State v. Franko

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JESUS RIOS FRANKO, Appellant.

No. 1 CA-CR 19-0445
FILED 10-15-2020

Appeal from the Superior Court in Maricopa County
No. CR 2018-137105-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos D. Carrion
Counsel for Appellant
 STATE v. FRANKO
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.

B R O W N, Judge:

¶1 Jesus Rios Franko appeals his conviction and sentence for
possession or use of dangerous drugs. He argues the superior court erred
in denying his motion for judgment of acquittal. Because substantial
evidence supports the conviction, we affirm.

BACKGROUND

¶2 Police officers arrested Franko for an unrelated incident and
searched him, checking his pants pockets, pant legs, waistline, and other
areas where a weapon or object may have been concealed. The officer
conducting the search explained he did not check the inside of Franko’s
socks or remove his shoes because he did not see anything “sticking out
from the socks,” and a “more detailed search” would be conducted later at
a holding facility. No contraband was found and, after handcuffing Franko
with his hands behind his back, the officers placed him in the backseat of
Officer Kultala’s patrol car, a sport utility vehicle.

¶3 Kultala drove Franko to a detention facility and turned him
over to the detention staff. When Kultala returned to his patrol car, he
inspected the back cage of the car and found a small plastic bag on the floor
containing a “white powdery crystal substance” he believed was
methamphetamine (“meth”). He also noticed the “same substance had
been scratched” into the “small pores” of the floor. A short time later,
another officer assisted Kultala in collecting the evidence. Both officers
used their body cameras to record what they found, which included meth
crystals and a small partially chewed lollipop stick that was referred to at
trial as a “popsicle stick.” The video footage, which was admitted by
stipulation at trial, confirms that it was in fact a lollipop stick.

¶4 Franko was subsequently charged with possession or use of
dangerous drugs and possession of drug paraphernalia. At trial, the parties
stipulated that the substance found in the patrol car was meth, a dangerous
drug. See A.R.S. § 13-3401(6)(c)(xxxviii). The jury found him guilty of the

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Decision of the Court

dangerous drug charge, but not guilty of possessing paraphernalia, and the
superior court sentenced him to ten years’ imprisonment. This timely
appeal followed.

DISCUSSION

¶5 We review de novo the denial of a motion made under
Arizona Rule of Criminal Procedure (“Rule”) 20. State v. West, 226 Ariz.
559, 562, ¶ 15 (2011). “[T]he court must enter a judgment of acquittal . . . if
there is no substantial evidence to support a conviction.” Rule 20(a)(1).
Viewing the evidence in the light most favorable to the State, substantial
evidence means “such proof that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.” West, 226 Ariz. at 562, ¶ 16 (quotations omitted).
“Both direct and circumstantial evidence should be considered in
determining whether substantial evidence supports a conviction.” Id.
When the evidence allows reasonable minds to differ as to the inferences
drawn from the facts, the trial judge has no discretion to enter a judgment
of acquittal. Id. at 563, ¶ 18.

¶6 To convict Franko of possession or use of dangerous drugs,
the State had to prove beyond a reasonable doubt that he knowingly
possessed meth. See A.R.S. § 13-3407(A)(1), -3401(6)(c)(xxxviii). Franko
argues the State failed to provide sufficient evidence to establish the
elements of possession and knowledge and thus the superior court erred in
denying his Rule 20 motion.

¶7 The law defines “possess” as physically possessing or
otherwise exercising dominion or control over, as relevant here, a drug.
A.R.S. § 13-105(34). To prove constructive possession, the State needed to
establish, by specific facts or circumstances, that Franko exercised dominion
or control over the meth, even though it was not found in his presence. See
State v. Villalobos Alvarez, 155 Ariz. 244, 245 (App. 1987). Constructive
possession may be proven with circumstantial evidence. State v. Donovan, 116 Ariz. 209, 213 (App. 1977). Thus, the question here is whether
substantial evidence shows Franko constructively possessed the meth
found on the floor of the patrol car.

¶8 Kultala testified that at the start of his shift, before the arrest,
he inspected the back cage of the patrol car. Kultala explained that the
purpose of the inspection, normally done at the beginning of each shift, is
to look “for any sort of contraband or anything else that shouldn’t be back
there.” Kultala found orange traffic cones in the back cage and moved them

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to the rear of the car but did not notice any “crystalline substance” or any
“baggies” on the floor. He also testified no one else was transported in the
backseat of the car between the initial inspection and Franko’s arrest, and
he did not see the meth on the floor of the backseat until after he transported
Franko to the detention center. This circumstantial evidence was sufficient
to permit the jury to reasonably conclude Franko possessed the meth when
he was placed into the patrol car. See Carroll v. State, 90 Ariz. 411, 414 (1962)
(explaining that “the circumstances must be such that they are at least
consistent with a reasonable inference that defendant knew of the existence
of the narcotic which was found, before he may be found guilty of
‘possession’”); see also State v. Harvill, 106 Ariz. 386, 391 (1970) (direct and
circumstantial evidence have intrinsically similar probative value).

¶9 Franko contends Kultala must not have done a thorough
search of the car before he left the station because he missed the lollipop
stick. The jury heard that evidence but its verdict shows it was not
persuaded by Franko’s argument that if Kultala overlooked the lollipop
stick when he inspected the car at the start of his shift, he also might have
overlooked the meth on the floor of the car. Jurors were informed that
during their deliberations they could review the body camera footage of the
officers collecting the evidence from the patrol car, including meth crystals
that were on the backseat floor, and the lollipop stick, located on the floor
near the rear passenger side door. Evaluating the significance of that
evidence was within the province of the jury. See State v. Clifton, 134 Ariz.
345, 348 (App. 1982) (In deciding whether substantial evidence exists to
warrant a conviction, we “giv[e] full credence to the right of the jury to
determine credibility, weigh the evidence, and draw justifiable inference[s]
therefrom.”).

¶10 A person’s “mere presence” near an unlawful item is
insufficient to establish that the person knowingly exercised dominion or
control over that item. See State v. Curtis, 114 Ariz. 527, 528, 530 (App. 1977).
In this case, however, the State presented evidence of more than mere
proximity to support the jury’s implicit finding that Franko constructively
possessed the meth. Although the officers did not see Franko with the
meth, its location on the floor where Franko was seated, the lack of other
potential possessors, and the lack of any contraband when the car was
inspected cumulatively provided substantial circumstantial evidence that
Franko possessed the meth. Cf. Carroll, 90 Ariz. at 412–14 (finding evidence
insufficient where drugs were found near a bench outside of an airport, in
a place clearly accessible to the public); State v. Miramon, 27 Ariz. App. 451,
452–53 (1976) (finding evidence insufficient where drugs were found under
the passenger seat of a vehicle with multiple occupants).

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¶11 Franko also argues the evidence was insufficient to prove he
knew about the meth. “‘Knowingly’ means, with respect to . . . a
circumstance described by a statute defining an offense, that a person is
aware or believes that . . . the circumstance exists.” A.R.S. § 13-105(10)(b).
Like possession, knowledge can be proven by circumstantial evidence. See
State v. Henry, 205 Ariz. 229, 232, ¶ 11 (App. 2003) (“[A] trial court must
submit a case to the jury if reasonable minds can differ on the inferences to
be drawn from the evidence,” which may be either direct or
circumstantial.). When the evidentiary chain links a defendant to an illicit
drug, the trier of fact may fairly draw an inference he knew of its existence
and presence. See Carroll, 90 Ariz. at 413. “[T]he circumstances must be such
that they are at least consistent with a reasonable inference that defendant
knew of the existence of the narcotic, which was found, before he may be
found guilty of ‘possession.’” See id. Given the officers’ testimony, location
of the meth, and the video evidence, the circumstances here provide a
reasonable inference that Franko was aware of the meth that must have
been in his possession when he entered the patrol car. The State therefore
presented substantial evidence from which a jury could find Franko
knowingly possessed meth.

¶12 Finally, Franko argues that because the jury acquitted him on
the charge of possession of drug paraphernalia for the small plastic bag
found in the patrol car, the evidence was insufficient to support a conviction
for possession of the meth. It is well established, however, that an appellate
court’s review of the sufficiency of the evidence “‘should be independent
of the jury’s determination that evidence on another count was insufficient’
and ‘should not be confused with the problems caused by inconsistent
verdicts.’” State v. Williams, 233 Ariz. 271, 274, ¶ 10 (App. 2013) (citation
omitted). The reason is “we recognize that, ‘in the privacy of the jury room,’
either ‘leniency or compromise’ may lead jurors to acquit a defendant
whom they believe to be guilty.” Id. Accordingly, Franko’s acquittal on the
paraphernalia charge is irrelevant to determining the sufficiency of the
evidence supporting his drug possession conviction.

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CONCLUSION

¶13 We affirm Franko’s conviction and sentence.

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

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