State of Utah v. Gallegos

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Joseph Gallegos,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990531-CA

F I L E D
April 12, 2001 2001 UT App 118 -----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
Maurice Richards, Ogden, for Appellant
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Thorne.

THORNE, Judge:

Appellant Joseph Gallegos appeals from his conviction for Possession of a Controlled Substance with the Intent to Distribute, a first degree felony, in violation of Utah Code Ann. §§ 58-37-8(1), -(4)(c) (Supp. 1999). We affirm.

Appellant first argues that by entering into a plea bargain with his co-defendant, the State violated appellant's right to compulsory process. Generally, "claims not raised before the trial court[, including constitutional claims,] may not be raised on appeal." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346. The application of this rule may be avoided if appellant demonstrates the existence of either plain error or exceptional circumstances. See id.

Here, co-defendant entered into the plea agreement well before appellant's trial date, and appellant was clearly aware of this fact. Appellant had ample opportunity to raise an objection with the trial court, but failed to do so. Further, appellant has failed to argue either plain error or exceptional circumstances on appeal. Therefore, we refuse to entertain appellant's first claim of error.

Appellant next argues that the evidence presented was insufficient to support his conviction. When reviewing a jury verdict for sufficiency of the evidence, we will sustain the verdict "'"[w]here there is any evidence, including reasonable inferences that can be drawn from it, from which findings of all elements of the crime can be made beyond a reasonable doubt."'" State v. Harley, 1999 UT App 197,¶12, 982 P.2d 1145 (citations omitted).

The jury heard testimony from the undercover officer involved in the arrest that she observed appellant giving co-defendant two baggies, which the police later determined to contain methamphetamine. The officer also testified that she saw a number of additional baggies in appellant's possession during the transaction. The arresting officer testified that two baggies similar to those sold to co-defendant were found by police officers searching the ground along appellant's attempted escape route. Finally, the jury heard testimony that, prior to appellant's apprehension, he was seen making several movements that were consistent with reaching into his fanny pack and discarding objects.(1) From this evidence, we conclude that the jury could have reasonably determined appellant possessed a controlled substance with the intent to distribute.

Appellant next claims that his trial counsel provided ineffective assistance, resulting in appellant's conviction. To succeed on this claim, appellant must "show that trial counsel's performance was deficient in that 'it fell below an objective standard of reasonableness,' and that the deficient performance prejudiced the outcome of the trial." State v. Garrett, 849 P.2d 578, 579 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). If we are able find appellant was not prejudiced, we need not address the issue of deficient performance. See State v. Higgins, 920 P.2d 1195, 1199 (Utah Ct. App. 1996).

Appellant's argument centers on trial counsel's failure to call two potential witnesses to testify at trial: (1) appellant's sister-in-law, and (2) an unidentified person who was reportedly sitting in an unmarked police car just a few feet from the drug transaction. Appellant claims that his sister-in-law's testimony would have supported his assertion that, contrary to the testimony of three police officers, he was not wearing a fanny pack on the night of his arrest. However, the jury heard similar testimony from appellant contradicting the officer's testimony and therefore, this information was already in the jury's hands. We conclude that an additional iteration would not have significantly clarified the conflict.

Finally, appellant suggests that the unidentified witness from the police car would have testified that "it was too dark to see" on the night of appellant's arrest. However, such testimony would have directly contradicted appellant's own testimony concerning visibility that night and the likely effect would have been to damage appellant's credibility.

Accordingly, trial counsel's failure to call these potential witnesses did not prejudice the results of appellant's trial, and we conclude that this argument is without merit.

Therefore, we affirm appellant's conviction.
 
 

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

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Judith M. Billings, Judge

1. Contrary to appellant's claims, the State's failure to introduce the fanny pack into evidence is not material.