State v. Cesspooch

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                         Appellee,
                             v.
                   ZACHARY MIKE CESSPOOCH,
                         Appellant.

                             Opinion
                         No. 20210552-CA
                      Filed February 8, 2024

            Eighth District Court, Vernal Department
               The Honorable Clark A. McClellan
                          No. 181800546

             Wendy M. Brown, Debra M. Nelson, and
             Benjamin Miller, Attorneys for Appellant
              Jaymon Thomas and Jarell A. Dillman,
                    Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES
    DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1     When Zachary Cesspooch arrived at the Vernal courthouse
one day in June 2018, he was asked to empty his pockets while
walking through security. Cesspooch pulled out a baggie that had
a small amount of white, crystal-like residue inside. The residue
was later confirmed to be methamphetamine. Cesspooch was
later charged with two crimes: possession or use of a controlled
substance, which is a class A misdemeanor, and possession or use
of drug paraphernalia, which is a class B misdemeanor. At trial,
the court read an elements instruction that informed the jury of
the classifications for both crimes. Defense counsel did not object.
At the close of trial, the jury convicted Cesspooch of the
                         State v. Cesspooch


paraphernalia charge but acquitted him of the controlled
substance charge.

¶2     On appeal, Cesspooch argues that the court committed
plain error when it informed jurors of the classifications for the
offenses. Alternatively, he argues that his counsel was ineffective
for not objecting to the instruction. As explained below, we agree
that the court obviously erred by giving the instruction. But we
also conclude that Cesspooch has not established that he was
prejudiced. As a result, we reject both challenges and affirm
Cesspooch’s conviction.


                        BACKGROUND 1

¶3     One day in June 2018, Cesspooch walked into the Eighth
District Courthouse in Vernal. While passing through security,
Cesspooch was asked to empty his pockets and put the contents
in a bin. Cesspooch complied without reservation. One of the
items that Cesspooch removed from his pocket was a small baggie
that had a “very small amount” of what one officer observed to
be a “powdery substance” inside. Another officer who saw the
baggie later said that he saw a “white crystalish [sic] substance”
inside that was “kind of grainy.”

¶4     The security officer (Security Officer) was a former
detective, and she thought that the baggie and substance looked
suspicious. She asked Cesspooch, “What’s that?” Cesspooch said
that he didn’t know. Security Officer stored the baggie in the
court’s security room and asked Cesspooch to wait in a less busy
area. She then called the Vernal City Police Department. A police

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 

, 

 (quotation simplified),
cert. denied, 

 (Utah 2023).


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                         State v. Cesspooch


officer (Officer) responded to the call and, after visiting with
Security Officer, met with Cesspooch. When Officer asked
Cesspooch what was in the baggie, Cesspooch again said that he
“didn’t know,” but this time he surmised that it “could possibly
be soap.” Cesspooch acknowledged that “he had pulled that bag
out of his pocket and set it in” the bin, but he claimed that “he
didn’t know where it had come from” and that he “just picks up
random things and throws them away.” Officer placed Cesspooch
under arrest and booked him into jail for possession of
methamphetamine and drug paraphernalia. Tests later confirmed
that the substance in the baggie was methamphetamine.

¶5     Cesspooch’s case went to trial. At the beginning of trial, the
court read a series of preliminary instructions to the jury. One of
these was Instruction Number 3, which set forth the elements of
the charged offenses. Of note for this appeal, this instruction also
informed the jury of the classifications for the two offenses—
namely, that the possession or use of a controlled substance
charge was a class A misdemeanor and that the possession of
drug paraphernalia charge was a class B misdemeanor. Defense
counsel did not object to Instruction Number 3.

¶6     In its case, the State presented testimony from Security
Officer, Officer, and the forensic scientist who had tested the
residue inside the baggie. The defense did not call any witnesses.
After hearing closing arguments from both sides, the jury retired
for deliberations. The jury ultimately acquitted Cesspooch of
possessing a controlled substance, but it convicted him of
possessing drug paraphernalia.


            ISSUES AND STANDARDS OF REVIEW

¶7     Cesspooch challenges his conviction on two related
grounds. First, Cesspooch argues that that the district court
plainly erred by instructing the jury on the classifications for the
two charged crimes. “To prevail on plain error review, a


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                         State v. Cesspooch


defendant must establish that (i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable likelihood of a
more favorable outcome for the appellant.” State v. Pierce, 

, 

 (quotation simplified). Second, Cesspooch
argues that his counsel was ineffective for not objecting when the
court informed jurors of the classifications. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Suhail, 

,

 (quotation simplified), cert. denied, 

 (Utah
2023).


                            ANALYSIS

¶8     Cesspooch did not object when the court informed jurors
about the classifications for the charged offenses. As a result, this
issue is unpreserved. To prevail on appeal, Cesspooch must
therefore show plain error, ineffective assistance of counsel, or
exceptional circumstances. See State v. Johnson, 

,

. As noted, Cesspooch challenges his conviction on
the basis of both plain error and ineffective assistance of counsel.

¶9     We’ll start with Cesspooch’s plain error claim. To succeed,
Cesspooch must establish that “(i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful, i.e., absent the error, there is a reasonable likelihood of a
more favorable outcome for the appellant.” State v. Pierce, 

, 

 (quotation simplified). “If any one of these
requirements is not met, plain error is not established.” Johnson,

 (quotation simplified).

¶10 The parties initially disagree about whether there was an
obvious error. “Under a plain error standard of review, an error
is obvious only if the law governing the error was clear at the time
the alleged error was made.” Pierce, 

 (quotation
simplified). As the State points out, no Utah case has specifically


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                          State v. Cesspooch


held that it is error for a court to inform a jury of the classification
for an offense. But even so, we agree with Cesspooch that it was
obvious error for the court to do so here. And this is so because
the underlying principle was sufficiently settled, and that
principle alone would have shown the court that it could not
inform the jury of these classifications. See State v. Larsen, 

, 

 (noting that “an error is obvious if the
law on the area was sufficiently clear” and the error was “so
obviously improper that the trial court had an opportunity to
address the error” (quotation simplified)).

¶11 “Generally speaking, it is the jury’s duty to determine the
innocence or guilt of the accused. The court’s duty is to impose
sentencing. Possible punishment, then, is usually not a proper
matter for jury consideration.” State v. Cude, 

(Utah 1989) (quotation simplified). A number of cases have
recognized this principle. See, e.g., Rogers v. United States, 

 (1975) (noting that a jury has “no sentencing function and
should reach its verdict without regard to what sentence might be
imposed”); State v. Gallegos, 

, 

(concluding that the State “had no business bringing up
sentencing at all” to the jury because it “added nothing to help
jurors” make their determination of guilt or innocence); State v.
Blubaugh, 

 (Utah Ct. App. 1995) (noting that
“ordinarily, punishment is not the province of the jury” and
suggesting that a “mention of punishment to the jury is an error”);
see also United States v. Greer, 

, 1384–85 (10th Cir.
1980) (concluding that, “[a]bsent a statutory requirement that the
jury participate in the sentencing decision,” the jury should not be
informed of possible penalties).

¶12 Here, it’s true that Instruction Number 3 didn’t inform
jurors about punishment directly. But this instruction did inform
jurors of the classifications of the offenses. And the classification
of an offense is directly tied to its punishment—that’s a key reason
(if not the reason) for classifying criminal offenses at all. And the



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                          State v. Cesspooch


Utah Code reflects this. The portion of the Utah Criminal Code
that sets forth the “Classification of Offenses” is contained in Title
76, Chapter 3—and Chapter 3 is titled “Punishments.” The code
also provides that a “person adjudged guilty of an offense under
this code shall be sentenced in accordance with the provisions of
this chapter.” Utah Code § 76-3-101(1). And that chapter then
outlines the various offense classifications, see id. § 76-3-102, after
which it provides sentencing guidelines based on those
classifications, see id. §§ 76-3-103 to -105.

¶13 There may be some case in which it might be necessary to
inform a jury of the classification for some past offense—if a
defendant is charged with unlawfully possessing an item as a
convicted felon, for example. But the State hasn’t given us any
reason to believe that these classifications would have helped this
jury decide whether Cesspooch was guilty of these charged
offenses. Without such a reason, the classifications would have
been relevant only for sentencing. Since sentencing was the
court’s prerogative and not the jury’s, we conclude that the court
committed obvious error by instructing the jury about these
classifications.

¶14 As indicated, however, it’s not enough for Cesspooch to
establish obvious error. He must also demonstrate that the
obvious error was harmful. And to satisfy this burden, Cesspooch
must show that, “absent the error, there is a reasonable likelihood
of a more favorable outcome.” Pierce, 

 (quotation
simplified). “As applied here, our prejudice analysis asks whether
we remain confident that the verdict would be the same” had the
improper information been excluded. State v. McNeil, 

, 

.

¶15 The wrinkle in this case is that while the jury convicted
Cesspooch of the paraphernalia charge, it acquitted him of the
drug charge. This case thus involves a split verdict. But because
Cesspooch must demonstrate that there’s a “reasonable



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                        State v. Cesspooch


likelihood” that he would have received a “more favorable”
outcome without the error, Pierce, 

 (quotation
simplified), he must demonstrate that there’s a reasonable
likelihood that he would have been acquitted on both charges if
the court had not improperly instructed jurors about the
classifications for the offenses. Two things persuade us that
Cesspooch has not carried this burden.

¶16 First, when assessing the likely impact of an error such as
this one, it’s appropriate to consider the strength of the evidence
as a whole. See, e.g., Gallegos, 

. As we’ve
explained in the somewhat related context of assessing an
improper comment by a prosecutor, if “proof of [a] defendant’s
guilt is strong, the challenged conduct or remark will not be
presumed prejudicial, but when the evidence is less compelling
we will more closely scrutinize the conduct.” 

 (quotation
simplified). Here, Cesspooch walked into a courthouse with a
baggie in his pocket, that baggie had a white powdery substance
inside, and that substance later tested positive for
methamphetamine. None of this was disputed. Indeed,
Cesspooch acknowledged to officers on the scene that “he had
pulled that bag out of his pocket and set it in” the bin, thus
admitting that he had knowingly possessed at least the baggie.
The case therefore turned on whether Cesspooch knew what was
inside. As noted, Cesspooch claimed that he didn’t. But intent or
knowledge “can be proven by circumstantial evidence,” and a
jury is “entitled to draw all reasonable inferences from the facts
and from the actions of the defendant.” State v. Stricklan, 

, 

 (quotation simplified). We regard it as
somewhat implausible that Cesspooch really did have a baggie in
his pocket that had a “white crystalish [sic]” or “powdery
substance” inside without knowing that it was a controlled
substance such as methamphetamine. This is accordingly a case
in which there was strong evidence of guilt.




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                         State v. Cesspooch


¶17 Second, Cesspooch asks us to surmise that the improper
language in the jury instruction harmed him. And it’s possible
that it did harm him—perhaps the jury was leaning toward
acquitting him on both charges, and perhaps it then decided to
convict him on one of the charges because it knew that the
conviction would only be for a misdemeanor. But it’s also possible
that the classification information helped Cesspooch—perhaps
the jury was leaning toward convicting him on both charges, and
perhaps it then decided to acquit him on one of them because it
knew that the acquitted charge would only be for a misdemeanor.
Cf. State v. Miller, 

, ¶ 36 n.7, 

, cert.
denied, 

 (Utah 2023) (“We note that while a split verdict
may be consistent with the notion that the jury was conflicted
about the evidence or had some doubt about a victim’s credibility,
it may also just as legitimately suggest compromise or some
leniency in favor of [the defendant].” (quotation simplified)). A
third option seems possible too—perhaps the jury’s decision to
issue the verdict that it did had nothing to do with its knowledge
of the classifications of these offenses. Perhaps that decision
turned on something else entirely.

¶18 Working with the contextual cues that are available, it
doesn’t seem reasonably likely to us that this information is what
drove the jury’s decision. This information was given to the jury
in the middle of an elements instruction (as opposed to being
highlighted through its own separate instruction), and that
elements instruction was given as part of a broader set of
instructions at the beginning of trial. There was nothing in the
moment that made this information stand out. If anything, it was
somewhat buried, and the court never mentioned the information
about the classifications again. Nor did the attorneys. At no point
in this case did the attorneys bring the classifications up with any
witness, nor did any attorney make these classifications the focus
of any argument. This appeal may well have come out differently
if it were otherwise. But on this record, there’s little reason to




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                         State v. Cesspooch


believe that the jury was focused on these classifications when it
deliberated in this case.

¶19 In short, it’s clear that something prompted the jury to
issue this split verdict. But Cesspooch has not persuaded us that
there’s a reasonable likelihood that this verdict was influenced by
the information the jury had received about the classifications of
the offenses; and even if Cesspooch had, he also has not
persuaded us that there’s a reasonable likelihood that the effect
was harmful to him (as opposed to being beneficial to him). For
these reasons, we reject Cesspooch’s claim for lack of prejudice.

¶20 For the same reason, we also reject Cesspooch’s related
claim of ineffective assistance. To prevail on this claim, Cesspooch
must establish both deficient performance and prejudice. See State
v. Rivera, 

, 

. And as noted, the
“prejudice test is the same whether under the claim of ineffective
assistance or plain error.” McNeil, 

. Given that
there was no prejudice for plain error purposes, there was
likewise no prejudice for ineffective assistance of counsel
purposes. We therefore reject this claim.


                         CONCLUSION

¶21 The district court obviously erred when it informed the
jury of the classifications for the two charged offenses, but
Cesspooch has not shown that this error prejudiced him. We thus
affirm his conviction.




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