STATE v. SCRIVNER

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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: 8/15/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. JOHN DANIEL SCRIVNER, Appellant. 1 CA-CR 12-0218 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. V1300CR201180090 The Honorable Michael R. Bluff, Judge AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Linley Wilson, Assistant Attorney General Attorney for Appellee Napper Law Firm By John David Napper Attorney for Appellant Phoenix Prescott C A T T A N I, Judge ¶1 Appellant John Daniel Scrivner appeals from his conviction for possession of methamphetamine, arguing that there was insufficient evidence to support the conviction. reasons that follow, we disagree and affirm For the Scrivner s conviction and sentence. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 On February 13, 2011, gas mart clerks called law enforcement in response to Scrivner s belligerent behavior and disheveled appearance, and out of concern for customer safety. Scrivner appeared unkempt, wild-eyed, and very agitated. moving around incoherently. and talking very quickly, and He was yelling At one point, Scrivner placed a torn-up check on the counter and asked the clerks to secure it for him in case he could not hold on to it. Scrivner told the clerks his girlfriend and her sons were chasing him and asked the clerks to call the police. ¶3 When around a deputy erratically and sheriff arrived, talking very Scrivner quickly, placed him in handcuffs and escorted him outside. so was moving the deputy Once outside, the deputy advised Scrivner of his Miranda 2 rights, and Scrivner acknowledged that he understood his rights. The deputy asked Scrivner what he was on, to which Scrivner admitted snorting 1 We view the facts in the light most favorable to sustaining the jury s verdict. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 Miranda v. Arizona, 384 U.S. 436 (1966). 2 lines of something that looked like methamphetamine, but was different. Scrivner later agreed to provide a urine sample, which tested positive for methamphetamine. ¶4 The State charged Scrivner with (1) possession or use of a dangerous drug (methamphetamine), a Class 4 felony; (2) possession felony; Prior or and to use (3) trial, of a narcotic disorderly at the drug conduct, State s (cocaine), a Class request, a 1 the Class 4 misdemeanor. trial court dismissed the charge of possession or use of cocaine. ¶5 At the close of the State s case, Scrivner moved for acquittal on both remaining counts pursuant to Rule 20 of the Arizona Rules of Criminal Procedure. The court denied the motion, but the State subsequently decided not to pursue the claim relating to use of a dangerous drug, apparently because of a concern that the evidence did not establish when or where Scrivner used methamphetamine. Scrivner subsequently renewed his Rule 20 motion regarding possession of a dangerous drug. The trial court denied the motion and the jury convicted Scrivner of possessing a dangerous drug (methamphetamine) and disorderly conduct. The trial court sentenced Scrivner to 10 years imprisonment for the drug offense and to a 33-day jail term for disorderly conduct. 3 ¶6 for Scrivner timely appealed his conviction and sentence possession of methamphetamine. 3 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12- 120.21(A)(1), 13-4031, and -4033(A). 4 DISCUSSION ¶7 Scrivner argues the State did not present sufficient evidence to substance in support his his urine conviction. did not He fit alleges: the definition the (1) of methamphetamine contained in A.R.S. § 13-3401(6)(c)(xxxiv) and (2) there was no evidence that he knew of the substance of his urine. ¶8 Whether sufficient evidence supports a conviction is a question of law, subject to de novo review. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. no distinction Id. at ¶ 16 (citation omitted). between the probative value of There is direct and 3 Scrivner has not appealed his conviction or sentence for disorderly conduct. 4 Absent material revisions after the relevant date, statutes cited refer to the current version unless otherwise indicated. 4 circumstantial evidence. State v. Bible, 175 Ariz. 549, 560 n.1, 858 P.2d 1152, 1163 n.1 (1993). ¶9 A person shall not knowingly . . . [p]ossess or use a dangerous drug. A.R.S. § 13-3407(A)(1). A dangerous drug includes [a]ny material, compound, mixture or preparation that contains certain enumerated substances having a potential for abuse associated with a stimulant effect on the central nervous system. A.R.S. § 13-3401(6)(c). dangerous drug. ¶10 Methamphetamine is one such A.R.S § 13-3401(6)(c)(xxxiv). Scrivner s argument that the substance in his urine does not meet the statutory definition of a dangerous drug is unavailing. compelling A positive test for methamphetamine in urine is circumstantial evidence that methamphetamine prior to ingesting it. Scrivner possessed See, e.g., In re R.L.H., 116 P.3d 791, 795 96, ¶ 26 (Mont. 2005) ( We conclude that the presence of a controlled substance in a person s blood or urine constitutes sufficient circumstantial evidence to prove prior possession beyond a reasonable doubt only when accompanied by other corroborating possession, Rickard, such 884 as P.2d evidence an 477, of admission 478 knowing of (N.M. drug 1994) and voluntary use. ); (the State v. defendant s admission constitutes corroborating evidence that she had the intent to possess the drug, and [t]hat evidence, combined with the circumstantial evidence of 5 possession provided by the positive drug test, was sufficient to support her conviction for possession of cocaine). Moreover, Scrivner not only tested positive for methamphetamine, he acknowledged (after engaging in erratic like and unusual meth. behavior) Thus, a that rational he jury had could snorted something have reasonably concluded that Scrivner possessed methamphetamine. ¶11 Scrivner argues that the trial court improperly ruled as a matter of law that methamphetamine found in urine can be a dangerous ruling. of drug. But the trial court did not make such a The court simply denied Scrivner s motion for judgment acquittal. That ruling at no point determined that the substance in his urine was a dangerous drug as a matter of law. ¶12 Relying on State v. Rea, 145 Ariz. 298, 299, 701 P.2d 6, 7 (App. 1985), and State v. Alvarado, 178 Ariz. 539, 543-44, 875 P.2d 198, 202-03 (App. 1994), Scrivner further argues that the trial court improperly allowed the State to argue that he could be convicted based on a theory of internal possession of methamphetamine in the urine. changed its theory on He complains that the State has appeal, by now arguing that it is unnecessary to address the internal possession theory because the trial court s ruling should be upheld if legally correct for any reason. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). We disagree. 6 ¶13 In Rea, this Court held that a (forgery) conviction cannot stand when the jury was invited to decide the case on an impermissible theory of guilt without corrective action by the court even when there is substantial evidence supporting guilt on a proper theory. 145 Ariz. at 299, 701 P.2d at 7. In that case, however, the jury was instructed only on an impermissible theory. Id. In contrast, here, Scrivner does not challenge the proffered jury instructions and there is no evidence that the jury was incorrectly instructed or otherwise reached a ruling inconsistent with Arizona law. ¶14 Thus, Rea is inapposite. Similarly, in Alvarado, there was a question whether the trial judge (in a bench trial) relied on an incorrect theory of law in marijuana. convicting the defendant of offering to 178 Ariz. at 540-41, 875 P.2d at 199-200. sell This Court reversed the defendant s conviction and sentence, noting that, because there were no jury instructions and the trial judge did not make specific findings regarding the theory at issue, it was not possible to assess whether the trial court relied on an incorrect theory posited by the State. 875 P.2d at 202. In the instant case, instructed on a proper theory of guilt. the Id. at 543, jury was only Thus, Alvarado is not controlling. ¶15 theory Scrivner implicates further argues jurisdictional 7 that issues the he State s did not changed raise at trial because he thought the State s only theory was internal possession at the time of arrest. But nothing prevented Scrivner from raising the jurisdictional issue, which in any event would not have been likely to change the verdict given a lack of evidence possessed and snorted methamphetamine. if [c]onduct that Scrivner was something outside he Arizona thought when looked he like A.R.S. § 13-108(A)(1) (jurisdiction is proper constituting any element of the offense or a result of such conduct occurs within this state ). ¶16 Finally, Scrivner s evidence that knew he unpersuasive. of argument the that substance there in his was no urine is Scrivner does not argue that he mistakenly or inadvertently ingested methamphetamine, and his admission that he snorted something that looked like methamphetamine, but he thought was different, provided evidence from which a jury could rationally conclude Scrivner methamphetamine. 8 knowingly possessed CONCLUSION ¶17 For the foregoing reasons, we affirm conviction and sentence. /S/ KENT E. CATTANI, Judge CONCURRING: /S/ JON W. THOMPSON, Presiding Judge /S/ MICHAEL J. BROWN, Judge 9 Scrivner s

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