State v. Valencia

2015 UT App 285
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R YAN M. VALENCIA,
Appellant.
Memorandum Decision
No. 20140516-CA
Filed November 27, 2015
Second District Court, Ogden Department
The Honorable Joseph Bean
No. 131902339
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
S ENIOR JUDGE R USSELL W. BENCH authored this Memorandum
Decision, in which J UDGES J. F REDERIC VOROS J R . and K ATE A.
TOOMEY concurred.1
BENCH, Senior Judge:
¶1 	Ryan M. Valencia appeals his convictions for possession
of methamphetamine with intent to distribute and possession of
drug paraphernalia, arguing that his trial counsel performed
ineffectively by failing to move for a directed verdict. We affirm.
¶2 	Valencia asserts that the evidence at trial was insufficient
to support his convictions. However, because Valencia’s trial
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment 	as 	authorized 	by 	law. See 	generally Utah 	R. 	Jud.
Admin. 11-201(6).

State v. Valencia
20140516-CA 	2 	2015 UT App 285
counsel did not raise the sufficiency issue at trial by moving for a
directed verdict, Valencia asserts that he received ineffective
assistance of counsel. “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.”
State 	v. 	Clark, 	2004 	UT 	25, 	¶ 	6, 	89 	P.3d 	162. 	To 	establish
ineffective assistance of counsel, Valencia must demonstrate,
first, “that counsel’s performance was deficient, in that it fell
below 	an 	objective 	standard 	of 	reasonable 	professional
judgment,” and second, “that counsel’s deficient performance
was prejudicial—i.e., that it affected the outcome of the case.” See
State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v.
Washington, 466 U.S. 668, 687–88 (1984)).
¶3 	“Failing 	to 	file 	a 	futile 	motion 	does 	not 	constitute
ineffective assistance of counsel.” State v. Heywood, 2015 UT App
191, ¶ 48, 357 P.3d 565. Therefore, if the evidence was such that a
motion for a directed verdict would not have been granted, trial
counsel cannot be deemed to have performed deficiently.
¶4 	“When evaluating a motion for a directed verdict, the
court is not free to weigh the evidence and thus invade the
province of the jury, whose prerogative it is to judge the facts.”
State v. Montoya, 2004 UT 5, ¶ 32, 84 P.3d 1183 (citation and
internal quotation marks omitted). Rather, so long as the State
“has produced believable evidence on each element of the crime
from 	which 	a 	jury, 	acting 	reasonably, 	could 	convict 	the
defendant,” 	the 	court 	must 	deny 	the 	motion. 	Id. 	(internal
quotation marks omitted). “[E]lements needed to make out a
cause of action may be proven by direct and by circumstantial
evidence.” 	Id. 	¶ 	33 	(citation 	and 	internal 	quotation 	marks
omitted). Therefore, “[i]f there is any evidence, however slight or
circumstantial, which tends to show guilt of the crime charged or
any of its degrees, it is the trial court’s duty to submit the case to
the jury.” Id. (citation and internal quotation marks omitted).

State v. Valencia
20140516-CA 	3 	2015 UT App 285
¶5 	Valencia 	asserts 	that 	the 	State 	failed 	to 	introduce
sufficient evidence to support the possession elements of either
of the two crimes of which he was convicted. The evidence of
possession 	is 	largely 	circumstantial. 	However, 	it 	is 	not 	so
insubstantial 	that 	no 	jury, 	acting 	reasonably, 	could 	have
convicted Valencia.
¶6 	“Possession sufficient to sustain a conviction need not be
actual but may be constructive.” State v. Cardona-Gueton, 2012 UT
App 336, ¶ 8, 291 P.3d 847 (citation and internal quotation marks
omitted). “To establish constructive possession, the State must
prove that there was a sufficient nexus between the accused and
the drug to permit an inference that the accused had both the
power and the intent to exercise dominion and control over the
drug.” State v. Gonzalez-Camargo, 2012 UT App 366, ¶ 17, 293
P.3d 1121 (citations and internal quotation marks omitted); see
also Utah Code Ann. § 58-37-2(1)(ii) (LexisNexis 2012) (defining
“possession”). Factors relevant to this inquiry may include,
among other things, “ownership and/or occupancy of the . . .
vehicle where the drugs were found, presence of defendant at
the time drugs were found, defendant’s proximity to the drugs,
previous 	drug 	use, 	incriminating 	statements 	or 	behavior,
presence of drugs in a specific area where the defendant had
control, etc.” State v. Workman, 2005 UT 66, ¶ 32, 122 P.3d 639.
While occupancy “may not be enough to show constructive
possession 	by 	itself[,] 	. 	. 	. 	additional 	evidence, 	including
circumstantial evidence, that strengthens the nexus between . . .
occupancy and the contraband” may support “an inference of
possession.” State v. Ashcraft, 2015 UT 5, ¶ 20, 349 P.3d 664.
¶7 	In this case, the jury heard two phone calls made from a
cell phone belonging to a woman named Tiffany Booth to Craig
Green, a known drug dealer whose phone was being wiretapped
by the Weber Morgan Narcotics Strike Force. In the first call, a
woman, presumably Booth, offered to trade a cell phone for
some “D,” which an officer interpreted to mean “dope or drugs.”

State v. Valencia
20140516-CA 	4 	2015 UT App 285
In the second call, an unidentified male asked Green if he had
“three quarters of an ounce” and indicated that he had $600. An
officer testified that $600 was “consistent with what one could
pay for three quarters of an ounce for methamphetamine” and
that three quarters of an ounce is considered a “dealer quantity.”
The jury then heard a third call, in which Green called a phone
number later identified as Valencia’s and arranged to meet at a
gas station in Roy, Utah. The officer testified that the individual
talking on Valencia’s phone “appeared to [have] the same voice
or similar voice” as the unidentified male who had previously
called 	Green 	from 	Booth’s 	phone 	and 	that 	the 	call 	“was
definitely a continuation of the other two calls” made by Booth
and the unidentified male from Booth’s phone.
¶8 	Another officer testified that he followed Green to the gas
station, where he observed Booth and Valencia pull into the
parking lot next to Green’s vehicle and watched Valencia make a
hand-to-hand exchange with Green. Ultimately, when officers
pulled 	over 	Booth 	and 	Valencia’s 	vehicle, 	they 	discovered
methamphetamine on Booth’s person and a digital scale of the
kind “commonly used to weigh narcotics” in the passenger-side
glove compartment in front of where Valencia was sitting.
¶9 	Although the State did not present a witness to identify
Valencia’s voice, the evidence indicated that one of the calls was
made by Green to Valencia’s phone, that the voice on that call
was similar to the voice on the earlier call, and that Valencia met
Green in the place agreed to in the telephone discussion. This
circumstantial evidence supports a reasonable inference that
Valencia was the person on the phone who agreed to purchase
drugs from Green. Valencia’s agreement to purchase the drugs,
his hand-to-hand exchange with Green, and the later discovery
of the drugs in the possession of his travelling companion, taken
together, create a reasonable inference that Valencia possessed
the methamphetamine jointly with Booth. The inference that
Valencia 	and 	Booth 	were 	jointly 	involved 	in 	a 	scheme 	to

State v. Valencia
20140516-CA 	5 	2015 UT App 285
purchase methamphetamine in a “dealer quantity,” coupled
with Valencia’s proximity to the digital scale, also created a
reasonable inference that Valencia constructively possessed the
scale. Thus, the State presented believable evidence from which
the jury could have reasonably found the possession element on
both charges. Because this evidence was sufficient to support
Valencia’s convictions, the trial court could not have granted a
directed 	verdict 	on 	either 	charge 	and 	any 	motion 	defense
counsel might have made would have been futile. See State v.
Heywood, 2015 UT App 191, ¶ 48, 357 P.3d 565.
¶10 	Valencia points to evidence contradicting the inference of
possession, such as the fact that a police dog did not indicate on
his person, despite Valencia’s allegedly having handled the
methamphetamine; 	that 	the 	quantity 	of 	methamphetamine
found on Booth was more than the three quarters of an ounce
she and Valencia had allegedly agreed to purchase; that the
object in Valencia’s hand both before and after the hand-to-hand
exchange looked like it could be a cell phone; that officers
following the vehicle did not see Valencia transfer anything to
Booth; and that the State failed to explicitly identify Valencia as
the person on the other end of the calls with Green. While this
evidence certainly weakens the State’s case, the trial court is not
free to weigh the evidence in considering a motion for directed
verdict. See State v. Montoya, 2004 UT 5, ¶ 32, 84 P.3d 1183.
The question presented is not whether we can
conceive 	of 	alternative 	(innocent) 	inferences 	to
draw from individual pieces of evidence, or even
whether 	we 	would 	have 	reached 	the 	verdict
embraced by the jury. It is simply whether the
jury’s verdict is reasonable in light of all of the
evidence taken cumulatively, under a standard of
review 	that 	yields 	deference 	to 	all 	reasonable
inferences supporting the jury’s verdict.

State v. Valencia
20140516-CA 	6 	2015 UT App 285
Ashcraft, 2015 UT 5, ¶ 24. Thus, the evidence Valencia relies on
does 	not 	alter 	our 	conclusion 	that 	his 	convictions 	were
supported by sufficient evidence.
¶11 	Because the State presented sufficient believable evidence
from 	which 	the 	jury 	could 	have 	concluded 	that 	Valencia
constructively possessed the methamphetamine and the scale,
any 	motion 	for 	directed 	verdict 	would 	have 	been 	futile.
Accordingly, we reject Valencia’s argument that his counsel
performed ineffectively and affirm his convictions.