Opinion
1 CA-CR 12-0191
03-26-2013
STATE OF ARIZONA, Appellee, v. HUSSEIN MOHAMED ALI, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Andrew Reilly, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-110503-001
The Honorable Christine E. Mulleneaux, Commissioner
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Andrew Reilly, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Jeffrey L. Force, Deputy Public Defender
Attorneys for Appellant
Phoenix THOMPSON, Judge ¶1 Hussein Mohamed Ali (defendant) appeals his conviction for possession or use of the dangerous drug cathine (aka khat). For the reasons set forth below, we affirm defendant's conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Police Officers Daniel Safsten and Matthew Rundell observed defendant make an illegal left-hand turn on July 12, 2009 at 12:08 a.m. Officer Safsten had to brake in order to avoid a collision, and he immediately went in pursuit of defendant and initiated a traffic stop. While explaining the traffic violation and citation to defendant, Officer Safsten observed prominent abnormalities in the color and appearance of defendant's eyes that matched the characteristics of an individual that had recently ingested cathine from khat leaves. Officer Safsten told defendant he was free to go, but asked defendant for permission to search the vehicle. Defendant opened his door, exited the vehicle, and consented to the search. Officer Safsten immediately noticed dried green flecks and small stems all over the floorboard and seat that made him suspect there was khat in the vehicle. When he did not find any khat, Officer Safsten asked defendant if he had any khat in the car, which defendant denied. Officer Safsten asked defendant to open his mouth, and Officer Safsten noticed a strong green thick film on defendant's tongue and green flecks throughout his mouth. Based on Officer Safsten's experience, he recognized these characteristics as a result of recent consumption of khat. ¶3 Officer Safsten returned to the vehicle and continued the search. He found a plastic baggie partially concealed underneath the steering column of the vehicle that contained a green, leafy substance that Officer Safsten recognized as khat. When Officer Safsten pulled out the baggie, defendant "looked down, he put his hand on his face, and shook his head." Officer Safsten read defendant his Miranda warnings, and defendant stated he understood his rights and voluntarily agreed to speak with the officer. Defendant denied that the substance was khat, and instead stated it was something called "gaboa" that he got from a friend in Africa. A scientific analysis of the contents of the baggie confirmed the baggie contained 35.6 grams of cathine. ¶4 Defendant was charged with one count of possession or use of dangerous drugs, a class 4 felony. At trial, defense counsel made an Arizona Rule of Criminal Procedure 20 motion for acquittal arguing that the state did not present evidence that defendant knew the substance he possessed was actually cathine. The court denied the motion. Defendant did not testify. In closing arguments, the prosecutor stated:
As far as knowingly, it's important to note that the last sentence under that definition does not require any knowledge of the unlawfulness of the act or omission. You don't have to know - you don't have to be convinced that the defendant knew the substance was, in fact, khat and that it was illegal. You simply have to believe that he knowingly had it, that he knew that he had possessed that substance that was found in his car.The jury instructions defined possession of dangerous drugs as follows:
. . . .
Even if you want to give the defendant the benefit of the doubt and believe that he didn't know that it was khat and that it was illegal, once again, just look back in your jury instructions for knowingly. That's not a requirement. It's just that he knowingly possessed that substance. That substance happens to be illegal in Arizona. Because he knowingly possessed it, he's guilty.
A person commits possession or use of a dangerous drug requires proof of the following:¶5 The jury found defendant guilty as charged. Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) section 12-120.21 (2003).
1. The defendant knowingly possessed/used a dangerous drug and
2. The substance was in fact a dangerous drug. In Arizona, Cathine is classified as a dangerous drug.
You cannot find the defendant guilty of possession of dangerous drugs unless you find that the State proved each element of
possession of dangerous drugs beyond a reasonable doubt.
. . . .
"Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
Cathine is a central nervous system stimulant very similar to methamphetamines. The plant is grown in East Africa and the Arabian peninsula. United States v. Hussein, 351 F.3d 9, 11 (1st Cir. 2003).
Typically, khat users will chew on khat leaves and spit out the excess plant material.
Khat use leaves behind a thick green film on the user's tongue, and small, flaky pieces of khat get stuck in the user's teeth and mouth.
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DISCUSSION
¶6 On appeal, defendant argues the trial court erred in denying his Rule 20 motion because there was insufficient evidence that he knew the substance he possessed was an illegal dangerous drug. Defendant concedes that the state presented sufficient evidence of constructive possession of the baggie and its contents, and that the state did not have the burden to prove that defendant knew the baggie contained the specific drug khat or cathine. ¶7 We review the court's denial of a Rule 20 motion for an abuse of discretion. State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, 121 (App. 2001). We will reverse a conviction only if there is a complete lack of substantial evidence to support the charge. See id.; see also Ariz. R. Crim. P. 20(a). Substantial evidence is evidence that a reasonable jury could accept as sufficient to support a conclusion of guilt beyond a reasonable doubt. State v. Fulminante, 193 Ariz. 485, 493, ¶ 24, 975 P.2d 75, 83 (1999). In determining whether a court abused its discretion in denying a Rule 20 motion, we view the evidence in the light most favorable to upholding the verdict. State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Sharma, 216 Ariz. 292, 294, ¶ 7, 165 P.3d 693, 695 (App. 2007) (quoting State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996)). ¶8 We test the sufficiency of the evidence "against the statutorily required elements of the offense." State v. Pena, 209 Ariz. 503, 505, ¶ 8, 104 P.3d 873, 875 (App. 2005). To survive defendant's Rule 20 motion, the state had to present substantial evidence that defendant knowingly possessed or used a dangerous drug. See A.R.S. § 13-3407(A)(1) (2010); cf. State v. Salinas, 181 Ariz. 104, 106, 887 P.2d 985, 987 (1994) (state not required to prove that defendant knew which particular drug defined under our laws as a "dangerous" drug or "narcotic" drug he knew he possessed). Thus, the prosecutor incorrectly limited the issue to whether defendant knowingly possessed the baggie, when the state is actually required to show knowledge of the nature of the substance. The element of knowledge can be proven by evidence showing that the defendant was aware of the high probability that the package contained an illicit drug and that he acted with a conscious purpose to avoid learning the true nature of the substance. See State v. Diaz, 166 Ariz. 442, 445, 803 P.2d 435, 438, vacated in part on other grounds, 168 Ariz. 363, 813 P.2d 728 (1991). ¶9 The evidence at trial was that the baggie in defendant's possession contained the dangerous drug cathine. See A.R.S. § 13-3401(6)(b)(iv) (2010). Defendant contends that the only evidence of his knowledge of the nature of the substance was that he denied it was khat and instead called it "gaboa." However, the jury was not compelled to accept his self-exculpating statement to the police as true. Cf. State v. Cid, 181 Ariz. 496, 501, 892 P.2d 216, 221 (App. 1995) (jury was free to disbelieve a defendant's uncontroverted testimony at trial and find him guilty of the offense charged); State v. Carrillo, 128 Ariz. 468, 470, 626 P.2d 1100, 1102 (App. 1980) (jury could reasonably disbelieve defendant's testimony and infer from the evidence that defendant committed the charged offense). A criminal defendant's exculpatory "self-serving statements" made to a police officer are "highly suspect." State v. Barger, 167 Ariz. 563, 566, 810 P.2d 191, 194 (App. 1990) (citation omitted). Moreover, the state was not required to disprove every hypothesis of innocence. State v. Bullock, 26 Ariz. App. 149, 153, 546 P.2d 1158, 1162 (1976). ¶10 Furthermore, the record establishes that there was substantial evidence from which the jury could have inferred that defendant knew he possessed illicit drugs. Paramount among these was defendant's reaction when Officer Safsten pulled the baggie out of the vehicle. Defendant looked down, put his hand on his face, and shook his head. This response denotes a guilty conscience, a feeling of getting "caught in the act," rather than the reaction of someone who thinks he merely possesses something similar to chewing tobacco. Also included is the odd location of the baggie in the vehicle. If defendant thought he only possessed an innocuous drug, it seems strange that he would take the effort to conceal it in the steering column of the vehicle. In addition, although khat is not as well known as other drugs, defendant never asked what khat was nor what exactly Officer Safsten was looking for. Also compelling was that defendant knew how to use the drug. See Hussein, 351 F.3d at 18-20 (knowing possession of a controlled substance when a defendant claims a lack of knowledge of the identity of the drug possessed can be proven by his awareness of the drug's intended use). The physical indicators of khat use, with the stems and flakes strewn all over the seat and floorboard of the car, matched common behaviors of khat use. Finally, the state showed defendant admitted to receiving the contents of the baggie from a friend in Africa, where khat is openly and regularly chewed for its stimulating qualities. ¶11 Based on the totality of this circumstantial evidence, reasonable jurors could have inferred that defendant knew that the baggie contained an illicit drug. Whether a defendant acts "knowingly and intentionally" is a judgment of his credibility for the jury to make. State v. Fierro, 220 Ariz. 337, 339, ¶¶ 8-9, 206 P.3d 786, 788 (App. 2008). Any confusion concerning the concept of knowledge, raised by the prosecutor's statements, was cured by the trial court's instructions to the jury. State v. Marvin, 124 Ariz. 555, 557, 606 P.2d 406, 408 (1980). The trial court in this case did not abuse its discretion in denying defendant's Rule 20 motion and submitting this matter to the jury.
CONCLUSION
¶12 For the foregoing reasons, we affirm defendant's conviction and sentence.
______________________
JON W. THOMPSON, Judge
CONCURRING: ______________________
JOHN C. GEMMILL, Presiding Judge
______________________
DONN KESSLER, Judge