State of Arizona v. Kevin Ottar and Ruan Junior Hamilton

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-12-0462-PR
Appellant, )
) Court of Appeals
v. ) Division One
) Nos. 1 CA-CR 11-0592
KEVIN OTTAR and RUAN JUNIOR ) 1 CA-CR 11-0600
HAMILTON, ) (Consolidated)
)
Appellees. ) Maricopa County
) Superior Court
) Nos. CR2010-155798-001
) CR2010-155798-002
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge

REVERSED
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Memorandum Decision of the Court of Appeals, Division One
Filed Oct. 9, 2012

AFFIRMED
________________________________________________________________

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By E. Catherine Leisch, Deputy County Attorney
Attorneys for the State of Arizona

MEHRENS AND WILEMON PA Phoenix
By Craig Mehrens
Amy Wilemon
Attorneys for Kevin Ottar

KIMERER & DERRICK PC Phoenix
By Clark L. Derrick
Michael Alarid, III
Attorneys for Ruan Junior Hamilton
________________________________________________________________
P E L A N D E R, Justice

¶1 In a “reverse-sting” operation, undercover law

enforcement officers sell drugs or other contraband to

unsuspecting purchasers. The issue here is whether purchasers

who handle and pay for drugs in a reverse sting, but do not and

would not have been allowed to take them away, can be said to

“possess” drugs for sale. Contrary to the purchasers’ argument,

we conclude that it is possible to commit the offense of

possessing drugs for sale under these circumstances.

I.

¶2 An undercover detective arranged to sell a large

quantity of marijuana to defendants Ruan Hamilton and Kevin

Ottar.1 The marijuana was in bales in a warehouse that

undercover law enforcement officers covertly monitored and

controlled. The defendants and the detective went to the

warehouse, where the defendants touched, smelled, and inspected

the marijuana bales, placing those they liked into separate

piles. The defendants agreed to buy 375 pounds, left the

warehouse, and met with undercover detectives at a house, where

the defendants paid $180,000 in cash for the intended purchase.

After returning to the warehouse, the defendants repackaged the

1
We describe the facts as set forth in the defendants’ joint
motion to dismiss, which indicated the facts were taken from law
enforcement reports and the grand jury presentation and were
“undisputed” for purposes of the motion.
2

marijuana using a product to mask the odor. They were arrested

at a hotel before taking any marijuana from the warehouse.

¶3 The defendants were charged, among other counts, with

possession of marijuana for sale, in violation of A.R.S. § 13-

3405(A)(2). They jointly moved to dismiss that count under

Arizona Rule of Criminal Procedure 16.6(b), arguing broadly that

“it is impossible to commit possession of marijuana for sale in

a reverse sting operation,” and more specifically that they did

not possess the marijuana here because both the drugs and the

warehouse were controlled by police at all times. The trial

court granted the motion in part, ruling that “the police

officers were never going to allow [the defendants] to possess

[the marijuana],” but permitted the State to proceed instead on

a charge of attempted possession. See A.R.S. § 13-1001(A).

After the court dismissed the case without prejudice at the

State’s request, the court of appeals reversed, concluding that,

given the legal definition of “possess,” it was not impossible

for the defendants to have possessed the marijuana and committed

the charged offense even though the police never intended to

allow them to leave with the drugs. State v. Ottar, Nos. 1 CA-

CR 11-0592, 1 CA-CR 11-0600, 2012 WL 4789834, at *2 ¶ 8 (Ariz.

App. Oct. 9, 2012) (mem. decision).

¶4 We granted review because the question of possession

in a reverse-sting operation is of statewide importance and

3

likely to recur. We have jurisdiction under Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶5 Under § 13-3405(A)(2), it is unlawful to knowingly

possess marijuana for sale. Although that statute does not

define “possess,” A.R.S. § 13-105(34) does: “‘Possess’ means

knowingly to have physical possession or otherwise to exercise

dominion or control over property.” The statutory definition

thus recognizes two kinds of possession: actual possession (“to

have physical possession”) and constructive possession (“or

otherwise to exercise dominion or control over property”).

¶6 The State claims that the defendants actually

possessed the marijuana; it does not advance a constructive

possession theory. Cf. State v. Villavicencio, 108 Ariz. 518,

520, 502 P.2d 1337, 1339 (1972) (generally, “constructive

possession” applies to circumstances where the drug is not found

on the defendant’s person or in his presence, but rather in a

place “under his dominion and control” and when “it can be

reasonably inferred that the defendant had actual knowledge of

the existence of the narcotics”). The defendants argue that

they never actually possessed the marijuana and that it was

impossible for them to do so.

¶7 As an initial matter, we reject the State’s

contentions that “physical possession” is distinct from having

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“dominion or control” over property, and that possession

occurred when the defendants merely touched and handled the

marijuana. We instead conclude, as indicated by the

definitional statute’s use of the phrase “otherwise to exercise

dominion or control over property,” that “physical possession”

requires some exercise of dominion or control over property.

A.R.S. § 13-105(34) (emphasis added); see also id. § 13-105(35)

(stating that “‘[p]ossession’ means a voluntary act if the

defendant knowingly exercised dominion or control over

property”); United States v. Adams, 625 F.3d 371, 383 (7th Cir.

2010) (“One actually possesses a thing when it is in his

physical custody and control.”); cf. State v. Barreras, 112

Ariz. 421, 423, 542 P.2d 1120, 1122 (1975) (reversing conviction

for possession of heroin when no evidence supported finding that

the defendant “had dominion and control, either actual or

constructive,” over the drugs).

¶8 “Dominion” is not alleged or at issue here. The

critical question, then, is whether the defendants

“exercise[d] . . . control” over the marijuana within the

meaning of § 13-105(34). Because Arizona’s criminal statutes do

not define “control,” we give that word its ordinary meaning.

A.R.S. § 1-213; see State v. Cox, 217 Ariz. 353, 356 ¶ 20, 174

P.3d 265, 268 (2007) (noting that “control is not a technical

term” and “has a commonly understood meaning”).

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¶9 Generally, 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 International Dictionary

(Unabridged) 496 (1981)); see also Black’s Law Dictionary 378

(9th ed. 2009) (defining “control” as “[t]o exercise power or

influence over”). Thus, control implies more than mere touching

or inspection of contraband. In the reverse-sting context,

control requires that the defendant “has taken custody of the

drugs or manifested an intent to do so.” Adams, 625 F.3d at

383. This meaning comports with “Arizona’s broad definition of

‘possess.’” State v. Cheramie, 218 Ariz. 447, 449 ¶ 11, 189

P.3d 374, 376 (2008). But it also differentiates the crime of

possession from that of attempted possession. See United States

v. Kitchen, 57 F.3d 516, 525 (7th Cir. 1995) (“[R]eading the

element of control out of the equation . . . risk[s] confusing

possession with attempted possession.”).

¶10 Kitchen and Adams, both reverse-sting cases decided by

the Court of Appeals for the Seventh Circuit, aptly illustrate

these principles. In Kitchen, the court reversed the

defendant’s conviction for possessing cocaine with intent to

distribute because the evidence showed only that he had

momentarily handled and inspected the cocaine after expressing

an interest in buying some. Id. at 519, 524-25. No evidence

showed that, before his arrest, the defendant had assented to a

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deal, otherwise agreed to complete the transaction, tendered any

purchase money, or intended to take or transport the drugs. Id.

at 522-23. Absent any such facts, possession was not

established because the defendant “neither controlled [the

drugs] nor had recognized authority over them.” Id. at 525.

“Lack of control,” the court concluded, was “dispositive under

both the doctrines of actual and constructive possession.” Id.

¶11 Conversely, in Adams, the court upheld the defendant’s

conviction for possessing marijuana with intent to distribute,

finding the evidence sufficient to establish actual and

constructive possession. 625 F.3d at 385-86. There, the

defendant paid for the marijuana, took the keys to a van

containing the drugs, and attempted to start the van, not

knowing that federal agents had disabled it. Id. at 376.

Distinguishing Kitchen, the court noted that “Adams

unequivocally manifested his assent to possession of the

marijuana,” “constructively possess[ing]” it “once he accepted

the keys to the van,” and “actually possess[ing] it once he

entered the van and attempted to start it.” Id. at 385-86.

Even though a defendant in a reverse-sting operation “ha[s] no

practical ability to leave the scene with the [drugs]” because

of “the presence of law enforcement officers standing ready to

arrest him,” the Adams court reasoned that “the defendant, by

knowingly taking the drugs into his custody, has done all that

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he can do, short of leaving the scene with them, to signal his

desire and intention to accept control over the drugs.” Id. at

383-84 (collecting cases from other federal circuit courts

finding possession in reverse-sting operations with similar

facts); cf. State v. Gasperino, 859 S.W.2d 719, 722 (Mo. Ct.

App. 1993) (constructive possession charge not defeated by fact

that defendant “never would have had actual possession due to

police policy,” or that officers intervened with arrest before

defendant “could actually pick up the marijuana” he thought he

had purchased).

¶12 Like the court in Kitchen, we conclude that a

defendant in a reverse-sting operation does not possess drugs

merely by touching or inspecting them before a purchase is

consummated. See 57 F.3d at 525 (“The intent to engage in a

drug transaction, without more, cannot support a conviction for

possession.”). But like the court in both Kitchen and Adams, we

also conclude that possession is not rendered legally impossible

merely because a defendant does not leave the scene with the

drugs and has little practical ability to do so. See id. at

522, 524 (noting that many courts have “reject[ed] the argument

that a defendant cannot have possessed the controlled substance

in light of the presence of federal agents,” and that Kitchen’s

lack of control was “not because the presence of federal agents

would have ultimately prevented his success”); Adams, 625 F.3d

8

at 385 (the defendant’s ability or opportunity “to drive away

[with the drugs] was not necessary to establish his possession

of the marijuana”). “Of necessity, the particulars of a given

drug transaction will drive the determination that a certain

aspect of the defendant’s conduct is unequivocal enough to

establish possession.” Kitchen, 57 F.3d at 523.

¶13 Applying those principles, we conclude that in a

reverse-sting operation, a defendant may be found to have

possessed drugs within the meaning of Arizona’s statutes if the

defendant exerts some control over or manifests an intent to

control the drugs. See Adams, 625 F.3d at 383; Kitchen, 57 F.3d

at 524-25. On the facts alleged here, Ottar and Hamilton did

so, “signal[ing] [their] desire and intention to accept control

over the drugs” by not merely touching and smelling the

marijuana, but by segregating and arranging in separate piles

the portions they wanted to buy, repackaging those bundles

(using a product to mask the odor), and paying for their

intended purchase. Adams, 625 F.3d at 384. Those actions

sufficiently demonstrate the defendants’ intent to exercise

control over and possess the marijuana, notwithstanding the

police presence at the scene. The Arizona statutes do not

suggest that, to have physical possession, one’s exercise of

control must be exclusive of others’ or absolute.

¶14 The defendants, however, argue (and the trial court

9

essentially ruled) that their conduct falls squarely within

A.R.S. § 13-1001, which defines the preparatory offense of

attempt, and the State is therefore precluded from charging them

with the completed offense under § 13-3405(A)(2). We disagree.

¶15 “An attempt is substantively different from a

completed crime” and “requires only that the defendant intend to

engage in illegal conduct and that he take a step to further

that conduct.” Mejak v. Granville, 212 Ariz. 555, 559 ¶ 20, 136

P.3d 874, 878 (2006) (citing A.R.S. § 13-1001). “The ultimate

crime need not be completed, or even possible, for a defendant

to be criminally responsible for an attempt to commit a crime.”

Id. Conversely, “a defendant cannot be held criminally

responsible for a completed crime when it is impossible to

commit the offense,” id. ¶ 21, that is, “when the facts required

for the commission of the completed offense are not present,

even though the defendant may believe so,” id. at 558 ¶ 15, 136

P.3d at 877.

¶16 Relying on Mejak, the defendants contend it was

impossible for them to commit the completed offense of

possession of marijuana for sale. But in that case, the

defendant “could not violate the criminal statute [A.R.S. § 13-

3554] under which he was indicted” because the person he lured

for sexual exploitation was in fact neither a minor nor a peace

officer posing as a minor, a statutory prerequisite for the

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completed crime. Id. at 559 ¶ 21, 136 P.3d at 878. Here, in

contrast, the practical improbability of the defendants taking

marijuana from the warehouse does not render their possession of

the drugs, and thus their commission of the completed offense,

legally impossible. Nor is this case like State v. McElroy, in

which “the defendant could never have been convicted of

possession of dangerous drugs” when the material he possessed

was not illegal, even though he thought it was. 128 Ariz. 315,

317, 625 P.2d 904, 906 (1981).

¶17 The State certainly could have charged Ottar and

Hamilton with attempted possession of marijuana for sale, and it

then would have had an easier case to prove. But nothing

required the State to charge only attempt rather than the

completed crime, despite the defendants’ claim of impossibility.

See People v. Rizo, 996 P.2d 27, 30 (Cal. 2000) (“When

determining whether the commission of a crime is factually

impossible, we do not concern ourselves with the niceties of

distinction between physical and legal impossibility,” but

rather “focus on the elements of the crime and the intent of the

defendant.” (internal quotation marks omitted)).

¶18 Defendants also rely heavily on State v. Miramon,

which, unlike this case, concerned whether the evidence at trial

was sufficient to establish constructive possession. 27 Ariz.

App. 451, 452, 555 P.2d 1139, 1140 (1976). The court of appeals

11

in Miramon found insufficient evidence to support the

defendant’s conviction of possession of marijuana for sale in

part because “the state did not prove that [the defendant] had

the right to control [the marijuana’s] disposition or use.” Id.

at 453, 555 P.2d at 1141. But no such prerequisite to

possession is found in the statutes or cases. See A.R.S. §§ 13-

105(34), -3405(A)(2); State v. Salinas, 181 Ariz. 104, 106, 887

P.2d 985, 987 (1994) (recognizing the elements of possession of

narcotics for sale). It is not necessary for a defendant

charged with actually possessing drugs to be found to have had a

“right,” legal or otherwise, to control their disposition or

use. We therefore reject the defendants’ effort to extend

Miramon to this case.

¶19 Defendants also urge us to follow Skrivanek v. State,

a reverse-sting case in which the trial court found dominion or

control lacking and therefore dismissed possession charges

against the defendant, who was convicted instead of attempted

possession. 739 A.2d 12, 16-18 (Md. 1999). That case is

inapposite, however, because the trial court’s ruling on the

possession charges was not at issue on appeal. Id. at 14. In

addition, that ruling was colored by the trial court’s reliance

on an undercover officer’s testimony that the defendant “was in

custody” at all pertinent times. Id. at 17. Here, in contrast,

the defendants were not in custody until they were arrested,

12

several hours after they had extensively handled, inspected,

paid for, and repackaged the marijuana they wanted to buy.

III.

¶20 We hold that it was not legally impossible for the

defendants to possess the marijuana, despite the practical

difficulty of leaving the scene with it, given the police

presence in the reverse-sting operation. Because the facts

alleged are not insufficient as a matter of law, the trial court

erred in dismissing the possession-for-sale charge under Rule

16.6(b).2 We thus reverse that ruling and affirm the court of

appeals’ decision. Like the court of appeals, however, we

express no opinion whether the evidence to be presented at trial

will suffice to sustain convictions on the possession charge.

See Ariz. R. Crim. P. 20. At that stage, unlike now, the

question will be whether there is “evidence sufficient to

2
At oral argument, the parties disagreed on some of the
underlying facts. The defendants, for example, argued that they
went to the warehouse only once, contrary to the “undisputed”
facts set forth in their motion to dismiss. Such factual
disputes, however, are immaterial at this stage of the
proceedings. Motions to dismiss under Rule 16.6(b) are not a
means for testing, before trial, whether the state has enough
evidence to prove the elements of an offense. Compare Ariz. R.
Crim. P. 16.6(b) (standard for dismissal is whether charge “is
insufficient as a matter of law”), with Ariz. R. Crim. P. 20
(standard for judgment of acquittal on charge is whether “there
is no substantial evidence to warrant a conviction”). “If a
defendant can admit to all the allegations charged in the
indictment and still not have committed a crime, then the
indictment is insufficient as a matter of law” and subject to
dismissal under Rule 16.6. Mejak, 212 Ariz. at 556 ¶ 4, 136
P.3d at 875. That is not so here.
13

establish [the] defendant’s actual or constructive possession of

[marijuana] once the defendant or his accomplice has taken

custody of the drugs or manifested an intent to do so.” Adams,

625 F.3d at 383.

__________________________________
John Pelander, Justice

CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
Scott Bales, Vice Chief Justice

__________________________________
Robert M. Brutinel, Justice

__________________________________
Ann A. Scott Timmer, Justice

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