State v. Valenzuela

• Decision Date: 28 June 2012
• Docket Number: 2 CA-CR 2011-0339
• Parties: THE STATE OF ARIZONA, Appellee, v. MARTIN FRANCISCO VALENZUELA, Appellant.
• Court: Court of Appeals of Arizona

THE STATE OF ARIZONA, Appellee, v. MARTIN FRANCISCO VALENZUELA, Appellant.

2 CA-CR 2011-0339

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Dated: June 28, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20101592001

Honorable Scott Rash, Judge

AFFIRMED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani, Joseph T. Maziarz, and

Joseph L. Parkhurst

Tucson

Attorneys for Appellee

Cooper & Udall, P.C.

By Laura E. Udall

Tucson

Attorneys for Appellant

ESPINOSA, Judge.

¶1 After a jury trial, Martin Valenzuela was convicted of possession of marijuana for sale. He argues on appeal that the trial court erred in denying his motionsfor a judgment of acquittal and a new trial on grounds the evidence was insufficient to support his conviction and the jury's verdict was against the weight of the evidence. He alternatively argues the court erroneously denied his motion for a new trial based on an allegedly improper closing argument by the prosecution. We affirm.

Factual Background and Procedural History

¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). In April 2010, members of the Counter Narcotics Alliance, a drug interdiction task force comprised of various law enforcement agencies, undertook surveillance of a house in Tucson. Shortly thereafter, a man later identified as Valenzuela arrived in a car and parked on a side street. While speaking on a cellular telephone, he walked across the yard toward the front door of the house, which "opened just prior to him getting there," and went inside.

¶3 About ten minutes later, the house's garage door opened and a large sport utility vehicle (SUV) backed out onto the street and drove away. Part of the surveillance team followed the vehicle and conducted a traffic stop. Although a drug-detection dog alerted to the passenger's side door and then to the rear cargo area of the SUV, no drugs were found in these locations; ultimately, only a small "sample" bag of marijuana was found in the driver's side door pocket. After the traffic stop, the SUV was returned to the house, where the supervising officer was preparing to make contact with the house's occupants. While two uniformed officers approached the front door, Valenzuela and another man were seen running from the back of the house. Officers ordered the twomen to stop; Valenzuela complied, and the other suspect was chased down and ultimately apprehended.

¶4 After obtaining a warrant, officers searched the house and found nearly a thousand pounds of marijuana in various rooms, as well as packaging materials, inventory ledgers, digital scales, a pistol and ammunition, and a road map with routes marked from Mexico to San Antonio and Tucson. Valenzuela and the other two suspects were charged with possession of marijuana for sale and possession of drug paraphernalia. At Valenzuela's trial, the court granted his motion for a judgment of acquittal as to the paraphernalia charge but denied acquittal on the marijuana charge. The jury found him guilty of possession of marijuana for sale and determined the quantity of marijuana was four pounds or more. The court denied his post-verdict motions for a judgment of acquittal and a new trial, and sentenced him to a mitigated term of three years' imprisonment. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

Sufficiency of Evidence

¶5 Valenzuela argues there was insufficient evidence to support his conviction of possession of marijuana for sale and therefore the trial court erred in denying his motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P. We review the denial of a Rule 20 motion de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). In evaluating a Rule 20 ruling, "'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). "'Substantial evidence,' Rule 20's lynchpin phrase, '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 Mathers, 165 Ariz. at 67, 796 P.2d at 869. "Both direct and circumstantial evidence should be considered in determining whether substantial evidence supports a conviction." Id. Denying a Rule 20 motion is proper "where reasonable minds could differ on the inferences to be drawn from the evidence presented." State v. Belyeu, 164 Ariz. 586, 590, 795 P.2d 229, 233 (App. 1990).

¶6 To sustain Valenzuela's conviction for possession of marijuana for sale, the state was required to present substantial evidence he had knowledge of the drug's presence, it was in fact marijuana, he possessed it, and the possession was for the purpose of sale. See A.R.S. § 13-3405(A)(2); State v. Murphy, 117 Ariz. 57, 61, 570 P.2d 1070, 1074 (1977); State v. Arce, 107 Ariz. 156, 160, 483 P.2d 1395, 1399 (1971). Valenzuela does not dispute that the evidence was sufficient to prove the house contained marijuana, that he knew it was present, or that it was held for sale. He maintains instead that he had been merely present and the state's evidence was insufficient to show he had possessed the marijuana.

¶7 Our legislature has defined "possess" to mean "knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(34). A person may be convicted of possession of marijuana if the state proveshe or she exercised dominion or control over the drug or the place where it is found, whether or not he or she had physical possession. Murphy, 117 Ariz. at 61, 570 P.2d at 1074; State v. Riley, 12 Ariz. App. 336, 337, 470 P.2d 484, 485 (1970). However, mere knowledge of the drug's presence, without more, is insufficient to establish possession. State v. Miramon, 27 Ariz. App. 451, 452, 555 P.2d 1139, 1140 (App. 1976).

¶8 The state argues the evidence was sufficient to show that Valenzuela had exercised dominion and control over the marijuana found in the house. See Riley, 12 Ariz. App. at 337, 470 P.2d at 485 (person with dominion or control over property has constructive possession). To establish that Valenzuela had dominion or control, the state was required to prove he "had the right to control [the drug's] disposition or use." Miramon, 27 Ariz. App. at 453, 555 P.2d at 1141. But the evidence need not have shown Valenzuela "exercised exclusive possession or control over the substance itself or the place in which [it] was found; control or right to control is sufficient." State v. Curtis, 114 Ariz. 527, 528, 562 P.2d 407, 408 (App. 1977); see also Miramon, 27 Ariz. App. at 452, 555 P.2d at 1140 ("Possession of narcotics may be sole or joint and two or more persons may have joint possession thereof.").

¶9 Although it is a close question, we conclude the state's evidence, considered in the aggregate, was sufficient to allow a reasonable jury to infer that Valenzuela had possessed the marijuana found inside the house. First, there was testimony that the house lacked normal indicators of occupancy as a residence, such as towels, toiletries, and clothing, from which the jury could reasonably have concluded it was used exclusively for the processing of marijuana, a conclusion Valenzuela does notdispute. And the jury reasonably could have found that Valenzuela was expected at the house based on the testimony that the front door opened for him from the inside without his having to knock. It also could find he was aware the marijuana was being processed in the house based on evidence that the entire premises smelled strongly of raw marijuana and there were numerous bales stacked overtly in the kitchen, which was open to other areas of the house.

¶10 In addition, the jury could infer that Valenzuela's arrival only a few minutes before the departure of the SUV whose cargo area, though empty, smelled strongly of marijuana, suggested his arrival was timed to help process a shipment that recently had been delivered. And the jury could have concluded, based on the piles of discarded packaging materials and garbage bags containing loose marijuana debris, that the recently transported marijuana was being repackaged for distribution while Valenzuela was inside the house but that the process was interrupted when law enforcement approached the front door. Finally, the jury heard evidence that Valenzuela had attempted to flee the premises just before police made contact, a fact to which it could properly have attributed consciousness of guilt. See State v. Edwards, 136 Ariz. 177, 184, 665 P.2d 59, 66 (1983) (flight by accused raises inference of guilt).

¶11 Although these facts may also be susceptible of a noncriminal explanation, "an appellate court does not reweigh the evidence to decide if it would reach the same conclusions as the trier of fact." State v. Barger, 167 Ariz. 563, 568, 810 P.2d 191, 196 (App. 1990). Viewing the evidence in the light most favorable to upholding the verdict, we conclude reasonable persons could accept it as sufficient to support a conclusionbeyond a reasonable doubt that Valenzuela had constructively possessed the marijuana for sale. See West, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191. Because "'reasonable minds [could] differ on inferences drawn from the facts,'" the trial court properly permitted the case to go to the jury and did not err in denying...