State of Utah v. Duccini

State of Utah v. Duccini  
IN THE UTAH COURT OF APPEALS
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MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

Duke Duccini,
Defendant and Appellant.

Case No. 971562-CA

F I L E D
(October 29, 1998)
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Second District, Ogden Department
The Honorable W. Brent West

Attorneys:
James M. Retallick, Ogden, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Greenwood.

PER CURIAM:

Appellant appeals from a conviction of possession of a controlled substance and possession of drug paraphernalia. We affirm.

Appellant contends that the district court erred in failing to instruct the jury on the issue of jurisdiction. Specifically, appellant contends that the State failed to submit any evidence of where appellant had consumed drugs and therefore failed to establish that a Utah court had jurisdiction to try him for possession. He asserts that the jury should have been instructed that if the State failed to prove that drug use occurred within its jurisdictional boundaries, they could not convict appellant.

A trial court has the duty to instruct a jury on the law applicable to the facts of the case. Ames v. Maas, 846 P.2d 468, 471 (Utah Ct. App. 1993). Failure to give a requested instruction will result in reversal only if the omission tends to mislead the jury to the prejudice of the complaining party or insufficiently advises the jury on the law, upon viewing the instructions in the aggregate. See id.; Biswell v. Duncan, 742 P.2d 80, 88 (Utah Ct. App. 1987). An appeal challenging the trial court's refusal to give a requested instruction presents a question law that we review for correctness, affording no particular deference to the trial court. State v. Singh, 819 P.2d 356, 360 (Utah Ct. App. 1991).

The issue of jurisdiction is solely the province of the court, not the jury. See Utah Code Ann. 76-1-201(5) (Supp. 1998) (judge shall determine Utah's jurisdiction). See also State v. Payne, 892 P.2d 1032, 1033 (whether district court has jurisdiction to hear a criminal matter is question for the court). The trial court's refusal to instruct the jury as appellant requested is consistent with the law and was therefore not an error.

Although not framed as an issue on appeal, appellant's challenge can be construed as a challenge to the sufficiency of the evidence on the element of jurisdiction. Appellant cursorily states that the State put on absolutely no evidence of jurisdiction but instead relied entirely on the presumption that the consumption of drugs occurred within the state, unfairly shifting the burden of proof to him and violating his due process right. See State v. Sorenson, 758 P.2d 466 (Utah Ct. App. 1988). We disagree.

A review of the transcript reveals sufficient evidence to support the existence of jurisdiction by a preponderance of the evidence. See Utah Code Ann. 76-1-501(3) (1996). Appellant admitted that he was strung out on meth and that he had been shooting up, displayed track marks and bruising on his arms, tried to cut a deal, and was found alone in a room with an open box of drugs, a propane torch and a syringe full of liquid. All of these facts support the conclusion that appellant had consumed drugs in Utah. Moreover, in challenging jurisdiction, appellant unreasonably dismisses the fact that the jury could have convicted him of possession not only based upon his admission that he had been "shooting up," but also based upon the drugs found under his control at his residence. Appellant's conviction is affirmed.
 

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Russell W. Bench, Judge
 

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Judith M. Billings, Judge
 

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Pamela T. Greenwood, Judge