State v. Gurr

904 P.2d 238, 274 Utah Adv. Rep. 26, 1995 Utah App. LEXIS 88, 1995 WL 574737
CourtCourt of Appeals of Utah
DecidedSeptember 28, 1995
DocketNo. 940657-CA
StatusPublished
Cited by1 cases

This text of 904 P.2d 238 (State v. Gurr) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gurr, 904 P.2d 238, 274 Utah Adv. Rep. 26, 1995 Utah App. LEXIS 88, 1995 WL 574737 (Utah Ct. App. 1995).

Opinion

OPINION

JACKSON, Judge:

Kevin W. Gurr appeals his convictions for possession of a controlled substance with intent to distribute, a third degree felony, in violation of Utah Code Ann. § 58-37-8(l)(a)(iv) (Supp.1995) and for possession of a dangerous weapon by a restricted person, a third degree felony, in violation of Utah Code Ann. § 76-10-503 (1995). 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). Gurr challenges the trial court’s rulings regarding sufficiency of the evidence and his restricted person status. We affirm.

FACTS

On October 20, 1993, officers from the Utah County Narcotics Enforcement Team executed a valid search warrant on a camp trailer located behind a business at 935 South State Street, Provo, Utah. Gurr had resided in the camp trailer for approximately two years. Around October 1, 1993, Gurr began spending some nights at his girlfriend’s, and he moved some of his things into her apartment. However, Gurr was still using the camp trailer as his primary residence, and the majority of his personal belongings remained there.

On the evening officers executed the warrant, Gurr had returned to the trailer to spend the night. Gurr was checking phone messages when the officers knocked and identified themselves. The officers handcuffed Gurr and proceeded to search the ten-by-fourteen-foot trailer. They discovered six baggies of marijuana, finger scales, five one-gallon plastic bags containing marijuana residue, plastic sandwich bags, an empty box of plastic sandwich bags, marijuana leaves strewn over the table, a cellular phone, a twelve-gauge shotgun, and a .22 caliber rifle.

The State charged Gurr with possession of drug paraphernalia within 1000 feet of a church, possession of a controlled substance with intent to distribute within 1000 feet of a church, and possession of a dangerous weapon by a restricted person. Seven years earlier, on May 2, 1986, Gurr had pleaded guilty to burglary, a third degree felony. Because of circumstances surrounding the charge, the trial court in the 1986 ease sentenced Gurr as if he had been convicted of a class A misdemeanor. In the present case, the state pursued the charge of possession of a dangerous weapon by a restricted person based on Gurr’s earlier burglary conviction.

Gurr waived his right to a jury trial. Following a bench trial, the court found that the first two offenses did not occur in a drug free zone within 1000 feet of a church. The trial court, however, did find Gurr guilty of possession of drug paraphernalia, possession of controlled substance with intent to distribute, and possession of a dangerous weapon by a restricted person. Gurr now appeals his convictions for the latter two offenses.

ISSUES

Gurr’s appeal presents three issues: (1) whether the evidence was sufficient to' support the trial court’s finding that Gurr possessed marijuana with intent to distribute; (2) whether the evidence was sufficient to support the trial court’s finding that Gurr possessed a dangerous weapon; and (3) [241]*241whether the trial court properly concluded that Gurr was a restricted person under Utah Code Ann. § 76-10-503 (1995).

ANALYSIS

I. Sufficiency of Evidence for Intent to Distribute

Gurr first contends that evidence introduced at trial was insufficient to establish intent to distribute marijuana.1 The State responds that the totality of the evidence and the context in which officers discovered that evidence clearly supports the trial court’s finding that Gurr possessed marijuana with intent to distribute.

When reviewing sufficiency-of-evidence challenges from criminal bench trials, we “must sustain the trial court’s judgment unless it is ‘against the clear weight of the evidence.’ ” State v. Goodman, 763 P.2d 786, 786 (Utah 1988) (quoting State v. Walker, 743 P.2d 191, 193 (Utah 1987)). “[W]e will review the record to see if the clear weight of the evidence, not including demeanor and credibility, is contrary to the verdict.” Id. at 787. After a careful review of the record in the present case, we find the State introduced sufficient evidence upon which the trial court properly could determine that Gurr possessed marijuana with the intent to distribute.

Upon searching Gurr’s trailer, narcotics officers discovered evidence strongly suggesting distribution as well as possession of marijuana. The narcotics officers had substantial law enforcement experience with drug trafficking. The officers testified that the one-gallon bags containing marijuana residue could hold up to a half pound of marijuana, that those bags were the kind typically used to package one-half pound quantities of marijuana, and that suppliers of street dealers usually package marijuana in one-half to one-pound quantities. Officers also testified that the sandwich bags and the bags that had been in the empty box were the kind street dealers typically use to package marijuana for street sale and that street dealers typically repackage one-half to one-pound marijuana packages into one-eighth-ounce packages.

The narcotics officers testified that street dealers commonly use finger scales to weigh their product and to measure out quantities of marijuana for sale. Indeed, one officer testified that almost every dealer had finger scales to weigh his product. One officer testified that Gurr admitted that he had received calls on the cellular phone from potential buyers inquiring about purchasing marijuana. Finally, one officer testified that the baggies of marijuana recovered from Gurr’s trailer constituted too much for personal use and that a user purchasing the total amount contained in the baggies would purchase it in a single package, not individual baggies.

Gurr concedes that he owned the baggies containing marijuana, the one-gallon bags, the finger scales, and the cellular phone. Gurr nevertheless argues that narcotics officers did not recover a sufficient quantity of marijuana from which the trial court could infer the intent to distribute. Generally, triers of fact must infer the intent to distribute from evidence such as the presence of equipment used to package controlled substances for sale and from possession of quantities larger than those typically purchased for personal use.

Although Utah courts have relied on possession of a quantity larger than necessary for personal use as indicative of intent to distribute, they have not exclusively focused on quantity in sustaining convictions. See, e.g., State v. Hansen, 710 P.2d 182, 183 (Utah 1985) (relying on quantity and presence of equipment to establish intent to distribute); State v. Fox, 709 P.2d 316, 320 (Utah 1985) (relying on quantity and agricultural production of marijuana to establish intent to distribute); State v. Phelps,

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Related

State v. McBride
940 P.2d 539 (Court of Appeals of Utah, 1997)

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Bluebook (online)
904 P.2d 238, 274 Utah Adv. Rep. 26, 1995 Utah App. LEXIS 88, 1995 WL 574737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gurr-utahctapp-1995.