## Facts

- Weber County officers received an anonymous tip that large marijuana plants were being grown at 249 Harris Street in Ogden, Utah.
- An officer observed two opaque greenhouses on the property and saw a marijuana leaf pressed against a greenhouse, then obtained and executed a search warrant while the premises were unoccupied.
- The property was owned by Gary L. Fox; officers found approximately 2,850 marijuana plants in the greenhouses and additional marijuana and paraphernalia inside the house.
- The house had two bedrooms: one contained Gary’s checkbook and bank records, clothing, marijuana, paraphernalia, and a “Marijuana Grower’s Guide”; the other contained men’s clothing, tools, and an expired identification card for Clive Fox.
- One greenhouse was accessible only from the kitchen and had no outside entrance; the house was humid and showed signs of recent occupancy.
- Mail addressed to both Gary and Clive was found at the residence; Gary arranged gas service and received gas bills, and the residence telephone listing had long been in Clive’s name.
- Neighbors testified they believed both brothers lived at the residence and had seen them on weekends doing yard work, but could not place either inside the home during the period immediately preceding the search.

## Issues

1. Whether the circumstantial evidence was sufficient to prove each defendant knowingly possessed marijuana with intent to distribute and knowingly produced marijuana.
2. Whether evidence of ownership/occupancy and proximity to contraband supported an inference of dominion and control for Gary Fox.
3. Whether Clive Fox’s mail, telephone listing, and limited personal effects at the residence established knowing dominion and control beyond a reasonable doubt.

## Decision

- The Utah Supreme Court reviewed the record in the light most favorable to the verdict and applied sufficiency review separately to each defendant.
- As to Gary Fox, the court held the evidence permitted a reasonable inference of knowledge, dominion and control over the premises and plants, and intent to distribute based on the size and setup of the operation; convictions affirmed.
- As to Clive Fox, the court held the evidence showed, at most, association with the address and speculation about involvement, without proof of knowing control over the marijuana; convictions reversed.

## Legal Principles

- On sufficiency review, an appellate court views evidence in the light most favorable to the verdict and reverses only when the proof is so inconclusive or inherently improbable that reasonable doubt is required.
- Possession of contraband may be proved by circumstantial evidence and may be joint rather than exclusive.
- Constructive possession requires objective facts permitting an inference that the accused intended to exercise dominion and control over the contraband; mere association with a person or premises involved in criminal activity is insufficient.
- In joint trials arising from a shared location, sufficiency must be determined defendant by defendant; guilt must be personal and cannot rest on conjecture.

## Conclusion

The court sustained convictions where ownership, current occupancy indicators, proximity to contraband, and the house-to-greenhouse access supported constructive possession and production, but reversed where the State’s proof against a co-defendant consisted primarily of mail, a phone listing, and stale personal items that did not establish knowing dominion and control beyond a reasonable doubt.


State v. Fox, 709 P.2d 316 (Utah 1985)