text:
    2002 UT 107
    STATE of Utah and its Agency the Utah Department of Transportation, Plaintiff and Appellee, v. HARVEY REAL ESTATE, a limited partnership, Defendant and Appellant.
    Nos. 20001149, 20010005.
    Supreme Court of Utah.
    Nov. 5, 2002.

      Mark L. Shurtleff, Att’y Gen., Steven F. Alder, Asst. Att’y Gen., Salt Lake City, for plaintiff.
    Robert E. Mansfield, Todd D. Weiler, Craig R. Kleinman, Salt Lake City, for defendant.
   HOWE, Justice:

INTRODUCTION

¶ 1 We granted a petition for interlocutory appeal filed by defendant Harvey Real Estate, a limited partnership, to review the trial court’s determination that defendant was not entitled to introduce certain evidence in an eminent domain proceeding. We also granted a cross-petition filed by plaintiff Utah Department of Transportation (UDOT) to review the trial court’s ruling that UDOT had abandoned a perpetual right-of-way it had over part of the Harvey property.

BACKGROUND

¶ 2 Harvey Real Estate owns approximately 160 acres of vacant land in Davis County, Utah. Until 1999, the west edge of the property abutted Highway 89, a major transportation route. Approximately 85 feet of the north edge of the property abuts Old Mountain Road. The intersection of these two roads lies directly adjacent to the property’s northwest corner.

¶ 3 Through the years, Highway 89 has undergone several expansions designed to compensate for increases in traffic. Several of these expansions have resulted in the condemnation of portions of the Harvey property by UDOT or its predecessor, State Road Commission of Utah. In 1936, pursuant to a condemnation proceeding, Harvey’s predecessor in title granted the State Road Commission a perpetual right-of-way over a section of the property abutting Highway 89 (the right-of-way). The stated purpose of the right-of-way was to grant UDOT a “perpetual Right-of-way for highway purposes,” and for many years the land was used accordingly. In a 1947 condemnation action, the State Road Commission acquired fee title to most, but not all, of the land subject to the 1936 easement. The State Road Commission later erected a fence a fixed distance from the centerline of the highway separating the fee title property from the property that remained subject to the 1936 right-of-way. This fence has remained in place, and UDOT has not used the strip of property still subject to the right-of-way since about 1951. The strip has been used by Harvey and others for grazing and other private purposes.

¶ 4 The Harvey property has direct access to Old Mountain Road at the northwest corner of the property along approximately 85 feet of frontage. In 1947, Highway 89 was made a limited access highway where it bordered the Harvey property. Therefore, from that year until 1999, the property’s only direct access to Highway 89 was through a single wide, gated agricultural entrance approximately 1,000 feet to the south of the intersection.

¶ 5 In 1999, in order to decrease the number of accidents on Highway 89, UDOT closed the Highway 89/Old Mountain Road intersection, thus cutting off access to Highway 89 from Old Mountain Road. UDOT also determined to build a frontage road from .the intersection to the Cherry Hill interchange, which is approximately .5 miles south of the intersection. The frontage road completely separates the Harvey property from Highway 89, eliminating direct access to the property from the highway.

¶ 6 Accordingly, this condemnation action was brought in 1999 by UDOT to acquire approximately 1.36 acres of the Harvey property which UDOT needed to construct the frontage road from the intersection to the Cherry Hill interchange. Believing that it still owned a right-of-way over the remaining strip of the 1936 right-of-way, UDOT did not seek to condemn it. Harvey contested the existence of the right-of-way, arguing that the State had abandoned it when the State separated the right-of-way from the highway by means of a fence. After a hearing on the matter, the trial court concluded as a matter of law that UDOT’s predecessor, the State Road Commission, had “abandoned all right to future use and all ownership in the Balance of the 1936 Right-Of-Way and discontinued using that property for highway purposes” and that, consequently, Harvey owned the strip free of any right-of-way held by UDOT.

¶ 7 Thereafter, UDOT filed a motion in limine seeking to preclude Harvey from presenting expert testimony at trial that the closure of the Old Mountain Road/Highway 89 intersection will substantially decrease the value of the remaining Harvey property. The trial court granted the motion. It concluded that evidence of alleged damages from the intersection closure was not admissible because any damages sustained by Harvey were not the result of the loss of land to be used in building the frontage road and thus did not qualify as severance damages. We granted Harvey’s interlocutory appeal and UDOT’s cross-appeal.

ANALYSIS

¶ 8 Harvey contends that the trial court erred and contravened Utah Code Ann. § 78-34-10 (1996) in not allowing it to present evidence of the damages it will sustain from the closure of the Highway 89/Old Mountain Road intersection. UDOT, in its cross-appeal, asserts that the trial court erred by ruling that the remaining strip of the 1936 right-of-way had been abandoned by UDOT and its predecessor. We address each issue in order.

I. SEVERANCE DAMAGES

A.

¶ 9 Section 78-34-10 provides in part: The court, jury or referee must hear such legal evidence as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess:
(2) if the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff.

The trial court ruled that under this section Harvey could not present evidence of any damage caused by the closure of the Highway 89/Old Mountain Road intersection because the closure was not caused by the severance of Harvey’s property. Harvey argues against this result, contending that by limiting the evidence of severance damages to “those harms flowing only from the actual taking itself,” the trial court ignored the statutory language allowing Harvey to present evidence of damages stemming from “the construction of the improvement in the manner proposed.” We disagree.

¶ 10 Section 78-34-10 gives a landowner the right to present evidence of damages caused by the construction of the improvement made on the severed property. It does not give the landowner the right to present evidence of damages caused by other facets of the construction project. Were the opposite true, a landowner would be entitled to present evidence unrelated to the taking. For example, where property was taken for a multi-mile-length road construction project, a landowner would be entitled to present evidence of all damages conceivably stemming from the road construction, even those damages attributable to construction occurring miles away. This would defeat the purpose of our eminent domain statutes, which are designed to compensate the landowner only for his loss of property rights. Contrary to Harvey’s argument, this interpretation does not render any part of section 78-34-10 meaningless; evidence of damage caused by both the severance alone and construction on the severed property may be presented.

¶ 11 We held essentially the same in Utah Department of Transportation v. D’Ambrosio, 743 P.2d 1220, 1222 (Utah 1987), although we did not reference section 78-34-10(2). There we stated that “[severance damages are those caused by the taking of a portion of the parcel of property where the taking or the construction of the improvement on that part causes injury to that portion of the property not taken.” (Emphasis added.) Our holding today also accords with the well-established common law principle that severance damages “may be made for any diminution in the value of [an owner’s non-condemned land], as long as those damages were directly caused by the taking itself and by the condemnor’s use of the land taken.” 26 Am.Jur.2d Eminent Domain § 368 (1996) (emphasis added); see also 8A Nichols, Eminent Domain § 16.02[1] (3d ed.2002) (stating “severance damages may be defined as damages or diminution in the value of the remainder residting from the taking of a portion of a tract of land ” (emphasis added)). We have explicitly adopted this principle in Utah. See City of Hildale v. Cooke, 2001 UT 56, ¶ 3 & n. 1, 28 P.3d 697 (stating “severance damages may occur where a partial taking to a parcel of land causes harm to the portion of the property not condemned” (emphasis added)); State by Rd. Comm’n v. Stanger, 21 Utah 2d 185, 186, 442 P.2d 941, 942 (1968) (“[Severance damages were those suffered by a devaluation of the owner’s property not taken, the causa causa causans of which was the actual taking of a part of a unit of property, the whole of which he previously owned.”).

¶ 12 Harvey has not shown that any damage sustained by the closure of the intersection has been caused by the severance of its land. Indeed, it recognizes that it is “[seeking damages for devaluation of its property as a result of loss of access” to Highway 89. Harvey seeks to establish a causal connection between its alleged damages and the taking by arguing that the closure of the Highway 89/Old Mountain Road intersection was made possible only by the taking of Harvey’s property, the inference being that the taking caused the closure. UDOT could have chosen to close the intersection independently of the taking, however. The taking may be somewhat related to the closure, but it did not cause the closure, nor did it cause the damages that Harvey claims as a result of the closure. As the trial court correctly observed, owners of neighboring properties may be impacted by the closure of the intersection but they, likewise, would not be entitled to seek compensation.

B.

¶ 13 Harvey attempts to avoid this result by relying on our opinion in Utah State Road Commission v. Miya, 526 P.2d 926, 928-29 (Utah 1974), where we held that rights of

access, light, and air are easements appurtenant to the land of an abutting owner on a street; they constitute property rights forming part of the owner’s estate. These substantial property rights ... may not be taken away or impaired without just compensation.

We stated that in order to recover for such a taking, an owner must show that “the structure violates some right appurtenant to the abutting property or otherwise inflicts some special and peculiar injury.” Id. As with other takings, where an appurtenant right is severed from the property, under section 78-34-10 damages may be awarded for the losses caused by the severance of the right.

¶ 14 Harvey argues that it is entitled to relief under Miya because it is being “deprived, of access.” While we recognized in Miya that the right of access is an appurtenant right, this right

“does not include the right to travel in any particular direction from one’s property or upon any particular part of the public highway right-of-way_Nor does the right of ingress or egress to or from one’s property include any right in and to existing public traffic on the highway, or any right to have such traffic pass by one’s abutting property.”

Hampton v. State, 21 Utah 2d 342, 346-47, 445 P.2d 708, 710-11 (Utah 1968) (quoting State ex rel. State Highway Comm’n v. Meier, 388 S.W.2d 855, 857, 859, 860 (Mo.1965)) . The interest protected simply entails the “right of ingress and egress to and from ... property and the abutting public highway.” Id. at 711. Harvey’s property may be accessed through both the new frontage road and Old Mountain Road; consequently, its right of access has not been denied. The right does not extend so far as to guarantee a property owner that his property will be accessed through specific intersections or that the roads accessing his property will be easily accessed from other thoroughfares. See, e.g., Holt v. Utah State Rd. Comm’n, 30 Utah 2d 4, 511 P.2d 1286, 1286 (1973) (stating “the law has long been established in this State that under those circumstances there can be no recovery from the State for damages because the construction of a highway may impair or adversely affect the convenience of access to property”), overruled in part on other grounds by Colman v. Utah State Land Bd., 795 P.2d 622, 632 (Utah 1990). Thus, UDOT has not “taken” Harvey’s right of access, and Harvey is not entitled to recover severance damages on that theory.

¶ 15 Harvey also contends that under Miya he is entitled to severance damages because he has suffered a “special and peculiar injury.” We have never explained what we meant in Miya by this language. To the extent that it suggests that a landowner may recover severance damages without either a physical taking or the taking of the few appurtenant rights that this court has recognized, it appears inconsistent with section 78-34-10 because, as noted above, this section requires that damages be caused by the severance of the property or the construction of improvements on the severed property. § 78-34-10. Unless the “special and peculiar injury” results from such a taking, an award of severance damages for such injuries would be contrary to the statute. As a practical matter, where a taking has occurred an owner would not need to rely on the “special and peculiar injury” he has suffered because he could recover directly for the taking itself. Accordingly, the trial court did not err in refusing to allow Harvey to prove section 78-34-10 damages on this ground.

II. ABANDONMENT

¶ 16 UDOT contends that the trial court erred in determining that it had abandoned its right-of-way over the remaining strip subject to the 1936 condemnation when it constructed a fence separating the strip from the highway. It asserts that our statutes have consistently required that portions of a highway may be abandoned only by affirmative formal action by a public authority with authority to do so. We agree.

¶ 17 Section 36-1-3 of Utah Code Ann. (1943) provided: “All highways once established must continue to be highways until abandoned by order of the board of county commissioners of the county in which they are situated or other competent authority.” This statute has remained essentially unchanged since 1951, the year the remaining strip was fenced off. See Utah Code Ann. § 72-5-105 (1999) (stating “[a]ll public highways once established shall continue to be highways until abandoned or vacated by order of the highway authorities having jurisdiction ...”). These statutes unambiguously establish that all public highways remain as such unless they are officially abandoned or vacated by order of the proper authority. They make no allowance for any other type of abandonment or vacation. Western Kane County Special Serv. Dist. No. 1 v. Jackson Cattle Co., 744 P.2d 1376 (Utah 1987).

¶ 18 In the instant case, once the land was dedicated to highway use by way of the 1936 right-of-way, it could not be abandoned or revert back to its owners without an official order of a competent authority. Harvey has failed to establish that such an order was made. Consequently, the trial court erred in ruling that UDOT had abandoned its right-of-way.

¶ 19 Harvey endeavors to avoid this outcome by urging us to apply common law rules concerning the abandonment of easements. This we cannot do. Our statute controls and makes no distinction between highways where the public holds fee title or only a right-of-way as here. To the extent that it is inconsistent with common law property principles, it preempts them.

CONCLUSION

¶20 The trial court correctly ruled that Harvey was not entitled to prove damages caused by the closing of the intersection. The trial court erred by ruling that UDOT had abandoned its right-of-way over the remaining strip of the 1936 condemnation.

¶ 21 Affirmed in part; reversed in part.

¶ 22 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Justice WILKINS concur in Justice HOWE’s opinion.


source: Caselaw Access Project

author: DURRANT, Associate Chief Justice:

license: Public Domain

text:
    2002 UT 108
    Geraldine Kay HARDING, Plaintiff and Appellant, v. Carl T. BELL, M.D., Defendant and Appellee.
    No. 20000766.
    Supreme Court of Utah.
    Nov. 5, 2002.

      Robert B. Sykes, Salt Lake City, for plaintiff.
    Gary B. Ferguson, Dennis C. Ferguson, Salt Lake City, for defendant.
   DURRANT, Associate Chief Justice:

¶ 1 This appeal concerns a medical malpractice action. Harding, the appellant/patient, asserts that the trial court exceeded its discretion in not excusing three prospective jurors for cause. In addition, she claims that there was insufficient evidence to support the jury’s conclusion that she was comparatively negligent. We affirm for two reasons. First, the trial court’s failure to excuse the three prospective jurors did not prejudice Harding because she received an impartial jury. Second, Harding’s insufficiency argument fails because she did not marshal all of the evidence arguably supporting the jury’s conclusion and there was sufficient evidence to sustain the jury’s finding.

BACKGROUND

¶ 2 When reviewing a jury verdict, we view “the evidence and all reasonable inferences drawn therefrom in [the] light most favorable to the verdict.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. We recite the facts accordingly.

¶ 3 On or around January 4, 1997, Geraldine Kay Harding experienced severe chest pain, left-arm numbness, sweating, and dizziness while at a gas station located in Salt Lake City, Utah. Except for the numbness in her left arm, which persisted for about an hour, all of the symptoms abated within approximately thirty minutes. Harding subsequently talked with her mother and her best friend, both of whom advised her to consult a physician.

¶ 4 On or about January 6, 1997, Harding called Dr. Carl Bell and scheduled an appointment for January 13, 1997. At this appointment, Harding informed Dr. Bell of the symptoms that she had experienced on January 4, 1997. Dr. Bell then had a member of his staff administer an EKG. He also ordered two blood tests. These blood tests came back negative, and Dr. Bell interpreted the results of the EKG as “normal.” An internal medicine specialist, Dr. Von Welch, later confirmed Dr. Bell’s assessment of the EKG results.

¶ 5 On January 22, 1997, Dr. Bell administered an exercise treadmill test (“ETT”), and informed Harding that the results appeared “normal.” A second physician, Dr. Marian Hansen, then examined the ETT results and concluded that they were abnormal. Dr. Hansen did not recommend any subsequent testing or emergency medical treatment.

¶ 6 Once Dr. Bell learned of Dr. Hansen’s conclusion, Dr. Bell referred Harding to Dr. Ronald Asay, a cardiologist. Dr. Bell notified Harding that she had an appointment with Dr. Asay by having a member of his staff leave a message on her answering machine. Harding received this message the afternoon of January 23 or 24.

¶ 7 The message stated that Dr. Bell had found something and that an appointment had been scheduled with Dr. Asay for February 5, 1997. It also explained what Dr. Bell had discovered, although Harding did not understand the “big” words. It did not inform Harding that she should avoid strenuous activity, take any medication, or be concerned.

¶ 8 Despite the fact that the message did not tell her to call back, Harding telephoned Dr. Bell’s office and spoke with a member of his staff. She asked this staff member if anything was wrong and was told that the ETT results had been interpreted as “abnormal.” She did not obtain any other information.

¶ 9 On January 24 and 25 of 1997, Harding experienced “recurrent mild chest pain with exertion.” On January 25, 1997, she had “an episode of malaise and tiredness and experienced severe ... chest discomfort.” Harding did not seek medical treatment for these symptoms.

¶ 10 On January 26, 1997, Harding experienced extreme chest pain while attempting to clean horse stalls. She was then rushed to the hospital by her husband and diagnosed as having suffered a probable heart attack. An angiogram performed the following morning disclosed that she had a coronary artery condition. Dr. Douglas Smith then performed a successful angioplasty.

¶ 11 On December 10, 1997, Harding filed a medical malpractice action against Dr. Bell, alleging that he breached numerous duties of care. During voir dire, Harding asserted that prospective jurors 7, 11, and 12 should be excused for cause due to probable bias. The trial court disagreed, and Harding used her peremptory challenges to remove the three individuals.

¶ 12 A six-day trial followed, and the empaneled jury returned a special verdict on March 15, 2000. The jury concluded that both Dr. Bell and Harding had been negligent. It then apportioned their comparative fault, attributing 45% of the negligence to Dr. Bell and 55% to Harding.

¶ 13 Harding appeals. We have jurisdiction pursuant to Utah Code Ann. § 78-2-2(3)(j) (Supp.2002). On appeal, Harding claims that the trial court erred in not excusing prospective jurors 7, 11, and 12 for cause. Additionally, she contends that there was insufficient evidence to support the jury’s conclusion that she was comparatively negligent.

ANALYSIS

I. STANDARD OF REVIEW

¶ 14 A “trial court’s determination of whether to excuse a prospective juror for cause should not be reversed absent an abuse of discretion.” State v. Wach, 2001 UT 35, ¶ 25, 24 P.3d 948. A jury verdict should not be reversed due to insufficient evidence unless the evidence presented at trial is so lacking that reasonable minds could not have reached the conclusion that the jury reached. State v. Widdison, 2001 UT 60, ¶ 74, 28 P.3d 1278.

II. FAILURE TO DISMISS PROSPECTIVE JURORS FOR CAUSE

¶ 15 We first examine whether the trial court erred in failing to excuse three prospective jurors for cause. Harding argues that the trial court exceeded its discretion in refusing to strike prospective jurors 7, 11, and 12 because they exhibited “probable bias” during voir dire. In particular, Harding contends that (1) prospective juror number 7 should have been excused for cause because she stated that she knew Dr. Bell and his family and declared that she could “not guarantee” that she would be comfortable in rendering a decision, (2) prospective juror 11 should have been excused for cause because she was the second cousin of one of Dr. Bell’s experts and stated that she might favor her cousin’s testimony, and (3) prospective juror 12 should have been excused for cause because she was the best friend of a patient of Dr. Bell’s and declared that her best friend liked Dr. Bell as a physician. Harding further contends that she was prejudiced by the trial court’s failure to excuse these, prospective jurors because, as a result of the cumulative effect of the trial court’s errors, she was forced to use her peremptory challenges to remove the prospective jurors, and some of -the individuals that ended up sitting on the jury had very “conservative” views.

¶ 16 To ascertain whether a new trial is warranted for failure to dismiss a prospective juror for cause, we apply a two-part test. Wach, 2001 UT 35 at ¶ 24, 24 P.3d 948. First, we consider whether the trial court exceeded its discretion in failing to excuse the prospective juror for cause. Id. Second, we assess whether the trial court’s failure to strike the prospective juror actually prejudiced the party seeking a new trial. Id.

¶ 17 Here, even assuming that the trial court exceeded its discretion in not excusing prospective jurors 7, 11, or 12, Harding has failed to establish that she was actually prejudiced by the trial court’s rulings. Indeed, although she proffers several grounds on which she was prejudiced, she has failed to show that the trial court’s errors resulted in a biased juror actually sitting on the jury. See id. at ¶36 (stating that to prevail on a claim of error based on the trial court’s failure to remove a prospective juror, the party had to “show that as a result of the loss of his peremptory challenge he was not able to remove another subsequently summoned juror who ultimately sat on the jury, and who was partial or incompetent” (internal quotations and citation omitted)). In fact, she even .concedes that all the jurors that ended up sitting were impartial by admitting in her briefs, on at least three occasions, that if she had retained her peremptory challenges, she would have merely been able to make the jury “more fair.” Her claim that she was prejudiced therefore lacks merit because she received an impartial jury, and that is all she is entitled to under the law.

III.INSUFFICIENCY OF THE EVIDENCE

¶18 We next examine Harding’s claim that there was insufficient evidence to support the jury’s conclusion that she was negligent. She alleges that the only evidence on which the jury could have legitimately based its finding is her decision to wait two days before seeking medical treatment after she experienced müd chest pain on January 24, 1997. She further claims that this evidence is insufficient to support the jury’s finding because Dr. Bell diagnosed her as “normal” and she relied on his professional opinion. Dr. Bell responds that Harding’s insufficiency argument fails because she did not marshal all of the evidence supporting the jury’s conclusion. Specifically, he asserts that she failed to marshal the favorable testimony of four expert witnesses: Dr. Ganellen, Dr. Bateman, Dr. Icenogle, and Dr. Rosen-thal. Harding counters that she did not have to marshal the testimony of these experts because it related to Dr. Bell’s negligence, not hers. We disagree.

¶ 19 When challenging a jury’s verdict, a party must “marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.” State v. Boyd, 2001 UT 30, ¶ 13, 25 P.3d 985 (internal quotations and citation omitted). Put differently, a party incurs an obligation to marshal all of the evidence that arguably suppo?is the jury’s conclusion. This means that it must marshal “every scrap” of evidence that supports the juiy’s finding. Neely v. Bennett, 2002 UT App 189, ¶ 11, 51 P.3d 724. It also requires that the party contesting the verdict assume the role of “devil’s advocate.” Id. The party challenging the jury’s verdict must therefore temporarily remove its own prejudices and fully embrace “the adversary’s position.” Id.

¶ 20 Harding nevertheless asserts that she had no obligation to marshal the testimony of the four expert witnesses referenced by Dr. Bell because the testimony of those witnesses is unrelated to whether she was negligent. If we adopt her position, however, we would turn the marshaling requirement inside out. Indeed, under Harding’s view, the party on whom the burden of marshaling rests would merely have to make a unilateral assertion that the evidence was irrelevant to the finding under attack to meet its marshaling obligation. The burden would then shift to the party that prevailed below to demonstrate the relevance of the evidence. Whether evidence actually supports the jury’s verdict, however, is a question that the party contesting the verdict has an obligation to disprove because it lost below, and we will not remove that burden simply because the challenging party claims that the evidence is irrelevant.

¶21 Accordingly, where a party alleges a failure to marshal certain evidence and the party challenging the jury’s verdict asserts that there was no marshaling obligation as to the evidence because it was irrelevant, the party challenging the verdict must affirmatively demonstrate that the evidence was irrelevant. If the party challenging the verdict fails to make such a demonstration, we will presume that the evidence supported the verdict and conclude that it should have been marshaled.

¶ 22 Here, it is clear that Harding failed to demonstrate the irrelevancy of the evidence cited by Dr. Bell because she did not provide us with the testimony of the four expert witnesses. We therefore assume that the jury’s conclusion that Harding was negligent was adequately supported by the omitted expert testimony. See, e.g., Utah Med. Prods. v. Searcy, 958 P.2d 228, 233 (Utah 1998) (“In light of [appellant’s] failure to marshal the evidence, we must assume that all the trial court’s findings are supported by the verdict.”)

¶ 23 Even in the absence of such an assumption, however, Harding’s insufficiency claim would lack merit because sufficient evidence was introduced at trial to support the jury’s conclusion that she was negligent. Specifically, the evidence admitted at trial showed that Harding knew of both the “abnormal” results from the ETT and the scheduled appointment with the cardiologist. The trial record further demonstrates that although Harding subsequently experienced “chest pain,” including an “episode of ... severe ... chest discomfort,” she waited several days before seeking medical attention and engaged in the strenuous physical activity of cleaning horse stalls. By itself, this evidence is sufficient to support the jury’s finding that Harding was negligent. Harding’s claim that there was insufficient evidence to find her negligent is therefore without merit.

CONCLUSION

¶ 24 We conclude that the trial court did not exceed its discretion in refusing to excuse prospective jurors 7, 11, and 12 for cause because Harding received an impartial jury. We further conclude that Harding’s insufficiency of evidence claim fails because she did not marshal all of the evidence arguably supporting the jury’s conclusion and because, in any event, there was sufficient evidence to sustain the jury’s finding. We therefore affirm.

¶ 25 Chief Justice DURHAM, Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Associate Chief Justice DURRANT’s opinion.

      . Both parties conceded this fact in their briefs on appeal.

      .In reaching this conclusion, we note that if the attorney claiming that the marshaling requirement has not been satisfied makes frivolous assertions regarding the relevance of evidence, the attorney could be subject to sanctions pursuant to rule 11 of the Utah Rules of Civil Procedure. Indeed, rule 11 declares that
      [b]y presenting a ... paper to the court , an attorney ... is certifying that to the best of [his or her] knowledge ... the claims ... and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of a new law.
      UtahR. Civ. P. 11(b).

      . We note that nothing in this opinion is meant to alter the well-documented rule that a party must marshal all of the evidence supportive of the verdict in its opening brief.

      . Besides preventing us from concluding that the jury erred in finding her negligent, we note that Harding’s failure to marshal the testimony of the four expert witnesses likewise precludes us from overturning the jury's comparative negligence finding. This is the case because a comparative negligence analysis necessarily involves an assessment of the relative degree of negligence of both parties. Indeed, in order to compare negligence, the trier of fact must assess both parties' conduct. Hence, a party challenging a jury’s comparative negligence verdict must not only marshal the evidence supporting the jury’s conclusion as to his or her own degree of negligence, but also the evidence relating to the opposing party’s degree of negligence. Accordingly, even if the testimony of the four expert witnesses concerned exclusively Dr. Bell's conduct, Harding was obligated to marshal that testimony.


author: GREENWOOD, Judge:

text:
    2002 UT App 322
    STATE of Utah, Plaintiff and Appellee, v. Gerald Doug FRIDLEIFSON, Defendant and Appellant.
    No. 20010392-CA.
    Court of Appeals of Utah.
    Oct. 3, 2002.

      Linda M. Jones and Otis Sterling III, Salt Lake Legal Defender Ass’n, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Christine Soltis, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., GREENWOOD, and ORME, JJ.
   OPINION

GREENWOOD, Judge:

¶ 1 Defendant challenges his conviction for possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58 — 37—8(2)(a)(i) (Supp.2002). Specifically, Defendant claims that the police lacked reasonable articulable suspicion to detain him. We affirm.

BACKGROUND

¶ 2 Because determining the reasonableness of police conduct is fact sensitive, we describe the facts leading to the seizure of evidence in this case in detail. See State v. Potter, 863 P.2d 40, 40 (Utah Ct.App.1993).

¶ 3 For over a year Officers Larson and Washington and other Salt Lake City police officers periodically conducted surveillance of an apartment believed by them to be a drug house. As a result of this investigation, the officers had arrested several drug purchasers at the drug house. Based on the officers’ observations of the drug house traffic and the resulting arrests of drug buyers, the officers identified a pattern whereby buyers would enter the stairwell that led to only the suspect apartment and spend approximately five minutes at the bottom of the stairwell where they would conduct a drug transaction.

¶ 4 Around 3:00 p.m. on January 11, 1999, Officers Larson and Washington were arresting a drug suspect outside the drug house after observing the suspect follow the above mentioned pattern. While the officers were arresting the suspect, Defendant arrived. The officers told Defendant that they “were investigating drug activity there and that if he were there to purchase drugs now would be a good time to leave.” Defendant said, “Thank you,” and left.

¶5 At about 8:00 p.m. that same day, Officers Larson and Washington observed Defendant return to the drug house after parking his truck farther away than he had earlier that day. Defendant left the truck’s motor running and descended the stairwell. He was out of the officers’ sight for approximately five minutes. When Defendant emerged from the stairwell, Officers Larson and Washington, who were dressed in bright yellow police jackets, asked if they could speak to Defendant. Defendant turned abruptly and continued to his truck, slightly increasing his pace. The officers then pushed Defendant up against his truck, at which point Defendant began to flail his elbows and threw an object that was later identified as a cocaine twist.

¶ 6 After Defendant was charged with possession of a controlled substance, Defendant sought to suppress the cocaine twist claiming that the police officers lacked reasonable ar-ticulable suspicion to stop him. The trial court denied Defendant’s motion. A jury convicted Defendant and this appeal followed.

ISSUES AND STANDARD OF REVIEW

¶ 7 Defendant argues the trial court erred in denying his motion to suppress, claiming that some of its findings of fact are not supported by the evidence. We review a trial court’s findings of fact for clear error. State v. Mogen, 2002 UT App 235,¶ 6, 52 P.3d 462. Defendant also argues that the police lacked reasonable articulable suspicion to engage him in a level two stop. Determination of “ ‘whether a set of facts supports a reasonable articulable suspicion is a question of law that we review for correctness.’ ” Salt Lake City v. Ray, 2000 UT App 55,¶ 8, 998 P.2d 274 (quoting State v. Preece, 971 P.2d 1, 4 (Utah Ct.App.1998)). However, we conduct our review “ ‘with a measure of discretion given to the trial judge’s application of the legal standard to the facts.’ ” Mogen, 2002 UT App 235 at ¶ 6, 52 P.3d 462 (quoting State v. Giron, 943 P.2d 1114, 1116 (Utah Ct.App.1997)).

ANALYSIS

¶ 8 The parties agree that a level two stop occurred when the officers pushed Defendant against his truck. A level two stop occurs when, in an encounter between a citizen and law enforcement officers, “ ‘a reasonable person, in view of all the circumstances, would believe he or she is not free to leave.’ ” State v. Ray, 2000 UT App 55,¶ 11, 998 P.2d 274 (quoting State v. Jackson, 805 P.2d 765, 767 (Utah Ct.App.1990)). Such a detention is constitutionally permissible when the officer has reasonable suspicion to believe a person “has committed or is in the act of committing or is attempting to commit a public offense.” Utah Code Ann. § 77-7-15 (1999); see also United States v. Arvizu, 534 U.S. 266, —, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002).

[A] level two stop ... must be supported by reasonable suspicion [or it] violates the Fourth Amendment to the United States Constitution. While the required level of suspicion is lower than the standard required for probable cause to arrest, the same totality of facts and circumstances approach is used to determine if there are sufficient specific and articulable facts to support reasonable suspicion. In determining whether this objective standard has been met, the focus necessarily centers upon the facts known to the officer immediately before the stop.

Ray, 2000 UT App 55 at ¶ 18, 998 P.2d 274 (citations and quotations omitted) (alterations in original).

I. Findings of Fact

¶ 9 Defendant challenges several factual findings in the trial court’s memorandum decision supporting its reasonable suspicion determination. However, when a memorandum decision calls for the preparation of findings of fact to formalize the court’s decision, and such findings are then prepared and signed by the court, we look not to the trial court’s memorandum decision but to the signed and entered Findings of Fact and Conclusions of Law. See Bennion v. Hansen, 699 P.2d 757, 760 (Utah 1985) (“Until a court files its findings of fact, no decision has been rendered or final ruling made. A judge is free to change his or her mind on the outcome of a case until a decision is formally rendered.”). We find ample evidence in the suppression hearing to support each of the findings of fact, including evidence that Defendant increased his pace after the officers spoke to him. See State v. Mogen, 2002 UT App 235,¶ 16, 52 P.3d 462 (stating that we defer to the trial court’s credibility determinations). Accordingly, there is sufficient evidence on the record to support the trial court’s findings of fact.

II. Reasonable Suspicion

¶ 10 Defendant also argues that under the totality of the circumstances, the facts do not support a conclusion of reasonable suspicion. Defendant argues that the facts on which the trial court relied to find reasonable suspicion can also be used to describe innocent conduct. However, “[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, —, 122 S.Ct. 744, 753, 151 L.Ed.2d 740 (2002). Trial courts should analyze the totality of the circumstances and consider the experience and training of police officers when determining whether reasonable suspicion exists — not whether each discrete fact constitutes reasonable suspicion by itself. See id. at-, 122 S.Ct. at 750-51.

¶ 11 Defendant further argues that this case is similar to and controlled by State v. Sykes, 840 P.2d 825 (Utah Ct.App.1992) and State v. Potter, 863 P.2d 40 (Utah Ct.App. 1993), in which this court held that the police lacked reasonable suspicion to detain the defendants. In Sykes, the defendant entered a house that was under police surveillance as a drug house. She left after about three minutes and drove away in her car. The police stopped her. This court held that there was not reasonable suspicion of illegal activity because “any connection between defendant and illegal activity was purely speculation .... defendant’s mere presence in an area suspected to harbor drug activity does not give rise to reasonable suspicion [and] [defendant’s single visit does not link her to any drug dealers.” Sykes, 840 P.2d at 828-29.

¶ 12 In Potter, officers were waiting for a search warrant to search a home where marijuana was purportedly being used. As they waited, the defendant drove up and entered the home. He left after about three minutes and was detained by police officers. This court affirmed the trial court’s grant of a motion to suppress, stating that the drug usage at the home took place “at a time prior to defendant’s arrival and no other facts connected defendant with the suspected drug activity at the house.” Potter, 863 P.2d at 43-44.

¶ 13 As acknowledged by this court in Potter, “[t]here is no bright line test for determining if reasonable suspicion exists. Rather, courts must look at the totality of the circumstances.” Id. at 43. We conclude that the facts of this case distinguish it from Sykes and Potter.

¶ 14 Defendant was seen near the drug house a few hours before he was arrested. Defendant knew the house was the site of illegal drug transactions because the police told him to leave if he was there to purchase drugs. Defendant said, “Thank you,” and left. Later that night, Defendant returned to the known drug house, parked farther away from the drug house than he had earlier in the day, left his motor running, and spent approximately five minutes in the drug house’s stairwell. The police suspected that Defendant had engaged in a drug transaction based upon their observation that five minutes was the norm for a drug purchase at this particular drug house. Upon leaving the stairwell, Defendant had an unobstructed view of the two police officers who were wearing bright yellow police jackets. While facing Defendant, one officer told Defendant that they wanted to talk to him. Instead of stopping, Defendant turned and proceeded to his truck. While none of these facts may establish reasonable suspicion individually, viewed together, they present a different picture. Furthermore, unlike Potter and Sykes, Defendant in this case was observed by police visiting the drug house twice in one day and hé undisputably knew it was a suspected drug house, at least as of the second visit. Added to these facts, Defendant parked in a different, less conspicuous location on his second visit, left the motor running, and ignored police requests to speak to him. We therefore conclude the trial court did not err in determining there was reasonable suspicion sufficient to warrant further police investigation.

CONCLUSION

¶ 15 In sum, Defendant has failed to show that the trial court clearly erred in its factual determinations or that it incorrectly applied the law in determining that reasonable suspicion existed. Accordingly, we affirm.

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

      . The State concedes that the trial court lacked evidence to support its finding that the arrest of the drug suspect, when Defendant first arrived, occurred in the drug house instead of outside the drug house. We believe that this error was insignificant and does not undermine the decision that reasonable suspicion existed.


author: ORME, Judge:

text:
    2002 UT App 314
    STATE of Utah, in the interest of D.B., D.B., and M.V., persons under eighteen years of age. T.B., Appellant, v. State of Utah, Appellee.
    No. 20001022-CA.
    Court of Appeals of Utah.
    Oct. 3, 2002.

      Michael L. Humiston, Heber City, for Appellant.
    Mark L. Shurtleff, Attorney General, and John M. Peterson, Assistant Attorney General, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before Judges JACKSON, DAVIS, and ORME.
   OPINION

ORME, Judge:

¶ 1 T.B. appeals from a juvenile court order terminating his parental rights to his daughter, D.B. He claims incarceration, alone, does not render him unfit as a parent. We affirm.

BACKGROUND

¶ 2 The relevant facts are not in dispute. The father has been incarcerated for most of his daughter, D.B.’s, life. In 1991, a few months before his daughter’s birth, the father was returned to prison for violating the terms of his parole from prison on a prior conviction for attempted robbery and aggravated assault. Then, beginning in 1995, the father served eighteen months in prison for attempted possession of a controlled substance. And on February 4, 1997, the father was incarcerated again on a four-year sentence for attempted robbery. In 1999, at the time of trial in this case, the father’s anticipated release date was February 6, 2001.

¶ 3 The daughter is one of three Sisters who share the same mother, but who each has a different father. In August of 1997, the Department of Child and Family Services (DCFS) removed the daughter and her two sisters from their mother and placed them in protective custody. The three girls were later returned to their mother under the supervision of the court and DCFS. However, again in February of 1998, the girls were taken into protective custody, and the three have been living with the same foster family since March of 1998.

¶ 4 On November 2,1998, DCFS petitioned the juvenile court for termination of the mother’s and the three fathers’ parental rights. The mother’s rights to all three daughters were terminated on June 28,1999. The parental rights of the other two fathers have also been terminated.

¶ 5 As to T.B., the father in this case, the court found that he was unfit, pursuant to Utah Code Ann. §§ 78-3a-407 and -408(2) (Supp.2002). The court based this finding on subsection 78-3a-408(2)(e) (Supp.2002), which provides that in determining parental fitness, the court is required to consider, in the case of a child in DCFS custody, the incarceration of a parent for a felony conviction when the incarceration will deprive the child of a normal home for more than one year. The court also found that termination of the father’s parental rights was in the daughter’s best interest. Accordingly, on December 3, 1999, the juvenile court terminated the father’s parental rights to his daughter. The father now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 6 The father contends the juvenile court’s termination of his parental rights was improper. “In reviewing a decision to grant or deny a termination petition, ‘[w]e will not disturb the juvenile court’s findings and conclusions unless the evidence clearly preponderates against the findings as made or the court has abused its discretion.’ ” In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118 (quoting In re M.L., 965 P.2d 551, 559 (Utah Ct.App.1998)). More specifically, the father appears to argue that proof of the circumstances outlined in Utah Code Ann. § 78-3a-408(2)(e) (Supp.2002) is not, alone, sufficient to support a finding of parental unfitness. This contention raises an issue of statutory construction. “Matters of statutory construction are questions of law that are reviewed for correctness.” Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997).

ANALYSIS

¶ 7 As we have previously held,

Utah law requires a court to make two distinct findings before terminating a parent-child relationship. See In re M.L., 965 P.2d [551, 561 n. 13 (Utah Ct.App.1998)]. First, the court must find that “the parent is below some minimum threshold of fitness,” such as finding that a parent is unfit or incompetent based on any of the grounds for termination under section 78-3a-407 of the Utah Code. Id. (citation omitted); see Utah Code Ann. §§ 78-3a-406(3) and 78-3a-402(2) (1996); In re S.T., 928 P.2d 393, 399 (Utah Ct.App.1996). Second, the court must find that the best interests and welfare of the child are served by terminating the parents’ parental rights. See Utah Code Ann. §§ 78-3a-406(3) and 78-3a-402(2); see also In re M.L., 965 P.2d at 561 n. 13.

In re R.A.J., 1999 UT App 329 at ¶ 7, 991 P.2d 1118 (footnotes omitted).

Unfitness

¶ 8 As to the first part of this two-step analysis, Utah Code Ann. § 78-3a-407(l) (Supp.2002) states: “The court may terminate all parental rights with respect to a parent if it finds any one of the following: ... (c) that the parent is unfit or incompetent[.]” As to what a court must consider when examining parental fitness, Utah Code Ann. § 78-3a-408(2) (Supp.2002) states, in relevant part:

In determining whether a parent or parents are unfit or have neglected a child the court shall consider, but is not limited to, the following circumstances, conduct, or conditions:
(e) with regard to a child who is in the custody of the division, if the parent is incarcerated as a result of conviction of a felony, and the sentence is of such length that the child will be deprived of a normal home for more than one year....

¶ 9 The juvenile court in this case found the father to be unfit, based on the existence of the circumstances described in subsection (e). The father does not dispute that the daughter was already in DCFS custody, that he was convicted of a felony, and that due to his resulting incarceration the daughter would be deprived of a normal home for more than one year. Rather, the father suggests that the conditions described in subsection (e) are insufficient, by themselves, to justify a finding of parental unfitness. We disagree.

¶ 10 The gist of the father’s argument is that “there is no appellate authority for the proposition that incarceration for a period of more than a year, standing alone, is sufficient to justify termination of parental rights.” This argument reflects a misconstruction of subsection (e). The plain language of subsection (e) does not allow for termination of parental rights based on “incarceration for a period of more than a year, standing alone.” Rather, it allows for termination of parental rights in the much more narrow circumstance where a child, already in DCFS custody, will continue to be “deprived of a normal home for more than one year” as a result of her parent’s felony conviction. Utah Code Ann. § 78-3a-408(2)(e) (Supp.2002) (emphasis added).

¶ 11 In other words, when the child of a convicted felon remains in, or will soon return to, her “normal home,” despite the parent’s incarceration, the fact that the parent may be incarcerated for over a year does not, by itself, justify termination of that parent’s rights under subsection (e). Only in cases akin to this one, where the other parent’s rights have been terminated or restricted and the daughter is in the custody of DCFS and placed other than in her normal home, can a court rely on subsection (e) to find that a parent’s incarceration renders him unfit. And in reality, it is the child’s deprivation of a normal home for a period of more than a year that renders the incarcerated parent unfit, not the incarceration itself.

¶ 12 Our decision in In re E.H., 880 P.2d 11 (Utah Ct.App.1994), is instructive. In E.H., due to incarceration for a felony offense, the “appellant was unavailable to parent [his] children ... [for] nearly eight years.” Id. at 14. Although subsection (e) was not in effect when E.H. was decided, we held that “lengthy unavailability to parent” a child due to incarceration may be sufficient to support a finding of unfitness because “termination is proper when [a] parent is [either] ‘unable or unwilling to perform the duties and responsibilities of a parent.’ ” Id. (quoting In re K.S., 737 P.2d 170, 172 (Utah 1987)) (emphasis in original). Additionally, as in this case, in E.H. the father’s incarceration meant that “ ‘neither parent ... [would] be able to provide permanency for any of the children in the foreseeable future.’ ” Id. (emphasis added). Thus, even absent the statutory mandate of subsection (e), incarceration of a parent that deprives the child of a normal home for a “lengthy” period of time may alone support a finding of unfitness. See id.

¶ 13 Given the plain language of subsection 78-3a-408(2)(e), relevant precedent, and the fact that the father does not contest the juvenile court’s finding that his felony conviction and subsequent incarceration deprived the daughter, who was already in DCFS custody, of a normal home for over a year, we do not disturb the juvenile court’s finding that the father is unfit under subsection 78-3a-408(2)(e).

Best Interest of the Child

¶ 14 “[T]he juvenile court properly bifurcated the issues of parental unfitness and best interest of the child.” In re R.A.J., 1999 UT App 329, ¶ 8, 991 P.2d 1118. Upon separate consideration of the daughter’s best interest, the court determined that termination of the father’s rights was in fact in the daughter’s best interest. The father does not contest the court’s findings in support of that determination.

¶ 15 Specifically, the court found that the daughter “has adjusted very well in her foster home”; she “sees her family as her foster family and does not see her biological parents as her family”; “it is best to keep [the daughter and her sisters] together”; and “[t]he foster parents want to adopt all three girls.” The court also found that the father last saw the daughter in 1997 and that the last time the daughter lived with the father was for four or five months in 1994. Given these undisputed subsidiary findings, we cannot say the evidence preponderates against the juvenile court’s ultimate finding that it is in the daughter’s best interest to terminate the father’s parental rights, or that the juvenile court exceeded its discretion in ordering that those rights be terminated. See id. at ¶¶ 11 — 17.

CONCLUSION

¶ 16 A juvenile court’s proper determination of the existence of the precise circumstances described in Utah Code Ann. § 78-3a-408(2)(e), properly construed, is sufficient to support a determination of parental unfitness. Accordingly, we do not disturb the court’s determination that the father is unfit. Furthermore, we see no abuse of discretion in the court’s termination of the father’s parental rights, given the undisputed findings underlying the court’s determination that termination is in the daughter’s best interest.

¶ 17 Affirmed.

¶ 18 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and JAMES Z. DAVIS, Judge.

      . As a convenience to the reader, and because the provisions in effect at the relevant times do not differ materially from the statutory provisions currently in effect, we cite to the most recent statutory codifications throughout this opinion.

      . This is not to suggest that incarceration in other circumstances can never be considered in ■ determining parental fitness. See Utah Code Ann. § 78-3a-408(2) (Supp.2002) (stating the juvenile court "is not limited to” consideration of only the "circumstances, conduct, or conditions” enumerated in this section); In re M.L., 965 P.2d 551, 558 (Utah Ct.App.1998) ("Utah case law does not support the ... proposition that repeated criminal activity and incarceration occurring after a parent has been the subject of DCFS referrals and treatment plans and after a child has been removed from the parent’s custody, is insufficient to support a claim of parental unfitness.”) (emphasis in original).

      . Thus, a felon convicted and sent to prison for many years could not have his parental rights terminated under subsection (e) if his child is not in DCFS custody, or possibly, even if in DCFS custody, simply went on living in the care of other relatives.

      . The father also contests the juvenile court’s separate finding, pursuant to Utah Code Ann. §§ 78-3a-407 and -408(1) (Supp.2002), that the father abandoned the daughter. Because of our resolution of the father’s claim regarding unfitness, we need not address the abandonment issue. See Utah Code Ann. § 78-3a-407(l)(Supp.2002) (stating "[t]he court may terminate all parental rights ... if it finds any one ” of a number of grounds) (emphasis added); In re M.W.H., 794 P.2d 27, 30 (Utah Ct.App.1990) (declining to “consider the issue of parental unfitness” because the court resolved the case on the basis of abandonment).

      .As we have previously held,
      a juvenile court judge has considerable discretion in weighing evidence presented pursuant to a petition to terminate parental rights....
      It is, of course, the responsibility of the juvenile court judge to hear and consider the evidence presented by the parties to the action, and to weigh it. It falls exclusively on the judge to decide whether or not the evidence presented rises to the level of clear and convincing proof of the facts alleged. In reaching this determination, the trial judge is required to consider the quality and quantity of proof presented, and to arrive at a conclusion about whether or not it is sufficient. This evaluation is at the very heart of judging, and is the reason cases of this nature are tried to a judge. It is also the reason that society seeks men and women of good judgment and wisdom to serve as trial judges.

        In re R.A.J., 1999 UT App 329, ¶¶ 11-12, 991 P.2d 1118.

      . The father also argues the State has violated federal law requiring that adoptions of children whose parents' parental rights have been terminated be finalized expeditiously. The father contends that because of this claimed violation "the termination of [his] parental rights [should] be vacated.” The father does not, however, dispute that "[t]he State, as a general rule, will not proceed with an adoption until an appellant has exhausted his appellate rights.” The father will not be heard to complain about the alleged inaction of the State regarding the daughter’s permanency when his own appeal is the main reason adoption has been delayed.


author: JACKSON, Presiding Judge: BENCH, Judge

text:
    2002 UT App 323
    STATE of Utah, Plaintiff and Appellee, v. Wallace DEAN, Defendant and Appellant.
    No. 20000340-CA.
    Court of Appeals of Utah.
    Oct. 3, 2002.
    J. Bryan Jackson, Cedar City, for Appellant.

      Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and BENCH and GREENWOOD, JJ.
   OPINION

JACKSON, Presiding Judge:

BACKGROUND

¶ 1 On March 8, 2000, Dean pleaded guilty to one count of child abuse, a second degree felony, one count of child abuse, a class A misdemeanor, and assault, a class B misdemeanor. In connection with his plea, he executed a statement that detailed the constitutional rights he was waiving. Dean initialed each paragraph of the statement. Before accepting his guilty pleas, the trial court asked Dean if he had read the statement that he had executed and initialed each of the paragraphs. Dean answered affirmatively, and proceeded to plead guilty to the above-listed charges. Dean was not advised, either in his signed statement or by the trial court, that he was waiving not only his right to a jury trial, but also his right to a speedy trial before an impartial jury.

¶ 2 On April 10, 2000, Dean filed a motion to withdraw his guilty plea. He argued that the trial court failed to strictly comply with rule 11 of the Utah Rules of Criminal Procedure in two ways. He first argued, incorrectly, that he had not been advised of the time limit for filing a motion to withdraw his guilty plea. However, the court did advise him of the thirty-day deadline. He did not specify the basis for the second violation. On April 11, 2000, Dean was convicted and sentenced after the trial court denied his motion to withdraw his guilty plea. He appeals that denial and his conviction.

ISSUE AND STANDARD OF REVIEW

¶ 8 Dean argues for the first time on appeal that the trial court committed plain error because he was never advised of his right to a speedy trial by an impartial jury, as opposed to a mere trial by a jury. Dean filed a motion to withdraw his guilty plea, but on appeal challenges the denial of that motion “for the first time on appeal [on the basis] that the trial court failed to inform him of his right[s] to a speedy trial” and an impartial jury. State v. Hittle, 2002 UT App 134, ¶ 5, 47 P.3d 101. Thus, he “must show [that the trial court committed] plain error. To succeed on a claim of plain error, a defendant has the burden of showing (i)[a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” Id. (quotations and citations omitted).

ANALYSIS

I. Jurisdiction

¶ 4 Before reaching the issue Dean raises, we address the State’s argument that we lack jurisdiction to review Dean’s plain error argument. In order to effectively address the State’s jurisdictional challenge, we first sketch Utah’s previous decisions relating to challenges to guilty pleas.

¶ 5 In State v. Gibbons, the supreme court held that “Rule 11(e) squarely places on trial courts the burden of ensuring that constitutional and Rule 11(e) requirements are complied with when a guilty plea is entered.” 740 P.2d 1309, 1312 (Utah 1987). However,

[i]n Gibbons, the Supreme Court determined that a defendant could not simply appeal a conviction based on a guilty plea. Rather, defendant must first file a motion to withdraw [his] plea, giving the court who took the plea the first chance to consider defendant’s arguments. If the motion is denied, defendant could then appeal—not from the conviction per se, but from the denial of the motion.

Summers v. Cook, 759 P.2d 341, 342-43 (Utah Ct.App.1988). If a defendant fails to file a motion to withdraw his guilty plea, he may only attack his guilty plea collaterally. See id.

¶ 6 Once a guilty plea has been entered, a defendant has thirty days from “the entry of final judgment of conviction at the district court” to file a motion to withdraw his plea. See State v. Ostler, 2001 UT 68,¶ 11 & n. 3, 31 P.3d 528 (Ostler II). We have previously held that the time limit on withdrawing a guilty plea is jurisdictional. See State v. Price, 837 P.2d 578, 582-84 (Utah Ct.App.1992). “Accordingly, if a defendant is advised of the deadline when the plea is entered, the trial court lacks jurisdiction to consider a motion to withdraw filed after the thirty-day period.” State v. Canfield, 917 P.2d 561 (Utah Ct.App.1996). Nevertheless, “in State v. Ostler, 2000 UT App 28, 996 P.2d 1065 (Ostler I), this court recognized a narrow exception to the jurisdictional rule in Price. We concluded that although district courts lack jurisdiction under Price to consider the merits of untimely motions to withdraw guilty pleas, we may review alleged violations of Rule 11 of. the Utah Rules of Criminal Procedure ... for plain error.” State v. Melo, 2001 UT App 392,¶ 4, 40 P.3d 646; accord State v. Tamawiecki, 2000 UT App 186,¶ 11, 5 P.3d 1222.

¶ 7 The supreme court recently eliminated this exception to the jurisdictional rule, stating that because the appellant failed to file a motion to withdraw his guilty plea, the court lacked jurisdiction to address his challenge to the plea, even for plain error. See State v. Reyes, 2002 UT 13,¶¶ 3-4, 40 P.3d 630 (“This court may choose to review an issue not properly preserved for plain error. It cannot, however, use plain error to reach an issue over which it has no jurisdiction.” (Internal citation omitted.)). Thus, the supreme court declined to hear Reyes’s plain error argument, which directly attacked his guilty plea. See id.

¶8 Citing Reyes, the State asserts that because Dean’s motion to withdraw his plea “did not claim the errors now alleged on appeal,” his motion was somehow insufficient to allow appellate jurisdiction. Thus, the State argues that Dean’s appeal amounts to nothing more than a direct attack on his guilty plea rather than a challenge to the denial of his motion to withdraw.

¶ 9 However, in Reyes, the supreme court did not address the sufficiency of a motion to withdraw a guilty plea. Rather, it stated that the defendant must file his motion within the thirty-day deadline. See id. Unlike the defendant in Reyes, Dean filed a timely motion to withdraw his guilty plea. Thus, although Dean failed to specify the basis for his motion to withdraw, the supreme court’s ruling in Reyes does not preclude this court from reviewing his plain error argument. Accordingly, we review his challenge under the plain error standard.

II. Plain Error

¶ 10 Dean argues for the first time on appeal that the trial court committed plain error because he was never advised of his right to a speedy trial by an impaHial jury, as opposed to a mere trial by a jury. As we concluded in Hittle, which discussed identical issues, “[t]he trial court did not strictly comply with rule 11 because it failed to advise Defendant of his right[s] to a speedy [public] trial [and an impartial jury] either orally or in the plea affidavit. Therefore, the trial court erred.” Hittle, 2002 UT App 134 at ¶ 6, 47 P.3d 101 (concluding the trial court erred after analyzing Tamawiecki).

¶ 11 The State argues that State v. Martinez, 2001 UT 12, 26 P.3d 203 “is inconsistent with the decisions] in Tamawiecki [and Hittle ] and, by implication, overrules” them. It contends that “nothing [in Martinez] ... suggested that the trial court had used the terms impaHial and speedy, [yet] the [supreme court] nonetheless held that the colloquy ‘strictly complied’ with rule 11.” However, nothing in MaHinez suggests that the trial court had not used these terms in the plea colloquy. Moreover, whether the rights these terms convey were communicated to the defendant in Martinez was not an issue before the court in that cáse. See id. Thus, we cannot say that Martinez overrules Tar-naiviecki and Hittle.

¶ 12 Next, “in light of [State v. Visser, 1999 UT App 19, 973 P.2d 998 (Visser I), rev’d on other grounds by Visser II, 2000 UT 88, 22 P.3d 1242] and Rule 11, the error should have been obvious to the trial court.” Tarnawiecki, 2000 UT App 186 at ¶ 18, 6 P.3d 1222.

Finally, the trial court’s omission was harmful because the omission dealt with a substantial constitutional right. It is well established under Utah law that we will presume harm under plain error analysis when a trial court fails to inform a defendant of his constitutional rights under rule 11. See, e.g., Tarnawiecki, 5 P.3d 1222, 2000 UT App 186 at ¶ 18 (presuming harm when trial court failed to inform Defendant that she was entitled to a “speedy trial before an impartial jury”); State v. Ostler, 2000 UT App 28,¶¶ 25-26, 996 P.2d 1065 (presuming harm where trial court failed to inform defendant that he would waive certain constitutional rights by pleading guilty)....

Hittle, 2002 UT App 134 at ¶ 9, 47 P.3d 101 (first citation omitted). Accordingly, the trial court committed plain error by failing to advise Dean of his right to a speedy trial before an impartial jury.

CONCLUSION

¶ 13 “Because the trial court committed plain error in advising [Dean] of his rights, we reverse [the denial of Dean’s motion to withdraw his plea, vacate his conviction] and remand for proceedings consistent with this opinion.” Id. at ¶ 11.

¶ 14 I CONCUR: PAMELA T. GREENWOOD, Judge.

BENCH, Judge

(dissenting):

¶ 15 I respectfully dissent. I cannot say that the trial court “plainly erred” in not advising Defendant of his right to a “speedy” trial by an “impartial” jury.

¶ 16 To establish plain error a defendant must show that “ ‘(1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error was harmful....’” State v. Ross, 951 P.2d 236, 238 (Utah Ct.App.1997) (citation omitted) (emphasis added). “Utah courts have repeatedly held that a trial court’s error is not plain where there is no settled appellate law to guide the trial court.” Id. at 239; see also State v. Braun, 787 P.2d 1336, 1341-42 (Utah Ct.App.1990) (rejecting a claim of plain error where “ ‘the trial court did not have the benefit of [a later] appellate decision’ ” (citation omitted) (alteration in original)). I disagree with the majority’s conclusion that the trial court’s error in not advising Defendant of his rights should have been obvious to the trial court in light of State v. Hittle, 2002 UT App 134, 47 P.3d 101, and State v. Tarnawiecki, 2000 UT App 186, 5 P.3d 1222. Both of these cases were decided after Defendant in this case had entered his plea. Therefore, I fail to see how these decisions could have been obvious to the trial court. Tamawiecki’s reliance upon State v. Visser, 1999 UT App 19, 973 P.2d 998, (Visser I), is also suspect given that Visser I was reversed by the Utah Supreme Court in State v. Visser, 2000 UT 88, 22 P.3d 1242 (Visser II).

¶ 17 The law in this area remains unclear and unsettled. There is some question as to whether we even have jurisdiction to address Defendant’s rule 11 arguments. See Utah R.Crim. P. 11. Defendant entered his plea on March 8, 2000 and moved to withdraw it 33 days later, on April 10, 2000. After denying his motion, the trial court sentenced Defendant on April 11, 2000. State v. Ostler, 2001 UT 68,¶ 11, 31 P.3d 528, held that “the thirty-day limitation on filing a motion to withdraw a plea of guilty or no contest runs from the date of final disposition of the case” and not from the date of the plea colloquy. However, in a later case, State v. Reyes, 2002 UT 13,¶ 3, 40 P.3d 630, the Utah Supreme Court concluded that it lacked jurisdiction to entertain the defendant’s rule 11 arguments because the defendant “did not move to withdraw his guilty plea within thirty days after the entry of the plea.” (Emphasis added.) Although Reyes cites Ostler, I cannot say that Reyes overruled Ostler. See State v. Menzies, 889 P.2d 393, 398-99 (Utah 1994) (discussing the standard for overruling precedent).

¶ 18 Furthermore, there is some question as to whether a trial court must use the terms “speedy” trial and “impartial” jury, in order to strictly comply with the requirements of rule 11. In State v. Martinez, 2001 UT 12, ¶ 22, 26 P.3d 203 and Visser II, our supreme court seems to intend to overrule Tamawiecki and its progeny, but this was never done expressly. I therefore cannot say that Tamawiecki and Hittle have been overruled. See Menzies, 889 P.2d at 398-99.

¶ 19 In Martinez, the Utah Supreme Court concluded that the district court strictly complied with rule 11 by informing the defendant about “the right to a jury trial.” 2001 UT 12 at ¶¶ 22-25, 26 P.3d 203. No use of the words “speedy” trial or “impartial” jury were needed to meet the requirements of rule 11. In Visser II, the supreme court stated that “[sjtrict compliance, ... does not mandate a particular script or rote recitation of the rights listed” and “[sjtrict compliance does not require a specific method of communicating the rights enumerated by rule 11.” Vis-ser II, 2000 UT 88 at ¶¶ 11, 13, 22 P.3d 1242. The court then proceeded to conclude that the trial court strictly complied with rule 11 although it did not specifically inform the defendant of his “ ‘right to a speedy public trial before an impartial jury.’ ” Id. at ¶ 13.

' ¶ 20 In contrast, Tamawiecki concluded that the trial court plainly erred when it failed to specifically inform the defendant of her right to a speedy trial before an impartial jury. See Tarnawiecki, 2000 UT App 186 at ¶¶ 16-20, 5 P.3d 1222. Tamawiecki relied upon the court of appeals decision in Visser I, which the supreme court later reversed in Visser II. Hittle then relies upon Tamawiecki, in concluding that “the trial court ... [plainly erred by failing] to advise [djefendant of his substantial constitutional right to a speedy trial.” Hittle, 2002 UT App 134 at ¶ 10, 47 P.3d 101.

¶ 21 Because the cases in this area are so inconsistent, the supreme court should reevaluate the caselaw and set up some baseline rules that are clear and easy to follow. In so doing, it should expressly overrule inconsistent cases.

¶ 22 Based on the foregoing, I cannot say that the trial court plainly erred. I would therefore affirm.

      . "In Gibbons, this court adopted a ‘strict compliance' test which superseded the ‘record as a whole’ test traditionally applied on review in cases dealing with knowing and voluntary guilty pleas.” State v. Maguire, 830 P.2d 216, 217 (Utah 1991).

      . The State correctly notes that “[s]trict compliance ... does not mandate a particular script or rote recitation of the rights listed.” State v. Visser, 2000 UT 88,¶ 11, 22 P.3d 1242 (Visser II). However, " 'the trial court [must] ... establish on the record that the defendant knowingly waived his or her constitutional rights,' ” id. (citation omitted), to a " ‘speedy public trial before an impartial jury.’ ” Id. at ¶ 10 (quoting Utah R.Crim. P. 11(e)). This is a greater right than a mere right to a jury trial. Thus, although the terms "impartial” and “speedy” may be communicated by various means to the defendant, they may not be considered merely inconsequential modifiers to the juiy trial right. Here, nothing in the record suggests the trial court established that Dean knowingly waived anything more that a right to a potentially partial and delayed jury trial.

      . The dissent argues that "Tamawiecki’s reliance upon [Visser J] is ... suspect given that Visser I was reversed by the Utah Supreme Court in [Visser III" However, Visser II was decided on November 14, 2000, after both Tamawiecki, which was decided on June 15, 2000, and the trial court’s denial of Dean's motion to withdraw his guilty plea on April 11, 2000. Thus, the trial court in this case was still constrained by Visser I as of the date of its denial of Dean's motion to withdraw.
      Moreover, the supreme court reversed Visser I' not because a defendant is not entitled to be informed of his right to a speedy trial before an impartial jury, but because the record in that case reflected that Visser had been informed of his rights. In Visser II, the supreme court held
      that the trial court’s colloquy, in light of the mid-trial context of the plea, provided an adequate basis in the record to conclude that the trial court strictly complied with rule 11.... [T]he record details Visser's personal trial experience up to the point of his plea agreement. We conclude that this experience communicated at least as much as would the mere oral recitation of the “right to a speedy public trial before an impartial jury.”

        Visser II, 2000 UT 88,¶ 13, 22 P.3d 1242 (emphasis added).
      In the present case, Dean’s plea was not taken in a mid-trial context. Because the trial court's colloquy was given in a mid-trial context and there was no indication that the trial had been delayed, the supreme court in Visser II assumed that Visser had already received the benefit of his speedy trial right. See id. at ¶ 14. Similarly, the supreme court held that Visser’s participation in his own jury selection process was instrumental in ensuring that his plea was voluntary. See id. at ¶ 16. In the present case, Dean’s trial had not yet begun, and the jury had not yet been selected. Thus, we cannot say that the record in this case reflects "at least as much as would the mere oral recitation of the 'right to a speedy public trial before an impartial jury.’” Id. atH13.

      . In light of this decision, we decline to address Dean’s remaining arguments.

      . Controversies such as the one before us should be relatively easy to avoid as a practical matter. The problem we now face could have been avoided if the plea agreement had exactly tracked the rights mentioned in rule 11. In the modern era of word processing and computers, it would not be difficult to modify existing forms (or prepare new ones) that precisely track a defendant’s rule 11 rights.


author:
THORNE, Judge.
      BENCH, Judge

text:
    2002 UT App 317
    BRIGHAM CITY, a municipal corporation, Plaintiff and Appellant, v. Charles W. STUART, Shayne R. Taylor, and Sandra A. Taylor, Defendants and Appellees.
    No. 20010479-CA.
    Court of Appeals of Utah.
    Oct. 3, 2002.

      Leonard J. Carson, Mann, Hadfield & Thorne, Brigham City, for Appellant.
    Rod Gilmore, Layton, for Appellees.
    Before Judges BENCH, GREENWOOD, and THORNE.
   OPINION

THORNE, Judge.

¶ 1 Brigham City appeals from an interlocutory order granting Defendants’ joint Motion to Suppress .Evidence collected after Brigham City police officers entered a private residence without first obtaining a warrant. We affirm.

BACKGROUND

¶ 2 On July 23, 2000, at approximately 3:00 a.m., four Brigham City police officers responded to a loud party complaint. After arriving at the house, the officers proceeded to the back of the house to investigate the noise. From the driveway, through a slat fence, the officers saw two young men, who appeared to be under age, consuming alcohol. The officers entered the backyard through a gate, thereby obtaining a clear view into the back of the house.

¶3 Looking into the house through a screen door and two windows, the officers observed four adults restraining one juvenile. The juvenile, who was struggling to break free, managed to swing his fist and strike one of the adults in the face. Two of the officers then opened the screen door and stepped into the house. Only after entering the house did one of the officers shout to identify and call attention to himself. One by one, each person in the kitchen became aware of and acknowledged the officers’ presence, then become angry that the officers had entered the house without permission.

¶ 4 The officers subsequently arrested each of the adults and charged them with: contributing to the delinquency of a minor, disorderly conduct, and intoxication. Defendants filed a joint Motion to Suppress Evidence. After an evidentiary hearing, the trial court granted Defendants’ motion. Brigham City submitted a proposed order to the trial court that contained the trial court’s findings of fact. That order was signed as proposed and it is from this order that Brigham City now appeals.

ISSUES AND STANDARD OF REVIEW

¶ 5 We review the factual findings underlying a trial court’s decision to grant or deny a motion to suppress evidence for clear error, and the legal conclusions for correctness, “with a measure of discretion given to the trial judge’s application of the legal standard to the facts.” State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996).

¶ 6 In the present case, neither party disputes the written factual findings that support the trial court’s legal conclusion that no exigent circumstances justified the officers’ warrantless entry into the private residence. We accordingly review the trial court’s application of Fourth Amendment principles to the undisputed facts of this case. See id.

ANALYSIS

¶ 7 Brigham City argues the trial court erred in determining that there were no exigent circumstances to justify the war-rantless entry into a private residence. “A warrantless search of a residence is constitutionally permissible where probable cause and exigent circumstances are proven.” State v. Yoder, 935 P.2d 534, 540 (Utah Ct. App.1997). When a private residence is involved, the State’s burden in proving the existence of probable cause and exigent circumstances is “particularly heavy.” Id. (citations and quotations omitted). This elevated burden is a result of the “heightened expectation of privacy” that citizens enjoy in their homes. State v. Beavers, 859 P.2d 9, 13 (Utah Ct.App.1993).

¶ 8 Exigent circumstances exist where a reasonable person in the officers’ position would “ ‘believe that entry was necessary to prevent physical harm to the officers or other persons, [to prevent] the destruction of relevant evidence, [to prevent] the escape of the suspect,’ ” or to prevent the improper frustration of legitimate law enforcement efforts. Beavers, 859 P.2d at 18 (citation and ellipsis omitted). In addition, the need for immediate entry must be apparent to police at the time of entry, and so strong as to outweigh the important protection of individual rights provided under the Fourth Amendment. See id.

¶ 9 Our determination of exigency is based upon an examination of the totality of the circumstances. See State v. Wells, 928 P.2d 386, 389 (Utah Ct.App.1996), aff'd, 939 P.2d 1204. We grant the trial court a degree of discretion in determining the ultimate disposition because “ ‘the facts to which the legal rule is to be applied are so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out_’ ” State v. Teuscher, 883 P.2d 922, 929 (Utah Ct.App.1994) (ellipsis in original) (quoting State v. Pena, 869 P.2d 932, 939 (Utah 1994)).

¶ 10 We first address Brigham City’s request, made during oral argument, that this court make any additional findings of fact that might be necessary to find exigent circumstances in this case. However, an “ ‘appellate court is entrusted with ensuring legal accuracy and uniformity and should defer to the trial court on factual matters.’ ” Bailey v. Bayles, 2002 UT 58,¶ 19, 52 P.3d 1158 (quoting Willey v. Willey, 951 P.2d 226, 230-31 (Utah 1997)). The supreme court has further determined:

It is inappropriate for an appellate court to disregard the trial court’s findings of fact and to assume the role of weighing evidence and making its own findings of fact.
The court of appeals is limited to the findings of fact made by the trial court and may not find new facts or reweigh the evidence....

Id. at ¶¶ 19-20.

¶ 11 In addition, Brigham City has previously forsaken an opportunity to shape the trial court’s findings of fact. Brigham City has not, however, challenged the trial court’s factual findings. We therefore accept the findings as adopted and are in no position to supplement these findings. Thus, based upon the factual findings set forth in the trial court’s order, we review the trial court’s legal conclusion that no exigent circumstances existed in this case.

¶ 12 Brigham City next argues that the circumstances, as found by the court, clearly establish exigent circumstances supporting the officers’ warrantless entxy into the private residence. The trial court made the following findings of fact:

1. On July 23, 2001, at approximately 3:00 a.m., four Brigham City Policy officers were dispatched ... as a result of a call concerning a loud party.
2. After arrival at the residence, the officers, from their obsexwations from the front of the residence, determined that it was obvious that knocking on the front door would have done no good. It was appropriate that they proceed down the driveway alongside the house to further investigate.
3. After going down the driveway on the side of the house, the officers could see, through a slat fence, two juveniles consuming alcoholic beverages. At that point, because of the juveniles, there was probable cause for the officers to enter into the backyard.
4. Upon entering the backyard, the officers observed, through windows and a screen door an altercation taking place, wherein it appeared that four adults were trying to control a juvenile. At one point, the juvenile got a hand loose and smacked one of the occupants of the residence in the nose.
5. At that point in time, the court finds no exigent circumstances to justify the officer’s entry into the residence. What he should have done, as required under the 4th amendment, was knock on the door. The evidence is that there was a loud, tumultuous thing going on, and the evidence is that the occupants probably would not have heard, but under the 4th amendment he has an obligation to at least attempt before entering.

¶ 13 After reviewing the trial court’s ruling, we conclude that the trial court properly determined that the officers’ warrantless entry into the private residence was not justified by the circumstances. . The trial court found that some sort of altercation had occurred in the house, but made no findings from which we could reasonably conclude that the altercation posed an immediate serious threat or created a threat of escalating-violence. Furthermore, the officers did not immediately physically intervene in the situation, draw weapons, or otherwise act in a manner suggesting an emergency. Neither do the trial court’s findings support a conclusion that the destruction of evidence would have occurred, that the escape of any suspect was imminent, or that any legitimate law enforcement effort would have been frustrated had the officers not been granted immediate entry into the home. On these limited facts, we affirm the trial court’s conclusion that exigent circumstances did not exist.

¶ 14 Brigham City next argues that the officers were justified in entering this private residence because the officers observed, first-hand, the commission of a crime. Generally, absent exceptional circumstances or plain error, a party who fails to bring an issue to the trial court’s attention is barred from asserting it on appeal. See State v. Archambeau, 820 P.2d 920, 922 (Utah Ct.App.1991). Brigham City neither raised this argument to the trial court, nor argued plain error or exceptional circumstances on appeal. We therefore decline to address this argument.

CONCLUSION

¶ 15 Because we defer to the trial court’s findings of fact and, to a limited extent, to the trial court’s application of those facts to the law, we conclude that the trial court did not err in concluding that no exigent circumstances existed under these facts. Therefore, we affirm the trial court’s grant of Defendants’ Motion to Suppress all evidence resulting from the officer’s entry into the private residence.

¶ 16 I CONCUR: PAMELA T. GREENWOOD, Judge.

BENCH, Judge

(dissenting):

¶ 17 The outcome of this case is controlled by our recent decision in State v. Comer, 2002 UT App 219, 51 P.3d 55. In Comer, officers arrived at a home after receiving a call from a citizen that a family fight was in progress. See id. at ¶2. The defendant opened the door and stepped out onto the porch. See id. The officers explained to her why they were there and asked if anyone else was home. See id. The defendant did not respond, but “ ‘immediately turned and walked back inside the residence.’ ” Id. The officers followed and discovered defendant’s husband who had marks on his body indicating he had been assaulted. See id. at ¶ 3. While arresting the defendant for assault, the officers also discovered drugs and drug paraphernalia. See id. at ¶ 4.

¶ 18 We concluded that both probable cause and exigent circumstances existed to justify the officers’ warrantless entry into the defendant’s home. See id. at ¶ 27. We cited several reasons why the defendant’s unexplained behavior “would cause an officer to reasonably believe there was no time to get a warrant and/or that his presence was necessary to prevent physical harm to persons or the destruction of evidence,” including the officers’ reasonable fear that defendant retreated to “immediately resume the altercation reported.” Id. at ¶ 26.

¶ 19 If, as we concluded in Comer, an individual’s unexplained behavior and retreat posed an exigent circumstance, then certainly a fight in progress qualifies as an exigent circumstance. In this case, the officers responded to a citizen’s call in the middle of the night about a “loud party or altercation.” The trial court found that the fight they witnessed was so “loud” and “tumultuous” that the occupants of the residence could not have heard a knock at the door. The officers personally observed a group of adults restrain a juvenile, who broke loose one arm and “smacked one of the [adults] in the nose.” These findings do not support the trial court’s conclusion that the officers’ war-rantless entry into the home was not justified by exigent circumstances.

¶20 The majority argues that Comer is distinguishable and should be narrowly construed to apply only to known incidences of domestic violence. I disagree that the exigent circumstances doctrine applies only to domestic violence situations. However, even assuming, as the majority does, that Comer only applies to domestic violence, this case is not distinguishable. The difference between a simple assault and a domestic violence assault is the relationship between the parties involved. From their vantage point outside the house, the officers in this case could not know whether any of the combatants in the house were “cohabitants” as defined by Utah Code Ann. § 30-6-1 (Supp.2002). Based on the fact that a juvenile and several adults were involved and that the altercation was occurring at a residence, it would be reasonable for the officers to assume that the altercation may have been domestic violence. Further, I cannot agree with the majority that the violence had ceased by the time the officers arrived. The officers testified to witnessing a loud, tumultuous altercation where one individual was being physically restrained and another had been struck. Even after entering the house, the officers had a difficult time getting the attention of the combatants. It is nonsensical to require officers, charged with keeping the peace, to witness this degree of violence and take no action until they see it escalate further.

¶ 21 Alternatively, we could remand to the trial court for a finding on the city’s assertion that the officers were justified in entering the house because a crime was being committed in their presence. The majority opinion does not address this argument, claiming that it was not raised before the trial court. However, the record reflects that the city did raise the issue to the trial court in the “Plaintiffs Response to Motion to Suppress.” The city alleged that “the exigent circumstances which existed included obvious violations of the law in the plain view and presence of the officers.” Because the trial court made no specific findings regarding violations of law, the case could be remanded with instructions to the trial court to address whether the officers were justified in entering the home because a crime was being committed in their presence.

¶22 Accordingly, under Comer, I would reverse the trial court’s grant of Defendants’ motion to suppress. Alternatively, my colleagues should remand for findings on the city’s argument that a crime was being committed in the presence of the officers.

      . The trial court first directed Defendants to draft and submit an appropriate order. Brigham City, however, objected to the findings as drafted and proffered a substitution. Over Defendant’s objections, the trial court adopted Brigham City’s version of the order and findings. Therefore, any findings Brigham City considered necessary to support a conclusion of exigent circumstances should have been included in this order.

      . In reaching its conclusion, the dissent relies upon State v. Comer, 2002 UT App 219, 51 P.3d 55, where police entered a home without a warrant in response to a domestic violence complaint. Id. at ¶ 23. In Comer, “admittedly a close case,” we stated that “the officers had probable cause to believe a domestic violence offense had been, or was being, committed.” Id. at ¶ 25. We noted that a " ‘domestic violence complaint’ is 'one of the most potentially dangerous, volatile arrest situations confronting police.' " Id. (citations omitted). We identified the specific facts that would prompt the police to believe "there was no time to get a warrant and/or that [their] presence was necessary to prevent physical harm to persons or the destruction of evidence.” Id. at ¶ 26. The combination of these factors warranted a finding of exigent circumstances. See id. The holding in Comer, however, should be narrowly construed, see id. at n. 11 (characterizing the Comer opinion as adopting approach "for analyzing warrantless police entry into a private residence after receipt of a report of domestic violence at that residence”) and only applies when the threat of continued domestic violence is present.
      The case at har is distinguishable from Comer, for this is not a "domestic violence” situation. Additionally, the trial court found that the juvenile who seemed to be causing the commotion was restrained when the police arrived. Thus, except for the fact that the juvenile's hand broke loose and "smacked one of the occupants of the residence in the nose,” all violence had ceased by the time the officers arrived. Also, unlike Comer, the police in the case at bar had a clear view of the interior of the home and could have intervened had further violence ensued.

      . The officers might also have been justified in entering the residence pursuant to the emergency aid doctrine, a variant to the exigent circumstances exception. See Salt Lake City v. Davidson, 2000 UT App 12,¶ 10, 994 P.2d 1283.