State v. Fletcher

• Decision Date: 02 July 2015
• Docket Number: No. 20130124–CA.,20130124–CA.
• Citation: 2015 UT App 167,353 P.3d 1273
• Parties: STATE of Utah, Plaintiff and Appellee, v. Eugene FLETCHER, Defendant and Appellant.
• Court: Utah Court of Appeals

353 P.3d 1273

2015 UT App 167

STATE of Utah, Plaintiff and Appellee

v.Eugene FLETCHER, Defendant and Appellant.

No. 20130124–CA.

Court of Appeals of Utah.

July 2, 2015.

David M. Perry, for Appellant.

Sean D. Reyes and Marian Decker, Salt Lake City, for Appellee.

Judge STEPHEN L. ROTH authored this Memorandum Decision, in which Judges JAMES Z. DAVIS and KATE A. TOOMEY concurred.

Opinion

ROTH, Judge:

¶ 1 Eugene Fletcher appeals his convictions on two counts of distributing marijuana in a drug-free zone, a second degree felony. We affirm.

¶ 2 Fletcher sold marijuana twice to a confidential informant (the CI) working for the Cache–Rich Drug Task Force.¹ The first buy took place in a grocery store parking lot. The task-force agent (the Detective) who led both of the buys picked up the CI and drove him to the back of a church parking lot near the grocery store. The CI was searched for weapons, drugs, and money and then given $50 cash and a radio transmitter. The CI then waited in front of the grocery store. The Detective and two other agents were parked in different locations in the grocery store parking lot.

¶ 3 Fletcher drove into the parking lot and told the CI to “jump in” his car. Fletcher gave the CI three bags of marijuana in exchange for $50. The agents were able to listen to the transaction through the radio transmitter and see Fletcher's vehicle from their vantage points in the parking lot. When the CI exited the vehicle and went inside the grocery store, the agents lost sight of him for about fifteen to twenty seconds. An agent immediately followed the CI into the store and “told him to get out of the store and go meet with [the Detective].” The CI did so and handed the Detective the three bags of marijuana he had just purchased from Fletcher. No other items were found during a search of the CI.

¶ 4 Nine days later, another controlled buy was arranged to take place in the same parking lot. Once again, the CI was searched, provided with a transmitter radio, and given cash to purchase marijuana, this time $40. At the parking lot, the CI received a phone call from Fletcher to “keep walking” and meet him at a nearby laundromat instead of the grocery store parking lot. The CI did as instructed, and he and Fletcher entered the laundromat together. In the meantime, the Detective and another agent, who had heard the phone call through the radio, repositioned their own vehicles. The Detective parked where he could watch the CI walk toward the laundromat, and the agent parked directly in front of the business so he could see into the building. Inside the laundromat, Fletcher gave the CI two plastic bags of marijuana in exchange for the $40. The CI left the building and by radio arranged with the agents to let him walk a short way down the road before picking him up to avoid arousing Fletcher's suspicions. The Detective then met the CI, who passed over the marijuana he had just purchased from Fletcher. As before, an agent searched the CI for contraband after the buy and found none.

¶ 5 Fletcher was charged with two counts of distributing marijuana in a drug-free zone. During voir dire, one of the jurors (the Juror) indicated she had a family member who had been arrested for a similar crime. She said her son had been arrested by one of the agents who was testifying in the present case and that she knew two attorneys in the Cache County Attorney's Office, though neither attorney was participating in the trial. In chambers, the Juror further explained that her son had been arrested as a minor for drug possession a couple of years before and had gone on to work as a confidential informant. The Juror also stated that she had served as a scoutmaster a number of years before for one of the two attorneys she knew in the Cache County Attorney's Office. She was questioned by the trial court and counsel, and the trial court determined that the Juror could be impartial and fair. The court denied Fletcher's motion to strike her for cause. At trial, the Detective, as well as five other agents involved in the case, testified about the two buys. The jury convicted Fletcher of both counts.

¶ 6 Fletcher appeals, raising three issues for our consideration. First, Fletcher argues that the Detective's testimony was so “inherently improbable” as to render the evidence presented by the State insufficient to sustain the jury's verdict. Second, Fletcher contends the trial court admitted the Detective's testimony in violation of rule 602 of the Utah Rules of Evidence. Finally, Fletcher argues the trial court abused its discretion in allowing the Juror to be seated.

¶ 7 Fletcher first argues the evidence was insufficient to support the jury's verdict. We will reverse a jury verdict on the basis of insufficient evidence “only when the evidence 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. Rowley, 2008 UT App 233, ¶ 8, 189 P.3d 109 (citation and internal quotation marks omitted). Fletcher contends that the Detective's testimony was so “inherently improbable and incredibly dubious” as to meet this standard. We disagree.

¶ 8 Fletcher points to inconsistencies in the Detective's testimony that he contends make the Detective's testimony so “inconclusive or inherently improbable” as to create a “reasonable doubt” that he “committed the crime [ ] of which he was convicted.” See id.

For example, Fletcher compares testimony given by the Detective at two preliminary hearings. At one preliminary hearing the Detective testified that the CI had likely come to the police station to prepare for the controlled buys, but at another preliminary hearing the Detective testified that he was not sure if the CI had come to the police station prior to the buys. Fletcher also points to inconsistent testimony offered by the Detective at trial about whether he or another agent conducted the initial search of the CI at one of the controlled buys. The Detective's field notes also contradicted the amount listed in the police report regarding the amount of money given to the CI at one of the buys, and the CI's testimony regarding the Detective's location during the second buy was different from the Detective's own description of where he was at the time. We are not persuaded that inconsistencies of this sort are significant enough to demonstrate that the Detective's testimony was “sufficiently inconclusive or inherently improbable” to make him unbelievable as a matter of law. See id. (citation and internal quotation marks omitted).

¶ 9 Our supreme court has held “that the definition of inherently improbable must include circumstances where a witness's testimony is incredibly dubious and, as such, apparently false.” State v. Robbins, 2009 UT 23, ¶ 18, 210 P.3d 288. To reach that standard, there must be (1) “material inconsistencies in the testimony” and (2) “no other circumstantial or direct evidence of the defendant's guilt.” Id. ¶ 19. Otherwise, “[t]he existence of any additional evidence supporting the verdict prevents the judge from reconsidering the witness's credibility.” Id.; see also State v. Kamrowski, 2015 UT App 75, ¶ 16, 347 P.3d 861 ; State v. Lomu, 2014 UT App 41, ¶ 14, 321 P.3d 243. Here, none of the inconsistencies are material. Whether the CI was given $50 or $120 to exchange for the marijuana, whether the Detective or another agent conducted the search of the CI, and on which side of the laundromat the Detective was parked were not material parts of the Detective's testimony but rather were merely details supporting his primary assertion that he observed Fletcher selling marijuana on two different occasions. Such minor inconsistencies did not rise to the level that would render his testimony “apparently false,” see Robbins, 2009 UT 23, ¶ 18, 210 P.3d 288, but instead are within the range of normal, but flawed, human recollection—something that juries are capable of sorting through.

¶ 10 And there was certainly “other circumstantial or direct evidence” of Fletcher's guilt of the two counts of distribution in a drug-free zone for which Fletcher was convicted. See id. ¶ 19. The CI testified that he purchased marijuana from Fletcher twice in February 2011. Five other task-force agents who monitored the two buys and the CI all testified, corroborating the Detective's story. Evidence was also presented that the distance from the grocery store where the first buy took place to a nearby church was 347 feet and the distance from the laundromat where the second buy took place to the church was 610 feet, well within the 1,000 feet required to establish a drug-free zone under the statute. We therefore conclude “additional evidence supporting the verdict” exists and the trial court did not have a basis for rejecting the Detective's testimony as incredible. See id. Accordingly, Fletcher's claim of insufficiency of the evidence, based on his contention that the Detective's testimony was inconclusive or inherently improbable, fails.

¶ 11 Fletcher next contends that the Detective's testimony was not based on his personal knowledge and therefore was “incompetent” under rule 602 of the Utah Rules of Evidence. Rule 602 states, in part, that “[a] witness may testify only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”Utah R. Evid. 602. When asked about the reason for the discrepancies between his trial testimony and preliminary hearing testimony, the Detective stated that before the preliminary hearing, he “hadn't talked to the other agents that were assisting and, once you start doing that, you start jogging your memory.” Fletcher argues that this statement by the Detective revealed that the Detective “did not have personal knowledge regarding the subject matter of his testimony both at the preliminary hearings and trial, and testified that colluding before trial was a common...