Opinion
No. 990973-CA.
September 8, 2000. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable William Barrett.
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellant.
Joan C. Watt, Salt Lake City, for Appellee.
Before Judges BENCH, DAVIS, and THORNE.
MEMORANDUM DECISION
The State argues that because actual involvement in a clandestine lab is not an element of the offense charged, it was not required to establish an actual physical connection between defendant and the lab located in his residence. Although we agree that showing a physical connection between defendant and an operating laboratory is not required, the statute does require the State to establish that defendant, intending to "engage in a clandestine laboratory operation," actually possessed the controlled substance precursor, or laboratory equipment, or supplies. Utah Code Ann. § 58-37d-4(1)(a) (b) (1998) (providing it is unlawful to knowingly or intentionally "possess" such items "with the intent to engage in a clandestine laboratory operation"). Further, in order to prove constructive possession, "it is necessary that `there [be] a sufficient nexus between the accused and the drug [or paraphernalia] to permit an inference that the accused had both the power and the intent to exercise dominion and control over the drug [or paraphernalia].'" State v. Layman, 1999 UT 79, ¶ 13, 985 P.2d 911 (alterations in original) (quoting State v. Fox, 709 P.2d 316, 319 (Utah 1985)). In determining whether there is constructive possession, we may "consider factors that were considered relevant by an appellate court analyzing a factually-similar context." Id. at ¶ 15.
In this case, the evidence demonstrated that defendant lived in the house for approximately three weeks before the controlled substance precursors and laboratory equipment were found. Alone, this is not enough to establish constructive possession. See Fox, 709 P.2d at 319 (stating "[o]wnership and/or occupancy of the premises upon which the drugs are found, although important factors, are not alone sufficient to establish constructive possession, especially when occupancy is not exclusive"). The room containing the laboratory was rented to someone other than defendant, and there was no evidence indicating that defendant had any control over the room or its contents. See id. (providing one factor of constructive possession may be "presence of drugs in a specific area over which the accused had control"). No controlled substance precursors or laboratory equipment were found among defendant's personal effects, see id. (providing another factor of constructive possession may be "presence of drug paraphernalia among the accused's personal effects or in a place over which the accused has special control"), and defendant made no incriminating statements connecting him to the laboratory found in the house.See id. Simply put, the evidence does not "`permit an inference that [defendant] had both the power and the intent to exercise dominion and control'" over the contraband found in the downstairs bedroom. Layman, 1999 UT 79 at ¶ 13 (quoting Fox, 709 P.2d at 319). Therefore, because the State did not "produce enough evidence sufficient to survive a motion for a directed verdict with respect to each element of the crime," the trial court properly quashed the bindover. State v. Talbot, 972 P.2d 435, 438 (Utah 1998).
Accordingly, we affirm.
WE CONCUR: JAMES Z. DAVIS, Judge, and WILLIAM A. THORNE, JR., Judge.