Opinion
No. 2 CA-CR 2017-0397
08-13-2018
THE STATE OF ARIZONA, Appellee, v. JOHNNY LEE ARCHIE, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, and Jairo Holguin, a student certified pursuant to Rule 38(d), Ariz. R. Sup. Ct., Tucson Counsel for Appellee Nicole Countryman, Phoenix Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pima County
No. CR20153841001
The Honorable James E. Marner, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General,
and Jairo Holguin, a student certified pursuant to
Rule 38(d), Ariz. R. Sup. Ct., Tucson
Counsel for Appellee
Nicole Countryman, Phoenix
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred.
EPPICH, Judge:
¶1 In this appeal from his conviction following a jury trial for possession of a deadly weapon by a prohibited possessor, Johnny Archie argues there was insufficient evidence to support his conviction. We affirm.
¶2 "We view the evidence in the light most favorable to sustaining the convictions." State v. Gay, 214 Ariz. 214, ¶ 2 (App. 2007). Archie, whose right to possess a firearm was revoked as a result of previous felony convictions, sold an AR-15 to a pawn shop. The state established those convictions by "pen pak" and also introduced an avowal by the clerk of the superior court that Archie's rights had not been restored. His name, fingerprint, and signature were on the pawn slip from the shop, and the owner identified Archie as the person who had sold the weapon. The slip included an avowal that the person signing was "the owner of the goods" or "authorized to enter into this . . . transaction on behalf of the owner of the goods."
¶3 At trial, however, a woman testified she had asked Archie to help her sell the weapon. She claimed to have carried it in her lap while they drove to the pawn shop, taken it into the shop, and placed it on the counter, at which point Archie "took over" the negotiation with the shop proprietor while she browsed nearby. She asserted Archie had "never even touched" the weapon, although he had directed her to unwrap it and manipulate a part of the weapon before entering the store. The jury found Archie guilty of possession of a deadly weapon by a prohibited possessor, and the trial court sentenced him to a mitigated 2.25-year prison term.
¶4 On appeal, Archie argues "no substantial evidence was presented from which the jury could determine that [he] possessed [the] gun" and the trial court therefore should have granted his motion pursuant to Rule 20, Ariz. R. Crim. P. A judgment of acquittal should be granted only when "there is no substantial evidence to support a conviction." Ariz. R.
Crim. P. 20(a); accord State v. Mathers, 165 Ariz. 64, 67 (1990). "'Substantial evidence' is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419 (1980). On appeal, we will not set aside the verdict unless it "clearly appear[s] that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316 (1987). We "review de novo whether there is substantial evidence to support a conviction." State v. West, 226 Ariz. 559, ¶ 19 (2011).
¶5 Evidence may be sufficient to support a conviction whether it is direct or circumstantial. See State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005). Thus, in determining whether there was substantial evidence to withstand a defendant's Rule 20 motion and whether there was sufficient evidence to support the conviction generally, courts do not distinguish between circumstantial and direct evidence. See State v. Stuard, 176 Ariz. 589, 603 (1993) ("Arizona law makes no distinction between circumstantial and direct evidence.").
¶6 To convict Archie of possessing a deadly weapon as a prohibited possessor the state was required to prove that he had knowingly "[p]ossess[ed] a deadly weapon or prohibited weapon [as] a prohibited possessor." A.R.S. § 13-3102(A)(4). To establish possession, it is not necessary to prove actual physical possession; it is sufficient to show constructive possession by the exercise of dominion or control over the firearm. See State v. Gonsalves, 231 Ariz. 521, ¶ 9 (App. 2013). And such possession need not be exclusive, but may be exercised with another. Id. That the weapon was a deadly weapon and that Archie was a prohibited possessor were established as detailed above. And Archie's name and fingerprint on the pawn slip, along with the shop owner's identification, were sufficient circumstantial evidence of Archie's possession, either sole or joint, of the weapon.
¶7 Archie's argument—that the evidence was insufficient based on the testimony of the defense witness—is essentially an invitation for this court to reweigh the evidence presented at trial. But it was for the jury, not this court, to weigh the evidence presented and assess the credibility of the witnesses. See State v. Manzanedo, 210 Ariz. 292, ¶ 3 (App. 2005). And, because "reasonable minds could differ on the inferences to be drawn, the trial judge properly denied the Rule 20 motion." State v. Landrigan, 176 Ariz. 1, 5 (1993).
¶8 Therefore, we affirm Archie's conviction and sentence.