Opinion
Case No. 20010164-CA.
Filed December 11, 2003. (Not For Official Publication)
Appeal from the Sixth District, Kanab Department The Honorable K.L. McIff.
Jim R. Scarth, St. George, for Appellants.
Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Orme.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.
We are at a loss to understand Defendants' quarrel with respect to items 1-4 and items 8-10 identified in the search warrant return, as the trial court suppressed those items pursuant to Defendants' motion.
Item 5 was seized pursuant to the "plain view" doctrine, which Defendants do not acknowledge in their brief. They do not set forth any argument as to why the "plain view" doctrine should not apply. Therefore, we do not address Defendants' arguments with respect to item 5. See Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 46, 70 P.3d 904 (declining to address inadequately briefed argument).
Defendants challenge the admission of the remaining items on particularity grounds. While the warrant on its own may well not have satisfied the particularity requirement, when read in conjunction with the accompanying affidavit, the documents sufficiently describe the items sought. See State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985) (affirming trial court's conclusion that "since the affidavit in support of the warrant described precisely the [objects of the search], the warrant made specific reference to the affidavit, and the affiant executed the search warrant, the affidavit and the warrant could be read together and the search was valid"). Accord State v. South, 932 P.2d 622, 625 (Utah Ct.App.), cert. denied, 940 P.2d 1224 (Utah 1997).
To the extent Defendants challenge the initial entries into the restaurant and basement by emergency personnel, those arguments fail, as such personnel may enter the building to extinguish the fire and determine its cause. See, e.g., Michigan v. Clifford, 464 U.S. 287, 293, 104 S.Ct. 641, 646-47 (1984) ("A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze[; m]oreover, . . . once in the building, officials need no warrant to remain for `a reasonable time to investigate the cause of a blaze after it has been extinguished.'") (quoting Michigan v. Tyler, 436 U.S. 499, 510, 98 S.Ct. 1942, 1950 (1978)) (emphasis in original) (footnote omitted). See Salt Lake City v. Davidson, 2000 UT App 12, ¶ 10, 994 P.2d 1283 (explaining that "[t]he emergency aid doctrine . . . is a variant of the exigent circumstances doctrine").
Defendants argue that "[t]here was never any valid reason for the firefighters, the police, or anyone else to enter the basement area," but it was well known that Defendants lived in the basement, and furthermore, given the early hour of the fire, it was entirely reasonable to assume that Defendants may be asleep inside the building.
Defendants next complain about the jury selection process. Defendants' trial counsel, however, failed to request that any of the jurors in question be removed for cause. Thus, Defendants are "entitled to appellate review only if [they] can show that the trial court committed `plain error'" in failing to remove the jurors sua sponte. State v. Olsen, 860 P.2d 332, 333 (Utah 1993). Accord State v. Ellifritz, 835 P.2d 170, 174 (Utah Ct.App. 1992). A showing of plain error requires, inter alia, a demonstration of actual prejudice, i.e., Defendants must show "that the jury that sat was partial or biased."State v. Evans, 2001 UT 22, ¶ 29, 20 P.3d 888. Accord State v. Mead, 2001 UT 58, ¶ 34, 27 P.3d 1115. Defendants have not demonstrated prejudice in their brief, and reversal is therefore inappropriate. See id.
Defendants' arguments concerning alleged improper juror conduct fail for the same reason. It is true that any contact between a juror and witness, party, or court personnel that is more than a brief and incidental contact warrants the attachment of a rebuttable presumption of prejudice because it has the effect of "breeding a sense of familiarity that could clearly affect the juror's judgment as to credibility."
State v. Swain, 835 P.2d 1009, 1011 (Utah Ct.App. 1992) (quoting State v. Pike, 712 P.2d 277, 281 (Utah 1985)). However, "the rebuttable presumption of prejudice" does not attach in this case because "the contact was between a juror and an outsider under circumstances unrelated to the proceedings." State v. Tenney, 913 P.2d 750, 757 (Utah Ct.App.),cert. denied, 923 P.2d 693 (Utah 1996). "In such a case, there is a presumption that the jurors have behaved properly, and it is the defendant[s'] burden to provide `some definite proof of misconduct and that the said misconduct was prejudicial.'" Id. (quoting Arellano v. Western Pac. R.R., 5 Utah 2d 146, 298 P.2d 527, 530 (1956)). Defendants suggest that the alleged juror misconduct compromised the "appearance of fairness" at their trial, but they utterly fail to demonstrate prejudice.
Finally, Defendants argue that the evidence was insufficient to convict them of aggravated arson. "To demonstrate that the evidence is insufficient to support the jury verdict, the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991). See Utah R. App. P. 24(a)(9). Defendants "ha[ve] not acknowledged, let alone marshaled, the [adverse] evidence presented at trial." State v. Hopkins, 1999 UT 98, ¶ 14, 989 P.2d 1065. Accordingly, we do not reach the merits of this claim. See id. at ¶ 16.
We have considered Defendants' remaining arguments and conclude they are without merit. See State v. Allen, 839 P.2d 291, 303 (Utah 1992) ("In accord with the established principles of review applicable to all cases, . . . we [need not] analyze and address in writing every issue or claim raised.").
Affirmed.
Judith M. Billings, Associate Presiding Judge, and James Z. Davis, Judge, concur.