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State v. Hunter

Court of Appeals of Utah

September 26, 2019

State of Utah, Appellee,
v.
Glenn Conway Hunter, Appellant.

          Third District Court, West Jordan Department The Honorable William K. Kendall No. 161401898

          Teresa L. Welch, Attorney for Appellant

          Sean D. Reyes and William M. Hains, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.

          OPINION

          MORTENSEN, JUDGE.

         ¶1 Clad in camouflage pants, a black hoodie, black sunglasses, a black hat, and a gold chain necklace, Glenn Conway Hunter distributed methamphetamine and was observed by two police officers (Officers) surveying the area for just such activities. The Officers directed an arrest team to apprehend Hunter, and in addition to the methamphetamine, the Officers also found a handgun in his possession. A jury convicted Hunter of possession of a controlled substance with intent to distribute and possession of a firearm by a restricted person. Hunter challenges the distribution conviction on appeal, claiming misidentification and ineffective assistance of counsel in failing to request a Long instruction. We affirm.

         BACKGROUND[1]

         The Arrest

         ¶2 Around 7:30 on a June evening, the Officers were conducting surveillance of possible drug dealing near a Salt Lake City homeless shelter. From a building approximately 100 yards away, the Officers used binoculars to observe the area. The weather was temperate and provided adequate lighting for the Officers to clearly see several dozen people near the shelter.

         ¶3 While observing the area from adjoining rooms and communicating with each other by radio, the Officers noticed what appeared to be-and in fact was-a drug transaction. They watched a white man (Buyer) approach and hand cash to a black man (Seller). After receiving the cash, Seller retrieved a plastic bag containing a white, grainy substance from his pocket and handed some of the substance from the bag to Buyer. The substance was later determined to be methamphetamine. During this quick transaction, [2] Seller was leaning against a fence, facing toward the Officers. He wore camouflage pants, a black hooded sweatshirt, black sunglasses, a black hat, and a gold chain necklace. Buyer had his back toward the Officers and wore a white tank top and light-colored pants.

         ¶4 After the brief exchange, Buyer began to walk away, but as he did, the Officers directed a team of officers to apprehend him. The arrest team closed in on Buyer, and the Officers focused their attention on him to ensure that the correct individual was arrested. Buyer quickly left the Officers' field of vision, however, so the Officers returned their attention to Seller. Seller was still standing in the same location and was still wearing the same clothing: camouflage pants, a black hooded sweatshirt, black sunglasses, a black hat, and a gold chain necklace. Immediately thereafter, the arrest team confirmed via radio that they had arrested Buyer, who was in possession of methamphetamine.

         ¶5 With this information, the Officers described Seller, his location, and what he was wearing; then they directed another arrest team to detain him. The Officers watched and verified that the second arrest team had detained Seller. Seller was arrested, found in possession of a handgun and over five grams of methamphetamine. He then was identified as Hunter.

         The Trial

         ¶6 The State charged Hunter with possession of a firearm by a restricted person, distribution of a controlled substance, and possession of a controlled substance.[3] However, the State ultimately dismissed the possession of a controlled substance charge based on merger.[4] The case went to trial, and at the close of the State's case-in-chief, Hunter moved for a directed verdict on the distribution of a controlled substance charge. He argued that the State failed to "present sufficient evidence . . . that [he] was the individual who was at the scene . . . [and] was the individual who distributed that methamphetamine" primarily because the Officers "took [their] eyes off the person" who had sold the methamphetamine. Hunter also argued that there was no evidence that the white substance in his bag was the lab-tested methamphetamine due to ...


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