State v. Jenson

• Decision Date: 16 March 1977
• Docket Number: No. 3632,3632
• Parties: STATE of Arizona, Appellee, v. Richard F. JENSON, Appellant.
• Court: Arizona Supreme Court

Page 372

562 P.2d 372

114 Ariz. 492

STATE of Arizona, Appellee, v. Richard F. JENSON, Appellant.

No. 3632.

Supreme Court of Arizona, In Banc.

March 16, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Chief Counsel, R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee.

Evans & Storrs by Robert L. Storrs, Phoenix, for appellant.

STRUCKMEYER, Vice Chief Justice.

Appellant, Richard F. Jenson, was charged with possession of marijuana, a violation of A.R.S. § 36--1002.05. By agreement, the case was submitted to the court for decision on the preliminary hearing transcript, the police department report, the testimony of a criminalist, and the testimony of appellant. Judgment of guilty affirmed.

Appellant contends that the evidence was not sufficient to support a conviction in that the State failed to prove he had knowledge of the presence of marijuana seeds found in his mother's apartment or that he had dominion and control over them.

Examining the facts in a light most favorable to sustaining the conviction and resolving all reasonable inferences in favor of the State, State v. Gaines, 113 Ariz. 206, 549 P.2d 574 (1976), the following was established in support of the conviction. Appellant was sitting in the living room of his mother's apartment when the police arrived with a search warrant. He and his brother were arrested after a search of the apartment disclosed two 'baggies' of marijuana seeds. One was found under a chest of drawers located in the hallway and the other found under a day bed on which appellant's brother had slept the previous night.

Appellant denied that he resided at his mother's apartment; however, he told the arresting officers that he had lived there occasionally--off and on for approximately four years. When arrested, he put on clothing taken from the chest of drawers in the hallway, along with a shirt taken from a bedroom closet. Appellant admitted that the chest of drawers under which a 'baggie' of marijuana was found was owned by him. While he denied knowledge of the presence of the marijuana, he admitted ownership of two manuals which dealt with the cultivation of marijuana which were in the top drawer of the chest. When asked about these seeds, appellant stated that they looked like birdseed and that he had kept a bird, but that it had been dead for two weeks. At his trial, defendant testified that he made this statement to the officers in jest.

A State's witness, the criminalist, testified that the seeds were tested and found to be viable marijuana seeds.

We said in State v. Villavicencio, 108 Ariz. 518, 502 P.2d 1337 (1972):

'In the case of Carroll v. State, 90 Ariz. 411, 368 P.2d 649 (1962), we held that the crime of possession of narcotics requires physical possession or constructive possession with actual knowledge of the presence of the narcotic substance. Constructive possession is generally applied to those circumstances where the drug is not found on the person of the defendant nor in his presence, but is found in a place under his dominion and control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of...