Last Updated: February 13, 2024

State v Cesspooch, 2024 UT App 15

The Utah Court of Appeals addressed two related issues in this appeal from a conviction for possession of drug paraphernalia. These issues included: The defendant was accused of possession of a controlled substance (later testing showed it to be methamphetamine) and drug paraphernalia. Allegations were that the defendant pulled a…

The Utah Court of Appeals addressed two related issues in this appeal from a conviction for possession of drug paraphernalia. These issues included:

  • whether the trial court committed plain error when it read an elements instruction to the jury that informed the jury of the level of the offenses that were charged; and
  • whether the defense attorney at trial was ineffective for failing to object to the instruction.

The defendant was accused of possession of a controlled substance (later testing showed it to be methamphetamine) and drug paraphernalia. Allegations were that the defendant pulled a baggie out of his pocket when while he was going through security before entering the courthouse.

While instructing the jury, the judge read an elements instruction that informed the jury of the level of offense for both charges (class A misdemeanor possession of a controlled substance and class B misdemeanor possession of drug paraphernalia). Defense counsel failed to object to the instruction.

The jury ultimately acquitted the defendant on the charge of possession of a controlled substance, but convicted on the drug paraphernalia charge.

Case Analysis

The appellate court agreed that it was plain error for the trial court judge to inform the jury of the level of the offenses that had been charged. Courts have generally held that punishment is normally not a proper issue for a jury to consider in its deliberations.

Although the appellate court agreed that the trial court committed plain error, it held that the defendant on appeal had not demonstrated that actual harm resulted from the error. In other words, the appellate court found the error to be “harmless.”

On the second issue of ineffective assistance of counsel, the defendant on appeal argued that the defense attorney at trial should have objected to the erroneous instruction. The appellate court held that even if defense counsel provided ineffective assistance at trial, any error resulting from the deficient performance was also harmless.

Key Takeaways

  • Preserving an issue for appeal during the trial can be critical for obtaining meaningful review of the issue if a conviction is entered.
  • A jury is not supposed to consider potential punishment in its deliberations or in reaching a verdict.
  • The principle of “harmless error” can be used by an appellate court to affirm a conviction even if it is clear that an error was made by the trial court.
  • Finally, don’t bring anything illegal with you when you go to court.

If you are facing trial in a criminal prosecution or if you are considering filing an appeal following trial, consultation with an experienced criminal defense attorney is strongly advised.

Originally Published: February 13, 2024

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