State v. Tarango
| Decision Date | 22 November 1994 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 182 Ariz. 246,895 P.2d 1009 |
| Parties | STATE of Arizona, Appellee, v. Sharon Lee TARANGO, Appellant. 93-0457. |
| Court | Arizona Court of Appeals |
Sharon Lee Tarango ("defendant") appeals her convictions and sentences on one count of sale of a narcotic drug and two counts of possession of narcotic drugs for sale, as enhanced by two prior felony convictions. We affirm the convictions but issue this opinion to clarify that, under the applicable statute, former Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-604(D) (1989), defendant is eligible for release after serving two-thirds of her prison sentences.
We view the evidence at trial in the light most favorable to sustaining the verdicts, resolving all reasonable inferences against defendant. State v. Atwood, 171 Ariz. 576 596, 832 P.2d 593, 613 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993).
On December 9, 1992, an undercover police officer visited a West Phoenix house that had been identified as the site of drug transactions. Defendant answered the back door and the officer asked to purchase cocaine. The officer gave defendant $20 and she invited him inside. He waited in a utility room while defendant went into the kitchen area. Inside the utility room were four other people who were preparing or injecting drugs that appeared to be heroin or cocaine.
Defendant soon returned from the kitchen and handed the officer two plastic bags containing cocaine rocks. The officer also observed defendant make a similar transfer to another man who had entered the house. A criminalist testified that the plastic bags sold to the officer contained 360 milligrams of cocaine in a usable condition.
Two days after the undercover purchase, police searched the house pursuant to a warrant. Defendant initially was arrested in the northwest bedroom, where she had been sleeping, although she subsequently was found outside the house, wearing handcuffs placed on her by police. A search of the house revealed powder cocaine, rock cocaine, and heroin in the northwest and west bedrooms, bathroom, and kitchen. The house had no electricity and was unfurnished.
An investigating detective testified that the powder cocaine had a street value of $1,600, the rock cocaine had a street value of $1,060, and the heroin had a street value of $1,500 to $1,800. Inside the house, police also observed items, such as spoons or bottle caps, commonly used to "cook" heroin before injection; pipes used to smoke rock cocaine; baking soda that could be used as a bonding agent for rock cocaine; and plastic bags that could be used to package rock cocaine for sale. Based upon these facts, the detective testified that, in his opinion, the narcotics were possessed for sale.
Police questioned defendant after her arrest. She stated that she was unemployed and admitted that she used narcotics, although she denied having done so during the preceding week. The investigating officer observed needle marks on both her arms.
At trial, defendant denied that she either sold drugs to the undercover officer or that she possessed drugs at the time of the search of the house. She claimed that she lived elsewhere, but admitted that she had spent the two previous nights at the house. She also admitted that she knew drugs were in the house and that she had access to those drugs.
The jury found defendant guilty of all three charges. Based upon defendant's admission to two prior felony convictions, the judge imposed an enhanced, presumptive term of 15.75 years imprisonment on each count. He ordered the sentences to be served concurrently. Defendant filed a timely notice of appeal. She raises the following issues:
1. The trial court erred in denying her motion for judgment of acquittal on the charges of possession of narcotic drugs for sale;
2. The trial court erred in admitting testimony regarding a complaint of drug trafficking in the house where she was arrested; and
3. The trial court erred in failing to specify that she would be entitled to parole eligibility after serving two-thirds of her sentences.
Defendant first argues that the trial court erred in denying her motion for judgment of acquittal on the charges of possession of narcotic drugs for sale. She maintains that the evidence merely showed that she was present at a house where drugs were discovered, but that such fact alone will not support her convictions. A judgment of acquittal is appropriate when there is "no substantial evidence to warrant a conviction." Rule 20, Arizona Rules of Criminal Procedure ("Rule(s)"); State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). "Substantial evidence is more than a mere scintilla and 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. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). Defendant emphasizes testimony by police that she had neither narcotics nor money on her person at the time of her arrest. She also points out that the trial record does not reveal the precise location of the narcotics found in the room where she was arrested.
The state responds that defendant was charged with possessing heroin and cocaine for sale. To prove that defendant constructively possessed these narcotics, the state was required to show that she exercised dominion and control over them. State v. Villalobos Alvarez, 155 Ariz. 244, 245, 745 P.2d 991, 992 (App.1987). Constructive possession may be shown by circumstantial evidence. Id.; State v. Donovan, 116 Ariz. 209, 212, 568 P.2d 1107, 1110 (App.1977); State v. Ballinger, 19 Ariz.App. 32, 35, 504 P.2d 955, 958 (1973). We conclude that sufficient evidence supported her convictions.
Defendant was present at the time the search occurred. See Donovan, 116 Ariz. at 213, 568 P.2d at 1111 (). Although she contended that she did not live in the house, she admitted spending the two previous nights there. See State v. Jenson, 114 Ariz. 492, 493, 562 P.2d 372, 373 (1977) (). The state was not required to show that defendant exclusively controlled the place where the narcotics were found. State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972).
Further, defendant admitted using narcotics that she purchased at the house. See State v. Nadler, 129 Ariz. 19, 22, 628 P.2d 56, 59 (App.1981) (). In addition, the fact that defendant was found outside the house after being handcuffed inside supported an inference of flight that, in turn, suggested that she possessed the narcotics discovered by police. State v. Laurino, 108 Ariz. 82, 83, 492 P.2d 1189, 1190 (1972).
Defendant's argument rests upon the premise that she could have been convicted only for possessing the cocaine and heroin discovered in the bedroom where she had been sleeping. The indictment and instructions to the jury, however, were not so limited. The detective's observations when he purchased cocaine from defendant provided substantial evidence that she had access to the heroin and cocaine later found throughout the house. Defendant even admitted to police that she knew drugs were present in the house and that she had access to them. This evidence permitted an inference that defendant possessed these narcotics. Nadler, 129 Ariz. at 22, 628 P.2d at 59.
Defendant also claims that, even if the evidence was sufficient to establish her possession of narcotic drugs, it was insufficient to establish possession for sale. We again disagree. Testimony that defendant sold cocaine to an undercover officer two days prior to her arrest supported the inference that the cocaine found in the house was intended for sale. Cf. Ballinger, 19 Ariz.App. at 35, 504 P.2d at 959 (). In addition, the inference of possession for sale was supported by the quantity of the narcotics seized and the presence of packaging materials. State v. Olson, 134 Ariz. 114, 118, 654 P.2d 48, 52 (App.1982). Moreover, the fact that the house was without electricity or furniture strongly suggested that it was being used primarily to sell narcotics, and only incidentally as a residence. We therefore find that the trial court did not err in denying defendant's motion for judgment of acquittal.
During direct examination, an investigating officer testified that police obtained a search warrant for the house because of " a complaint that ... established [that] this location was involved in some sort of illegal activity due to a high amount of traffic." Defendant's hearsay objection was overruled.
On appeal, defendant concedes that the statement was not hearsay because it was not offered for the truth of the matter asserted, but contends that the answer was nevertheless inadmissible because it was irrelevant to the issues at trial. See State v. Simms, 176 Ariz. 538, 540-41, 863 P.2d 257, 259-60 (App.1993) (...
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