               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38117

STATE OF IDAHO,                                  )      2012 Unpublished Opinion No. 530
                                                 )
       Plaintiff-Respondent,                     )      Filed: June 22, 2012
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
TIMOTHY ROBERT DUANE WILKINS,                    )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge.

       Judgment of conviction and unified sentence of ten years, with five years
       determinate, for possession of a controlled substance and being a persistent
       violator, affirmed; judgment of conviction for possession of drug
       paraphernalia, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Timothy Robert Duane Wilkins appeals from his judgments of conviction entered upon a
jury verdict finding him guilty of possession of a controlled substance and possession of drug
paraphernalia and from the district court’s finding that he was guilty of being a persistent
violator. He also appeals the sentence imposed for the possession of a controlled substance and
persistent violator convictions. For the reasons set forth below, we affirm.
                                                I.
                                  FACTS AND PROCEDURE
       Idaho State Police Corporal Sean Lind pulled over a truck that was the subject of a
citizen’s reckless driving complaint and had been reported as stolen from a local dealership.
Wilkins, alone in the vehicle, immediately got out and began walking towards Corporal Lind,



                                                 1
who called for backup. Wilkins had no insurance, no vehicle registration, and his driving
privileges were suspended. He was placed under arrest for driving without privileges.
        Corporal Lind, assisted by Idaho State Police Trooper Jesse Spike, performed an
inventory search of the vehicle. Trooper Spike noticed a methamphetamine pipe, lighter, and
two small baggies containing a substance later identified as methamphetamine in an open
compartment in the dashboard of the truck, located between the stereo and glove compartment
and easily visible from the driver’s seat. When informed of the discovery of methamphetamine
and paraphernalia, Wilkins became agitated and denied ownership, accusing Corporal Lind of
planting the drugs.
        Wilkins was charged with possession of methamphetamine, Idaho Code § 37-2732(c)(1);
possession of drug paraphernalia, Idaho Code § 37-2734A; possession of a stolen vehicle, Idaho
Code § 49-228; driving without privileges, Idaho Code § 18-8001; failure to provide proof of
insurance, Idaho Code § 49-1232; and being a persistent violator, Idaho Code § 19-2514, based
on two prior felony possession of a controlled substance convictions. He pled guilty to the
driving without privileges and failure to provide proof of insurance charges and the district court
denied the State’s motion to consolidate the possession of a stolen vehicle charge with the drug
charges. 1
        At trial, Wilkins’ friend, Noah Peterson, testified he had been a passenger in Wilkins’
vehicle the day before Wilkins was stopped by Corporal Lind. Peterson claimed he mistakenly
left the methamphetamine and pipe in the vehicle and testified Wilkins did not know of their
presence. The jury found Wilkins guilty of both possession charges and he waived a jury trial
with regard to the persistent violator enhancement. The district court found Wilkins was a
persistent violator based on Wilkins’ two prior felony convictions and imposed a unified
sentence of ten years, with five years determinate, for the possession of methamphetamine
charge and being a persistent violator. The district court imposed concurrent sentences of 180
days for the driving without privileges and possession of paraphernalia convictions, and a fine
for the insurance infraction. Wilkins now appeals his judgments of conviction for the possession




1
        Accordingly, the possession of a stolen vehicle charge is not at issue in this case.

                                                  2
charges and being a persistent violator, as well as his unified sentence of ten years, with five
years determinate. 2
                                                 II.
                                            ANALYSIS
       Wilkins contends the evidence was insufficient to support his convictions for possession
of a controlled substance and paraphernalia because there was insufficient evidence establishing
he had knowledge and control of the contraband. He also contends the district court erred in
“testifying” as to his persistent violator charge that the court recognized Wilkins from previous
proceedings and, therefore, Wilkins contends there was insufficient evidence to support his
persistent violator conviction. He further asserts the district court abused its discretion by
imposing an excessive sentence on the possession of a controlled substance charge with the
persistent violator enhancement.
A.     Possession of Methamphetamine and Paraphernalia
       Wilkins argues the State failed to present sufficient evidence to establish, beyond a
reasonable doubt, that Wilkins possessed a controlled substance and paraphernalia.                He
specifically contends the State presented insufficient evidence to establish Wilkins knowingly
possessed the methamphetamine and pipe and exercised control or dominion over the items.
       Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found that the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light




2
        As Wilkins has already served the entire sentence imposed for the misdemeanor
possession of drug paraphernalia conviction, he indicates he does not challenge that sentence on
appeal.


                                                  3
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
       Because the drugs were found in the console and not in Wilkins’ actual possession, Idaho
law required the State to establish constructive possession--specifically, that Wilkins knew of the
drugs and had the power and intention to control them. State v. Blake, 133 Idaho 237, 242, 985
P.2d 117, 122 (1999); State v. Seitter, 127 Idaho 356, 359, 900 P.2d 1367, 1370 (1995). In other
words, constructive possession of a controlled substance exists where a nexus between the
accused and the substance is sufficiently proven so as to give rise to the reasonable inference the
accused was not simply a bystander, but rather, had the power and intent to exercise dominion
and control over the substance. State v. Rogerson, 132 Idaho 53, 58, 966 P.2d 53, 58 (Ct. App.
1998); State v. Rozajewski, 130 Idaho 644, 647, 945 P.2d 1390, 1393 (Ct. App. 1997).
Knowledge of the controlled substance and physical control of the controlled substance must be
independently proven beyond a reasonable doubt, by either circumstantial or direct evidence.
Seitter, 127 Idaho at 360, 900 P.2d at 1371; Rogerson, 132 Idaho at 58, 966 P.2d at 58;
Rozajewski, 130 Idaho at 647, 945 P.2d at 1393.
       On appeal, Wilkins contends there was no such nexus, likening this case to State v.
Burnside, 115 Idaho 882, 771 P.2d 546 (Ct. App. 1989), where this Court addressed whether
sufficient evidence existed to support the jury’s guilty verdict on a charge of possession of
psilocybin mushrooms with the intent to deliver. In Burnside, police obtained a warrant to
search Burnside’s vehicle for evidence of methamphetamine trafficking and approached
Burnside while he and a passenger were eating in a restaurant. While searching the car, police
discovered psilocybin mushrooms in a black vinyl bag and Burnside was charged with, inter alia,
possession of the drugs with the intent to deliver. On appeal, we noted the jury could not infer
constructive possession from the mere fact Burnside occupied, with a passenger, the vehicle in
which the drugs were seized; rather, the State must have shown Burnside individually was aware
the mushrooms were in his car and that he exercised dominion or control over them. Id. at 885,
771 P.2d at 549. We concluded the State had not met its burden as to these elements, noting the
drugs were found in a bag that Burnside had indicated to the officers when they began their
search of the car was not his and at trial, Burnside’s passenger had repeatedly declared the drugs
were his. Further, there was evidence Burnside may have sold the drugs to the passenger several
hours earlier, which suggests they were in the passenger’s control.          Although Burnside’s


                                                4
statement that the bag was not his and evidence of the prior sale indicated Burnside probably had
knowledge the drugs were in the car, neither piece of evidence established control. Further, we
noted the State failed to rebut the passenger’s testimony that he was the sole owner of the drugs.
On this basis, we concluded there was insufficient evidence that Burnside exercised dominion or
control over the drugs while they were in the vehicle. Id. at 885-86, 771 P.2d at 549-50.
       Wilkins contends Burnside is “almost directly on point with the facts” of this case and
argues that like in Burnside, he denied ownership of the drugs found in a vehicle driven by him
and there was sworn, unrebutted testimony from a passenger, Peterson, that the drugs belonged
to Peterson. The only difference, he contends, is that in Burnside there was evidence Burnside
knew of the presence of the drugs, while in this case there was no evidence Wilkins had
knowledge, and additionally, unlike in Burnside, there was no evidence Wilkins owned the
vehicle in which the drugs were found.
       As the State points out, however, Burnside is distinguishable. Unlike in Burnside where
the drugs were found concealed in a bag in a vehicle with the defendant and a passenger, the
drugs in this case were found in an open center compartment of the vehicle in which Wilkins was
driving alone. In addition, a salient point in our Burnside analysis was the fact there was
evidence that earlier in the day Burnside sold the drugs to the passenger, which would preclude
Burnside from continuing to have control over them; no such evidence was presented here. As
the State points out, the unique facts of Burnside presented a dichotomy in that case not present
in this case: while there was evidence Burnside had knowledge of the drugs, the fact he was not
the sole occupant of the vehicle and the evidence he sold them to the passenger earlier in the day,
combined with the passenger’s unrebutted testimony that the drugs were his alone, indicated that,
despite Burnside’s knowledge, he did not have control of the drugs. In this case, however,
evidence of Wilkins’ knowledge is necessarily evidence of his control.            We turn to an
examination of that evidence.
       We conclude there was sufficient evidence from which a jury could reasonably find
Wilkins had both knowledge of the presence of the drugs and paraphernalia, as well as the power
and intent to exercise dominion and control over the illegal items discovered in the vehicle.
First, there is no question Wilkins had sole access to and control over the vehicle at the time the
drugs were discovered. Moreover, the State presented evidence that the two baggies, a pipe, and
a lighter were found by Trooper Spike in an open dashboard compartment, including testimony


                                                5
and pictures of the dashboard area of the vehicle, entered as exhibits, establishing the illegal
items were within full view of the driver’s seat, had a depth of approximately five inches, and
was easily accessible by a person sitting in the driver’s seat. See Rogerson, 132 Idaho at 58-59,
966 P.2d at 58-59 (noting the fact that the drugs and paraphernalia were found in the defendant’s
garage in plain view support a finding the defendant knew of their existence). From the pictures,
it is clear the pipe was in plain view of the driver’s seat, a fact reiterated by Corporal Lind’s
testimony that after being alerted to the compartment by Trooper Spike, he immediately
recognized the pipe as a methamphetamine pipe from his vantage point on the driver’s side.
       Visibility of the baggies and the substance therein from the driver’s seat was somewhat
less clear. The baggies were found underneath the lighter and pipe and Corporal Lind testified
he pulled one of the baggies out before taking the pictures labeled as Plaintiff’s exhibits 2 and 3.
Wilkins also points out Corporal Lind testified he could not see whether there was anything, let
alone methamphetamine, in the baggies until he picked them up and examined them. However,
it is clear from the pictures that the fact there were two small baggies underneath the pipe and
lighter was discernible from the driver’s seat, and we conclude a jury could reasonably find
Wilkins could see them from the driver’s seat and could easily reach them. See also State v.
Gomez, 126 Idaho 700, 707, 889 P.2d 729, 736 (Ct. App. 1994) (noting that although the drugs
were not found on Gomez’s person, they were found in a place “readily accessible” to him).
Furthermore, the fact the pipe was clearly in plain view is circumstantial evidence that may be
used to find the requisite knowledge of the presence of drugs--in this case, the
methamphetamine. State v. Groce, 133 Idaho 144, 152, 983 P.2d 217, 225 (Ct. App. 1999).
       In addition, Wilkins exhibited suspicious behavior upon being stopped.           Suspicious
behavior of a defendant when he becomes aware of the police is a circumstance that can link him
to drugs found on the premises of which he is in non-exclusive possession. Gomez, 126 Idaho at
707, 889 P.2d at 736. Here, Corporal Lind testified when Wilkins was pulled over, Wilkins
immediately left the truck and began walking toward Corporal Lind, apparently in an attempt to
initiate contact with the officer in the officer’s patrol vehicle as opposed to in the truck. Both
officers described Wilkins’ demeanor as “fidgety,” “wound up,” and “jumpy,” and Corporal
Lind testified Wilkin’s overall demeanor was concerning enough for him to request backup,
something Trooper Spike testified Corporal Lind did not generally request and which was not
routine procedure of the Idaho State Police. Furthermore, after Wilkins was informed the


                                                 6
methamphetamine and pipe were found in his vehicle, he became “unglued,” acting like a “caged
animal.” See also State v. Betancourt, 151 Idaho 635, 639, 262 P.3d 278, 282 (Ct. App. 2011)
(noting, in finding sufficient evidence to infer constructive possession of drugs found in a
vehicle, that the defendant appeared nervous in his interaction with the officer).
       Finally, although Wilkins places great emphasis on Peterson’s “unrebutted” testimony
that Peterson was the sole owner of the methamphetamine and paraphernalia, it is well-settled
that it is the province of the jury to assess credibility. State v. Jones, 145 Idaho 639, 641, 181
P.3d 1247, 1249 (Ct. App. 2008). As the State points out, several issues affecting Peterson’s
credibility were revealed at trial, including that Peterson had been friends with Wilkins for
several years and Peterson had recently made a very similar claim of ownership of
methamphetamine found in another criminal defendant’s vehicle. In addition, while Peterson
claimed he smoked the methamphetamine in the truck while Wilkins was inside his residence so
he would not “tempt” Wilkins, he then made little to no attempt to conceal the remaining
methamphetamine when Wilkins returned to the vehicle.            In short, the mere fact Peterson
testified the drugs were his is not dispositive. This consideration was evident in Blake, 133
Idaho at 239, 985 P.2d at 119, where the Supreme Court addressed Blake’s argument that the
State failed to present evidence he was in constructive possession of methamphetamine found in
a vehicle in which he was merely a passenger. The Court ultimately concluded sufficient
evidence had been presented to find constructive possession, despite the driver’s testimony at
trial that all of the items in the car belonged to him. Id. at 242, 985 P.2d at 122. See also
Rozajewski, 130 Idaho at 647, 945 P.2d at 1393 (holding that where, after drugs were found in
the glove compartment and the defendant argued at trial they were not his and other people had
access to his vehicle, the jury could disregard the defendant’s testimony because his credibility
was called into question); Gomez, 126 Idaho at 706, 889 P.2d at 735 (noting that given the
evidence presented, in determining evidence of constructive possession, the jury could
reasonably disbelieve Gomez’s story that he had fled from police for a benign reason rather than
to conceal drugs). Based on the record, we conclude the evidence, though conflicting in nature,
was sufficient for the jury to find Wilkins knew of and exercised control over the
methamphetamine and paraphernalia. See Rozajewski, 130 Idaho at 647, 945 P.2d at 1393.




                                                 7
B.     Persistent Violator
       Wilkins also contends there was insufficient evidence to support his conviction for being
a persistent violator because the district court erred by relying on its own memory of having dealt
with Wilkins in previous criminal proceedings to find Wilkins was the individual identified in
the two prior judgments of conviction entered as evidence to prove Wilkins had two prior felony
convictions. Excluding this improper “testimony” by the district court, Wilkins contends there
was insufficient evidence to establish his identity as the person previously convicted of two
felonies.
       The former convictions relied upon to invoke the persistent violator enhancement must be
alleged in the indictment or information and proved at trial. State v. Lawyer, 150 Idaho 170, 173,
244 P.3d 1256, 1259 (Ct. App. 2010); State v. Medrain, 143 Idaho 329, 332, 144 P.3d 34, 37 (Ct.
App. 2006). Thus, the State is required to establish the identity of the defendant as the person
formerly convicted beyond a reasonable doubt. Lawyer, 150 Idaho at 173, 244 P.3d at 1259;
Medrain, 143 Idaho at 332, 144 P.3d at 37. Where a defendant is not sufficiently identified as
the same individual who was previously convicted, the judgment of conviction finding him or
her to be a persistent violator must be vacated. Lawyer, 150 Idaho at 173, 244 P.3d at 1259.
       Wilkins points to the following statement by the district court at the trial on the persistent
violator charge as indication the district court relied on improper evidence to find Wilkins was
the same person as the subject of the two prior convictions:
       And the Court . . . has an independent memory of Mr. Wilkins as having been
       before the Court before. Without looking at these judgments, I could not have
       said what he has been convicted of, whether it was a felony or a misdemeanor,
       without reviewing the documents. But I do recognize Mr. Wilkins. And when I
       look at these particular judgments I do recognize Timothy Robert Duane Wilkins
       of these judgments to be the Mr. Wilkins that is the Defendant in this particular
       case.

Wilkins contends that by indicating it had “independent memory” of Wilkins having previously
been before the court and that, by looking at the judgments for the two prior convictions, the
court recognized the name in those judgments to be the person in this case, the district court
improperly relied on its memory of Wilkins to establish his identity and ran afoul of Idaho Rule
of Evidence 605, which states a judge presiding at a trial may not testify in that trial as a witness.
The State concedes that in acting as a fact-finder in a persistent violator enhancement trial, a



                                                  8
court may not rely on its own personal knowledge of a defendant’s prior felony convictions, but
contends the court did not do so in this case. We need not address this issue, however, because
even assuming the district court erred in this regard, there was sufficient evidence presented,
apart from the district court’s recollections, to establish beyond a reasonable doubt Wilkins’
identity as the person in the two prior felony convictions. See State v. Pullin, 152 Idaho 82, 87,
266 P.3d 1187, 1192 (Ct. App. 2011) (holding where a ruling in a criminal case is correct,
though based upon an incorrect reason, it still may be sustained upon the proper legal theory).
       In Lawyer, 150 Idaho 170, 244 P.3d 1256, this Court considered the requisite proof to
identify a defendant as the same individual identified in a prior conviction. There, Lawyer was
charged with driving under the influence, as well as a felony DUI enhancement on the allegation
he had previously been convicted of felony DUI within the preceding fifteen years.            The
evidence presented by the State to prove the enhancement was a certified copy of a 2011
judgment of conviction with an attached criminal complaint, both bearing the name “Daniel J.
Lawyer” and an accompanying birth date. The arresting officer testified this identifying data
matched the data on the driver’s license Lawyer presented to him after he was pulled over in the
current case. The State also relied on the fact the current incident and the prior conviction
occurred in the same county. Lawyer argued on appeal this evidence was insufficient for a
reasonable jury to find the State had proven beyond a reasonable doubt he was the same person
as identified in the previous judgment of conviction. Id. at 173, 244 P.3d at 1259. On appeal,
we noted the evidence presented involved both personal and nonpersonal evidence of identity,
with the former being the corresponding names and birthdates and the latter being that they were
the same crime committed in the same county. Noting other states have found this combination
of evidence to suffice, we concluded there was sufficient evidence to establish identity beyond a
reasonable doubt. Id. at 174, 244 P.3d at 1260.
       The facts of the instant case are very similar. The State introduced two judgments for
two prior felony convictions, one for possession of a controlled substance with the intent to
deliver and one for possession of a controlled substance, to-wit methamphetamine.            Both
judgments contained the same name as the defendant charged in the present case, “Timothy
Robert Duane Wilkins,” and both judgments listed the date of birth as May 7, 1973, which
Corporal Lind testified was the same birthdate Wilkins gave to him at the scene of the stop in
this case. Further, both prior convictions occurred in the same county as the instant case,


                                                  9
Kootenai County, and the prior crimes were similar to the charge in this case in that they all
involved possession of a controlled substance, one specifically noting the substance was
methamphetamine as in this case.
       Wilkins argues on appeal that Lawyer is distinguishable because in that case the previous
conviction was for the “same offense,” Id. at 174, 244 P.3d at 1260, while in this case, only one
of the prior convictions in the case was for the exact “same offense.” We are not persuaded this
discrepancy renders the evidence insufficient in this case. Lawyer did not dictate the offense
must be exactly the same, but merely listed this as a factor in matching the identity of the
defendant to the subject of the prior conviction. Commonsense dictates that the prior conviction
for possession of a controlled substance with the intent to deliver is very similar to the conviction
in this case, as both involve the possession of a controlled substance, and is relevant to the
requisite inquiry. This factor, in combination with the matching name, 3 birthdate, county, and
one identical prior offense--comprising both personal and nonpersonal evidence of identity as in
Lawyer--is sufficient evidence to support Wilkins’ conviction for being a persistent violator.
Accordingly, we uphold the district court’s finding that Wilkins was the same person as the
subjects of the two prior convictions on the basis of the personal and nonpersonal matching
identifying characteristics.
C.     Sentence Review
       Wilkins asserts that, given any view of the facts, his unified sentence of ten years, with
five years determinate, for possession of a controlled substance is excessive. An appellate
review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271,
276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the
burden to show it is unreasonable and, thus, a clear abuse of discretion. State v. Brown, 121
Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion
if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645
P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of


3
        We also note the exact match of the name that included four separate names, “Timothy
Robert Duane Wilkins,” increased the evidence matching Wilkins’ identity to the subject of the
prior convictions. Hefferman v. United States, 50 F.2d 554, 557 (3d. Cir. 1931) (holding that
evidence of the same unusual name with the same address in the same city for the same offense
of selling liquor in the same judicial district was sufficient to establish identity) (cited in State v.
Lawyer, 150 Idaho 170, 174, 244 P.3d 1256, 1260 (Ct. App. 2010)).

                                                  10
sentencing that confinement is necessary “to accomplish the primary objective of protecting
society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution
applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App.
1982).     Where an appellant contends the sentencing court imposed an excessively harsh
sentence, we conduct an independent review of the record, having regard for the nature of the
offense, the character of the offender, and the protection of the public interest. State v. Reinke,
103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a
sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170
P.3d 387, 391 (2007).
         On    appeal,   Wilkins   points   to   several   mitigating    circumstances    present    at
sentencing--specifically, his difficult childhood, the support of his family in his rehabilitation
efforts, and his recognition that he has a drug problem and willingness to participate in a
treatment program. He contends these factors, combined with the “weakness” of the State’s case
against him, rendered the sentence imposed excessive.
         Before pronouncing the sentence, the district court discussed the appropriate factors
relevant to its decision.    The court also indicated it reviewed Wilkins’ neuropsychological
evaluation and presentence investigation report, that included Wilkins’ description of his difficult
childhood and gave Wilkins the opportunity to make any corrections to the presentence
investigation report, which Wilkins took. The court stated it reviewed several letters Wilkins
wrote to the court, in which Wilkins expressed his dissatisfaction with his defense counsel and
his anger at the prosecutor in this case, as well as several letters written by others in support of
Wilkins.      The court specifically noted the supportive testimony of Wilkins’ brother at the
sentencing hearing, telling Wilkins, “your brother’s description of you seems accurate. You
seem like a nice guy.”
         However, the court also noted that at the time of the present offense, Wilkins was already
on probation for the two prior felony methamphetamine convictions, one of which was a delivery
conviction, and had an extensive criminal history amounting to approximately forty-five prior
convictions, including convictions for burglary, obstruct and delay, possession of drug
paraphernalia, petit theft, providing false information, driving a vehicle without the owner’s
permission, telephone harassment, misdemeanor eluding, battery, misdemeanor possession of a
controlled substance, failure to stop at an accident, and reckless driving. In this sense, the district


                                                  11
court surmised that Wilkins “just can’t stop committing these law violations,” which put the
community at risk, diminished society’s value, and hurt “everyone around” him, as well as the
victims involved.
       The court noted that as to Wilkins’ first felony methamphetamine conviction, the court
sentenced Wilkins to a rider and then placed him on probation, in opposition of the
recommendation of prison authorities.       However, within six months of being placed on
probation, Wilkins violated probation “in a pretty significant way” by being found in possession
of methamphetamine with the intent to deliver.        As to Wilkins’ second felony possession
conviction, the recommendation was again to send Wilkins to the penitentiary without retaining
jurisdiction; however, the court placed him on a rider and then on probation. Several months
later, Wilkins violated probation, but the court gave him another chance, declining to revoke
probation. Wilkins again violated probation by his arrest in the present incident.
       After the consideration of these facts, in conjunction with an application of the objectives
of criminal punishment, the district court ultimately determined a unified sentence of ten years,
with five years determinate, was appropriate. Quite simply, Wilkins had been given numerous
chances to reform his life, several by this particular district court, yet failed to do so and
continued to act in a manner placing the community at risk. Given the district court’s thorough
examination of the relevant facts and clear recognition of the appropriate sentencing
considerations, as well as Wilkins’ extensive criminal history and demonstrated inability to
conform his actions to the law, we conclude the sentence imposed was not an abuse of discretion
under any reasonable view of the facts.
                                               III.
                                          CONCLUSION
       There was sufficient evidence for a reasonable jury to find Wilkins was in constructive
possession of the methamphetamine and paraphernalia and, thus, to uphold Wilkins’ convictions
of the possession charges. There was also sufficient evidence presented to the district court to
establish Wilkins’ identity as to the persistent violator enhancement. Finally, we conclude the
district court did not abuse its discretion in imposing sentence where Wilkins had an extensive
criminal history and had demonstrated a complete inability to conform his conduct to the law.
Wilkins’ judgment of conviction for possession of methamphetamine and being a persistent




                                                12
violator and sentence of ten years, with five years determinate, as well as his judgment of
conviction for possession of drug paraphernalia, are affirmed.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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