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State v. Fleming

Court of Appeals of Utah

November 15, 2019

State of Utah, Appellee,
v.
Carl Stanley Fleming, Appellant.

          Second District Court, Ogden Department The Honorable Ernest W. Jones No. 161901973

          Cherise Bacalski and Emily Adams, Attorneys for Appellant

          Sean D. Reyes and Thomas Brunker, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

          OPINION

          MORTENSEN, JUDGE.

         ¶1 During a search incident to arrest, police officers found Carl Stanley Fleming in possession of drug paraphernalia and cocaine. Later, Fleming tried to explain away his possession of the cocaine by saying he was unaware that it was in a jacket that he alleged he had borrowed from his girlfriend. This explanation was a disconnect, however, because the arresting officer had found the cocaine in the front pocket of Fleming's pants. At trial, Fleming's counsel (Counsel) told the jury it would hear Fleming's account, but Fleming did not testify when Counsel became concerned that Fleming's three prior drug convictions might come in. The jury found Fleming guilty. Fleming appeals, claiming Counsel was ineffective in a couple of ways. We affirm.

         BACKGROUND[1]

         ¶2 While checking a park for trespassers, officers came upon Fleming, asked him to identify himself, and then arrested him based on an active arrest warrant. In the search incident to arrest, an officer found a black case containing two pipes and some Brillo pads[2] in Fleming's jacket pocket and a pill bottle with a hard, white substance in Fleming's front pants pocket. The officer asked Fleming what the substance was, and Fleming responded that "it might be meth or it might be a rock, "[3] but he hadn't had a chance to try it yet. The substance later proved to be cocaine. The State charged Fleming with possession of a controlled substance with prior convictions.

         ¶3 At a suppression hearing, Fleming testified that the cocaine was in his girlfriend's jacket that he was wearing, not in his pants pocket. He further explained that he was wearing his girlfriend's jacket in addition to his own coat, and that he was unaware the cocaine was in her jacket. After the hearing, the State filed a notice that if Fleming so testified at trial, the State would present Fleming's three prior drug-related convictions for the purpose of rebutting his lack-of-knowledge or mistake argument as to possessing the cocaine. See Utah R. Evid. 404(b).

         ¶4 At trial, Counsel told the jury in his opening statement that it would hear Fleming's account of the arrest, specifically that the cocaine was found in his girlfriend's jacket that he happened to be wearing, not his pants pocket, and that he did not know the drugs were there. During its case-in-chief, the State presented the arresting officer's testimony that the cocaine was found in Fleming's front pants pocket. Counsel then sought a ruling on whether Fleming's prior convictions would be admissible if Fleming testified, but the trial court declined to rule in advance, reasoning that admissibility would turn on the content of Fleming's testimony. Counsel ultimately advised Fleming not to testify.[4]

         ¶5 In closing argument, Counsel focused on four principal points. First, Counsel argued that if Fleming had known about the cocaine, he would have disposed of it because he had ample opportunity to do so before being detained. Second, Counsel asserted that Fleming did not know about the cocaine because it would make no sense that Fleming would admit that he had the drug paraphernalia and not admit that he had the cocaine. Third, Counsel focused on Fleming's answer to the arresting officer that the cocaine "might be meth or it might be a rock," arguing that someone who knew he had drugs would know what they are. Finally, Counsel focused on discrediting the arresting officer's testimony. Counsel specifically argued that the arresting officer's testimony conflicted with another officer's testimony regarding whether a pastor, who was standing by Fleming during the arrest, drove off in a car and had to be brought back to the scene. This conflict, Counsel argued, sufficiently undermined the arresting officer's testimony such that the jury should disbelieve him completely. However, this final argument was based on a misunderstanding of the testimony, and the State clarified in its rebuttal argument that the arresting officer never testified that the pastor left, only that the pastor got into his car.

         ¶6 The jury convicted Fleming as charged, and he appeals.

         ISSUE AND STANDARD OF REVIEW

         ¶7 The sole issue Fleming raises is whether he received constitutionally ineffective assistance of counsel. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State ...


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