State v. Ashcraft
| Decision Date | 23 January 2015 |
| Docket Number | No. 20120306.,20120306. |
| Citation | 349 P.3d 664,2015 UT 5 |
| Parties | STATE of Utah, Appellee, v. Shannon Jess ASHCRAFT, Appellant. |
| Court | Utah Supreme Court |
Sean D. Reyes, Att'y Gen., Brian L. Tarbet, Jeffrey S. Gray, Michelle M. Young, Asst. Att'ys Gen., Salt Lake City, for appellee.
Joanna E. Landau, Kerri S. Priano, Salt Lake City, for appellant.
Opinion
¶ 1 Shannon Ashcraft appeals his convictions of possession of a controlled substance with intent to distribute, unlawful possession of a dangerous weapon, and possession of drug paraphernalia. Ashcraft asserts that there was insufficient evidence to establish his possession of the contraband and, alternatively, that his conviction should be reversed on the basis of prosecutorial misconduct at trial. We disagree on both counts and accordingly affirm.
¶ 2 In August 2011, Sergeant Huggard, a Murray City police officer, was patrolling a motel parking lot known for frequent drug activity.1 One night, Huggard observed a tan Ford Ranger truck with a distinctive black panel driving through the parking lot. From the license plates, Huggard determined that the truck belonged to a man named Justin Sorenson. Huggard also discovered that Sorenson had several outstanding warrants and a suspended driver's license, and learned that he had been a suspect in a previous drug investigation.
¶ 3 Later, in the early morning hours, Huggard saw the truck again. The truck had a male driver and a female passenger. The driver pulled the truck into the motel lot, and both the driver and the passenger went into a motel room.
¶ 4 The next night, Huggard returned to the area to patrol again. He saw the tan truck again, with the same male driver and female passenger. He began to follow the truck but did not signal or otherwise direct the driver to stop. After a while, the driver pulled over on his own accord and waited for Huggard to approach. Huggard asked the driver whether he was Sorenson. The driver answered in the negative. He then identified himself as Shannon Ashcraft; explained that he had borrowed the truck from Sorenson, who was in the hospital; and admitted that he did not have a valid driver's license.
¶ 5 As for the passenger, she identified herself as April Chavez. Chavez also indicated that she did not have a valid license. Because neither Ashcraft nor Chavez was licensed to drive the truck, Huggard began impoundment proceedings and called for backup, as well as a K9 unit.
¶ 6 During the impound process, Huggard asked Ashcraft and Chavez to exit the truck. As Chavez exited, a large, open bottle of alcohol fell from her lap. At that point, Huggard asked Ashcraft and Chavez if they consented to be searched for drugs and weapons. Both agreed. During the search, Ashcraft appeared “very nervous” and was “fidgeting around a lot.” Huggard “had a difficult time getting any kind of eye contact” with him. In the course of the search, Huggard discovered that Ashcraft was carrying a pocketknife with a “brownish/black tar substance” on the blade. He also found that Ashcraft was carrying a wallet containing $793 in cash. Huggard did not find drugs or weapons when searching Chavez. After the search, Huggard allowed Chavez to take her belongings and leave.
¶ 7 Next, Huggard performed an inventory search of the vehicle pursuant to the impound. In the bed of the truck, tucked between the edge of the truck bed and a spare tire on the driver's side, Huggard found a green zippered bag. He also noted that the rear window between the cab and bed was open. Huggard asked Ashcraft to identify the owner of the bag. Ashcraft responded that he didn't know whose bag it was, and indicated—before the bag was opened—that Huggard “must have put the bag there.” Inside the bag, Huggard found thirty to forty baggies, some containing a “white crystal-like substance” and some containing a “brown caked tar[-]like substance,” several bottles of pills, two digital scales, three glass pipes with white residue on them, other drug paraphernalia, and a pink stun gun with a charger.
¶ 8 None of the contraband found in the bag was tested for fingerprints. And none of the substances in the bags, in the pill bottles, or on the blade of Ashcraft's pocketknife were conclusively identified through laboratory testing. Also, the K9 unit's detection dog apparently did not alert on a sweep of the truck. Yet Huggard himself identified all of the substances in question, based on his experience over several years as a narcotics officer.
¶ 9 Huggard testified that the “brown caked tar[-]like substance” on the blade of the knife and in some of the baggies was consistent with heroin, based on the look and smell of the substance. He also testified that he confirmed this conclusion by performing a test using a field test kit, which generated a positive result for an opiate. And he identified the “white crystal-like substance” in the other baggies as consistent with methamphetamine, a conclusion that was also consistent with a positive result from a field test kit. As for the pills in the bottles, Huggard identified them as hydrocodone
, oxycodone, Alprazolam, and Clonazepam. He did so by observing the markings on the pills and comparing them visually to pills in a “drug bible.”
¶ 10 Ashcraft was arrested and charged with six counts of possession of a controlled substance with an intent to distribute, two counts of unlawful possession of a dangerous weapon, one count of possession of drug paraphernalia, driving on a suspended license, possession of an open container of alcohol in a vehicle, and failure to signal. Because he was not in direct control of the contraband at the time of his arrest, Ashcraft's possession charges were prosecuted under a constructive possession theory, under which the jury was asked to draw an inference based on circumstantial evidence connecting him with the contraband. See State v. Fox, 709 P.2d 316, 318–19 (Utah 1985) ().
¶ 11 At trial, the defense spent a significant amount of time highlighting the potential room for reasonable doubt in the State's case against Ashcraft. During Huggard's cross examination, defense counsel elicited testimony that he originally thought the driver of the truck was Sorenson, that K9 dogs on the scene had not alerted on the truck, that no fingerprints were collected, that the drugs were not identified in a lab, that Chavez was also in the car with Ashcraft, and that the pink stun gun was of the type that is often marketed to women.
¶ 12 During closing arguments, Ashcraft's counsel urged the jury to avoid “preconceived notions” about Ashcraft. Counsel also went on to suggest that Sergeant Huggard had harbored “preconceived notions” against Ashcraft, as evidenced by his “speculating” that the man driving the truck was Sorenson. And the defense suggested that Huggard's preconceived notions had affected his “ability to perceive the circumstances.”
¶ 13 In response to the notion that Huggard “had it out to get Mr. Ashcraft,” the prosecutor asserted in closing that Huggard had “no ax to grind” and had “nothing to gain by that, neither does any police officer.” Counsel also proceeded to assert that “[i]f a police officer were to make up stuff or do something like that, that's their career on the line,” and that “Sergeant Huggard has nothing to gain by bringing in preconceived notions.”
¶ 14 Later in the prosecutor's closing argument, he argued that the cash in Ashcraft's wallet should lead the jury to infer that he was in the business of selling the drugs found in the truck. The prosecutor asserted that he usually had only about ten dollars in his wallet at a time, as well as a debit card, “so for me to have $800 would be out of the ordinary.” He then stated “I would submit that that's probably normal for most people, but I leave that to your personal experience.”
¶ 15 The prosecutor also summed up the circumstantial evidence as a whole and argued that the jury should infer that Ashcraft was in possession of the contraband:
Given that we had the nexus between the knife, having heroin, the bag having heroin, his activities, the amount of cash he had on him the amount of the pills that were in the bag, the State proceeded on what we had. And I would submit to you that [the] State has proven beyond a reasonable doubt that the defendant possessed these drugs with the intent to distribute them.
¶ 16 The jury convicted Ashcraft on all charges. He now appeals his convictions of possession of a controlled substance with intent to distribute, possession of drug paraphernalia, and possession of a dangerous weapon.2
¶ 17 Ashcraft's principal argument on appeal is a challenge to the sufficiency of the evidence to establish constructive possession. Alternatively, Ashcraft also challenges his convictions on the basis of alleged prosecutorial misconduct. We reject both sets of arguments and affirm.
¶ 18 On a sufficiency of the evidence claim we give substantial deference to the jury. We “review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict.” State v. Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645 (internal quotation marks omitted). Inferences may reasonably be drawn from circumstantial evidence. Id. ¶ 47. And a jury's inference is reasonable “unless it falls to a level of inconsistency or incredibility that no reasonable jury could accept.” State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058 (internal quotation marks omitted).
¶ 19 For possession charges, the circumstantial evidence necessary to convict is evidence showing a “sufficient nexus between the accused and the [contraband] to permit an inference that the accused had both the power and the intent to exercise dominion and control...
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