State v. Reis
| Decision Date | 19 December 2014 |
| Docket Number | No. 2 CA-CR 2013-0431,2 CA-CR 2013-0431 |
| Parties | THE STATE OF ARIZONA, Appellee, v. PERLA MARINA REIS, Appellant. |
| Court | Arizona Court of Appeals |
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 NOT FOR PUBLICATION See Ariz.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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Christopher C. Browning, Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Joseph L. Parkhurst, Assistant Attorney General, Tucson
Counsel for Appellee
DeConcini McDonald Yetwin & Lacy, P.C.
By Ronald Zack, Tucson
Counsel for Appellant
Judge Espinosa authored the decision of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred.
¶1 After a jury trial, Perla Reis was convicted of one count of possession of marijuana for sale, one count of attempted transportation of marijuana for sale, and one count of possession of drug paraphernalia. The trial court imposed substantially mitigated, concurrent sentences on counts one and two, the longest of which was a three-year prison term, followed by three years' probation on the third count. On appeal, Reis challenges the sufficiency of the evidence underlying her convictions. She also argues her conviction for possession of marijuana for sale violates federal and state double jeopardy clauses. Lastly, she asserts the court's imposition of probation on count three, to be served consecutively to the other counts, violates Arizona's double punishment statute, A.R.S. § 13-116.
¶2 We view the evidence in the light most favorable to upholding the challenged convictions. See State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). In December 2012, United States Postal Inspectors and a South Tucson Police Officer were conducting surveillance outside a shipping store in Tucson. Around 3:30 p.m., they saw Reis park her vehicle in front of the store and get out and remove a white priority parcel box from the trunk. The box "looked like it had a little weight to it," requiring Reis to use both hands to lift it. The inspectors also could see that the box was "glued shut" and "sealed the way around," consistent with other drug mailings. Reis "appeared to be looking around, [a] little nervous."
¶3 Reis walked into the store with the box, followed a few minutes later by the postal inspectors. Once inside, they observedReis standing at a counter, writing on greeting cards, but, on closer inspection, she was "not actually writing anything." The box was sitting on the floor, a few feet away from Reis and no postage had yet been applied. One of the inspectors could see that it was to be delivered to a location in Madsen, Alabama, and had a Miami return address. Another then picked up the box and noted it had a "solid feel."
¶4 The postal inspectors identified themselves and Reis agreed to speak with them. She appeared "very nervous," "looking around, not able to focus" on the inspector questioning her. When asked about the contents of the box, Reis "got very nervous[,] . . . and said she did not know for sure, and . . . hinted it was something she thought could be suspicious." The inspectors read Reis her rights pursuant to Miranda,1 after which she agreed to further questioning. Reis claimed to have been paid fifty dollars to mail the package by a man in the park, but she declined to provide the man's name or the name of the park. The inspectors asked her several times about the contents of the box, but she would not "say what was inside or what she thought it could be," only responding "she had an idea there was something suspicious or illegal." Reis also admitted mailing a similar parcel at the same location a few days before. After saying she "took responsibility" for the contents of the parcel, Reis was released.
¶5 At the postal service's inspection office, a certified drug-detection dog reacted to the box, and the inspectors obtained a search warrant to open it. Inside, they discovered 5.35 pounds of marijuana in vacuum seal bags and wrapped in cellophane.
¶6 Reis was indicted for possession of marijuana for sale, attempted transportation of marijuana for sale, and possession of drug paraphernalia. At trial, following the close of the state's case, Reis moved for a verdict of acquittal based on the "lack of any evidence [she] knew that the package contained marijuana." Ruling there was substantial evidence from which the jury could find thedefendant guilty of the crime charged, the trial court denied the motion.
¶7 Reis then testified in her defense, stating that "a friend of a friend" gave her fifty dollars to mail the package, which she had picked up from another friend's home. She said she lied to the officers when she told them she was given the box by a man in a park. When asked to identify the individual who gave her the box or provide the address where she had received it, she declined, asserting she was "scared" that the man might "do[] something to me or my family." She further denied shipping a similar box a few days before and telling the inspector that she had done so. Reis maintained she had "no idea what was in the package." She was subsequently convicted and sentence as described above. We have jurisdiction over her appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶8 Reis first argues the trial court erred in denying her Rule 20, Ariz. R. Crim. P., motion for a judgment of acquittal, claiming there was no evidence she knew the package contained marijuana. We evaluate de novo the question of whether the evidence was sufficient to withstand a Rule 20 motion. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). We review a trial court's denial of a Rule 20 motion for an abuse of discretion, State v. Latham, 223 Ariz. 70, ¶ 9, 219 P.3d 280, 282 (App. 2009), considering all of the evidence presented at trial, State v. Marchesano, 162 Ariz. 308, 312, 783 P.2d 247, 251 (1989) (), overruled on other grounds, State v. Phillips, 202 Ariz. 427, n.4, 46 P.3d 1048, 1057 n.4 (2002); see also State v. Nunez, 167 Ariz. 272, 279, 806 P.2d 861, 868 (1991) ().
¶9 Rule 20(a) provides "the court shall enter a judgment of acquittal of one or more offenses charged . . . if there is no substantial evidence to warrant a conviction." Our supreme court has held "substantial evidence" to mean "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, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). Both direct and circumstantial evidence are considered in determining whether substantial evidence supports a conviction. West, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191. On a Rule 20 motion, "'the relevant question is whether, 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.'" Id. (emphasis omitted), quoting Mathers, 165 Ariz. at 66, 796 P.2d at 868. Further, "'[w]hen reasonable minds may differ on inferences drawn from the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal.'" Id. ¶ 18, quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).
¶10 Section 13-3405(A), A.R.S., provides: "Knowingly" means "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). Under § 13-3405, the state must prove the defendant knew he or she possessed or transported marijuana, rather than some other drug. See State v. Fierro, 220 Ariz. 337, ¶ 5, 206 P.3d 786, 788 (App. 2008) (); State v. Norris, 221 Ariz. 158, ¶ 8, 211 P.3d 36, 39 (App. 2009) (same). The knowledge element, however, may be satisfied if the defendant "was aware of the high probability that the package [he or she possessed] contained marijuana," and "acted with conscious purpose to avoid learning the true contents of the package[]." Fierro, 220 Ariz. 337, ¶¶ 5-6, 206 P.3d at 788.
¶11 Based on the totality of the circumstantial evidence here, reasonable jurors could have inferred that Reis knew the package contained marijuana. State v. Gaines, 113 Ariz. 206, 208, 549 P.2d 574, 576 (1976)_("Of necessity, proof of intent or knowledge must often be established by circumstantial evidence."), overruled on other grounds by State v. Avila, 127 Ariz. 21, 617 P.2d 1137 (1980).
First, the package was in Reis's actual possession and under her exclusive control, and the jury was not required to credit her claim that, unlike most people who mail packages, she did not know the nature of its contents. See, e.g., State v. Teagle, 217 Ariz. 17, ¶ 44, 170 P.3d 266, 277 (App. 2007) (); Beijer v. Adams ex rel. County of Coconino, 196 Ariz. 79, ¶ 25, 993 P.2d 1043, 1048 (App. 1999) (). Additionally, Reis exhibited nervous...
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