State v. Serrano-Vargas

2022 UT App 59

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SILVIA SERRANO-VARGAS,
Appellant.

Opinion
No. 20191091-CA
Filed May 12, 2022

Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 191901921

Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 With the evidence showing that police found substantial
amounts of drugs and cash in a bedroom that Silvia 1 Serrano-
Vargas exclusively rented and occupied, the jury found her guilty
of various charges, including possession of drug paraphernalia,
possession of drugs, and possession of drugs with intent to
distribute. Serrano-Vargas now appeals, asserting that the trial

1. Throughout the record, the spelling of Serrano-Vargas’s given
name alternates between “Silvia” and “Sylvia.” For consistency,
we use the first spelling and do not indicate an alteration in those
quotes that used the alternate spelling.
State v. Serrano-Vargas

court erred in denying her motion for a directed verdict and that
her trial counsel rendered ineffective assistance. We affirm.

BACKGROUND 2

¶2 After conducting a successful controlled buy in which
police sent an individual to purchase drugs at a particular
apartment from a woman named “Silvia,” police executed a
search focused on “Silvia Pacheco-Alires” at that apartment. That
warrant focused on “Silvia Pacheco-Alires” because the phone
number used to arrange the controlled buy was registered under
that name. But upon entering the apartment, instead of finding a
“Silvia Pacheco-Alires,” police found, along with several other
individuals, “Silvia Serrano-Vargas.”

¶3 As police searched the apartment, they found substantial
evidence of drug use. But in a bedroom, a portion of the
apartment sub-rented exclusively to Serrano-Vargas for her sole
occupancy, the police found more. There, police found a black
garbage bag sitting on top of a dresser. The bag contained many
small bags “commonly used for drug packaging and
distribution,” “two glass crack pipes,” a scale, approximately 18
grams (180 doses worth $1,800) of heroin, approximately 17.7
grams (177 doses worth $1,770) of crack cocaine, and $469 in cash.
Atop the same dresser, next to the black garbage bag, police found
a woman’s makeup bag. And in the bottom drawer of that same
dresser, police found a purple purse. Inside that purse, police
found $2,460 in cash, “three Mexican government ID cards with
the name and a photograph of Silvia Serrano-Vargas,” a social
security card with Serrano-Vargas’s name on it, several glass
crack pipes, a baggie with 0.10 grams of methamphetamine, a

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” Layton
City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d 587 (cleaned up).

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State v. Serrano-Vargas

baggie with 0.10 grams of cocaine, and a scale for weighing drugs.
In the bedroom closet, police found clothing belonging to Serrano-
Vargas and a lockbox containing “$8,451 in cash, along with a
number of receipts for MoneyGram transfers with Silvia Serrano-
Vargas’s name.” Police also found two cell phones, both of which
Serrano-Vargas claimed as her own. While speaking with
Serrano-Vargas in the bedroom, police called the phone number
used to arrange the controlled buy. One of Serrano-Vargas’s
phones rang in response.

¶4 Following this search, police arrested Serrano-Vargas, and
the State charged her with one count of possession of drug
paraphernalia, one count of drug possession, and two counts of
possession of drugs with intent to distribute.

¶5 At trial, Serrano-Vargas moved for a directed verdict,
arguing that the State presented insufficient evidence to convict
her. Specifically, she argued that constructive possession could
not reasonably be found by the jury because many people were in
the apartment, that drug paraphernalia was found throughout the
apartment, that the State did not fingerprint test any of the
bedroom’s contents, that she did not claim all the items found in
the bedroom, that the police found another individual’s backpack
and prescription pill bottles in the bedroom, that the search
warrant contained a different name from hers, and that the police
could not identify the individual who sold the drugs during the
controlled buy.

¶6 The State responded that “based on the evidence presented
in a light in favor of the State, a [jury] could find [Serrano-Vargas]
guilty . . . based on the evidence [that was] found in the bedroom.”
The State argued that the evidence demonstrated that the
bedroom was Serrano-Vargas’s and that she exclusively rented
the bedroom, that the bedroom contained various personal
property, and that the quantity of drugs found among that
personal property suggested that “a reasonable juror could find
that these items [belonged] to [Serrano-Vargas] and that she [was]

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State v. Serrano-Vargas

guilty of these offenses.” The trial court denied the motion, and
Serrano-Vargas was convicted on all counts.

¶7 After trial, Serrano-Vargas learned that the police had
discovered the identity of the apartment’s primary lessee during
their interviews but had not provided that information to the
defense or presented that information at trial. 3 And despite the
fact that Serrano-Vargas likely knew the primary lessee’s identity,
trial counsel allegedly had not investigated and sought to obtain
those interviews and did not present that information at trial to
persuade the jury that Serrano-Vargas lacked control over the
room that she leased. Serrano-Vargas now appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Serrano-Vargas raises two issues that we resolve on appeal.
First, she contends that the trial court erred in denying her motion
for a directed verdict based on a claim of insufficiency of the
evidence.

When a party moves for a directed verdict based on
a claim of insufficiency of the evidence, we will
uphold the trial court’s decision if, upon reviewing
the evidence and all inferences that can be
reasonably drawn from it, we conclude that some

3. Regarding these circumstances, in her opening brief, Serrano-
Vargas also contended that the court abused its discretion in
denying a motion for a new trial based on an alleged violation of
due process as described in Brady v. Maryland, 373 U.S. 83, 87
(1963) (“[T]he suppression by the prosecution of evidence
favorable to an accused . . . violates due process where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.”). But at oral
argument, Serrano-Vargas conceded that no Brady violation
occurred, so we do not discuss the issue further.

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State v. Serrano-Vargas

evidence exists from which a reasonable jury could
find that the elements of the crime had been proven
beyond a reasonable doubt.

State v. Doyle, 2018 UT App 239, ¶ 11, 437 P.3d 1266 (cleaned up).

¶9 Second, Serrano-Vargas contends that her trial counsel
rendered ineffective assistance by failing to further investigate
and present evidence of the police interviews showing the true
name of the primary lessee of the apartment where Serrano-
Vargas’s room was located. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as a
matter of law.” State v. Beckering, 2015 UT App 209, ¶ 9, 358 P.3d
1131 (cleaned up).

ANALYSIS

I. Sufficiency of the Evidence

¶10 Serrano-Vargas contends that the trial court erred when it
denied her motion for a directed verdict. Specifically, she argues
that the evidence could not support a finding that she
constructively possessed the contraband in the bedroom such that
the jury could find her guilty of the charged crimes. We are not
persuaded.

¶11 “On appeal, we do not reweigh the evidence presented to
the jury,” and we “resolve conflicts in the evidence in favor of the
jury verdict.” State v. Wall, 2020 UT App 36, ¶ 53, 460 P.3d 1058
(cleaned up). Accordingly, to succeed on her claim, Serrano-
Vargas would need to show that the evidence, as presented to the
jury—the exclusive judge of witness credibility and the weight to
be given the evidence—“is insufficient when viewed in the light
most favorable to the verdict.” See id. (cleaned up).

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State v. Serrano-Vargas

¶12 To meet this burden, Serrano-Vargas argues that “a nexus
sufficient to establish constructive possession cannot be
established solely by nonexclusive ownership or occupancy of the
place where the contraband is found” and recites various pieces
of evidence that could arguably cut against a finding of
constructive possession. But the State did not rest its case solely
on “ownership or occupancy of the place where the contraband is
found,” exclusive or not. And the circumstances surrounding the
contraband found in the bedroom support the jury’s
determination, regardless of the facts that others inhabited the
apartment, that another individual’s backpack had been found in
the bedroom, and that all the contraband did not have a direct
connection to Serrano-Vargas.

¶13 To demonstrate constructive possession, “the
circumstantial evidence necessary to convict is evidence showing
a sufficient nexus between the accused and the contraband to
permit an inference that the accused had both the power and the
intent to exercise dominion and control over the contraband.”
State v. Ashcraft, 2015 UT 5, ¶ 19, 349 P.3d 664 (cleaned up).
Although “ownership or occupancy of the premises where
contraband is discovered . . . may not be enough to show
constructive possession by itself,” evidence that can demonstrate
constructive possession includes “ownership and . . . occupancy,”
“presence of the defendant when the contraband is discovered,”
“proximity to the contraband,” “previous drug use by the
defendant,” and “presence of contraband in a specific area where
the defendant had control.” Id. ¶¶ 19–20 (cleaned up).

¶14 For example, in Ashcraft, the defendant argued that “the
only connection between him and the [contraband] was his
occupancy of the truck” in which the contraband was found. Id.
¶¶ 7, 21. But the court disagreed because the defendant had
repeatedly driven through a known drug-activity area, had a
large amount of cash, was near enough the contraband that he
could have reached it from the driver seat of the car, and had
accused the officer of planting the bag containing the contraband

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State v. Serrano-Vargas

before it had even been opened. Id. ¶ 21; see also State v. Workman,
2005 UT 66, ¶ 34, 122 P.3d 639 (holding that a defendant had
constructive possession when, among other things, her
belongings were intermingled with the contraband).

¶15 On the other hand, in State v. Gonzalez-Camargo, 2012 UT
App 366, 293 P.3d 1121, constructive possession was not
established when, apart from “inferences,” “the only evidence
tying [the defendant] to the [contraband was] that he was present,
along with approximately twelve to fourteen other people, when
the police executed the search warrant, and that the [contraband]
was discovered somewhere in the bedroom that he shared with
[another].” Id. ¶ 26; see also State v. Fox, 709 P.2d 316, 320 (Utah
1985) (holding that a defendant did not have constructive
possession when his connections to the residence containing the
contraband were separable from the area where the contraband
was found).

¶16 Here, substantial evidence connected Serrano-Vargas to
the contraband. First, although she contends that her occupancy
of the bedroom was “nonexclusive,” the presence of others in the
apartment and the presence in the bedroom of a single backpack
attributed to another person does not amount to evidence that
would prevent the jury from reasonably determining that
Serrano-Vargas exercised control over the bedroom and its
contents. Indeed, although she claimed she did not have a
connection to all the bedroom’s contents, Serrano-Vargas
reported to police that she paid rent specifically for the bedroom,
which contained only one bed, and that “[n]o one else stayed in
the room with her.” Inside that bedroom, police found a dresser
with a makeup bag atop it. Alongside that makeup bag, police
found a black garbage bag containing, among other things,
distributable amounts of drugs, drug paraphernalia, and
substantial amounts of cash—which, according to trial testimony,
was a combination of contraband and cash not normally
possessed by the average drug user. In that dresser’s bottom
drawer, despite the fact that Serrano-Vargas told them that she

20191091-CA 7 2022 UT App 59
State v. Serrano-Vargas

had only $1,200 in cash and no drugs, police found a purple purse
containing $2,460 in cash, several glass crack pipes,
methamphetamine, cocaine, a digital scale, “three Mexican
government ID cards with the name and a photograph of Silvia
Serrano-Vargas,” and a social security card with Serrano-Vargas’s
name. In the bedroom closet, which contained clothing Serrano-
Vargas claimed as her own, police found a lockbox containing an
additional $8,451 in cash intermingled with MoneyGram transfers
that showed Serrano-Vargas’s name. And perhaps most
condemning of all, when police called the phone number used to
arrange the controlled buy, a phone started ringing—a phone
Serrano-Vargas claimed as her own.

¶17 “Simply put, that [a] jury weighed the evidence differently
than [a defendant] believes it should have is not enough to
persuade us that the evidence . . . was insufficient.” State v. Law,
2020 UT App 74, ¶ 26, 464 P.3d 1192; see also State v. Cady, 2018 UT
App 8, ¶ 32, 414 P.3d 974 (“So long as sufficient evidence supports
each of the guilty verdicts, state courts generally have upheld the
convictions.” (cleaned up)). This is because we must “resolve
conflicts in the evidence in favor of the jury verdict.” Wall, 2020
UT App 36, ¶ 53 (cleaned up). And here, substantial evidence
supported the jury’s verdict. Indeed, unlike Gonzalez-Camargo,
and similar to Ashcraft, see supra ¶¶ 14–15, more evidence linked
Serrano-Vargas to the contraband than her mere presence,
including her testimony about her rental and sole occupancy of
the room, her intermingled personal belongings, and the phone
with a direct connection to the drug trafficking.

¶18 Accordingly, because sufficient evidence supported the
jury’s verdict, we affirm the trial court’s decision to deny the
directed verdict motion based on insufficiency of the evidence.

II. Ineffective Assistance of Counsel

¶19 Serrano-Vargas also claims that her trial counsel rendered
ineffective assistance by failing to investigate, obtain, and present

20191091-CA 8 2022 UT App 59
State v. Serrano-Vargas

evidence of the police interviews identifying the name of the
primary lessee of the apartment where Serrano-Vargas’s room
was located. On appeal, Serrano-Vargas claims that the police
interviews disclosed this name and that had counsel used the
interviews at trial to show the identity of the primary lessee of the
apartment, the jury would have rendered a different verdict
because it would have impacted their evaluation of constructive
possession.

¶20 However, the transcripts of these interviews—interviews
on which Serrano-Vargas relies in presenting her ineffective
assistance claim—are not in the record. And “where, on direct
appeal, a defendant raises a claim that trial counsel was ineffective
. . . , the defendant bears the burden of assuring the record is
adequate.” McCloud v. State, 2019 UT App 35, ¶ 40, 440 P.3d 775
(cleaned up), aff’d, 2021 UT 51, 496 P.3d 179; see also State v.
Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92 (“Appellants bear the
burden of proof with respect to their appeals, including the
burdens attending the preservation and presentation of the
record.”); cf. Turner v. Nelson, 872 P.2d 1021, 1024 (Utah 1994)
(providing that to show “the trial court erred,” an appellant “must
provide this court with a complete record of all evidence relevant
to the alleged error”). As stated, the record here does not contain
the interviews that Serrano-Vargas alleges would show who
actually leased the apartment. And because we do not know what
is in the interview transcripts, we cannot evaluate whether it is
reasonably likely that Serrano-Vargas would have obtained a
more favorable outcome at trial if that evidence had been
obtained. See State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350 (“An
error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment. The burden is on the
defendant to demonstrate a reasonable probability that the
outcome of his or her case would have been different absent
counsel’s error.” (cleaned up)). Accordingly, we cannot consider
her ineffective assistance of counsel claim.

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State v. Serrano-Vargas

CONCLUSION

¶21 Because the trial court did not err in determining that
sufficient evidence supported the jury’s verdict and because we
are unable to consider Serrano-Vargas’s ineffective assistance of
counsel claim, we affirm her convictions.

20191091-CA 10 2022 UT App 59