2017 UT App 54
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MICHAEL JOHN EDGAR,
Appellant.
Opinion
No. 20150605-CA
Filed March 23, 2017
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 131403330
Emily Adams, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN
concurred.
VOROS, Judge:
¶1 Michael John Edgar was convicted of various drug-
related offenses. He appeals, asserting that his trial counsel
performed ineffectively by not seeking to exclude evidence of his
connection to a drug dealer and by not objecting to the State’s
motion to amend the information on the morning of trial.
Because Edgar has not demonstrated a reasonable likelihood of a
different result had counsel taken these steps, we affirm.
BACKGROUND
¶2 In November 2013 police arrested Edgar after
investigating his involvement in the sale of a stolen trailer. At
State v. Edgar
the time of his arrest, Edgar was driving a borrowed car. Police
searched the car and found a briefcase containing various drugs
(including heroin), drug paraphernalia, packaging materials, a
scale, several driver licenses and credit cards belonging to other
individuals, and pill bottles bearing Edgar’s name. The manner
that the drugs were packaged, along with the ‚massive amounts
of different kinds of pills,‛ was consistent with illegal
distribution of controlled substances. The State charged Edgar
with nine counts of possession of a controlled substance with
intent to distribute, one count of possession of drug
paraphernalia, and one count of theft by receiving stolen
property.
¶3 On the morning of Edgar’s trial, the prosecutor filed a
Second Amended Information charging Edgar with committing
a crime within 1,000 feet of an athletic training facility and thus
within a drug-free zone. Edgar’s defense counsel researched the
training facility that morning. At trial, an owner of one of the
businesses located at the facility testified at trial about its
location and the number of children that frequent the facility.
One of the responding officers testified that Edgar was about 400
feet from the facility at the time police arrested him. Defense
counsel cross-examined the business owner and the responding
officer.
¶4 A Drug Enforcement Administration agent also testified
that, while charges were pending, Edgar contacted him. When
the State asked what Edgar told the agent in their phone
conversation, defense counsel objected on relevance grounds.
Outside of the presence of the jury, defense counsel explained
that testimony relating to the agent’s contact with Edgar was
irrelevant because the charged conduct occurred eight months
before the contact with the DEA. The court overruled the
objection and the agent testified that Edgar ‚was seeking to
cooperate with law enforcement in regard to heroin trafficking
or [a] heroin trafficker that was operating out of the Salt Lake
City area and that he would do so in exchange for consideration
with his pending charges in Utah County.‛ The court called the
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State v. Edgar
attorneys to the bench and explained that it did not want ‚this
jury knowing that there are other pending cases‛ involving
Edgar, because it was ‚potentially approaching prejudicial if he
goes into each of the cases.‛
¶5 The prosecutor examined the agent further about the
agent’s conversation with Edgar, and the agent testified that the
conversation ‚[h]ad to do with specifically access to a heroin
trafficker who was capable of moving large quantities of heroin.‛
The agent testified that ‚it was pounds specifically that we
discussed, that he was capable of dealing in pounds of heroin.‛
The prosecutor asked the agent whether Edgar discussed
working with any other officers on a state level and defense
counsel objected again. Outside of the presence of the jury,
defense counsel explained that his objection related to the risk of
revealing Edgar’s involvement in other criminal matters:
I think we’re bordering on testimony here that
could easily lead to a mistrial. [The DEA agent] has
mentioned other cases, he’s mentioned . . . working
with other state agents that won’t be involved in
this case, he’s talked about matters that happened
well after November 7, 2013 and I think the jurors
have almost heard enough . . . to further implicate
Mr. Edgar in other matters.
Defense counsel later added, ‚The prejudicial nature of the
testimony, there’s other cases, he’s working with other officers
here in the state of Utah, that don’t pertain necessarily to this
case and we’re looking at the facts for November 7, 2013 and
what he was doing at that time.‛ The court ruled that evidence
that Edgar contacted and made an offer to the agent was
admissible, but excluded evidence that Edgar contacted another
DEA agent in another case.
¶6 The jury convicted Edgar of six counts of possession with
intent to distribute a controlled substance in a drug-free zone,
first degree felonies; three counts of possession with intent to
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State v. Edgar
distribute a controlled substance in a drug-free zone, second
degree felonies; one count of theft by receiving stolen property, a
third degree felony; and one count of use or possession of drug
paraphernalia in a drug-free zone, a class A misdemeanor.
ISSUES AND STANDARD OF REVIEW
¶7 Edgar raises two issues on appeal. First, Edgar contends
that the trial court exceeded its discretion under rule 403 of the
Utah Rules of Evidence when it allowed the testimony of the
DEA agent about Edgar’s connection to a drug trafficker.
Alternatively, Edgar contends that if his objection to the trial
court’s admission of the DEA agent’s testimony did not preserve
the issue, his trial counsel was ineffective for not appropriately
objecting to the DEA agent’s testimony.
¶8 Second, Edgar contends that his trial counsel was
ineffective for failing to object to the State’s request for
permission to file the Second Amended Information. ‚An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.‛ State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162.
ANALYSIS
I. Rule 403 Evidence
¶9 Edgar first contends that the district court exceeded its
discretion under rule 403 when it allowed the testimony of the
DEA agent about Edgar’s connection to a drug trafficker.
¶10 The State maintains that Edgar did not preserve this claim
in the trial court. Edgar responds that his counsel objected to the
‚‘prejudicial nature’ of the agent’s testimony.‛ ‚As a general
rule, claims not raised before the trial court may not be raised on
appeal.‛ State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. ‚An issue
is preserved for appeal when it has been presented to the trial
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State v. Edgar
court in such a way that the trial court had the opportunity to
rule on it.‛ State v. Kennedy, 2015 UT App 152, ¶ 21, 354 P.3d 775.
¶11 Edgar did not preserve the rule 403 argument he asserts
on appeal. Although Edgar’s trial counsel objected to the DEA
agent’s testimony, he objected to the agent’s reference to Edgar’s
involvement in other criminal cases, not to his involvement with
the drug trafficker. Because this latter argument was not
‚presented to the trial court in such a way that the . . . court had
the opportunity to rule on it,‛ we decline to address it on appeal.
See id.
¶12 Edgar contends in the alternative that his trial counsel
was ineffective ‚for not appropriately objecting to the DEA
agent’s testimony.‛ Specifically, Edgar argues that trial counsel
‚should have realized that testimony that links a defendant
charged with a drug crime to a high-level drug trafficker . . . is
unfairly prejudicial.‛
¶13 To succeed on a claim of ineffective assistance of counsel,
a defendant must show both ‚that counsel’s performance was
deficient‛ and ‚that the deficient performance prejudiced the
defense.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984); see
also State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031. ‚Failure to
raise futile objections does not constitute ineffective assistance of
counsel.‛ State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. But
showing that an objection would have resulted in the exclusion
of inadmissible evidence falls short of demonstrating prejudice.
The defendant must in addition show ‚a reasonable probability
that the verdict would have been different absent the excludable
evidence in order to demonstrate actual prejudice.‛ Kimmelman
v. Morrison, 477 U.S. 365, 375 (1986).
¶14 Accordingly, we first consider whether a rule 403
objection would have been futile. Rule 403 provides that the
court may ‚exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
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State v. Edgar
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.‛ Utah R. Evid. 403. Rule 403
‚imposes . . . [a] heavy burden not only to show that the risk of
unfair prejudice is greater than the probative value, but that it
‘substantially outweigh[s]’ the probative value.‛ State v. Jones,
2015 UT 19, ¶ 29, 345 P.3d 1195 (second alteration in original).
¶15 As to probative value, Edgar argues that the DEA agent’s
testimony ‚was utterly unhelpful.‛ This is so, he reasons,
because while it proved that Edgar knew drug dealers, it did not
connect those drug dealers to the charged crimes. He further
argues that the testimony unfairly prejudiced him because it
encouraged the jury to find him guilty by association.
¶16 We do not agree that the evidence lacked probative value.
Edgar was charged with nine counts of possession of a
controlled substance with intent to distribute. Police found
heroin packaged for individual resale in the briefcase in the car
Edgar was driving. Edgar maintained at trial that the drugs were
not his. But his connection to a ‚heroin trafficker who was
capable of moving large quantities of heroin‛ made more
probable the State’s claim that the drugs were Edgar’s. See, e.g.,
United States v. Carty, 993 F.2d 1005, 1011–12 (1st Cir. 1993)
(holding that a defendant’s ‚post-arrest statements relating to a
cocaine source were probative of his intent and opportunity to
possess and distribute cocaine‛); Williams v. State, 796 A.2d 1281,
1289 (Del. 2002) (holding that defendant’s statement that he
‚personally knew the leader and members of a ‘drug
distribution organization’ was material to show that he had the
opportunity to obtain large quantities of drugs for potential
distribution‛); State v. Stephan, No. 90-2823-CR, 1993 WL 9003 at
*5 (Wis. Ct. App. Jan. 21, 1993) (holding that defendant’s
connection with a known drug dealer was relevant to show his
source of cocaine and to rebut his defense that the cocaine
belonged to someone else). All else being equal, someone who
knows a product wholesaler is more likely to retail that product
than someone who does not know a wholesaler.
20150605-CA 6 2017 UT App 54
State v. Edgar
¶17 Nevertheless, we agree with Edgar that the challenged
testimony presented a danger of unfair prejudice by inviting an
impermissible inference—that because he knew a drug dealer he
might be a drug dealer. But as explained above, that
impermissible inference varies only a few degrees from a
permissible inference—that Edgar’s relationship to a heroin
wholesaler increased the likelihood that this heroin, packaged
for resale, belonged to him. Accordingly, while the challenged
testimony carried some danger of unfair prejudice, we conclude
that that danger did not substantially outweigh its probative
value. We therefore conclude that Edgar has not shown a
reasonable probability that an objection to the testimony’s
admissibility under rule 403 would have been sustained.
¶18 In addition, Edgar has not shown a reasonable probability
that, even if such an objection would have been sustained and
the challenged testimony excluded, a different trial result would
have followed. See Kimmelman, 477 U.S. at 375. Edgar argues that
‚the drugs were found in a briefcase that was locked inside the
trunk of the car that Edgar was borrowing from a friend.‛ Thus,
without the challenged evidence the jury might have concluded
that the heroin did not belong to Edgar. But Edgar’s summary of
the evidence omits a key fact: the briefcase also contained two
prescription bottles bearing Edgar’s name. At trial, the
prosecution argued that these prescription bottles showed that
the drugs in the briefcase also belonged to Edgar: ‚he was the
only occupant in the car, he was driving the car, his prescription
bottles were in there.‛ At trial, Edgar did not suggest an
innocent explanation for these pill bottles being in the brief case.
Nor has he done so on appeal. Edgar also argues that the police
officers arrested him because they believed he had stolen a
trailer and that they did not suspect him of dealing drugs or
observe conduct suggesting that he was dealing drugs. We do
not see these facts as exculpatory. That Edgar did nothing
suggestive of drug dealing in the course of his arrest would be
exculpatory only if an arrested drug dealer would be expected to
do something suggestive of drug dealing; because Edgar points
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State v. Edgar
to no such expectation, we conclude that his conduct at the time
of his arrest was neutral as to his guilt.
¶19 Accordingly, Edgar has not shown a reasonable
probability that the verdict would have been different even if the
testimony challenged on appeal had been excluded.
II. Second Amended Information
¶20 Edgar next contends that his attorney performed
ineffectively by not objecting to the State’s request for
permission to file the Second Amended Information, alleging a
drug-free zone enhancement. On the morning of Edgar’s trial,
the prosecutor moved for leave to file a Second Amended
Information, charging Edgar with committing a crime within
1,000 feet of an athletic facility and thus within a drug-free zone.
See Utah Code Ann. § 58-37-8(4)(a)(viii)–(ix) (LexisNexis 2012).
The State presented uncontroverted testimony that the officers
pulled Edgar over 400 to 420 feet from the facility. Edgar argues
that his trial counsel should have objected and sought a
continuance because ‚the timing of the filing of the Second
Amended Information prevented Edgar from fully developing
his defense.‛
¶21 Again, Edgar’s claim founders on the prejudice
requirement. A defendant claiming that his counsel should have
undertaken, or should have been allowed to undertake, further
investigation must demonstrate, at minimum, what that further
investigation would have uncovered. See, e.g., State v. Taylor, 947
P.2d 681, 685 (Utah 1997).
¶22 Here, Edgar argues that his counsel was denied the
opportunity to ‚measure the distance between the new location
and the place where Edgar was arrested.‛ That may well be true.
But Edgar points us to no evidence suggesting that the facility
was more than 1,000 feet from Edgar’s arrest location.
Accordingly, we cannot conclude that had Edgar’s trial counsel
objected to the State’s request, ‚the result of the proceeding
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State v. Edgar
would have been different,‛ and Edgar’s claim of ineffective
assistance of counsel necessarily fails. See State v. Sessions, 2014
UT 44, ¶ 31, 342 P.3d 738 (citation and internal quotation marks
omitted).
CONCLUSION
¶23 For the foregoing reasons, the judgment of the trial court
is accordingly affirmed.
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