State of Utah v. Layman
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah,
Plaintiff and Petitioner,
v.
Michael Charles Layman,
Defendant and Respondent.
No. 980150
F I L E D
August 27, 1999
1999 UT 79
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Eighth District, Uintah County
The Honorable John R. Anderson
Attorneys:
Jan Graham, Att'y Gen.,
Kris C. Leonard, Asst. Att'y Gen., Salt Lake City, Kenneth R. Wallentine,
Vernal, for petitioner
Alan M. Williams, Vernal,
for respondent
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On Certiorari to the Utah Court of Appeals
ZIMMERMAN, Justice:
¶1
This case comes to us on
a writ of certiorari to the Utah Court of Appeals. The defendant, Michael
Charles Layman ("Michael"), was convicted after a bench trial of: (i) driving
under the influence of alcohol or drugs, a class B misdemeanor, in violation
of Utah Code Ann. § 41-6-44 (1998); (ii) possession of a controlled
substance with intent to distribute, a second degree felony, in violation
of Utah Code Ann. § 58-37-8 (Supp. 1998); and (iii) possession of
paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. §
58-37a-5 (1998). The court of appeals affirmed the conviction for driving
under the influence of alcohol or drugs but reversed the convictions for
possession of a controlled substance with intent to distribute and possession
of paraphernalia. See State v. Layman, 953 P.2d 782, 792
(Utah Ct. App. 1998). The State petitioned for a writ of certiorari which
we granted. We affirm the court of appeals' holdings. The driving under
the influence conviction is not being appealed and will not be discussed
here.
¶2
The State argues that we
should overturn the court of appeals because it improperly employed the
reasonable alternative hypothesis doctrine in reviewing the evidence before
it and then substituted its judgment for that of the trial court on factual
issues. While we find the court of appeals' discussion of the reasonable
alternative hypothesis doctrine problematic and unnecessary, we do conclude
that there was insufficient evidence to convict Michael under a theory
of constructive possession for either possession of a controlled substance
with intent to distribute or possession of paraphernalia. Therefore, we
affirm.
¶3
On a writ of certiorari,
we review the decision of the court of appeals and apply the same standard
of review applied by that court. See State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995) (citing
Butterfield v. Okubo, 831 P.2d 97, 101 n.2 (Utah 1992)). The court of appeals, on appeal, reviews the
facts in the record in the light most favorable to the verdict. See
State v. Brown, 948 P.2d 337, 339 (Utah 1997); State v. Johnson,
821 P.2d 1150, 1153 (Utah 1991). Therefore, we recite the facts accordingly.
See id. On the evening of August 11, 1996, Michael drove
his father, Hobart Layman ("Hobart"), to the home of Gina Ziegenhirt ("Gina")
in Ogden. Hobart was going to Vernal to sell methamphetamine and asked
Gina to come along, telling her she could double her money. Gina consented,
and Michael drove Hobart and Gina to Vernal in his Chevy Malibu. Despite
Michael's appearing to be upset with his father for inviting Gina along,
Michael and Gina commiserated over the difficulties each was having with
their children while Hobart slept on the trip.
¶4
Upon arriving in Vernal
in the early-morning hours of August 12th, Michael, Hobart, and Gina went
to a motel. Once in the motel, Michael went into the bathroom for a period
of time. After Michael finished, Hobart went into the bathroom and remained
there for "quite a while." Hobart measured the methamphetamine in the bathroom.
In total, the three were at the motel for twenty to thirty minutes.
¶5
After the motel stop, Gina
and Michael left Hobart at another location in Vernal. Before leaving his
companions, Hobart handed a black pouch containing methamphetamine, scales,
two used syringes, some unused syringes, and a spoon to Gina. Gina understood
the pouch and its contents to belong to her and Hobart. She placed the
pouch in her waistband. Hobart told Michael that he would call Michael
at his sister's house when Hobart was ready to be picked up.
¶6
At approximately 3:00 a.m.,
after Michael and Gina had left Hobart, Deputy Shaun Abplanalp stopped
Michael because his taillights were not functioning. After Deputy Abplanalp
turned on his overhead lights, Michael jerked his car to the right and
then jerked it back to the left so that Michael's car was perpendicular
to the police car when it stopped. Michael got out of his car, walked briskly
toward the deputy, and asked why he had been stopped. The deputy explained
that Michael's taillights were not working. Michael gave the deputy his
driver's license and registration and then unsuccessfully attempted to
fix the taillights. Michael appeared upset, fidgety, and had red, watery,
bloodshot eyes.
¶7
Deputy Abplanalp approached
Gina; she gave him her name and date of birth. The deputy returned to his
vehicle and checked both names. Finding no outstanding warrants, the deputy
returned Michael's driver's license and registration. Suspecting that Michael
may have ingested controlled substances, Deputy Abplanalp asked Michael
if he had any controlled substances, paraphernalia, or alcohol in the vehicle.
Michael responded negatively. Deputy Abplanalp asked to search the vehicle,
and Michael consented.
¶8
Deputy Abplanalp asked Gina
to step out of the vehicle and asked if either Michael or Gina had weapons
on their persons. They said no. The deputy asked Gina to lift her shirt
slightly above her waistline and observed what he believed to be a holster
pouch in her waistband. Deputy Abplanalp asked Gina if the pouch contained
a weapon; she stated that it did not. The deputy asked her if he could
search the pouch. When the deputy asked Gina for the pouch, Gina was looking
at Michael and he shook his head in a negative fashion for an unspecified
length of time. The deputy took the pouch from Gina and opened it. He found
methamphetamine, scales, two used syringes, other unused syringes, and
a spoon with residue on it. Deputy Abplanalp then arrested Gina.
¶9
By this time, two other
law enforcement officers had arrived on the scene, Officer Bo Faircloth
and Deputy Don DeCamp. Deputy DeCamp conducted field sobriety tests on
Michael, after which Deputy Abplanalp placed handcuffs on Michael. Michael
was taken to a hospital to have his blood drawn. During this blood draw,
Deputy Abplanalp noticed needle marks on Michael's arm. Both Michael and
Gina were taken to jail.
¶10
On a writ of certiorari,
we review the decision of the court of appeals, not that of the trial court.
See Harmon, 910 P.2d at 1199. In reviewing a court of appeals'
decision, we apply the same standard of review used by the court of appeals.
See id. The court of appeals determined that there was insufficient
evidence from which a reasonable person could have concluded that Michael
possessed the drugs and paraphernalia. The court of appeals majority analyzed
this question through a discussion of reasonable alternative hypotheses
that could innocently explain the various items of evidence. The dissenting
judge concluded that such alternative hypotheses need to be raised by the
defendant at trial if they are to be addressed on appeal; the majority
disagreed. We decline to address this question because we conclude that
this case can and should have been decided by applying an ordinary sufficiency
of the evidence test. There was no need to resort to the alternative hypothesis
analytical model.
¶11
Michael was convicted of
the offenses of possession of a controlled substance with intent to distribute
and possession of paraphernalia. There was no evidence showing that Michael
had actual possession of either the methamphetamine or the paraphernalia
in the pouch carried by Gina; therefore, the only basis for the conviction
could have been that Michael was in constructive possession of Gina's pouch
and its contents. See State v. Fox, 709 P.2d 316, 319 (Utah
1985).
¶12
When reviewing a conviction,
an appellate court should consider the facts in a light most favorable
to the verdict. See State v. Brown, 948 P.2d at 339. An appellate
court should overturn a conviction for insufficient evidence when it is
apparent that there is not sufficient competent evidence as to each element
of the crime charged for the fact-finder to find, beyond a reasonable doubt,
that the defendant committed the crime. See State v. James,
819 P.2d 781, 784-85 (Utah 1991) (citing State v. Warden, 813 P.2d 1146, 1150 (Utah 1991)); Fox, 709 P.2d at 318.
¶13
We begin by determining
whether the court of appeals correctly found that the trial judge, who
was the finder of fact in this case, could not have found beyond a reasonable
doubt that Michael knowingly and intentionally "possessed" the methamphetamine
and paraphernalia in Gina's pouch. See Fox, 709 P.2d at 319;
Utah Code Ann. § 58-37-8 (1998), § 58-37a-5(1) (Supp. 1998).
To prove that Michael had constructive possession, it is necessary that
"there [be] a sufficient nexus between the accused and the drug [or paraphernalia]
to permit an inference that the accused had both the power and the intent
to exercise dominion and control over the drug [or paraphernalia]." Fox,
709 P.2d at 319. There must be facts which show that the accused intended
to use the drugs or paraphernalia as his own. See id.
¶14
As this court recognized
in Fox, the existence of a sufficient nexus to prove constructive
possession is a highly fact-sensitive determination. To that end, Fox
laid out four factors relevant to a determination of whether constructive
possession has been proven. In Fox, the question was whether a homeowner
constructively possessed drugs that were found in a room of a home he shared
with his brother. In State v. Salas, 820 P.2d 1386 (Utah Ct. App.
1991), a case where an individual was driving a vehicle containing passengers
and where drugs were found in the back seat, the Utah Court of Appeals
added several other factors it thought relevant to determining constructive
possession. While the different factors listed in these cases might be
of help in guiding a finder of fact in determining whether there was constructive
possession, they are factors particularly relevant to the specific factual
context in which those cases arose. They are not universally pertinent
factors, and they are not legal elements of constructive possession in
any context.
¶15
We take this occasion to
note that there is some danger in mechanically relying on a list of factors,
such as those set out in Fox and Salas, when applying a generally-worded
test, such as Fox's statement of what is needed to show constructive
possession. The danger is that each factual situation will lead the appellate
courts to set out a new list of factors, and succeeding appellate and trial
courts will come to rely on those factors as amounting to a checklist of
things that must be present if the law's requirements are to be met, rather
than seeing the factors as only some of the relevant considerations in
making the underlying determination. See, e.g., Soter's Inc.
v. Deseret Fed. Sav. & Loan Ass'n, 857 P.2d 935, 939-40 (Utah 1993).
There is nothing wrong with a succeeding court considering factors that
were considered relevant by an appellate court analyzing a factually-similar
context. But both trial and appellate courts need to be mindful that no
such list is exhaustive, and that listed factors are only considerations.
The final legal test is the most generally-worded one: here, whether there
was a sufficient nexus between the defendant and the drugs or paraphernalia
to permit a factual inference that the defendant had the power and the
intent to exercise control over the drugs or paraphernalia. SeeFox,
709 P.2d at 318.
¶16
The present case is not
a house or car case. Here, the question is whether Michael had sufficient
control over another person to prove constructive possession of something
that person had in her physical possession. Rather than looking to the
factors listed in Fox and Salas, we refer to the general
test that those factors were used to implement in the specific Fox
and Salas situations, to wit, whether there was evidence of a sufficient
nexus between the defendant and the drugs or paraphernalia to permit a
factual inference that the defendant had the power and the intent to exercise
control over those drugs or paraphernalia. See id. Stated
differently, to show constructive possession, the State must prove beyond
a reasonable doubt that the drugs were subject to the defendant's dominion
and control and the defendant had the intent to exercise that control.
See id. We conclude that the court of appeals properly found
the evidence in this case is insufficient. When all the brush is cleared,
the critical fact is that there was little evidence to prove that Michael
had such control over Gina's person that one could reasonably infer beyond
a reasonable doubt that he knowingly and intentionally possessed the drugs
and paraphernalia in her pouch. The only fact tending to prove Michael's
control over Gina is that she looked at him when the deputy requested to
see the pouch and that Michael shook his head in a negative fashion. This
simply is not enough. All the other evidence in this case does nothing
to address this critical factual issue. Neither her presence in his vehicle,
his erratic behavior after the traffic stop, nor his use of drugs at some
earlier time make up for this critical lack of evidence.
¶17
We therefore affirm the
court of appeals.
---
¶18
Associate Chief Justice
Durham and Justice Russon concur in Justice Zimmerman's opinion.
¶19
Justice Stewart concurs
in the result.
¶20
Chief Justice Howe does
not participate herein.
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