State v. Gilliard , 2020 UT App 7 ( 2020 )

2020 UT App 7THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JAMES EDWARD GILLIARD,
Appellant.
Opinion
No. 20180519-CA
Filed January 3, 2020
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 171910231
Wendy Brown and Lacey C. Singleton, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 A seemingly routine traffic stop quickly turned into a
high-speed chase, culminating in a crashed car, the discovery of
two backpacks full of drugs and drug paraphernalia, and the
conviction of James Edward Gilliard for a handful of crimes.
Despite eyewitness testimony from two officers that Gilliard was
the driver, and despite his picture and information appearing in
a law enforcement database that was accessed during the traffic
stop, Gilliard presents an ageless argument: It wasn’t me. In
particular, Gilliard contends that there was insufficient evidence
of his identity as the perpetrator and of a connection between
him and the drug-filled backpacks. He also contends that the
State v. Gilliard
district court abused its discretion in postponing an evidentiary
ruling. We affirm Gilliard’s convictions.
BACKGROUND 1
The Traffic Stop and High-Speed Chase
¶2 While monitoring traffic, a police officer (Officer One)
saw a man and passenger drive by without their seatbelts on. As
Officer One began to follow them in his patrol car, the car sped
up to twenty miles per hour above the speed limit. This
prompted Officer One to initiate a traffic stop, and the car pulled
over into a gas station parking lot. After approaching the car,
Officer One asked the driver—who was later identified as
Gilliard—for his license and noticed that he and his passenger
were “skittish” and “nervous.” As Officer One talked with
Gilliard, he observed Gilliard’s general physical appearance and
noticed his facial tattoos. After Gilliard handed Officer One his
identification card, Officer One returned to his patrol car and ran
the information on his computer. This search pulled up a
skeleton record,2 which displayed Gilliard’s picture, physical
description, and a notation that Gilliard’s driver license had been
1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Tulley, 2018 UT 35, ¶ 4 n.1, 428
P.3d 1005 (cleaned up).
2. A skeleton record is an entry in the law enforcement database
indicating a prior offense or that the person was previously
pulled over for a driving citation but does not have a driver
license. See infra ¶ 12; see also Green v. State, 710 So. 2d 862, 864
(Miss. 1998).
20180519-CA 2 2020 UT App 7State v. Gilliard
“denied.” Officer One also ran the car’s license plate and
discovered that it was a rental car. Based on the circumstances of
the stop, Officer One called for backup.
¶3 By the time a second officer (Officer Two) arrived, Officer
One had returned to the stopped car. Officer One smelled
marijuana and asked whether there was any in the car. Gilliard
responded that there was. Meanwhile, Officer Two approached
the car and observed Gilliard and his passenger. Officer One
then ordered Gilliard to turn off the car and to step out. But
Gilliard only turned off the car; he left the key in the ignition and
refused to step out. Officer One again ordered Gilliard out of the
car. Instead, Gilliard fired up the car and sped off. Officer One
rushed back to his patrol car, described the rental car via radio,
and followed another officer (Officer Three), who was directly
behind Gilliard.
¶4 A high-speed chase ensued. During the chase, and after
hearing a communication over the radio from Officer Three,
Officer Two stopped and retrieved a black backpack from the
middle of the road. The black backpack contained a scale, 2.3
grams of individually packaged heroin, and 7.5 grams of
methamphetamine. As Officer Two stopped to collect the
backpack, Officer One and Officer Three continued to pursue
Gilliard. However, they eventually stopped because the “speeds
were just too high for that area” and “presented too much of a
danger to the public.”
¶5 Shortly thereafter, the officers found the rental car
abandoned a few blocks away, with a smashed front
windshield. It appeared that the rental car had collided with
a train-crossing arm. In the trunk, officers found a green
backpack containing 13.6 grams of marijuana, 1.4 grams of
heroin, and 25.4 grams of methamphetamine. The officers noted
that the drugs in both backpacks were packaged in the same
manner—inserted in the toe of some socks with the socks rolled
up.
20180519-CA 3 2020 UT App 7State v. Gilliard
The Trial
¶6 The State charged Gilliard with two counts of possession
of a controlled substance with the intent to distribute, one count
of failure to respond to an officer’s signal to stop, one count of
possession of a controlled substance, one count of possession of
drug paraphernalia, one count of reckless driving, and one count
of failure to wear a seatbelt. The case proceeded to trial.
¶7 After jury selection and immediately before opening
statements, defense counsel raised an objection to some potential
testimony. Counsel specifically made an oral motion in limine to
exclude testimony which certain officers were prepared to give:
that Officer Three radioed to the other officers that he saw the
black backpack being thrown out of the driver’s side of the rental
car. Counsel argued that this would be inadmissible hearsay and
violate Gilliard’s right to confront the witness against him
because Officer Three was unavailable to testify.
¶8 The State argued that the statements were admissible.
Specifically, the State asserted that the statements were not
hearsay because they were not offered to prove the truth of the
matter asserted; rather, their purpose was to explain why Officer
Two stopped to collect the black backpack. Alternatively, the
State argued that even if the statements were hearsay, they were
admissible under the present-sense-impression and excited-
utterance exceptions of rule 803 of the Utah Rules of Evidence.
Finally, the State argued that Officer Three’s statements were not
testimonial and would not violate Gilliard’s confrontation right.
¶9 The district court agreed with the State that the
statements would fall under the present-sense-impression
exception of rule 803, but because the issue had not been briefed
and the court was not certain of the law, it deferred ruling on the
confrontation issue so it could research the issue further. Defense
counsel requested that the ruling be made prior to opening
statements. But the case had been scheduled for a single day,
20180519-CA 4 2020 UT App 7State v. Gilliard
and to keep the trial on schedule, the court denied defense
counsel’s request. The court then told the attorneys that their
opening statements should be based on “evidence that you have
a good faith belief will come in during trial.” The court also
instructed the jury, “What the lawyers say is not evidence. For
example, their opening statements and closing arguments are
not evidence.”
¶10 During its opening statement, the State told the jury,
among other things, that it would hear that “Officer [Three]
radioed that a bag had just been thrown from the car” and
Officer One then directed Officer Two to retrieve the bag, which
Officer Two did. After opening statements, the district court
asked defense counsel if the confrontation issue should still be
addressed before the witnesses testified, and defense counsel
indicated that it should be. So, the court directed the attorneys to
research the issue over the lunch hour, prepare their arguments,
and present them after lunch. After hearing the arguments, the
court ruled that Officer Three’s statements were testimonial and
that they were inadmissible, unless he became available to
testify. Nevertheless, the court ruled that the State could have
Officer Two offer a more limited explanation of why he went to
the bag, such as a statement that “based on the information
[Officer Two] received from Officer [Three], [he] stopped at the
side of the road at this spot and picked up the bag.”
¶11 The State then presented its case-in-chief. It put on
evidence of the traffic stop, subsequent chase, drugs, drug
paraphernalia, and the rental car to support the charges. In
particular, Officer One testified that Gilliard was the driver of
the rental car. He also explained that Gilliard’s overall physical
appearance and facial tattoos made him certain that Gilliard was
the driver. Officer Two also testified that Gilliard was the driver
of the rental car. He further testified that based on a
communication that he heard over the radio, he stopped and
found the black backpack in the middle of the road where
Gilliard had just driven. The officers also testified about finding
20180519-CA 5 2020 UT App 7State v. Gilliard
the green backpack and its contents in the trunk of the crashed
rental car shortly after the chase ended. Officer One additionally
testified that drug dealers commonly use rental cars because
“they’re hard to track.”
¶12 Gilliard’s primary defense was that he was not the driver
of the rental car. Gilliard also cross-examined the officers on
their identifications and whether they saw the black backpack
during the initial stop. He also pointed out that Officer One had
testified at a preliminary hearing that Gilliard gave him a driver
license, but Gilliard had never been issued one. In support of
this, Gilliard called a records manager from the Utah
Department of Public Safety, who testified that no Utah driver
license had been issued to him. On cross-examination, however,
the records manager explained that “when somebody doesn’t
have a driver[] license, and [is] pulled over for a driving citation,
something called a skeleton record is created” in the database,
and such a record would show up in a law enforcement search.
The records manager confirmed that Gilliard had a skeleton
record, and it included a notation that Gilliard’s license had been
denied. In response, Officer One clarified that the identification
Gilliard gave him could have been a Utah identification card,
rather than a driver license, because it would look similar to a
driver license and would include the same information. Officer
One further explained that he used the name and date of birth
on the card to access Gilliard’s skeleton record and that the
displayed photograph and physical description matched
Gilliard’s physical appearance.
¶13 Gilliard moved for a directed verdict. In his motion,
Gilliard argued that the evidence was insufficient to prove that
he was the driver of the rental car. He also argued that the
amount of drugs and drug paraphernalia did not support his
distribution charge. Finally, he argued that the evidence showed
that he did initially stop, contrary to his charge for failure to
respond to an officer’s signal. The district court denied the
directed verdict motion and proceeded to give the jury
20180519-CA 6 2020 UT App 7State v. Gilliard
additional instructions. Among its other instructions, the court
told the jury that it “must base its decision only on the evidence
. . . . Evidence includes what the witnesses said . . . under oath
and any exhibits admitted into evidence. Nothing else is
evidence. The lawyers’ statements and arguments are not
evidence.” (Cleaned up.) Additionally, the court told the jurors,
“If the lawyers say something about the evidence that conflicts
with what you remember, you are to rely on your memory of the
evidence.”
¶14 The jury acquitted Gilliard on one count of possession
with intent to distribute, but it found him guilty on the six
remaining charges. Gilliard appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 Gilliard raises two issues: one attacking the sufficiency of
the evidence and another asserting that the district court
exceeded its discretion by not ruling immediately on Gilliard’s
oral motion in limine. Initially, we address whether there was
sufficient evidence to support the jury’s verdict. “In assessing 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 (cleaned up). “And we will not
reverse a jury verdict if 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.
Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (cleaned up).
¶16 Next, we analyze whether the district court exceeded its
discretion when it postponed ruling on defense counsel’s motion
in limine until after opening statements. “A trial judge is
accorded broad discretion in determining how a trial shall
proceed in his or her courtroom.” Tschaggeny v. Milbank Ins. Co.,
2007 UT 37, ¶ 16, 163 P.3d 615 (quoting University of Utah v.
20180519-CA 7 2020 UT App 7State v. Gilliard
Industrial Comm’n of Utah, 736 P.2d 630, 633 (Utah 1987)). We
therefore review such determinations for abuse of discretion.
ANALYSIS
I. Sufficiency of the Evidence
¶17 Gilliard contends that the evidence is insufficient to
support his convictions. His contention is premised on two
arguments. First, Gilliard argues that all his convictions should
be reversed because the evidence of his identity as the driver of
the rental car, which connects him to all the charges, is
insufficient. Second, he argues that his convictions for possession
of drug paraphernalia and possession of a controlled substance
with the intent to distribute should be reversed based on the
premises that “[t]he evidence was insufficient to prove that the
black backpack or its contents belonged to” him and “[t]he
evidence was similarly insufficient to establish [his] possession
of the green backpack.” We address these arguments below.
A. Identity
¶18 “It is well-settled that an essential element that the
government must prove beyond a reasonable doubt is the
identification of a defendant as the person who perpetrated the
crime charged.” State v. Cowlishaw, 2017 UT App 181, ¶ 13, 405
P.3d 885 (cleaned up). In convicting Gilliard of the charged
crimes, the jury determined that the identification element was
met or, in other words, that Gilliard was indeed the driver of the
rental car.
¶19 The evidence presented to the jury included testimony of
Gilliard’s identity. Both Officer One and Officer Two saw
Gilliard during the traffic stop and later testified in court that
Gilliard was the driver. Beyond these identifications, Officer One
specifically remembered Gilliard’s facial tattoo. Officer One also
testified that when he ran the information from Gilliard’s
20180519-CA 8 2020 UT App 7State v. Gilliard
identification card, it pulled up his matching photograph,
matching physical description, and a message that read
“denied.” The records manager corroborated this by testifying
that Gilliard had a skeleton record available on the law
enforcement database with a message indicating that his driver
license had been denied. 3
¶20 Nevertheless, Gilliard zeroes in on inconsistent testimony
related to his identification card. He argues that inconsistencies
in the type of identification card—driver license versus state
identification card—Officer One said he received from Gilliard,
coupled with the lack of Gilliard’s name being in the testimony,
make the evidence insufficient. However, this ignores the well-
established rule that “contradictory testimony alone is not
sufficient to disturb a jury verdict.” Mackin v. State, 2016 UT 47,
¶ 29, 387 P.3d 986 (cleaned up); see also State v. Cady, 2018 UT
App 8, ¶ 23, 414 P.3d 974 (“There is perhaps no more axiomatic
statement when reviewing jury verdicts than this: The choice
between conflicting testimony is within the province of the jury.”
(cleaned up)); State v. Black, 2015 UT App 30, ¶ 19, 344 P.3d 644(“The existence of a conflict in the evidence does not render the
totality of the evidence insufficient. It is the role of the factfinder
to examine and resolve such conflicts.”). Moreover, Officer One
addressed this issue in his trial testimony. He clarified that he
3. Neither officer used Gilliard’s name during their testimony,
and the State did not introduce evidence related to who rented
the car. Gilliard criticizes the jury’s verdict due to this lack of
evidence. Although this evidence may have further
substantiated a finding of the element of identity, it was far from
required—especially where Officer One testified that he entered
the name from the identification card into the computer, which
revealed Gilliard’s photograph and physical description. See
State v. Loveless, 2008 UT App 336, ¶ 11, 194 P.3d 202 (explaining
that the State is allowed “to determine in what manner to
prosecute a case” (cleaned up)).
20180519-CA 9 2020 UT App 7State v. Gilliard
mistakenly said that the identification card was a driver license
in the preliminary hearing because the two forms of
identification look similar and because Gilliard’s skeleton record
appeared in the database. Thus, with full knowledge of this
inconsistency, it was for the jury to apportion proper weight to
Officer One’s testimony, and we will not overrule the jury’s
decision on the matter. 4
¶21 In sum, we conclude that sufficient “evidence exists from
which a reasonable jury could find” that the element of Gilliard’s
identity was proven beyond a reasonable doubt. State v. Maestas,
2012 UT 46, ¶ 177, 299 P.3d 892 (cleaned up).
B. Black and Green Backpacks
¶22 Gilliard insists that there is also insufficient evidence
connecting him to the black and green backpacks. However, the
State argues that Gilliard never presented this argument to the
district court. We therefore address whether Gilliard’s
arguments related to the backpacks were preserved. Then,
having concluded that they were not, we analyze whether it was
plain error for the district court to submit the issues to the jury.
1. Preservation
¶23 Generally, “to preserve an issue for appeal the issue must
be presented to the [district] court in such a way that the
[district] court has an opportunity to rule on that issue.” Pratt v.
4. Additionally, the ultimate question is whether Gilliard was the
perpetrator, not what form of identification he had. With the two
officers’ identifications of Gilliard and the testimony regarding
Gilliard’s matching picture and physical description in the
record Officer One pulled up from the information on the
identification card, we view the distinction between types of
identification as inconsequential.
20180519-CA 10 2020 UT App 7State v. Gilliard
Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (cleaned up). “Where a
motion for a directed verdict makes general assertions but
fails to assert the specific argument raised on appeal, the
directed verdict motion itself is insufficient to preserve the
more specific argument for appeal.” State v. Gallegos, 2018 UT
App 112, ¶ 14, 427 P.3d 578 (cleaned up). Moreover, “the
appellant must present the legal basis for her claim to the
[district] court, not merely the underlying facts or tangentially
related claim.” State v. Kennedy, 2015 UT App 152, ¶ 21, 354 P.3d
775 (cleaned up). The party must “state succinctly and with
particularity the grounds upon which” relief is sought. State v.
Gonzalez, 2015 UT 10, ¶ 24, 345 P.3d 1168 (quoting Utah R. Crim.
P. 12).
¶24 In his directed verdict motion, Gilliard raised three
points. He first argued that there was insufficient evidence that
he was the driver, making the same arguments he pursued and
we rejected above. He then argued that there was insufficient
evidence that he intended to distribute the controlled substances,
asserting that the amount of drugs, specifically the amount of
heroin found, could have been for personal use. Finally, he
argued that the driver of the rental car stopped at the officer’s
signal—at least initially—and that the State’s case against him
for failure to respond to an officer’s signal to stop also failed
based on his identity arguments. Importantly, Gilliard did not
argue in his directed verdict motion that the evidence was
insufficient to link him to the backpacks. Other than the issue of
identity, Gillard made no other argument about the vehicle, its
contents, or his connection to them. Gilliard did not mention the
backpacks, or any other contents of the vehicle, at all in his
directed verdict motion.
¶25 Gilliard asserts that his “argument on appeal need not be
as narrow as trial counsel’s argument as long as the appeal
merely fleshes out trial counsel’s objection,” citing Gallegos, 2018
UT App 112. This argument is inapposite to Gilliard’s situation.
Gilliard’s insufficient-evidence argument as to the connection
20180519-CA 11 2020 UT App 7State v. Gilliard
between him and the backpacks is not merely fleshing out the
issues raised below; it is transforming them completely. Indeed,
what below was an insufficient-evidence argument based on
Gilliard’s identity as the driver of the rental car cannot be
swapped for the new argument Gilliard now propounds on
appeal.
¶26 This court’s two different holdings on preservation in
State v. Doyle, 2018 UT App 239, 437 P.3d 1266, exemplify why
Gilliard’s argument for preservation falls short. In Doyle, we first
concluded that the defendant’s self-defense argument was
preserved because he asserted that “the State had the burden to
disprove self-defense” in his motion for a directed verdict and
because it was his primary theory of defense throughout the
trial. Id. ¶ 16. Conversely, we concluded that the defendant’s
inherent-improbability argument was not preserved. Id. ¶ 17.
This was because “not every insufficiency challenge raises” the
issue of inherent improbability, it was “a new legal theory” on
appeal, and it was not clear from the context that such a
challenge was being made at trial. Id. ¶ 19.
¶27 Here, like the defendant’s inherent-improbability
argument in Doyle, Gilliard’s insufficient-evidence argument
as to the backpacks is not a necessary condition of every
insufficiency-of-the-evidence challenge. See id. Thus, other
insufficiency arguments based on different grounds would
not provide the district court the “opportunity to rule on
that issue.” Pratt, 2007 UT 41, ¶ 15 (cleaned up). It was not
clear from the context of Gilliard’s other directed verdict
arguments that he wanted the court to rule on the sufficiency
of the evidence connecting him to the backpacks. Indeed,
he chose not to raise that specific argument despite raising
other insufficient-evidence arguments. Therefore, those
“tangentially related claim[s]” did not preserve this
wholly separate issue merely because they were all based
on the theory of insufficient evidence. Kennedy, 2015 UT App
152, ¶ 21.
20180519-CA 12 2020 UT App 7State v. Gilliard
¶28 Additionally, even though Gilliard argues that the district
court’s ruling that referenced the sufficiency of the evidence on
“every element and all charges” served to preserve the issue, this
ruling was made only in the context of Gilliard’s specific
arguments described above. Thus, the court was not ruling on
the argument Gilliard now presents on appeal. See True v. Utah
Dep’t of Transp., 2018 UT App 86, ¶ 23, 427 P.3d 338 (explaining
that “parties, not the courts, have the duty to identify legal issues
and bring arguments . . . in a district court . . . to preserve
argument for appeal” (cleaned up)). In short, by not presenting
to the district court the specific argument of whether there was a
sufficient nexus between Gilliard and the backpacks, Gilliard
failed to preserve the legal theory he now attempts to advance
on appeal.
2. Plain Error
¶29 Alternatively, Gilliard urges us to review this issue
for plain error. “A [district] court plainly errs when it
commits obvious, prejudicial error.” State v. Roberts, 2019 UT
App 9, ¶ 10, 438 P.3d 885. “To establish plain error regarding
the sufficiency of the evidence, an appellant must show first
that the evidence was insufficient to support a conviction of
the crimes charged and second that the insufficiency was so
obvious and fundamental that the [district] court erred in
submitting the case to the jury.” State v. Reyos, 2018 UT App 134,
¶ 39, 427 P.3d 1203 (cleaned up). “An example is the case in
which the State presents no evidence to support an essential
element of a criminal charge.” State v. Holgate, 2000 UT 74, ¶ 17,
10 P.3d 346.
¶30 Drugs and drug paraphernalia were found in the
black backpack, which was found in the middle of the
road during the high-speed chase. The green backpack, found
in the rental car, also held drugs. Citing State v. Lucero, 2015 UT
App 120, 350 P.3d 237, and State v. Salas, 820 P.2d 1386 (Utah Ct.
App. 1991), Gilliard argues that because he was not the sole
20180519-CA 13 2020 UT App 7State v. Gilliard
occupant of the rental car, there was insufficient evidence
to prove his constructive possession of the drugs and
drug paraphernalia such that it was plain error to submit
the issue to the jury. “A defendant constructively possesses
contraband when there is a sufficient nexus between
the defendant and the contraband to permit an inference that
the defendant had both the power and the intent to
exercise dominion and control over it.” Lucero, 2015 UT App 120,
¶ 7. However, “a nexus sufficient to establish constructive
possession cannot be established solely by nonexclusive
ownership or occupancy of the place where the contraband
is found.” Id. ¶ 12. “A defendant’s joint occupancy of
the premises where the contraband is discovered must be
combined with other evidence sufficient to establish the
defendant’s knowing and intentional control over the
contraband.” Id. (cleaned up).
¶31 In Lucero, this court reversed several of the defendant’s
convictions because the State did not present sufficient evidence
beyond the defendant’s co-occupancy of the car to prove beyond
a reasonable doubt that he constructively possessed the various
nefarious items in a backpack. Id. ¶ 23. The “other evidence”
linking the defendant to the backpack was limited to the
backpack being within the defendant’s reach and the defendant’s
denial of ownership of the backpack. Id. ¶ 22. Similarly, in Salas,
this court reversed the defendant’s conviction of drug possession
because the only “other evidence” linking the defendant to the
drugs was his part-ownership of the vehicle where the drugs
were found, his presence in the vehicle, and an anonymous tip
admitted to explain why the officers pulled the defendant over.
820 P.2d at 1388–89.
¶32 But these cases do not prompt us to reverse Gilliard’s
convictions because of the differing facts and standard of review
that confront Gilliard. Indeed, those cases dealt with the
sufficiency of the evidence on direct review, unlike the plain
error review in which we engage here. See State v. Bond, 2015 UT
20180519-CA 14 2020 UT App 7State v. Gilliard
88, ¶ 45, 361 P.3d 104 (explaining that the plain error standard of
review is not an easy one for defendants and that it encourages
timely objections “by demanding strenuous exertion to get
relief” (cleaned up)).
¶33 Although insufficient alone to establish constructive
possession beyond a reasonable doubt—like in Lucero and in
Salas—Gilliard’s occupancy of the rental car linked him to the
black and green backpacks. See Lucero, 2015 UT App 120, ¶ 22;
Salas, 820 P.2d at 1389. The green backpack was found in the
rental car, and there was testimony from which the jury could
infer that the black backpack had been tossed from the rental car
during the high-speed chase. And the fact that the black
backpack was found in the middle of the road suggests that
Gilliard, as the driver, handled the backpack or it was at least
within his reach.
¶34 Yet, there was more incriminating “other evidence” in
this case than the evidence against the defendants in Lucero and
Salas. Beyond the defendant’s mere denial of owning the
backpack in Lucero, 2015 UT App 120, ¶ 22, Gilliard expressly
admitted to Officer One that marijuana was in the rental car, and
marijuana was ultimately found in the green backpack. No other
marijuana was seen or found in the rental car at the traffic stop
or when the officers found the abandoned rental car. 5 Thus, this
was a much more incriminating statement. See State v. Workman,
2005 UT 66, ¶¶ 34–36, 122 P.3d 639 (concluding that the
constructive-possession theory was sufficiently supported by the
“other evidence” that went beyond mere co-occupancy, in part,
because the defendant “admitted to buying some of the
containers and glassware that were being used in the [meth]
lab”). And this evinced that Gilliard knew the green backpack
was in the trunk, knew the backpack contained marijuana, and
5. The record does not reflect that marijuana was found
anywhere except in the backpack.
20180519-CA 15 2020 UT App 7State v. Gilliard
chose to drive the rental car with this knowledge. No such
evidence was in the record against the defendants in Lucero or
Salas.
¶35 Next, the backpacks were the same kind of bag, and the
drugs in both backpacks were all packaged in the same
manner—in the toe of socks with the socks rolled up—
suggesting a similar possessor. Hence, any link between Gilliard
and either of the backpacks strengthens a link between Gilliard
and the other backpack. Finally, Gilliard’s behavior was
significantly more incriminating than the defendants’ behavior
in Lucero and Salas. Gilliard not only fled at the initial traffic stop,
he also later ditched the rental car with the green backpack in it.
And Gilliard was “skittish” and “nervous” when initially pulled
over. Officer One also testified that drug dealers commonly use
rental cars because “they’re hard to track,” which to some extent
connects Gilliard to the backpacks and their narcotics-related
contents. See State v. Ashcraft, 2015 UT 5, ¶¶ 21–22, 349 P.3d 664(holding that the defendant’s constructive possession of the bag
was sufficiently supported by other evidence that included
testimony that the defendant “repeatedly drove through an area
known for drug activity during late night and early morning
hours”).
¶36 In short, while this evidence may not be overwhelming,
because there was “other evidence” to buttress the constructive
possession theory, we cannot conclude that a paucity of evidence
was “so obvious and fundamental” that it was plain error for the
district court to allow the issue of Gilliard’s constructive
possession of the drugs and drug paraphernalia to go to the jury.
Reyos, 2018 UT App 134, ¶ 39 (cleaned up); see also Salt Lake City
v. Carrera, 2015 UT 73, ¶ 11, 358 P.3d 1067 (“Circumstantial
evidence alone may be sufficient to establish the guilt of the
accused.” (cleaned up)); Workman, 2005 UT 66, ¶ 35 (explaining
that the pieces of evidence, taken alone, might not have been
enough for a reasonable jury to find constructive possession, but
the accumulation of them was).
20180519-CA 16 2020 UT App 7State v. Gilliard
II. Evidentiary Ruling
¶37 Gilliard next contends that the district court abused its
discretion in delaying its ruling on whether testimony about
Officer Three’s statements was admissible until after opening
statements. We disagree. “A district court abuses its discretion
only when its decision was against the logic of the circumstances
and so arbitrary and unreasonable as to shock one’s sense of
justice or resulted from bias, prejudice, or malice.” Jones v.
Layton/Okland, 2009 UT 39, ¶ 27, 214 P.3d 859 (cleaned up).
¶38 This issue must be considered in context. Ultimately, the
district court ruled that the statements of Officer Three were
inadmissible—a conclusion with which Gilliard agrees.
Accordingly, Gilliard does not assail the admission of any
evidence. Instead, he rests his argument on the assertion that the
mere exposure to the jury of the State’s single reference to
Officer Three’s potential testimony in opening statements was so
prejudicial and obviously inadmissible that the district court
abused its discretion in not prophylactically precluding any
mention of the testimony until it could definitively rule on the
issue. However, the district court had various logical and
reasonable reasons for delaying its ruling.
¶39 The court and counsel were not prepared with pertinent
case law or fully fleshed out arguments when the issue was
raised on the fly. In fact, the court specifically explained that it
was unsure about whether the testimony would violate
Gilliard’s confrontation right and needed to research the issue.
Recognizing that the trial schedule required that the trial
proceed, the court moved forward with opening statements. It
then advised the attorneys that they should base their statements
on “evidence that [they] ha[d] a good faith belief w[ould] come
in during trial” and used the lunch break to allow the court and
counsel to research the issue. District courts exercise prudence
when they make a concerted effort to arrive at fully informed
decisions. Had the court simply made its best guess and ruled
20180519-CA 17 2020 UT App 7State v. Gilliard
based upon an incomplete understanding of the law, it would
have run a significant risk of arriving at an erroneous conclusion
of law. E.g., Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82,
¶ 23, 199 P.3d 957 (“An abuse of discretion may be demonstrated
by showing that the district court relied on an erroneous
conclusion of law . . . .” (cleaned up)). As a result, the issue as
Gilliard presents it goes to the district court’s management of the
trial proceeding, an area where we afford district courts a large
measure of deference. Tschaggeny v. Milbank Ins. Co., 2007 UT 37,
¶ 16, 163 P.3d 615; see also U.S.A. United Staffing All., LLC v.
Workers’ Comp. Fund, 2009 UT App 160, ¶ 9, 213 P.3d 20 (“A trial
judge is accorded broad discretion in determining how a trial
shall proceed in his or her courtroom.” (cleaned up)). 6
¶40 Additionally, the court mitigated any prejudice through
its instructions to the jury. It stressed to the jury that opening
statements were not evidence, instructing, “What the lawyers
say is not evidence. For example, their opening statements and
closing arguments are not evidence.” Finally, the court again
made clear to the jury, before it deliberated, that opening
statements are not evidence. The court instructed, “You must
base your decision only on the evidence . . . . Evidence includes
what the witnesses said . . . under oath and any exhibits
admitted into evidence. Nothing else is evidence.” And the court
instructed the jury, “If the lawyers say something about the
evidence that conflicts with what you remember, you are to rely
on your memory of the evidence.”
¶41 In light of these circumstances, we cannot say that the
district court’s decision to delay its evidentiary ruling was
6. We can potentially envision different circumstances, where a
motion is brought prior to trial, in which a district court—
depending upon the situation—may very well exceed its
discretion if it fails to rule on the motion before trial. But those
circumstances are not present here.
20180519-CA 18 2020 UT App 7State v. Gilliard
unreasonable. We therefore conclude that the district court did
not exceed its discretion. 7
CONCLUSION
¶42 We conclude that there was sufficient evidence to support
all of Gilliard’s convictions as to his identity as the driver of the
rental car. Furthermore, Gilliard’s arguments related to the
backpacks were not preserved, and it was not plain error to
submit the drug charges to the jury. Finally, the district court did
not abuse its discretion in delaying its evidentiary ruling under
the specific facts of this case. We therefore affirm Gilliard’s
convictions.
7. Gilliard also argues that the State’s comment in its opening
statement constituted prosecutorial misconduct. But because
Gilliard did not object on the basis of prosecutorial misconduct
below, we review this issue only for plain error. State v. Hummel,
2017 UT 19, ¶ 111, 393 P.3d 314; State v. Reid, 2018 UT App 146,
¶ 40, 427 P.3d 1261 (stating that “when a defendant fails to raise
the issue” of prosecutorial misconduct “before the district court,
the law of preservation controls and we review the issues under
established exceptions to the law of preservation” (cleaned up)).
Given our conclusion that the district court did not abuse its
discretion in delaying its ruling, and where counsel followed the
express directions of the court, we are hard-pressed to conclude
that the State’s comment was “so egregious that it would [have
been] plain error for the district court to decline to intervene sua
sponte.” Hummel, 2017 UT 19, ¶ 110 (cleaned up). Indeed, the
court decided that the statements were inadmissible only after
opening statements due to its undertaken research. Accordingly,
we conclude that there was no plain error.
20180519-CA 19 2020 UT App 7