Opinion
Case No. 20000941-CA.
Filed February 14, 2002. (Not For Official Publication)
Appeal from the Fourth District, Provo Department, The Honorable Ray M. Harding, Sr.
Margaret P. Lindsay, Provo, for Appellant.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges Davis, Greenwood, and Orme.
MEMORANDUM DECISION
Appellant Jack V. Wilkinson appeals his conviction for possession or use of methamphetamine, a third degree felony under Utah Code Ann. § 58-37-8(2)(a)(i), (b)(ii) (1998). Wilkinson claims the evidence was insufficient to support a conviction. When we review a jury verdict on a sufficiency of the evidence challenge, we view the "`evidence and the reasonable inferences which might be drawn therefrom . . . in the light most favorable to the jury verdict.'" State v. Salas, 820 P.2d 1386, 1387 (Utah Ct.App. 1991) (quoting State v. Johnson, 774 P.2d 1141, 1147 (Utah 1989)). "A jury conviction is reversed for insufficient evidence 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." Id.
Wilkinson does not contest his misdemeanor convictions.
There was evidence introduced at trial that Wilkinson, who was a passenger in a vehicle stopped for erratic operation, appeared "out of it," had a track mark on his left arm, had a syringe in the pocket of his pants, and declared "he hadn't shot up since that morning." There was also evidence that when the vehicle was stopped and Wilkinson was asked to step out of the vehicle, he kicked a syringe and spoon out onto the ground, then as he exited the vehicle, he stooped over and tried to surreptitiously toss the syringe back into the vehicle. The spoon tested positive for traces of methamphetamine. The officers who effectuated the traffic stop also discovered a bag of drug paraphernalia and some marijuana under the passenger's side of the bench-style seat of the vehicle. There was testimony that the methamphetamine at issue was in a small bag located in the center of the passenger's seat — where a person would naturally sit while in the vehicle.
Although there is no direct evidence of actual possession of the methamphetamine by Wilkinson, there was sufficient circumstantial evidence to prove a "nexus between [Wilkinson] and the [methamphetamine] to permit an inference that [Wilkinson] had both the power and the intent to exercise dominion and control over the [methamphetamine]." State v. Fox, 709 P.2d 316, 319 (Utah 1985) (listing incriminating statements made by accused, drugs located in area over which accused had control, and drug paraphernalia among accused's personal effects as nonexclusive factors in making constructive possession determination); see also Salas, 820 P.2d at 1388 (listing incriminating statements, incriminating or suspicious behavior, use of drugs, proximity of accused to drugs, and drugs on accused's person as factors). Thus, we conclude there was sufficient evidence of constructive possession, and Wilkinson's conviction is affirmed.
WE CONCUR: Pamela T. Greenwood, Judge, Gregory K. Orme, Judge.