State v. Walker

• Court: Arizona Court of Appeals
• Writing for the Court: TOCI; CONTRERAS, P.J., and EHRLICH
• Citation: State v. Walker, 181 Ariz. 475, 891 P.2d 942 (Ariz. App. 1995)
• Decision Date: 16 March 1995
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellee, v. Benjamin Lawrence WALKER, Appellant. 92-1710.

Page 942

891 P.2d 942

181 Ariz. 475

STATE of Arizona, Appellee, v. Benjamin Lawrence WALKER, Appellant.

No. 1 CA-CR 92-1710.

Court of Appeals of Arizona,

Division 1,

Department A.

March 16, 1995.

[181 Ariz. 478] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Div., and Susanna C. Pineda, Asst. Atty. Gen., Phoenix, for appellee.

Marshall D. Tandy, Tucson, for appellant.

OPINION

TOCI, Judge.

Benjamin Lawrence Walker ("defendant") appeals his convictions and sentences for one count of transportation of marijuana for sale, a class 2 felony, and one count of escape in the second degree, a class 5 felony. He argues that the trial court erred by:

1. denying his motion for judgment of acquittal on both charges;

2. permitting a police expert to testify on the use of coded ledgers in drug trafficking and on "drug courier" profiles;

3. admitting a fingerprint card in the absence of adequate foundation;

4. denying his motion for mistrial on the ground of improper prosecutorial argument; and

5. denying his motion for a new trial.

We resolve these issues as follows. We find that the trial court properly denied defendant's motions for acquittal. We conclude that admission of testimony on the use of coded ledgers by drug traffickers was not error. We do not decide whether admission of the drug courier profile evidence was error because we conclude that, even if it was, admission of that evidence was harmless. Similarly, although the trial court erred in admitting the fingerprint card, we find that the error was harmless. Finally, we conclude that the trial court properly denied defendant's motions for mistrial and for a new trial. Accordingly, we affirm defendant's convictions and sentences.

I. FACTUAL BACKGROUND

In the early morning of March 12, 1992, defendant attempted to embark on an airline flight from Phoenix, Arizona to St. Louis, Missouri. When security personnel x-rayed a suitcase belonging to defendant, they observed three suspicious articles inside. Further investigation revealed that the items were tightly compressed bundles that contained forty-four pounds of marijuana. When placed under arrest by a police officer, defendant broke free of the officer's grasp. He fled to a nearby parking garage but was quickly apprehended.

At trial, defendant testified that the suitcase containing the marijuana did not belong to him. The jury found defendant guilty, and the trial court sentenced him to concurrent, presumptive prison terms of seven years for transportation of marijuana and two years for escape. The court also imposed a $30,800 fine. Defendant filed a timely notice of appeal.

II. DISCUSSION

A. Denial of Judgments of Acquittal

1. Transportation of Marijuana For Sale

Defendant contends that the trial court erred in denying his motion for judgment of acquittal on transportation of marijuana for sale. He asserts that he was entitled to acquittal because there was insufficient evidence to connect him to the suitcase where the drug was found. We disagree.

A judgment of acquittal is only appropriate where there is "no substantial evidence to warrant a conviction." Ariz.R.Crim.P. 20; State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting Ariz.R.Crim.P. 20). "Substantial evidence is more than a mere scintilla" of evidence; it is evidence that " 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.' " Mathers, 165 Ariz. at 67, 796 P.2d at 869 (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)).

Here, there was evidence from which reasonable persons could conclude that the suitcase containing the marijuana belonged to defendant. The security officer supervising the airport checkpoint testified that defendant admitted that the suitcase was his and that he gave the officer permission to search it. In addition, the suitcase contained a notebook bearing defendant's fingerprints and a wall poster bearing the inscription "To Ben." The fact that this evidence was contradicted or impeached does not render it insufficient for purposes of judgment of acquittal. See State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App.1991). Thus, the trial court's denial of judgment of acquittal on the charge of transportation of marijuana for sale was proper.

2. Escape in the Second Degree

Defendant's claim that there was insufficient evidence to support his conviction for second-degree escape primarily rests upon his interpretation of the statute defining that offense. In pertinent part, Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-2503 (1989) states:

A. A person commits escape in the second degree by knowingly:

1. Escaping or attempting to escape from a correctional facility; or

2. Escaping or attempting to escape from custody imposed as a result of having been arrested for, charged with or found guilty of a felony.

B. Escape in the second degree is a class 5 felony....

(Emphasis added.) The nature of the underlying offense is the distinguishing factor between second-degree escape under subsection (A)(2) and third-degree escape. The third-degree escape statute provides:

A. A person commits escape in the third degree if, having been arrested for, charged with or found guilty of a misdemeanor or petty offense, such person knowingly escapes or attempts to escape from custody.

B. Escape in the third degree is a class 6 felony.

A.R.S. section 13-2502.

Defendant argues that he was entitled to a judgment of acquittal on the charge of second-degree escape because the state failed to prove that he knew he was under arrest for a felony. We reject this argument.

Although we have not previously considered whether knowledge of the nature of the arrest is a required element of second-degree escape, we have previously concluded that no such knowledge is required in cases of third-degree escape. See State v. Mena, 128 Ariz. 244, 246-47, 624 P.2d 1292, 1294-95 (App.1980), approved in part, vacated in part, 128 Ariz. 226, 624 P.2d 1274 (1981). In Mena, the appellant contended that his conviction for third-degree escape was flawed because he was not informed, prior to his escape, that he was under arrest for disorderly conduct. In a portion of the opinion affirmed by our supreme court, we noted:

Appellant was talking loudly, cursing and disrupting the investigation to such an extent that the officers were unable to interview the witnesses. When appellant was warned and refused to be quiet, one of the officers told the other to arrest appellant and put him in the police car. He was taken and locked in the police car. He was later charged with disorderly conduct. When he was placed in the patrol car he had been arrested for disorderly conduct and it was not necessary for the law enforcement officers to inform him of the reason for the arrest in order to find him guilty of escape under the statute.

Id. (emphasis added). Although Mena does not mention the relevant culpable mental state, the case makes clear that only the fact of the arrest for an underlying charge, and not defendant's knowledge of the nature of that charge, is a necessary element of third-degree escape.

It is not immediately apparent that our holding in Mena is applicable to cases involving second-degree escape. Under the third-degree escape statute applicable in Mena, the mental state of "knowingly" clearly applies to a defendant's act of "escape" or "attempt to escape from custody" and not to the attendant circumstance of misdemeanor or petty offense custody. See A.R.S. § 13-2502(A). But A.R.S. section 13-2503(A), the second-degree escape statute, sets out parallel elements--culpable mental state, culpable conduct, and the attendant circumstance of felony custody--in a slightly different order than the third-degree escape statute. The difference in syntax could be read to suggest that, for second-degree escape, a knowing mental state applies to all elements, including the nature of the arrest. See A.R.S. section 13-202(A) (if statute does not distinguish among elements of an offense, the mental state shall apply to each element of the offense "unless a contrary legislative purpose plainly appears").

We conclude, however, that it is obvious that the structure adopted by the legislature in the second-degree escape statute was only intended to accommodate the bifurcated definition of second-degree escape in subsections (A)(1) and (A)(2) of section 13-2503. It is true that the second-degree escape statute placed the requested mental state at the beginning of the definition of the offense, instead of immediately prior to the "escape" element as in the third-degree escape statute. Nevertheless, we believe the legislature did not intend to alter the nature of the offense from that defined in the third-degree escape statute.

It would be anomalous to hold that provisions enacted as part of the same statute, covering the same subject, and employing the same language would have fundamentally different elements merely because of differences in word order. See State v. Thomason, 162 Ariz. 363, 366, 783 P.2d 809, 812 (App.1989) ("A statute should be explained in conjunction with other statutes which relate to the same subject or have the same general purpose."); State v. Oehlerking, 147 Ariz. 266, 268, 709 P.2d 900, 902 (App.1985), disavowed in part by State v. Wilson, 150 Ariz. 602, 724 P.2d 1271 (App.1986) ("Where the same words or phrases appear in the same statute, they should be given a consistent meaning unless there is a clearly expressed legislative intention to the contrary."). Here, to find that our holding in Mena is inapplicable to second-degree escape would lead to the absurd result that it would be illegal for a person arrested for a misdemeanor to escape prior to learning the nature of his arrest, but it would be perfectly legal for one arrested for a felony to do so.

Because statutes should not be interpreted to...