2015 UT App 124

THE 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 ‚payowe‛ sheets; (5) the trial court erred in denying Defendant’s 

motion for mistrial; and (6) the cumulative error doctrine applies
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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.‛
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20130372-CA 3 2015 UT App 124

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:
State v. Ojeda

20130372-CA 4 2015 UT App 124

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.
State v. Ojeda

20130372-CA 5 2015 UT App 124

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...)
State v. Ojeda

20130372-CA 6 2015 UT App 124

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. 
State v. Ojeda

20130372-CA 7 2015 UT App 124

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...)
State v. Ojeda

20130372-CA 8 2015 UT App 124

¶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...)
State v. Ojeda

20130372-CA 9 2015 UT App 124

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 payowe 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.‛ 
State v. Ojeda

20130372-CA 10 2015 UT App 124

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.
State v. Ojeda

20130372-CA 11 2015 UT App 124

¶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.