Opinion
No. 1 CA-CR 10-0981
11-15-2011
STATE OF ARIZONA, Appellee, v. JESUS RONALDO RIVERA, Appellant.
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 Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix Jesus Ronaldo Rivera Appellant Winslow
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(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)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. CR2010-112868-001 DT
The Honorable Joseph C. Welty, 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 Kathryn L. Petroff, Deputy Public Defender
Attorneys for Appellant
Phoenix
Jesus Ronaldo Rivera
Appellant
Winslow BROWN , Judge
¶1 Jesus Rivera appeals his conviction and sentence for possession of marijuana for sale. Counsel for Rivera filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, she was unable to find any arguable grounds for reversal. Rivera was granted the opportunity to file a supplemental brief in propria persona, and he has done so.
¶2 Our obligation is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We view the facts in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Rivera. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm.
¶3 Rivera was indicted for possession of marijuana for sale, a class 2 felony, pursuant to Arizona Revised Statutes ("A.R.S.") section 13-3405 (Supp. 2010). The following evidence was presented at trial.
Absent material revision after the date of the alleged offense, we cite the statute's current version.
¶4 In March 2010, members of a drug task force conducted a "reverse" drug operation in which law enforcement officers acted as drug dealers selling large quantities of marijuana. Officer Pooley testified he had made arrangements with Myron Stevens, Rivera's co-defendant, to sell a large quantity of marijuana. Stevens told Pooley he had several people who would buy marijuana from him and frequently shipped marijuana as far as the east coast.
Stevens is not a party to this appeal.
¶5 On the day of the buy, Pooley and Stevens met in a parking lot where Stevens had arrived in a minivan registered to Rivera's girlfriend. Pooley entered the front passenger door of the minivan. Stevens said he was just waiting for the money and that "his brother" would be bringing it. Shortly thereafter, Rivera arrived on a bicycle, opened up the sliding door on the driver's side, and took a seat in the minivan behind Pooley and Stevens. Rivera removed a paper bag from under his shirt and handed it to Stevens. The bag contained approximately $18,000. Stevens opened his own wallet, supplemented the money, and gave it to Pooley. Pooley got out of the minivan, removed a bale of marijuana from his vehicle, and handed it to Rivera, who placed it on the floor between the second and third row of seats in the minivan. Pooley then proceeded to the trunk of the vehicle, where a second bale of marijuana was stored. At that time, other officers approached the minivan and arrested Stevens and Rivera.
¶6 Officer DelaMater testified that subsequent to the arrests, a search warrant was issued on Rivera's residence. The officers found gift wrap, axle grease, packing peanuts, and a five-pound bale of marijuana that appeared to be packaged for shipping. DelaMater testified that these items are often used by drug traffickers to conceal their shipments, explaining it is customary for someone who is shipping marijuana to package it in shrink wrap, which is then slathered with axle grease to mask the unique smell. The package is usually re-wrapped in shrink wrap and often covered with gift wrap to disguise its contents.
¶7 The jury found Rivera guilty of possession of marijuana for sale. Prior to sentencing, Rivera admitted to one prior historical felony conviction and that he was on release in cause number CR2008-150610-001 DT when he committed the instant offense. The court sentenced him to the presumptive term of eleven and one-quarter years' imprisonment with 275 days of presentence incarceration credit. This timely appeal followed.
¶8 In his supplemental brief, Rivera raises three issues.He first argues that prosecutorial misconduct warrants dismissal. Rivera asserts that the prosecutor vouched for the State's witnesses and commented that she would prove Rivera and his co-defendant "were working together" to buy marijuana. Because Rivera did not object during the trial, we review for fundamental error only. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). 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." Id. (citation and internal quotations omitted).
Rivera also asserts that his trial counsel failed to file a motion to suppress evidence found at his residence, did not interview any witnesses, did not request audio recordings, did not request a separation of co-defendants, and advised Rivera not to take the stand in his own defense. However, claims of ineffective assistance of counsel may not be raised on direct appeal. State ex rel Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007).
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¶9 To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that "(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial." State v. Moody, 208 Ariz. 424, 459, 94 P.3d 1119, 1154 (2004) (citations and internal quotations omitted). "[I]mpermissible prosecutorial vouching exist[s]: (1) when the prosecutor places the prestige of the government behind its witness, and (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993) (citation and internal quotations omitted). "Prosecutorial misconduct sufficient to justify reversal must be so pronounced and persistent that it permeates the entire atmosphere of the trial." State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citation and internal quotations omitted).
¶10 Following a careful review of the record, the only reference by the prosecution relating to the credibility of the State's witnesses is the following:
In this case, it's the testimony of an officer who has 10 years' worth of experience, who doesn't know either Defendant Rivera or Defendant Stevens. He has absolutely no reason to come in here and lie to you. That is what you would have to believe in order to believe that Defendant Rivera never touched that bale of marijuana, and never actually put it in the van and covered it with the sweater. You would have to believe that both [Detective] Benson and Detective Pooley are liars.These statements here do not attempt to place the prestige of the government behind the witnesses, nor do they refer to matters outside the record. See Bible, 175 Ariz. at 601, 858 P.2d at 1204.
. . .
There is absolutely no reason to believe that in this case. None. They have given consistent testimony, they don't know these defendants, . . . Detective Pooley testified he has absolutely no reason to lie. These are detectives who would lose their entire careers. It's absurd to think that over this matter, they would jeopardize their career.
¶11 Further, the prosecutor's comment during her opening statement that she would prove that Rivera and Stevens "worked together" to purchase marijuana was not improper; rather, it was an accurate outline of the evidence she would present at trial. See id. at 602, 858 P.2d at 1205 (noting opening statement is counsel's opportunity to tell the jury what evidence she intends to introduce). Moreover, the trial court instructed the jury that the lawyers' arguments were not evidence. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.2d 833, 847 (2006) (noting court's instruction to the jury that lawyers' statements are not evidence was a factor in concluding prosecutor's comments did not deny the defendant a fair trial). Thus, we find no error, much less fundamental error.
¶12 Rivera challenges the sufficiency of the evidence, which we review de novo. See Bible, 175 Ariz. at 595, 858 P.2d at 1198. "A conviction must be supported by substantial evidence of guilt." State v. Martinez, 226 Ariz. 221, 223, ¶ 12, 245 P.3d 906, 908 (App. 2011). "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (citation and internal quotations omitted). "The substantial evidence required for conviction may be either circumstantial or direct[.]" State v. Anaya, 165 Ariz. 535, 543, 799 P.2d 876, 884 (App. 1990). And, "[t]o set aside a jury verdict based on insufficient evidence, it must clearly appear that, on any hypothesis, there is no sufficient evidence to support the conclusion reached by the jury." Martinez, 226 Ariz. at 223-24, ¶ 12, 245 P.3d at 908-09.
¶13 To convict Rivera, the State was required to prove that he knowingly possessed marijuana, the substance was in fact marijuana, and the possession was for the purpose of sale. A.R.S. § 13-3405. The jury was properly instructed that possession can be found if "the defendant and one or more persons shared actual or constructive possession of an object." Additionally, the trial court instructed the jury that it could convict Rivera based on accomplice liability.
¶14 The evidence presented at trial was sufficient to show that Rivera knowingly possessed marijuana. Rivera arrived at a controlled drug buy carrying $18,000 cash in a brown paper bag concealed under his shirt. After Pooley took the money, he handed Rivera a bale of marijuana, which Rivera accepted and placed on the floor of his girlfriend's minivan.
¶15 A criminalist from the Department of Public Safety crime lab testified the substance that was tested was in fact 14.26 kilograms of marijuana. This testimony is sufficient to meet the second element of the statute. Finally, in addition to the packing materials, ledger, and shipping labels found at Rivera's residence, and the absence of any drug paraphernalia, the significant weight of the marijuana is satisfactory evidence to show the possession of the marijuana was for the purpose of sale.
¶16 Rivera also argues his conviction was obtained by "the use of perjured testimony." Because Rivera failed to object to the testimony at trial, we review for fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. A witness "commits perjury by making . . . [a] false sworn statement in regard to a material issue, believing it to be false." A.R.S. § 13-2702(A)(1) (2010).
¶17 Rivera suggests that Pooley committed perjury because his testimony differed from his written report. Specifically, Rivera challenges Pooley's description of a sweater that was placed on one of the bales of marijuana. However, we are unable to find anything in Pooley's testimony that comes anywhere close to a false statement. Furthermore, to the extent there may have been any inconsistencies between his report and his testimony, we defer to the jury's assessment of a witness's credibility and the weight to be given to his testimony. See State v. Fimbres, 222 Ariz. 293, 300, ¶ 21, 213 P.3d 1020, 1027 (App. 2009).
¶18 We have searched the entire record for fundamental error and find none. All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows Rivera was present and represented by counsel at all pertinent stages of the proceedings, was afforded the opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Accordingly, we affirm Rivera's convictions and sentences.
¶19 Upon the filing of this decision, counsel shall inform Rivera of the status of the appeal and his 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). Rivera shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.
MICHAEL J. BROWN, Presiding Judge CONCURRING: PATRICIA K. NORRIS, Judge PHILIP HALL, Judge