State v. Ottar

• Decision Date: 26 June 2013
• Docket Number: No. CR–12–0462–PR.,CR–12–0462–PR.
• Parties: STATE of Arizona, Appellant, v. Kevin OTTAR and Ruan Junior Hamilton, Appellees.
• Court: Arizona Supreme Court

232 Ariz. 97
302 P.3d 622
663 Ariz. Adv. Rep. 7

STATE of Arizona, Appellant,
v.
Kevin OTTAR and Ruan Junior Hamilton, Appellees.

No. CR–12–0462–PR.

Supreme Court of Arizona,
En Banc.

June 26, 2013.

[302 P.3d 623]

William G. Montgomery, Maricopa County Attorney By E. Catherine Leisch, Deputy County Attorney, Phoenix, Attorneys for the State of Arizona.

[302 P.3d 624]

Mehrens and Wilemon PA By Craig Mehrens, Amy Wilemon, Phoenix, Attorneys for Kevin Ottar.

Kimerer & Derrick PC By Clark L. Derrick, Michael Alarid, III, Phoenix, Attorneys for Ruan Junior Hamilton.

OPINION
PELANDER, Justice.

[232 Ariz. 99]¶ 1 In a “reverse-sting” operation, undercover law enforcement officers sell drugs or other contraband to unsuspecting purchasers. The issue here is whether purchasers who handle and pay for drugs in a reverse sting, but do not and would not have been allowed to take them away, can be said to “ possess” drugs for sale. Contrary to the purchasers' argument, we conclude that it is possible to commit the offense of possessing drugs for sale under these circumstances.

I.

¶ 2 An undercover detective arranged to sell a large quantity of marijuana to defendants Ruan Hamilton and Kevin Ottar.¹ The marijuana was in bales in a warehouse that undercover law enforcement officers covertly monitored and controlled. The defendants and the detective went to the warehouse, where the defendants touched, smelled, and inspected the marijuana bales, placing those they liked into separate piles. The defendants agreed to buy 375 pounds, left the warehouse, and met with undercover detectives at a house, where the defendants paid $180,000 in cash for the intended purchase. After returning to the warehouse, the defendants repackaged the marijuana using a product to mask the odor. They were arrested at a hotel before taking any marijuana from the warehouse.

¶ 3 The defendants were charged, among other counts, with possession of marijuana for sale, in violation of A.R.S. § 13–3405(A)(2). They jointly moved to dismiss that count under Arizona Rule of Criminal Procedure 16.6(b), arguing broadly that “it is impossible to commit possession of marijuana for sale in a reverse sting operation,” and more specifically that they did not possess the marijuana here because both the drugs and the warehouse were controlled by police at all times. The trial court granted the motion in part, ruling that “the police officers were never going to allow [the defendants] to possess [the marijuana],” but permitted the State to proceed instead on a charge of attempted possession. SeeA.R.S. § 13–1001(A). After the court dismissed the case without prejudice at the State's request, the court of appeals reversed, concluding that, given the legal definition of “possess,” it was not impossible for the defendants to have possessed the marijuana and committed the charged offense even though the police never intended to allow them to leave with the drugs. State v. Ottar, Nos. 1 CA–CR 11–0592, 1 CA–CR 11–0600, 2012 WL 4789834, at *2 ¶ 8 (Ariz.App. Oct. 9, 2012) (mem. decision).

¶ 4 We granted review because the question of possession in a reverse-sting operation is of statewide importance and likely to recur. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 5 Under § 13–3405(A)(2), it is unlawful to knowingly possess marijuana for sale. Although that statute does not define “possess,” A.R.S. § 13–105(34) does: “ ‘Possess' means knowingly to have physical possession or otherwise to exercise dominion or control over property.” The statutory definition thus recognizes two kinds of possession: actual possession (“to have physical possession”) and constructive possession (“or otherwise to exercise dominion or control over property”).

¶ 6 The State claims that the defendants actually possessed the marijuana; it does not advance a constructive possession theory. Cf. State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972) (generally, “constructive possession” applies to circumstances

[302 P.3d 625]

232 Ariz. 100]where the drug is not found on the defendant's person or in his presence, but rather in a place “under his dominion and control” and when “it can be reasonably inferred that the defendant had actual knowledge of the existence of the narcotics”). The defendants argue that they never actually possessed the marijuana and that it was impossible for them to do so.

¶ 7 As an initial matter, we reject the State's contentions that “physical possession” is distinct from having “dominion or control” over property, and that possession occurred when the defendants merely touched and handled the marijuana. We instead conclude, as indicated by the definitional statute's use of the phrase “ otherwise to exercise dominion or control over property,” that “physical possession” requires some exercise of dominion or control over property. A.R.S. § 13–105(34) (emphasis added); see also id. § 13–105(35) (stating that “ ‘[p]ossession’ means a voluntary act if the defendant knowingly exercised dominion or control over property”); United States v. Adams, 625 F.3d 371, 383 (7th Cir.2010) (“One actually possesses a thing when it is in his physical custody and control.”); cf. State v. Barreras, 112 Ariz. 421, 423, 542 P.2d 1120, 1122 (1975) (reversing conviction for possession of heroin when no evidence supported finding that the defendant “had dominion and control, either actual or constructive,” over the drugs).

¶ 8 “Dominion” is not alleged or at issue here. The critical question, then, is whether the defendants “exercise[d] ... control” over the marijuana within the meaning of § 13–105(34). Because Arizona's criminal statutes do not define “control,” we give that word its ordinary meaning. A.R.S. § 1–213; see State v. Cox, 217 Ariz. 353, 356 ¶ 20, 174 P.3d 265, 268 (2007) (noting that “control is not a technical term” and “has a commonly understood meaning”).

¶ 9 Generally, 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 International Dictionary (Unabridged) 496 (1981)); see also Black's Law Dictionary 378 (9th ed. 2009) (defining “control” as “[t]o exercise power or influence over”). Thus, control implies more than mere touching or inspection of contraband. In the reverse-sting context, control requires that the defendant “has taken custody of the drugs or manifested an intent to do so.” Adams, 625 F.3d at 383. This meaning comports with “Arizona's broad definition of ‘possess.’ ” State v. Cheramie, 218 Ariz. 447, 449 ¶ 11, 189 P.3d 374, 376 (2008). But it also differentiates the crime of possession from that of attempted possession. See United States v. Kitchen, 57 F.3d 516, 525 (7th Cir.1995) (“[R]eading the element of control out of the equation ... risk[s] confusing possession with attempted possession.”).

¶ 10 Kitchen and Adams, both reverse-sting cases decided by the Court of Appeals for the Seventh Circuit, aptly illustrate these principles. In Kitchen, the court...