State of Utah v. Disch

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Lynn Disch,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981312-CA

F I L E D
May 6, 1999
  1999 UT App 155 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
William L. Schultz, Moab, for Appellant
Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

When reviewing the sufficiency of the evidence supporting a jury verdict, we review "the evidence and all inferences that may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Gibson, 908 P.2d 352, 355 (Utah Ct. App. 1995). "[W]e will reverse the conviction only when the evidence . . . 'is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.'" State v. Quada, 918 P.2d 883, 887 (Utah Ct. App. 1996) (citation omitted).

Although appellant presented conflicting evidence through his own testimony and that of his fellow inmate, the evidence and all reasonable inferences that can be drawn therefrom support a finding of all the requisite elements of the crime charged. It is not necessary for the State to prove that appellant intended to bring the methamphetamine into the booking area; the state needs only prove that he intended to possess it and was physically within the confines of the correctional facility. See Utah Code Ann. § 58-37-8(2)(c) (Supp. 1998). Deputy Lammert testified that he brought appellant into the booking area to be incarcerated, that at the time he brought appellant into the booking area, there was nothing on the counter but the telephone, that he had appellant empty his pockets onto the counter, and that among the items emptied from appellant's pockets was the paper containing a substance later determined to be methamphetamine. It may be reasonably inferred from this testimony that the methamphetamine must have come from appellant's pockets, which is sufficient to show possession. Further, the fact that the methamphetamine was in appellant's pocket supports the inference that he knowingly and intentionally possessed it. See State v. James, 819 P.2d 781, 789 (Utah 1991) (knowledge and intent may be inferred form circumstances surrounding crime).

It is the exclusive province of the jury to weigh conflicting evidence and judge the credibility of witnesses. SeeState v. Baker, 963 P.2d 801, 809 (Utah Ct. App. 1998). In reviewing a jury verdict, this court will assume that the jury believed the evidence supporting the verdict and disbelieved the evidence contrary thereto. See State v. Brown, 948 P.2d 337, 343 (Utah 1997). We assume the jury believed Deputy Lammert over appellant and his fellow inmate, and decline to substitute our judgment for the jury's.

Appellant's second claim on appeal is that his due process rights, as clarified in State v. Brickey, 714 P.2d 644 (Utah 1986), were violated when the prosecutor dismissed the initial charges of possession of a controlled substance in a drug-free zone after the preliminary hearing, and filed a new charge of possession of a controlled substance in a correctional facility. Brickey limits a prosecutor's ability to refile charges that have been dismissed for insufficient evidence unless the prosecutor can show that new or previously unavailable evidence has surfaced or that other good cause justifies refiling. Id. at 647. The initial charge was voluntarily dismissed by the prosecutor based upon a determination that the charge was made under the wrong subsection of the statute, and the new charge was not the same charge. Thus, Brickey is inapposite. The State acted properly in dismissing the initial charge and filing a new charge.

Based upon the foregoing, we affirm appellant's conviction.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge