State v. Blais

458 P.3d 1143

STATE of Utah, Appellee,

v.Ronald Alan BLAIS, Appellant.

No. 20180509-CA

Court of Appeals of Utah.

Filed January 3, 2020

Wendy Brown, Salt Lake City, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Lindsey L. Wheeler, Attorneys for Appellee

Judge Kate Appleby authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

APPLEBY, Judge:

¶1 Ronald Alan Blais was convicted of distributing a controlled substance and possessing a controlled substance with intent to distribute, both of which were enhanced to first-degree felonies due to a prior conviction. He also was convicted of giving false personal information to a peace officer, a class C misdemeanor. Blais challenges the sufficiency of the evidence to convict him of the felonies, alleges the district court abused its discretion in denying his motion to reduce the degrees of his felony convictions, and claims he was given an illegal sentence for the misdemeanor. We affirm his convictions, but we reverse the sentence for the misdemeanor count and remand for correction of that sentence.

BACKGROUND

¶2 Blais was arrested after a police officer (Officer One) observed him and two other individuals, a man (Man) and Blais’s daughter (Daughter), selling drugs on a street. Officer One, who was four stories above Blais and his cohorts in a building across the street from them, used a spotting scope to survey the suspicious activity. The spotting scope gave Officer One "a clear view of what was going on below," including "details of faces." He observed buyers giving Daughter or Man money. Daughter "would then put [the money] in a backpack and then direct [the buyers] to" Blais, who "would give them some sort of object from his backpack or mouth." Occasionally, Daughter "would pull a pill bottle out of her backpack and dump what appeared to be small objects, [that Officer One] believed to be twists,^{[1 ]} into [Blais’s] hand, and he would either place them into his mouth or into his backpack." Two officers later testified that the pill bottle had a strong vinegar odor, which in their training and experience indicated "it was used to store heroin." There were two backpacks at the scene. One was on the ground between Blais and Daughter, and the other, which was "black and gray [and] had a [sporting goods] symbol," was on Blais’s lap.

¶3 Officer One observed "about a dozen" transactions in which he could see twists. After Officer One saw Blais hand a buyer (Buyer) a black twist from his backpack, Officer One called in another officer (Officer Two) to arrest Buyer. After Officer Two informed Officer One that Buyer was in custody and that Officer Two found a black twist in Buyer’s possession, Officer One gave other nearby officers descriptions of Blais, Man, and Daughter, and of the suspects’ locations. Using his spotting scope, Officer One "had eyes on [them] the whole time" and confirmed the officers detained the correct people. He also testified that none of the suspects left the area and no one else "looking like them" entered the area during his surveillance. The arresting officers later testified that the descriptions Officer One provided of the suspects were "spot on." Upon arrest, Blais did not produce identification and told the arresting officer multiple times that his name was spelled "Ronald Blaze."

¶4 After Officer One dismantled his surveillance equipment, he went to the scene where all three suspects were handcuffed and the other officers were in the process of searching the backpacks. Officer Two searched the backpack that was on the ground between Blais and Daughter and found a pill bottle with Daughter’s name on it and "a large amount of cash" that, in his training and experience, was "indicative of ... sales of drugs." Officer One searched the black and gray backpack that was on Blais’s lap and found "two [white] twists of what appeared to be crack cocaine" inside. Blais was arrested and charged with distribution of a controlled substance (heroin), possession of a controlled substance (cocaine) with intent to distribute, each second-degree felonies, and providing false personal information to a peace officer, a class C misdemeanor.²

¶5 The officers seized and booked into evidence the cash, the white twists, and the black twist. Officer Two testified that booking evidence consists of packaging each piece of evidence, printing a receipt that is affixed to the package, taping the package closed, and signing the tape "so it can show that it hasn’t been tampered with." Officer Two personally booked the evidence in this case and testified that he followed standard procedure in doing so.

¶6 At trial, Officer One positively identified a "white twist containing crack cocaine" that he found in the black and gray backpack. Officer Two then identified the black twist found on Buyer, and testified it was the only narcotic in Buyer’s possession. A senior forensic scientist testified that he performed a "screening test and a confirmation test" on each twist and positively identified the substance in the white twists as cocaine and the substance in the black twist as heroin. He also testified that another person in the lab reviewed his results and confirmed his conclusions.

¶7 The forensic scientist testified about the crime lab’s process of receiving and testing drugs and said applicable protocol had been followed in this case. Therefore, he was "confident that those results [we]re the correct results." The State also introduced into evidence the lab report from "this case," which included the case number, the lab’s case number, and the forensic scientist’s signature. The report also identified the substances as heroin and cocaine. On cross-examination, Blais asked the forensic scientist whether any DNA or fingerprinting tests were performed on the evidence and the scientist responded in the negative. Blais did not object to any alleged deficiency in the chain of custody.

¶8 Blais testified in his own defense. He claimed Daughter "might have asked" him to hold the black and gray backpack, that he was there only to "convince" her to leave her drug-addicted lifestyle, and that he did not sell heroin or possess crack cocaine. Blais emphasized that no drugs were found on him when he was arrested. The jury convicted Blais on all three counts. After the guilty verdict, the district court found that Blais’s prior conviction of attempted possession with the intent to distribute enhanced his convictions from second- to first-degree felonies.

¶9 Before sentencing, Blais moved for a reduction of his first-degree felony convictions to second-degree convictions, arguing that his history of mental illness warranted deviation and that, rather than a prison sentence, he should be given the opportunity to seek mental health treatment. The court denied the motion, reasoning that "the Utah legislature has indicated how those crimes should be handled appropriately" and noting that the drugs involved—heroin and cocaine—are "very dangerous substances." The court also said Blais was dealing drugs to "a vulnerable population ... with his daughter" when he "could have been a role model to her, and instead [he] was just the opposite." The court observed that Blais "was caught in the act and he has continued to deny and minimize his conduct and his own history" and he already had unsuccessful "efforts in probation." The court then sentenced Blais to concurrent terms of five years to life in prison for each of the felonies and one year in prison for the class C misdemeanor.

ISSUES AND STANDARDS OF REVIEW

¶10 Blais raises three issues on appeal. First, he claims there was insufficient evidence to convict him of both distribution of a controlled substance and possession of a controlled substance with intent to distribute. Because this issue was not preserved at trial, Blais asks us to review these claims under the plain error exception to the preservation rule. See State v. Graves , 2019 UT App 72, ¶ 18, 442 P.3d 1228. "In considering an insufficiency of the evidence claim, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury," and "we will reverse a jury verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted." State v. Maestas , 2012 UT 46, ¶ 302, 299 P.3d 892 (quotation simplified). When, as is the case here, this issue is unpreserved, the appellant must also show "the insufficiency was so obvious and fundamental that the [district] court erred in submitting the case to the jury." State v. Holgate , 2000 UT 74, ¶ 17, 10 P.3d 346.

¶11 Second, Blais asserts the district court erred in denying his motion to reduce his convictions from first- to second-degree felonies. "We review a [district] court’s denial of a motion to reduce the degree of a conviction for abuse of discretion." State v. Salt , 2015 UT App 72, ¶ 9, 347 P.3d 414.

¶12 Finally, Blais contends he received an illegal sentence when the district court sentenced him to one year in prison for a class C misdemeanor. Whether a sentence is illegal is reviewed for correctness. State v. Thorkelson , 2004 UT App 9, ¶ 9, 84 P.3d 854.

ANALYSIS

I. Sufficiency of the Evidence

A. Distribution of a Controlled Substance

¶13 To convict a defendant of distribution of a controlled substance, the State must prove beyond a reasonable doubt that the defendant "knowingly and intentionally ... distribute[d] a controlled ... substance." Utah Code Ann. § 58-37-8(1)(a)(ii) (LexisNexis Supp. 2019).³

¶14 Blais argues there was insufficient evidence to convict him of distribution of heroin. Specifically, he claims "no evidence established that" the black twist found on Buyer "was the same [i]tem ... that tested positive [for] heroin." He claims "the State essentially showed the...