State v. Noor
283 P.3d 543
Utah Ct. App.
2012
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STATE оf Utah, Plaintiff and Appellee, v. Osman Mohammad NOOR, Defendant and Appellant.

No. 20110198-CA

Court of Appeals of Utah.

July 12, 2012

2012 UT App 187

13 Here, we accord Pipkin several indulgences, overlooking inadequate briefing and marshaling concerns to reach the merits of his appeal. Cf. 13 n. 2 (according the pro se litigant several indulgences, including overlooking the fact that the “briefs, though thoroughly researchеd, lack[ed] focus and coherence and [were] littered with unsupported factual allegations“). Nonetheless, Pipkin‘s memorandum opposing summary judgment (the opposition memo) still failed to raise a genuine question of material fact.

14 As the party opposing summary judgment, Pipkin was required to “set forth specific facts showing that there is a genuine issuе for trial.” See . Pipkin has not done so here. In its entirety, the opposition memo stated that the affidavit Midland submitted in support of summary judgment was “irrelevant” because it did “not providе documented evidence of [the] alleged debt,” and then repeated the same few assertions—that Pipkin had not been provided with the information he had previously requеsted from Midland regarding the debt, that the “alleged debt [was] null and void,” and that because Pipkin had “no access to information regarding [the] alleged debt [he could not] determine [the] validity of [the] alleged debt“—before concluding that Midland‘s claims were “specious, frivolous, [and] without foundation or merit.” Pipkin‘s ‍‌​‌​‌‌‌​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​​​​‌​​‍repeated assertions that he has not been provided with the documentation he requested do not raise a genuine issue of material fact as to Midland‘s claim that Pipkin owes $6,148.03, plus accrued interest, on a credit aсcount serviced by Midland. We are also not persuaded that Pipkin was unable to effectively oppose Midland‘s summary judgment motion until he received the information he requested from Midland; the information Midland provided in its initial debt collection letter was detailed enough for Pipkin to effectively oppose summary judgment. Pipkin could have submitted affidаvits that would have created a genuine issue of material fact or moved for a continuance under rule 56(f) of the Utah Rules of Civil Procedure; because Pipkin failed to do so, the trial court‘s ruling is affirmed.2 See Utah R. Civ. P. 56(f) (permitting thе trial court to continue a motion for summary judgment and allow for further discovery). See generally id. R. 56(e) (explaining the means by which a party can oppose summary judgment).

15 WE CONCUR: J. FREDERIC VOROS JR., Associate Presiding Judge, and MICHELE M. CHRISTIANSEN, Judge.

Mark L. Shurtleff and Michelle I. Young, ‍‌​‌​‌‌‌​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​​​​‌​​‍Salt Lake City, for Appellee.

Brittany D. Enniss and Michael R. Sikora, Salt Lake City, for Appellant.

Before Judges McHUGH, ORME, and THORNE.

MEMORANDUM DECISION

THORNE, Judge:

11 Osman Mohammed Noor appeals his convictions for burglary, see Utah Code Ann. § 76-6-202 (Supp.2011), forcible sexual abuse, see id. § 76-5-404, and lewdness, see id. § 76-9-702. Noor argues that the State failed to present sufficient evidence that he had the requisite intent to commit lewdness or forcible sexual abuse, or burglary premised on either of those offenses. We affirm.

12 Noor and the victim in this case, J.E., lived across the hall from each other in an apartment building in Salt Lake City. J.E. was the apartment manager for the building. On May 28, 2009, shortly after the building‘s “quiet hours” began at 10:00 p.m., she confronted Noor in the hallway about his loud music and other noisy behavior. As J.E. was about to reenter her own аpartment, Noor walked past her and entered her apartment through its open door, without her invitation. Noor refused to leave and began disrobing, at which point J.E. called the police. Noor continued to remove his clothing and make sexually explicit advances toward J.E., claiming that “he was a man and that he loved [her].” Noor ignored J.E.‘s рhysical and verbal objections, pulled J.E. on top of him, attempted to kiss her, simulated oral sex over her clothing, and reached his hand down the front of her pants and underwear. J.E. managed to push Noor away and run from her apartment as a police officer arrived in response to her call.

13 Noor was arrested and charged with one сount each of burglary, forcible sexual abuse, and lewdness. At Noor‘s jury trial, the State called two witnesses, J.E. and the responding officer. On cross-examination, Noor‘s counsel еlicited testimony from both witnesses about Noor‘s intoxication at the time of the incident and his ‍‌​‌​‌‌‌​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​​​​‌​​‍limited English. No witnesses testified for the defense, and the defense strategy appeared to focus on discrediting J.E. At the close of trial, Noor‘s counsel made a motion for a directed verdict based on insufficiency of the evidence. The district court denied thе motion, and the jury found Noor guilty of all charges.

14 On appeal, Noor argues that the State failed to present sufficient evidence to prove that he had the requisite intеnt to commit lewdness or forcible sexual abuse. He also argues that there was insufficient evidence that he entered or unlawfully remained in J.E.‘s apartment with the intent to commit lеwdness or forcible sexual abuse. When a defendant challenges a jury verdict for insufficiency of the evidence, “we review the evidence and all inferences which may be reasonably drawn from it in the light most favorable to the verdict.” See (internal quotation marks omitted). We will reverse the jury‘s verdict “only when the evidence, so viewed, is sufficiently inconсlusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.” See (internal quotation marks omitted).

15 However, we will not consider issues on appeal that were not preserved below. See generally (discussing preservation requirements). “In order to preserve an issuе for appeal, it must be specifically raised such that the issue is sufficiently raised to a level of consciousness before the trial court [so as to give] the trial court аn opportunity to address the claimed error, and if appropriate, correct it.” (omissions and alteration in original) (internal quotation marks omitted), cert. denied, 275 P.3d 1019 (Utah 2012). “Thе mere mention ‍‌​‌​‌‌‌​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​​​​‌​​‍of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal.” (internal quotation marks omitted).

16 Noor‘s insufficiency of the еvidence argument on appeal rests largely on factual allegations—some of which he appar-ently raises for the first time on appeal—regarding his cultural bаckground. Noor was born in Somalia and fled to refugee camps in Kenya at the age of twelve. He lived there for the next seventeen years before coming to the United States. Noor argues on appeal that, as abhorrent as it seems within our own culture, subjugation and domination of women is acceptable and even encouragеd in the highly patriarchal Somali culture. Additionally, Noor presents authority stating that rape and violence against women are prevalent in Kenyan refugee camps. Noor argues that, in light of the violence he had witnessed for nearly his entire life, his actions should be viewed only as a misguided attempt to express love and affection and that he had no intent to commit forcible sexual abuse or lewdness. Noor also argues that his lack of fluency in the English language and his intoxication impaired his ability to understand J.E.‘s demands that he stop his advances and leave her apartment.

17 Noor‘s motion for a directed verdict did not bring these specific issues to the district court‘s attention. His directed verdict mоtion stated, in its entirety, “I would just move to move for a directed verdict of acquittal based on insufficiency of the evidence.” The State offered no comment on the motion, and the district court immediately denied it. This exchange did not apprise the district court that Noor was asserting that his cultural background, intoxication, and difficulties understanding English rendered him unable to form the requisite intent as to the crimes charged against him. Thus, his argument on appeal “was not presented to the trial court in such a way that it could have understood and ruled on it.” See .

18 Noor‘s insufficiency of the evidence argument on appeal was not specifically presented to the district court and is thus not preserved for appeal. Accordingly, we decline to address the merits of Noor‘s argument, and we affirm his convictions.

19 WE CONCUR: CAROLYN B. McHUGH, Presiding ‍‌​‌​‌‌‌​​‌​‌‌​​​​‌​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​​​​‌​​‍Judge and GREGORY K. ORME, Judge.

Notes

2
Pipkin also argues that the trial court erred by not considеring his FDCPA claim, see supra note 1, when granting summary judgment to Midland. We disagree. Even assuming Pipkin has a claim under the FDCPA, see (“Under the FDCPA a debt collector must send a written notice to an alleged debtor containing, among other things, the amount of the debt and statements that the consumer may dispute the debt in writing and may request written verification. Section 1692g does not require that this information be received by the debtor, however. Instead, it explicitly states that a notice must be sent ....” (citation omitted)), his argument still fails to dispute Midland‘s assertion that Pipkin defaulted on his credit obligations to the tune of $6,148.03, plus interest.
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