STATE v. GONSALVES
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DIVISION ONE
FILED: 2/28/2013
RUTH A. WILLINGHAM,
CLERK
BY: mjt
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
DEREK PAUL GONSALVES,
)
)
Appellant. )
__________________________________)
No. 1 CA-CR 11-0645
DEPARTMENT D
OPINION
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-141206-001
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
And
Jeffrey L. Sparks, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By
Thomas K. Baird, Deputy Public Defender
Attorneys for Appellant
Phoenix
G O U L D, Judge
¶1
In this opinion, we address whether a defendant may be
found in constructive possession of a firearm, and therefore
guilty
of
misconduct
involving
weapons
pursuant
to
Arizona
Revised
Statutes
(“A.R.S.”)
Section
13-3102
(A)(4),1
when
an
accomplice maintains exclusive possession of the firearm during
the commission of an offense.
found
in
constructive
We conclude a defendant may be
possession
of
a
firearm
under
such
circumstances if there is sufficient evidence to show: (1) the
defendant
has
actual
knowledge
of
the
firearm,
and
(2)
the
possession, use, or threatened use of the firearm is essential
to the commission of the offense.
Procedural and Factual Background
¶2
Defendant Derek Paul Gonsalves appeals his conviction
and sentence for misconduct involving weapons under A.R.S. § 133102(A)(4),
on
the
ground
the
evidence
was
insufficient
to
support the conviction.2
¶3
We review de novo the sufficiency of the evidence to
support a conviction.
State v. West, 226 Ariz. 559, 562, ¶ 15,
250 P.3d 1188, 1191 (2011).
favorable
to
upholding
the
We view the facts in the light most
jury's
verdict,
conflicts in the evidence against defendant.
and
between
direct
and
all
State v. Girdler,
138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983).
distinguish
resolve
circumstantial
We do not
evidence.
See
1
We cite to the current versions of the statutes, which
have not changed materially with respect to the issues on appeal
since this offense was committed on July 30, 2010.
2
Defendant appealed his convictions on all three counts.
However, on appeal Defendant only challenges his conviction for
misconduct involving weapons.
2
State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993).
Finally, we review questions of law de novo.
In re Brittany Y.,
214 Ariz. 31, 32, ¶ 6, 147 P.3d 1047, 1048 (App. 2006).
¶4
At
convenience
approximately
store
in
1:00
west
a.m.,
Phoenix
the
and
victim
attempted
purchase with a one-hundred-dollar bill.
entered
to
make
a
a
The clerk told him
that he could not accept a one-hundred-dollar bill as payment
for a purchase.
The victim left the store and approached two
men
pumps,
by
the
gas
one
of
whom
he
later
identified
as
Gonsalves, showed them the hundred-dollar bill, and asked them
if they had change.
Gonsalves indicated he did not have any
change, and the victim left the parking lot and started to walk
home.
¶5
An officer testified that a surveillance tape from the
store showed Gonsalves and his accomplice watching the victim
leave the parking lot.
The tape then showed the two men “rather
hastily”
blue
jump
into
a
SUV,
and,
with
Gonsalves
as
the
driver, make a “sharp U-turn” in the parking lot to follow the
victim.
¶6
Less than five minutes later, the blue SUV stopped
next to the victim, and Gonsalves and his accomplice got out and
approached the victim. Gonsalves was not armed; however, his
accomplice held a handgun.
While his accomplice held the victim
at gunpoint, Gonsalves yelled at the victim several times to
3
give
him
his
money.
The
victim,
who
is
hearing
impaired,
pointed to his ears in an attempt to convey he had difficulty
hearing, and told Gonsalves he did not have any money.
his
accomplice
continued
to
hold
the
victim
at
While
gunpoint,
Gonsalves punched the victim in the face and stole six hundred
dollars
from
him.
After
Gonsalves
accomplice shot the victim in the leg.
robbed
the
victim,
his
The two men then left
the scene together in the blue SUV.
¶7
The
victim
subsequently
identified
Gonsalves
photo lineup as the person who had robbed him.3
in
a
At trial, the
parties stipulated that Gonsalves had a prior felony conviction
and did not have the right to own, carry, or possess a firearm.
The
jury
convicted
Gonsalves
of
armed
robbery,
aggravated
assault, and misconduct involving weapons based on his status as
a prohibited possessor.
Gonsalves timely appealed.
Discussion
¶8
The
sole
issue
on
appeal
is
whether
there
is
sufficient evidence to show Gonsalves knowingly possessed the
gun used by his accomplice.
Gonsalves contends that because his
accomplice held the gun throughout the robbery, the State failed
to show he was in possession of the gun, and therefore failed to
3
The victim initially identified Gonsalves as the
shooter.
At trial, however, the victim denied telling police
Gonsalves was the one who shot him; he testified that “the other
person had the gun.”
4
prove
an
essential
involving weapons.4
element
of
the
offense
of
misconduct
In response, the State argues that while
Gonsalves did not physically possess the gun, he jointly and
constructively possessed the gun with his accomplice during the
robbery.
¶9
Possession may be actual or constructive.
State v.
Barreras, 112 Ariz. 421, 423, 542 P.2d 1120, 1122 (1975); A.R.S.
§
13-105(34)
(“‘Possess’
means
knowingly
to
have
physical
possession or otherwise to exercise dominion or control over
property.”).
Actual
possession
means
a
defendant
exercised direct physical control over an object.
Barreras, 112
Ariz. at 422, 542 P.2d at 1121; A.R.S. § 13-105(34).
“[o]ne
who
exercises
dominion
or
control
over
knowingly
However,
property
has
constructive possession of it even if it is not in his physical
possession.”
State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶
13, 965 P.2d 94, 97
(App. 1998).
Thus, under a theory of
constructive possession, two or more persons may jointly possess
a
prohibited
object;
immediate and personal.”
possession
need
not
be
“[e]xclusive,
State v. Carroll, 111 Ariz. 216, 218,
526 P.2d 1238, 1240 (1974).
¶10
Constructive possession may be proven by direct or
circumstantial evidence.
See State v. Villalobos Alvarez, 155
4
A person commits misconduct involving weapons by
“knowingly . . . [p]ossessing a deadly weapon . . . if such
person is a prohibited possessor.” A.R.S. § 13-3102(A)(4).
5
Ariz. 244, 245, 745 P.2d 991, 992 (App. 1987).
However, a
person's mere presence at a location where a prohibited item is
located
is
insufficient
to
show
that
he
exercised dominion or control over it.
Ariz.
App.
omitted).
451,
452,
555
P.2d
1139,
or
she
knowingly
State v. Miramon, 27
1140
(1976)
(citation
Rather, the state must show by “specific facts or
circumstances that the defendant exercised dominion or control”
over the object.
Villalobos Alvarez, 155 Ariz. at 245, 745 P.2d
at 992.
¶11
Thus, Gonsalves’ mere proximity to the gun during the
robbery was insufficient to show constructive possession.
In
order to show Gonsalves constructively possessed the gun, the
State was required to prove (1) Gonsalves knew his accomplice
possessed the gun, and (2) Gonsalves jointly exercised control
over the gun.
See State v. Bustamante, 229 Ariz. 256, 259, ¶
10, 274 P.3d 526, 529 (App. 2012) (holding that where defendant
was charged with misconduct involving weapons, in order to prove
constructive
possession
over
a
gun
on
the
driver’s
side
floorboard of a car, the State “bore the burden of proving that
defendant
1)
knew
that
the
gun
was
on
the
driver's
side
floorboard and 2) he exercised control over it.”); State v. Cox,
217 Ariz. 353, 357, ¶ 26, 174 P.3d 265, 269 (2007) (holding
there
was
misconduct
sufficient
involving
evidence
weapons
to
where
6
support
the
conviction
State
showed
for
the
defendant “(1) knew that the guns were in the trunk and (2)
[defendant] exercised control over them.”).
¶12
Based
on
our
sufficient evidence
review
of
the
record,
for the jury to find
accomplice
drove
While the two men
holding
a
gun,
to
the
scene
of
the
approached the victim,
and
when
Gonsalves
Gonsalves and
robbery
together.
the accomplice
robbed
accomplice held the victim at gunpoint.
was
Gonsalves knew his
accomplice possessed the gun during the robbery.
his
there
the
victim,
Gonsalves was
was
his
also
present when his accomplice shot the victim in the leg.
¶13
about
Gonsalves argues, however, that even assuming he knew
the
gun,
the
evidence
still
exercised control over the gun.
did
not
show
he
jointly
To resolve this issue, we must
examine whether the gun was essential to committing the robbery.
See Bustamante, 229 Ariz. at 259-60, ¶¶ 11-12, 274 P.3d at 52930; United States v. Perez, 661 F.3d 568, 577-78 (11th Cir.
2011).
¶14
In
Bustamante,
two
men
gunpoint and placed him in a vehicle.
kidnapped
the
victim
at
Bustamante, 229 Ariz.
at
257, 259-60, ¶¶ 2-3, 11, 274 P.3d at 527, 529-30.
later,
the
advising
victim
her
the
receive a ransom.
belonging
to
the
called
his
kidnappers
girlfriend
would
kill
from
him
if
A short time
a
cell
they
phone,
did
not
Police later identified the cell phone as
defendant.
Id.
7
The
next
day,
when
the
defendant and the victim arrived at the ransom drop-off point,
the police intervened and arrested the defendant and his coconspirators.
Id.
The victim was found in the back seat of the
car, beaten and bruised, while the defendant was in the front
passenger seat.
Id.
On the driver’s side floorboard of the
car, police located a loaded handgun that was visible and within
reach
of
the
defendant.
Id.
The
defendant
was
eventually
convicted of kidnapping, aggravated assault, theft by extortion,
and misconduct involving weapons.
¶15
Id.
On appeal, the defendant challenged the sufficiency of
the evidence with regard to his weapons conviction, arguing the
State had failed to show he knowingly possessed the handgun.
Bustamante, 229 Ariz. at 259-60, ¶¶ 10-12, 274 P.3d at 529-30.
We rejected the defendant’s argument, concluding the gun was
“essential”
to
the
efforts
of
the
defendant
and
conspirators to kidnap and extort money from the victim.
259, ¶¶ 11-12, at 530.
his
co-
Id. at
In reaching this conclusion, we noted
the gun was “visible and within reach” of the defendant, and the
“[d]efendant had the present ability to use the gun to subdue
the victim or resist defensive measures.”
530.
Id. at 260, ¶ 11, at
Based on these facts, we held that the jury could have
reasonably concluded the defendant had control over the handgun.
Id. at 260, ¶ 12, at 530; see also State v. Coley, 158 Ariz.
471, 472, 763 P.2d 535, 536 (App. 1988) (affirming conviction
8
for
misconduct
involving
weapons,
despite
the
fact
defendant
never touched the weapon, where defendant and his accomplice
were engaged in a scheme to buy and transport weapons and it was
“obvious” defendant knew the weapon was being transported in the
van).
¶16
In
Perez,
the
defendant
and
his
co-defendants
were
convicted of conspiracy and attempted robbery of a fictional
drug stash house.
Perez, 661 F.3d 568, 577-78.
The defendant
was also convicted for being a felon in possession of a firearm.5
At the time of the defendant’s arrest, he was not in physical
possession of any firearm; all of the subject firearms were
located in a separate vehicle.
appeal,
defendant
argued
Perez, 661 F.3d at 577-78.
there
was
insufficient
On
evidence
to
prove he knew about the guns in the other vehicle or that he
exercised any “dominion or control over them.”
¶17
Id. at 577.
The Perez court affirmed the weapons conviction based
on defendant’s joint possession of the firearms with his coconspirators.
reasonably
The
concluded
court
determined
defendant
was
firearms in the other vehicle
that
aware
based on
5
a
jury
could
of
the
presence
the
have
of
“near certainty”
18 United States Code (“U.S.C.”) Section 922(g)(2012)
provides, in pertinent part, “It shall be unlawful for any
person . . . who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year . . .
to . . .
possess in or affecting commerce, any firearm or
ammunition.”
9
firearms would be needed to rob the armed guards located at the
stash house.
Id. at 577-78.
Moreover, the court noted that
while defendant and his co-conspirators were staging the robbery
in a “small apartment,” the specific guns to be used in the
robbery were being discussed by the defendant’s co-conspirators
and
were
conspicuously
defendant.
¶18
displayed
in
the
presence
the
Id. at 578.
In addition, the court concluded that the defendant
jointly possessed the firearms with his co-conspirators.
576-77.
of
Id. at
The court stated that the firearms were essential to
committing the robbery, and that even though the defendant may
have never intended to use the firearms himself, he shared his
co-conspirators’ intent to use the firearms to rob the stash
house.
1057,
Id. at 577; see United States v. McCraney, 612 F.3d
1065-66
possession
of
(8th
a
Cir.
firearm
2010)
under
(affirming
18
U.S.C.
§
conviction
924
(c)
for
where,
although accomplice maintained exclusive possession of firearm
during
the
armed
robbery,
circumstantial
evidence
showed
the
defendant jointly possessed the firearm because he acted “in
concert” with his accomplice during the commission of the armed
robbery); Kemp v. State, 254 So.2d 228, 228 (Fla. App. 1971)
(court
affirmed
conviction
for
possession
of
a
prohibited
weapon, even though accomplice maintained exclusive possession
of the weapon during the robbery, because “[i]n circumstances
10
such as these where one of two or more persons possesses a
weapon unlawfully for the purpose of committing an offense to
which all are a party, the weapon is possessed jointly by the
participants.”).
¶19
Here, there was sufficient evidence to prove Gonsalves
jointly possessed the gun with his accomplice because the gun
was essential to the robbery.
The record shows the gun was an
integral part of the plan to rob the victim; the entire robbery
was committed while the victim was held at gunpoint.
jury
could
have
reasonably
concluded
that
Gonsalves
Thus, a
either
directed his accomplice to hold the victim at gunpoint while he
robbed him, or Gonsalves simply knew the gun would be used to
immobilize
the
victim
while
he
looking for money.
11
searched
through
his
pockets
Conclusion
¶20
For the foregoing reasons, we find sufficient evidence
supported
weapons,
Gonsalves’
and
conviction
accordingly
affirm
for
misconduct
Gonsalves’
involving
conviction
and
sentence.
/S/____________________________
ANDREW W. GOULD, Judge
CONCURRING:
/S/________________________________
MICHAEL J. BROWN, Presiding Judge
/S/________________________________
DONN KESSLER, Judge
12
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