State v. Cox

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0127-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 05-0272
)
GARY EDWARD COX, ) Pima County
) Superior Court
) No. CR 20043431
Appellant. )
__________________________________) O P I N I O N

Appeal from the Superior Court in Pima County
The Honorable Frank Dawley, Judge Pro Tem

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
214 Ariz. 518, 155 P.3d 357 (2007)

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Tucson
By Randall M. Howe, Chief Counsel
Criminal Appeals Section
Diane L. Hunt, Assistant Attorney General
Attorneys for State of Arizona

ISABEL G. GARCIA, PIMA COUNTY LEGAL DEFENDER Tucson
By Stephan J. McCaffery, Deputy Legal Defender
Attorneys for Gary Edward Cox
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 Gary Edward Cox asks us to review his convictions for

three counts of misconduct involving weapons. He asserts that
the jury was improperly instructed and that the jury’s verdict

was not supported by sufficient evidence. We find no error.

I. FACTS AND PROCEDURAL BACKGROUND

¶2 In the early morning of August 1, 2004, Pima County

Deputy Sheriff Jeffrey Bonds pulled over a white Ford Mustang

for having an improper registration tag on the license plate.

Bonds requested identification from the two occupants of the

car: Gary Cox, the driver and registered owner of the car, and

Cox’s fiancée, Shari Lynn Perko, who sat in the front passenger

seat. After obtaining their licenses, Bonds noticed a spent

shell casing in the center console and asked if there were any

firearms in the car. Cox responded in the negative; Perko

remained silent.

¶3 While Deputy Bonds conducted record checks on Cox and

Perko, Deputy Elliot Lyle arrived on scene. Lyle asked Perko to

step out of the car and, out of Cox’s presence, asked Perko

whether there were any weapons in the vehicle. Perko initially

avoided eye contact with Lyle and did not answer, but after

further questioning, she acknowledged that there was a shotgun

in the trunk.

¶4 After Lyle informed Bonds about the shotgun, Bonds

asked Cox if he had any felony convictions. Cox conceded that

he did. Bonds then asked Cox whether there was a shotgun in the

trunk and Cox admitted that there was. Cox explained that he

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and Perko “had just picked up the gun from [a friend’s] house

and were taking it back to [Cox and Perko’s] residence.”

¶5 When Cox opened the trunk, Bonds found an unloaded

shotgun and two loaded pistols. Several more shell casings and

a live .22 caliber round were found in the center console.

Bonds arrested Cox for prohibited possession of a deadly weapon.

¶6 At trial, Perko testified that the guns belonged to

her and produced a handwritten bill of sale for each gun. Perko

further testified that, on the evening in question, she and Cox

had visited her friend, B.P. Cox left the house to play pool

with an acquaintance while Perko helped B.P. pack for an

imminent move. Because she was moving, B.P. returned to Perko

guns she had previously borrowed. During Cox’s absence, Perko

and B.P. placed various items in Cox’s Mustang, including a

computer, the shotgun, and some power tools. Perko claimed to

have been unaware of the presence of the two pistols.

¶7 Perko maintained that Cox did not know of the firearms

in the trunk until she alerted him about the shotgun after

Deputy Bonds had stopped the vehicle. Although Perko testified

that she told this to Bonds and Lyle, both deputies disputed

that assertion in their testimony.

¶8 The jury convicted Cox of three counts of misconduct

involving weapons, in violation of Arizona Revised Statutes

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(“A.R.S.”) section 13-3102(A)(4) (2001).1 The judge found that

Cox had been convicted of two prior felonies2 and sentenced him

to substantially mitigated, concurrent prison terms of six years

on each count.

¶9 Cox appealed, arguing that the jury’s verdict was not

supported by sufficient evidence and that the trial court erred

by refusing to give a possession instruction based upon State v.

Tyler, 149 Ariz. 312, 316-17, 718 P.2d 214, 218-19 (App. 1986).

The court of appeals affirmed. State v. Cox, 214 Ariz. 518,

523, ¶ 27, 155 P.3d 357, 362 (App. 2007). We granted review to

address the sufficiency of the evidence and to resolve a

possible conflict between Division Two’s opinion in this case

and Division One’s opinion in Tyler. We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution,

A.R.S. § 13-4033(A)(1) (2004), and Arizona Rule of Criminal

Procedure 31.19.

1
We cite the version of the statute in effect when Cox
committed his crimes. Section 13-3102(A)(4), the section under
which Cox was convicted, remains unchanged.
2
Although Cox had other convictions, see State v. Cox, 214
Ariz. 518, 519, ¶ 1, 155 P.3d 357, 358 (App. 2007) (noting that
“Cox had six prior felony convictions”), Cox’s sentence was
based on only two prior felony convictions: a 2000 auto theft
conviction and a 1987 aggravated DUI conviction.

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 II. DISCUSSION

A. Jury Instructions

¶10 Cox argues that the trial judge erred by refusing to

give an instruction suggested by the court in State v. Tyler,

which requires willful possession or control of a weapon with

the intent to use, guide, or manage it. See 149 Ariz. at 316-

17, 718 P.2d at 218-19.

¶11 The instruction given at trial defined possession

using the terminology in A.R.S. § 13-105(30). The judge

instructed the jury that “‘[p]ossess’ means to knowingly

exercise dominion or control over property.”

¶12 The jury was then instructed as follows on

constructive possession and mere presence:

The law recognizes two kinds of possession: actual
possession and constructive possession. A person who
knowingly has direct physical control over a thing is
in actual possession of it. A person who, although
not in actual possession, knowingly exercises the
right of control over a thing, either directly or
through another person, is then in constructive
possession of it.

The law also recognizes that one person may have
possession alone, or that two or more persons jointly
may share actual or constructive possession.

. . . .

The mere presence of a person at a place where weapons
are found is insufficient to establish that the person
knowingly possessed or exercised control over the
weapons.

¶13 Cox argues that the trial court erred by refusing to

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also give the following instruction, based on the one suggested

in Tyler, 149 Ariz. at 316-17, 718 P.2d at 218-19:

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.

The trial court in Tyler did not give the similar instruction

because it had not been requested. The court of appeals

suggested in dicta, however, that such an instruction would be

proper in an appropriate case. Id. at 316-17, 718 P.2d at 218-

19.

¶14 The trial court here similarly refused to give the

Tyler instruction, reasoning that the proposed instruction

“imposes a higher standard” than is required by Arizona’s

misconduct involving weapons statute. See A.R.S. § 13-

3102(A)(4).

¶15 We evaluate the trial court’s denial of a proposed

jury instruction for abuse of discretion, but review de novo

whether a jury instruction correctly states the law. State v.

Johnson, 212 Ariz. 425, 431, ¶ 15, 133 P.3d 735, 741 (2006).

This Court views instructions in their entirety when determining

whether they correctly reflect the law. State v. Gallegos, 178

Ariz. 1, 10, 870 P.2d 1097, 1106 (1994). If a jury would be

misled by the instructions when taken as a whole, the trial

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court has committed reversible error. Id. If, on the other

hand, the instructions as a whole are “substantially free from

error,” the court should affirm the convictions. See State v.

Norgard, 103 Ariz. 381, 383, 442 P.2d 544, 546 (1968). Applying

those standards, we find no error in the superior court judge’s

refusal to give the Tyler instruction.

¶16 The court in Tyler formulated its instruction based on

State v. Runnels, a Kansas Supreme Court case interpreting a

Kansas weapons statute. Runnels, 456 P.2d 16, 17 (Kan. 1969)

(interpreting Kan. Stat. Ann. § 21-2611 (1967)). Unlike

Arizona, however, Kansas has not adopted the Model Penal Code.

Terminology such as “criminal intent” and mental states such as

“purposeful” and “willful” are no longer used in Arizona. Since

Arizona’s adoption of the Model Penal Code in 1978,3 Arizona

criminal law has recognized only four culpable mental states:

intentionally, knowingly, recklessly, and with criminal

negligence. See A.R.S. § 13-105(9). Although “willfully” is

defined similarly to “knowingly,” an instruction using

“willfully” as the required mental state is needlessly

confusing. See A.R.S. § 1-215(42) (defining willfully as

“aware[ness] or belie[f] that the person’s conduct is of that

nature or that the circumstance exists”).

3
1977 Ariz. Sess. Laws, ch. 142, § 39.

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¶17 More significantly, by requiring that a defendant

willfully possess a weapon “with the intent to control the use

or management thereof” or with the “intent to guide or manage”

the weapon, the proposed instruction adds an element not

required by Arizona’s prohibited possession statute – willful

possession with the intent to manage, guide, or control the

firearm. Such an instruction incorrectly states Arizona law.

Courts do not err by refusing to give instructions that misstate

the law. State v. Axley, 132 Ariz. 383, 393, 646 P.2d 268, 278

(1982).

¶18 Cox also argues that the jury instructions given in

this case were inadequate because they did not define the term

“control.” Cox asserts that the Tyler instruction, which

requires that a defendant have kept a weapon “in his possession

with the intent to control the use and management thereof” or

that the defendant had “the power and intent to guide or manage

such [weapon],” would have provided better guidance. Tyler, 149

Ariz. at 316-17, 718 P.2d at 218-19.

¶19 The instruction Cox requested, however, does not

define “control.” It simply uses the term without defining it.

Cox offered no other definition, either at trial or on appeal.

¶20 Nor do Arizona’s criminal statutes define “control.”

In the absence of statutory definitions, we give words their

ordinary meaning. A.R.S. § 1-213 (2002) (“Words and phrases

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shall be construed according to the common and approved use of

the language.”); State v. Riggs, 189 Ariz. 327, 333, 942 P.2d

1159, 1165 (1997). The word “control” is not a technical term

requiring an explanation to the average juror, nor has the

legislature given it a peculiar meaning. Because the word

“control” has a commonly understood meaning, we cannot say that

the trial court abused its discretion in failing to separately

define it for the jury.

¶21 Because the Tyler instruction employs a mental state

not used in Arizona criminal law and requires an element not

required by statute, we hold that the trial court did not err by

refusing to give the instruction.

B. Sufficiency of the Evidence

¶22 Cox next objects that the State presented insufficient

evidence to support the verdict. We review the sufficiency of

evidence presented at trial only to determine whether

substantial evidence supports the jury’s verdict, “viewing the

facts in the light most favorable to sustaining the jury

verdict.” State v. Roque, 213 Ariz. 193, 218, ¶ 93, 141 P.3d

368, 393 (2006). Substantial evidence is evidence that

“reasonable persons could accept as sufficient to support a

guilty verdict beyond a reasonable doubt.” State v. Stroud, 209

Ariz. 410, 412-13, ¶ 6, 103 P.3d 912, 914-15 (2005) (quoting

State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468 (1997)).

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“[T]he relevant question is whether, after 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.” Jackson v. Virginia, 443 U.S.

307, 319 (1979).

¶23 To convict a defendant of violating A.R.S § 13-

3102(A)(4), the state must prove that the defendant knowingly

“posssess[ed] a deadly weapon . . . if such person is a

prohibited possessor.” The parties stipulated that Cox, a

previously convicted felon, was a prohibited possessor. Cox

contested only whether he knowingly possessed the firearms.

¶24 The term “possess” is defined by statute as “knowingly

to have physical possession or otherwise to exercise dominion or

control over property.” A.R.S. § 13-105(30). In this case, the

State did not claim that Cox physically possessed the weapons.

The State argued that Cox constructively possessed the weapons;

that is, Cox was aware of the guns in his trunk and had control

over them.

¶25 At the close of the evidence, Cox moved for a judgment

of acquittal under Rule 20 of the Arizona Rules of Criminal

Procedure, asserting that the State had not presented

substantial evidence that he exercised control over the weapons.

Instead, he argued, the evidence merely showed his presence in

the vicinity of the guns. The court denied the motion.

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¶26 Cox correctly notes on appeal that the State bore the

burden of proving beyond a reasonable doubt that he (1) knew

that the guns were in the trunk and (2) exercised control over

them. Focusing only on evidence presented by the defense, Cox

contends that the State failed to present substantial evidence

from which a jury could find that he actually possessed the

weapons or that he exercised control over them. He maintains

that his mere presence in a car in which guns are found is

insufficient to support a criminal conviction. See State v.

Miramon, 27 Ariz. App. 451, 452, 555 P.2d 1139, 1140 (1976)

(noting that the defendant’s “mere presence” where contraband is

found is insufficient to establish knowing possession of the

contraband).

¶27 Here, however, the State presented evidence of more

than mere presence. Cox owned and was driving the car

containing the guns.4 After being stopped, he acknowledged to

Deputy Bonds that there was a shotgun in the trunk, indicating

knowledge of its presence. Moreover, several shell casings and

a live round were found in the vehicle, further suggesting that

the car might contain weapons. Although the parties presented

differing theories as to when Cox became aware of the guns, the

4
At oral argument, the State urged this Court to adopt a
rule that the driver of a vehicle always controls weapons in the
vehicle. We decline to craft so broad a rule as such a
conclusion is not necessary to resolve this case.

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verdict indicates that the jury found the deputies’ testimony

regarding the events more credible than Perko’s. “No rule is

better established than that the credibility of the witnesses

and the weight and value to be given to their testimony are

questions exclusively for the jury.” State v. Clemons, 110

Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974); see also State

v. Lehr, 201 Ariz. 509, 517, ¶ 24, 38 P.3d 1172, 1180 (2002).

¶28 Because sufficient evidence was presented from which

reasonable jurors could find beyond a reasonable doubt that Cox

knowingly controlled the guns, we conclude that the Rule 20

motion was properly denied.

III. CONCLUSION

¶29 We hold that the trial court properly instructed the

jury and that the State presented sufficient evidence from which

reasonable jurors could have found Cox guilty beyond a

reasonable doubt. We therefore affirm the judgment of the trial

court and the opinion of the court of appeals.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

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_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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