State v. Gonzalez–Camargo

• Decision Date: 28 December 2012
• Docket Number: No. 20110027–CA.,20110027–CA.
• Citation: 724 Utah Adv. Rep. 34,293 P.3d 1121
• Parties: STATE of Utah, Plaintiff and Appellee, v. Fernando GONZALEZ–CAMARGO, Defendant and Appellant.
• Court: Utah Court of Appeals

293 P.3d 1121

724 Utah Adv. Rep. 34

STATE of Utah, Plaintiff and Appellee,

v.Fernando GONZALEZ–CAMARGO, Defendant and Appellant.

No. 20110027–CA.

Court of Appeals of Utah.

Dec. 28, 2012.

Joan C. Watt and Andrea J. Garland, Salt Lake City, for Appellant.

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.

Before Judges ORME, McHUGH, and CHRISTIANSEN.

OPINION

McHUGH, Judge:

¶ 1 Fernando Gonzalez–Camargo appeals his convictions of possession of methamphetamine, a third degree felony, seeUtah Code Ann. § 58–37–8(1)(a)(iii) (LexisNexis 2012),¹ and receiving stolen property, a class B misdemeanor, see id. § 76–6–408(1) (elements); id. § 76–6–412(1)(d) (penalties). We vacate Gonzalez–Camargo's conviction of possession of methamphetamine, and reverse his conviction of receiving stolen property and remand for a new trial on that charge.

BACKGROUND ²

¶ 2 On September 29, 2009, representatives of the Utah Attorney General's Office Special Investigations and Secure Strike Force units (the agents or investigating agents) surveilled an apartment fourplex in Salt Lake City (the fourplex). They observed “[h]eavy traffic patterns to and from” the fourplex by foot, bike, and car; people who appeared to be “lookout[s]”; and “what appeared ... to be two hand-to-hand drug transactions.” Although they observed that the individuals involved in the hand-to-hand transactions came down the stairs, the agents could not determine whether they emerged from apartment B or D, both of which were located on the upper level of the fourplex. The agents did not detain any of the individuals involved in the transactions and did not know their identities. However, the agents stopped and searched one car leaving the fourplex and found electronics and construction tools in the car. There was no evidence linking Gonzalez–Camargo to any of these incidents.

¶ 3 Thereafter, the investigating agents coordinated with members of the Salt Lake City Special Weapons and Tactics (SWAT) team to execute a search warrant on apartments B and D around midnight on September 30, 2009. The SWAT team implemented a “surround and callout operation,” which one of the investigating agents explained at trial means that “the SWAT team approaches the building [and uses] a bullhorn ... to call the residents out of the apartment[s].” Twelve to fourteen people, including Gonzalez–Camargo and his girlfriend (Girlfriend), were then escorted from the fourplex and directed by Agent Edward Spann to sit on the curb. While detained, Gonzalez–Camargo told Agent Spann that he lived in apartment D with Girlfriend.

¶ 4 After the residents and guests exited the fourplex, the SWAT team entered the upper level apartments to assure that they were clear of danger. There were “dozens” of SWAT team members who entered the apartments, and they used a canine unit to assist in detecting the presence of controlled substances. ³ It is unclear how long it took the SWAT team to conduct the initial sweep and to turn the scene over to the investigating agents. One agent recalled that the SWAT team took about thirty minutes to clear apartments B and D, while other agents testified that the SWAT team had control of the premises for about an hour.

¶ 5 After the SWAT team released the scene, the investigating agents entered the apartments to conduct a search pursuant to the warrant. The floor plan of apartment D includes two bedrooms and a common bathroom, living room, and kitchen. The agents discovered nine baggies of methamphetamine inside a black, metal lockbox (the lockbox), which was found in the bedroom on the north side of apartment D (the north bedroom). The agents also recovered laptop computers, cellular telephones, other electronic devices, and a loaded sawed-off shotgun from the north bedroom.

¶ 6 At some point during the search, the agents brought Gonzalez–Camargo and Girlfriend to apartment D and seated them in the living room. Before the search was completed, Girlfriend asked the agents to retrieve something from her purse, which was located in the north bedroom. As one of the investigating agents left the north bedroom carrying laptop computers, Gonzalez–Camargo identified them as his. He explained that he was a computer repairman and volunteered that the computers were not stolen. However, the agents did not find any of the hallmarks of a computer repair business, such as customer lists or receipts, computer manuals, computer repair tools, or business cards in the apartment. In addition, one of the seized computers bore a label indicating that it was the property of Utah State University. Based on the items found in the north bedroom, the State charged Gonzalez–Camargo with possession of methamphetamine with intent to distribute, a second degree felony; receiving stolen property valued at $5,000 or more, a second degree felony; and possession of a weapon by a restricted person, a third degree felony.

¶ 7 At a jury trial held June 29–30, 2010, four of the investigating agents testified. Agent Spann explained that he “was assigned as the photographer to go through and take a video of the residence before the search began, and then a conclusory video after the search was concluded.” He testified that the lockbox was on top of the mattress when he first entered the bedroom. The jury also saw the video Agent Spann recorded, which shows the closed lockbox sitting atop a mattress between a pillow and a pile of blankets. It also shows a laptop computer on the floor at the foot of the mattress and a laptop computer in a case on the floor on one side of the mattress.

¶ 8 Agent Stephen Metcalf testified that he entered apartments B and D to conduct a follow-up safety sweep after the SWAT team had cleared the premises. He did not know if he was the first investigating agent on scene, stating, “I believe [Agent] Spann may have been in front of me. He was an individual who was assigned to photograph, and I believe he may have been in front of me.” When Agent Metcalf entered the north bedroom, the lockbox was on the floor next to the mattress near two laptop computers. He indicated that the lockbox contained nine baggies of what appeared to be methamphetamine. It was unclear from his testimony, however, whether the lockbox was open when he first saw it, or was later opened, thereby revealing the drugs.

¶ 9 Agent Brendan Call and Agent Leo Lucey also testified at trial. Agent Call entered apartment D after the drug detection dogs and first saw the lockbox on the mattress as shown in the video, but open. Agent Call could see “baggies of methamphetamine” inside the lockbox, along with marijuana and a pipe “all on the bed.” Agent Lucey testified that he entered apartment D after “a canine unit ... as well as some of the other investigators.” Agent Lucey reported that when he entered the north bedroom, the lockbox was on a chair surrounded by cellular telephones. Agent Lucey did not recall if the lockbox was open or closed.

¶ 10 The video and testimony reveal that, in addition to the computers and methamphetamine recovered from the north bedroom, there was a purse and a crescent wrench near the door, three cellular telephones on a chair, a cluttered computer desk, a dresser, and a mattress. The bedroom also contained cameras, video recorders, two boxes of jewelry, and a container full of money, consisting mostly of coins. There were two car stereos on the floor near the closet. The agents found new children's clothing with attached price tags, men's and women's clothing, and the sawed-off shotgun in the closet. Other items in the closet included purses, duffle bags, and makeup.

¶ 11 Furthermore, the State offered evidence that the computer recovered from the north bedroom bearing the Utah State University sticker had been stolen. Detective Kim Ellis of the Utah State University police relied on an incident report to confirm that the make, model, and serial number of the computer matched a laptop reported missing from the university in August 2009. Although Gonzalez–Camargo objected to the testimony as hearsay, the trial court admitted the evidence contained in the incident report as a business record.

¶ 12 At the close of the State's case, Gonzalez–Camargo moved for a directed verdict, arguing that the State had failed to establish his constructive possession of the methamphetamine or shotgun and that the State had not shown an intent to distribute the methamphetamine. With regard to the computers, Gonzalez–Camargo argued that although there may be enough evidence that he was in possession “perhaps of some laptops,” there was no evidence of their value. After argument on the matter, the trial court denied the motion for a directed verdict, but agreed that the State had presented no evidence of Gonzalez–Camargo's intent to distribute the methamphetamine or of the value of the computers. Accordingly, the trial court submittedthe case to the jury on charges of possession of methamphetamine, a third degree felony; receiving stolen property, a class B misdemeanor; and possession of a weapon by a restricted person, a second degree felony. The jury acquitted Gonzalez–Camargo of possession of a weapon by a restricted person but found him guilty of possession of methamphetamine and of receiving stolen property.

¶ 13 Following the verdict, Gonzalez–Camargo filed a motion to arrest judgment on the conviction of possession of methamphetamine, which the trial court denied in a Minute Entry and Order. The court sentenced Gonzalez–Camargo to zero to five years in the Utah State Prison for possession of methamphetamine and 180 days in jail for receiving stolen property. It then suspended those sentences and ordered Gonzalez–Camargo to serve 365 days in jail and 36 months of probation.⁴ Gonzalez–Camargo now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 14 Gonzalez–Camargo contends that the evidence was not sufficient to support his conviction of possession of methamphetamine. Our review of a claim...