State v. Hunter

2019 UT App 157
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
GLENN C ONWAY H UNTER ,
Appellant.
Opinion
No. 20180249-CA
Filed September 26, 2019
Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 161401898
Teresa L. Welch, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and K ATE A PPLEBY concurred.
MORTENSEN, Judge:
¶1 	Clad 	in 	camouflage 	pants, 	a 	black 	hoodie, 	black
sunglasses, 	a 	black 	hat, 	and 	a 	gold 	chain 	necklace, 	Glenn
Conway 	Hunter 	distributed 	methamphetamine 	and 	was
observed by two police officers (Officers) surveying the area for
just such activities. The Officers directed an arrest team to
apprehend Hunter, and in addition to the methamphetamine,
the Officers also found a handgun in his possession. A jury
convicted Hunter of possession of a controlled substance with
intent to distribute and possession of a firearm by a restricted
person. Hunter challenges the distribution conviction on appeal,
claiming misidentification and ineffective assistance of counsel
in failing to request a Long instruction. We affirm.

State v. Hunter
20180249-CA 	2 	2019 UT App 157
BACKGROUND1
The Arrest
¶2 	Around 	7:30 	on 	a 	June 	evening, 	the 	Officers 	were
conducting surveillance of possible drug dealing near a Salt Lake
City homeless shelter. From a building approximately 100 yards
away, the Officers used binoculars to observe the area. The
weather was temperate and provided adequate lighting for the
Officers to clearly see several dozen people near the shelter.
¶3 	While 	observing 	the 	area 	from 	adjoining 	rooms 	and
communicating with each other by radio, the Officers noticed
what appeared to be—and in fact was—a drug transaction. They
watched a white man (Buyer) approach and hand cash to a black
man (Seller). After receiving the cash, Seller retrieved a plastic
bag containing a white, grainy substance from his pocket and
handed some of the substance from the bag to Buyer. The
substance was later determined to be methamphetamine. During
this quick transaction,2 Seller was leaning against a fence, facing
toward the Officers. He wore camouflage pants, a black hooded
sweatshirt, black sunglasses, a black hat, and a gold chain
necklace. Buyer had his back toward the Officers and wore a
white tank top and light-colored pants.
¶4 	After the brief exchange, Buyer began to walk away, but
as he did, the Officers directed a team of officers to apprehend
him. The arrest team closed in on Buyer, and the Officers
focused 	their 	attention 	on 	him 	to 	ensure 	that 	the 	correct
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Maese, 2010 UT App 106, ¶ 2 n.2, 236 P.3d 155.
2. One of the Officers testified that the transaction lasted “20
seconds or so.”

State v. Hunter
20180249-CA 	3 	2019 UT App 157
individual was arrested. Buyer quickly left the Officers’ field of
vision, however, so the Officers returned their attention to Seller.
Seller was still standing in the same location and was still
wearing the same clothing: camouflage pants, a black hooded
sweatshirt, black sunglasses, a black hat, and a gold chain
necklace. Immediately thereafter, the arrest team confirmed via
radio that they had arrested Buyer, who was in possession of
methamphetamine.
¶5 	With this information, the Officers described Seller, his
location, and what he was wearing; then they directed another
arrest team to detain him. The Officers watched and verified that
the second arrest team had detained Seller. Seller was arrested,
found in possession of a handgun and over five grams of
methamphetamine. He then was identified as Hunter.
The Trial
¶6 	The State charged Hunter with possession of a firearm by
a restricted person, distribution of a controlled substance, and
possession 	of 	a 	controlled 	substance.3 	However, 	the 	State
ultimately dismissed the possession of a controlled substance
charge based on merger.4 The case went to trial, and at the close
of the State’s case-in-chief, Hunter moved for a directed verdict
on the distribution of a controlled substance charge. He argued
3. See Utah Code Ann. § 76-10-503(2)(a) (LexisNexis 2018); id.
§ 58-37-8(1)(a)(ii), (2)(a)(i). Because the statutory provisions in
effect at the relevant time do not differ in any material way from
those now in effect, we cite the current version of the Utah Code.
4. Under Utah Code section 76-1-402(3), “a defendant may not be
convicted of both the offense charged and a lesser included
offense.” State v. Garrido, 2013 UT App 245, ¶ 31, 314 P.3d 1014
(cleaned up).

State v. Hunter
20180249-CA 	4 	2019 UT App 157
that the State failed to “present sufficient evidence . . . that [he]
was the individual who was at the scene . . . [and] was the
individual who distributed that methamphetamine” primarily
because the Officers “took [their] eyes off the person” who had
sold the methamphetamine. Hunter also argued that there was
no 	evidence 	that 	the 	white 	substance 	in 	his 	bag 	was 	the
lab-tested methamphetamine due to problems with the chain of
custody. He specifically asserted that there was a break in the
chain of custody because documentation of the evidence did not
explicitly identify one of the officers who handled the bag.
¶7 	The trial court denied Hunter’s motion on both points. It
concluded that “the testimony was sufficient to show both the
identification 	of 	[Hunter] 	as 	the 	person 	who 	handed 	the
[methamphetamine], as well as the other individual . . . to whom
[Hunter] 	handed 	the 	[methamphetamine].” 	As 	to 	Hunter’s
chain-of-custody argument, the court reviewed the arresting
officers’ 	testimony 	regarding 	the 	evidence 	and 	stated 	that
although there were “some issues with the chain of custody,”
those issues went to the weight of the evidence, and they could
be considered by the jury. During closing arguments, Hunter
conceded that he was guilty of possession of a firearm by a
restricted person.
¶8 	The jury convicted Hunter, as charged, of possession of a
firearm by a restricted person and distribution of a controlled
substance. Hunter appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 	Hunter raises two issues on appeal. First, he contends that
he received ineffective assistance of counsel because his attorney
did not request a cautionary instruction under State v. Long, 721
P.2d 483, 492 (Utah 1986). “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of
law.” State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344 (cleaned up).

State v. Hunter
20180249-CA 	5 	2019 UT App 157
Second, Hunter contends that there was insufficient evidence to
support the jury verdict. “When a jury verdict is challenged on
the ground that the evidence is insufficient, we review the
evidence and all inferences which may reasonably be drawn
from it in the light most favorable to the verdict.” State v. Hirschi,
2007 UT App 255, ¶ 15, 167 P.3d 503 (cleaned up). “And we will
not reverse a jury verdict if we conclude that some evidence
exists from which a reasonable jury could find that the elements
of the crime had been proven beyond a reasonable doubt.” State
v. Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (cleaned up).
ANALYSIS
¶10 	We address Hunter’s contentions in turn and disagree
with him on both points.
I. Ineffective Assistance of Counsel
¶11 	Hunter’s counsel did not render ineffective assistance. To
prevail on an ineffective assistance of counsel claim, a defendant
must 	establish 	that 	counsel’s 	performance 	was 	objectively
deficient 	and 	that 	the 	deficient 	performance 	prejudiced 	the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Wilder, 2018 UT 17, ¶ 17, 420 P.3d 1064. “Because both prongs of
the Strickland test must be met to establish ineffective assistance
of counsel, we need not always address both prongs.” State v.
Goode, 2012 UT App 285, ¶ 7 n.2, 288 P.3d 306. Here, because we
conclude that Hunter’s counsel was not deficient, we do not
address the prejudice prong.
¶12 	Hunter’s argument that he received ineffective assistance
of counsel fails before it even starts because Long doesn’t apply
to this case. Under Long and its progeny, trial courts must give a
cautionary jury instruction “whenever eyewitness identification
is a central issue in a case and such an instruction is requested by
the defense.” State v. Long, 721 P.2d 483, 492 (Utah 1986). On the

State v. Hunter
20180249-CA 	6 	2019 UT App 157
other hand, when eyewitness identification is not a central issue,
“the trial court retains significant discretionary authority to
refuse 	to 	submit 	such 	an 	instruction 	to 	the 	jury.” 	State 	v.
Robertson, 2005 UT App 419, ¶ 12, 122 P.3d 895. We recently
clarified that real-time identifications fall “in a different category
than 	[those] 	contemplated 	in 	Long” 	because 	“eyewitness
identification based on memory is the key factor” in requiring
such an instruction. State v. Bowdrey, 2019 UT App 3, ¶¶ 16, 19,
438 P.3d 946, cert. denied, 440 P.3d 693.
¶13 	In Bowdrey, an officer using a spotting scope observed the
defendant 	dealing 	drugs 	and 	directed 	an 	arrest 	team 	to
apprehend him. Id. ¶¶ 3–5. The officer then went to the location
of the arrest and verified that the defendant was the one he had
seen dealing drugs. Id. ¶ 6. At trial, the defendant’s attorney
requested a Long instruction, which the court denied. Id. ¶ 9. We
affirmed, clarifying that a Long instruction was inapplicable in
this situation because the key concern in Long is memory. Id.
¶ 16. We explained that “Long and its progeny all share in
common eyewitness identifications based on memory and made
after—sometimes years after—the incident in question.” Id.
¶14 	Here, 	the 	Officers’ 	contemporaneous 	identification 	of
Hunter was nearly identical to the real-time identification of the
defendant 	in Bowdrey. See id. ¶¶ 3–5. The Officers directly
observed Hunter while he sold drugs to Buyer. Although the
Officers momentarily focused on Buyer as he left the scene, they
had already identified Hunter contemporaneously as he sold the
drugs, and the Officers observed this entire, continuous event in
real time. The Officers’ fleeting focus on Buyer did not place
their observation of Hunter’s drug dealing in the realm of Long.
See 	id. 	¶ 	9. 	Additionally, 	although 	Hunter 	argues 	that 	the
Officers’ eyewitness identification of Hunter was memory based
because it was interrupted by their focus on Buyer, a mere
momentary shift in focus while perceiving real-time events is not

State v. Hunter
20180249-CA 	7 	2019 UT App 157
the type of memory-based eyewitness identification that the
Long instruction addresses.
¶15 	Because 	real-time 	identifications 	fall 	into 	a 	different
category 	than 	Long 	altogether, 	Hunter’s 	counsel 	was 	not
objectively deficient in failing to request a Long instruction. Such
a request would have been futile. Counsel is not ineffective for
declining to make a request that would have been properly
denied. See State v. Hauptman, 2011 UT App 75, ¶¶ 8–10, 249 P.3d
1009 (holding that counsel was not ineffective in failing to
request a jury instruction on the lesser-included offense of sexual
battery 	because 	the 	evidence 	did 	not 	support 	such 	an
instruction, and thus a request would have been denied); see also
Menzies v. State, 2014 UT 40, ¶ 223, 344 P.3d 581 (“[C]ounsel was
not ineffective in failing to challenge the beyond reasonable
doubt 	instruction 	because 	the 	claim 	would 	have 	almost
assuredly failed.”); State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546
(“Failure to raise futile objections does not constitute ineffective
assistance 	of 	counsel.”). 	Accordingly, 	Hunter’s 	ineffective
assistance of counsel claim fails.
II. Insufficient Evidence
¶16 	The 	evidence 	was 	sufficient 	to 	support 	Hunter’s
conviction. “In considering an insufficiency-of-evidence claim,”
an appellate court will not reverse a jury verdict provided it can
“conclude that some evidence exists from which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177,
299 P.3d 892 (cleaned up).
¶17 	Hunter 	argues 	that 	his 	“conviction 	was 	based 	on
speculation 	and 	not 	reasonable 	inferences 	because 	of 	the
unreliable eyewitness identifications of [him] and problematic
chain of evidence procedures.” More specifically, Hunter argues
that “the officers took down the wrong person” because he was
not the same man the Officers observed interacting with Buyer.

State v. Hunter
20180249-CA 	8 	2019 UT App 157
However, the evidence shows that (1) the Officers observed the
drug sale; (2) the Officers identified Hunter as the same person,
in 	the 	same 	location, 	and 	wearing 	the 	same 	clothing—
camouflage pants, a black hooded sweatshirt, black sunglasses, a
black hat, and a gold chain necklace—as the individual they
observed interacting with Buyer; and, (3) Hunter was found in
possession of over five grams of methamphetamine, which was
the 	same 	drug 	Buyer 	possessed. 	Thus, 	the 	direct 	and
circumstantial 	evidence 	were 	more 	than 	sufficient 	for 	a
reasonable jury to determine that Hunter was the person the
Officers observed dealing drugs.
¶18 	Hunter also argues that there was insufficient evidence
because “the pertinent documents do not sufficiently identify
with explicit clarity . . . all of the individuals who received,
packaged, and transported” the methamphetamine found on
Hunter, and thus the State could not prove that the substance he
possessed 	was 	methamphetamine. 	However, 	this 	incorrectly
heightens the requirement for admitting evidence. To admit
physical evidence, a trial court must only “be convinced that the
proposed [evidence] is in substantially the same condition when
introduced 	into 	evidence 	as 	it 	was 	when 	the 	crime 	was
committed.” State v. Griffin, 2016 UT 33, ¶ 26, 384 P.3d 186
(cleaned up). Moreover, “‘[o]nce the evidence is in the hands of
the state, it is generally presumed that the exhibits were handled
with regularity, absent an affirmative showing of bad faith or
actual tampering.’” Id. (quoting State v. Wynia, 754 P.2d 667, 671
(Utah Ct. App. 1988)).
¶19 	There is no requirement that the chain of custody be
established by clear documentation—or any documentation at
all for that matter. See, e.g., State v. Smith, 2012 UT App 370, ¶ 21,
293 P.3d 1148 (“The trial testimony, if believed by the factfinder,
was adequate to establish that the cocaine and pipe introduced
into 	evidence 	were 	the 	same 	as 	those 	seized 	from 	[the]
defendant.” (emphasis added) (cleaned up)). Here, there was

State v. Hunter
20180249-CA 	9 	2019 UT App 157
testimony from those who handled the methamphetamine from
Hunter’s arrest to its testing, and the trial court properly ruled
that any chain-of-custody issues went to the weight of the
evidence and could be considered by the jury. See Griffin, 2016
UT 33, ¶ 32.
¶20 	In short, we conclude that the evidence was sufficient to
support Hunter’s conviction.
CONCLUSION
¶21 	Because the Officers’ identification of Hunter was based
on 	real-time 	observation, 	this 	was 	not 	a 	Long 	case, 	and
consequently Hunter’s counsel was not deficient for failing to
request a cautionary instruction. Additionally, the evidence was
sufficient to support the jury’s verdict. Therefore, we affirm.