Opinion
No. 2 CA-CR 2017-0387
06-07-2018
THE STATE OF ARIZONA, Appellee, v. JAMES M. GUTIERREZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Jason Lewis, Assistant Attorney General, Phoenix 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NOT FOR PUBLICATION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. S1100CR201601942
The Honorable Lawrence M. Wharton, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Jason Lewis, Assistant Attorney General, Phoenix
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Brearcliffe and Judge Eppich concurred. ECKERSTROM, Chief Judge:
¶1 James Gutierrez appeals from his convictions and sentences for possession of a dangerous drug and drug paraphernalia. We affirm.
Factual and Procedural Background
¶2 One night in July 2016, an officer with the Superior Police Department saw Gutierrez riding a bicycle without a required front light. See A.R.S. § 28-817(A). The officer asked Gutierrez to "come here," but Gutierrez continued riding and said he was "just going home." The officer chased him and Gutierrez slipped off the bicycle as he rode over loose gravel and fell to the ground. The officer attempted to restrain Gutierrez and ordered him to put his hands behind his back, but Gutierrez resisted and instead reached into his pockets. Another officer responded and the two officers finally detained him. While searching the general area where the bicycle fell, the responding officer discovered a "small plastic bindle" containing seventy-seven milligrams of methamphetamine.
¶3 At the close of the state's case-in-chief, Gutierrez moved for judgment of acquittal, arguing the state was not "able to show through any testimony that [he] possessed . . . the methamphetamine." The court denied the motion and the jury convicted Gutierrez of possession of a dangerous drug, possession of drug paraphernalia, and resisting arrest. He was sentenced to concurrent prison terms, the longest of which was ten years. This appeal followed. We have jurisdiction pursuant to A.R.S §§ 13-4031 and 13-4033(A)(1).
Sufficiency of the Evidence
¶4 Gutierrez claims the evidence was insufficient to convict him of possession of a dangerous drug and drug paraphernalia. We review the sufficiency of the evidence de novo. State v. Pena, 235 Ariz. 277, ¶ 5 (2014). We will affirm if substantial evidence supports the verdict. State v. Scott, 177 Ariz. 131, 138 (1993). Substantial evidence is "proof that reasonable persons could accept as adequate and sufficient to support a conclusion of [the] defendant's guilt beyond a reasonable doubt." State v. Miller, 234 Ariz. 31, ¶ 33 (2013), quoting State v. Roque, 213 Ariz. 193, ¶ 93 (2006) (alteration in Miller). In making this determination, we view the facts in the light most favorable to sustaining the jury's verdict. State v. Cox, 217 Ariz. 353, ¶ 22 (2007).
Gutierrez does not contest his conviction and sentence for resisting arrest. --------
¶5 Gutierrez asserts the evidence was insufficient to convict him because he did not have possession of the bindle. Gutierrez frames the issue by asserting that he did not have constructive possession of the bindle. However, that doctrine does not apply because he cannot exercise dominion or control over a public roadway. See State v. Jenson, 114 Ariz. 492, 493-94 (1977) (defendant has constructive possession of contraband when found in place under his dominion or control and his knowledge thereof can be reasonably inferred). As such, we assess whether sufficient evidence indicates that Gutierrez had actual possession of the bindle.
¶6 "'Possess' means knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(34). Quoting State v. Gonsalves, Gutierrez contends the state failed to show "'specific facts or circumstances that the defendant exercised dominion or control' over the object." 231 Ariz. 521, ¶ 10 (App. 2013). Possession may be shown by both direct and circumstantial evidence. Carroll v. State, 90 Ariz. 411, 413 (1962).
¶7 When contraband is found in a public place, evidence must establish some connection between it and the accused, independent of his presence near its location. Id. In Carroll, the court determined evidence that officers had found narcotics near a bench where the defendant had been sitting was insufficient because no other circumstances supported an inference that the defendant had discarded the drugs or even that they had been discarded while he had been sitting there. Id. Here, Gutierrez claims no facts connected him with the bindle because it was on a public roadway in an area known for narcotics trafficking.
¶8 But substantial evidence supported the jury's finding that Gutierrez was connected to the bindle. First, the officer testified that Gutierrez had been reaching into his pockets during the encounter. Further, the second officer found the bindle in the area around the bicycle. Although the bindle was found in the middle of a "fairly well traveled" roadway, the officer testified it appeared "recently discarded," noting it was undamaged and dry, even though the ground was damp due to the rain earlier that day. Although the state's evidence was circumstantial, a reasonable trier of fact could find that Gutierrez had discarded the bindle during the chase or after losing control of the bike. See State v. Nash, 143 Ariz. 392, 404 (1985) (criminal convictions may rest solely on circumstantial proof). Therefore, sufficient evidence supported Gutierrez's conviction.
Disposition
¶9 For the foregoing reasons, we affirm Gutierrez's convictions and sentences.