State of Utah v. Johnson

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State of Utah,
Plaintiff and Appellee,

v.

John Johnson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000372-CA

F I L E D
June 1, 2001
2001 UT App 174
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Seventh District, Monticello Department
The Honorable Lyle R. Anderson

Attorneys: William L. Schultz, Moab, for Appellant
Craig C. Halls, Monticello, for Appellee

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Before Judges Greenwood, Davis, and Thorne.

THORNE, Judge:

Defendant John Johnson appeals from convictions for Possession of a Controlled Substance with a Prior Conviction, a class A misdemeanor, in violation of Utah Code Ann. § 57-37-8(2)(a)(i) (Supp. 2000), and Possession or Use of Drug Paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5(1) (Supp. 2000). We affirm.

Defendant argues that the State's evidence against him was insufficient to sustain his convictions. "'When reviewing a bench trial for sufficiency of evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.'" State v. Larsen, 2000 UT App 106,¶10, 999 P.2d 1252 (citation omitted).

However, the defendant must first "'marshal all of the evidence in support of the trial court's findings of fact and then demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the findings against an attack.'" Id. at ¶11 (emphasis added) (citation omitted). "The burden on a defendant challenging the sufficiency of the evidence is heavy." Id.

In the present matter, defendant has marshaled a mere five material facts. Defendant has, however, completely failed to marshal any of the evidence supporting the trial court's findings, which appear to have been critical in rendering its decision.

For example, defendant did not marshal any of the following factual findings: (1) the trial court found that defendant "did implicate himself, both on the side of the road and at the jail;" (2) the trial court found that defendant's and Mr. Bollenbaugh's(1) testimonies were inconsistent; (3) the trial court found that Trooper Randall's testimony was more credible than defendant's; and (4) the trial court found that defendant had smoked marijuana with his brother during the trip, and therefore, knew that his brother possessed both the marijuana and the pipe.

As such, defendant has failed to satisfy the marshaling requirement. We therefore do not reach the merits of defendant's insufficiency claim.

The judgment of the trial court is affirmed.
 
 

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William A. Thorne, Jr., Judge -----

I CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

DAVIS, Judge (concurring in the result):

I concur in the result only because Defendant, both in the trial court and on appeal, relied exclusively on insufficiency of the evidence.

It is apparent from the record, the briefs, and counsel's responses at oral argument that the State failed to prove the corpus delicti of constructive possession of a controlled substance.

"Under the Utah corpus delicti rule, before [a defendant's] post-crime inculpatory statements are admissible [against him or her], the State must show by clear and convincing evidence that (i) a wrong was done and (ii) such wrong was the result of criminal conduct." For purposes of establishing a corpus delicti, the State need not show by "independent evidence 'that the accused was the guilty agent.'" "The rule is designed as a 'safeguard against convicting the defendant on the strength of false confessions.'"

State v. DeHart, 2001 UT App 12,¶19, 17 P.3d 1171 (quoting State v. Johnson, 821 P.2d 1150, 1162, 1164 (Utah 1991) (citations omitted)). See also State v. Fox, 709 P.2d 316, 318 (Utah 1985) (explaining that constructive possession occurs where there is a "sufficient nexus between the accused and the drug to permit an inference that the accused had both the power and the intent to exercise dominion and control over the drug").

As can easily be seen from the main opinion, there is no evidence against Defendant independent of his admissions that he was a "guilty agent." But for Defendant's failure to properly assert the corpus delicti argument, I would reverse his conviction.
 
 
 

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James Z. Davis, Judge
 

1. Mr. Bollenbaugh was both a passenger in, and the owner of, the car.