State Ex Rel. D.B.

¶ 1 D.B. appeals from the juvenile court's adjudication finding him guilty as an accomplice, see Utah Code Ann. § 76-2-202 (2008), on allegations of theft,see id. § 76-6-404, and criminal trespass, seeid. § 76-6-206(2). We affirm.

BACKGROUND ¶ 2 An eyewitness contacted police dispatch to report that two juvenile boys were attempting to break the padlocked gate to a construction site. Police responded and arrested D.B. and another juvenile.

¶ 3 The State filed a petition alleging twelve instances of criminal conduct including allegation four that D.B. had committed theft, see id. § 76-6-404, and allegation five that D.B. had committed criminal trespass,see id. § 76-6-206(2). D.B. admitted to allegation one and the State dismissed allegations two and three. The juvenile court held a trial and heard evidence concerning allegations four and five, reserving the remaining counts for trial at a later date. At trial the eyewitness testified that the two boys were "hitting the fence padlock with either a rock or some type of bar" and "[b]oth tried to . . . climb the fence and they both jumped off and *Page 821 then one of the [d]efendants climbed into the fence and . . . [went] around to the back of the trailer."² The eyewitness further testified that the other boy who was unable to climb the fence waited and acted "[a]s a watch-out." When asked what he meant by that and what did the boy do, the eyewitness stated that the other boy "[a]ppeared to be nervous, just looking around." The eyewitness also testified that he watched the boy that was inside of the fence the whole time until the police arrived.³ The codefendant, however, testified that both he and D.B. jumped the fence and both had the bolt cutters in their possession.⁴ When the police arrived they found D.B. outside the fenced area.⁵After the trial, the juvenile court announced that because the parties were returning to court on the remaining allegations related to the matter, it would give its trial verdict at that time. Thereafter, the juvenile court announced its adjudication finding D.B. guilty, as an accomplice, of theft and criminal trespass.

ISSUE AND STANDARD OF REVIEW ¶ 4 D.B. argues that his guilt as an accomplice was neither alleged nor argued at trial and therefore the juvenile court's decision finding him guilty on the theory of accomplice liability was in violation of his due process rights. This issue presents a question of law that we review for correctness. See Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177 ("Constitutional issues, including question regarding due process, are questions of law that we review for correctness."). When our review of such questions involves underlying factual issues, "we incorporate a clearly erroneous standard for the necessary subsidiary factual determinations."Id. *Page 822 ANALYSIS ¶ 5 D.B. asserts that the juvenile court's finding of accomplice liability was in violation of his due process rights because the State neither gave D.B. specific notice that it was pursuing an accomplice liability theory nor did the State actually request that the juvenile court utilize such a theory. The State initially responds that D.B. failed to preserve his due process challenge in the juvenile court. We first consider the threshold issue of whether D.B. preserved the issue for appellate review.

¶ 6 To preserve an issue for appeal, the issue must have been presented to the trial court in such a way that the court has an opportunity to rule on that issue. See438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. "This preservation rule has been extended to apply to every claim unless a [party] can demonstrate that exceptional circumstances exist or plain error occurred." hunt v.Lance, 2008 UT App 192, ¶ 23, 186 P.3d 978 (alteration in original) (internal quotation marks omitted). Issues that are not raised at trial are generally deemed to be waived. See 438 Main St., 2004 UT 72, ¶ 51,99 P.3d 801. The presence of a constitutional issue does not excuse an appellant from complying with the preservation rules set by the supreme court and the Utah Rules of Appellate Procedure. see O'Dea v. Olea, 2009 UT 46, ¶217 P.3d 704.

¶ 7 Rather than arguing that D.B. properly preserved the issue for appeal or advancing grounds upon which we may review an unpreserved issue, ⁶ D.B. argues that preservation is irrelevant. In particular, D.B. argues that he was not obligated to raise his objection at trial since there was nothing to object to during the trial because the State gave no indication that it was pursuing a theory of accomplice liability.

¶ 8 I disagree that D.B. was not given notice that such a theory was being pursued. Without determining the type of notice the prosecution must give at trial, I note that accomplice liability is not a separate offense from principal liability, see State v. Gonzales, 2002 UT App 256, ¶ 12, 56 P.3d 969, and "[i]t is well settled that accomplices incur the same liability as principals,"id. Moreover, "a person charged with a crime has adequate notice of the possibility of accomplice liability being raised at trial because conviction of accomplice and principal liability do not require proof of different elements or proof of different quality."⁷ Id. As such, *Page 823 it may reasonably be presumed that D.B. was aware that even if he successfully defended against principal liability that should the evidence demonstrate that he solicited, requested, commanded, encouraged, or intentionally aided another person to engage in conduct which constitutes an offense he could be found responsible as an accomplice. Cf. State v.White, 577 P.2d 552, 554 (Utah 1978) (finding an evidentiary basis upon which to instruct on either principal or accomplice liability and rejecting the defendant's argument that the trial court erred in instructing the jury on aiding and abetting when the defendant was charged and tried as the principal in the crime and not as one who aided someone else in its commission).

¶ 9 After the presentation of testimony, which included testimony that would support both principal and accomplice liability theories, D.B. had several opportunities to challenge the application of accomplice liability. The first opportunity arose when the State, during its closing argument in rebuttal, argued accomplice liability stating,

I didn't mean to misinform, if I stated that both climbed the fence. . . . But the problem [the defense] has with this whole case is: No matter where [D.B.] was, it was clear, [the eyewitness] says he was a lookout . . . . [The eyewitness] thought he was a lookout, he was watching things, and so he's just as responsible for what his Co-defendant does as if he committed that crime.

This comment was a clear statement that the State was not foregoing an accomplice liability theory. Moreover, the State, after hearing D.B.'s closing argument, which largely focused on principal liability, ⁸ clarified that the State was indeed pursuing an accomplice liability theory by asserting that D.B. was liable for criminal trespass and theft since D.B. intentionally aided his codefendant by acting as a lookout. As such, D.B. had additional notice that the State was pursuing an accomplice liability theory and, at that point before disposition, had an opportunity to object and request a continuance if he needed more time to tailor a defense due to an unfair surprise assertion of accomplice liability.

¶ 10 The next opportunity D.B. had to raise his due process claim occurred when the juvenile court announced in open court, approximately three weeks after trial, D.B.'s guilt on the theory of accomplice liability.⁹ There was nothing to prevent D.B. from alerting the juvenile court at the time of disposition or thereafter in a postjudgment motion,see Utah R. Juv. P. 44, 47, 48(a), ¹⁰ that the State had failed to argue accomplice liability and arguing that D.B. had not been given an opportunity to present a defense to this alternate theory. Although a post-judgment motion on an issue is not necessary if D.B. had otherwise raised the issue, a timely postjudgment motion may in some instances be used to preserve an issue not previously raised if the court considers and rules on the issues raised in a postjudgment *Page 824 motion. Cf. Normandeau v. Hanson Equip., Inc.,2009 UT 44, ¶ 23, 215 P.3d 152 ("`[O]nce trial counsel has raised an issue before the trial court, and the trial court has considered the issue, the issue is preserved for appeal.'" (alteration in original) (internal quotation marks omitted));State v. Belgard, 830 P.2d 264, 265-66 (Utah 1992) (holding that issues raised and dealt with in posttrial evidentiary hearings are preserved for appeal).

¶ 11 D.B.'s failure to object either at trial, at the time of adjudication, or through a postjudgment motion deprived the juvenile court of its opportunity to address the claimed error and, if merited, correct it. See hunt v. Lance,2008 UT App 192, ¶ 24, 186 P.3d 978. Accordingly, we conclude that D.B. failed to preserve his due process claim and we affirm the juvenile court's determination.

CONCLUSION ¶ 12 D.B. was on notice that when charged with a criminal violation he could be convicted as either a principal or as an accomplice at trial. The State did not affirmatively exclude application of accomplice liability. D.B. had several opportunities to assert that application of such a theory was done in violation of his due process. D.B. failed to object to this theory during the State's presentation of the evidence that would support D.B.'s guilt under an accomplice liability theory. Likewise, D.B. failed to raise the issue either at the adjudication hearing wherein the juvenile court explicitly applied the theory of accomplice liability or thereafter through a postjudgment motion. D.B.'s failure to raise the issue deprived the juvenile court of its opportunity to address the claimed error and, if merited, correct it. Thus, we conclude that D.B. failed to preserve his due process claim and we affirm the juvenile court's determination.¹¹

² The eyewitness, during his testimony, identified D.B. as being one of the involved individuals who had successfully climbed over the fence and went around to the back of the trailer. He testified during direct examination by the State as follows:

Q. Okay. Is there any doubt in your mind of whether or not that's one of the boys?

A. No, sir.

Q. Did you have the opportunity to see them closer on this occasion — on the event that it happened?

A. On the event as it happened, I appeared — the facial features from a distance.

Q. Did the officers come and have you write a statement or anything of that nature?

A. No, sir.

Q. Did they have you identify the boys on that occasion?

A. No, sir.

Q. Okay. This individual is — you've identified in the courtroom, what was his participation?

A. I think he was the one that was jumping into the trailer over the fence.

During cross-examination, they eyewitness again identified D.B. as the individual who had climbed over the fence. He testified as follows: "Q. . . . And the boy that was — that jumped over the fence, you identified this individual right here sitting next to me at the table? A. Yes, sir. Q. As the one that jumped over the fence and was inside? A. Yes, sir."

³ On cross-examination, the eyewitness specifically testified as follows:

Q. Okay. What happened after you heard the clanking noise?

A. The police — I was still on the phone with them to kind of hurry because I didn't know whether they were going to leave or what. And then immediately the police came down and I [saw] them pull them over and get the boy out of the fence. . . .

Q. Okay. And the time that he jumped over the fence, and got inside the fence there, did you watch him the whole time?

A. Yes, while I was on the phone with the police.

Q. Okay. Until the police got there, you watched him the whole time?

A. Yes.

⁴ Ordinarily, I would not address the facts of the case, but in light of the dissent I point out that the juvenile court expressly found that the codefendant's testimony, upon which the dissent relies as clearly supporting liability as a principal, see infra 121, was not credible.

⁵ After reviewing his report, one of the responding officers, Marco Mihailovich, testified that D.B.'s codefendant was inside the fenced-off area and D.B. was on the outside of the fence. Patrol Sergeant Steven Gowans, who arrived with officer Mihailovich and took D.B. into his custody, testified that D.B. was outside of the fence area:

Q. And what did you do — when you approached them, what did they do?

A. One was still inside the fence. I took the other boy into custody, put handcuffs on him, and secured him in my car, then went back to — Officer Mihailovich was still standing by the fence with the other boy still trying to get back over.

Q. What was the name of the boy that you took into your custody, do you recall? A. [D.B.]

⁶ Although D.B. asserts in his opening brief that the juvenile court erred by finding accomplice liability without any motion or request by the State, he raised the plain error argument only in his reply brief. We decline to review the issue of plain error when raised for the first time in an appellant's reply brief. See Berkshires, LLC v. Sykes,2005 UT App 536, 11 20, 127 P.3d 1243.

⁷ I disagree with the dissent that Lankford v.Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), a death penalty case, is an instructive case for the issue on appeal. First, death penalty cases present a special situation which the Lank-ford Court recognized requires extra care and notice. See id. at 126 n. 22,111 S.Ct. 1723 ("In the capital context, in which the threatened loss is so severe, the need for notice is even more pronounced."). Second, the Court's determination that the defendant did not receive adequate notice was largely based on the circumstances of the case. See id. at 111,111 S.Ct. 1723 ("The unique circumstances that gives rise to concern about the adequacy of the notice in this case is the fact that, pursuant to court order, the prosecutor had formally advised the trial judge and petitioner that the [s]tate would not recommend the death penalty."). In Lankford, the Court determined that it was unrealistic to assume that the notice provided by the statute and the arraignment survived the state's response to a presentencing order where the state specifically said that it would not pursue the death penalty, and the trial court's silence following that response. Seeid. at 120, 111 S.Ct. 1723 ("The presentencing order entered by the trial court requiring the [s]tate to advise the court and the defendant whether it sought the death penalty, and if so, requiring the parties to specify the aggravating and mitigating circumstances on which they intended to rely, was comparable to a pretrial order limiting the issues to be tried. The purpose of such orders is to eliminate the need to address matters that are not in dispute, and thereby to save the valuable time of judges and lawyers."). The Court found that the trial court's silence had the practical effect of concealing from the parties the principal issue to be decided at the sentencing hearing, that is, whether to impose the death penalty. See id. ("There is nothing in the record after the [s]tate's response to the presentencing order and before the trial judge's remark at the end of the hearing that mentioned the possibility of a capital sentence. During the hearing, while both defense counsel and the prosecutor were arguing the merits of concurrent or consecutive, and fixed or indeterminate, terms, the silent judge was the only person in the courtroom who knew that the real issue that they should have been debating was "he choice between life or death."). Such is not the situation here, neither the State nor the juvenile court made any affirmative representation or other indication that accomplice liability was not a possibility.

⁸ Regarding the criminal trespass charge, D.B. .argued that "[t]he fact is. he never did go into the construction yard, and, consequently, there was no criminal trespass on his behalf." Respecting the theft charge, D.B. argued "[t]he fact of the matter is that there just isn't any evidence that [D.B.] entered into the construction yard and had possession of any bolt cutlers or anything else that would indicate he was — that he, in feet, committed a theft."

⁹ The juvenile court in announcing its decision explicitly discussed accomplice liability and specifically referenced Utah Code section 76-2-202 entitled, "Criminal responsibility for direct commission of offense or for conduct of another,"see Utah Code Ann. § 76-2-202 (2008).

¹⁰ Although a party is not required to file a postjudgment motion before the trial court as a prerequisite to filing an appeal, see Sittner v. Schriever, 2000 UT 45, 1111 15-16, 2 P.3d 442, nor does reference to the issue in such a filing necessarily preserve the point for appeal, seeLeBaron Assocs., Inc. v. Rebel Enters., Inc.,823 P.2d 479, 484 (Utah Ct.App. 1991), raising the issue after disposition would have afforded the juvenile court an opportunity to address the issue. Cf. State v.Belgard, 830 P.2d 264, 265-66 (Utah 1992) (holding that issues raised and dealt with in posttrial evidentiary hearings may be preserved for appeal).

¹¹ I agree with the concurring opinion that D.B. did not preserve his argument that he lacked notice of accomplice liability and that if D.B. did in fact lack notice it was necessary for him to raise the issue in a postjudgment motion. To the extent that this opinion touches on the merits of the case, it is solely in response to D.B.'s argument that preservation is irrelevant and that there was nothing to object to in order to preserve the issue of accomplice liability notice.