State v. Farmer
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IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
)
)
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
ANGELA ELAINE FARMER,
)
)
Appellant. )
__________________________________)
No. 1 CA-CR 10-0539
DIVISION ONE
FILED: 09/20/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
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(Not for Publication Rule 111, Rules of the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. CR2008-1169
The Honorable Derek C. Carlisle, Judge Pro Tempore
VACATED AND REMANDED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
And
Barbara A. Bailey, Assistant Attorney General
Attorneys for Appellee
Phoenix
Jill L. Evans, Mohave County Appellate Defender
Attorney for Appellant
Kingman
S W A N N, Judge
¶1
Angela Elaine Farmer (“Defendant”) appeals her conviction
by a jury for Transportation of Dangerous Drugs for Sale, a
class
2
felony,
and
Possession
of
Drug
Paraphernalia
(Methamphetamine), a class 6 felony.
We conclude that the state
failed to present evidence from which a reasonable jury could
properly find each element of the charged offenses beyond a
reasonable doubt.
The trial court therefore should have granted
Defendant’s Rule 20 motion at the conclusion of the state’s
case.
We now vacate the convictions for lack of evidence.
FACTS AND PROCEDURAL HISTORY1
¶2
On
January
31,
2008,
Detective
Donald
Grasse
of
the
Bullhead City Police learned that Harry Graham was going to
Barstow, California, that day “to pick up a rather large supply
of methamphetamine.”
He learned that Graham would be driving a
white Ford Thunderbird and that Defendant would be accompanying
him.
¶3
Grasse set up an investigation based on that information.
Using an unmarked car, Bullhead City Police Corporal Ken
Williams set up surveillance of the trailer park where Graham
and Defendant lived.
He first spotted Graham’s Thunderbird as
it left the trailer park at around 3 p.m. with two occupants, a
man and a woman.
He followed the Thunderbird to a gas station,
where it stopped for gas before heading off towards Interstate
40,
and
discontinued
his
surveillance
1
before
the
Thunderbird
We view the facts in the light most favorable to upholding the
verdict. State v. Gallegos, 178 Ariz. 1, 9, 870 P.2d 1097, 1105
(1994).
2
reached the interstate.
At trial Williams could not remember
who was driving the car.
¶4
Detective John Johnson of the Lake Havasu City Police
Department
and
two
other
Lake
Havasu
officers
--
each
in
separate cars -- began surveillance of the Thunderbird after it
reached Interstate 40, using a “leap-frog” strategy in order to
avoid suspicion.
Johnson, while in front of the Thunderbird,
took the exit in Ludlow, California, so that it would “not be
suspicious in case the [Thunderbird] did exit there.”
he did not recall who was driving the Thunderbird.
At trial
He parked in
the Dairy Queen parking lot and observed the Thunderbird enter
and park in the same lot shortly thereafter.
The male and
female occupants of the Thunderbird got out, milled around for a
few minutes, entered the Dairy Queen, came back out shortly
thereafter and then stood in a nearby picnic area for a while.
They were still in the picnic area when Johnson, seeking to
avoid detection, left the lot and drove toward a gas station on
the
other
side
of
the
interstate.
As
he
drove
under
the
interstate, he saw “two Hispanic male subjects . . . come off
the freeway from which would be the State of California [sic]
. . .
heading
towards
the
Dairy
Queen.”
Once
at
the
gas
station, Johnson could no longer see the Dairy Queen parking
lot.
3
¶5
Detective Brian Madsen of the Lake Havasu City Police
Department was one of the officers with Johnson following the
Thunderbird
on
Interstate
40.
He
arrived
in
Ludlow
after
Johnson, and parked in a dirt lot across the access road from
the Dairy Queen because he did not want to “spook” the people he
was following.
From there, he could see the Thunderbird and
that the male and female occupants of the vehicle were sitting
inside
it,
but
he
was
not
close
enough
to
Another car pulled up next to the Thunderbird.
identify
them.
The male in the
Thunderbird and a male from the newly arrived car got out and
met with each other, standing close enough to make an exchange.
The two men “did something,” but Madsen “couldn’t see what”
because of the distance, so Madsen did not see anything change
hands.
The men then returned to their cars and left “[p]retty
much immediately.”
During this time, Madsen observed the female
“not exiting the vehicle and not being involved in what the two
males were doing.”
¶6
The Lake Havasu City surveillance team then resumed their
surveillance of the Thunderbird.
The Thunderbird did not return
the way it came, as the police expected, but instead returned by
a back road to Bullhead City.
The surveillance team followed
the car until it was stopped, but did not participate in the
stop.
4
¶7
Around 7:10 p.m., Detective Jeff Viles of the Bullhead
City Police Department was asked to make a traffic stop of a
white Thunderbird.
He began following the Thunderbird when it
entered Bullhead City and stopped it when they reached a safe
and convenient place.
He talked to Graham -- who identified
himself with an Arizona ID card instead of a driver’s license -and told him that the police had been following him and knew he
was
transporting
Defendant,
whom
Thunderbird.
drugs.
he
Viles
identified
then
removed
a
passenger,
as
Graham
and
from
the
He subsequently observed the canine search of the
Thunderbird and the removal of a small cooler.
¶8
Officer
Eric
Clevinger
of
the
Bullhead
City
Police
Department conducted the canine search of the Thunderbird.
dog, Bingo, alerted at both open windows of the car.
His
Clevinger
then put Bingo inside the car and gave “him the command again to
sniff.”
Bingo alerted to “a purse on the front floorboard on
the passenger side and to an ice chest in the back seat” that
had “a male’s jacket draped over the top of it.”
Clevinger
returned Bingo to his car and told the detectives that the dog
had alerted to those places in the car.
¶9
the
Williams, the first officer to conduct surveillance of
Thunderbird
traffic stop.
stop.
that
day,
joined
the
other
officers
at
the
He spoke with Graham and saw Defendant at the
While Williams was searching the car, Graham asked him to
5
get Graham’s jacket from the back seat because it was cold and
windy.
As Williams retrieved the jacket from the driver’s side
of the back seat, he noticed a “small black Igloo-style ice
chest” with “some type of AM-FM stereo system built into the
chest itself” beneath the jacket.
it, but it seemed empty.
something moving inside.
He picked it up and opened
However, when he shook it, he heard
He tried to pull the liner out of the
chest, but found he could not.
¶10
four
Williams then examined the outside of the chest and saw
drywall
screws
lodged
in
the
bottom.
He
found
a
screwdriver in the trunk of the Thunderbird, removed the screws,
and then took off the liner.
bags
containing
methamphetamine.
what
Beneath it he discovered several
proved
to
be
334.9
grams
of
Graham and Defendant were then arrested and
taken to the police station.
¶11
At the station, Grasse and another officer conducted a
video-recorded interview of Defendant.
After being Mirandized,
Defendant told police she was just going for a ride with Graham
out to Barstow to pick up parts for one of his trucks.
She
stated that Graham decided not to go to Barstow after making a
phone
call.
She
denied
having
any
knowledge
of
the
methamphetamine that the police found and also denied that she
sold the drug, but admitted that she had used the drug in the
past.
She also admitted that she knew Graham sold drugs, that
6
she had been his friend for years, and that she had been his
“mistress” a few years ago.
The police stopped questioning
Defendant after she said, “I think I need a lawyer.”
At trial,
the video of the interview was admitted into evidence and shown
to the jury.
¶12
After
interviewing
Defendant,
Grasse
and
the
officer conducted a video-recorded interview of Graham.
other
Graham
entered into a plea agreement with the state but died before
Defendant’s
trial
began.
The
state
moved
to
preclude
introduction of the plea agreement, and Defendant responded that
although
the
agreement
was
currently
inadmissible,
Graham’s
guilty plea might become admissible during trial, and asked the
judge to reserve ruling on the issue.
Defendant then moved to
admit portions of Graham’s interview -- in which he repeatedly
declared Defendant “had nothing to do” with the drugs -- as a
statement against penal interest.
The state opposed admitting
the exculpatory portions of the interview, arguing that Graham’s
statements were not trustworthy.
In the alternative, the state
argued that if any portion of the interview was to be admitted,
then the interview should be admitted in its entirety.
After
hearing oral argument, the court excluded both the guilty plea
and the interview.
¶13
Defendant received a two-day trial before eight jurors.
After the state rested, Defendant moved for a directed verdict
7
of acquittal under Ariz. R. Crim. P. 20.
While acknowledging
that it did not think this was “the strongest case that the
State
has
ever
had,”
the
court
found
there
evidence for this case to go to the jury.”
was
“sufficient
The court instructed
the jury and included a “mere presence” instruction.
¶14
In closing, the state argued to the jury, “The only real
issue you have to decide . . . is whether the defendant knew the
purpose of the trip.”
Defendant responded that the state had
not proven that she exercised dominion and control over the
drugs, or presented any evidence that she had handled the drugs
or the cooler.
Defendant contended that she had merely been
present during the alleged crimes and that there was no evidence
that she knew of the drug deal before arriving in Ludlow.
¶15
In
rebuttal,
the
state
argued
that
“constructive
possession is exactly probably [sic] what this case is about”
and that Defendant possessed the methamphetamine because it was
“on the back seat.”
house.
The state claimed: “She was at [Graham’s]
They devised a plan. . . . They went to Ludlow, they
came back.”
The state further asserted that the drugs must have
been put in the cooler’s secret compartment while the car was
being driven back from Ludlow and that there was no one in the
car other than Defendant who could have done that.
found Defendant guilty on both counts.
8
The jury
¶16
At sentencing, the judge found as a mitigating factor
that Defendant’s participation in the offense was “very minor.”
The
court
sentenced
her
to
a
mitigated
term
of
five
years’
imprisonment, flat time, for Transportation of Dangerous Drugs
for Sale, a class 2 felony, and to a mitigated term of six
months
in
prison
(Methamphetamine),
concurrently.
for
a
class
Defendant
presentence incarceration.
fine.
Possession
6
was
of
felony,
given
Drug
Paraphernalia
sentences
credit
for
33
to
days
run
of
The court also imposed a $55,200
Defendant timely appeals.2
We have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).
DISCUSSION
¶17
We review de novo whether the evidence was sufficient to
support the denial of a Rule 20 motion, viewing the evidence in
the light most favorable to sustaining the verdict.
Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993).
State v.
“Where
there is a complete absence of probative facts to support a
conviction, we will reverse a trial court’s denial of a Rule 20
motion.”
State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868
(1990).
“The fact that a jury convicts a defendant does not in
itself negate the validity of the earlier motion for acquittal,”
because
“a
properly
instructed
2
jury
may
occasionally
convict
Defendant also filed pro per a Notice of Post Conviction
Relief, which states “I need a new court appointed lawyer.”
9
even when it can be said that no rational trier of fact could
find guilt beyond a reasonable doubt. . . .”
Id. at 67, 796
P.2d at 869 (quoting Jackson v. Virginia, 443 U.S. 307, 317
(1979)).
A judgment of acquittal is appropriate when there is
no evidence that “reasonable persons could accept as adequate
and
sufficient
to
support
a
beyond a reasonable doubt.”
conclusion
of
defendant's
guilt
Id. at 67, 796 P.2d at 869 (quoting
State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)).
Because the state must prove every element of the offense, State
v. Dickens, 187 Ariz. 1, 18, 926 P.2d 468, 485 (1996), acquittal
is appropriate if there is insufficient evidence to support any
element.
¶18
Viewing
the
evidence
in
the
light
most
favorable
to
sustaining the verdict, we hold that a reasonable jury could
have found the following beyond a reasonable doubt: (1) Graham
made the trip intending to obtain drugs, not truck parts; (2)
Graham obtained the drugs from the man he met at the Dairy Queen
in Ludlow; and (3) at least from the time of the exchange at the
Dairy Queen, Defendant knew Graham had obtained drugs.
¶19
that
We first examine whether there was sufficient evidence
Defendant
offenses.
was
an
accomplice
to
the
commission
of
the
It “is particularly true in the context of accomplice
liability [that] the potential for juror confusion as to the
requirements for imposition of liability is significant and the
10
consequences to the convicted accomplice are serious.”
State v.
Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996).
¶20
In
Noriega,
this
court
discussed
the
role
of
“mere
presence” because “there exists in collective lay thinking some
distorted
notions
of
criminal
accountability”
from
which
“a
question could arise in the mind of a lay person whether merely
being present at the scene of a crime could create some type of
criminal
liability.”
Id.
at
285,
928
P.2d
at
709.
We
recognized that because of the danger that a jury might “convict
on
behavior
which
as
a
matter
of
law
amounts
only
to
mere
presence,” there needs to be a “stoplight” at the end of the
“continuum of behaviors ranging from the more serious acts of
the principal to the less objectionable acts of the accomplice.”
Id. at 285-86, 928 P.2d at 709-10.
Often in daily life one
person’s
“a
“mere
presence”
serves
as
significant
aid”
in
another person’s undertaking even while “such presence does not
rise to the level of ‘accomplice.’”
(providing
examples
such
as
“the
Id. at 286, 928 P.2d at 710
presence
of
a
parent
at
a
child's school play or the presence of a person at a friend's
speaking
accomplice
engagement”).
liability
if
Presence
the
state
rises
shows
to
“not
the
only
level
of
that
the
defendant intended the behavior that is alleged to have aided,
abetted, or provided means or opportunity, but also that the
11
defendant
intended
that
this
behavior
have
the
effect
promoting or facilitating the crime being committed.”
¶21
Accordingly,
state
produced
Defendant
sufficient
was
an
evidence
accomplice
that
“with
of
Id.
only
the
if
the
intent
to
promote or help in the commission of an offense” she either: “1.
Aid[ed], counsel[ed], agree[d] to aid, or attempt[ed] to aid
another person in planning or committing the offense; 2. Ask[ed]
or
command[ed]
another
person
to
commit
the
offense;
or
3.
Provide[d] the means or an opportunity to another person to
commit the offense.”
81,
75
P.3d
675,
State v. Prasertphong, 206 Ariz. 70, 90, ¶
695
(2003)
(vacated
on
other
grounds
Prasertphong v. Arizona, 541 U.S. 1039 (2004) (mem.)).
there
is
no
allegation,
much
less
evidence,
that
by
Because
Defendant
asked, commanded, or provided a means or opportunity to Graham
to commit the offenses, she could have been an accomplice only
if she committed “some positive act in aid of the commission of
the offense; an active force physical or moral joined with that
of the perpetrator . . . .”
State v. Bearden, 99 Ariz. 1, 3,
405 P.2d 885, 886 (1965).
¶22
Further,
liability,
for
“[t]he
that
aider
“act
or
in
aid”
abettor
to
must
produce
stand
in
accomplice
the
same
relation to the crime as the criminal, approach it from the same
angle, touch it at the same point and possess criminal intent.”
Id.
Even the fact that a defendant was present at the scene of
12
a crime and “may have known what was happening does not make him
guilty of the crime.”
State v. Green, 117 Ariz. 92, 94, 570
P.2d 1265, 1267 (App. 1976), aff'd in part, modified in part by
116 Ariz. 587, 570 P.2d 755 (1977).
¶23
In State v. Miramon, 27 Ariz. 451, 555 P.2d 1139 (App.
1976), as in this case, the defendant was also a passenger in a
vehicle.
marijuana
At
the
tucked
time
a
few
of
his
inches
arrest,
under
the
there
was
passenger
a
bag
seat
of
yet
sticking out far enough for the defendant to have been aware of
its presence.
Id. at 452-53.
The defendant was also carrying
two marijuana cigarettes in his sock.
Id. at 452.
The court
found this evidence insufficient as a matter of law to support a
conviction for possession of marijuana for sale.
Id. at 453.
The court, noting that the “mere presence of a person where
narcotics or marijuana is found is insufficient to establish
that the person knowingly possessed or exercised dominion and
control over the drugs,” held that “[i]n order to convict for
possession of marijuana for sale the prosecution must establish
not only that the accused had knowledge of the existence of the
substance and that it was marijuana but it must also show that
the accused exercised dominion and control over the marijuana.”
Id. at 452.
¶24
If the evidence in Miramon was insufficient to support a
conviction
for
possession,
then
13
a
fortiori
the
state’s
case
against Farmer must fail.
Here, there was no evidence of any
exercise of dominion and control over the contraband, nor was
there
any
acquisition,
Indeed,
the
evidence
of
possession
only
conduct
or
testimony
that
facilitated
distribution
on
point
of
was
the
Graham’s
substance.
Detective
Madsen’s
acknowledgement that he saw nothing to indicate that Farmer was
involved in the transaction between Graham and the other man.
Mere
proximity
to
a
container
control over it or its contents.3
does
not
confer
dominion
and
Cf. State v. Teagle, 217 Ariz.
17, 27-28, ¶ 41, 179 P.3d 266, 276-77 (2007).
¶25
We also find no evidence in the record to suggest that
Defendant helped plan the trip, as the state asserted in its
closing
argument.
There
is
no
evidence
that
Graham
and
Defendant met at any time to discuss the purpose of the trip -the only evidence on the subject was Defendant’s own statement
that she “was at his house before we left.”
Though the officers
found evidence at Graham’s residence to suggest that he was
involved in the sale of drugs, Farmer’s mere presence at his
house cannot, standing alone, support an inference that she was
an accomplice in his criminal activities.
3
The state cites State v. Villavicenco, but that case is not on
point: Villavicenco argued only that his admitted dominion and
control over where the drugs were found was not exclusive. 108
Ariz. 518, 520, 502 P.2d 1337, 1339 (1972).
14
¶26
The
state
also
argues
that
the
evidence
supported
“a
reasonable inference that she assisted” in securing the drugs
inside the cooler.
But there is no evidence that the drugs were
not already secured in the cooler when they were placed in the
Thunderbird.
There was no evidence that the man who purportedly
brought the drugs to Graham had not himself transported them
hidden in the cooler.
There was no evidence introduced as to
what Graham and that man exchanged, and no evidence that Graham
brought the cooler to the exchange.
Moreover, there was no
evidence that Defendant had access during the drive to the tools
required
to
secure
or
access
the
secret
compartment
--
the
screwdriver the police used to open the cooler was found in the
car’s trunk, and the car never stopped between the Dairy Queen
parking
lot
and
the
traffic
stop.
On
this
evidence,
the
“inference” that the state urges amounts to nothing more than
speculation.
¶27
The state also argues that the dog’s alert to Defendant’s
purse supports an inference that Defendant handled drugs in the
car.
However, the evidence showed that drug-sniffing dogs can
detect the lingering odor of methamphetamine for a substantial
period
of
evidence
time
after
supports
an
methamphetamine
at
methamphetamine
found
the
drug
inference
some
removed.
that
time,
hidden
is
not
in
15
Defendant
that
the
she
cooler.
At
most,
had
this
possessed
possessed
And
the
though
Defendant admitted she occasionally used methamphetamine, she
was not charged with that offense.
¶28
2009)
The state, citing U.S. v. Selby, 557 F.3d 968 (9th Cir.
and
U.S.
v.
Barajas,
360
F.3d
1037
(9th
Cir.
2004),
contends that the jury could have believed that Defendant knew
about the drugs because statements she made at her interview
conflicted with the testimony of police officers at trial.4
But
neither Selby nor Barajas aid the state.
In Selby, the question
was
evidence
“whether
the
jury
had
sufficient
Selby's testimony regarding her own state of mind.”
975.
to
overcome
557 F.3d at
There, the state presented substantial evidence from which
the jury could infer Selby’s knowledge.
the state has not.
Id. at 975-76.
Here,
And in Barajas, Barajas was arrested at a
remote and isolated marijuana farm with a cultivating tool on
his belt, and his fingerprints were found on a beer can at a
trailer 400 yards away.
360 F.3d at 1039-40.
Barajas testified
that he had arrived at the farm after dark and thought it was a
4
As in its closing argument, the state’s brief mischaracterizes
whether Defendant’s statements contradict the testimony of the
police surveillance teams. For example, the state alleges that
Defendant contradicted the officer’s observation that the
Thunderbird was still headed west on I-40 when it pulled off to
stop at the Dairy Queen.
But when asked by the detectives
whether they passed the Dairy Queen and then turned around to go
back to it, Defendant clearly answered “No.
We were going
towards Barstow, to get truck parts, and then he called, and it
was too late to get the truck parts, so we turned around and got
off the freeway, got back on it, and then we went to Dairy Queen
because I had to go to the bathroom.”
16
tomato farm, and that he had not visited the trailer where the
beer can was found.
Id. at 1040.
“[B]ased on the observations
of the arresting officers, the inferences that can be drawn from
the totality of the circumstances, and Mr. Barajas's implausible
testimony,” the jury could infer the opposite of what Barajas
testified.
Id.
at
1042.
In
Barajas
and
Selby,
there
was
sufficient evidence to infer the defendants’ knowledge despite
their testimony to the contrary.
¶29
is
That is not the case here.
For these reasons, we hold as a matter of law that there
insufficient
evidence
to
support
Defendant’s
convictions,
either as a principal or as an accomplice.5
5
Farmer also appeals the trial court’s exclusion of Graham’s
video-recorded interview.
Because we conclude that her
conviction cannot stand, we need not address that issue.
17
CONCLUSION
¶30
For the reasons given, we vacate Defendant’s convictions
and sentences.
Because we vacate the conviction based on the
insufficiency of the evidence, Defendant may not be retried for
these offenses, and we remand for entry of an order dismissing
the charges with prejudice.
State v. Sowards, 147 Ariz. 156,
158, 709 P.2d 513, 515 (1985) (citing Greene v. Massey, 437 U.S.
19 (1978)).
/s/
___________________________________
PETER B. SWANN, Judge
CONCURRING:
/s/
____________________________________
LAWRENCE F. WINTHROP, Presiding Judge
/s/
_____________________________________
MICHAEL J. BROWN, Judge
18
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