never
lost jurisdiction and, as a consequence, had
authority to sentence Gulbransen sixteen months
after his conviction.
II. GULBRANSEN'S REQUEST FOR A BILL OF
PARTICULARS
A. Background
¶22 The second issue we are asked to decide on
appeal is whether the district court erred in
denying Gulbransen's request for a bill of
particulars from the State. Under Utah law, a
defendant is permitted to make a written demand
that the prosecutor "specify in writing as
particularly as is known to him the place, date
and time of the commission of the offense
charged." Utah Code Ann. § 77-14-1 (2003).
¶23 When the State filed its initial
information in juvenile court on November 6,
2000, it charged Gulbransen with three counts of
aggravated sexual assault, occurring on or about
"6/2000," "7/1/00-8/31/00," and "7/24/00-
8/31/00," respectively. The State also alleged in
the same information that the three child sodomy

counts occurred on or about "7/4/00-7/24/00,"
"7/1/00-8/31/00," and "7/24/00-8/31/00,"
respectively. However, when the State filed its
May 11, 2001 amended information, dropping the
three aggravated sexual assault charges and
adding a fourth child sodomy charge, it amended
the range of dates on which these offenses
allegedly occurred. The amended information
stated that the four child sodomy offenses
occurred "on or about the summer of 2000."
¶24 In his request for a bill of particulars,
Gulbransen claimed that the allegation that the
crimes occurred in the "summer of 2000" was too
broad and denied him a "meaningful opportunity to
respond to the allegations and to determine his
whereabouts at the time of the alleged offenses."
He also claimed that the State failed to provide
"the best information at its disposal as to when
the alleged offenses occurred."
¶25 At a hearing four days before trial, the
district court denied Gulbransen's request on the
ground that the State had already provided him
with all the information it had regarding the
dates of the alleged offenses. Gulbransen now
claims that the district court improperly denied
his request for a bill of particulars, arguing
that the State was required to define the dates
of the alleged offenses more specifically than it
had in the amended information.
B. Analysis
¶26 We review a trial court's denial of a
request for a bill of particulars for an abuse of

discretion. State v. Allen, 839 P.2d 291, 298
(Utah 1992).
¶27 The requirement under Utah law that the
prosecution "specify in writing as particularly
as is known to him the place, date and time" of
charged offenses, Utah Code Ann. § 77-14-1 is
"not a device to enable defendants to obtain a
preview of the prosecution's evidence," State v.
Robbins, 709 P.2d 771, 773 (Utah 1985). Rather,
it is merely designed to give those charged
sufficient notice to prepare a defense. State v.
Wilcox, 808 P.2d 1028, 1031-32 (Utah 1991)
(referring to the right of a criminal defendant
under the Utah Constitution to "demand the nature
and cause of accusation against him," Utah Const.
art. I, § 12). We have defined the particularity
requirement as the "best information" the
prosecution has, and "whatever information the
prosecutor has that may be useful in helping to
fix a date, time or place of the alleged
offenses." Robbins, 709 P.2d at 773.
¶28 In this case, the district court concluded
that the State had provided Gulbransen the best
information it had regarding the alleged dates of
the offenses. We agree. The State's best
information as to the dates of the offenses came
from an October 4, 2000 videotaped interview of
the victim. At trial, the State established
approximate dates and times of the offenses by
playing portions of the videotaped interviews of
the victim, including the October 4, 2000
interview, wherein the victim gave his best
guesses as to when the offenses occurred. Since
Gulbransen had a copy of the October 4, 2000

videotaped interview before filing his request
for a bill of particulars, and the interview
provided the State's best information as to when
the alleged offenses occurred, we hold that the
prosecutor met his statutory burden to "specify .
. . as particularly as is known to him the place,
date and time" of the charged offenses.
¶29 Nonetheless, Gulbransen claims that once
the State learned that he was going to present an
alibi defense, it amended its information to
cover a broader period of time for the offenses,
making it more difficult to prove an alibi. He
asserts that he could have presented an effective
alibi defense regarding at least some of the
counts as alleged in the original information.
However, this argument is disingenuous at best,
since the record clearly indicates that the State
served its second amended information on
Gulbransen two months before he notified the
State of his intended alibi defense.
¶30 Furthermore, in cases involving sexual
abuse of children, we have recognized that
"children are often not able to identify with a
high degree of reliability, and sometimes not at
all, when an event in the past took place."
Robbins, 709 P.2d at 773. We have never allowed
this unreliability as to precise date and time,
by itself, to be fatal to the prosecution.
Otherwise, "[a]n abuser could escape prosecution
merely by claiming that the child's inability to
remember the exact dates and places of the abuse
impaired the abuser's ability to prepare an alibi
defense." Wilcox, 808 P.2d at 1033.

¶31 In addition, we have held that "the mere
assertion of an alibi defense does not impose on
the prosecution the additional burden of proving
the precise date of the act. The burden on the
prosecution remains the same, i.e., to establish
all elements of the crime beyond a reasonable
doubt." State v. Fulton, 742 P.2d 1208, 1213
(Utah 1987). In child sodomy cases, the specific
date of the act is not an element of the crime.
See Utah Code Ann. § 76-5-403.1. Given the
foregoing, the district court properly denied
Gulbransen's request for a bill of particulars.
III. ADMISSIBILITY OF PHOTOGRAPHS
A. Background
¶32 The third issue we are asked to consider
is the admissibility of two of the State's
exhibits during Gulbransen's trial. At trial, the
State relied on the testimony of Diane Crockett,
the forensic nurse who examined the victim, to
prove evidence of the sodomy offenses. During her
testimony, the State offered to admit two
photographs, State's Exhibits 1 and 2, of the
injured victim's anus. Nurse Crockett used the
photographs to explain the various injuries she
observed on the victim, and, at the prosecutor's
request, she marked the location of the injuries
on both exhibits. Defense counsel objected,
arguing that the photographs were "unnecessarily
graphic" and that it was not "necessary" for the
jury to look at them because they would not be
helpful in deciding Gulbransen's innocence or
guilt. The district court overruled the
objection, stating that, although possibly

"distasteful or unpleasant," any prejudicial
effect the photographs might have on the jury did
not outweigh their probative value.
¶33 On appeal, Gulbransen argues that the two
photographs are gruesome, and, consequently, they
should not have been admitted because the State
did not show that they have "unusual probative
value." In the alternative, he argues that the
"highly prejudicial nature" of the photographs
"almost certainly aroused the jury's hostility
toward [him]" and outweighed the photographs'
probative value, making them inadmissible under
rule 403 of the Utah Rules of Evidence.
B. Analysis
¶34 We have articulated our process for
reviewing the admissibility of allegedly gruesome
photographs as follows:
First, we determine whether the
photograph is relevant. Second, we
consider whether the photograph is
gruesome. Finally, we apply the
appropriate balancing test. If the
photograph is gruesome, it should not be
admitted unless the State can show that
the probative value of the photograph
substantially outweighs the risk of
unfair prejudice. If the photograph is
not gruesome, it should be admitted
unless the defendant can show that the
risk of unfair prejudice substantially
outweighs the probative value of the
photograph.

State v. Bluff, 2002 UT 66, ¶ 46, 52 P.3d 1210,
cert. denied, 537 U.S. 1172 (2003).
¶35 A trial court's determination that
photographs are relevant is reviewed for abuse of
discretion. See id. at ¶ 47. "Whether a
photograph is gruesome is a question of law,
which we review for correctness." Id. The trial
court's ultimate ruling under rule 403 of the
Utah Rules of Evidence is reviewed for an abuse
of discretion. See id.
¶36 Evidence is considered relevant if it has
"any tendency to make the existence of any fact
that is of consequence to the determination of
the action more probable or less probable than it
would be without the evidence." Utah R. Evid.
401. Gulbransen alleges that the photographs at
issue fail to meet this requirement for two
reasons. First, he maintains that the only thing
the photographs show is that the victim was
repeatedly sexually abused--a fact he never
disputed. He merely claims that it was his
younger brother who perpetrated the crimes, and
that he was not involved. Therefore, the argument
goes, since the existence of the injuries is not
disputed, the photographs depicting those
injuries have no probative value.
¶37 This argument is misguided. We agree with
the State's argument that a stipulation of fact
by defense counsel does not make evidence less
relevant, nor is it a basis for depriving the
prosecution the opportunity of profiting from the
"'legitimate moral force'" of its evidence in
persuading a jury. State v. Bishop, 753 P.2d 439,

475 (Utah 1988) (quoting United States v. Grassi,
602 F.2d 1192, 1197 (5th Cir. 1979)); see also
State v. Florez, 777 P.2d 452, 455 (Utah 1989) ("
[S]o long as the defendant maintain[s] his [not]
guilty plea, the State [has] the right to prove
its case up to the hilt in whatever manner it
[chooses], subject only to the rules of evidence
and standards of fair play." (internal quotations
omitted)).
¶38 Second, Gulbransen argues that the
photographs lack any probative value because the
information depicted in the photographs was
established by other means, namely, the testimony
of Nurse Crockett. While it is true that Nurse
Crockett gave extensive and detailed testimony at
trial concerning the sodomy victim's injuries,
this testimony does not render photographs of the
injuries irrelevant or inadmissible. We have held
that the "fact that the same evidence could have
been provided by purely testimonial means does
not necessarily make a photograph inadmissible."
State v. Cobb, 774 P.2d 1123, 1125 (Utah 1989).
Clearly the two photographs were relevant in
establishing essential elements of the alleged
sodomy offenses in that they depicted to the
jury, with the explanatory assistance of Nurse
Crockett, multiple instances of abuse.
¶39 In considering whether a photograph is
gruesome, we look at a variety of factors,
including, but not limited to, whether the
photograph is in color or black and white;
whether it is an enlargement or close-up shot;
when the photo was taken in relation to the
crime; and whether other details in the photo,

aside from the victim, "may exacerbate the
photograph's impact on the viewer." Bluff, 2002
UT 66 at ¶ 43. In this case, the photographs,
while in color, are monochromatic. They are
close-ups of the victim's anus, but are only 4 x
6 inches in size. There is no blood, obvious
bruising, or patent injury in either photo. As
the State correctly notes in its brief, "other
than some redness and irritation, none of the
injuries testified to are obvious absent the
nurse's markings." We consider the State's
description of the photographs as "sterile and
clinical" to be accurate.
¶40 In fact, both this court and the court of
appeals have found photographs that are
considerably more graphic not to be gruesome.
See, e.g., State v. Calliham, 2002 UT 87, ¶ 39,
57 P.3d 220 (holding that color photographs of
murder victim showing his face, bullet wounds,
and a small amount of dark, dried blood, were not
gruesome); Bluff, 2002 UT 66 at ¶¶ 49-51 (holding
that color photographs showing "vivid and
extensive" bruising of child murder victim were
not gruesome); State v. Vargas, 2001 UT 5,
¶¶ 50-54, 20 P.3d 271 (holding that autopsy
photograph showing fractured skull of murder
victim was not gruesome); State v. Jiron, 882
P.2d 685, 690 (Utah Ct. App. 1994) (holding that
photograph of murder victim's anal injuries was
not gruesome). In light of these examples, the
photographs in question could not be considered
gruesome under any standard.

¶41 However, even if the photographs are not
gruesome, the defendant may still prevent them
from being admitted if he can show that their
"probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading of the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
Utah R. Evid. 403. As discussed above, Gulbransen
is wrong to completely discount the probative
value of the photographs. They are useful in
depicting evidence of crucial elements of the
State's charged offenses. As for prejudice,
Gulbransen merely states that the photographs
"almost certainly aroused the jury's hostility
toward [him]." However, given the sterile and
clinical nature of the photographs, we fail to
see how these images, standing alone, possibly
could have increased the jury's hostility toward
Gulbransen.
¶42 In conclusion, we hold that the two
photographs of the victim's anus are relevant and
not gruesome. While they may be slightly
unnecessary or cumulative given Nurse Crockett's
detailed testimony, the district court did not
abuse its discretion in admitting them at trial.
IV. TESTIMONY CONCERNING LOST LABORATORY EVIDENCE
A. Background
¶43 The final issue we are asked to consider
on appeal is whether the district court properly
allowed the State to offer testimony concerning
laboratory evidence lost at the State Crime Lab.

During Nurse Crockett's initial examination of
the victim's anus shortly after one of the
alleged offenses occurred, she discovered two
pubic hairs on the victim that were not his own.
She removed the hairs, sealed them in a bag and
gave them to the police officer who was present
during the examination. She later obtained pubic
hair samples from Gulbransen and his brother
because they were both alleged to have committed
the offenses. However, since the State Crime Lab
lost the hairs that Nurse Crockett originally
obtained from the victim, she was unable to make
a definitive comparison with the hairs obtained
from Gulbransen and his brother.
¶44 The day before trial, defense counsel
filed a motion in limine to suppress any
reference at trial to the two pubic hairs
collected by Nurse Crockett, arguing that
allowing the testimony absent the evidence would
violate Gulbransen's due process rights. The
district court denied Gulbransen's motion and
allowed the testimony during trial, where Nurse
Crockett testified that the two hairs found on
the victim, in her opinion, were similar to those
of the defendant and his brother.
¶45 On appeal, Gulbransen claims for the first
time that the State acted in bad faith in losing
the evidence, in violation of his
constitutionally guaranteed right to access to
evidence. He further claims that the district
court's admission of the evidence thereby
constitutes reversible error.
B. Analysis

¶46 Under United States Supreme Court
jurisprudence, "when the State suppresses or
fails to disclose material exculpatory evidence,
the good or bad faith of the prosecution is
irrelevant: a due process violation occurs
whenever such evidence is withheld." Illinois v.
Fisher, 540 U.S. 544, 547 (2004) (per curiam)
(emphasis added). However, the "Due Process
Clause 'requires a different result when we deal
with the failure of the State to preserve
evidentiary material of which no more can be said
than that it could have been subjected to tests,
the results of which might have exonerated the
defendant.'" Id. (emphasis added) (quoting
Arizona v. Youngblood, 488 U.S. 51, 57 (1988)). "
[T]he failure to preserve this 'potentially
useful evidence' does not violate due process
'unless a criminal defendant can show bad faith
on the part of the police.'" Id. (quoting
Youngblood, 488 U.S. at 58).
¶47 The pubic hairs in this case fall into the
category of "potentially useful evidence" that,
depending on testing, "might have exonerated"
Gulbransen. This triggered his burden to produce
evidence showing that the police acted in bad
faith in losing the evidence, if he wanted to
successfully show that his due process rights
were violated. However, Gulbransen made no such
allegations. While he did contest that he was
deprived of his ability to analyze the evidence
himself, he never raised the issue of bad faith
in the district court. Nor did either party
present evidence as to the intentions of the
police officers or the State Crime Lab with
regard to the evidence.

¶48 We have held that, "[a]s a general rule,
claims not raised before the trial court may not
be raised on appeal." State v. Holgate, 2000 UT
74, ¶ 11, 10 P.3d 346. We have further determined
that the requirement of raising a claim at trial
before bringing it on appeal "applies to every
claim, including constitutional questions, unless
a defendant can demonstrate that 'exceptional
circumstances' exist or 'plain error' occurred."
Id. In this case, Gulbransen failed to raise his
claim before the district court and is thereby
barred from making such a claim before us. In
addition, since he has made no allegation of
"exceptional circumstances" or "plain error," his
failure to raise the issue at trial deprives him
of any exceptional remedy before this court.
CONCLUSION
¶49 All of the issues that Gulbransen has
raised on appeal fail. The first three issues,
involving the district court's jurisdiction to
sentence Gulbransen on his conviction, the
district court's denial of his request for a bill
of particulars, and the admissibility of the
photographs of the victim's anus, all fail on
their merits. The final issue raised on appeal,
regarding the loss of evidence at the State Crime
Lab, fails because Gulbransen did not properly
preserve it for appeal. Gulbransen's conviction
is therefore affirmed.
---
¶50 Chief Justice Durham, Justice Durrant,
Justice Parrish, and Justice Nehring concur in

Associate Chief Justice Wilkins' opinion.
1. The certification statute, Utah Code section
78-3a-603, unlike the SYOA, allows the juvenile
court, at its discretion, to bind over juvenile
offenders fourteen years old and over who have
allegedly committed any felonies, if the juvenile
court finds that "it would be contrary to the
best interest of the minor or of the public for
the juvenile court to retain jurisdiction." Utah
Code Ann. § 78-3a-603(2) (2003).