District Court, Richfield Department The Honorable Wallace A.
Lee No. 121600009
Kenneth L. Combs, Attorney for Appellants.
D. Reyes and William M. Hains, Attorneys for Appellee.
Michele M. Christiansen authored this Memorandum Decision, in
which Judges Stephen L. Roth and Kate A. Toomey concurred.
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.
"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.
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.
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
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.
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.
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.
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.
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 ...