Opinion
1 CA-CR 10-0816
04-10-2012
STATE OF ARIZONA, Appellee, v. ASHLEY SUE OCHOA, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE
CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-175766-002DT
The Honorable Robert L. Gottsfield, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Margaret M. Green, Deputy Public Defender
Attorneys for Appellant
Phoenix KESSLER, Judge
¶1 Ashley Sue Ochoa ("Appellant") filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following her conviction of one count of possession of a dangerous drug for sale, methamphetamine, under Arizona Revised Statutes ("A.R.S.") section 13-3407(A)(2) (Supp. 2011), and one count of possession of drug paraphernalia under A.R.S. § 13-3415(A) (2010).
We cite the current version of the statute when no material revisions have occurred since the crime.
¶2 Finding no arguable issues to raise, Appellant's counsel requested that this Court search the record for fundamental error. Appellant was given the opportunity to, but did not submit a supplemental brief; however, she told her attorney that she wished to appeal based on ineffective assistance of counsel and because she was a drug user and not selling drugs. This Court does not consider ineffective assistance of counsel claims on direct appeal regardless of merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Such claims must be raised in a petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. Id. Appellant's argument that she was not selling drugs, however, goes to the sufficiency of the evidence. Accordingly, it will be addressed here.
¶3 After reviewing the entire record, we conclude that the evidence is sufficient to support the verdicts and there is no reversible error. Therefore, we affirm Appellant's convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶4 On the night of December 4, 2009, Appellant left her mother's home to meet her ex-boyfriend, E. Price. She and Price had no specific plans, but they were possibly going to smoke methamphetamine.
¶5 Two security guards, G.H. and M.A., were patrolling an apartment complex near the location where Appellant was picking up Price. The security guards claimed that they watched the Appellant's car for approximately thirty to forty minutes. During that time they witnessed around six to eight hand-to-hand transactions that took place through the driver's side window of Appellant's car with various other cars. They called the police to report a suspicious car. G.H. claimed a male was sitting in the driver's seat of Appellant's car.
¶6 Phoenix Police Officer J.G. responded to the call and arrived at the scene at approximately 12:37 a.m. on December 5, 2009. He pulled up behind Appellant's car and flashed his siren lights. According to Officer J.G., Price almost immediately got out of the passenger's seat and walked towards him. While walking towards Officer J.G., $923 in cash fell out of Price's sweatshirt. Officer J.G. ordered Price to stop, then detained Price. Shortly thereafter, Officer M.P. arrived and searched Price, finding in his pocket a scale that "is commonly used to weigh drugs."
¶7 After detaining Price, Officer J.G. asked Appellant to step out of the car. Officer J.G. explained that he was responding to a call concerning a suspicious vehicle. He asked Appellant if there were drugs in her car. She replied that there were none, and allowed Officer J.G. to search the car.
¶8 Upon searching the car, Officer J.G. found a large plastic bag in the center console containing what appeared to be methamphetamine. Officer J.G. then discontinued the search and called for a controlled substance officer to come to the scene to further conduct the search. Officer A.S. arrived and took over the search.
¶9 The bag that Officer J.G. found in the center console was confirmed to contain sixteen grams of methamphetamine. Several bags in Appellant's purse were found to contain usable amounts of methamphetamine as well. The purse also contained a used methamphetamine pipe, $255.74 in cash, and fifty small, unused plastic bags. Appellant was arrested and charged, as both a principal and accomplice, with possession of dangerous drugs for sale and possession of drug paraphernalia.
The drug paraphernalia charge did not include the methamphetamine pipe. Possession of the pipe is relevant, however, because it is probative as to the intended use of the plastic bags and the scale.
¶10 At trial, Officer J.R. of the Drug Enforcement Bureau of the Phoenix Police Department opined that the methamphetamine was for sale. His conclusion was based on the large quantity of methamphetamine, the digital scale, the fifty unused empty plastic bags, and the "substantial amount of money found."
¶11 According to Appellant's timeline of the events, she arrived in the area around 12:14 a.m. and waited for Price in her car. She testified that while she was waiting for Price, a vehicle drove by and told her that her tail light was broken, but no other vehicles stopped next to her car. At 12:24 a.m., after talking to Price on the phone, she pulled around the corner to pick him up. Officer M.P. testified that police were dispatched to the scene at 12:26 a.m. Therefore, Appellant contended, the security guards could not possibly have watched her car for thirty to forty minutes.
¶12 Appellant also disputed the security guards' claims that transactions were taking place through the driver's side window of her car. Appellant presented two vehicle inspection reports indicating that the power windows in her car were inoperable. Officer J.G. did not test the power windows on the night of the arrest, and at no point did he see the windows down.
¶13 Appellant stated that she never saw the large bag of methamphetamine, it must have belonged to Price, and she had no idea that he brought it into the car with him. She claimed that she did not know about the digital scale and as soon as Officer J.G. pulled up, the next thing she knew Price was already being restrained. Appellant maintained that Price was only in her car for about two minutes before Officer J.G. showed up, and Price must have quickly thrown the methamphetamine into the center console when he jumped out of the car.
¶14 Appellant admitted that she knowingly carried in her purse several plastic bags containing small amounts of methamphetamine, a methamphetamine pipe, and fifty small, unused plastic bags. She maintained that she had cash in her purse because she just cashed her paycheck. She asserted that the clear plastic bags were in her purse because she makes jewelry.
¶15 The jury found Appellant guilty of possession of a dangerous drug for sale and possession of drug paraphernalia. The trial court sentenced Appellant to the minimum five-year sentence for possession of methamphetamine for sale. She was concurrently sentenced to one year for possession of drug paraphernalia. She received thirty-one days of presentence incarceration credit for both counts.
STANDARD OF REVIEW
¶16 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)).
DISCUSSION
¶17 This Court has reviewed the entire record for fundamental error. After careful review of the record, we find no meritorious grounds for reversal of Appellant's convictions or modification of the sentences imposed. The record reflects Appellant had a fair trial and was present and represented by counsel, or her presence was appropriately waived, at all critical stages of trial. Appellant was given the opportunity to speak at sentencing, and the trial was conducted in accordance with the Arizona Rules of Criminal Procedure. The evidence is sufficient to sustain the verdicts and the trial court imposed lawful sentences for Appellant's offenses.
It appears the Appellant received two additional days of presentence incarceration credit. However, illegal sentences favoring the defendant cannot be corrected unless the State has timely filed a cross-appeal. State v. Dawson, 164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990). The record does not indicate that the State has done so.
Substantial evidence in the record supports the jury's verdicts.
¶18 We review the "evidence presented at trial only to determine if substantial evidence exists to support the jury verdict." State v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005). "Substantial evidence is more than a 'mere scintilla' and is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468 (1997) (citation omitted). Reversible error occurs only when "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)).
A. Possession of a dangerous drug for sale
¶19 For the jury to find a defendant guilty of possession of a dangerous drug for sale the jury must find that: (1) the defendant knowingly possessed a dangerous drug; (2) the substance was in fact a dangerous drug; and (3) the possession must be for the purposes of sale. A.R.S. § 13-3407(A)(2). "Possess," for the purposes of § 13-3407, means to "knowingly . . . have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(34) (Supp. 2011).
The sentencing provisions for this crime, previously located at A.R.S. § 13-709.03(A) (Supp. 2009) are now recodified at A.R.S. § 13-3407(E) (Supp. 2011), but the text remains the same.
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¶20 Regarding the first element of the crime, it was reasonable for the jury to find that Appellant knowingly possessed the drugs. Appellant maintained that she did not know the large bag of methamphetamine was there because Price was only in the car for a short period of time and quickly threw the bag into the center console before jumping out of the car. She claimed that she did not know Price had the methamphetamine on him. However, her credibility could have reasonably been doubted by the jury based on the totality of the facts; e.g. her admitted methamphetamine use, and her admitted knowledge that she was carrying in her purse smaller amounts of methamphetamine, the used methamphetamine pipe, and the plastic bags. See Carroll v. State, 90 Ariz. 411, 413, 368 P.2d 649, 650 (1962) (noting possession may be shown by circumstantial evidence).
¶21 The second element of the crime was never in dispute. Methamphetamine, by law, is a dangerous drug. A.R.S. § 13-3401(6)(b)(xv) (Supp. 2011). The testimony at trial established that the drugs found were in fact methamphetamine, and Appellant never argued that the substance was something other than methamphetamine.
¶22 It was also reasonable for the jury to find the third element of the crime—that the possession of the methamphetamine was for the purposes of sale. This finding was reasonable based on the large quantity of methamphetamine, the digital scale, the large amount of small plastic bags that are commonly used to package methamphetamine, and the large amount of cash found on Price. The security guards testified that the transactions were being made from the driver's seat. Although they also testified that a male was sitting in the driver's seat, Officer J.G. and Appellant herself testified that Appellant was in the driver's seat. Despite this conflicting evidence as to where Appellant was sitting, the jury could have reasonably believed that Appellant was in the driver's seat, making transactions through the window. The jury similarly could have discounted the vehicle inspection reports showing that the car's windows were inoperable. The jury was free to believe Officer J.R.'s opinion that the drugs were for sale. The jury was also free to give less weight to Appellant's testimony that the plastic bags found in her purse were for jewelry, especially since similar plastic bags in her purse actually did contain methamphetamine residue.
B. Possession of drug paraphernalia
¶23 For the jury to find a defendant guilty of possession of drug paraphernalia, the jury must find that the defendant used, or possessed with intent to use, the bags and/or the digital scale to pack, repack, store, contain, or conceal methamphetamine. A.R.S. § 13-3415(A). The "possession" element of the crime is defined the same as it is for the crime of possession of dangerous drugs for sale. See A.R.S. § 13-105(34). Drug paraphernalia includes "[s]cales . . . used, intended for use or designed for use in weighing or measuring drugs," as well as "objects used, intended for use or designed for use in storing or concealing drugs." A.R.S. § 13-3415(F)(2)(e), (j).
¶24 The evidence was sufficient for the jury to find beyond a reasonable doubt that Appellant possessed drug paraphernalia. By her own admission, she knowingly carried the small plastic bags in her purse. Although she testified that she had no knowledge of the digital scale found on Price, the jury was free to believe otherwise.
¶25 The Appellant was tried as both a principal and an accomplice. A defendant is criminally accountable for the conduct of another if the defendant is an accomplice of that other person. A.R.S. § 13-303(A)(3) (2010). "Accomplice" includes one who "[a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense" or "[p]rovides means or opportunity to another person to commit the offense." A.R.S. § 13-301 (2010). The evidence was sufficient to find that Appellant, as either a principal or accomplice, intended to use the plastic bags and the scale for packaging methamphetamine. Reasonable jurors could have found that Appellant was an accomplice to the use or intended use of the digital scale to weigh methamphetamine and package it using the plastic bags. Appellant and Price could have been seen as working together in the drug trade; Appellant had actual physical possession of the bags, and Price had actual physical possession of the scale. Again, according to Officer J.R.'s testimony, plastic bags and measuring devices are both necessary to sell methamphetamine.
CONCLUSION
¶26 For the foregoing reasons, we affirm Appellant's convictions and sentences. Upon the filing of this decision, counsel shall inform Appellant of the status of her appeal and her future appellate 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). Appellant shall have thirty days from the date of this decision to proceed, if she so desires, with a pro per motion for reconsideration or petition for review.
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DONN KESSLER, Judge
CONCURRING:
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MARGARET H. DOWNIE, Presiding Judge
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PETER B. SWANN, Judge