State v. Rivera ( 2019 )

2019 UT App 27THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LOURDES RIVERA,
Appellant.
Opinion
No. 20170386-CA
Filed February 22, 2019
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 141910225
Nathalie S. Skibine and Richard G. Sorenson,
Attorneys for Appellant
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Defendant Lourdes Rivera appeals her convictions for
carrying a loaded concealed firearm and possession of a
controlled substance. We conclude that the trial court erred
when it denied Defendant’s request for an innocent-possession
jury instruction on the charge of possession of a controlled
substance. We therefore reverse that conviction and remand for
a new trial on that charge, but affirm in all other respects.
State v. Rivera
BACKGROUND
¶2 While visiting her boyfriend (Boyfriend) at his apartment,
Defendant grew tired of Boyfriend’s repeated drug use and the
two argued. In an effort to stop his drug use, Defendant took
away Boyfriend’s drugs, put them in her purse, and then went
into the bathroom to shower, locking the door behind her. While
she showered, Boyfriend banged on the door and continued to
argue, demanding that Defendant return his “stuff.”
¶3 When Defendant had finished showering, dressed, and
exited the bathroom, Boyfriend, Boyfriend’s son, and Boyfriend’s
brother (Brother) were standing at the end of the hall. Brother
pointed a gun in Defendant’s direction and Boyfriend told
Brother, “Shoot the bitch. Shoot the bitch, motherfucker.” Scared,
Defendant said she tried to call the police but her phone would
not work. The three men ran from the apartment and Defendant
saw Boyfriend drive away, though she did not know where the
other two went.
¶4 Defendant then whistled toward a nearby apartment to
alert her daughter (Daughter) that they needed to leave. While
waiting for Daughter, Defendant ran back inside Boyfriend’s
apartment to retrieve a loaded .22 caliber pistol, putting it in her
bra for safety. She put her purse on the bed in the bedroom and
left it there. Defendant again stepped out of Boyfriend’s
apartment. At the same time Daughter came to Defendant and,
by that time, numerous police officers had arrived at the
apartment complex. Defendant later testified that she did not
know exactly why the officers were there, because everything
had happened so fast.
¶5 Defendant collected Daughter and walked outside the
gate of the courtyard of the apartment complex. Once outside
the gate, a police officer approached Defendant and asked if she
20170386-CA 2 2019 UT App 27State v. Rivera
had seen anyone with a gun or heard anything. Defendant said,
“No,” and the officer walked away.
¶6 A short time later, however, some children in the
apartment complex informed the officers that Defendant was the
person with a gun. Officers again approached Defendant. One
officer testified that he asked Defendant if she had any weapons
on her and Defendant said, “No.” But the officer’s police report
does not mention whether he actually asked Defendant about
weapons, and Defendant testified that she did not remember
such a question. A second officer asked Defendant if she had a
weapon on her and Defendant said that she had a gun in her bra.
This officer performed a pat down search revealing Defendant’s
gun where Defendant said the officer would find it. The officer
handcuffed Defendant and gave her a Miranda 1 warning.
Defendant nevertheless agreed to speak with the police.
¶7 Although Defendant explained to the police what had
happened, she could not remember what she and Boyfriend
were fighting about. She also did not mention that she had put
Boyfriend’s drugs in her purse, which was still inside the
apartment. While Defendant spoke to police officers,
Defendant’s sister (Sister) arrived to pick up Daughter. The
police allowed Daughter into Boyfriend’s apartment to retrieve a
few things. Along with her backpack, Daughter brought out
Defendant’s purse.
¶8 Sister opened the purse on the ground, looking for a key
that Defendant had said was inside her purse. During Sister’s
search of the purse, police officers saw a suspicious pouch and
asked Defendant if she had drugs in her purse. Defendant
indicated that she did. The officers’ search of the purse revealed
what appeared to be drugs and drug paraphernalia, as well as
1. See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966).
20170386-CA 3 2019 UT App 27State v. Rivera
two live .22 rounds and a spent .22 casing. Defendant later
testified that the drugs were not hers and that she did not use
drugs.
¶9 The State charged Defendant with several offenses and
proceeded to trial on the charges of possession of a firearm by a
restricted person, possession of a controlled substance,
possession of drug paraphernalia, and carrying a concealed
dangerous weapon. Defendant asserted as defenses that she was
compelled to possess the gun and drugs and that she innocently
possessed the drugs and drug paraphernalia. Defendant
requested that the trial court instruct the jury on each of these
defenses, but the trial court declined to rule on this request until
the evidence had been presented at trial.
¶10 At the outset of the trial, the court and the parties
discussed whether the officers could testify that they were
responding to a report of a “woman with a gun” or whether they
should be limited to stating that they were responding to a
report of a “person with a gun.” Defendant objected to the
officers’ use of the phrase “woman with a gun,” specifically
arguing that the use of that phrase would lead the jury to
improperly infer that she was the subject of the report.
Ultimately, the trial court overruled Defendant’s objection and
allowed the officers to testify that they had been responding to a
report of a “woman with a gun.”
¶11 At the close of the State’s case, Defendant moved for a
directed verdict. Defendant asserted that Utah law regarding
concealed weapons allowed her to carry a concealed firearm on
“her property,” and that the State did not present sufficient
evidence at trial to establish that Defendant was not on her
property when the police found her with the gun. According to
Defendant, the State’s own evidence showed that the
police encountered her “right outside the apartment complex
which is a common area, . . . it’s her property.” The trial court
20170386-CA 4 2019 UT App 27State v. Rivera
concluded, however, that the evidence established that
Defendant was not on her property when the police engaged her
because Defendant was outside the gate of the apartment
complex.
¶12 At the close of Defendant’s case, the court revived the
discussion regarding Defendant’s two requested defense
instructions—innocent possession and compulsion. As to
innocent possession of the drugs and paraphernalia, the trial
court determined that there was no evidence of any illegal
purpose regarding Defendant’s possession of the drugs and
paraphernalia. The court denied Defendant’s request for an
innocent-possession instruction, however, because the evidence
showed that Defendant had made no attempt to dispose of the
drugs or turn them over to the police. On the defense of
compulsion to carry a firearm, the court determined that the
defense did not apply because any threat to Defendant had
dissipated after the three men left the apartment. With respect to
the compulsion to possess drugs, the court determined that
Boyfriend’s use of drugs throughout the night was not an
imminent threat. Accordingly, the court denied Defendant’s
request for a compulsion instruction.
¶13 The jury convicted Defendant of two of the four charges:
carrying a loaded, concealed firearm and possession of a
controlled substance. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 Defendant raises four issues on appeal. First, she argues
that the trial court erred when it denied her request for jury
instructions on her innocent-possession and compulsion
defenses. “We review a [trial] court’s refusal to give a requested
jury instruction for correctness.” State v. Dozah, 2016 UT App 13,
¶ 12, 368 P.3d 863.
20170386-CA 5 2019 UT App 27State v. Rivera
¶15 Defendant next contends that the trial court erred when it
denied her hearsay objection to the officers’ testimony regarding
the original report of a woman with a gun. In assessing hearsay
rulings, “we review legal questions for correctness, factual
questions for clear error, and the final ruling on admissibility for
abuse of discretion.” State v. McNeil, 2013 UT App 134, ¶ 14, 302
P.3d 844, aff’d, 2016 UT 3, 365 P.3d 699.
¶16 Defendant next argues that the trial court should have
granted her motion for a directed verdict on the concealed
firearm charge because the State failed to present sufficient
evidence to support her conviction. In assessing a directed
verdict ruling based upon a claim of insufficiency of the
evidence, “we review the evidence and all inferences which may
reasonably be drawn from it in the light most favorable to the
verdict of the jury.” State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d
645 (quotation simplified). “We will uphold the trial court’s
decision if, upon reviewing the evidence and all inferences that
can be reasonably drawn from it, we conclude that some
evidence exists from which a reasonable jury could find that the
elements of the crime had been proven beyond a reasonable
doubt.” State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation
simplified).
¶17 Lastly, Defendant argues that the cumulative effect of the
first two errors prejudiced her defense, requiring reversal.
“Under the cumulative error doctrine, we will reverse only if the
cumulative effect of the several errors undermines our
confidence that a fair trial was had.” State v. Carvajal, 2018 UT
App 12, ¶ 16, 414 P.3d 984 (quotation simplified). Where we
conclude that the issues asserted on appeal do not constitute
error or that the identified errors are “so minor as to result in no
harm,” the cumulative error doctrine is inapplicable. State v.
Martinez-Castellanos, 2018 UT 46, ¶ 40, 428 P.3d 1038 (quotation
simplified); see also State v. Wright, 2013 UT App 142, ¶ 44, 304
P.3d 887. “In other words, the doctrine will only be applied to
20170386-CA 6 2019 UT App 27State v. Rivera
errors that are ‘substantial’ enough to accumulate.” Martinez-
Castellanos, 2018 UT 46, ¶ 40.
ANALYSIS
I. Jury Instructions
¶18 Defendant argues that the trial court erred when it denied
her request to instruct the jury on two affirmative defenses:
innocent possession and compulsion. Defendant first asserts that
she was entitled to a compulsion instruction because she was
coerced to possess both the gun and the drugs. She also argues
that the jury should have been instructed on the innocent-
possession defense regarding Defendant’s possession of a
controlled substance. We agree with Defendant that the trial
court should have instructed the jury regarding Defendant’s
innocent-possession defense with respect to her possession of a
controlled substance. We accordingly reverse that conviction.
We otherwise affirm.
¶19 When requested by a criminal defendant, a trial
court must give an instruction regarding a particular affirmative
defense “if evidence has been presented—either by
the prosecution or by the defendant—that provides any
reasonable basis upon which a jury could conclude that the
affirmative defense applies to the defendant.” State v. Low, 2008
UT 58, ¶ 25, 192 P.3d 867. “However, a court need not instruct
the jury on the requested affirmative defense where the evidence
is so slight as to be incapable of raising a reasonable doubt in the
jury’s mind as to whether the defendant acted in accordance
with that affirmative defense.” State v. Burke, 2011 UT App 168,
¶ 81, 256 P.3d 1102 (quotation simplified). We first address
Defendant’s request for an innocent-possession jury instruction
then consider her request for the jury to be instructed on
compulsion.
20170386-CA 7 2019 UT App 27State v. Rivera
A. Innocent-Possession Defense
¶20 Relevant here, it is unlawful in Utah “for any person
knowingly and intentionally to possess or use . . . a controlled
substance.” Utah Code Ann. § 58-37-8(2)(a)(i) (LexisNexis
Supp. 2018). 2 This statutory provision “implicitly includes the
defense of innocent possession.” State v. Miller, 2008 UT 61, ¶ 21,
193 P.3d 92. The innocent-possession defense “applies if (1) the
controlled substance was attained innocently and held with no
illicit or illegal purpose, and (2) the possession of the controlled
substance was transitory; that is, that the defendant took
adequate measures to rid [herself] of possession of the controlled
substance as promptly as reasonably possible.” Id. ¶ 22.
“[W]hether a defendant took adequate measures to rid [herself]
of a controlled substance as promptly as reasonably possible” is
a question for the jury. Id. ¶ 23; see also United States v. Mason, 233
F.3d 619, 624 (D.C. Cir. 2000) (observing that, where a
“defendant’s claims of innocent possession, lack of illicit
purpose, and transitory possession are plausible, albeit
debatable,” the issue should be decided by the jury).
¶21 Here, the State charged Defendant with possession of a
controlled substance for the drugs found in her purse. Defendant
testified that, following Boyfriend’s use of drugs throughout the
night, she put Boyfriend’s drugs in her purse to prevent his
continued use. The drugs remained in Defendant’s purse and in
the apartment until Daughter retrieved the purse approximately
two to three hours after Defendant had taken the drugs from
Boyfriend. During that time period Defendant showered while
Boyfriend banged on the door demanding the drugs back;
Brother pointed a gun at Defendant while Boyfriend shouted,
“Shoot the bitch”; the men ran away; Defendant tried to get the
2. Because the relevant provision has not changed, we cite the
most recent version of the statute for convenience.
20170386-CA 8 2019 UT App 27State v. Rivera
attention of Daughter in another nearby apartment unit;
Defendant obtained a gun from the apartment and returned to
collect Daughter outside; and the police questioned and
ultimately arrested Defendant on suspicion of possession of a
concealed, loaded firearm. It was only subsequent to
Defendant’s arrest that Daughter retrieved Defendant’s purse
from the apartment. Defendant then directed Sister to take a key
from the purse, at which point the police observed what
appeared to be a pouch containing a controlled substance and
paraphernalia. Defendant testified, “At the time, . . . I spaced that
I even grabbed the drugs from [Boyfriend] and put them in my
purse” because “so much . . . happen[ed] at once.”
¶22 The trial court concluded that the evidence presented at
trial constituted a threshold showing of the first element of the
defense—that “[Defendant] obtained [the drugs] without an
illegal purpose to use [them].” The trial court declined to instruct
the jury on innocent possession, however, because the court
determined that there was no evidence of the second element—
that Defendant’s possession was transitory. The court
determined that no evidence was presented to show any attempt
by Defendant to abandon or destroy the drugs, or turn them
over to the police despite having opportunities to do so.
Although Defendant carries some burden of proof with regard
to an affirmative defense, that burden “is quite limited.” State v.
Sellers, 2011 UT App 38, ¶ 15, 248 P.3d 70 (quotation simplified).
Because we discern “a reasonable basis in the evidence for such a
defense,” Defendant was entitled to an innocent-possession
instruction. Id.; see also Mason, 233 F.3d at 624.
¶23 Defendant testified that she acquired the drugs not for her
use, but with the purpose of preventing Boyfriend’s use. Neither
party presented any other evidence as to Defendant’s intent with
regard to her possession of the drugs. Given this evidence, the
jury could reasonably conclude that Defendant attained the
drugs innocently and without an illicit or illegal purpose. The
20170386-CA 9 2019 UT App 27State v. Rivera
trial court therefore properly concluded that Defendant met the
threshold showing that Defendant lacked criminal intent as to
possession. See Miller, 2008 UT 61, ¶ 21.
¶24 The evidence elicited at trial also suggests that
Defendant’s possession could have qualified as transitory. After
Defendant took the drugs from Boyfriend, they sat in her purse
while she showered and dressed. A short time later, she placed
the purse in the bedroom and it remained there for
approximately two to three hours until Defendant was arrested
and Daughter retrieved it.
¶25 The trial court observed that no evidence was presented
showing that Defendant attempted to abandon or destroy the
drugs, or deliver them to the police. Likewise, the parties
presented no evidence explicitly identifying Defendant’s “intent
to dispose of the drugs to prevent harm to others or to turn them
over to the proper authorities.” See State v. Karren, 2018 UT App
226, ¶ 24. The record establishes, however, that Boyfriend and
Brother threatened Defendant’s life shortly after she obtained the
drugs. She tried to call the police but her phone was not
working. Following this exchange, Defendant focused her
attention on getting herself and Daughter out of the apartment
complex, even leaving her purse behind. When officers finally
discovered what appeared to be drugs in her purse, Defendant
immediately acknowledged their presence. Until that point,
Defendant explained that “[she] spaced that [she] even grabbed
the drugs from [Boyfriend] and put them in [her] purse,” citing
the rapidly evolving circumstances.
¶26 Under these facts, it is possible that a reasonable jury
could find that Defendant’s possession was transitory. In other
words, a jury could reasonably conclude by inference that
Defendant “took adequate measures to rid [herself] of a
controlled substance as promptly as reasonably possible.” Miller,
2008 UT 61, ¶ 23 (emphasis added). Given the bulk of evidence
20170386-CA 10 2019 UT App 27State v. Rivera
presented at trial showing Defendant’s preoccupation with
Boyfriend and Brother’s threats, the jury, not the court, should
be tasked with determining whether Defendant’s possession was
transitory. See id. ¶ 24. That is, the jury should determine
whether under the circumstances Defendant “took adequate
measures to rid [herself] of possession of the controlled
substance as promptly as reasonably possible.” Id. ¶ 22. The trial
court erred when it declined to provide the innocent-possession
defense instruction, and took this question from the jury.
B. Compulsion Defense
¶27 Defendant also argues that the trial court erred when it
declined to instruct the jury on Defendant’s compulsion defense
for her possession of Boyfriend’s drugs and her possession of the
loaded, concealed firearm. In particular, she asserts that
“Boyfriend’s drug use became an imminent threat to both
Boyfriend and [Defendant]” and, as a result, she “could not give
the drugs back to [Boyfriend]” without putting them both at risk.
We are not persuaded and therefore affirm the court’s decision
not to instruct on this defense. 3
¶28 Utah Code section 76-2-302 provides a defense to criminal
charges when a person “engaged in the proscribed conduct
because [she] was coerced to do so by the use or threatened
imminent use of unlawful physical force upon [her] . . . , which
force or threatened force a person of reasonable firmness in [her]
situation would not have resisted.” Utah Code Ann.
3. Although we reverse Defendant’s conviction for possession of
a controlled substance, we address this issue because we
anticipate it may arise again below. See State v. Ogden, 2018 UT 8,
¶ 49, 416 P.3d 1132 (noting that appellate courts “retain the
authority to reach issues when . . . our analysis could prove
helpful on remand”).
20170386-CA 11 2019 UT App 27State v. Rivera
§ 76‑2‑302(1) (LexisNexis Supp. 2018). In other words, a
defendant is entitled to the compulsion defense instruction when
they are forced to violate the law under threat or use of force and
they have no reasonable alternative to violating the law. See State
v. Ott, 763 P.2d 810, 812 (Utah Ct. App. 1988).
¶29 The evidence presented at trial suggests Defendant
experienced a threat of imminent force: Brother threatened to
shoot Defendant if she did not return the drugs and drug
paraphernalia to Boyfriend. That threat did not compel her to
keep the drugs. Thus, the circumstances plainly contradict her
argument that she maintained possession of the drugs because
she “was coerced to do so.” See Utah Code Ann. § 76-2-302(1).
Accordingly, we find the argument unpersuasive and affirm the
trial court’s denial of Defendant’s request for a compulsion
defense jury instruction regarding her possession of a controlled
substance.
¶30 Defendant also contends that the trial court erred when it
denied her request for a compulsion instruction regarding her
possession of a loaded, concealed firearm. We are likewise
unpersuaded. “For a threat to be imminent, it would have to
appear that it had been communicated to the defendant that
[she] would be subjected to physical force presently.” State v.
Harding, 635 P.2d 33, 35 (Utah 1981).
¶31 Brother and Boyfriend demanded, at gunpoint, that
Defendant return the drugs she had taken from them. In
response, Defendant threatened to call the police and may have
done so had her phone been working. At that point, the men fled
the apartment and Defendant observed Boyfriend drive away.
She then left the apartment and had time to whistle to alert
Daughter that they needed to leave. Only then did Defendant
reenter the apartment and retrieve the gun. Explaining why she
picked up the gun, Defendant asserted she feared the men and
did not know where they had gone. But fearing for one’s safety
20170386-CA 12 2019 UT App 27State v. Rivera
is not the same as being coerced to engage in illegal activity. In
order for Defendant to be entitled to a compulsion instruction,
there must have been some evidence presented at trial to
show that someone forced her, upon use or imminent threat of
physical force, to pick up the gun and possess it. See Utah
Code Ann. § 76-2-302(1). Under the circumstances presented
here, we agree with the State that during the time Defendant
unlawfully possessed a concealed, loaded firearm she was not
“coerced to do so by the use or threatened imminent use of
unlawful physical force upon [her] . . . , which force or
threatened force a person of reasonable firmness in [her]
situation would not have resisted.” Id. Thus, we affirm the trial
court’s denial of Defendant’s request for a compulsion defense
jury instruction with respect to her possession of a concealed
firearm.
II. Hearsay Objection
¶32 Defendant next contends that the court erred when it
declined to exclude the police officers’ testimony regarding the
original report of a woman with a gun.
¶33 Hearsay is an out-of-court statement “offer[ed] in
evidence to prove the truth of the matter asserted in
the statement.” Utah R. Evid. 801(c)(2); see also Kranendonk v.
Gregory & Swapp PLLC, 2014 UT App 36, ¶ 23, 320 P.3d 689.
Hearsay is generally inadmissible absent an exception under
the Utah Rules of Evidence. See Utah R. Evid. 802; see also State v.
McNeil, 2013 UT App 134, ¶ 44, 302 P.3d 844 (observing
that “hearsay is generally inadmissible because the witness is
acting as a conduit to relay the personal knowledge or
observations of others” (quotation simplified)), aff’d, 2016 UT 3,
365 P.3d 699.
¶34 Defendant acknowledges that a police officer’s
explanation of “conduct . . . responsive to ‘information
20170386-CA 13 2019 UT App 27State v. Rivera
received’” is not hearsay. See State v. Davis, 2007 UT App 13,
¶ 24, 155 P.3d 909. She points out, however, that “if [the officer]
becomes more specific by repeating definite complaints of a
particular crime by the accused, this is so likely to be misused by
the jury as evidence of that fact asserted that it should be
excluded as hearsay.” See id. (quotation simplified).
¶35 At trial, the prosecutor asked one of the police
officers, “[W]hat brought you to the scene?” The officer
answered, “We responded to a [report of a] female with a gun.”
As a result, the officer explained, the officers started talking to
people to find the woman with a gun. Another officer testified
regarding “a dispatch call of a person waving a gun and kids in
the area.” Defendant contends that these statements constituted
inadmissible hearsay. Specifically, Defendant challenges the
description of the report of a “female with a gun” rather than
merely a “person with a gun.”
¶36 We are not persuaded that, under these circumstances,
the description is anything more than the “information received”
by the officers. First, Defendant does not challenge
these statements as the basis for the officers’ presence at the
apartment complex. In other words, Defendant fails to
adequately contest the State’s assertion that the statements were
not offered to prove the truth of the matter asserted.
Additionally, Defendant fails to explain how a report of a
“female with a gun” made the statement “more specific by
repeating definite complaints of a particular crime by the
accused.” See id. ¶ 24 (quotation simplified). A report of a female
with a gun, although narrower than the description of a “person
with a gun,” simply is not sufficiently definite to identify
Defendant or any particular crime she allegedly committed.
Accordingly, we conclude that the trial court did not exceed its
discretion when it allowed the description of the report of a
female with a gun.
20170386-CA 14 2019 UT App 27State v. Rivera
III. Insufficient Evidence
¶37 Defendant next argues that the State presented
insufficient evidence to support her conviction for carrying a
concealed firearm and that the trial court should have granted
her motion for a directed verdict. When assessing the denial of a
directed verdict motion based upon insufficiency of the
evidence, our review is “highly deferential.” State v. Nielsen, 2014
UT 10, ¶ 30, 326 P.3d 645. “We will uphold the trial court’s
decision if, upon reviewing the evidence and all inferences that
can be reasonably drawn from it, we conclude that some
evidence exists from which a reasonable jury could find that the
elements of the crime had been proven beyond a reasonable
doubt.” State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation
simplified). We first address the facts presented at trial, then
consider the law as applied to those facts.
¶38 The facts surrounding identification of the location where
Defendant was detained and arrested by police officers are not
in dispute. Defendant conceded at trial that she possessed a
concealed firearm. Consequently, we address the narrower
question of whether the State presented sufficient evidence that
she had the concealed firearm “in or on a place other than
[her] . . . property.” See Utah Code Ann. § 76‑10‑504(1)
(LexisNexis Supp. 2018). Although Defendant did not live in the
apartment unit, she had been visiting Boyfriend at his apartment
for a day or two before her arrest. On the morning of the
incident and her arrest, Defendant emerged from the bathroom
to Brother and Boyfriend pointing a gun at her. Brother and
Boyfriend threatened to shoot her and then fled from the
apartment. Fearing for her safety, Defendant took a firearm from
the closet and concealed it in her bra. She then left the apartment
unit and collected Daughter who was coming out of a nearby
apartment unit. As police were arriving on the scene, Defendant
stepped through the gate of a small fence and waited outside the
fenced courtyard area for Sister. The police ultimately detained
20170386-CA 15 2019 UT App 27State v. Rivera
Defendant in that spot and the State subsequently charged her
with carrying a concealed firearm.
¶39 As to the identification of the particular location,
Defendant was just outside the fence that surrounded the
apartment courtyard but remained on the grassy area between
the apartment building and the sidewalk. Defendant testified
that though she was “right outside the fence” she did not believe
that she had left “the property.” The State presented no evidence
of property ownership of the grassy area or the delineation of
property lines particularly identifying the record owner of that
grassy area. The parties and the trial court appear to have
approved, however, of the description of that location as a
“common area” appurtenant to the apartment complex property.
¶40 The concealed firearms statute prohibits a person from
“carry[ing] a concealed firearm . . . in or on a place other than the
person’s residence, [or] property.” Id. (emphasis added). 4 When
interpreting a statute, our aim “is to give effect to the
legislature’s intent in light of the purpose that the statute was
meant to achieve.” Monarrez v. Utah Dep’t of Transp., 2016 UT 10,
4. The concealed firearms statute defines “residence” as “an
improvement to real property used or occupied as a primary or
secondary residence.” Utah Code Ann. § 76-10-501(17)
(LexisNexis 2012). Because the parties do not dispute that
Defendant possessed the firearm on the grassy area outside of
the apartment’s gate, and because no party argues that
Defendant resided, even temporarily, in this area of the
apartment complex, Defendant cannot be said to have been
charged with carrying a concealed firearm in her “primary or
secondary residence.” See id. We also note that this statutory
provision is subject to other exceptions not relevant to the
circumstances of this case, so we do not address these other
exceptions. See generally id. § 76-10-504 (Supp. 2018).
20170386-CA 16 2019 UT App 27State v. Rivera
¶ 11, 368 P.3d 846 (quotation simplified). Additionally, “we
avoid any interpretation which renders parts or words in a
statute inoperative or superfluous in order to give effect to every
word of a statute.” Id. (quotation simplified). By its plain terms—
specifically by employing the phrase “other than”—the statute
does not proscribe a person’s carrying of a concealed weapon
while that person is “on . . . the person’s . . . property.” Utah
Code Ann. § 76-10-504(1) (2012); see also id. § 76-10-500(1)
(“Except as specifically provided by state law, a citizen of the
United States or a lawfully admitted alien shall not be . . .
prohibited from owning, possessing, purchasing, selling,
transferring, transporting, or keeping any firearm at his place of
residence, property, business, or in any vehicle lawfully in his
possession or lawfully under his control . . . .”). The meaning of a
“person’s property” is not so plain, however, and the statute
offers no definition applicable in this situation.
¶41 Real property in the possessive context, i.e., carrying a
firearm “on the person’s property,” implies that the person must
have ownership of the land in order to benefit from the statute’s
exemption. “Ownership” of real estate is not always a simple yes
or no proposition, but rather describes “a collection of rights to
possess, to use and to enjoy property, including the right to sell
and transmit it. The term owner is often used to characterize the
possessor of an interest less than that of absolute ownership,
such as a tenant for life.” Jeffs v. Stubbs, 970 P.2d 1234, 1241–42
(Utah 1998) (quotation simplified); see also Property, Black’s Law
Dictionary (10th ed. 2014) (defining property as a collection of
“rights in a valued resource such as land,” which are collectively
described as a “bundle of rights”). A person with a fee simple
interest in land—one who holds the whole bundle of rights—
may indeed argue, likely successfully, that the statute does not
criminalize the possession of a concealed firearm while on his or
her property. But this does not describe Defendant’s
circumstances.
20170386-CA 17 2019 UT App 27State v. Rivera
¶42 Defendant argues that she was “a temporary resident of
the apartment complex” and she therefore “had the right to use
the courtyard to the exclusion of others.” She testified that she
did not live in Boyfriend’s apartment but stayed there
occasionally. From this evidence, the jury could infer that
Defendant is not the fee simple owner of the grassy common
area, and that she is not a renter. See, e.g., Utah Code Ann.
§ 57‑22-2(1), (4), (5) (Supp. 2018) (defining “owner,” “renter,”
and “residential rental unit” as those terms are used in the Utah
Fit Premises Act). Moreover, Defendant testified that she did not
live in the apartment unit and—prior to her arrest—she had
been visiting Boyfriend at his apartment for a day or two. Even
assuming, without deciding, that owners of condominiums and
apartment-rental tenants who have signed a lease have at least a
fractional property interest in the common area, Defendant falls
outside of even these categories. Under the circumstances
presented here, Defendant has no conceivable ownership
interest in the common area of this apartment complex, and
therefore the common area cannot be said to be Defendant’s
“property.” And the concealed firearm statute therefore forbids
her from carrying a concealed firearm in the common area of this
apartment complex.
¶43 Here, as a threshold matter, the jury heard sufficient
evidence to determine, beyond a reasonable doubt, that
Defendant carried a concealed firearm while not on “her
property.” Accordingly, we affirm the trial court’s denial of
Defendant’s motion for a directed verdict on this count.
IV. Cumulative Error
¶44 Defendant asserts that the cumulative effect of the alleged
errors undermines confidence in the jury’s verdict. Considering
all alleged errors, and any we assume may have occurred, we
“reverse only if the cumulative effect of the several errors
undermines our confidence” that Defendant has received a fair
20170386-CA 18 2019 UT App 27State v. Rivera
trial. See State v. King, 2010 UT App 396, ¶ 17, 248 P.3d 984(quotation simplified). “But if the claims are found on appeal to
not constitute error, or the errors are found to be so minor as to
result in no harm, the doctrine will not be applied.” State v.
Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (quotation simplified).
¶45 We agree with Defendant that one error occurred at
trial—the court should have provided the innocent-possession
defense jury instruction on her drug possession charge, and thus
we reverse that conviction. Because we have identified no other
errors, the doctrine does not apply. See State v. Beverly, 2018 UT
60, ¶ 80 (“[T]he cumulative-error doctrine has no application
when only a single error has been determined or assumed on
appeal.”); see also ConocoPhillips Co. v. Utah Dep’t of Transp., 2017
UT App 68, ¶ 31, 397 P.3d 772.
CONCLUSION
¶46 The trial court erred when it refused to provide the jury
with an innocent-possession instruction regarding Defendant’s
possession of a controlled substance. However, the trial court
did not err when it denied Defendant’s request for a compulsion
defense instruction for her possession of drugs or for her
possession of a loaded, concealed firearm. The trial court did not
exceed its discretion when it overruled Defendant’s hearsay
objections to testimony from officers that they responded to a
call of a woman with a gun. We are not persuaded that the court
erred when it denied Defendant’s motion for a directed verdict
on the concealed firearm charge. We lastly conclude that the
cumulative error doctrine does not apply because we have
identified only one error in the proceedings below. We reverse
Defendant’s conviction for possession of a controlled substance
and remand for a new trial on that charge and otherwise affirm.
20170386-CA 19 2019 UT App 27