2018 UT App 226

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DANNY ROBERT KARREN,

Appellant.

Opinion

No. 20150020-CA

Filed December 13, 2018

Fifth District Court, St. George Department

The Honorable G. Michael Westfall

No. 131501806

Nicolas D. Turner, Attorney for Appellant

Sean D. Reyes and Nathan D. Anderson, Attorneys

for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which 

JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.

HAGEN, Judge:

¶1 Danny Robert Karren appeals his convictions for 

possession or use of methamphetamine, possession or use of 

marijuana, and possession of drug paraphernalia. Karren argues 

that the district court erred by denying his request for an 

innocent possession jury instruction. Relying on State v. Miller, 

2008 UT 61, 193 P.3d 92, Karren contends that he was entitled to 

an instruction on innocent possession because he was charged 

with a possession crime. Because Karren’s argument 

misinterprets the holding in Miller and because the evidence in 

the record does not support an innocent possession instruction, 

we affirm the district court’s denial of his request. 
State v. Karren

20150020-CA 2 2018 UT App 226

¶2 Karren also contends that his trial counsel provided 

ineffective assistance by failing to timely file certain pre-trial 

motions. Without addressing whether trial counsel’s failure to

timely file motions constituted deficient performance, we hold 

that Karren has failed to carry his burden of showing prejudice. 

BACKGROUND1

¶3 After allegedly lighting a neighbor’s car on fire, Karren’s 

roommate and his girlfriend returned to the apartment they 

shared with Karren. There the two gathered “anything and 

everything they could,” spoke briefly with Karren, and fled the 

apartment, leaving Karren behind. Sometime early the next 

morning, Karren smoked methamphetamine. Around the same 

time, Karren’s roommate contacted Karren to let him know that 

the police might come to their apartment and that he left some 

things he needed Karren to bring to him. Karren agreed to 

deliver to a local motel a glass marijuana pipe, which belonged 

to the roommate’s girlfriend, and a black backpack he retrieved 

from the roommate’s bedroom. Karren placed the glass pipe in 

the backpack and drove to the motel in his van. When he 

arrived, Karren moved the backpack to the backseat of the van 

and fell asleep.

¶4 Shortly thereafter, a police officer responding to a call 

from a motel employee found Karren asleep in his vehicle. While 

he was standing outside of the vehicle looking in at Karren, the

officer observed a large metal spoon with white residue lying on 

the passenger seat. Based on his training and experience, the

officer recognized that the white residue was methamphetamine 

and that the spoon had been used to heat methamphetamine.

 

1. We recite the facts in the light most favorable to the jury’s 

verdict, presenting conflicting evidence only as necessary to 

understand the issues on appeal. See State v. Bond, 2015 UT 88, 

¶ 3 n.2, 361 P.3d 104.
State v. Karren

20150020-CA 3 2018 UT App 226

¶5 The officer woke Karren and asked him to get out of the 

van. After exiting the vehicle, Karren provided the officer with 

his name and date of birth and the officer ran Karren’s name 

through a government database and discovered that Karren had 

several warrants for his arrest. The officer read Karren his 

Miranda2 rights, placed him under arrest, and questioned him 

about the white residue on the spoon. Karren replied that it was 

“meth.” The officer also questioned Karren about when he last 

used “illegal drugs,” to which Karren replied that it had been 

“approximately four hours before [their] encounter.” Karren 

admitted he had also injected methamphetamine into his arm 

and the residue on the spoon was from heating the 

methamphetamine for injection. 

¶6 Next, the officer asked Karren if there were any other 

drugs or drug paraphernalia in the vehicle. Karren answered 

affirmatively, directing the arresting officer to the black 

backpack in the backseat of the van that Karren admitted 

contained “a meth pipe, some syringes, a baggie of meth, and a 

marijuana pipe.” When the officer asked if the items belonged to 

Karren, he answered, “Well, they’re in my vehicle, aren’t they?”

In response to the arresting officer’s questions, Karren also 

explained “that a crime happened earlier involving his 

roommate and that he thought the cops were going to come into 

his house, and so he loaded up some belongings inside his 

house, drove to the motel, and . . . fell asleep.” Then Karren 

disclosed that the drugs in the backpack actually belonged to his 

roommate. 

¶7 After questioning Karren outside the vehicle, the officer

searched the vehicle and recovered the spoon with white residue 

 

2. Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), every 

individual “in custody or otherwise deprived of his freedom of 

action in any significant way” must be advised of his rights 

against self-incrimination under the Fifth Amendment to the 

United States Constitution. Id. at 445, 478–79.
State v. Karren

20150020-CA 4 2018 UT App 226

from the passenger seat, a digital scale from the floor between 

the front seats, and the black backpack from behind the 

passenger seat. He searched the inside the backpack and 

discovered a second spoon with white residue on it, a glass 

methamphetamine pipe with white residue, a small plastic bag 

containing syringe caps and a crystal substance “consistent with 

that of methamphetamine,” and a glass pipe containing “a green 

leafy substance that was consistent with that of marijuana.” The 

green leafy substance later tested positive for marijuana and the 

crystal substance and white residue later tested positive for

methamphetamine. 

¶8 Based on Karren’s statements to the officer and the drugs 

and paraphernalia discovered in his van, the State charged 

Karren with possession or use of methamphetamine, see Utah 

Code Ann. §§ 58-37-8(2)(a)(i), 58-37-4 (LexisNexis Supp. 2018); 

possession or use of marijuana, see id.; and possession of drug 

paraphernalia, see id. § 58-37a-5(1).

¶9 Karren’s trial counsel filed several pre-trial motions as the

case progressed, including a motion for discovery, a motion to 

compel discovery, two motions for defense resources, a motion 

for an entrapment hearing, and a motion to continue Karren’s 

trial. Two days before trial, trial counsel filed a second motion to 

continue, which he orally renewed on the first morning of trial. 

In argument on that motion, counsel stated he was renewing the

motion to continue to “pursue at least three [other] motions.” 

¶10 First, trial counsel requested a continuance to prepare a 

request for a jury instruction about missing or contaminated 

evidence, arguing that testimony from a prior hearing revealed 

that a police officer took photographs of the items inside of 

Karren’s van. Because those photographs had not been 

produced, Karren requested a missing evidence jury instruction. 

¶11 Karren’s trial counsel then made a second motion,

arguing that some of Karren’s incriminating statements should 

be suppressed because the arresting officer conducted an 
State v. Karren

20150020-CA 5 2018 UT App 226

“unwarranted custodial interrogation.” Counsel stated that he 

believed that Karren was not given his Miranda rights before his 

driver license was taken and he was questioned. 

¶12 Finally, trial counsel moved to dismiss, alleging “selective 

prosecution or vindictive prosecution.” In making this 

argument, counsel conceded that he had not “really found the 

basis under the law for selective prosecution,” but he 

nevertheless felt he needed to make a record of the motion. He

also explained that Karren felt that “other defendants charged 

with similar . . . distribution cases, have been released to 

treatment, [and] seem to have better outcomes than what has 

been offered to him.” 

¶13 Ultimately, the district court judge denied the motion to 

continue, stating that, based on the evidence before the court, it 

appeared that “the motions that [defense counsel] identified . . . 

would be untimely and [it is unclear] how they would make any 

difference, even if the motions were to have been filed [in a 

timely fashion].”

¶14 At trial, the arresting officer testified that the black 

backpack and photographs he took of the drugs and 

paraphernalia he confiscated from Karren’s van were missing 

from evidence. In addition, another officer testified that he 

processed the evidence but did not recall processing a black 

backpack. Based on this testimony, the district court granted 

Karren’s request that the jury be instructed as to missing 

evidence. The jury was instructed that “the failure to preserve 

evidence by a party may give rise to an inference unfavorable to 

that party.” 

¶15 Near the end of trial, Karren’s trial counsel also renewed 

the motion to suppress. Karren testified that he was not given 

Miranda warnings before the officer questioned him about the 

residue on the metal spoon found in the passenger seat of his 

van. Based on this testimony, the district court agreed to 

entertain the renewed motion to suppress outside the jury’s 
State v. Karren

20150020-CA 6 2018 UT App 226

presence. The State recalled the arresting officer, who testified

that he gave Karren his Miranda warnings before questioning 

him. After argument on the motion, the district court ruled that 

it “believe[d] the officer’s testimony with regard to what 

happened” and it “just doesn’t make sense . . . [that] it would 

happen the way that [Karren] describes it.” Accordingly, the 

court denied the motion to suppress.

¶16 After closing arguments, trial counsel also requested an 

innocent possession jury instruction, which the court denied. 

The jury found Karren guilty of all charges. 

¶17 Karren appeals. 

ISSUES AND STANDARDS OF REVIEW

¶18 Karren raises two issues on appeal.3 First, Karren 

contends that the district court erred in denying his request to 

instruct the jury as to innocent possession. “We review a district 

court’s refusal to give a jury instruction for abuse of discretion.” 

Miller v. Utah Dep’t of Transp., 2012 UT 54, ¶ 13, 285 P.3d 1208. 

“Abuse of discretion occurs only if it can be said that no 

reasonable person would take the view adopted by the district 

court.” State v. Sanchez, 2017 UT App 229, ¶ 2, 409 P.3d 156 (per 

curiam) (quotation simplified). 

¶19 Second, Karren contends that his trial counsel provided 

ineffective assistance by failing to timely raise four pre-trial 

motions. Karren failed to preserve this claim below but we 

 

3. In his initial notice of appeal, Karren asserted three additional 

reasons that he believes his trial counsel provided ineffective 

assistance. Because Karren's appellate counsel was admittedly 

“unable to determine what [Karren] was referring to” in regards 

to these arguments and has otherwise failed to address them in 

the appellant’s brief, we decline to reach them.
State v. Karren

20150020-CA 7 2018 UT App 226

recognize an exception to the preservation rule for claims of 

ineffective assistance of counsel. See State v. Johnson, 2017 UT 76, 

¶ 19, 416 P.3d 443 (acknowledging an ineffective assistance of 

counsel exception to the preservation rule). “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. Robertson, 2018 

UT App 91, ¶ 21, 427 P.3d 361 (quotation simplified). 

ANALYSIS

I. Innocent Possession Instruction

¶20 Karren first contends that he was entitled to an innocent 

possession jury instruction. In general, “a defendant is entitled to 

have his legal theory of the case placed before the jury if it would 

not be superfluous to do so because of an absence of any 

evidence to support the theory.” State v. Piansiaksone, 954 P.2d 

861, 871 (Utah 1998) (quotation simplified). A defendant is not 

entitled to present his theory to the jury if there is no “basis in 

the evidence to support” it. State v. Kennedy, 2015 UT App 152, 

¶ 32, 354 P.3d 775. “The issue of whether the record evidence, 

viewed in its totality, supports the defendant’s theory of the case 

is primarily a factual question,” that is “entitled to more 

deference than any other kind of determination.” State v. Berriel, 

2013 UT 19, ¶ 9, 299 P.3d 1133.

¶21 In State v. Miller, 2008 UT 61, 193 P.3d 92, the Utah 

Supreme Court held that the possession of a controlled 

substance statute, Utah Code section 58-37-8(2)(a)(i), “implicitly 

includes the defense of innocent possession.” Id. ¶ 21. The 

defense applies when “(1) the controlled substance was attained 

innocently and held with no illicit or illegal purpose, and (2) the 

possession of the controlled substance was transitory; that is, 

that the defendant took adequate measures to rid himself of 
State v. Karren

20150020-CA 8 2018 UT App 226

possession of the controlled substance as promptly as reasonably 

possible.” Id. ¶ 22. 

¶22 In Miller, the court identified one factual scenario in 

which a defendant would be entitled to an innocent possession 

instruction. The defendant in that case was charged with 

possessing prescription oxycodone and hydrocodone pills. Id.

¶ 7. Both drugs were discovered in a pill bottle, which the 

defendant had placed in his pants pocket, with a prescription 

label bearing another person’s name. Id. ¶¶ 6–7. At trial, the 

defendant presented evidence that he discovered the pill bottle 

when some guests left his house and that he put it in his pocket 

to keep it out of reach of his children until he could return it to 

the person to whom it belonged. Id. ¶ 6. Our supreme court held 

that the district court should have granted the defendant’s 

request for an innocent possession jury instruction because “the 

term ‘possess,’ as it is used in section 58-37-8(2)(a)(i), excludes 

transitory possession of a controlled substance for the purpose of 

returning it to its lawful owner.” Id. ¶¶ 21, 24. The court’s 

holding presupposes a situation where there is a lawful owner to 

whom the drugs can be returned––in that case, the individual 

whose name was on the prescription label. 

¶23 Unlike in Miller, there was no lawful owner to whom 

Karren could return the marijuana and methamphetamine, two 

drugs that could not be prescribed or legally possessed in Utah.

4

Although Karren testified he was in possession of the drugs 

because he agreed to bring them to his roommate at the motel, 

no evidence in the record suggests that Karren’s roommate could 

lawfully possess such contraband. There was no evidentiary 

basis on which a jury could find that Karren possessed the 

 

4. The Utah legislature recently passed H.B. 3001, the Utah 

Medical Cannabis Act, which would legalize the possession of 

marijuana under limited circumstances. If signed into law, the 

Act would become effective on July 1, 2019. 
State v. Karren

20150020-CA 9 2018 UT App 226

controlled substances “with no illicit or illegal purpose” where 

his professed purpose was to deliver the drugs to an illegal user.

¶24 We do not read Miller to suggest that “temporary 

possession for the purpose of returning a controlled substance to 

its lawful owner” is the only circumstance in which the innocent 

possession defense would apply. Miller, 2008 UT 61, ¶ 19. But 

Karren has identified no evidence that would support an 

alternative theory of innocent possession, such as intent to 

dispose of the drugs to prevent harm to others or to turn them 

over to the proper authorities. Instead, Karren claims only that 

he was returning the drugs to his roommate. Under such 

circumstances, a defendant must point to some evidence to 

suggest he was returning the drugs to a person who could legally

possess them. Because there is no evidence to support such a 

theory in this case, the district court did not err in denying 

Karren’s request for an innocent possession jury instruction. 

II. Ineffective Assistance of Counsel

¶25 Karren’s second claim is that his trial counsel provided 

ineffective assistance by making untimely pre-trial motions. 

Specifically, Karren argues that his trial counsel failed to timely 

move for a continuance so that he would have an opportunity to 

file three other motions: a motion for a jury instruction relating 

to “missing photographs and fingerprint contamination,” a 

motion to suppress “based upon unwarranted custodial 

interrogation,” and a motion to dismiss “based upon selective or 

vindictive prosecution.”5In order to succeed on this claim,

 

5. It is unclear from Karren’s briefing on appeal whether he is 

arguing that his trial counsel provided ineffective assistance by 

failing to timely move to continue trial or if he is arguing that his 

trial counsel provided ineffective assistance by failing to timely 

make the motions that counsel claimed justified his motion to 

continue. For clarity, we address each of the four motions 

separately.
State v. Karren

20150020-CA 10 2018 UT App 226

Karren must show “both that his trial counsel performed 

deficiently . . . i.e., ‘that counsel’s representation fell below an 

objective standard of reasonableness,’” and that, had counsel 

performed sufficiently, “there is a ‘reasonable probability’ that 

the outcome of the trial would have been more favorable to 

him.” State v. Whitbeck, 2018 UT App 88, ¶ 35, 427 P.3d 381 

(quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). “A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. (quotation simplified). 

¶26 Although Karren bears the burden of showing both 

deficient performance and prejudice, “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.” State v. 

Lee, 2014 UT App 4, ¶ 13, 318 P.3d 1164 (quotation simplified). 

Here, Karren’s claim that his trial counsel provided ineffective 

assistance in failing to file timely pre-trial motions can be 

disposed of for lack of prejudice because each of the motions 

was either futile or entertained on the merits by the district 

court. We address each motion in turn.

A. Motion for Jury Instruction Related to Missing Evidence

¶27 First, Karren contends that his trial counsel provided 

ineffective assistance of counsel by making an untimely motion 

for “some kind of instruction to the jury that the lack of 

[fingerprint and photograph] evidence prejudices [Karren].” In 

making this argument, Karren neglects to acknowledge that the

district court did instruct the jury that “the failure to preserve 

evidence by a party may give rise to an inference unfavorable to 

that party.” Although the court initially denied as untimely trial 

counsel’s motion for a missing evidence instruction, Karren 

cannot show he was prejudiced by counsel’s failure to timely 

make the motion where the court eventually granted the relief 

requested. Because the jury was instructed regarding the missing 

evidence, Karren cannot show that but for counsel’s failure to 

timely make the motion for a jury instruction, “there is a 
State v. Karren

20150020-CA 11 2018 UT App 226

reasonable probability that the verdict would have been 

different.” See State v. Martinez-Castellanos, 2018 UT 46, ¶ 51, 428 

P.3d 1038.

B. Motion to Suppress

¶28 Second, Karren argues that his trial counsel provided 

ineffective assistance by failing to timely move to suppress the 

statements Karren made to the arresting officer on the basis that 

they were the result of “unwarranted custodial interrogation.” 

¶29 Although the district court initially declined to hear the 

untimely motion to suppress, Karren’s counsel renewed the 

motion after Karren testified at trial that the officer did not 

provide Miranda warnings until after he had taken Karren’s 

driver license and began questioning. Outside the presence of 

the jury, the district court heard further testimony on the issue 

from both the arresting officer and Karren. After hearing 

additional testimony on the issue, the district court denied 

Karren’s motion to suppress, stating that it “believe[d] the 

[arresting] officer’s testimony with regard to what happened.” 

¶30 Given that the court ultimately considered the motion to

suppress on the merits, trial counsel’s failure to raise the motion 

in a timely fashion did not prejudice Karren. Furthermore, 

Karren does not challenge the court’s denial of the motion to 

suppress nor does he argue that the result would have been 

different if his motion had been entertained before trial. As a 

result, Karren has failed to show that he was prejudiced by 

counsel’s failure to timely file the motion in the first instance.

C. Motion to Dismiss

¶31 Third, Karren argues that his trial counsel was ineffective 

in failing to timely make a motion to dismiss based on Karren’s 

concerns “that this case is an example of selective prosecution or 

vindictive prosecution.” In the context of ineffective assistance of 

counsel claims, “the failure of counsel to make motions or 
State v. Karren

20150020-CA 12 2018 UT App 226

objections which would be futile if raised does not constitute 

ineffective assistance.” State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 

52 (quotation simplified).

¶32 In order to show selective or discriminatory prosecution, 

a defendant must demonstrate that the State’s decision to 

prosecute was “deliberately based upon an unjustifiable 

standard such as race, religion, or other arbitrary classification” 

in violation of the Fourteenth Amendment Equal Protection 

Clause. State v. Geer, 765 P.2d 1, 3 (Utah Ct. App. 1988) (quoting 

Wayte v. United States, 470 U.S. 598, 608 (1985)). To make this 

showing, “the defendant must demonstrate that a prosecutorial 

policy result[ed] in a discriminatory effect, based on an unlawful 

classification.” Id. Generally, “as long as the prosecutor has 

probable cause to believe that an offense has been committed, 

the decision regarding whether to prosecute . . . rests entirely in 

the prosecutor’s discretion.” Id. (quotation simplified). 

¶33 Karren has not shown that the State’s prosecution 

violated the Equal Protection Clause or that the State 

deliberately abused its discretion in deciding to prosecute him. 

Indeed, defense counsel admitted in argument on the motion to 

dismiss that he “just need[ed] to make a record.” Although he

had researched Karren’s selective prosecution claims, he was not 

“sure [he had] seen the facts necessary to support such a 

motion.” Karren’s allegations of selective prosecution seem to be 

based entirely on his concern that “other defendants charged 

with similar . . . distribution cases, have been released to 

treatment, [and] seem to have better outcomes than what has 

been offered to him.” Karren cannot show he was prejudiced by 

his trial counsel’s failure to timely file the motion to dismiss

where nothing in the record suggests he would have prevailed 

on such an unsupported claim. 

D. Motion to Continue Trial

¶34 Finally, Karren argues that his trial counsel provided 

ineffective assistance by failing to timely move to continue trial. 
State v. Karren

20150020-CA 13 2018 UT App 226

Trial counsel moved for a continuance the morning of the first 

day of trial to “pursue at least three motions”—the motion for a 

jury instruction about missing evidence, the motion to suppress 

for failure to give Miranda warnings, and the motion to dismiss 

because of selective prosecution. Apart from those three 

motions, defense counsel made no other argument that the 

district court should grant Karren’s motion to continue. We have 

already addressed those motions and determined they were, 

respectively, granted, rejected by the district court on the merits, 

or otherwise futile. Because of this, Karren cannot show that but 

for counsel’s failure to timely make the motion to continue he 

would have received a better result at trial. 

¶35 Karren has not shown that he was prejudiced by his trial 

counsel’s failure to timely file pre-trial motions. Accordingly, he

has failed to show that his trial counsel provided ineffective 

assistance of counsel. 

CONCLUSION

¶36 We affirm the district court’s denial of Karren’s request to 

instruct the jury as to innocent possession because the evidence 

in the record does not support Karren’s argument that he 

innocently possessed methamphetamine and marijuana. In 

addition, we hold that Karren has not shown that his trial 

counsel provided ineffective assistance of counsel because he has 

failed to demonstrate he was prejudiced by trial counsel’s failure 

to timely file pre-trial motions. Accordingly, we affirm Karren’s 

convictions.