State v. Arce, 2190

• Decision Date: 22 April 1971
• Docket Number: No. 2190,2190
• Citation: 107 Ariz. 156,483 P.2d 1395
• Parties: STATE of Arizona, Appellee, v. Adolph Moreno ARCE, Appellant.
• Court: Arizona Supreme Court

Page 1395

483 P.2d 1395

107 Ariz. 156

STATE of Arizona, Appellee, v. Adolph Moreno ARCE, Appellant.

No. 2190.

Supreme Court of Arizona, In Banc.

April 22, 1971.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County, Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

UDALL, Justice:

Defendant, Adolph Moreno Arce, was convicted by a jury on two counts: (1) possession of heroin (A.R.S. § 36--1002); and (2) possession of heroin for sale (A.R.S. § 36--1002.01). He was sentenced to a prison term of not less than five nor more than seven years on each count; the sentences were ordered to run concurrently. From the conviction and sentence defendant appeals.

For the reasons advanced below, the judgment of the trial court is affirmed as to the second count (possession for sale) and reversed as to the first count (possession). Inasmuch as the two sentences were the same and were ordered to run concurrently, it is not necessary to remand for resentencing.

The facts of the case which are relevant to the determination of this appeal are as follows: Defendant was arrested on the above charges on May 21, 1969, along with Lucy Quinonez, his co-defendant at the trial, by a police officer and a narcotics officer for the Phoenix Police Department. About two weeks before the arrest, the narcotics officer received information which led him to believe that narcotic drugs were being sold at the Quinonez house, so he went into a building next door and observed activities in and around the Quinonez residence. He did this on five separate occasions, the last of which was the evening on which the arrests were made. He observed a number of persons come to the residence, stay a few minutes, and leave. At least one of these persons was known to be a narcotics addict. The nature of the conduct and actions of the people engaged in the activity in and around the Quinonez residence strongly suggested that transactions in narcotic drugs were in fact taking place there. On the evening of the arrest, the narcotics officer observed Lucy Quinonez and defendant Arce step out onto the back porch of Quinonez' home. She had a package in her hand which she gave to Arce. Quinonez then pointed to the fence and Arce took the package to the fence, placed it on the ground, and covered it with a board. Arce and Quinonez then returned inside the house. The narcotics officer and the police officer accompanying him decided to serve the search warrant, and called in for additional policemen to assist. They arrested Arce and Quinonex and confiscated the package, which, as it turned out, contained 16 'papers' of heroin.

Defendant was duly tried and convicted of the charges stated above. The issues raised by defendant Arce on appeal can be summarized as follows:

1. Double Jeopardy. Defendant argues that he was subjected to double jeopardy when he was convicted both of possession of heroin and of possession of heroin for sale, when there was but one act or transaction involved.

2. Effective Assistance of Counsel. Defendant argues that he was denied the effective assistance of counsel because his lawyer at the trial also represented the co-defendant, Lucy Quinonez, and a conflict of interest developed.

We will discuss these issues in the order presented.

I. DOUBLE JEOPARDY

Defendant argues that he was subjected to double jeopardy when he was convicted both of possession of heroin and of possession of heroin for sale, when there was but one act or transaction involved.

As to this issue, our recent pronouncement in State v. Price, 106 Ariz. 433, 477 P.2d 523 (1970), is controlling. That case involved the statutory construction of A.R.S. § 13--1641, which defendant Arce cites as authority. That statute provides as follows:

' § 13--1641. Different punishments for same offense; limitation and bar.

An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event undr more than one. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.'

In construing this statute, we have held that where marijuana is obtained for the purpose of a particular sale there is but one transaction which permits but one conviction and sentence. State v. Price, supra; State v. Duplain, 102 Ariz. 100, 425 P.2d 570 (1967); State v. Vallejos, 89 Ariz. 76, 358 P.2d 178 (1960). We think the same reasoning applies where the substance possessed for sale is heroin rather than marijuana.

In State v. Vallejos, supra, we stated:

'It is indispensable, in order to impose separate punishments, that there be evidence of separate and divisible acts that are not incidental to each other. In determining this question the courts have refused to dissect the evidence minutely in an attempt to find separate offenses, but, on the contrary, have held that a broad transactional approach should be made.' 89 Ariz. 76 at 82--83; 358 P.2d 178 at 182.

In the instant case, the state introduced as evidence the package which defendant Arce hid under the board near Quinonez' fence on the night of the arrest. . on that night, when the policemen approached the front door of the Quinonez residence they saw Quinonez and Arce in the front room through the window. The narcotics officer knocked on the door, and when it was opened he identified himself and showed his badge. Defendant Arce ran out of the living room and into another part of the house. Quinonez attempted to close the door on the policemen, but they were able to get past the door and into the living room. When they got inside, the narcotics officer saw defendant Arce coming from the bathroom. The toilet had just been flushed and the tank was still being filled. The officer found traces of a powdry substance on the window sill and in the toilet bowl which was the same in appearance as the heroin contained in the 16 'papers' in the package in the back yard. The powdery substance in the bathroom was so small in quantity it was impossible to obtain enough for lab tests. Hence, it was not conclusively established that the substance was heroin. For this reason, we are of the opinion that the only 'act' or 'transaction' which the evidence clearly shows defendant Arce to have been involved in had to do with the package containing the 16 'papers' of heroin.

Inasmuch as there was only one 'transaction' involved in the instant case, the charge against Arce of Possession of heroin is necessarily an included offense under or within the more serious charge of Possession of heroin For sale. Therefore, if the record shows evidence sufficient to support a conviction on the charge of possession of heroin for sale, the conviction on the lesser charge of possession of heroin cannot stand.

As to the question of whether there is sufficient evidence to support a conviction on the charge of possession of heroin for sale, we must first define the elements of the offense and then look to the record to determine whether the facts of the case show that the elements have been met.

A.R.S. § 36--1002.01 makes it illegal for a person to possess narcotic drugs for sale. Pharmacists and others similarly licensed are exempted from the provisions of this statute, provided they comply with the requirements set forth in the other statutes dealing with drug control. The gravamen of the offense under A.R.S. § 36--1002.01 is the possession of narcotics For sale, as distinguished from the mere Possession of narcotics (A.R.S. § 36--1002) on the one hand and the actual Sale of narcotics (A.R.S. § 36--1002.02) on the other. Previous decisions of this Court have discussed the elements necessary for a conviction for Possession, or for an actual Sale, but this is the first time we have been called upon to set forth the elements required under the in-between classification--i.e., possession For sale. In determining what elements are included in the offense, we deem it appropriate to consider the decisions of other courts which have dealt specifically with the question.

The California statute dealing with the offense of possession of narcotics for sale, West's Ann.Health & Safety Code, § 11500.5, is substantially identical in wording to our own statute, A.R.S. § 36--1002.01. The California courts have had occasion to construe the provisions of that statute and to distinguish between the elements required for possession of narcotics for sale and those required for mere possession.

Unlawful possession of narcotics is established by proof that the accused exercised dominion and control over a substance, that he had knowledge of its presence, and that he had knowledge that the substance was a narcotic. People v. Kortopates, 264 Cal.App.2d 176, 70 Cal.Rptr. 189 (1968). Constructive possession is all that is necessary, and this may be proved by circumstantial evidence. People v. Wilson, 256 Cal.App.2d 411, 64 Cal.Rptr. 172 (1967); cert. denied 391 U.S. 903, 88 S.Ct. 1653, 20 L.Ed.2d 418 (1968). These holdings by the California courts are consistent with the pronouncements of this Court as to the elements required for a conviction for possession of narcotics. See State v. Quinones, 105 Ariz. 380, 465 P.2d 360 (1970); State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962).

In order to convict on the more serious offense of possession of narcotics For sale, the prosecution must not only establish the elements required for a conviction for possession, as set forth above but must also show that the possession was for the purpose of sale. Circumstantial evidence may be used to show that the accused possessed the narcotics for sale rather than for his individual use. For example, in People v. Robbins, 225 Cal.App.2d 177, 37 Cal.Rptr. 244 (1964), the court stated that the large amount of heroin involved, plus the fact that it was packaged in eleven separate containers, supported the...