State v. Karren

2018 UT App 226THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DANNY ROBERT KARREN,
Appellant.
Opinion
No. 20150020-CA
Filed December 13, 2018
Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 131501806
Nicolas D. Turner, Attorney for Appellant
Sean D. Reyes and Nathan D. Anderson, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
HAGEN, Judge:
¶1 Danny Robert Karren appeals his convictions for
possession or use of methamphetamine, possession or use of
marijuana, and possession of drug paraphernalia. Karren argues
that the district court erred by denying his request for an
innocent possession jury instruction. Relying on State v. Miller,
2008 UT 61, 193 P.3d 92, Karren contends that he was entitled to
an instruction on innocent possession because he was charged
with a possession crime. Because Karren’s argument
misinterprets the holding in Miller and because the evidence in
the record does not support an innocent possession instruction,
we affirm the district court’s denial of his request.
State v. Karren
¶2 Karren also contends that his trial counsel provided
ineffective assistance by failing to timely file certain pre-trial
motions. Without addressing whether trial counsel’s failure to
timely file motions constituted deficient performance, we hold
that Karren has failed to carry his burden of showing prejudice.
BACKGROUND1
¶3 After allegedly lighting a neighbor’s car on fire, Karren’s
roommate and his girlfriend returned to the apartment they
shared with Karren. There the two gathered “anything and
everything they could,” spoke briefly with Karren, and fled the
apartment, leaving Karren behind. Sometime early the next
morning, Karren smoked methamphetamine. Around the same
time, Karren’s roommate contacted Karren to let him know that
the police might come to their apartment and that he left some
things he needed Karren to bring to him. Karren agreed to
deliver to a local motel a glass marijuana pipe, which belonged
to the roommate’s girlfriend, and a black backpack he retrieved
from the roommate’s bedroom. Karren placed the glass pipe in
the backpack and drove to the motel in his van. When he
arrived, Karren moved the backpack to the backseat of the van
and fell asleep.
¶4 Shortly thereafter, a police officer responding to a call
from a motel employee found Karren asleep in his vehicle. While
he was standing outside of the vehicle looking in at Karren, the
officer observed a large metal spoon with white residue lying on
the passenger seat. Based on his training and experience, the
officer recognized that the white residue was methamphetamine
and that the spoon had been used to heat methamphetamine.
1. We recite the facts in the light most favorable to the jury’s
verdict, presenting conflicting evidence only as necessary to
understand the issues on appeal. See State v. Bond, 2015 UT 88,
¶ 3 n.2, 361 P.3d 104.
20150020-CA 2 2018 UT App 226State v. Karren
¶5 The officer woke Karren and asked him to get out of the
van. After exiting the vehicle, Karren provided the officer with
his name and date of birth and the officer ran Karren’s name
through a government database and discovered that Karren had
several warrants for his arrest. The officer read Karren his
Miranda2 rights, placed him under arrest, and questioned him
about the white residue on the spoon. Karren replied that it was
“meth.” The officer also questioned Karren about when he last
used “illegal drugs,” to which Karren replied that it had been
“approximately four hours before [their] encounter.” Karren
admitted he had also injected methamphetamine into his arm
and the residue on the spoon was from heating the
methamphetamine for injection.
¶6 Next, the officer asked Karren if there were any other
drugs or drug paraphernalia in the vehicle. Karren answered
affirmatively, directing the arresting officer to the black
backpack in the backseat of the van that Karren admitted
contained “a meth pipe, some syringes, a baggie of meth, and a
marijuana pipe.” When the officer asked if the items belonged to
Karren, he answered, “Well, they’re in my vehicle, aren’t they?”
In response to the arresting officer’s questions, Karren also
explained “that a crime happened earlier involving his
roommate and that he thought the cops were going to come into
his house, and so he loaded up some belongings inside his
house, drove to the motel, and . . . fell asleep.” Then Karren
disclosed that the drugs in the backpack actually belonged to his
roommate.
¶7 After questioning Karren outside the vehicle, the officer
searched the vehicle and recovered the spoon with white residue
2. Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), every
individual “in custody or otherwise deprived of his freedom of
action in any significant way” must be advised of his rights
against self-incrimination under the Fifth Amendment to the
United States Constitution. Id. at 445, 478–79.
20150020-CA 3 2018 UT App 226State v. Karren
from the passenger seat, a digital scale from the floor between
the front seats, and the black backpack from behind the
passenger seat. He searched the inside the backpack and
discovered a second spoon with white residue on it, a glass
methamphetamine pipe with white residue, a small plastic bag
containing syringe caps and a crystal substance “consistent with
that of methamphetamine,” and a glass pipe containing “a green
leafy substance that was consistent with that of marijuana.” The
green leafy substance later tested positive for marijuana and the
crystal substance and white residue later tested positive for
methamphetamine.
¶8 Based on Karren’s statements to the officer and the drugs
and paraphernalia discovered in his van, the State charged
Karren with possession or use of methamphetamine, see Utah
Code Ann. §§ 58-37-8(2)(a)(i), 58-37-4 (LexisNexis Supp. 2018);
possession or use of marijuana, see id.; and possession of drug
paraphernalia, see id. § 58-37a-5(1).
¶9 Karren’s trial counsel filed several pre-trial motions as the
case progressed, including a motion for discovery, a motion to
compel discovery, two motions for defense resources, a motion
for an entrapment hearing, and a motion to continue Karren’s
trial. Two days before trial, trial counsel filed a second motion to
continue, which he orally renewed on the first morning of trial.
In argument on that motion, counsel stated he was renewing the
motion to continue to “pursue at least three [other] motions.”
¶10 First, trial counsel requested a continuance to prepare a
request for a jury instruction about missing or contaminated
evidence, arguing that testimony from a prior hearing revealed
that a police officer took photographs of the items inside of
Karren’s van. Because those photographs had not been
produced, Karren requested a missing evidence jury instruction.
¶11 Karren’s trial counsel then made a second motion,
arguing that some of Karren’s incriminating statements should
be suppressed because the arresting officer conducted an
20150020-CA 4 2018 UT App 226State v. Karren
“unwarranted custodial interrogation.” Counsel stated that he
believed that Karren was not given his Miranda rights before his
driver license was taken and he was questioned.
¶12 Finally, trial counsel moved to dismiss, alleging “selective
prosecution or vindictive prosecution.” In making this
argument, counsel conceded that he had not “really found the
basis under the law for selective prosecution,” but he
nevertheless felt he needed to make a record of the motion. He
also explained that Karren felt that “other defendants charged
with similar . . . distribution cases, have been released to
treatment, [and] seem to have better outcomes than what has
been offered to him.”
¶13 Ultimately, the district court judge denied the motion to
continue, stating that, based on the evidence before the court, it
appeared that “the motions that [defense counsel] identified . . .
would be untimely and [it is unclear] how they would make any
difference, even if the motions were to have been filed [in a
timely fashion].”
¶14 At trial, the arresting officer testified that the black
backpack and photographs he took of the drugs and
paraphernalia he confiscated from Karren’s van were missing
from evidence. In addition, another officer testified that he
processed the evidence but did not recall processing a black
backpack. Based on this testimony, the district court granted
Karren’s request that the jury be instructed as to missing
evidence. The jury was instructed that “the failure to preserve
evidence by a party may give rise to an inference unfavorable to
that party.”
¶15 Near the end of trial, Karren’s trial counsel also renewed
the motion to suppress. Karren testified that he was not given
Miranda warnings before the officer questioned him about the
residue on the metal spoon found in the passenger seat of his
van. Based on this testimony, the district court agreed to
entertain the renewed motion to suppress outside the jury’s
20150020-CA 5 2018 UT App 226State v. Karren
presence. The State recalled the arresting officer, who testified
that he gave Karren his Miranda warnings before questioning
him. After argument on the motion, the district court ruled that
it “believe[d] the officer’s testimony with regard to what
happened” and it “just doesn’t make sense . . . [that] it would
happen the way that [Karren] describes it.” Accordingly, the
court denied the motion to suppress.
¶16 After closing arguments, trial counsel also requested an
innocent possession jury instruction, which the court denied.
The jury found Karren guilty of all charges.
¶17 Karren appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Karren raises two issues on appeal.3 First, Karren
contends that the district court erred in denying his request to
instruct the jury as to innocent possession. “We review a district
court’s refusal to give a jury instruction for abuse of discretion.”
Miller v. Utah Dep’t of Transp., 2012 UT 54, ¶ 13, 285 P.3d 1208.
“Abuse of discretion occurs only if it can be said that no
reasonable person would take the view adopted by the district
court.” State v. Sanchez, 2017 UT App 229, ¶ 2, 409 P.3d 156 (per
curiam) (quotation simplified).
¶19 Second, Karren contends that his trial counsel provided
ineffective assistance by failing to timely raise four pre-trial
motions. Karren failed to preserve this claim below but we
3. In his initial notice of appeal, Karren asserted three additional
reasons that he believes his trial counsel provided ineffective
assistance. Because Karren's appellate counsel was admittedly
“unable to determine what [Karren] was referring to” in regards
to these arguments and has otherwise failed to address them in
the appellant’s brief, we decline to reach them.
20150020-CA 6 2018 UT App 226State v. Karren
recognize an exception to the preservation rule for claims of
ineffective assistance of counsel. See State v. Johnson, 2017 UT 76,
¶ 19, 416 P.3d 443 (acknowledging an ineffective assistance of
counsel exception to the preservation rule). “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.” State v. Robertson, 2018
UT App 91, ¶ 21, 427 P.3d 361 (quotation simplified).
ANALYSIS
I. Innocent Possession Instruction
¶20 Karren first contends that he was entitled to an innocent
possession jury instruction. In general, “a defendant is entitled to
have his legal theory of the case placed before the jury if it would
not be superfluous to do so because of an absence of any
evidence to support the theory.” State v. Piansiaksone, 954 P.2d
861, 871 (Utah 1998) (quotation simplified). A defendant is not
entitled to present his theory to the jury if there is no “basis in
the evidence to support” it. State v. Kennedy, 2015 UT App 152,
¶ 32, 354 P.3d 775. “The issue of whether the record evidence,
viewed in its totality, supports the defendant’s theory of the case
is primarily a factual question,” that is “entitled to more
deference than any other kind of determination.” State v. Berriel,
2013 UT 19, ¶ 9, 299 P.3d 1133.
¶21 In State v. Miller, 2008 UT 61, 193 P.3d 92, the Utah
Supreme Court held that the possession of a controlled
substance statute, Utah Code section 58-37-8(2)(a)(i), “implicitly
includes the defense of innocent possession.” Id. ¶ 21. The
defense applies when “(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 himself of
20150020-CA 7 2018 UT App 226State v. Karren
possession of the controlled substance as promptly as reasonably
possible.” Id. ¶ 22.
¶22 In Miller, the court identified one factual scenario in
which a defendant would be entitled to an innocent possession
instruction. The defendant in that case was charged with
possessing prescription oxycodone and hydrocodone pills. Id.
¶ 7. Both drugs were discovered in a pill bottle, which the
defendant had placed in his pants pocket, with a prescription
label bearing another person’s name. Id. ¶¶ 6–7. At trial, the
defendant presented evidence that he discovered the pill bottle
when some guests left his house and that he put it in his pocket
to keep it out of reach of his children until he could return it to
the person to whom it belonged. Id. ¶ 6. Our supreme court held
that the district court should have granted the defendant’s
request for an innocent possession jury instruction because “the
term ‘possess,’ as it is used in section 58-37-8(2)(a)(i), excludes
transitory possession of a controlled substance for the purpose of
returning it to its lawful owner.” Id. ¶¶ 21, 24. The court’s
holding presupposes a situation where there is a lawful owner to
whom the drugs can be returned––in that case, the individual
whose name was on the prescription label.
¶23 Unlike in Miller, there was no lawful owner to whom
Karren could return the marijuana and methamphetamine, two
drugs that could not be prescribed or legally possessed in Utah.4
Although Karren testified he was in possession of the drugs
because he agreed to bring them to his roommate at the motel,
no evidence in the record suggests that Karren’s roommate could
lawfully possess such contraband. There was no evidentiary
basis on which a jury could find that Karren possessed the
4. The Utah legislature recently passed H.B. 3001, the Utah
Medical Cannabis Act, which would legalize the possession of
marijuana under limited circumstances. If signed into law, the
Act would become effective on July 1, 2019.
20150020-CA 8 2018 UT App 226State v. Karren
controlled substances “with no illicit or illegal purpose” where
his professed purpose was to deliver the drugs to an illegal user.
¶24 We do not read Miller to suggest that “temporary
possession for the purpose of returning a controlled substance to
its lawful owner” is the only circumstance in which the innocent
possession defense would apply. Miller, 2008 UT 61, ¶ 19. But
Karren has identified no evidence that would support an
alternative theory of innocent possession, such as intent to
dispose of the drugs to prevent harm to others or to turn them
over to the proper authorities. Instead, Karren claims only that
he was returning the drugs to his roommate. Under such
circumstances, a defendant must point to some evidence to
suggest he was returning the drugs to a person who could legally
possess them. Because there is no evidence to support such a
theory in this case, the district court did not err in denying
Karren’s request for an innocent possession jury instruction.
II. Ineffective Assistance of Counsel
¶25 Karren’s second claim is that his trial counsel provided
ineffective assistance by making untimely pre-trial motions.
Specifically, Karren argues that his trial counsel failed to timely
move for a continuance so that he would have an opportunity to
file three other motions: a motion for a jury instruction relating
to “missing photographs and fingerprint contamination,” a
motion to suppress “based upon unwarranted custodial
interrogation,” and a motion to dismiss “based upon selective or
vindictive prosecution.”5 In order to succeed on this claim,
5. It is unclear from Karren’s briefing on appeal whether he is
arguing that his trial counsel provided ineffective assistance by
failing to timely move to continue trial or if he is arguing that his
trial counsel provided ineffective assistance by failing to timely
make the motions that counsel claimed justified his motion to
continue. For clarity, we address each of the four motions
separately.
20150020-CA 9 2018 UT App 226State v. Karren
Karren must show “both that his trial counsel performed
deficiently . . . i.e., ‘that counsel’s representation fell below an
objective standard of reasonableness,’” and that, had counsel
performed sufficiently, “there is a ‘reasonable probability’ that
the outcome of the trial would have been more favorable to
him.” State v. Whitbeck, 2018 UT App 88, ¶ 35, 427 P.3d 381(quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (quotation simplified).
¶26 Although Karren bears the burden of showing both
deficient performance and prejudice, “in the event it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, we will do so without analyzing whether
counsel’s performance was professionally unreasonable.” State v.
Lee, 2014 UT App 4, ¶ 13, 318 P.3d 1164 (quotation simplified).
Here, Karren’s claim that his trial counsel provided ineffective
assistance in failing to file timely pre-trial motions can be
disposed of for lack of prejudice because each of the motions
was either futile or entertained on the merits by the district
court. We address each motion in turn.
A. Motion for Jury Instruction Related to Missing Evidence
¶27 First, Karren contends that his trial counsel provided
ineffective assistance of counsel by making an untimely motion
for “some kind of instruction to the jury that the lack of
[fingerprint and photograph] evidence prejudices [Karren].” In
making this argument, Karren neglects to acknowledge that the
district court did instruct the jury that “the failure to preserve
evidence by a party may give rise to an inference unfavorable to
that party.” Although the court initially denied as untimely trial
counsel’s motion for a missing evidence instruction, Karren
cannot show he was prejudiced by counsel’s failure to timely
make the motion where the court eventually granted the relief
requested. Because the jury was instructed regarding the missing
evidence, Karren cannot show that but for counsel’s failure to
timely make the motion for a jury instruction, “there is a
20150020-CA 10 2018 UT App 226State v. Karren
reasonable probability that the verdict would have been
different.” See State v. Martinez-Castellanos, 2018 UT 46, ¶ 51, 428
P.3d 1038.
B. Motion to Suppress
¶28 Second, Karren argues that his trial counsel provided
ineffective assistance by failing to timely move to suppress the
statements Karren made to the arresting officer on the basis that
they were the result of “unwarranted custodial interrogation.”
¶29 Although the district court initially declined to hear the
untimely motion to suppress, Karren’s counsel renewed the
motion after Karren testified at trial that the officer did not
provide Miranda warnings until after he had taken Karren’s
driver license and began questioning. Outside the presence of
the jury, the district court heard further testimony on the issue
from both the arresting officer and Karren. After hearing
additional testimony on the issue, the district court denied
Karren’s motion to suppress, stating that it “believe[d] the
[arresting] officer’s testimony with regard to what happened.”
¶30 Given that the court ultimately considered the motion to
suppress on the merits, trial counsel’s failure to raise the motion
in a timely fashion did not prejudice Karren. Furthermore,
Karren does not challenge the court’s denial of the motion to
suppress nor does he argue that the result would have been
different if his motion had been entertained before trial. As a
result, Karren has failed to show that he was prejudiced by
counsel’s failure to timely file the motion in the first instance.
C. Motion to Dismiss
¶31 Third, Karren argues that his trial counsel was ineffective
in failing to timely make a motion to dismiss based on Karren’s
concerns “that this case is an example of selective prosecution or
vindictive prosecution.” In the context of ineffective assistance of
counsel claims, “the failure of counsel to make motions or
20150020-CA 11 2018 UT App 226State v. Karren
objections which would be futile if raised does not constitute
ineffective assistance.” State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d
52 (quotation simplified).
¶32 In order to show selective or discriminatory prosecution,
a defendant must demonstrate that the State’s decision to
prosecute was “deliberately based upon an unjustifiable
standard such as race, religion, or other arbitrary classification”
in violation of the Fourteenth Amendment Equal Protection
Clause. State v. Geer, 765 P.2d 1, 3 (Utah Ct. App. 1988) (quoting
Wayte v. United States, 470 U.S. 598, 608 (1985)). To make this
showing, “the defendant must demonstrate that a prosecutorial
policy result[ed] in a discriminatory effect, based on an unlawful
classification.” Id. Generally, “as long as the prosecutor has
probable cause to believe that an offense has been committed,
the decision regarding whether to prosecute . . . rests entirely in
the prosecutor’s discretion.” Id. (quotation simplified).
¶33 Karren has not shown that the State’s prosecution
violated the Equal Protection Clause or that the State
deliberately abused its discretion in deciding to prosecute him.
Indeed, defense counsel admitted in argument on the motion to
dismiss that he “just need[ed] to make a record.” Although he
had researched Karren’s selective prosecution claims, he was not
“sure [he had] seen the facts necessary to support such a
motion.” Karren’s allegations of selective prosecution seem to be
based entirely on his concern that “other defendants charged
with similar . . . distribution cases, have been released to
treatment, [and] seem to have better outcomes than what has
been offered to him.” Karren cannot show he was prejudiced by
his trial counsel’s failure to timely file the motion to dismiss
where nothing in the record suggests he would have prevailed
on such an unsupported claim.
D. Motion to Continue Trial
¶34 Finally, Karren argues that his trial counsel provided
ineffective assistance by failing to timely move to continue trial.
20150020-CA 12 2018 UT App 226State v. Karren
Trial counsel moved for a continuance the morning of the first
day of trial to “pursue at least three motions”—the motion for a
jury instruction about missing evidence, the motion to suppress
for failure to give Miranda warnings, and the motion to dismiss
because of selective prosecution. Apart from those three
motions, defense counsel made no other argument that the
district court should grant Karren’s motion to continue. We have
already addressed those motions and determined they were,
respectively, granted, rejected by the district court on the merits,
or otherwise futile. Because of this, Karren cannot show that but
for counsel’s failure to timely make the motion to continue he
would have received a better result at trial.
¶35 Karren has not shown that he was prejudiced by his trial
counsel’s failure to timely file pre-trial motions. Accordingly, he
has failed to show that his trial counsel provided ineffective
assistance of counsel.
CONCLUSION
¶36 We affirm the district court’s denial of Karren’s request to
instruct the jury as to innocent possession because the evidence
in the record does not support Karren’s argument that he
innocently possessed methamphetamine and marijuana. In
addition, we hold that Karren has not shown that his trial
counsel provided ineffective assistance of counsel because he has
failed to demonstrate he was prejudiced by trial counsel’s failure
to timely file pre-trial motions. Accordingly, we affirm Karren’s
convictions.
20150020-CA 13 2018 UT App 226