In Utah, under the theory of constructive possession, a person may be charged with possession of drugs/paraphernalia even though the drugs/paraphernalia were not found on their person. However, the prosecutor must prove that the person had the ability and intent to exercise control over the drugs/paraphernalia.

In deciding if a person constructively possessed drugs/paraphernalia, Utah Courts, consider:

• a person's incriminating statements;
• a person's suspicious or incriminating behavior;
• was the person selling the drugs/paraphernalia;
• and the person's proximity to the location where the drugs/paraphernalia were found.

Stated differently; to show constructive possession, the prosecutor must prove beyond a reasonable doubt that the drugs/paraphernalia were subject to the person's dominion and control, and that the person had the intent to exercise that control.

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The Utah Courts addressed the issue of constructive possession in State of Utah v. Cardona-Gueton and State of Utah v. Layman.

In State v. Cardona-Gueton¹, the Utah Court of Appeals declined to disturb the jury's verdict on the question of possession.

The relevant facts in Cardona-Gueton where as follows: police stopped defendant because they believed he was dealing drugs; the police found defendant's bicycle had two hidden compartments that contained drugs; and defendant admitted that the bicycle was his.

The court stated that possession, sufficient to sustain a conviction, need not be actual but may be constructive². "Constructive possession must be proven by a sufficient nexus between the defendant and the drugs to permit a factual inference that the defendant had the power and the intent to exercise control over the drugs." The evidence must also establish that the accused intended to use the drugs as his own. A non-exclusive list of evidentiary factors tending to link an accused with drugs in certain situation includes: incriminating statements; suspicious or incriminating behavior, sale of drugs, and proximity of defendant to the drugs.

The court reasoned that the jury's verdict was supported by evidence of possession in the form of incriminating statements, suspicious behavior, and proximity. Specifically, defendant was seen drinking from the bicycle's water bottle. The police approached defendant because he appeared to have been involved in a drug deal. When the police approached, defendant was sitting no more than six inches from the bicycle. When asked about the bicycle, defendant twice stated that it was his. Defendant only denied ownership of the bicycle after the hidden compartments were discovered by the police. Finally, the amount of drugs found in the bicycle was consistent with the police officers' observations of a suspected drug deal, as was the money found on defendant.

In State v. Layman³, the Utah Supreme Court held that there was not enough evidence to convict defendant under the theory of constructive possession for either possession of a controlled substance with intent to distribute or possession of paraphernalia.

The relevant facts in Layman were as follows: defendant was pulled over for a malfunctioning taillight; defendant's passenger had drugs and drug paraphernalia on her person; when the police asked defendant's passenger if he could search her bag defendant shook his head in a negative fashion for an unspecified length of time; and the police found methamphetamine, scales, syringes, and a spoon with residue on it in defendant’s passenger's bag.

The court stated that rather than looking to a list of factors, the general test is whether there was evidence of a sufficient nexus between the defendant and the drugs or paraphernalia to permit a factual inference that the defendant had the power and the intent to exercise over those drugs or paraphernalia.

The court reasoned that there was no evidence that defendant had actually possessed the methamphetamine or the paraphernalia; therefore, the only basis to convict defendant could have been that defendant constructively possessed the methamphetamine and paraphernalia. Moreover, the only fact tending to prove defendant's control over his passenger is that when the police requested to see the passenger's bag defendant shook his head in a negative fashion. Simply, this was not enough to show constructive possession of the drugs or the paraphernalia.

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¹State of Utah v. Cardona-Gueton, 2012 UT App 336
²State of Utah v. Layman, 1999 UT 79
³State of Utah v. Layman, 1999 UT 79