STATE v. MORAN

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) STACEY MORAN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10/1/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 12-0666 DEPARTMENT A (AUGUST) MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-159856-001 The Honorable Carolyn K. Passamonte, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Adele Ponce, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Stacey Moran appeals from her conviction and probation term for misconduct involving weapons. Moran contends that the state did not present sufficient evidence to prove that she constructively possessed a firearm. We find sufficient evidence, and therefore affirm. FACTS AND PROCEDURAL HISTORY ¶2 Moran was indicted for misconduct involving weapons and for aggravated assault. proceeded to jury trial. She pled not guilty and the matter The state voluntarily dismissed the aggravated assault charge before the jury was empaneled. ¶3 At trial, following facts. the state presented evidence of the In October 2011, Moran was placed on 15 months of probation for attempted criminal damage, a domestic violence offense. not As a condition of her probation, Moran was required to possess or control any stun guns, tasers, firearms, ammunition, deadly or prohibited weapons as defined in A.R.S. § 13-3101. Moran s probation officer reiterated that condition when she met with Moran for the first time in early November 2011. Moran then showed the probation officer a gun and asked whether she could keep it for protection. The probation officer said that she could not, and instructed Moran to remove the gun from her home within 24 hours. ¶4 Several weeks later, on November 25, 2011, responded to a 911 call that Moran had placed. responding officer encountered Moran standing parked on the roadway across from a residence. next police The firstto a car Moran told the officer that she had traveled to the residence to retrieve her 2 gun from a former friend, she had argued with the friend inside of the residence, and the friend had broken the gun by throwing it onto the ground. Moran further stated that the gun was now in her car, and then opened the front passenger-side door of the nearby car and pointed to the seat. saw a disassembled 9-millimeter pistol. On the seat, the officer The officer reassembled the pistol, dry-fired it, and found that it functioned as he would expect. Moran then handed the officer a gun case and gun lock, and removed the key for the gun lock from her key ring. The officer took custody of the pistol and the associated items. ¶5 At the close of the state s case-in-chief, Moran moved for a judgment of acquittal under Ariz. R. Crim. P. 20. She conceded that she was a prohibited possessor but argued, inter alia, that the state had failed to prove that she exercised dominion and control over the pistol. The court denied Moran s motion and the defense rested. ¶6 After considering the evidence, the jury found Moran guilty. The court entered judgment on the verdict, suspended the imposition of sentence, and placed Moran on probation for a three-year term, to run concurrently with her previous probation term. Moran timely appeals. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). 3 DISCUSSION ¶7 Moran contends that the evidence presented at trial was insufficient to involving weapons. novo. support her conviction for misconduct We review the sufficiency of the evidence de State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We view the evidence in the light most favorable to the upholding verdicts evidence against Moran. and resolve all conflicts in the See State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). We do not reweigh the evidence or determine the credibility of witnesses. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004). ¶8 We will not reverse unless there is a complete absence of probative facts to support the conviction. State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976). To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. 486 State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, (1987). Sufficient evidence may be either direct or circumstantial, and may support differing reasonable inferences. State v. Anaya, 165 Ariz. 535, 543, 799 P.2d 876, 884 (App. 1990). ¶9 Here, the evidence was sufficient to support Moran s conviction. A person commits the crime of misconduct involving 4 weapons when she knowingly possesses classified as a prohibited possessor. a deadly weapon while A.R.S. § 13-3102(A)(4). Moran does not dispute that the evidence supported findings that she was a prohibited possessor and that the gun taken by the police was a deadly weapon. In fact, the state presented evidence that Moran was on probation for a domestic violence offense, which made her a prohibited possessor under A.R.S. § 13-3101(A)(7)(d); and the state presented evidence that the item seized was an operable pistol, a deadly weapon under A.R.S. § 13-3101(A)(1) and (4). Moran s sole argument on appeal is that the evidence could not support a reasonable finding that she possessed the pistol. ¶10 We disagree. To possess is knowingly to have physical possession or otherwise to exercise dominion or control over property. A.R.S. § 13-105(34). Under this definition, possession may be actual or constructive. State v. Gonsalves, 231 Ariz. 521, 523, ¶ 9, 297 P.3d 927, 929 (App. 2013). A person who exercises dominion or control over property has constructive possession of it even if it is not in his physical possession. omitted). Constructive possession may be Id. (citation shown by circumstantial evidence, but a person s mere presence at the item s location is, by itself, insufficient proof -- [r]ather, the state must show by specific facts or circumstances that the defendant exercised dominion or control over the object. 5 Id. at ¶ 10 (citation omitted). that the state met this We have no difficulty concluding burden here. The state presented evidence that Moran told a police officer that her gun was in her car, and showed the gun to him by opening the door of the car she stood beside. From this evidence, the jury could reasonably conclude that Moran knowingly exercised dominion and control over the gun by having it in her vehicle. was sufficient to support her conviction for The evidence misconduct involving weapons. CONCLUSION ¶11 We affirm Moran s conviction and the order imposing probation. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ KENT E. CATTANI, Judge /s/ ____________________________________ JOHN C. GEMMILL, Judge 6

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