State v. Ojeda , 350 P.3d 640 ( 2015 )

2015 UT App 124THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
APOLINAR OJEDA,
Defendant and Appellant.
Memorandum Decision
No. 20130372-CA
Filed May 14, 2015
Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 111905855
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and JOHN A. PEARCE concurred.
ORME, Judge:
¶1 Defendant Apolinar Ojeda appeals his convictions of
unlawful possession of a firearm by a restricted person, a third
degree felony, and possession of drug paraphernalia, a class B
misdemeanor. Defendant argues that (1) his trial counsel’s
performance was constitutionally deficient because counsel
failed to object to the elements instruction for possession of a
firearm by a restricted person; (2) the trial court did not
adequately resolve a question asked by the jury during its
deliberation; (3) the trial court erred by allowing evidence of
Defendant’s possession of morphine, which was not a charged
offense; (4) the trial court erred by admitting evidence of ‚pay-
owe‛ sheets; (5) the trial court erred in denying Defendant’s
motion for mistrial; and (6) the cumulative error doctrine applies
State v. Ojeda
in the event we are not otherwise prepared to reverse
Defendant’s convictions.
¶2 We decline to consider Defendant’s fifth and sixth issues
because they are inadequately briefed. See State v. Timmerman,
2009 UT 58, ¶ 25 n.5, 218 P.3d 590 (‚An issue is inadequately
briefed if the argument merely contains bald citations to
authority [without] development of that authority and reasoned
analysis based on that authority.‛) (alteration in original)
(citation and internal quotation marks omitted). Because we
resolve all of the remaining issues against Defendant, we affirm
his convictions.
¶3 Defendant was one of nine individuals rounded up
during a SWAT team’s nighttime execution of a search warrant
at his home. Some of the individuals were residents of the home
while others were itinerant overnight guests or visitors. A search
of the residence uncovered contraband of various sorts.
Specifically found in Defendant’s room were drugs, drug
paraphernalia, guns, and ammunition. Defendant was charged
with one count of possession of methamphetamine, two counts
of unlawful possession of a firearm by a restricted person, and
one count of possession of drug paraphernalia. A jury convicted
Defendant of the paraphernalia charge and one count of
unlawful possession of a firearm by a restricted person.
Defendant was acquitted of the other two charges.
¶4 To succeed on his ineffective assistance of counsel
argument, Defendant is required to prove that (1) ‚counsel’s
representation fell below an objective standard of
reasonableness‛ and (2) ‚there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.‛ Strickland v. Washington,
466 U.S. 668, 687–88, 694 (1984). ‚In the event it is ‘easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice,’ we will do so without analyzing whether
counsel’s performance was professionally unreasonable.‛
20130372-CA 2 2015 UT App 124State v. Ojeda
Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (quoting
Strickland, 466 U.S. at 697).
¶5 Defendant takes issue with Jury Instruction No. 20, which
reads:
[Defendant] is charged in Count 2 of the
Information with Transfer, Possession, or Use of a
Firearm by Restricted Person, on or about July 23,
2011. You cannot convict him of this offense unless,
based on the evidence, you find beyond a
reasonable doubt each of the following elements:
1. On or about July 23, 2011;
2. In Salt Lake County;
3. That [Defendant];
4. Did purchase, transfer, possess, use, or
have under his custody or control;
5. A firearm; AND
6. Was an unlawful user of a controlled
substance OR was in unlawful
possession of a schedule I or II controlled
substance.
Defendant complains that the instruction, as it was given to the
jury, lacked the statutory language requiring that Defendant be
in possession of a dangerous weapon while knowingly and
intentionally possessing a schedule I or II controlled substance.
See Utah Code Ann. § 76-10-503(1)(b)(iv) (LexisNexis 2012).
Thus, Defendant’s notion of a proper jury instruction would be
identical to the instruction given, except element six would have
read, with the proposed differences emphasized, as follows:
20130372-CA 3 2015 UT App 124State v. Ojeda
6. Was an unlawful user of a controlled substance
OR was in possession of a dangerous weapon and
was knowingly and intentionally in unlawful
possession of a schedule I or II controlled
substance.
According to Defendant, then, there were two problems with
Jury Instruction No. 20. First, it omitted the requirement that
Defendant possess a dangerous weapon—apparently as opposed
to a firearm. Second, it omitted a mens rea for the unlawful
possession of a schedule I or II controlled substance.
¶6 We have explained that ‚jury instructions are to be
considered as a whole, . . . in light of all the others.‛ State v.
Johnson, 774 P.2d 1141, 1146 (Utah 1989). To conclude that no
prejudice resulted from the first omission of which Defendant
complains, we need look no further than elements four and five
of Jury Instruction No. 20, which required the jury to find that
Defendant purchased, transferred, possessed, or used a firearm
or had one under his custody or control.1 To add an element to
the jury instruction requiring the jury to find that Defendant was
in possession of a dangerous weapon would have been
redundant. If Defendant possessed, used, or had custody or
control of a firearm, he necessarily possessed a dangerous
weapon. See Utah Code Ann. § 76-1-601(10) (LexisNexis 2012)
(‚‘Possess’ means to have physical possession of or to exercise
1. Because, as the State explains, its ‚entire case rested on
Defendant’s constructive possession of . . . the guns,‛ the only
acts under the statute for which evidence was presented were
possession, use, custody, or control. ‚The State offered no
evidence that Defendant purchased or transferred the guns.‛
Inclusion of the inapplicable language from the statute did not
prejudice Defendant, as the jury heard no evidence consistent
with purchase or transfer but ample evidence bearing on the
other statutory variants.
20130372-CA 4 2015 UT App 124State v. Ojeda
dominion or control over tangible property.‛); id. § 76-10-
501(6)(a) (Supp. 2014) (defining ‚dangerous weapon‛ as, among
other things, ‚a firearm‛2). Use of the term ‚firearm‛ instead of
‚dangerous weapon,‛ then, did not prejudice Defendant in any
way.
¶7 We next consider Defendant’s contention that trial
counsel’s failure to object to the absence of specific mens rea
language in Jury Instruction No. 20 constituted ineffective
assistance of counsel. Again, this question cannot be considered
in a vacuum; instead, we consider the jury instructions as a
whole. See Johnson, 774 P.2d at 1146. Jury Instruction No. 27
required the State to prove to the jury’s ‚unanimous satisfaction
and beyond a reasonable doubt that [Defendant] knowingly
possessed a controlled substance.‛3 Even though Jury Instruction
2. The section 501 language is taken from the current version of
the statute. The version in effect at the time of Defendant’s
criminal episode defined ‚firearm,‛ in part, as a ‚device that
could be used as a dangerous weapon.‛ See Utah Code Ann.
§ 76-10-501(9)(a) (LexisNexis 2008). The difference in definitional
approach is inconsequential in the context of this appeal.
3. In his brief, Defendant’s primary argument regarding Jury
Instruction No. 20 seems to be that the jury could have convicted
Defendant ‚without the requirement that he be in actual
possession of a dangerous weapon.‛ The issue regarding the lack
of a mens rea element is only divined when we compare the
instruction that was given with the instruction Defendant argues
should have been given. See supra ¶ 5. At oral argument,
Defendant’s counsel brought up the lack of a mens rea element
and was asked why Jury Instruction No. 27 did not cure the
alleged error. It was only then that counsel articulated
Defendant’s argument that the firearm statute requires the
possession of a schedule I or II controlled substance to be
knowing and intentional, see Utah Code Ann. § 76-10-
503(1)(b)(iv) (LexisNexis 2012), and that Jury Instruction No. 27
(continued…)
20130372-CA 5 2015 UT App 124State v. Ojeda
No. 20 did not contain a mens rea requirement for the possession
of a controlled substance, a finding of that mens rea was
mandated elsewhere in the jury instructions. See supra note 3.
Because no prejudice resulted from the omission of either the
‚possession of a dangerous weapon‛ phrase or the detailed
mens rea elements from Jury Instruction No. 20, Defendant
cannot establish that his trial counsel’s performance was
constitutionally ineffective.
¶8 Defendant has also failed to demonstrate that the trial
court erred in its treatment of a question from the jury. During
deliberations, the jurors asked ‚whether they were required to
find Defendant not guilty of both counts of possession of a
firearm by a restricted person if they found him not guilty of
both possession of a controlled substance and possession of drug
(…continued)
dealt only with ‚knowingly.‛ Accordingly, we could decline to
reach this issue because it was not adequately briefed. See State v.
Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138.
We note, however, that the jury instructions, taken as a
whole, adequately addressed ‚intentionally.‛ If the jury
convicted Defendant on the firearm charge because it
determined that he ‚was in unlawful possession of a schedule I
or II controlled substance,‛ it did so because it was cognizant of
Jury Instruction No. 26. With our emphasis, that instruction
explained, ‚A person who may know of the whereabouts of
illicit drugs and who might even have access to them, but who
has no intent to obtain and use the drugs, cannot be convicted of
possession of a controlled substance. Knowledge and ability to
possess do not equal possession.‛ That instruction ends by
indicating, ‚This instruction also applies to the charge of . . .
Possession of a Firearm By a Restricted Person.‛ Thus, the intent
requirement was before the jury, even if not in the more direct
manner preferred by Defendant’s appellate counsel as his theory
evolved and was ultimately expressed at oral argument.
20130372-CA 6 2015 UT App 124State v. Ojeda
paraphernalia.‛ Defense counsel requested that the court simply
answer in the affirmative. Instead, the trial court referred the
jury to Jury Instruction No. 12, which indicated that the jury’s
‚verdict on one charge does not determine [its] verdict on any
other charge.‛ The instruction also directed the jury to ‚consider
each charge separately‛ and ‚consider all of the evidence related
to that charge‛ and ‚*d+ecide whether the prosecution has
presented proof beyond a reasonable doubt that [Defendant] is
guilty of that crime.‛
¶9 We acknowledge that there is little ‚procedural guidance‛
governing the proper handling of written questions submitted
by juries in the course of deliberation. See State v. Ison, 2006 UT
26, ¶ 42, 135 P.3d 864. However, our caselaw provides some
direction. For a defendant to successfully argue that the trial
court erred in its treatment of a question from the jury, he must
show (1) that the response given to the jury was incorrect or
somehow misinformed the jury and (2) that there is a reasonable
likelihood the jury’s verdict would have been different if a
correct response had been given.4
4. See, e.g., State v. Davis, 2013 UT App 228, ¶¶ 100, 109, 311 P.3d
538 (affirming a conviction because the defendant had not
demonstrated any resulting prejudice, even assuming the
response to a jury’s question had been improper); State v. Ingleby,
2004 UT App 447, ¶¶ 11, 15, 104 P.3d 657 (affirming a conviction
where the trial court’s response to a jury’s question, even if
improper, was harmless because there was not ‚‘a reasonable
likelihood that in its absence there would have been a more
favorable result for the defendant’‛) (quoting State v. Johnson, 771
P.2d 1071, 1073 (Utah 1989)); State v. Belt, 2000 UT App 205U,
para. 3 (refusing to reverse a conviction based on the trial court’s
answer to a jury’s question when defendant failed to make ‚any
persuasive argument that the trial court’s answer to the jury
question was incorrect or misinformed the jury [and] failed to
articulate any circumstance under which the jury’s verdict
(continued…)
20130372-CA 7 2015 UT App 124State v. Ojeda
¶10 Defendant does not argue that Jury Instruction No. 12
misstated the law, and we are unconvinced that the trial court’s
response to the jury’s question prejudiced him in any way.
Defendant does attempt to argue that the ‚jury was clearly
confused in thinking that if [it] found [D]efendant guilty of
possession of drug paraphernalia under instruction 22, [it] could
utilize that finding as a basis for finding guilt pursuant to
instructions 20 and 21.‛ In support of this argument, Defendant
points out that he was acquitted of the possession of
methamphetamine charge. Moreover, the conviction for
possession of a firearm by a restricted person could not be
premised on possession of drug paraphernalia, but required
either a finding that Defendant was a user of a controlled
substance or was knowingly and intentionally in possession of a
schedule I or II controlled substance. See Utah Code Ann. § 76-
10-503(1)(b) (LexisNexis 2012). The jury could have found this
element was satisfied if it properly concluded that Defendant
was an ‚unlawful user of a controlled substance.‛ See id.
Whether or not it could have so determined turns on our
resolution of another issue raised by Defendant.
¶11 Defendant claims the trial court’s allowance of evidence
regarding Defendant’s possession of morphine tablets was
erroneous under rule 404(b) of the Utah Rules of Evidence.5 But
(…continued)
would have been different if some other correct answer to the
jury’s question had been given‛); Laws v. Blanding City, 893 P.2d
1083, 1086 (Utah Ct. App. 1995) (reversing and remanding for
new trial when jury’s question revealed that jury instruction was
flawed, response to question did not correct error, and appellant
was prejudiced as a result).
5. We deal with this argument in the way it was briefed. At oral
argument, Defendant’s appellate counsel framed the issue as one
bearing on notice and due process, but the State correctly
pointed out that the issue was not briefed that way. ‚We will not
(continued…)
20130372-CA 8 2015 UT App 124State v. Ojeda
he did not object on these grounds at trial. We therefore review
Defendant’s rule 404(b) challenge for plain error. See State v.
Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551.
¶12 As the State correctly points out, the morphine evidence is
not problematic under rule 404(b), because that evidence was not
germane to the weapons or methamphetamine charges, but
instead constituted some of the evidence establishing that
Defendant was a user of illegal drugs who, on that basis alone,
was restricted from possessing firearms. Because this evidence
went directly to an element that the State was required to prove,
it was not admitted for any of the purposes governed by rule
404(b), see Utah R. Evid. 404(b)(1), but rather was introduced as
direct evidence of one of the crimes with which Defendant was
charged, namely possessing firearms while being a drug user.
And because this evidence was properly admitted for this
purpose, the jury had an evidentiary basis to find Defendant had
in fact possessed a firearm while being a drug user. See supra
¶ 10. Thus, Defendant has not met his burden of showing plain
error.
¶13 Finally, Defendant has not persuaded us that the trial
court’s allowance of indirect evidence of ‚pay-owe‛ sheets6
prejudiced him. Before trial, the court ruled that the alleged pay-
owe sheets would be inadmissible at trial, and the pay-owe
sheets themselves were not admitted into evidence. But Exhibit
13—a photograph depicting the contents of Defendant’s desk
(…continued)
reverse based on an unbriefed argument raised for the first time
at oral argument.‛ In re Gregory, Barton & Swapp, PC, 2011 UT
App 170, ¶ 10, 257 P.3d 495.
6. At the preliminary hearing, an officer who helped execute the
search warrant testified that pay-owe sheets are records used to
keep track of ‚people that owe money, and amounts of money
owed . . . for product that’s been sold.‛
20130372-CA 9 2015 UT App 124State v. Ojeda
drawer—was admitted. The photo supported the State’s
paraphernalia charge because it revealed a glass
methamphetamine pipe that was discovered in the drawer. The
photo also showed a spiral notebook page, which the State
believed was a pay-owe sheet. This photo was admitted into
evidence without objection, and so our review is again for plain
error.
¶14 One witness for the State, a police officer who searched
the home, began to describe the spiral notebook page shown in
the exhibit. Before he could speak in any detail about the alleged
pay-owe sheet, the prosecutor stopped him and inquired on
another point. After the prosecutor had begun discussing other
exhibits, defense counsel objected, a sidebar conversation took
place, and the court indicated that the pay-owe-sheet evidence
might be admissible because it went to the issue of constructive
possession. Regardless, the prosecutor proceeded with unrelated
questioning.
¶15 A second officer mentioned the pay-owe sheets during his
testimony, and defense counsel objected. That objection was
sustained.
¶16 Without more, Defendant cannot demonstrate that this
evidence prejudiced him in any way. The evidence was never
put into context or explained to the jurors. It was not mentioned
during closing argument. During the first officer’s testimony, the
prosecutor immediately steered the conversation away from the
pay-owe sheets and did not draw attention to the reference.
During the second officer’s testimony, defense counsel promptly
objected and the objection was sustained. Beyond guardedly
asserting that the ‚hint of evidence of other crimes may have
been sufficient to tip the scales for the jury to find the defendant
guilty of at least some drug related offense,‛ Defendant has not
explained what prejudice he suffered from these passing
mentions of the pay-owe sheets. He therefore has not met his
burden of demonstrating plain error.
20130372-CA 10 2015 UT App 124State v. Ojeda
¶17 In conclusion, Defendant’s trial counsel was not
ineffective for choosing not to demand the inclusion of
redundant elements in Jury Instruction No. 20. Furthermore, the
trial court did not err in its answer to the jury’s question, its
admitting evidence of morphine, or its allowance—if it can be
called such—of brief references to alleged pay-owe sheets.
Defendant’s arguments on appeal are unavailing, and we affirm
his convictions.
20130372-CA 11 2015 UT App 124