State of Utah v. Stanley

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Patrick L. Stanley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981126-CA

F I L E D
April 6, 2000
  2000 UT App 94 -----

Fourth District, Provo Department
The Honorable Lynn W. Davis

Attorneys:
Margaret P. Lindsay, Provo, for Appellant
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee

-----

Before Judges Bench, Billings, and Orme.

BILLINGS, Judge:

Defendant was convicted of one count of distributing or arranging to distribute methamphetamine in a drug-free zone with a prior conviction and one count of possession or use of methamphetamine in a drug-free zone with a prior conviction. We affirm.

Defendant raises several issues on appeal. First, defendant argues the trial court's jury instruction on his entrapment defense was legally insufficient. Defendant claims the entrapment instruction failed to instruct the jury on certain factors it should consider in employing the "objective" standard of entrapment. See State v. Taylor, 599 P.2d 496, 499-500 (Utah 1979). The trial court gave an entrapment instruction following the statutory language of Utah Code Ann. § 76-2-303(1) (1999). In Taylor, the Utah Supreme Court explained that the language of section 76-2-303 "by its express terms incorporates the objective standard," 599 P.2d at 499, under which "the focus is not on the propensities and predisposition of the specific defendant but on whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power." Id. at 500 (footnote omitted).

Utah's appellate courts have previously approved giving only the statutory definition of entrapment to the jury. See State v. Cripps, 692 P.2d 747, 749 (Utah 1984); State v. Salmon, 612 P.2d 366, 369 (Utah 1980); State v. Squire, 888 P.2d 1102, 1104 (Utah Ct. App. 1994). "So long as the jury instruction used was accurate, it was not error for the trial court to refuse a different instruction that was also accurate." State v. Gallegos, 849 P.2d 586, 590 (Utah Ct. App. 1993). The instruction given was an accurate statement of the law; thus, the trial court's refusal to include the Taylor language as defendant requested was not error.

Defendant next argues that the trial court committed plain error in instructing the jury, as a substantive element of the offense, that defendant had previously been convicted of possession of a controlled substance. Because defendant did not object to the court's instruction at trial, we review it under a plain error standard. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). To show plain error, defendant must show: "'(i) an error occurred; (ii) the error was obvious; and (iii) the error was harmful.'" State v. Portillo, 914 P.2d 724, 726 (Utah Ct. App 1996) (quoting State v. Menzies, 889 P.2d 393, 403 (Utah 1994)).

Even if we were to conclude that the instruction given was obvious error, we conclude that it was harmless. "An error is harmful if 'absent the error, there is a reasonable likelihood of a more favorable outcome,' or 'our confidence in the verdict is undermined.'" Id. (quoting Dunn, 850 P.2d at 1208-09). Evidence of defendant's prior convictions had already been presented to the jury during defendant's own testimony. On direct examination, defendant acknowledged his past convictions, and the admissibility of that evidence is not challenged on appeal. Because evidence of defendant's prior drug convictions had already reached the jury through defendant's own testimony, we cannot say that without the challenged portion of Instruction no. 5, there would have been a reasonable likelihood of a more favorable outcome for defendant.

Defendant claims that, based upon the obvious errors in Instruction no. 5 to which no objections were made, he was denied effective assistance of counsel. To prevail on this claim, defendant must 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.'" Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994) (quoting Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988)).

Because we have determined that defendant was not prejudiced by Instruction no. 5, defendant's counsel's failure to object to the instruction was likewise not prejudicial to defendant. Therefore, defendant was not denied the effective assistance of counsel.

Finally, defendant claims that the evidence was insufficient to allow the jury to find beyond a reasonable doubt that the offenses occurred within a drug-free zone. We will reverse defendant's jury conviction for insufficient evidence only if 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. Petree, 659 P.2d 443, 444 (Utah 1983). At trial, the state presented evidence, through the testimony of Officer Harold Terry, that the motel where the offenses took place was within 1,000 feet of a McDonald's playland and a high school ball field. The defense presented no evidence to counter this testimony. On appeal defendant argues the evidence was insufficient because the officer did not testify that the ball field was within 1,000 feet of Room 2 of the motel, where the transaction occurred. However, Officer Terry testified unequivocally that the playland and the ball field were less than one and a half blocks away from the motel, that he had personally measured the length of a block to be between 400 and 600 feet, and that he had consulted an aerial photograph map of the area which showed the playland and ball field to be within a 1,000 foot circle centered on the motel. The officer's testimony and reasonable inferences from it were sufficient to prove that the sale took place within 1,000 feet of a drug-free zone. Thus, we affirm.
 
 
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge