20 15 UT App 124



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Plaintiff and Appell ee ,

v. A POLINAR O JEDA , Defendant and Appell ant

.
Memorandum Decision N o. 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
, Attorney s

for Appellee

J UDGE G REGORY K. O RME authored th is Memorandum Decision
, in which J UDGES J AMES Z. D AVIS and J OHN A. P EARCE 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 paraph ernalia, a class B misdemeano r. 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 qu estion 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 ‚pay

owe‛ sheets; (5) the trial cour t erred in denying Defendant’s motion for mistrial; and (6) the cumulative error doctrine appliesState v. Ojeda

20130372

- CA 2 2015 UT App 124 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 ina dequately 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

an alysis 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

. S pecifically f ound 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 f irearm by a restricted person, and one count of p ossession of drug paraphernalia . A jury convicted Defendant o f 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 objec tive 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 d ifferent.‛ 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 o f lack of sufficient prejudice,’ we will do so wi thout analyzing whether counsel’ s performance was prof essionally unreasonable. ‛State v. Ojeda

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, Pos session, 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 complain s 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.

A ccording 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 tha t ‚ 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 purchase d , transfer red , possess ed
, or use d a firearm or had one under his custody or control. 1 To add an element to the jury instruction requiring the j ury 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 offere d 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 ‚firear m‛ 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 I nstruction No. 20 constituted ineffective

a ssistance 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 Ut ah 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 ha ve 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 elsew here 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 tri al 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 ‚k nowingly.‛ 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 schedu le I or II controlled substance,‛ it did so because it was cognizant of Jury Instruction No. 26. With our emphasis, t hat instructi on 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 posses s 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 requ ested 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 , 200 6 UT 26, ¶ 42, 135 P.3d 864. However, our case law provides some direction. For a defenda nt 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 ve rdict would have been different if a correct response had been given. 4

4

. See, e.g.
, State v. Davis , 2013 UT A pp 228, ¶¶ 100, 109, 311 P.3d 538 (affirming a conviction because the defendant had not demonstrated an y 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 harml ess because there was not ‚‘a reasonable likelihood that in its absence there would have been a more fav orable 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 t rial court’ s answer to the jury question was incor rect or misinformed the jury [and] failed to artic ulate any ci rcumstance 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. Defend ant 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 posse ssion 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 use r 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 u nder rule 404(b) of the Utah Rules of Evidence

. 5 B ut

(...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 whe n 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 fr amed 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 cor rectl y points out, the morphine evidence is
not problematic under rule 404(b), because that evidence was not germane to the weapons or methamphetamine charge s , 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 w ith 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 f ind 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‛ sheets 6 prejudiced him. Before trial, the court ruled that the alleged pay

owe sheets would be inadmissible at trial, and t he pay

- owe sheets themselves were not admitted into evidence . B ut 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 & S wapp, 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 prod uct 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 an y 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 sheet s and did not draw attention to the reference. During the second officer’s testimony , defense counsel promptly objected and the o bjection 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 prej udice 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 elemen t s 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 un availing
, and we affirm his convictions.