State v. Smith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JASON SMITH, Appellant.

No. 1 CA-CR 21-0451
FILED 7-14-2022

Appeal from the Superior Court in Yuma County
No. S1400CR201901251
The Honorable Brandon S. Kinsey, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Celeste Kinney
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Robert Trebilcock
Counsel for Appellant
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 Jason Smith appeals from his convictions and sentences for
possessing dangerous drugs, marijuana for sale, narcotic drugs, and drug
paraphernalia. First, he argues the superior court fundamentally erred by
failing to give a mere-presence jury instruction. Next, he asserts the
admission of drug-analysis testimony violated his confrontation rights
because the testifying expert relied on data generated by a non-testifying
expert. Finally, he contends the prosecution presented insufficient evidence
to support his convictions. We find no reversible error and affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Around 6:30 a.m. in December 2019, law-enforcement officers
with the Yuma County Narcotics Task Force arrived at Smith’s father’s
residence to execute a search warrant. A double-wide trailer, two travel
trailers, and a shed were on the property. When the officers approached the
shed, they immediately noticed an “overwhelming odor of fresh marijuana
and burnt marijuana.” The officers knocked on the shed’s door and
announced their presence, but no one answered. Smith opened the door
after the officers knocked and announced again.

¶3 After the officers ordered Smith to turn around and put his
hands behind his back, an officer had to remove him from the shed forcibly.
When the officers later took Smith to the ground to detain him, he initially
refused to put his hands behind his back, yelling that the officers were
“illegally trespassing” and “harassing” him. He continued shouting until
the officers placed him in a patrol vehicle. The officers ultimately detained
11 individuals from the property, including two who had been in the shed

1 We view the facts in the light most favorable to upholding the
verdicts. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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with Smith and Smith’s “medically compromised” father. Smith’s father
passed away before the trial.

¶4 Once inside the shed, the officers saw that the area had been
turned into a “makeshift room” containing a bed, a couch, a workbench, a
cabinet, a small refrigerator, and scattered clothes. In their ensuing search,
the officers found six pounds of marijuana on a “drying shelf” in the ceiling,
ten grams of marijuana in a dish, marijuana in various jars, marijuana and
a meth pipe on the couch, marijuana in a baggie near a stereo, a marijuana
flower, marijuana on a bench, marijuana and a joint located on a plate, two
scales and cannabis wax near the bed, methamphetamine inside a jacket on
the couch, and cannabis wax inside the refrigerator.

¶5 The State charged Smith with possessing dangerous drugs
(methamphetamine) for sale, a class two felony (Count One); possessing
marijuana for sale, a class two felony (Count Two); possessing narcotic
drugs (cannabis wax) for sale, a class two felony (Count Three); and two
counts of possessing drug paraphernalia, class six felonies (Counts Four
and Five). At the trial, the State called Department of Public Safety (“DPS”)
forensic scientist Greggory Longoni, who testified that the seized
substances were methamphetamine, marijuana, and cannabis. Although
Longoni offered his independent opinions, he reached his conclusions
based on his review of testing conducted by former DPS forensic scientist
Elizabeth Rast, who did not testify. The State did not offer Rast’s opinions
or reports as evidence.

¶6 After the State presented its case-in-chief, the superior court
denied Smith’s motion for judgments of acquittal under Arizona Rule of
Criminal Procedure 20. Smith elected not to testify and did not call any
witnesses. Smith had filed a pretrial notice listing mere presence as a
defense, but he neither requested a mere-presence jury instruction nor
objected to its omission in the final instructions. In the closing argument,
defense counsel asserted that Smith had only been caring for his ill father
when the officers arrived and was uninvolved in the illegal activity on the
property.

The reason a son may be visiting his father in a small,
modest home in the foothills that has ten occupants other than
him can be inferred in a real positive way. He’s checking on
his father who’s failing.

* * *

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You can infer . . . that [Smith] is just simply checking
on these people who are squatting on his father’s home. That’s
the natural inference. We have two, four, six, seven with
[Smith], and other people, three other people squatting on the
property.

The inference might be that these people are taking
advantage of the elderly gentleman and his faith. The person
who gets arrested is the mouthy one.

¶7 The jury found Smith guilty as charged on Counts Two, Four,
and Five and guilty of the lesser-included offenses of simple possession on
counts One and Three. The jury also found that the marijuana’s value was
$20 per gram. After granting the State’s motion to dismiss Count Four, the
superior court sentenced Smith to an aggregate term of four years’
imprisonment on the remaining counts. Smith appealed, and we have
jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

A. The Superior Court Did Not Fundamentally Err by Omitting a
Mere-Presence Instruction.

¶8 Smith argues the superior court should have independently
given a mere-presence instruction. As he acknowledges, our review is
limited to fundamental, prejudicial error because he did not request such
an instruction or object to the given instructions. State v. Escalante, 245 Ariz.
135, 140, ¶ 12 (2018). To prevail on fundamental-error review, Smith must
show trial error exists, and the error (1) went to the foundation of his case,
(2) deprived him of a right essential to his defense, or (3) was so egregious
that he could not possibly have received a fair trial. Id. at 142, ¶ 21. Under
prongs one and two, Smith must also make a separate, fact-intensive
showing of prejudice. Id. “To prove prejudice, [Smith] must show that a
reasonable, properly instructed jury ‘could have reached a different
result.’” State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (quoting State
v. James, 231 Ariz. 490, 494, ¶ 15 (App. 2013)).

¶9 We assess jury instructions in their entirety to determine
whether they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145,
¶ 75 (2000). Although parties are generally entitled to an instruction on any
reasonably supported theory, courts need not give an instruction “when its
substance is adequately covered by other instructions.” State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998). A court fundamentally errs when it fails to
independently instruct on a matter “vital to a proper consideration of the

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evidence,” and reversible error occurs when the given instructions could
have misled the jurors. State v. Johnson, 205 Ariz. 413, 417, ¶¶ 10–11 (App.
2003) (quoting State v. Avila, 147 Ariz. 330, 337 (1985)). “[I]n evaluating the
jury instructions, we consider the instructions in context and in conjunction
with the closing arguments of counsel.” Id. at ¶ 11.

¶10 “‘Mere presence’ means more than a lack of criminal intent. It
refers to ‘passivity and nonparticipation’ in the crime.” State v. Doerr, 193
Ariz. 56, 65, ¶ 36 (1998) (quoting United States v. Perkins, 926 F.2d 1271,
1283–84 (1st Cir. 1991)). A mere-presence instruction typically provides:

Guilt cannot be established by the defendant’s mere presence
at a crime scene, mere association with another person at a
crime scene or mere knowledge that a crime is being
committed. The fact that the defendant may have been
present, or knew that a crime was being committed, does not
in and of itself make the defendant guilty of the crime
charged. One who is merely present is a passive observer who
lacked criminal intent and did not participate in the crime.

Rev. Ariz. Jury Instr. Stand. Crim. 43 (mere presence) (5th ed. 2019). Smith
asserts the lack of such an instruction prohibited the jury from “know[ing]
that the State was required to show more than [his] mere proximity to the
illegal substances and items in the shed, or his association with others at the
scene.” We disagree.

¶11 The superior court instructed the jury that the charged
offenses required proof that Smith knowingly possessed the contraband.
The court also instructed that (1) “knowingly” meant Smith had “acted with
awareness of the existence of conduct or circumstances constituting an
offense,” and (2) “possession” meant he “knowingly had direct physical
control over an object” or “knowingly exercised dominion or control over
[an object], either acting alone or through another person.”

¶12 Presuming the jurors followed those instructions, as we must
absent evidence to the contrary, State v. Payne, 233 Ariz. 484, 518, ¶ 151
(2013), their finding that Smith knowingly possessed the shed’s illegal
contents negates his claim that the convictions could have unlawfully
resulted from his passive observation of the crimes. See State v. Crain, 250
Ariz. 387, 397, ¶ 33 (App. 2021). Furthermore, in the closing arguments,
counsel clarified any potential ambiguity. The State reminded the jurors
that the State “ha[d] to prove knowledge, [and] ha[d] to prove possession”

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to convict Smith. And as noted above, Smith explained that the jurors could
not find him guilty simply because he was at the crime scene.

¶13 Yet Smith argues State v. Aro, 188 Ariz. 521 (App. 1997), State
v. Noriega, 187 Ariz. 282 (App. 1996), and State v. Dominguez, 192 Ariz. 461
(App. 1998), still entitle him to a mere-presence instruction. While he may
have been entitled to the instruction if he asked for it, his reliance on those
cases—when he must establish fundamental error—is misplaced. Aro and
Noriega support the proposition that courts must give a mere-presence
instruction when the evidence supports it in accomplice-liability
prosecutions. Aro, 188 Ariz. at 524–25; Noriega, 187 Ariz. at 284–85; see also
Doerr, 193 Ariz. at 65, ¶ 37 (noting the Noriega court “expressly limited its
analysis to a prosecution for accomplice liability”). That proposition does
not apply to Smith’s case because the State did not charge him as an
accomplice, nor did the superior court give an accomplice-liability
instruction.

¶14 Smith’s reliance on Dominguez is just as unavailing. In that
case, we held that “failing to instruct the jury on mere presence is not
fundamental error when the instruction would not advance the assertion of
misidentification.” 192 Ariz. at 464, ¶ 12. Smith cites no authority for his
contention that the Dominguez holding implicitly compels courts to give a
mere-presence instruction “when [it] is central to a defendant’s case,” and
nothing in Dominguez suggests the instruction’s absence, under those
circumstances, is fundamental error. See also State v. Bible, 175 Ariz. 549, 572
(1993) (“[T]he same error may be fundamental in one case but not in
another.”). Thus, the superior court committed no error, much less
fundamental, by not sua sponte giving the instruction.

¶15 Moreover, even if Smith could establish fundamental error
under prongs one or two, he fails to show prejudice. To support his
prejudice claim, he asserts the jurors could have drawn “an unlawful
inference” that his “mere association” with the contraband or the other
detained individuals was sufficient for them to return guilty verdicts. But
the given instructions explained that the State had to prove beyond a
reasonable doubt that Smith knowingly possessed the contraband. Smith
identifies no record evidence suggesting the instructions misled or
confused the jurors. Without more, he has not carried his burden to show a
reasonable jury could have reached a different result had they received a
mere-presence instruction. See Dickinson, 233 Ariz. at 531, ¶ 13 (Defendants
“must affirmatively ‘prove prejudice’ and may not rely upon ‘speculation’
to carry [their] burden” on fundamental-error review.) (quoting State v.
Munninger, 213 Ariz. 393, 397, ¶ 14 (App. 2006)). Nor has he otherwise

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shown that the instruction’s absence rendered his trial unfair under prong
three of the fundamental error analysis.

B. The Admission of Longoni’s Testimony Did Not Violate Smith’s
Confrontation Rights.

¶16 Smith next argues the superior court violated his
confrontation rights by admitting Longoni’s testimony because Longoni
formed his opinions by relying on a non-testifying expert’s analysis. We
review de novo evidentiary rulings implicating a defendant’s confrontation
rights. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).

¶17 We rejected a similar argument in State ex rel. Montgomery v.
Karp, 236 Ariz. 120 (App. 2014). In Karp, the criminalist who had determined
the defendant’s blood alcohol concentration (“BAC”) was unavailable to
testify at the trial. Id. at 122, ¶¶ 2, 4. As a result, before the trial, the State
moved to admit a different criminalist’s independent BAC opinion based
on her review of the non-testifying criminalist’s notes, reports, and quality
assurance procedures. Id. at ¶ 3. The State did not seek to introduce the
original criminalist’s documents into evidence. Id.

¶18 Finding the proposed testimony did not violate the
defendant’s confrontation rights and was therefore admissible, we
concluded that an expert may offer an independent opinion “when the
basis of [the] independent opinion are forensic reports prepared by a
non-testifying expert, if the testifying expert reasonably relied on these facts
and data to reach [the] conclusions,” and the testifying expert does not
serve as a “mere conduit” for the non-testifying expert’s opinions. Karp, 236
Ariz. at 122, 124–25, ¶¶ 1, 12–13, 17–18. We reasoned:

when an expert gives an independent opinion, the expert is
the witness whom the defendant has the right to confront. In
such cases, the Confrontation Clause is satisfied if the
defendant has the opportunity to fully cross-examine the
expert witness who testifies against him, allowing the
factfinder to understand the basis for the expert’s opinion and
determine whether that opinion should be found credible.

Id. at 124, ¶ 14.

¶19 Here, as in Karp, Longoni presented his independent expert
opinions permissibly based on his review of Rast’s work, and he was subject
to Smith’s full cross-examination. Longoni thus did not act as a “mere
conduit” for her conclusions. See also Karp at 124, ¶ 13 (finding no hearsay

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violation when an expert testifies “to otherwise inadmissible evidence,
including the substance of a non-testifying expert’s analysis, if such
evidence forms the basis of the expert’s opinion”). Nor did the State
introduce Rast’s opinions or any of her work-product documents into
evidence. Had Smith sought to challenge Rast’s analysis, he could have
called her to the stand and questioned her, but he chose not to do so. See
Williams v. Illinois, 567 U.S. 50, 58–59 (2012) (A defendant “who really
wishes to probe the reliability of the . . . testing done in a particular case”
may subpoena those involved in the testing process and question them at
trial.). Given these circumstances, Smith was not deprived of his
confrontation rights.

¶20 Even so, Smith asserts three United States Supreme Court
cases—Bullcoming v. New Mexico, 564 U.S. 647 (2011), Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009), and Williams—require the exclusion of
Longoni’s testimony. Bullcoming and Melendez-Diaz do not apply here
because those cases involved the unconstitutional admission of testimonial
documents prepared by non-testifying witnesses. Bullcoming, 564 U.S. at
663–65; Melendez-Diaz, 557 U.S. at 307–11. Nor does Williams entitle Smith
to relief, given that Williams informed our analysis in Karp. 236 Ariz. at 124,
¶¶ 11–14. Moreover, “Williams is a plurality decision and has limited if any
precedential value,” State v. Ortiz, 238 Ariz. 329, 341, ¶ 52 (App. 2015), so it
provides “no binding rule for determining when reports are testimonial.”
State v. Medina, 232 Ariz. 391, 406, ¶ 60 (2013). Thus, the superior court did
not err by admitting Longoni’s testimony.

C. Substantial Evidence Supports the Convictions.

¶21 Smith further argues the superior court erroneously denied
his Rule 20 motion, asserting the State failed to present sufficient evidence
to prove the knowledge and possession elements of the charged offenses.
We review the court’s ruling de novo. State v. West, 226 Ariz. 559, 562, ¶ 15
(2011). Because Smith does not challenge the remaining elements of his
convictions, we do not address them. See State v. Bolton, 182 Ariz. 290, 298
(1995) (“Failure to argue a claim on appeal constitutes waiver of that
claim.”).

¶22 Rule 20(a)(1) directs courts to enter a judgment of acquittal “if
there is no substantial evidence to support a conviction.” Substantial
evidence “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) (quoting State v,
Jones, 125 Ariz. 417, 419 (1980)). “[T]he relevant question is whether, after

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viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 66 (quoting Jackson v. Virginia, 433 U.S.
307 (1979)). “Reversible error based on insufficiency of the evidence occurs
only where there is a complete absence of probative facts to support the
conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v.
Scott, 113 Ariz. 423, 424–25 (1976)). “When reasonable minds may differ on
inferences drawn from the facts, the case must be submitted to the jury, and
the trial judge has no discretion to enter a judgment of acquittal.” State v.
Lee, 189 Ariz. 590, 603 (1997). We do not reweigh conflicting evidence or
assess credibility in our review. State v. Buccheri-Bianca, 233 Ariz. 324, 334,
¶ 38 (App. 2013).

¶23 “Criminal intent, being a state of mind, is shown by
circumstantial evidence. [A] [d]efendant’s conduct and comments are
evidence of his state of mind.” State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009)
(quoting State v. Routhier, 137 Ariz. 90, 99 (1983)). “Possession may be actual
or constructive.” State v. Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013). It
need not be “[e]xclusive, immediate and personal.” Id. (quoting State v.
Carroll, 111 Ariz. 216, 218 (1974)). Actual possession occurs when a
defendant exercises direct, physical control over the property. Id.
“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].’” State v. Cox, 214
Ariz. 518, 520, ¶ 10 (App. 2007) (quoting State v. Villalobos Alvarez, 155 Ariz.
244, 245 (App. 1987)). Dominion means “absolute ownership”; control
means to “have power over.” Id. at ¶ 9 (quoting State v. Tyler, 149 Ariz. 312,
316 (App. 1986)).

¶24 Here, the uncontroverted evidence established that Smith
was occupying a furnished room on his father’s property early one morning
when he eventually opened the door in response to the officers’ repeated
knock-and-announce attempts. Officers had to pull Smith out of the shed
while he asserted that the officers were trespassing on the property and
harassing him. Inside the shed, the officers readily discovered over 2700
grams of marijuana, having an approximate street value of $54,000;
methamphetamine; cannabis; and drug paraphernalia.

¶25 Based on the time of day, the shed’s inhabited appearance,
and Smith’s relationship with the property owner, jurors could rationally
conclude Smith was residing in the “makeshift room.” The jury could also
reasonably conclude that Smith’s combative, uncooperative behavior

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implicitly exposed his knowledge of the contraband and that his immediate
trespassing-and-harassing accusations constituted a tacit acknowledgment
that he owned or controlled the shed’s contents. The conspicuous locations
of the illicit items and the strong odor of marijuana emanating from the
shed bolster those inferences.

¶26 Smith counters that (1) his antagonistic behavior “was no
more than protesting any contact with law enforcement,” (2) the evidence
did not establish his “actual knowledge of any of the several of the items
that were in ‘plain view’ in the shed,” (3) the others in the shed could have
asked him to answer the door, and (4) his presence in a room at his father’s
residence does not amount to ownership or control of the contraband. But
even assuming Smith’s asserted inferences are reasonable, he has merely
shown that rational minds could differ in assessing the evidence and
determining guilt. Nor do we find merit to Smith’s contention that the
prosecutor unreasonably argued the contrary inferences to the jury. See
United States v. Waldemer, 50 F.3d 1379, 1384 (7th Cir. 1995) (An inference is
reasonable when the evidence, viewed in context, “bears logical and
proximate connection to the point the prosecutor wishes to prove.”).
Moreover, because we resolve evidentiary conflicts against Smith, his
alternative accounts—which he argued to the jury—fail to provide grounds
to vacate his convictions.

¶27 Likewise, the purported absence of physical evidence
connecting him to the contraband does not invalidate his convictions. See
State v. Gill, 248 Ariz. 274, 278, ¶ 10 (App. 2020) (“[A] lack of fingerprints or
DNA is hardly determinative, as a conviction ‘may rest solely’ on
circumstantial evidence.” (quoting State v. Nash, 143 Ariz. 392, 404 (1985)).
And even if others at the property used or possessed the contraband, that
fact would not nullify Smith’s guilt. See State v. Jensen, 114 Ariz. 492, 493–94
(1977) (defendant possessed drugs found in a shared apartment’s hallway
under the theory of constructive possession). Thus, the superior court
correctly allowed the jury to decide the case, and we abide by its conclusion.

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CONCLUSION

¶28 We affirm.

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

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