State v. Alpizar

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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 DIVISION ONE FILED: 01/10/2012 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) FERNANDO MENDOZA ALPIZAR, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0175 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-136113-001 SE The Honorable Lisa Ann VandenBerg, Judge Pro Tem AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 Fernando Mendoza Alpizar appeals his convictions and sentences for possession or use of marijuana and possession of drug paraphernalia. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 While conducting surveillance on an apartment complex, a Tempe police officer saw Alpizar drive into the complex and leave a short time later. The officer followed Alpizar s car and stopped it when Alpizar committed a traffic violation. The officer smelled the distinct odor of [burnt] marijuana coming from the passenger compartment after he approached the vehicle. When Alpizar exited the vehicle, the officer noticed that Alpizar had a little bit of ash on the front of his pants. ¶3 A canine unit responded to the scene and conducted a sniff of the vehicle. The dog alerted along the exterior passenger side door and to a folded up piece of paper on the front passenger seat. Inside was charged the paper was 2.14 grams of use of marijuana. ¶4 Alpizar marijuana ( count 1 ) and with possession ( count 2 ), both class 1 misdemeanors. possession of drug or paraphernalia A bench trial ensued. At the conclusion of trial, the court found him guilty on both 1 In addition to the evidence discussed herein, the State s witnesses testified about statements Alpizar made during the traffic stop. However, the trial court did not consider those statements when determining guilt, so we do not consider them. 2 counts and sentenced Alpizar probation. pursuant him timely to Arizona to concurrent appealed. Revised one-year We Statutes have terms of jurisdiction ( A.R.S. ) sections 12-120.21(A)(1), 13-4031 and -4033. DISCUSSION ¶5 Alpizar contends the State failed to present sufficient evidence that he knowingly possessed the marijuana and paraphernalia. We disagree. ¶6 Reversible error based evidence occurs where there only on is insufficiency a complete probative facts to support the conviction. of absence the of State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). On appeal, we view all evidence in the light most favorable to sustaining the verdict against a defendant. P.2d 1185, 1189 and resolve all reasonable inferences State v. Guerra, 161 Ariz. 289, 293, 778 (1989) (citation omitted). We resolve evidentiary conflicts in favor of sustaining the verdict. any Id. (citation omitted). ¶7 The State was required to prove, beyond a reasonable doubt, that Alpizar possessed the marijuana and the paper (the drug paraphernalia at issue), with actual knowledge of its presence. See Ariz. Rev. Stat. ( A.R.S. ) §§ 13-3405(A)(1), -3415(A), (F)(2) (prohibiting possession or use of marijuana and any products or materials used, intended for use or designed 3 for use to store, contain, conceal, ingest or otherwise introduce a drug into the human body), -105(10)(b) ( Knowingly means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person s conduct is of that nature or that the circumstance exists. ). ¶8 Constructive Alpizar s conviction. possession is sufficient to sustain Constructive possession exists when the prohibited property is found in a place under [the defendant s] dominion [or] control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of the [property]. State v. Cox, 214 Ariz. 518, 520, ¶ 10, 155 P.3d 357, 359 (App. 2007) (alteration in original) (citations omitted). However, mere presence at a location where drugs are found is insufficient to establish knowledgeable possession or dominion and control. State v. Teagle, 217 Ariz. 17, 27-28, ¶ 41, 170 P.3d 266, 276-77 (App. 2007) (citation omitted). ¶9 During the State s case-in-chief, an officer testified that the drug dog immediately alerted on the paper containing a usable amount of marijuana sitting on the passenger seat of the vehicle Alpizar was driving. Another officer testified that the passenger compartment smelled like burnt marijuana and that Alpizar had white ash on his pants. 4 Alpizar was the only occupant of the vehicle when it was stopped. Based on these facts, a reasonable trier of fact could infer from the location of the paper and the marijuana, the odor of burnt marijuana, and the white ash on Alpizar s pants that Alpizar knew the marijuana and paper were inside the vehicle and that he had control over them. See State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981) ( The probative value of evidence is not reduced simply because it is circumstantial. ) (citation omitted). These circumstantial links between Alpizar and the contraband distinguish this situation from the mere presence cases upon which Alpizar relies. ¶10 To the extent Alpizar offered a different version of events at trial, it is apparent that the superior court found the State s evidence more credible. within its purview. P.2d 1068, question 1071 for See State v. Pike, 113 Ariz. 511, 514, 557 (1976) the Such a determination was trier ( The of credibility fact whose of witnesses determination is will a not usually be disturbed on appeal. ); State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174 P.3d 265, 269 (2007) ( [T]he credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury. ) (citation omitted); see also State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981) ( On appeal, this Court will re-weighing the evidence. ) (citations omitted). 5 not engage in CONCLUSION ¶11 For the foregoing reasons, we affirm convictions and sentences. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PETER B. SWANN, Judge /s/ DONN KESSLER, Judge 6 Alpizar s

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