District Court, Salt Lake Department The Honorable Ann Boyden
Nathalie S. Skibine and Richard G. Sorenson, Attorneys for
D. Reyes and Mark C. Field, Attorneys for Appellee.
Michele M. Christiansen Forster authored this Opinion, in
which Judges Jill M. Pohlman and Ryan M. Harris concurred.
CHRISTIANSEN FORSTER, JUDGE.
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
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
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.
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.
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.
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 warning. Defendant nevertheless
agreed to speak with the police.
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.
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.
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
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."
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.
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.
The jury convicted Defendant of two of the four charges:
carrying a loaded, concealed firearm and possession of a