HAGEN, Judge
Opinion Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 131501806 Nicolas D. Turner, Attorney for Appellant Sean D. Reyes and Nathan D. Anderson, Attorneys for Appellee JUDGE DIANA HAGEN authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred. HAGEN, Judge: ¶1 Danny Robert Karren appeals his convictions for possession or use of methamphetamine, possession or use of marijuana, and possession of drug paraphernalia. Karren argues that the district court erred by denying his request for an innocent possession jury instruction. Relying on State v. Miller, 2008 UT 61, 193 P.3d 92, Karren contends that he was entitled to an instruction on innocent possession because he was charged with a possession crime. Because Karren's argument misinterprets the holding in Miller and because the evidence in the record does not support an innocent possession instruction, we affirm the district court's denial of his request. ¶2 Karren also contends that his trial counsel provided ineffective assistance by failing to timely file certain pre-trial motions. Without addressing whether trial counsel's failure to timely file motions constituted deficient performance, we hold that Karren has failed to carry his burden of showing prejudice.
BACKGROUND
We recite the facts in the light most favorable to the jury's verdict, presenting conflicting evidence only as necessary to understand the issues on appeal. See State v. Bond, 2015 UT 88, ¶ 3 n.2, 361 P.3d 104.
¶3 After allegedly lighting a neighbor's car on fire, Karren's roommate and his girlfriend returned to the apartment they shared with Karren. There the two gathered "anything and everything they could," spoke briefly with Karren, and fled the apartment, leaving Karren behind. Sometime early the next morning, Karren smoked methamphetamine. Around the same time, Karren's roommate contacted Karren to let him know that the police might come to their apartment and that he left some things he needed Karren to bring to him. Karren agreed to deliver to a local motel a glass marijuana pipe, which belonged to the roommate's girlfriend, and a black backpack he retrieved from the roommate's bedroom. Karren placed the glass pipe in the backpack and drove to the motel in his van. When he arrived, Karren moved the backpack to the backseat of the van and fell asleep. ¶4 Shortly thereafter, a police officer responding to a call from a motel employee found Karren asleep in his vehicle. While he was standing outside of the vehicle looking in at Karren, the officer observed a large metal spoon with white residue lying on the passenger seat. Based on his training and experience, the officer recognized that the white residue was methamphetamine and that the spoon had been used to heat methamphetamine. presence. The State recalled the arresting officer, who testified that he gave Karren his Miranda warnings before questioning him. After argument on the motion, the district court ruled that it "believe[d] the officer's testimony with regard to what happened" and it "just doesn't make sense . . . [that] it would happen the way that [Karren] describes it." Accordingly, the court denied the motion to suppress. ¶16 After closing arguments, trial counsel also requested an innocent possession jury instruction, which the court denied. The jury found Karren guilty of all charges. ¶17 Karren appeals.
Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), every individual "in custody or otherwise deprived of his freedom of action in any significant way" must be advised of his rights against self-incrimination under the Fifth Amendment to the United States Constitution. Id. at 445, 478-79.
ISSUES AND STANDARDS OF REVIEW
¶18 Karren raises two issues on appeal. First, Karren contends that the district court erred in denying his request to instruct the jury as to innocent possession. "We review a district court's refusal to give a jury instruction for abuse of discretion." Miller v. Utah Dep't of Transp., 2012 UT 54, ¶ 13, 285 P.3d 1208. "Abuse of discretion occurs only if it can be said that no reasonable person would take the view adopted by the district court." State v. Sanchez, 2017 UT App 229, ¶ 2, 409 P.3d 156 (per curiam) (quotation simplified). ¶19 Second, Karren contends that his trial counsel provided ineffective assistance by failing to timely raise four pre-trial motions. Karren failed to preserve this claim below but we recognize an exception to the preservation rule for claims of ineffective assistance of counsel. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443 (acknowledging an ineffective assistance of counsel exception to the preservation rule). "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Robertson, 2018 UT App 91, ¶ 21, 427 P.3d 361 (quotation simplified).
In his initial notice of appeal, Karren asserted three additional reasons that he believes his trial counsel provided ineffective assistance. Because Karren's appellate counsel was admittedly "unable to determine what [Karren] was referring to" in regards to these arguments and has otherwise failed to address them in the appellant's brief, we decline to reach them.
ANALYSIS
I. Innocent Possession Instruction
¶20 Karren first contends that he was entitled to an innocent possession jury instruction. In general, "a defendant is entitled to have his legal theory of the case placed before the jury if it would not be superfluous to do so because of an absence of any evidence to support the theory." State v. Piansiaksone, 954 P.2d 861, 871 (Utah 1998) (quotation simplified). A defendant is not entitled to present his theory to the jury if there is no "basis in the evidence to support" it. State v. Kennedy, 2015 UT App 152, ¶ 32, 354 P.3d 775. "The issue of whether the record evidence, viewed in its totality, supports the defendant's theory of the case is primarily a factual question," that is "entitled to more deference than any other kind of determination." State v. Berriel, 2013 UT 19, ¶ 9, 299 P.3d 1133. ¶21 In State v. Miller, 2008 UT 61, 193 P.3d 92, the Utah Supreme Court held that the possession of a controlled substance statute, Utah Code section 58-37-8(2)(a)(i), "implicitly includes the defense of innocent possession." Id. ¶ 21. The defense applies when "(1) the controlled substance was attained innocently and held with no illicit or illegal purpose, and (2) the possession of the controlled substance was transitory; that is, that the defendant took adequate measures to rid himself of controlled substances "with no illicit or illegal purpose" where his professed purpose was to deliver the drugs to an illegal user. ¶24 We do not read Miller to suggest that "temporary possession for the purpose of returning a controlled substance to its lawful owner" is the only circumstance in which the innocent possession defense would apply. Miller, 2008 UT 61, ¶ 19. But Karren has identified no evidence that would support an alternative theory of innocent possession, such as intent to dispose of the drugs to prevent harm to others or to turn them over to the proper authorities. Instead, Karren claims only that he was returning the drugs to his roommate. Under such circumstances, a defendant must point to some evidence to suggest he was returning the drugs to a person who could legally possess them. Because there is no evidence to support such a theory in this case, the district court did not err in denying Karren's request for an innocent possession jury instruction.
The Utah legislature recently passed H.B. 3001, the Utah Medical Cannabis Act, which would legalize the possession of marijuana under limited circumstances. If signed into law, the Act would become effective on July 1, 2019.
II. Ineffective Assistance of Counsel
¶25 Karren's second claim is that his trial counsel provided ineffective assistance by making untimely pre-trial motions. Specifically, Karren argues that his trial counsel failed to timely move for a continuance so that he would have an opportunity to file three other motions: a motion for a jury instruction relating to "missing photographs and fingerprint contamination," a motion to suppress "based upon unwarranted custodial interrogation," and a motion to dismiss "based upon selective or vindictive prosecution." In order to succeed on this claim, Trial counsel moved for a continuance the morning of the first day of trial to "pursue at least three motions"—the motion for a jury instruction about missing evidence, the motion to suppress for failure to give Miranda warnings, and the motion to dismiss because of selective prosecution. Apart from those three motions, defense counsel made no other argument that the district court should grant Karren's motion to continue. We have already addressed those motions and determined they were, respectively, granted, rejected by the district court on the merits, or otherwise futile. Because of this, Karren cannot show that but for counsel's failure to timely make the motion to continue he would have received a better result at trial. ¶35 Karren has not shown that he was prejudiced by his trial counsel's failure to timely file pre-trial motions. Accordingly, he has failed to show that his trial counsel provided ineffective assistance of counsel.
It is unclear from Karren's briefing on appeal whether he is arguing that his trial counsel provided ineffective assistance by failing to timely move to continue trial or if he is arguing that his trial counsel provided ineffective assistance by failing to timely make the motions that counsel claimed justified his motion to continue. For clarity, we address each of the four motions separately. --------
CONCLUSION
¶36 We affirm the district court's denial of Karren's request to instruct the jury as to innocent possession because the evidence in the record does not support Karren's argument that he innocently possessed methamphetamine and marijuana. In addition, we hold that Karren has not shown that his trial counsel provided ineffective assistance of counsel because he has failed to demonstrate he was prejudiced by trial counsel's failure to timely file pre-trial motions. Accordingly, we affirm Karren's convictions.