State v. Layman

• Decision Date: 29 January 1998
• Docket Number: No. 960814-CA,960814-CA
• Citation: 953 P.2d 782
• Parties: 335 Utah Adv. Rep. 9 STATE of Utah, Plaintiff and Appellee, v. Michael Charles LAYMAN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 782

953 P.2d 782

335 Utah Adv. Rep. 9

STATE of Utah, Plaintiff and Appellee, v. Michael Charles LAYMAN, Defendant and Appellant.

No. 960814-CA.

Court of Appeals of Utah.

Jan. 29, 1998.

Alan M. Williams, Vernal, for Defendant and Appellant.

Jan Graham and Kris C. Leonard, Salt Lake City, for Plaintiff and Appellee.

Before BENCH, GREENWOOD and ORME, JJ.

OPINION

GREENWOOD, Judge:

Michael Charles Layman (Layman) appeals his convictions of driving under the influence of alcohol or drugs, a class B misdemeanor, in violation of Utah Code Ann. § 41-6-44 (Supp.1996); possession of a controlled substance with intent to distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8 (Supp.1996); and possession of paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5 (1996). We affirm Layman's conviction for driving under the influence but reverse his convictions for possession of a controlled substance with intent to distribute and possession of paraphernalia.

BACKGROUND ¹

On August 11, 1996, Layman and his father, Hobart Layman (Hobart), went to the home of Gina Ziegenhirt (Gina) in Ogden. Hobart asked Gina if she wanted to go with them to Vernal and make some money on the sale of methamphetamine. Gina had not previously met Layman, and Layman was apparently upset with Hobart for inviting Gina on the trip. However, on the way to Vernal, Layman and Gina talked about the difficulty each was having with the state in connection with their respective children.

Upon arriving in Vernal in the early morning of August 12th, the three went directly to a motel. While there, Gina saw Hobart in the bathroom with drugs, and heard him complain that his scales were not working correctly. The three remained at the motel approximately twenty minutes. Layman and Gina then dropped Hobart off, at which time Hobart handed Gina a pouch containing drugs and paraphernalia. Hobart said he would call Layman at Layman's sister's house when it was time to pick him up. Gina assumed the drugs Hobart gave her were hers and Hobart's.

At approximately 3:00 a.m., after dropping Hobart off, Layman was stopped by Deputy Shaun Abplanalp, who noticed that one of Layman's taillights was not working. As Abplanalp prepared to make the traffic stop, Layman jerked his car suddenly to the right, as if to pull off the road, and then to the left, before stopping his car in a position perpendicular to the police car. Layman then walked "briskly" toward the deputy, and, apparently upset after being told about the taillight, opened the car trunk and tried to fix it. Layman's eyes were red, bloodshot, watery and glassy, and he appeared very anxious and fidgety, unable to remain in one location for any length of time.

In response to Abplanalp's question, Layman told the deputy he had no controlled substances, paraphernalia, or open containers in his car and consented to a search of the vehicle. A quick pat search of Layman revealed no weapons. Abplanalp did, however, observe a black holster-type pouch stuffed in Gina's waistband. The deputy made several attempts to obtain the pouch from Gina. Gina repeatedly looked nervously toward Layman and, on one of those occasions, the deputy observed Layman shaking his head in a negative fashion back and forth. When Abplanalp finally obtained the pouch, he found it contained numerous syringes, a spoon, a large baggy of methamphetamine, and a set of plastic scales. Two of the syringes had been used. The quantity of methamphetamine found in the pouch was more than one would have for one's personal use. However at no time did Deputy Abplanalp see the pouch or its contents in Layman's physical custody and at no time during the course of the stop did he observe any movements indicating Layman had handed anything to Gina.

Deputy Abplanalp was soon joined by Deputy DeCamp, who conducted a series of field sobriety tests on Layman. Based on those tests, DeCamp concluded Layman was incapable of safely operating a motor vehicle. DeCamp took Layman to jail, where DeCamp conducted a drug recognition evaluation on Layman and concluded Layman was under the influence of a stimulant. Abplanalp then took Layman to Ashley Valley Medical Center for a blood draw. Both deputies, at some point, observed needle marks on Layman's arms. The results of the blood test, admitted into evidence by stipulation, indicated the presence of methamphetamine in Layman's blood stream.

On August 20, 1996, Layman was charged with driving under the influence of alcohol or drugs, possession of a controlled substance with intent to distribute, and possession of paraphernalia. A bench trial was held on December 10, 1996, and the trial court found Layman guilty on the three counts. This appeal followed.

ISSUES

On appeal, Layman raises essentially three issues. In connection with his conviction for driving under the influence, Layman asserts (1) the trial court erred in considering the toxicology reports, even though Layman stipulated to their admission into evidence, because the State presented no foundational evidence as to the tests' reliability; and (2) the trial court erred in admitting the expert opinion testimony of Deputy DeCamp concerning Layman's intoxication without first analyzing that testimony under the test set forth in State v. Rimmasch, 775 P.2d 388, 396-99 (Utah 1989). In connection with his convictions of the drug-related possession crimes, Layman (3) challenges the sufficiency of the evidence supporting the trial court's finding of constructive possession. ²

ANALYSIS

Driving Under the Influence

Layman challenges his conviction for driving under the influence, claiming the trial court erred both in giving any weight to toxicology reports admitted into evidence by stipulation, and in allowing expert testimony from Deputy DeCamp without first submitting that testimony to the Rimmasch analysis.

1. Toxicology reports

Although Layman stipulated to the admission of the toxicology reports concerning the drugs in his system and those found in Gina's pouch, he now challenges the trial court's decision to give any weight to those reports because the State failed to produce evidence that the underlying tests were performed properly.

The "invited error" doctrine " 'prohibits a party from setting up an error at trial and then complaining of it on appeal.' " State v. Perdue, 813 P.2d 1201, 1205 (Utah Ct.App.1991) (citation omitted); see also State v. Dunn, 850 P.2d 1201, 1220 (Utah 1993) ("[A] party cannot take advantage of an error committed at trial when that party led the trial court into committing the error."). Furthermore, once evidence is admitted, it is for "[t]he trier of fact [to] consider the degree to which [foundational evidence has been presented] and apply that toward the weight and reliability of the evidence." State v. Moosman, 794 P.2d 474, 481 (Utah 1990).

In this case, Layman stipulated to the admission of the toxicology reports and did not specifically object to the lack of foundational evidence supporting the reports. Furthermore, Layman did nothing to dispel the State's understanding that the very reason for the stipulation was to accelerate Layman's trial date by removing the need for the State to call witnesses to describe the testing procedures. Through his actions, then, Layman invited any error which the trial court may have made in admitting the toxicology reports. Furthermore, once they were admitted, it was within the trial court's discretion to determine what weight to accord those reports.

2. Deputy DeCamp's expert testimony

Layman claims the trial court erred in admitting Deputy DeCamp's testimony regarding Layman's intoxication without first analyzing that testimony under the test set forth in State v. Rimmasch, 775 P.2d 388, 396-99 (Utah 1989). We agree with the State, however, that the Rimmasch analysis applies only to expert testimony based on scientifically derived facts or determinations, and not to an expert's personal observations and opinions based on his or her education, training, and experience.

This court has held a Rimmasch analysis is required to determine "the admissibility of testimony based on an external scientific process or statistical profile." State ex rel. G.D., Jr. v. L.D., 894 P.2d 1278, 1284 (Utah Ct.App.1995). Where the expert testimony is opinion testimony based on the witness's training and experience, Rimmasch is not applicable, "as there [is] no scientific process on which to apply such an analysis." Id.; see also Salt Lake City v. Garcia, 912 P.2d 997, 1000-01 (Utah Ct.App.) (finding no error where trial court allowed testimony on result of field sobriety test without entertaining Rimmasch analysis, and court specifically informed jury this was not scientific evidence but rather was "part of the basis of the arresting officer's opinion that the defendant was under the influence"), cert. denied, 919 P.2d 1208 (Utah 1996).

Furthermore, a trial court "has wide discretion in determining the admissibility of expert testimony, and this court will not overturn the trial court's determination unless the trial court exceeded its permissible range of discretion." State ex rel. G.D., 894 P.2d at 1284 (citing State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993)). We thus conclude the trial court did not err in admitting DeCamp's testimony.

"Constructive Possession"

Layman challenges the sufficiency of the evidence in connection with his convictions for possession of a controlled substance with intent to distribute and possession of paraphernalia. In both cases, Layman argues that the trial court lacked sufficient evidence to find he constructively possessed the contraband.

" 'When reviewing a bench trial for sufficiency of evidence, we must sustain the trial court's judgment unless it is "against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." ' " State v....