State of Utah v. Nunez

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State v. Nunez

2001 UT App 388



State of Utah,
Plaintiff and Appellee,


Wintron Nunez,
Defendant and Appellant.

(Not For Official Publication)

Case No. 20010019-CA

(December 13, 2001)



Third District, Salt Lake Department
The Honorable Roger A. Livingston

Joan C. Watt and Deborah Kreeck Mendez, Salt Lake City, for Appellant
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee


Before Judges Greenwood, Billings, and Orme.

GREENWOOD, Presiding Judge:

Defendant was convicted of arranging to distribute a controlled substance, specifically marijuana, within 1,000 feet of a public park, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(ii), (4)(a)(ix) (1998). We affirm.

Defendant argues the trial court erred when it refused to give defendant's requested jury instruction on the lesser-included offense of attempted possession of a controlled substance.

[A] defendant is entitled to a requested lesser-included offense instruction if (1) the two offenses are related because some of their statutory elements overlap, and the evidence at trial of the greater offense involves proof of some or all of those overlapping elements; and (2) the evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting the defendant of the lesser-included offense.

State v. Evans, 2001 UT 22,¶18, 20 P.3d 888.

Defendant first argues the criminal statutes overlap because both require possession or an attempt to possess. Defendant was convicted under section 58-37-8(1)(a)(ii), which makes it unlawful to "distribute a controlled or counterfeit substance, or to agree, consent, offer or arrange to distribute a controlled or counterfeit substance." The jury instruction contained this language. Possession of marijuana is defined in section 58-37-8(2)(a), which provides: "It is unlawful: (i) for any person knowingly and intentionally to possess . . . a controlled substance." Utah Code Ann. § 76-4-101(1) (1999) makes it a crime to attempt to violate any section of the code including 58-37-8(2)(a).

Arranging to distribute a controlled substance does not, however, require possession or an intent to possess a controlled substance. Arranging to distribute a controlled substance is defined as "any witting or intentional lending of aid in the distribution of drugs, in whatever form the aid takes." State v. Gray, 717 P.2d 1313, 1320 (Utah 1986).

This court recently examined section 57-37-8(1)(a)(ii) and the requisite elements necessary to support a conviction.

To make out a prima facie case under the statute, the State must show that an offer, agreement, consent, or arrangement to distribute controlled substances was made by the defendant and, whichever variation or variations it charges, that the behavior was "engaged in knowingly or with intent that such distribution would, or would be likely to, occur." . . .

To be guilty of arranging, the defendant must have committed some "act in furtherance of an arrangement" to distribute controlled substances.

State v. Hester, 2000 UT App 159,¶¶9-10, 3 P.3d 725 (footnote and citations omitted) cert. denied, 9 P.3d 170 (Utah 2000). Therefore, defendant's argument that the two crimes have overlapping elements fails because conviction of arranging to distribute a controlled substance requires no proof that defendant actually possessed or attempted to possess marijuana.

Defendant also fails to meet the second prong of Evans because the evidence provides no rational basis for acquittal on the charge of arranging to distribute marijuana and conviction of attempted possession. Defendant's own testimony supports his conviction of attempted possession in addition to the arranging to distribute charge. Defendant admitted telling Ryans, one of two men seeking to purchase marijuana defendant met in Pioneer Park, that he might know someone who had marijuana. He also conceded that he offered to take Farillas, the second man and an undercover police officer, to his friend Steve who usually had marijuana. Defendant described how he led the two men on a search for Steve and told Farillas that Steve had run out of marijuana earlier that morning. The jury, therefore, had sufficient evidence to determine defendant committed an "act in furtherance of arranging to distribute a controlled substance," based on defendant's own testimony. Gray, 717 P.2d at 1321; see also Hestor, 2000 UT App at ¶10.

The evidence also demonstrates that after Farillas successfully purchased marijuana from a third person, defendant sought to share the marijuana. Although defendant could have been charged for attempted possession on this evidence, as noted above, the elements of the two crimes do not overlap. Therefore, the trial court did not err in refusing to give the lesser-included offense instruction because evidence in the record supporting a conviction for a lesser offense of attempted possession has no bearing on defendant's conviction for

arranging to distribute a controlled substance.


Pamela T. Greenwood, Presiding Judge



Judith M. Billings, Judge

Gregory K. Orme, Judge