State v. Davis

• Decision Date: 19 January 2007
• Docket Number: No. 20050952-CA.,20050952-CA.
• Citation: 155 P.3d 909,2007 UT App 13
• Parties: STATE of Utah, Plaintiff and Appellee, v. Gary Christian DAVIS, Defendant and Appellant.
• Court: Utah Court of Appeals

155 P.3d 909

2007 UT App 13

STATE of Utah, Plaintiff and Appellee, v. Gary Christian DAVIS, Defendant and Appellant.

No. 20050952-CA.

Court of Appeals of Utah.

January 19, 2007.

Gary W. Pendleton, St. George, for Appellant.

Mark L. Shurtleff, atty. gen., and Joanne C. Slotnik, asst. atty. gen., Salt Lake City, for Appellee.

Before Judges DAVIS, McHUGH, and ORME.

OPINION

McHUGH, Judge:

¶ 1 Defendant Gary Christian Davis appeals from the enhancement of his convictions of possession of a controlled substance, see Utah Code Ann. § 58-37-8(2)(a)(i), (4)(a) (Supp.2006), and possession of drug paraphernalia, see id. § 58-37a-5 (2002): Davis also appeals from his conviction of possession of a dangerous weapon by a restricted person. See id. § 76-10-503(2)(a) (2003). Because we hold that the trial court gave an erroneous jury instruction and also abused its discretion by allowing a witness to render a legal conclusion, we vacate and remand for a new trial.

BACKGROUND

¶ 2 Acting on a tip from an informant, agents of Adult Probation and Parole (AP & P) went to the Ridgeview Inn in St. George, Utah. Agent Kim Seegmiller knocked, and Davis, a parolee under the supervision of AP & P, opened the door. The room had been rented to Jeremy Arrington, but he was not present at the time AP & P agents arrived.¹ The room was occupied by Davis and two other adults, Paul Richardson and Elisha Miller. Upon entering, the AP & P agents found drug paraphernalia containing trace amounts of methamphetamine and an SKS assault rifle in an unzipped gun case. The gun was not loaded and the agents found no ammunition in the room.

¶ 3 Davis admitted that he had used drugs in the motel room and signed a positive drug test statement in lieu of a drug test. With respect to the assault rifle, Davis admitted that his fingerprints would be on the gun but denied that it was his or that he brought it to the room. Davis was arrested and charged with possession of a dangerous weapon by a restricted person, possession of a controlled substance, and possession of drug paraphernalia.

¶ 4 Prior to the presentation of evidence at trial, Davis moved for an order prohibiting the AP & P agents from testifying about the substance of the informant's tip other than that the AP & P agents were advised that Davis was at the motel. The trial court granted the motion, stating that the tip would not be talked about except as revealing "the location of Mr. Davis."² Despite the order in limine and Davis's renewed objection, Agent Richard Bower was permitted to testify at trial that he had been informed that Davis "was supposedly in a motel room with possibly a gun and dope." The trial court also overruled Davis's objection to portions of the testimony of Agent Seegmiller that addressed whether Davis had "possessed" the assault rifle. The jury found Davis guilty of all charges and also found that the drug-related violations occurred within a drug-free zone. The trial court sentenced Davis to two consecutive terms of one to fifteen years in the Utah State Prison for possession of a dangerous weapon and possession of a controlled substance, and one concurrent year in jail for possession of drug paraphernalia.

¶ 5 Davis appealed.³ Due to a clerical error in the trial court, the jury instructions were left out of the record despite Davis's request that the entire record be transmitted to this court. After oral argument, the trial court clerk discovered the omission and directed, pursuant to Utah Rule of Appellate Procedure 11(h),⁴ that the record be supplemented. Neither party objected to the inclusion of the instructions, and we consider them in our disposition of this appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 6 First, Davis asserts that the trial court erred by instructing the jury that a bicycle path is a public park within the meaning of the statute defining drug-free zones. See Utah Code Ann. § 58-37-8(4)(a). A challenge to the trial court's jury instructions presents a question of law that we review for correctness, granting no deference to the trial court's conclusions. See State v. Snyder, 932 P.2d 120, 125 (Utah Ct.App. 1997). "However, [if] a jury instruction is erroneous, `we will reverse only if the defendant shows a reasonable probability the error affected the outcome of his case.'" State v. Perez, 2002 UT App 211, ¶ 22, 52 P.3d 451 (quoting State v. Tinoco, 860 P.2d 988, 990 (Utah Ct.App.1993)).

¶ 7 Second, Davis argues that the trial court erred by allowing his parole officer to testify that Davis's handling of the weapon constituted possession under the statute.⁵ "The trial court has wide discretion in determining the admissibility of . . . testimony, and such decisions are reviewed under an abuse of discretion standard. Under this standard, we will not reverse unless the decision exceeds the limits of reasonability." State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993) (citations omitted).

¶ 8 Finally, Davis contends that it was erroneous for the trial court to allow hearsay testimony relating to the informant's tip that Davis was at a motel room with drugs and a gun. "We review legal questions to make the determination of admissibility for correctness. We review the questions of fact for clear error. Finally, we review the district court's ruling on admissibility for abuse of discretion." State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639 (citations omitted).

ANALYSIS

I. Bicycle Path as a Drug-free Zone

¶ 9 Davis first argues that the trial court erred when it instructed the jury that a bicycle path is a public park within the meaning of Utah Code section 58-37-8(4)(a), which states in relevant part:

(a) Notwithstanding other provisions of this section, a person note authorized under this chapter who commits any act declared to be unlawful under this section . . . is upon conviction subject to the penalties and classifications under this Subsection (4) if the trier of fact finds the act is committed:

. . . .

(v) in a public park, amusement park, arcade, or recreation center;

. . . .

(ix) within 1,000 feet of any structure, facility, or grounds included in Subsections (4)(a)(i) through (viii). . . .

See Utah Code Ann. § 58-37-8(4)(a). Over Davis's objection, the trial court instructed the jury that "the St. George City biking/hiking trail is a city park as defined by law." Davis claims that it was error for the trial court to give this instruction and also asserts that the instruction contained an erroneous legal conclusion.⁶ We agree with Davis's first argument and hold that the trial court should have allowed the jury to determine whether the bicycle path was a public park within the meaning of the drug-free zone statute.

¶ 10 In State v. Powasnik, 918 P.2d 146 (Utah Ct.App.1996), this court addressed "whether the penalty enhancement provisions of [Utah Code] section 58-37-8 constitute an element of the underlying offense that must be proved beyond a reasonable doubt to the same trier of fact who decided guilt on the predicate crime." Id. at 148. We answered this question in the affirmative, reasoning that the statute "requires the same trier of fact who found the defendant guilty of an underlying offense to answer simultaneously the question of where the defendant committed the offense." Id. at 149 (second emphasis added). We concluded that the statute "incorporates questions of location and distance into the underlying offense. The State must prove those additional facts to the trier of fact who finds defendants guilty of the predicate crime." Id.; see also United States v. Smith, 13 F.3d 380, 382 (10th Cir.1993) (concluding that federal drug-free zone enhancement statute "constitutes an `offense' which has as an element of proof that the distribution occurred within 1,000 feet of a protected place"). In Powasnik, we vacated the defendant's conviction on the enhancement because the trial court reserved the issue of the drug-free zone for sentencing, declining to submit that issue to the jury. See Powasnik, 918 P.2d at 150; see also State v. South, 932 P.2d 622, 627 (Utah Ct.App.1997) (reversing defendants' sentences under enhancement provision because State failed to offer evidence at trial to prove beyond a reasonable doubt that defendants possessed drugs within 1000 feet of a temple).

¶ 11 Although Utah appellate courts have addressed this issue solely in the context of the statute's 1000-foot distance requirement, the same rationale applies to questions of whether the predicate offense occurred in a protected area under the statute. See Powasnik, 918 P.2d at 149 (holding that State must prove "additional facts" of "location and distance" to the trier of fact (emphasis added)); see also Utah Code Ann. § 58-37-8(4)(a)(i)-(ix) (listing as protected areas public parks, schools, preschools, child care facilities, houses of worship, shopping malls, sports facilities, stadiums, arenas, theaters, movie houses, playhouses, and public parking lots).

¶ 12 In State v. Becker, 132 Wash.2d 54, 935 P.2d 1321 (1997) (en banc), the Washington Supreme Court held that the trial court impermissibly instructed the jury that a youth employment education program was a "school" within the meaning of Washington's drug-free zone enhancement statute. See id. at 1326. The Washington Supreme Court, sitting en banc, held that error occurred because the instruction "remov[ed] a disputed issue of fact from the jury's consideration," thus "reliev[ing] the State of its burden to prove all elements of the sentence enhancement statute." Id. The Becker court further reasoned that "a court cannot instruct the jury that matters of fact have been established as a matter of law." Id. We agree with the Washington Supreme Court and therefore hold that it was improper to instruct the jury, as a matter of law, that the bicycle path was a public park constituting a drug-free zone.

¶ 13 The State contends that even if we disregard the erroneous bicycle path instruction, the...