Opinion
Case No. 20020964-CA.
Filed August 28, 2003. (Not For Official Publication)
Appeal from the Sixth District, Manti Department, The Honorable David Mower.
Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellant.
Shelden R. Carter, Provo, for Appellee.
Before Judges Jackson, Bench, and Davis.
MEMORANDUM DECISION
At a preliminary hearing, bind-over is appropriate if the prosecution presents evidence establishing "probable cause to believe that the crime charged has been committed and that the defendant has committed it." Utah R.Crim.P. 7(h)(2); see also State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300 (eliminating the distinction between the probable cause required for an arrest warrant and the probable cause necessary to bind over). The evidence is viewed in the light most favorable to the prosecution, and all reasonable inferences are drawn in favor of the prosecution. See id. at ¶ 10. The evidence produced at a preliminary hearing "need not be capable of supporting a finding of guilt beyond a reasonable doubt." Id. at ¶ 15. Whether probable cause exists to bind over a defendant for trial is a question of law, reviewed on appeal "without deference to the court below." State v. Schroyer, 2002 UT 26, ¶ 8, 44 P.3d 730.
Although Defendant Sorensen was not in actual, physical possession of the paraphernalia and methamphetamine residue found in his house on August 8, the prosecution alleges that he constructively possessed both. The evidence presented at the preliminary hearing demonstrates probable cause to believe that Sorensen had "the ability and the intent to exercise dominion and control" over the paraphernalia and methamphetamine residue. State v. Hansen, 732 P.2d 127, 132 (Utah 1987). For example, an officer testified that Sorensen's ex-wife stated that the bedroom where the contraband was found belonged to Sorensen and that "he had spent the [previous] night there." Further, Sorensen's day planner, social security card, and other papers bearing his name were found in the bedroom. When viewed in the light most favorable to the prosecution, with all reasonable inferences being drawn in its favor, the evidence establishes the requisite "nexus" between Sorensen and the contraband to establish probable cause to have him bound over for trial. Id.
In his appellate brief, Sorensen argues that his ex-wife's statements should not have been considered at the preliminary hearing because the statements are unreliable and only reliable hearsay is admissible at preliminary hearings. However, Sorensen failed to object to the admissibility of the statements, and issues not raised in the court below "cannot be argued for the first time on appeal" unless "exceptional circumstances" exist or "plain error" occurred. State v. Arguelles, 2003 UT 1, ¶ 41, 63 P.3d 731. Sorensen has argued neither "exceptional circumstances" nor "plain error." Id.
As for the charges resulting from the events of August 20, a positive urine analysis alone, without corroborating evidence, is sufficient to establish probable cause to believe that Sorensen possessed methamphetamine and morphine. Cf. State v. Sorenson, 758 P.2d 466, 468 n. 2 (Utah Ct.App. 1988) (recognizing decisions from other jurisdictions where the presence of alcohol or controlled substance in a person's urine did not establish possession beyond a reasonable doubt). Utah's statute defining possession of controlled substances clearly includes "inhalation, swallowing, injection, or consumption." Utah Code Ann. § 58-37-2(1)(dd) (2002).
This, of course, does not preclude the possibility of establishing, at trial, that the presence of morphine was attributable to Sorensen's valid prescription for Lortab.
In response, Sorensen claims that he cannot be charged with both possession of methamphetamine and possession of paraphernalia because the methamphetamine charge stems from the presence of residue on the items the prosecution claims are paraphernalia. However, the items could be considered paraphernalia even without the residue because presence of residue is a factor, rather than a requirement, used in determining whether an item is paraphernalia. See Utah Code Ann. § 58-37a-4(5) (2002). Therefore, the residue can form the basis for the methamphetamine charge, independent of the paraphernalia charge. Finally, Sorensen's reliance on Spanish Fork City v. Bryan, 1999 UT App 61, 975 P.2d 501, is misplaced because Bryan addressed the standard of guilt beyond a reasonable doubt rather than probable cause.
Accordingly, we reverse and remand the case for further proceedings.
I CONCUR: Norman H. Jackson, Presiding Judge.
I CONCUR IN THE RESULT: James Z. Davis, Judge.