State v. Petrak

• Decision Date: 31 August 2000
• Docket Number: No. 1 CA-CR 99-0730.,1 CA-CR 99-0730.
• Citation: 8 P.3d 1174,198 Ariz. 260
• Parties: STATE of Arizona, Appellee, v. David Edward PETRAK, Appellant.
• Court: Arizona Court of Appeals

8 P.3d 1174

198 Ariz. 260

STATE of Arizona, Appellee, v. David Edward PETRAK, Appellant.

No. -0730.

Court of Appeals of Arizona, Division 1, Department E.

August 31, 2000.

As Amended September 11, 2000.

Janet Napolitano, Attorney General By Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and James P. Beene, Assistant Attorney General, Phoenix, for Appellee.

Sherman Jensen, Chandler, for Appellant.

OPINION

GERBER, Judge.

¶ 1 David Edward Petrak appeals his conviction for misconduct involving weapons pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 13-3102(A)(8) (Supp. 1999). He contends the trial court erred in admitting certain evidence and in failing to instruct the jury that, to convict, it had to find more than a mere temporal nexus between the guns and the drugs that formed the factual basis for the charge. We agree and reverse Petrak's conviction for weapons misconduct.

FACTS

¶ 2 Petrak was charged by indictment with possession of marijuana for sale, possession of marijuana, possession of drug paraphernalia, and weapons misconduct.¹ The indictment specified that he committed weapons misconduct by possessing a deadly weapon during the commission of a felony and alleged that the underlying felony was possession of marijuana and/or possession of drug paraphernalia. Before trial, the state moved to amend the indictment to clarify that the possession-for-sale charge could also form the basis for the weapons-misconduct charge. Petrak did not object to the amendment, and the trial court allowed it.

¶ 3 Prior to trial, Petrak filed a "trial memorandum" advising the court of his position that conviction on the weapons misconduct charge required proof of more than mere possession of guns along with possession of drugs. He contended that the evidence must show a nexus between the guns and the drugs, that the guns must "facilitate, or have the potential of facilitating, the drug... offense," citing Smith v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (citations omitted). During the first day of trial, the parties discussed this issue, and the state agreed that, if the weapons were physically separate from the drugs, there would be "two separate incidents," but argued that the evidence would show that Petrak possessed, in his vehicle, a pipe with marijuana in its bowl and two guns. Petrak continued to argue that the statute requires not only physical proximity but also a nexus between the guns and the drugs to support a conviction.

¶ 4 At trial, the state presented evidence of drugs and paraphernalia found in Petrak's house and of a marijuana pipe and two guns found in his truck. Petrak objected to the state's introduction of testimony that guns were found in his house and moved for a mistrial after the court overruled his objection and allowed the testimony. He contended that, throughout the case, he believed the state's theory of the weapons misconduct charge was based on the guns and drugs found in his truck, not on guns and drugs found in his home.² He argued that the state changed its theory of the case because it had failed to have the substance found in the pipe analyzed and therefore could not present expert testimony that the substance was marijuana, which undermined its attempt to prove weapons misconduct based on evidence of guns and drugs in the vehicle. The trial court denied the motion for mistrial. Over Petrak's objection, the trial court allowed Officer Duthie to testify that, in his opinion, the substance found in the pipe in the truck was marijuana.

¶ 5 Petrak later renewed his motion for mistrial, contending that the testimony regarding the guns in the house should not have been admitted. He alternatively moved for a directed verdict of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure, arguing that there was no nexus between the drugs found in the house and either the guns in the house or the guns in the vehicle, and that there was inadequate proof of a usable amount of marijuana in the vehicle to support a conviction based on the guns and drugs in the truck. The state appeared to agree that it was arguing for conviction only on the basis of either the guns and drugs in the house or the guns and drugs in the vehicle, not on the basis of the guns in the truck and the drugs in the house. The trial court denied Petrak's motion, reading the statute to mean that, "If you're in possession of illegal drugs it's a crime to be in possession of a gun, and that means to own one." Over Petrak's objection, the trial court allowed the state to reopen its case to present Duthie's opinion that the marijuana in the pipe in the truck was a usable amount.

¶ 6 In settling the jury instructions, the trial court denied Petrak's request for an instruction explaining that the jury must find a nexus between the guns and drugs to convict on the weapons misconduct charge. The court instructed the jury that

The crime of misconduct involving weapons requires proof of the following:

One. David Edward Petrak knowingly used or possessed a deadly weapon during the commission of a drug offense.

In closing argument, the state argued as follows:

Finally, you have the elements ... of the ... weapons offense. Knowingly used or possessed deadly weapons during a drug offense.

He possessed marijuana. That is clear. It's all over his house.

He also possessed deadly weapons; two pistols inside of his car, with a lot of ammunition. Both of the pistols were loaded. Four of the weapons inside of his house, inside of his room.

¶ 7 During deliberations, the jurors sent a question to the court:

Count # 4 "Commission of a drug offense"—Does the law say: if you are away from the substance, are you still in possession of the substance (i.e., if the substance is at home and you are at work—are you in possession)?

The court referred the jury to the instructions given and to the verdict forms.

¶ 8 The jury convicted Petrak of all four offenses charged. After denying Petrak's motion for a new trial, the court entered judgment and placed him on four years probation with six months in jail. Petrak timely appealed.

DISCUSSION

A. Jury Instructions Regarding Weapons Misconduct

¶ 9 Petrak argues the trial court erred in failing to instruct the jury that the weapons misconduct charge required proof that he possessed the weapons "in relation to" the crime of possessing marijuana. "A party is entitled to an instruction on any theory of the case reasonably supported by the evidence." State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). We review the trial court's decision to refuse a jury instruction for an abuse of discretion and will reverse only if the instructions, taken as a whole, misled the jurors. See State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986)

.

¶ 10 The weapons misconduct statute prohibits (among other actions) "knowingly... [u]sing or possessing a deadly weapon during the commission of any felony offense included in chapter 34 of this title." A.R.S. § 13-3102(A)(8) (Supp.1999). In interpreting a statute, we look first to its language and apply the language unless the result is "absurd or impossible." See Lowing v. Allstate Ins. Co., Inc., 176 Ariz. 101, 103, 859 P.2d 724, 726 (1993)

. If statutory terms are defined, we apply that definition; otherwise, we interpret statutory terms "in accordance with their commonly accepted meanings." State v. Reynolds, 170 Ariz. 233, 234, 823 P.2d 681, 682 (1992).

¶ 11 "Possess" and "possession" are defined in section 13-105 but not in the weapons misconduct statute. "Possess" means "knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(30) (Supp. 1999). "`Possession' means a voluntary act if the defendant knowingly exercised dominion or control over property." A.R.S. § 13-105(31). These terms encompass constructive possession of an item; a defendant may exercise dominion and control over an item without having physical possession. See State v. Chabolla-Hinojosa, 192 Ariz. 360, 363,

¶ 13, 965 P.2d 94, 97 (App.1998); State v. Villalobos Alvarez, 155 Ariz. 244, 245, 745 P.2d 991, 992 (App.1987). These terms do not indicate that the statute requires anything more than constructive possession of a weapon and commission of a drug offense to sustain a conviction under the statute.

¶ 12 In everyday usage, the term "during" means "throughout the course or duration" or "at some time in." See Webster's II New College Dictionary 351 (1995). Thus, the statute, by its plain language, requires proof that a defendant possessed a deadly weapon "at some time in" the commission of a qualifying felony offense. The plain language of the statute requires only a temporal nexus between possession of the weapon and commission of the offense.

¶ 13 Petrak argues that the phrase "during the commission of" in A.R.S. section 13-3102(A)(8) must mean more than just "at the same time." Otherwise, he argues, a person violates the statute if he owns a gun locked in a bank safe deposit box and possesses illegal drugs at his home. In his view, such a statute would be unconstitutionally vague and overbroad for omitting adequate notice of the conduct it prohibits. He argues that the weapons misconduct statute should be interpreted consistently with the similar federal statute, 18 U.S.C. § 924(c), which prohibits using or carrying a firearm "during and in relation to" certain drug offenses. Indeed, the United States Supreme Court has interpreted the federal statute to require proof that the firearm have "some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence." Smith v. United States, 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). The gun must facilitate or have the potential to facilitate the offense. See id. (citing United States v. Stewart, 779 F.2d 538, 540 (...