STATE v. OVERTURF

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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. JOAN CATHERINE OVERTURF, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 9/24/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0695 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. S8015CR201101244 The Honorable Steven F. Conn, Judge AFFIRMED Thomas C. By and Attorneys Horne, Arizona Attorney General Phoenix Joseph T. Maziarz, Chief Counsel Criminal Appeals Adele Ponce, Assistant Attorney General for Appellee Barbara Cook-Hamp, Mohave County Legal Advocate Kingman By Jill L. Evans, Mohave County Deputy Legal Advocate Attorneys for Appellant N O R R I S, Judge ¶1 Joan Overturf appeals her convictions and sentences for possession of dangerous drugs for sale (methamphetamine), two counts of possession of drug paraphernalia (methamphetamine), and possession of marijuana. Overturf argues the State failed to present sufficient evidence she knowingly possessed the drugs and drug paraphernalia found in a locked shed next to her house. We disagree. The record here reflects sufficient evidence to support the convictions; 1 therefore, we affirm. See State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) ( Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction. (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976))). ¶2 Possession -- the ability to exercise dominion or control over property -- can either be actual or constructive. Ariz. Rev. Stat. ( A.R.S. ) § 13-105(34), (35) (Supp. 2012); State v. Ottar, 232 Ariz. 97, 99, ¶ 5, 302 P.3d 622, 624 (2013). Constructive possession applies when the property is not found on the defendant s person or in his or her presence, but is found in a place under his or her dominion or control and when it can be reasonably inferred the defendant had actual knowledge of the existence of the property. State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972). may jointly possess a prohibited object. 1 Two or more persons State v. Carroll, 111 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Overturf. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 Ariz. 216, 218, 526 P.2d 1238, 1240 (1974) (possession need not be [e]xclusive, immediate and personal ). ¶3 Here, the officers who searched the shed found over 27 grams of methamphetamine in a box on the floor. In a nightstand or desk-type piece of furniture in the shed, they also found a scale with methamphetamine and marijuana residue, two pipes used for ingesting methamphetamine that had burnt residue on them, and 57 grams of marijuana. paraphernalia, the After finding the drugs and drug officers arrested Overturf and then questioned her at the police station. 2 ¶4 At the police station, Overturf initially told the interrogating officers the drugs belonged to her boyfriend, but later said ours. they were hers and his by referring to them as She explained she used methamphetamine, she and her boyfriend had been selling methamphetamine for three or four months from in and out of the house, and had been selling to two or three customers. She also admitted her fingerprints would probably be on the drugs in the shed and explained she and her boyfriend were storing the marijuana for their supplier. 2 Overturf lived with Police arrested them as well. her 3 boyfriend and his mother. ¶5 Overturf also told the interrogating officers how often she and her boyfriend received deliveries (around every three weeks), the quantity per delivery (about an ounce each time), why they were selling (to get an extra amount of the drugs for themselves or a monetary bonus), and the selling prices for each pre-packaged amount ($40 for 40s, $60 for 60s, and $100 to $120 for teeners ). received the methamphetamine Overturf explained she usually pre-packaged to sell and was surprised the methamphetamine found in the box was not packaged, although she acknowledged that sometimes her boyfriend would package the methamphetamine. ¶6 Although at trial Overturf acknowledged making these statements to officers, she explained she made the statements because she had to take the blame and because her boyfriend had priors and they would let him and his mom go if she just told them the drugs were hers. It was up to the jury to decide, however, whether to believe her trial testimony or to believe the statements she made to the interrogating officers. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) ( finderof-fact, not the appellate credibility of witnesses ). at trial that she court . . . determines the Further, Overturf also acknowledged had possessed the paraphernalia. Specifically, she testified she and her boyfriend arranged to have the pipes put in the shed to get them out of the house 4 because they were worried about being raided. foregoing evidence, the State presented facts to support the convictions. Based on the sufficient probative Soto-Fong, 187 Ariz. at 200, 928 P.2d at 624. ¶7 Nevertheless, Overturf argues on appeal the State failed to present sufficient evidence she knowingly possessed the drugs and drug paraphernalia because police did not conduct DNA or fingerprint testing on the items found in the shed. While [s]he would be free to argue that if [her] prints were not on the [items seized] [s]he had never touched [them], a finder of fact conclusion. would been innocence. under no compulsion to accept that State v. Torres, 162 Ariz. 70, 75-76, 781 P.2d 47, 52-53 (App. 1989). have be The absence of Overturf s fingerprints would suggestive only and would See id. 5 not have proved her ¶8 For convictions the for foregoing reasons, possession (methamphetamine), of we affirm dangerous possession of drug drugs Overturf s for paraphernalia (methamphetamine) (both counts), and possession of marijuana. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ ANDREW W. GOULD, Judge 6 sale

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