Opinion
2 CA-CR 2023-0201
10-22-2024
The State of Arizona, Appellee, v. Richard Lee Howard, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Gila County No. S0400CR202100263 The Honorable Timothy M. Wright, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee
Emily Danies, Tucson Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Gard and Chief Judge Staring concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Richard Howard appeals his conviction and sentence for misconduct involving a weapon as a prohibited possessor. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Howard. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In August 2021, Howard was living in a "bunk house," a secondary residential structure that shared property with a main residence. One evening, Howard became mentally distressed and threatened the homeowners who lived in the main residence. Before midnight, police officers arrived outside Howard's bunk house, and began speaking with Howard by phone. Howard indicated his distress was, in part, due to the presence of law enforcement.
¶3 During an hour-long conversation with an officer, Howard stated several times that he might take his own life. Specifically, Howard said if law enforcement "pushed the issue and tried to enter" the house he would kill himself with a firearm.
¶4 Howard described the gun as a ".25 caliber, semiautomatic handgun," which he speculated would be insufficient to kill him due to its small caliber. Howard also explained that he had taken the handgun from the garage and that it did not belong to him.
¶5 Howard eventually exited the bunk house and spoke with the officer in person on the porch of the main residence. The officer told him to "leave the gun inside ...." Howard responded, "I don't have a weapon. The one I took was in the garage, it isn't mine." At the end of the conversation, Howard was arrested.
¶6 Officers then secured the bunk house until they could obtain a search warrant. The officers returned the same morning to execute the warrant of the bunk house with a detective who took photographs. The photographs show Howard's wallet, identification, and a .25 caliber handgun all resting on Howard's bed, though the officers first found the firearm under a pillow.
¶7 A grand jury indicted Howard with misconduct involving weapons as a prohibited possessor. On the first day of the jury trial, the parties stipulated that (1) Howard is a prohibited possessor, and (2) the weapon found in the bunk house was a firearm. After the state rested, Howard moved for a judgment of acquittal under Rule 20, Ariz. R. Crim. P., arguing there was insufficient evidence that he actually possessed the handgun. The trial court denied the motion, finding there was substantial evidence to be presented to the jury. The jury found Howard guilty, and the court sentenced him to a presumptive prison term of ten years.
The grand jury originally indicted Howard with four counts, including two counts of threatening or intimidating, and one count of theft of a firearm. Before trial, the state indicated it would not be proceeding on the threatening or intimidating counts, which the trial court dismissed with prejudice. At sentencing, on the state's request, the court dismissed the theft charge.
¶8 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶9 Howard argues the trial court erred in denying his Rule 20 motion because the state provided insufficient evidence to support the conviction. In particular, he maintains that there was insufficient evidence that he actually or constructively possessed the handgun.
¶10 The "question of sufficiency of the evidence is one of law," which we review de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011). We must decide whether the state presented evidence that "reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). In so doing, we may not "reweigh evidence or reassess the witnesses' credibility." State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013). If jurors could reasonably differ as to whether the evidence establishes the necessary facts, that evidence is sufficient as a matter of law. See State v. Davolt, 207 Ariz. 191, ¶ 87 (2004).
¶11 To show Howard committed misconduct involving weapons under A.R.S. § 13-3102(A)(4), the state was required to prove that he "knowingly . . . possess[ed] a deadly weapon" and was a "prohibited possessor." As noted above, the parties stipulated that Howard was a prohibited possessor and that the weapon found was a firearm, so the only question before the jury was whether Howard "possess[ed]" the firearm. See id.
¶12 "Possession may be actual or constructive." State v. Gonsalves, 231 Ariz. 521, ¶ 9 (App. 2013); see also A.R.S. § 13-105(34). "Actual possession means a defendant knowingly exercised direct physical control over an object." Gonsalves, 231 Ariz. 521, ¶ 9; see also § 13-105(34). Constructive possession means the defendant knowingly exercises dominion or control over an object and in circumstances from which a jury could reasonably infer that the defendant had "actual knowledge of the existence of the [object]." State v. Crain, 250 Ariz. 387, ¶ 52 (App. 2021); see also State v. Villavicencio, 108 Ariz. 518, 520 (1972). Constructive possession may be shown by circumstantial evidence. Gonsalves, 231 Ariz. 521, ¶ 10; State v. Ingram, 239 Ariz. 228, ¶ 22 (App. 2016).
¶13 Howard correctly observes that no direct evidence tied him to the handgun. No officer saw him with the gun in his hand. Law enforcement never checked the firearm for fingerprints or submitted it for DNA testing. But constructive possession can be proven by circumstantial evidence alone. See Gonsalves, 231 Ariz. 521, ¶ 10.
¶14 Here, the state presented substantial circumstantial evidence that Howard possessed the handgun. Howard had lived in the bunk house for about one year and exerted "dominion [and] control" over objects therein. Id. ¶ 9; see also § 13-105(34). This included the firearm that officers found in his bedroom. During his conversation with the officer, Howard indicated that the firearm was in the bunk house, showing he had "actual knowledge of [its] existence" there. See Crain, 250 Ariz. 387, ¶ 52. Howard also acknowledged that he had taken the handgun from the garage, described it as a .25 caliber, and then threatened to shoot himself with it. From these admissions, a jury could infer that Howard had both possessed and controlled the firearm. See id.
¶15 Howard counters that he also told the officer he "d[id] not have a weapon" during their initial phone conversation. He further asserts that the placement of his wallet, identification, and the firearm was "staged" either by law enforcement or someone else. Howard points to the officer's testimony that it is "not uncommon" for items to be picked up, examined, and replaced in their approximate positions prior to photographing, which may have occurred here. But Howard's statement denying ownership of the firearm occurred alongside other statements indicating dominion and control over it. And any uncertainties regarding the original location of Howard's belongings on his bed go to the weight and credibility of the photographic evidence rather than its sufficiency. It is for the jury, not this court, to determine the weight of any exculpatory evidence. See Buccheri-Bianca, 233 Ariz. 324, ¶¶ 38-39. Here, the state presented substantial evidence from which a reasonable jury could conclude beyond a reasonable doubt that Howard was a prohibited possessor and exerted dominion and control over a firearm.
Disposition
¶16 For the foregoing reasons, we affirm.