2017 UT App 179

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

THOMAS J. VU,

Appellant.

Opinion

No. 20151075-CA

Filed September 21, 2017

Third District Court, West Jordan Department

The Honorable L. Douglas Hogan

No. 141400723

Teresa L. Welch, Attorney for Appellant

Sean D. Reyes , Jennifer Paisner Williams, and 

Marian Decker, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Thomas J. Vu appeals his convictions for possession of a 

controlled substance with intent to distribute, a second degree 

felony, see Utah Code Ann. §§ 58-37-4(2)(b)(iii)(B), -8(1)(a)(iii),

-8(1)(b)(i) (LexisNexis 2016), and possession of a firearm by a 

restricted person, also a second degree felony, see id. § 76-10-

503(2)(a) (2012). Vu challenges his convictions, arguing that his 

trial counsel was ineffective, that the trial court erroneously 

admitted evidence of controlled purchases, and that there was 

insufficient evidence that he constructively possessed both a 

controlled substance and a firearm. We affirm.

¶2 Over the course of six weeks, a detective supervised five 

controlled purchases of methamphetamine from Vu using a 
State v. Vu

20151075-CA 2 2017 UT App 179

confidential informant.1 Prior to each purchase, the confidential 

informant called Vu to arrange a transaction while the detective 

monitored the conversation.

¶3 Four of the five controlled purchases took place at the 

same apartment complex, and three of them occurred in the 

same apartment. The other controlled purchase took place at a 

gas station, where the detective observed Vu driving a Nissan 

Altima. During these transactions, the confidential informant 

witnessed Vu smoke methamphetamine, saw Vu with an 

“abnormal amount of U.S. currency,” and noticed that Vu 

possessed a handgun, which was hidden behind a panel 

underneath the center console of the Altima.

¶4 Based on this information, the detective obtained a search 

warrant for the three-buy apartment and the Altima. The 

apartment belonged to a woman, who told officers that Vu had 

been staying at the apartment for “a couple of months.” 

Similarly, Vu was not the registered owner of the Altima. 

Instead, the registered owner informally leased it to Vu.

¶5 When officers searched the apartment, five people, 

including Vu, were inside it, two of whom had outstanding 

warrants. The officers found Vu alone in a bedroom. He 

appeared to be high on methamphetamine and “very out of it.”

On the floor next to him was a black pouch containing three 

plastic bags with a total of thirty-one grams of 

methamphetamine.2In that same room, officers found a bag of 

 

1. In exchange for her assistance, the State dropped felony fraud 

and forgery charges pending against the confidential informant.

2. The detective testified at trial that this was a distributable 

amount.
State v. Vu

20151075-CA 3 2017 UT App 179

marijuana, mail addressed to Vu,3 a casino player’s card in Vu’s 

name, and men’s clothing in the closet. Elsewhere in the 

apartment, officers discovered documents belonging to other 

individuals and a ledger containing a series of numbers. 

¶6 Regarding the Altima, officers had attached a tracking 

device to the vehicle and noted that it was driven to and from 

the apartment in “a consistent pattern.” The detective and other 

officers also conducted physical surveillance on the vehicle and 

saw Vu driving it on numerous occasions. When the officers 

ultimately searched the vehicle, they discovered a handgun on 

the floor behind the front center console—the same place where 

the confidential informant claimed to have seen a gun. Vu was 

not the registered owner of the handgun, nor had it been 

reported stolen. The officers also found an airsoft gun4in the 

back of the car. 

¶7 Vu was charged with one count of possession of a firearm 

by a restricted person, one count of possession of a controlled 

substance with intent to distribute (methamphetamine), and one 

count of possession of a controlled substance (marijuana). At 

trial, Vu challenged the admissibility of the confidential 

informant’s testimony regarding the controlled purchases. The 

trial court overruled Vu’s objection and admitted the testimony. 

Afterward, the parties stipulated that Vu was a “Category I

restricted person,” obviating the need for the State to present 

evidence that Vu was a convicted felon. The trial court accepted 

the stipulation and stated that the court would “include an 

 

3. The address on Vu’s mail did not match the apartment’s 

address.

4. Airsoft guns are replicas of firearms that use compressed air to 

shoot “spherical non-metallic pellets.” Airsoft, YourDictionary,

http://www.yourdictionary.com/airsoft [https://perma.cc/7RV3-

CR6A].
State v. Vu

20151075-CA 4 2017 UT App 179

instruction for the jury on what to do with the stipulated fact.” 

An instruction referring to Vu as a “Category I restricted person” 

was eventually presented to the jury without objection from Vu. 

Following a two-day trial, the jury convicted Vu of possession of 

a controlled substance with intent to distribute and possession of 

a firearm by a restricted person. But the jury acquitted Vu of the 

marijuana possession charge. The trial court sentenced Vu to two 

concurrent, indeterminate prison terms of one to fifteen years. 

Vu appeals.

¶8 Vu first argues that his trial counsel performed deficiently 

by not requesting a separate trial on the firearms charge. “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, which we consider de novo. Alternatively, he 

contends it was plain error for the trial court not to have ordered 

separate trials sua sponte.

¶9 Vu next contends that the trial court erroneously admitted 

evidence of the controlled purchases by the confidential 

informant. “Appellate courts review a trial court’s decision to 

admit character evidence and prior bad acts under an abuse of 

discretion standard.” State v. Leber, 2009 UT 59, ¶ 12, 216 P.3d 

964.

¶10 Finally, Vu argues that the State did not present sufficient 

evidence to prove that he constructively possessed a controlled 

substance with the intent to distribute it or a firearm. “The 

standard of review for a sufficiency claim is highly deferential to 

a jury verdict.” State v. Workman, 2005 UT 66, ¶ 29, 122 P.3d 639. 

“[W]e review the evidence and all inferences which may 

reasonably be drawn from it in the light most favorable to the 

verdict of the jury.” State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 

94.

¶11 Vu first argues that he was denied a fair trial because the 

firearm charge was not tried separately from the possession 

charges. As a result, Vu maintains that he was prejudiced 
State v. Vu

20151075-CA 5 2017 UT App 179

because the jury was informed of his restricted status. Although 

Vu concedes that this argument was not preserved for appeal, he 

argues that review is warranted based on plain error and 

ineffective assistance of counsel.

¶12 “To demonstrate plain error, a defendant must establish 

that ‘(i) [a]n error exists; (ii) the error should have been obvious 

to the trial court; and (iii) the error is harmful, i.e., absent the 

error, there is a reasonable likelihood of a more favorable 

outcome for the appellant[.]’” State v. Holgate, 2000 UT 74, ¶ 13, 

10 P.3d 346 (first alteration in original) (quoting State v. Dunn, 

850 P.2d 1201, 1208–09 (Utah 1993)).

¶13 Vu has not satisfied the second prong of the plain error 

test, namely, that the claimed error should have been obvious to 

the trial court. To establish obviousness of an error, the appellant 

“must show that the law governing the error was clear at the 

time the alleged error was made.” State v. Dean, 2004 UT 63, ¶ 16, 

95 P.3d 276. “Thus, an error is not obvious if ‘there is no settled 

appellate law to guide the trial court.’” State v. Davis, 2013 UT 

App 228, ¶ 32, 311 P.3d 538 (quoting State v. Ross, 951 P.2d 236, 

239 (Utah Ct. App. 1997)).

¶14 Vu has not directed us to any authority to support his 

argument that Utah precedent “mandated the bifurcation of the 

possession of a firearm by a restricted person charge.” In fact, 

the only case Vu cites in relation to bifurcation in a case with a 

weapons charge is State v. Reece, 2015 UT 45, 349 P.3d 712, where 

a trial court elected to try a weapons charge separately from 

other charges. Id. Although the Utah Supreme Court approved 

of the trial court’s bifurcation in that case, it did not go so far as 

to require bifurcation every time a restricted defendant is 

charged with both possession of a firearm and another crime. 

Additionally, the Reece court noted that the defendant was not 

prejudiced because the bifurcation “prevented the jury from ever 

learning that [the defendant] was a convicted felon.” Id. ¶ 19. 
State v. Vu

20151075-CA 6 2017 UT App 179

Here, trial counsel’s stipulation had substantially the same effect, 

as the jury was never informed of Vu’s felony conviction.5

¶15 In sum, because Utah law does not mandate a separate 

trial of a weapons charge, we cannot say that any error the trial 

court made was obvious. We therefore conclude that the trial 

court did not plainly err when it did not bifurcate Vu’s weapons 

charge and his drug charges into different proceedings.

¶16 Vu also contends that he is entitled to relief based on 

ineffective assistance of counsel. “To succeed on a claim of 

ineffective assistance of counsel, a defendant must show both 

‘that counsel’s performance was deficient’ and ‘that the deficient 

performance prejudiced the defense.’” State v. Edgar, 2017 UT 

App 53, ¶ 9, 397 P.3d 670 (quoting Strickland v. Washington, 466 

U.S. 668, 687 (1984)).

 

5. While insisting that his drug and weapons charges should 

have been tried separately, within the context of his single trial 

Vu has not shown that his trial counsel had “no conceivable

tactical basis” for stipulating to his restricted status. See State v. 

Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis omitted) (citation

and internal quotation marks omitted). To begin with, there are 

numerous reasons an individual could be restricted from 

possessing a firearm. See Utah Code Ann. § 76-10-503 

(LexisNexis 2012). But more to the point, absent the stipulation

the State would have presented evidence that Vu was a 

convicted felon. With the stipulation, the jury did not hear any 

details regarding Vu’s conviction, nor was it informed of the 

conviction itself. Moreover, the stipulation played into defense 

counsel’s trial strategy because, in his closing argument, he 

referred to Vu’s restricted status for the purpose of appearing 

candid and forthright with the jury, telling the jury “we don’t 

hide the ball from you” and pointing to the disclosure of Vu’s 

restricted status as an example.
State v. Vu

20151075-CA 7 2017 UT App 179

¶17 No valid purpose seems to have been served by counsel’s 

decision not to request bifurcation of the drug and weapons

charges. Still, even assuming this was deficient performance on 

the part of Vu’s trial counsel, Vu has not demonstrated that this 

deficient performance prejudiced him. After all, the jury did not 

hear any of the details concerning Vu’s prior felony conviction. It 

did not even learn that he had a prior felony conviction. While 

learning of Vu’s restricted status without additional explanation

could cause the jury to speculate as to the reason behind it, a 

mere possibility of speculation is not sufficient to demonstrate 

prejudice. See Reece, 2015 UT 45, ¶ 75 (concluding that jurors 

could have inferred circumstances other than a prior criminal 

history as the reason the defendant was charged with a firearms 

violation). And while the evidence against him on two charges 

was overwhelming, see State v. Alfatlawi, 2006 UT App 511, ¶ 30, 

153 P.3d 804 (holding counsel’s ineffective assistance did not 

result in prejudice to defendant because evidence of guilt was 

overwhelming), the discerning jury took care in applying the 

court’s instructions to the evidence and acquitted him of a third 

charge, further dispelling the suggestion that the jury was 

unduly influenced by the references to Vu’s status as a restricted 

person. Thus, we conclude that Vu has not demonstrated that 

counsel’s failure to request bifurcation prejudiced him. 

¶18 Vu next contends that the trial court “committed 

reversible error in admitting improper prejudicial character 

evidence of five controlled buys between Vu and a confidential 

informant.”6 Rule 404(b) of the Utah Rules of Evidence instructs 

 

6. Vu also contends that “the State did not prove by a 

preponderance that the controlled buys occurred,” claiming that 

the testimony of the confidential informant was unreliable 

because she was a drug addict and was convicted of numerous 

crimes, including mail fraud, identity fraud, forgery, and 

attempted use of a financial transaction card. Although the 

confidential informant’s credibility could surely be questioned, 

(continued...)
State v. Vu

20151075-CA 8 2017 UT App 179

that “[e]vidence of a crime, wrong, or other act is not admissible 

to prove a person’s character in order to show that on a 

particular occasion the person acted in conformity with the 

character.” Utah R. Evid. 404(b)(1). Evidence of bad acts may be 

admitted, however, for other noncharacter purposes, so long as 

it is not “being offered . . . to prove bad character or to show that 

a person acted in conformity with that character.” State v. 

Pullman, 2013 UT App 168, ¶ 31, 306 P.3d 827 (citation and 

internal quotation marks omitted). See Utah R. Evid. 404(b)(2).

¶19 To demonstrate that Vu possessed a controlled substance 

with intent to distribute, the State was, of course, required to 

establish that Vu intended to distribute the methamphetamine. 

See State v. Fox, 709 P.2d 316, 318 (Utah 1985) (“A conviction for 

possession of a controlled substance with intent to distribute 

requires proof of two elements: (1) that defendant knowingly 

and intentionally possessed a controlled substance, and (2) that 

defendant intended to distribute the controlled substance to 

another.”). Evidence of the controlled purchases established that 

Vu, on three occasions, sold methamphetamine to the 

confidential informant from the same apartment where police 

later discovered him next to a distributable amount of 

methamphetamine. The evidence also revealed that Vu had sold 

methamphetamine to the confidential informant on another two 

occasions. Because evidence of prior bad acts may be admitted 

 

(...continued)

the detective corroborated much of the information that she 

provided. Additionally, “the jury serves as the exclusive judge of 

. . . the credibility of witnesses.” State v. Workman, 852 P.2d 981, 

984 (Utah 1993). Accord State v. Prater, 2017 UT 13, ¶ 31, 392 P.3d 

398. The jury was aware of the charges that were dropped 

against the confidential informant, and Vu had ample 

opportunity to attack her credibility during cross-examination 

by questioning her about her deal with the State, her prior 

convictions, and her drug addiction.
State v. Vu

20151075-CA 9 2017 UT App 179

for any noncharacter purpose, we conclude the trial court did 

not err, much less abuse its discretion, when it admitted 

evidence of Vu’s previous drug sales to help establish his intent

to distribute the methamphetamine found in his close 

proximity.

7

¶20 Finally, Vu argues that there was insufficient evidence he

“constructively possessed either a controlled substance with the 

intent to distribute it or a firearm on the day the search warrant 

was executed.” We reverse a criminal conviction for insufficient 

evidence “only when the evidence is so inconclusive or so 

inherently improbable that reasonable minds must have 

entertained a reasonable doubt that the defendant committed the 

crime.” State v. Goddard, 871 P.2d 540, 543 (Utah 1994) (citation 

and internal quotation marks omitted).

¶21 Vu first contends that the State failed to prove that the 

methamphetamine belonged to him, alleging that it could have 

belonged to any of the four other individuals in the apartment at 

the time the warrant was executed. “To find that a defendant 

had constructive possession of a drug or other contraband, it is 

necessary to 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.” Fox, 709 P.2d at 319. Although the 

 

7. For the same reason, we conclude that the probative value of 

this evidence was not substantially outweighed by its danger of 

unfair prejudice. See Utah R. Evid. 403. The evidence was highly 

probative, as it was offered to prove that Vu intended to 

distribute the methamphetamine in his possession. While this 

evidence was certainly prejudicial, it was not unfairly 

prejudicial—it did not have “an undue tendency to suggest

decision on an improper basis.” See Woods v. Zeluff, 2007 UT App 

84, ¶ 7, 158 P.3d 552 (citation and internal quotation marks

omitted).
State v. Vu

20151075-CA 10 2017 UT App 179

apartment was not rented to Vu, the woman who leased the 

apartment informed the detective that Vu had been staying at 

that apartment for a “couple of months,” and, based on the 

information obtained from the tracking device installed on the 

Altima, it is where Vu spent most of his nights.

¶22 When officers executed the warrant, they found a

distributable amount of methamphetamine next to Vu in a room 

in which he was the only occupant. See id. at 320 (“Where one 

possesses a controlled substance in a quantity too large for 

personal consumption, the trier of fact can infer that the 

possessor had an intent to distribute.”). At that same time, Vu

appeared to be high on methamphetamine. The room also 

contained Vu’s mail, a casino player’s card in his name, and 

men’s clothing in the closet. Most importantly, Vu had sold 

methamphetamine to the confidential informant three times 

from that same apartment. This is an adequate basis from which

the jury could infer that Vu exercised dominion and control over 

the drug. See id. at 319 (listing factors that support a finding of 

constructive possession, while noting that constructive 

possession “depends upon the facts and circumstances of each 

case”). When viewing the evidence in the light most favorable to 

the verdict, we cannot say that the jury’s inference was “so 

inherently improbable” as to require reversal. See Goddard, 871 

P.2d at 543 (citation and internal quotation marks omitted).

¶23 Vu also contends that there is insufficient evidence to 

support the jury’s conclusion that he possessed a firearm. 

Specifically, Vu claims the evidence did not establish that he

occupied the vehicle exclusively or that he was aware of the 

firearm’s presence. But the State was required to establish only 

that Vu had constructive possession of the firearm, not that he 

had exclusive possession of the vehicle. See Fox, 709 P.2d at 319. 

The officers personally observed Vu driving the Altima on 

multiple occasions, and they also used a tracking device to 

monitor the vehicle as it was driven in “a consistent pattern” to 

and from the apartment complex where Vu was staying. The 
State v. Vu

20151075-CA 11 2017 UT App 179

confidential informant also saw Vu installing a new sound 

system in the vehicle—an action typical of one who exercises

dominion and control over a vehicle but atypical of one who

only occasionally borrows it. On that same occasion, the 

confidential informant witnessed Vu remove drugs from behind 

the center console, and she saw that the drugs had been

alongside a firearm. This was the same location where officers 

later discovered a firearm. Again, while these facts do not 

compel the conclusion that the firearm was Vu’s or that the 

firearm the confidential informant saw was this same handgun, 

when viewing the facts in a light most favorable to the verdict, 

we cannot say that the jury “must have entertained a reasonable 

doubt” that the handgun was in Vu’s constructive possession. 

See Goddard, 871 P.2d at 543 (citation and internal quotation 

marks omitted).

¶24 Affirmed.8

 

8. Because we conclude that the trial court did not err in any 

respect, we necessarily reject Vu’s argument that “cumulative 

errors require reversal.”