OREM CITY v. McDONALD, 2002 UT App 260

Case No. 20010176-CA.Utah Court of Appeals.
Filed August 1, 2002. (Not For Official Publication)

Appeal from the Fourth District, Orem Department, The Honorable John C. Backlund.

Randy M. Lish, Provo, for Appellant.

Michael Barker, Orem, for Appellee.

Before Judges Davis, Greenwood, and Orme.

MEMORANDUM DECISION
PER CURIAM:

Appellant Rebecca McDonald appeals her conviction of retail theft, a class B misdemeanor, following a bench trial. This case is before the court on a motion to dismiss filed by Appellee Orem City.[1]

McDonald contends that (1) the evidence was insufficient to support the conviction and (2) the sentence imposed violated equal protection guarantees. An appellant who seeks to challenge a finding or conclusion of the trial court as unsupported by the evidence “shall include in the record a transcript of all evidence relevant to such finding or conclusion.” Utah R. App. P. 11(e)(2). In the absence of an adequate record on appeal, the appellate court will “presume that the judgment was supported by sufficient evidence.” Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct.App. 1990). An appellant who fails to provide a transcript necessarily cannot satisfy the marshaling burden on appeal. When an appellant “fails to marshal the evidence supporting a challenged fact finding, we reject the challenge” and assume the evidence supports the findings. Campbell v. Box Elder County, 963 P.2d 806, 808 (Utah Ct.App. 1998). McDonald did not provide a transcript of either the bench trial or the sentencing hearing. Her brief contains no citations to the record, other than references to a video tape introduced at trial through the testimony of a prosecution witness. Under the circumstances, we reject the challenge to the conviction, and assume that it is adequately supported by the record.

“A sentence will not be overturned on appeal unless the trial court has abused its discretion, failed to consider all legally relevant factors, or imposed a sentence that exceeds legally prescribed limits.” State v.Nuttall, 861 P.2d 454, 456 (Utah Ct.App. 1993). Because McDonald provides no sentencing transcript, this court cannot review the court’s sentencing decision or determine whether the issues raised on appeal were preserved. In addition, McDonald provides no adequate legal analysis supporting the claim that the sentence violated equal protection because a co-defendant allegedly received a different sentence.

Without any record indicating the facts that were presented to the trial court at sentencing and reflecting any rationale stated by the court, the claim that the court penalized McDonald for pursuing the case to trial is wholly speculative.

We affirm the judgment and sentence.

James Z. Davis, Judge, Pamela T. Greenwood, Judge, and Gregory K. Orme, Judge.