District Court, West Jordan Department The Honorable L.
Douglas Hogan No. 141400723
L. Welch, Attorney for Appellant
D. Reyes and Jennifer Paisner Williams, Attorneys for
Gregory K. Orme authored this Opinion, in which Judges
Michele M. Christiansen and Jill M. Pohlman concurred.
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.
Over the course of six weeks, a detective supervised five
controlled purchases of methamphetamine from Vu using a
confidential informant. Prior to each purchase, the
confidential informant called Vu to arrange a transaction
while the detective monitored the conversation.
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.
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.
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. In that same room, officers found a bag of
marijuana, mail addressed to Vu,  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.
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 in the back of the car.
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.
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.
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 ...