State v. Clark

2015 UT App 289

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DEBBRAH JO CLARK,
Appellant.

Opinion
No. 20140262-CA
Filed November 27, 2015

Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 131400401

Lori J. Seppi and Heather J. Chesnut, Attorneys
for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
JAMES Z. DAVIS and KATE A. TOOMEY concurred. 1

PEARCE, Judge:

¶1 Debbrah Jo Clark appeals her conviction on one count of
theft by receiving stolen property, a third degree felony. See Utah
Code Ann. §§ 76-6-408, -412 (LexisNexis Supp. 2015). The State
charged Clark after a police officer recovered a stolen driver
license from the passenger seat of a truck in which Clark had
been riding. Clark appeals, arguing there was insufficient
evidence to connect her to the stolen license and that the district

1. Judge James Z. Davis participated in this case as a member of
the Utah Court of Appeals. He retired from the court on
November 16, 2015, before this decision issued.
State v. Clark

court erred in denying her motion to suppress evidence. We
affirm.

BACKGROUND

¶2 Christian Hale, an associate of Clark’s, took Clark to a
grocery store. Hale drove his single-cab pickup truck, while
Clark sat on the passenger side of the truck’s bench seat. They
parked, entered the store, and placed several packages of diapers
in a grocery cart. Clark returned to the truck, while Hale took the
unpurchased diapers to the store’s service desk and attempted to
return them for a refund.

¶3 Because Hale lacked a receipt for the diapers, store
personnel alerted Bobbie Davis, the store’s loss prevention
specialist. Davis reviewed security footage of the couple walking
through the store and observed them placing the diapers in the
cart. Davis also recognized Clark from a prior occasion when
Clark had used “somebody else’s identification” at the store.
Davis called the police to report the attempted refund fraud and
stopped Hale as he was leaving the store. Two police officers
responded and took Hale into custody.

¶4 Davis told the officers that Clark was also involved in the
refund fraud and that because Clark had previously used
another person’s identification, Davis was unsure of Clark’s real
name. The officers asked Davis to go to the parking lot and have
Clark return to the store. By this time, Clark had moved Hale’s
truck across the parking lot and was lying down on the truck’s
bench seat, apparently sleeping with her head on the driver’s
side. Davis woke Clark, and the two returned to the front of the
store, where Clark accurately identified herself to one of the
responding officers, Officer Brower. The officers arrested Clark
on outstanding warrants.

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State v. Clark

¶5 At this point, Hale remained in the back of a patrol car.
Brower asked Hale what he wanted done with his truck. Hale
gave Brower the keys with instructions to release the truck to
one of Hale’s friends. Brower used Hale’s phone to locate
someone willing to pick up the truck. Brower then waited by the
truck for Hale’s friend to arrive. As he waited, Brower looked
through the passenger side window of the truck and saw a
driver license lying face down on the passenger seat.
Remembering that there might be some question about Clark’s
identity and thinking she would need her identification in light
of her arrest, Brower opened the passenger door and retrieved
the license. The license was not Clark’s but instead belonged to
another woman (Victim). The license had been sitting atop a
recent paystub bearing Victim’s name and address. A court
document addressed to Clark was under the paystub. The stack
of documents and the license were on the passenger side of the
truck. Brower also observed an open purse on the passenger side
floor of the truck, with items spilling out of it.

¶6 Brower contacted Victim, who stated that her purse had
been stolen about a month earlier and that her driver license had
been in the purse. Victim did not know Clark and had not
authorized Clark or any other person to possess or use her
driver license. Victim also indicated that she had never worked
for the company that had issued the paystub in her name. Based
on this information, the State charged Clark with theft by
receiving Victim’s stolen driver license.

¶7 Before trial, Clark filed a motion to suppress the evidence
of the stolen driver license and paystub, arguing that Brower
violated the Fourth Amendment to the United States
Constitution when he retrieved the license from Hale’s truck.
The district court held an evidentiary hearing on Clark’s
suppression motion. Because Brower was unable to attend,
Davis, the grocery store’s loss prevention specialist, was the
State’s only witness at the hearing.

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¶8 At the hearing, Davis testified about the events leading up
to the discovery of Victim’s driver license. Over Clark’s hearsay
objection, the district court allowed Davis to describe the
exchange between Hale and Brower regarding Hale’s truck.
Davis testified that she had overheard the conversation and that
officers had

asked [Hale] what about his truck outside, what he
wanted done with it. He said, My keys are in my
pocket and they said is there anything in it we
should be concerned about? He said no and they
said, Do you mind if we take a look? He said no
and he gave them the keys and that’s—that was
that.

The district court overruled Clark’s hearsay objection, reasoning
that reliable hearsay may be considered at suppression hearings.
The district court then allowed further argument on whether the
consent evidence should nevertheless be excluded as unreliable.
After further hearings, the district court found that Davis’s
testimony was reliable. The court then denied Clark’s motion to
suppress, relying on Davis’s testimony to find that Hale had
consented to the search of his truck. 2

¶9 Davis, Brower, and Victim were the only witnesses at
Clark’s jury trial. The State’s only physical trial exhibits were the
recovered license and paystub. Davis and Brower described the
events surrounding Brower’s discovery of the license. Victim
described the theft of her purse and reiterated that Clark did not
have her permission to possess her license. At the close of the
State’s case, Clark asked the district court for a directed verdict,

2. The district court also ruled that Clark had standing, under the
Fourth Amendment, to challenge the search of Hale’s truck. That
ruling is not at issue on appeal.

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State v. Clark

arguing that the State had produced insufficient evidence to link
her to the stolen license. The district court denied the motion.

¶10 The district court instructed the jury that it could find that
Clark constructively possessed Victim’s driver license if the jury
found “a sufficient nexus between the defendant and the item to
permit a factual inference that the defendant had the power and
the intent to exercise control over the item.” The district court
also instructed the jury that it could consider the evidence that
Clark had previously used “another person’s identification” to
evaluate Clark’s intent but not as evidence of a criminal
propensity. The jury convicted Clark on the single count of theft
by receiving stolen property. Clark appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Clark argues that the State presented insufficient evidence
to prove that she constructively possessed the stolen driver
license found in Hale’s truck. “‘[W]e review the evidence in the
light most favorable to the verdict, and do not overturn a jury’s
verdict of criminal conviction unless reasonable minds could not
rationally have arrived at a verdict of guilty beyond a reasonable
doubt based on the law and on the evidence presented.’” State v.
Shepherd, 2015 UT App 208, ¶ 14, 357 P.3d 598 (quoting State v.
Bergwerff, 777 P.2d 510, 511 (Utah Ct. App. 1989)). “We may only
reverse a guilty verdict for insufficient evidence when that
evidence is so inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crimes underlying the
convictions.” State v. Lucero, 2015 UT App 120, ¶ 6, 350 P.3d 237.

¶12 Clark also argues that the district court erred in denying
her motion to suppress because the court relied on inadmissible
evidence to find that Hale had consented to the search of his
truck. “[W]e grant a trial court broad discretion to admit or
exclude evidence and will disturb its ruling only for abuse of

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discretion . . . .” State v. Gallup, 2011 UT App 422, ¶ 12, 267 P.3d
289 (alteration in original) (citation and internal quotation marks
omitted). Clark further argues that even if the consent evidence
was admissible, it was not sufficiently reliable to support the
district court’s finding that Hale granted consent to search his
truck. “When reviewing a district court’s denial of a motion to
suppress, the appellate court disturbs the district court’s findings
of fact only when they are clearly erroneous.” State v. Baker, 2010
UT 18, ¶ 7, 229 P.3d 650.

ANALYSIS

I. Sufficiency of the Evidence

¶13 A jury convicted Clark of theft by receiving stolen
property. A person commits theft by receiving stolen property if
she

receives, retains, or disposes of the property of
another knowing that it has been stolen, or
believing that it probably has been stolen, or . . .
conceals, sells, withholds or aids in concealing,
selling, or withholding the property from the
owner, knowing the property to be stolen,
intending to deprive the owner of it.

Utah Code Ann. § 76-6-408(1) (LexisNexis Supp. 2015). Clark
argues that the evidence presented at trial was insufficient to
demonstrate that she received or retained Victim’s driver license,
because the license was not found in her actual possession and
the evidence at trial was insufficient to establish constructive
possession.

¶14 The State did not contend that Clark actually possessed
the stolen license but instead relied on a theory of constructive
possession. “To establish constructive possession, the State must

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‘prove that there was a sufficient nexus between the accused and
[an item] to permit an inference that the accused had both the
power and the intent to exercise dominion and control over the
[item].’” State v. Gonzalez-Camargo, 2012 UT App 366, ¶ 17, 293
P.3d 1121 (quoting State v. Workman, 2005 UT 66, ¶ 31, 122 P.3d
639). “Whether a sufficient nexus exists depends upon the facts
and circumstances of each case.” Id. (citation and internal
quotation marks omitted).

¶15 Utah case law has identified several factors that may be
useful in evaluating a conviction based on constructive
possession: “whether the defendant owned or occupied the
location where the contraband was found, whether the
defendant had special or exclusive control over that area, any
incriminating statements or behavior by the defendant, and
previous possession of similar contraband by the defendant.”
State v. Lucero, 2015 UT App 120, ¶ 7, 350 P.3d 237; see also
Workman, 2005 UT 66, ¶ 32 (providing that “presence of the
defendant” near the location where the item was found and the
defendant’s proximity to the item are two factors, among others,
that “may be important” in determining whether the nexus is
sufficient). “This list is not exhaustive, nor is each factor always
pertinent.” Lucero, 2015 UT App 120, ¶ 7.

¶16 “[C]onstructive possession cannot be established solely by
nonexclusive ownership or occupancy of the place where the
contraband is found.” Id. ¶ 12. Rather, a defendant’s non-
exclusive occupancy of the premises—or in this case, the
vehicle—where an item is discovered “must be combined with
other evidence sufficient to establish the defendant’s knowing
and intentional control” over the item. Gonzalez-Camargo, 2012
UT App 366, ¶ 17. In such cases, “the quantum of ‘other
evidence’ needed to support an inference of power and intent to
exercise dominion and control equals the quantum of evidence
sufficient to eliminate reasonable doubt.” Lucero, 2015 UT App
120, ¶ 13.

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State v. Clark

¶17 In this case, Victim’s stolen driver license was discovered
in Hale’s truck. Although Clark had been the truck’s most recent
occupant, both Hale and Clark had recently occupied the truck
and had access to the passenger seat where Brower found the
license. Neither Clark nor Hale was present when the license
was discovered. There was no evidence before the jury that
anyone besides Hale or Clark had occupied or possessed the
truck. These facts, viewed alone, could give rise to a reasonable
inference that either Clark or Hale—or both—possessed the
stolen license. But standing alone these facts are insufficient to
establish Clark’s possession of the license beyond a reasonable
doubt. See id. ¶ 12; State v. Ashcraft, 2015 UT 5, ¶ 20 n.3, 349 P.3d
664 (“[I]f the only connection between a defendant and the
contraband is bare title or mere occupancy of the area in which it
is found, there may be substantial room for reasonable doubt as
to whether the contraband belongs to the defendant.”).

¶18 However, other evidence supports the jury’s conclusion
that Clark constructively possessed Victim’s stolen license. The
license was found on top of a paystub bearing Victim’s name
and address, leading to the reasonable inference that someone
had used Victim’s license to obtain the check, cash it, or both.
Victim denied any knowledge of the check, and as between
Clark and Hale, it was reasonable for the jury to infer that Clark,
rather than Hale, would have used a woman’s driver license to
obtain employment or cash a paycheck in Victim’s name.

¶19 Brower also found the license and paystub on top of a
court document bearing Clark’s name. On cross-examination,
Brower confirmed that the license, paystub, and court document
were “stacked together” on the seat of the truck. The discovery
of Victim’s license, the paystub, and Clark’s court document
together on the seat of the truck supports a reasonable inference
that Clark had possessed all three items.

¶20 Finally, the jury heard evidence that Clark had previously
used identification belonging to another person. The Utah

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Supreme Court has identified a defendant’s previous possession
of similar contraband as a factor that may support a finding of
constructive possession. Cf. State v. Workman, 2005 UT 66, ¶ 32,
122 P.3d 639 (listing “previous drug use” as a factor in
evaluating a defendant’s constructive possession of drugs). Here,
the jury could have inferred that Clark’s prior misuse of
another’s identification made it more likely that she intended to
exercise dominion and control over Victim’s license. 3

¶21 Clark identifies various factors bearing on constructive
possession that were present in other cases but are not present in
this case. For example, in State v. Workman, the defendant’s
fingerprints were found on a container used in a drug
laboratory, supporting her conviction for operating a clandestine
laboratory. See id. ¶¶ 33–35. And in State v. Martin, the defendant
was linked to methamphetamine found concealed in the seat
crack of a police cruiser, when he was “the only person to
occupy the back seat between the time the officer searched the
patrol car at the beginning of his shift and the time the officer
found the methamphetamine.” 2011 UT App 112, ¶ 3, 251 P.3d
860. But not every constructive-possession case will present
every factor that might bear on the question. See Workman, 2005
UT 66, ¶ 32 (“[T]hese factors are not universally pertinent, and

3. Clark argues the evidence of her prior use of false
identification makes it less likely that she possessed Victim’s
driver license. Clark reasons that if she possessed Victim’s
license, she would have—consistent with her prior practice—
used Victim’s license as false identification in furtherance of her
and Hale’s diaper-refund scheme. Even if this inference can be
considered reasonable, the jury could properly conclude that it
was not a sufficiently strong inference to give rise to reasonable
doubt. Cf. State v. Ramirez, 2012 UT 59, ¶ 13, 289 P.3d 444 (“The
relative strength of the competing inferences in this case was a
question for the jury at trial.”).

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State v. Clark

we are mindful that no such list is exhaustive, and that listed
factors are only considerations.” (citation and internal quotation
marks omitted)). Rather, the test is whether the evidence
presented in any particular case is sufficient to “permit a factual
inference that the defendant had the power and the intent to
exercise control over the [contraband].” State v. Lucero, 2015 UT
App 120, ¶ 7, 350 P.3d 237 (alteration in original) (citation and
internal quotation marks omitted).

¶22 Here, Brower discovered Victim’s driver license on the
passenger side seat of a truck most recently occupied by Clark.
The license was “stacked together” with a court document
bearing Clark’s name and was accompanied by a paystub,
suggesting the license had been used to obtain and cash a
paycheck in Victim’s name. There was no evidence that anyone
besides Clark or Hale ever occupied the truck or possessed the
stolen license. From these circumstances, the jury could
reasonably infer that Clark had used the license to pass herself
off as Victim to obtain employment and cash the paycheck. The
State also presented the jury with evidence that Clark had used
false identification in the past. Viewing the evidence in its
totality, and applying reasonable inferences in favor of the jury’s
verdict, “‘reasonable minds could . . . rationally have arrived at a
verdict of guilty beyond a reasonable doubt based on the law
and on the evidence presented.’” State v. Shepherd, 2015 UT App
208, ¶ 14, 357 P.3d 598 (quoting State v. Bergwerff, 777 P.2d 510,
511 (Utah Ct. App. 1989)). Thus, sufficient evidence exists to
support the jury’s finding that Clark received or retained
Victim’s stolen driver license, beyond a reasonable doubt.

II. Denial of Clark’s Motion to Suppress

¶23 Prior to her trial, Clark sought to suppress the evidence
Brower found in Hale’s truck, claiming that Brower violated the
Fourth Amendment to the United States Constitution when he
entered the truck’s cab without first obtaining a warrant. The
district court denied Clark’s motion to suppress because it found

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State v. Clark

that Hale had consented to a search of his truck. The court based
its finding on Davis’s testimony that she had overheard Hale tell
officers that he did not mind if they looked in his truck. Clark
argues that Davis’s consent testimony should have been
excluded from evidence as unreliable hearsay. She also argues
that even if the district court properly admitted the hearsay
evidence, the testimony was not sufficiently reliable to establish
Hale’s consent to the search.

¶24 “The Fourth Amendment to the United States
Constitution guarantees ‘[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.’” State v. Maxwell, 2011 UT 81, ¶ 13, 275
P.3d 220 (alteration in original) (quoting U.S. Const. amend. IV).
“Although a person has a lesser expectation of privacy in a car
than in his or her home, one does not lose the protection of the
Fourth Amendment while in an automobile.” State v. Schlosser,
774 P.2d 1132, 1135 (Utah 1989) (citation omitted). A police
officer’s opening of a vehicle’s door can constitute a search
under the Fourth Amendment. See id. at 1135–36.

¶25 “Warrantless searches are per se unconstitutional under
the Fourth Amendment unless conducted pursuant to a
recognized exception to the warrant requirement.” State v.
Bisner, 2001 UT 99, ¶ 43, 37 P.3d 1073. One such exception is a
search conducted with consent. Id. “Consent may come from the
person whose property is to be searched, from a third party who
has common authority over the property, or from a third party
who has apparent authority to consent to a search of the
property.” State v. Harding, 2011 UT 78, ¶ 10, 282 P.3d 31
(citations omitted).

¶26 The district court ruled that Hale consented to a search of
his truck when officers asked him if he minded if they “[took] a
look” in the truck and Hale responded that he did not mind.
Clark argues that Davis’s description of this exchange
constituted unreliable hearsay that should not have been

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State v. Clark

admitted into evidence at the evidentiary hearing. 4 Clark
concedes that the Utah Rules of Evidence do not apply at pretrial
suppression hearings, see Utah R. Evid. 104(a), and that the
district court could properly rely on hearsay evidence so long as
it was reliable, see United States v. Matlock, 415 U.S. 164, 175–77
(1974). However, Clark argues that Davis’s testimony did not
constitute “reliable” hearsay and should therefore have been
excluded. See id.

¶27 Clark asserts that Davis’s testimony was unreliable for a
host of reasons. Clark argues that Davis was not a “neutral
reporter,” see State v. Branch, 743 P.2d 1187, 1189 (Utah 1987); 5
that Davis’s testimony was “filtered” through her memory and
recollection, see id.; and that Davis’s memory may have been
biased due to her negative history with Clark, her close ties to
the prosecution, and her interest in seeing Clark prosecuted, see
id.; cf. State v. Ashe, 745 P.2d 1255, 1270 (Utah 1987) (Durham, J.,

4. The State does not contest Clark’s characterization of Davis’s
testimony as hearsay. See Utah R. Evid. 801(c) (defining hearsay
as a statement that “the declarant does not make while testifying
at the current trial or hearing” and that “a party offers in
evidence to prove the truth of the matter asserted in the
statement”).

5. State v. Branch, 743 P.2d 1187 (Utah 1987), addressed a type of
evidence—eyewitness identification testimony—that has its own
very particular set of reliability issues. See id. at 1188–91. See
generally State v. Clopten, 2009 UT 84, ¶ 49, 223 P.3d 1103
(providing that, in some circumstances, expert testimony on the
reliability of an eyewitness identification should be “routinely
admitted”); State v. Ramirez, 817 P.2d 774, 779–84 (Utah 1991)
(discussing the reliability of eyewitness identification testimony
following a suggestive police show-up). Factors that bear on the
reliability of eyewitness identifications may or may not bear
equally on other questions of reliability.

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State v. Clark

dissenting) (suggesting that officers “engaged in the often
competitive enterprise of ferreting out crime” may fail to
objectively evaluate the circumstances justifying an intrusion
into a constitutionally protected area (citation and internal
quotation marks omitted)). Clark relies on these factors to assert
that Davis’s testimony was unreliable because it was “self-
serving” and “clearly in [the State’s] interest.” (Citation and
internal quotation marks omitted.)

¶28 Clark also argues that the record raises serious doubts
about the accuracy of Davis’s testimony because her description
of Hale’s consent “was not corroborated,” see Roberts v. United
States, 399 F. Supp. 2d 650, 653 (D. Md. 2005), and was not
“memorialized in [a] police report,” see United States v. Boyce, 797
F.2d 691, 693 (8th Cir. 1986). She argues that Davis’s testimony
was “directly disputed” by Brower’s preliminary hearing
testimony, which made no mention of Hale explicitly granting
consent, and by Brower’s actions in failing to immediately search
the truck after allegedly receiving consent. See Roberts, 399 F.
Supp. 2d at 653. Finally, Clark argues that she was denied the
opportunity to confront and cross-examine the officer—
presumably Brower—who questioned Hale and elicited
permission to search the truck.

¶29 Clark has assembled an impressive list of concerns that
courts have expressed, in varying contexts, when assessing
witness reliability or lack thereof. However, we are not
convinced that the district court erred in finding Davis’s
testimony reliable in this case. See State v. Price, 827 P.2d 247, 250
n.6 (Utah Ct. App. 1992) (“We defer to the trial judge’s
determination ‘[b]ecause of the trial court’s position of
advantage to observe witnesses’ demeanor and other factors
bearing on credibility.’” (alteration in original) (quoting Ashe,
745 P.2d at 1258)). Although we acknowledge Clark’s concerns
about Davis’s neutrality, Davis testified under oath and under
penalty of perjury. Clark also had the opportunity to cross-

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examine Davis about her perception and interpretation of Hale’s
statement, as well as about any bias that Davis may have had
generally or against Clark in particular. During her cross-
examination of Davis, Clark could have availed herself of the
opportunity to explore the generalized concerns she now
raises—that Davis was not a neutral reporter, that Davis’s
testimony was filtered through her memory, and that Davis was
biased against Clark because of their previous interaction. But
Clark did not develop that record. We could speculate that
Davis’s employment may have influenced her worldview such
that one could surmise that she may not have been a completely
neutral witness. But Clark has presented us with no reason to
view Davis as so biased against her that we would, on appellate
review, discount the district court’s first-hand evaluation of
Davis’s credibility in relating Hale’s statement of consent.

¶30 We also reject Clark’s argument that Brower’s preliminary
hearing testimony contradicted Davis’s testimony. Brower’s
testimony partially corroborates Davis’s version of events—both
witnesses testified that Hale voluntarily entrusted his truck
and its keys to Brower. Further, because consent was not an
issue at the preliminary hearing, neither the State nor Clark
questioned Brower about Hale’s indication of consent to search
the truck. 6 Brower’s failure to volunteer unrequested testimony
about Hale’s consent does not equate to testimony by Brower
that Hale did not consent to the search of his truck.

¶31 The circumstances of this case do not establish that
Davis’s testimony was unreliable at all, much less so unreliable
as to mandate its exclusion. We affirm both the district court’s
finding that Davis’s testimony was reliable and its decision to
admit the testimony.

6. Clark did not file her motion to suppress until after the
preliminary hearing.

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¶32 Clark also argues that, even if Davis’s testimony was
admissible, it was insufficiently reliable to support a finding of
Hale’s consent. Clark acknowledges that the district court’s
finding of consent is a factual finding that we will not overturn
absent a showing that the finding is “clearly erroneous.” See
State v. Hansen, 2002 UT 125, ¶ 48, 63 P.3d 650. “[W]e will set
aside a factual finding only if it is against the clear weight of the
evidence or we reach a definite and firm conviction that a
mistake has been made.” State v. Cater, 2014 UT App 207, ¶ 10,
336 P.3d 32 (citation and internal quotation marks omitted).

¶33 In support of her argument that the district court’s
finding was clearly erroneous, Clark reiterates the same reasons
and authority that she identified in arguing that Clark’s
testimony was inadmissible due to unreliability. For all of the
reasons that we rejected Clark’s inadmissibility argument, we
also conclude that Davis’s description of Hale’s consent was
sufficiently reliable to support the district court’s consent
finding.

CONCLUSION

¶34 Clark has failed to establish that the State’s evidence was
insufficient to convict her, as the evidence was sufficient for the
jury to find, beyond a reasonable doubt, that Clark received or
retained Victim’s stolen driver license. Clark has also failed to
establish that the district court erred when it denied her motion
to suppress.

¶35 Affirmed.

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