State v. Stewart

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES EDWARD STEWART, Appellant.

No. 1 CA-CR 21-0419
FILED 5-17-2022

Appeal from the Superior Court in Yavapai County
No. V1300CR202080462
The Honorable Thomas K. Kelly, Judge Pro Tempore
The Honorable Michael Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
 STATE v. STEWART
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 James Edward Stewart appeals his convictions and sentences
for transportation of dangerous drugs for sale and possession of drug
paraphernalia. He argues the superior court erred by denying his motion
to suppress drug evidence seized from his car after a traffic stop, asserting
the police officer lacked reasonable suspicion for the stop. He also contends
the court erred by failing to instruct the jurors on the lesser-included offense
of possession of dangerous drugs. For the following reasons, we affirm.

BACKGROUND

¶2 Stewart was driving a black four-door BMW through
Cottonwood when a police officer pulled him over for driving with a
suspended license. After the officer arrested Stewart for the violation, a
drug-detecting dog alerted to the presence of drugs in the car. The resulting
search revealed more than 48 grams of methamphetamine and empty
baggies inside a canister, commonly known as a “hide-a-can.”

¶3 During a recorded police interview following Miranda1
warnings, Stewart initially denied knowledge of the contraband but
eventually admitted he had purchased two ounces of methamphetamine in
Tucson for $450 and brought 50 grams with him on his return trip to
Cottonwood that day. Stewart then described the specific location where
he purchased the drugs and the person who had arranged the deal. Stewart
explained that he began selling methamphetamine when he was unable to
find a job. He planned to deliver some of the methamphetamine to his
mother and had prepared a “teener”—approximately 1/16 of one ounce—
to sell to a buyer. He further revealed that he had hidden the yet-
undetected teener under the sun visor. After Stewart disclosed the teener’s
location, the arresting officer returned to the car and found a baggie with
two grams of methamphetamine under the visor.

1 Miranda v. Arizona, 384 U.S. 436, 444 (1966).

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¶4 The State charged Stewart with transportation of dangerous
drugs for sale, a class two felony, and possession of drug paraphernalia, a
class six felony. Before trial, Stewart moved to suppress the drug evidence,
asserting the officer lacked reasonable suspicion for the traffic stop. At the
suppression hearing, the officer testified he learned from a detective that a
drug-trafficking task force was investigating a four-door black BMW based
on its involvement in recent drug sales. The officer was also informed that
the BMW was registered to a female in Tucson.

¶5 When the officer saw Stewart driving the BMW matching the
description, he contacted a member of the task force, who reported they
were investigating “James Stewart,” a white male from Michigan. When
Stewart got out of the BMW and walked into the grocery store, the officer
ran record checks and learned that Stewart did not possess an Arizona
driver’s license. The records search also revealed that Stewart’s Michigan
driver’s license was suspended and “had the exact same address as the
woman on the [BMW’s] registration.” Based on the matching addresses,
the officer determined he “probably ha[d] the right vehicle.” When Stewart
eventually drove away in the BMW, the officer initiated the traffic stop and
arrested him for driving on a suspended license.

¶6 The superior court denied the suppression motion, finding
the officer possessed reasonable suspicion that Stewart was the BMW’s
driver. In its ruling, the court explained that “the key point . . . was the
connection of the officer verifying that the Defendant’s address on his
license was the same address as the registered owner in Tucson . . . . [T]hat
is a significant connection between the unidentified white male driver of
the BMW and this Defendant.”

¶7 At trial, Stewart testified that he had no knowledge of
anything illegal in the BMW. He denied that he had driven the BMW from
Tucson that day, despite what he had told the officers. He explained that
his girlfriend, who was a drug dealer, had arrived at his mother’s home
“out of the blue” and he borrowed her car to go to the grocery store. Stewart
asserted that he lied to the officers when he admitted to the crimes, claiming
they promised him leniency if he cooperated. He also said he refrained
from telling the officers the drugs belonged to his girlfriend because he did
not want to get her in trouble. When asked how he knew about the hidden
teener, he said he had merely guessed because his girlfriend had previously
concealed drugs in that location.

¶8 In discussing the final jury instructions, Stewart withdrew his
previous request to instruct the jurors on the lesser-included offense of

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possession of methamphetamine, and thus the superior court instructed the
jurors only on the charged offenses. The jury found Stewart guilty as
charged. The court sentenced him to concurrent prison terms totaling eight
years. Stewart timely appealed, and we have jurisdiction under A.R.S. § 12-
120.21(A)(1).

DISCUSSION

A. Reasonable Suspicion

¶9 Stewart argues the superior court erred by refusing to
suppress the drug evidence, repeating his contention that the arresting
officer lacked reasonable suspicion to stop him. In reviewing a suppression
ruling, we consider only the evidence presented at the suppression hearing
and view the facts in a light most favorable to upholding the order. State v.
Adair, 241 Ariz. 58, 60, ¶ 9 (2016). We defer to the superior court’s factual
findings but review de novo mixed questions of law and fact as well as the
court’s ultimate legal conclusions. State v. Teagle, 217 Ariz. 17, 22, ¶ 19 (App.
2007).

¶10 The United States and Arizona Constitutions prohibit
unreasonable searches and seizures. U.S. Const. amend. IV; Ariz. Const.
art. II, § 8; State v. Allen, 216 Ariz. 320, 323, ¶ 9 (App. 2007). Courts must
exclude from a criminal trial all evidence obtained in violation of those
prohibitions, absent a valid exception. State v. Peoples, 240 Ariz. 244, 247,
¶ 9 (2016).

¶11 Because traffic stops are less intrusive than arrests, police
officers “‘need only possess a reasonable suspicion that the driver has
committed an offense’ to conduct a stop.” State v. Kjolsrud, 239 Ariz. 319,
322, ¶ 9 (App. 2016) (citation omitted). “Reasonable suspicion exists if,
under the totality of the circumstances, an officer developed a
particularized and objective basis for suspecting the particular person
stopped of criminal activity.” Id. at 323, ¶ 15. Reasonable suspicion must
be more than an incomplete hunch but is “considerably less than proof of
wrongdoing by a preponderance of the evidence” and demands only a
“minimal level of objective justification.” United States v. Sokolow, 490 U.S.
1, 7 (1989); Teagle, 217 Ariz. at 23–24, ¶ 25. In assessing whether reasonable
suspicion exists, courts examine collectively all relevant factors, even if each
may individually have an innocent explanation. Teagle, 217 Ariz. at 24,
¶ 25. Under Arizona law, driving on a suspended license is a class one
misdemeanor. See A.R.S. § 28-3473(A), (B).

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¶12 The record supports the superior court’s ruling that the stop
was supported by reasonable suspicion. After the officer noticed a BMW
resembling the description given by the task force detectives, his
subsequent investigation revealed that (1) the BMW’s registered owner was
a female with a Tucson address, (2) Stewart’s physical description was
consistent with the BMW driver’s appearance, (3) Stewart lacked a valid
driver’s license, and (4) Stewart had the same residential address as the
BMW’s owner. Given that the addresses directly linked Stewart to the
BMW, these uncontested facts were sufficiently particularized for the
officer to draw a reasonable inference that Stewart was driving the BMW
with a suspended license. See State v. Nevarez, 235 Ariz. 129, 133, ¶ 7 (App.
2014) (explaining officers are “not required to determine if an actual
violation has occurred prior to stopping a vehicle for further
investigation”). Accordingly, the superior court did not err in denying the
suppression motion.

B. Lesser-Included Offense Instruction

¶13 Stewart also contends the superior court abused its discretion
by not instructing the jurors on possession of methamphetamine as a lesser-
included offense. The State asserts Stewart invited any error by expressly
asking the court not to give the instruction and is barred from now
challenging its absence.2 Alternatively, the State argues Stewart has not
shown the court fundamentally erred in failing to give the instruction.
Because we conclude no error occurred, we need not determine the
applicable standard of review on Stewart’s claim. See State v. Diaz, 223 Ariz.
358, 360, ¶ 11 (2010) (“Regardless of how an alleged error ultimately is
characterized, . . . a defendant on appeal must first establish that some error
occurred.”).

¶14 Possession of dangerous drugs is a lesser-included offense of
transporting dangerous drugs for sale, distinguished only by the additional
for-sale element in the greater offense. State v. Cheramie, 218 Ariz. 447, 449,
451, ¶¶ 10, 22 (2008). Both crimes require proof of knowledge. See A.R.S.
§ 13–3407(A)(1) (“A person shall not knowingly . . . [p]ossess or use a
dangerous drug.”); A.R.S. § 13–3407(A)(7) (“A person shall not knowingly
. . . [t]ransport for sale . . . a dangerous drug.”).

2 Stewart withdrew his prior request for the instruction based at least
in part on his erroneous conclusion—one the superior court appeared to
endorse—that simple possession is not a lesser-included offense of
transporting dangerous drugs for sale.

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¶15 A defendant is entitled to a lesser-included offense instruction
if sufficient evidence supports giving the instruction. State v. Wall, 212 Ariz.
1, 4, ¶¶ 17–18 (2006). Evidence is sufficient when a reasonable jury could
find (1) the State failed to prove an element of the greater offense, and (2)
the defendant committed only the lesser offense. See id. at ¶ 18. To assess
the sufficiency of the evidence in this context, we consider “whether the
jury could rationally fail to find the distinguishing element of the greater
offense.” State v. Bearup, 221 Ariz. 163, 168, ¶ 23 (2009) (citation and
quotation omitted). “As a practical matter, when a defendant asserts an all-
or-nothing defense[,] . . . there will ‘usually [be] little evidence on the record
to support an instruction on the lesser included offenses.’” Wall, 212 Ariz.
at 6, ¶ 29 (citation omitted). “When the record is such that defendant is
either guilty of the crime charged or not guilty, the trial court should refuse
a lesser included instruction.” State v. Salazar, 173 Ariz. 399, 408 (1992).

¶16 Here, the record discloses overwhelming evidence of
Stewart’s guilt on the charged offenses, including a video recording of his
detailed confession. Furthermore, a drug detective explained that the large
quantity of methamphetamine and that the empty baggies indicated the
seized drugs had been possessed for sale. Conversely, Stewart’s sole
defense was lack of knowledge, asserting the police coerced him into falsely
confessing, and he was, in fact, not aware the BMW contained any illegal
items. Given these circumstances, Stewart was either guilty of the charged
crimes or he was innocent; therefore, a lesser-included offense instruction
was not justified. See id.

¶17 Nonetheless, Stewart contends he was entitled to the absent
instruction because “if the jurors believed [him], they could have found him
guilty of possession of dangerous drugs instead.” But to find Stewart guilty
of simple possession, the jurors would have had to conclude he had
knowledge of the car’s illegal contents, which he unequivocally denied at
trial. Despite Stewart’s contrary assertion on appeal, had the jurors credited
his testimony, the result would have been a full acquittal rather than a
simple-possession conviction. And speculation that the jurors might have
otherwise simply disbelieved parts of the State’s case is not a sufficient
reason to conclude the instruction was warranted. Wall, 212 Ariz. at 4, ¶ 18.
Accordingly, because no rational juror could have failed to find the
distinguishing element of the greater offense, the court did not err in
declining to instruct the jurors on simple possession.

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 STATE v. STEWART
Decision of the Court

CONCLUSION

¶18 We affirm Stewart’s convictions and sentences.

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

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