Urrutia v. State
| Decision Date | 24 September 1996 |
| Docket Number | No. 95-201,95-201 |
| Citation | 924 P.2d 965 |
| Parties | Chad URRUTIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia Lee Hackl, State Public Defender; Gerald M. Gallivan, Director of the Defender Aid Program; and Ryan Cade C. Villet and Daniel Celestino, Student Interns for the Defender Aid Program.
William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director of the Prosecution Assistance Program; and Boyd M. McMaster, Student Intern for the Prosecution Assistance Program.
Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN * and LEHMAN, JJ.
Appellant Chad Urrutia appeals from his convictions for possession with intent to deliver a controlled substance and for conspiracy to deliver controlled substances.
We affirm.
Appellant presents three issues for our review:
ARGUMENT I:
I) There was insufficient evidence to convict Appellant, Chad Urrutia, of possession of a controlled substance with intent to deliver under Wyoming Statute § 35-7-1031(a)(ii), given the fact that the State never proved what the substance was, whether or not Urrutia possessed the substance or that delivery was his intended action[.]
ARGUMENT II:
I) There was insufficient evidence to convict the Appellant, Chad Urrutia, of conspiracy to deliver a controlled substance under Wyoming Statute § 35-7-1042 and § 35-7-1031(a)(ii) given the fact that the State did not prove that the Appellant ever agreed to participate in the conspiracy or that he ever intended to participate in the conspiracy[.]
ARGUMENT III:
I) The trial court erred in allowing the co-defendant witnesses to testify that they
had plead[ed] guilty to a charge similar to that for which the Appellant was on trial and which arose out of the same set of circumstances[.]
a) State[']s use of co-defendant pleas of guilty [was] error and [was] prejudicial to the [A]ppellant[.]
b) State[']s use of co-defendant pleas of guilty amounted to plain error[.]
In September 1994, Richard Cox, a drug dealer in Gillette, turned himself in to the police. Cox told the police that Appellant was involved in Cox's drug selling enterprise. In December 1994, Appellant was charged with possession with intent to deliver marihuana under WYO. STAT. § 35-7-1031(a)(ii) (Supp.1995) and with conspiracy to deliver marihuana and methamphetamines under § 35-7-1031(a)(ii) and WYO. STAT. § 35-7-1042 (1994).
Appellant was tried before a jury in April 1995. The State called a number of Appellant's acquaintances and co-conspirators as witnesses. Appellant was convicted on both counts, and he subsequently perfected his appeal to this Court. A more comprehensive statement of the facts is included in the following discussion of the issues in this case.
Our standard for reviewing challenges to the sufficiency of the evidence is well established.
This Court assesses whether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.
Hodges v. State, 904 P.2d 334, 339 (Wyo.1995) (citation omitted), quoted in DeVries v. State, 909 P.2d 977, 979 (Wyo.1996).
Appellant contends that the State did not present sufficient evidence to support his conviction for possession with intent to deliver marihuana. Before Appellant could be convicted of that crime under § 35-7-1031(a)(ii), the State had to prove that (1) Appellant possessed, (2) with the intent to deliver, (3) marihuana, a controlled substance. See Wise v. State, 654 P.2d 116, 118 (Wyo.1982).
Appellant argues that the State did not prove that he possessed the marihuana. We have previously discussed what is required to prove that a defendant possessed a controlled substance. Wise, 654 P.2d at 118-19. The Court must look at the totality of the circumstances in determining whether sufficient evidence allowed the jury to infer that the defendant had possessed the contraband. 654 P.2d at 119. The State does not have to show that the defendant owned or had exclusive possession over the controlled substance. 654 P.2d at 118-19. Constructive possession of the controlled substance is sufficient and may be proven by a showing that the defendant had dominion and control over the substance. Id.; Saldana v. State, 846 P.2d 604, 620 (Wyo.1993).
In order to convict for possession of illicit drugs, the prosecution must establish that the accused either individually or jointly with another exercised dominion and control over the substance, had knowledge of its presence and knowledge that the substance was a controlled substance....
The police did not recover marihuana when they arrested Appellant. Appellant, however, admitted to them that he had smoked marihuana and that it made him "high." Cox testified that he had given marihuana and methamphetamines to Appellant and Rickey Keefe on a number of occasions. The State introduced two small black books Appellant also argues that, because marihuana was not recovered during the investigation, the State did not present adequate evidence for the jury to conclude that the substance he possessed was actually marihuana. The prosecution may rely on circumstantial evidence to prove the identity of the controlled substance because "unlawful distribution of a substance, which by its nature is to be consumed, should not escape prosecution because the state could not seize a sample of the substance." Lobatos v. State, 875 P.2d 716, 720 (Wyo.1994). In determining whether a particular substance is a controlled substance, the jury may consider
into evidence which contained the records of Cox's drug transactions with Appellant and Keefe. Cox's bookkeeper verified the entries. Keefe and another witness testified that they had seen Appellant possess marihuana. From this evidence, the jury could reasonably conclude that Appellant had dominion and control over, and, consequently, possession of, the marihuana.
"evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence."
State v. Northrup, 16 Kan.App.2d 443, 825 P.2d 174, 180 (1992) (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.1976)). See also United States v. Baggett, 890 F.2d 1095 (10th Cir.1989); People v. Steiner, 640 P.2d 250 (Colo.Ct.App.1981). This list is not exclusive, and the State is not required to prove that all the circumstances were present in order to obtain a sustainable conviction. See Northrup, 825 P.2d at 180.
In addition to admitting that he used marihuana, Appellant acknowledged that he was present while marihuana sales were being completed. Cox, who was an experienced drug user, testified that he knew the green, leafy substance which he delivered to Appellant and Keefe was marihuana because he "always did everything [himself] before it ever went on the streets." Cox also testified that small amounts of the marihuana were sold for substantial amounts of money. We conclude that this evidence was sufficient to support the jury's inference that the substance which Appellant possessed was, in fact, marihuana.
Appellant further contends that the State did not present sufficient evidence to establish that he intended to deliver the marihuana. The intent-to-deliver element may be proven by a showing that a completed delivery occurred or that the defendant held the specific intent to deliver the controlled substance. Dorador v. State, 573 P.2d 839, 843 (Wyo.1978); Stuebgen v. State, 548 P.2d 870, 879 (Wyo.1976).
Cox testified that Appellant and Keefe told him that they could get "rid of quite a[l]ot" of drugs for him. He also testified that he gave them marihuana and methamphetamines to sell. A witness testified that he discussed the drug distribution business with Appellant and Keefe and that he witnessed the two men leave their apartment with drugs and then return later with money and no drugs.
Cox, Keefe, and the bookkeeper stated at the trial that they met with Appellant in July 1994 at the bookkeeper's house to discuss how they could more safely distribute the drugs and retrieve the money gained from the sale of those drugs. Appellant admitted that he attended the meeting, and he also admitted that he directed customers to Keefe and was present when the drug sales were being consummated. Viewing the evidence in the light most favorable to the State, we conclude that the jury could determine that Appellant harbored the specific intent to deliver the marihuana. Sufficient evidence, therefore, supported Appellant's conviction for possession with intent to deliver marihuana.
Appellant maintains that the State did not prove that he agreed to, or that he intended ...
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