Opinion
2 CA-CR 2012-0381
02-20-2013
THE STATE OF ARIZONA, Appellee, v. HUMBERTO ARVAYO, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Diane Leigh Hunt Tucson Attorneys for Appellee Nicole Farnum Phoenix Attorney 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Not for Publication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 Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20114089001
Honorable Howard Hantman, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Diane Leigh Hunt
Tucson
Attorneys for Appellee
Nicole Farnum Phoenix
Attorney for Appellant
KELLY, Judge. ¶1 Appellant Humberto Arvayo was convicted after a jury trial of possession of marijuana for sale, conspiracy to commit possession of marijuana for sale, and possession of drug paraphernalia. The trial court sentenced him to mitigated, concurrent prison terms, the longest of which are three years. On appeal, Arvayo argues there was insufficient evidence to sustain his convictions. We affirm. ¶2 We view the evidence in the light most favorable to upholding the jury's verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). On November 26, 2011, police officers were surveilling a residence as part of a narcotics investigation. Two of Arvayo's cousins lived at the house, and Arvayo spent considerable time and kept personal property there, including cars and automotive items. Arvayo and one of his cousins left the house in a vehicle driven by Arvayo. Police officers stopped the vehicle for a traffic violation, and a consensual search of the car revealed a small amount of marijuana. Police arrested Arvayo and his cousin. ¶3 Police officers also searched the residence pursuant to a warrant. In the attic, officers discovered packages of marijuana wrapped in tape, weighing a total of approximately twenty pounds. They also found two bags of marijuana and a scale in the kitchen. In an interview with police, although Arvayo denied any involvement with drug trafficking, he admitted his fingerprints or DNA might be on packages of drugs found in the house. He claimed that, possibly two days prior while moving furniture into the home, he had moved a bag containing taped packages of what he thought could be drugs and had picked up several packages when they spilled out of the bag. At trial, Arvayo testified, consistent with his interview, that while delivering furniture he had handled several duct-taped packages of what appeared to be drugs. ¶4 We review the sufficiency of the evidence de novo. State v. Cox, 217 Ariz. 353, ¶ 22, 174 P.3d 265, 269 (2007). "A conviction must be supported by substantial evidence of guilt." State v. Martinez, 226 Ariz. 221, ¶ 12, 245 P.3d 906, 908 (App. 2011). "Substantial evidence is more than a mere scintilla and is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). "The substantial evidence required for conviction may be either circumstantial or direct . . . ." State v. Anaya, 165 Ariz. 535, 543, 799 P.2d 876, 884 (App. 1990). And, "[t]o set aside a jury verdict based on insufficient evidence, it must clearly appear that, on any hypothesis, there is no sufficient evidence to support the conclusion reached by the jury." Martinez, 226 Ariz. 221, ¶ 12, 245 P.3d at 908-09. ¶5 Arvayo argues there is no evidence he possessed the marijuana or the related drug paraphernalia found at his cousin's house because he had no "dominion or control" over the residence and there is no evidence he was aware the marijuana found by police was in the home or that the marijuana he admitted moving two weeks earlier was "the same marijuana that the police found in the attic." To convict Arvayo of possession of marijuana for sale, the state had to demonstrate he possessed the marijuana. See A.R.S. § 13-3405(A)(2). "One who exercises dominion or control over property has constructive possession of it even if it is not in his physical possession." State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 13, 965 P.2d 94, 97 (App. 1998); see also A.R.S. § 13-105(34). Constructive possession exists when the prohibited property "is found in a place under [the defendant's] dominion and control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of the [property]." State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972). ¶6 A jury reasonably could conclude that the packages of marijuana police officers found in the house were the same packages Arvayo had admitted handling because Arvayo told police that he believed his fingerprints or DNA would be found on those packages. Further, his description of the packages was consistent with the packages of marijuana found in the home. The jury could reject Arvayo's innocent explanation for his handling of those packages and instead conclude he had handled them because he had participated in their possession for sale. See State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974) ("No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury."). There was additional evidence supporting that inference—when he was arrested, Arvayo was driving a vehicle that had been used to transport marijuana. And Arvayo was a frequent visitor to the residence and kept property there. ¶7 Even if we assume without deciding that the evidence, taken as a whole, does not establish Arvayo's constructive possession of the marijuana, the jury was given an accomplice instruction, and the evidence readily supports his guilt as an accomplice to possession of marijuana for sale. At a minimum, the jury could conclude he had assisted in moving the marijuana into the home or within the home. See A.R.S. § 13-303(A)(3) (accomplice "criminally accountable for the conduct of another"); § 13-301(2) (person is accomplice if person, "with the intent to promote or facilitate the commission of an offense," "[a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense"). ¶8 And, for the same reasons, we find sufficient evidence supported Arvayo's conspiracy conviction—the jury could infer from Arvayo's conduct the existence of an agreement between Arvayo and at least one of his cousins to possess marijuana for sale. See A.R.S. § 13-1003(A) (person guilty of conspiracy if, "with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense"). ¶9 For the foregoing reasons, Arvayo's convictions and sentences are affirmed.
Arvayo also claims the trial court erred in denying his motion for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. Our review is the same whether we address the denial of a Rule 20 motion or independently address the sufficiency of the evidence. See State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011); State v. Cox, 217 Ariz. 353, ¶ 22, 174 P.3d 265, 269 (2007).
Deoxyribonucleic acid.
Arvayo does not assert there was insufficient evidence that the marijuana discovered by police was for sale.
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__________________________
VIRGINIA C. KELLY, Judge
CONCURRING: ______________________________
GARYE L. VÁSQUEZ, Presiding Judge
__________________________
PHILIP G. ESPINOSA, Judge