Opinion
Case No. 20010141-CA.
Filed April 11, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Judith S. Atherton.
Catherine E. Lilly and Ralph Dellapiana, Salt Lake City, for Appellant.
Mark L. Shurtleff, Kenneth A. Bronston, and Christine Soltis, Salt Lake City, for Appellee.
Before Judges Jackson, Bench, and Greenwood.
MEMORANDUM DECISION
Defendant challenges his conviction for Distributing, Agreeing, Consenting, Offering, or Arranging to Distribute a Controlled Substance, a second degree felony, under Utah Code Ann. § 58-37-8(1)(a)(ii) (Supp. 2001), on the bases of insufficiency of the evidence and prosecutorial misconduct. He also challenges the trial court's denial of his request for jury instructions on attempted possession and solicitation of a controlled substance. We affirm.
We first address Defendant's challenge to the sufficiency of the evidence. "When reviewing a jury verdict on an insufficiency of the evidence argument, we view the evidence and all inferences drawn therefrom in a light most favorable to the verdict. . . . So long as some evidence and reasonable inferences support the jury's findings, we will not disturb them." State v. Heaps, 2000 UT 5, ¶ 19, 999 P.2d 565.
Our review of the record reveals that the evidence, viewed in the light most favorable to the verdict, is sufficient to lead a reasonable jury to conclude beyond a reasonable doubt that Defendant was guilty of distributing a controlled substance. Further, we note that although Defendant mentioned the relevant facts in his attempt to marshal the evidence, he failed to "demonstrate that the evidence is insufficientwhen viewed in the light most favorable to the verdict." State v. Silva, 2000 UT App 292, ¶ 25, 13 P.3d 604 (quotations and citations omitted) (emphasis added). Instead, he merely reargues the facts in a light favorable to himself. Thus, we reject Defendant's challenge to the sufficiency of the evidence.
We next consider Defendant's prosecutorial misconduct argument. He contends he is entitled to a new trial due to "the prosecutor's prejudicial and inappropriate remarks made during closing argument."
Defendant claims the following three remarks made by the prosecutor during closing argument constitute prosecutorial misconduct: (1) "And what was the . . . explanation? They were going to his car. The car they brought his mother in to tell you he had sold."; (2) "If they really wanted you to believe that he had sold the car and he had that money from the sale of the car, don't you think they would have brought in the bill of sale? Don't you think they'd have brought in a transfer of title?"; and (3) "[Acevedo] sat there and told you in no uncertain terms that there's nothing that we could do once he was deported and that, yes, he would lie for his friends."
We review prosecutorial misconduct claims for an abuse of discretion and will reverse only if defendant has shown that [1] the actions or remarks of . . . counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict and, if so, [2] under the circumstances of the particular case, whether the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result.
State v. Kohl, 2000 UT 35, ¶ 22, 999 P.2d 7 (alterations in original) (quotations and citations omitted). Our analysis of the prejudice prong is dispositive of this issue; thus we do not address the first prong of this test.
Defendant argues that the State presented "`less compelling proof,'" resulting in a "`greater likelihood that [the jury was] improperly influenced through the remarks of counsel.'" State v. Span, 819 P.2d 329, 335 (Utah 1991) (citation omitted). After reviewing the record, we cannot say that the evidence against Defendant falls into the category of "`less compelling proof.'" Id. (citation omitted). We conclude that "`"proof of [D]efendant's guilt is strong[; thus], the challenged conduct or remark[s] will not be presumed prejudicial,"'" id. (citation omitted), when the court instructed the jury not to consider counsel's arguments as evidence — after Defendant objected to all three statements. Thus, Defendant is left only to speculate that the result might have been different were it not for the prosecutor's comments. As a result, we cannot say Defendant has met his burden of showing a reasonable likelihood that, absent the prosecutor's challenged statements, there would have been a result more favorable to himself. Accordingly, the trial court did not abuse its discretion, and Defendant's prosecutorial misconduct argument fails.
Finally, we address Defendant's challenge to the trial court's denial of his request for jury instructions on attempted possession and solicitation of a controlled substance. We review for correctness, see State v. Kruger, 2000 UT 60, ¶ 11, 6 P.3d 1116, whether the trial court properly applied
an "evidence-based" standard to decide whether the instruction is appropriate. . . . First, the court must determine whether the claimed lesser offense is an offense "included" in the charged offense. An offense is included when it falls within one of the definitions of section 76-1-402(3), as interpreted by our case law. . . .
. . . .
After determining that the offense is "included" under section 76-1-402(3), the court must decide whether "there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense."
In determining whether there is a "rational basis" in the evidence to support both acquittal of the greater and conviction of the lesser offense, a trial judge, though he or she cannot weigh the credibility of the evidence, must nevertheless decide whether there is "a sufficient quantum of evidence" to send this issue to the jury. To make this determination, the trial court must "view the evidence and the inferences that can be drawn from it in the light most favorable to the defense."
State v. Kruger, 2000 UT 60, ¶¶ 12-14, 6 P.3d 1116 (footnote and citations omitted).
We conclude that there is no rational basis in the record to support "`a verdict acquitting [Defendant] of the offense charged and convicting him'" of one of the suggested included offenses. Id. at ¶ 13 (citation omitted). As the trial court indicated, "[t]here is no evidence . . . suggesting that this defendant intended [or] attempted to purchase a controlled substance." Thus, even viewing "`the evidence and inferences that can be drawn from it in the light most favorable to the defense,'"id. at ¶ 14 (citation omitted), nothing in the record constitutes "`a sufficient quantum of evidence' to send this issue to the jury." Id. (citation omitted). Defendant only speculates as to what Defendant and Acevedo "could have been" up to, and points out perceived ambiguity or weaknesses in Detective Purvis's testimony. This argument does not constitute evidence. Thus, the trial court did not err by denying Defendant's request for jury instructions on attempted possession and solicitation of a controlled substance.
Affirmed.
Norman H. Jackson, Presiding Judge.
WE CONCUR: Russell W. Bench, Judge, Pamela T. Greenwood, Judge.