State v. Portillo

• Decision Date: 25 January 1994
• Docket Number: CA-CR
• Citation: State v. Portillo, 876 P.2d 1151, 179 Ariz. 116 (Ariz. App. 1994)
• Parties: STATE of Arizona, Appellee, v. Martin B. PORTILLO, Appellant. 191-1463.
• Court: Arizona Court of Appeals

Page 1151

876 P.2d 1151

179 Ariz. 116

STATE of Arizona, Appellee, v.Martin B. PORTILLO, Appellant.

1 CA-CR 91-1463.

Court of Appeals of Arizona Division 1, Department E.

Jan. 25, 1994.

Review Granted on issue 2 and

Denied on issue 1 July 11, 1994.

[179 Ariz. 117] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Section, and Galen H. Wilkes, Asst. Atty. Gen., Phoenix, for appellee.

John M. Antieau, Phoenix, for appellant.

OPINION

KLEINSCHMIDT, Judge.

Martin B. Portillo appeals from his convictions for money laundering and conspiracy to sell marijuana.We reverse the conviction for money laundering because the instruction relating to vicarious culpability was incorrect, and because the court failed to give a mere presence instruction.We reverse the conviction for conspiracy to sell marijuana because the instruction defining conspiracy was prejudicially incomplete.We also hold that it was not error to give an instruction defining "reasonable doubt," although we recommend against giving such an instruction in the future.We address a number of other issues which may arise if the case is retried.

FACTS AND PROCEDURAL HISTORY

The Defendant was one of eleven co-defendants named in an indictment alleging a number of crimes related to a marijuana smuggling operation.He was charged with conspiracy to sell marijuana and money laundering.As the result of plea bargains and scheduling difficulties, Ramon Gonzales Quema, the Defendant's brother-in-law, was the only co-defendant tried with the Defendant.The charges against Quema included two counts of transportation of marijuana, one count of transferring marijuana, and one count of illegally conducting an enterprise as well as conspiracy to sell marijuana and money laundering.

The trial lasted nearly seven weeks, and most of the evidence pertained to the charges against Quema.It showed that various people imported marijuana from Mexico and distributed it in Arizona and other parts of the United States.Quema was the principal Arizona distributor.

All of the evidence relating to the Defendant concerned acts that occurred in a two-year period beginning in January 1987.An Arizona drug dealer testified that on several occasions when he purchased marijuana, he saw the Defendant help load sealed boxes into the dealer's truck at a stash house.On several other occasions, the Defendant and another person took the dealer's truck and returned it to him filled with sealed boxes of marijuana.In addition, on one occasion, the Defendant and this same person picked up approximately $100,000 from the dealer.Finally, on another occasion, the Defendant was said to have been present when a substantial amount of cash was put in a box and wrapped in decorative paper like a present.

Law enforcement agents described how the Defendant was involved in an attempt to transfer money from Phoenix to El Paso on October 2, 1989.As a result of wiretap surveillance, the agents learned that a large amount of money was going to be paid to bribe Mexican officials to release some seized marijuana.The money was to be shipped to El Paso in a vehicle tire.The agents later observed the Defendant and another man, Fernando Sanchez, take a tire to a nearby service station where Sanchez jumped up and down on the tire while apparently trying to fill it with air.The Defendant stood approximately six feet from Sanchez while he worked on the tire.After the tire was replaced in the vehicle, the Defendant and Sanchez drove east on I-10.The vehicle, which was driven by Sanchez, was pulled over by the agents near Benson and $229,000 in U.S. currency was found in the tire.

The Defendant's defense to both charges was that he was not aware of any criminal activity and that his participation was done without any knowledge that he was assisting marijuana smugglers.Both the Defendant and Quema were convicted by a jury of all the offenses charged.The Defendant was placed on five years probation on both charges and, as a term and condition of probation on count one, ordered confined to the county jail for eight months.

IT WAS ERROR TO GIVE AN INSTRUCTION BASED ON PINKERTON v. UNITED STATES

Over the Defendant's objection, the trial court gave the following instruction:

A conspirator is liable for all criminal acts committed by a co-conspirator during and in furtherance of the conspiracy.

The instruction is based on Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489(1946), which held that a conspirator may be found responsible for crimes committed by a co-conspirator, as long as the acts which constitute the crimes are reasonably foreseeable and are carried out in furtherance of the conspiracy, even though the conspirator did not participate in their commission.Under this instruction, if the jurors believed that the evidence was sufficient to convict the Defendant for conspiracy to sell marijuana, they could have found the Defendant guilty of the substantive crime of money laundering even if they believed that others, and not the Defendant, were aware of the money in the tire.

Following the trial in this case, our supreme court, in State ex rel. Woods v. Cohen, 173 Ariz. 497, 844 P.2d 1147(1992), held that Pinkerton is not the law of Arizona.It said that for a conspirator to be guilty of a substantive crime committed by a co-conspirator, the evidence must be sufficient to support a finding of guilt as a principal or an accomplice.Id. at 501, 844 P.2d at 1151.

The State argues that it was harmless error to give the instruction because the jury might have found the Defendant guilty either of conspiracy as an accomplice or as a principal.The argument is off point.The Pinkerton theory of culpability does not concern conspiracy, but culpability for a substantive offense.In the Defendant's case the substantive charge is money laundering.

Even if the State's argument is applied to the money laundering charge, it fails.The argument is that the conviction should be upheld because there is evidence to support a finding of guilt on a theory of culpability that it was proper for the jury to consider, i.e., that the Defendant was either principal or accomplice to the money laundering.A claim that the jury might have convicted for the right reason is not sufficient.Before we can say that an error is harmless, we must be able to say, beyond a reasonable doubt, that it did not affect the verdict.State v. Lundstrom, 161 Ariz. 141, 150, 776 P.2d 1067, 1076(1989).We cannot say that in this case.Where there is a reasonable possibility that a person has been convicted upon an erroneous jury instruction, the conviction must be reversed.State v. Johnson, 155 Ariz. 23, 26, 745 P.2d 81, 84(1987).

THE COURT SHOULD HAVE GIVEN A MERE PRESENCE INSTRUCTION

The Defendant requested, and the court refused, the following instruction:

Guilt cannot be established by the Defendant's mere presence at a crime scene or mere association with another person at a crime scene.The fact that the defendant may have been present does not in and of itself make the defendant guilty of the crimes charged.

The court did, however, give the following instruction, which the State claims was adequate:

One may become a member of a conspiracy without full knowledge of all the details of the conspiracy.On the other hand, a person who has no knowledge of a conspiracy but happens to act in a way which furthers some object of the conspiracy does not thereby become a conspirator.

The Defendant points out that the instruction the court gave pertains only to the conspiracy charge and did not adequately cover his concept of the defense to the substantive charge of money laundering.We agree.Requested instructions which go to the gist of a defense and which are supported by competent evidence must be given.State v. Randolph, 99 Ariz. 253, 256, 408 P.2d 397, 400(1965).

This case is similar to State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630(1987).The defendant in Kimbrell was present in a house where a drug transaction was taking place.One of the participants in the transaction, as he was leaving the house to show the buyer marijuana which was in a truck outside, told the defendant that there was cocaine in the kitchen and that she should "watch it."The defendant went from the bedroom to the kitchen and, when the participants in the transaction returned to the house, she went back to the bedroom.The Supreme Court of South Carolina reversed a conviction for failure to give a mere presence instruction.

We are aware of one case, somewhat similar to the one before us, in which the failure to give a mere presence instruction was held not to be reversible error.In United States v. Ferris, 719 F.2d 1405(9th Cir.1983), a mere presence instruction was given with respect to a count charging conspiracy to distribute drugs but was refused with respect to a count charging distribution of drugs.The court felt that "in the circumstances of this case" the instructions were adequate.Id. at 1407-08.The potential for confusion in Ferris was less than it is in the case before us because the facts which supported the charge of conspiracy to distribute and the facts in support of the distribution in Ferris overlapped to a greater degree than they do in the case before us.In Ferris, proof of one charge tended to prove the other.In the case before us, the two crimes charged are more separate and distinct.

The evidence against the Defendant in our case on the charge of money laundering was not particularly strong, and the mere presence instruction the Defendant requested was the statement of the law which most precisely fit his defense.It should have been given.We reject the State's argument that the requested instruction would have been an improper comment on the evidence.

THE INSTRUCTION ON CONSPIRACY WAS INCOMPLETE

The Defendant also contends that there was error in the instruction given by the...