STATE v. MENDOZA

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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: 07/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. MICHAEL MENDOZA, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0484 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-154101 The Honorable Colleen L. French, Commissioner AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Angela Kebric, Assistant Attorney General Attorneys for Appellee Phoenix Gail Gianasi Natale Attorney for Appellant Phoenix H A L L, Judge ¶1 Defendant Michael Mendoza (defendant) appeals his convictions and sentences of one count of possession of drug paraphernalia and one count of possession or use of narcotic drugs. For the following reasons, we affirm. FACTUAL1 AND PROCEDURAL BACKGROUND ¶2 On August 25, 2009, defendant was charged with one count of possession of drug paraphernalia, to-wit: a baggie, a class 6 felony, and one count of possession or use of narcotic drugs, a class 4 felony. 9, 2009. The case was tried on December 8 and Phoenix Police Detective G.D. testified that on August 14, 2009, he conducted surveillance on a suspected drug dealer s house and saw activity that he associated with drug trafficking, such as cars and people coming and going from the house, only staying for a few moments. Detective G.D., and his partner Detective R.P., subsequently knocked on the front door of the house approximately one minute after a vehicle parked in the driveway, and a passenger, whom Detective G.D. testified was defendant, exited the vehicle and went into the house. Two people answered the door, one of whom appeared to be hiding a methamphetamine pipe and a lighter in his hands. Detectives G.D. and R.P. entered the house and detained the two people. Detective G.D. then noticed defendant standing directly behind the front door and in front of a bedroom door. After detaining defendant and several other people in the house, Detective G.D. 1 We review the evidence and inferences drawn from the evidence in a light most favorable to upholding the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 testified that Detective R.P. found a white plastic baggie of heroin encased in black tar in the exact area behind the door where defendant had been standing.2 Detective G.D. further stated that based upon the size of the area behind the door and the location of the other detainees, it was not possible for the other detainees to place or throw the heroin behind the door. ¶3 rights, After he defendant agreed to was answer arrested and questions read from his Miranda3 Detective G.D. Defendant stated that he went to the house to buy heroin and to introduce his friend -the driver of the vehicle- to the drug dealer. Defendant told Detective G.D. that he had intended to buy forty dollars worth of heroin; he had given one of the people that answered the door twenty dollars; and the person took the money and put it in the bedroom behind the front door.4 Defendant further stated exchange for the money. that he did not receive heroin in Defendant had the remaining twenty dollars in his pocket at the time of his arrest. 2 Prior to trial, the State and defendant stipulated that the evidence seized was a useable quantity of heroin, a narcotic drug. The drug laboratory also confirmed that the substance confiscated was 200 milligrams of heroin, in a useable condition, which sells for approximately twenty dollars. 3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 A picture introduced in evidence showed a twenty dollar bill on top of a pile of money in that bedroom, which was the drug dealer s bedroom. 3 ¶4 Detective R.P. testified that after entering the residence, he saw defendant standing behind the front door and escorted him outside. He stated that he subsequently found the small baggie of heroin behind that same door. ¶5 After dismiss the the charges State rested, pursuant to defense Arizona counsel Rules of moved to Criminal Procedure (Rule) 20, on the ground that there was insufficient evidence to support convictions. The court denied the motion. The jury found defendant guilty as charged. The trial court sentenced defendant to 3.75 years of imprisonment for possession of drug paraphernalia, with sixty-three days of presentence incarceration credit, to be served concurrently with a ten year term of imprisonment for possession or use of narcotic drugs, also with sixty-three days of presentence incarceration credit. ¶6 Defendant appeals5 and argues (1) the trial court erred by denying his Rule 20 motion and (2) it was both a denial of his Sixth Amendment right to confront a witness, and fundamental error, for his counsel to stipulate that the substance in evidence was heroin, without testimony from the criminalist who tested the substance. 5 Although defendant s appeal was initially untimely, the court granted his request to file a delayed appeal. 4 DISCUSSION ¶7 We review the court s denial of a Rule 20 motion for an abuse of discretion. State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, 121 (App. 2001). We will reverse a conviction only if there is a complete lack of substantial evidence to support the charge. ¶8 See id.; see also Ariz. R. Crim. P. 20(a). Defendant first argues that the trial court erred by denying his Rule 20 motion for acquittal because there was insufficient evidence to convict him of possession of narcotic drugs.6 narcotic Possess A person shall not knowingly . . . possess or use a drug. means Ariz. Rev. Stat. to have knowingly § 13-3408(A)(1) physical (2010). possession otherwise to exercise dominion or control over property. Rev. Stat. § 13-105(34) (Supp. 2011). One who or Ariz. exercises dominion or control over property has constructive possession of it even if it is not in his physical possession. State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 13, 965 P.2d 94, 97 (App. 1998). ¶9 defendant The evidence admitted he presented went to at the 6 trial house revealed with the that: (1) intent to Defendant s argument in his opening brief incorrectly refers to his possession of narcotic drug conviction as a conviction for dangerous drugs. Further, although defendant only specifically argues that there was insufficient evidence to convict him of possession of dangerous drugs and not possession of drug paraphernalia, the State construes defendant s argument as pertaining to both counts. We do likewise. 5 purchase heroin; (2) defendant gave an individual in the house twenty dollars for heroin; (3) a twenty dollar bill was found at the top of a stack of money in the drug dealer s bedroom; (4) a small baggie containing approximately twenty dollars worth of heroin was found in the exact location that defendant had been standing in prior to his arrest; and (5) Detective G.D. testified that no other occupant in the house could have placed or thrown the heroin behind the door where defendant and the heroin were discovered. Thus, there was sufficient evidence to convict defendant of possession of narcotic drugs and the trial court did not err in denying defendant s Rule 20 motion. ¶10 It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to . . . pack, repack, store, contain, conceal . . . or otherwise introduce into the human body a drug in violation of this chapter. Stat. § 13-3415(A) (2010). Ariz. Rev. The baggie of heroin was discovered in the exact location that defendant had been standing prior to his removal from the house and Detective G.D. stated that no other person could have put the heroin and baggie in the area that defendant and the baggie of heroin were found. The baggie was being used to store or contain the heroin. therefore conclude that the trial court properly Id. We denied defendant s Rule 20 motion and there was sufficient evidence to convict defendant of possession of drug paraphernalia. 6 ¶11 Next, defendant maintains that his Sixth Amendment right to confront a witness was violated because defense counsel and the State stipulated that the substance confiscated from the area defendant had been standing in was heroin. Defendant cites to 2527 Melendez-Diaz v. Massachusetts, 129 S.Ct. (2009) as support, which held that the admission of a state laboratory drug analyst s certificate identifying material seized by police and connected to the defendant as cocaine violated the defendant s Sixth Amendment right to confront a witness because the analyst did not testify in person about the substance. at 2531-42. Defendant s reliance on this case is misplaced. Id. As Defendant acknowledges, Melendez-Diaz clearly stated that [t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence[.] n.3. Id. at 2534 Defendant, in this case, not only failed to object to the evidence, he stipulated that it was heroin and that the quantity was a useable amount. We are not aware of any case in which a trial court s acceptance of a defendant s stipulation to the admission of evidence fundamental error. has been found to constitute to Cf. State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001) (no reversible error when the party complaining of it invited the defendant s argument is devoid of merit. 7 error). Accordingly, CONCLUSION ¶12 For the foregoing reasons, we affirm. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/___________________________________ MARGARET H. DOWNIE, Presiding Judge _/s/___________________________________ RANDALL M. HOWE, Judge 8

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