State v. Morrison

• Decision Date: 18 January 2022
• Docket Number: 1 CA-CR 21-0012
• Parties: STATE OF ARIZONA, Appellee, v. SCOTT ALAN MORRISON, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee,
v.
SCOTT ALAN MORRISON, Appellant.

No. 1 CA-CR 21-0012

Court of Appeals of Arizona, First Division

January 18, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Yavapai County No. P1300CR201900722 The Honorable John David Napper, Judge

Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee

Oliverson & Huss Law, PLLC, Tempe By Jeremy Huss Counsel for Appellant

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Judge David B. Gass delivered the decision of the court, in which Presiding Judge D. Steven Williams joined and to which Judge James B. Morse Jr. dissented.

MEMORANDUM DECISION

GASS, JUDGE

¶1 Scott Alan Morrison appeals his convictions and sentences for possession or use of narcotic drugs (Count 2) and related drug paraphernalia (Count 4). He does not appeal the two convictions related to dangerous drugs (Counts 1 and 3). Because insufficient evidence supports the verdicts on Counts 2 and 4, we reverse those convictions and remand to the superior court for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶2 Detectives in the Partners Against Narcotics Trafficking (PANT) task force began investigating Morrison after he took a box of prescription drugs from another suspect who PANT had under investigation. Two weeks later, PANT detectives had an informant conduct a controlled methamphetamine buy from Morrison. When the informant did not come out of Morrison's trailer, officers knocked on the door and asked Morrison to come outside. Officers then arrested Morrison and obtained a search warrant. The police found methamphetamine in a hallway closet, methamphetamine paraphernalia in a bedroom, marijuana and related paraphernalia in the living room, and one syringe filled with a liquid on Morrison's bedroom nightstand.

¶3 At trial, the lead detective said he had twenty years' experience with the PANT task force and had worked more than a hundred drug cases. He described how heroin generally looks and smells and its typical consistency. He also said when heroin is in a syringe, it is typically a black liquid. The detective said he believed the syringe he found on the nightstand was heroin. The parties stipulated - without further foundation-to the admission of a photograph of a syringe filled with liquid. The State did not admit evidence of any lab analysis of the liquid.

¶4 The jury convicted Morrison of possession of dangerous drugs (Count 1), possession of narcotic drugs (Count 2), and two counts of

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possession of drug paraphernalia (Count 3 for methamphetamine and Count 4 for heroin). The superior court suspended Morrison's sentence and placed him on concurrent supervised probation terms of four years for each drug possession charge and three years for each paraphernalia charge. Morrison timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4033.A.1.

ANALYSIS

¶5 Morrison contends insufficient evidence supported his convictions for possession of narcotic drugs and narcotic-drug paraphernalia. This court reviews de novo claims of insufficient evidence. State v. West, 226 Ariz. 559, 562, f 15 (2011). In reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to sustaining the verdict and resolves all reasonable inferences against the defendant. State v. Rienhardt, 190 Ariz. 579, 588-89 (1997). But this court will reverse a conviction if no substantial evidence supports it. State v. Morgan, 248 Ariz. 322, 325, ¶ 7 (App. 2020); see also State v. Clark, 249 Ariz. 528, 533, ¶ 16 (App. 2020) ("a conviction based on insufficient evidence is fundamental, prejudicial error"). "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Mathers, 165 Ariz. 64, 67 (1990) (citations and internal quotation marks omitted).

¶6 As charged here, possession of a narcotic drug requires proof: (1) the defendant knowingly possessed heroin; and (2) the substance was heroin. A.R.S. § 13-3408. Possession of drug paraphernalia requires proof: (1) the defendant possessed a syringe with the intent to introduce a narcotic drug into the body; and (2) the syringe was drug paraphernalia. A.R.S. § 13-3415.

¶7 Morrison argues the evidence was insufficient to prove the syringe contained heroin. We agree because the only evidence connecting Morrison to possession of heroin was: (1) the lead detective's general background in drug training and arrests; (2) his statement heroin is commonly a black liquid and can be injected; (3) a photograph of a black liquid in a syringe; and (4) the lead detective's uncorroborated belief the liquid in the syringe found on Morrison's nightstand was heroin.

¶8 No doubt, circumstantial evidence may be sufficient to support a conviction for drug possession. See, e.g., State v. Junkin, 123 Ariz. 288, 291 (App. 1979).

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But it does not follow that the existence of any circumstantial evidence is sufficient to sustain a conviction. See Mathers, 165 Ariz, at 69-71; cf. State v. Terrell, 156 Ariz. 499, 503 (App. 1988) (stating an unusual name, physical presence within Maricopa or Pinal County, and a similar description to the previously convicted party is insufficient to prove identity and establish a prior conviction).

¶9 The State could have established sufficient evidence in several ways, the most preferred being a chemical analysis. See Wozniak v. Galati, 200 Ariz. 550, 554, ¶¶ 13, 15 (App. 2001); but...