State v. Pruett

• Decision Date: 24 April 2020
• Docket Number: No. 2 CA-CR 2019-0117,2 CA-CR 2019-0117
• Parties: THE STATE OF ARIZONA, Appellee, v. BARBARA ANN PRUETT, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. BARBARA ANN PRUETT, Appellant.

No. 2 CA-CR 2019-0117

ARIZONA COURT OF APPEALS DIVISION TWO

April 24, 2020

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20103761002

The Honorable Howard Hantman, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Mariette S. Ambri, Assistant Attorney General, Tucson

Counsel for Appellee

Emily Danies, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

EPPICH, Presiding Judge:

¶1 Barbara Ann Pruett appeals from her convictions for two counts of sale of a dangerous drug. She contends that insufficient evidence supports one of her convictions for sale of methamphetamine because the state did not prove she knowingly sold it, and the prosecutor engaged in misconduct by making improper arguments in her opening and closing remarks to the jury. We affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding Pruett's convictions and sentences. See State v. Murray, 247 Ariz. 447, ¶ 2 (App. 2019). In May 2010, an undercover police officer received information that a female named Gloria wanted to sell an ounce of methamphetamine for about $1,100. The officer contacted Gloria and they agreed to a deal. The officer met Gloria outside a trailer and then waited with her while the methamphetamine was being delivered. Pruett arrived in a truck and spoke to Gloria. Gloria then asked the officer to see the money for the purchase. He showed Gloria $1,100 and she told him to go inside the trailer because they wanted to do the deal in there. Inside the trailer, Pruett handed the officer a bag of methamphetamine and then counted the money the officer brought.

¶3 A few weeks later, in July 2010, the officer arranged to buy two more ounces of methamphetamine from Gloria. At her direction, they met at Pruett's house. After some phone conversations, Pruett determined they should leave to pick up the methamphetamine. According to a prearranged plan, Pruett drove her truck to a gas station and the officer met her there. At the gas station, the officer gave Gloria $2,600. Pruett then drove Gloria to the supplier, with the officer following.

¶4 When they arrived, the officer parked near the supplier's location—a mobile home—while Pruett and Gloria entered. After leaving the mobile home, the two women met the officer at the gas station and Gloria gave him the methamphetamine. The officer asked Gloria if shewanted $50 for her work in this drug transaction and she indicated they wanted some methamphetamine instead. The officer gave Gloria a gram of methamphetamine and Gloria said she was going to split it with Pruett. Gloria then left in Pruett's truck.

¶5 Pruett was charged with the two counts noted above, and after a two-day trial, a jury found her guilty of both. The trial court sentenced her to a concurrent prison term of five years on each count. Pruett appealed and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Sufficiency of the Evidence

¶6 Pruett contends the trial court erred by denying her Rule 20, Ariz. R. Crim. P., motion for a judgment of acquittal on the July sale, arguing that there was insufficient evidence to prove she knowingly sold methamphetamine.¹ A trial court must grant a motion for acquittal under Rule 20 "if there is no substantial evidence to warrant a conviction." State v. Goudeau, 239 Ariz. 421, ¶ 169 (2016). "Substantial evidence 'is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" Id. (quoting State v. West, 226 Ariz. 559, ¶ 16 (2011)). If, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," a motion for acquittal must be denied. West, 226 Ariz. 559, ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))).

¶7 We review de novo both the sufficiency of the evidence and the trial court's denial of a motion for acquittal. See West, 226 Ariz. 559, ¶ 15. "In determining whether substantial evidence supports a conviction, we consider both direct and circumstantial evidence and resolve all inferences against the defendant." Goudeau, 239 Ariz. 421, ¶ 169 (citation omitted). "[T]he probative value of the evidence is not reduced simply because it is circumstantial," State v. Anaya, 165 Ariz. 535, 543 (App. 1990), and a conviction may be proven by circumstantial evidence alone, State v. Burton, 144 Ariz. 248, 252 (1985).

¶8 "The sufficiency of the evidence must be tested against the statutorily required elements of the offense." State v. Pena, 209 Ariz. 503,¶ 8 (App. 2005). To support a conviction for sale of dangerous drugs, the state had to prove, beyond a reasonable doubt, a person knowingly "[t]ransport[ed] for sale, import[ed] into this state or offer[ed] to transport for sale or import into this state, sell, transfer or offer to sell or transfer a dangerous drug." A.R.S. § 13-3407(A)(7). "'Knowingly' means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists." A.R.S. § 13-105(10)(b). "'Sale' or 'sell' means an exchange for anything of value or advantage, present or prospective." A.R.S. § 13-3401(32). Methamphetamine is a dangerous drug. § 13-3401(6)(b)(xxxviii). "A person is criminally accountable for the conduct of another if . . . [t]he person is an accomplice of such other person in the commission of an offense . . . ." A.R.S. § 13-303. A person is an "accomplice" if she (1) "[s]olicits or commands another person to commit the offense"; (2) "[a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense"; or (3) "[p]rovides means or opportunity to another person to commit the offense." A.R.S. § 13-301.

¶9 Here, sufficient evidence supported the sale of a dangerous drug conviction on Count Two under the theory that Pruett was an accomplice to Gloria. There is ample circumstantial evidence showing that Pruett, at minimum, knowingly aided Gloria in completing the drug transaction. The officer testified that he had met Gloria and Pruett at Pruett's house and Pruett was the one who determined when they should leave to pick up the methamphetamine. According to the officer, Pruett drove her truck to the supplier and at one point even offered the title of her truck as collateral to assure the officer of her completing the transaction. Although Pruett argues that the evidence only established her mere presence, a rational trier of fact could have found beyond a reasonable doubt that Pruett knowingly helped Gloria sell methamphetamine to the officer.

Prosecutorial Misconduct

¶10 Pruett suggests the prosecutor engaged in misconduct in two respects: (1) improperly stating she was guilty in the state's opening statement and (2) improperly vouching for the state's witness.

¶11 Prosecutorial misconduct involves intentional conduct which the prosecutor knows to be improper and prejudicial, rather than conduct resulting from "legal error, negligence, mistake, or insignificant impropriety." State v. Martinez, 221 Ariz. 383, ¶ 36 (App. 2009) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). "To prevail on a claim ofprosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Morris, 215 Ariz. 324, ¶ 46 (2007) (quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998)). "The misconduct must be 'so pronounced and persistent that it permeates the entire atmosphere of the trial.'" Id. (quoting Hughes, 193 Ariz. 72, ¶ 26). Prosecutorial misconduct will only amount to reversible error in situations where "(1) misconduct exists and (2) 'a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.'" Id. (quoting State v. Anderson, 210 Ariz. 327, ¶ 45 (2005)). We review claims of prosecutorial misconduct by examining each claim of misconduct and reviewing objected-to claims for harmless error. State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 66 (2018).

Opening Statement

¶12 Pruett suggests the prosecutor committed misconduct when she began her opening statement by saying "Barbara Pruett is guilty of two counts of sale of a dangerous drug, methamphetamine, and the evidence will show that on May 26th, 2010, and July 1st, 2010, she sold a total of about nine grams of methamphetamine to [the officer]." At trial, Pruett objected after the end of the opening statement and argued that it was improper for the prosecutor to say she was "guilty" in an opening statement because it was argumentative and possibly a personal opinion about guilt. The prosecutor argued that the statement was proper because it was qualified by the phrase "the evidence will show." The trial court reserved ruling on this matter until it could confirm what was said. After checking the record and discussing it with the parties, the court acknowledged some concerns with the prosecutor's choice of words but reasoned this was "a non-issue" because the jury would later be instructed again that what the lawyers say is not evidence. Pruett agreed with this resolution of the issue.

¶13 "Opening statement is counsel's opportunity to tell the jury what evidence they intend to introduce . . . . [It] is not a time to argue the inferences and conclusions...