text:
    2004 UT 14
    PROVO CITY CORPORATION, Plaintiff and Appellant, v. Sean THOMPSON, Defendant and Appellee.
    No. 20020307.
    Supreme Court of Utah.
    Feb. 13, 2004.

      Vernon F. Romney, Provo, for plaintiff.
    Dana M. Facemyer, Provo, for defendant.
   DURHAM, Chief Justice:

BACKGROUND

¶ 1 Defendant Sean S. Thompson was convicted under Utah Code section 76-9-201 for making repeated calls to his ex-wife, Carolyn, after she previously told him not to call back. The trial court found that the defendant telephoned Carolyn late at night eleven times within a one-hour time period. Carolyn told the defendant not to call several times that night, but the defendant continued his calls. As a result, Carolyn finally called the Provo City Police Department, and Officer Michael Bastían was dispatched to Carolyn’s house. While Officer Bastían was at her house, the defendant called again. Officer Bastían answered the line, learned the defendant’s location, and advised the defendant to remain where he was. Officer Bastían then went to Thompson’s apartment, where he found Thompson in an intoxicated state, and cited him for telephone harassment.

¶ 2 At trial, Thompson’s defense was that he had been calling to prevent Carolyn from killing herself, which he claimed she said she would do in a phone call she made to him earlier that night. However, the defendant admitted that he did not raise those concerns with Officer Bastían. Rather, according to Officer Bastían, he explained that he had been calling to find out whether his wife still loved him and because he wanted to see his daughter. The trial court found the defendant guilty of telephone harassment because, in violation of section 76-9-201(l)(b), the defendant had made repeated telephone calls with the intent to annoy Carolyn after she had asked him not to call.

¶ 3 On appeal, defendant challenged his conviction, arguing that section 76-9-201 was unconstitutionally overbroad and void for vagueness in violation of the First Amendment to the United States Constitution and the Utah Constitution. Provo City v. Thompson, 2002 UT App 63, ¶ 1, 44 P.3d 828. The court of appeals affirmed his conviction, holding that the portion of section 76-9-201(l)(b) that was most applicable to defendant’s conduct was neither unconstitutionally overbroad nor void for vagueness. Id. at ¶ 23. The court did, however, hold that first portion of 76-9-201(l)(b) unconstitutionally overbroad and therefore invalid. Id. at ¶ 21. We granted Provo City’s petition for review of the decision of the court of appeals insofar as it declared the first portion of Utah Code section 76-9-201(l)(b) unconstitutionally overbroad. Id.

¶ 4 The court of appeals’ affirmance of defendant’s conviction of telephone harassment under the unwanted calls provision of Utah Code section 76 — 9—201(l)(b) was correct. We also hold that the court of appeals improperly reached the issue of whether the first portion of 76-9-201(l)(b) is facially over-broad.

STANDARD OF REVIEW

¶ 6 Constitutional challenges to statutes present questions of law, which we review for correctness. Midvale City Corp. v. Haltom, 2003 UT 26, ¶ 10, 73 P.3d 334; I.M.L. v. State, 2002 UT 110, ¶ 8, 61 P.3d 1038.

ANALYSIS

¶ 6 At the time of the incident giving rise to this case, Utah Code section 76-9-201 read as follows:

(1) A person is guilty of telephone harassment and subject to prosecution in the jurisdiction where the telephone call originated or was received if with intent to annoy, alarm another, intimidate, offend, abuse, threaten, harass, or frighten any person at the called number or recklessly creating a risk thereof, the person:
(a) makes a telephone call, whether or not a conversation ensues;
(b) makes repeated telephone calls, whether or not a conversation ensues, or after having been told not to call back, causes the telephone of another to ring repeatedly or continuously;
(c) makes a telephone call and insults, taunts, or challenges the recipient of the telephone call or any person at the called number in a manner likely to provoke a violent or disorderly response;
(d) makes a telephone call and uses any lewd or profane language or suggests any lewd or lascivious act; or
(e) makes a telephone call and threatens to inflict injury, physical harm, or damage to any person or the property of any person.
(2) Telephone harassment is a class B misdemeanor.

Utah Code Ann. § 76-9-201 (1999) (current version at Utah Code Ann. § 76-9-201 (2003)).

¶ 7 At issue here is subsection (l)(b). Defendant’s conviction was sustained under the second portion of subsection (l)(b), which prohibits a person with the requisite intent from making repeated telephone calls after being told not to call. For clarity of reference, we will refer to this portion as the unwanted calls provision. The court of appeals invalidated the first portion of subsection (l)(b), which prohibits a person with the requisite intent from making repeated telephone calls, whether or not a conversation ensues. We designate this portion the repeated call provision. Provo City now asks us to hold that the repeated call provision is not facially overbroad.

I. STANDING

¶ 8 Before we reach the merits of Provo City’s argument, we must first decide whether the constitutional validity of the repeated calls provision was properly before the court of appeals. See Salt Lake City Corp. v. Prop. Tax Div. of Utah State Tax Comm’n, 1999 UT 41, ¶ 9, 979 P.2d 346 (treating standing as a threshold issue that must be determined before proceeding to further inquiries).

A. Basic Standing Requirements

¶ 9 To properly bring an issue before the court for adjudication, a party must have standing. “In essence[,] the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In order to meet the basic requirements of standing, a party must allege that he or she has suffered or will imminently suffer an injury that is fairly traceable to the conduct at issue such that a favorable decision is likely to redress the injury. See Jenkins v. Swan, 675 P.2d 1145, 1150-51 (Utah 1983) (discussing three alternative ways to fulfill the requirements of standing). In addition, a party may generally assert only his or her own rights and cannot raise the claims of third parties who are not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); State v. Herrera, 1999 UT 64, ¶ 42, 993 P.2d 854 (“We have long held that ‘one may not allege jeopardy or injury to others in order to confer standing upon his own claims.’ ” (quoting York v. Unqualified Wash. County Elected Officials, 714 P.2d 679, 680 (Utah 1986))).

B. Facial Overbreadth as an Exception to Traditional Standing Requirements

¶ 10 When a challenge of statutory overbreadth is made, an exception to the basic standing requirements is available in the First Amendment context. “The First Amendment overbreadth doctrine ... represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court.” State v. Haig, 578 P.2d 837, 841 (Utah 1978) (citation omitted). The facial overbreadth doctrine “gives a defendant standing to challenge a statute on behalf of others not before the court even if the law could be constitutionally applied to the defendant.” Salt Lake City v. Lopez, 935 P.2d 1259, 1263 n. 2 (Utah Ct.App.1997); see also Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148 (2003); Bigelow v. Virginia, 421 U.S. 809, 815, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Broadrick, 413 U.S. at 612, 93 S.Ct. 2908 (“[T]he Court has altered its traditional rules of standing to permit — in the First Amendment area — attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” (quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965))). Because this doctrine is “strong medicine,” it should only be applied sparingly and as a last resort. L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (citation omitted).

¶ 11 The rationale for the facial overbreadth doctrine rests on the very real possibility that an overbroad statute mil cause injury not only when applied to punish protected speech, but also in its “chilling effect” on protected activity. Individuals who are contemplating participating in protected speech may choose to avoid possible prosecution or litigation by refraining from the constitutionally protected activity. See Provo City Corp. v. Willden, 768 P.2d 455, 457 (Utah 1989). Because these individuals are never prosecuted, the overbroad statute goes unchallenged. To remedy this situation, a party may challenge a statute on the basis that it criminalizes protected speech even though that party’s own conduct or speech is not constitutionally protected. I.M.L., 2002 UT 110 at ¶ 7, 61 P.3d 1038. The court may then invalidate the statute if (1) the statute “ ‘reaches a substantial amount of constitutionally protected conduct,’ ” even if the statute also has a legitimate application, id. at ¶ 15 (quoting Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)), and (2) the statute is not “readily subject to a narrowing construction.” State v. Jordan, 665 P.2d 1280, 1284 (Utah 1983) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)).

¶ 12 This exception, however, does not relieve the burden of the challenging party to meet the other requirements for standing. To have standing in the context of a facial overbreadth challenge, “a party must still ‘demonstrate its own cognizable injury in fact.’ ” Haltom, 2003 UT 26 at ¶ 84, 73 P.3d 334, (Durrant, J., concurring) (quoting Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1227 (10th Cir.2002)). The injury-in-fact requirement is satisfied where a party participates “in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution.” Id. (internal quotation omitted). The party challenging a statute must also show that if the court invalidates the challenged provision, the party’s harm will be redressed. See Bigelow, 421 U.S. at 816-17, 95 S.Ct. 2222 (finding that defendant had standing to raise a facial overbreadth challenge to a statute where there was “no doubt concerning the [defendant’s] personal stake in the outcome of the controversy.”).

¶ 13 As a corollary, “[t]he rule still stands that where defendants were not charged with an activity, the adjudication of that activity, though encompassed under the sanctions of the statute, must await a real controversy.” Jordan, 665 P.2d at 1284. The overbreadth doctrine, therefore, cannot be properly relied upon to invalidate a portion of a statute under which a defendant has not been charged or convicted: “ When a line of excision is available, one standing within the zone which a truncated statute might reach may be barred from setting up the statute’s overbreadth as to others.’ ” Id. (quoting Note, The First Amendment Overbreadth Doctrine, 83 Harv. L.Rev. 844, 909 (1970)).

¶ 14 We are aware of no case in which a court, in response to a facial overbreadth challenge to a statute, has found invalid a portion inapplicable to the defendant but nonetheless affirmed the defendant’s conviction based on a different, valid portion of the statute. Neither are we aware of any case in which a court employs one of two statutory provisions, both of which proscribe the conduct at issue, to uphold a conviction while the other is declared invalid.

¶ 15 Rather, courts entertain facial overbreadth challenges only where the outcome of the ease rests on the court’s determination of the constitutionality of the applicable portion of the statute. See Provo City v. Whatcott, 2000 UT App 86, ¶ 14, 1 P.3d 1113 (finding both portions of statute under which defendant could have been convicted over-broad and therefore reversing defendant’s conviction); Logan City v. Huber, 786 P.2d 1372 (Utah Ct.App.1990) (finding portion of the statute under which defendant was convicted overbroad and reversing conviction); American Fork City v. Pena-Flores, 2002 UT 131, 63 P.3d 675 (upholding defendant’s conviction because the relevant portion of the statute was not overbroad or constitutionally deficient); Jordan, 665 P.2d at 1280 (dismissing defendant’s challenge of portion of statute where a different, constitutionally valid portion of the statute was sufficient to uphold defendant’s conviction).

¶ 16 Thus, in Whatcott, the court properly applied the facial overbreadth exception to the normal requirements of standing to analyze the two portions of the statute under which the defendant could have been convicted. 2000 UT App at ¶ 9 n. 2, 1 P.3d 1113. However, unlike the present case, the court in Whatcott found both portions of the statute constitutionally invalid and therefore reversed defendant’s conviction. Id. at ¶ 16.

¶ 17 Jordan presented a similar situation. There, defendants were convicted under a portion of the statute prohibiting inducing a minor to pose in the nude for the purpose of sexual arousal. Jordan, 665 P.2d at 1283. The court held that defendants could not challenge the statute’s constitutionality based on the alleged overbreadth of another portion of the same subsection that prohibited inducing minors to pose in the nude for profit. Id. at 1284. The court held that “[the defendants] cannot rely upon the [overbreadth] exception to test that proscribed conduct as it affects others.” Id. Because one valid portion of the statute proscribed defendants’ conduct, the court did not address the constitutionality of another portion of the statute, and sustained defendants’ convictions. Id.

¶ 18 As the cases above illustrate, a defendant may only challenge multiple portions of a statute if invalidating each of the challenged portions would be necessary to find that defendant’s conduct fell outside the statute’s proscriptions. If a finding that one portion is valid will suffice to uphold a conviction, a defendant lacks standing to challenge, and a court cannot properly adjudicate, the constitutionality of another portion of the statute. Essentially, a court may not issue an advisory opinion as to a statutory provision unnecessary to the outcome of the case because it is one that the parties do not have standing to litigate.

II. APPLICATION

¶ 19 In the court of appeals, defendant raised a general facial overbreadth challenge to section 76-9-201 even though the statute was not overly broad as applied to him. Thompson, 2002 UT App 63 at ¶ 10 n. 3, 44 P.3d 828. As discussed above, defendant had standing only to challenge the validity of the provisions applicable to him, which were the repeated calls and unwanted calls provisions of subsection 76-9-201(l)(b). As to those portions of the statute, the defendant had standing to raise the overbreadth defense because he arguably had been convicted under provisions that he claimed were invalid, and a decision invalidating those provisions would redress his injury. See Willden, 768 P.2d at 457 (“There is no question that Willden meets this standing test. He has been convicted and sentenced under the ordinance he challenges.”). Even though defendant did not argue that any provision was unconstitutionally broad as applied to his own conduct, and was therefore asserting the rights of parties not before the court, the facial overbreadth doctrine provided an exception to the general prohibition against the assertion of third-party rights.

¶ 20 The court of appeals found that the particular provision most applicable to the defendant’s conduct, the unwanted calls provision of 76-9-201(l)(b), was not overbroad because “there is no right to audibly invade another’s home or place of business by telephone ring in an attempt to commandeer her listening ear when she has affirmatively expressed a desire to be left alone.” Thompson, 2002 UT App 63 at ¶ 24, 44 P.3d 828. Accordingly, because defendant’s conduct fell within the conduct proscribed by the unwanted calls provision, the court affirmed defendant’s conviction. Defendant does not now challenge this ruling. (When asked at oral argument before this court whether he was seeking to overturn his client’s conviction, defense counsel replied “I’m not now asserting that position.”).

¶ 21 Once the court of appeals upheld the unwanted calls provision, it should have held that defendant had no standing to challenge the constitutionality of the repeated calls provision. First, he could not and did not claim that he had suffered injury as a result of the implementation of the repeated calls provision. Second, and most notably, any injury the defendant could have alleged would not be redressed by a favorable decision: regardless of the court’s decision as to the repeated calls provision, defendant’s conviction would stand under the unwanted calls provision, which the court found to be valid. As a result, the issue of whether the repeated calls provision was valid was no longer properly before the court once it had determined that defendant’s conviction was supported by a different, valid portion of the statute. As in Jordan, 665 P.2d 1280, even though both of the provisions prohibit defendant’s conduct, a finding that one of those provisions was constitutional is sufficient to resolve the issues before the court. Any discussion of an alternate provision under which defendant might have been convicted was unnecessary to the outcome of the ease.

¶ 22 This lack of meaningful effect to the parties in this case renders the court of appeals’ decision as to the repeated calls provision advisory in nature. We have observed on many occasions that this court is not inclined “to issue mere advisory opinions.” Miller v. Weaver, 2003 UT 12, ¶ 26, 66 P.3d 592; see also Lyon v. Bateman, 119 Utah 434, 228 P.2d 818, 820 (Utah 1951) (“[C]ourts ... must operate within the constitutional and statutory powers and duties imposed upon them. They are not supposed to be a forum for hearing academic contentions or rendering advisory opinions.”).

¶ 23 The soundness of this doctrine is illustrated by the strange posture in which the parties, their counsel, and this court find themselves as a result of the court of appeals’ application of the overbreadth exception to standing requirements. After the court of appeals affirmed his conviction, defendant chose not to appeal that ruling. Instead, Provo City has now appealed the invalidation of the repeated calls provision. Defendant also faces an awkward situation. Because he has not appealed his conviction, he is limited to arguing for the invalidation of the repeated calls provision with no real incentive to litigate the issue.

¶ 24 If a defendant declines to litigate an issue under these circumstances, this court cannot benefit from the virtues of an advocate-based system of justice in which each party’s counsel brings all the significant competing arguments to the court’s attention. If defendant instead chooses to litigate the matter, he cannot “reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal,” because the court’s ultimate decision will not affect him. Haltom, 2003 UT 26 at ¶ 86, 73 P.3d 334. Finally, if defendant declines to continue litigating but his counsel feels compelled to respond to the plaintiffs arguments, an anomalous situation arises: defense counsel represents no client and only litigates the matter out of a sense of obligation or personal satisfaction. Consequently, “ ‘there exists no more than a difference of opinion regarding the hypothetical application of a piece of legislation.’ ” State v. Ortiz, 1999 UT 84, ¶ 3, 987 P.2d 39 (quoting Redwood Gym v. Salt Lake County Comm’n, 624 P.2d 1138, 1148 (Utah 1981)).

¶ 25 Because the validity of the repeated calls provision was not properly before the court of appeals, it is not properly before us, and any decision as to the validity of that provision would be advisory. Therefore, we decline to reach the merits of Provo City’s argument.

CONCLUSION

¶26 The court of appeals’ affirmance of defendant’s conviction under the unwanted calls provision, the second portion of Utah Code section 76 — 9—201(l)(b), was correct. Because the parties before the court did not have standing in the court of appeals to litigate the issue of whether the repeated calls provision, the first portion of subsection (l)(b), was constitutionally overbroad, the court of appeals’ determinations as to that portion of subsection (l)(b) were advisory in nature and without precedential value. We therefore vacate that portion of the court of appeals’ decision.

¶ 27 Associate Chief Justice DURRANT, Justice WILKINS, Justice PARRISH, and Justice NEHRING concur in Chief Justice DURHAM’S opinion.


source: Caselaw Access Project

author: DURRANT, Associate Chief Justice:

license: Public Domain

text:
    2004 UT 16
    STATE of Utah, Plaintiff and Petitioner, v. Stephen Lamar GEUKGEUZIAN, Defendant and Respondent.
    No. 20020460.
    Supreme Court of Utah.
    Feb. 24, 2004.
    Mark L. Shurtleff, Att’y Gen., J. Frederic Voros, Jr. Asst. Att’y Gen., Salt Lake City, for plaintiff.
    Kendall S. Peterson, Jerald V. Hale, Salt Lake City, for defendant.
   DURRANT, Associate Chief Justice:

II1 Defendant Stephen Lamar Geukgeuzi-an was convicted of tampering with a witness. The court of appeals reversed his conviction, reasoning that the trial court’s failure to include a mens rea element in its jury instruction resulted in manifest injustice. We conclude that defendant invited the error when he proposed a jury instruction that purported to include all the essential elements of the offense but, like the trial court’s instruction he challenges on appeal, failed to include a mens rea element. We reverse and remand.

BACKGROUND

¶ 2 “We recite the facts from the record ... in the light most favorable to the jury's verdict.” State v. Casey, 2003 UT 33, ¶ 2, 82 P.3d 1106 (quotation omitted).

¶ 3 In May 2000, Geukgeuzian was charged with tampering with a witness in violation of Utah Code section 76-8-508(1), and with making a false written statement in violation of Utah Code section 76-8-504(2). During his trial, Geukgeuzian proposed a jury instruction that recited almost verbatim the elements listed in the witness tampering statute. His proposed instruction concluded with the following:

If you find the evidence has failed to prove any one or more of these essential elements to your satisfaction beyond a reasonable doubt, then it would be your duty to find the defendant not guilty of TAMPERING WITH A WITNESS, a Third Degree Felony, as charged in the Information. On the other hand, if you find from the evidence received during the trial that the State has proven each and every one of those essential elements beyond a reasonable doubt, it would be your duty to find the defendant guilty of the offense of TAMPERING WITH A WITNESS, a Third Degree Felony.

¶ 4 The State proposed an instruction that also tracked the statutory elements of tampering with a witness. Neither set of proposed instructions contained direct reference to a separate culpable mental state apart from the language of the statute requiring that a defendant act “believing that an official proceeding or investigation is pending or about to be instituted.” See Utah Code Ann. § 76-8-508(1). Relying on the proposed instructions submitted by both parties, the trial court gave a jury instruction very similar to that proposed by both Geukgeuzian and the State with no separate mens rea requirement. Geukgeuzian entered no objection to the court’s instruction and was subsequently found guilty of tampering with a witness. He moved for a judgment notwithstanding the verdict, which the trial court denied.

¶ 5 Geukgeuzian appealed his conviction, arguing that the trial court erred by failing to include in its jury instructions the mens rea needed to establish that a defendant tampered with a witness. The court of appeals agreed, reasoning that because the witness tampering statute specifies no mens rea for the attempt or inducement element, the trial court was required to include in its instruction the requirement that Geuk-geuzian must have acted with intent, knowledge, or recklessness as specified in Utah

Code section 76-2-102. The court of appeals rejected the State’s contention that Geukgeuzian invited the error by omitting the challenged element in his own proposed instructions. The court cited to its prior decision in State v. Chaney, 1999 UT App 309, ¶ 53, 989 P.2d 1091, and reasoned that, unlike in Chaney, the State had failed to show that “[Geukgeuzianj’s conduct actually led the trial court into its erroneous action.”

¶ 6 The State appeals the court of appeals’ decision, arguing that Geukgeuzian’s failure to include a mens rea element in his proposed jury instruction was invited error. This court has jurisdiction pursuant to Utah Code section 78-2-2(3)(a) (2002).

STANDARD OF REVIEW

¶7 “On certiorari, we review the court of appeals’ decision for correctness, giving its conclusions of law no deference.” State v. Casey, 2003 UT 33, ¶ 10, 82 P.3d 1106 (citing State v. James, 2000 UT 80, ¶ 8, 13 P.3d 576) (further citation omitted).

ANALYSIS

¶ 8 The State argues that the court of appeals erred in reversing Geukgeuzian’s conviction because he invited the error by proposing a jury instruction that contained the same error as the instruction he attacks on appeal. Geukgeuzian counters that to constitute invited error, a defendant must have engaged in a conscious and affirmative act that led the trial court to commit the instructional error. He asserts that because his proposed jury instruction simply provided an accurate recitation of the statutory elements, his failure to include a culpable mental state was an inadvertent omission, not invited error.

¶ 9 While a party who fails to object to or give an instruction may have an instruction assigned as error under the manifest injustice exception, Utah R.Crim. P. 19(e), “a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error,” State v. Anderson, 929 P.2d 1107, 1109 (Utah 1996) (quoting State v. Dunn, 850 P.2d 1201, 1220 (Utah 1993)) (internal quotation omitted). Accordingly, a jury instruction may not be assigned as error even if such instruction constitutes manifest injustice “if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction.” State v. Hamilton, 2003 UT 22, ¶54, 70 P.3d 111.

¶ 10 We have recognized a number of ways in which a defendant has led a trial court into committing error. In Hamilton, for instance, a defendant invited error where his counsel confirmed on the record that the defense had no objection to the instructions given by the trial court. Id. at ¶ 55. In Anderson, a defendant likewise invited error when he failed to object to an instruction when specifically queried by the court. 929 P.2d at 1108-09. Finally, in State v. Medina, a defendant invited error when his counsel actively represented to the trial court that she had read the instruction and had no objection to it. 738 P.2d 1021, 1023 (Utah 1987).

¶ 11 The court of appeals has also addressed situations in which a defendant affirmatively endorsed an instruction before the court. For example, in State v. Chaney, a defendant invited error when he objected to the trial court’s use of a correct jury instruction and later challenged the substituted erroneous jury instruction on appeal. 1999 UT App 309, ¶ 55, 989 P.2d 1091. And in State v. Perdue, a defendant invited error when he challenged an instruction that he had submitted to the trial court. 813 P.2d 1201, 1206 (Utah Ct.App.1991).

¶ 12 While the invited error doctrine is crafted to “ ‘discourage[ ] parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal,’ ” it is also intended to give the trial court the first opportunity to address the claim of error. Hamilton, 2003 UT 22 at ¶ 54, 70 P.3d 111 (quoting Anderson, 929 P.2d at 1109) (further citation omitted). We acknowledge that Geukgeuzian’s failure to include a separate mens rea element in his proposed instruction was most likely inadvertent and not a conscious attempt to mislead the trial court. Nevertheless, we believe that, like those cases discussed above, his proposed jury instruction effectively led the trial court into adopting the erroneous jury instruction that he now challenges on appeal. Contrary to his assertions before this court, Geukgeuzian did not simply omit a mens rea element; rather, he affirmatively purported to list all “essential elements” needed to prove that an individual tampered with a witness. Accordingly, we find that Geukgeu-zian invited the trial court’s erroneous jury instruction and reverse the court of appeals’ decision below.

¶ 13 We note that Geukgeuzian raised an ineffective assistance of counsel claim on appeal, which the court of appeals found unnecessary to reach in light of its reversal of his conviction. Because we did not grant certio-rari and neither party has briefed this issue, we remand for further consideration of whether Geukgeuzian received ineffective assistance of counsel.

CONCLUSION

¶ 14 Because Geukgeuzian purported to include in his proposed jury instruction all the necessary elements needed to prove that a defendant tampered with a witness but omitted a separate mens rea element, we hold that he led the trial court into its omission of a separate culpable mental state in its jury instruction. Therefore, his conviction may not be reversed even if the trial court’s instruction resulted in manifest injustice. We reverse and remand for further consideration consistent with this opinion.

¶ 15 Chief Justice DURHAM, Justice WILKINS, Justice PARRISH, and Justice NEHRING concur in Associate Chief Justice DURRANT’s opinion.

      . Section 76-8-508(1) provides as follows:
      (1) A person is guilty of a third degree felony if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a person to:
      (a) testify or inform falsely;
      (b) withhold any testimony, information, document, [or] item;
      (c) elude legal process summoning him to provide evidence; or
      (d) absent himself from any proceeding or investigation to which he has been summoned.
      Utah Code Ann. § 76-8-508(1) (1999).

      . The instruction given to the jury was as follows:
      Before you can convict defendant, Stephen Lamar Geukgeuzian, of TAMPERING WITH A WITNESS, as charged in Count 1 of the Information, you must find from the evidence beyond a reasonable doubt, all of the following elements of the crime:
      1. That on or about May 15, 2000, in Davis County, State of Utah[;]
      2. The Defendant Stephen Lamar Geukgeu-zian, believing that an official proceeding or investigation is pending or about to be instituted;
      3. Attempted to induce or other [sic] cause a person to:
      (a) Testify or inform falsely; or
      (b) Withhold any testimony, information, document, or item.
      If, after careful consideration of all the evidence in this case, you are convinced of the truth of each and every one of the foregoing elements beyond a reasonable doubt, then you must find the defendant, Stephen Lamar Geuk-geuzian, guilty of TAMPERING WITH A WITNESS, as charged in Count 1 of the Information.
      If, on the other hand, after careful consideration of all of the evidence in this case, you are not convinced of each and every one of the foregoing elements beyond a reasonable doubt, then you must find the defendant, Stephen Lamar Geukgeuzian, not guilty of TAMPERING WITH A WITNESS, as charged in Count 1 of the Information.

      . Section 76-2-102 provides that "[ejveiy offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state and the offense does not involve strict liability, intent, knowledge or recklessness shall suffice to establish criminal responsibility.” Utah Code Ann. § 76-2-102 (1999).

      . The court of appeals determined that the trial court's failure to include a separate culpable mental state apart from the language in the witness tampering statute resulted in manifest injustice as a matter of law and reversed Geukgeuzi-an’s conviction. State v. Geukgeuzian, 2002 UT App 130, ¶ 9, 54 P.3d 640. Because we denied certiorari on this issue, we express no opinion as to whether the court of appeals was correct in requiring a separate mens rea element. We consider only whether the court of appeals' reversal of Geukgeuzian's conviction under the manifest injustice exception is precluded by his invited error.


author: GREENWOOD, Judge:

text:
    2004 UT App 39
    STATE of Utah, in the interest of A.H., S.H., and A.H., persons under eighteen years of age. T.H., Appellant, v. State of Utah, Appellee.
    No. 20030160-CA.
    Court of Appeals of Utah.
    Feb. 20, 2004.

      Philip J. Danielson and Jose Silva, Provo, for Appellant.
    Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before BILLINGS, P.J., BENCH, Associate P.J., and GREENWOOD, J.
   OPINION

GREENWOOD, Judge:

¶ 1 T.H., an out-of-state, non-custodial father of three children, appeals the juvenile court’s order terminating his parental rights. T.H. argues that this court should reverse the juvenile court’s termination order because (1) the Division of Child and Family Services (DCFS) failed to serve him with notice of earlier proceedings involving the children’s removal from their mother’s home and subsequent custody arrangements; and (2) the juvenile court’s conclusion that he abandoned his children was not sufficiently supported by the court’s findings of fact. We reverse.

BACKGROUND

¶ 2 T.H. is the natural father of three girls: A.H., born January 30, 1998, and S.H. and A.H., twins born February 22, 1999. In April 2000, T.H. and S.W., the children’s mother, separated. T.H. moved out of the home and a few months later moved to the Las Vegas, Nevada area. T.H. next saw his children in December 2000, when he and his father visited Utah for Christmas. In February 2001, the Utah Office of Recovery Services (ORS) opened a child support ease involving T.H. A notice of the ORS hearing was served on T.H.’s brother at T.H.’s mother’s address in Nevada. Without any response from T.H., an order to pay child support was issued in April 2001. This order was mailed to T.H.’s mother’s address.

¶ 3 On April 8, 2001, DCFS removed the three children from their home after their mother, S.W., attempted suicide. A shelter hearing was held on April 16, 2001. The court concluded that the children were neglected by their mother and ordered them into the custody of DCFS, which placed them with their maternal grandmother. It is uncontested that at this time, T.H. was neither informed of the children’s removal, nor was he served with notice of the shelter hearing. In late April or early May 2001, the children traveled to Nevada and stayed for about two weeks with their maternal great-aunt, who knew they were in the custody of DCFS. During this time, T.H. visited the children regularly and allegedly discussed their welfare with the great-aunt.

¶ 4 According to trial testimony, during May and June of 2001, a DCFS worker tried approximately five times to contact T.H. by telephone in Nevada to discuss his children. The worker was unsuccessful in reaching anyone at this number and was unable to leave messages. By this time, according to testimony by a DCFS caseworker, T.H. had learned from the children’s mother as well as their maternal grandmother that the children had been taken from S.W.’s home and were in the custody of DCFS. On July 18, 2001, A.H., the oldest girl, was placed in the home of her half-brother’s mother and father, A.C. and R.C. A.C. testified that in August, she contacted T.H. and told him A.H. was living with her. She testified that she told T.H. how he could contact her as well as the DCFS caseworker. She also testified that she called T.H. numerous times to tell him about a review hearing scheduled for August 28, 2001, and offered to drive to Nevada and bring him back to Utah for the hearing. T.H. declined the offer and did not attend the hearing. T.H. was not served by DCFS with notice of the August review hearing. After the hearing, T.H. reportedly learned that the juvenile court had transferred custody of the twins to foster parents and that A.H. remained with A.C.

¶ 5 A new DCFS caseworker testified that in October 2001, she attempted four times in one week to contact T.H. by telephone. Each time the caseworker spoke with a woman who said that T.H. lived there but was not home. Each time, the caseworker left her phone number and messages that the children were in DCFS custody and that she needed to speak with T.H. It was never confirmed whether T.H. actually received the messages or knew of the phone calls.

¶ 6 The children’s maternal great-aunt testified that in December 2001, she told T.H. of a permanency hearing scheduled for January 30, 2002. DCFS again failed to serve T.H. with notice of the permanency hearing. Rather than attending the hearing, T.H. sent his father on his behalf. At this hearing, the court ordered that the children remain in the custody of DCFS and terminated reunification services for the mother. No action was taken regarding T.H.

¶ 7 In March 2002, DCFS filed a petition for the termination of both S.W. and T.H.’s parental rights. Once again, the petition was not served on T.H., and he was not given notice of the pre-trial hearing scheduled for March 16, 2002. After learning of the petition and hearing from relatives, T.H. voluntarily came to Utah and appeared at the pretrial hearing. At the hearing, T.H. was personally served by DCFS with a copy of the petition and was given notice of the trial date. A trial was held in May 2002, resulting in an order terminating the parental rights of both T.H. and S.W. The termination order as it relates to T.H. was later set aside and a new trial granted. A second trial was held on November 7 and 27, 2002. T.H. attended the trial and was represented by counsel. On January 17, 2003, the juvenile court issued findings of fact and conclusions of law terminating the parental rights of T.H. on two grounds: abandonment and making only token efforts to support, communicate, prevent neglect and/or to avoid being unfit. T.H. appeals that termination order.

ISSUE AND STANDARD OF REVIEW

¶ 8 T.H. argues that the juvenile court improperly terminated his parental rights because he did not receive notice, as required by law, of earlier proceedings involving his children’s removal from then-mother and subsequent custody by the State. ‘Whether a parent has been afforded adequate due process is a question of law, reviewed for correctness.” In re J.B., 2002 UT App 268,¶ 7, 53 P.3d 968.

ANALYSIS

I. Father’s Notice of Prior Proceedings

¶ 9 T.H. argues that the juvenile court’s termination of his parental rights should be set aside because DCFS failed to serve him with notice of various proceedings related to the removal of his children from the mother’s home.

A. Parental Due Process

¶ 10 It is widely recognized that “[a] parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child.” In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (quotations and citation omitted); see also Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978) (recognizing the relationship between parent and child as constitutionally protected). This “freedom of personal choice in matters of ... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Quilloin, 434 U.S. at 255, 98 S.Ct. at 555 (alteration in original) (quotations and citation omitted); see also In re S.A., 2001 UT App 307,¶ 12, 37 P.3d 1166 (recognizing parents’ interest in the care, custody, and' control of their children as a fundamental liberty interest protected by the Fourteenth Amendment). Therefore, we must ensure that “ ‘the custody, care and nurture of the child reside first in the parents.’ ” In re J.P., 648 P.2d at 1372 (quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944)).

¶ 11 The United States Constitution guarantees that this parental liberty interest cannot be disturbed without due process of law. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626-27, 67 L.Ed. 1042 (1923). Thus, “[pjarties to a judicial proceeding are entitled to notice ‘that a particular issue is being considered by a court’ and must be given ‘an opportunity to present evidence and argument on that issue before decision.’ ” In re K.M., 965 P.2d 576, 579 (Utah Ct.App.1998) (citation omitted). Sufficient notice will “advise the parties of the specific issues which they must prepare to meet.” Id. Parties are deprived of due process when they are not properly informed of the nature of a proceeding, or notice is not given sufficiently in advance to allow preparation. See id.

¶ 12 Judicial and administrative proceedings following the State’s removal of children from their home are no exception to this fundamental principle. Utah law governing the removal of children, their placement, and the adjudication of parental rights includes clear requirements that the State serve the necessary parties, including noncustodial parents, with notice of the proceedings, and provide them with an opportunity to appear and assert their interests. Utah Code Annotated section 62A-4a-202.2(l) (Supp.2002) specifically requires DCFS, after taking a child into protective custody, to “immediately use reasonable efforts to locate and inform, through the most efficient means available, the parents, including a noncustodial parent,” (i) that the child has been removed, (ii) of the reasons for the removal, (iii) by providing a written statement explaining their procedural rights throughout the process, and (iv) by including a telephone number where they may access further information. The State is also required to give similar notice to both parents prior to shelter hearings, see id. § 78-3a-306(2) (2002), adjudication hearings, see id. § 78-3a-309 (2002), and any other proceeding related to the children’s welfare. See id. § 78-3a-314 (2002).

B. Service of Noncustodial Parent Under Rule 4 of the Utah Rules of Civil Procedure

¶ 13 In addition to the clear statutory requirements, T.H. argues that DCFS was bound by, but failed to follow, the notice requirements outlined in rule 4 of the Utah Rules of Civil Procedure. We agree.

¶ 14 Utah Code Annotated section 78-3a-304.5 (2002) states that the Utah Rules of Civil Procedure and the Utah Rules of Juvenile Procedure apply to “abuse, neglect, and dependency proceedings.” See also id. § 78-3a-406(3) (2002) (applying rules of civil procedure to parental termination proceedings). The Utah Rules of Juvenile Procedure governing petitions in neglect, abuse, dependency, and termination proceedings likewise incorporate the service requirements of rule 4 of the Utah Rules of Civil Procedure. See Utah R. Juv. P. 18(b)(1).

¶ 15 Neither DCFS nor the Guardian ad Litem (Guardian) disputes the fact that T.H. was not formally served under rule 4 with the original removal petition or with notice of any of the later proceedings. In fact, the Guardian acknowledged that DCFS should have filed a motion and affidavit asking the court to allow alternative service on T.H. after they were unable to reach him by other means. It is unclear from the record and the briefs why DCFS chose not to pursue the option of alternative service.

¶ 16 Rule 4(c)(1) of the Utah Rules of Civil Procedure requires the summons “to be directed to the defendant.” In the earlier removal and dependency proceedings, S.W., the mother, was the “opposing party” and focus of the removal petition. However, because of the nature of dependency proceedings and the statutory requirement of notifying other potentially interested parties, S.W. was not the only person entitled to service and notice under rule 4. Under Utah law, both parents, whether custodial or noncustodial, must be notified when them children are removed from their home and taken into custody by DCFS. See Utah Code Ann. §§ 62A-4a-202.2(l); see also 78-3a-306 to - 310 (2002). This requirement is consistent with the constitutionally-based due process rights of parents. Therefore, we hold that even though T.H. was not the target of the original removal petition, as a noncustodial parent, he was entitled to service under rule 4(d) as if he were an opposing party. DCFS should have followed the process of personally serving T.H. with notice, and if unable to locate T.H. after a reasonable and efficient search, DCFS should have sought the court’s permission for alternative service. See Utah R. Civ. P. 4(d) (discussing method of service).

C. Termination of Parental Rights

¶ 17 DCFS argues, however, that while T.H. was not personally served with notice of the removal and subsequent proceedings, it was only obligated under the statute to “use reasonable efforts to locate and inform” T.H. Utah Code Ann. § 62A-4a-202.2(l) (Supp. 2002). We note, however, that there were no findings by the juvenile court, either in the earlier proceedings or in the termination proceeding, that DCFS had used reasonable efforts to locate T.H. By not formally serving T.H. with notice of the multiple juvenile court proceedings involving his children’s custody, DCFS deprived him of his fundamental right to be involved in his children’s custody and care. See In re J.P., 648 P.2d 1364, 1372 (Utah 1982). The purposes of locating and notifying noncustodial parents are to inform them of the removal of the children, to provide them with information about whom to contact regarding the children, and most importantly, to give them an opportunity to appear before the juvenile court and assert them own parental rights. See Utah Code Ann. § 78-3a-306 (2002).

¶ 18 DCFS and the Guardian also argue that T.H. had actual notice of the removal and judicial proceedings and chose not to attend and assert his parental rights. They point to evidence that T.H. was told of certain hearings by S.W. and her family, as well as by others. Further, they refer to messages purportedly left at T.H.’s home by the DCFS caseworker. However, the record is unclear about the precise content and reliability of the communications between T.H. and S.W. and her family. Similarly, it is unclear if any of these communications included the information required by section 62A-4a-202.2(l). It is clear, however, that whatever information T.H. did receive was insufficient to inform him of what was actually occurring with his children, and to explain his rights as their father.

¶ 19 In addition, there is no evidence in the record that the messages left by the DCFS caseworker were ever relayed to T.H. It is troubling that while the caseworker repeatedly called and left messages at what she believed to be T.H.’s home, there is nothing in the record to indicate she made any effort to locate an address where proper notice could be served or mailed. It is likewise troubling that while ORS had an address for T.H.’s mother in Nevada, and had served a notice of child support at that address, DCFS apparently made no effort to contact ORS and obtain that information. See In re J.M., 940 P.2d 527, 538-39 (Utah Ct. App.1997) (Davis, J., dissenting) (criticizing the failure of DCFS and ORS to communicate about the location of a noncustodial father). Sporadic contact by family members, and a few phone calls by DCFS do not constitute sufficient notice under the law. “[Wjhere notice is ambiguous or inadequate to inform a party of the nature of the proceedings against him or not given sufficiently in advance of the proceeding to permit preparation, a party is deprived of due process.” In re K.M., 965 P.2d 576, 579 (Utah Ct.App.1998) (alteration in original) (quotations and citations omitted). Finally, any actual notice of the juvenile court proceedings received by T.H. does not excuse DCFS from its obligation to provide formal notice, nor does it vitiate the effect of the lack of formal notification.

¶ 20 We can only speculate about what T.H. would have done if he had received proper notice at or close to the time his children were removed from their mother. There should not be, however, any question that when children are removed from the home of one parent, the first and most focused effort by DCFS should be to locate and formally notify the noncustodial parent. This initial notice to the other natural parent is important because at the shelter hearing, the juvenile court “shall first determine whether there is another natural parent ... with whom the child was not residing” and if that parent requests custody, “the court shall place the minor with that parent unless it finds that the placement would be unsafe or otherwise detrimental to the child.” Utah Code Ann. § 78-3a-307(l) (emphasis added).

¶ 21 The failure of DCFS to properly notify noncustodial parents of a removal deprives them of their right to appear before the juvenile court early in the process and to protect their interests throughout. In this ease, T.H.’s parental rights were significantly affected by the State’s lack of notice. After ordering the children removed from the mother’s home, the juvenile court (1) held a shelter hearing and initially placed the children in the custody of their maternal grandmother; (2) continued to make temporary custody determinations throughout the proceedings; (3) made decisions regarding visitation with the children; (4) ordered placement of the children with foster parents; and (5) held multiple review hearings regarding the status of the children. All of these significant decisions were made by the juvenile court without hearing from the children’s natural father. T.H. was thus deprived of the opportunity to fully participate in these proceedings.

¶ 22 The failure of DCFS to formally serve and inform T.H. about the earlier proceedings had a direct effect on the later termination of his parental rights. The juvenile court’s findings supporting its conclusions that T.H. abandoned his children and made only token efforts, all relate to the time period after the children were placed into DCFS custody. By restricting the findings to the time period after removal, the juvenile court examined only the contact and involvement by T.H. over a few months, during all of which, the children were in foster care or with other relatives. The failure by DCFS to properly serve T.H. with notice of the removal and to inform him of the many proceedings during this same time period, deprived T.H. of the opportunity to take steps and assert his parental rights.

¶ 23 DCFS contends that failure to properly serve T.H. in the earlier juvenile court proceedings was basically cured, because T.H. was given the opportunity to assert his parental rights and appear before the juvenile court, after he was properly served with the termination petition and notice of trial. We reject this argument because by the time T.H. was served with the termination petition, the basis for seeking a termination had already occurred during the time period between removal of the children and filing of the termination petition. We hold that due to the failure of DCFS to inform T.H. of the neglect proceedings involving his children, he was not given a meaningful opportunity to demonstrate interest in his children and assume parental responsibility for them. This is a violation of T.H.’s due process rights. See In re J.P., 648 P.2d 1364, 1372 (Utah 1982). Therefore, we reverse the juvenile court’s order terminating the parental rights of T.H.

CONCLUSION

¶ 24 Due to a lack of proper notice by DCFS, T.H. was involuntarily excluded as a potential custodian for his children after they were removed from their mother. T.H. was deprived of his constitutional right to due process, affecting his ability to sustain a relationship with his children. Further, DCFS was required to comply with rule 4 of the Utah Rules of Civil Procedure in effecting service on T.H., but did not do so. The juvenile court erred in basing its findings of abandonment and token efforts on the time period where T.H. was procedurally excluded from his children. Accordingly, we reverse.

¶ 25 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and RUSSELL W. BENCH, Associate Presiding Judge.

      . This case involves detailed facts and dates. "Because the termination of parental rights is fact sensitive, we review the facts of the controversy in detail.” In re M.L., 965 P.2d 551, 553 n. 1 (Utah Cl.App.1998) (quotations and citations omitted).

      . T.H. also challenges the juvenile court's findings and conclusion that he abandoned his children. Because of this court's disposition of the due process issue, it is unnecessary for us to review the sufficiency of the juvenile court’s findings and conclusion.

      . Rule 4 of the Utah Rules of Civil Procedure first requires personal service of the summons and complaint on the opposing party. See Utah R.Civ. P. 4(d)(1). Where the identity of the party being served is unknown and cannot be ascertained through reasonable diligence, the party seeking service may file a motion and affidavit for an order allowing alternative service by publication or other means established by the court. Utah R. Civ. P. 4(d)(4)(A)-(C); see also Bonneville Billing v. Whatley, 949 P.2d 768, 772-73 (Utah Ct.App.1997).

      . We further note that DCFS failed to use various available options to locate T.H. For example, when reasonable efforts to locate the noncustodial parent have failed, Utah law requires DCFS to "search for the noncustodial parent through the national parent locator database.” Utah Code Ann. § 62A-4a-202.2 (Supp.2002). There is no evidence in the record that DCFS searched for T.H. using this database. Next, the record reflects that DCFS was in frequent contact with S.W., her family, and foster parents who all knew T.H.'s location. Yet, other than a few phone calls by DCFS caseworkers, there were no other efforts made to locate T.H. in Nevada. Finally, as previously noted, DCFS chose not to ask the juvenile court if T.H. could be served by publication or other alternative means. See Utah R. Civ. P. 4(d)(4)(B).

      . This court recognizes that the juvenile code requires DCFS to "immediately use reasonable efforts to locate and inform, through the most efficient means available, the parents, including a noncustodial parent." Utah Code Ann. § 62A-4a-202.2(l) (Supp.2002). Our opinion does not supplant this requirement for immediate, practicality-based efforts to contact a parent, given the short and strict timeliness in child welfare cases. In fact, we hope and believe that emphasis is given in shelter hearings and subsequent proceedings to probe efforts made to contact noncustodial parents. These laudable efforts, however, do not negate or replace the obligation to comply with rule 4 of the Utah Rules of Civil Procedure, during the days, weeks, and months following removal of children from their homes.

      . DCFS and the Guardian argue that the failure to formally serve T.H. resulted only in the juvenile court's lack of personal jurisdiction over him and therefore prevented the court from entering any orders affecting T.H. DCFS further contends that since the court did not take any action against T.H. at the prior proceedings, his parental rights were not adversely affected. DCFS and the Guardian overlook the purpose of giving notice to a noncustodial parent. The statutory requirement of notifying people other than the custodial parent is not just to obtain personal jurisdiction by the court over those individuals, but also to notify them of the proceedings and afford them the opportunity to appear voluntarily and participate. See Utah Code Ann. § 78-3a-306 (2002).

      . For example, Finding of Fact number 10 states: "[T-H.] has abandoned the children. He has had virtually no contact with the children since they were removed from the custody of the mother."

      . We are keenly aware of the consequences of reversing the juvenile court’s order of termination. However, we cannot condone or ignore the failure of DCFS to comply with notice requirements, and the potential derogation of parental rights. We only hope that T.H. takes this opportunity to become a meaningful part of his children's lives or allow other willing and loving persons to assume that role.


author: BENCH, Associate Presiding Judge:

text:
    2004 UT App 35
    Leon E. PAULOS, an individual; and Leon E. Paulos, as personal representative and surviving spouse of Sally Paulos, deceased, Plaintiffs and Appellants, v. COVENANT TRANSPORT, INC., a Nevada corporation, Defendant and Appellee.
    No. 20020807-CA.
    Court of Appeals of Utah.
    Feb. 20, 2004.

      Robert S. Campbell, John A. Snow, and Mary E. Westby, Van Cott Bagley Cornwall & McCarthy, Salt Lake City, for Appellants.
    Lynn S. Davies and H. Dennis Piercey, Salt Lake City, for Appellee.
    Before BENCH, Associate P.J., DAVIS and JACKSON, JJ.
   OPINION

BENCH, Associate Presiding Judge:

¶ 1 This is an appeal from a jury verdict finding Covenant Transport (Covenant) not negligent after a trial for personal injuries and wrongful death resulting from a motor vehicle accident. We affirm.

BACKGROUND

¶2 On July 24, 1999, Dr. Leon Paulos (Paulos) and his wife, Sally, were traveling north along state road sixteen (S.R.16) on Paulos’s motorcycle. They had just passed through Randolph, Utah and were following a dark-colored, unidentified car. Dr. Roy Traywick and Natalie Higginson, Sally’s daughter, followed behind the motorcycle in another car. Some three miles north of the Paulos party, Scott Travis (Travis) drove a Covenant semi-truck in the opposite direction. Cooper Strength and Nicole Strength were passengers in the semi, training to be truck drivers. Cooper was in the passenger side of the semi’s cab and Nicole was in the semi’s sleeper. Traveling behind the semi was a Toyota 4-Runner SUV (the Mucha vehicle), driven by eighteen-year-old Marianne Mucha (Mucha).

¶ 3 S.R. 16 is a rural, two-lane road approximately twenty-six feet wide. Upon reaching a flat area of S.R. 16, about one-half mile north of the point of the accident, the Mucha vehicle began to overtake the Covenant semi. Mucha entered the northbound lane of traffic to see if it was clear to pass. She saw a “speck of a car on the horizon” traveling north. Mucha asked the passengers in the car, “do you think we can make it?’.’ and received no response. Mucha then commenced her pass of the Covenant semi. There is conflicting evidence as to how quickly and how far the Mucha vehicle progressed in the pass before the accident occurred. There is also conflicting evidence as to how long the Mucha vehicle remained in the northbound lane, but it did remain there, neither completing the pass nor resuming its position behind the Covenant semi.

¶ 4 In the meantime, the dark-colored, unidentified ear approached in the northbound lane. The unidentified car swerved to the right around the Mucha vehicle. Then, for the first time, Mucha saw the Paulos motorcycle. Mucha attempted to leave the road by moving to her left. Paulos hit the brakes on his motorcycle and veered to his right, but Mucha was blocking that path. Paulos then attempted to go left, but it was too late. The Mucha vehicle struck Paulos and Sally with its right front corner, propelling both of them into the air. A Life Flight helicopter transported them to Salt Lake City where Sally died shortly thereafter and Paulos remained in intensive care for the severe injuries he sustained.

¶ 5 Paulos subsequently filed a complaint against Covenant, Mucha, and the owners of the Mucha vehicle — Richard and Sylvia Mu-cha — for negligence causing his injuries and the death of Sally. One year' later, Paulos entered into a settlement agreement with the Muchas on behalf of Sally’s estate and himself, reserving his right to pursue claims against Covenant.

¶ 6 The case went to trial against Covenant. At the end of trial, the jury answered question one on the special verdict form, finding that Covenant was not negligent. In accordance with instructions, the jury did not reach the other questions on the verdict form relating to proximate cause, comparative negligence, contributory negligence, and damages. Paulos’s motions for judgment notwithstanding the verdict and new trial were denied by the trial court. Paulos appealed to the Utah Supreme Court, which then transferred the appeal to this court pursuant to Utah Code Annotated section § 78-2-2(4) (2002).

ISSUES AND STANDARDS OF REVIEW

¶ 7 Paulos claims that the trial court committed reversible error in several ways. Each issue by itself, Paulos submits, constitutes reversible error; additionally, the multiple errors, taken together, constitute cumulative error requiring reversal. See Whitehead v. American Motors Sales Corp., 801 P.2d 920, 928 (Utah 1990) (finding the cumulative effect of several errors undermined the court’s confidence that a fair trial was had).

¶ 8 First, Paulos asserts that the trial court should have admitted the American Trucking Association’s Safety Guidelines Handbook into evidence as an exhibit and allowed the jury to use it in its deliberations. “ ‘The admissibility of an item of evidence is a legal question.’ ” Gorostieta v. Parkinson, 2000 UT 99,¶ 14, 17 P.3d 1110 (citation omitted). “However, the trial court has a great deal of discretion in determining whether to admit or exclude evidence, and its ruling will not be overturned unless there is an abuse of discretion.” Id.

¶ 9 Second, Paulos maintains that the trial court erred by allowing Cooper Strength to provide an elapsed time estimate of the accident. “In reviewing questions of admissibility of evidence at trial, deference is given to the trial court’s advantageous position.” Whitehead, 801 P.2d at 923.

¶ 10 Next, Paulos contends that the trial court inappropriately instructed the jury. “A trial court’s ruling concerning a jury instruction is reviewed for correctness.” Butler v. Naylor, 1999 UT 85,¶ 10, 987 P.2d 41. However, “[a] new trial will not be granted unless any error of the trial court was prejudicial, meaning that it misadvised or misled the jury on the law.” Id. Jury instructions are examined in their entirety, thus we “ ‘will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.’ ” Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77,¶ 38, 31 P.3d 557. Moreover, “to assert that the trial court erred in either giving or failing to give an instruction, a party must first submit correct instructions and then, should the court fail to give them, timely except.” Newsom v. Gold Cross Serv., Inc., 779 P.2d 692, 694 (Utah Ct.App.1989). Paulos also argues that the caption on the special verdict form was inaccurate. “ We have held repeatedly that on appeal, a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.’ ” Cheves v. Williams, 1999 UT 86,¶ 20, 993 P.2d 191 (citation omitted).

¶ 11 Finally, Paulos reasons that the trial court prejudicially erred by submitting the issue of Paulos’s contributory negligence to the jury because there was no evidence of contributory negligence. “All parties are entitled to have their theories of the case submitted to the jury in the court’s instructions, provided there is competent evidence to support them.” Newsom, 779 P.2d at 694.

ANALYSIS

I. The American Trucking Association Handbook

¶ 12 A substantial issue at trial was the standard of care required of Covenant’s driver, Travis. Paulos’s expert testified that Travis should have reduced his speed and moved to the right as far as possible to assist Mucha in completing the pass. In support of that position, Paulos offered a truck driver’s handbook from the American Trucking Association (the ATA handbook). Both sides acknowledged that the ATA handbook set forth an accepted standard of care as to what a semi-truck driver should do when being overtaken. Paulos argued that the ATA handbook was not a learned treatise, but rather was admissible as a safety manual containing the standard of conduct for semi-truck drivers. Covenant objected to its admissibility on the basis of relevancy, and alternatively urged that the ATA handbook should be treated as a learned treatise pursuant to rule 803(18) of the Utah Rules of Evidence. The trial court overruled Covenant’s relevancy objection, but agreed that the information from the handbook was admissible under rule 803(18). Therefore, the court allowed Paulos’s expert to read from the ATA handbook, as well as to display the relevant portions to the jury. Because it was admitted under rule 803(18), the court did not receive the ATA handbook as an exhibit to be used by the jury in its deliberations.

¶ 13 Utah Rule of Evidence 803(18) contains the hearsay exception for learned treatises:

The following are not excluded by the hearsay rule ...:
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may he read into evidence but may not be received as exhibits.

Utah R. Evid. 803(18) (emphasis added).

¶ 14 As explained by the Utah Supreme Court in Butler v. Naylor, 1999 UT 85, 987 P.2d 41, “[t]he rule prohibits the admission of published treatises as exhibits.” Id. at ¶ 14. Paulos relies on Butler for the proposition that the ATA handbook is not a learned treatise because it is not “on a subject of history, medicine, or other science or art.” Utah R. Evid. 803(18). Covenant relies on Butler for the proposition that, as a learned treatise, the ATA handbook “may not be received as [an] exhibit[ ].” Id.

¶ 15 Butler cites rule 803(18), which arguably limits its application to subjects of “history, medicine, or other science or art.” Utah R. Evid. 803(18). The rule, however, can be interpreted to include .the ATA handbook. Because this rule is identical to the federal rule, federal cases are instructive. See LeVanger v. Highland Estates Props. Owners Ass’n, 2003 UT App 377,¶ 17, 80 P.3d 569. In Johnson v. William C. Ellis & Sons Iron Works, Inc., 609 F.2d 820 (5th Cir.1980), the court applied the federal learned treatise exception to a number of safety publications. “We have held that safety codes and standards are admissible when they are prepared by organizations formed for the chief purpose of promoting safety because they are inherently trustworthy and because of the expense and difficulty involved in assembling at trial those who have compiled such codes.” Id. at 822; see also Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1229 (5th Cir.1984) (“[SJafety codes have traditionally been treated as coming within the learned treatise exception provided by Rule 803(18).”). In Johnson, the trial court refused to allow a number of safety codes and handbooks into evidence because it was relying on state case law from Mississippi, rather than federal law. The state case on point, Catholic Diocese v. Jaquith, 224 So.2d 216 (Miss.1969), “held that governmental safety codes and regulations [were] admissible in evidence only when they have been given compulsory force by the state legislature, and that only treatises dealing with the ‘exact sciences’ may be admitted.” Johnson, 609 F.2d at 822. The Johnson court, however, applied federal law and held that the information from the publications was covered by rule 803(18). Id. at 823.

¶ 16 Although no Utah case explicitly extends rule 803(18) to include nongovernmental safety codes or nonscientifíc safety codes, the ATA handbook is of the same nature as the other materials explicitly mentioned in the learned treatise exception. We therefore believe that the ATA handbook was properly admitted under the learned treatise exception. Pursuant to the dictates of Butler, the trial court properly proscribed its admission as an exhibit and correctly kept it from jury deliberations. See Butler, 1999 UT 85 at ¶ 14, 987 P.2d 41 (“the trial court erred by allowing the page to be admitted into evidence as an exhibit and by allowing it to be taken to the jury room for deliberation”).

¶ 17 Moreover, any error in admitting the ATA handbook under the learned treatise exception was harmless. Paulos submitted that the ATA handbook was admissible as nonhearsay because it provided a standard of care. “There is no doubt that in some jurisdictions safety codes have been excluded as hearsay.... But in others they have been admitted after proper identification by a qualified witness for the purpose alluded to above, i.e., as some evidence of the proper standard of care but not as absolute evidence of such standard.” McComish v. DeSoi, 42 N.J. 274, 200 A.2d 116, 121 (1964). Paulos relies on Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975), in support of his argument that “[e]vidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence.” Id. at 1180. Paulos also cites McComish, a ease mentioned by the Muncie court, to bolster his contention that the ATA handbook should have been admitted as an exhibit and given to the jury. However, McComish itself is a clear example of why any error in this instance is harmless:

Criticism has been leveled in this case not only against the competency of the codes but against the introduction of the documents as well. This secondary problem is one which must be left largely to the discretion of the trial court. Whether the entire code or just the pertinent portion should go to the jury (removed from the document, or copied or photostated), or whether the pertinent portion should simply be read to the jury, must remain in his hands, and an appellate tribunal will not interfere unless abuse of discretion is manifest.

McComish, 200 A.2d at 122 (emphasis added). In the instant case, the trial court exercised its discretion in allowing the pertinent portion of the ATA handbook to be read to the jury, rather than admitting it as an exhibit. The pertinent portion was not only read into evidence and explained by an expert witness, but also displayed to the jury in the form of a poster. Thus, any error in admitting the ATA handbook under rule 803(18) was harmless.

II. Cooper Strength’s Elapsed Time Estimate

¶ 18 Paulos asserts that the trial court erred by allowing Cooper Strength (Strength) to estimate the amount of time that elapsed between the time the Mucha vehicle attempted to pass the Covenant semi and the point of the accident. Counsel for Covenant told Strength to visualize the event, raise his hand when the Mucha vehicle began to make its pass, and give another signal at the time when the collision would have occurred. The time that elapsed between Strength’s hand signals was then measured to be approximately five seconds. Paulos characterizes this as a staged demonstration and claims that, as such, Covenant was required to recreate the actual event with substantial similarity. We disagree with Paulos’s characterization that Strength’s elapsed time estimate was a staged demonstration of the actual event.

¶ 19 A staged demonstration is the “deliberate recreation of an event under staged conditions.” Fusco v. General Motors Corp., 11 F.3d 259, 263 (1st Cir.1993). Where staged demonstrations seem to resemble the actual occurrence of the event depicted, courts fear that “jurors may be misled because they do not fully appreciate how variations in the surrounding conditions, as between the original occurrence and the staged event, can alter the outcome.” Id. at 264. “In such eases the solution of many courts ... has been to call for substantial similarity in conditions, or to stress the great discretion of the trial judge to exclude the evidence where similarity is not shown, or both.” Id. Paulos claims that the trial court erred when it refused to do just that—either require substantial similarity in conditions, or exclude Strength’s elapsed time estimate.

¶ 20 At trial, Strength gave arguably contradictory responses when asked to recall how much time elapsed between the inception of the Mucha pass and the accident. In his first response, he said, “It was like a flash. It was an instant. I mean, it was quick. It wasn’t a lot of time.” When he gave his second response, he explained that it was “not even a minute. I would say less, 30 seconds, 45 seconds. It wasn’t very long.” These responses warranted clarification of the issue and it was perfectly within the trial court’s discretion to allow Strength to explain, in a way meaningful to the jury, his inconsistent statements. See Perkins v. Fit-Well Artificial Limb Co., 30 Utah 2d 151, 514 P.2d 811, 813 (1973) (“The trial judge is allowed a wide discretion in his control over the examination of witnesses—lay and expert alike. Unless he abuses that discretion and prevents the witness from answering a proper question on a material matter, he should not be reversed.”).

¶21 Here, substantial similarity of conditions was not required because Strength’s estimate did not purport to demonstrate the actual occurrence of the event depicted. He was simply asked to visualize the occurrence of the event in his mind and attach an amount of time to that event. “The issue for us is whether the demonstration is sufficiently close in appearance to the original accident to create the risk of misunderstanding by the jury, for it is that risk that gives rise to the special requirement to show similar conditions.” Fusco, 11 F.3d at 264. Strength’s personal visualization of the accident while sitting on the witness stand was hardly “sufficiently close in appearance to the original accident” to “give[] rise to the special requirement to show similar conditions.” Id.

III. Jury Instructions

¶ 22 Paulos claims the trial court committed reversible error in giving instruction number sixteen, which advised the jury of the settlement that was reached between Paulos and the Muchas, because it was a comment on the evidence as well as an incorrect statement of fact and law. Paulos objects to the following language from instruction sixteen:

You may, however, consider the settlement agreement when you weigh the believability of the testimony presented. Since the plaintiff and the Muchas have settled, they are no longer adversary parties in this lawsuit. The plaintiff now has a financial interest in showing that Covenant Transport is entirely to blame for the accident. Also, the Muchas now have no reason to dispute the amount of damages the plaintiff claims.

¶23 In Slusher v. Ospital, 777 P.2d 437 (Utah 1989), the Utah Supreme Court held that, where a settlement agreement is entered into by an injured plaintiff and one or more, but not all, defendants, “the parties must promptly inform the court and the other parties to the action of the existence of the agreement and of its terms.” Id. at 444. Additionally, Slusher held that

[wjhere the action is tried by a jury, the court shall, upon motion of a party, disclose the existence and basic content of the agreement to the jury unless the court finds that, on facts particular to the case, such disclosure will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Id. Instruction sixteen did precisely what Slusher commands. At trial, Paulos claimed that the instruction was erroneous because it did not advise the jury against considering any aspect of the settlement in arriving at its determination of liability. However, the second paragraph of instruction sixteen, unmentioned by Paulos, gives that very limitation:

By settling with the plaintiff, the Muchas did not admit any fault. You must still determine from the evidence which party or parties were negligent, if any, and the percentage of negligence that each contributed in causing the accident. In making that determination of fault, you must not consider the settlement agreement as either an admission of fault (or lack of fault) by the Muchas. Nor should you consider the settlement agreement as an indication of the Muchas’ willingness to deal responsibly with the plaintiff.

¶ 24 As for Paulos’s contention that the last paragraph of instruction sixteen was a comment on the evidence, Slusher held that “the jury should be informed of the changed financial interest of the parties concerned and the realigned positions of the litigants.” Id. Instruction sixteen did that: “Since the plaintiff and the Muchas have settled, they are no longer adversary parties in this lawsuit. The plaintiff now has a financial interest in showing that Covenant Transport is entirely to blame for the accident. Also, the Muchas now have no reason to dispute the amount of damages the plaintiff claims.” Further, footnote nine of Slusher cautioned that the instruction needs to “emphasize that the settlement and resulting change in the adversarial alignment of the parties could be considered only in evaluating the credibility of testimony and not on the question of liability.” Slusher, 777 P.2d at 442 n. 9. The remaining sentence in the paragraph Paulos objected to, did just that. After cautioning that the settlement could not be considered in the determination of liability, instruction sixteen states: “You may, however, consider the settlement agreement when you weigh the believability of the testimony presented.”

¶ 25 Additionally, before a party can “assert that the trial court erred in either giving or failing to give an instruction, a party must first submit comet instructions and then, should the court fail to give them, timely except.” Newsom v. Gold Cross Serv., Inc., 779 P.2d 692, 694 (Utah Ct.App.1989) (emphasis added). Paulos did not submit an alternative Slusher instruction and, therefore, cannot now assert that the trial court erred.

¶ 26 Paulos also takes exception to instruction twenty-two. Instruction twenty-two advised the jury that “[a] violation of a safety law is evidence of negligence.” The instruction then listed three exceptions to that rule:

(1) When obeying the law would have created an even greater risk of harm.
(2) When the person who violated the law was faced with an emergency that person did not create, and, by reason of the emergency, that person could not obey the law.
(3) WThen the person who violated the law made a reasonable effort to obey the law, but was unable to do so.

¶ 27 It is important to note that the jury probably did not even reach the exceptions, given the dispute over whether Covenant violated a safety law. However, even if the jury did conclude that Covenant had violated a safety law, there is ample evidence to support submission of the exceptions to the jury. The extensive evidence left the jury with many ways that it could view how the accident occurred. See Newsom, 779 P.2d at 694 (“All parties are entitled to have their theories of the case submitted to the jury in the court’s instructions, provided there is competent evidence to support them.”).

¶ 28 We will not address Paulos’s objection to instruction twenty-three because Paulos has not preserved this issue for appeal. In fact, far from preserving his objection to this instruction, Paulos actually requested that this instruction be given to the jury. Paulos also argues that the trial court erred in giving both instructions twenty-three and twenty-six because they were duplicative and unfairly emphasized a standard of conduct Covenant was entitled to expect. Once again, however, Paulos requested that instruction twenty-six, in addition to instruction twenty-three, be given to the jury.

IV.Special Verdict Form Caption

¶ 29 As with instructions twenty-three and twenty-six, Paulos did not preserve this issue for appeal. When the court addressed the special verdict form caption with the parties, the court noted that the purpose of the caption was to “capture the heading as set forth in the complaint.” After some dialogue, counsel for Paulos agreed that the complaint was the dispositive document. The complaint, obviously submitted by Pau-los, contains the Muchas in the caption; thus, it was proper for the verdict to also contain the Muchas.

¶ 30 Paulos admits that he did not preserve his objections to instructions twenty-three, twenty-six, and the verdict form caption; however, he insists that the trial court plainly erred in using the instructions and caption he offered. Where Paulos submitted the instructions and invited the error (if an error does exist), the doctrine of plain error cannot be relied upon. See State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991). “The doctrine of invited error prohibits a party from setting up an error at trial and then complaining of it on appeal.” Miller v. Martineau & Co., Certified Pub. Accountants, 1999 UT App 216,¶ 42, 983 P.2d 1107 (quotations and citations omitted). We therefore decline to address this argument further. See id.

V.Evidence of Paulos’s Contributory Negligence

¶ 31 Finally, Paulos contends that the question of Paulos’s contributory negligence should not have been submitted to the jury. This contention is without merit. The question of contributory negligence was properly submitted to the jury, based on the evidence that Paulos followed the vehicle ahead of him too closely. Paulos’s own expert testified that, with more time, Paulos could have avoided the accident. In any event, given the verdict that Covenant was not negligent, the jury did not even reach the question of Paulos’s fault.

VI.Cumulative Error

¶ 32 “Although [Paulos] asserts that a number of errors were committed at trial, we find none, and therefore there is no cumulative error.” State v. Medina-Juarez, 2001 UT 79,¶ 27, 34 P.3d 187.

CONCLUSION

¶ 33 For the foregoing reasons, we affirm the jury’s verdict in favor of Covenant.

¶ 34 WE CONCUR: JAMES Z. DAVIS and NORMAN H. JACKSON, Judges.

      . " 'On appeal from a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to that verdict.’ ” Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107,¶ 2, 37 P.3d 1130 (quoting Pratt v. Prodata, Inc., 885 P.2d 786, 787 (Utah 1994)).

      . In both Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221 (5th Cir.1984), and Johnson v. William C. Ellis & Sons Iron Works, Inc., 609 F.2d 820 (5th Cir.1980), the Fifth Circuit recognized that, in addition to admission under the learned treatise exception, safety codes may also be admitted under the residual exception to hearsay — rule 803(24) of the Federal Rules of Evidence. In Johnson, the safety code was not admissible under 803(24) because the proponent of the safety code had not given the "advance notice" required by 803(24). Johnson, 609 F.2d at 823. In Alexander, the proponent of the safety code did not urge its admission under 803(24) at trial, and "no substantial right ... was affected by the failure to admit the Code as an exhibit because the relevant sections had already been read and shown to the jury." Alexander, 731 F.2d at 1229. Utah’s residual hearsay exception is also numbered 803(24). See Utah R. Evid. 803(24). Paulos neither complied with the advance notice requirement of the rule nor submitted the ATA handbook under this exception. Further, as in Alexander, "the relevant sections ... [were] read and shown to the jury.” Alexander, 731 F.2d at 1229.

      . In Finchum v. Ford Motor Co., 57 F.3d 526 (7th Cir.1995), the Seventh Circuit held that “[u]nder Rule 803(18), statements contained in a published periodical which are relied upon by an expert witness may be admitted, but they must be read into evidence rather than received as exhibits.” Id. at 532. Comparable to the ATA handbook in the instant case, the publication at issue in Finc-hum was an article entitled " 'Occupant Protection in Rear Impacts.’ "Id. at 531.

      . Contrary to Paulos's statement that "[t]he Fifth Circuit did not view advisory circulars in Muncie Aviation [Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975),] as hearsay,” the court in Muncie never decided whether the circulars were hearsay. Instead, the court found that "the characterization of the evidence as hearsay or non-hearsay is not dispositive to the outcome of the case, for the court finds that the evidence was sufficiently trustworthy to be admissible." Muncie, 519 F.2d at 1182 n. 6.


author: DAVIS, Judge:

text:
    2004 UT App 36
    STATE of Utah, Plaintiff and Appellee, v. Steven Lynn RICHINS, Defendant and Appellant.
    No. 20010870-CA.
    Court of Appeals of Utah.
    Feb. 20, 2004.

      Randall W. Richards, Richards Caine & Allen PC, Ogden, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, DAVIS, and ORME.
   OPINION

DAVIS, Judge:

¶ 1 Defendant appeals the trial court’s denial of his motion to withdraw his guilty plea. We affirm.

BACKGROUND

¶ 2 On April 14, 2000, Defendant was questioned about his involvement in two robberies that occurred at Weber County-area fast-food restaurants, on April 5, 2000 (Carl’s Jr. robbery) and April 10, 2000 (Burger King robbery). Defendant subsequently gave a statement to the Ogden City Police Department inculpating himself, as well as four other individuals, in the robberies.

¶ 3 For his participation in the Carl’s Jr. robbery, Defendant was charged with two counts of aggravated robbery, first degree felonies under Utah Code Annotated section 76-6-302 (1999); two counts of aggravated kidnapping, first degree felonies under Utah Code Annotated section 76-5-302 (1999); and one count of aggravated burglary, a first degree felony under Utah Code Annotated section 76-6-203 (1999). For his role in the Burger King robbery, Defendant was charged with one count of aggravated robbery, a first degree felony under Utah Code Annotated section 76-6-302. Because Defendant acted in concert with two or more persons, the State sought penalty enhancements on all charges, pursuant to Utah Code Annotated section 76-3-203.1 (Supp.2000).

¶ 4 On September 26, 2000, one day before his scheduled trial, Defendant entered into a plea agreement with the State. In the Carl’s Jr. robbery case, Defendant pleaded guilty to one count of aggravated robbery, a first degree felony, and one count of attempted aggravated burglary, a second degree felony. In the Burger King robbery case, the State reduced the aggravated robbery charge, and Defendant pleaded guilty to one count of robbery, a second degree felony under Utah Code Annotated section 76-6-301 (1999). In exchange, the State dropped the remaining charges and penalty enhancements.

¶ 5 Unbeknownst to his appointed counsel, Defendant filed a pro se motion to withdraw his guilty pleas on or about October 25, 2000. On November 15, 2000, Defendant’s appointed counsel filed a motion to withdraw Defendant’s guilty pleas. On December 12, 2000, Defendant retained private counsel, who also filed a motion to withdraw Defendant’s guilty pleas on April 23, 2001. This motion incorporated Defendant’s pro se motion and generally asserted that the trial court did not strictly adhere to the plea colloquy requirements outlined in rule 11 of the Utah Rules of Criminal Procedure because “the trial court omitted certain elements of the [r]ule 11 colloquy.”

¶ 6 During oral argument on Defendant’s motion, defense counsel clarified the challenge to the rule 11 colloquy upon a question from the trial court:

TRIAL COURT: But, again, just go back so I can nail this down in my mind. Aside from Ms. Larkin’s concerns about the specificity of the elements, you’re not otherwise challenging [rjule 11?
DEFENSE ATTORNEY: Well, except for that.

Defendant now appeals his guilty plea in the Burger King robbery ease on the basis that, pursuant to rule 11(e)(4)(B), there was not a sufficient factual basis given for that guilty plea.

ANALYSIS

¶ 7 The sole issue on appeal is whether the trial court erred in denying Defendant’s motion to withdraw his guilty plea in the Burger King robbery case. Defendant argues that the trial judge who accepted his guilty plea erred by not strictly adhering to rule 11(e)(4)(B) of the Utah Rules of Criminal Procedure, which requires that a factual basis for the plea be recited for the record. The State, inter alia, asserts that Defendant’s failure to preserve this issue in the trial court, when he argued his motion to withdraw his guilty plea, precludes our consideration thereof on appeal.

¶8 “As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances.” State v. Brown, 856 P.2d 358, 359 (Utah Ct.App.1993). In order to preserve an issue for appeal, it “must be raised in a timely fashion, must be specifically raised such that the issue is sufficiently raised to a level of consciousness before the trial court, and must be supported by evidence or relevant legal authority.” State v. Schultz, 2002 UT App 366, ¶ 19, 58 P.3d 879 (quotations and citations omitted). “The trial court is considered ‘the proper forum in which to commence thoughtful and probing analysis’ of issues.” Brown, 856 P.2d at 360 (citation omitted). The preservation rule allows “the trial court an opportunity to ‘address the claimed error, and if appropriate, correct it.’ ” State v. Cram, 2002 UT 37, ¶ 10, 46 P.3d 230 (quoting State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346). Additionally, “[flailing to argue an issue and present pertinent evidence in that forum denies the trial court ‘the opportunity to make any findings of fact or conclusions of law5 pertinent to the claimed error.” Broirn, 856 P.2d at 360 (citation omitted).

¶ 9 Defendant argues that the trial court failed to strictly adhere to the requirements of rule 11(e)(4)(B) because the record did not contain an adequate factual basis to support a plea to the Burger King robbery. The State counters that Defendant’s motion to withdraw his guilty plea did not preserve his argument under rule 11(e)(4)(B) because the motion was not grounded upon failure to comply with the requirements of rule 11(e)(4)(B).

¶ 10 Defendant’s written motion stated that the trial court did not strictly adhere to the rule 11 plea colloquy because “the trial court omitted certain elements of the [r]ule 11 colloquy.” Furthermore, upon questioning from the trial court to clarify Defendant’s rule 11 challenge, Defendant’s counsel confirmed that the rule 11 challenge centered upon “the specificity of the elements.” Thus, Defendant’s challenge focused the trial court on rule 11(e)(4)(A), which requires a trial court to find, before the taking of a guilty plea from a defendant, that “the defendant understands the nature and elements of the offense to which the plea is entered.” Utah R.Crim. P. 11(e)(4)(A) (emphasis added). A challenge by Defendant under this rule is distinct from a challenge under rule 11(e)(4)(B), requiring that “there is a factual basis for the plea.” Utah R.Crim. P. 11(e)(4)(B).

¶ 11 The trial court, in this case, made findings that pertained to Defendant’s rule 11(e)(4)(A) challenge. In its oral findings, the trial court stated:

Not only did [the trial court judge] cover the requisite elements of the offense and define the meaning of a dangerous weapon, but the State’s proffer of evidence in support of the plea detailed Defendant and other defendants using guns or facsimiles of guns and holding victims at gunpoint in Burger King and Carl’s — Carl’s Junior for money. [The judge] asked the Defendant if those facts occurred. And the Defendant admitted them.

(Emphasis added.) Additionally, the trial court judge made written findings, noting that “[t]he colloquy ... covered all the elements required by [r]ule 11(e) of the Utah Rules of Criminal Procedure ... [and] also adequately informed the Defendant of the specific elements of the offense.” Especially, in light of Defendant’s motion and defense counsel’s statement at the motion hearing, these two findings clearly pertain to rule 11(e)(4)(A) rather than rule 11(e)(4)(B). By not specifying a challenge under rule 11(e)(4)(B), Defendant “denie[d] the trial court ‘the opportunity to make any findings of fact or conclusions of law^ pertinent to the claimed error.” Brown, 856 P.2d at 360 (citation omitted). We therefore conclude that in Defendant’s motion to withdraw his plea and subsequent hearing thereon, raising a challenge under rule 11(e)(4)(A), or even rule 11 generally, did not adequately preserve his challenge under rule 11(e)(4)(B). Accordingly, we decline to address the issue on appeal. See Schultz, 2002 UT App 366 at ¶ 19, 58 P.3d 879.

CONCLUSION

¶ 12 Because Defendant did not preserve his rule 11(e)(4)(B) challenge before the trial court, he has failed to preserve his claim for appeal. We therefore affirm the trial court’s denial of Defendant’s motion to withdraw his guilty plea.

¶ 13 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and GREGORY K. ORME, Judge.

      . The April 5, 2000 robbery occurred at a Carl’s Jr. restaurant and the April 10, 2000 robbery occurred at a Burger King restaurant. According to the record in this case, Defendant's case number from the Carl's Jr. robbery is 001901517, and Defendant's case number from the Burger King robbery is 001901518. After pleading guilty to charges stemming from both robberies, Defendant sought to withdraw his pleas in both cases. The trial court denied Defendant’s motion to withdraw his pleas in an order that referenced both case numbers.
      Defendant’s notice of appeal references only the plea taken in conjunction with the Carl’s Jr. robbeiy. However, in accordance with State v. Valdovinos, 2003 UT App 432, 488 Utah Adv.Rep. 32, 82 P.3d 1167, we conclude that Defendant's notice of appeal “adequately notified tire State and the courts that he intended to appeal” the trial court's denial of his motion to withdraw his pleas in both cases. Id. at ¶ 20.

      . It is somewhat unclear which day this motion was filed. Defendant’s motion is dated October 23, 2000, but it was received by the trial court on October 30, 2000. Because the State had conceded in the proceedings below that the motion was filed on or about October 25, 2000, we will use this date as the date Defendant filed his motion.

      . Defendant also argues that even if he failed to preserve the issue for appeal under rule 11 of the Utah Rules of Criminal Procedure, this court should consider his argument under a plain error challenge. See State v. Hansen, 2002 UT 114, ¶ 21 n. 2, 61 P.3d 1062 ("When a party fails to preserve an issue for appeal, we will nevertheless review the issue if the appealing party can demonstrate plain error or exceptional circumstances.”). However, if any error existed in the rule 11 plea colloquy, such error would not have been obvious to the court when considering the motion to withdraw guilty plea. See State v. Weeks, 2002 UT 98,¶ 25, 61 P.3d 1000 (concluding that appellant's plain error claim failed where such error would not have been obvious). Indeed, upon a reading of the transcript of the plea colloquy, it was far from obvious to us. Gleaning Defendant’s theory of error required us to hear, and eventually come to understand, a rather elaborate explanation.