In re C.P.B. (C.P.B. v. State) , 2012 UT App 174 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, in the interest of C.P.B., a ) MEMORANDUM DECISION
person under eighteen years of age. )
____________________________________ ) Case No. 20100901‐CA
)
C.P.B., )
) FILED
Appellant, ) (June 21, 2012)
)
v. ) 2012 UT App 174)
State of Utah, )
)
Appellee. )
‐‐‐‐‐
Sixth District Juvenile, Kanab Department, 1021714
The Honorable Paul D. Lyman
Attorneys: J. Bryan Jackson, Cedar City, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Voros, Davis, and Roth.
DAVIS, Judge:
¶1 C.P.B. (Appellant) appeals from a juvenile court adjudication for possession of a
controlled substance, marijuana, which is a class B misdemeanor, see Utah Code Ann.
§ 58‐37‐8(2)(a)(i) (Supp. 2011); id. § 58‐37‐4(2)(a)(iii)(S) (listing marijuana as a controlled
substance), arguing that her conviction was based on insufficient evidence. We agree
and reverse Appellant’s conviction.
¶2 Following a bench trial in 2010, Appellant was adjudicated of possessing
marijuana “on or about October 01, 2008.”1 The evidence presented consisted of
testimony from a police officer investigating the text message records of a convicted
drug dealer, testimony from the dealer, a portion of the dealer’s text messaging history,
and a written statement completed by the dealer. The text message records indicate
that on October 1, 2008, the dealer received a text message asking if he had “any bud.”
The written statement of the drug dealer admitted into evidence identifies Appellant as
the individual associated with the phone number from which that text message was
sent. The written statement indicates that the drug transaction did occur and clarifies
that the transaction was for “weed.” The dealer testified that “weed” meant marijuana,
that he was acquainted with Appellant, and identified her in the courtroom. However,
the dealer also testified that he did not recall completing the written statement or
initialing the text message record next to the October 1, 2008 text message, and that he
was not sure what his phone number was during the time frame in question. The State
attempted to explain the dealer’s unexpected memory lapse on the stand as a result of
the backlash the dealer was experiencing in prison for being a “narc.” The dealer
blamed his memory lapse on the fact that he “was doing a lot of drugs” during the time
frame in question. The officer then testified that the text message record was from the
dealer’s cell phone account and that he witnessed the dealer complete the written
statement and initial the text message record. The State presented no other evidence
except for the written statement to prove that the telephone number from which the
October 1, 2008 text message was sent was associated with Appellant. Additionally, no
marijuana was found in relation to these charges, and while the written statement
indicates that a drug transaction took place following the October 1, 2008 text message,
there is no evidence that it occurred “on or about October 01, 2008,” or that Appellant
was indeed the purchaser in that transaction.
¶3 Nevertheless, the juvenile court concluded that the State met its burden, noting
that the dealer “knew who [Appellant] was, [and] that . . . although [the dealer] said he
doesn’t recall dealing drugs with her, he . . . did acknowledge that he filled out [the
written statement, which] says a drug transaction did take place” and that it was for
marijuana. Assuming, without deciding, that all of this evidence was properly
1
Appellant was not charged until May 20, 2010, more than eighteen months after
the alleged purchase.
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admitted,2 it is insufficient to show that Appellant ever possessed marijuana “on or
about October 01, 2008.”
¶4 “In a prosecution for unlawful possession of narcotics the [State] must prove that
the accused exercised dominion and control over the drug with knowledge of its
presence and narcotic character.” State v. Winters, 16 Utah 2d 139, 396 P.2d 872, 874
(1964). See generally Utah Code Ann. § 58‐37‐8(2)(a)(i) (making it unlawful for “any
person knowingly and intentionally to possess or use a controlled substance analog or a
controlled substance, unless it was obtained under a valid prescription or order, directly
from a practitioner while acting in the course of the person’s professional practice, or as
otherwise authorized by this chapter”). To challenge the sufficiency of the evidence
supporting the adjudication, the appellant “must marshal all of the evidence in support
of the trial court’s findings of fact and then demonstrate that the evidence, including all
reasonable inferences drawn therefrom, is insufficient to support the findings against an
attack.” State v. Larsen, 2000 UT App 106, ¶ 11, 999 P.2d 1252 (internal quotation marks
omitted). We believe Appellant has satisfied this burden.3 When we “review[] a bench
2
Appellant challenges the juvenile court’s decision to admit the text message
record at trial, arguing that the evidence lacks the proper foundation and is hearsay.
Appellant contends that the evidence does not clearly indicate whether the October 1,
2008 text message was sent from Appellant’s phone, or whether Appellant was the
person who actually wrote and sent that text message, as opposed to it having been sent
by someone else using her cell phone, such as her then boyfriend, who happened to be
the drug dealer’s codefendant in the case that resulted in the drug dealer’s
incarceration. Because Appellant was not clearly identified as the sender of the text
message, she argues that the text message record could not be admitted as an
“[a]dmission by [a] party‐opponent,” see Utah R. Evid. 801(d)(2) (describing “an
[o]pposing [p]arty’s [s]tatement” as “not hearsay”).
3
The State also argues that Appellant inadequately briefed her arguments on
appeal. While Appellant’s appellate brief is not exactly a model of clarity or
grammatical prowess, it is sufficient to satisfy the requirements of rule 24 of the Utah
Rules of Appellate Procedure. See Utah R. App. P. 24(a)(9) (listing the components of a
properly briefed appellate argument).
20100901‐CA 3
trial for sufficiency of evidence, we must sustain the trial court’s judgment unless it is
against the clear weight of the evidence, or if the appellate court otherwise reaches a
definite and firm conviction that a mistake has been made.” Id. ¶ 10 (internal quotation
marks omitted). “Additionally, in those instances in which the trial court’s findings
include inferences drawn from the evidence, we will not take issue with those
inferences unless the logic upon which their extrapolation from the evidence is based is
so flawed as to render the inference clearly erroneous.” State v. Briggs, 2008 UT 75, ¶ 11,
197 P.3d 628 (internal quotation marks omitted).
¶5 We recognize that courts have upheld convictions for possession of a controlled
substance in situations in which there was no direct evidence of the drugs at issue. See,
e.g., United States v. Baggett, 890 F.2d 1095, 1097 (10th Cir. 1989) (“If the prosecution is
not going to present direct evidence of drug possession, its circumstantial evidence
must include some testimony linking defendant to an observed substance that a jury
can infer to be a narcotic.”); United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)
(determining that when the drug evidence or evidence from a chemical analysis of the
drug at issue is not available, possession of a controlled substance can nonetheless be
proven by circumstantial evidence, including “evidence of the physical appearance of
the substance involved in the transaction, evidence that the substance produced the
expected effects when sampled by someone familiar with the illicit drug, evidence that
the substance was used in the same manner as the illicit drug, testimony that a high
price was paid in cash for the substance, evidence that transactions involving the
substance were carried on with secrecy or deviousness, and evidence that the substance
was called by the name of the illegal narcotic by the defendant or others in his
presence”); Provo City Corp. v. Spotts, 861 P.2d 437, 442‐43 (Utah Ct. App. 1993)
(applying the test laid out in Dolan to uphold a conviction for possession in which there
was no physical evidence of the drug at issue). However, those cases involved
additional circumstantial evidence establishing possession beyond the type of evidence
presented in this case. Compare United States v. Sanchez DeFundora, 893 F.2d 1173, 1176
(10th Cir. 1990) (determining that the evidence, including a witness’s testimony that she
had “sampled the alleged cocaine and . . . it affected her in the same way as cocaine had
affected her in the past,” and evidence that a portion of the substance was chemically
tested, that the substance was successfully sold as cocaine, and that law enforcement
had seized cocaine from the defendant in the past, was sufficient for the jury to infer
that the substance at issue was cocaine), Dolan, 544 F.2d at 1222‐23 (determining that
20100901‐CA 4
testimony from several witnesses that the defendant was present with them when they,
as a group, purchased drugs on several occasions; testimony from one witness that he
observed defendant behaving as though he was “‘tripping,’” in accordance with the
behavior expected of someone who had consumed some of the drugs they had
purchased; and testimony that the defendant had injected heroin in conjunction with a
purchase, constituted sufficient evidence upon which the jury could determine that the
defendant possessed various controlled substances), Spotts, 861 P.2d at 442‐43
(affirming a possession of marijuana conviction based on a police officer’s testimony
that she observed the defendant smoking what looked like a “joint” and smelled like
marijuana; that the defendant appeared and acted as if he were under the influence of
marijuana, having slowed speech and “very bloodshot” eyes; that “the incident was
carried out with some degree of secrecy” by the defendant; and that the defendant
acknowledged he had taken a few “‘hits’”), and Winters, 396 P.2d at 873‐75 (determining
that defendant’s admission that he was “addicted to dope” and had smuggled drugs in
from Mexico “in his mouth”; the deputy sheriff’s testimony that he overheard
defendant telling the woman in the next jail cell, who was apparently the defendant’s
wife, that she had to “‘get the stuff out of the mattress out of the bed behind the door’
and flush it down the toilet before the officers [found] it”; and evidence that a vial
containing heroin was found in the defendant’s jail cell constituted sufficient evidence
in support of the defendant’s possession conviction), with Baggett, 890 F.2d at 1096
(determining that evidence that the defendant made “three telephone calls o[n]
November 29 [that] make clear that she arranged for a purchase of a controlled
substance on that day,” and that “four months later, . . . [the defendant] confessed to
two police officers” that she had used heroin during the time frame in question, was
insufficient to prove that the defendant possessed a controlled substance on the
particular day listed in the charging documents), and State v. Ireland, 2006 UT 17, ¶¶ 1,
22, 133 P.3d 396 (concluding that a conviction for “unlawful possession or use of a
controlled substance” could not be “based exclusively on the fact that [the defendant]
tested positive for the existence of methamphetamines in his bloodstream”).
¶6 The State presented no such additional circumstantial evidence in this case. The
evidence presented, even when viewed in the light most favorable to the juvenile
court’s findings, does not identify Appellant as having actually possessed marijuana
ever, let alone “on or about October 01, 2008,” as specifically alleged. Cf. United States v.
Hall, 473 F.3d 1295, 1309 (10th Cir. 2007) (determining that evidence that the defendant
“possessed crack‐cocaine at some time” was insufficient to uphold a conviction for
20100901‐CA 5
possession when “the indictment charged [the defendant] with possession and
distribution on or about April 7, 2001”); Baggett, 890 F.2d at 1096 (determining that “the
Government must put forth some evidence to show that [the defendant] actually
possessed heroin on the day in question” where the charges specify a particular date on
which the defendant possessed heroin). Appellant is tied to only one seemingly
recanted statement that the text message sent on October 1, 2008, seeking to purchase
marijuana originated from a cell phone number the drug dealer had at one point
described as Appellant’s number. No evidence from the telephone service provider
was submitted to confirm whether the text message was actually sent from Appellant’s
cell phone account or that she sent it. Additionally, Appellant has not been placed at
the scene of the drug transaction, no evidence indicates when the transaction actually
occurred, and no marijuana was found or even observed, let alone admitted into
evidence, in relation to this charge. Indeed, the only evidence that the drug transaction
actually took place is contained in the drug dealer’s uncorroborated written statement.4
¶7 In Provo City Corp. v. Spotts, 861 P.2d 437 (Utah Ct. App. 1993), this court upheld
a conviction for possession of marijuana based on a police officer’s testimony that she
saw the defendant take “hits” from a “joint”; that she smelled the “distinctive aroma” of
marijuana; and that when she spoke with the defendant, he “acknowledged he had
taken a few “‘hits’” and he appeared to be under the influence of marijuana in that his
eyes were bloodshot and his speech slowed. See id. at 442‐43. We noted that the
evidence in that case approached “the outer limit of what we would affirm for a
possession case where the substance itself or chemical test data was not produced.” Id.
at 443. The evidence here is far less reliable, and the inferences far more attenuated
than in Spotts, and while we recognize that the juvenile court’s inferences should not be
readily rejected on appeal, see Briggs, 2008 UT 75, ¶ 11, we also recognize that “caution
must be taken that the conviction not be obtained by piling inference on inference,” see
4
The dealer testified that it did not look like his signature on the written
statement, that he could not remember whether he filled out that statement, and that
although the statement and text message record were initialed with the letters that
constitute his initials, he did not recall initialing them himself. Thus, the juvenile court’s
finding that the dealer specifically acknowledged having completed the written
statement is not supported by the evidence. Rather, the evidence that he filled out the
statement comes from the detective.
20100901‐CA 6
United States v. Lazcano‐Villalobos, 175 F.3d 838, 843 (10th Cir. 1999) (internal quotation
marks omitted). Accordingly, we reverse the juvenile court’s ruling.5
____________________________________
James Z. Davis, Judge
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¶8 I CONCUR IN THE RESULT:
____________________________________
Stephen L. Roth, Judge
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Voros, Associate Presiding Judge (concurring in the result):
¶9 The brief of appellant, though poorly focused and nearly free of relevant legal
authority, is nevertheless, in my judgment, minimally adequate to place C.P.B.’s
sufficiency challenge before this court.
¶10 I do not believe that the majority opinion views the evidence in the light most
favorable to the juvenile court’s findings. But even so viewed, the evidence of drug
possession in this case consisted of little more than four one‐word answers filled in on a
5
Because of the manner in which we resolve Appellant’s insufficiency argument,
we do not address the other arguments raised on appeal. See generally State v. Carter,
776 P.2d 886, 888 (Utah 1989) (“[An appellate c]ourt need not analyze and address in
writing each and every argument, issue, or claim raised and properly before [it] on
appeal.”).
20100901‐CA 7
form designed for use at preliminary hearings. Under Provo City Corp. v. Spotts, 861
P.2d 437 (Utah Ct. App. 1993), and persuasive non‐Utah case law, that is not enough.
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
20100901‐CA 8