Opinion
No. 990740-CA.
September 28, 2000. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Robin W. Reese.
Clayton A. Simms, Salt Lake City, for Appellant.
Jeanne Robison, Salt Lake City, for Appellee.
Before Judges GREENWOOD, BENCH, and BILLINGS.
MEMORANDUM DECISION
Mecham contends that the trial court erred in admitting the previously undisclosed photograph, arguing that the City violated Rule 16, Utah Rules of Criminal Procedure. We disagree. In denying Mecham's general request for discovery, the prosecution voluntarily provided Mecham with documents "reflecting only what is contained in the prosecution's file." The prosecution then informed Mecham that additional evidence may exist outside of the prosecution's file, and provided him with the victim's name, phone number, and address. Thus, Mecham's contention that he was misled into believing that other photographs did not exist is without merit, as nothing in the City's response could have led Mecham to that belief. See State v. Knight, 734 P.2d 913, 917 (Utah 1987) (providing one aspect of misleading-the-defense rationale is to lead defense to believe that "material not produced does not exist"). Mecham had every opportunity to investigate whether additional photographs existed but simply chose not to do so. The prosecution itself did not know the photograph existed until the night before trial, did not see the photograph until the day of trial, and was not planning on using the photograph at trial. Furthermore, the photograph remained in the victim's possession. Because the photograph never became part of the prosecution's file, which it had previously agreed to produce, the City was under no obligation to produce it. See id. (stating prosecution has duty to produce later-acquired material if it "agrees to produce certain specified material and . . . later comes into possession of additional material that falls within that same specification").
In any event, even if the trial court erred in admitting the photograph, Mecham has not shown prejudice, i.e., that "`"absent the error there is a reasonable likelihood of an outcome more favorable to the defendant."'" State v. Blubaugh, 904 P.2d 688, 699 (Utah Ct.App. 1995) (citations omitted). The victim testified as to the injuries inflicted by Mecham, and that testimony was substantiated by the crime lab photographs. The officer's testimony regarding the victim's injuries was also consistent with the victim's testimony and the crime lab photographs. Although Mecham contends that the photograph adversely affected his self-defense theory, he "does not suggest in what way he may have altered his defense," save that he would have avoided opening the door to such evidence. State v. Thomas, 1999 UT 2, ¶ 27, 974 P.2d 269. Simply put, even without the photograph, there was not a reasonable likelihood that Mecham would have been acquitted of the crime charged.
Accordingly, we affirm.
WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and JUDITH M. BILLINGS, Judge.