State v. Albritton
| Decision Date | 19 December 2013 |
| Docket Number | No. 2 CA-CR 2013-0128,2 CA-CR 2013-0128 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JOSH ALAN ALBRITTON, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Cochise County
The Honorable James L. Conlogue, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Lynn T. Hamilton, Mesa
Counsel for Appellant
Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.
¶1 Following a jury trial, Joshua Albritton was convicted of three counts of aggravated assault and eight counts of misconduct involving weapons. On appeal, Albritton argues that insufficient evidence supported the jury verdicts on the weapons misconduct charges, that his cumulative eighty-year prison sentence for the weapons misconduct charges violates the Eighth Amendment's prohibition against cruel and unusual punishment, and that the prosecutor committed misconduct during closing arguments. For the following reasons, we affirm.
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Pena, 233 Ariz. 112, ¶ 4, 309 P.3d 936, 938 (App. 2013). In March 2011, a lending company sent L.M. to repossess Albritton's motorcycle because he had defaulted on the loan. L.M. arrived at Albritton's former wife's residence sometime between three and four in the morning and found Albritton in the driveway working on a truck. L.M. explained who he was and why he was there, but Albritton did not respond and instead began walking into the garage.
¶3 L.M. followed Albritton and stopped at the entrance of the garage. Albritton closed the garage door, trapping L.M.'s foot and hitting it with a hatchet, almost completely severing one of L.M.'s toes. Albritton then raised the garage door slightly, allowing L.M. to free his foot. L.M. returned to his work truck and called 9-1-1.
¶4 After police arrived, they obtained a warrant to search the house for evidence related to L.M.'s injuries. During the search, police found a hatchet that was consistent with the weapon used to injure L.M. Police also found two safes in the stairwell—a small combination safe and a larger safe that required a key to open. Albritton told the officers the combination to the smaller safe and explained that it contained the key to open the larger safe. The larger safe opened into a space underneath the stairs that reached up to the second story and contained eight firearms and a large amount of ammunition. Because Albritton was a convicted felon whose rights to possess a firearm had not been restored, officers seized the weapons and a portion of the ammunition.
¶5 Albritton was charged with and convicted of three counts of aggravated assault, eight counts of misconduct involving weapons by a prohibited possessor, and one count of refusing to provide his name to a police officer. He was sentenced to concurrent prison terms for the aggravated assault charges, the longest of which was ten years, and consecutive, presumptive ten-year prison terms for the weapons misconduct charges, totaling eighty years, to begin after the sentences for the aggravated assaults. We have jurisdiction over Albritton's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
¶6 Albritton first argues the trial court erred in denying his motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P., because insufficient evidence supported the jury's verdicts for misconduct with weapons. He claims the state did not establish he had either dominion or control over the weapons.
¶7 We review de novo whether sufficient evidence was presented at trial to support a conviction. State v. Mwandishi, 229 Ariz. 570, ¶ 6, 278 P.3d 912, 913 (App. 2012). "'[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.'" State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990),quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted).
¶8 As relevant here, a person commits misconduct involving weapons by knowingly "[p]ossessing a deadly weapon . . . if such person is a prohibited possessor."1 A.R.S. § 13-3102(A)(4). Possession may be actual or constructive. § 13-105(34); State v. Gonsalves, 231 Ariz. 521, ¶ 9, 297 P.3d 927, 929 (App. 2013). Constructive possession exists when the defendant has either dominion or control over the contraband itself, or the place where the weapons are found. See State v. Teagle, 217 Ariz. 17, ¶ 41, 170 P.3d 266, 276 (App. 2007). The circumstances must be such that a jury can reasonably infer that the defendant had knowledge of the contraband's presence. State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972). The state may prove constructive possession through direct or circumstantial evidence. Gonsalves, 231 Ariz. 521, ¶ 10, 297 P.3d at 929. Additionally, under a theory of constructive possession, exclusive control over the contraband is not necessary. Villavicencio, 108 Ariz. at 520, 502 P.2d at 1339. But mere potential access to someone else's property is insufficient to prove constructive possession. State v. Cox, 214 Ariz. 518, ¶ 15, 155 P.3d 357, 360 (App. 2007).
¶9 In cases upholding convictions based on constructive possession, we have found that a jury may properly infer a defendant's knowledge of the contraband's presence based on his or her access or proximity to the location where the contraband was found, particularly when a large amount of contraband is present. For example, "[a] jury may properly infer that a driver and sole occupant of a vehicle containing a large amount of drugs was aware that the drugs were in the vehicle." Teagle, 217 Ariz. 17, ¶¶ 41, 44, 170 P.3d at 276-77. Similarly, a defendant's presence in a vehicle that contained a large amount of drugs and was parked in front of the defendant's sister's house gave rise to the inference that the defendant knew the drugs were in the car. State v. Lopez, 21 Ariz. App. 408, 409-10, 555 P.2d 667, 668-69 (1976).
¶10 Here, Albritton was the only person who knew the combination to the smaller safe and that it contained the key to open the larger safe. His former spouse testified she did not know the combination to the smaller safe and also did not know the contents of either safe. Once inside the combination safe, the officers also found the registration for Albritton's motorcycle.
¶11 Additionally, the order of repossession for his motorcycle listed his home address as that of his former wife. Albritton was keeping his motorcycle at the house the morning L.M. arrived, and his former wife testified that Albritton could keep his vehicles at the house. She also testified that Albritton visited the house several times a year. Thus, a jury reasonably could infer that Albritton had frequent access to the safes. And although Albritton's former spouse testified that a friend who was in China also was storing his belongings in the safe, the state was not required to prove Albritton had exclusive control over the weapons to support the convictions. See Cox, 214 Ariz. 518, ¶ 15, 155 P.3d at 360.
¶12 Albritton asserts the evidence adduced at trial only established that he had mere access to the safe or, alternatively, mere knowledge of the existence of weapons in the house. But a jury reasonably could infer that Albritton's seemingly exclusive knowledge of how to open the safes, and his ability to frequently access the safes, showed a level of control beyond that of mere access. Moreover, the jury could infer the sheer volume of weapons and ammunition belied any claim that he had access to the safes without knowledge of those items. Viewing these facts in the light most favorable to the prosecution, the state produced sufficient evidence at trial from which the jury could conclude that Albritton had dominion or control over the safes, and could reasonably infer that Albritton knew the weapons were in the large safe. See Villavicencio, 108 Ariz. at 520, 502 P.2d at 1339; see also Teagle, 217 Ariz. 17, ¶ 44, 170 P.3d at 277; Lopez, 27 Ariz. App. at 409-10, 555 P.2d at 668-69.
¶13 Albritton also argues the state failed to produce any fingerprint or deoxyribonucleic (DNA) evidence related to the safe and weapons. But circumstantial evidence is sufficient to support constructive possession so long as it shows "'specific facts orcircumstances that the defendant exercised dominion or control' over the object." Gonsalves, 231 Ariz. 521, ¶ 10, 297 P.3d at 929, quoting State v. Villalobos Alvarez, 155 Ariz. 244, 245, 745 P.2d 991, 992 (App. 1987). Moreover, while Albritton "would be free to argue that if his prints were not on the [safe] he had never touched it, a finder of fact would be under no compulsion to accept that conclusion." State v. Torres, 162 Ariz. 70, 75-76, 781 P.2d 47, 52-53 (App. 1989); see also State v. Engram, 171 Ariz. 363, 367, 831 P.2d 362, 366 (App. 1991) ().
¶14 Albritton further asserts the state did not demonstrate that he lived at the house. But residence at the location of the contraband is not a required element of constructive possession. See Teagle, 217 Ariz. 17, ¶ 41, 170 P.3d at 276. To show constructive possession, the state need only prove that the defendant has either dominion or control over the contraband, or the place where the contraband is found. Id. And the evidence showed that Albritton...
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