State v. Miller

2008 UT 61
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20060989
Plaintiff and Appellee,
v.
F I L E D
Curtis John Miller,
Defendant and Appellant. 	August 29, 2008
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Third District, Salt Lake
The Honorable Deno Himonas
No. 041905644
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Karen A. Klucznik,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Linda M. Jones, Salt Lake City, for defendant
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	Following a jury trial, Curtis Miller (“Miller”) was
convicted of two counts of felony possession of a controlled
substance in violation of Utah Code section 58-37-8(2)(a)(i) (the
“possession statute”). 	Miller seeks to have his conviction
reversed and his case remanded for a new trial. 	He claims that
the trial court erred in failing to instruct the jury on his
proposed defense of innocent possession. 	For the reasons
detailed below, we remand for a new trial in which Miller will be
entitled to an instruction on the defense of innocent possession.
BACKGROUND
¶2 	The material facts are not in dispute. 	Miller works as
a general contractor, and in April 2004, he had a crew of about
ten men working for him on a basement remodel project. 	Among the
crew were Jason Lemon and Vincent Henderson. 	On April 10, the
crew finished the project and had a party at Miller’s house to
celebrate. 	About twenty people, including Lemon and Henderson,
came to Miller’s home that night.

1 Jason Lemon testified that while at the party, Vincent
Henderson was “really wasted . . . . [and] excited that he had
called this escort service.” 	He also testified that Henderson
“announced it to everybody,” but left the party before anyone
from the escort service arrived.
No. 20060989 	2
¶3 	According to Miller, by 2:00 a.m., only one of Miller’s
friends, who was asleep on Miller’s sofa, remained at his home.
Then, at 2:30 a.m., a woman arrived at Miller’s door asking if he
had called an escort. 1 	Miller said, “no,” but the woman demanded
that he pay her $85.00 for “showing up.” 	Miller refused.
¶4 	After the woman left, Miller started cleaning up his
apartment in preparation for a visit from his grandchildren the
next day. 	Fifteen minutes later, the same woman returned with
“two other guys,” who were yelling and “kicking the door.” 	After
Miller opened the door and told the group he was calling 911,
they left. 	Miller did not call 911 at that time. 	The men
returned shortly thereafter and “were even louder[,] . . . .
[were] kicking [Miller’s] door[,]” and “were very threatening,
saying that they were going to beat [him] and make him pay.” 	In
response to this, Miller called 911 for the first of four times
that night.
¶5 	Sergeant John Beener responded to Miller’s first call,
checked around the home’s exterior, but found no one. 	Sergeant
Beener then entered Miller’s home and talked with Miller, who
appeared to be “extremely intoxicated, [with] bloodshot, watery
eyes, slurred[,] interrupted speech, a lack of comprehension,
[and] a loss of balance.” 	Miller told Sergeant Beener about the
threats he had received from the escort service. 	When Sergeant
Beener attempted to get more information from Miller, Miller
accused Sergeant Beener of being “on the take” from the escort
service. 	Sergeant Beener left Miller’s home because he did not
consider the issue to be a police matter. 	He got into his police
car and pulled into a parking lot across the street from Miller’s
home to complete paperwork.
¶6 	After Sergeant Beener left, Miller began cleaning up
again and found a glass pipe and a pill bottle on his coffee
table. 	He recognized the pill bottle as one containing a
prescription medication, so he put it in his pants pocket with
the intention of later putting it in his medicine cabinet--out of
the reach of his grandchildren--and then returning it to its
owner. 	Although Miller did not look at the name on the bottle
before placing it in his pocket, he learned after his arrest that
it belonged to Henderson. 	Miller also put the glass pipe in his
pants pocket. 	As Miller was cleaning, the escort service called

3 	No. 20060989
Miller’s home one or two times to demand payment. 	In response,
Miller called 911 the second and third times. 	Sergeant Beener
did not respond to Miller’s second and third calls because he
“was sitting there staring at the residence” and could see that
no one was at Miller’s home. 	When Miller called the fourth time,
Sergeant Beener returned to Miller’s home and arrested him for
abuse of the 911 system and for intoxication.
¶7 	In a search incident to Miller’s arrest, Sergeant
Beener found the glass pipe and the prescription bottle with
Vincent Henderson’s name on it in Miller’s pants pocket. 	The
bottle contained four pills of oxycodone, four pills of
hydrocodone, and one pill for gastro-intestinal problems.
¶8 	Sergeant Beener prepared to take Miller to jail and, at
Miller’s request, went to Miller’s bedroom to get Miller’s shoes
and keys. 	While Sergeant Beener was in the bedroom, he found “a
mirror and a pipe laying out.”
¶9 	Miller was charged with two counts of possession of a
controlled substance, both third degree felonies; one count of
possession of drug paraphernalia, a class B misdemeanor;
emergency reporting abuse, a class B misdemeanor; and
intoxication, a class C misdemeanor. 	In November 2004, Miller
was bound over on all charges and was tried to a jury in June
2006.
¶10 	At the close of Miller’s jury trial, the trial court
excused the jury, and Miller’s counsel proposed that the court
give the jury an instruction on the defense of innocent
possession. 	The proposed instruction, which was based on a
weapons charge defense, provided that possession was innocent if
“(1) the firearm was attained innocently and held with no illicit
or illegal purpose, and (2) . . . the possession of the firearm
was transitory; that is that the defendant took adequate measures
to rid himself of possession of the firearm as promptly as
reasonably possible.”
¶11 	The trial court rejected the proposed instruction,
noting that it was “inclined to give the . . . possession
instruction just based on the plain language of the statute.”
Defense counsel objected. 	The jury found Miller guilty of two
counts of possession of a controlled substance and possession of
drug paraphernalia but acquitted him of abusing the reporting
system and intoxication. 	The court sentenced Miller to two terms
of zero to five years, suspended the terms, and ordered Miller to
report to jail to serve 365 days followed by thirty-six months
probation.

2 Miller has not appealed his conviction for possession of
drug paraphernalia; therefore, we limit our discussion and
application of the innocent possession defense to Miller’s
possession of the controlled substances.
3 While Miller was unable to locate Henderson--who is often
homeless--to testify at his jury trial, he did locate Henderson
following the trial, and he obtained an affidavit in which
Henderson states that he had a prescription for the hydrocodone
and oxycodone and that he “forgot to take [his] medication with
[him]” when he left the party.
2002 UT 118, ¶ 11, 62 P.3d 444.
4 State v. S.H.,
No. 20060989 4
¶12 	Miller timely appealed, claiming that the trial court
erred in two ways. 	First, he claims that the court erred in
refusing to instruct the jury on his proposed defense of innocent
possession of the controlled substances. 2 	Miller claims that he
was entitled to an instruction on this defense because the
evidence supported his claim that “his possession of the drugs
was innocent, where he did not take control of the drugs for any
illegal purpose; rather, he took possession of the bottle in
order to return it to its lawful owner.” 	Second, Miller claims
that the trial court erred in refusing to grant his motion for a
new trial based on newly discovered evidence. 	The new evidence
Miller argues he has discovered is the testimony of Henderson,
which would directly establish Henderson’s ownership of the
prescription pill bottle found in Miller’s pants pocket. 3
Finally, Miller claims he received ineffective assistance of
counsel at his trial. 	Because we are remanding for a new trial
at which Miller will be entitled to an innocent possession
defense instruction, we need not reach his argument that he is
entitled to a new trial based on newly discovered evidence or his
argument that he received ineffective assistance of counsel.
We have jurisdiction pursuant to Utah Code section 78A-3-
102(3)(b) (2008).
STANDARD OF REVIEW
¶13 	“Whether a jury instruction correctly states the law
presents a question of law which we review for correctness.” 4
ANALYSIS
¶14 	Our analysis focuses on Utah Code section 58-37-
8(2)(a)(i), the possession statute under which Miller was
charged.

5 Utah Code Ann. § 58-37-4(2)(b)(i)(A)(X), (XIV) (2007)
(listing hydrocodone and oxycodone as Schedule II controlled
substances).
6 Id. § 76-1-105 (2003) (“Common law crimes are abolished
and no conduct is a crime unless made so by this code, other
applicable statute or ordinance.”).
7 State v. Gardiner, 814 P.2d 568, 574 (Utah 1991).
8 Utah Code Ann. § 58-37-8(2)(a)(i) (2007).
9 Under the theory of constructive possession, a person may
be found guilty of possession where drugs or contraband are in
the person’s home even if not on his or her person. 	See e.g.,
State v. Layman, 1999 UT 79, 985 P.2d 911.
5 	No. 20060989
¶15 	Miller was charged under a statute that prohibits
possession of certain controlled substances, including oxycodone
and hydrocodone. 5 	Utah Code section 58-37-8(2)(a)(i) provides
that a defendant is guilty of the crime of possession if he
(1) knowingly and intentionally, (2) possesses, (3) a controlled
substance.
¶16 	Utah’s criminal law is statutory. 6 	Thus, all criminal
defenses “must be grounded in the specific code sections” under
which the defendant is charged. 7 	The possession statute under
which Miller was charged provides an affirmative defense to the
crime of possession in only one instance--if the controlled
substance “was obtained under a valid prescription or order,
directly from a practitioner.” 8 	Because this possession statute
does not provide an explicit affirmative defense of innocent
possession, the defense exists only if the statute implicitly
includes it. 	And the State concedes that--at least in some
measure--the statute does.
¶17 	During oral argument, the State was asked how Miller,
or any homeowner, could avoid criminal liability if a house guest
inadvertently leaves a bottle of controlled substance
prescription pills in the homeowner’s home. 	The State responded
that a homeowner would not violate the possession statute if he
or she immediately called the police or the owner of the
medication. 	But during either call, the homeowner would clearly
“possess” the medication. 9 	By admitting that certain types of
possession do not violate the statute, the State conceded that
some form of innocent possession defense exists. 	We agree.

10 State v. Bluff, 2002 UT 66, ¶ 34, 52 P.3d 1210.
11 State ex rel. Z.C., 2007 UT 54, ¶ 6, 165 P.3d 1206
(citations omitted).
12 Id.
13 Utah Code Ann. § 58-37-8(2)(a)(i).
14 Id. § 58-37-2(1)(ii).
15 Bluff, 2002 UT 66, ¶ 34.
16 Utah Code Ann. § 76-1-106.
No. 20060989 	6
¶18 	Our rule of statutory interpretation requires us “to
give effect to the intent of the legislature in light of the
purpose the statute was meant to achieve.” 10 	The best evidence
of the legislature’s intent is “the plain language of the statute
itself.” 11 	And “[w]hen examining the statutory language, we
assume the legislature used each term advisedly and in accordance
with its ordinary meaning.” 12
¶19 	The plain language of the possession statute provides
that a defendant is guilty of the crime of possession if he (1)
knowingly and intentionally, (2) possesses, (3) a controlled
substance. 13 	The Controlled Substance Act defines “possession”
using terms such as “retaining” and “maintaining,” and it
provides that possession may be inferred if the person charged
has “the ability and the intent to exercise dominion and control
over” the item. 14 	This definition does not, however, clarify
whether the term “possess,” as it is used in the possession
statute, includes the type of innocent possession at issue here--
temporary possession for the purpose of returning a controlled
substance to its lawful owner. 	And when we “find a provision
that causes doubt or uncertainty in its application, we must
analyze the act in its entirety and harmonize its provisions in
accordance with the legislative intent and purpose.” 15
¶20 	In this case, the legislature has clearly evinced its
intent regarding how courts are to interpret the penal code.
Most important is the legislature’s directive that the penal code
shall not “be strictly construed.” 16 	Rather, courts are to
construe the code’s provisions “according to the fair import of
their terms to promote justice and to effect the objects of the

17 Id. (emphasis added).
18 Id. § 76-1-104 (emphasis added).
19 Universally, courts that recognize an innocent possession
defense cite public policy reasons for doing so, chiefly to
“prevent a conviction for an innocent act.” 	People v. E.C., 761
N.Y.S.2d 443, 445 (Sup. Ct. 2003). 	In People v. E.C., the New
York appellate court recognized an innocent possession defense
and hypothesized that a juror who handles illegal drugs as part
of a review of the evidence would be guilty of possession under a
strict interpretation of the possession statute. 	Id. 	California
also recognizes the innocent possession defense and applies it to
“fleeting and transitory” possession of illegal drugs “for the
purpose of disposal.” 	People v. Martin, 25 P.3d 1081, 1088-89,
n.9 (Cal. 2001).
7 	No. 20060989
law and the general purposes of Section 76-1-104.” 17 	Section 76-
1-104 further advises courts to construe the code to “[d]efine
adequately the conduct and mental state which constitute each
offense and safeguard conduct that is without fault from
condemnation.” 18
¶21 	Strictly construing the term “possess” to include every
type of possession, whether culpable or innocent, contradicts the
legislature’s directive to avoid strictly construing the code,
and it is contrary to the policy goals of safeguarding faultless
conduct and promoting justice. 	This is most apparent in the many
examples of injustices that may result from strictly construing
the term “possess.” 	A daughter who no longer lives at home but
who picks up her sick mother’s prescription medication and drives
it to her mother’s home, for example, could be guilty of felony
possession under a strict construction of the term “possess.” 19
And, as this case demonstrates, a house guest who inadvertently
leaves a prescription bottle of pills at a homeowner’s home
creates an impossible situation for the homeowner wherein she
could do nothing short of immediately fleeing her home to avoid
“possessing” the pills. 	Because construing the term “possess” to
include brief, innocent possession contradicts the legislature’s
interpretative guidelines and creates a myriad of absurd
prosecutorial possibilities, we hold that the term “possess,” as
it is used in section 58-37-8(2)(a)(i), excludes transitory
possession of a controlled substance for the purpose of returning
it to its lawful owner. 	That is, we hold that the possession

20 We also note that the legislature has provided the
statutory defense of justification. 	The justification defense
protects from prosecution conduct that is “justified for any
. . . reason under the laws of this state.” 	Utah Code Ann. § 76-
2-401(1)(e). 	This is a broad catchall provision that allows
courts to ensure that justice is done. 	In this case, we believe
that justice requires interpreting the possession statute to
include the defense of innocent possession.
21 See United States v. Mason, 233 F.3d 619 (D.C. Cir. 2000);
cf. United States v. Curls, 219 F. App’x 746, 758 (10th Cir.
2007) (recognizing the “fleeting possession” defense that
requires a defendant “to establish that he (a) ‘merely
momentarily possessed [the] contraband’ and (b) ‘either lacked
knowledge that he possessed the contraband or had a legally
justifiable reason to possess it temporarily’”).
No. 20060989 	8
statute implicitly includes the defense of innocent possession. 20
We next address the parameters of that defense.
¶22 	Miller proposed an instruction for the innocent
possession of drugs based on an instruction that the Court of
Appeals for the District of Columbia recognizes for the innocent
possession of firearms. 21 	Tailoring the innocent possession of
firearms defense to a controlled substance possession charge, the
defense applies if (1) the controlled substance was attained
innocently and held with no illicit or illegal purpose, and
(2) the possession of the controlled substance was transitory;
that is, that the defendant took adequate measures to rid himself
of possession of the controlled substance as promptly as
reasonably possible.
¶23 	This is an appropriate instruction. 	It requires that a
standard of reasonableness be applied to the innocent possession
of a controlled substance, and in so doing, does not impose an
obligation on individuals to focus their efforts exclusively on
returning a controlled substance to its lawful owner once it
comes into their possession. 	Nor does this instruction impose an
arbitrary time limit for return of a controlled substance or
require only fleeting or momentary possession that may not be
practical given the circumstance. 	If a possessor of a controlled
substance takes reasonable action to return that substance to its
lawful owner, possession may be longer than momentary, yet the
possessor would still be entitled to an instruction on the
defense of innocent possession. 	The instruction leaves to the
jury the question of whether a defendant took adequate measures
to rid himself of a controlled substance as promptly as
reasonably possible.

9 	No. 20060989
CONCLUSION
¶24 	We hold that the term “possess” as used in Utah Code
section 58-37-8(2)(a)(i) excludes temporary possession of a
controlled substance for the purpose of returning it to its
lawful owner. 	Thus, the statute implicitly includes the defense
of innocent possession, and Miller was entitled to an instruction
based upon it. 	Because the trial court refused Miller’s proposed
instruction, we remand for a new trial at which Miller is
entitled to the following innocent possession defense
instruction: 	the defendant’s possession of the controlled
substances found in his pocket did not violate Utah Code
subsection 58-37-8(2)(a)(i) if (1) the controlled substance was
obtained innocently and held with no illicit or illegal purpose,
and (2) the possession of the controlled substance was
transitory; that is, the defendant took adequate measures to rid
himself of possession of the controlled substance as promptly as
reasonably possible. 	It will be for the jury to decide whether,
given this instruction along with the facts Miller presents, his
possession was innocent.
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¶25 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Judge Bench concur in Associate Chief Justice Durrant’s
opinion.
¶26 	Justice Nehring does not participate herein; Court of
Appeals Judge Russell W. Bench sat.