Opinion
No. 2 CA-CR 2019-0035
12-04-2019
THE STATE OF ARIZONA, Appellee, v. JENNIFER DURAN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, Tucson 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201602140
The Honorable Jason R. Holmberg, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Jennifer Duran appeals, following a jury trial, from her convictions and sentences for one count of possession of a dangerous drug, two counts of possession of a narcotic drug, and one count of possession of drug paraphernalia. Because the trial court did not err by denying her motion for judgment of acquittal, we affirm.
Factual and Procedural Background
¶2 In August 2016, a Casa Grande police officer saw a car driving with a nonfunctional license plate light and attempted to initiate a traffic stop. The car did not immediately pull over, and the officer observed "a lot of movement in the vehicle" and "a lot of fidgeting" near "the center of the console area of the vehicle." When the car eventually came to a stop, the officer identified the driver and Duran, who was a passenger.
¶3 Another officer approached the passenger side of the vehicle and observed a bag of marijuana between the passenger seat and the doorframe. After arresting the driver and removing Duran from the car, the officers found in the cup holder of the center console a small plastic baggie with a black clover design containing methamphetamine. They also found a small, white box containing "burnt marijuana and loose marijuana" upon which Duran's fingerprint was later identified. A small floral-patterned valise in the backseat also contained a jar of marijuana.
¶4 Another bag was found on the floorboard of the front passenger seat where Duran had been seated. The arresting officer, believing it to be Duran's, asked if she wanted "her purse" to go with her to the station; she answered affirmatively and did not deny it was hers. Inside the purse were several items, including a small, black case with a combination lock. After that case was eventually opened, officers found inside a "small amount of methamphetamine," "multiple small baggies" commonly used for packaging methamphetamine with the same black clover design as the baggie from the console, a substance that tested positive for cannabis, "some lighters," and some hydrocodone pills.
¶5 Duran was charged with possession of a dangerous drug (methamphetamine), possession of marijuana, two counts of possession of a narcotic drug (hydrocodone and cannabis), and three counts of possession of drug paraphernalia for methamphetamine-related items, the hydrocodone baggie, and the jar of marijuana. On the second day of trial, the court granted the state's request to dismiss the hydrocodone-related and marijuana-related paraphernalia charges. The jury acquitted Duran of the marijuana possession charge but found her guilty of the remaining charges. The court sentenced her to concurrent prison terms, the longest of which is four years. We have jurisdiction over Duran's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Motion for Judgment of Acquittal
¶6 Duran's sole argument on appeal is that the trial court erred by denying her motion for judgment of acquittal on all counts pursuant to Rule 20, Ariz. R. Crim. P. We review de novo a trial court's ruling on a Rule 20 motion. State v. West, 226 Ariz. 559, ¶ 15 (2011). That rule provides that after the close of evidence, "the court must enter a judgment of acquittal on any offense charged in an indictment . . . if there is no substantial evidence to support a conviction." Ariz. R. Crim. P. 20. Substantial evidence is that which a reasonable jury could accept as sufficient to support a conclusion of guilt beyond a reasonable doubt. State v. Fulminante, 193 Ariz. 485, ¶ 24 (1999). There is "no distinction between the probative value of direct and circumstantial evidence." State v. Bible, 175 Ariz. 549, 560 n.1 (1993). On appeal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Cox, 214 Ariz. 518, ¶ 8 (App. 2007) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
¶7 Duran argues the state failed to establish the possession element of each crime. See A.R.S. §§ 13-3401(6)(c)(xxxviii), (20)(w), (20)(ttt), (21)(n), 13-3407(A)(1) (possession of dangerous drugs), 13-3408(A)(1) (possession of narcotic drugs), 13-3415 (possession of drug paraphernalia). To "possess" means "knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(34). Possession may be actual or constructive, and constructive possession exists when the contraband "is found in a place under [the defendant's] dominion [or] control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of the [property]." Cox, 214 Ariz. 518, ¶ 10 (alterations in Cox) (quoting State v. Villavicencio, 108 Ariz. 518, 520 (1972)). Under a theory of constructive possession, multiple people may possess the contraband, as possession need not be "[e]xclusive, immediate and personal." State v. Gonsalves, 231 Ariz. 521, ¶ 9 (App. 2013) (alteration in Gonsalves) (quoting State v. Carroll, 111 Ariz. 216, 218 (1974)).
¶8 Duran contends "there is nothing in this record to show that the bag" containing the locked case with hydrocodone pills, a bag of methamphetamine, a vial of cannabis, and drug paraphernalia "belonged to [her]." She argues her fingerprints were not on the case and she did not know the combination to open it. The bag containing the case with the contraband, however, was found on the front passenger floorboard, where Duran had been sitting, and Duran did not disclaim ownership of the bag when asked if she wanted "her purse" to accompany her to the police station. Moreover, it was not necessary for Duran to be able to open the case to exercise knowing dominion or control over its contents. See State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 18 (App. 1998) ("[A] person can exercise dominion and control over property without having 'access' to it."); see also State v. Teagle, 217 Ariz. 17, ¶ 41 (App. 2007) ("Constructive possession can be established by showing that the accused exercised dominion and control over the drug itself, or the location in which the substance was found.").
Although Duran claims she did not "have the combination to the locked" case with the drugs and paraphernalia in it, the record only reflects the officers were unable to open it at the scene after asking her for the combination; there is no evidence Duran did not know the combination. --------
¶9 Duran also argues "[t]here is not enough evidence to show that she exercised dominion and control over the baggie" of methamphetamine found in the center console because she "was a passenger riding in a car" that was not hers and her fingerprints were not found on the baggie. While Duran is correct that a person's "mere presence" in proximity to contraband is insufficient to establish a knowing exercise of dominion or control over the contraband, see State v. Curtis, 114 Ariz. 527, 528 (App. 1977), there was additional evidence supporting the jury's conclusion that she knowingly possessed the methamphetamine.
¶10 The methamphetamine was plainly visible in the cup holder of the center console directly to the left of where Duran had been sitting, and Duran's fingerprint was on a white box containing marijuana also in that console. Additionally, the baggie containing the methamphetamine bore a distinctive pattern that matched baggies found in Duran's handbag on the passenger floorboard. Because a conviction may be supported by circumstantial evidence alone, see State v. Burton, 144 Ariz. 248, 252 (1985), we conclude sufficient evidence supports Duran's convictions for possession of the drugs and paraphernalia here. See A.R.S. §§ 13-3407(A)(1), 13-3408(A)(1), 13-3415(A).
Disposition
¶11 Duran's convictions and sentences are affirmed.