Opinion
No. 1 CA-CR 18-0218
07-18-2019
STATE OF ARIZONA, Appellee, v. LANDON LEN FERGUSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jennifer L. Holder Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Rena P. Glitsos Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2016-147154-001
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge James B. Morse Jr. and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 Defendant Landon Len Ferguson (Ferguson) appeals from his convictions and sentences following a jury trial. Ferguson asserts that the trial court erred in denying his request for a Willits jury instruction pursuant to State v. Willits, 96 Ariz. 184 (1964). He also asserts that the trial court erred in not holding sua sponte a voluntariness hearing and that there is insufficient evidence to support his conviction. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 On June 23, 2016 Ferguson was spotted by Detective Brandon Monnens, a detective with the Mesa Police Department's Street Crimes Unit, honking his horn and picking up a female who was walking down the street. Detective Monnens suspected that prostitution or drug activity was occurring and ran Ferguson's license plate. Monnens then discovered that Ferguson was driving on a suspended license. Monnens contacted fellow Detectives Torres and Rodriguez, who were in the area, and they conducted surveillance on Ferguson, following him to a motel.
¶3 Once Ferguson exited the car, the detectives approached him while wearing their police vests. As soon as Ferguson saw the detectives he put his hand in his pocket, walked around to the passenger side of the car, and began moving things around in the car. The detectives announced they were police and ordered Ferguson to show his hands, but he ignored the commands. When Ferguson saw that the detectives had drawn their weapons, he showed his hands and laid face-down on the ground, at which point Detectives Torres and Rodriguez arrested him for driving on a suspended license.
¶4 As Detective Rodriguez was kneeling to affix the handcuffs, he saw a small baggie containing what appeared to be methamphetamine just underneath the car. Detective Torres got Ferguson off the ground and walked him away from the car and read him his Miranda rights; when asked, Ferguson indicated he understood those rights. Detective Rodriguez retrieved the baggie from underneath the car and showed the baggie to Ferguson and Detective Torres. The detectives asked Ferguson multiple times if the baggie was his. Detective Torres testified that he did not make any threats or promises to Ferguson, and that he believed Ferguson chose to speak to him even though he knew he had a right to remain silent. Initially, Ferguson denied any knowledge, but eventually admitted the baggie was his, told the detectives the quantity of drugs it contained, when he had last used the drugs, and when he planned on using them again. The detectives did not make a detailed report or take photographs, video, or audio recordings at the scene. Later, Detective Torres spoke to employees at the motel, and learned that the surveillance cameras at the motel did not record footage but instead provided a live stream to the motel office.
¶5 Ferguson was convicted of possession of a dangerous drug, a class four felony. The court then found that the state had proved Ferguson's two historical prior felony convictions and sentenced him as a category-three repetitive offender to a term of eight years' imprisonment. Ferguson timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1)(2019), 13-4031(2019), and -4033(A)(2019).
We cite the current version of any statute unless the statute was amended after the pertinent events and such amendment would affect the result of this appeal.
DISCUSSION
I. Willits Instruction
¶6 On appeal Ferguson first argues that the trial court erred by not providing a Willits instruction to the jury. He claims that the detectives failed to do a thorough investigation by not inquiring as to whether anyone was watching the live feed during his arrest, and he was therefore entitled to a Willits instruction. We disagree.
¶7 We review a trial court's ruling regarding a Willits instruction for an abuse of discretion. State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). A defendant is entitled to a Willits instruction when the state loses, destroys, or fails to preserve evidence that could have been exculpatory for the defendant. See Willits, 96 Ariz. at 191. The state's destruction of, or failure to retain, evidence does not automatically entitle a defendant to a Willits instruction. State v. Murray, 184 Ariz. 9, 33 (1995). In order to receive a Willits instruction a defendant must show that "(1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." Glissendorf, 235 Ariz. at 152, ¶ 18 (citation omitted). Furthermore, a defendant is not entitled to a Willits instruction just because a "more exhaustive investigation could have been made." Murray, 184 Ariz. at33.
¶8 Here, rather than the situation whether the evidence no longer exists, those employees of the hotel were available to both parties and therefore not subject to a Willits instruction. "Indeed, in almost every case prosecuted, the claim can be made that the investigation could have been better. We do not believe that a failure to pursue every lead . . . will require a Willits instruction." State v. Willcoxson, 156 Ariz. 343, 346 (App. 1987). Instead, where witnesses are not in the exclusive control of the state, the "failure of the state to obtain the identity of and/or interview these witnesses [does] not entitle appellant to a Willits or missing person instruction." State v. Walters, 155 Ariz. 548, 551 (App. 1987). Furthermore, Ferguson has failed to show that even if someone were watching the live feed, the evidence would have tended to exonerate him. He simply argues that if someone was watching the video they could have corroborated his testimony. The trial court correctly determined that such evidence was far too speculative to warrant a Willits instruction. II. Voluntariness Hearing
¶9 Ferguson next argues that the court erred by not sua sponte conducting a voluntariness hearing. He asserts that the court "was on notice that voluntariness was an issue, despite no request for a hearing by the defense," because the court gave a voluntariness instruction as part of the final jury instructions. He argues that jury instructions must be based on some theory that is supported by the facts in the case, and cites to Chavez v. Pima County, 107 Ariz. 358, 360 (1971).
¶10 In Chavez, plaintiff collided with a highway abutment and sued defendant for negligently maintaining the roadway. Id. Defendant argued that plaintiff had driven that portion of the road numerous times, should have known about the abutment, and therefore assumed the risk. Id. The trial court gave a jury instruction as to plaintiff's assumption of risk. Id. This court and the Arizona Supreme Court agreed with plaintiff that the assumption of risk instruction was improper. Id. There was no evidence presented that plaintiff did know about the abutment; without that knowledge, the court cannot give an instruction that requires such knowledge. Id.
¶11 Ferguson does not develop his argument, but it appears he wants us to conclude that because the trial court gave a voluntariness instruction, it recognized that there was a voluntariness issue. Under this assumption, appellant argues that the trial court abused its discretion for failing to hold sua sponte a voluntariness hearing. Ferguson attempts to support his argument by citing to State v. Bush, 244 Ariz. 575, 590, ¶ 62 (2018). In Bush, the Arizona Supreme Court held that A.R.S. § 13-3988(a) does not create a right to a sua sponte voluntariness hearing (noting that the court does have discretion, but is not required, to sua sponte order a hearing). Id. Additionally, there is no constitutional right to a voluntariness hearing where a timely objection is not made. See Wainwright v. Sykes, 433 U.S. 72, 86 (1977). On these facts as stated above, the trial court did not abuse its discretion, and the failure of the defense counsel to preserve the issue reduces the standard for review to fundamental error. Ariz. R. Evid. 103(a), (e); State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). We do not find fundamental error in the court's decision to not hold sua sponte a voluntariness hearing. III. Sufficiency of the Evidence
A.R.S. § 13-3988(A) states, in relevant part, that before a confession is received in evidence, the trial judge shall determine any issue as to voluntariness. --------
¶12 Appellant next argues that there was not sufficient evidence to support his conviction because "the state failed to prove beyond a reasonable doubt that he knowingly actually or constructively possessed the methamphetamine that was found under his truck."
¶13 We review claims of sufficiency of the evidence de novo. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011). "To set aside a jury verdict for insufficient evidence it must clearly appear 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 do not reweigh the evidence, but instead view the facts in the light most favorable to sustaining the jury verdict, and we resolve all inferences against the appellant. State v. Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).
¶14 To convict a person for possession of a dangerous drug, the state must prove that the person had "either actual physical possession or constructive possession with actual knowledge of the presence of the [dangerous drug]." State v. Teagle, 217 Ariz. 17, 27, ¶ 41 (App. 2007) (citation omitted). Constructive possession can be demonstrated by showing the defendant exercised dominion and control over the drug itself, or the location where the substance was found. Id. "However, a person's mere presence at a location where narcotics are found is insufficient to establish knowledgeable possession or dominion and control over narcotics." Id. at 27-28, ¶ 41 (citations omitted).
¶15 Sufficient evidence supports appellant's conviction. Because we find that the court did not fundamentally err by not sua sponte holding a voluntariness hearing, we may consider his confession in determining the sufficiency of the evidence. Ferguson not only admitted that the drugs were his, but he admitted that he had purchased and used the drugs that morning and was planning to use some more that evening. Additionally, when the detectives approached Ferguson, he immediately went to the passenger side of the car, where the drugs were found, and could be seen moving stuff around and with his hand in his pocket. Once Ferguson finally complied with the detectives' orders, the drugs were found a few inches away from Ferguson and within his reach. As such, there was sufficient evidence to convict Ferguson.
CONCLUSION
¶16 For the foregoing reasons we affirm Ferguson's convictions and sentence.