State v. Gonzales-Bejarano , 427 P.3d 251 ( 2018 )

2018 UT App 60THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ENRIQUE VALENTIN GONZALES-BEJARANO,
Appellant.
Opinion
No. 20160271-CA
Filed April 12, 2018
Fourth District Court, Fillmore Department
The Honorable Jennifer A. Brown
No. 151700176
Nathan K. Phelps, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Enrique Valentin Gonzales-Bejarano appeals
from his convictions: two second-degree felonies, four third-
degree felonies, and a class A misdemeanor. Specifically, he
argues that he did not receive his constitutionally guaranteed
right to the effective assistance of counsel because his counsel
had a conflict of interest, failed to object to certain testimony,
and failed to move for a directed verdict with regard to two of
the charges. We conclude that Defendant has not demonstrated
any prejudice resulting from the alleged conflict of interest or
hearsay testimony. But we agree that Defendant received
ineffective assistance of counsel when his counsel failed to move
for a directed verdict on two of the seven charges. We therefore
State v. Gonzales-Bejarano
vacate his convictions for those two charges but affirm in all
other respects.
BACKGROUND
¶2 A police officer (Officer), responding to a report of a
suspicious vehicle, discovered Defendant and Defendant’s
fiancée (Fiancée) in the back seat of the vehicle. Officer asked
Defendant for his identification, and Defendant handed over a
California driver license with the name Victor Payan. Officer
also asked Defendant for the vehicle’s registration, and
Defendant stated that he could not find the registration and that
the vehicle belonged to a friend. A check of the vehicle’s license
plate showed that the vehicle had been reported stolen nine days
earlier. Officer then arrested Defendant and Fiancée and began
an inventory search of the vehicle. Later, while being booked at
the jail, Defendant admitted that he was not Victor Payan.
¶3 After night fell, the vehicle was taken to the sheriff’s
building’s garage to be impounded, and several officers finished
the inventory search that had been started earlier. In the course
of the search, the police found “a small white bindle container,
plastic container, sitting on the passenger seat between where
[Defendant and Fiancée] were located.” The police also found a
binder containing “several birth certificates,” utility bills, and
immunization records bearing the names of people who were
not present. And the police found Defendant’s wallet, from
which he had taken the California driver license; the wallet also
contained a Utah driver license with the name Victor Payan and
two debit cards with other names. The police noticed holes in the
vehicle’s headliner fabric but apparently did not search that area.
¶4 The police returned the vehicle to its owner. Several days
later, the vehicle’s owner discovered a package containing nearly
one pound of methamphetamine inside the headliner and
reported the find to the police. The package’s street value was
estimated at $100,000.
20160271-CA 2 2018 UT App 60State v. Gonzales-Bejarano
¶5 A few days later, staff at the jail where Defendant was
held searched the belongings of another inmate as part of the
normal release procedures. In his belongings, staff found a jail
request form with Defendant’s signature on the front. The back
of the form contained a note:
Her name is Janet, Enrique’s sister, tell her I got
arrested and to go [to] my room and look for my
address book. And download the What’s Up app,[1]
and call my conecta,[2] his name is Marcos and let
him know I and my girlfriend got arrested with a
stolen motor vehicle. Cops didn’t find the dope
and when car was released to the owners, they
found out the dope, one and a half pounds of
crystal in which they raise my bail to $50,000.
Jail staff then reviewed surveillance tapes and reported finding a
segment showing Defendant writing the note and giving it to the
inmate being released. However, the staff failed to preserve the
tape and instead recorded over it. In lieu of introducing the tape
into evidence, the staff who watched the tape testified at trial.
¶6 The State eventually charged Defendant with possession
of a stolen motor vehicle, a second-degree felony, Utah Code
Ann. § 41-1a-1316 (LexisNexis 2014); possession of a controlled
substance with intent to distribute, a second-degree felony, id.§ 58-37-8 (LexisNexis 2016); two counts of forgery, third-degree
felonies, id. § 76-6-501(2)(a) (LexisNexis 2012); two counts of
unlawful possession of a financial transaction card, third-degree
felonies, id. § 76-6-506.3(1); and unlawful possession of another’s
1. This may be a reference to the encrypted messaging platform
WhatsApp.
2. The State informs us that “conecta” is a slang term indicating a
drug dealer.
20160271-CA 3 2018 UT App 60State v. Gonzales-Bejarano
identification documents, a class A misdemeanor, id. § 76-6-
1105(2)(a)(i).
¶7 At trial, the State sought to show that Defendant knew
that he was not entitled to possess the identification documents
in the binder. To this end, the State elicited testimony from
Officer that he had contacted the individuals to whom the
documents belonged and that those individuals had denied
giving Defendant permission to have the documents. Defense
counsel did not object to this testimony on either Confrontation
Clause or hearsay grounds.
¶8 The State also sought to show that Defendant had been in
possession of the methamphetamine package. The State elicited
testimony from the officer (Sergeant) who had retrieved the
package from the vehicle’s owner. Sergeant testified that he
responded to a call about the package the owner found in the
vehicle and recounted several things the vehicle’s owner told
him about how her son had discovered the package. Again,
defense counsel did not object on either Confrontation Clause or
hearsay grounds.
¶9 Defense counsel also represented Fiancée, who was not
tried at the same time as Defendant. Nevertheless, defense
counsel argued that Fiancée was responsible for the
identification documents in the binder and therefore there was at
least a reasonable doubt that Defendant had possessed them.
¶10 With the exception of the second forgery count (count
four), which was dismissed at trial, the jury convicted Defendant
of all charges, and he timely appealed.
ISSUES AND STANDARD OF REVIEW
¶11 Defendant first contends that his counsel had a conflict of
interest as a result of also representing Fiancée and that this
conflict prejudiced Defendant. He raises this contention as a
matter of ineffective assistance of counsel. Defendant also
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contends that he received constitutionally ineffective assistance
of counsel when his counsel failed to object to Officer’s and
Sergeant’s testimony on either Confrontation Clause or hearsay
grounds. Finally, Defendant contends that defense counsel
provided ineffective assistance by failing to move for a directed
verdict as to two of the charges.
¶12 “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587(quotation simplified). 3
ANALYSIS
¶13 All of Defendant’s contentions allege violations of his
constitutional right to the effective assistance of counsel. To
succeed on such claims, a defendant must show that counsel’s
performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Because both deficient performance and resulting
prejudice are requisite elements for a claim of ineffective
assistance of counsel, failure to establish either element
necessarily defeats the claim. Id. at 697; State v. Hards, 2015 UT
App 42, ¶ 18, 345 P.3d 769.
I. Concurrent Representation of Fiancée
¶14 Defendant first contends that defense counsel labored
under a conflict of interest in that he also served as counsel for
Fiancée and that Defendant suffered prejudice therefrom. He
3. The court’s internal style guide has adopted the parenthetical
“quotation simplified” in the spirit of the nascent “cleaned up”
parenthetical. See, e.g., State v. Cady, 2018 UT App 8, ¶ 9 n.2.
20160271-CA 5 2018 UT App 60State v. Gonzales-Bejarano
asserts that his constitutional right to the effective assistance of
counsel was thereby violated.
¶15 The Sixth Amendment to the United States Constitution
guarantees a defendant’s right to the assistance of counsel that is
free from conflicts of interest. State v. Webb, 790 P.2d 65, 72 (Utah
Ct. App. 1990). But counsel’s representation of two or more
codefendants does not necessarily violate the Sixth Amendment.
Rather, to establish that his or her constitutional right to conflict-
free counsel was violated, a defendant must show (1) “that an
actual conflict of interest existed” that (2) “adversely affected
[his or her] lawyer’s performance.” Id. at 73; see also State v.
Lovell, 1999 UT 40, ¶ 22, 984 P.2d 382, cert. denied, 528 U.S. 1083(2000). It follows that failure to prove either element is fatal to an
appeal predicated on an alleged violation of the Sixth
Amendment right to counsel.
¶16 Here, we proceed directly to the second element—
whether defense counsel’s concurrent representation adversely
affected Defendant’s case. In other words, we consider whether
defense counsel actually elevated Fiancée’s defense interests
above those of Defendant to his detriment, not merely whether
defense counsel had the opportunity to do so.
¶17 Defendant concedes that his defense counsel “tried to
show through questioning that [Fiancée] was the one actually in
possession of the identification documents” and that defense
counsel “hammered that point home for the jury, claiming that it
created reasonable doubt on the document charges.” But with
regard to the other charges against Defendant, he argues that
defense counsel “had to limit the forcefulness of his attacks lest
[he] build the case against [Fiancée] while he created reasonable
doubt for [Defendant].”
¶18 Defendant identifies only one example of the alleged
adverse effect of counsel’s dual representation: “[W]hile
[Fiancée] was made out to be responsible for the identification
documents, no effort was made to put blame on her for the
20160271-CA 6 2018 UT App 60State v. Gonzales-Bejarano
drugs.” Defendant thus implies that defense counsel’s decision
not to argue to the jury that the drugs belonged to Fiancée was a
product of defense counsel’s split loyalties.
¶19 The evidence, however, does not support this implication.
The note recovered by jail staff and presented at trial had
Defendant’s name written on one side and, on the other side, “I
and my girlfriend got arrested with a stolen motor vehicle,”
“[c]ops didn’t find the dope,” and “when car was released to the
owners, they found out the dope, one and a half pounds of
crystal.” Additionally, with regard to the bindle of
methamphetamine initially found in the stolen vehicle, Officer
wrote in his report that Defendant “stated the drugs belonged to
him,” and Officer presumably would have testified to the same
at trial had defense counsel tried to assign responsibility for the
drugs to Fiancée. In light of this evidence connecting Defendant
to the drugs, defense counsel could have reasonably decided
that claiming Fiancée was responsible for both the drugs and the
identification documents would have backfired and caused the
jury not to credit either assertion. It was apparently counsel’s
consideration of the evidence, not his concurrent representation
of Fiancée, that motivated his decision not to try to blame her for
the drugs.
¶20 Defendant does not identify any other concrete examples
of the alleged adverse effect that concurrent representation had
on his defense at trial. Instead, he speculates (1) that defense
counsel “couldn’t make any decision on how to investigate
without impugning his separate obligations to keep [Fiancée’s]
confidences, to advance her interests without regard to others,
and to avoid conflicts,” (2) that “any argument that [defense
counsel] might have advanced on [Defendant’s] behalf would
almost certainly be colored by knowledge he had gained as
[Fiancée’s] attorney,” and (3) that “there are arguments and
actions [defense counsel] should have made but didn’t.”
Defendant does not identify any evidence that any of these
concerns materialized.
20160271-CA 7 2018 UT App 60State v. Gonzales-Bejarano
¶21 Speculation is insufficient to demonstrate that an actual
conflict of interest adversely affected Defendant at trial. To show
that his right to the effective assistance of counsel was violated
by a conflict of interest, a defendant “must demonstrate as a
threshold matter that the defense attorney was required to make
a choice advancing [another’s] interests to the detriment of [the
defendant’s] interests.” State v. Cheek, 2015 UT App 243, ¶ 35, 361
P.3d 679 (ellipsis, citation, and internal quotation marks
omitted). “Hypothetical or speculative conflicts will not suffice
to establish a violation.” Id. (brackets, citation, and internal
quotation marks omitted); see also Lovell, 1999 UT 40, ¶ 22
(holding that a defendant “must show that [defense counsel] had
to make choices that would advance [another’s] interests to the
detriment of [the defendant’s]”); Webb, 790 P.2d at 75 (“There is
no violation where the conflict is irrelevant or merely
hypothetical; there must be an actual, significant conflict.”).
Because Defendant offers only vague descriptions of ways
defense counsel’s efforts might have been limited by his
concurrent representation of Fiancée, Defendant has failed to
show any actual adverse effect.
¶22 Because Defendant has not demonstrated that defense
counsel’s concurrent representation of Fiancée actually adversely
affected his representation of Defendant, Defendant cannot
establish that he received anything less than the effective
assistance of counsel guaranteed by the Sixth Amendment. See
Lovell, 1999 UT 40, ¶ 22; Webb, 790 P.2d at 72.
II. Officer’s Testimony and Sergeant’s Testimony
¶23 Defendant next contends that he received ineffective
assistance of counsel when defense counsel “failed to exclude
unconfronted hearsay testimony critical to the State’s case.”
Specifically, he points to Officer’s testimony regarding his
identification-document investigation and Sergeant’s testimony
regarding the vehicle owner’s subsequent discovery of the
pound of methamphetamine. He asserts that counsel could have
prevented the introduction of this testimony by raising hearsay
20160271-CA 8 2018 UT App 60State v. Gonzales-Bejarano
and/or Confrontation Clause challenges. In these circumstances,
both challenges would have attempted to exclude evidence of
what the victims told the police. Thus, to succeed, Defendant
must show that such evidence would have actually been
excluded had defense counsel objected on either hearsay or
Confrontation Clause grounds. See Strickland v. Washington, 466
U.S. 668, 687, 690–91 (1984) (explaining that a successful
ineffective assistance of counsel claim requires the appellant to
demonstrate both deficient performance and prejudice).
¶24 To convict Defendant of unlawful possession of another’s
identification documents, the State had to prove beyond a
reasonable doubt that Defendant “possess[ed] an identifying
document with knowledge that he [was] not entitled to obtain or
possess the identifying document.” See Utah Code Ann. § 76-6-
1105(2)(a)(i) (LexisNexis 2012). To this end, the State elicited
testimony from Officer relating to whether Defendant had
permission to possess the identification documents discovered in
the binder:
Q. Okay. Now, you’ve testified and we’ve
admitted exhibits here today of different
identification documents, things like that, right?
A. That’s correct.
Q. Did you at some point attempt to determine
who or where the owners of that information were
at?
A. I did.
Q. And did you determine through that
investigation that the individuals listed on the birth
certificates [and other] documents inside the folder
were from St. George?
A. That’s correct.
20160271-CA 9 2018 UT App 60State v. Gonzales-Bejarano
Q. Did you make contact with those individuals?
A. I did.
Q. And did either of those individuals give
[Defendant] or anyone else permission to have
those documents?
A. They did not.
¶25 And with regard to the possession-with-intent-to-
distribute charge, Sergeant similarly testified as to what the
vehicle owners had told him about how and when they had
discovered the package of methamphetamine in the vehicle’s
headliner. Neither the identification-document owners nor the
vehicle owners testified at trial.
¶26 Defendant argues that defense counsel should have
objected to Officer’s and Sergeant’s testimony as hearsay because
they recounted the owners’ statements which were made out of
court and introduced at trial for their truth. See Utah R. Evid.
801(c). And he argues that defense counsel should have objected
on Confrontation Clause grounds because he was unable to
cross-examine or otherwise confront these owners. See generally
Crawford v. Washington, 541 U.S. 36, 68–69 (2004) (“Where
testimonial evidence is at issue, however, the Sixth
Amendment[’s Confrontation Clause] demands what the
common law required: unavailability and a prior opportunity for
cross-examination.”).
¶27 We recognize that both types of challenges, as asserted
here, would have been negated had the owners testified at trial. 4
And the State’s response essentially assumes that, had defense
4. Defendant does not explain how, or even suggest that, he
could have impeached the owners had he been able to confront
them.
20160271-CA 10 2018 UT App 60State v. Gonzales-Bejarano
counsel objected, the owners would have been available and
would have testified consistently with Officer’s and Sergeant’s
characterizations of the owners’ statements. Because this issue is
before us as a matter of ineffective assistance of counsel, the
burden rests on Defendant to sufficiently support his implicit
claim that the owners would not have testified. See, e.g.,
Archuleta v. Galetka, 2011 UT 73, ¶ 40, 267 P.3d 232 (holding that
“a defendant must present sufficient evidence to support” his or
her ineffective-assistance-of-counsel claim (emphasis added)).
¶28 Defendant has moved for temporary remand pursuant to
rule 23B of the Utah Rules of Appellate Procedure to supplement
the record. A rule 23B “motion shall be available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Utah R. App. P. 23B(a); see also
State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92 (holding that a
defendant bears the primary obligation and burden of moving
for a temporary remand). But the affidavit attached to
Defendant’s rule 23B motion—memorializing a conversation
between Defendant’s current counsel and his trial defense
counsel—did not directly discuss whether the owners would
have been available to testify at trial. Rather, the affidavit noted
only defense counsel’s strong belief that the owners were not
actually present at trial. There is no affidavit from the owners
indicating that they would have been unwilling or unable to
travel to and testify at trial. Nor is there any claim that
Defendant’s efforts to secure such an affidavit were stymied by
an inability to contact the owners. Thus, there is no
“nonspeculative allegation” that the owners were in fact unable
or unwilling to testify at trial. We therefore deny Defendant’s
rule 23B motion and evaluate his ineffective assistance claim on
the basis of the record before us.
¶29 Because Defendant has not shown that the owners of the
identification documents or the owners of the vehicle were
unavailable at trial, our analysis must proceed under the
assumption that, had defense counsel raised appropriate
20160271-CA 11 2018 UT App 60State v. Gonzales-Bejarano
objections to the testimony of Officer and Sergeant, the State
would have called the owners to testify and that they would
have testified consistently with the explanations given by Officer
and Sergeant.
¶30 Bearing this assumption in mind, the State first argues
that failing to object to the testimony of Officer and Sergeant
may well have been a reasonable trial strategy. According to the
State, “even if the trial court sustained defense counsel’s
objections, the prosecutor may have called [the owners] with
firsthand knowledge of the events.” Cf. Strickland, 466 U.S. at 690(“[C]ounsel is strongly presumed to have . . . made all significant
decisions in the exercise of reasonable professional judgment.”).
The State concedes that trial may have been delayed to allow
them to arrive, but notes that a continuance would have been
entirely appropriate. See generally State v. Cornejo, 2006 UT App
215, ¶ 23, 138 P.3d 97 (holding that “denial of the State’s request
for a continuance to obtain an absent witness was an
unreasonable action” under the circumstances of that case
(citation and internal quotation marks omitted)). Thus, counsel
was faced with a choice between allowing Officer and Sergeant
to testify indirectly or delaying trial to allow the owners to
testify directly. According to the State, counsel’s election to have
the testimony come to the jury indirectly, rather than directly,
was an objectively reasonable trial strategy. We cannot disagree;
the impact of direct testimony from a physically present crime
victim may carry more weight with a jury than a law
enforcement officer’s secondhand statement of the same fact. We
conclude that defense counsel’s failure to object to the
challenged testimony, when the same testimony could well have
been elicited from the crime victims, fell within “the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689.
¶31 Even if we were to conclude otherwise, we would still
reach the same result, given Defendant’s failure to demonstrate
prejudice. See id. at 692. We have determined that Defendant has
failed to show that the owners would not have testified at trial
See supra ¶¶ 28–29. And Defendant has not shown that the
20160271-CA 12 2018 UT App 60State v. Gonzales-Bejarano
owners’ testimony would have contradicted Officer’s and
Sergeant’s characterizations or that he could have impeached
their testimony. Thus, there is no indication that the quantity or
quality of the evidence presented at trial would have differed
had defense counsel raised the hearsay and/or Confrontation
Clause objections. And because the evidentiary picture would
not have differed, we will not presume prejudice; that is, where
the evidence would have been of the same caliber, we cannot
conclude that there was a reasonable likelihood of a result more
favorable for the defendant. See Strickland, 466 U.S. at 695.
¶32 Consequently, we conclude that Defendant has not
demonstrated that his counsel’s failure to raise hearsay or
Confrontation Clause objections to the testimony of Officer
and/or Sergeant constituted ineffective assistance of counsel.
III. Charges Regarding Debit Cards
¶33 Defendant contends that his trial counsel provided
ineffective assistance of counsel with respect to the two charges
of unlawful possession of a financial transaction card.
Specifically, he argues that his counsel should have moved to
dismiss those charges on the ground of insufficient evidence or
should have objected to an erroneous jury instruction.
¶34 Two lengthy statutes are relevant. The first criminalizes
the fraudulent use of a financial transaction card (the Fraudulent
Use Statute) while the second criminalizes the unlawful
acquisition, receipt, or possession of a financial transaction card
(the Unlawful Possession Statute). The Fraudulent Use Statute
provides:
It is unlawful for any person to:
(1) knowingly use a false, fictitious, altered,
counterfeit, revoked, expired, stolen, or
fraudulently obtained financial transaction card to
obtain or attempt to obtain credit, goods, property,
or services;
20160271-CA 13 2018 UT App 60State v. Gonzales-Bejarano
(2) knowingly, with the intent to defraud, use a
financial transaction card, credit number, personal
identification code, or any other information
contained on the card or in the account from which
the card is issued, to obtain or attempt to obtain
credit, goods, or services;
(3) knowingly, with the intent to defraud, use a
financial transaction card to willfully exceed an
authorized credit line by $500 or more, or by 50%
or more of the line of credit, whichever is greater;
(4)(a) knowingly, with the intent to defraud, make
application for a financial transaction card to an
issuer and make or cause to be made a false
statement or report of the person’s name,
occupation, financial condition, assets, or personal
identifying information; or
(b) willfully and substantially undervalue or
understate any indebtedness for the purposes of
influencing the issuer to issue the financial
transaction card; or
(5) knowingly, with the intent to defraud, present
or cause to be presented to the issuer or an
authorized credit card merchant, for payment or
collection, any credit card sales draft, if:
(a) the draft is counterfeit or fictitious;
(b) the purported sales evidenced by any
credit card sales draft did not take place;
(c) the purported sale was not authorized by
the card holder; or
(d) the items or services purported to be
sold as evidenced by the credit card sales
20160271-CA 14 2018 UT App 60State v. Gonzales-Bejarano
drafts are not delivered or rendered to the
card holder or person intended to receive
them.
Utah Code Ann. § 76-6-506.2 (LexisNexis 2012). The Fraudulent
Use Statute is extensively referenced by the immediately
following statute, the Unlawful Possession Statute, which
outlines five variants of the crime:
Any person is guilty of a third degree felony who:
(1) acquires a financial transaction card from
another without the consent of the card holder or
the issuer;
(2) receives a financial transaction card with intent
to use it in violation of [the Fraudulent Use
Statute];
(3) sells or transfers a financial transaction card to
another person with the knowledge that it will be
used in violation of [the Fraudulent Use Statute];
(4)(a) acquires a financial transaction card that the
person knows was lost, mislaid, or delivered under
a mistake as to the identity or address of the card
holder; and
(b)(i) retains possession with intent to use it in
violation of [the Fraudulent Use Statute]; or
(ii) sells or transfers a financial transaction card
to another person with the knowledge that it
will be used in violation of [the Fraudulent Use
Statute]; or
(5) possesses, sells, or transfers any information
necessary for the use of a financial transaction card,
including the credit number of the card, the
20160271-CA 15 2018 UT App 60State v. Gonzales-Bejarano
expiration date of the card, or the personal
identification code related to the card:
(a)(i) without the consent of the card holder or the
issuer; or
(ii) with the knowledge that the information has
been acquired without consent of the card
holder or the issuer; and
(b) with intent to use the information in violation
of [the Fraudulent Use Statute].
Utah Code Ann. § 76-6-506.3 (LexisNexis 2012).
¶35 The State charged Defendant with violating the Unlawful
Possession Statute. The State prepared a jury instruction that
appears to track the fifth variant of that statute:
The elements of Unlawful Possession of a Financial
Transaction Card as charged in this case are:
1. That [Defendant];
2. In Millard County, State of Utah, on or about
November 19, 2015;
3. Possessed a financial transaction card or account
information from a financial transaction card;
4. Without the consent of the cardholder or issuer;
5. With intent to use the financial transaction card
or account information from the financial
transaction card unlawfully.
¶36 Defendant argues that the instruction was faulty because
it used the broad term “intent to use the financial
card . . . unlawfully” rather than the narrower concept
criminalized by the statute, “intent to use the information in
20160271-CA 16 2018 UT App 60State v. Gonzales-Bejarano
violation of [the Fraudulent Use Statute].” See Utah Code Ann.
§ 76-6-506.3(5)(b). He also argues that the State failed to present
any evidence of his intent to use the card fraudulently. We
address the latter of Defendant’s arguments and, because we
find it persuasive, decline to address the former.
¶37 Defendant notes that “[t]he only potential evidence the
State had” of his intent “was that the circumstances under which
[Defendant] possessed the card were sufficient to raise an
inference that [he] had the intent to use the card” in violation of
the Fraudulent Use Statute. He asserts that this evidence was
insufficient to support his conviction.
¶38 The State responds that it only had to prove either (1) that
Defendant acquired the card without the consent of the card
holder or the issuer or (2) that he received the card with intent to
use it in violation of the Fraudulent Use Statute. The State argues
that “[s]atisfying either subsection (1) or (2) is sufficient to prove
a defendant’s guilt.” But the State did not seek to have the jury
instructed on either of these variants.
¶39 The State elected to have the jury instructed on the
possessing variant of the crime but not the acquiring or receiving
variants. On appeal, the State indirectly implies that the verbs
have the same meaning or effect. But pursuant to a well-
recognized canon of statutory interpretation, “we presume that
the legislature used each word advisedly” and “that a difference
in word choice is to be assigned a difference in meaning.” Bylsma
v. R.C. Willey, 2017 UT 85, ¶ 64 n.115 (quotation simplified). The
legislature used different words to describe the variants and in
fact attached different mens rea elements to them. Accordingly,
we will not presume that a jury finding of possession without
consent is the equivalent of a jury finding of acquisition without
consent. Indeed, it is not hard to imagine a situation in which a
defendant acquired a card with consent but retained and
possessed it after such consent was rescinded. Because the State
only asked the jury to find possession without consent, we
cannot speculate as to whether the jury might have found
20160271-CA 17 2018 UT App 60State v. Gonzales-Bejarano
acquisition without consent. Our analysis is bounded by how the
jury was actually instructed and the evidence before it.
¶40 We next consider whether there was sufficient evidence of
Defendant’s intent to violate the Fraudulent Use Statute. The
State does not point us to any evidence of such intent. And we
are unable to identify any direct evidence from which the jury
could reasonably have inferred that Defendant intended to use
the debit cards fraudulently.
¶41 In the absence of direct evidence, we turn to
circumstantial evidence. “We recognize [that] proof of a
defendant’s intent is rarely susceptible of direct proof and
therefore the prosecution usually must rely on a combination of
direct and circumstantial evidence to establish this element.”
State v. Whitaker, 2016 UT App 104, ¶ 10, 374 P.3d 56 (quotation
simplified). “However, before we can uphold a conviction it
must be supported by a quantum of evidence concerning each
element of the crime as charged from which the factfinder may
base its conclusion of guilt beyond a reasonable doubt.” Id.(quotation simplified). “A guilty verdict is not legally valid if it
is based solely on inferences that give rise to only . . . speculative
possibilities of guilt.” Id. (quotation simplified).
¶42 In other contexts, intent can be inferred from the
possession of contraband; for example, possession of drugs with
the intent to distribute. See, e.g., State v. Briggs, 2008 UT 75, ¶ 24,
197 P.3d 628 (“Where one possesses a controlled substance in a
quantity too large for personal consumption, the trier of fact can
infer that the possessor had an intent to distribute.” (quotation
simplified)). But in that context, there is no other explanation for
possession of such a large quantity except the intent to distribute
it. See id.; see also State v. Fox, 709 P.2d 316, 320 (Utah 1985).
¶43 With respect to simple drug possession, intent may also
be inferred from possession. But the intent element for that crime
is intent to possess the contraband, rather than intent to use it in
a particular way; the State may secure a conviction by proving
20160271-CA 18 2018 UT App 60State v. Gonzales-Bejarano
that the defendant “knowingly and intentionally . . .
possess[ed]” the drugs, without necessarily having to show that
the defendant intended to use the drugs. See Utah Code Ann.
§ 58-37-8(2)(a)(i) (LexisNexis 2016). In contrast, to secure a
conviction for unlawful possession of a financial transaction card
under the possession-with-intent variant, the requisite mens rea
is “intent to use the information in violation of [the Fraudulent
Use Statute].” See id. § 76-6-506.3(5)(b) (2012).
¶44 The question before us is therefore whether mere
possession of a stolen financial transaction card is sufficient
evidence to infer the possessor’s intent to violate the Fraudulent
Use Statute. We conclude that it is not, because a defendant may
plausibly have a debit card, knowing it is stolen, but lack the
intent to fraudulently use it as a debit card. For example, a
defendant may have taken a wallet to steal the currency therein
but lack the intent to use the debit and credit cards owing to the
additional risk of apprehension. Or the defendant may possess
stolen cards with the intent to sell or barter them. While such
acts are criminal, they are not barred by the Fraudulent Use
Statute.5 And the possession variant outlined in section 76-6-
506.3(5), with which Defendant was charged, requires the State
to show not just any criminal intent, but the specific criminal
intent to violate the Fraudulent Use Statute. Mere possession of
another’s financial transaction cards without more does not give
rise to a permissible inference that, beyond a reasonable doubt,
the possessor intends to use the cards to commit fraud.
¶45 A conviction for unlawful possession of a financial
transaction card requires proof of the defendant’s intent to
violate the Fraudulent Use Statute. Here, the State did not
present evidence of Defendant’s intent other than the fact that
5. It is also possible to imagine non-criminal possession. A
defendant may have encountered financial transaction cards in
the course of unrelated activities and possessed them with the
intent to turn them in.
20160271-CA 19 2018 UT App 60State v. Gonzales-Bejarano
Defendant had the cards in his possession. Because the State
failed to present nonspeculative evidence of an essential element
of the crime charged, defense counsel’s failure to move for a
directed verdict on the relevant charges amounted to prejudicial
deficient performance. In other words, Defendant received
ineffective assistance of counsel when defense counsel failed to
move for a directed verdict regarding charges whose elements
the State failed to present evidence of. We therefore vacate
Defendant’s convictions for unlawful possession of a financial
transaction card.
CONCLUSION
¶46 Defendant has not demonstrated that defense counsel’s
representation of Fiancée resulted in a violation of his Sixth
Amendment right to the effective assistance of counsel. Nor has
Defendant shown that defense counsel’s failure to raise hearsay
or Confrontation Clause objections resulted in the admission of
evidence that otherwise would have been excluded. Defendant
has, however, demonstrated that he received ineffective
assistance of counsel when defense counsel failed to move for a
directed verdict on the two charges of unlawful possession of a
financial transaction card, because the State had not presented
sufficient evidence of an essential element.
¶47 We vacate Defendant’s two convictions for unlawful
possession of a financial transaction card but affirm his other
five convictions.
20160271-CA 20 2018 UT App 60