State v. Morrison

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SCOTT ALAN MORRISON, Appellant.

No. 1 CA-CR 21-0012
FILED 1-18-2022

Appeal from the Superior Court in Yavapai County
No. P1300CR201900722
The Honorable John David Napper, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Oliverson & Huss Law, PLLC, Tempe
By Jeremy Huss
Counsel for Appellant
 STATE v. MORRISON
Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the court, in which Presiding
Judge D. Steven Williams joined and to which Judge James B. Morse Jr.
dissented.

G A S S, Judge:

¶1 Scott Alan Morrison appeals his convictions and sentences for
possession or use of narcotic drugs (Count 2) and related drug
paraphernalia (Count 4). He does not appeal the two convictions related to
dangerous drugs (Counts 1 and 3). Because insufficient evidence supports
the verdicts on Counts 2 and 4, we reverse those convictions and remand to
the superior court for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶2 Detectives in the Partners Against Narcotics Trafficking
(PANT) task force began investigating Morrison after he took a box of
prescription drugs from another suspect who PANT had under
investigation. Two weeks later, PANT detectives had an informant conduct
a controlled methamphetamine buy from Morrison. When the informant
did not come out of Morrison’s trailer, officers knocked on the door and
asked Morrison to come outside. Officers then arrested Morrison and
obtained a search warrant. The police found methamphetamine in a
hallway closet, methamphetamine paraphernalia in a bedroom, marijuana
and related paraphernalia in the living room, and one syringe filled with a
liquid on Morrison’s bedroom nightstand.

¶3 At trial, the lead detective said he had twenty years’
experience with the PANT task force and had worked more than a hundred
drug cases. He described how heroin generally looks and smells and its
typical consistency. He also said when heroin is in a syringe, it is typically
a black liquid. The detective said he believed the syringe he found on the
nightstand was heroin. The parties stipulated—without further
foundation—to the admission of a photograph of a syringe filled with
liquid. The State did not admit evidence of any lab analysis of the liquid.

¶4 The jury convicted Morrison of possession of dangerous
drugs (Count 1), possession of narcotic drugs (Count 2), and two counts of

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 STATE v. MORRISON
Decision of the Court

possession of drug paraphernalia (Count 3 for methamphetamine and
Count 4 for heroin). The superior court suspended Morrison’s sentence and
placed him on concurrent supervised probation terms of four years for each
drug possession charge and three years for each paraphernalia charge.
Morrison timely appealed. This court has jurisdiction under article VI,
section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-
4033.A.1.

ANALYSIS

¶5 Morrison contends insufficient evidence supported his
convictions for possession of narcotic drugs and narcotic-drug
paraphernalia. This court reviews de novo claims of insufficient evidence.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). In reviewing the sufficiency of
the evidence, this court views the evidence in the light most favorable to
sustaining the verdict and resolves all reasonable inferences against the
defendant. State v. Rienhardt, 190 Ariz. 579, 588–89 (1997). But this court will
reverse a conviction if no substantial evidence supports it. State v. Morgan, 248 Ariz. 322, 325, ¶ 7 (App. 2020); see also State v. Clark, 249 Ariz. 528, 533,
¶ 16 (App. 2020) (“a conviction based on insufficient evidence is
fundamental, prejudicial error”). “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 (1990) (citations and
internal quotation marks omitted).

¶6 As charged here, possession of a narcotic drug requires proof:
(1) the defendant knowingly possessed heroin; and (2) the substance was
heroin. A.R.S. § 13-3408. Possession of drug paraphernalia requires proof:
(1) the defendant possessed a syringe with the intent to introduce a narcotic
drug into the body; and (2) the syringe was drug paraphernalia. A.R.S. § 13-
3415.

¶7 Morrison argues the evidence was insufficient to prove the
syringe contained heroin. We agree because the only evidence connecting
Morrison to possession of heroin was: (1) the lead detective’s general
background in drug training and arrests; (2) his statement heroin is
commonly a black liquid and can be injected; (3) a photograph of a black
liquid in a syringe; and (4) the lead detective’s uncorroborated belief the
liquid in the syringe found on Morrison’s nightstand was heroin.

¶8 No doubt, circumstantial evidence may be sufficient to
support a conviction for drug possession. See, e.g., State v. Junkin, 123 Ariz.

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 STATE v. MORRISON
Decision of the Court

288, 291 (App. 1979). But it does not follow that the existence of any
circumstantial evidence is sufficient to sustain a conviction. See Mathers, 165
Ariz. at 69–71; cf. State v. Terrell, 156 Ariz. 499, 503 (App. 1988) (stating an
unusual name, physical presence within Maricopa or Pinal County, and a
similar description to the previously convicted party is insufficient to prove
identity and establish a prior conviction).

¶9 The State could have established sufficient evidence in several
ways, the most preferred being a chemical analysis. See Wozniak v. Galati, 200 Ariz. 550, 554, ¶¶ 13, 15 (App. 2001); but see State v. Nightwine, 137 Ariz.
499, 503 (App. 1983) (if the State presents sufficient circumstantial evidence,
chemical analysis is not required for a drug conviction). Here, it did not.
Instead, the State relied on insufficient, speculative testimony. The lead
detective never explained his reasons for believing the syringe contained
heroin. In fact, he did not describe the liquid or the syringe at all. Though
he said heroin generally has a strong vinegar smell, he did not discuss the
odor of the liquid in the syringe or even say he smelled it.

¶10 The missing testimony linking the syringe to the lead
detective’s testimony would shift our analysis. See State v. Jonas, 162 Ariz.
32, 34 (App. 1988) (witness said the smoked marijuana cigarette had a
different odor than a tobacco cigarette); State v. Ampey, 125 Ariz. 281, 282
(App. 1980) (officer had training in odor of freshly burnt marijuana and
smelled same odor on defendant). The same would be true if the PANT
informant met Morrison under the cover of buying heroin instead of
methamphetamine. See Nightwine, 137 Ariz. at 503 (sufficient evidence
when “cocaine was the narcotic to be furnished, co-conspirator . . . paid
$2,300 an ounce for it, the purchaser . . . complained of its quality but not
whether it was or was not cocaine, and he used it”).

¶11 No other circumstantial evidence supports the verdict. For
example, no witness used the substance in the syringe or said its effects felt
like heroin. Cf. State v. Saez, 173 Ariz. 624, 630 (App. 1992) (witness
testimony the substance appeared to be cocaine “confirmed by the narcotic
effect produced by the substance” as well as the price and packaging of the
cocaine). And Morrison made no admissions about the substance. See
Ampey, 125 Ariz. at 282 (officer’s identification of the appearance and smell
of marijuana confirmed by defendant’s admissions); Jonas, 162 Ariz. at 34
(“An admission by the defendant that a substance is a drug is, absent
contrary evidence, sufficient evidence of the nature of the substance to
support a conviction.”).

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 STATE v. MORRISON
Decision of the Court

¶12 At bottom, the only evidence supporting Morrison’s narcotic-
drug conviction is a description of what heroin can sometimes look like, a
photograph of a black liquid in a syringe, and the lead detective’s bare
assertion he thought it was heroin. Though the State introduced a
photograph for the jurors’ consideration, the parties stipulated to the
photograph’s admission, and the State provided no foundation to put it in
context.

¶13 In short, mere speculation, not actual proof, about the
substance in the syringe underlies Morrison’s narcotic-drug conviction. See
Mathers, 165 Ariz. at 71. And “[s]peculation concerning possibilities is an
insufficient basis to sustain” Morrison’s conviction. See id.

¶14 As with drug possession, circumstantial evidence may
support a conviction for possession of drug paraphernalia. See State v. Gill, 248 Ariz. 274, 278, ¶¶ 9–10 (App. 2020) (evidence sufficient to uphold
conviction absent any DNA evidence or fingerprints on paraphernalia).
Here, however, insufficient evidence supported Morrison’s using the
syringe to hold heroin, let alone for the purpose of injecting heroin. See supra
¶¶ 9–13. Insufficient evidence, therefore, also supported Morrison’s
conviction for possession of drug paraphernalia.

CONCLUSION

¶15 We reverse Morrison’s convictions on Counts 2 and 4 and
remand to the superior court for further proceedings consistent with this
decision.

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 STATE v. MORRISON
Morse, J., dissenting
M O R S E, Judge, dissenting:

¶16 For appellate courts, the standard of review is often
determinative. This is especially true when we review a jury's verdict. I
respectfully dissent because this deferential standard of review requires me
to conclude sufficient evidence supports Morrison's convictions.

¶17 While we review claims of insufficient evidence de novo, State
v. West, 226 Ariz. 559, 562, ¶ 15 (2011), we must view the evidence in the
light most favorable to sustaining the verdict and determine whether "any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt," State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007); see
also State v. Fischer, 242 Ariz. 44, 52, ¶ 28 (2017) ("The appellate court does
not sit as the 'fourteenth' juror. The appellate court's role is not to weigh
the evidence." (citation omitted)). Morrison also concedes that our review
is for fundamental error, requiring him to show fundamental error and
resulting prejudice. See State v. Escalante, 245 Ariz. 135, 141, ¶¶ 18-21 (2018).

¶18 At trial, the lead detective stated he had twenty years'
experience in law enforcement and worked on "easily over a hundred" drug
cases. Without any objection, the detective explained how heroin and
methamphetamine look different when in a syringe, noting
methamphetamine is "almost a clear liquid" while heroin looks "like a black
liquid" and usually has blood in it if used. He testified that law enforcement
officers found a syringe next to Morrison's wallet and identified the
substance in the syringe as heroin, testifying the syringe "had a liquid
substance inside that, based on my training and experience, appeared to be
heroin." Finally, the State provided the jury with a photograph of the
loaded syringe from which it could make its own comparison to the
detective's description. And while referencing the syringe in the
photograph, the detective stated it was "loaded with what I believe to be
heroin." 1 Although the far-better practice would have been to introduce
results of a chemical analysis, the State presented sufficient evidence that
the syringe contained heroin.

¶19 Admittedly, the detective's testimony did not completely
close the circle. As Morrison asserts, the state did not introduce lab results
and the detective mentioned that heroin generally smells of vinegar but did
not discuss any odor of the liquid in the syringe. But Morrison's defense

1 Notably, Morrison did not object to the detective's opinion testimony
at trial and, on appeal, does not raise any challenge to the admission of that
testimony. See State v. McCall, 139 Ariz. 147, 164 (1983) (finding issues
waived if not raised in the opening brief).

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 STATE v. MORRISON
Morse, J., dissenting
was based on whether he possessed the syringe, not the syringe's contents.
While the asserted defense does not relieve the prosecution of the burden
to prove all elements of its case, it is a factor in determining whether
fundamental error has occurred. See State v. Moody, 208 Ariz. 424, 467, ¶
193 (2004) ("Because of the defenses asserted and the facts placed before the
jury in this case, we do not find the error fundamental.").

¶20 More evidence was not required to convict Morrison. See
State v. Jonas, 162 Ariz. 32, 34 (App. 1988) ("That a substance is an illicit drug
can be proved by circumstantial evidence."). A conviction requires
substantial evidence, not perfect evidence. See State v. Mathers, 165 Ariz. 64,
67 (1990) (noting a conviction must be supported by substantial evidence of
guilt, where "[s]ubstantial evidence is more than a mere scintilla"). Here,
the detective explained what he looks for when identifying heroin and then
offered his opinion that the substance in the syringe was heroin. The State
also provided the jury with a photograph of the loaded syringe so it could
compare it to the detective's description. Accordingly, giving proper
deference to the jury, the State's evidence amounted to more than a mere
scintilla and was sufficient to support Morrison's conviction.

¶21 For the foregoing reasons, I would affirm.

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

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