State v. McCaffery

State v. McCaffery

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Michael McCaffery,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020923-CA
 

F I L E D
(December 4, 2003)
 

2003 UT App 420

 

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Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: Shelden R. Carter, Provo, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

BENCH, Judge:

McCaffery argues that the jury's verdicts were inconsistent because the jury convicted him of Delivery of Drug Paraphernalia to a Minor in a Drug Free Zone, see Utah Code Ann. § 58-37a-5(3) (2002), while acquitting him of Distribution of or Arranging to Distribute Marijuana in a Drug Free Zone. See Utah Code Ann. § 58-37-8(1)(a)(ii) (2002).

"We reverse a jury verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted." State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993). Even though the marijuana was contained within the paraphernalia, the jury's verdicts were not inconsistent because a defendant must act "knowingly and intentionally" with regard to the distribution of marijuana, Utah Code Ann. § 58-37-8(1)(a), while only acting recklessly with regard to delivery of drug paraphernalia. See Utah Code Ann. § 58-37a-5(3); see also Utah Code Ann. § 76-2-102 (1999) (explaining that "when the definition of the offense does not specify a culpable mental state [(as with the delivery of drug paraphernalia statute)] . . . intent, knowledge, or recklessness shall suffice to establish criminal responsibility" (emphasis added)). Here, the evidence is not "sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt" that McCaffery recklessly delivered drug paraphernalia. Dunn, 850 P.2d at 1212.

McCaffery also argues that the trial court erred by refusing to instruct the jury that it could find him guilty of the lesser included offense of Contributing to the Delinquency of a Minor. See Utah Code Ann. § 76-10-2301(2) (Supp. 2003). We review for correctness a trial court's refusal to give a requested jury instruction. See State v. Hamilton, 827 P.2d 232, 238 (Utah 1992).

The relevant portion of the Contributing to the Delinquency of a Minor statute provides that "[a]n offense committed under Subsection (2) is in addition to any completed or inchoate offense which the actor may have committed personally or as a party." Utah Code Ann. § 76-10-2301(4) (emphasis added). Because McCaffery could have been charged with contributing to the delinquency of a minor in addition to distribution and delivery, contributing is not a lesser included offense.

We therefore affirm.

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Russell W. Bench, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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William A. Thorne Jr., Judge