State v. Vu

2017 UT App 179

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
THOMAS J. VU,
Appellant.

Opinion
No. 20151075-CA
Filed September 21, 2017

Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 141400723

Teresa L. Welch, Attorney for Appellant
Sean D. Reyes , Jennifer Paisner Williams, and
Marian Decker, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Thomas J. Vu appeals his convictions for possession of a
controlled substance with intent to distribute, a second degree
felony, see Utah Code Ann. §§ 58-37-4(2)(b)(iii)(B), -8(1)(a)(iii),
-8(1)(b)(i) (LexisNexis 2016), and possession of a firearm by a
restricted person, also a second degree felony, see id. § 76-10-
503(2)(a) (2012). Vu challenges his convictions, arguing that his
trial counsel was ineffective, that the trial court erroneously
admitted evidence of controlled purchases, and that there was
insufficient evidence that he constructively possessed both a
controlled substance and a firearm. We affirm.

¶2 Over the course of six weeks, a detective supervised five
controlled purchases of methamphetamine from Vu using a
State v. Vu

confidential informant.1 Prior to each purchase, the confidential
informant called Vu to arrange a transaction while the detective
monitored the conversation.

¶3 Four of the five controlled purchases took place at the
same apartment complex, and three of them occurred in the
same apartment. The other controlled purchase took place at a
gas station, where the detective observed Vu driving a Nissan
Altima. During these transactions, the confidential informant
witnessed Vu smoke methamphetamine, saw Vu with an
“abnormal amount of U.S. currency,” and noticed that Vu
possessed a handgun, which was hidden behind a panel
underneath the center console of the Altima.

¶4 Based on this information, the detective obtained a search
warrant for the three-buy apartment and the Altima. The
apartment belonged to a woman, who told officers that Vu had
been staying at the apartment for “a couple of months.”
Similarly, Vu was not the registered owner of the Altima.
Instead, the registered owner informally leased it to Vu.

¶5 When officers searched the apartment, five people,
including Vu, were inside it, two of whom had outstanding
warrants. The officers found Vu alone in a bedroom. He
appeared to be high on methamphetamine and “very out of it.”
On the floor next to him was a black pouch containing three
plastic bags with a total of thirty-one grams of
methamphetamine.2 In that same room, officers found a bag of

1. In exchange for her assistance, the State dropped felony fraud
and forgery charges pending against the confidential informant.

2. The detective testified at trial that this was a distributable
amount.

20151075-CA 2 2017 UT App 179
State v. Vu

marijuana, mail addressed to Vu,3 a casino player’s card in Vu’s
name, and men’s clothing in the closet. Elsewhere in the
apartment, officers discovered documents belonging to other
individuals and a ledger containing a series of numbers.

¶6 Regarding the Altima, officers had attached a tracking
device to the vehicle and noted that it was driven to and from
the apartment in “a consistent pattern.” The detective and other
officers also conducted physical surveillance on the vehicle and
saw Vu driving it on numerous occasions. When the officers
ultimately searched the vehicle, they discovered a handgun on
the floor behind the front center console—the same place where
the confidential informant claimed to have seen a gun. Vu was
not the registered owner of the handgun, nor had it been
reported stolen. The officers also found an airsoft gun 4 in the
back of the car.

¶7 Vu was charged with one count of possession of a firearm
by a restricted person, one count of possession of a controlled
substance with intent to distribute (methamphetamine), and one
count of possession of a controlled substance (marijuana). At
trial, Vu challenged the admissibility of the confidential
informant’s testimony regarding the controlled purchases. The
trial court overruled Vu’s objection and admitted the testimony.
Afterward, the parties stipulated that Vu was a “Category I
restricted person,” obviating the need for the State to present
evidence that Vu was a convicted felon. The trial court accepted
the stipulation and stated that the court would “include an

3. The address on Vu’s mail did not match the apartment’s
address.

4. Airsoft guns are replicas of firearms that use compressed air to
shoot “spherical non-metallic pellets.” Airsoft, YourDictionary,
http://www.yourdictionary.com/airsoft [https://perma.cc/7RV3-
CR6A].

20151075-CA 3 2017 UT App 179
State v. Vu

instruction for the jury on what to do with the stipulated fact.”
An instruction referring to Vu as a “Category I restricted person”
was eventually presented to the jury without objection from Vu.
Following a two-day trial, the jury convicted Vu of possession of
a controlled substance with intent to distribute and possession of
a firearm by a restricted person. But the jury acquitted Vu of the
marijuana possession charge. The trial court sentenced Vu to two
concurrent, indeterminate prison terms of one to fifteen years.
Vu appeals.

¶8 Vu first argues that his trial counsel performed deficiently
by not requesting a separate trial on the firearms charge. “An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law,” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162, which we consider de novo. Alternatively, he
contends it was plain error for the trial court not to have ordered
separate trials sua sponte.

¶9 Vu next contends that the trial court erroneously admitted
evidence of the controlled purchases by the confidential
informant. “Appellate courts review a trial court’s decision to
admit character evidence and prior bad acts under an abuse of
discretion standard.” State v. Leber, 2009 UT 59, ¶ 12, 216 P.3d
964.

¶10 Finally, Vu argues that the State did not present sufficient
evidence to prove that he constructively possessed a controlled
substance with the intent to distribute it or a firearm. “The
standard of review for a sufficiency claim is highly deferential to
a jury verdict.” State v. Workman, 2005 UT 66, ¶ 29, 122 P.3d 639.
“[W]e review the evidence and all inferences which may
reasonably be drawn from it in the light most favorable to the
verdict of the jury.” State v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d
94.

¶11 Vu first argues that he was denied a fair trial because the
firearm charge was not tried separately from the possession
charges. As a result, Vu maintains that he was prejudiced

20151075-CA 4 2017 UT App 179
State v. Vu

because the jury was informed of his restricted status. Although
Vu concedes that this argument was not preserved for appeal, he
argues that review is warranted based on plain error and
ineffective assistance of counsel.

¶12 “To demonstrate plain error, a defendant must establish
that ‘(i) [a]n error exists; (ii) the error should have been obvious
to the trial court; and (iii) the error is harmful, i.e., absent the
error, there is a reasonable likelihood of a more favorable
outcome for the appellant[.]’” State v. Holgate, 2000 UT 74, ¶ 13,
10 P.3d 346 (first alteration in original) (quoting State v. Dunn,
850 P.2d 1201, 1208–09 (Utah 1993)).

¶13 Vu has not satisfied the second prong of the plain error
test, namely, that the claimed error should have been obvious to
the trial court. To establish obviousness of an error, the appellant
“must show that the law governing the error was clear at the
time the alleged error was made.” State v. Dean, 2004 UT 63, ¶ 16,
95 P.3d 276. “Thus, an error is not obvious if ‘there is no settled
appellate law to guide the trial court.’” State v. Davis, 2013 UT
App 228, ¶ 32, 311 P.3d 538 (quoting State v. Ross, 951 P.2d 236,
239 (Utah Ct. App. 1997)).

¶14 Vu has not directed us to any authority to support his
argument that Utah precedent “mandated the bifurcation of the
possession of a firearm by a restricted person charge.” In fact,
the only case Vu cites in relation to bifurcation in a case with a
weapons charge is State v. Reece, 2015 UT 45, 349 P.3d 712, where
a trial court elected to try a weapons charge separately from
other charges. Id. Although the Utah Supreme Court approved
of the trial court’s bifurcation in that case, it did not go so far as
to require bifurcation every time a restricted defendant is
charged with both possession of a firearm and another crime.
Additionally, the Reece court noted that the defendant was not
prejudiced because the bifurcation “prevented the jury from ever
learning that [the defendant] was a convicted felon.” Id. ¶ 19.

20151075-CA 5 2017 UT App 179
State v. Vu

Here, trial counsel’s stipulation had substantially the same effect,
as the jury was never informed of Vu’s felony conviction.5

¶15 In sum, because Utah law does not mandate a separate
trial of a weapons charge, we cannot say that any error the trial
court made was obvious. We therefore conclude that the trial
court did not plainly err when it did not bifurcate Vu’s weapons
charge and his drug charges into different proceedings.

¶16 Vu also contends that he is entitled to relief based on
ineffective assistance of counsel. “To succeed on a claim of
ineffective assistance of counsel, a defendant must show both
‘that counsel’s performance was deficient’ and ‘that the deficient
performance prejudiced the defense.’” State v. Edgar, 2017 UT
App 53, ¶ 9, 397 P.3d 670 (quoting Strickland v. Washington, 466
U.S. 668, 687 (1984)).

5. While insisting that his drug and weapons charges should
have been tried separately, within the context of his single trial
Vu has not shown that his trial counsel had “no conceivable
tactical basis” for stipulating to his restricted status. See State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis omitted) (citation
and internal quotation marks omitted). To begin with, there are
numerous reasons an individual could be restricted from
possessing a firearm. See Utah Code Ann. § 76-10-503
(LexisNexis 2012). But more to the point, absent the stipulation
the State would have presented evidence that Vu was a
convicted felon. With the stipulation, the jury did not hear any
details regarding Vu’s conviction, nor was it informed of the
conviction itself. Moreover, the stipulation played into defense
counsel’s trial strategy because, in his closing argument, he
referred to Vu’s restricted status for the purpose of appearing
candid and forthright with the jury, telling the jury “we don’t
hide the ball from you” and pointing to the disclosure of Vu’s
restricted status as an example.

20151075-CA 6 2017 UT App 179
State v. Vu

¶17 No valid purpose seems to have been served by counsel’s
decision not to request bifurcation of the drug and weapons
charges. Still, even assuming this was deficient performance on
the part of Vu’s trial counsel, Vu has not demonstrated that this
deficient performance prejudiced him. After all, the jury did not
hear any of the details concerning Vu’s prior felony conviction. It
did not even learn that he had a prior felony conviction. While
learning of Vu’s restricted status without additional explanation
could cause the jury to speculate as to the reason behind it, a
mere possibility of speculation is not sufficient to demonstrate
prejudice. See Reece, 2015 UT 45, ¶ 75 (concluding that jurors
could have inferred circumstances other than a prior criminal
history as the reason the defendant was charged with a firearms
violation). And while the evidence against him on two charges
was overwhelming, see State v. Alfatlawi, 2006 UT App 511, ¶ 30,
153 P.3d 804 (holding counsel’s ineffective assistance did not
result in prejudice to defendant because evidence of guilt was
overwhelming), the discerning jury took care in applying the
court’s instructions to the evidence and acquitted him of a third
charge, further dispelling the suggestion that the jury was
unduly influenced by the references to Vu’s status as a restricted
person. Thus, we conclude that Vu has not demonstrated that
counsel’s failure to request bifurcation prejudiced him.

¶18 Vu next contends that the trial court “committed
reversible error in admitting improper prejudicial character
evidence of five controlled buys between Vu and a confidential
informant.”6 Rule 404(b) of the Utah Rules of Evidence instructs

6. Vu also contends that “the State did not prove by a
preponderance that the controlled buys occurred,” claiming that
the testimony of the confidential informant was unreliable
because she was a drug addict and was convicted of numerous
crimes, including mail fraud, identity fraud, forgery, and
attempted use of a financial transaction card. Although the
confidential informant’s credibility could surely be questioned,
(continued…)

20151075-CA 7 2017 UT App 179
State v. Vu

that “[e]vidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a
particular occasion the person acted in conformity with the
character.” Utah R. Evid. 404(b)(1). Evidence of bad acts may be
admitted, however, for other noncharacter purposes, so long as
it is not “being offered . . . to prove bad character or to show that
a person acted in conformity with that character.” State v.
Pullman, 2013 UT App 168, ¶ 31, 306 P.3d 827 (citation and
internal quotation marks omitted). See Utah R. Evid. 404(b)(2).

¶19 To demonstrate that Vu possessed a controlled substance
with intent to distribute, the State was, of course, required to
establish that Vu intended to distribute the methamphetamine.
See State v. Fox, 709 P.2d 316, 318 (Utah 1985) (“A conviction for
possession of a controlled substance with intent to distribute
requires proof of two elements: (1) that defendant knowingly
and intentionally possessed a controlled substance, and (2) that
defendant intended to distribute the controlled substance to
another.”). Evidence of the controlled purchases established that
Vu, on three occasions, sold methamphetamine to the
confidential informant from the same apartment where police
later discovered him next to a distributable amount of
methamphetamine. The evidence also revealed that Vu had sold
methamphetamine to the confidential informant on another two
occasions. Because evidence of prior bad acts may be admitted

(…continued)
the detective corroborated much of the information that she
provided. Additionally, “the jury serves as the exclusive judge of
. . . the credibility of witnesses.” State v. Workman, 852 P.2d 981,
984 (Utah 1993). Accord State v. Prater, 2017 UT 13, ¶ 31, 392 P.3d
398. The jury was aware of the charges that were dropped
against the confidential informant, and Vu had ample
opportunity to attack her credibility during cross-examination
by questioning her about her deal with the State, her prior
convictions, and her drug addiction.

20151075-CA 8 2017 UT App 179
State v. Vu

for any noncharacter purpose, we conclude the trial court did
not err, much less abuse its discretion, when it admitted
evidence of Vu’s previous drug sales to help establish his intent
to distribute the methamphetamine found in his close
proximity.7

¶20 Finally, Vu argues that there was insufficient evidence he
“constructively possessed either a controlled substance with the
intent to distribute it or a firearm on the day the search warrant
was executed.” We reverse a criminal conviction for insufficient
evidence “only when the evidence is so inconclusive or so
inherently improbable that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime.” State v. Goddard, 871 P.2d 540, 543 (Utah 1994) (citation
and internal quotation marks omitted).

¶21 Vu first contends that the State failed to prove that the
methamphetamine belonged to him, alleging that it could have
belonged to any of the four other individuals in the apartment at
the time the warrant was executed. “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.” Fox, 709 P.2d at 319. Although the

7. For the same reason, we conclude that the probative value of
this evidence was not substantially outweighed by its danger of
unfair prejudice. See Utah R. Evid. 403. The evidence was highly
probative, as it was offered to prove that Vu intended to
distribute the methamphetamine in his possession. While this
evidence was certainly prejudicial, it was not unfairly
prejudicial—it did not have “an undue tendency to suggest
decision on an improper basis.” See Woods v. Zeluff, 2007 UT App
84, ¶ 7, 158 P.3d 552 (citation and internal quotation marks
omitted).

20151075-CA 9 2017 UT App 179
State v. Vu

apartment was not rented to Vu, the woman who leased the
apartment informed the detective that Vu had been staying at
that apartment for a “couple of months,” and, based on the
information obtained from the tracking device installed on the
Altima, it is where Vu spent most of his nights.

¶22 When officers executed the warrant, they found a
distributable amount of methamphetamine next to Vu in a room
in which he was the only occupant. See id. at 320 (“Where one
possesses a controlled substance in a quantity too large for
personal consumption, the trier of fact can infer that the
possessor had an intent to distribute.”). At that same time, Vu
appeared to be high on methamphetamine. The room also
contained Vu’s mail, a casino player’s card in his name, and
men’s clothing in the closet. Most importantly, Vu had sold
methamphetamine to the confidential informant three times
from that same apartment. This is an adequate basis from which
the jury could infer that Vu exercised dominion and control over
the drug. See id. at 319 (listing factors that support a finding of
constructive possession, while noting that constructive
possession “depends upon the facts and circumstances of each
case”). When viewing the evidence in the light most favorable to
the verdict, we cannot say that the jury’s inference was “so
inherently improbable” as to require reversal. See Goddard, 871
P.2d at 543 (citation and internal quotation marks omitted).

¶23 Vu also contends that there is insufficient evidence to
support the jury’s conclusion that he possessed a firearm.
Specifically, Vu claims the evidence did not establish that he
occupied the vehicle exclusively or that he was aware of the
firearm’s presence. But the State was required to establish only
that Vu had constructive possession of the firearm, not that he
had exclusive possession of the vehicle. See Fox, 709 P.2d at 319.
The officers personally observed Vu driving the Altima on
multiple occasions, and they also used a tracking device to
monitor the vehicle as it was driven in “a consistent pattern” to
and from the apartment complex where Vu was staying. The

20151075-CA 10 2017 UT App 179
State v. Vu

confidential informant also saw Vu installing a new sound
system in the vehicle—an action typical of one who exercises
dominion and control over a vehicle but atypical of one who
only occasionally borrows it. On that same occasion, the
confidential informant witnessed Vu remove drugs from behind
the center console, and she saw that the drugs had been
alongside a firearm. This was the same location where officers
later discovered a firearm. Again, while these facts do not
compel the conclusion that the firearm was Vu’s or that the
firearm the confidential informant saw was this same handgun,
when viewing the facts in a light most favorable to the verdict,
we cannot say that the jury “must have entertained a reasonable
doubt” that the handgun was in Vu’s constructive possession.
See Goddard, 871 P.2d at 543 (citation and internal quotation
marks omitted).

¶24 Affirmed.8

8. Because we conclude that the trial court did not err in any
respect, we necessarily reject Vu’s argument that “cumulative
errors require reversal.”

20151075-CA 11 2017 UT App 179