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State v. Rivera

Court of Appeals of Utah

February 22, 2019

State of Utah, Appellee,
v.
Lourdes Rivera, Appellant.

          Third District Court, Salt Lake Department The Honorable Ann Boyden No. 141910225

          Nathalie S. Skibine and Richard G. Sorenson, Attorneys for Appellant.

          Sean D. Reyes and Mark C. Field, Attorneys for Appellee.

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

          OPINION

          CHRISTIANSEN FORSTER, JUDGE.

         ¶1 Defendant Lourdes Rivera appeals her convictions for carrying a loaded concealed firearm and possession of a controlled substance. We conclude that the trial court erred when it denied Defendant's request for an innocent-possession jury instruction on the charge of possession of a controlled substance. We therefore reverse that conviction and remand for a new trial on that charge, but affirm in all other respects.

         BACKGROUND

         ¶2 While visiting her boyfriend (Boyfriend) at his apartment, Defendant grew tired of Boyfriend's repeated drug use and the two argued. In an effort to stop his drug use, Defendant took away Boyfriend's drugs, put them in her purse, and then went into the bathroom to shower, locking the door behind her. While she showered, Boyfriend banged on the door and continued to argue, demanding that Defendant return his "stuff."

         ¶3 When Defendant had finished showering, dressed, and exited the bathroom, Boyfriend, Boyfriend's son, and Boyfriend's brother (Brother) were standing at the end of the hall. Brother pointed a gun in Defendant's direction and Boyfriend told Brother, "Shoot the bitch. Shoot the bitch, motherfucker." Scared, Defendant said she tried to call the police but her phone would not work. The three men ran from the apartment and Defendant saw Boyfriend drive away, though she did not know where the other two went.

         ¶4 Defendant then whistled toward a nearby apartment to alert her daughter (Daughter) that they needed to leave. While waiting for Daughter, Defendant ran back inside Boyfriend's apartment to retrieve a loaded .22 caliber pistol, putting it in her bra for safety. She put her purse on the bed in the bedroom and left it there. Defendant again stepped out of Boyfriend's apartment. At the same time Daughter came to Defendant and, by that time, numerous police officers had arrived at the apartment complex. Defendant later testified that she did not know exactly why the officers were there, because everything had happened so fast.

         ¶5 Defendant collected Daughter and walked outside the gate of the courtyard of the apartment complex. Once outside the gate, a police officer approached Defendant and asked if she had seen anyone with a gun or heard anything. Defendant said, "No," and the officer walked away.

         ¶6 A short time later, however, some children in the apartment complex informed the officers that Defendant was the person with a gun. Officers again approached Defendant. One officer testified that he asked Defendant if she had any weapons on her and Defendant said, "No." But the officer's police report does not mention whether he actually asked Defendant about weapons, and Defendant testified that she did not remember such a question. A second officer asked Defendant if she had a weapon on her and Defendant said that she had a gun in her bra. This officer performed a pat down search revealing Defendant's gun where Defendant said the officer would find it. The officer handcuffed Defendant and gave her a Miranda[1] warning. Defendant nevertheless agreed to speak with the police.

         ¶7 Although Defendant explained to the police what had happened, she could not remember what she and Boyfriend were fighting about. She also did not mention that she had put Boyfriend's drugs in her purse, which was still inside the apartment. While Defendant spoke to police officers, Defendant's sister (Sister) arrived to pick up Daughter. The police allowed Daughter into Boyfriend's apartment to retrieve a few things. Along with her backpack, Daughter brought out Defendant's purse.

         ¶8 Sister opened the purse on the ground, looking for a key that Defendant had said was inside her purse. During Sister's search of the purse, police officers saw a suspicious pouch and asked Defendant if she had drugs in her purse. Defendant indicated that she did. The officers' search of the purse revealed what appeared to be drugs and drug paraphernalia, as well as two live .22 rounds and a spent .22 casing. Defendant later testified that the drugs were not hers and that she did not use drugs.

         ¶9 The State charged Defendant with several offenses and proceeded to trial on the charges of possession of a firearm by a restricted person, possession of a controlled substance, possession of drug paraphernalia, and carrying a concealed dangerous weapon. Defendant asserted as defenses that she was compelled to possess the gun and drugs and that she innocently possessed the drugs and drug paraphernalia. Defendant requested that the trial court instruct the jury on each of these defenses, but the trial court declined to rule on this request until the evidence had been presented at trial.

         ¶10 At the outset of the trial, the court and the parties discussed whether the officers could testify that they were responding to a report of a "woman with a gun" or whether they should be limited to stating that they were responding to a report of a "person with a gun." Defendant objected to the officers' use of the phrase "woman with a gun," specifically arguing that the use of that phrase would lead the jury to improperly infer that she was the subject of the report. Ultimately, the trial court overruled Defendant's objection and allowed the officers to testify that they had been responding to a report of a "woman with a gun."

         ¶11 At the close of the State's case, Defendant moved for a directed verdict. Defendant asserted that Utah law regarding concealed weapons allowed her to carry a concealed firearm on "her property," and that the State did not present sufficient evidence at trial to establish that Defendant was not on her property when the police found her with the gun. According to Defendant, the State's own evidence showed that the police encountered her "right outside the apartment complex which is a common area, . . . it's her property." The trial court concluded, however, that the evidence established that Defendant was not on her property when the police engaged her because Defendant was outside the gate of the apartment complex.

         ¶12 At the close of Defendant's case, the court revived the discussion regarding Defendant's two requested defense instructions-innocent possession and compulsion. As to innocent possession of the drugs and paraphernalia, the trial court determined that there was no evidence of any illegal purpose regarding Defendant's possession of the drugs and paraphernalia. The court denied Defendant's request for an innocent-possession instruction, however, because the evidence showed that Defendant had made no attempt to dispose of the drugs or turn them over to the police. On the defense of compulsion to carry a firearm, the court determined that the defense did not apply because any threat to Defendant had dissipated after the three men left the apartment. With respect to the compulsion to possess drugs, the court determined that Boyfriend's use of drugs throughout the night was not an imminent threat. Accordingly, the court denied Defendant's request for a compulsion instruction.

         ¶13 The jury convicted Defendant of two of the four charges: carrying a loaded, concealed firearm and possession of a ...


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