State v. Kathleen Jo Workman

2005 UT 66
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20040530
Plaintiff and Appellee,
v.
F I L E D
Kathleen Jo Workman,
Defendant and Appellant. October 4, 2005
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Third District, Salt Lake
The Honorable Judith S.H. Atherton
No. 021912360
Attorneys: Mark L. Shurtleff, Att’y Gen., Kris C. Leonard,
Asst. Att’y Gen., Michael S. Colby, Salt Lake City,
for plaintiff
Linda M. Jones, Andrea J. Garland, Salt Lake City,
for defendant
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WILKINS, Associate Chief Justice:
¶1 In 2004, Kathleen Jo Workman was convicted of operating
a clandestine laboratory, a first degree felony offense under
Utah Code section 58-37d-5(1) (2005). Workman appeals her
conviction, claiming that the district court erroneously admitted
two toxicology reports. In addition, she claims that there was
insufficient evidence to support her conviction. We affirm.
BACKGROUND
¶2 In 2002, while executing a federal fugitive warrant on
a West Valley City residence, several police officers observed
items consistent with the production of methamphetamine (“meth”).
A more thorough search of the residence, and the southeast
basement bedroom in particular, yielded chemicals, equipment, and
wall stains indicating recent meth production. Several samples
taken from the residence were analyzed by Christine Wright of the
Utah State Crime Laboratory, and the resulting toxicology reports
positively identified meth and meth precursors.

No. 20040530 2
¶3 The southeast bedroom also contained several personal
items belonging to Workman, including her day planner, driver’s
license, and identification. These items were found on a
bookshelf along with a Tupperware-type container holding pills
and a plastic container holding a meth pipe and a glass loading
rod. Workman later admitted to buying both containers, and other
equipment found in the room, for household purposes. An expert
identified a fingerprint on the Tupperware-type container as
Workman’s, although he could not say when it had been placed
there.
¶4 Workman arrived at the residence while the officers
were conducting their search. She admitted that she had been
living in the southeast basement bedroom with the renter, Michael
Versteeg, although she later stated that she had moved out of the
residence three weeks prior to the search. Workman also admitted
to previous drug use, including meth and marijuana use.
¶5 During pretrial discovery, the State represented that
Christine Wright would be testifying to introduce the toxicology
reports. On the first day of trial, however, the State filed a
motion which stated that Wright had moved out of state and asked
that her supervisor, Jennifer McNair, be allowed to testify in
her place. Over Workman’s objection, the district court ruled
that Wright was unavailable and that McNair could testify as a
substitute expert witness. Absent Wright’s testimony, the
district court ruled that the toxicology reports could be
admitted under the residual hearsay exception in rule 804(b)(5)
of the Utah Rules of Evidence.
¶6 Ultimately, the jury convicted Workman of operating a
clandestine laboratory, a first degree felony offense under Utah
Code section 58-37d-5(1). Workman appeals her conviction upon
two grounds: (1) McNair’s testimony and the toxicology reports
were improperly admitted by the district court, and (2) the
evidence presented at trial was insufficient to support the
verdict.
ANALYSIS
¶7 Workman raised several arguments in her brief,
including that the toxicology reports should not have been
admitted because they violated rules 803(6) and 803(8) of the
Utah Rules of Evidence. However, because Workman failed to
preserve these claims by specific objection below, we will not
review them. See State v. Johnson, 774 P.2d 1141, 1144 (Utah
1989) (requiring specific preservation of claims). Nor has she
made a claim of exceptional circumstances or plain error. See

3 No. 20040530
State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (holding that,
except in cases of exceptional circumstances or plain error, the
preservation rule applies to all claims).
¶8 Workman also argues that sanctions should have been
imposed on the State for discovery violations under rule 16(g) of
the Utah Rules of Criminal Procedure. Because she did not seek
appropriate relief under rule 16 below, we hold that her claim
for relief was waived, and she is not entitled to the relief she
seeks on appeal. See State v. Rugebregt, 965 P.2d 518, 522 (Utah
Ct. App. 1998) (holding that “a defendant ‘essentially waives his
right to later claim error’” by failing to request relief when
unexpected testimony is introduced (quoting State v. Larson, 775
P.2d 415, 418 (Utah 1989))).
¶9 We will therefore examine only two issues: whether the
toxicology reports were properly admitted by the district court
under rule 804(b)(5), and whether the evidence presented at trial
was sufficient to support the verdict.
I. HEARSAY EVIDENCE
¶10 We first address the question of whether the toxicology
reports were properly admitted. Our standard of review on the
admissibility of hearsay evidence is complex, since the
determination of admissibility “often contains a number of
rulings, each of which may require a different standard of
review.” Norman H. Jackson, Utah Standards of Appellate Review,
12 Utah Bar J. 8, 38 (1999). We review the legal questions to
make the determination of admissibility for correctness. Hansen
v. Heath, 852 P.2d 977, 979 (Utah 1993). We review the questions
of fact for clear error. State v. Parker, 2000 UT 51, ¶ 13, 4
P.3d 778. Finally, we review the district court’s ruling on
admissibility for abuse of discretion. Eggett v. Wasatch Energy
Corp., 2004 UT 28, ¶ 10, 94 P.3d 193.
¶11 The Utah Rules of Evidence provide a variety of
specific exceptions to the general prohibition against hearsay
evidence. Utah R. Evid. 801-804 (2004). Among these exceptions
are several that depend upon the declarant’s unavailability.
Utah R. Evid. 804. Rule 804(b)(5) serves as the residual hearsay
exception for statements where the declarant is unavailable:
A statement not covered by any of the
foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness
[is not excluded by the hearsay rule] if the
court determines that (A) the statement is

No. 20040530 4
offered as evidence of a material fact; (B)
the statement is more probative on the point
for which it is offered than any other
evidence which the proponent can procure
through reasonable efforts; and (C) the
general purpose of these rules and the
interests of justice will be best served by
admission of the statement into the evidence.
However, a statement may not be admitted
under this exception unless the proponent of
it makes known to the adverse party
sufficiently in advance of the trial or
hearing to provide the adverse party with a
fair opportunity to prepare to meet it, the
proponent’s intention to offer the statement
and the particulars of it, including the name
and address of the declarant.
Utah R. Evid. 804(b)(5) (current version at Utah R. Evid. 807
(2004)).
¶12 The residual hearsay exception is to be used rarely and
construed strictly. See United States v. Hayward, 729 F.2d 297,
300 (4th Cir. 1984) (stating that identical federal rule
804(b)(5) is for “exceptional circumstances” and is to be used
“sparingly” and “rarely”). Thus, we only allow the admission of
hearsay evidence under the residual exception when the high
requirements of rule 804(b)(5) are met. We find that they are
not satisfied here.
¶13 There are at least three objections to admitting the
toxicology reports as evidence under rule 804(b)(5). First, the
totality of the circumstances surrounding the reports did not
have sufficient indicia of reliability because of the subjective
nature of the testing from which the reports were drawn. Second,
McNair’s testimony was insufficient to provide Workman with a
fair opportunity to prepare to challenge the reliability of the
reports. Third, the testing involved in the reports is
materially different from the testing in cases where we have
allowed substitute expert witnesses. We will discuss each in
turn.
¶14 First, the circumstances surrounding the toxicology
reports are not sufficiently reliable to satisfy the first
requirement of rule 804(b)(5), that the evidence have a guarantee
of trustworthiness. Hearsay statements that have sufficient
indicia of reliability are admissible. Idaho v. Wright, 497 U.S.
805, 820 (1990). For example, a statement made on one’s

5 No. 20040530
deathbed, Utah R. Evid. 804(b)(2), or a statement contrary to
one’s interests, Utah R. Evid. 804(b)(3), may be admitted as
hearsay because it is highly unlikely, under the circumstances in
which the respective statement was made, that cross-examination
would have more than marginal utility. Wright, 497 U.S. at 820.
The residual hearsay exception requires a similarly high standard
of trustworthiness. Id. at 821.
¶15 The toxicology reports do not meet this standard due to
the subjective nature of the testing from which they were drawn.
The tests the Utah State Crime Laboratory conducts to determine
whether a suspected substance is meth include color tests, where
the substance in question is added to a certain formula, with a
resulting color indicating the presence of controlled substances
or precursors, and tests in which the tester must compare the
results of a gas chromatograph mass spectrometer test of the
substance against the results of a similar test upon a known
substance. These tests depend upon subjective inferences by the
testing party, based, as McNair testified, on their “training and
experience.”
¶16 We do not wish to cast any doubt upon the procedures
and tests in which the Utah State Crime Laboratory engages, their
scientific accuracy, or their usefulness in determining whether
controlled substances or precursors are present. However, while
the testing of questionable substances may be very helpful in
determining whether controlled substances or precursors are
present, the conclusions of those tests, by themselves, are not
drawn under circumstances that meet the very high standard of
trustworthiness required by rule 804(b)(5) because of the highly
subjective nature of the tests and the possibility for human
error.
¶17 Second, given the nature of the tests, it would be
extremely difficult for defendants to challenge the evidence in
the resulting reports without cross-examining those personally
involved in the testing. As we stated in State v. Moosman, 794
P.2d 474, 479-80 (Utah 1990), “[s]imply because [hearsay] might
be admissible under a hearsay exception does not mean that those
statements automatically pass constitutional muster. If the
evidence violates a defendant’s right to confront witnesses, it
should not be admitted.” Because there is a significant
subjective element involved in the testing at issue, including a
criminologist determining the results of the color tests and
comparing the spectra from the gas chromatograph mass
spectrometer test with the spectra from known substances,
Wright’s absence deprived Workman from confronting evidence
presented against her.

No. 20040530 6
¶18 This is not a case where “an affirmative reason,
arising from the circumstances in which the statement was made,
provides a basis for rebutting the presumption that a hearsay
statement is not worthy of reliance at trial.” Wright, 497 U.S.
at 821. Rather, when tests like those used here by the Utah
State Crime Laboratory are used at trial, a defendant should have
the opportunity not only to ask how, in general, such tests are
conducted, but also whether, in the particular case, the tests
were conducted properly. The fact that Workman was only informed
about the substitution on the day of trial further adds to her
difficulty in confronting the evidence in the reports. Because
the only party who could properly testify about the reports--
Christine Wright, who conducted the testing--was unavailable, the
reports should not have been admitted.
¶19 Finally, the testing involved in this case differs
materially from testing in other cases where we have allowed
substitute witnesses. The State cites two of our previous
decisions in support of their claim that reports resulting from
“routine and mechanical” testing like that performed at the Utah
State Crime Laboratory can be introduced by those who did not
actually conduct the tests. Neither of these cases supports that
claim, however, and we decline to extend their respective
holdings in order to do so.
¶20 In Kofford v. Flora, 744 P.2d 1343, 1356 (Utah 1987),
we allowed a substitute expert witness to testify to the results
of paternity tests. The paternity tests at issue in Kofford,
however, are materially different from the testing in this case.
As we stated in Kofford, before test results can be admitted,
“evidence must be produced that the particular tests relied upon
in this case were conducted as specified by the Standards or in
an equally reliable manner.” Id. There has been no evidence in
the present case of any promulgated, rigid guidelines and
standards like those involved in the paternity testing in
Kofford.
¶21 The State also cites our decision in Moosman, in which
we held that, where a substitute expert witness’s testimony would
not be less reliable than the unavailable declarant’s, allowing a
substitute witness to testify would not violate the defendant’s
right to confront witnesses. 794 P.2d at 480-81. One crucial
difference between Moosman and the present case, however, is that
the substitute expert in Moosman participated in the tests in
question, although he did not himself conduct them.

7 No. 20040530
¶22 We hold that a court may not admit the results of such
testing under rule 804(b)(5) where the substitute expert witness
was not personally involved in the testing, where the testing is
not subject to rigorous and stringent guidelines and standards,
and where there is a significant subjective element to the
testing. Admission in such cases would violate the purpose
of the residual hearsay exception, including the defendant’s
right to cross-examine witnesses. Thus the admission of the
toxicology reports by the district court was an abuse of its
discretion.
II. HARMLESS ERROR
¶23 Although we hold that the district court erred in
admitting the toxicology reports, we will not overturn a
conviction unless we conclude that there is a “‘reasonable
likelihood that the error affected the outcome of the
proceedings.’” State v. Hamilton , 827 P.2d 232, 240 (Utah 1991)
(quoting State v. Verde , 770 P.2d 116, 120 (Utah 1989)). The
State offers two theories to show the admission of the toxicology
reports was harmless error.
¶24 First, the State argues that, under rule 703 of the
Utah Rules of Evidence, McNair could have given basically the
same testimony that she gave at trial without admitting the
reports. Rule 703 states that an expert witness may base her
testimony upon evidence that is not admissible as long as it is
“of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject.” Utah
R. Evid. 703. As we have noted, the tests in question have a
significant subjective element. While McNair could conceivably
testify to the general nature of the tests used, how she herself
has used them, or even how Wright had performed such tests in the
past, she could not, relying solely upon the conclusions stated
in the reports, have given probative testimony on the particular
tests performed to reach those conclusions. We decline to hold
that the conclusions drawn from the tests, absent personal
involvement in the testing process, are the type of evidence that
is “reasonably relied upon by experts in the particular field” of
criminology. Id.
¶25 The State alternatively argues that there is sufficient
evidence in the record, absent the reports and McNair’s
testimony, to support Workman’s conviction. The toxicology
reports and McNair’s testimony support the conclusion that the
substances found in the southeast basement bedroom were in fact
meth and meth precursors. Workman, on the other hand, argues
that the reports were crucial to the State’s case, since they

1 We note that the jury also convicted Workman of three
aggravating factors: first, that “intended laboratory operation
[took] place within 500 feet of a residence,” under Utah Code
section 58-37d-5(1); second, that “clandestine laboratory
(continued...)
No. 20040530 8
identified “substances that otherwise were not specified to any
scientific degree.” Thus our analysis of whether the erroneous
admission of the hearsay evidence was reasonably likely to affect
the outcome of the proceedings will be based upon whether there
was sufficient evidence, absent the reports and McNair’s
testimony, that the room was being used as a clandestine lab, and
whether scientific specificity of the substances involved was
necessary for the outcome of the case.
¶26 Two important considerations guide our decision that
the district court’s error was not prejudicial. First, the State
is not required to prove that controlled substances or precursors
were present in the home. Of course, finding that the substances
in the basement were meth or meth precursors would satisfy the
relevant element of the crime; however, possessing equipment or
supplies for use in a clandestine lab would also satisfy that
element. Utah Code Ann. § 58-37d-4(a)-(b) (2002).
¶27 Second, there was adequate independent evidence
presented for a jury to conclude that the bedroom was being used
as a clandestine lab. Aside from the toxicology reports, other
evidence was presented at trial as to both the substances and the
equipment found in the bedroom. There was testimony by a police
officer with significant training in recognizing clandestine
labs. All of the materials (including HEET, Red Devil Lye,
iodine, Sudafed) and equipment (including glass beakers, heating
elements, a condenser) necessary for the production of meth were
found in the bedroom, as were stains consistent with meth
production. Circumstantial evidence, including information
detailing how to evade police detection and how to manufacture
meth, was found in the residence as well. Finally, there was
testimony by an expert in clandestine laboratories, who concluded
that the bedroom was, in fact, being used as a clandestine lab
for the production of meth.
¶28 Even if the presence of meth and meth precursors was
not established to any scientific degree, a jury could reasonably
infer from the wealth of other evidence provided that the bedroom
was being used as a clandestine lab. Utah Code section 58-37d-4
does not require scientific certainty--and neither do we. We
therefore hold that the erroneous admission of the reports was
harmless error, and did not affect the outcome of the case.1

1(...continued)
operation actually produced . . . a controlled substance,” under
Utah Code section 58-37d-5(1)(e); and third, that the “intended
clandestine laboratory operation was for the production of . . .
methamphetamine base,” under section 58-37d-5(1)(f). While there
was enough evidence without the admission of the reports to
satisfy the first and third factors, the jury would not have been
able to find the lab actually produced methamphetamine absent
McNair’s testimony and the reports. However, this conclusion
does not change our belief that the error was harmless because as
long as Workman has been convicted of two of the three, she is
ineligible for probation, thus leaving the trial court’s sentence
unchanged.
9 No. 20040530
III. SUFFICIENCY OF THE EVIDENCE
¶29 We next turn to Workman’s claim that the evidence
presented at trial was insufficient to support her conviction.
The standard of review for a sufficiency claim is highly
deferential to a jury verdict. State v. McClain, 706 P.2d 603,
605 (Utah 1985). We begin by reviewing “the evidence and all
inferences which may be reasonably drawn from it in the light
most favorable to the verdict.” State v. Shumway, 2002 UT 124,
¶ 15, 63 P.3d 94 (citing State v. Petree, 659 P.2d 443, 444 (Utah
1983)). We will reverse a jury verdict for insufficient evidence
only if we determine that “reasonable minds could not have
reached the verdict.” State v. Widdison, 2001 UT 60, ¶ 74, 28
P.3d 1278 (citing State v. Colwell, 2000 UT 8, ¶ 40, 994 P.2d
177).
¶30 The Clandestine Laboratory Act makes it unlawful for a
person to “knowingly or intentionally: (a) possess a controlled
substance precursor with the intent to engage in a clandestine
laboratory operation; [or] (b) possess laboratory equipment or
supplies with the intent to engage in a clandestine laboratory
operation.” Utah Code Ann. § 58-37d-4(1)(a)-(b) (2005). As
noted in the previous section, the evidence that the bedroom was
being used as a clandestine laboratory is sufficient to support
the verdict. The remaining question, therefore, is whether there
is sufficient evidence of Workman’s possession of the lab to
support her conviction.
¶31 Workman did not have actual physical possession of any
controlled substances, precursors, equipment, or supplies when
she was arrested. A person who does not have actual physical
possession may still be convicted, however, if the State can
prove constructive possession. State v. Hansen, 732 P.2d 127,
131-32 (Utah 1987).

No. 20040530 10
To find that a defendant had constructive
possession of a drug or other contraband, it
is necessary to prove that there was a
sufficient nexus between the accused and the
drug to permit an inference that the accused
had both the power and the intent to exercise
dominion and control over the drug.
Whether there is a sufficient nexus
. . . depends upon the facts and
circumstances of each case.
State v. Fox, 709 P.2d 316, 319 (Utah 1985).
¶32 Several factors may be important in determining whether
the nexus in a particular case is sufficient, including ownership
and/or occupancy of the residence or vehicle where the drugs were
found, presence of defendant at the time drugs were found,
defendant’s proximity to the drugs, previous drug use,
incriminating statements or behavior, presence of drugs in a
specific area where the defendant had control, etc. See State v.
Anderton, 668 P.2d 1258, 1264 (Utah 1983); Fox, 709 P.2d at 319.
Of course, these factors are not “universally pertinent,” and we
are mindful that “no such list is exhaustive, and that listed
factors are only considerations.” State v. Layman, 1999 UT 79,
¶¶ 14-15, 985 P.2d 911.
¶33 We have previously held that many of these factors, by
themselves, are insufficient to establish the requisite nexus.
See Fox, 709 P.2d at 320 (holding that co-occupancy of a house
where marijuana was being grown, absent other evidence, was
insufficient to establish a nexus); Anderton, 668 P.2d at 1264
(holding that co-ownership and co-occupancy of a home were
insufficient to establish a nexus); see also Spanish Fork City v.
Bryan, 1999 UT App 61, ¶¶ 2, 10, 975 P.2d 501 (holding that co-
occupancy of bedroom where drug paraphernalia was found was
insufficient to establish a nexus); State v. Salas, 820 P.2d
1386, 1389 (Utah Ct. App. 1991) (holding that ownership and co-
occupancy of a vehicle, along with an anonymous informant’s tip,
was insufficient to establish a nexus).
¶34 Similar factors are present in this case. Workman was
a co-occupant of the bedroom where the clandestine lab was found.
Her personal items were intermingled with the equipment being
used to produce meth. She uttered two statements that could

2 After arriving at the residence, Workman was overheard
telling Versteeg to tell the officers that she had been living
with her sister. When asked later about a fanny pack containing
meth that had been found at the residence, Workman’s “immediate,
unhesitating response” quickly identified the pack as belonging
to someone else. Both of these statements, the State argues,
could suggest “guilty knowledge that she would otherwise be
connected to the meth lab in her bedroom.”
11 No. 20040530
imply that she had a guilty conscience.2 She admitted to buying
some of the containers and glassware that were being used in the
lab. She admitted to previous drug use, including meth use.
Finally, her fingerprint was found on one of the containers.
¶35 Taken alone, it is not likely that any one, or even a
small group, of these factors would be enough to establish a
sufficient nexus between Workman and the clandestine lab.
However, we hold that the cumulative effect of these factors is
such that a reasonable jury could have concluded that there was a
sufficient nexus between Workman and the clandestine lab to
satisfy the possession element of the statute.
CONCLUSION
¶36 We hold that the admission of the toxicology reports
was harmless error. We further hold that the evidence is
sufficient to support the verdict. Defendant’s conviction is
therefore affirmed.
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¶37 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.