              This opinion is subject to revision before final
                   Publication in the Pacific Reporter



                               2015 UT 5

                                  IN THE

      SUPREME COURT OF THE STATE OF UTAH
                            ———————
                            STATE OF UTAH,
                               Appellee,
                                    v.
                    SHANNON JESS ASHCRAFT,
                             Appellant.
                         ———————
                          No. 20120306
                      Filed January 23, 2015
                         ———————
                     Third District, Salt Lake
                The Honorable Denise P. Lindberg
                          No. 111906162
                         ———————
                            Attorneys:
    Sean D. Reyes, Att’y Gen., Brian L. Tarbet, Jeffrey S. Gray,
             Michelle M. Young, Asst. Att’ys Gen.,
                   Salt Lake City, for appellee
  Joanna E. Landau, Kerri S. Priano, Salt Lake City, for appellant
                        ———————
      JUSTICE LEE authored the opinion of the Court, in which
        CHIEF JUSTICE DURRANT and JUSTICE DURHAM joined.
            JUSTICE PARRISH authored a dissent, in which
              ASSOCIATE CHIEF JUSTICE NEHRING joined.
                         ———————

 JUSTICE LEE, opinion of the Court:
  ¶1 Shannon Ashcraft appeals his convictions of possession of
a controlled substance with intent to distribute, unlawful posses-
sion of a dangerous weapon, and possession of drug parapherna-
lia. Ashcraft asserts that there was insufficient evidence to estab-
lish his possession of the contraband and, alternatively, that his
conviction should be reversed on the basis of prosecutorial mis-
conduct at trial. We disagree on both counts and accordingly af-
firm.
                         STATE v. ASHCRAFT
                       Opinion of the Court

                                  I
  ¶2 In August 2011, Sergeant Huggard, a Murray City police
officer, was patrolling a motel parking lot known for frequent
drug activity.1 One night, Huggard observed a tan Ford Ranger
truck with a distinctive black panel driving through the parking
lot. From the license plates, Huggard determined that the truck
belonged to a man named Justin Sorenson. Huggard also discov-
ered that Sorenson had several outstanding warrants and a sus-
pended driver’s license, and learned that he had been a suspect in
a previous drug investigation.
  ¶3 Later, in the early morning hours, Huggard saw the truck
again. The truck had a male driver and a female passenger. The
driver pulled the truck into the motel lot, and both the driver and
the passenger went into a motel room.
  ¶4 The next night, Huggard returned to the area to patrol
again. He saw the tan truck again, with the same male driver and
female passenger. He began to follow the truck but did not signal
or otherwise direct the driver to stop. After a while, the driver
pulled over on his own accord and waited for Huggard to ap-
proach. Huggard asked the driver whether he was Sorenson. The
driver answered in the negative. He then identified himself as
Shannon Ashcraft; explained that he had borrowed the truck from
Sorenson, who was in the hospital; and admitted that he did not
have a valid driver’s license.
  ¶5 As for the passenger, she identified herself as April
Chavez. Chavez also indicated that she did not have a valid li-
cense. Because neither Ashcraft nor Chavez was licensed to drive
the truck, Huggard began impoundment proceedings and called
for backup, as well as a K9 unit.


 1  When reviewing a sufficiency of the evidence claim, we must
take the “evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict of the ju-
ry.” State v. Nielsen, 2014 UT 10, ¶ 30, 326 P.3d 645 (internal quota-
tion marks omitted). Thus, although Ashcraft disagrees with these
factual circumstances in some respects, and in particular the de-
ductions to be made from them, we recite the version of the events
supporting the jury’s verdict.



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  ¶6 During the impound process, Huggard asked Ashcraft and
Chavez to exit the truck. As Chavez exited, a large, open bottle of
alcohol fell from her lap. At that point, Huggard asked Ashcraft
and Chavez if they consented to be searched for drugs and weap-
ons. Both agreed. During the search, Ashcraft appeared “very
nervous” and was “fidgeting around a lot.” Huggard “had a diffi-
cult time getting any kind of eye contact” with him. In the course
of the search, Huggard discovered that Ashcraft was carrying a
pocketknife with a “brownish/black tar substance” on the blade.
He also found that Ashcraft was carrying a wallet containing $793
in cash. Huggard did not find drugs or weapons when searching
Chavez. After the search, Huggard allowed Chavez to take her
belongings and leave.
  ¶7 Next, Huggard performed an inventory search of the vehi-
cle pursuant to the impound. In the bed of the truck, tucked be-
tween the edge of the truck bed and a spare tire on the driver’s
side, Huggard found a green zippered bag. He also noted that the
rear window between the cab and bed was open. Huggard asked
Ashcraft to identify the owner of the bag. Ashcraft responded that
he didn’t know whose bag it was, and indicated—before the bag
was opened—that Huggard “must have put the bag there.” Inside
the bag, Huggard found thirty to forty baggies, some containing a
“white crystal-like substance” and some containing a “brown
caked tar[-]like substance,” several bottles of pills, two digital
scales, three glass pipes with white residue on them, other drug
paraphernalia, and a pink stun gun with a charger.
  ¶8 None of the contraband found in the bag was tested for
fingerprints. And none of the substances in the bags, in the pill
bottles, or on the blade of Ashcraft’s pocketknife were conclusive-
ly identified through laboratory testing. Also, the K9 unit’s detec-
tion dog apparently did not alert on a sweep of the truck. Yet
Huggard himself identified all of the substances in question,
based on his experience over several years as a narcotics officer.
  ¶9 Huggard testified that the “brown caked tar[-]like sub-
stance” on the blade of the knife and in some of the baggies was
consistent with heroin, based on the look and smell of the sub-
stance. He also testified that he confirmed this conclusion by per-
forming a test using a field test kit, which generated a positive re-
sult for an opiate. And he identified the “white crystal-like sub-
stance” in the other baggies as consistent with methamphetamine,


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                      Opinion of the Court

a conclusion that was also consistent with a positive result from a
field test kit. As for the pills in the bottles, Huggard identified
them as hydrocodone, oxycodone, Alprazolam, and Clonazepam.
He did so by observing the markings on the pills and comparing
them visually to pills in a “drug bible.”
  ¶10 Ashcraft was arrested and charged with six counts of pos-
session of a controlled substance with an intent to distribute, two
counts of unlawful possession of a dangerous weapon, one count
of possession of drug paraphernalia, driving on a suspended li-
cense, possession of an open container of alcohol in a vehicle, and
failure to signal. Because he was not in direct control of the con-
traband at the time of his arrest, Ashcraft’s possession charges
were prosecuted under a constructive possession theory, under
which the jury was asked to draw an inference based on circum-
stantial evidence connecting him with the contraband. See State v.
Fox, 709 P.2d 316, 318–19 (Utah 1985) (explaining the theory of
constructive possession).
  ¶11 At trial, the defense spent a significant amount of time
highlighting the potential room for reasonable doubt in the State’s
case against Ashcraft. During Huggard’s cross examination, de-
fense counsel elicited testimony that he originally thought the
driver of the truck was Sorenson, that K9 dogs on the scene had
not alerted on the truck, that no fingerprints were collected, that
the drugs were not identified in a lab, that Chavez was also in the
car with Ashcraft, and that the pink stun gun was of the type that
is often marketed to women.
  ¶12 During closing arguments, Ashcraft’s counsel urged the
jury to avoid “preconceived notions” about Ashcraft. Counsel also
went on to suggest that Sergeant Huggard had harbored “precon-
ceived notions” against Ashcraft, as evidenced by his “speculat-
ing” that the man driving the truck was Sorenson. And the de-
fense suggested that Huggard’s preconceived notions had affect-
ed his “ability to perceive the circumstances.”
  ¶13 In response to the notion that Huggard “had it out to get
Mr. Ashcraft,” the prosecutor asserted in closing that Huggard
had “no ax to grind” and had “nothing to gain by that, neither
does any police officer.” Counsel also proceeded to assert that
“[i]f a police officer were to make up stuff or do something like




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that, that’s their career on the line,” and that “Sergeant Huggard
has nothing to gain by bringing in preconceived notions.”
  ¶14 Later in the prosecutor’s closing argument, he argued that
the cash in Ashcraft’s wallet should lead the jury to infer that he
was in the business of selling the drugs found in the truck. The
prosecutor asserted that he usually had only about ten dollars in
his wallet at a time, as well as a debit card, “so for me to have $800
would be out of the ordinary.” He then stated “I would submit
that that’s probably normal for most people, but I leave that to
your personal experience.”
  ¶15 The prosecutor also summed up the circumstantial evi-
dence as a whole and argued that the jury should infer that Ash-
craft was in possession of the contraband:
       Given that we had the nexus between the knife, hav-
       ing heroin, the bag having heroin, his activities, the
       amount of cash he had on him the amount of the pills
       that were in the bag, the State proceeded on what we
       had. And I would submit to you that [the] State has
       proven beyond a reasonable doubt that the defendant
       possessed these drugs with the intent to distribute
       them.
  ¶16 The jury convicted Ashcraft on all charges. He now appeals
his convictions of possession of a controlled substance with intent
to distribute, possession of drug paraphernalia, and possession of
a dangerous weapon. 2
                                  II
  ¶17 Ashcraft’s principal argument on appeal is a challenge to
the sufficiency of the evidence to establish constructive posses-
sion. Alternatively, Ashcraft also challenges his convictions on the
basis of alleged prosecutorial misconduct. We reject both sets of
arguments and affirm.




 2  Ashcraft does not appeal his convictions for driving on a sus-
pended license, having an open container in a vehicle, and failure
to signal.



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                         STATE v. ASHCRAFT
                       Opinion of the Court

                                  A
  ¶18 On a sufficiency of the evidence claim we give substantial
deference to the jury. We “review the evidence and all inferences
which may reasonably be drawn from it in the light most favora-
ble to the verdict.” State v. Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645
(internal quotation marks omitted). Inferences may reasonably be
drawn from circumstantial evidence. Id. ¶ 47. And a jury’s infer-
ence is reasonable “unless it falls to a level of inconsistency or in-
credibility that no reasonable jury could accept.” State v. Maughan,
2013 UT 37, ¶ 14, 305 P.3d 1058 (internal quotation marks omit-
ted).
  ¶19 For possession charges, the circumstantial evidence neces-
sary to convict is evidence showing a “sufficient nexus between
the accused and the [contraband] to permit an inference that the
accused had both the power and the intent to exercise dominion
and control over the [contraband].” State v. Fox, 709 P.2d 316, 319
(Utah 1985). The analysis of the evidence under this standard de-
pends “upon the facts and circumstances of each case.” Id. Yet our
cases have identified some relevant considerations that a jury may
consider. Those factors include “ownership and/or occupancy of
the residence or vehicle”, presence of the defendant when the con-
traband is discovered, the defendant’s proximity to the contra-
band, previous drug use by the defendant (if the contraband is
drug-related), incriminating statements or behavior, and presence
of contraband in a specific area where the defendant had control.
State v. Workman, 2005 UT 66, ¶ 32, 122 P.3d 639.
  ¶20 This is not an exhaustive list, and some factors may not be
pertinent in all cases. Id. Certain factors, moreover, may be insuf-
ficient by themselves to establish possession as a matter of law.
Ownership or occupancy of the premises where contraband is
discovered, for example, may not be enough to show constructive
possession by itself. Fox, 709 P.2d at 319. 3 That said, it is a rare

 3  This rule is a sensible one as far as it goes; if the only connec-
tion between a defendant and the contraband is bare title or mere
occupancy of the area in which it is found, there may be substan-
tial room for reasonable doubt as to whether the contraband be-
longs to the defendant. Such doubt may be especially substantial
where other people with access to the area could have placed the



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case where the defendant’s ownership or occupancy is truly the
sole nexus with the contraband. In cases where there is additional
evidence, including circumstantial evidence, that strengthens the
nexus between ownership or occupancy and the contraband, the
jury may consider those circumstances in drawing an inference of
possession. 4
  ¶21 Ashcraft asserts that the only connection between him and
the green bag was his occupancy of the truck. And he accordingly
insists that the evidence is insufficient as a matter of law. We dis-
agree. Here there is more than just evidence of occupancy of the
vehicle. Several other considerations suggest a connection be-
tween Ashcraft and the green bag, and those considerations, taken
together, establish a reasonable basis for a conclusion that Ash-
craft was in possession of the contraband. 5 Ashcraft repeatedly

contraband in the home or vehicle without the owner’s
knowledge, and thus the owner would have no “power and intent
to exercise dominion and control” over it. State v. Fox, 709 P.2d
316, 320 (Utah 1985). But the general principle is hardly a hard-
and-fast rule, and this case falls outside it for reasons noted here.
 4  See, e.g., State v. Workman, 2005 UT 66, ¶ 34 122 P.3d 639 (de-
fendant who co-occupied an apartment with a meth lab also had
belongings intermingled with lab equipment, a history of meth-
amphetamine use, purchased some containers and glassware used
in the lab, and left a fingerprint on one of the containers); State v.
Hansen, 732 P.2d 127, 132 (Utah 1987) (defendant argued his only
connection to marijuana was co-occupancy of an apartment, but
he possessed drug paraphernalia, the drugs were found in a
locked box in his room under his clothing, and he possessed the
key to the box); Fox, 709 P.2d at 320 (evidence of ownership of a
home plus several large greenhouses of marijuana constructed in
close proximity to the home, ownership of other drug parapher-
nalia and instruction books for growing marijuana, and marijuana
in such a large volume it was reasonable to conclude it must have
been grown for distribution).
 5 The dissent’s contrary conclusion is based in part on a misread-
ing of our opinion. We do not conclude that “anyone who has the
misfortune of occupying a vehicle in which illegal drugs are
found is subject to conviction.” Infra ¶ 41. Our analysis is more



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                        STATE v. ASHCRAFT
                       Opinion of the Court

drove through an area known for drug activity during late night
and early morning hours, while carrying a large amount of cash.
The bag was in close enough proximity that Ashcraft could have
reached through the open window and touched it from the driv-
er’s seat. Ashcraft accused the arresting officer of planting the bag
in the truck immediately upon being asked about it—and before it
had been opened. And a substance, identified as heroin by the ar-
resting officer, was found on the blade of the pocketknife he was
carrying.
  ¶22 Each of these pieces of evidence would, taken on its own,
be a slim basis for inferring possession. And each piece of evi-
dence could have an innocent explanation. But cumulatively this
evidence is sufficient to sustain a reasonable jury verdict. A rea-
sonable jury could conclude from this evidence that there was a
sufficient nexus between the bag and Ashcraft to establish the el-
ement of constructive possession. See Workman, 2005 UT 66, ¶ 35
(although individual factors “[t]aken alone” may be unlikely “to
establish a sufficient nexus,” the “cumulative effect” of such fac-
tors may be “such that a reasonable jury could have concluded
that there was a sufficient nexus” to establish constructive posses-
sion).
  ¶23 The dissent second-guesses the inferences adopted by the
jury on individual pieces of evidence, while also declining to defer
to the jury’s assessment of the cumulative effect of the evidence as


nuanced; it is based on our sense of the cumulative effect of the
evidence presented to the jury, and on our conclusion that a rea-
sonable jury could find constructive possession under these cir-
cumstances. It is one thing to disagree with that conclusion—to
assert that the evidence raises “serious questions” as to whether
Ashcraft “exercised dominion and control” over the green bag.
Infra ¶ 46. It is misleading, however, to assert that the court has
adopted a legal rule that requires a finding of constructive posses-
sion in any case in which the defendant is “in non-exclusive prox-
imity to illegal drugs or paraphernalia.” Infra ¶ 41 (insisting that
that “cannot be the law”); see also infra ¶ 47 (asserting that “there
is no practical limit to the concept of constructive possession
when applied to someone in non-exclusive proximity to illegal
drugs or paraphernalia”). That is not the basis of our holding.



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a whole. Specifically, the dissent dismisses any inference from
Ashcraft’s “late-night presence in an area known for drug activity
with a large amount of cash” as “speculative,” infra ¶ 48; posits an
alternative explanation for Ashcraft’s incriminating accusation
that the arresting officer had “planted” the bag, infra ¶ 49; and
concludes that “it is mere speculation to assume that the contra-
band found in the green bag belonged to Mr. Ashcraft simply be-
cause he had a knife that contained a suspect residue.” Infra ¶ 50.
  ¶24 These are fair arguments for counsel to present to the jury
in closing. But our review on appeal is different. The question
presented is not whether we can conceive of alternative (innocent)
inferences to draw from individual pieces of evidence, or even
whether we would have reached the verdict embraced by the jury.
It is simply whether the jury’s verdict is reasonable in light of all
of the evidence taken cumulatively, under a standard of review
that yields deference to all reasonable inferences supporting the
jury’s verdict. We affirm on that basis.
   ¶25 We also reject a number of the dissent’s arguments on their
own terms. First, Ashcraft’s incriminating statement need not
“necessarily suggest” a connection to the bag to support the jury’s
verdict. Infra ¶ 49. And the fact that we can identify an “equally”
plausible alternative inference is not nearly enough to set that
verdict aside. Infra ¶ 49. The inference to be drawn from the evi-
dence was the jury’s to make (within reason), and the inference it
apparently drew was reasonable—more so, in fact, than the no-
tion that Ashcraft may have accused the officer of planting the bag
because he knew the contents of the bag, knew it “belonged to Ms.
Chavez or Mr. Sorenson,” and “intended to distance himself from
it because he was aware of its contents.” Infra ¶ 49. Accusing a po-
lice officer of planting evidence is a brash move. If Ashcraft knew
that the bag contained contraband but wasn’t its owner, surely he
would have simply disclaimed ownership instead of accusing a
police officer. At least that’s the way the jury seems to have seen
the matter, on a point meriting our deference on appeal. 6


 6  The dissent also seeks to diminish the significance of this infer-
ence on the ground that “Ashcraft’s allegedly incriminating
statement is different from the statements on which we have re-
lied in other cases where incriminating behavior or statements



                                  9
                         STATE v. ASHCRAFT
                       Opinion of the Court

  ¶26 Second, there was more than “mere speculation” linking
the substance on Ashcraft’s knife to the “contraband found in the
green bag.” Infra ¶ 50. Officer Huggard testified, based on his ex-
perience and results of field tests, that the “brown caked tar[-]like
powdery substance” on the blade of the knife and in some of the
baggies in the green bag was consistent with heroin. So, despite
the dissent’s insistence to the contrary, there was “evidence that
the substance on the knife was the same as the illicit substance in
the green bag.” Infra ¶ 50. And the evidence regarding Ashcraft’s
knife is accordingly supportive of the jury’s determination of con-
structive possession.
  ¶27 This and other evidence in the case could be suspect if tak-
en in isolation. But in light of the totality of the evidence taken as
a whole, we conclude that there was sufficient evidence to sustain
a verdict based on a determination of constructive possession.
And in light of that evidence, we find it unnecessary to eliminate
other reasonable inferences to be drawn from the evidence—such
as the notion that Ashcraft may have had an innocent reason to be
in an area known for drug activity with a large amount of cash
late at night, infra ¶ 48, or that Chavez or Sorenson could have
been the owner or possessor of the green bag, infra ¶ 51. The ques-
tion presented is not whether some other (innocent) inference
might have been reasonable. It is simply whether the inference
adopted by the jury was sustainable. We conclude that it was and
affirm on that basis.
  ¶28 In so doing, we acknowledge the lack of direct, forensic ev-
idence tying Ashcraft to the contraband in question. As the dis-
sent indicates, the record is devoid of fingerprint evidence tying
Ashcraft to the contraband, of any of Ashcraft’s “personal


gave rise to an inference of constructive possession.” Infra ¶ 49
(citing cases from other jurisdictions crediting incriminating
statements of defendants accused of constructive possession). But
the cited cases are not ours, and in any event they do not purport
to establish any sort of floor or minimum basis for crediting a de-
fendant’s statement as incriminating. That is a question of fact, not
law. And it is a question on which the jury is entitled to deference
in the context of the evidence as a whole in this case, and not by
comparison to the record in other cases.



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                        Opinion of the Court

items . . . intermingled with the items found in the green bag,” or
of “drugs on defendant’s person” (other than the heroin residue
on his knife). Infra ¶ 53. And it is certainly true that the results of
further investigation might have weakened the prosecution’s case.
But it might also have strengthened it. And in any event those
speculative prospects have nothing to do with the question before
us. A reviewing court is not to measure the sufficiency of the evi-
dence against a hypothetical—CSI-based—investigative ideal. In-
stead of imagining the evidence that might have been presented, we
consider the evidence that was presented, and evaluate its suffi-
ciency through a lens that gives the jury’s verdict the benefit of all
reasonable inferences. We find the evidence sufficient, and not
undermined by speculation about further investigation that might
have taken place. 7
  ¶29 Ashcraft is also right to note that the evidence could alter-
natively have supported a determination that the contraband was
connected to Sorenson and/or to Chavez. But that is likewise in-
sufficient to undermine our confidence in the verdict. The alleged
connection to alternative suspects was a fruitful source of cross-
examination and argument to the jury. And as noted above, de-
fense counsel in fact availed herself of this line of argument. Yet
the jury was by no means compelled to accept the existence of
reasonable doubt posited by the defense’s finger-pointing, and in
fact it did not accept the argument.
  ¶30 For all of these reasons, the jury made a reasonable infer-
ence that Ashcraft was in constructive possession of the green
bag. We cannot disturb the jury’s conclusion just because it could
have reasonably come to a different one.



 7  The dissent concedes that our role is not to imagine “the evi-
dence that might have been presented.” Infra ¶ 53. But it then pro-
ceeds to insist that it is still somehow “helpful to identify the lack-
ing evidence that may have supported a finding of constructive
possession.” Infra ¶ 53. We see no benefit to that imaginative
comparison. The question presented is not how this prosecution
stacks up against a hypothetical ideal. It is simply to evaluate the
evidence that was presented, against a deferential standard of re-
view yielding the benefit of the doubt to the jury’s verdict.



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                           STATE v. ASHCRAFT
                          Opinion of the Court

                                     B
  ¶31 Matters not in evidence cannot be properly considered by
the jury. It is misconduct for the prosecutor to refer to such mat-
ters. See State v. Hopkins, 782 P.2d 475, 478 (Utah 1989). To sustain
a reversal on an assertion of prosecutorial misconduct, a defend-
ant must establish both that the prosecutor’s conduct “call[ed] to
the attention of the jurors matters they would not be justified in
considering in determining their verdict and, under the circum-
stances of the particular case, the error is substantial and prejudi-
cial.” State v. Tillman, 750 P.2d 546, 555 (Utah 1987).
  ¶32 Ashcraft cites three instances of alleged misconduct in the
prosecutor’s closing argument. He asserts, specifically, that the
prosecutor improperly vouched for the credibility of Huggard’s
testimony; that he vouched for the credibility of the evidence; and
that he vouched for the strength of the State’s case as a whole.
And on each point Ashcraft asserts that the prosecution made ref-
erence to material not in the record.
  ¶33 A threshold question concerns preservation. The State urg-
es us to decline to reach the merits of Ashcraft’s claims on the
ground that he failed to preserve a specific objection to each of the
foregoing instances of alleged “vouching.” Upon review of the
record we agree that there was no specific articulation of a basis
for objecting to the prosecution’s statements—only a general ob-
jection (without a basis or explanation) at the first mention of the
notion that Huggard had “nothing to gain by bringing in precon-
ceived notions.” But we nonetheless proceed to the merits on the
basis of an exception to the general requirement of preservation.
We hold, specifically, that it would have been futile for Ashcraft
to have preserved a specific objection in the district court, and on
that basis we excuse him from his failure to do so. 8

  8  See Roundy v. Staley, 1999 UT App 229, ¶ 6, 984 P.2d 404 (failure
to preserve evidentiary objection excused where district court un-
equivocally stated that videotape evidence would be admitted,
making “further objection to the admission of [the evidence]
. . . futile”); People ex rel. Klaeren v. Vill. of Lisle, 781 N.E.2d 223, 231
(Ill. 2002) (“[T]here is no need to object when it is apparent that an
objection would be futile.”); Staubes v. City of Folly Beach, 529
S.E.2d 543, 547 (S.C. 2000) (“This Court does not require parties to



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                       Opinion of the Court

  ¶34 The basis for our determination of futility is this: After de-
fense counsel asserted an initial, general objection to the prosecu-
tion’s assertion that Huggard had “nothing to gain by bringing in
preconceived notions,” the district court interrupted and directed
the prosecution to “go ahead,” admonishing defense counsel with
the assertion that “this is argument and you were given the bene-
fit of … silence.” Under the circumstances and given the timing,
tone, context, and content of the district court’s response, we
deem it reasonable for defense counsel to have viewed this re-
sponse as an indication of the court’s unwillingness to hear any
further objection or explanation. And we accordingly deem such
further objection or explanation sufficiently futile to excuse Ash-
craft’s failure to preserve a specific objection. 9
  ¶35 That determination requires us to proceed to the merits of
Aschraft’s claims of prosecutorial misconduct. Initially, we
acknowledge the impropriety of a prosecutor’s “bolster[ing] a
witness by vouching for his credibility.” State v. Carter, 776 P.2d
886, 892 (Utah 1989) (internal quotation marks omitted). Such
vouching is improper because it invites the jury to rely on matters
outside the record. Yet the matter of vouching is not just inviting
the jury to credit the testimony of the state’s witness. That is
standard operating procedure, and hardly misconduct. Impermis-
sible vouching, on the other hand, occurs when the prosecution
“place[s] the prestige of the government behind the witness by
making explicit personal assurances of the witness’ credibility,” or


engage in futile actions in order to preserve issues for appellate
review.”);.
 9 In so holding, we do not mean to suggest that further objection
would always be futile any time a trial judge overrules an objec-
tion in a manner cutting off the opportunity for further explana-
tion. The question of futility is highly context-dependent and case-
specific—turning not just on the trial court’s decision but on its
timing, tone, and content. Here our decision is based not only on
the nature and timing of the district court’s decision but on the
tone of the admonition that followed it, which seemed to suggest
that further objections would not be tolerated to the extent they
would deprive the prosecution of the “benefit of . . . silence” that
was afforded to the defense.



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                         STATE v. ASHCRAFT
                        Opinion of the Court

“implicitly . . . indicat[es] that information not presented to the
jury supports the testimony.” Id. (internal quotation marks omit-
ted).
  ¶36 Under this framework, the prosecutor’s statements about
Huggard did not amount to impermissible vouching. First, the
prosecutor made no explicit statement that he personally knew
Huggard to be truthful. He did not ask the jury to take his word
for it that Huggard was a credible witness. Such an argument
would call the jury’s attention to matters it is not “justified in con-
sidering in determining their verdict”—the prosecutor’s personal
opinion of a witness. Instead, the prosecutor, in direct response to
defense counsel’s argument that Huggard’s perception of the
events was undermined by “preconceived notions,” urged the ju-
ry to view that argument skeptically. He did so by arguing that
there was no reason to believe that Huggard or any officer would
have had “preconceived notions” against suspects, and highlight-
ed the lack of evidence showing that Huggard had an “ax to
grind” against Ashcraft in particular.
  ¶37 Second, the prosecutor did not imply that he knew more
about Huggard than the jurors did, or implore them to take such
information into consideration in evaluating Huggard’s testimo-
ny. Instead, this was a matter of both the prosecution and the de-
fense urging the jury to evaluate the officer’s credibility based on
their own understanding of incentives generally facing the po-
lice—with the defense insisting that Huggard may have harbored
“preconceived notions” against Ashcraft and asserting that such
notions may have affected his “ability to perceive the circum-
stances,” and the prosecution responding with the suggestion that
an officer’s “career [could be] on the line” if he “were to make up
stuff or do something like that.” This was not vouching through
an allusion to information known to the prosecution but not in the
record. It was an instance of both the defense and the prosecution
seeking to urge the jury to assess the officer’s credibility in a man-
ner consistent with their respective positions—and in accordance
with common-sense incentives and reasonable inferences general-
ly known to the jury. That is permissible—and not at all a matter
of vouching. See State v. Bakalov, 1999 UT 45, ¶ 59, 979 P.2d 799
(prosecution may “fully discuss with the jury reasonable infer-
ences and deductions drawn from the evidence”); Delacruz v.
State, 10 P.3d 1131, 1132–33 (Wyo. 2000) (holding it was not prose-


                                  14
                         Cite as: 2015 UT 5
                       Opinion of the Court

cutorial misconduct to refer to the background of witnesses and
argue that “[y]our common sense will tell you that . . . they have
no reason to come into this courtroom and orchestrate a lie,” be-
cause the prosecutor was “simply asking the jury to apply com-
mon sense to the evidence it had heard”).
  ¶38 For the same reason, it was permissible for the prosecutor
to discuss the potential conclusions to be drawn from the cash in
Ashcraft’s wallet. The cash in Ashcraft’s wallet may be subject to a
reasonable inference that it was a result of drug activity—or, al-
ternatively, a contrary inference that it was there for an innocent
reason. But as it was up to the jury to make that inference, it was
acceptable for the prosecutor to discuss the matter, and to urge
the jury to make an inference in the prosecution’s favor. Bakalov,
1999 UT 45, ¶ 59. The prosecutor may have gone too far when he
pressed this inference in terms of his own personal experience.
But even if the comment about his own practices for carrying cash
crossed a line, that comment was harmless, as the prosecutor im-
mediately instructed the jury to rely on their own experience and
not his own. State v. Pearson, 943 P.2d 1347, 1352–53 (Utah 1997)
(holding that it was improper for a prosecutor to “offer[] a factual
assertion based on his own experience” but that the statement was
not reversible prosecutorial misconduct because he “made no ef-
fort to hold himself out as an expert, and he addressed matters
that are within the general realm of human experience and com-
mon sense”).
  ¶39 Finally, there was no prosecutorial misconduct in the pros-
ecution’s summary of the evidence and ultimate insistence that
the State had proven Ashcraft’s guilt beyond a reasonable doubt.
This was nothing more than a summary assertion of the prosecu-
tion’s quintessential position in closing argument. Such assertion
did not venture into the forbidden territory of calling upon the
jury to “trust the Government’s judgment rather than [the jury’s]
own view of the evidence.” State v. Hopkins, 782 P.2d 475, 480
(Utah 1989) (quoting United States v. Young, 470 U.S. 1, 18–19
(1985)). The prosecutor did not ask the jurors to defer to the state’s
judgment over their own. He simply summarized his position and
the evidence supporting it and then asked the jury to enter a con-
viction. Such a statement is as commonplace as it is innocuous in
closing argument—a matter well within the realm of appropriate
prosecutorial conduct.


                                 15
                        STATE v. ASHCRAFT
                    JUSTICE PARRISH, dissenting:

                                 III
  ¶40 We affirm on the above grounds. We deem the evidence
presented to the jury to be sufficient to sustain a reasonable infer-
ence of Ashcraft’s constructive possession. And we find no basis
for a determination of prosecutorial misconduct.
                           ——————

 JUSTICE PARRISH, dissenting:
  ¶41 I cannot join the court in affirming Mr. Ashcraft’s convic-
tion because the evidence is insufficient to establish that Mr. Ash-
craft constructively possessed the drugs and paraphernalia found
in Mr. Sorenson’s truck. Under the court’s reasoning, anyone who
has the misfortune of occupying a vehicle in which illegal drugs
are found is subject to conviction. That cannot be the law.
  ¶42 We “overturn a conviction for insufficient evidence
when . . . the evidence is insufficient to prove each element of the
crime beyond a reasonable doubt.” State v. Fox, 709 P.2d 316, 318
(Utah 1985). Although we review the evidence “in the light most
favorable to the verdict,” State v. Nielsen, 2014 UT 10, ¶ 30, 326
P.3d 645, we must overturn a conviction when “the evidence is
sufficiently inconclusive or inherently improbable such that rea-
sonable minds must have entertained a reasonable doubt that the
defendant committed the crime for which he or she was convict-
ed.” State v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346 (internal quota-
tion marks omitted).
  ¶43 Because the evidence presented fails to establish a nexus
between Mr. Ashcraft and the drugs and paraphernalia found in
the green bag, I believe that a reasonable juror necessarily would
have harbored some reasonable doubt as to Mr. Ashcraft’s guilt.
Accordingly, I would reverse his conviction.
  ¶44 Mr. Ashcraft was convicted of possessing a controlled sub-
stance with intent to distribute. See UTAH CODE § 58-37-8(1)(a)(iii).
The State prosecuted Mr. Ashcraft on a theory of constructive
possession, which requires a “sufficient nexus between the ac-
cused and the drug [or paraphernalia] to permit an inference that
the accused had both the power and the intent to exercise domin-
ion and control over the drug [or paraphernalia].” State v. Lay-
man, 1999 UT 79, ¶ 13, 985 P.2d 911 (alterations in original) (inter


                                 16
                        Cite as: 2015 UT 5
                    JUSTICE PARRISH, dissenting


nal quotation marks omitted). But mere proximity to the drugs or
paraphernalia, without additional evidence of control and domin-
ion, is insufficient to establish possession, especially when prox-
imity is not exclusive. See Fox, 709 P.2d at 319.
  ¶45 The truck in which the contraband was found belonged to
Mr. Sorenson. Indeed, Sergeant Huggard initially believed he was
following and pulling over Mr. Sorenson. Sgt. Huggard learned
Mr. Ashcraft was the driver only after pulling him over. At that
time, the truck was also occupied by Ms. Chavez, who was sitting
in the passenger seat. While following the truck and pulling Mr.
Ashcraft over, Sgt. Huggard neither saw anyone place an item in
the truck’s bed nor put their hands out of the truck’s back win-
dow. And it is inherently improbable that Mr. Ashcraft could
have put his right-hand through the cab window to hide an item
on the far-left side of the truck bed while maintaining control of
the vehicle and avoiding detection by Sgt. Huggard.
  ¶46 During the initial search of the truck, Sgt. Huggard did not
find any drugs or paraphernalia. Later, when the green bag was
found, the contraband was tucked so far out of sight and was so
inaccessible that a K-9 officer and dog did not detect it. The green
bag contained a pink stun gun. Although Ms. Chavez had easier
access to the green bag than Mr. Ashcraft, she was allowed to
leave. Finally, despite the fact that three people had access to the
green bag, the police did not conduct any forensic testing of the
physical evidence. These facts raise serious questions as to
whether Mr. Ashcraft had any knowledge of the green bag’s exist-
ence, and even more serious questions about whether he exercised
dominion and control of it.
  ¶47 The majority acknowledges that there is no evidence direct-
ly linking Mr. Ashcraft to the illicit drugs. It instead relies on
three inferences to create the necessary nexus. These are Mr. Ash-
craft’s presence in an area known for drug activity while carrying
a large amount of cash, Mr. Ashcraft’s allegedly incriminating
statement to the police, and Mr. Ashcraft’s possession of a knife
with a brown substance on it. But if these inferences are sufficient
to support a conviction based on constructive possession, there is
no practical limit to the concept of constructive possession when


                                17
                         STATE v. ASHCRAFT
                    JUSTICE PARRISH, dissenting:

applied to someone in nonexclusive proximity to illegal drugs or
paraphernalia.
  ¶48 Mr. Ashcraft’s late-night presence in an area known for
drug activity with a large amount of cash creates no nexus be-
tween him and the items in the green bag. Instead, it raises only a
speculative possibility of Mr. Ashcraft’s intent to distribute drugs.
And Ms. Chavez was seen in the truck both nights, while Mr.
Ashcraft may have been driving the truck on only the second
night. In short, Mr. Ashcraft’s late-night presence in a questiona-
ble neighborhood when the other possible possessors were also
present cannot give rise to the inference that the drugs belonged
to Mr. Ashcraft.
  ¶49 The court construes Mr. Ashcraft’s accusation that the ar-
resting officer planted the green bag “immediately upon being
asked about it” as an incriminating statement. Supra ¶ 21. But this
statement is consistent with Mr. Ashcraft’s other statements dis-
claiming ownership of the bag and does not necessarily suggest a
knowledge of its contents. Indeed, it is equally consistent with the
possibility that the bag in fact belonged to Ms. Chavez or Mr.
Sorenson and that Mr. Ashcraft intended to distance himself from
it because he suspected its contents. Mr. Ashcraft’s allegedly in-
criminating statement is much different from the statements on
which we have relied in other cases where incriminating behavior
or statements gave rise to an inference of constructive possession.
Fox, 709 P.2d at 319 (citing United States v. Garcia, 655 F.2d 59, 62
(5th Cir. 1981) (noting that defendant nodded affirmatively when
introduced as owner of cocaine); Francis v. State, 410 So. 2d 469,
471 (Ala. Crim. App. 1982) (noting that the defendant slammed a
door in the face of police and yelled, “throw it in the fire”); Allen
v. State, 282 S.E.2d 126, 127 (Ga. Ct. App. 1981) (noting that the de-
fendant told an unnamed individual that the defendant had $500
worth of marijuana)).
  ¶50 The brown substance on Mr. Ashcraft’s knife is similarly
insufficient to link him to the green bag. Even if the substance
were an opiate-derivative, it is mere speculation to assume that
the contraband found in the green bag belonged to Mr. Ashcraft
simply because he had a knife that contained a suspect residue.
And such speculation is insufficient to overcome reasonable
doubt as to the ownership of the green bag. In my view, no nexus

                                 18
                         Cite as: 2015 UT 5
                       Opinion of the Court

between the knife and green bag could be drawn absent some ev-
idence that the substance on the knife was the same as the illicit
substance in the green bag. But the State presented no such evi-
dence. While the State may have charged Mr. Ashcraft with pos-
session of drug paraphernalia based on the substance on the knife,
the knife itself is not evidence that Mr. Ashcraft committed the
separate crime of possessing the green bag. Without some evi-
dence linking Mr. Ashcraft to the drugs, it is a fallacy to infer that
he possessed and intended to distribute drugs just because he was
driving a borrowed truck in a questionable neighborhood late at
night, carrying cash.
  ¶51 Mr. Ashcraft shared possession of the vehicle with two
other individuals. Accordingly, in order to support a verdict of
guilt, the inferences relied on by the State must either exclude the
other individuals as possible possessors or point to Mr. Ashcraft
as the possessor of the contraband. See Fox, 709 P.2d at 320
(“[E]vidence supporting the theory of ‘constructive possession’
must raise a reasonable inference that the defendant was engaged
in a criminal enterprise and not simply a bystander.”); State v.
Salas, 820 P.2d 1386, 1388 (Utah Ct. App. 1991) (“In order to find
that the accused was in possession of drugs found in an automo-
bile he was not the sole occupant of, and did not have sole access
to, there must be other evidence to buttress such an inference.”).
Without evidence creating a nexus between Mr. Ashcraft and the
drugs, or excluding the other two possible possessors, Mr. Ash-
craft may be serving a sentence for the criminal activity of others.
  ¶52 I acknowledge that the evidence presented at trial may
have been sufficient to sustain a conviction if Mr. Ashcraft had
exclusive possession of the vehicle. But he did not. The vehicle
was actually owned by and registered to Mr. Sorenson, a suspect-
ed drug dealer. And the State did not dispute that Mr. Ashcraft
had borrowed the truck when Mr. Sorenson was hospitalized.
While the contraband was theoretically within reach of Mr. Ash-
craft, the officer did not see him reach into the back of the truck.
More importantly, the contraband was also in reach of Ms.
Chavez, but the police did not bother to question or search her.
See Salas, 820 P.2d at 1388 (acknowledging that drugs found
where a passenger had been sitting “renders the remaining evi-
dence sufficiently inconclusive as to whether defendant knew of


                                 19
                        STATE v. ASHCRAFT
                   JUSTICE PARRISH, dissenting:

the presence of the cocaine”). In short, the evidence does not link
Mr. Ashcraft with the contents of the green bag, nor does it ex-
clude Mr. Sorenson or Ms. Chavez as the owner. In my view, the
inferences on which the majority relies are simply insufficient to
establish beyond a reasonable doubt that Mr. Ashcraft exercised
dominion and control over the green bag.
   ¶53 The State’s failure to offer any direct evidence linking Mr.
Ashcraft to the green bag also speaks volumes. Although I agree
with the court that we must not “imagin[e] the evidence that
might have been presented,” supra ¶ 28 (emphasis omitted), it is
nonetheless helpful to identify the lacking evidence that may have
supported a finding of constructive possession. Here, the State
did not present any evidence “linking or tending to link” Mr.
Ashcraft with the drugs, including, “sale of drugs, use of drugs,
. . . drugs in plain view, and drugs on defendant’s person.” Salas,
820 P.2d at 1388. His personal items were not intermingled with
the items found in the green bag. See State v. Workman, 2005 UT
66, ¶ 34, 122 P.3d 639. And the State presented “no forensic evi-
dence tying” Mr. Ashcraft to the green bag, such as fingerprints or
drug-testing of the knife and heroin inside the green bag. See State
v. Gonzalez-Camargo, 2012 UT App 366, ¶ 24, 293 P.3d 1121. Final-
ly, the State made no attempt to determine whether Ms. Chavez
was the owner of the green bag.
  ¶54 In my view, this case rests exclusively on Mr. Ashcraft’s
proximity to drugs; the inferences on which the State relies are in-
sufficient to give rise to the inference that Mr. Ashcraft construc-
tively possessed the green bag. Accordingly, I would reverse his
conviction.




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