State v. Cox

• Decision Date: 29 March 2007
• Docket Number: No. 2 CA-CR 2005-0272.,2 CA-CR 2005-0272.
• Citation: 214 Ariz. 518,155 P.3d 357
• Parties: The STATE of Arizona, Appellee, v. Gary Edward COX, Appellant.
• Court: Arizona Court of Appeals

155 P.3d 357

214 Ariz. 518

The STATE of Arizona, Appellee, v. Gary Edward COX, Appellant.

No. 2 CA-CR 2005-0272.

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

March 29, 2007.

Terry Goddard, Arizona Attorney General By Randall M. Howe and Kathryn A. Damstra, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Stephan J. McCaffery, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 Appellant Gary Cox was convicted after a jury trial of three counts of possession of a deadly weapon by a prohibited possessor, class four felonies. After finding Cox had six prior felony convictions, the court sentenced him to substantially mitigated, concurrent prison terms of six years. On appeal, Cox challenges his convictions on the grounds that the evidence was insufficient to support the conviction, the trial court erred when it refused Cox's requested instruction under State v. Tyler, 149 Ariz. 312, 316-17, 718 P.2d 214, 218-19 (App.1986), and the trial court's instruction on constructive possession resulted in fundamental error. For the reasons stated below, we affirm.

¶ 2 We view the facts in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Cox. See State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914 (2005). On August 1, 2004, at about 3:00 a.m., Pima County Sheriff's Deputy Jeffrey Bonds stopped a white Mustang on a rural road. Although the vehicle had a 2005 registration tab on the license plate, Bonds was advised by radio that the registration had expired in June 2004. Cox was the driver of the vehicle and his fiancée, Shari Perko, occupied the passenger seat. The car was registered to Cox. Upon request, Cox and Perko produced identification for the officer. After receiving their driver's licenses, Bonds noticed a shell casing in the center console of the vehicle. He asked if there were any weapons in the vehicle, to which Cox replied in the negative. Perko remained silent.

¶ 3 While Bonds conducted record checks on Cox and Perko, Deputy Elliot Lyle responded to assist Bonds. Out of the presence of Cox, Lyle asked Perko if there were any guns in the car. At first, she did not answer, looking down instead. When asked a second time, she nodded her head. And when asked a third time, she eventually informed him there was a shotgun in the trunk.

¶ 4 Deputy Lyle alerted Bonds who then asked Cox if he had any felony convictions. Cox admitted that he did. Bonds then asked if there was a shotgun in the trunk and Cox replied that there was. Bonds asked Cox where he had gotten it and Cox replied "that [he and Perko] had just picked up the gun from [a friend's] house and were taking it back to their residence." In the trunk, Bonds found a shotgun on top of various other items, including two loaded pistols, a small semi-automatic .380 and a .45 caliber, breach-loading pistol. He then searched the inside of the vehicle and found more shell casings and a .22 caliber live round in the center console.

¶ 5 On further questioning, Cox elaborated that the guns belonged to Perko and that "they picked them up at [a friend's] house, which is where they had been coming from, and [were] taking them back to their residence." According to Cox, Perko planned "to sell them or get rid of them in some way."

¶ 6 At trial, Perko testified that the guns belonged to her and produced bills of sale for each one. She further testified as follows. She and Cox had gone to a friend's house that night for a visit. Although that friend had previously borrowed the guns, she and Cox did not intend to retrieve them. But, because their friend was moving and was worried about losing the guns during the move, she suggested that Perko take them back. Perko saw her friend put the shotgun in the trunk but was unaware that her friend had also loaded the two pistols until Cox opened the trunk for the deputies. Perko maintained that Cox was not present when the guns were placed in the trunk, and she claimed that Cox did not know the guns were in the car until she alerted him after Deputy Bonds had stopped their vehicle. She also said she had told the deputies this, although Deputy Lyle later contradicted that assertion.

¶ 7 Cox argues the trial court erred in permitting the jury to convict him on insufficient evidence. He moved for a judgment of acquittal at the close of the state's case, but the court denied the motion saying, "I think there are facts that are in dispute as to what Mr. Cox may have said to the police, but I think there is enough evidence to go to the jury under Rule 20." See Ariz. R.Crim. P. 20(a), 17 A.R.S. (court must grant judgment of acquittal "if there is no substantial evidence to warrant a conviction").

¶ 8 We will reverse a trial court's decision to deny a motion for a judgment of acquittal "only if there is a complete absence of `substantial evidence' to support the conviction." State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App.1996). Substantial evidence is that which "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). "[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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

¶ 9 To support Cox's conviction, the state needed to present substantial evidence that Cox was a "prohibited possessor" and that he "[p]ossess[ed] a deadly weapon." A.R.S. § 13-3102(A)(4). "Possession" is defined as "a voluntary act if the defendant knowingly exercised dominion or control over property." A.R.S. § 13-105(31). The same statute describes "possess" as "knowingly to have physical possession or otherwise to exercise dominion or control over property." § 13-105(30). Possession need not be exclusive—it "may be sole or joint." State v. Miramon, 27 Ariz.App. 451, 452, 555 P.2d 1139, 1140 (1976). The terms "dominion" and "control" carry their ordinary meaning, such that dominion means "`absolute ownership'" and control means to "`have power over.'" State v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App.1986), quoting Webster's Third New Int'l Dictionary (Unabridged) 496, 672 (1981).

¶ 10 Dominion or control in the absence of actual physical possession has been characterized as constructive possession. See State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972). Constructive possession exists when the prohibited property "is found in a place under [the defendant's] dominion [or] control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of the [property]." Id. Constructive possession may be proven by direct or circumstantial evidence, see State v. Villalobos Alvarez, 155 Ariz. 244, 245, 745 P.2d 991, 992 (App.1987), however, the mere presence of a person where prohibited property is found is insufficient to show the person knowingly exercised dominion or control over it. Miramon, 27 Ariz.App. at 452, 555 P.2d at 1140.

¶ 11 Cox does not dispute that he was prohibited from possessing a weapon,¹ but rather contends the evidence was insufficient to show that he had exercised dominion or control over the weapons. Although Cox's trial defense rested almost entirely on his contention that he did not know the weapons were in the car, he also contended that, even if he did know the guns were in the car, he did not have dominion and control, or "power and authority" over them.

¶ 12 At the outset, we clarify that § 13-105(30) and (31) do not require a showing of both dominion and control. Those subsections are written in the disjunctive. Thus, the state needed only to present evidence to prove that (1) Cox knew the guns were in the trunk and (2) he exercised either dominion or control over them.

¶ 13 The state presented ample evidence that Cox knew the weapons were in the car. Deputy Bonds testified that Cox admitted there was a shotgun in the trunk of the car before he opened it and then told Bonds that he and Perko had acquired the shotgun at a friend's house and were taking it back to their house. Cox later admitted that they were retrieving all three guns. Nor was the jury required to credit Perko's claim, contradicted by the nature of Cox's admissions, that Cox was unaware of the guns until Bonds stopped their vehicle. See State v. Manzanedo, 210 Ariz. 292, ¶ 3, 110 P.3d 1026, 1027 (App.2005) (jury resolves conflicts in evidence).

¶ 14 Cox argues that he did not exercise dominion or control over the guns because Perko owned them. Citing Miramon he thus asserts that he was merely in the presence of the guns. In Miramon, the defendant was charged with possession of marijuana for sale after police officers found a large bag of marijuana under the seat that defendant occupied as a passenger. 27 Ariz.App. at 452, 555 P.2d at 1140. The court held that insufficient evidence existed to convict the defendant of possession of marijuana for sale because, even though the jury could infer that defendant knew the drugs were under his seat—the bag protruded several inches out from under the seat—"the state did not prove that he had the right to control its disposition or use." Id. at 452-53, 555 P.2d at 1140-41. Notably, however, Miramon neither owned the car in question nor had been driving it at the time of the stop. Id. at 452, 555 P.2d at 1140.

¶ 15 While we agree with Cox that mere potential access to someone else's property, as in Miramon, would be insufficient to prove possession, we disagree that the state showed nothing more than that. The jury heard evidence that Cox was driving the vehicle in which the guns were found, and the vehicle was registered in his...