State v. Cardona–Gueton

• Decision Date: 06 December 2012
• Docket Number: No. 20110146–CA.,20110146–CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Rolando CARDONA–GUETON, Defendant and Appellant.
• Court: Utah Court of Appeals

291 P.3d 847

723 Utah Adv. Rep. 5

STATE of Utah, Plaintiff and Appellee,

v.Rolando CARDONA–GUETON, Defendant and Appellant.

No. 20110146–CA.

Court of Appeals of Utah.

Dec. 6, 2012.

Brittany D. Enniss and Kerri S. Priano, Salt Lake City, for Appellant.

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.

Before Judges THORNE, VOROS, and ROTH.

OPINION

VOROS, Judge:

¶ 1 Rolando Cardona–Gueton appeals his conviction for possession with intent to distribute a controlled substance with an enhancement for commission of the offense in a drug-free zone. SeeUtah Code Ann. §§ 58–37–8(1)(a)(iii), –8(4)(a)(v) (LexisNexis 2012).¹ Cardona–Gueton contends that the State presented insufficient evidence that he possessed the drugs. He also contends that the State presented insufficient evidence that the offense occurred within a drug-free zone. We affirm.

BACKGROUND

¶ 2 On October 22, 2009, three police officers were on bicycle patrol at the intersection of 300 West and 400 South in Salt Lake City. One officer saw Cardona–Gueton at the “No. 4 corner of Pioneer Park or in that intersection of Pioneer Park,” engaged in what he believed to be a drug deal.

¶ 3 The officers approached Cardona–Gueton, who was sitting on a bench smoking a cigarette. The officers believed he was violating a prohibition on smoking in the park, and one officer began to write a citation for the violation. The officers noticed near Cardona–Gueton a bicycle that they suspected was one that had been reported stolen. Two of the officers asked Cardona–Gueton if the bicycle was his, and he responded that it was. One officer asked Cardona–Gueton if he could look at the bicycle; Cardona–Gueton agreed. The officer turned the bicycle over to examine the serial number and noticed the first of two hidden compartments. When the officers indicated they would inspect the compartment, Cardona–Gueton stated, “That's not mine,” and denied ownership of the bicycle. Inside the compartment was a removable container holding fourteen rocks of crack cocaine, amounting to “about two grams.”

¶ 4 Cardona–Gueton was charged with one count of possession with intent to distribute. The State amended the charge to include a drug-free zone enhancement, elevating the offense to a first degree felony. Cardona–Gueton unsuccessfully objected to the amendment.

¶ 5 The case was tried to a jury. At the conclusion of the evidence, Cardona–Gueton unsuccessfully moved for a directed verdict on three grounds: (1) insufficient evidence of possession, (2) insufficient evidence of intent to distribute, and (3) insufficient evidence to support the drug-free zone enhancement. The jury found Cardona–Gueton guilty of the charged offense and found the enhancement by special verdict. After trial, Cardona–Gueton unsuccessfully moved for judgment notwithstanding the verdict on the same three grounds. On January 14, 2011, Cardona–Gueton was sentenced to a prison term of five years to life.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Cardona–Gueton presses two challenges on appeal. First, he contends that the evidence at trial was insufficient to prove that he possessed the cocaine. Second, he contends that the evidence was insufficient to prove the offense occurred in a public park. Cardona–Gueton frames these issues as challenges to the jury's verdict.²Accordingly, “[w]e review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict ... [and] reverse ... only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.” State v. Hamilton, 827 P.2d 232, 236 (Utah 1992) (citation and internal quotation marks omitted).

ANALYSIS

I. Actual or Constructive Possession of the Drugs

¶ 7 Cardona–Gueton first contends that the State failed to present sufficient evidence that he possessed the cocaine. Specifically, he argues that the State “failed to establish a sufficient nexus between [himself] and the drugs to establish constructive possession.”

¶ 8 Conviction for possession of a controlled substance with intent to distribute requires proof that (1) the defendant knowingly and intentionally possessed the controlled substance, and (2) the defendant intended to distribute the controlled substance. State v. Fox, 709 P.2d 316, 318 (Utah 1985); see also State v. Layman, 953 P.2d 782, 787 (Utah Ct.App.1998)( Layman I ),aff'd,1999 UT 79, 985 P.2d 911( Layman II ). Possession “sufficient to sustain a conviction need not be actual but may be constructive.” Layman I at 787 (citing State v. Bingham, 732 P.2d 132, 133 (Utah 1987)). Constructive possession must be proven by a “sufficient nexus between the defendant and the drugs ... to permit a factual inference that the defendant had the power and the intent to exercise control over the drugs....” Layman II ¶ 15. The evidence must also establish that the accused “intended to use the drugs ... as his own.” Id. In sum, “the evidence must raise a reasonable inference that the defendant was engaged in a criminal enterprise and [was] not simply a bystander.” Layman I at 787 (citation and internal quotation marks omitted). A non-exclusive list of evidentiary factors “tending to link an accused with drugs” in certain situations includes “incriminating statements, suspicious or incriminating behavior, sale of drugs, ... [and] proximity of defendant to location of drugs.” State v. Salas, 820 P.2d 1386, 1388 (Utah Ct.App.1991); see also Layman II ¶¶ 14–15.

¶ 9 Cardona–Gueton argues that the State's evidence was insufficient to establish (1) that the bicycle was his, (2) that he knew the bicycle held drugs, and (3) that he intended to use the drugs as his own. However, the jury's verdict is supported by evidence of possession in the form of incriminating statements, suspicious behavior, and proximity. Cardona–Gueton was seen drinking from the bicycle's water bottle. The officers approached him because he appeared to have been involved in a drug deal. When they approached, he was sitting no more than six inches from the bicycle. When asked about the bicycle, Cardona–Gueton twice stated that it was his. He denied ownership only when an officer turned the bicycle over, exposing a hidden compartment. Finally, the amount of crack cocaine found in the bicycle was consistent with the officers' observation of a suspected drug deal, as was the $166 they found on Cardona–Gueton's person.

¶ 10 Cardona–Gueton argues that because the only evidence against him was “circumstantial, the evidence supporting a conviction must preclude every reasonable hypothesis of innocence.” See State v. Hill, 727 P.2d 221, 222 (Utah 1986) (plurality opinion); Layman I at 786. He suggests that alternative theories can explain the evidence in a manner consistent with his innocence. For example, he may have bought, found, or even stolen the bicycle, and only after the officers found the compartment did he “realize[ ] that there was some type of contraband in the ... compartment and want [to claim] that he did not actually own the bike.” Thus, he reasons, the jury must have had a reasonable doubt as to his guilt.

¶ 11 Whether an alternative explanation is “reasonable” depends on the credibility of the evidence supporting it. The law is well established that “[t]he existence of one or more alternate reasonable hypotheses does not necessarily prevent the jury from concluding that [a] defendant is guilty beyond a reasonable doubt.” State v. Blubaugh, 904 P.2d 688, 695 (Utah Ct.App.1995). “This is so because it is the exclusive province of the jury to weigh the competing theories of the case, in light of the evidence presented and the reasonable inferences drawn therefrom, and to conclude which one they believe.” State v. Buck, 2009 UT App 2, ¶ 14, 200 P.3d 674. “Where the jury has done just that, we will reverse its verdict only if we determine” that “the evidence is so insubstantial or inconclusive” that “the evidence and inferences did not preclude the reasonable alternative hypothesis presented by the defense.” Id. (citation and internal quotation marks omitted).

¶ 12 Stated another way, framing a claim as a reasonable-alternative-hypothesis claim presupposes that the alternative hypothesis is reasonable. But a finding that a defendant is guilty beyond a reasonable doubt is necessarily a finding that any alternative hypothesis of innocence presented at trial was not reasonable under the jury's view of the evidence. Consequently, an appellate court will reverse such a finding only where no reasonable juror could have taken that view of the evidence.

¶ 13 Here, however, Cardona–Gueton asserts theories on appeal that were never presented to the jury. He did not argue at trial that he bought, found, or stole the bicycle wholly unaware of the cocaine hidden within it. Instead, he testified that the bicycle was not in his possession at all. The jury heard testimony that Cardona–Gueton first told the officers that the bicycle was his, then that it was not. The jury apparently believed the first statement and disbelieved the second. While it might have made the opposite credibility determination, it was not required to do so by the reasonable doubt standard.

¶ 14 An appellate court will not “substitute its judgment for that of the jury” and will reverse only “if the evidence is so insubstantial or inconclusive that reasonable minds must necessarily entertain a reasonable doubt as to a defendant's guilt.” Hill, 727 P.2d at 222. That is not the case here. Accordingly, we decline to disturb the jury's verdict on the question of possession.

II. The Drug–Free Zone Enhancement

¶ 15 Cardona–Gueton also challenges the jury's special verdict on the ground that the State did not present sufficient evidence to prove beyond a reasonable doubt that the offense occurred in a public park. Cardona–Gueton was convicted...