State v. Valdez

State v. Valdez

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Tracy Valdez,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030056-CA
 

F I L E D
(October 21, 2004)
 

2004 UT App 366

 

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Fourth District, Provo Department

The Honorable Fred D. Howard

Attorneys: Margaret P. Lindsay, Orem, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Greenwood, Orme, and Thorne.

GREENWOOD, Judge:

    Defendant Tracy Valdez appeals the drug-free zone enhancement of his conviction for possession of methamphetamine, a second degree felony. See Utah Code Ann. §§ 58-37-8(2)(a)(i), (4)(a)(vi)-(vii), (4)(a)(ix) (Supp. 2004).(1) We affirm.

    In support of his appeal Defendant presents two arguments. First, Defendant asserts that the State's evidence presented to the jury was insufficient to convict him of the drug-free zone enhancement based on proximity to a church. Second, he argues that his counsel's failure to move for a directed verdict constituted ineffective assistance of counsel.(2)

    As to Defendant's first claim, because he did not preserve an objection at trial to the trial court's submission of the enhancement to the jury, and because he did not allege any "procedural anomalies or other exceptional circumstances," State v. Holgate, 2000 UT 74,¶12, 10 P.3d 346, that impeded such a preservation, we review his claim under a plain error standard, with all inferences viewed in a light most favorable to the jury's verdict. See id. at ¶18.

    Defendant asserts the trial court erred because the evidence presented at trial was insufficient to establish that he was in possession of a controlled substance at the apartment where he was staying. While Utah Code section 58-37-8(2)(a)(i) makes the possession of a controlled substance a second degree felony, if the possession occurs within 1000 feet of a church, the penalty is enhanced to a first degree felony. See Utah Code Ann. §§ 58-37-8(4)(a)(ix), (4)(b). Defendant concedes that the apartment building was located less than 1000 feet from two church parking lots, but nevertheless argues that the jury lacked sufficient evidence that he possessed any controlled substances while at or leaving the apartment. Essentially, Defendant asserts that he could have acquired the methamphetamine during the thirty to forty-five seconds that Officer Giles could not see him. However, the jury could have reasonably based its determination on the testimony of Officer Giles, that Defendant could not have obtained the drugs in the brief time he could not see Defendant. Hence, the evidence was sufficient to support the jury's conclusion. Accordingly, there was no error by the trial court. Because the trial court did not err, the defendant necessarily fails to establish plain error.

    Second, Defendant asserts that his counsel's failure to move for a directed verdict regarding the drug-free zone enhancement penalty at the end of the State's case in chief constituted ineffective assistance of counsel.

    To establish a claim of ineffective assistance of counsel we have consistently followed the United States Supreme Court standard in Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, the defendant has the burden to "show 'first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant.'" State v. Kelley, 2000 UT 41,¶25, 1 P.3d 546 (quoting Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994)) (other quotation and citation omitted).

    Defendant's ineffective assistance claim fails because he cannot show that he was prejudiced by his attorney's failure to move for a directed verdict. We have determined that the evidence presented at trial was sufficient to convict Defendant. Thus, counsel's objection to the sufficiency of the evidence would have properly been overruled by the trial court. Defense counsel's failure to raise a futile objection cannot be grounds for ineffective assistance of counsel. See id. at ¶26.

    Accordingly, we affirm the jury's verdict and Defendant's sentence.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. Although the legislature has amended Utah Code section 58-37-8 since Defendant was charged, the amendment does not affect the outcome of this case. Therefore, for ease of reference, we cite to the most recent version of the statute.

2. Defendant also challenges his conviction on the grounds that the shopping area near his arrest was not a "shopping mall" under the terms of the drug-free zone enhancement penalty statute. We decline to address this issue, as a reasonable jury could have convicted the defendant based on his proximity to the two church properties while he was at the apartment.