1 Because the statutory provisions in effect at the time of the offense do not differ

from the provisions currently in effect in any way material to this case, we cite the

current version of the Utah Code for the convenience of the reader. IN THE UTAH COURT OF APPEALS

‐‐‐‐ ooOoo

‐‐‐‐

State of Utah,

Plaintiff and Appellee,

v.

Rolando Cardona

‐ Gueton,

Defendant and Appellant. )

)

)

)

)

)

)

)

) OPINION

Case No. 20110146

‐ CA

F I L E D

(December 6, 2012)

2012 UT App 336

‐‐‐‐‐

Third District, Salt Lake Department, 091908492

The Honorable Judith S. Atherton

Attorneys: Brittany D. Enniss and Kerri S. Priano, Salt Lake City, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges Thorne, Voros, and Roth.

VOROS, Judge:

¶1 Rolando Cardona

‐ Gueton appeals his conviction for possession with intent to

distribute a controlled substance with an enhancement for commission of the offense in

a drug

‐ free zone. See Utah Code Ann. §§ 58

‐ 37

‐ 8(1)(a)(iii),

‐ 8(4)(a)(v) (LexisNexis 2012). 1

Cardona

‐ Gueton contends that the State presented insufficient evidence that he

possessed the drugs. He also contends that the State presented insufficient evidence that

the offense occurred within a drug

‐ free zone. We affirm.20110146

‐ CA 2 BACKGROUND

¶2 On October 22, 2009, three police officers were on bicycle patrol at the

intersection of 300 West and 400 South in Salt Lake City. One officer saw Cardona

‐

Gueton at the “No. 4 corner of Pioneer Park or in that intersection of Pioneer Park,”

engaged in what he believed to be a drug deal.

¶3 The officers approached Cardona

‐ Gueton, who was sitting on a bench smoking a

cigarette. The officers believed he was violating a prohibition on smoking in the park,

and one officer began to write a citation for the violation. The officers noticed near

Cardona

‐ Gueton a bicycle that they suspected was one that had been reported stolen.

Two of the officers asked Cardona

‐ Gueton if the bicycle was his, and he responded that

it was. One officer asked Cardona

‐ Gueton if he could look at the bicycle; Cardona

‐

Gueton agreed. The officer turned the bicycle over to examine the serial number and

noticed the first of two hidden compartments. When the officers indicated they would

inspect the compartment, Cardona

‐ Gueton stated, “That’s not mine,” and denied

ownership of the bicycle. Inside the compartment was a removable container holding

fourteen rocks of crack cocaine, amounting to “about two grams.”

¶4 Cardona

‐ Gueton was charged with one count of possession with intent to

distribute. The State amended the charge to include a drug

‐ free zone enhancement,

elevating the offense to a first degree felony. Cardona

‐ Gueton unsuccessfully objected

to the amendment.

¶5 The case was tried to a jury. At the conclusion of the evidence, Cardona

‐ Gueton

unsuccessfully moved for a directed verdict on three grounds: (1) insufficient evidence

of possession, (2) insufficient evidence of intent to distribute, and (3) insufficient

evidence to support the drug

‐ free zone enhancement. The jury found Cardona

‐ Gueton

guilty of the charged offense and found the enhancement by special verdict. After trial,

Cardona

‐ Gueton unsuccessfully moved for judgment notwithstanding the verdict on

the same three grounds. On January 14, 2011, Cardona

‐ Gueton was sentenced to a

prison term of five years to life.

ISSUES AND STANDARDS OF REVIEW

¶6 Cardona

‐ Gueton presses two challenges on appeal. First, he contends that the

evidence at trial was insufficient to prove that he possessed the cocaine. Second, he

contends that the evidence was insufficient to prove the offense occurred in a public2 To the extent that Cardona

‐ Gueton’s arguments may be construed as claiming

that the trial court erred in denying his motion for a directed verdict, we note that such

claims involve “basically the same analysis” and may be considered together with the

challenge to the jury’s verdict. State v. Hirschi

, 2007 UT App 255, ¶¶ 15–16, 167 P.3d 503.

20110146

‐ CA 3 park. Cardona

‐ Gueton frames these issues as challenges to the jury’s verdict. 2

Accordingly, “[w]e review the evidence and all inferences which may reasonably be

drawn from it in the light most favorable to the verdict

. . . [and] reverse

. . . only when

the evidence, so viewed, is sufficiently inconclusive or inherently improbable that

reasonable minds must have entertained a reasonable doubt that the defendant

committed the crime of which he was convicted.” State v. Hamilton

, 827 P.2d 232, 236

(Utah 1992) (citation and internal quotation marks omitted).

ANALYSIS

I. Actual or Constructive Possession of the Drugs

¶7 Cardona

‐ Gueton first contends that the State failed to present sufficient evidence

that he possessed the cocaine. Specifically, he argues that the State “failed to establish a

sufficient nexus between [himself] and the drugs to establish constructive possession.”

¶8 Conviction for possession of a controlled substance with intent to distribute

requires proof that (1) the defendant knowingly and intentionally possessed the

controlled substance, and (2) the defendant intended to distribute the controlled

substance. State v. Fox

, 709 P.2d 316, 318 (Utah 1985); see also State v. Layman

, 953 P.2d

782, 787 (Utah Ct. App. 1998) ( Layman I ), aff’d

, 1999 UT 79, 985 P.2d 911 ( Layman II ).

Possession “sufficient to sustain a conviction need not be actual but may be

constructive.” Layman I at 787 (citing State v. Bingham

, 732 P.2d 132, 133 (Utah 1987)).

Constructive possession must be proven by a “sufficient nexus between the defendant

and the drugs

. . . to permit a factual inference that the defendant had the power and the

intent to exercise control over the drugs

. . . .” Layman II ¶ 15. The evidence must also

establish that the accused “intended to use the drugs

. . . as his own.” Id. In sum, “the

evidence must raise a reasonable inference that the defendant was engaged in a

criminal enterprise and [was] not simply a bystander.” Layman I at 787 (citation and

internal quotation marks omitted). A non

‐ exclusive list of evidentiary factors “tending

to link an accused with drugs” in certain situations includes “incriminating statements,

suspicious or incriminating behavior, sale of drugs,

. . . [and] proximity of defendant to20110146

‐ CA 4 location of drugs.” State v. Salas

, 820 P.2d 1386, 1388 (Utah Ct. App. 1991); see also

Layman II ¶¶ 14–15.

¶9 Cardona

‐ Gueton argues that the State’s evidence was insufficient to establish

(1) that the bicycle was his, (2) that he knew the bicycle held drugs, and (3) that he

intended to use the drugs as his own. However, the jury’s verdict is supported by

evidence of possession in the form of incriminating statements, suspicious behavior,

and proximity. Cardona

‐ Gueton was seen drinking from the bicycle’s water bottle. The

officers approached him because he appeared to have been involved in a drug deal.

When they approached, he was sitting no more than six inches from the bicycle. When

asked about the bicycle, Cardona

‐ Gueton twice stated that it was his. He denied

ownership only when an officer turned the bicycle over, exposing a hidden

compartment. Finally, the amount of crack cocaine found in the bicycle was consistent

with the officers’ observation of a suspected drug deal, as was the $166 they found on

Cardona

‐ Gueton’s person.

¶10 Cardona

‐ Gueton argues that because the only evidence against him was

“circumstantial, the evidence supporting a conviction must preclude every reasonable

hypothesis of innocence.” See State v. Hill

, 727 P.2d 221, 222 (Utah 1986) (plurality

opinion); Layman I at 786. He suggests that alternative theories can explain the evidence

in a manner consistent with his innocence. For example, he may have bought, found, or

even stolen the bicycle, and only after the officers found the compartment did he

“realize[] that there was some type of contraband in the

. . . compartment and want [to

claim] that he did not actually own the bike.” Thus, he reasons, the jury must have had

a reasonable doubt as to his guilt.

¶11 Whether an alternative explanation is “reasonable” depends on the credibility of

the evidence supporting it. The law is well established that “[t]he existence of one or

more alternate reasonable hypotheses does not necessarily prevent the jury from

concluding that [a] defendant is guilty beyond a reasonable doubt.” State v. Blubaugh

, 904 P.2d 688, 695 (Utah Ct. App. 1995). “This is so because it is the exclusive province of

the jury to weigh the competing theories of the case, in light of the evidence presented

and the reasonable inferences drawn therefrom, and to conclude which one they

believe.” State v. Buck

, 2009 UT App 2, ¶ 14, 200 P.3d 674. “Where the jury has done just

that, we will reverse its verdict only if we determine” that “the evidence is so

insubstantial or inconclusive” that “the evidence and inferences did not preclude the

reasonable alternative hypothesis presented by the defense.” Id. (citation and internal

quotation marks omitted).20110146

‐ CA 5 ¶12 Stated another way, framing a claim as a reasonable

‐ alternative

‐ hypothesis claim

presupposes that the alternative hypothesis is reasonable. But a finding that a defendant

is guilty beyond a reasonable doubt is necessarily a finding that any alternative

hypothesis of innocence presented at trial was not reasonable under the jury’s view of

the evidence. Consequently, an appellate court will reverse such a finding only where

no reasonable juror could have taken that view of the evidence.

¶13 Here, however, Cardona

‐ Gueton asserts theories on appeal that were never

presented to the jury. He did not argue at trial that he bought, found, or stole the bicycle

wholly unaware of the cocaine hidden within it. Instead, he testified that the bicycle

was not in his possession at all. The jury heard testimony that Cardona

‐ Gueton first told

the officers that the bicycle was his, then that it was not. The jury apparently believed

the first statement and disbelieved the second. While it might have made the opposite

credibility determination, it was not required to do so by the reasonable doubt

standard.

¶14 An appellate court will not “substitute its judgment for that of the jury” and will

reverse only “if the evidence is so insubstantial or inconclusive that reasonable minds

must necessarily entertain a reasonable doubt as to a defendant’s guilt.” Hill

, 727 P.2d at

222. That is not the case here. Accordingly, we decline to disturb the jury’s verdict on

the question of possession.

II. The Drug

‐ Free Zone Enhancement

¶15 Cardona

‐ Gueton also challenges the jury’s special verdict on the ground that the

State did not present sufficient evidence to prove beyond a reasonable doubt that the

offense occurred in a public park. Cardona

‐ Gueton was convicted of possession of

cocaine. A first offense of possession of cocaine is a second degree felony when a person

“knowingly and intentionally” possesses the drug with intent to distribute. Utah Code

Ann. §§ 58

‐ 37

‐ 8(1)(a)(iii),

‐ (b)(i) (LexisNexis 2012); id. § 58

‐ 37

‐ 4(2)(b)(D). However, the

offense is a first degree felony when committed within a drug

‐ free zone, including “a

public park, amusement park, arcade, or recreation center.” Id. § 58

‐ 37

‐ 8(4)(a)(v).

¶16 The drug

‐ free zone enhancement is an element of the crime and so must be

proved beyond a reasonable doubt to the same trier of fact who decides guilt for the

underlying crime. See State v. Davis

, 2007 UT App 13, ¶¶ 10, 25, 155 P.3d 909 (reversing

enhancement of a defendant’s conviction because the trial court erred by instructing the

jury that a bicycle path was a public park as a matter of law); State v. South

, 932 P.2d

622, 627 (Utah Ct. App. 1997) (reversing a defendant’s conviction on an enhancement3 Cardona

‐ Gueton does complain, in a footnote in his brief, that “no instruction

was given as to what qualifies as being ‘in a public park’” and that the jury “was never

provided a definition of ‘in a public park.’” However, he did not object to the jury

instructions on this basis at trial, nor does he identify this supposed omission as a claim

of plain error on appeal or complain that his trial counsel was ineffective for not seeking

such an instruction. Accordingly, we read these passages as an argument in support of

his sufficiency challenge, not as an attempt to recast the issue as one of law.

4 We do not suggest, and Davis does not hold, that a question of statutory

interpretation could never be imbedded within a sufficiency claim. Indeed, the issue

before us might, in a different case or context, be framed as one of statutory

interpretation. Neither do we mean to imply that Cardona

‐ Gueton would be likely to

prevail if the issue were viewed as one of statutory interpretation. The State points out,

for example, that Salt Lake City seems to regard Pioneer Park as encompassing the

entire block. See Salt Lake City City Code § 15.04.150 (2009) (describing Pioneer Park as

“[a]ll of

. . . the area between Third and Fourth South Streets and Third and Fourth West

Streets”). But see id. § 1.04.010 (defining a “street” to include sidewalks). We express no

opinion on that point.

20110146

‐ CA 6 because the trial court found the enhancement at sentencing). Consequently, here, the

State bore the burden to prove to the jury beyond a reasonable doubt that Cardona

‐

Gueton was in a public park when he committed the offense.

¶17 Although Cardona

‐ Gueton’s challenge is framed as a sufficiency claim, he begins

by asserting that the term “public park” as used in Utah Code section 58

‐ 37

‐ 8(4)(a) does

not include sidewalks. His argument relies on related statutes, statutory history,

dictionary definitions, and the Salt Lake City Code. However, he does not argue that the

trial court erred in not instructing the jury on the definition of “public park” or

otherwise frame his appellate challenge as a question of statutory interpretation, or as

an issue of law rather than fact. 3

¶18 We therefore do not view this claim as presenting a question of statutory

interpretation. This approach is consistent with our holding in State v. Davis

, 2007 UT

App 13, 155 P.3d 909. There we held that a trial court erred by instructing the jury that a

bicycle path was a public park within the meaning of the drug

‐ free zone statute.

Id. ¶¶ 9–10, 12 (citing State v. Powasnik

, 918 P.2d 146, 148–50 (Utah Ct. App. 1996)).

Rather, “the trial court should have allowed the jury to determine whether the bicycle

path was a public park within the meaning of the drug

‐ free zone statute.” Id. ¶ 9. 45 On appeal, Cardona

‐ Gueton maintains that trial witnesses used the word “park”

before the word “bench” to refer to its style, not its location. We agree that the term is

ambiguous.

20110146

‐ CA 7 ¶19 “Because we decline to view this case as presenting a question of statutory

interpretation, and because the statute itself does not define [‘public park’], we give

broad deference to the jury’s common sense understanding of this phrase.” See State v.

White

, 2011 UT App 162, ¶ 11 n.7, 258 P.3d 594. At trial, all of the witnesses, including

Cardona

‐ Gueton himself, referred to his location as being “in the park.” One officer

testified that Cardona

‐ Gueton was “smoking in the park.” On cross

‐ examination, he

added that he had seen Cardona

‐ Gueton standing “five feet from the park bench” when

the alleged drug transaction took place. 5 Another officer testified that the bench was “in

the park.” Cardona

‐ Gueton testified that he went “to the park every day” and that,

when he “got to the park [and] sat down[,]

. . . the bicycle

. . . was already there.” He

also agreed with the prosecutor that the bench on which he had been sitting was a

“park bench.” Finally, Cardona

‐ Gueton testified that he disposed of his cigarette when

the officers approached because he knew “that you’re not supposed to smoke in the

park.” Notably, no witness testified that Cardona

‐ Gueton was not in Pioneer Park at the

time of the offense.

¶20 Cardona

‐ Gueton argues that none of these witnesses had “actual knowledge of

whether the sidewalk was part of the park.” However, we do not know whether they

had such knowledge. None of the above testimony provoked an objection for lack of

foundation. As a result, the record is silent as to the extent and nature of the witnesses’

knowledge of the matter. The issue was not probed at trial because defense counsel did

not challenge the State’s evidence on this point. Indeed, the State correctly observes that

“defense counsel did not even argue in closing that the bench was not in the park.”

¶21 To successfully challenge the jury verdict, Cardona

‐ Gueton must demonstrate

that, viewing the evidence and all inferences which may reasonably be drawn from it in

the light most favorable to the verdict, reasonable minds must have entertained a

reasonable doubt that the offense occurred in Pioneer Park. See State v. Hamilton

, 827

P.2d 232, 236 (Utah 1992); Davis

, 2007 UT App 13, ¶¶ 10–11. Multiple witnesses testified

that it did. The jury was under no obligation to doubt that testimony or surmise that the

witnesses lacked knowledge of what constitutes a public park, and Cardona

‐ Gueton

apparently gave the jury no reason to do so. The evidence was therefore sufficient to

sustain the finding, and we will not disturb it on appeal.20110146

‐ CA 8 CONCLUSION

¶22 The evidence presented at Cardona

‐ Gueton’s trial was sufficient for the jury to

find that Cardona

‐ Gueton possessed the cocaine and intended to distribute it. The

evidence was also sufficient for the jury to find that the offense was committed within a

park. Accordingly, we affirm.

____________________________________ J. Frederic Voros Jr., Judge

‐‐‐‐‐

¶23 WE CONCUR:

____________________________________ William A. Thorne Jr., Judge

____________________________________ Stephen L. Roth, Judge