State v. Blair

2026 UT App 162 THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. DAVID ALTON BLAIR, Appellant. Opinion No. 20240975-CA Filed October 29, 2026 Fourth District Court, Heber Department The Honorable Donald J. Eyre No. 231500144 Ramon Ortiz, Debra M. Nelson, Benjamin Miller, and Wendy Brown, Attorneys for Appellant Derek E. Brown and Hwa Sung Doucette, Attorneys for Appellee JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred. MORTENSEN, Judge: ¶1 When David Alton Blair’s son fired a pellet gun into the neighbors’ fence, the police were called to the scene. During their search for the gun in Blair and his son’s house, officers smelled the odor of marijuana emanating from the garage. After obtaining a second warrant, the officers found marijuana, methamphetamine, and drug paraphernalia in the garage. The methamphetamine was intermingled with the other illicit materials, which Blair admitted were his. He was charged with possession of each illicit material. And although Blair denied that the methamphetamine was his, he was convicted as charged on all three counts.  State v. Blair ¶2 Blair now appeals his conviction for possession of methamphetamine, asserting that the district court committed plain error when it informed the jury that the marijuana charge was a class A misdemeanor and by failing to interrupt the prosecutor when, during closing argument, he speculated about the relatively minor consequences of conviction on the charges. Blair also argues that the court abused its discretion by allowing the jury to hear about his prior convictions for drug possession. We agree with Blair that the district court plainly erred in allowing the jury to hear about potential punishment for the possession crimes, and we, accordingly, vacate the conviction for possession of methamphetamine and remand the matter for a new trial. We also exercise our discretion to provide guidance on the other issue, considering that it is likely to arise again on remand. BACKGROUND 1 ¶3 Blair and his adult son (Son) lived together in a house in Wasatch County. One day, Son got into a dispute with some neighbors and ended up shooting the neighbors’ fence with a pellet gun. Prior to their investigation of the shooting, police officers obtained a warrant to search Blair’s house for evidence of a crime, presumably the pellet gun. ¶4 At the outset of their search, the officers detained Blair and Son and placed them in a squad car. Then, at some point, the officers smelled “burnt marijuana” coming from the garage, so they obtained a second warrant to search the residence for drugs and drug paraphernalia. During the second search, the officers found marijuana, methamphetamine, and drug paraphernalia. 1. “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned up). 20240975-CA 2 2026 UT App 162  State v. Blair The officers found the methamphetamine in or near a tackle box that had been in the same “general area” of the garage where they found the marijuana and paraphernalia. ¶5 Blair and Son both admitted to police that they had shared the marijuana and confirmed that the marijuana belonged to Blair. Blair also admitted that the tackle box was his. But Blair and Son denied possessing the methamphetamine, with each man claiming that it belonged to the other. Based on what the officers found during their search, Blair was charged with possession of methamphetamine, marijuana, and drug paraphernalia. 2 ¶6 Before trial, the State filed notice of its intent to introduce, under rule 404(b) of the Utah Rules of Evidence, evidence that Blair had previously been convicted of possession of both methamphetamine and marijuana. Blair objected to the admission of this evidence, arguing that it would improperly lead the jury to conclude that he was a “drug addict” and must therefore have been guilty of the charged offenses. In response, the State argued that the prior-conviction evidence constituted a “necessary element” in proving Blair’s “intent to possess” the methamphetamine under a constructive possession theory because the drug was found in a common area accessible to Blair and Son and because the two men admitted to possessing the marijuana, which was found nearby. The court allowed the State to introduce the convictions at trial. ¶7 Prior to reading the opening jury instructions at trial, the district court was asked by both parties not to inform the jury of the classifications of the charged offenses, and the court agreed not to do so. Nevertheless, the court inadvertently informed the 2. Son was also charged with possessing methamphetamine, marijuana, and drug paraphernalia. By the time of Blair’s trial, Son had already pled guilty to possessing the methamphetamine. And as noted later, Blair’s jury was informed of this fact. 20240975-CA 3 2026 UT App 162  State v. Blair jury during opening instructions that the marijuana charge was a class A misdemeanor. Blair’s counsel did not object to the court’s statement at the time it was made. ¶8 The State’s witnesses testified consistently with the facts recited above. The State also introduced evidence of Son’s guilty plea for possessing the methamphetamine that Blair allegedly possessed. After the State rested, Blair moved for a directed verdict on sufficiency-of-the-evidence grounds. The court denied the motion. The defense rested without calling any witnesses. ¶9 The court then read closing instructions to the jury. As relevant on appeal, the court read a limiting instruction regarding Blair’s prior convictions, stating that the jury could consider the “evidence, if at all, for the limited purpose of whether [Blair’s] involvement in these illegal acts gave [him] a motive to commit the crime he is charged with in this case or create a nexus to the drug found in such a manner that motive can be inferred.” The court further stated, “This evidence was not admitted to prove a character trait of the defendant or to show that he acted in a manner consistent with such a trait. Keep in mind that defendant is on trial for the crime charged in this case and for that crime only. You may not convict a person simply because you believe he may have committed some other acts at another time.” The court also informed the jury that it was not to “consider what punishment could result” from a guilty verdict and that “[p]unishment is not relevant to whether the defendant is guilty or not guilty.” ¶10 In his closing argument, the prosecutor emphasized Blair’s prior convictions and argued that they showed his intent to possess the drugs. For his part, Blair’s counsel conceded guilt regarding the marijuana charge. But he highlighted Son’s guilty plea regarding the disputed methamphetamine as well as Blair’s lack of exclusive control over the garage in arguing that there was reasonable doubt on the methamphetamine charge. In rebuttal, 20240975-CA 4 2026 UT App 162  State v. Blair the prosecutor addressed the potential consequences of a guilty verdict. He stated, No one here is suggesting we’re going to take Mr. Blair’s life for possession of methamphetamine, okay? We’ll start with that. For beyond a reasonable doubt standard you can also be given a fine. You could do a couple days in jail or you could be told go get some sort of course that can help you so you don’t do this again in the future. So, yes, those are the worst things that can happen, but nobody here is saying that’s what’s going to happen here today. Blair’s counsel did not object to these comments. The case was then submitted to the jury, which convicted Blair on all three charges. Blair appeals, challenging only his conviction for possession of methamphetamine. ISSUES AND STANDARDS OF REVIEW ¶11 Blair raises two issues on appeal. He argues first that the district court plainly erred when it instructed the jury that the marijuana charge was a class A misdemeanor and when it did not interrupt the prosecutor when he told the jury about the relatively minor consequences of the punishment that Blair faced in the event of conviction on the charges. We decide a claim of plain error “in the first instance as a matter of law.” State v. Dew, 2025 UT App 22, ¶ 28, 566 P.3d 53, cert. denied, 568 P.3d 264 (Utah 2025). ¶12 Blair also maintains that the court erroneously admitted his prior drug convictions under rule 404(b) of the Utah Rules of Evidence. “We review a district court’s evidentiary rulings for an abuse of discretion.” State v. Suhail, 2023 UT App 15, ¶ 68, 525 P.3d 550. However, our review in this context entails ensuring “that no mistakes of law affected [the] court’s use of its discretion.” 20240975-CA 5 2026 UT App 162  State v. Blair Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Center, 2010 UT 59, ¶ 5, 242 P.3d 762 (cleaned up). ANALYSIS I. Comments About Offense Classification and Severity of Punishment ¶13 Blair argues that the district court plainly erred when it informed the jury that the marijuana charge was a class A misdemeanor and when it did not interrupt the prosecutor’s comments about the relatively minor punitive consequences of conviction in Blair’s case. To establish plain error on appeal, a defendant must show that (1) “an error exists,” (2) “the error should have been obvious to the trial court,” and (3) “the error is harmful”—or, in other words, “absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” State v. Cesspooch, 2024 UT App 15, ¶ 9, 544 P.3d 1046 (cleaned up). ¶14 We have frequently explained in recent years that a district court commits obvious error when it informs the jury of the classification of the offense in question. See id. ¶¶ 11–13; see also State v. Draughon, 2026 UT App 52, ¶ 53, 588 P.3d 1051, cert. denied, 591 P.3d 751 (Utah 2026); State v. Thomas, 2025 UT App 133, ¶¶ 23– 24, 577 P.3d 1277, cert. denied, 581 P.3d 557 (Utah 2025); State v. Williams, 2025 UT App 118, ¶ 35, 576 P.3d 1142, cert. denied, 581 P.3d 554 (Utah 2025); State v. Garcia, 2025 UT App 119, ¶ 38, 576 P.3d 1111, cert. denied, 581 P.3d 555 (Utah 2025). After all, “classification of an offense is directly tied to its punishment,” which is generally outside the jury’s province. Cesspooch, 2024 UT App 15, ¶ 12. So too here, given that the district court informed the jury that the marijuana charge was a class A misdemeanor. And the prosecutor’s statement also violated the underlying principle that “[p]ossible punishment . . . is usually not a proper matter for jury consideration.” State v. Cude, 784 P.2d 1197, 1202– 20240975-CA 6 2026 UT App 162  State v. Blair 03 (Utah 1989); accord Cesspooch, 2024 UT App 15, ¶¶ 11–12 (collecting cases that recognize the principle that informing the jury of possible punishment is improper). A “defendant is either not guilty or guilty of a particular charge,” and “determination of innocence or guilt should not be swayed by a jury’s sympathetic or antipathetic feelings toward a defendant because of an anticipated sentence.” Cude, 784 P.2d. at 1203. Accordingly, the prosecutor here “had no business bringing up sentencing at all” because potential punishments add “nothing to help jurors” make a determination of guilt or innocence. See State v. Gallegos, 2018 UT App 112, ¶ 32, 427 P.3d 578. Merely by noting that Blair’s sentencing prospects were an innocuous affair, the prosecutor “called to the attention of the jurors matters which they would not be justified in considering in determining their verdict.” See id. (cleaned up); see also Rogers v. United States, 422 U.S. 35, 40 (1975) (stating that a jury has “no sentencing function and should reach its verdict without regard to what sentence might be imposed”); United States v. Greer, 620 F.2d 1383, 1385 (10th Cir. 1980) (“Absent a statutory requirement that the jury participate in the sentencing decision, nothing is left for jury determination beyond the guilt or innocence of an accused.” (cleaned up)); State v. Blubaugh, 904 P.2d 688, 701 (Utah Ct. App. 1995) (“[O]rdinarily, punishment is not the province of the jury.”). ¶15 Given this rather clear precedent, the State concedes that “it was obvious error for the trial court to mention a charge’s classification and to not sua sponte interrupt the State’s closing argument.” But the analysis doesn’t end with the concession of error. To prevail, Blair must demonstrate that he was prejudiced, meaning that “absent the error there is a reasonable likelihood” that he “would have received a more favorable outcome at trial.” See Gallegos, 2018 UT App 112, ¶ 33; accord State v. Ringstad, 2018 UT App 66, ¶ 68, 424 P.3d 1052. ¶16 Standing alone, the court’s mention of the classification related to the marijuana charge would likely not have prejudiced 20240975-CA 7 2026 UT App 162  State v. Blair Blair with regard to the methamphetamine charge. After all, during closing argument, Blair’s counsel conceded guilt on the marijuana charge. The jury being informed of the classification for a crime that Blair eventually admitted to would have been unlikely to have swayed the jury to return a guilty verdict on a different charge. But divulging the classification for the marijuana charge did not happen in isolation. Rather, it marked an opening chapter in a trial narrative in which the prosecutor seized the opportunity to minimize (and indeed misrepresent) the punishment Blair might receive for the possession charges if convicted. 3 And this repeated emphasis on minimal punishment likely prejudiced Blair. The combination of revealing that the marijuana charge was a misdemeanor and allowing the prosecutor’s comments in closing likely caused jurors to err on the side of conviction precisely because they believed the consequences to Blair would be minimal. ¶17 The State resists this conclusion by advancing a twofold argument. First, the State asserts that mention of the marijuana count’s offense classification was not harmful because Blair admitted guilt on that charge. Second, the State argues that the prosecutor’s improper statement that the “worst things that [could] happen” to Blair if found guilty of possession of methamphetamine was “a fine,” “a couple of days in jail,” or taking “some sort of course” was not harmful because “evidence that Blair possessed the methamphetamine and paraphernalia was substantial,” meaning that there was not a reasonable likelihood that Blair would have been acquitted even in the absence of the mention of potential penalties. 3. The methamphetamine possession was charged as a third- degree felony and carried a maximum sentence of five years in prison and a $5,000 fine. See Utah Code §§ 76-3-203(3), -301(1)(b). Moreover, the conviction would carry the stigma associated with that label. 20240975-CA 8 2026 UT App 162  State v. Blair ¶18 We disagree with this representation of the strength of the State’s case. The evidence against Blair on the methamphetamine charge was not overwhelming. “In analyzing the potentially prejudicial effect of a prosecutor’s comments, we look at the evidence of the defendant’s guilt. 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.” Gallegos, 2018 UT App 112, ¶ 36 (cleaned up). ¶19 Here, the State built its case on a theory that Blair had constructively possessed the methamphetamine. Proving that a defendant constructively possessed drugs requires the State to establish “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 [it].” See State v. Workman, 2005 UT 66, ¶ 31, 122 P.3d 639. Whether a sufficient nexus exists “depends upon the facts and circumstances of each case.” Id. (cleaned up). Courts consider several factors in making this determination, “including the following: (a) ownership or occupancy of the residence or vehicle where the drugs were found; (b) the presence of the defendant at the time the drugs were found; (c) the defendant’s proximity to the drugs; (d) previous drug use; (e) whether the defendant made incriminating statements or exhibited incriminating behavior; and (f) the presence of drugs in a specific area where the defendant had control.” State v. Gallegos, 2020 UT App 162, ¶ 19, 479 P.3d 631 (cleaned up). However, “many of these factors, by themselves, are insufficient to establish the requisite nexus.” State v. Gonzalez-Camargo, 2012 UT App 366, ¶ 17, 293 P.3d 1121 (cleaned up). And although these factors can help guide a court’s analysis, the real question that must be answered in determining constructive possession is whether there are facts that “permit the inference that the accused intended to use the drugs as his or her own.” State v. Fox, 709 P.2d 316, 319 (Utah 1985); see also State v. 20240975-CA 9 2026 UT App 162  State v. Blair Layman, 1999 UT 79, ¶ 15, 985 P.2d 911 (cautioning against “mechanically” applying the above-noted factors). ¶20 In this case, while officers found methamphetamine inside or near a tackle box that Blair admitted he owned and while Blair at least occupied the house in which the methamphetamine was found, Blair was “handcuffed in a police car when the drugs were found inside the garage.” Because Blair wasn’t even in the building when the drugs were found, the presence and proximity factors only weakly support Blair’s possession of methamphetamine. Nor was there any evidence that Blair had actually used any of the methamphetamine that he allegedly kept inside or near the tackle box. Moreover, Blair points out that Son pled guilty to possessing the very same methamphetamine that was in the tackle box. While Blair admitted that the marijuana was his, he insisted that the methamphetamine belonged to Son. ¶21 Some of the factors enumerated above, see ¶ 19, certainly suggested constructive possession, but these factors also incriminated Son as the possessor. At the very least, we cannot say that these factors so strongly supported Blair’s constructive possession that the prejudicial effect of revealing the potential punishments was overcome. ¶22 Moreover, the prosecutor’s improper remarks did not occur in a vacuum, nor can they be dismissed as an inadvertent slip of the tongue. Rather, the issue of punishment was improperly injected at both the inception and the conclusion of the trial. By bookending the proceedings with these conceded errors, punishment remained front and center in the jurors’ minds throughout the trial. These statements mutually reinforced one another, trivializing the true gravity of a conviction. Even more egregiously, the prosecutor framed punishment not as a penal sanction but as a beneficial intervention—an educational opportunity for Blair to address his substance use. In doing so, the prosecutor improperly led the jury to believe that returning a 20240975-CA 10 2026 UT App 162  State v. Blair guilty verdict was not an act of condemnation but a kind of favor to Blair. ¶23 To summarize our conclusions, the district court committed obvious error when it informed the jury that the marijuana charge was a class A misdemeanor and when it did not interrupt the prosecutor’s musings during closing argument about the relatively minor punitive consequences of conviction on the charges. What crossed the line here was the prosecutor essentially reassuring the jury that Blair would receive lenient treatment if convicted. This representation of the sentencing consequences as minimal was obviously designed to make the jury more willing to convict. And because the prosecutor’s dismissive comments about punishment inclined the jury to convict based on an implied assurance that Blair would get a mere slap on the wrist, so to speak, we have little trouble concluding that he was prejudiced by the admittedly improper remarks, especially when coupled with the court’s own error of divulging the level of the marijuana charge and with the less-than- overwhelming evidence of constructive possession. Accordingly, we vacate Blair’s conviction for possession of methamphetamine and remand the matter for a new trial. II. Guidance on Remand: Rule 404(b) Evidence ¶24 Our above determination that a new trial is required makes it unnecessary to address the other issue on appeal. However, we choose to provide guidance on the admission of the other-acts evidence because that issue is likely to arise on remand. See State v. James, 819 P.2d 781, 795 (Utah 1991) (“Issues that are fully briefed on appeal and are likely to be presented on remand should be addressed by this court.”); see also State v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867 (stating that when there are additional issues on appeal that are likely to arise on remand, we may “exercise our discretion to address those issues for purposes of providing guidance on remand”). 20240975-CA 11 2026 UT App 162  State v. Blair ¶25 Rule 404(b) of the Utah Rules of Evidence bars the introduction of “[e]vidence of a crime, wrong, or other act” to the extent it is offered “to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” Utah R. Evid. 404(b)(1). Nonetheless, the next provision in the rule allows for the admission of the other-acts evidence to the extent it is offered to prove, as relevant here, “intent.” Id. R. 404(b)(2). But before the evidence may be admitted, it must come out on the right side of a three-part test: it must be (1) “relevant to” (2) “a proper, non-character purpose,” and (3) it must “not pose a danger for unfair prejudice that substantially outweighs its probative value.” State v. Green, 2023 UT 10, ¶ 64, 532 P.3d 930 (cleaned up); accord State v. Killpack, 2008 UT 49, ¶ 45, 191 P.3d 17. ¶26 A prior conviction for a similar offense is obviously relevant. See Utah R. Evid. 401 (providing that “[e]vidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action”); State v. Thornton, 2017 UT 9, ¶ 61, 391 P.3d 1016 (explaining that “[r]elevance is a low bar” under rule 401). Instead of relevance, the focus here is on whether the prior-conviction evidence was offered for a non- propensity purpose. ¶27 On this front, State v. Gallegos, 2020 UT App 162, 479 P.3d 631, is dispositive because it has a very similar fact pattern. There, prison guards found a shank in a shoe in the cell that the defendant, Gallegos, shared with another inmate. Id. ¶ 2. Gallegos and the cellmate both initially denied any knowledge of the shank whatsoever, but they later told prison officials that the shank belonged to Gallegos. Id. ¶ 3. After the State charged Gallegos with possession of a dangerous weapon by a restricted person, however, the two men then changed their stories and claimed that it belonged to the cellmate. Id. ¶ 4. At trial, the State advanced the theory that Gallegos had constructively possessed the shank. Id. 20240975-CA 12 2026 UT App 162  State v. Blair ¶ 18. To show that Gallegos had an “intent to possess” the shank, the State moved to admit evidence that he had previously “been found to be in possession of a similar shank.” Id. ¶¶ 5, 31. Over Gallegos’s objection, the court admitted the evidence. Id. ¶¶ 5–6. On appeal, we concluded that the other-acts evidence of the prior shank possession was inadmissible because there was not “a non- propensity pathway through which that evidence helps prove intent to possess.” Id. ¶ 34. We reasoned that “Gallegos’s intent— in a mens rea sense—was never at issue in the case.” Id. ¶ 32 (cleaned up). Instead, “Gallegos’s defense rested on the assertion that the shank was not his, but [his cellmate’s]; his argument was that he did not possess the shank at all, not that he possessed the shank with less-than-criminal intent.” Id. And then we reached this conclusion: In this case, the only way in which “intent” is relevant is as a part of the constructive possession test—whether Gallegos had the intent to exercise dominion and control over the shank in question. But in this context, “intent” refers simply to possession. The State seeks to admit the evidence to demonstrate that, because Gallegos once possessed a shank on a previous occasion, it is more likely that he had “intent to” possess one on this occasion. But this boils down to nothing more than a propensity inference. Id. ¶ 33 (emphasis added) (cleaned up). We observed that “if proof of intent is merely a ruse, and the real effect of prior misconduct evidence is to suggest a defendant’s action in conformity with alleged bad character, the ruse is insufficient and the evidence should not be admitted.” Id. ¶ 34 (cleaned up). ¶28 The facts here support the same conclusion. Like Gallegos, Blair claimed the contraband belonged to another party who shared access to a common space. And the State sought to 20240975-CA 13 2026 UT App 162  State v. Blair introduce prior-act evidence to show that Blair—like Gallegos— had an “intent to possess” the contraband. We rejected this type of reasoning in Gallegos, and we reject it again here. Accordingly, on remand, should the admission of Blair’s prior convictions come to the fore, they must be relevant to a true non-propensity purpose rather than using “intent” as a proxy for propensity to possess. 4 CONCLUSION ¶29 The court committed obvious error in reading the offense level of the marijuana charge to the jury and in not interrupting the prosecutor’s comments during closing argument about the consequences of a potential conviction in this case. Because Blair was harmed by the errors, we vacate his conviction for possession of methamphetamine and remand this matter for a new trial. 4. The same is true of motive as a non-propensity purpose here. Motive was never contested at trial. Hence, it cannot stand as a justification to introduce evidence of Blair’s prior convictions. 20240975-CA 14 2026 UT App 162