State v. Butler

• Decision Date: 29 August 2012
• Docket Number: No. 2 CA–CR 2011–0264.,2 CA–CR 2011–0264.
• Citation: 286 P.3d 1074,230 Ariz. 465
• Parties: The STATE of Arizona, Appellee, v. Rohan Livingston BUTLER, Appellant.
• Court: Arizona Court of Appeals

230 Ariz. 465
286 P.3d 1074

The STATE of Arizona, Appellee,
v.
Rohan Livingston BUTLER, Appellant.

No. 2 CA–CR 2011–0264.

Court of Appeals of Arizona,
Division 2, Department A.

Aug. 29, 2012.

[286 P.3d 1077]

Thomas C. Horne, Arizona Attorney General, By Kent E. Cattani, Joseph T. Maziarz, and Nicholas Klingerman, Tucson, Attorneys for Appellee.

Lori J. Lefferts, Pima County Public Defender, By Kristine Maish, Tucson, Attorneys for Appellant.

ECKERSTROM, Presiding Judge.

¶ 1 Following a jury trial, appellant Rohan Butler was convicted of conspiracy to possess or transport marijuana for sale, possession of marijuana for sale, and possession of a deadly weapon during a felony drug offense. The trial court sentenced Butler to concurrent prison terms, the longest of which were four years. On appeal, he argues the court erred in denying his Batson challenge,¹ admitting a document from an out-of-state sheriff's department, and denying his motion for a judgment of acquittal on the weapons charge. He also argues his conviction on the weapons charge is unconstitutionally duplicitous, even if it is supported by sufficient evidence. For the reasons set forth below, we affirm.

Factual and Procedural Background

¶ 2 The evidence in this case, which we view in the light most favorable to upholding Butler's convictions, was previously discussed in our opinion regarding a codefendant with whom Butler was jointly tried. See State v. Francis, 224 Ariz. 369, 370–71, 231 P.3d 373, 374–75 (App.2010). Butler initially came under police surveillance on September 19, 2006, when he drove a burgundy car into the garage of a house located on Calle Lado Al Rio. Approximately one hour later, Butler opened the garage door, drove the car to the street, parked it there, and went back inside the house. Some twenty minutes later, Butler's codefendants, Christopher Francis and Monica Guzman, arrived in a white car and went inside the house. Shortly thereafter, Butler drove away in his car with Francis and Guzman following him in their vehicle.

¶ 3 Police officers executed a search warrant at the house on Calle Lado Al Rio that same day and found it to be unoccupied and sparsely furnished. Although the house had “no furniture, no coffee tables, [and] no couches,” one of the bedrooms contained a bed with a loaded nine-millimeter pistol resting upon it. The house also contained wooden crates, shipping boxes, packaging materials, a fifty-pound scale, marijuana, some ledgers, and a piece of cardboard with Francis's handwriting on it.

¶ 4 After Butler and his codefendants had departed from the house on Calle Lado Al Rio, they proceeded to another house located on Camino Laguna Seca. The codefendants left shortly after their arrival there, but Butler remained. When police officers knocked on the front door of the residence, Butler answered holding three cellular telephones. During his conversation at the door, other officers discovered two bales of marijuana behind a wall of the house. The officers detained Butler and obtained a search warrant for the house.

¶ 5 Inside the house at Camino Laguna Seca, officers found documents bearing Francis's and Guzman's names, photographs of Francis and Guzman, letters addressed to an individual at the Calle Lado Al Rio address, marijuana, ledgers, a digital scale, and packing materials. When officers asked Butler whether he could open the locked door to the master bedroom, Butler denied having a key to it, and the officers forced the door open. In the closet of the master bedroom they discovered a .40 caliber handgun and a .380 caliber handgun hidden inside a shoe box. A cellular telephone box within the closet contained nearly $13,000 in cash. The master bedroom also contained a drug ledger and

[286 P.3d 1078]

shipping receipts bearing the Calle Lado Al Rio address.

¶ 6 In addition to searching the two houses, police officers also searched Butler's burgundy car. There, inside a suitcase, they discovered a property receipt from a Georgia sheriff's department indicating it had seized from Butler a shoe box containing a “large amount of U.S. currency” less than one week earlier. Officers also found a handwritten list of various guns and ammunition.

¶ 7 Butler was jointly tried with his two codefendants and convicted of three felony offenses, as noted above. This timely appeal followed the court's imposition of sentence.

Sufficiency of the Evidence

¶ 8 Butler first argues there was “no evidence that [he] was or ... had ever been in the bedroom” of the house on Camino Laguna Seca where the two handguns were found, “or that he had access to it.” Similarly, he contends “there was no evidence or ‘even an inference’ ” that he had seen the gun at the other house on Calle Lado Al Rio. He therefore argues the trial court erred in denying his motion, pursuant to Rule 20, Ariz. R.Crim. P., for a judgment of acquittal on the weapons misconduct charge pursuant to A.R.S. § 13–3102(A)(8).²

¶ 9 A motion for a judgment of acquittal under Rule 20 is designed to test the sufficiency of the evidence, State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 277 (1984), and calls for a court to assess “whether the record contains ‘substantial evidence to warrant a conviction.’ ” State v. West, 226 Ariz. 559, ¶ 14, 250 P.3d 1188, 1191 (2011), quotingAriz. R.Crim. P. 20(a). When a Rule 20 motion is denied, a reviewing court must determine de novo whether sufficient evidence supports every element of the offense. See West, 226 Ariz. 559, ¶¶ 15–16, 250 P.3d at 1191. The test “ ‘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.’ ” Id. ¶ 16,quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). The substantial evidence necessary to sustain a conviction may be circumstantial or direct. Id. If “ ‘reasonable minds may differ on inferences drawn from the facts,’ ” the evidence is substantial and the conviction must be upheld. Id. ¶ 18,quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).

¶ 10 Section 13–3102(A)(8) proscribes knowingly “possessing a deadly weapon during the commission of any felony [drug] offense.” Possession, as it is defined under this statute, may be either physical or constructive, but it requires proof the defendant knowingly exercised dominion or control over the weapon. State v. Petrak, 198 Ariz. 260, ¶ 11, 8 P.3d 1174, 1178 (App.2000); seeA.R.S. § 13–105(34), (35). Because the statute also specifies that possession must occur “during” the commission of a predicate drug crime, § 13–3102(A)(8), the state must prove, at minimum, that the defendant “could have used the weapon to further” the underlying drug offense. Petrak, 198 Ariz. 260, ¶ 19, 8 P.3d at 1180. “Factors tending to show that the weapon was or could be used in this way ... include the spatial proximity and accessibility of the weapon to the defendant and to the site of the drug offense.” Id.

¶ 11 Here, at the very least, the state presented sufficient evidence that Butler knew of and constructively possessed the nine-millimeter pistol found on the bed in the residence on Calle Lado Al Rio. Butler entered into the garage there, stayed at the house for nearly one hour, and then drove his car onto the street. After that, he reentered the house, where he had both a view of and access to the loaded firearm found on top of the bed. Marijuana was found inside the house, along with abundant evidence of

[286 P.3d 1079]

marijuana trafficking. And the list in Butler's luggage further demonstrated his knowledge of firearms or use of them in his activities. The combined circumstantial evidence therefore supported an inference that Butler possessed a deadly weapon during the commission of a felony drug offense, even if reasonable minds could differ on the point. We do not reweigh the evidence on appeal when determining its sufficiency. Lee, 189 Ariz. at 603, 944 P.2d at 1217.

Duplicity

¶ 12 Butler further argues the weapons charge was a “duplicitous charge” because it alleged he had possessed “a 9mm pistol, a .40 caliber handgun, and a .380 caliber pistol.” The state concedes a duplicity error exists because the indictment alleged in one count what could have been “three separate counts of weapons misconduct—one for each gun.” Both parties maintain fundamental error review applies to this issue, because Butler failed to object or take any remedial measures below, but they dispute whether Butler has demonstrated prejudice on appeal. See State v. Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d 233, 236 (2009) (under fundamental error review, “[t]he defendant bears the burden of proving both that the error was fundamental and that the error caused him prejudice”). We find no basis to disturb the verdict.

¶ 13 Preliminarily, we note Butler has mischaracterized this issue on appeal. A “duplicitous charge” is one that alleges multiple crimes due to the presentation of evidence at trial, whereas a “duplicitous indictment” is one that, on its face, alleges multiple crimes within one count. State v. Paredes–Solano, 223 Ariz. 284, ¶¶ 4–5, 222 P.3d 900, 903 (App.2009).³ Here, the indictment was duplicitous on its face, so we are concerned with a “duplicitous indictment” rather than a “duplicitous charge.” This difference may seem merely technical, because both types of duplicity error present similar problems with respect to jury unanimity and pleading double jeopardy. See State v. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d 844, 847 (App.2008). But the different duplicity errors are not identical with respect to providing notice to a defendant.

¶ 14 Because a duplicitous indictment alerts a defendant to the problem before trial, he or she may elect at that time to cure the issue through a pretrial motion, as specified in Rules 13.5(e) and 16.1(b), Ariz. R.Crim. P. State v. Anderson, 210 Ariz. 327, ¶¶ 16–17, 111 P.3d 369, 377–78 (2005).⁴...