Opinion
No. 2 CA-CR 2020-0055
04-30-2021
THE STATE OF ARIZONA, Appellee, v. JONATHAN OWENS JR., Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Jennifer L. Holder, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt 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NOT FOR PUBLICATION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 Greenlee County
No. CR201900077
The Honorable Monica L. Stauffer, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Jennifer L. Holder, Assistant Attorney General, Tucson
Counsel for Appellee Harriette P. Levitt
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Espinosa authored the decision of the Court, in which Vice Chief Judge Staring and Judge Eckerstrom concurred. ESPINOSA, Presiding Judge:
¶1 Jonathan Owens Jr. appeals from his conviction and sentence for misconduct involving weapons. He argues the evidence was insufficient to sustain a guilty verdict, prosecutorial error deprived him of a fair trial, and his sentence was illegally enhanced. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the jury's verdict. See State v. Mangum, 214 Ariz. 165, ¶ 3 (App. 2007). Owens was convicted of a felony in 2018 and placed on three years' probation beginning in August 2018. As part of the standard conditions of that probation, Owens was prohibited from possessing any firearms or deadly weapons. Owens signed a form acknowledging and agreeing to follow the terms of probation and subsequently arranged for his former girlfriend, Melanie, to take all the firearms and ammunition from his home and keep them at her ranch.
¶3 In June 2019, Owens sent Melanie text messages asking her to bring a "handgun, box [of ammunition], AR15 and 22" and his neighbor's shotgun when she came with their children to his home. While Owens was at work, Melanie brought the guns and ammunition and placed them in his bathroom. She left shortly thereafter to run some errands while a babysitter watched the children. Owens texted her to ask if she had dropped off the guns, and she replied that she had.
¶4 Later that day, Melanie, who was concerned that Owens "was going to try and take [the] children away from [her], like he had threatened for months," went to the Clifton Police Department to obtain copies of police reports in preparation for a potential custody proceeding. At the police station, Melanie asked an officer she knew about Owens's probation status and told her about the guns. The officer contacted Owens's probation officer, Joseph Montez, who confirmed Owens was still on probation and not permitted to possess guns.
¶5 The following morning, Montez phoned Owens at work, told him he intended to search his home for any probation violations, and asked if Owens had anything in the house that he should not. Owens replied that "there were some firearms in the bathroom that he put there for safekeeping" because Melanie had "dropped them off at the house unannounced the day before," and he had put them away after getting home from work late. At Owens's house, Montez found the firearms and ammunition near a towel cabinet in the master bathroom.
¶6 Later that day, Owens phoned Melanie and told her Montez had searched his house and found the guns. He told her to call Montez and tell him she had taken the guns there "out of anger" and she was just "getting rid of his stuff" from the ranch. Owens also told her that if she shared their previous text messages with Montez, it would "destroy" him, and told her not to tell Montez that he had asked for the guns. Owens then sent Melanie a text message with Montez's phone number. The police officer Melanie had initially spoken to later contacted her and obtained screenshots of her conversations with Owens, which were in turn forwarded to Montez. Officers arrested Owens at work.
¶7 At trial, Montez testified he would have been able to help Owens get the guns from Melanie and take them to a third party for safekeeping. Montez also stated that Owens did not contact him at any time after he became aware that Melanie had taken the guns to Owens's home. And in his many conversations with Owens over the preceding ten months, Owens had never informed Montez that he had guns at Melanie's ranch.
¶8 After the state rested, Owens moved for a judgment of acquittal under Rule 20, Ariz. R. Crim. P., arguing "the State hasn't provided sufficient evidence to warrant a conviction in this matter." The state responded that it had presented "overwhelming evidence" Owens had directed Melanie to bring the guns to his home and he knew they were there, and that it had presented evidence at least one of the guns was operable. The trial court denied the motion, finding the testimonial and physical evidence sufficient to support a conviction.
¶9 Owens then testified, admitting he had asked Melanie to bring the guns to his home, but stating it was an act of "absolute desperation" because he had heard she was pawning his guns without his permission. He was equivocal, however, about his asking her to bring the guns to his house and further stated he never thought Melanie would actually deliver the guns as he had requested, and that she showed up "out of the blue" when she knew he would be at work. Owens also claimed that Melanie was acting maliciously by bringing the firearms while he was away, when he had talked to his neighbor, who "would have just put them in his garage" for safekeeping, and that the text messages presented at trial were taken "out of context." Owens stated that despite telling Montez he had put the guns away, the babysitter had actually done so, and that he had "never touched them," attributing the inconsistency in accounts to his fatigue that night. Finally, Owens again maintained the entire situation was a set-up by Melanie.
¶10 The jury convicted Owens of misconduct involving weapons, as charged, and the trial court sentenced him to a 4.5-year term of incarceration. We have jurisdiction over Owens's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Sufficiency of the Evidence
¶11 Owens first contends the evidence was insufficient to sustain a guilty verdict in light of his "necessity" and "mistake of fact or law" defenses. We review the sufficiency of the evidence de novo, and in our review, we determine only whether a conviction is supported by substantial evidence. State v. Pena, 235 Ariz. 277, ¶ 5 (2014). Substantial evidence is that which reasonable jurors could accept as sufficient to find the defendant guilty beyond a reasonable doubt. State v. Miller, 234 Ariz. 31, ¶ 33 (2013). And, as noted above, we view the facts in the light most favorable to upholding the jury's verdict. State v. Cox, 217 Ariz. 353, ¶ 22 (2007).
¶12 A person commits misconduct involving weapons by knowingly possessing a deadly weapon or prohibited weapon if that person is a prohibited possessor. A.R.S. § 13-3102(A)(4). A "prohibited possessor" includes any person who is "at the time of possession serving a term of probation pursuant to a conviction for . . . a felony offense." A.R.S. § 13-3101(A)(7)(d). Additionally, a "deadly weapon" includes firearms, defined as "any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon" that is not in permanently inoperable condition. § 13-3101(A)(1), (4). "Possession" may be actual or constructive. State v. Gonsalves, 231 Ariz. 521, ¶ 9 (App. 2013); see A.R.S. § 13-105(34) (defining "possess" as "knowingly to have physical possession or otherwise to exercise dominion or control over property"). While actual possession means that a defendant exercised direct, physical control over the object, Gonsalves, 231 Ariz. 521, ¶ 9, constructive possession "exists when the prohibited property '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],'" State v. Cox, 214 Ariz. 518, ¶ 10 (App. 2007) (alterations in Cox) (quoting State v. Villalobos Alvarez, 155 Ariz. 244, 245 (App. 1987)). Dominion and control mean, respectively, "absolute ownership" and to "have power over." Cox, 214 Ariz. 518, ¶ 9 (quoting State v. Tyler, 149 Ariz. 312, 316 (App. 1986)). The state may prove constructive possession by circumstantial evidence. State v. Ingram, 239 Ariz. 228, ¶ 22 (App. 2016).
¶13 Owens stipulated at trial that in August 2018, he had been "convicted of a felony and sentenced to three years of probation, under all standard terms and conditions of probation, in Greenlee County Superior Court Cause Number CR2018-00028." Both the Greenlee County Chief Probation Officer and Montez confirmed that Owens had been placed on a three-year term of probation and was still serving that probation in June 2019, and he was not permitted to possess any firearms at the time involved. The state also introduced a copy of Owens's terms of probation, which expressly included the prohibition against possessing firearms. Montez explained that he had reviewed that document with Owens when he was sentenced and that Owens had signed it, acknowledging the prohibition against firearms. During his direct testimony, Owens admitted being aware of the firearm prohibition.
¶14 As for Owens's possession of a firearm on the day of the offense, Melanie testified that she had brought a handgun, an AR-15, three shotguns, and pieces of an old shotgun, to Owens's home at his request and placed them in the bathroom. The two probation officers who conducted the search testified they had found those weapons in Owens's master bathroom and a photograph they had taken was admitted into evidence. One officer also testified that an investigator from the county attorney's office had test fired the AR-15. At trial, Owens stipulated that the rifle seized from his home "was test fired . . . and found to be in operable condition."
¶15 Lastly, to demonstrate knowing possession, the state presented screenshots of text messages from Owens to Melanie, asking her to "bring my guns home," and showing that Owens had followed up with her the next day to ensure that the guns had been delivered as requested. Montez testified that when he had phoned Owens to inform him of the search, Owens identified the guns' location in his home: the master bathroom in his bedroom. Although Owens testified differently at trial, Montez stated that Owens told him he had moved the guns from the sink to the towel cabinet for safekeeping after getting home from work. See State v. Manzanedo, 210 Ariz. 292, ¶ 3 (App. 2005) (noting jury determines credibility of witnesses and resolves conflicts in testimony). And whether Owens physically touched the guns to put them in the cabinet is inconsequential as there was evidence he knew the guns were brought to his home at his request. See Cox, 214 Ariz. 518, ¶ 10; cf. State v. Coley, 158 Ariz. 471, 471 (App. 1988) (evidence that defendant knew of plan to transport weapons and of weapons in his vehicle sufficient to support constructive possession instruction).
¶16 Owens's argument on appeal does not challenge the substantial evidence of his guilt, but rather focuses on his defense that because he reasonably believed in the "necessity" of retrieving the guns and "that the law gave him a grace period in which to dispose of them," his conviction should be reversed. The jury, however, necessarily rejected those defenses when it found him guilty, based on the substantial evidence presented by the state, as discussed above. See State v. Garfield, 208 Ariz. 275, ¶ 9 (App. 2004) ("We will not reevaluate the conflicting evidence to determine the merits of . . . a defense the jury rejected."). To the extent Owens requests that this court reweigh the evidence, it is beyond our purview to do so. See State v. Lee, 189 Ariz. 590, 603 (1997). In sum, the state's evidence was more than sufficient to support Owens's conviction on the weapons charge.
Prosecutorial Error
¶17 Owens next suggests the prosecutor committed "cumulative error" in cross-examining Owens by making "a series of moral pronouncements and lecturing." Where the defendant has objected at trial, we review claims of prosecutorial error for harmless error. State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 66 (2018). But where the defendant fails to adequately raise the claim of prosecutorial error in the trial court, we review only for fundamental error. See id.; see also State v. Rutledge, 205 Ariz. 7, ¶¶ 27, 29-30 (2003) (defendant's "shifting the burden" objection during state's closing argument did not adequately preserve issue of prosecutorial error, limiting review to fundamental error).
Owens also contends "the state did not ask the court for a jury instruction to address [his] claims of necessity and mistake of fact or law." But he has provided no authority to support his proposition that the prosecutor's failure to request an instruction on the defendant's asserted defense amounts to prosecutorial error. See Ariz. R. Crim. P. 21.2 ("At a time the court directs, but no later than the close of evidence, the parties must submit to the court written requests for instructions."). Further because he has failed to provide any authority or further develop this argument beyond his conclusory assertion, we consider it waived and abandoned. See Vargas, 249 Ariz. 186, ¶ 13 ("[I]f a defendant simply asserts a general claim of error on appeal and fails to develop it, a court is not obligated to consider it.").
¶18 Owens suggests that prosecutorial error "so . . . permeated the entire atmosphere of the trial" as to constitute fundamental error, and more specifically asserts the prosecutor's cross-examination deprived him of a fair trial by asking "few, if any, substantive questions," and amounted to a "self-righteous lecture for the purpose of denigrating" him. He failed, however, to raise any such objection during trial. Owens objected to one exchange during the cross-examination as argumentative, but that objection, which was sustained, did not state the ground he now raises on appeal. See Rutledge, 205 Ariz. 7, ¶¶ 29-30.
We do not suggest that defendants must use a specific word or phrase to preserve a claim of prosecutorial misconduct. They must, however, make an objection and eventually request a mistrial to receive a new trial based on a sustained objection. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005) ("defendant who fails to object at trial forfeits the right to obtain appellate relief except" fundamental error review); State v. Hansen, 237 Ariz. 61, ¶ 7 (App. 2015) (new trial typically follows declaration of mistrial).
¶19 Under fundamental error review, Owens has the burden of first establishing that error exists and then "showing that (1) the error went to the foundation of the case, (2) the error took from [him] a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). If fundamental error is established under prongs one or two, "he must make a separate showing of prejudice." Id. The test for cumulative prosecutorial error requires that the defendant cite to the record where the alleged instances of misconduct occurred; cite legal authority establishing that the alleged instances constitute prosecutorial misconduct or error; and set forth the reasons why the cumulative misconduct denied a fair trial. State v. Vargas, 249 Ariz. 186, ¶ 14 (2020).
¶20 The prosecutor's cross-examination of Owens addressed inconsistencies between evidence that had been presented and Owens's testimony on direct examination. While the questioning may have at points been objectionably argumentative, we see no indication that pointed exchanges between the prosecutor and Owens "permeated the entire atmosphere of the trial" or denied him a fair trial. See Davis v. Alaska, 415 U.S. 308, 316 (1974) ("[T]he cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness."); State v. Zuck, 134 Ariz. 509, 513 (1982) ("[W]ide latitude should be granted in cross-examination."). We see no actionable prosecutorial error on this basis, cumulative or otherwise.
Owens specifically points to one portion of the prosecutor's cross-examination that he characterizes as "inappropriate," which challenged Owens's testimony that he did not possess the guns:
A. I did not have possession.
Q. You had dominion and control.
A. Absolutely not.
Q. Absolutely not? They're in your house, they're your guns, and you don't control them?
A. I was home for 45 minutes --
Q. I don't care if you're there for a minute.
A. That's obvious you don't care.
Q. You had control of them, they're in your house.
A. I did not have control of them, they were -- I visually saw them for about 30 seconds. I never touched them. No matter --
Q. -- 30 seconds, were you in control for 30 seconds?
MS. LOPEZ: Judge, I would object.
THE COURT: Let's do this in a question and answer period, please.
MS. LOPEZ: It's very argumentative and everybody's talking over each other. I'm sure that the court reporter wants to make sure to catch everything, as well as the jury. So if there can be a little breathing time.
THE COURT: I'll sustain the objection.
Sentence Enhancement
¶21 Finally, Owens contends the trial court illegally enhanced his sentence by considering his probation status at the time of the offense when the state did not allege that factor for sentence enhancement purposes before trial. Because Owens failed to object at sentencing, despite the opportunity to do so, our review is again limited to fundamental error. See State v. Morales, 215 Ariz. 59, ¶ 4 (2007). And Owens again bears the burden of demonstrating that error occurred, that the error was fundamental, and that it prejudiced him. See Escalante, 245 Ariz. 135, ¶ 21. Generally, the imposition of an illegal sentence constitutes fundamental error. State v. Thues, 203 Ariz. 339, ¶ 4 (App. 2002).
¶22 In Arizona, a person convicted of a felony "that is not included in [A.R.S. § 13-708(A)-(B)] and that is committed while the person is on probation for a conviction of a felony offense . . . shall be sentenced to a term of not less than the presumptive sentence authorized for the offense." A.R.S. § 13-708(C). No provision of that statute, however, requires that a defendant's probation status be charged in the indictment or information. See id.; see also State v. Martinez, 172 Ariz. 437, 440 (App. 1992) (for purposes of sentence enhancement "the issue whether defendant was on probation for a felony offense need not be alleged at trial"); State v. Love, 147 Ariz. 567, 570 (App. 1985) (addressing the precursor statute to A.R.S. § 13-708(C)); cf. A.R.S. § 13-708(D) (requiring allegation that defendant committed offense while released on bond or on own recognizance for separate felony be formally alleged twenty days before trial). A defendant must nevertheless receive notice of the state's intent to use his or her probation status for sentencing purposes. State v. Waggoner, 144 Ariz. 237, 239 (1985) (concluding that despite no requirement that the defendant's release status be alleged, notice is still required "before trial commences that the state intends to allege [defendant's] release status to enhance punishment").
¶23 Owens received written and oral notice via the state's two Donald memoranda that the trial court reviewed with him in open court, specifying that he would be sentenced to a term of 4.5 years' imprisonment as a category-two repetitive offender, and that the court would be required to sentence him to at least that presumptive term because of his probation status, pursuant to A.R.S. § 13-708(C) (enhancement statute for "[o]ffenses committed while released from confinement"). Notably, Owens does not allege that he lacked pretrial notice. Cf. State v. Benak, 199 Ariz. 333, ¶ 16 (App. 2001) (defendant is denied adequate notice of state's intent to use prior felony convictions for sentence-enhancement purposes if "misled, surprised or deceived in any way by the allegations" (quoting State v. Bayliss, 146 Ariz. 218, 219 (App. 1985))). Because Owens was on notice that his probation status would play a role in his sentence, a formal allegation in the charging instrument was not required. See Love, 147 Ariz. at 570.
State v. Donald, 198 Ariz. 406 (App. 2000). --------
¶24 Owens further suggests that the jury was required to find that he was on probation. But that is incorrect. Determination of probation status for sentence enhancement purposes "need not be made by a jury." State v. McNair, 141 Ariz. 475, 485 (1984). And Owens does not contend that the trial court would have imposed any lesser sentence than the presumptive term he received. We note that the court specifically stated it found no mitigating factors that would have served to lessen Owens's sentence. We therefore find no error, fundamental or otherwise, in the court's imposition of an enhanced sentence.
Disposition
¶25 For the foregoing reasons, Owens's conviction and sentence are affirmed.