State v. Jackson, 1

• Decision Date: 29 November 1983
• Docket Number: No. 1,CA-CR,1
• Citation: 677 P.2d 1321,139 Ariz. 213
• Parties: STATE of Arizona, Appellee, v. Richard Vershoun JACKSON, Appellant. 6482.
• Court: Arizona Court of Appeals

Page 1321

677 P.2d 1321

139 Ariz. 213

STATE of Arizona, Appellee, v. Richard Vershoun JACKSON, Appellant.

No. 1 CA-CR 6482.

Court of Appeals of Arizona Division 1, Department A.

Nov. 29, 1983.

Redesignated as Opinion Dec. 13, 1983.

Review Denied Feb. 7, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Criminal Div., Gary A. Fadell, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.

EUBANK, Judge.

Appellant, Richard Vershoun Jackson, was charged and convicted of possession of a dangerous drug, a class 4 felony, in violation of A.R.S. § 13-3404. An allegation of a prior felony conviction was alleged and admitted by appellant, and he was subject to the enhanced punishment provision of A.R.S. § 13-604. Appellant was sentenced to the presumptive term of six years imprisonment.

The issues on appeal are:

1. Whether the trial court erred by allowing the prosecution to impeach the appellant with a prior unspecified felony conviction;

2. Whether the trial court erred in denying appellant's motion for a judgment of acquittal 3. Whether the trial court committed reversible error by failing to reinstruct the jury at the end of the trial on the state's burden of proof.

On April 7, 1982, Phoenix police officers David Sodduck and Ray Dunlap were on a routine patrol in the area of 902 South 10th Avenue in Phoenix. The officers pulled into a parking lot adjacent to an apartment complex and observed appellant and Clarence Blacknell standing together near the southwest end of the lot, drinking from open beer cans. Upon observing the officers, appellant tucked an object into his pants, turned around and briskly walked away from the area toward the apartment complex. The officers drove their vehicle onto the sidewalk and followed appellant. When the officers arrived at the center of the apartment complex, Officer Dunlap got out of the vehicle and followed appellant on foot. Phoenix police officer Thomas Hernandez, who had previously been called to the scene, observed appellant throw, from waist level, a glass jar onto the grass in front of one of the apartments. Officer Hernandez retrieved the glass container and observed that it contained cigarettes wrapped in foil which Officer Hernandez believed contained PCP, a dangerous drug.

At trial, appellant denied possessing the PCP laced cigarettes. Appellant testified that he observed the police officers pull into the parking lot of the apartment complex while he and a friend, Clarence Blacknell, were drinking beer. Appellant testified that he left the vicinity after observing the officers. According to appellant, he threw down a glass beer bottle while being followed by the police. Clarence Blacknell testified that appellant had been drinking a bottle of beer. Blacknell stated that he never observed appellant in the possession of a glass jar containing cigarettes wrapped in foil.

IMPEACHMENT

Before the trial, appellant filed a motion in limine to preclude the state from using a prior possession of dangerous drugs conviction for impeachment purposes. The trial judge ruled that the state could impeach the appellant with the prior conviction, but could not elicit the specific nature of the felony. The appellant argues that the trial court obviously found the prior conviction unduly prejudicial and that therefore the trial court erred in permitting him to be impeached at all, even without the mention of the nature of the prior felony conviction. We do not agree.

In State v. Watkins, 133 Ariz. 1, 648 P.2d 116 (1982), our supreme court held that the trial court did not abuse its discretion by permitting the state to impeach the defendant with a prior felony conviction while precluding the state from inquiring into or mentioning the nature of the conviction, as long as the trial court independently weighed the probative value of appellant's prior conviction against its prejudicial effect. In the instant case, the judge weighed the probative value of the prior conviction against its potential prejudicial effect as required by Rule 609, Arizona Rules of Evidence. The judge concluded that the evidence of the prior conviction for possession of dangerous drugs would be unduly prejudicial and therefore inadmissible. However, the judge did find that the fact of a prior felony conviction was probative of defendant's credibility. As the rule only requires the trial court to independently weigh the probative value of the prior conviction against its prejudicial effect, the trial court did all that the rule requires. At the trial appellant's counsel "drew the sting" on direct and the state did not cross-examine on this prior felony. We find no abuse of discretion and no error.

MOTION FOR JUDGMENT OF ACQUITTAL

The appellant argues that the trial court erred in failing to grant his motion for acquittal made at the close of the state's evidence. Appellant contends that insufficient evidence of the usability of the dangerous drug was presented at trial, as the state did not offer testimony that the quantity and quality of the drug submitted into evidence could be effectively used by a dangerous drug user. In support of his contention, appellant cites State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962) wherein the supreme court held:

[w]here the amount of a narcotic is so small as to require a chemical analysis to detect its presence, the quantity is sufficient if usable under the known practices of narcotic addicts. We hold that only in those cases where the amount is incapable of being put to any effective use will the evidence be insufficient to support a conviction.

92 Ariz. at 120, 374 P.2d 872. While the appellant correctly points out that Moreno stands for the proposition that where the amount of narcotics involved is so small as to not be within the realm of an uninformed layman's knowledge of usability there must be evidence presented by the state as to its usability, we believe that the testimony presented by the state in the present case satisfied the "usability" test. In...