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Dixon v. State

Supreme Court of Wyoming

April 1, 2019

ERIC RICHARD DIXON, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Carbon County The Honorable Dawnessa A. Snyder, Judge

          Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; James Michael Causey, Senior Assistant Appellant Counsel. Argument by Mr. Morgan.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Samuel L. Williams, Assistant Attorney General. Argument by Mr. Williams.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          BOOMGAARDEN, JUSTICE.

         [¶1] A jury convicted Eric Richard Dixon of felony possession of marijuana and possession with intent to deliver. Mr. Dixon challenges his convictions by claiming the district court erred when it denied his motion to suppress evidence obtained during a search of his vehicle following a traffic stop, and when it admitted the State's rebuttal evidence concerning Colorado's medical marijuana law. Mr. Dixon also raises claims of prosecutorial misconduct and ineffective assistance of defense counsel. Finding no reversible error, we affirm.

         ISSUES

         [¶2] Mr. Dixon raises four issues:

I. [D]id the district court err in denying Mr. Dixon's motion to suppress?
II. Did the district court erroneously permit the introduction of improper rebuttal evidence?
III. Did the prosecutor commit prejudicial misconduct through the use of improper evidence and argument?
IV. Did defense counsel provide ineffective assistance by failing to object to the admission of improper evidence?

         FACTS

         [¶3] On May 20, 2017, the Wyoming Highway Patrol received a complaint of a light blue minivan with a dangling front Colorado license plate, unlawfully passing vehicles near Rawlins, Wyoming, at a high rate of speed, and nearly hitting two cars. Trooper Jason Jurca located a vehicle driven by Mr. Dixon that matched the description. After Trooper Jurca observed Mr. Dixon commit further infractions, he initiated a traffic stop and approached the vehicle on the passenger side. He requested Mr. Dixon's driver's license, registration, and proof of insurance, and commented about the vehicle's condition, including its cracked windshield and the hanging front plate. Mr. Dixon responded that his wife was in an accident and hit a curb. When asked about his travel plans, Mr. Dixon stated he was headed to Jackson Hole to visit a friend for the weekend. Trooper Jurca returned to his patrol vehicle after he confirmed the rear and front license plates matched.

          [¶4] Trooper Jurca processed Mr. Dixon's information and prepared a written warning for the loose license plate and cracked windshield. He re-approached Mr. Dixon's vehicle and explained the reasons for the written warning. As he handed Mr. Dixon the documents through the passenger window, Trooper Jurca "smelled the very distinct odor of marijuana." He told Mr. Dixon to "wait" and instructed him to roll up his driver's side window, after which Trooper Jurca leaned into the vehicle and smelled marijuana again. Trooper Jurca also picked up "a little green bud of marijuana" on the passenger seat and asked Mr. Dixon if he had drugs in the vehicle. Mr. Dixon initially denied having drugs, but later said he thought his wife might have her "stash" in the vehicle.

         [¶5] Trooper Jurca placed Mr. Dixon in the patrol car, requested backup, and searched Mr. Dixon's vehicle for drugs. He discovered two small sandwich bags containing marijuana and several partially smoked marijuana joints in the console area. He also found marijuana concealed in the back of the minivan contained in five vacuum-sealed bags each weighing about one pound. Trooper Jurca placed Mr. Dixon under arrest and transported him to the Carbon County Detention Center. While at the jail, Mr. Dixon informed Trooper Jurca that he was delivering the drugs to someone at a gas station in Libby, Montana, in exchange for payment. He explained that this was his first time doing anything like that, but he needed the money because he was "doing poor financially" and in jeopardy of losing his home and business after a 500-year flood damaged his mining company in Chile. A detention deputy overheard Mr. Dixon's statements to Trooper Jurca about the planned drug transaction.

         [¶6] The State charged Mr. Dixon with two felonies: possession of a controlled substance, and possession of a controlled substance with intent to deliver. Mr. Dixon pleaded not guilty to the charges. Prior to trial, he moved to suppress evidence, alleging the warrantless search of his vehicle violated both the state and federal constitutions because Trooper Jurca unlawfully placed his head into the passenger window to conduct a sniff search without consent or probable cause. The district court denied the motion after an evidentiary hearing.

         [¶7] A two-day jury trial commenced on November 14, 2017. The State called several witnesses in its case in chief including: Jeremy Williams, the person who reported Mr. Dixon's erratic driving; Deputy Terrill, the detention deputy who overheard Mr. Dixon's statements to Trooper Jurca; and Rachel Chavez, a forensic specialist with the Wyoming State Crime Lab. The State also called Trooper Jurca and, through his testimony, admitted video clips of the traffic stop and search. Defense counsel did not cross examine the State's witnesses and the State rested.

         [¶8] The defense called Mr. Dixon as its sole witness. Unbeknownst to the State, Mr. Dixon's trial strategy required recanting his jailhouse admissions. At trial, he claimed the marijuana belonged to his wife and that he had no knowledge she had marijuana in the vehicle. Mr. Dixon first told the jury that he and his wife were separated, but she allowed him to borrow her minivan for his trip because his truck was in the shop. Although he noticed the minivan smelled like marijuana, it did not raise a "red flag" because medical marijuana is legal in Colorado where they reside. Mr. Dixon testified that his wife is a nurse and a medical marijuana caregiver, and often transports marijuana for her patients. He explained his understanding that Colorado law permits a caregiver to have up to five cancer patients and each patient may possess up to 16 ounces of marijuana.

         [¶9] Mr. Dixon next testified that he did not know about the marijuana in the minivan. In addressing the video footage showing his demeanor during the search, Mr. Dixon acknowledged that he was nervous while Trooper Jurca searched the vehicle, but testified his demeanor was largely out of concern his dog would jump out and run into the interstate;[1] it was not due to concealed drugs. He further acknowledged he became nervous when Trooper Jurca started searching the large bag containing the marijuana, but only because he had never seen the bag before, he did not place the bag in the minivan, and he knew his wife transported bulk marijuana as a caregiver and smoked marijuana recreationally, too.

         [¶10] Mr. Dixon then recanted his admission about the planned drug transaction. He testified he falsely told Trooper Jurca about knowingly transporting the marijuana to Montana because he thought if he "took the rap" for his wife and made sure her nursing license was "safe, "[2] it might "sweeten the deal" with her in their divorce proceedings pertaining to custody.

         [¶11] Mr. Dixon's trial strategy caught the State by surprise. On cross-examination, the State worked to reinforce that Mr. Dixon knowingly possessed the marijuana despite his recanted admissions. The State played clips of the footage taken inside the patrol car, which shows Mr. Dixon becoming nervous, swearing, and putting his hands on his face each time Trooper Jurca neared the bag containing marijuana.[3] Mr. Dixon admitted he showed "signs of anxiety" and placed his hands over his eyes when Trooper Jurca neared the bag even though he could not see it, because he "knew there was going to be a lot of marijuana in that bag." The State also questioned Mr. Dixon's veracity and probed the weaknesses with his defense theory. Mr. Dixon admitted he lied to Trooper Jurca when he denied driving erratically on the night of the traffic stop. He admitted he lied to Trooper Jurca about trafficking marijuana in order to protect his wife even though he knew he had the right to remain silent and no one suspected the five pounds of marijuana might belong to her. He admitted that he owns a mining company in Chile but made up the story about having financial problems in order to take attention away from his wife. Mr. Dixon admitted he lied on multiple occasions:

Q. . . . You tell the truth and sometimes you lie; isn't that correct?
A. Yes.
Q. It's not just on one occasion, though, is it? You do it multiple times?
A. Yes.

         [¶12] After being caught off guard by the defense's trial strategy, the State obtained a fifteen-minute break to prepare Trooper Jurca as its rebuttal witness. On rebuttal, Trooper Jurca explained his familiarity with marijuana trafficking. He opined that the marijuana found in Mr. Dixon's vehicle was more consistent with trafficking than with medicinal marijuana because it was double vacuum-packed, tied shut in a black trash bag, and concealed in a large bag, which is typically done by people trying to hide illegal substances. The State provided Trooper Jurca with State's Exhibit 13-a copy of the Colorado Constitution pertaining to medical marijuana. Trooper Jurca read portions of the exhibit to the jury. He summarized that Colorado law permits caregivers to have up to two ounces of usable marijuana and "six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana[, ]" and opined Mr. Dixon's testimony about the amount of marijuana a caregiver may legally possess was inconsistent with Colorado law. The district court admitted the exhibit into evidence at the conclusion of Trooper Jurca's testimony.

         [¶13] On cross-examination, Trooper Jurca testified he had never purchased marijuana from a dispensary or grower and had never been a caregiver. He stated that he lived in Colorado for two years as a student but was never a law enforcement officer there. Concerning Colorado medical marijuana law, Trooper Jurca admitted he had no idea how many times the law may have been amended, whether State's Exhibit 13 was the current and entire law on the subject, or whether a doctor can permissibly prescribe more than the amounts described in the exhibit. The State did not call any further witnesses.

         [¶14] The district court instructed the jury and the parties presented closing arguments. The jury found Mr. Dixon guilty on both charges. The district court merged the charges for sentencing purposes and sentenced Mr. Dixon to four to six years of imprisonment, with credit for 111 days of presentence confinement. Mr. Dixon timely appealed.

         DISCUSSION

         I. The District Court Properly Denied Mr. Dixon's Motion to Suppress

         [¶15] Mr. Dixon filed a pre-trial motion to suppress evidence. He argued the warrantless search of the minivan was unreasonable and violated his rights under both the federal and state constitutions because Trooper Jurca continually leaned his head into the passenger window throughout the stop without consent or probable cause.

         [¶16] At the suppression hearing, Trooper Jurca testified he "smelled the very distinct odor of marijuana" as the wind blew across his face while issuing a written warning to Mr. Dixon. He told Mr. Dixon to "wait" and instructed him to close his driver's side window, after which Trooper Jurca stuck his head into the vehicle and "smelled the odor of marijuana distinctly again." In its written order denying the suppression motion, the district court made the following findings:

(4) As Trooper [Jurca] is handing back Mr. Dixon's paperwork and warning, indicating the end of the stop, Trooper [Jurca] paused and smelled marijuana emanating from the vehicle.
(5) Trooper Jurca then directs Mr. Dixon to roll up [the] driver side window to confirm that the smell is coming from the vehicle.
(6) Trooper Jurca leaned his head into [the] vehicle, and while leaned in to confirm the smell, [he] saw and retrieved the bud of marijuana on the passenger seat.
(7) Trooper Jurca has sufficient training and experience to recognize the smell of, and the physical appearance of marijuana.
(8) Trooper Jurca's presence at the vehicle included reaching inside to exchange paperwork with Mr. Dixon, including the return of license, paperwork, and to issue a warning was both reasonable and lawful.

         The district court concluded that "Trooper Jurca possessed probable cause to believe that marijuana was present in Mr. Dixon's vehicle at the moment he smelled marijuana while returning [Mr. Dixon's] paperwork" and, thus, Trooper Jurca did not violate Mr. Dixon's federal or state constitutional rights. On appeal, Mr. Dixon contests the district court's findings and requests we reverse the district court's order.

         [¶17] When reviewing a denial of a motion to suppress evidence, we adopt the district court's factual findings unless those findings are clearly erroneous. Rodriguez v. State, 2018 WY 134, ¶ 15, 430 P.3d 766, 770 (Wyo. 2018) (citation omitted). We view the evidence in the light most favorable to the district court's decision because the court conducted the hearing and had the opportunity to "assess the witnesses' credibility, weigh the evidence and make the necessary inferences, deductions and conclusions." Kunselman v. State, 2008 WY 85, ¶ 9, 188 P.3d 567, 569 (Wyo. 2008) (citations omitted). "On those issues where the district court has not made specific findings of fact, this Court will uphold the general ruling of the court below if supported by any reasonable view of the evidence." Feeney v. State, 2009 WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009) (citation omitted). "The ultimate question of whether the search or seizure was legally justified, however, is a question of law we review de novo." Rodriguez, ¶ 15, 430 P.3d at 770 (citation omitted).

         A. No Independent State Constitutional Analysis

         [¶18] Mr. Dixon argues that Trooper Jurca's actions were unreasonable under the "more protective" provisions of the Wyoming Constitution, but does not provide any analysis that the outcome under the state constitution would differ from the outcome under the federal constitution. Rather, Mr. Dixon asserts the outcome is the same under both constitutions and turns on whether Trooper Jurca's actions were reasonable. We therefore decline to separately consider whether the search of Mr. Dixon's vehicle violated Article 1 Section 4 of the Wyoming Constitution, and instead conduct our analysis under the Fourth Amendment of the United States Constitution. See, e.g., Lovato v. State, 2012 WY 10, ¶ 8, 269 P.3d 426, 428-29 (Wyo. 2012) (citation omitted) (declining to consider whether a seizure violated the Wyoming Constitution where appellant ...


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