State v. Prado, 052820 AZAPP1, 1 CA-CR 19-0369

Docket Nº:1 CA-CR 19-0369
Opinion Judge:WINTHROP, Judge:
Party Name:STATE OF ARIZONA, Appellee, v. KEVIN GABINO PRADO, Appellant.
Attorney:Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz, Kristin Hooker, Rule 38(d) certified student Counsel for Appellee Office of the Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant
Judge Panel:Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Maria Elena Cruz and Judge David B. Gass joined.
Case Date:May 28, 2020
Court:Court of Appeals of Arizona
 
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STATE OF ARIZONA, Appellee,

v.

KEVIN GABINO PRADO, Appellant.

No. 1 CA-CR 19-0369

Court of Appeals of Arizona, First Division

May 28, 2020

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Mohave County No. S8015CR201800958 The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz, Kristin Hooker, Rule 38(d) certified student Counsel for Appellee

Office of the Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Maria Elena Cruz and Judge David B. Gass joined.

MEMORANDUM DECISION

WINTHROP, Judge:

¶1 Kevin Gabino Prado, a passenger in a vehicle carrying illegal drugs, appeals his convictions and sentences for transportation of narcotic drugs for sale, possession of narcotic drugs for sale, possession of drug paraphernalia, and possession of marijuana. Prado argues (1) insufficient evidence supports his conviction for transportation of narcotic drugs for sale and (2) his conviction for possession of narcotic drugs for sale must be vacated because it is a lesser-included offense of transportation of narcotic drugs for sale. For the following reasons, we affirm Prado's convictions and sentences, except his conviction and sentence for possession of narcotic drugs for sale, which we vacate.

FACTS AND PROCEDURAL HISTORY1

¶2 At approximately 10:40 p.m. on June 8, 2018, a Mohave County Sheriff's deputy conducted a traffic stop on a Honda Civic traveling approximately ninety miles per hour in a seventy-five mile-per-hour zone. Two men were in the Civic, which lacked a rear license plate.

¶3 As the deputy approached the front-seat passenger's side of the Civic, he smelled the odor of marijuana emanating from inside the vehicle. He asked the driver for his driver's license, proof of insurance, and vehicle registration. While waiting for those documents, the deputy observed rolling papers commonly used to smoke illegal drugs between the passenger's feet, a tan plastic tube often found inside rolling papers on the vehicle's back seat, and a black purse draped over the driver's shoulder.

¶4 The driver exhibited heavy breathing and an elevated heart rate, and he tried to rush the traffic stop, asking several times to leave. Eventually, the driver produced a California identification card and a Nevada Highway Patrol citation issued at approximately 2:00 p.m. that day, but he had no other requested documentation, including vehicle registration or proof of insurance. The passenger stared straight ahead without making eye contact, and when asked to produce identification, provided a California identification card identifying him as Kevin G. Prado. When asked if he possessed anything illegal, the passenger replied that he did not.

¶5 The deputy ran a records check, discovered the driver had a suspended license, and asked the driver to step out of the vehicle. The deputy asked the driver about his travels, including where the two men were coming from and where they were headed, and whether there was marijuana in the vehicle. The driver told the deputy there was no marijuana in the vehicle and consented to a search of the vehicle.

¶6 The deputy also had Prado step out of the vehicle and asked him about the men's travel plans. Prado stated the men were going to the Salt Lake City area to visit Prado's family for one week. However, Prado did not specifically know where in that area his family lived. Because no luggage was visible in the vehicle, the deputy asked Prado if the trunk contained any luggage. Prado said there was no luggage in the trunk, and when asked what the men planned to do for clothing during the week, Prado explained they planned to borrow clothes from his family.

¶7 The deputy told Prado that he smelled marijuana coming from the vehicle and believed he had probable cause to search it. The deputy asked Prado if he had a medical marijuana card, and Prado stated that he did not. When the deputy again asked if Prado had anything illegal in the vehicle, Prado admitted he had a...

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