Opinion
No. 2 CA-CR 2017-0169
03-20-2018
THE STATE OF ARIZONA, Appellee, v. CHRISTOPHER DELGADO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris 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NOT FOR PUBLICATION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 Greenlee County
No. CR201600092
The Honorable Monica L. Stauffer, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Christopher Delgado was convicted of possession of drug paraphernalia and tampering with physical evidence. The trial court imposed consecutive prison terms totaling two years. On appeal, Delgado argues the state presented insufficient evidence to support his convictions. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Delgado's convictions. See State v. Musgrove, 223 Ariz. 164, ¶ 2 (App. 2009). In September 2016, Clifton Police Officer Clark initiated a traffic stop of a vehicle driven by Michael Pena because the license plate light was not working. After conducting a records check, which revealed Pena had an outstanding warrant, Clark placed him under arrest and put him in the back of his patrol car behind the driver's seat.
¶3 Delgado was the front-seat passenger in Pena's vehicle. When Delgado got out of the vehicle, he was holding a bottle of tea and an open bag of candy. Delgado consented to a search and informed Clark he had a lighter and eye drops. Delgado pulled a small piece of plastic out of one of his pockets, stating that "it was just garbage." During a pat down, Clark could feel "a lot more plastic inside of the pocket," so he asked Delgado if he would show it to him. When Delgado removed the plastic from his pocket, he bit into it and a white crystalline substance fell to the ground. Suspecting Delgado of methamphetamine possession, Clark handcuffed him and placed him in the back of his patrol car on the passenger side. Clark then found a glass smoking pipe in the bag of candy Delgado had been holding. Another officer arrived at the scene and transported Delgado to the police station, while Pena remained with Clark. Later that night, Clark searched the back seat of his patrol car and found a bag of heroin and a bag of methamphetamine under the passenger-side floorboard.
¶4 Delgado was charged with possession of a dangerous drug, possession of a narcotic drug, possession of drug paraphernalia, and tampering with physical evidence. A jury found him not guilty of the two drug-possession charges but convicted him of possession of drug paraphernalia and tampering with physical evidence. The trial court sentenced him as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶5 Delgado contends the trial court erred in denying his motion for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., because the state presented insufficient evidence of guilt. We review de novo the sufficiency of the evidence. State v. Snider, 233 Ariz. 243, ¶ 4 (App. 2013). In doing so, we view the evidence in the light most favorable to sustaining the jury's verdicts and resolve all inferences against the defendant. State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015).
Although Delgado moved for a judgment of acquittal before the trial court, he failed to make the specific arguments below that he now raises on appeal. Accordingly, we review for fundamental, prejudicial error. See State v. Rhome, 235 Ariz. 459, ¶ 4 (App. 2014); see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). However, a conviction based on insufficient evidence constitutes such error. Rhome, 235 Ariz. 459, ¶ 4.
¶6 A trial court "must enter a judgment of acquittal . . . if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). "Substantial evidence is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of [a] defendant's guilt beyond a reasonable doubt.'" State v. Sharma, 216 Ariz. 292, ¶ 7 (App. 2007), quoting State v. Mathers, 165 Ariz. 64, 67 (1990). "If reasonable [persons] may fairly differ as to whether certain evidence establishes a fact in issue, then such evidence must be considered as substantial." State v. Davolt, 207 Ariz. 191, ¶ 87 (2004), quoting State v. Rodriguez, 186 Ariz. 240, 245 (1996). Substantial evidence may be either direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005).
¶7 Delgado first argues the state presented insufficient evidence to support his conviction for possession of drug paraphernalia because the glass pipe was broken, as it was missing a bowl and consisted only of a stem. He maintains the pipe thus did not meet the definition of drug paraphernalia. Possession of drug paraphernalia occurs when a person "use[s], or . . . possess[es] with intent to use, drug paraphernalia to . . . pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a[n illegal] drug." A.R.S. § 13-3415(A). "'Drug paraphernalia' means all equipment, products and materials of any kind which are used, intended for use or designed for use in . . . packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a[n illegal] drug." § 13-3415(F)(2). In determining whether an object is drug paraphernalia, we must consider, among other things, "[t]he existence of any residue of drugs on the object," "[t]he proximity of the object to drugs," and "[s]tatements by an owner." § 13-3415(E).
¶8 Here, the pipe, although broken, had burned residue on its stem, and Clark testified the residue "indicated to [him] that the stem could have been used to burn that drug and ingest it through the lungs." Clark also testified that eye drops and a lighter—both of which Delgado had in his possession—are indicative of drug use. In addition, when Clark asked Delgado to remove the items from his pocket, a white crystalline substance that Clark suspected was methamphetamine fell to the ground. Delgado gave conflicting statements about the substance, initially responding that it was "nothing" and later claiming it was crushed crackers. Based on these factors, we conclude the state presented sufficient evidence that the broken pipe constituted drug paraphernalia. See § 13-3415(E), (F)(2). In addition, Clark testified he had found the pipe in the open bag of candy Delgado was holding as he exited Pena's vehicle. See A.R.S. § 13-105(34) (definition of possess). Thus, viewing the evidence in the light most favorable to upholding the conviction, we conclude the state presented evidence that reasonable persons could accept as sufficient to support a conclusion of Delgado's guilt beyond a reasonable doubt. See Snider, 233 Ariz. 243, ¶ 4.
Clark explained that he was unable to recover any of the white crystalline substance for testing because when it fell to the ground it mixed with the dirt.
¶9 Delgado next argues the state presented insufficient evidence to support his conviction for tampering with physical evidence. He points out that Clark searched him twice but found no drugs, suggesting that the bags of heroin and methamphetamine found in the patrol car did not belong to him. Delgado also contends that Pena, or someone else, could have hidden the drugs. Tampering with physical evidence occurs when a person, "with intent that it be used, introduced, rejected or unavailable in an official proceeding which is then pending or which such person knows is about to be instituted, such person . . . [d]estroys, mutilates, alters, conceals or removes physical evidence with the intent to impair its verity or availability." A.R.S. § 13-2809.
Delgado contends "absolutely no evidence" of tampering with physical evidence exists because "Clark did not testify that he ever observed [Delgado] break the pipe." However, as the state points out, the pipe was not the basis of this charge. And, as described below, the state otherwise presented sufficient evidence of this offense. See State v. Perez, 141 Ariz. 459, 464 (1984) (we must affirm trial court if legally correct for any reason). We therefore do not address this argument further. --------
¶10 Here, regarding the first pat down, Clark said he "felt something" in Delgado's pocket, and Delgado in fact pulled out several pieces of plastic with a white crystalline substance resembling methamphetamine. As to the subsequent search, Clark admitted that he performed a "patdown" but "not as well as [he] should have because [Delgado] was detained at that point." Clark further testified he did not think Pena could have hidden the drugs based on Pena's location in the car behind the driver's seat but Delgado could have. In addition, Clark explained that he searched the patrol car at the end of every shift and "every time after someone's been in the[re]." A determination of Clark's credibility was within the province of the jury, not this court. See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013). Thus, although the evidence was circumstantial, it was nonetheless sufficient evidence to support a conclusion of Delgado's guilt beyond a reasonable doubt. See Snider, 233 Ariz. 243, ¶ 4.
Disposition
¶11 For the reasons stated above, we affirm Delgado's convictions and sentences.