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State v. Nay

Court of Appeals of Utah

January 6, 2017

State of Utah, Appellee,
v.
Michael L. Nay and Tracy L. Hanson, Appellants.

         Sixth District Court, Richfield Department The Honorable Wallace A. Lee No. 121600009

          Kenneth L. Combs, Attorney for Appellants.

          Sean D. Reyes and William M. Hains, Attorneys for Appellee.

          Judge Michele M. Christiansen authored this Memorandum Decision, in which Judges Stephen L. Roth and Kate A. Toomey concurred.

          MEMORANDUM DECISION

          CHRISTIANSEN, Judge.

         ¶1 Defendants Michael L. Nay and Tracy L. Hanson appeal their convictions, arguing that the trial court abused its discretion when it granted the State's motion for a joint trial of the charges against them. Nay and Hanson were tried jointly, and the jury convicted them each of possession of a controlled substance, a third degree felony; production of a controlled substance, a third degree felony; and possession of drug paraphernalia, a class B misdemeanor. The jury also convicted Hanson of possession of a firearm by a restricted person, a third degree felony. We affirm.

         ¶2 "On appeal from a jury verdict, we view the evidence and all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly." State v. Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863. "We include conflicting evidence as relevant and necessary to understand the issues on appeal." Id.

         ¶3 While executing a search warrant on Hanson's house, police officers entered and discovered Hanson in the living room smoking marijuana with her brother (Brother) and their cousin, Nay. They also discovered equipment for grinding and weighing marijuana and two large plastic bags-one containing loose marijuana and the other containing twelve smaller bags of marijuana. In addition, the officers found a backpack belonging to Nay that contained three glass jars of marijuana. The officers then searched Hanson's bedroom, finding another bag of marijuana, two guns, and an instructional manual titled "Marijuana Horticulture: The Indoor/Outdoor Medical Grower's Bible." In the basement, they found one marijuana plant growing under a fluorescent light, with a heater and fan nearby, and three harvested plants drying. And in the kitchen, officers found more marijuana in a drawer and in a paper bag on a table.

         ¶4 The officers arrested Nay, Hanson, and Brother. At the jail, a detective (Detective) informed Hanson of her Miranda rights and interviewed her. According to Detective, Hanson was "calm and collected, " "seemed coherent, " and "was in control of her faculties and knew what was happening." Hanson confessed that the trio had been "trying their hand at growing marijuana, " that she and Nay "did the bulk of the work" because Brother was not very good at it, and that Nay and Brother had acquired a couple of pounds of marijuana, which the trio had been weighing and preparing for resale when the officers searched the house. The interview was not recorded.

         ¶5 The State charged the trio with several drug-related offenses, to which Brother pled guilty. The State then moved to join Nay's and Hanson's cases for trial. Nay and Hanson opposed joinder, arguing that their defenses were irreconcilable and that, apparently as a result, Hanson's confession was inadmissible hearsay as to Nay. The trial court granted the State's motion, ruling that Nay and Hanson would not suffer prejudice from antagonistic defenses or from inadmissible hearsay. At trial, Brother, Hanson, and Nay testified for the joint defense.

         ¶6 The gist of Brother's testimony was that, while all three had been smoking marijuana, only he had been growing and selling it. Brother testified that he alone was responsible for growing the marijuana, that he brought the marijuana to Hanson's house to divide and weigh it for sale, and that he tended the marijuana plant in the basement without Hanson's knowledge using a house key he had. He also testified that he had placed the jars of marijuana in Nay's backpack as the police officers entered the house.

         ¶7 Nay testified that the backpack was his but also that he did not own or have knowledge of the marijuana jars found in it. He also corroborated Brother's claim of sole responsibility for the marijuana. Nay further testified that Hanson had appeared uncomfortable and hesitant when Brother revealed the marijuana and began weighing and bagging it.

         ¶8 Hanson testified that she did not remember being interviewed by the police, perhaps due to the effects of the marijuana she had smoked that day or due to the stressful situation. She denied the truth of the confession, claiming that Brother was solely responsible for the marijuana and that all she had done was smoke some of it. She testified that she had not provided Brother with a house key and speculated that he must have found and used her hidden house key to enter the house and plant and tend the marijuana plant growing in the basement. Hanson also testified that she had been upset when Brother took out the marijuana and began weighing it and that she had not known about the marijuana plant in the basement until a day or two before the police searched the house.

         ¶9 The jury convicted both Nay and Hanson of possession of a controlled substance, production of a controlled substance, and possession of drug paraphernalia. The jury also convicted Hanson of possession of a firearm by a restricted person. Nay and Hanson were fined ...


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