State v. Gomez
| Decision Date | 09 May 2017 |
| Docket Number | 2017 Unpublished Opinion No. 460,Docket No. 43688 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. ANDREW SCOTT GOMEZ, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
Judgment of conviction for possession of a controlled substance, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy Appellate Public Defender, Boise, for appellant. Kimberly A. Coster argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.
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Andrew Scott Gomez appeals from his judgment of conviction after a jury found him guilty of possession of a controlled substance and possession of drug paraphernalia. Gomez makes three arguments on appeal. First, he contends the district court erred in admitting evidence of marijuana contained in a backpack found in the vehicle. Second, he argues the district court erred by failing to give a unanimity instruction for the possession of methamphetamine charge. Last, Gomez argues the State did not present sufficient evidence to prove its theory of constructive possession of methamphetamine. For the reasons set forth below, we affirm.
At 2:30 a.m., officers observed a vehicle parked in a darkened and secluded portion of a commercial parking lot. As one of the officers approached the vehicle, he noticed two individuals inside--Gomez sat in the driver's seat, and a woman, later identified as Jennifer Thompson, sat in the passenger seat. The officer questioned the individuals about what they were doing in the parked vehicle. Both individuals appeared nervous and gave inconsistent answers about what they were doing, where they had been, and where they were going. After receiving conflicting stories, the officer became suspicious and requested that dispatch send a drug dog to the scene. Upon arrival, the drug dog alerted positively to the vehicle, prompting the officers to search the vehicle for illegal substances.
The officers' search of the vehicle revealed baggies of methamphetamine in a makeup bag on the passenger floor and in an eyeglass case in Thompson's bra, a digital scale, loose oxycodone pills, and a backpack containing marijuana. Gomez admitted to police that he had agreed to transport Thompson in the vehicle in exchange for some methamphetamine. Following Gomez's arrest, he also admitted that he had a pipe in his underwear and that he had smoked methamphetamine earlier in the day. Forensic analysis later revealed that the pipe contained residue that tested positive as methamphetamine.
The State charged Gomez with possession of a controlled substance, Idaho Code § 37-2732(c), and possession of drug paraphernalia, I.C. § 37-2734A. The State also charged Gomez with a persistent violator enhancement, I.C. § 19-2514. Prior to trial, the State provided notice of its intent to introduce Idaho Rule of Evidence 404(b) evidence of the marijuana contained in the backpack found in Gomez's truck as well as Gomez's statements pertaining to that evidence. The district court ultimately concluded that the evidence was admissible, stating:
The issue of course is possession. It is all part of the same act, same scene, and it is relevant and admissible. And I don't think any prejudicial effect outweighs its probative value. I think it is part of the entire picture in this case. It is relevant to the issues brought before the jury.
The case proceeded to trial. During both opening and closing statements, the State argued that the jury could convict Gomez of possession based on three separate theories: (1) Gomez's admission that he smoked methamphetamine earlier in the day; (2) Gomez'sconduct of transporting Thompson and her drugs in exchange for a portion of those drugs; or (3) Gomez's actual possession of a pipe containing methamphetamine residue.
The jury found Gomez guilty of both possession of a controlled substance and possession of paraphernalia, with a persistent violator enhancement. The district court sentenced Gomez to a unified term of ten years, with two years determinate, on the possession of a controlled substance charge and a concurrent sentence of six months on the possession of paraphernalia charge. Gomez filed a motion for reconsideration, which the district court denied. Gomez now timely appeals his judgment of conviction on the possession of a controlled substance charge.
Gomez raises three issues on appeal. We first address Gomez's argument that the district court erred in admitting evidence of the marijuana contained in the backpack. We next address whether the court committed fundamental error by failing to give a unanimity instruction to the jury that would have required the jury to identify the specific act of possession upon which it based its verdict. Finally, we consider Gomez's argument that the State did not present sufficient evidence to prove beyond a reasonable doubt that Gomez had constructive possession of Thompson's methamphetamine.
We first turn to Gomez's argument that the district court erred when it admitted evidence of marijuana contained in the backpack discovered in the trunk of the vehicle. Gomez challenges the court's determination of admissibility pursuant to Idaho Rule of Evidence 404(b). He argues the evidence was improper character evidence relevant for no purpose other than to show criminal propensity. When a trial court's admission of evidence pursuant to I.R.E. 404(b) is challenged on appeal, this Court applies a two-part standard in reviewing claims of error. State v. Ehrlick, 158 Idaho 900, 913, 354 P.3d 462, 475 (2015). First, we freely review whether the evidence is relevant to an issue other than the defendant's character or criminal propensity. Id. Second, we review the district court's balancing of the probative value and prejudicial danger pursuant to I.R.E. 403 for an abuse of discretion. Ehrlick, 158 Idaho at 913, 354 P.3d at 475.
As a preliminary matter, the State contends Gomez has failed to challenge the basis actually relied upon by the district court. The State suggests the district court admitted the evidence pursuant to the doctrine of res gestae, not pursuant to I.R.E. 404(b). Thus, the Stateargues Gomez has not met his burden of demonstrating error. However, not only did the State present the evidence as a Rule 404(b) issue below, but the district court's reasoning reflects its consideration of the evidence pursuant to Rule 404(b). As required under Rule 404(b), the court considered the relevancy of the evidence and balanced the probative value against the prejudicial effect. Moreover, the State's reliance on admissibility pursuant to the res gestae doctrine conflicts with existing precedent.
The Idaho Supreme Court recently held that the doctrine of res gestae may no longer be relied upon in lieu of determining conformance with the Idaho Rules of Evidence. See State v. Kralovec, ___ Idaho ___, ___, 388 P.3d 583, 588 (2017) (). Thus, even if we were to assume that the court admitted the evidence pursuant to res gestae, we must still review whether the evidence was relevant to an issue other than to show criminal propensity, as required by Rule 404(b).
Idaho Rule of Evidence 404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
This rule prohibits introduction of evidence of acts other than the crime for which a defendant is charged if its probative value is entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d 1185, 1190 (2009). Of course, evidence of another crime, wrong, or act may implicate a person's character while also being relevant and admissible for some permissible purpose, such as those listed in the rule. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 (2012).
In this case, we disagree with the court's determination that the evidence was relevant for a purpose other than to show criminal propensity. First, the State did not rely on the marijuana contained in the backpack to support charging Gomez with possession of methamphetamine or paraphernalia. Second, during trial, the State's theory of Gomez's constructive possession of Thompson's methamphetamine was premised upon their joint arrangement that Gomez wouldtransport Thompson in exchange for methamphetamine. In establishing the facts of this arrangement, the State presented evidence that Gomez drove Thompson to a fast-food restaurant to pick up some of her belongings--one of those items being a backpack that she put into the trunk of Gomez's vehicle. However, the State presented no evidence at trial as to why the contents of the backpack were significant to the transportation arrangement between Gomez and Thompson. We can assign no relevancy to the fact that the backpack contained marijuana specifically, as opposed to clothing or other personal belongings. Finally, we cannot contemplate any other...
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