State v. Shephard

State v. Shephard

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Dean Alan Shephard,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20030235-CA

F I L E D

(November 26, 2004)

2004 UT App 448

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Third District, Salt Lake Department

The Honorable Sheila K. McCleve

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

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

THORNE, Judge:

Defendant Dean Alan Shephard appeals his conviction for possession or operation of a clandestine laboratory in violation of Utah's Clandestine Drug Lab Act (the Act). See Utah Code Ann. § 58-37d-4 (2002). We affirm.

Shephard first argues that his conviction should be reversed because the evidence of his connection to the lab equipment was insufficient to prove a nexus.

Shephard presents an independent sufficiency of the evidence argument and an argument that the trial court committed plain error by failing to dismiss the case sua sponte. However, Shephard's failure to preserve his sufficiency of the evidence argument eliminates his opportunity to argue sufficiency on traditional grounds and limits his available argument to challenging the trial court's inaction. See generally State v. Holgate, 2000 UT 74,¶¶11-14, 10 P.3d 346.

"As a general rule, to ensure that the trial court addresses the sufficiency of the evidence, a defendant must request that the court do so. . . . [W]hen a defendant fails to make such a motion" the trial court is under no duty to examine the evidence. State v. Holgate, 2000 UT 74,¶¶14-16, 10 P.3d 346. However, "there is a certain point at which an evidentiary insufficiency is so obvious and fundamental that it would be plain error for the trial court not to discharge the defendant." Id. at ¶17. On appeal, we will conclude that such a point was reached if, "after viewing the evidence and all inferences drawn therefrom in a light most favorable to the jury's verdict, the evidence 'is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime for which he or she was convicted.'" Id. at ¶18 (quoting State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993)). But even if we find that this condition has been met, we will not reverse unless we then determine that "the evidentiary defect was so obvious and fundamental that it was plain error to submit the case to the jury." Id.

Shephard argues that the State's evidence failed to establish any nexus or connection between Shephard and the lab equipment. The Act prohibits the actual or constructive possession of a controlled substance precursor or laboratory equipment with the intent to engage in a clandestine laboratory operation. See Utah Code Ann. § 58-37d-4; State v. Hansen, 732 P.2d 127, 131-32 (Utah 1987). To prove constructive possession, there must be a "sufficient nexus" between the accused and the clandestine laboratory to permit an inference that the accused had "both the power and the intent to exercise dominion and control over" the laboratory materials. State v. Layman, 1999 UT 79,¶13, 985 P.2d 911 (quotations and citations omitted).

Here, the State presented ample evidence connecting Shephard to the illegal laboratory. Police discovered a clandestine laboratory in the garage of a house. Although he did not reside there, Shephard was alone in the house when the police arrived. The homeowner testified that a bicycle found outside the garage containing the lab, a backpack containing glassware and methamphetamine precursors, and a jacket found near the lab all belonged to Shephard. Additionally, the police found Shephard's fingerprint on both lab glassware and a digital scale found in the home. Police officers also discovered both methamphetamine and a recipe for cooking methamphetamine in the house. Finally, a witness testified that he had visited the house to use methamphetamine with Shephard and, if product was available, to purchase methamphetamine from him.

After examining the evidence that was before the trial court, we have no difficulty in concluding that a reasonable jury could have determined that Shephard was connected to the lab and responsible for its operation. Consequently, Shephard's first claim is without merit.

Shephard also argues that his trial counsel was ineffective by failing to move for a directed verdict based on the alleged insufficiency of the evidence. To prove ineffective assistance of counsel, Shephard must show that his counsel's performance was objectively deficient and that counsel’s performance prejudiced the defendant. See State v. Kelley, 2000 UT 41,¶25, 1 P.3d 546 (quotations and citations omitted). However "[f]ailure to raise futile objections does not constitute ineffective assistance of counsel." Id. at ¶26. We have examined the State's evidence and can see no possibility that a motion for a directed verdict would have succeeded. See State v. Montoya, 2004 UT 5,¶¶28-29, 84 P.3d 1183 (reciting the standard of review for the denial of a motion for a directed verdict). Consequently, a motion for a directed verdict would have been futile and counsel's failure to make the motion does not constitute ineffective assistance of counsel.

The judgment of the trial court is affirmed.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge