Opinion
Case No. 20030919-CA.
Filed June 8, 2006. (Not For Official Publication).
Appeal from the First District, Brigham City Department, 021100173. The Honorable Ben H. Hadfield.
Michael P. Studebaker, Ogden, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Greenwood, McHugh, and Orme.
MEMORANDUM DECISION
Defendant Antonio Garcia appeals from his conviction of three first degree felony counts of distribution of a controlled substance in a drug-free zone and one second degree felony count of distribution of a controlled substance. See Utah Code Ann. § 58-37-8 (Supp. 2005).
Garcia alleges that his trial counsel was ineffective because he did not move for a directed verdict after the State presented its evidence. Garcia also alleges that the district court committed plain error by not unilaterally issuing a directed verdict after the State's case.
To prevail on either claim, Garcia must demonstrate that the evidence was insufficient to support the jury's verdict. See State v. Montoya, 2004 UT 5, ¶ 23, 84 P.3d 1183 (concluding that to prevail on ineffective assistance of counsel claim, defendant must prove reasonable probability of different outcome); State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346 (concluding that to establish plain error based on court's failure to unilaterally direct verdict in favor of defendant, defendant must first demonstrate that the evidence was insufficient to support the verdict).
Garcia has failed to make this showing. To the contrary, sufficient evidence existed to support Garcia's conviction. At trial, an informant and three officers testified for the State regarding the transactions that provided the foundation for the distribution counts. Two of the officers testified regarding the distances between these transactions and the various buildings or areas located within the drug-free zone. As a result, Garcia's counsel was not ineffective for failing to make a motion for a directed verdict, see State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (stating that "failure to raise futile objections does not constitute ineffective assistance of counsel"), and the district court did not commit plain error by failing to sua sponte enter a directed verdict of acquittal at the close of the State's case.
Accordingly, we affirm.
Pamela T. Greenwood, Associate Presiding Judge, Carolyn B. McHugh, Judge, Gregory K. Orme, Judge, Concur.