State v. Alvarado

• Decision Date: 26 December 2008
• Docket Number: No. 1 CA-CR 07-0738.,1 CA-CR 07-0738.
• Citation: 219 Ariz. 540,200 P.3d 1037
• Parties: STATE of Arizona, Appellant, v. Ivan ALVARADO, Appellee.
• Court: Arizona Court of Appeals

200 P.3d 1037

219 Ariz. 540

STATE of Arizona, Appellant, v. Ivan ALVARADO, Appellee.

No. 1 CA-CR 07-0738.

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

December 26, 2008.

Sheila Sullivan Polk, Yavapai County Attorney By Dennis M. McGrane, Chief Deputy County Attorney, Prescott, Attorneys for Appellant.

Abigail Jensen, PC, Prescott, Attorney for Appellee.

OPINION

HALL, Judge.

¶ 1 The offense of promoting prison contraband occurs when a person "knowingly takes contraband into a correctional facility or the grounds of such facility." Ariz.Rev. Stat. (A.R.S.) § 13-2505 (2001). The trial court granted defendant's post-verdict motion for a judgment of acquittal on the charge of promoting prison contraband, reasoning that defendant did not "voluntarily" take marijuana into the jail following his arrest because it was concealed on his person when he was arrested. The State appeals the trial court's ruling. We conclude that the evidence supports the jury's determination that defendant committed the offense of promoting prison contraband even though he did not "voluntarily" choose to enter the correctional facility. Therefore, we reverse the judgment of acquittal entered by the trial court and direct the court to reinstate the jury's guilty verdict.

¶ 2 We view the evidence at trial in the light most favorable to upholding the jury's verdict. State v. Moody, 208 Ariz. 424, 435 n. 1, 94 P.3d 1119, 1130 n. 1 (2004). The evidence showed that a police officer, responding to a call reporting a possible family fight, felt what he believed to be a pipe in defendant's coat pocket when he was patting him down for weapons. Defendant told the officer that it was his marijuana pipe and gave the officer permission to remove it from his pocket. As the officer was securing defendant in handcuffs, defendant volunteered that he had marijuana in another coat pocket. The officer retrieved a baggie of marijuana weighing 71 milligrams from the pocket defendant had indicated, and completed his pat down before placing defendant in the police car for transportation to the Yavapai County Jail.

¶ 3 Before entering the jail, the police officer asked defendant if he had any drugs or weapons on him, and warned him that he faced additional charges if he took drugs or weapons into the jail. Defendant responded, "No." The police officer repeated the question and warning before defendant entered the jail, and defendant again responded, "No." After defendant was brought into the facility to commence the booking process, a detention officer also asked defendant if he had any weapons or drugs on him,¹ and defendant "sort of murmured no." The detention officer, however, searched defendant's person and removed a container from one of defendant's pockets, which, when opened, held 790 milligrams of marijuana.² Defendant volunteered, "Oh, man, I worked hard for that chronic," a slang term for marijuana.

¶ 4 The judge denied defendant's request for a preliminary instruction that the crime of promoting prison contraband requires proof that "the defendant knowingly and voluntarily took contraband into a correctional facility," but agreed to add a definition of "voluntary act" to the preliminary instructions. At the close of the State's case, defendant moved for judgment of acquittal on the charge on the ground that the State had not met its burden "to prove [he] voluntarily brought contraband into the jail." The judge denied the motion, finding the evidence sufficient to go to the jury "based on the evidence that it was on his person at the time he was booked into jail." The judge allowed defendant to argue to the jury that no evidence was offered to show defendant engaged in a voluntary act, and instructed the jury that the State must prove that defendant had committed a voluntary act, again defining the term as "a bodily movement performed consciously and as a result of effort and determination." The jury convicted defendant of promoting prison contraband, possession of marijuana, and possession of drug paraphernalia.

¶ 5 Defendant renewed his motion for judgment of acquittal after trial, relying in his reply on State v. Tippetts, 180 Or.App. 350, 43 P.3d 455, 459-60 (2002), in which the Oregon appellate court reversed a conviction for smuggling contraband into the jail on the ground that the evidence failed to show that the defendant committed the voluntary act necessary for culpability. The judge granted defendant's renewed motion for judgment of acquittal, reasoning that "the facts and the law recited and relied upon in Tippetts are virtually identical to the facts and law in this case. The rationale and holding clearly and articulately stated in Tippetts are determinative of this case."

¶ 6 The State timely appealed. We have jurisdiction pursuant to A.R.S. § 13-4032(7) (Supp.2008).

DISCUSSION

¶ 7 The State argues that the judge erred in granting the renewed motion for judgment of acquittal because she "misconstrued the definition of a `voluntary' act as it relates to criminal liability in Arizona." We review a trial court's grant of a post-conviction judgment of acquittal for an abuse of discretion. See State ex rel. Hyder v. Superior Court, 128 Ariz. 216, 224, 624 P.2d 1264, 1273 (1981). "To find that the evidence was sufficient before the jury got the case, but not after, can be justified only on the basis of a mistake of law on the part of the court and not fact on the part of the jury." Id. at 224, 624 P.2d at 1272. In conducting our review, we view the facts in the light most favorable to upholding the jury's verdict. State v. Carrasco, 201 Ariz. 220, 221, ¶ 1, 33 P.3d 791, 792 (App.2001). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). We review purely legal issues de novo. Mejak v. Granville, 212 Ariz. 555, 556, ¶ 7, 136 P.3d 874, 875 (2006).

¶ 8 The State charged defendant, pursuant to A.R.S. § 13-2505(A)(1), with promoting prison contraband by knowingly taking marijuana into the Yavapai County Jail. At issue in this appeal is A.R.S. § 13-201 (2001), which provides that "[t]he minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law which the person is physically capable of performing." The legislature has defined "voluntary act" as "a bodily movement performed consciously and as a result of effort and determination." A.R.S. § 13-105(37) (2001).³

¶ 9 In Tippetts, the Oregon appellate court considered the appeal of a defendant who was convicted of introducing marijuana into the jail under similar circumstances. Id. at 456. The marijuana was in defendant's pants pocket when he was arrested. Id. A jail officer asked the defendant if he had drugs or weapons on him before searching him and discovering the marijuana, to which the defendant apparently made no response. Id. On appeal, the defendant argued that proof of a voluntary act was a necessary prerequisite to his conviction, and that such evidence was missing because "once he was arrested, he could not avoid taking the marijuana with him into the jail." Id.

¶ 10 The Tippetts court agreed with the defendant that, under the circumstances, he did not "initiate the introduction of the contraband into the jail or cause it to be introduced into the jail," as necessary under its interpretation of the requirement of a "voluntary act." 43 P.3d at 457. "Rather, the contraband was introduced into the jail only because the police took defendant (and the contraband) there against his will." Id. This is so, the court explained, because the concept of fault implies the ability to choose, and, on these facts, "he cannot be said to have chosen to introduce the marijuana into the jail." Id. at 458. The court further explained that the requirement of a voluntary act dictated "that the mere fact that defendant voluntarily possessed the drugs before he was arrested is insufficient to hold him criminally liable for the later act of introducing the drugs into the jail." Id. at 459. The court also reasoned that the constitutional privilege against self-incrimination prevented "the state from forcing defendant to choose between admitting to possession of a controlled substance and being charged with introducing that substance into a correctional facility." Id. at 457 n. 2.

¶ 11 In order for the "involuntary act" of entering the jail with drugs to supply the basis for a conviction of conveying drugs into the jail, the court held, "the involuntary act must, at a minimum, be a reasonably foreseeable or likely consequence of the voluntary act on which the state seeks to base criminal liability." Id. at 459-60. On the facts before it, the court held, "no reasonable juror could have found that the introduction of contraband into the jail was a reasonably foreseeable consequence of possessing it." Id. at 460. Rather, the court reasoned, under those facts, the police officer's "act of arresting defendant and transporting him to the jail was an intervening cause that resulted in the marijuana's being introduced into the jail." Id. Accordingly, the Tippetts court reversed the defendant's conviction for introducing contraband into the jail. Id.

¶ 12 Courts outside this jurisdiction have split on whether entering a jail involuntarily with drugs in one's possession can form the basis of a conviction for introducing contraband into the jail. Three jurisdictions have followed the reasoning outlined in Tippetts to preclude a defendant from being convicted of smuggling drugs into prison if the drugs were simply on his person when he was arrested. See State v. Cole, 142 N.M. 325, 164 P.3d 1024, 1026-27 (App.2007) (agreeing with the reasoning of Tippetts, holding that, "to be found guilty of bringing contraband into a jail ... a person must...