State of Arizona v. Gary Edward Cox

FILED BY CLERK
IN THE COURT OF APPEALS MAR 29 2007
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

THE STATE OF ARIZONA, )
) 2 CA-CR 2005-0272
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
GARY EDWARD COX, )
)
Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR 20043431

Honorable Frank Dawley, Judge Pro Tempore

AFFIRMED

Terry Goddard, Arizona Attorney General
By Randall M. Howe and Kathryn A. Damstra Tucson
Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
By Stephan J. McCaffery Tucson
Attorneys for Appellant

E C K E R S T R O M, Presiding Judge.
¶1 Appellant Gary Cox was convicted after a jury trial of three counts of

possession of a deadly weapon by a prohibited possessor, class four felonies. After finding

Cox had six prior felony convictions, the court sentenced him to substantially mitigated,

concurrent prison terms of six years. On appeal, Cox challenges his convictions on the

grounds that the evidence was insufficient to support the conviction, the trial court erred

when it refused Cox’s requested instruction under State v. Tyler, 149 Ariz. 312, 316-17, 718

P.2d 214, 218-19 (App. 1986), and the trial court’s instruction on constructive possession

resulted in fundamental error. For the reasons stated below, we affirm.

¶2 We view the facts in the light most favorable to sustaining the convictions and

resolve all reasonable inferences against Cox. See State v. Stroud, 209 Ariz. 410, ¶ 6, 103

P.3d 912, 914 (2005). On August 1, 2004, at about 3:00 a.m., Pima County Sheriff’s

Deputy Jeffrey Bonds stopped a white Mustang on a rural road. Although the vehicle had

a 2005 registration tab on the license plate, Bonds was advised by radio that the registration

had expired in June 2004. Cox was the driver of the vehicle and his fiancée, Shari Perko,

occupied the passenger seat. The car was registered to Cox. Upon request, Cox and Perko

produced identification for the officer. After receiving their driver’s licenses, Bonds noticed

a shell casing in the center console of the vehicle. He asked if there were any weapons in

the vehicle, to which Cox replied in the negative. Perko remained silent.

¶3 While Bonds conducted record checks on Cox and Perko, Deputy Elliot Lyle

responded to assist Bonds. Out of the presence of Cox, Lyle asked Perko if there were any

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guns in the car. At first, she did not answer, looking down instead. When asked a second

time, she nodded her head. And when asked a third time, she eventually informed him there

was a shotgun in the trunk.

¶4 Deputy Lyle alerted Bonds who then asked Cox if he had any felony

convictions. Cox admitted that he did. Bonds then asked if there was a shotgun in the trunk

and Cox replied that there was. Bonds asked Cox where he had gotten it and Cox replied

“that [he and Perko] had just picked up the gun from [a friend’s] house and were taking it

back to their residence.” In the trunk, Bonds found a shotgun on top of various other items,

including two loaded pistols, a small semi-automatic .380 and a .45 caliber, breach-loading

pistol. He then searched the inside of the vehicle and found more shell casings and a .22

caliber live round in the center console.

¶5 On further questioning, Cox elaborated that the guns belonged to Perko and

that “they picked them up at [a friend’s] house, which is where they had been coming from,

and [were] taking them back to their residence.” According to Cox, Perko planned “to sell

them or get rid of them in some way.”

¶6 At trial, Perko testified that the guns belonged to her and produced bills of sale

for each one. She further testified as follows. She and Cox had gone to a friend’s house that

night for a visit. Although that friend had previously borrowed the guns, she and Cox did

not intend to retrieve them. But, because their friend was moving and was worried about

losing the guns during the move, she suggested that Perko take them back. Perko saw her

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friend put the shotgun in the trunk but was unaware that her friend had also loaded the two

pistols until Cox opened the trunk for the deputies. Perko maintained that Cox was not

present when the guns were placed in the trunk, and she claimed that Cox did not know the

guns were in the car until she alerted him after Deputy Bonds had stopped their vehicle. She

also said she had told the deputies this, although Deputy Lyle later contradicted that

assertion.

¶7 Cox argues the trial court erred in permitting the jury to convict him on

insufficient evidence. He moved for a judgment of acquittal at the close of the state’s case,

but the court denied the motion saying, “I think there are facts that are in dispute as to what

Mr. Cox may have said to the police, but I think there is enough evidence to go to the jury

under Rule 20.” See Ariz. R. Crim. P. 20(a), 17 A.R.S. (court must grant judgment of

acquittal “if there is no substantial evidence to warrant a conviction”).

¶8 We will reverse a trial court’s decision to deny a motion for a judgment of

acquittal “only if there is a complete absence of ‘substantial evidence’ to support the

conviction.” State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996).

Substantial evidence is that which “reasonable persons could accept as adequate and

sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.” State

v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). “[T]he relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

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of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

¶9 To support Cox’s conviction, the state needed to present substantial evidence

that Cox was a “prohibited possessor” and that he “[p]ossess[ed] a deadly weapon.” A.R.S.

§ 13-3102(A)(4). “Possession” is defined as “a voluntary act if the defendant knowingly

exercised dominion or control over property.” A.R.S. § 13-105(31). The same statute

describes “possess” as “knowingly to have physical possession or otherwise to exercise

dominion or control over property.” § 13-105(30). Possession need not be exclusive—it

“may be sole or joint.” State v. Miramon, 27 Ariz. App. 451, 452, 555 P.2d 1139, 1140

(1976). The terms “dominion” and “control” carry their ordinary meaning, such that

dominion means “‘absolute ownership’” and control means to “‘have power over.’” State

v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App. 1986), quoting Webster’s Third New

Int’l Dictionary (Unabridged) 496, 672 (1981).

¶10 Dominion or control in the absence of actual physical possession has been

characterized as constructive possession. See State v. Villavicencio, 108 Ariz. 518, 520,

502 P.2d 1337, 1339 (1972). 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. Constructive possession may be proven by direct or

circumstantial evidence, see State v. Villalobos Alvarez, 155 Ariz. 244, 245, 745 P.2d 991,

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992 (App. 1987), however, the mere presence of a person where prohibited property is

found is insufficient to show the person knowingly exercised dominion or control over it.

Miramon, 27 Ariz. App. at 452, 555 P.2d at 1140.

¶11 Cox does not dispute that he was prohibited from possessing a weapon,1 but

rather contends the evidence was insufficient to show that he had exercised dominion or

control over the weapons. Although Cox’s trial defense rested almost entirely on his

contention that he did not know the weapons were in the car, he also contended that, even

if he did know the guns were in the car, he did not have dominion and control, or “power

and authority” over them.

¶12 At the outset, we clarify that § 13-105(30) and (31) do not require a showing

of both dominion and control. Those subsections are written in the disjunctive. Thus, the

state needed only to present evidence to prove that (1) Cox knew the guns were in the trunk

and (2) he exercised either dominion or control over them.

¶13 The state presented ample evidence that Cox knew the weapons were in the

car. Deputy Bonds testified that Cox admitted there was a shotgun in the trunk of the car

before he opened it and then told Bonds that he and Perko had acquired the shotgun at a

friend’s house and were taking it back to their house. Cox later admitted that they were

retrieving all three guns. Nor was the jury required to credit Perko’s claim, contradicted by

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During trial, Cox and the state stipulated that he “had been previously convicted of
a felony offense, and his right to possess firearms had not been restored as of that date.”

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the nature of Cox’s admissions, that Cox was unaware of the guns until Bonds stopped their

vehicle. See State v. Manzanedo, 210 Ariz. 292, ¶ 3, 110 P.3d 1026, 1027 (App. 2005)

(jury resolves conflicts in evidence).

¶14 Cox argues that he did not exercise dominion or control over the guns because

Perko owned them. Citing Miramon he thus asserts that he was merely in the presence of

the guns. In Miramon, the defendant was charged with possession of marijuana for sale after

police officers found a large bag of marijuana under the seat that defendant occupied as a

passenger. 27 Ariz. App. at 452, 555 P.2d at 1140. The court held that insufficient

evidence existed to convict the defendant of possession of marijuana for sale because, even

though the jury could infer that defendant knew the drugs were under his seat—the bag

protruded several inches out from under the seat—“the state did not prove that he had the

right to control its disposition or use.” Id. at 452-53, 555 P.2d at 1140-41. Notably,

however, Miramon neither owned the car in question nor had been driving it at the time of

the stop. Id. at 452, 555 P.2d at 1140.

¶15 While we agree with Cox that mere potential access to someone else’s

property, as in Miramon, would be insufficient to prove possession, we disagree that the

state showed nothing more than that. The jury heard evidence that Cox was driving the

vehicle in which the guns were found, and the vehicle was registered in his name. Cox also

admitted to the deputy that he and Perko were transporting the weapons to their shared

residence. Although Perko testified the guns were hers, that she shared payments on the

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Mustang, and had her own keys to the vehicle, the jury did not need to find that Cox’s

control over the weapons was exclusive to conclude that he had control over them. Rather,

the jury could have reasonably inferred that Cox shared control of the guns with Perko

because he spoke to the officer as though he was aware of, and had consented to, the plan

to transport them and because Cox was driving the vehicle containing those guns in

accordance with that plan. See State v. Coley, 158 Ariz. 471, 471, 763 P.2d 535, 535 (App.

1988) (evidence that defendant had knowledge of plan to transport weapons and presence

of weapons in his van sufficient to support constructive possession instruction); see also

State v. Aikins, 17 Ariz. App. 328, 336, 497 P.2d 835, 843 (1972) (holding constructive

possession could be assumed from evidence that narcotics were found in car owned by,

registered to, and driven by defendant at time of arrest). Thus, the state presented sufficient

evidence from which the jury reasonably could have concluded beyond a reasonable doubt

that Cox knowingly possessed the guns that were the bases of his convictions. The trial

court did not err in denying Cox’s motion for a judgment of acquittal.

¶16 Cox next argues the trial court erred when it refused to give his requested

instruction defining prohibited possession. Absent a clear abuse of discretion, we will not

reverse a trial court’s decision to refuse a jury instruction. See State v. Bolton, 182 Ariz.

290, 309, 896 P.2d 830, 849 (1995).

¶17 A trial court is not obligated to give a proposed jury instruction “when its

substance is adequately covered by other instructions,” State v. Rodriguez, 192 Ariz. 58,

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¶ 16, 961 P.2d 1006, 1009 (1998), or if it is an incorrect statement of law. State v. Axley,

132 Ariz. 383, 393, 646 P.2d 268, 278 (1982). “[T]he test is whether the instructions

adequately set forth the law applicable to the case.” Rodriguez, 192 Ariz. 58, ¶ 16, 961

P.2d at 1009. In determining whether an instruction adequately reflects the law, we view

the instructions provided by the trial court in their entirety. State v. Gallegos, 178 Ariz. 1,

10, 870 P.2d 1097, 1106 (1994).

¶18 The trial court refused Cox’s requested instruction, an instruction using

language approved by Division One of our court in State v. Tyler, 149 Ariz. 312, 316-17,

718 P.2d 214, 218-19 (App. 1986), because it thought “the Tyler court went too far” by

“impos[ing] a higher standard than the statute.”2 The court also distinguished Tyler by

observing that Tyler’s defense, unlike Cox’s, involved the “momentary innocent handling

of the weapon.” Finally, the court said that Cox’s defenses, that he did not know about the

guns or that he was not exercising control or dominion over them, was covered by the other

instructions it had provided.

Cox’s requested instruction stated:
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As for each count of the indictment, the State must prove
beyond a reasonable doubt that Mr. Cox did willfully have or
keep a deadly weapon in his possession with the intent to
control the use and management thereof, or that Mr. Cox did
willfully have a deadly weapon in his control with the power
and intent to guide or manage such deadly weapon.

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¶19 The state argues the trial court correctly refused Cox’s requested instruction

because it is an incorrect statement of Arizona law and because the Tyler court approved it

only in dicta. We agree. In Tyler, the defendant contended that the “momentary innocent

handling” of a prohibited weapon did not constitute prohibited possession. 149 Ariz. at

316, 718 P.2d at 218. The defendant requested an instruction that would have directed the

jury that they could not find him guilty “[i]f [they found] that the government failed to prove

beyond a reasonable doubt that the defendant possessed the shotgun in question with

criminal intent.” Id. Division One upheld the trial court’s decision to refuse the instruction,

concluding that the instruction requested by the defendant was an erroneous statement of

the law because it injected a requirement of intent into the statute that went beyond the

requirement of “knowing” possession. Tyler, 149 Ariz. at 316, 718 P.2d at 218.

¶20 Nonetheless, the Tyler court then suggested that, had the defendant requested

an instruction taken from a Kansas case, State v. Runnels, 456 P.2d 16 (Kan. 1969), the trial

court would have been correct to present it to the jury. Tyler, 149 Ariz. at 316-17, 718 P.2d

at 218-19. That instruction stated that the state must prove beyond a reasonable doubt:

“That the defendant . . . did wilfully have or keep a pistol in his
possession with the intent to control the use and management
thereof, or that the defendant did wilfully have a pistol in his
control with the power and intent to guide or manage such
pistol.”

Id., quoting Runnels, 456 P.2d at 19. The instruction Cox requested was essentially

identical to that in Runnels.

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¶21 Given the opportunity to more squarely address the propriety of the Runnels

instruction in the context of a holding, we cannot similarly endorse its use. That instruction

would require that the state demonstrate that the prohibited party possessed the weapon

with either an “intent to control the use and management” of it or “with the power and

intent to guide or manage” it. Id. But we can find no such requirement set forth by our

legislature in the relevant Arizona statutes. See § 13-105(30) and (31). To the contrary, our

statute requires only that the prohibited person knowingly possess the weapon—regardless

of whether the possessor intends to control, manage, or guide its use. Id.; see also State v.

Young, 192 Ariz. 303, ¶ 22, 965 P.2d 37, 43 (App. 1998) (“[T]he State [in Tyler] was not

obliged to establish that a defendant who knowingly possessed a weapon did so with

criminal intent . . . knowing possession sufficed to constitute the crime.”). Although other

jurisdictions may choose to define the offense in the same manner as Kansas, and permit

“momentary innocent handling” of a prohibited weapon, Tyler, 149 Ariz. at 316, 718 P.2d

at 218, Arizona is not yet among them. See generally § 13-3102 (no exceptions for

knowingly possessing a prohibited weapon); see also A.R.S. §§ 13-401 through -417 (no

justification defense for momentary control or control with innocent motives). Until and

unless our legislature chooses to change it, we are bound by the existing statutory language.

¶22 Here, the trial court instructed the jury on the elements required to convict

Cox of the crime of prohibited possession. It also instructed the jury that, without physical

possession, Cox could only be convicted if he exercised dominion or control over the

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weapon. The court distinguished actual and constructive possession, explained that Cox’s

mere presence with the weapon was insufficient to convict on possession, and defined

“knowingly.” Like the Tyler court, we conclude that the trial court’s instructions, when

taken as a whole, accurately informed the jury of the statutory requirements to convict Cox

for possession of a weapon by a prohibited possessor and the trial court did not err by

refusing Cox’s requested instruction. See 149 Ariz. at 316, 718 P.2d at 218.

¶23 Cox lastly argues the trial court inadequately stated the law when instructing

the jury on constructive possession, thus causing fundamental error. See State v. Schad, 142

Ariz. 619, 621, 691 P.2d 710, 712 (1984) (possibility that conviction based on deficient jury

instruction constituted fundamental error). To prove fundamental error, Cox must show

three things: 1) error occurred, 2) the error “goes to the foundation of the case, takes away

a right that is essential to his defense, and is of such magnitude that he could not have

received a fair trial,” and 3) the error caused him prejudice. State v. Henderson, 210 Ariz.

561, ¶¶ 23-26, 115 P.3d 601, 608-09 (2005). “Fundamental error review involves a fact-

intensive inquiry, and the showing required to establish prejudice therefore differs from case

to case.” Id. ¶ 26, 115 P.3d at 608.

¶24 The instruction given by the trial court stated, “A person who . . . knowingly

exercises the right of control over a thing, either directly or through another person, is then

in constructive possession of it.” Although the trial court omitted that possession is defined

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also as a person exercising “dominion” over the object, we cannot agree that the trial court

erred in doing so.

¶25 As mentioned above, § 13-105(30) and (31) do not require a possessor to

exercise both dominion and control over an object, only one or the other. When instructing

the jury on what it means to “possess” a prohibited weapon, the trial court captured both

by explaining Cox had to “knowingly exercise dominion or control over property.” Thus,

the court covered the relevant concept in another instruction.

¶26 Moreover, the common definition of “dominion” is “‘absolute ownership.’”

Tyler, 149 Ariz. at 316, 718 P.2d at 218, quoting Webster’s, supra ¶ 10, at 672. In this

case, the state’s theory rested on Cox having control of the guns because he knew they were

in his vehicle and was knowingly transporting them, with his fiancée, to their shared

residence. The state did not argue that Cox had exclusive or absolute ownership of, or

dominion over, the guns. Thus, the dominion language arguably would not have assisted the

jury in addressing the relevant legal issues in dispute. In short, in the context of the other

instructions provided and the specific theories presented by the parties to the jury, the trial

court did not commit error, fundamental or otherwise, by omitting the word “dominion”

from the constructive possession instruction it provided.

¶27 For the foregoing reasons, we affirm.

____________________________________
PETER J. ECKERSTROM, Presiding Judge

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CONCURRING:

____________________________________
J. WILLIAM BRAMMER, JR., Judge

____________________________________
PHILIP G. ESPINOSA, Judge

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