State v. Lucero

2015 UT App 120

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ARMANDO LUCERO,
Defendant and Appellant.

Opinion
No. 20131000-CA
Filed May 14, 2015

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 121909520

Joan C. Watt and Brenda M. Viera, 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 J. FREDERIC VOROS JR. concurred.

PEARCE, Judge:

¶1 Defendant Armando Lucero appeals from four
convictions that flow from the discovery of a sling backpack
containing various contraband in a car Lucero was driving. He
contends that the State presented insufficient evidence to
establish that he constructively possessed the items inside the
backpack. We agree and reverse those four convictions.

BACKGROUND

¶2 A police officer pulled Lucero over while he was driving
with a female passenger. Lucero claimed to have recently bought
State v. Lucero

the car he was driving and produced a vehicle registration. He
did not, however, know the registered owner. The officer was
unable to contact the registered owner to verify this information,
but the car had not been reported stolen. Because Lucero did not
have a valid driver’s license, the police officer decided to
impound the car.

¶3 The officer then began an inventory search of the car. The
first item he searched was a sling backpack that had been on the
floor behind the front passenger seat. When the officer began to
go through the backpack, Lucero stated that the backpack was
not his.1 Inside the backpack, the officer found a digital scale
disguised as a pack of cigarettes, a false can of peanuts
containing a plastic bag filled with drugs, a handgun (later
discovered to be stolen) with the serial number filed off, and a
package of thank-you notes. The officer also searched the
passenger’s purse and discovered drugs and drug
paraphernalia.2 A search of the passenger revealed more drugs
hidden in her bra.

¶4 The car also contained a variety of household goods
including a laundry basket filled with folded clothes, a broom, a
hair dryer, several other bags of clothing, and a suitcase. Lucero
claimed to have been transporting these items for an ex-
girlfriend. The ex-girlfriend came to the scene to identify and
claim her property; she did not claim the backpack. Officers had

1. There is some dispute as to the number and timing of Lucero’s
denials. Our analysis proceeds in line with the State’s position
that Lucero first denied owning the backpack ‚as soon as‛ the
officer began ‚dealing with‛ it and before any contraband was
found.

2. A bandana initially found by the officer in the passenger’s
purse was mistakenly returned to the sling backpack.

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previously searched the items she claimed and had found no
contraband.

¶5 Lucero was charged with and convicted of possession or
use of a controlled substance, theft by receiving stolen property,
possession of a dangerous weapon by a restricted person, and
use or possession of drug paraphernalia. All of these charges
were based upon the items found inside the backpack and relied
on a theory of constructive possession.

ISSUE AND STANDARD OF REVIEW

¶6 On appeal, Lucero contends that the State failed to
adduce evidence sufficient for a reasonable jury to find that he
constructively possessed the backpack’s contents. When
considering an insufficiency-of-the-evidence claim, we review
the evidence and all reasonable inferences in the light most
favorable to the jury’s verdict. State v. Nielsen, 2014 UT 10, ¶ 46,
326 P.3d 645. 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. Id.

ANALYSIS

¶7 At trial, the State relied on a constructive-possession
theory. A defendant constructively possesses contraband when
there is a sufficient nexus between the defendant and the
contraband to permit an inference that the defendant had both
the power and the intent to exercise dominion and control over
it. See State v. Fox, 709 P.2d 316, 319 (Utah 1985). This fact-specific
inquiry may consider 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

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incriminating statements or behavior by the defendant, and
previous possession of similar contraband by the defendant. Id.;
State v. Workman, 2005 UT 66, ¶ 32, 122 P.3d 639. This list is not
exhaustive, nor is each factor always pertinent. Workman, 2005
UT 66, ¶ 32; see also State v. Layman, 1999 UT 79, ¶ 15, 985 P.2d
911, 914 (‚[T]here is some danger in mechanically relying on a
list of factors . . . when applying a generally-worded test, such as
Fox’s statement of what is needed to show constructive
possession.‛). ‚The final legal test is the most generally-worded
one: . . . whether there was a sufficient nexus between the
defendant and the [contraband] to permit a factual inference that
the defendant had the power and the intent to exercise control
over the [contraband].‛ Layman, 1999 UT 79, ¶ 15.

¶8 We, as well as the Utah Supreme Court, have had a
number of opportunities to consider whether a particular
evidentiary nexus was sufficient to establish constructive
possession. For example, in State v. Fox, the defendant (Fox)
shared a house with his brother. The police discovered
marijuana plants growing in greenhouses attached to the house.
709 P.2d at 319. The Utah Supreme Court concluded that the
nexus between the plants and Fox’s brother was sufficient to
establish the brother’s constructive possession because he owned
the house, his personal effects were found in the same room as
the plants, and there was evidence that he intended to distribute
marijuana. Id. at 320. In contrast, the supreme court held that the
nexus between the plants and Fox himself was insufficient to
support Fox’s constructive-possession conviction. Id.
Specifically, the supreme court concluded that while the
evidence supported an inference that Fox knew of the grow
operation, there was no evidence that he had any intent to
possess the marijuana or had any intent to exercise dominion
and control over it. Id. Accordingly, the evidence was
insufficient to support Fox’s constructive-possession conviction,
and that conviction was reversed. Id.

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¶9 In State v. Layman, a police officer pulled over a car at
about three in the morning. 1999 UT 79, ¶ 6, 985 P.2d 911.
Layman was at the wheel and accompanied by a passenger. Id.
Layman’s bloodshot eyes, fidgety demeanor, and erratic driving
led the officer to suspect that Layman might be under the
influence of a controlled substance. Id. ¶¶ 6–7. When the officer
asked to search a pouch tucked into the passenger’s waistband,
the passenger looked to Layman who shook his head in the
negative. Id. ¶ 8. The officer nonetheless searched the pouch and
found drugs and drug paraphernalia. Id. Layman was convicted
of two drug-related charges under a constructive-possession
theory. Id. ¶ 11. The Utah Supreme Court explained that there
was little evidence to suggest that Layman had the type of
control over the passenger’s person necessary to infer beyond a
reasonable doubt that Layman knowingly and intentionally
possessed the contraband in the pouch. Id. ¶ 16. According to the
supreme court, the questioning look simply was not enough to
demonstrate the power and intent to exercise control. Id. (‚The
only fact tending to prove *Layman’s+ control over *the
passenger] is that she looked at him when the deputy requested
to see the pouch and [Layman] shook his head in negative
fashion. . . . Neither her presence in his vehicle, his erratic
behavior after the traffic stop, nor his use of drugs at some
earlier time make up for this critical lack of evidence.‛). As a
result, Layman’s convictions based on constructive possession
were reversed. Id. ¶ 17.

¶10 In State v. Gonzalez-Camargo, police officers executed a
search warrant on two apartments. 2012 UT App 366, ¶ 3, 293
P.3d 1121. At the time of the search, twelve to fourteen people
were inside the four-unit building. Id. The defendant (Gonzalez-
Camargo) and his girlfriend shared a bedroom in one of the
searched apartments. Id. ¶¶ 6, 19. The search of the bedroom
turned up a lockbox containing drugs. Id. ¶ 5. However, at trial,
the officers could not agree on where in the bedroom the lockbox
was first located. Id. ¶ 20. Gonzalez-Camargo was eventually

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convicted of possessing the drugs based on a constructive-
possession theory. Id. ¶ 12. On appeal, we explained that to
establish constructive possession, ‚the defendant’s joint
occupancy of the premises where the controlled substance is
discovered must be combined with other evidence sufficient to
establish the defendant’s knowing and intentional control over
it.‛ Id. ¶ 17. We noted that Gonzalez-Camargo was a co-occupant
of the bedroom where the lockbox was found and that the State
had not produced evidence establishing that the lockbox had
been found commingled with his possessions. Id. ¶¶ 19–20.
Thus, the only evidence suggesting that the lockbox belonged to
Gonzalez-Camargo was (1) that he was present, along with
twelve to fourteen other people, when it was found and (2) that
he and his girlfriend shared the room where it was found. See id.
¶ 26. As a result, a jury could only speculate as to whether the
lockbox belonged to Gonzalez-Camargo, his girlfriend, both of
them, or neither. See id. We therefore vacated Gonzalez-
Camargo’s drug-possession conviction. Id.

¶11 In State v. Salas, police officers received an anonymous tip
that Salas would be driving a certain vehicle and was in
possession of cocaine. 820 P.2d 1386, 1387 (Utah Ct. App. 1991).
Officers stopped the vehicle, which Salas and his wife co-owned.
Id. As the car was pulling over, the passenger in the rear seat
moved from the left side to the right side of the car. Id. The
officers searched the seat the passenger vacated and discovered
cocaine wedged between the bench and back cushion. Id. We
concluded that the passenger’s movement rendered the
remaining evidence sufficiently inconclusive on the issue of
whether Salas had the intent to exercise dominion and control
over the cocaine. Id. at 1388. We noted that before the officers
found the cocaine, Salas stated there was no cocaine in the
vehicle, did not have any drugs or paraphernalia on his person,
and did not try to escape. Id. at 1389. Thus, the only evidence
linking Salas with the cocaine was his part-ownership of the
vehicle, his presence in the vehicle, and the anonymous tip

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(which was admitted into evidence only to explain why the
officers had pulled Salas’s vehicle over). Id. We explained that to
establish a defendant’s constructive possession of contraband
found in a vehicle of which the defendant was not the sole
occupant, there must be evidence beyond the presence of the
contraband and the defendant in the same vehicle to buttress the
inference. Id. at 1388. Because the evidence was insufficient to
establish constructive possession, we reversed Salas’s conviction.
Id.

¶12 These cases provide that a nexus sufficient to establish
constructive possession cannot be established solely by non-
exclusive ownership or occupancy of the place where the
contraband is found. See id.; see also Spanish Fork City v. Bryan,
1999 UT App 61, ¶ 9, 975 P.2d 501. In short, ‚*a+ defendant’s joint
occupancy of the premises where the [contraband] is discovered
must be combined with other evidence sufficient to establish the
defendant’s knowing and intentional control over *the
contraband+.‛ Gonzalez-Camargo, 2012 UT App 366, ¶ 17
(emphasis added); see also State v. Ashcraft, 2015 UT 5, ¶ 20 n.3
(‚*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. Such doubt
may be especially substantial where other people with access to
the area could have placed the contraband in the home or
vehicle without the owner's knowledge, and thus the owner
would have no power and intent to exercise dominion and
control over it.‛ (emphasis, citation, and internal quotation
marks omitted)).

¶13 In cases involving co-ownership or co-occupancy, 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. In
State v. Workman, police officers executing a federal fugitive

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warrant discovered chemicals, equipment, and wall stains
consistent with the production of methamphetamines in a
bedroom. 2005 UT 66, ¶ 2, 122 P.3d 639. In the same bedroom,
the officers found several items belonging to Workman
(including her day planner and driver’s license) on a bookshelf
that also housed a plastic container holding drug paraphernalia.
Id. ¶ 3. Workman initially admitted to sharing the bedroom with
her boyfriend but later claimed she had moved out three weeks
before the search. Id. ¶ 4. Workman was eventually convicted of
possessing laboratory equipment or supplies with the intent to
engage in a clandestine laboratory operation under a
constructive-possession theory. Id. ¶¶ 30–31. The Utah Supreme
Court noted that shared occupancy of the house was insufficient
by itself to establish the requisite nexus for constructive
possession. Id. ¶ 33. However, the supreme court determined
that ‚other evidence‛ existed that was sufficient for that
purpose: Workman’s personal items were intermingled with
methamphetamine-production equipment in the bedroom,
Workman admitted buying (for household purposes) some of
the containers and glassware eventually used in the operation,
and Workman admitted to previous use of methamphetamines.
Id. ¶ 34. The supreme court concluded that the constructive-
possession theory was sufficiently supported by the ‚other
evidence‛ that went beyond mere co-occupancy, and therefore
affirmed Workman’s conviction. Id. ¶¶ 35–36.

¶14 In State v. Ashcraft, a majority of the Utah Supreme Court
determined that the ‚other evidence‛ the State presented was
sufficient to support a constructive-possession conviction. 2015
UT 5, ¶ 22. There, a police officer observed a pickup truck being
driven twice through a motel parking lot known for frequent
drug activity. Id. ¶¶ 2–3. The following night, the officer again
observed the truck in the same motel parking lot. Id. ¶ 4. He
began following the truck, without turning on his police lights,
until it stopped. Id. The officer approached the truck and asked
the driver, Ashcraft, whether he was the truck’s registered

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owner. Id. Ashcraft admitted that he was not and that he had
borrowed it from the owner. Id. After Ashcraft and his passenger
admitted that they lacked driver’s licenses, the officer
impounded the truck. Id. ¶ 5. As part of the impoundment
process, the officer conducted an inventory search of the truck.
Id. ¶ 7. In the bed of the truck, within reach of the cab’s rear
window, he found a green bag. Id. Without opening it, the officer
asked Ashcraft who owned the green bag. Id. Ashcraft replied
that he did not know who it belonged to and accused the officer
of planting it in the truck bed. Id. His suspicions aroused, the
officer searched the green bag and discovered several bottles of
pills, over thirty plastic bags containing unknown substances,
three glass pipes, two digital scales, and miscellaneous other
drug paraphernalia. Id. A search of Ashcraft’s person revealed
$793 in cash and a knife with a tar-like substance on the blade
similar to that found in the plastic bags. Id. ¶ 6. Ashcraft was
convicted of, inter alia, possession of a controlled substance with
intent to distribute and possession of drug paraphernalia. Id.
¶ 10. These convictions relied on theories of constructive
possession. Id.

¶15 On appeal, Ashcraft contended that the evidence was not
sufficient to support a jury finding that he constructively
possessed the contents of the green bag, because the sole
connection between the green bag and himself was his
occupancy of the truck. Id. ¶ 21. A divided Utah Supreme Court
disagreed, noting that Ashcraft had repeatedly driven around an
area known for drug activity, had done so late at night and early
in the morning, and had carried a large amount of cash. Id. The
majority opinion further noted that the bag was within
Ashcraft’s reach and that Ashcraft had not only denied owning it
but had also accused the officer of planting it before the officer
even opened it. Id. Finally, the majority observed that the tar-like
substances found on Ashcraft’s knife and in the plastic bags

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were identified, at least by the arresting officer, as heroin. 3 Id.
¶¶ 8–9, 21, 26. The majority concluded that the cumulative effect
of these pieces of evidence was sufficient ‚other evidence,‛
beyond Ashcraft’s presence in the truck, to support the
constructive-possession theory underlying the jury’s ultimate
verdict. Id. ¶ 22. Accordingly, the supreme court affirmed
Ashcraft’s convictions. Id. ¶¶ 30, 40.

¶16 Justice Parrish, joined by Justice Nehring, dissented.
Id. ¶ 41 (Parrish, J., dissenting). The dissent first noted that the
passenger and the truck’s owner also had access to the green bag
and that the bag’s position rendered it more easily accessed by
the passenger than by Ashcraft. Id. ¶¶ 45–46. The dissent then
challenged three inferences relied upon by the majority’s
conclusion that an evidentiary nexus connected Ashcraft to the
green bag. Id. ¶¶ 43, 47. First, the dissent did not agree that
Ashcraft’s late-night presence in an area known for drug activity
with a large amount of cash created any nexus between him and
the green bag.4 Id. ¶ 48. Second, the dissent did not view
Ashcraft’s immediate accusation that the officer planted the bag
as suggesting knowledge of its contents. Id. ¶ 49. Rather, the

3. While a field testing kit used by the officer indicated that the
tar-like substance was an opiate and that a crystalline white
substance in some of the plastic baggies was methamphetamine,
none of the substances in the plastic bags or on Ashcraft’s knife
were conclusively identified through laboratory testing. State v.
Ashcraft, 2015 UT 5, ¶ 8.

4. The majority opinion explained that ‚Ashcraft repeatedly
drove through an area known for drug activity during late night
and early morning hours.‛ Id. ¶ 21. In apparent contrast, the
dissenting opinion notes that the passenger was ‚seen in the
truck both nights, while Mr. Ashcraft may have been driving the
truck on only the second night.‛ Id. ¶ 48 (Parrish, J., dissenting).

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dissent suggested that Ashcraft’s statement was ‚equally
consistent with the possibility that the bag in fact belonged to
[one of the passengers] and that Mr. Ashcraft intended to
distance himself from it because he suspected its contents.‛ Id.
Third, the dissent dismissed as speculative any connection
between the substance found packaged in the bag and the
substance found on Ashcraft’s knife.5 Id. ¶ 50. The dissent
viewed the inferences relied upon by the majority as
‚insufficient to establish beyond a reasonable doubt that Mr.
Ashcraft exercised dominion and control over the green bag.‛ Id.
¶ 52. Accordingly, the dissent would have reversed his
convictions. Id. ¶¶ 53–54.

¶17 Here, Lucero was charged with and convicted of four
crimes relating to the items found inside the sling backpack. The
State’s case against Lucero relied on theories of constructive
possession. The State therefore had to put forward sufficient
evidence to establish a nexus between Lucero and the backpack’s
contents. As noted above, supra ¶ 12, mere co-occupancy does
not satisfy that burden and must be combined with other
evidence before it can reasonably establish the requisite nexus.
See State v. Gonzalez-Camargo, 2012 UT App 366, ¶ 17, 293 P.3d
1121.

¶18 On appeal, Lucero contends that the State failed to meet
this burden. Specifically, he argues that, aside from his co-

5. The majority noted that the arresting officer ‚testified, based
on his experience and results of field tests, that the ‘brown caked
tar[-+like powdery substance’ on the blade of knife and in some
of the baggies in the green bag was consistent with heroin.‛ Id.
¶ 26 (alteration in original). However, according to the dissent,
‚the State presented no . . . evidence‛ to the effect that ‚the
substance on the knife was the same as the illicit substance in the
green bag.‛ Id. ¶ 50. (Parrish, J., dissenting).

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occupancy of the car in which the backpack was found, there
was no evidence linking him to the backpack. The State responds
that other evidence did exist: the backpack was within Lucero’s
convenient reach and Lucero denied ownership of the backpack.

¶19 These two facts track similar circumstances in State v.
Ashcraft; namely, that the contraband containers in both cases
were within reach of the defendants and both defendants denied
ownership of the respective containers. See 2015 UT App 5. But
in Ashcraft, the majority expressly rejected the idea that ‚anyone
who has the misfortune of occupying a vehicle in which illegal
drugs are found is subject to conviction.‛ Id. ¶ 21 n.5. Instead,
the supreme court detailed additional facts that suggested a
nexus between Ashcraft and the bag before concluding that all of
the evidence combined was sufficient for a jury to find beyond a
reasonable doubt that Ashcraft constructively possessed the bag.
Id. ¶¶ 22, 27 (explaining that the pieces of evidence were
‚suspect‛ and ‚a slim basis‛ for conviction individually but that,
considered cumulatively, they were sufficient to sustain a jury
verdict based on constructive possession).

¶20 It is true that both Ashcraft and Lucero could reach the
contraband containers in the vehicles they were driving. But in
Ashcraft, the jury also heard evidence to the effect that a knife
carried by Ashcraft was caked in a tar-like substance that
matched the substance found inside the bag. Id. ¶¶ 21, 26. And it
is true that both Ashcraft and Lucero denied owning the
containers. But unlike Lucero, Ashcraft did not merely deny
ownership; rather, before the contents of the bag were even
revealed, Ashcraft brashly accused the searching officer of
planting the bag in his truck. Id. ¶ 25 (noting that Ashcraft’s
accusations suggested that he knew contraband would be found
inside the bag). Moreover, Ashcraft was carrying an unusually
large amount of cash, id. ¶ 21, and the police officer may have
seen Ashcraft driving the truck through a drug-ridden area

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multiple times on two successive nights, id. ¶ 21. But see supra
¶ 16 n.4.

¶21 Ashcraft instructs that the ability to reach a contraband
container and the simple denial of ownership of that container
are, in the absence of other corroborative evidence, insufficient
to establish constructive possession beyond a reasonable doubt.
This comports with the principle that constructive possession
cannot be inferred from mere co-occupancy of the area where
contraband is found. See, e.g., Ashcraft, 2015 UT 5, ¶ 20 & n.3;
State v. Workman, 2005 UT 66, ¶¶ 33–35, 122 P.3d 639; State v. Fox,
709 P.2d 316, 320 (Utah 1985); Gonzalez-Camargo, 2012 UT App
366, ¶ 17; State v. Salas, 820 P.2d 1386, 1388 (Utah Ct. App. 1991).

¶22 Considered alone, Lucero’s co-occupancy of the car was
an insufficient basis to attribute constructive possession of the
sling backpack and its contents to him. See Workman, 2005 UT 66,
¶ 33 (explaining that shared occupancy of a bedroom was
insufficient to establish constructive possession). We conclude
that the other two pieces of evidence presented by the State to
buttress the constructive-possession theory—that the backpack
was within Lucero’s reach and that Lucero denied owning it—
do not constitute ‚other evidence sufficient to establish the
defendant’s knowing and intentional control over *the
contraband]‛ beyond a reasonable doubt. See Gonzalez-Camargo,
2012 UT App 366, ¶ 17.6

6. At oral argument, the State noted that, after the contraband in
the backpack had been discovered and Lucero had been
arrested, Lucero’s passenger claimed ownership of a purse
containing drugs. The State suggests that it is unlikely that the
passenger would carry both a purse and a bag. Even if we were
to agree with the State, it would not change the result we reach.

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CONCLUSION

¶23 We conclude that the State did not present evidence
sufficient to demonstrate beyond a reasonable doubt that Lucero
constructively possessed the backpack or its contents. We
therefore reverse Lucero’s convictions stemming from his
purported constructive possession of the contents of the
backpack: possession or use of a controlled substance, theft by
receiving stolen property, possession of a dangerous weapon by
a restricted person, and use or possession of drug paraphernalia.

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