State v. Rose

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JACOB DESMOND ROSE, Appellant.

No. 1 CA-CR 18-0100
FILED 11-20-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-133195-001
The Honorable David V. Seyer, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Jon W. Thompson joined.
 STATE v. ROSE
Decision of the Court

W I N T H R O P, Judge:

¶1 Jacob Desmond Rose appeals his conviction for possession of
marijuana. Rose argues the State failed to submit substantial evidence to
support his conviction, and the trial court therefore erred in denying his
Rule 20 motion for judgment of acquittal. See Ariz. R. Crim. P. 20. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
verdict and resolve all reasonable inferences against Rose. See State v.
McCurdy, 216 Ariz. 567, 573, ¶ 14 (App. 2007); State v. Salman, 182 Ariz. 359,
361 (App. 1994).

¶3 The State charged Rose by information with one count of
possession of marijuana, a class six felony. See Ariz. Rev. Stat. (“A.R.S.”)
§ 13-3405(A)(1). The trial court later granted the State’s motion to designate
the charge a class one misdemeanor, see A.R.S. § 13-604(B)(1), and the case
proceeded with a bench trial.

¶4 The evidence presented at trial reflects the following: Shortly
after midnight on March 22, 2016, Buckeye Police Officer Nevin conducted
a traffic stop of a vehicle with a headlight out. As Officer Nevin approached
the vehicle, he smelled the odor of marijuana emanating from it. A window
was being rolled up, and the driver appeared to be getting out of the
vehicle. Officer Nevin told the driver to stay in the vehicle and why he had
stopped it, then had the driver gather the vehicle’s registration and proof
of insurance.

¶5 In addition to the driver, two passengers were in the vehicle.
Rose was seated directly behind the driver, and a female was seated on the
rear passenger side. After another officer arrived, Officer Nevin separated
and detained the vehicle’s occupants, patted them down, and advised them
of their Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). As Rose
opened his door to step out of the vehicle, Officer Nevin immediately saw
in plain view “a green leafy substance” that appeared—and was later
determined—to be marijuana1 along with a package of grape-flavored
Swisher Sweets cigars in the side pocket of the rear driver’s side door,
immediately next to where Rose had been sitting.

1 A criminalist testified the substance was approximately 0.19 grams
of marijuana, a usable amount.

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Decision of the Court

¶6 Given Rose’s proximity to the marijuana and statements
made by the vehicle’s other occupants, Officer Nevin handcuffed Rose and
placed him separately in the back seat of his patrol vehicle. Rose’s eyes
were bloodshot and watery, signs the officer knew to be consistent with
marijuana consumption. Officer Nevin took some photographs,
interviewed and searched the driver and female passenger, and searched
the vehicle, finding no other illegal drugs or drug paraphernalia in the
vehicle or on anyone’s person. As Officer Nevin returned to his patrol
vehicle to formally arrest Rose, he smelled a strong odor of marijuana
emanating from it. The patrol vehicle had not smelled like marijuana before
Officer Nevin placed Rose in it. Officer Nevin then transported Rose to a
nearby police station.

¶7 After the State rested, defense counsel moved for judgment of
acquittal pursuant to Rule 20, arguing the State had failed to prove either
actual or constructive possession because it had not shown “Rose used that
marijuana, knew it was there, or had dominion and control over it.” The
trial court denied the motion, finding the evidence sufficient to support a
finding of guilt beyond a reasonable doubt.

¶8 The defense then rested, and the trial court found Rose guilty
as charged. At sentencing, the court suspended imposition of sentence and
placed Rose on one year of supervised probation.

¶9 We have jurisdiction over Rose’s timely appeal pursuant to
the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A)(1).

ANALYSIS

¶10 Rose asks this court to take judicial notice of a website his
counsel allegedly became aware of before sentencing but “was not fleshed
out at sentencing.” Because the website was not presented to the trial court
and Rose makes no cogent argument for its consideration, we decline to do
so. See, e.g., State v. Schackart, 190 Ariz. 238, 247 (1997).

¶11 Next, Rose argues the trial court erred in denying his Rule 20
motion. He asserts the evidence was insufficient to prove he knew of and
exercised dominion or control over the marijuana and, therefore, possessed
it, and that such error denied him due process.

¶12 Because the question of sufficiency of the evidence is one of
law, we review de novo a trial court’s ruling on a Rule 20 motion for
judgment of acquittal. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). After

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Decision of the Court

the close of evidence, a court must enter a judgment of acquittal “if there is
no substantial evidence to support a conviction.” Ariz. R. Crim. P. 20.
Substantial evidence, which “is that which reasonable persons could accept
as sufficient to support a guilty verdict beyond a reasonable doubt,” State
v. Davolt, 207 Ariz. 191, 212, ¶ 87 (2004) (citing Rule 20), must prove each
element of the offense, McCurdy, 216 Ariz. at 573, ¶ 14. When reasonable
minds may differ on inferences drawn from the facts, the case must be
submitted to the finder of fact. State v. Lee, 189 Ariz. 590, 603 (1997).

¶13 It is for the finder of fact to weigh conflicts in the evidence and
determine the credibility of witnesses. State v. Williams, 209 Ariz. 228, 231,
¶ 6 (App. 2004). On appeal, we do not reweigh the evidence, State v. Tison, 129 Ariz. 546, 552 (1981); Salman, 182 Ariz. at 361, and make no distinction
between the probative value of direct and circumstantial evidence, State v.
Bible, 175 Ariz. 549, 560 n.1 (1993). Further, because circumstantial evidence
can support differing, yet reasonable inferences, State v. Anaya, 165 Ariz.
535, 543 (App. 1990), the mere existence of an inference of innocence from
circumstantial evidence does not warrant a directed verdict of acquittal, see
State v. Cantua-Ramirez, 149 Ariz. 377, 379 (App. 1986); State v. Olivas, 119
Ariz. 22, 23 (App. 1978). If reasonable minds can differ on inferences to be
drawn from direct or circumstantial evidence, the case must be submitted
to the finder of fact. State v. Hickle, 129 Ariz. 330, 331 (1981).

¶14 Under A.R.S. § 13-3405(A)(1), “[a] person shall not knowingly
[p]ossess or use marijuana.” In this context, the term “knowingly” means
“that a person is aware or believes that the person’s conduct is of that nature
or that the circumstance exists.” A.R.S. § 13-105(10)(b). The term “possess”
means “knowingly to have physical possession or otherwise to exercise
dominion or control over property.” A.R.S. § 13-105(34). “The terms
‘dominion’ and ‘control’ carry their ordinary meaning, such that dominion
means ‘absolute ownership’ and control means to ‘have power over.’” State
v. Ingram, 239 Ariz. 228, 233, ¶ 21 (App. 2016) (citations omitted).

¶15 “Possession may be actual or constructive.” Id. at ¶ 20
(citation omitted). “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.” Id. at
¶ 21 (citations and internal quotations omitted). Thus, constructive
possession may be established by proving the defendant exercised
dominion or control over the illegal drug itself, or the location in which the
drug was found. State v. Teagle, 217 Ariz. 17, 27, ¶ 41 (App. 2007).

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Decision of the Court

¶16 In this case, substantial evidence supported the trial court’s
decision to deny Rose’s motion for judgment of acquittal. The State
presented substantial evidence to prove the substance in question was
marijuana and that Rose knowingly and constructively possessed it by
showing: (1) Officer Nevin could smell marijuana as he approached the
subject vehicle; (2) the marijuana and Swisher Sweets cigars were found in
the side pocket of the driver’s side back seat door, immediately next to Rose
and well within his reach; (3) the marijuana was in plain view, and when
Officer Nevin looked down, he immediately saw it, thus supporting the
reasonable inference that Rose knew of its presence as well; (4) no
marijuana or drug paraphernalia was found anywhere else in the vehicle;
(5) Rose smelled strongly of marijuana, and had bloodshot, watery eyes,
signs and symptoms consistent with recent marijuana consumption; (6) the
officer’s patrol vehicle, which did not previously smell of marijuana, reeked
of marijuana after Rose exclusively occupied it; and (7) the other occupants
of the vehicle possessed no drugs or drug paraphernalia and did not exhibit
signs and symptoms consistent with marijuana consumption. This
evidence constitutes substantial evidence from which a trier of fact could
conclude beyond a reasonable doubt that Rose possessed marijuana.
Further, these facts belie Rose’s arguments that the State relied on
speculation, mere proximity, and burden shifting to prove Rose’s guilt.
Accordingly, the trial court did not err or deny Rose his due process rights
by denying Rose’s Rule 20 motion for judgment of acquittal.

¶17 Rose also raises a new argument not raised at trial, asserting
that some white papers in the side pocket shown in Exhibits 4, 5, and 6 had
“been moved towards the front seat, almost out of the pocket, revealing the
Swisher Sweets package and a small green leafy object sitting next to a
penny” and that the marijuana had previously been hidden in the side
pocket by the paper. His argument suggests that Officer Nevin moved the
papers to make it appear as if the marijuana was in plain view. Even
assuming arguendo that Rose has not waived this argument, the
photographs constituting Exhibits 4, 5, and 6 were clearly taken at different
distances and angles, Officer Nevin testified he did not move the items
depicted before taking those photographs, and there is no indication on this
record or from the photographs that the white papers were moved.
Moreover, nothing in the record supports Rose’s argument, made for the
first time on appeal, that the passenger vehicle may have had inadequate
light for Rose to see the marijuana.

¶18 Given the totality of the facts presented by the State, a
reasonable fact finder could have concluded beyond a reasonable doubt
that Rose knew of and exercised dominion or control over the marijuana

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Decision of the Court

and, therefore, possessed it. Accordingly, the trial court did not err in
denying Rose’s motion for judgment of acquittal.

CONCLUSION

¶19 Rose’s conviction is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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