State v. Dulaney

State v. Dulaney

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Arthur Lee Dulaney,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20030279-CA

F I L E D

(June 17, 2004)

2004 UT App 205

-----

Third District, Salt Lake Department

The Honorable Dennis M. Fuchs

Attorneys: Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Orme, and Thorne.

GREENWOOD, Judge:

Defendant Arthur Dulaney appeals his conviction for possession of cocaine, a second degree felony, and possession of marijuana, a class A misdemeanor, both in violation of Utah Code Annotated section 58-37-8(2)(a)(i) (Supp. 2003).(1) We affirm.

Defendant first argues that the evidence was insufficient to convict him because no drugs were found in his possession when police officers executed the search warrant on his apartment. In reviewing the sufficiency of the evidence, the appellate court does not sit as a second fact finder. "'[T]he function of a reviewing court is limited to insuring that there is sufficient competent evidence as to each element of the charge to enable a jury to find, beyond a reasonable doubt that the defendant committed the crime.'" State v. James, 819 P.2d 781, 784 (Utah 1991) (citation omitted).

Because police officers did not recover any controlled substances from Defendant when he was searched, the question is whether Defendant was in "constructive possession" of the controlled substances recovered from the bedroom of the apartment. The legal test for constructive possession is "whether there was a sufficient nexus between the defendant and the drugs . . . to permit a factual inference that the defendant had the power and the intent to exercise control over the drugs or paraphernalia." State v. Layman, 1999 UT 79,¶15, 985 P.2d 911. "[T]he evidence 'must raise a reasonable inference that the defendant was engaged in a criminal enterprise and not simply a bystander.'" State v. Layman, 953 P.2d 782, 787 (Utah Ct. App. 1998) (citation omitted), aff'd, 1999 UT 79, 985 P.2d 911.

Depending on the facts presented, courts have used different factors to determine whether a defendant was in constructive possession of drugs. See Layman, 1999 UT 79 at ¶14. In State v. Fox, 709 P.2d 316 (Utah 1985), the Utah Supreme Court relied on the following five factors to analyze whether a homeowner constructively possessed the drugs found in a room he shared with his brother: (1) ownership and/or occupancy of the premises where the drugs were found; (2) incriminating statements made by the accused; (3) incriminating behavior of the accused; (4) presence of drugs in a specific area over which the accused had control, such as a closet or drawer containing the accused's clothing or other personal effects; (5) presence of drug paraphernalia in a place over which the accused has special control. See id. at 319.

Using these factors as a guide, we examine the facts of this case. First, Defendant testified at trial that he had been living in the apartment for a number of days. He further acknowledged sleeping in the bedroom where the drugs were recovered. Next, upon questioning by police after the apartment raid, Defendant made various incriminating statements about using drugs, and selling "just enough [drugs] to get by." Then, after informing Defendant that drugs had been found in the bedroom dresser, a police officer asked him if the drugs were his. Defendant responded by nodding his head affirmatively.(2) Also, Defendant told officers that he kept his clothes in the closet, and that he used clothes kept in the dresser. Drugs were recovered from both of these locations.

Based on these facts, we cannot say that there was not "a sufficient nexus between the defendant and the drugs . . . to permit a factual inference that the defendant had the power and the intent to exercise control over the drugs or paraphernalia." Layman, 1999 UT 79 at ¶15. Therefore, we conclude that there was sufficient evidence to allow a jury to find that Defendant was in constructive possession of the drugs.

Defendant also argues that the trial court failed to exercise any discretion when imposing its sentence. A trial court's sentencing decision is reviewed for an abuse of discretion. See State v. Woodland, 945 P.2d 665, 671 (Utah 1997). A trial court abuses its discretion in sentencing when it "'fails to consider all legally relevant factors' or if the sentence imposed is 'clearly excessive.'" State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (citations omitted).

Specifically, Defendant complains that at sentencing, the trial court failed to exercise its sentencing discretion to reduce Defendant's conviction to the next lower degree pursuant to Utah Code Annotated section 76-3-402 (2003). Defendant claims that, instead, the trial court's sentence was based on its expressed policy of not reducing sentences when the prosecution objects to such a reduction.(3)

The record is clear that the trial court's sentencing decision was based on other factors besides the prosecution's objection, and that the trial court did in fact exercise its discretion in sentencing Defendant. The court explained that the sentence was "based on the nature of the offense," and on Defendant's "record." Further, the trial court exercised its discretion by not imposing a fine. Finally, the trial court offered to sign a letter to the parole board recommending that, based on the nature of the charge, Defendant should receive treatment and be considered for early release. Therefore, Defendant has failed to show that the trial court abused its sentencing discretion by failing to "'consider all legally relevant factors'" and imposing a sentence that was "'clearly excessive.'" McCovey, 803 P.2d at 1235 (citations omitted).

Accordingly, we affirm the jury's verdict and the trial court's sentence of Defendant.

______________________________

Pamela T. Greenwood, Judge

-----

WE CONCUR:

______________________________

Gregory K. Orme, Judge

______________________________

William A. Thorne Jr., Judge

1. Although Utah Code Annotated section 58-37-8 has been amended since Defendant was charged, the amendment does not affect the outcome of this case. Therefore, for ease of reference, we cite to the most recent version of the statute.

2. Defendant testified at trial that he was nodding in response to a question posed simultaneously by another officer. This court is not the fact finder, and it "is within the exclusive province of the jury to judge the credibility of the witnesses and the weight of the evidence." State v. Hardy, 2002 UT App 244,¶11, 54 P.3d 645 (quotations and citation omitted). "'[T]he existence of contradictory evidence or of conflicting inferences does not warrant disturbing the jury's verdict.'" Id. (citation omitted).

3. At the sentencing hearing, after Defendant made his motion to reduce, and the prosecution objected, the trial court, while ruling on the motion said, "I have a policy that I will not reduce over the objection of the State, so I'm not going to reduce it to a third degree felony." Although there are sufficient grounds to support the trial court's sentence, it is nonetheless improper for a trial court to adhere to a mechanical policy regarding sentencing. Each sentencing decision should be made after considering all relevant information, weighing every sentencing alternative, and exercising the trial court's discretion. See, e.g., State v. Sanwick, 713 P.2d 707, 708 (Utah 1986); State v. Lipsky, 608 P.2d 1241, 1244 (Utah 1980).