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State v. Vu

Court of Appeals of Utah

September 21, 2017

State of Utah, Appellee,
v.
Thomas J. Vu, Appellant.

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

          Teresa L. Welch, Attorney for Appellant

          Sean D. Reyes and Jennifer Paisner Williams, 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 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 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 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 ...


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