C.P.B. v. State
C.P.B. v. State
Opinion of the Court
MEMORANDUM DECISION
T1 C.P.B. (Appellant) appeals from a juvenile court adjudication for possession of a controlled substance, marijuana, which is a class B misdemeanor, see Utah Code Ann. § 58-87-8(2)(a)0) (Supp. 2011); id. § 58-37-(listing marijuana as a controlled substance), arguing that her convietion was based on insufficient evidence. We agree and reverse Appellant's conviction.
2 Following a bench trial in 2010, Appellant was adjudicated of possessing marijuana "on or about October O1, 2008.
T3 Nevertheless, the juvenile court concluded that the State met its burden, noting that the dealer "knew who [Appellant] was, [and] that ... although [the dealer] said he doesn't recall dealing drugs with her, he ... did acknowledge that he filled out [the written statement, which] says a drug transaction did take place" and that it was for marijuana. Assuming, without deciding, that all of this evidence was properly admitted,
$4 "In a prosecution for unlawful possession of narcotics the [State] must prove that the accused exercised dominion and control over the drug with knowledge of its presence and narcotic character." State v. Winters, 16 Utah 2d 139, 396 P.2d 872, 874 (1964). See generally Utah Code Ann. § 58-37-8(2)(a)(i) (making it unlawful for "any person knowingly and intentionally to possess or use a controlled substance analog or a controlled substance, unless it was obtained under a valid prescription or order, directly from a practitioner while acting in the course of the person's professional practice, or as otherwise authorized by this chapter"). To challenge the sufficiency of the evidence supporting the adjudication, the appellant "must marshal all of the evidence in support of the trial court's findings of fact and then demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the findings against an attack." State v. Larsen, 2000 UT App 106, ¶11, 999 P.2d 1252 (internal quotation marks omitted). We believe Appellant has satisfied this burden.
T5 We recognize that courts have upheld convictions for possession of a controlled substance in situations in which there was no direct evidence of the drugs at issue. Seq, e.g., United States v. Baggett, 890 F.2d 1095, 1097 (10th Cir. 1989) ("If the prosecution is not going to present direct evidence of drug possession, its circumstantial evidence must include some testimony linking defendant to an observed substance that a jury can infer to be a narcotic."); United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) (determining that when the drug evidence or evidence from a chemical analysis of the drug at issue is not available, possession of a controlled substance can nonetheless be proven by circumstantial evidence, including "evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug,
{6 The State presented no such additional cireumstantial evidence in this case. The evidence presented, even when viewed in the light most favorable to the juvenile court's findings, does not identify Appellant as having actually possessed marijuana ever, let alone "on or about October O1, 2008," as specifically alleged. Cf. United States v. Hall, 473 F.3d 1295, 1309 (10th Cir. 2007) (determining that evidence that the defendant "possessed crack-cocaine at some time" was insufficient to uphold a conviction for possession when "the indictment charged [the defendant] with possession and distribution on or about April 7, 2001"); Baggett, 890 F.2d at 1096 (determining that "the Government must put forth some evidence to show that [the defendant] actually possessed heroin on the day in question" where the charges specify a particular date on which the defendant possessed heroin). Appellant is tied to only one seemingly recanted state
T 7 In Provo City Corp. v. Spotts, 861 P.2d 437 (Utah Ct.App. 1993), this court upheld a conviction for possession of marijuana based on a police officer's testimony that she saw the defendant take "hits" from a "joint"; that she smelled the "distinctive aroma" of marijuana; and that when she spoke with the defendant, he "acknowledged he had taken a few 'hits'" and he appeared to be under the influence of marijuana in that his eyes were bloodshot and his speech slowed. See id. at 442-483. We noted that the evidence in that case approached "the outer limit of what we would affirm for a possession case where the substance itself or chemical test data was not produced." Id. at 443. The evidence here is far less reliable, and the inferences far more attenuated than in Spotts, and while we ree-ognize that the juvenile court's inferences should not be readily rejected on appeal, see Briggs, 2008 UT 75, ¶11, 197 P.3d 628, we also recognize that "caution must be taken that the conviction not be obtained by piling inference on inference," see Unmited States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999) (internal quotation marks omitted). Accordingly, we reverse the juvenile court's ruling.
8 I CONCUR IN THE RESULT: STEPHEN L. ROTH, Judge.
. Appellant was not charged until May 20, 2010, more than eighteen months after the alleged purchase.
. Appellant challenges the juvenile court's decision to admit the text message record at trial, arguing that the evidence lacks the proper foundation and is hearsay. Appellant contends that the evidence does not clearly indicate whether the October 1, 2008 text message was sent from Appellant's phone, or whether Appellant was the person who actually wrote and sent that text message, as opposed to it having been sent by someone else using her cell phone, such as her then boyfriend, who happened to be the drug dealer's codefendant in the case that resulted in the drug dealer's incarceration. Because Appellant was not clearly identified as the sender of the text message, she argues that the text message record could not be admitted as an "[ald-mission by [a] party-opponent," see Utah R. Evid. 801(d)(2) (describing "an [oJpposing [plarty's [s]tatement" as "not hearsay").
. The State also argues that Appellant inadequately briefed her arguments on appeal. While Appellant's appellate brief is not exactly a model of clarity or grammatical prowess, it is sufficient to satisfy the requirements of rule 24 of the Utah Rules of Appellate Procedure. See Utah R.App. P. 24(a)(9) (listing the components of a properly briefed appellate argument).
. The dealer testified that it did not look like his signature on the written statement, that he could not remember whether he filled out that statement, and that although the statement and text message record were initialed with the letters that constitute his initials, he did not recall initialing them himself. Thus, the juvenile court's finding that the dealer specifically acknowledged having completed the written statement is not supported by the evidence. Rather, the evidence that he filled out the statement comes from the detective.
. Because of the manner in which we resolve Appellant's insufficiency argument, we do not address the other arguments raised on appeal. See generally State v. Carter, 776 P.2d 886, 888 (Utah 1989) ("[An appellate clourt need not analyze and address in writing each and every argument, issue, or claim raised and properly before [it] on appeal.").
Concurring Opinion
(concurring in the result):
T9 The brief of appellant, though poorly focused and nearly free of relevant legal authority, is nevertheless, in my judgment, minimally adequate to place C.P.B.'s sufficiency challenge before this court.
T10 I do not believe that the majority opinion views the evidence in the light most favorable to the juvenile court's findings. But even so viewed, the evidence of drug possession in this case consisted of little more than four one-word answers filled in on a form designed for use at preliminary hearings. Under Provo City Corp. v. Spotts, 861 P.2d 487 (Utah Ct.App. 1998), and persuasive non-Utah case law, that is not enough.
Reference
- Full Case Name
- STATE of Utah, in the interest of C.P.B., a person under eighteen years of age. C.P.B., Appellapt v. State of Utah
- Cited By
- 3 cases
- Status
- Published