Opinion
Case No. 20060327-CA.
February 23, 2007. (Not For Official Publication).
Third District, Salt Lake Department, 051907437, The Honorable Robin W. Reese.
Andrea J. Garland and Linda M. Jones, Salt Lake City, for Appellant.
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
BEFORE JUDGES DAVIS, McHUGH, and ORME.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under existing law.
Although Defendant adequately marshaled the evidence in support of his conviction, he failed to "demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." State v. Pritchett, 2003 UT 24, ¶ 22, 69 P.3d 1278 (quoting State v. Hopkins, 1999 UT 98, ¶ 14, 989 P.2d 1065) (internal quotation marks omitted). In a jury trial, "`[i]t is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses.' So long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our inquiry stops." State v. Boyd, 2001 UT 30, ¶ 16, 25 P.3d 985 (quoting State v. Booker, 709 P.2d 342, 345 (Utah 1985)) (emphasis omitted).
We address only the underlying offense because Defendant did not separately argue the merits of the sentence enhancement in his brief.
To prove that a defendant is guilty under the arranging statute, the prosecution must present evidence showing that the defendant committed an "act in furtherance of an arrangement" to distribute controlled substances and that the defendant acted knowing or intending "that such distribution would, or would be likely to, occur." State v. Harrison, 601 P.2d 922, 923-24 (Utah 1979). "[A]ny witting or intentional lending of aid in the distribution of drugs, whatever form it takes, is proscribed by the act." Id. at 923. "Proof of an actual sale is not an element of the crime," State v. Hester, 2000 UT App 159, ¶ 11, 3 P.3d 725, and a jury may infer a defendant's "[k]nowledge or intent . . . from the [defendant's] conduct viewed in light of all the accompanying circumstances." State v. Kihlstrom, 1999 UT App 289, ¶ 10, 988 P.2d 949.
In this case, Defendant nodded on two different occasions to the undercover police officers, "gesturing to the van to pull over[.]" Once the van stopped, Defendant and Smith approached the vehicle simultaneously. Officer Boelter asked, "What you got?" Smith replied, "What you want?" When Officer Boelter stated "rock," Defendant responded, "How much you want? A Hundred? They are big rocks."
While Defendant vehemently denied making this statement and offered an innocent explanation for his presence, when viewed in a light most favorable to the verdict, the evidence tends to show that Defendant was a link in the chain of events that led to the drug sale. See State v. Pelton, 801 P.2d 184, 185 (Utah Ct.App. 1990). In reviewing this evidence, a jury could logically conclude beyond a reasonable doubt that Defendant's actions amounted to (1) initiating contact by "gesturing to the van to pull over," and (2) participating in a negotiation for the sale of cocaine by describing the drugs available and stating a price. These acts surely fall within the broad scope of the statute as interpreted by the Utah Supreme Court. See Harrison, 601 P.2d at 923.
Defendant argues that the evidence discussed above fails to support a finding that he intentionally or knowingly committed an act in furtherance of the distribution of drugs because his conduct did not result in a drug sale. Contrary to Defendant's assertion, we conclude that a jury could, beyond a reasonable doubt, infer Defendant's knowledge or intent from his presence, companionship, and conduct at the time the transaction took place. Cf. American Fork City v. Rothe, 2000 UT App 277, ¶ 7, 12 P.3d 108.
Affirmed.
Gregory K. Orme, Judge
WE CONCUR: James Z. Davis, Judge, Carolyn B. McHugh, Judge.