State of Utah v. Ashcraft

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State of Utah,
Plaintiff and Appellee,

v.

Shannon Jess Ashcraft,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990678-CA

F I L E D
May 25, 2000

2000 UT App 154
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Third District, Tooele Department
The Honorable Leon A. Dever

Attorneys:
Julie George, Salt Lake City, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Davis.

DAVIS, Judge:

Shannon Jess Ashcraft appeals his conviction on the grounds that the trial court erred in denying his motion for a new trial based on prosecutorial misconduct and that the evidence presented was insufficient to sustain the jury's verdict. Defendant was convicted under Utah Code Ann. § 76-10-503(2) (1999) for possession of a knife, a third degree felony, and possession of a firearm, a second degree felony. We affirm.

The test to determine whether an improper statement in closing remarks constitutes reversible error is: (1) whether the remark called to the jurors' attention matters that they could not properly consider in reaching a verdict; and (2) the statement's prejudicial effect on the defendant's case. SeeState v. Colwell, 2000 UT 8,¶39, 994 P.2d 177. To determine whether a given statement constitutes prosecutorial misconduct, "the statement must be viewed in light of the totality of the evidence presented at trial." State v. Cummins, 839 P.2d 848, 852 (Utah Ct. App. 1992). "'Further, because the trial court is in the best position to determine the impact of a statement upon the proceedings, its rulings . . . will not be overturned absent an abuse of discretion.'" State v. Longshaw, 961 P.2d 925, 927 (Utah Ct. App. 1998) (citation omitted).

During the prosecutor's closing argument, he referred to evidence that had been admitted to establish the officers' motive for searching defendant and not for the truth of the matter asserted.(1) Although the prosecutor's remarks may have improperly called the jury's attention to matters that should not have been considered, we hold that, because of the breadth of the prohibited conduct, there was no prejudicial effect.
 

The trial court's curative admonition, as well as evidence of defendant's guilt, can be considered in determining whether the statements had a prejudicial effect. See id. at 929, 931. If the evidence of the defendant's guilt is strong the statement will not be presumed prejudicial, whereas, in a case where the evidence is less compelling the appellate court will scrutinize the statement more closely. See id. at 931.
 

In this case, there was ample evidence for the jury to conclude that defendant had constructive possession of a firearm, even if the trial judge's curative admonition was inadequate. Section 76-10-503(2) is broadly worded to include both constructive possession, custody, or control over a weapon, and actual possession.(2) Although contradictory evidence was presented as to why defendant had the firearm--whether as a purchase or as collateral for a loan--there was sufficient evidence for the jury to conclude that he had control of the firearm. Defendant admitted to an officer that he had a firearm. Defendant called his girlfriend and directed her to give the firearm to the officer. There was ammunition for the weapon in the vehicle that defendant was found driving. The evidence presented was sufficient for the jury to conclude that the firearm was under defendant's control regardless of whether he ever physically possessed it. Therefore, we will not presume that the prosecutor's statements were prejudicial. We hold that the effect of the prosecutor's statements was not prejudicial given the strength of the evidence of defendant's guilt.
 

Furthermore, given the broad deference afforded to the fact finder, "'[our] power to review a jury verdict challenged on grounds of insufficient evidence is limited.'" Longshaw, 961 P.2d at 931 (quoting State v. Souza, 846 P.2d 1313, 1322 (Utah Ct. App. 1993)) (alteration in original). We hold that defendant's argument that the evidence was insufficient to sustain the jury's verdict is without merit.
 

Affirmed.
 
 
 
 
 

______________________________

James Z. Davis, Judge
 

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WE CONCUR:
 
 
 
 
 

______________________________

Pamela T. Greenwood,

Presiding Judge
 
 
 
 
 

______________________________

Norman H. Jackson,

Associate Presiding Judge

1. We are not called upon to determine whether the evidence was properly admitted for that purpose.

2. Section 76-10-503(2) states:

(a) Any person who is on parole or probation for a felony may not have in his possession or under his custody or control any explosive, chemical, or incendiary device . . . .

(b) Any person who violates this subsection is guilty of a third degree felony, but if the dangerous weapon is a firearm or an explosive, chemical, or incendiary device he is guilty of a second degree felony.

Utah Code Ann. § 76-10-503(2) (1999).