This opinion is subject to revision before final Publication in the Pacific Reporter

201 5 UT 5

IN T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————— S TATE OF U TAH
, Appellee

,

v.

S HANNON J ESS A SHCRAFT
, Appellan t.

———————

No. 20120306 Filed January 23 , 2015

——————— Third District, Salt Lake
The Honorable Denise P. Lindberg

No. 111906162

——————— Attorneys:

Sean D. Reyes, Att ’ y Gen.

, Brian L. Tarbet, Jeffrey S. Gray, Michelle M. Young, Asst. Att’ys Gen., Salt Lake City, for appellee

Joanna E. Landau, Kerri S. Priano, Salt Lake City, for appellant

——————— J USTICE L EE authored the opinion of the Cou rt, in which

C HIEF J USTICE D URRANT and J USTICE D URHAM joined.

J USTICE P ARRISH authored a dissent, in which

A SSOCIATE C HIEF J USTICE N EHRING joined.

———————

J USTICE L EE , opinion of the Court :
¶1 Shannon Ashcraft appeals his convictions of po s session of

a con trolled substance with intent to distribute, unlawful posse ssion of a dangerous weapon, and possession of drug paraphern alia. Ashcraft asserts that there was insufficient evidence to esta blish his possession of the contraband and, altern a tively, that his

c onviction should be reversed on the basis of prosecutorial mi sconduct at trial

. We disagree on both counts and accordingly a ffirm.S TATE v

. A SHCRAFT
Opinion of the Court

I

¶2 In August 2011, Sergeant Huggard, a Murray City p olice

officer , was patrolling a motel parking lot known for frequent drug activity. 1 On e night

, Huggard observed a tan Ford Ranger

truck with a distinctive black panel driving through the parking lot. From the license plates, Huggard determined that the truck belong ed to a man named Jus tin Sorenson. Huggard also disco vered that Sorenson had several outstanding warrants and a su spended driver ’ s license , and learned that he had been a suspect in a previous drug investig a tion.

¶3 Later, in the early morning hours, Huggard saw the truck again . The truck had a male driver and a female passenger. The driver pulled the truck in to the motel lot

, and both the driver and the passenger went into a m o tel room.

¶4 The next night, Huggard returned to the area to patrol again. He saw the tan truck again, with the same male driver and female passeng er

. He began to follow the truck but did not signal

or otherwise direct the driver to stop . A fter a while, the driver pulled over o n his own accord and waited for Huggard to a pproach

. Huggard asked the driver whether he was Sorenson . T he

driver answered in the negative. He then identified himself as

Shannon Ashcraft ; e x plained that he had borrowed the truck from Sorenson, who was in the hospital ; and admitted that he did not

have a valid driver’s li cense.

¶5 As for t he passenger , she identified herself as Apr il

Chavez . Chavez also indic ated that she did n o t have a valid l icense. Because neither Ashcraft nor Chavez was licensed to drive the truck, Huggard began impoundment pr o ceedings and called for backup , as well as a K9 unit

.

1 When reviewing a sufficiency of the evidence claim, we must

take the “evidence and all inferenc es which may reasonably be drawn from it in the light most favorable to the verdict of the j ury.” State v. Nielsen , 2014 UT 10, ¶ 30, 326 P.3d 645 (internal quot ation marks omitted). Thus, although Ashcraft disagrees with these

factual circumstances in som e respects, and in particular the d eductions to be made from them, we recite the version of the events supporting the j u ry’s verdict.

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Opinion of t he Court

¶6 During the impound process , Hug gard asked Ashcraft and

Chavez to exit the truck. As Chavez e x ited, a large, open bottle of alcohol fell from her lap. At th at point, Huggard asked As h craft and Chavez if they consented to be searched for drugs and wea pons . B oth agreed. During the search, Ashcraft appeared “very

nervous” and was “fidgeting around a lot

. ” Huggard “had a diff icult time ge t ting any kind of eye contact” with him. In the course of the search, Hu g gard discovered that Ashcraft was carrying a pocketknife with a “ brow n ish/black tar substance” on the blade.

He also found that Ashcraft was carr y ing a wallet containing $793

in cash. Huggard did not find drugs or wea p ons when searching

Chavez. After the search, Hu g gard allowed Chavez to take her belongings and leave.

¶7 Next, Huggard perfo rmed an inventory search of the veh icle pursuant to the impound. In the bed of the truck, tucked b etween the edge of the truck bed and a spare tire on the driver’s side, Huggard found a green zippered bag. He also noted that t he

rear window between the cab and bed was open. Huggard asked

Ashcraft to identify the owner of the bag

. Ashcraft responded that he didn’t know whose bag it was, and indicated

— before the bag was opened

— that Huggard “must have put the bag there.” Inside the bag, Huggard found thirty to forty baggies , some containing a “white crystal

- like substance” and some containing a “brown caked tar[

- ]like substance

, ” several bottles of pills, two digital scales, three glass pipes with white residue on them

, other drug

pa r aphernalia, and a pink stun gun with a charger

.

¶8 None of the contraband found in the bag was tested for fingerprints. And n one of the substances in the bags, in the pill bottles, or on the blade of Ashcraft’s pocketknife were conclusiv ely identified through laboratory testing

. Also, the K9 unit’s dete ction dog apparently did not alert on a sweep of the truck. Yet Huggard himself identified all of the substances in question

, based on his experience over several years as a narcotics o f ficer

.

¶9 Huggard testified that the “brown caked tar [

- ]like su bstance” on the blade of the knife and in some of the baggies w as consistent with heroin, based on the lo ok and smell of the su bstance. He also testified that he confirmed this conclusion by pe rforming a test using a field test kit , which generat ed a positive r esult for an opiate

. And h e identified the “white crystal

- like su bstance” in the other baggies as consistent with methamphet a mine,

3S TATE v

. A SHCRAFT
Opinion of the Court

a conclusion that was also consistent with a positive result from a

field test kit. As for the pills in the bo ttles , Huggard identified

them as hydrocodone, oxycodone, Alprazolam, and Clonazepam

. He did so by observing the markings on the pills and comparing them visually to pills in a “drug bible.”

¶10 Ashcraft was arrested and charged with six counts of po ssession of a controlled substance with an intent to distri b ute, two counts of unlawful possession of a dangerous weapon, one count of possession of drug paraphernalia , driving on a suspended l icense, possession of an open container of alcohol in a vehicle, and

fai lure to signal

. Because he was not in direct control of the co ntraband at the time of his arrest, Ashcraft’s possession charges were prosecuted under a constructive posse s sion theory, under

which the jury was asked to draw an inference based on circu mstant ial evidence connecting him with the contr a band. See State v.

Fox , 709 P.2d 316, 318

– 19 (Utah 1985) ( explaining the theory of constructive po s session).

¶11 At trial, the defense spent a significant amount of time highlighting the potential room for reasonable doubt in the State’s case against Ashcraft. During Huggard’ s cross examination, d efense counsel elicited testimony that he originally thought the driver of the truck was Sorenson, that K9 dogs on the scene had

not alert ed on the truck, that no fingerprint s were co l lected, that the drugs were not ident i fied in a lab, that Chavez was also in the car with Ashcraft, and that the pink stun gun was of the type that

is often marke t ed to women.

¶12 During closing arguments, Ashcraft’s counsel urged the jury to avoid “preconceived notions” about Ashcraft. Counsel also went on to suggest that Sergeant Huggard had harbored “ preco nceived notions ” against Ashcraft, as evidenced by his “specula ting” that the man driving the truck was Sorenson. And t he d efense suggested tha t Huggard’s preconceived notions had affec ted his “ability to perceive the circu m stances.”

¶13 In response to the notion that Huggard “had it out to get Mr. Ashcraft,” the prosecutor asserted in closing that Hu g gard had “no ax to grind” and had “nothing to g ain by that, neither does any police officer. ” Counsel also proceeded to assert that “[i] f a police officer were to make up stuff or do som e thing like

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Opinion of t he Court

that, that’s their career on the line ,” and that “ Sergeant Huggard has nothing to gain by bringing in pre conceived notions.”

¶14 Later in the prosecutor’s closing argument, he a r gued that

the cash in Ashcraft’s wallet should lead the jury to i n fer that he

was in the business of selling the drugs found in the truck. The
prosecutor asserted that he usually had on ly about ten do l lars in his wallet at a time, as well as a debit card, “so for me to have $800 would be out of the ordinary.” He then stated “I would submit that that’s probably normal for most people, but I leave that to your personal exper i ence. ”

¶15 The pr osecutor also summed up the circumstantial ev idence as a whole and argued that the jury should infer that As hcraft was in possession of the contraband:

Given that we had the nexus between the knife, ha ving heroin, the bag having heroin, his activities, the amount of cash he had on him the amount of the pills that were in the bag, the State proceeded on what we

had. And I would submit to you that [the] State has proven beyond a reasonable doubt that the defendant possessed these drugs with the intent to dist ribute

them.

¶16 The jury convicted Ashcraft on all charges. He now appeals

his convictions of possession of a controlled substance with intent to distribute, possession of drug paraphernalia, and possession of a dangerous weapon. 2

II

¶17 Ashcraft’s principal ar gument on appeal is a challenge to the sufficiency of the evidence to establish constructive posse ssion. Alternatively, Ashcraft also cha l lenges his conviction s on the basis of alleged prosecutorial misconduct

. W e reject both sets of
arguments and affirm.

2 Ashcraft does not appeal his convictions for driving on a su spended license, having an open container in a vehicle, and failure to signal.

5S TATE v

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Opinion of the Court

A

¶18 On a sufficiency of the evi dence claim we give substantial

deference to the jury. We “review the evidence and all infe r ences which may reasonably be drawn from it in the light most favor able to the verdict.” State v. Nielsen , 2014 UT 10, ¶ 46, 326 P.3d 6 45 (internal quotation marks omitted). I nferences may reason a bly be

drawn from circumstantial evidence. Id. ¶ 47. And a jury’s infe rence is reasonable “unless it falls to a level of inconsistency or i ncredibility that no reason a ble jury could accept.” Stat e v. Maughan

, 2013 UT 37, ¶ 14, 305 P.3d 1058 (internal quotation marks omi tted).

¶19 For possession charges, the circumstantial evidence nece ssary to convict is evidence showing a “sufficient ne x us between the accused and the [contraband] to permit an infe r e nce that the accused had both the power and the intent to exe r cise dominion and control over the [contraband].” State v. Fox , 709 P.2d 316, 319 (Utah 1985). The analysis of the evidence under t his standard d epends “ up on the facts and circumstances of each case.” Id. Yet our cases have identified some relevant considerations that a jury may

co n sider. Those factors include “ownership and/or occupancy of

the residence or vehicle ”

, p resence of the defendant when the co ntraband is discovered, the defendant’s pro ximity to the contr aband

, previ ous drug use by the defendant ( if the contraband is drug

- related)

, incriminating statements or behav ior, and pre s ence of contraband in a specific area where the defendant had con trol.

State v. Workman , 2005 UT 66, ¶ 32, 122 P .3d 639.

¶20 This is not an exhaustive list, and some fa c tors may not be pertinent in all cases. Id. Certain factors

, mor e o ver, may be insu fficient by themselves to establish possession as a ma t ter of law

. O wnership or occupancy of the premises where contraba nd is

discovered , for example, may not be enough to show constru c tive possession by itself

. Fox , 709 P.2d at 319. 3 That said, it is a rare

3 This rule is a sensible one as far as it goes; if the o n l y conne ction between a defendant and the contr a band is bare title or mere occupancy of the area in which it is found, there may be substa ntial room for reasonable doubt as to wh ether the contraband b elongs to the defendant. Such doubt may be especially substantial where other people with access to the a r ea could have placed the

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Opinion of t he Court

case where the defendant’s ownership or o c cupancy is truly the

sole nexus with the contraband. In cases where there i s add i tional evidence, including circumstantial evidence, that strengt h ens the

nexus between ownership or occupancy and the co n traband , the jury may consider those circumstances in dra w ing an inference of

posse s sion. 4

¶21 Ashcraft asserts that the only connec tion between him and the green bag was his occupancy of the truck

. A nd he a c cordingly

insist s that the evidence is insufficient as a matter of law. We di sagree . Here there is more than just evidence of occ u pancy of the

vehicle. S everal other considerations suggest a connection b etween Ashcraft and the green ba g , and those considerations, taken together

, establish a reasonable basis for a conclusion that As hcraft was in possession of the contraband

. 5 Ashcraft repeatedly

contraband in the home or vehicle without the owner’s knowledge, and thus the owner would have no “powe r and intent

to exercise dominion and control” over it. State v. Fox , 709 P.2d 316, 320 (Utah 1985). But the general principle is hardly a hard

and

- fast rule, and this case falls outside it for reasons noted here.

4 See, e.g.

, State v. Workman , 2005 UT 6 6, ¶ 34 122 P.3d 639 (d efendant who co

- occupied an apartment with a meth lab also had belongings intermingled with lab equipment, a history of met hamphe t amine use, purchased some containers and glassware used in the lab, and left a fingerprint on one of th e containers); State v.

Hansen

, 732 P.2d 127, 132 (Utah 1987) (defendant argued his only

conne c tion to marijuana was co

- occupancy of an apartment, but he possessed drug paraphernalia, the drugs were found in a locked box in his room under his clothing, and he possessed the key to the box); Fox

, 709 P.2d at 320 (evidence of ownership of a home plus several large greenhouses of marijuana constructed in close proximity to the home, ownership of other drug paraphe rn a lia and i n struction books for growing marijua na, and marijuana in such a large volume it was reasonable to conclude it must have been grown for di s tribution )

.

5 The dissent’s contrary conclusion is based in part on a misrea ding of our opinion. We do not conclude that “anyone who has the

misfortune of occupying a vehicle in which illegal drugs are found is subject to conviction.” Infra ¶ 41. Our analysis is more

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Opinion of the Court

drove through an area known for drug a ctiv i ty during late night and early morning hours , while carrying a large amount of cash

. T he bag was in close enough proximity that Ashcraft could have reached through the open window and touched it from the dri ver ’s seat. Ashcraft accused the arres t ing o fficer of planting the bag

in the truck immediately upon being asked about it

— and before it had been opened

. A nd a substance , identified as heroin by the a rresting officer, was found on the blade of the pocketknife he was

carr y ing.

¶22 E ach of these piece s of evidence would, taken on its own, be a slim basis for inferring possession

. A nd each piece of ev idence could have an innocent explanation. But cumulatively this evidence is sufficient to sustain a reasonable jury verdict. A re asonable jury could conclude from this evidence that there was a sufficient nexus between the bag and Ashcraft to establish the e lement of constructive posse s sion

. See Workman , 2005 UT 66, ¶ 35 ( although individual factors “[t]aken alone” may be unlik e ly “to

establish a sufficient nex us ,” the “ cumulative effect ” of such fa ctors may be “ such that a reasonable jury could have conclu d ed

that there was a sufficient nexus ” to establish constructive posse ssion ).

¶23 The dissent second

- guesses the inferences adopted by the jury on individual piec e s of evidence

, while also declining to defer to the jury’s assessment of the cumulative effect of the e v idence as

nuanced; it is based on our sense of the cumulative effect of the evidence presented to the jury, and on our conclusion that a re asonable ju ry could find constructive possession under these ci rcumstances. It is one thing to disagree with that conclusion

— to

a s sert that the evidence raises “serious questions” as to whether

As h craft “exercised dominion and control” over the green bag. Infra ¶ 46. It is misleading, however, to assert that the court has adopted a legal rule that requires a finding of constructive posse ssion in any case in which the defendant is “in non

- exclusive pro ximity to illegal drugs or paraphernalia.” Infra ¶ 41 (insisting tha t
that “ca n not be the law”); see also infra ¶ 47 (asserting that “there is no practical limit to the concept of constructive possession when applied to someone in non

- exclusive proximity to illegal drugs or par a phernalia”). That is not the basis of our hol ding.

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Opinion of t he Court

a whole. Specifically, the dissent dismisses any inference from

Ashcraft’s “late

- night presence in an area known for drug activity

with a lar ge amount of cash ” as “speculative

, ” i nfra ¶ 4 8 ; posits an alternative explanation for Ashcraft’s incriminating accusation that the arresting officer had “planted” the bag

, i nfra ¶ 4 9 ; and concludes that “it is mere speculation to assume that the contr aban d found in the green bag belonged to Mr. Ashcraft simply b ecause he had a knife that co n tained a suspec t residue

. ” I nfra ¶ 5 0

. ¶24 Th e se are fair arguments for counsel to present to the jury in closing. But our review on appeal is different. The question

pres ented 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 ve r dict. We affirm on that basis.

¶25 We also reject a number of the dissent’ s arguments on their own terms. First, Ash craft’s incriminating statement need not “necessarily suggest” a connection to the bag to support the jury’s

verdict

. Infra ¶ 4 9. A nd the fact that we can identify an “equally” plausible alternative inference is not nearly enough to set that

verdict aside. Infra ¶ 4 9. The inference to be drawn from the ev idence was the jury’s to make (within reason), and the inference it apparently drew was reasonable

— more so, in fact

, than the n otion that Ashcraft may have accused the officer of planting the bag

because he knew the contents of the bag , knew it “belonged to Ms.

Chavez or Mr. Sorenson

, ” and “intended to distance himself from

it because he was aware of its contents .” Infra ¶ 4 9. Accusing a p olice officer of planting evi dence is a brash move . If Ashcraft knew

t hat the bag contained contraband but wasn’t its owner, surely he would have simply disclaimed ownership instead of accusing a police officer. At least that’s the way the jury seems to have seen the matter, on a point meriting our deference on appeal. 6

6 The dissent also seeks to diminish the significance of this infe rence on the ground that “Ashcraft’s allegedly incriminating

statement is different from the statements on which we have r elied in other cases where incriminating behavior or statement s

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Opinion of the Court

¶26 Seco nd, there was more than “mere speculation” linking

the substance on Ashcraft’s knife to the “contraband found in the green bag.” Infra ¶ 5 0. Officer Huggard testified, based on his e xperience and results of field tests, that the “brown caked tar[

- ]like

pow dery substance” on the blade of the knife and in some of the

ba g gies in the green bag was consistent with heroin. So, despite the dissent’s insistence to the contrary, there was “ev i dence that

the substance on the knife was the same as the illicit substanc e in the green bag.” Infra ¶ 5 0. And the evidence regar d ing Ashcraft’s knife is accordingly supportive of the jury’s determination of co nstructive possession.

¶27 This and other evidence in the case c ould be sus pect if ta ken in isolation. But in light of the t otality of the evidence ta k en as a whole, we conclude that there was sufficient ev i dence to sustain a verdict based on a determination of constructive possession. And in light of that evidence, we find it unnecessary to eli m inate
other reasonable inference s to be drawn from the ev i dence

— such as the notion that Ashcraft may have had an inn o cent reason to be in an area known for drug activ i ty with a large amount of cash late at night, infra ¶ 4 8, or that Chavez or Sorenson could have been the owner or possess or of the green bag, infra ¶ 5 1. The que stion presented is not whether some other (innocent) inference might have been reasonable. It is simply whether the inference adopted by the jury was sustainable. We conclude that it was and

affirm on that basis.

¶28 In so doing, we acknowledge the lack of direct, forensic e vidence tying Ashcraft to the contraband in question. As the di ssent indicates, the record is devoid of fingerprint evidence tying

Ashcraft to the contraband , of any of Ashcraft’s “personal

gave rise to an inference of constructive possession.” Infra ¶ 49 (citing cases from other jurisdictions crediting incriminating

statements of defen d ants accused of constructive possession). But the cited cases are not ours, and in any event they do not purport to establish any sort of floor or minimum basis for crediting a d efendant’s stat e ment as incriminating. That is a question of fact, not law. And it is a question on which the jury is entitled to deference

in the co n text of the evidence as a whole i n this case, and not by

compa r ison to the record in other cases.

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Opinion of t he Court

items

. . . intermingled with the items found in the green bag,” or of “drugs on defendant’s person” (other than the heroin residue on his knife). Infra ¶ 5 3. And it is certainly true that t he results of

further invest i gation might have weakened the prosecution’s cas e. But it might also have strengthened it. And in any event those speculative pr o spects ha ve nothing to do with the question before

us . A reviewing court is not to measure the sufficiency of the ev idence against a hypothetical

— CSI

- based

— investigative ideal

. I nstead of imagining the evidence that might have been presented, we

consider the evidence that was presented, and evaluate its suff iciency through a lens that gives the jury’s verdict the benefit of all

reasonable inferences. We find the evidence suffic ient, and not undermined by speculation about further investigation that might have taken place. 7

¶29 Ashcraft is also right to note that the evidence could alte rnatively have supported a determination that the co n traband was

connect ed to Sorenson and /or to Ch avez . But that is likewise i nsufficient to undermine our confidence in the verdict. The a l leged connection to alternative suspects was a frui t ful source of cross

examination and argument to the jury. And as noted above, d efense counsel in fact availed hers elf of this line of argument . Yet the jury was by no means compelled to accept the existence of reasonable doubt posited by the defense’s finger

- pointing, and in fact it did not accept the argument.

¶30 For all of these reasons, the jury made a reasonable inf e rence that Ashcraft was in constructive possess ion of the green bag. We cannot disturb the jury’s conclusion just b e cause it could

have reasonably come to a different one.

7 The dissent concedes that our role is not to imagine “the ev idence that might have been presented.” Infra ¶ 53. But it then pr oceeds to insist that it is still somehow “helpful to identify the lac king e v idence that may have supported a finding of constructive possession.” Infra ¶ 53. We see no benefit to that imaginative

compar i son. The question presented is not how this prosecution stacks up against a hypothetical ideal. It is simply to eva luate the evidence that was presented, against a deferential standard of r eview yiel d ing the benefit of the doubt to the jury’s verdict.

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Opinion of the Court

B

¶31 Matters not in evidence cannot be properly consi d ered by the jury. It is miscondu ct for the prosecutor to refer to such ma tters. See State v. Hopkins , 782 P.2d 475, 478 (Utah 1989). To su s tain a reversal on an assertion of prosecutorial misconduct, a defen dant must establish both that the prosecutor’s conduct “call[ed] to

the attention of the jurors ma t ters they would not be justified in

consideri ng in determining their verdict and, under the circu mstances of the particular case, the error is substantial and prejud icial.” State v. Tillman , 750 P.2d 546, 555 (Utah 1987).

¶32 Ashcraft cites three instances of alleged misconduct in the prosecutor’s closing argument . He a s serts, specifically, that the prosecutor improperly vouch ed for the credibility of Hu g gard’s testimony ; that he vouch ed for the credibility of the ev i dence ; and

that he vouch e d for the strength of the Sta te’s case as a whole. And on each point Ashcraft asserts that the prosecution made re ference to m a terial not in the record.

¶33 A threshold question concerns preservation. The State ur ges us to decline to reach the merits of Ashcra ft’s claims on the ground that he failed to preserve a specific objection to each of the foregoing instances of alleged “vouching.” Upon r e view of the record we agree that there was no specific articulation of a basis for objecting to the prosecution’s sta tements

— only a general o bjection (without a basis or explanation) at the first me n tion of the notion that Huggard had “nothing to gain by bringing in preco nceived notions.” But we nonetheless proceed to the merits on the

basis of an excep tion to the genera l requir e ment of preservation. We hold, specifically, that it would have been futile for As h craft to have preserved a specific objection in the district court, and on

that b a sis we excuse him from his failure to do so. 8

8 See Roundy v. Staley , 1999 UT App 229, ¶ 6, 984 P.2d 404 (failure to preserve evidentiary objection excused where di strict court u nequivocally stated that videotape evidence would be admitted, making “further objection to the admission of [the evidence]

. . . futile”); People ex rel. Klaeren v. Vill. of Lisle , 781 N.E.2d 223, 231 (Ill. 2002) (“[T]here is no need to obje ct when it is apparent that an objection would be futile.”); Staubes v. City of Folly Beach , 529 S.E.2d 543, 547 (S.C. 2000) (“This Court does not require pa r ties to

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Opinion of t he Court

¶34 The basis for our determination of futility is this: After d efense counsel asserted an initial, general objection to the prosec ution ’s assertion that Huggard had “nothing to gain by bringing in preconceived notions

, ” the district court interrupted and directed the prosec u tion to “go ahead,” admonishing defense counsel with

the assertion that “this is argument and you were given the ben efit of

... silence

. ” Under the circumstances and given the ti m ing, tone, context, and content of the district court’s response, we

deem it reasonable for defens e counsel to have viewed this r esponse as an indication of the court’s u n willingness to hear any further obje c tion or explanation. And we accordingly deem such further objection or explanation sufficiently futile to excuse As hcraft’s failure to preserve a specific obje c tion. 9

¶35 That determination requires us to proceed to the merits of Aschraft’s claims of prosecutorial misconduct. Initially, we acknowledge the impropriety of a prosecutor’s “bolster [ing] a witness by vouching for his credibility .” State v. Ca rter , 776 P.2d 886, 892 (Utah 1989) (internal quotation marks omitted)

. Such vouching is improper b e cause it invites the jury to rely on matter s outside the record. Yet the matter of v ouching is not just inviting the jury to credit the testimony of the sta te’s witness

. That is standard operating procedure, and hardly misconduct. I mpermi ssible vouching , on the other hand, occurs when the prosecution

“ place [s] the prestige of the government behind the witness by making explicit personal assurances of the witn ess’ credibility

, ” or

engage in futile actions in order to preserve issues for a p pellate review.”);.

9 In so hol ding, we do not mean to suggest that further obje c tion would always be futile any time a trial judge overrules an obje ction in a manner cutting off the opportunity for further explan ation. The question of futility is highly context

- dependent and case

speci fic

— turning not just on the trial court’s decision but on its timing, tone, and content. Here our decision is based not only on the nature and timing of the district court’s decision but on the tone of the admonition that followed it, which seemed to sugge st that further objections would not be tolerated to the extent they would deprive the prosecution of the “benefit of .

. . silence” that

was a f forded to the defense.

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Opinion of the Court

“implicitly .

. . i n dica t[e s ] that information not presented to the jury supports the testimony.” Id. (internal quotation marks omi tted).

¶36 Under this framework , the prosecu tor’s statements about Huggard did not amount to impermissible vouching

. First, the
prosecutor made no explicit statement that he personally knew Huggard to be truth ful. He did not a sk the jury to take his word

for it that Huggard was a credible witness

. Such an argument would call the jury’s attention to matters it is not “justified in co nsideri ng in determining their verdict ”

— the prosec u tor’s personal opinion of a witness. Instead, the prosec u tor, in direct response to
defense counsel’s argument that Huggard’s perception of the

events w as undermined by “preconceived notions,” urged the j ury to view that argument skeptically. He did so by a r gu ing that there was no reason to believe that Huggard or any officer would have had “preconceived notions” against suspects , and highligh ted the lack of evidence showing that Hugg ard had an “ax to grind” against Ashcraft in partic u lar

.

¶37 Second, t he prosecutor did not imply that he knew more about Huggard than the jurors did, or implore them to take such

information into consideration i n evaluating Hu g gard’s testim ony. Instead, this was a matter of both the prosecution and the d efense urging the jury to evaluate the officer’s credibility based on

their own understanding of incentives generally facing the p olice

— with the defense insisting that Huggard may have harbored “preconceived n otions” against Ashcraft and asserting that such

notions may have affected his “ability to perceive the circu mstan ces,” and the prosecution responding with the sugge s tion that

an officer’s “career [could be] on the line” if he “were to make up

stuff or do something like that.” This was not vouc h ing through

an allusion to info r mation known to the prosecution but not in the

record. It was an instance of both the d e fense and the prosecution seeking to urge the jury to assess the officer’s credibility in a ma nn er consistent with their respe c tive positions

— and in accordance

with common

- sense incentives and reasonable inferences genera lly known to the jury. That is permissible

— and not at all a matter of vouching. See State v. Bakalov , 1999 UT 45, ¶ 59, 979 P.2d 79 9 (prosecution may “fully discuss with the jury reasonable infe rences and deductions drawn from the evi dence ” ); Delacruz v.

State , 10 P.3d 1131, 1132

– 33 (Wyo. 2000) (holding it was not pros e14Cite as: 2015 UT 5
Opinion of t he Court

cutorial mi s conduct to refer to the background of witnesses and

ar gue that “[y]our common sense will tell you that . .

. they have no reason to come into this courtroom and orchestrate a lie,” b ecause the prosecutor was “simply asking the jury to apply co mmon sense to the evi dence it had heard”)

.

¶38 For the same reason , it was permissible for the pro s ecutor

to discuss the potential conclusions to be drawn from the cash in

Ashcraft’s wallet

. The cash in Ashcraft’s wallet may be subject to a reasonable inference that it was a result of drug activity

— or, a lternatively, a contr ary inference that it was there for an innocent

reason

. But as it was up to the jury to make that infe r ence, it was acceptable for the prosecutor to discuss the matter, and to urge the jury to make an inference in the prosecution’s favor. B a kalov

, 1999 UT 45, ¶ 59. The prosecutor may have gone too far when he pressed this infe r ence in terms of his own personal experience. But even if the comment about his own pra c tices for carrying cash

crossed a line

, that comment was harmless, as the prosecutor i mmediatel y instruc t ed the jury to rely on their own experience and

not his own

. State v. Pearson , 943 P.2d 1347, 1352

– 53 (Utah 1997) (holding that it was i m proper for a prosecutor to “offer[] a factual assertion based on his own experience” but that the statement w as not reversible prosecutorial misconduct because he “made no e ffort to hold hi m self out as an expert, and he addressed matters that are within the general realm of human experience and co mmon sense”).

¶39 Finally, the re was no prosecutorial misconduct in th e pro secution’s summary of the evidence and ultimate insis t ence that

the S tate had proven Ashcraft’s guilt beyond a reason a ble doubt

. This was nothing more than a summary assertion of the prosec ution’s quintessential position in closing argument

. Such asse rtion
did not venture into the fo r bidden territory of calling upon the jury to “trust the Go v ernment’s judgment rather than [the jury’s]

own view of the evidence. ” State v. Hopkins , 782 P.2d 475, 480 (Utah 1989) ( quoting United States v. Young , 470 U.S. 1

, 18

– 19 (1985) )

. The prosecutor did not ask the jurors to defer to the state’s jud g ment over their own. He simply summarized his position and the evidence supporting it and then asked the jury to enter a co nvict ion . Such a statement is as commonplace as it is innocuous in closing argument

— a matter well within the realm of appropriate

pros e cutorial conduct.

15S TATE v

. A SHCRAFT

J USTICE P ARRISH , dissenting:

III

¶40 We affirm on the above grounds. We deem the evidence presented to the jury to be sufficient to sustain a reasonable infe rence of Ashcraft’s constructi ve possession. A nd we find no basis

for a determination of prosecutorial mis conduct

.

——————

J USTICE P ARRISH , dissenting:

¶41 I cannot join the court in affirming Mr. Ashcraft’s convi ction because the evidence is insufficient to establish that Mr. As hcra ft constructively possessed the drugs and par a phernalia found in Mr. Sorenson’s truck. Under the court’s reasoning, anyone who has the misfortune of occupying a vehicle in which illegal drugs are found is subject to convi c tion. That cannot be the law.

¶4 2 We “overturn a convi ction for insufficient evidence

when

. . . the evidence is insufficient to prove each element of the crime beyond a reasonable doubt.” State v. Fox

, 709 P.2d 316, 318 (Utah 1985). Although we review the evidence “in the light most

f avorable to the verdict,” State v. Nielsen

, 2014 UT 10, ¶ 30, 326

P.3d 6 45 , we must overturn a conviction when “the ev i dence is sufficiently inconclusive or inherently improbable such that re ason a ble minds must have entertained a reasonable doubt that the

defendant committed the crime for which he or she was convic ted.” State v. Holgate , 2000 UT 74, ¶ 18, 10 P.3d 346 (internal quot ation marks omitted).

¶43 Because the evidence presented fails to establish a nexus between Mr. Ashcraft and the drugs and para phern a lia found in the green bag, I believe that a reasonable juror necessarily would

have harbored some reasonable dou bt as to Mr. Ashcraft’s guilt. Accordingly, I would reverse his conviction.

¶44 Mr. Ashcraft was convicted of possessing a controlled su bstance with intent to distribute. See U TAH C ODE § 58

- 37

- 8(1)(a)(iii). The State prosecuted Mr. Ashcraft on a theory of constructive possession, which requires a “sufficient nexus between the a ccused and the drug [or paraphernalia] to permit an infe r ence that the accused had both the power and the intent to exercise domi nion and control over the drug [or paraphernalia].” State v. La yman , 1999 UT 79, ¶ 13, 985 P.2d 911 (alterations in original) (inte r

16Cite as: 2015 UT 5

J USTICE P ARRISH , dissenting

nal quotation marks omitted). But mere proximity to t he drugs or paraphernalia, without additional evidence of control and domi nion, is insufficient to establish possession, especially when pro ximity is not exclusive. See Fox , 709 P.2d at 319.

¶45 The truck in which the contraband was found b e longed to

Mr. Sorenson. Indeed, Sergeant Huggard initially believed he was following and pulling over Mr. Sorenson. Sgt. Huggard learned Mr. Ashcraft was the driver only after pulling him over. At that time, the truck was also occupied by Ms. Chavez, who was sitting in the passenger seat. While following the truck and pulling Mr. Ashcraft over, Sgt. Huggard neither saw anyone place an item in

the truck’s bed nor put their hands out of the truck’s back wi ndow. And it is inherently improbable that Mr. Ashcraft could

h ave put his right

- hand through the cab window to hide an item
on the far

- left side of the truck bed while maintaining co n trol of

the vehicle and avoiding detection by Sgt. Hu g gard.

¶46 During the initial search of the truck, Sgt. Huggard did not find any d rugs or paraphernalia. Later, when the green bag was found, the contraband was tucked so far out of sight and was so inaccessible that a K

- 9 officer and dog did not detect it. The green bag contained a pink stun gun. Al t hough Ms. Chavez had easier

acces s to the green bag than Mr. Ashcraft, she was allowed to leave. Finally, despite the fact that three people had a c cess to the green bag, the police did not conduct any forensic tes t ing of the physical evidence. These facts raise serious questions as to

w hether Mr. Ashcraft had any knowledge of the green bag’s exis tence, and even more serious questions about whether he exe r cised

dominion and control of it.

¶47 The majority acknowledges that there is no evidence direc tly linking Mr. Ashcraft to the illicit drugs. It instead relies on three inferences to create the necessary nexus. These are Mr. As hcraft’s presence in an area known for drug activity while ca r rying a large amount of cash, Mr. Ashcraft’s alleged ly incriminating statement to the police, and Mr . Ashcraft’s possession of a knife

with a brown substance on it. But if these inferences are sufficient to support a conviction based on constructive posse s sion, there is no practical limit to the concept of constructive possession when

17S TATE v

. A SHCRAFT

J USTICE P ARRISH , dissenting:

a p plied to someone in nonexclusive proximity to illegal drugs or paraphe r nalia.

¶48 Mr. Ashcraft’s late

- night presence in an area known for drug activity with a large amount of cash creates no nexus b etween him and the items in the green bag. Instead, it raises o n ly a

spec ulative possibility of Mr. Ashcraft’s intent to di s tribute drugs. And Ms. Chavez was seen in the truck both nights, while Mr. Ashcraft may have been driving the truck on only the second night. In short, Mr. Ashcraft’s late

- night presence in a question abl e neighborhood when the other possible possessors were also present cannot give rise to the inference that the drugs b e longed

to Mr. Ashcraft.

¶49 The court construes Mr. Ashcraft’s accusation that the a rresting officer planted the green bag “ immediately u pon being

ask ed about it” as an incriminating statement. Supra ¶ 21. But this

statement is consistent with Mr. Ashcraft’s other statements di sclaiming ownership of the bag and does not necessarily su g gest a knowledge of its contents. Indeed, it is equall y consistent with the possibility that the bag in fact belonged to Ms. Chavez or Mr.

Sorenson and that Mr. Ashcraft intended to distance hi m self from

it because he suspected its contents . Mr. Ashcraft’s allegedly i ncriminating statement is much different from the statements on which we have relied in other cases where incriminating behavior or statements gave rise to an inference of constructive po s session.

Fox

, 709 P.2d at 319 (citing United States v. Garcia , 655 F.2d 59 , 62 (5th Cir. 1981) ( noting that defendant nodded affirmatively when

introduced as owner of c o caine); Francis v. State , 410 So. 2d 469

, 471 (Ala. Crim. App. 1982) (noting that the defendant slammed a door in the face of police and yelled, “throw it in the fire”); Allen

v. State , 282 S.E.2 d 126, 127 (Ga. Ct. App. 1981) (noting that the d efendant told an unnamed indivi d ual that the defendant had $500 worth of mariju a na ) ).

¶50 The brown substance on Mr. Ashcraft’s knife is similarly insufficient to link him to the green bag. Even if the subs tance were an opiate

- derivative, it is mere speculation to assume that the contraband found in the green bag belonged to Mr. Ashcraft simply because he had a knife that contained a suspect residue. And such speculation is insufficient to overcome reasonab le doubt as to the ownership of the green bag. In my view, no ne x us

18Cite as: 2015 UT 5
Opinion of t he Court

between the knife and green bag could be drawn absent some e vidence that the substance on the knife was the same as the illi c it substance in the green bag. But the State presented no suc h ev idence. While the State may have charged Mr. Ashcraft with po ssession of drug paraphernalia based on the substance on the knife,

the knife itself is not evidence that Mr. Ashcraft committed the separate crime of possessing the green bag. Without some ev idence linking Mr. Ashcraft to the drugs, it is a fall a cy to infer that he possessed and intended to di s tribute drugs just because he was driving a borrowed truck in a questionable neighborhood late at night, carrying cash.

¶51 Mr. Ashcraft shared posse ssion of the vehicle with two other individuals. Accordingly, in order to support a ve r dict of guilt, the inferences relied on by the State must either exclude the

other i n dividuals as possible possessors or point to Mr. Ashcraft as the possessor of the c ontraband. See Fox , 709 P.2d at 320 (“[E]vidence supporting the theory of ‘co n structive possession’ must raise a reasonable inference that the defendant was engaged in a criminal enterprise and not simply a bystander.”); State v.
Salas , 820 P.2d 1386, 138 8 (Utah Ct. App. 1991) (“In order to find that the accused was in possession of drugs found in an autom obile he was not the sole occupant of, and did not have sole a c cess to, there must be other evidence to buttress such an inference.”).

Without evidence creating a nexus between Mr. Ashcraft and the

dr ugs, or excluding the other two possible possessors, Mr. As hcraft may be serving a sentence for the criminal activity of others.

¶52 I acknowledge that the evidence presented at trial may

have been sufficient to sustain a conviction if Mr. Ashcraft had

excl u sive possession of the vehicle. But he did not. The vehicle was actually owned by and registered to Mr. Sorenson, a suspec ted drug dealer. And the State did not dispute that Mr. As h craft

had borrowed the truck when Mr. Sorenson was hospitalized. While the contraband was theoretically within reach of Mr. As hcraft, the officer did not see him reach into the back of the truck. More importantly, the contraband was also in reach of Ms. Chavez, but the police did not bother to question or search her.

See Salas , 820 P.2d at 1388 (acknowledging that drugs found where a passenger had been sitting “renders the remaining ev idence sufficiently inconclusive as to whether defendant knew of

19S TATE v

. A SHCRAFT

J USTICE P ARRISH , dissenting:

the presence of the co caine ” ). In short, the evidence does not link Mr. Ashcraft with the contents of the green bag, nor does it e xclude Mr. Sorenson or Ms. Chavez as the owner. In my view, the inferences on which the majority relies are simply insufficient to

e s tablish beyond a r easonable doubt that Mr. Ashcraft exercised

dominion and co n trol over the green bag.

¶53 The State’s failure to offer any direct evidence linking Mr. Ashcraft to the green bag also speaks volumes. Al t hough I agree with the court that we must not “imagin[e ] the evidence that might have been presented,” supra ¶ 2 8 (emphasis omitted) , it is nonetheless helpful to identify the lacking evidence that may have supported a finding of constructive possession. Here, the State did not present any evidence “linking o r tending to link” Mr. Ashcraft with the drugs, including, “sale of drugs, use of drugs,

. . . drugs in plain view, and drugs on defendant’s pe r son.” Salas

, 820 P.2d at 1388. His personal items were not inte r mingled with the items found in the green bag. See State v. Workman

, 2005 UT 66, ¶ 34, 122 P.3d 639. And the State presented “no forensic ev idence tying” Mr. Ashcraft to the green bag, such as fingerprints or drug

- testing of the knife and heroin inside the green bag. See State
v. Gonzalez

- Camargo

, 2012 UT App 366, ¶ 24, 293 P.3d 1121. Fina lly, the State made no attempt to dete r mine whether Ms. Chavez was the owner of the green bag.

¶54 In my view, this case rests exclusively on Mr. Ashcraft’s proximity to drugs; the inferences on which the State re lies are i nsufficient to give rise to the inference that Mr. Ashcraft constru ctively possessed the green bag. Accordingly, I would r e verse his

conviction.

20