C.L. v. State (In re C.L.)

C.L. v. State (In re C.L.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of C.L.,
a person under eighteen years of age.

______________________________

C.L.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040037-CA
 

F I L E D
(May 19, 2005)
 

2005 UT App 221

 

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Second District Juvenile, Ogden Department, 158048

The Honorable J. Mark Andrus

Attorneys: Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Orme.

ORME, Judge:

    We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issue presented is readily resolved under applicable law.

    The State and C.L. agree on the applicable legal standard for determining whether C.L. had constructive possession of the methamphetamine and paraphernalia in this case. See State v. Layman, 1999 UT 79,¶¶13, 15, 985 P.2d 911 ("The final legal test [to prove constructive possession] is . . . whether there was a sufficient nexus between the defendant and the drugs or paraphernalia to permit a factual inference that the defendant had the power and the intent to exercise control over the drugs or paraphernalia." Indeed, "[t]here must be facts which show that the accused intended to use the drugs or paraphernalia as his own."). The parties disagree, however, about whether the evidence in this case establishes that C.L. was in constructive possession of these items.

    The gist of C.L.'s argument on appeal is that the facts in this case are sufficiently inconclusive as to whether C.L. knew of, possessed, or had any intent to use the drugs or paraphernalia the officers found in his friend Raymond's car. As a result, C.L. argues, the juvenile court was wrong to conclude he constructively possessed the drugs and paraphernalia. We agree.

    While Raymond's testimony gave some indication of an intention on C.L.'s part to leave work with Raymond, go to Raymond's house, play videogames, and smoke methamphetamine, there was no evidence presented to demonstrate C.L.'s intent to use the drugs and paraphernalia specifically found in Raymond's car, at which time C.L. was not himself in the car and had not been for some time. In fact, it is far from clear that C.L. even knew the contraband was in the car. Raymond testified that he alone put the drugs and pipe under the dashboard of his car and his memory was vague about whether C.L. entered the car at the same time or whether C.L. was aware at all that Raymond had put the drugs and pipe where he did.

    While the State was able to discount the credibility of Raymond's testimony and adduce some evidence that C.L. may have known about the drugs, or even used them, through Officer Butters's testimony,(1) the officer's testimony is insufficient, by itself, to establish the required nexus between C.L. and the drugs or paraphernalia. Although it is true, as the State argues, that Raymond's statements to Officer Butters are technically substantive evidence under rule 801 of the Utah Rules of Evidence, see Utah R. Evid. 801(d)(1)(A); State v. Ramsey, 782 P.2d 480, 483 (Utah 1989),(2) it is also clear that "not all substantive evidence is of equal probative value" in serving as the basis for a conviction. Ramsey, 782 P.2d at 483. In Ramsey, the Utah Supreme Court unequivocally stated that while rule 801(d)(1)(A) of the Utah Rules of Evidence may broadly admit out-of-court statements as substantive evidence, such "out-of-court statement[s] which [are] denied at trial by the declarant [are] insufficient by [themselves] to sustain a conviction." Id. at 484. Here, while offering sworn testimony at trial, Raymond denied making any statements to Officer Butters about C.L.'s connection to the drugs or the pipe. Thus, more evidence than Officer Butters's account of Raymond's out-of-court statements is required to sustain C.L.'s conviction.

    The State asks us to infer that C.L. had in fact used the drugs and the pipe prior to the time the police stopped the car by pointing to testimony that (1) the items were hidden in a place to which someone in the front passenger seat would have easy access and (2) the pipe was still warm to the touch when the police discovered it. The State suggests that the warm pipe corroborates Raymond's statement to Officer Butters that C.L. had been smoking methamphetamine with him earlier.

    We are unwilling to draw such an inference, which is belied by the circumstances surrounding the stop and discovery of the warm pipe. According to undisputed testimony, C.L. was not even in the car at the time it was stopped by police and, moreover, he had not been in the car for some 20 to 30 minutes. Raymond had dropped C.L. off on a corner to wait while Raymond went to his girlfriend's home to get some videogame equipment, and Raymond ended up arguing with her for a while during the visit. In fact, C.L. had been standing on the corner long enough to raise someone's suspicion in the neighborhood. Eventually, that person called the police to report a suspicious male in the area.

    Even assuming the hidden pipe was found within mere minutes following the stop, the fact that it was warm when found points, if anything, to recent use by Raymond acting alone. Given that the pipe was found in the car, at which time C.L. had been a pedestrian for half an hour, its warmth surely does not readily suggest C.L.'s recent use of the pipe.

    Reversed.

______________________________

Gregory K. Orme, Judge

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WE CONCUR:

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James Z. Davis, Judge

______________________________

Pamela T. Greenwood, Judge

1. Officer Butters testified that during his conversation with Raymond immediately after the police discovered the drugs, Raymond told him that C.L. was the one who brought the drugs into the car and that they had both smoked methamphetamine in the car prior to Raymond being stopped.

2. Even though the State offered Raymond's statements to Officer Butters in order to impeach Raymond's recollection of his conversation with Butters, under rule 801 of the Utah Rules of Evidence such a statement is defined as nonhearsay because it was offered as a prior statement that is inconsistent with Raymond's testimony, a statement he denies making, or a statement he has forgotten and is thus admissible as substantive evidence. See Utah R. Evid. 801(d)(1)(A).