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Salt Lake City v. Almansor, 2014 UT App 88 (April 24, 2014) 

Apr 24, 2014

In his second of three challenges to his conviction, the defendant argued the trial court erred in proceeding to trial after one of his defense witnesses failed to appear. The Court of Appeals held that the defendant had failed to preserve this claim. The defendant failed to request a continuance or otherwise ask the court to procure the witness’s appearance. The trial court’s statement that “[W]e’ll just go on with the trial, it is what it is . . . , it happens” was insufficient to establish that such motions would have been futile. This statement was in response to defense counsel’s statement that he was “in a bit of a quandary” about what to do, not in response to a motion or a request to continue.