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State of Idaho v. Kirk Julliard Gosch

May 8, 2013

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
KIRK JULLIARD GOSCH,
DEFENDANT-APPELLANT.



Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge.

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

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

2013 Unpublished Opinion No. 487

Judgment of conviction and sentences for two counts of trafficking in marijuana, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Kirk Julliard Gosch appeals following his conviction for two counts of trafficking in marijuana. He asserts that the evidence was insufficient to support one count of trafficking, that the court made an erroneous evidentiary ruling at trial, and that the court abused its discretion at sentencing and at his Idaho Criminal Rule 35 hearing. For the reasons set forth below, we affirm.

I. BACKGROUND

In February 2010, law enforcement officers arranged for an informant to attempt to purchase marijuana from Gosch. On February 2, while officers observed, the informant met with Gosch in a parking lot. Gosch threw a bag into the informant's car and the informant gave Gosch cash. Shortly thereafter, the informant delivered a bag containing approximately one pound of marijuana to the officers.*fn1 The following day, law enforcement officers executed a search warrant at Gosch's residence and seized two vehicles regularly driven by Gosch and his girlfriend, Kasie Gordon.*fn2 Seven bags containing a total of 2.88 pounds of marijuana were discovered in Gosch's vehicle.

The State charged Gosch with one count of trafficking for possessing or delivering at least one pound of marijuana to the informant on February 2, and with a second count of trafficking in marijuana for the possession of at least one pound of marijuana on February 3. Idaho Code § 37-2732B(a)(1)(A). The State also alleged that Gosch was subject to a persistent violator sentence enhancement because he had previously been convicted of at least two felonies.

I.C. § 19-2514. At trial, the jury returned a guilty verdict on each of the two counts of trafficking in marijuana, and Gosch pleaded guilty to the persistent violator sentencing enhancement. The district court imposed concurrent unified sixteen-year sentences with six-year determinate terms for each count. Gosch subsequently moved for a reduction of his sentence pursuant to Rule 35, but the district court denied the motion. Gosch appeals.

II. ANALYSIS

A. Sufficiency of the Evidence

Gosch asserts that the evidence supporting count one was insufficient because the State did not prove that the bag of marijuana provided to the police by the informant was the same bag that Gosch delivered to the informant, and thus that the State failed to prove that Gosch possessed or delivered the marijuana. Appellate review of the sufficiency of the evidence is limited in scope. In assessing the sufficiency of evidence, we will uphold a judgment of conviction entered upon a jury verdict so long as there is substantial evidence upon which a rational trier of fact could conclude that the prosecution proved all essential elements of the crime beyond a reasonable doubt. State v. Severson, 147 Idaho 694, 712, 215 P.3d 414, 432 (2009). Evidence is substantial if a reasonable trier of fact would accept it and rely upon it in determining whether a disputed point of fact has been proven. Id. On appeal, this Court must view the evidence in the light most favorable to the prosecution. State v. Sheahan, 139 Idaho 267, 286, 77 P.3d 956, 975 (2003). Further, we will not substitute our own judgment for that of the jury on matters such as the credibility of witnesses, the weight to be given to certain evidence, and the reasonable inferences to be drawn from the evidence. Severson, 147 Idaho at 712, 215 P.3d at 432.

Gosch correctly asserts that the informant did not testify at trial, that no witness identified the bag the informant delivered to the police as the same bag that Gosch threw into the informant's car, and that the police did not search the bag for fingerprints. However, the State presented ...


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