State v. Holland

2018 UT App 203
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
TALEA LOUISE H OLLAND,
Appellant.
Opinion
No. 20170018-CA
Filed October 25, 2018
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 151903001
Justin Knell, Attorney for Appellant
Simarjit S. Gill and Richard J. Pehrson, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES K ATE A. TOOMEY and DAVID N. M ORTENSEN concurred.
HAGEN, Judge:
¶1 	Talea 	Louise 	Holland 	appeals 	her 	conviction 	for
possession of a dangerous weapon by a restricted person. She
contends 	that 	the 	State 	presented 	insufficient 	evidence 	to
establish that she was a restricted person, namely an unlawful
user of a controlled substance. We affirm.

State v. Holland
20170018-CA 	2 	2018 UT App 203
BACKGROUND1
¶2 	A police officer responded to a local hardware store to
investigate a report of retail theft by Holland. After speaking
with Holland and the loss prevention employee, the officer
arrested Holland for shoplifting. In performing a search incident
to that arrest, the officer found several suspicious items in
Holland’s purse. Specifically, the officer found brass knuckles
and a small, black kit that contained a pick and two spoons
covered 	with 	brown 	residue. 	Relying 	on 	sixteen 	years 	of
experience as a police officer and his drug-specific training, the
officer believed that the pick was a type commonly associated
with drug use and that the brown residue on the spoons was
consistent with heroin.
¶3 	Based 	on 	“the 	way 	she 	looked 	that 	day” 	and 	her
“demeanor,” the officer suspected that Holland was “struggling”
and 	asked 	her 	whether 	“she 	had 	a 	problem 	with 	drugs.”
According to the officer, Holland responded that “she is a drug
user,” “she was having some issues with it,” and she had “been
struggling to control her addiction.”
¶4 	The 	State 	charged 	Holland 	with 	possession 	of 	a
dangerous weapon by a restricted person, possession of drug
paraphernalia, and retail theft. With respect to the possession of
a dangerous weapon charge, the State contended that the brass
knuckles in Holland’s purse constituted a “dangerous weapon”
and that she was a restricted person based on her status as an
“unlawful user of a controlled substance.” At Holland’s request,
the court bifurcated the trial on that count. The jury would
1. “In reviewing the [district] court’s ruling, we recite the facts in
the light most favorable to the [district] court’s findings.” State v.
Larsen, 	2000 	UT 	App 	106, 	¶ 	2, 	999 	P.2d 	1252 	(quotation
simplified).

State v. Holland
20170018-CA 	3 	2018 UT App 203
consider whether Holland intentionally or knowingly possessed
a dangerous weapon. If it found that she had, the district court
would then determine whether she was an unlawful user of a
controlled substance restricted from possessing such a weapon.
¶5 	At the conclusion of trial, the jury found Holland guilty of
possession 	of 	a 	dangerous 	weapon, 	possession 	of 	drug
paraphernalia, and retail theft. The district court then considered
the bifurcated element and found beyond a reasonable doubt
that Holland was an unlawful user of a controlled substance. In
reaching this conclusion, the district court focused on Holland’s
statement that she was “struggling” with her drug addiction,
which the court interpreted as currently relapsing or using
controlled substances. In its oral ruling, the court also pointed to
the drug paraphernalia in Holland’s purse as evidence that she
was currently using drugs. The court entered a judgment of
conviction on all three counts.
¶6 	Holland appeals.
ISSUE AND STANDARD OF REVIEW
¶7 	Holland initially raised three issues on appeal, contending
that the evidence presented at trial was insufficient to prove
three elements beyond a reasonable doubt: (1) that the brass
knuckles were a “dangerous weapon” as defined in Utah Code
section 	76-10-501(6); 	(2) 	that 	the 	black 	kit 	constituted 	drug
paraphernalia under the factors in Utah Code section 58-37a-4;
and 	(3) 	that 	she 	was 	an 	“unlawful 	user 	of 	a 	controlled
substance,” 	restricted 	from 	possessing 	a 	dangerous 	weapon
under Utah Code section 76-10-503(1)(b)(iii).
¶8 	The first two issues were tried to the jury. At trial,
Holland 	did 	not 	challenge 	the 	sufficiency 	of 	the 	evidence
supporting the jury’s verdict. Generally, “a defendant must raise

State v. Holland
20170018-CA 	4 	2018 UT App 203
the sufficiency of the evidence by proper motion or objection to
preserve the issue for appeal.” State v. Holgate, 2000 UT 74, ¶ 16,
10 P.3d 346. Because Holland did not challenge the sufficiency of
the evidence supporting the jury’s verdict below, she must
establish an exception to the preservation rule. See State v.
Johnson, 2017 UT 76, ¶¶ 18–19, 416 P.3d 443 (recognizing “three
distinct 	exceptions 	to 	preservation: 	plain 	error, 	ineffective
assistance 	of 	counsel, 	and 	exceptional 	circumstances,” 	and
explaining that “[w]hen an issue is not preserved . . . [the] party
seek[ing] to raise it on appeal . . . must establish the applicability
of one of these exceptions”). As Holland acknowledges, she has
not done so. Accordingly, we do not reach those issues.
¶9 	But the third element—whether Holland was an unlawful
user of a controlled substance—was tried to the bench. Unlike
challenges to a jury verdict, a defendant need not file a separate
motion or make a separate objection to challenge the sufficiency
of the evidence supporting the court’s factual findings in a bench
trial. See State v. Larsen, 2000 UT App 106, ¶ 9 n.4, 999 P.2d 1252;
see also Utah R. Civ. P. 52(a)(3). Accordingly, this issue was
preserved for our review. “When reviewing a bench trial for
sufficiency of the evidence, we must sustain the [district] court’s
judgment unless it is against the clear weight of the evidence, or
if we otherwise reach a definite and firm conviction that a
mistake has been made.” State v. Bingham, 2015 UT App 103, ¶ 8,
348 P.3d 730 (quotation simplified).
ANALYSIS
¶10 	Holland contends that the State failed to present sufficient
evidence to convict her of possession of a dangerous weapon by
a restricted person. To convict on this charge, the State was
required to prove beyond a reasonable doubt that Holland
intentionally or knowingly possessed a dangerous weapon and
that she was a Category II restricted person, which includes “an

State v. Holland
20170018-CA 	5 	2018 UT App 203
unlawful 	user 	of 	a 	controlled 	substance.” 	Utah 	Code 	Ann.
§ 76-10-503(1)(b)(iii), 	(3)(b) 	(LexisNexis 	2017). 	As 	explained
above, see supra ¶ 8, Holland did not preserve her challenge to
the 	jury’s 	findings 	that 	the 	brass 	knuckles 	constituted 	a
dangerous weapon or that she was intentionally or knowingly in
possession of that weapon. Therefore, we consider only whether
there was sufficient evidence to support the district court’s
finding that Holland was a restricted person based on her status
as an unlawful user of a controlled substance. Holland argues
that the State failed to satisfy this element because “there was no
evidence proving that [she] used a controlled substance with any
regularity or even proximate to her alleged possession of a
dangerous weapon.”
¶11 	Although the statute does not define “unlawful user,” the
Utah Supreme Court recently interpreted the term in State v.
Garcia, 2017 UT 53, 424 P.3d 171. In Garcia, the defendant argued
that the term “unlawful user” should be narrowly construed to
require “a person to be actually using a controlled substance at
the time he or she is in possession of the [dangerous weapon].”
Id. ¶¶ 58–59 (quotation simplified). Our supreme court explicitly
rejected that interpretation, reasoning that the relevant statute
“does not forbid possession of a firearm while unlawfully using
a controlled substance[,]” but it “prohibits unlawful users of
controlled 	substances 	from 	possessing 	firearms.” 	Id. 	¶ 	60
(quotation 	simplified). 	The 	court 	instead 	defined 	“unlawful
user” as someone who “use[s] with regularity and in a time
period reasonably contemporaneous with the possession of a
firearm.” Id. ¶ 61. Under this definition, the court determined
that there was sufficient evidence for the jury to conclude that
the defendant was indeed an unlawful user. Id. ¶ 65. The
evidence against the defendant consisted of his admissions to
police that he began using cocaine in 2006 and that he does “a lot
of cocaine like sometimes” because he gets “real paranoid” when
he is off it. Id. ¶ 12. When an officer expressed surprise that he

State v. Holland
20170018-CA 	6 	2018 UT App 203
would both use and deal drugs, the defendant responded, “[I]t’s
just my heart and soul is into this shit man[.]” Id.
¶12 	Similarly, 	Holland’s 	statements 	support 	the 	district
court’s 	finding 	that 	she 	was 	an 	“unlawful 	user.” 	Holland
admitted to the officer that she had a drug addiction, suggesting
that she used a controlled substance with some regularity. She
also stated that she “is a drug user” and was having problems
with her addiction. Much like the statements in Garcia, Holland’s
references to her drug use were phrased in the present tense,
supporting the district court’s finding that Holland’s drug use
was current and ongoing.
¶13 	Under 	Garcia, 	Holland’s 	admissions 	alone 	would 	be
sufficient 	to 	support 	a 	finding 	that 	she 	used 	drugs 	“with
regularity and in a time period reasonably contemporaneous
with the possession of a firearm.” See id. ¶ 61. But here, the
district court heard additional evidence to bolster the conclusion
that Holland was a current drug user. At the time of her arrest,
Holland was carrying a black kit containing a pick commonly
used for drugs and two spoons covered with brown residue.
This evidence supported the jury’s verdict that Holland was in
possession of drug paraphernalia at the time of her arrest. As the
district court recognized, the fact that Holland carried drug
paraphernalia 	was 	further 	evidence 	that 	her 	drug 	use 	was
ongoing and reasonably contemporaneous to her possession of a
dangerous weapon. In addition, the arresting officer testified
that, 	based 	on 	“the 	way 	she 	looked 	that 	day” 	and 	her
“demeanor,” Holland “appear[ed] to be currently struggling”
with 	drug 	addiction. 	Given 	Holland’s 	own 	statements, 	her
contemporaneous possession of drug paraphernalia, and the
arresting officer’s observations, the evidence was sufficient to
support the district court’s finding that Holland was an unlawful
user of a controlled substance prohibited from possessing a
dangerous weapon.

State v. Holland
20170018-CA 	7 	2018 UT App 203
CONCLUSION
¶14 	We conclude that there was sufficient evidence for the
district court to find beyond a reasonable doubt that Holland
was an unlawful user of a controlled substance. Accordingly, we
affirm her conviction for possession of a dangerous weapon by a
restricted person.