State of Utah, v. Herrera

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Daniel Herrera,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000819-CA

F I L E D
February 22, 2002 2002 UT App 55 -----

Before Judges Davis, Greenwood, and Orme.

GREENWOOD, Judge:

Defendant appeals his conviction for possession of methamphetamine, enhanced to a first degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i),(d) & (4)(a)-(b) (Supp. 2000), and possession of paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5(1) (1998), asserting that the evidence was insufficient for the jury to find he had constructive possession of the illegal items. We affirm.

When reviewing a jury verdict for sufficiency of the evidence, this court views the "'evidence and the reasonable inferences which might be drawn therefrom . . . in the light most favorable to the jury verdict. A jury conviction is reversed for insufficient evidence only when the evidence, so viewed, 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. Salas, 820 P.2d 1386, 1387 (Utah Ct. App. 1991) (quoting State v. Johnson, 774 P.2d 1141, 1147 (Utah 1989)).

Because the methamphetamine and paraphernalia were not found on defendant's person, but in the backseat area of a vehicle where defendant was sitting alone, it must be established that defendant had constructive possession of the drugs and paraphernalia. Constructive possession can be found when: "[T]here [is] a sufficient nexus between the accused and the drug [or paraphernalia] to permit an inference that the accused had both power and the intent to exercise dominion and control over the drug [or paraphernalia]." State v. Layman, 1999 UT 79,¶13, 985 P.2d 911 (quoting State v. Fox, 709 P.2d 316, 319 (Utah 1985)). "[T]he determination that someone has constructive possession of drugs is a factual determination which turns on the particular circumstances of the case." Fox, 709 P.2d at 319. Defendant's "mere occupancy of a portion of the premises where the drug[s were] found cannot, without more, support a finding" that defendant knowingly and intentionally possessed a controlled substance. State v. Hansen, 732 P.2d 127, 132 (Utah 1987). However, constructive possession may be established through circumstantial evidence. See State v. Carlson, 635 P.2d 72, 74 (Utah 1981).

At trial, the State introduced the following evidence: (1) defendant was the sole occupant of the backseat of the vehicle; (2) defendant was seen ducking down and reaching underneath the driver's seat where the methamphetamine was found; (3) a black box containing drugs and paraphernalia was found open, in plain view, on the passenger side floorboard of the backseat; (4) defendant was the only one in close proximity to the drugs and paraphernalia; and (5) the occupants in the front seat of the car were not observed making any furtive movements. Given this circumstantial evidence against defendant, we cannot say that the evidence was "'sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he was convicted.'" Salas, 820 P.2d at 1387 (citation omitted).

We conclude that sufficient evidence existed to prove a "nexus between [defendant] and the drug[s and paraphernalia] to permit an inference that [defendant] had both the power and the intent to exercise dominion and control over the drug[s and
paraphernalia]." Layman, 1999 UT 79 at ¶13. Therefore, we affirm defendant's conviction.(1)
 
 
 

______________________________
Pamela T. Greenwood, Judge -----

WE CONCUR:
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. Because we affirm defendant's convictions, we do not reach the State's argument under State v. Holgate, 2000 UT 74, 10 P.3d 346.