State v. Serrano-Vargas

511 P.3d 453

STATE of Utah, Appellee,

v.Silvia SERRANO-VARGAS, Appellant.

No. 20191091-CA

Court of Appeals of Utah.

Filed May 12, 2022

Gregory W. Stevens, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Marian Decker, Salt Lake City, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

Opinion

MORTENSEN, Judge:

¶1 With the evidence showing that police found substantial amounts of drugs and cash in a bedroom that Silvia¹ Serrano-Vargas exclusively rented and occupied, the jury found her guilty of various charges, including possession of drug paraphernalia, possession of drugs, and possession of drugs with intent to distribute. Serrano-Vargas now appeals, asserting that the trial court erred in denying her motion for a directed verdict and that her trial counsel rendered ineffective assistance. We affirm.

BACKGROUND²

¶2 After conducting a successful controlled buy in which police sent an individual to purchase drugs at a particular apartment from a woman named "Silvia," police executed a search focused on "Silvia Pacheco-Alires" at that apartment. That warrant focused on "Silvia Pacheco-Alires" because the phone number used to arrange the controlled buy was registered under that name. But upon entering the apartment, instead of finding a "Silvia Pacheco-Alires," police found, along with several other individuals, "Silvia Serrano-Vargas."

¶3 As police searched the apartment, they found substantial evidence of drug use. But in a bedroom, a portion of the apartment sub-rented exclusively to Serrano-Vargas for her sole occupancy, the police found more. There, police found a black garbage bag sitting on top of a dresser. The bag contained many small bags "commonly used for drug packaging and distribution," "two glass crack pipes," a scale, approximately 18 grams (180 doses worth $1,800) of heroin, approximately 17.7 grams (177 doses worth $1,770) of crack cocaine, and $469 in cash. Atop the same dresser, next to the black garbage bag, police found a woman's makeup bag. And in the bottom drawer of that same dresser, police found a purple purse. Inside that purse, police found $2,460 in cash, "three Mexican government ID cards with the name and a photograph of Silvia Serrano-Vargas," a social security card with Serrano-Vargas's name on it, several glass crack pipes, a baggie with 0.10 grams of methamphetamine, a baggie with 0.10 grams of cocaine, and a scale for weighing drugs. In the bedroom closet, police found clothing belonging to Serrano-Vargas and a lockbox containing "$8,451 in cash, along with a number of receipts for MoneyGram transfers with Silvia Serrano-Vargas's name." Police also found two cell phones, both of which Serrano-Vargas claimed as her own. While speaking with Serrano-Vargas in the bedroom, police called the phone number used to arrange the controlled buy. One of Serrano-Vargas's phones rang in response.

¶4 Following this search, police arrested Serrano-Vargas, and the State charged her with one count of possession of drug paraphernalia, one count of drug possession, and two counts of possession of drugs with intent to distribute.

¶5 At trial, Serrano-Vargas moved for a directed verdict, arguing that the State presented insufficient evidence to convict her. Specifically, she argued that constructive possession could not reasonably be found by the jury because many people were in the apartment, that drug paraphernalia was found throughout the apartment, that the State did not fingerprint test any of the bedroom's contents, that she did not claim all the items found in the bedroom, that the police found another individual's backpack and prescription pill bottles in the bedroom, that the search warrant contained a different name from hers, and that the police could not identify the individual who sold the drugs during the controlled buy.

¶6 The State responded that "based on the evidence presented in a light in favor of the State, a [jury] could find [Serrano-Vargas] guilty ... based on the evidence [that was] found in the bedroom." The State argued that the evidence demonstrated that the bedroom was Serrano-Vargas's and that she exclusively rented the bedroom, that the bedroom contained various personal property, and that the quantity of drugs found among that personal property suggested that "a reasonable juror could find that these items [belonged] to [Serrano-Vargas] and that she [was] guilty of these offenses." The trial court denied the motion, and Serrano-Vargas was convicted on all counts.

¶7 After trial, Serrano-Vargas learned that the police had discovered the identity of the apartment's primary lessee during their interviews but had not provided that information to the defense or presented that information at trial.³ And despite the fact that Serrano-Vargas likely knew the primary lessee's identity, trial counsel allegedly had not investigated and sought to obtain those interviews and did not present that information at trial to persuade the jury that Serrano-Vargas lacked control over the room that she leased. Serrano-Vargas now appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Serrano-Vargas raises two issues that we resolve on appeal. First, she contends that the trial court erred in denying her motion for a directed verdict based on a claim of insufficiency of the evidence.

When a party moves for a directed verdict based on a claim of insufficiency of the evidence, we will uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.

State v. Doyle , 2018 UT App 239, ¶ 11, 437 P.3d 1266 (cleaned up).

¶9 Second, Serrano-Vargas contends that her trial counsel rendered ineffective assistance by failing to further investigate and present evidence of the police interviews showing the true name of the primary lessee of the apartment where Serrano-Vargas's room was located. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Beckering , 2015 UT App 209, ¶ 9, 358 P.3d 1131 (cleaned up).

ANALYSIS

I. Sufficiency of the Evidence

¶10 Serrano-Vargas contends that the trial court erred when it denied her motion for a directed verdict. Specifically, she argues that the evidence could not support a finding that she constructively possessed the contraband in the bedroom such that the jury could find her guilty of the charged crimes. We are not persuaded.

¶11 "On appeal, we do not reweigh the evidence presented to the jury," and we "resolve conflicts in the evidence in favor of the jury verdict." State v. Wall , 2020 UT App 36, ¶ 53, 460 P.3d 1058 (cleaned up). Accordingly, to succeed on her claim, Serrano-Vargas would need to show that the evidence, as presented to the jury—the exclusive judge of witness credibility and the weight to be given the evidence—"is insufficient when viewed in the light most favorable to the verdict." See id. (cleaned up).

¶12 To meet this burden, Serrano-Vargas argues that "a nexus sufficient to establish constructive possession cannot be established solely by nonexclusive ownership or occupancy of the place where the contraband is found" and recites various pieces of evidence that could arguably cut against a finding of constructive possession. But the State did not rest its case solely on "ownership or occupancy of the place where the contraband is found," exclusive or not. And the circumstances surrounding the contraband found in the bedroom support the jury's determination, regardless of the facts that others inhabited the apartment, that another individual's backpack had been found in the bedroom, and that all the contraband did not have a direct connection to Serrano-Vargas.

¶13 To demonstrate constructive possession, "the circumstantial evidence necessary to convict is evidence showing a sufficient nexus between the accused and the contraband to permit an inference that the accused had both the power and the intent to exercise dominion and control over the contraband." State v. Ashcraft , 2015 UT 5, ¶ 19, 349 P.3d 664 (cleaned up). Although "ownership or occupancy of the premises where contraband is discovered ... may not be enough to show constructive possession by itself," evidence that can demonstrate constructive possession includes "ownership and ... occupancy," "presence of the defendant when the contraband is discovered," "proximity to the contraband," "previous drug use by the defendant," and "presence of contraband in a specific area where the defendant had control." Id. ¶¶ 19–20 (cleaned up).

¶14 For example, in Ashcraft , the defendant argued that "the only connection between him and the [contraband] was his occupancy of the truck" in which the contraband was found. Id. ¶¶ 7, 21. But the court disagreed because the defendant had repeatedly driven through a known drug-activity area, had a large amount of cash, was near enough the contraband that he could have reached it from the driver seat of the car, and had accused the officer of planting the bag containing the contraband before it had even been opened. Id. ¶ 21 ; see also State v. Workman , 2005 UT 66, ¶ 34, 122 P.3d 639 (holding that a defendant had constructive possession when, among other things, her belongings were intermingled with the contraband).

¶15 On the other hand, in State v. Gonzalez-Camargo , 2012 UT App 366, 293 P.3d 1121, constructive possession was not established when, apart from "inferences," "the only evidence tying [the defendant] to the [contraband was] that he was present, along with approximately twelve to fourteen other people, when the police executed the search warrant, and that the [contraband] was...