State v. Golden
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THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
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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.
)
)
CAROL ANN GOLDEN,
)
)
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
ROBERT FELIX GOLDEN,
)
)
Appellant. )
)
__________________________________)
DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
No. 1 CA-CR 10-0848
No. 1 CA-CR 10-0849
(Consolidated)
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Mohave County
Cause Nos. CR2010-00033, CR2010-00032
The Honorable Steven F. Conn, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
And Jeffrey L. Sparks, Assistant Attorney General
Attorneys for Appellee
Phoenix
Jill L. Evans, Mohave County Appellate Defender
By Jill L. Evans
Attorney for Appellants
Kingman
B R O W N, Judge
¶1
(“Carol”)
Robert Felix Golden (“Robert”) and Carol Ann Golden
appeal
from
their
convictions
for
production
of
marijuana and possession of marijuana and drug paraphernalia. 1
They argue the trial court erred in denying their motion to
suppress the marijuana and drug paraphernalia seized during a
warrantless search of their home.
Additionally, Robert argues
there was insufficient evidence to support his convictions and
the trial court erred in declining to give his requested “mere
presence”
jury
instruction.
For
the
following
reasons,
we
affirm.
1
Robert and Carol filed separate appeals from cause numbers
CR2010-00032 and CR 2010-00033, respectively.
Because Robert
and Carol were tried together, and they both challenge the
suppression
order,
in
our
discretion
we
have
ordered
consolidation of the two cases.
We refer to them hereafter
individually
by
their
first
names
and
collectively
as
“Defendants.”
2
BACKGROUND
¶2
In October 2009, three officers went to a house in
Mohave
County
after
growing marijuana.
the
door
and
receiving
a
tip
that
the
residents
were
Detectives Barkhurst and Schoch knocked on
Carol
answered.
Barkhurst
told
her
they
had
received a tip that there were marijuana plants in the backyard
and
he
asked
her
for
consent
to
remove
the
plants.
She
initially denied having any plants, but then responded, “so, say
there is a marijuana plant; what would happen[?]”
Barkhurst
responded that he “was not taking her to jail that day; that
[he] was going to issue them a summons to appear in court.”
¶3
Carol explained that she did not want to go to jail
because she had lupus.
Barkhurst said he would prefer to obtain
her
the
consent
to
remove
search warrant.
plants
instead
of
applying
for
a
Carol asked “if she would go to jail if the
items were given voluntarily,” and Barkhurst said “no,” adding
that he “would only summons her and her husband.”
informed
the
officers
could retrieve them.
of
two
marijuana
plants
and
Carol then
said
they
She led the detectives through the garage
and into the backyard, where Barkhurst “immediately smelled the
marijuana, and then observed the marijuana plants.”
¶4
After
the
detectives
removed
the
plants,
Carol
let
them enter the house, where they smelled “a very strong odor of
burnt marijuana.”
Carol handed them a “little plate that had
3
some marijuana on it, and a pipe.”
The detectives also seized
bags containing a marijuana bud, marijuana leaves, and marijuana
seeds,
two
sets
of
hemostats, 2
and
rolling
papers.
Before
leaving, Barkhurst asked Carol to have Robert, who was not at
home at the time, call him.
¶5
Robert called Barkhurst the next day.
The detective
asked Robert “if the plants were his or his wife’s.”
Robert
responded that Barkurst “was going to have to get up earlier
than that to get him.”
Robert also stated that “he was not at
the residence when [the detectives] were there, so [the plants]
weren’t in his possession.”
¶6
Defendants were charged with production of marijuana,
a class 5 felony; possession of marijuana, a class 6 felony; and
possession of drug paraphernalia, also a class 6 felony.
moved
to
suppress
the
evidence
seized
from
the
Carol
warrantless
search of the home, and Robert joined in the motion.
¶7
Carol testified at the suppression hearing that she
gave permission because of the “duress” she was under and that
she
believed
consent.
Barkhurst
would
incarcerate
her
if
she
did
not
On cross-examination, she clarified that the duress
she was under was due to the fear of going to jail.
2
She further
Barkhurst explained that hemostats are “medical [] forceps,
or tweezers,” used “to smoke the last little bit of a marijuana
cigarette.”
4
testified that she would not have granted permission if they had
not promised they would not take her to jail.
¶8
The trial court denied the motion to suppress, noting
that Carol had relied on the statement made by Barkhurst about
not
going
to
jail
but
that
his
comment
was
not
a
promise.
Instead, the court found it was “just a statement of fact as to
what’s going to happen,” relying on State v. Lopez, 174 Ariz.
131, 847 P.2d 1078 (1992).
Thus, the court determined the State
had met its burden of proving there was a valid consent to the
search.
A jury subsequently convicted Defendants on all three
counts.
The trial court ordered that Robert and Carol be placed
on probation for two years and these timely appeals followed.
DISCUSSION
¶9
Defendants
assert
that
the
trial
court
abused
its
discretion in denying their motion to suppress marijuana and
drug paraphernalia obtained from a warrantless search of their
residence.
Additionally,
Robert
asserts
that
(1)
the
trial
court abused its discretion in declining to give his requested
“mere presence” instruction in favor of its own similarly worded
instruction; and (2) there was insufficient evidence for the
jury to convict him of any of the counts.
A.
¶10
Denial of Motion to Suppress
Defendants
argue
that
Carol
did
not
voluntarily
consent because she gave permission to search in reliance on
5
Barkhurst’s
search,
alleged
she
would
promise
not
go
that
to
if
jail.
Carol
consented
Denial
of
a
to
motion
suppress evidence is reviewed for an abuse of discretion.
the
to
State
v. Dean, 206 Ariz. 158, 161, ¶ 9, 76 P.3d 429, 432 (2003).
An
abuse of discretion occurs when “no reasonable judge would have
reached
the
same
result
under
the
circumstances.”
State
v.
Armstrong, 208 Ariz. 345, 354, ¶ 40, 93 P.3d 1061, 1070 (2004).
An appellate court considers only the evidence presented at the
suppression hearing, viewing that evidence in the light most
favorable to sustaining the trial court’s ruling.
State v. Gay,
214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007).
We
defer to the court’s factual findings, including those regarding
credibility of witnesses and reasonable inferences, but review
de novo the ultimate legal determination.
State v. Gonzalez-
Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).
¶11
The
United
States
and
Arizona
Constitutions
against unreasonable searches and seizures.
IV; Ariz. Const. art. II, § 8.
unreasonable
exists.
unless
an
protect
U.S. Const. amend.
Warrantless searches are per se
exception
to
the
warrant
requirement
Katz v. United States, 389 U.S. 347, 357 (1967).
such exception is consent.
State v. Davolt, 207 Ariz. 191, 203,
¶ 29, 84 P.3d 456, 468 (2004).
voluntary.
One
To be valid, consent must be
State v. Guillen, 223 Ariz. 314, 317, ¶ 11, 223 P.3d
658, 661 (2010).
Evaluating the voluntariness of consent is a
6
factual
inquiry
based
on
the
totality
of
the
circumstances.
Schneckloth v. Bustamonte, 412 U.S. 218, 227, 248-49 (1973).
¶12
In evaluating voluntariness, “[p]romises of benefits
or leniency, whether direct or implied, even if only slight in
value, are impermissibly coercive.”
847 P.2d at 1085.
Lopez, 174 Ariz. at 138,
A statement is involuntary where: (1) there
is a promise of a benefit or leniency made by law enforcement;
and
(2)
the
statement.
¶13
defendant
relied
on
that
promise
in
making
the
Id.
Here, Appellants contend that Carol’s consent to the
search
was
“involuntarily
given
in
reliance
of
the
express
promise . . . that if she showed [the detectives] her marijuana
plants, she would not go to jail, with the obvious implication
that if she did not show them her plants, then there was no
guarantee that she would not go to jail.”
For this proposition,
Appellants rely on State v. Thomas, 148 Ariz. 225, 714 P.2d 395
(1986), and State v. McFall, 103 Ariz. 234, 439 P.2d 805 (1968).
In Thomas, the State failed to establish the voluntariness of
the
defendant’s
confession
where
the
deputy
told
him
that
a
confession would have a beneficial effect on his sentence, while
a failure to confess would have a detrimental effect.
at
227,
714
P.2d
at
397.
In
McFall,
the
court
148 Ariz.
found
a
confession involuntary based on an insinuation by police that
gave defendant hope that he might receive drugs if he finished
7
the interview.
103 Ariz. at 236, 439 P.2d at 807.
In both
cases, law enforcement represented to the defendant that if he
confessed, he would receive a potential benefit.
¶14
In
court’s
contrast,
reliance
on
he
the
record
Lopez
would
in
not
here
supports
concluding
take
Carol
to
that
the
trial
Barkhurst’s
statement
that
jail
was
not
a
promise.
In Lopez, the defendant told the detective he was
concerned that he would play a tape of their interview for the
victim’s mother.
174 Ariz. at 138, 847 P.2d at 1085.
The
detective told the defendant that he had no intention of playing
the tape for the mother.
the
detective’s
The Lopez court concluded that
promise
but
statement of fact as to what was going to happen.
Id.
¶15
statement
Id.
was
not
a
simply
a
We acknowledge that Carol testified that she consented
to the search because Barkhurst promised that she would not go
to jail if she did so.
However, Barkhurst testified that he
informed Carol that if she allowed them to take the marijuana
plants, he would not be taking her or her husband to jail that
day.
He also testified that he never threatened he would take
her to jail if she did not consent or if he had to obtain a
warrant.
Finding that Barkhurst did not make a promise, the
trial court necessarily concluded that Barkhurst’s testimony at
the suppression hearing was more credible than Carol’s.
See
Gonzalez-Gutierrez, 187 Ariz. at 118, 927 P.2d at 778 (deferring
8
to
trial
court’s
credibility
determinations).
Viewing
the
evidence in the light most favorable to sustaining the trial
court’s ruling, we find no abuse of discretion.
B.
¶16
“Mere Presence” Instruction
Robert
argues
that
the
trial
court
abused
its
discretion in declining to give his requested “mere presence”
instruction.
We review the trial court’s denial of a requested
jury instruction for an abuse of discretion.
State v. Wall, 212
Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006).
The court is not
required to give a proposed instruction when its substance is
adequately covered by other instructions.
State v. Garcia, 224
Ariz. 1, 18, ¶ 75, 226 P.3d 370, 387 (2010) (quotations and
citation omitted).
Nor is it required to provide instructions
“that do nothing more than reiterate or enlarge the instructions
in defendant’s language.”
State v. Bolton, 182 Ariz. 290, 309,
896 P.2d 830, 849 (1995).
Rather, “the test is whether the
instructions
forth
case.”
adequately
set
the
law
applicable
to
the
State v. Rodriguez, 192 Ariz. 58, 61, 961 P.2d 1006,
1009 (1998).
There is no reversible error “[w]here the law is
adequately covered by instructions as a whole.”
State v. Doerr,
193 Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998).
¶17
Robert requested that the trial court give the “mere
presence” instruction from Standard Criminal 31 of the Revised
Arizona Jury Instructions(“RAJI”), which states:
9
Guilt
cannot
be
established
by
the
defendant’s mere presence at a crime scene,
mere association with another person at a
crime scene or mere knowledge that a crime
is being committed.
The fact that the
defendant may have been present, or knew
that a crime was being committed, does not
in and of itself make the defendant guilty
of the crime charged.
One who is merely
present is a passive observer who lacked
criminal intent and did not participate in
the crime.
Instead, the court gave the following instruction:
The mere presence of the Defendant at the
scene where an item is found is not
sufficient by itself to show that the
Defendant possessed the item. There must be
presented specific facts showing that the
Defendant knew of the item’s existence and
whereabouts.
The fact that the Defendant may have been
present at a crime scene and may have known
that a crime was being committed does not in
and of itself make the Defendant guilty of
the crimes charged.
¶18
Like
Robert’s
requested
jury
instruction,
the
trial
court’s instruction informed the jurors that mere presence at a
crime scene or mere knowledge that a crime was being committed
does
not
establish
guilt.
However,
the
trial
court’s
instruction additionally instructed the jury that “[t]here must
be presented specific facts showing that the defendant knew of
the item’s existence and whereabouts” to establish possession.
The other substantive difference between the two instructions
was
the
inclusion
in
Robert’s
10
requested
instruction
of
an
additional statement that “mere association with another person
at a crime scene” alone is not sufficient to establish guilt.
¶19
Robert argues that this additional language would have
alleviated the jury’s confusion over what evidence was needed
for conviction, which he attributes to the question raised by
the jury:
“If knowing someone was growing and allowed marijuana
to grow, is that production?”
In response, the trial court
informed
to
the
jurors
already given.
they
were
rely
on
the
instructions
Robert contends that his requested instruction
would have clarified for the jury that merely associating with
someone with knowledge of a crime is insufficient to sustain a
conviction.
¶20
We disagree.
In State v. Prasertphong, 206 Ariz. 70, 75 P.3d 675
(2003), vacated
on
other
grounds,
541
U.S.
1039
(2004),
the
defendant requested a jury instruction with “mere association”
language similar
instruction
in
to
that
proposed
Prasertphong
by
stated
Robert.
that
the
The
requested
prosecution
must
prove “in addition to being present or knowing about the crime,
the defendant knowingly associated himself with the crime in
some way as a participant, as someone who wanted the crime to be
committed, and not merely as a knowing spectator.”
75, 75 P.3d at 694 (emphasis added).
Id. at 89, ¶
Instead, the trial court
gave a “mere presence” instruction nearly identical to the one
given in the instant case: “The mere presence of a defendant at
11
the scene of a crime, together with knowledge a crime is being
committed,
is
insufficient
defendant
argued
that
to
the
establish
trial
guilt.”
court’s
Id.
The
instruction
was
insufficient due to the lack of “mere association” language.
Id. at ¶ 76.
Our supreme court disagreed, holding that the
trial court did not abuse its discretion in refusing to give the
requested instruction because the court’s instruction correctly
stated the law, the requested instruction merely “reiterate[d]
or
enlarge[d]
the
instructions
in
defendant’s
language,”
and
additional instructions “adequately informed the jury that [the
defendant] could not be convicted of the crimes merely because
he ‘associated’” with a participant.
Id. at ¶¶ 76-77.
¶21
mere
Here,
although
the
RAJI
presence
instruction
requested by Robert would have informed the jury of the State’s
burden to prove possession more precisely than the instruction
actually given by the trial court, we cannot say that the court
abused its discretion.
mere
presence
at
a
In addition to informing the jury that
crime
scene
is
insufficient
to
establish
guilt, the court clarified that “[c]onstructive possession means
that the item was not found on the person of the Defendant but
in
a
place
under
his
dominion
and
control”
and
that
“[t]he
evidence must link the Defendant to the item in a manner and to
an extent that it shows that the Defendant knew of the existence
and whereabouts of the item and that he had dominion and control
12
of
the
item.”
The
court
also
instructed
the
jury
on
the
presumption of innocence, the prosecution’s burden of proof, and
the elements of the offenses.
These instructions, combined with
the “mere presence” instruction, adequately informed the jury
that it could not convict Robert merely because he associated
with Carol or knew of the existence of the marijuana.
See
Doerr, 193 Ariz. at 65, ¶ 35, 969 P.2d at 1177 (finding no
reversible error “[w]here the law is adequately covered by the
instructions as a whole”).
Finally, we note that during closing
arguments Robert’s counsel explained to the jury that “the fact
that the defendant may have been present at a crime scene and
may have known that a crime is being committed, does not in and
of itself make the defendant guilty of the crime charged.”
See
State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (1989)
(“Closing arguments of counsel may be taken into account when
assessing the adequacy of jury instructions.”).
¶22
accurately
Because
stated
the
the
trial
law,
court’s
and
instructions
Robert
had
ample
as
a
whole
opportunity
during the trial and in closing arguments to support his theory
that he was merely present while Carol committed the crimes, his
requested
enlarge[d]
instruction
the
would
have
instructions
in
merely
“reiterate[d]
defendant’s
and
language.”
Prasertphong, 206 Ariz. at 89, ¶ 76, 75 P.3d at 694 (quotations
13
and citation omitted).
Thus, the trial court did not abuse its
discretion.
C.
¶23
for
Sufficiency of the Evidence
Robert
the
jury
also
to
asserts
convict
there
him
of
was
insufficient
production
of
possession of marijuana and drug paraphernalia.
evidence
marijuana
and
Specifically,
he contends that the State failed to show that he exercised
dominion or control over the marijuana and paraphernalia seized
from his home.
¶24
There is sufficient evidence to support a verdict if,
“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.”
State v. Cox (Cox II), 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265,
269 (2007) (quotations and citation omitted).
We will reverse a
verdict only if “there is a complete absence of probative facts
to support its conclusion.”
State v. Mauro, 159 Ariz. 186,
206, 766 P.2d 59, 79 (1988).
Where the evidence supporting a
verdict is challenged on appeal, we do not reweigh the evidence,
but instead resolve all conflicts in favor of sustaining the
verdict.
State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361
(1981).
¶25
Count 1 charged Robert with production of marijuana.
To “produce” means to “grow, plant, cultivate, harvest, dry,
14
process or prepare for sale.”
3401(29) (Supp. 2010). 3
Ariz. Rev. Stat. (“A.R.S.”) § 13-
Counts 2 and 3 charged Robert with
possession of marijuana and drug paraphernalia.
To “possess”
means “knowingly to have physical possession or otherwise to
exercise
dominion
or
control
over
property.”
A.R.S.
§
13-
105(33) (2010).
¶26
A defendant may exercise dominion or control over an
item without having physical possession.
Ariz.
260,
264,
¶
11,
8
P.3d
1174,
State v. Petrak, 198
1178
(App.
2000).
“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 (Cox I), 214 Ariz. 518, 520, ¶ 10, 155
P.3d 357, 359 (App. 2007) (quotations and citation omitted).
The State may establish constructive possession by proving the
defendant’s exercise of dominion or control over the contraband
itself, or over the location in which it was found.
State v.
Teagle, 217 Ariz. 17, 27, ¶ 41, 170 P.3d 266, 276 (App. 2007).
Proof of the defendant’s exclusive possession or control is not
required.
State v. Curtis, 114 Ariz. 527, 528, 562 P.2d 407,
408
1977).
(App.
Constructive
3
possession
may
be
shown
by
Absent material changes to the relevant statutes after the
date of the offenses, we cite the current version.
15
circumstantial evidence.
State v. Villalobos Alvarez, 155 Ariz.
244, 245, 745 P.2d 991, 992 (App. 1987).
¶27
Robert
contends
that
the
State
failed
to
present
sufficient evidence he, and not Carol, was growing the marijuana
plants and possessed the marijuana and drug paraphernalia seized
from the house.
However, the State was not required to prove
that he had exclusive control over the items seized, only that
he had the right to control the locations in which they were
found.
See Curtis, 114 Ariz. at 528, 562 P.2d at 408.
In
addition, the State was required to present sufficient evidence
to
permit
knowledge
the
of
paraphernalia.
reasonable
the
inference
existence
of
that
the
Robert
had
marijuana
actual
and
drug
See Cox I, 214 Ariz. at 520, ¶ 10, 155 P.3d at
359.
¶28
There
was
sufficient
evidence
from
which
the
jury
could rationally have concluded that Robert produced marijuana.
Carol told Barkhurst that Robert lived with her in the home.
The detectives found two marijuana plants growing in the garden.
While the plants were not visible from the street, they were
clearly visible in the backyard.
And steps had been taken to
conceal the plants: one of the plants was tied down with ropes
and stakes, bed sheets blocked visibility through the gate, and
the block wall behind the plants was taller than in other areas
of the garden.
16
¶29
There
was
possessed marijuana.
detectives
found
also
sufficient
evidence
that
Robert
In addition to the plants outside, the
marijuana
in
plain
view
inside
the
home.
Schoch found a bag of marijuana seeds on a shelf near the front
doorway and a bag of marijuana leaves in the master bathroom.
The detectives also testified concerning the obvious odor of raw
marijuana emanating from the plants in the backyard and of burnt
marijuana inside the home.
And, Robert’s flippant comments to
Barkhurst the day after the search provided additional evidence
of his awareness of the marijuana’s existence.
¶30
As
a
resident
of
the
home,
Robert
had
dominion
or
control over both the backyard and the home’s interior; thus,
the
jury
could
have
rationally
concluded
that
he
had
constructive possession of the marijuana and drug paraphernalia
found in both locations.
See State v. Jenson, 114 Ariz. 492,
493-94, 562 P.2d 372, 373-74 (1977) (concluding evidence showing
defendant had lived “off and on” with his mother in home where
marijuana was found was sufficient to establish possession); see
also State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337,
1339
(1972)
(holding
that
cardboard
box
containing
narcotics
found on an open back porch attached to defendant’s apartment
that
was
accessible
to
other
residents
of
complex
nevertheless under defendant’s dominion and control).
17
was
¶31
In addition, the jury could have reasonably inferred
that Robert had actual knowledge of the marijuana’s existence
when it could be readily seen and smelled both in the backyard
and inside the home.
P.2d
1070,
1074
See State v. Murphy, 117 Ariz. 57, 61, 570
(1977)
(recognizing
that
when
contraband
is
found in an individual’s home “in an unsecluded or obvious place
it is sufficient to sustain a verdict for possession”); see also
State v. Van Meter, 7 Ariz. App. 422, 427, 440 P.2d 58, 63
(1968) (finding sufficient evidence of possession where drugs
found in apartment defendant shared with roommate “in obvious
places
around
the
apartment
where
a
person
living
in
the
apartment would have knowledge of their presence”).
¶32
The jury could have also concluded that Robert had
actual knowledge of the drug paraphernalia found in plain view
both inside and outside the home.
570 P.2d at 1074.
See Murphy, 117 Ariz. at 61,
Drug paraphernalia includes “all equipment,
products and materials of any kind which are used, intended for
use or designed for use in planting, propagating, cultivating,
growing,
harvesting,
manufacturing,
compounding,
converting,
producing, processing, preparing, testing, analyzing, packing,
repackaging,
storing,
containing,
concealing,
injecting,
ingesting, inhaling or otherwise introducing into the human body
a drug.”
A.R.S. § 13-3415(F)(2) (2010).
Carol handed Schoch a
marijuana pipe, and there was an obvious odor of burnt marijuana
18
inside the home.
in
the
master
Schoch found a bag containing marijuana leaves
bathroom
and
another
bag
seeds on a shelf near the front door.
containing
marijuana
And the marijuana plants
were supported by ropes, stakes, and wire cages and partially
concealed from view using bed sheets.
¶33
In
sum,
we
conclude
that
a
rational
trier
of
fact
could have found the essential elements of each of the crimes
beyond a reasonable doubt.
174
P.3d
at
269
(noting
See Cox II, 217 Ariz. at 357, ¶ 22,
the
relevant
standard
is
whether
a
rational trier of fact could have found the essential elements
of the crime from the evidence presented).
CONCLUSION
¶34
For
the
foregoing
reasons,
we
affirm
Defendants’
convictions and sentences.
/s/
_________________________________
MICHAEL J. BROWN, Presiding Judge
CONCURRING:
/s/
___________________________________
PATRICIA K. NORRIS, Judge
/s/
___________________________________
PHILIP HALL, Judge
19
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