Opinion
No. 1 CA-CR13-0681
09-23-2014
STATE OF ARIZONA, Appellee, v. DONALD LEE DEMPSEY, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Spencer D. Heffel Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CR 2011-149644-001
The Honorable Richard L. Nothwehr, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Margaret H. Downie joined. KESSLER, Judge:
¶1 Donald Lee Dempsey, Jr. ("Dempsey") filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), following his conviction of one count of possession of a dangerous drug for sale and two counts of misconduct involving weapons. Finding no arguable issues to raise, counsel requests this Court search the record for fundamental error. Appellant was given the opportunity to, but did not file a supplemental pro per brief. For the reasons that follow, we affirm Dempsey's convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 The day before the car crash leading to his arrest, Dempsey visited his friend, PD, and they smoked methamphetamine together. PD began to have seizures and was rushed to the hospital by ambulance. Dempsey went to the hospital where he took possession of PD's personal belongings including his cell phone, watch, and money. Dempsey stayed at the hospital with PD for a day and a half. Dempsey later took PD's car and crashed it into LB's house on his way to return it to PD's family. LB called 911 and saw Dempsey, the only occupant of the car, exit and walk around the yard until the police and fire department arrived.
¶3 Glendale Police Officer, EB, responded and was told by the fire department about a gun in the car. The fire department also told Officer DA about the gun when he arrived. Both Officers EB and DA saw a gun on the front floorboard of the car in plain view. Officer EB also saw a baggie with white crystalline substance just under the driver's seat. Exhibit 15 is a photo showing a bag of methamphetamine between the driver's front seat and the door frame. DA found a second baggie under the driver's seat during the inventory of the car. DA testified that both the bags were within reach of the driver. EB followed Dempsey to the hospital while other officers processed the crash scene.
¶4 Upon a further search of the car cabin, police found a cell phone, $165 in the back pocket of the front passenger seat, and a notebook on the front passenger floorboard. In the trunk, the police also found a black bag containing a scale, a pipe, and numerous plastic baggies.
¶5 Meanwhile, at the hospital, Officer EB advised Dempsey of his Miranda rights, which Dempsey stated he understood before responding to questions. EB also searched Dempsey and found $1209 in Dempsey's pocket. Dempsey told police he was driving alone, and he got the money from his friend PD.
Miranda v. Arizona, 384 U.S. 436 (1966).
At trial, EB testified Dempsey was not coerced, threatened, or promised anything in exchange for answering the questions. Dempsey did not contradict or rebut this testimony.
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¶6 Officer EB testified Dempsey admitted to using methamphetamine that day, but denied knowledge of any of the items found in the car. At trial, Dempsey admitted he smoked methamphetamine the day before but maintained the items the officers saw in the car must have come out from under the seats during the crash.
¶7 A criminalist testified the crystalline substances found throughout the car totaled 70.3 grams of methamphetamine of which 14 grams were from the two bags in the cab of the car. The criminalist testified these were usable amounts and typically the average quantity of a methamphetamine sample is less than a gram. There were no recoverable fingerprints on the bags.
¶8 Officer JS testified that based on his training and experience, the presence of the separate baggies of methamphetamine in the cab of a car, along with the money and denominations recovered, indicates the sale of drugs. He testified "that people that are delivering or selling drugs do separate it from all main portions of drugs. . . . When selling those drugs, a $20 increment is a very common increment to sell it in, or $40 or $60 or $80 increments."
¶9 At trial, Dempsey stipulated at the time of the crash he was a prohibited possessor due to a prior conviction in 2003. Dempsey also testified he forgot PD's money was in his pocket, and although he had used methamphetamine with PD and knew PD had drugs in the house, Dempsey had no knowledge about the drugs or any of the items in the car. Dempsey acknowledged the amount of methamphetamine in the car was a lot and not typical of an amount for personal use.
¶10 The jury found Dempsey guilty of Counts 1 through 3, possession of dangerous drugs for sale, misconduct involving weapons and misconduct involving weapons during the commission of a felony. The jury found him not guilty of the possession of paraphernalia charges, Counts 4 (baggies/scale) and 5 (pipe), both relating to the items found in the car trunk.
¶11 Dempsey filed a timely appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, as well as Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
STANDARD OF REVIEW
¶12 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also demonstrate the error caused prejudice. Id. at ¶ 20.
DISCUSSION
¶13 After careful review of the record, we find no grounds for reversal of Dempsey's convictions or sentences. The record reflects Dempsey had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Dempsey was present and represented by counsel at all critical stages of trial, was given the opportunity to speak at sentencing, and the sentences imposed were within the range for Dempsey's offenses. I. Sufficiency of the Evidence
¶14 In reviewing the sufficiency of evidence at trial, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). "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. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). As discussed below, there was sufficient evidence to support the guilty verdicts.
A. Count 1: Possession of Dangerous Drugs for Sale
¶15 To obtain a conviction for Count 1, possession of dangerous drugs for sale, the State must show: (1) the defendant knowingly possessed, (2) a dangerous drug (methamphetamine), (3) for purposes of sale. A.R.S. § 13-3407(A)(2) (Supp. 2013); see also A.R.S. § 13-3401(6)(c)(xxxiv) (Supp. 2013) (stating methamphetamine is a dangerous drug). There is sufficient evidence of Dempsey's constructive possession to affirm the judgment. "'Possess' means knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(34) (Supp. 2013). "'Possession' means a voluntary act if the defendant knowingly exercised dominion or control over property." A.R.S. § 13-105(35). Control has the ordinary meaning, to "have power over" as it is not defined by statute. State v. Cox, 214 Ariz. 518, 520, ¶ 9, 155 P.3d 357, 359 (App.), aff'd, 217 Ariz. 353, 174 P.3d 265 (2007). Control has been explained as the property being either on one's person or in one's custody, State v. Lautzenheiser, 17 Ariz. App. 531, 532, 498 P.2d 605, 606 (1972), or "hav[ing] power over" something, State v. Ottar, 232 Ariz. 97, 100, ¶ 9, 302 P.3d 622, 625 (2013). One constructively possesses property when the property is in one's "immediate and exclusive control." State v. Villalobos Alvarez, 155 Ariz. 244, 246, 745 P.2d 991, 993 (App. 1987). A defendant can be in constructive possession of contraband in a rental car when the defendant is in exclusive control of the vehicle. See State v. Bulgin, 845 A.2d 308, 311-12 (R.I. 2004). Constructive possession may be proved by circumstantial evidence. State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972); see also Cox, 214 Ariz. at 520, ¶ 10, 155 P.3d at 359.
¶16 There were two bags of methamphetamine in the cab of the car and Dempsey was the sole driver of the car, thus allowing the jury to conclude he had possession of the drugs in the cab of the car. Moreover, by statutory definition, methamphetamine is a dangerous drug. The quantity of the methamphetamine in the cab of the car in two separate baggies, along with the ledger, cash, and gun also tend to prove the possession was for sale.
¶17 The only factual issue is whether Dempsey knew about the drugs in the cab of the car. "[T]he evidentiary chain must so link defendant to the [property] that the inference he knew of its existence and its presence where found may be fairly drawn." Carroll v. State, 90 Ariz. 411, 413, 368 P.2d 649, 650 (1962); see also State v. Bailey, 757 S.E.2d 491, 494 (N.C. Ct. App. 2014) (noting a defendant may be in constructive possession of a weapon when in exclusive possession of a vehicle and was aware of the weapon's presence). Although Dempsey denied knowledge of or possession of the methamphetamine, the credibility of witnesses, and the weight and value to be given to witness testimony are jury determinations. See Cox, 217 Ariz. at 357, ¶ 27, 174 P.3d at 269. We will not "reweigh evidence or reassess the witnesses' credibility" on appeal. State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38, 312 P.3d 123, 133 (App. 2013).
¶18 A reasonable jury could conclude Dempsey knew of the drugs in the cab of the car because there was evidence at least one of the baggies of drugs was in plain sight in the cab. Dempsey testified he did not know the gun and the drugs were in the car and they must have become dislodged from their hiding places in the accident. However, the jury could have rejected this inference after evaluating the circumstantial evidence, including the baggie by the driver's seat, and assessing the credibility of the witnesses. The evidence was sufficient for the jury to infer the drugs and gun were visible while Dempsey was driving the car and therefore he knew about them. Additionally, Dempsey voluntarily took custody of the car PD had been using. Dempsey was the only occupant in the car and had complete control over the car and all that was in its cabin, including the gun and the two baggies containing methamphetamine (which was greater than a quantity for personal use). Also in the car cabin were the ledger, two cell phones, and the money. This circumstantial evidence in combination with the baggie by the side of the driver's seat and the jury evaluating witness credibility supports the reasonable inference Dempsey knowingly possessed the gun and drugs.
B. Count 2: Misconduct Involving Weapons
¶19 To obtain a conviction for Count 2, misconduct involving weapons, the State must show: (1) Dempsey knowingly possessed a deadly weapon, and (2) was a prohibited possessor at the time. See A.R.S. § 13-3102(A)(4) (Supp. 2013).
¶20 Dempsey stipulated he was a prohibited possessor at the time of the crash. The weapon was in plain sight on the driver's floorboard in the rental car of which Dempsey had constructive possession. As noted above, one constructively possesses property when the property is in one's immediate and exclusive control. The evidence must link the defendant in such a way that the jury can infer the defendant knew of its existence and location. Carroll, 90 Ariz. at 413, 368 P.2d at 650; see also Bailey, 757 S.E.2d at 494 (noting defendant may be in constructive possession of a weapon when in exclusive possession of a vehicle and aware of the gun's presence).
¶21 For the same reasons stated above, a reasonable jury could conclude that despite his claims to the contrary, Dempsey constructively possessed the gun. There is sufficient evidence to support Dempsey's conviction for misconduct involving weapons (prohibited possessor).
C. Count 3: Misconduct Involving Weapons
¶22 To obtain a conviction for Count 3, misconduct involving weapons in connection with a drug offense, the State must show: (1) Dempsey knowingly possessed a deadly weapon, (2) during the commission of a felony (possession of dangerous drugs for sale). See A.R.S. § 13-3102(A)(8); see also A.R.S. § 13-3407(A)(2), (B)(1).
¶23 Here, the evidence that supports Counts 1 and 2 also supports Dempsey knowingly possessed a deadly weapon he could have used while possessing methamphetamine for sale. Accordingly, there is sufficient evidence to support Dempsey's conviction for misconduct involving weapons (drug offense).
CONCLUSION
¶24 For the foregoing reasons, we affirm Dempsey's convictions and sentences. Upon the filing of this decision, counsel shall inform Dempsey of the status of the appeal and his options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Dempsey shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.