State v. Bowdrey

555 P.3d 367

2024 UT App 113

STATE of Utah, Appellee,

v.Kenneth BOWDREY, Appellant.

No. 20220237-CA

Court of Appeals of Utah.

Filed August 8, 2024

Third District Court, Salt Lake Department, The Honorable Todd Shaughnessy, The Honorable Heather Brereton, No. 201914494

Janet Lawrence and Jon D. Shuman, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and Hwa Sung Doucette, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Michele M.

Christiansen Forster and Ryan D. Tenney concurred.

Opinion

MORTENSEN, Judge:

¶1 Kenneth Bowdrey worked with a colleague to sell "bindles" of cocaine.¹ Unbeknownst to Bowdrey, his activity was being watched by police officers, one of whom (Sergeant) was using a spotting scope to observe the transactions. Bowdrey was charged with arranging to distribute a controlled substance. The State did not give Bowdrey notice that Sergeant would be testifying as an expert witness until about ten days before Bowdrey’s trial. On appeal, Bowdrey alleges that the district court exceeded its discretion in admitting Sergeant’s expert testimony, both because of the late notice and on prejudice grounds. Bowdrey also argues that the district court plainly erred in submitting the case to the jury because the State failed to present sufficient evidence to support a conviction. We affirm.

BACKGROUND

The Surveillance

¶2 A team of five police officers was conducting surveillance on a parking lot in an area where residents and business owners had reported drug activity taking place. Sergeant, who was part of the team, used a spotting scope and sat in an unmarked vehicle about 200 feet away to view the area of suspected drug activity. With the scope, Sergeant said he was able to view the activity as if he were only about fifteen feet away.

¶3 Sergeant testified that he saw a man (Buyer) approach Bowdrey and give him some cash. Bowdrey took the cash and gave it to another man (Seller). After taking the cash, Seller "took something out of his pocket and dropped it on the ground." Bowdrey then picked up this item and gave it to Buyer. The dropped item that was given to Buyer "appeared to be a white substance." After Buyer received this item, he walked back to his car and left the area. Sergeant communicated to his team members a description of Buyer’s vehicle so that "takedown officers" on the team could stop it.

¶4 While he was waiting for the takedown officers to stop Buyer’s vehicle, Sergeant continued to observe Bowdrey and Seller. He watched them "conduct a similar transaction to the one that [he] just previously watched" but with a different buyer who was never identified. Sergeant said this unidentified buyer approached Bowdrey and gave him cash. In turn, Bowdrey gave the cash to Seller, who "reached into some portion of his clothing, took out what appeared to be another white bindle or baggy and dropped it on the ground." Bowdrey then "picked it up" and "appeared to bite into it." He then took a "portion for himself’ and gave "the unidentified buyer the remaining portion."

¶5 Meanwhile, the takedown officers initiated a traffic stop with Buyer and ordered him out of his car. One of the officers observed a small "plastic bindle" on the driver seat, the contents of which later tested positive for cocaine. In addition, a "loose piece of [a] white rock-like substance," which the officer recognized as crack cocaine, was found in Buyer’s pocket. Buyer was released from custody but told that he would be charged.

¶6 Advised by Sergeant that Bowdrey was leaving the scene on foot, one of the officers caught up with him and took him into custody, but nothing illegal or pertinent to the investigation was found on him when he was searched.

¶7 Another officer returned to the parking lot where the transaction had taken place and arrested Seller. A search of Seller revealed that he had two $20 bills and a plastic bag that contained nine smaller baggies, the contents of which later tested positive for cocaine.

¶8 In December 2020, Bowdrey was charged with one count of distributing or arranging to distribute a controlled substance.

The Proceedings

¶9 In February 2021, Sergeant testified at Bowdrey’s preliminary hearing about the transactions described above involving Bowdrey, Seller, Buyer, and the other unidenti- tied buyer. Sergeant also testified "that based on his experience, he believed [Bowdrey] was involved in the sale of narcotics."

¶10 Bowdrey’s trial was scheduled to begin on August 31, 2021. On August 20, the State filed notice that it intended to call Sergeant as an expert witness. See Utah Code § 77-17-13(1.)(a) ("If the prosecution or the defense intends to call any expert to testify in a felony case at trial or any hearing, … the party intending to call the expert shall give notice to the opposing party as soon as practicable but not less than 30 days before trial or 10 days before the hearing." (emphasis added)). Specifically, the State indicated that Sergeant would "be called to testify as to the drugs possessed, the amount and street value of the drugs, and street level distribution." Bowdrey filed a motion to exclude Sergeant’s expert testimony based on the late notice and rules 702 and 403 of the Utah Rules of Evidence. See Utah R. Evid. 702(b) ("Scientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to the facts."); see also id. R. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.").

¶11 In addressing the motion to exclude Sergeant from testifying as an expert, the district court asked, "So if this is … testimony from … a police officer about the sort of standards and customs … based upon that police officer’s knowledge and experience, the standard and customs when it comes to distribution of narcotics, what about that type of testimony would the Defense not have been on notice of?" Bowdrey’s counsel (Counsel) did not give a responsive answer but instead said that the notice was late and allowing Sergeant to testify as an expert would allow him to "self-authenticate his investigation and validate the lack of corroborating evidence by analogizing to other investigations and other times."

¶12 Confirming that Sergeant’s testimony at the preliminary hearing had provided "at least some opportunity" for cross-examination, the court ruled that Sergeant could testify as an expert at trial. More specifically, the court noted, "[T]here’s been fair notice both that [Sergeant] would be a witness and it would not be a surprise to anyone that his testimony is going to venture into the area of testifying about his knowledge and experience as … a law enforcement officer with what is common or standard practices among those who are distributing illegal substances." The court also ruled that to "ameliorate … any prejudice," Counsel could meet with Sergeant prior to his testimony "to better understand" what he would "testify about." Counsel stipulated to Sergeant’s expert qualifications related to his training, experience, and knowledge.

Sergeant’s Testimony at Trial

¶13 Sergeant testified that he had been in law enforcement for nearly twenty years and had received specialized training in narcotics. He said that he had been involved in "several hundred narcotic-related investigations and arrests" over the course of his career, specifically noting that he had "observed thousands of hand-to-hand drug transactions" and was "well acquainted with the way [drug transactions] transpire, what they look like, what’s involved," and "what to look for." After he had revealed his qualifications, the State moved that Sergeant "be declared as an expert in the field of narcotics distribution," and Counsel immediately stated, "[W]e’ll stipulate that Sergeant … is a qualified, experienced law enforcement officer and can testify about his investigation." As relevant here, Sergeant then addressed the way that drugs are sold in areas such as where he and his colleagues were conducting surveillance:

Prosecutor: [A]re there different types of distribution arrangements that you typically see?

Sergeant: Yes.

Prosecutor: And what are those?

Sergeant: Sometimes the person will just go directly up to a dealer. And usually we watch people and look for people who go and park in a specific area. They’ll park in the [market’s] parking lot, or they’ll park in the adjacent parking lot. They’ll walk in and they’ll contact the dealer directly. Other times you’ll have individuals who go out and seek these buyers and bring them to the dealers. And … a lot of times they do that for either cash or more frequently they’ll do that too for their own drug habit.

Prosecutor: Okay. Is it common for just one person to be selling drugs and taking the money?

Sergeant: Yes.

Prosecutor: In your experience, is it more common to involve multiple people on a team?

Sergeant: For selling?

Prosecutor: Yes.

Sergeant: Typically, we see both. There’s not one that happens more often than the other. But usually it’s just a single buyer, single dealer. But I’ve seen hundreds of times where there’s an arranger involved or a middleman.

When asked by the prosecution to describe Bowdrey’s and Seller’s roles, the following exchange took place:

Prosecutor: And how would you characterize the role of … Bowdrey, in [the] transaction?

Sergeant: He’d be an arranger.

Prosecutor: Okay. And how would you characterize the role of [Seller] in [the] transaction?

Sergeant: The distributor, the main drug dealer.

Prosecutor: And based on your training and experience, did it appear to you that …...