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State of Idaho v. Jack Fransisco Gallegos

November 14, 2012

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
JACK FRANSISCO GALLEGOS, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Patrick H. Owen, District Judge.

The opinion of the court was delivered by: Gutierrez, Judge

2012 Unpublished Opinion No. 718

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Judgment of conviction for possession of a controlled substance with the intent to deliver and being a persistent violator, affirmed.

Jack Fransisco Gallegos appeals from his judgment of conviction entered upon jury verdicts finding him guilty of possession of a controlled substance with the intent to deliver and being a persistent violator. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

While driving a borrowed vehicle, Gallegos was stopped by an officer for speeding. The officer arrested Gallegos based on information received from dispatch. When conducting a pat-down of Gallegos, a second officer noticed Gallegos's shirt and pants were wet. Gallegos explained he had just spilled coffee on himself, an explanation that was consistent with the officer's observation that the wet spot was "very damp and also warm, as if the coffee had been fresh." The officer discovered a digital scale with white residue in Gallegos's pocket. A subsequent search of the vehicle yielded a baggie of marijuana found hidden near the stick shift.

Gallegos admitted the marijuana was his and stated he used the scales to weigh it. The officer also found an "extremely warm," almost full McDonald's cup of coffee in the driver's side cup holder, the only cup the officer found in the vehicle. Inside the cup was a glass pipe wrapped in electrical tape, which the officer testified was consistent with those used to smoke methamphetamine, and nine small baggies containing methamphetamine. Later, a note card was found in Gallegos's wallet, which appeared to be a drug ledger listing then-current methamphetamine prices.

Gallegos was charged with possession of a controlled substance with the intent to deliver (methamphetamine), Idaho Code § 37-2732(a); possession of a controlled substance (marijuana), I.C. § 37-2732(c); possession of drug paraphernalia, I.C. § 37-2734A; and being a persistent violator, I.C. § 19-2514. At trial, the following exchange occurred between the prosecutor and Detective Holtry, who interviewed Gallegos once he was brought to the station:

[Prosecutor]: [Detective Holtry]: [Prosecutor]: [Detective Holtry]: [Prosecutor]: [Detective Holtry]: [Prosecutor]: [Detective Holtry]: (Emphasis added).

And after you got through the initial just kind of where he was, did you start to investigate the substances found in his car?

I did. I asked him about the marijuana that was found. He said that it was his. I then asked him [about the digital scales] located at his ...


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