State of Utah v. Frison

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Stacy Frison,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020401-CA
 

F I L E D
(June 12, 2003)
 

2003 UT App 194

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Third District, Salt Lake Department

The Honorable Leslie A. Lewis

Attorneys: Catherine E. Lilly, Salt Lake City, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Greenwood.

BILLINGS, Associate Presiding Judge:

Stacy Frison appeals his conviction of distributing or agreeing, consenting, offering, or arranging to distribute a controlled substance, a second degree felony, in violation of Utah Code Ann. § 58-37-8 (2002).(1) We affirm.

Frison argues the evidence presented at his bench trial was insufficient to convict him for "knowingly and intentionally" aiding another to "distribute . . . or to agree, consent, offer, or arrange to distribute a controlled . . . substance." Utah Code Ann. § 58-37-8(1)(a)(ii); see Utah Code Ann. § 76-2-202 (1999) ("Every person, acting with the mental state required for the commission of an offense[,] who . . . intentionally aids another person to engage in conduct which constitutes an offense[,] shall be criminally liable as a party for such conduct."). Although Frison presented testimony that he did not know anything about the drug deals and did not directly make any drug sales with the undercover officer, the record supports a reasonable inference that Frison knowingly and intentionally

participated in the July 10, 2000 exchange. See American Fork City v. Rothe, 2000 UT App 277,¶7, 12 P.3d 108 ("[W]hile mere presence at the scene of a crime affords no basis for a conviction, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." (quotations and citations omitted)).

For instance, Frison drove the dealer to and from drug deals on at least two occasions, including on July 10, 2000, when Frison was present while the dealer sold cocaine to an undercover officer. According to the officer, Frison drove slowly through the parking lot and acted as a look-out while the sale took place.(2) See id. at ¶10 ("A person who acts as a look-out during the commission of a [crime] is participating in the commission of that crime within the meaning of the [aiding and abetting statute]." (alterations in original) (quotations and citations omitted)). The officer also testified that he stated to the dealer, within Frison's earshot, "It was fifty, right?", just before exchanging fifty dollars for a rock of cocaine.(3) The trial court found the officer's testimony credible. See State v. Goodman, 763 P.2d 786, 787 (Utah 1988) ("[W]e accord deference to the trial court's ability and opportunity to evaluate credibility and demeanor.").

Thus, Frison's conviction does not go "against the clear weight of the evidence," and we do not "otherwise reach[] a definite and firm conviction that a mistake has been made." State v. Larsen, 2000 UT App 106,¶10, 999 P.2d 1252 (quotations and citations omitted). Affirmed.

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Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

1. For convenience, we cite to the most recent version of this statute, which remains unchanged within the relevant portions.

2. The officer testified that Frison "was deliberately moving his head from side to side, scanning the area," and that "[i]t wasn't just casual glances" or other normal activity.

3. Although Frison may not have seen the actual items exchanged, the dealer reached from the front seat, across the bench seat, and into the back seat to make the exchange.