STATE v. VANHEEMSKERCK

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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. ) ) BETTY MARIE VANHEEMSKERCK, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 12/18/2012 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0104 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. S8015CR201100235 The Honorable Steven F. Conn, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Linley Wilson, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman O R O Z C O, Judge ¶1 Betty Marie Vanheemskerck appeals her convictions and sentences for possession of dangerous drugs for sale and possession of drug paraphernalia, on grounds of insufficiency of the evidence and prosecutorial misconduct. For the reasons that follow, we find no error and affirm. Sufficiency of the Evidence ¶2 A registration police officer sticker and observed stopped an the Vanheemskerck was a front-seat passenger. altered truck vehicle in which During the traffic stop, the officer s narcotics canine alerted to the truck. When the officer asked the driver if there was anything illegal in the truck, the driver paused and turned to look at Vanheemskerck before answering. The officer testified that the driver understood and spoke broken English. ¶3 After consenting to a search of the vehicle, the driver removed a black banker s-type bag from the truck and gave it to Vanheemskerck, who stuck it in her purse. consent, police subsequently including the black bag. cash, and searched With her Vanheemskerck s purse, They found a digital scale, $1,560 in methamphetamine valued at approximately $5,440. Police also found a drug-sales ledger in the driver s side map pocket, methamphetamine valued at approximately $405 in a clear plastic baggie between the driver s seat and the truck s center 2 console, and more methamphetamine with an approximate value of $264 in the pocket of a jacket in the backseat. ¶4 Vanheemskerck testified that she and a friend had been waiting by the side of the highway in Fort Mohave for another friend to pick her up to drive her to Bullhead City. She further stated that the driver was a stranger who did not speak English, and that she and a friend accepted a ride from the driver after he pointed to Laughlin on a map, indicating he needed directions. Although Vanheemskerck was initially waiting for a ride to Bullhead City to run an errand, she testified that she accepted a ride to Laughlin because she also needed to run an errand there before heading back to Fort Mohave to catch a ride to California later that day. She also stated that she had no knowledge of the drugs in the black bag the driver handed her during the traffic stop, and she just took the bag without thinking. ¶5 Vanheemskerck argues that in light of her testimony that she had no knowledge of the drugs; the evidence at trial was insufficient to establish that she knew there was methamphetamine in the truck in which she was a passenger. The offense of possession of dangerous drugs for sale requires proof that the defendant knowingly possessed a dangerous drug for 3 sale. See A.R.S. § 13-3407.A.2 (Supp. 2012).1 We review de novo the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We view the facts in the light most favorable to upholding the jury's verdict and resolve all conflicts in the evidence against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). We do not distinguish between direct and circumstantial evidence. 176 Ariz. 589, 603, 863 P.2d 881, 895 credibility determinations to the jury. State v. Stuard, (1993). We leave State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004). 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. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). ¶6 as The jury could have rejected Vanheemskerck s testimony implausible and not credible. Also the jury could have inferred from the look that the driver gave Vanheemskerck when the officer asked him if there was anything illegal in the truck, and the fact that she accepted the black bag without question, that she knew about the methamphetamine in the bag and did not think police would look in the bag if she put it in her 1 Absent any material revisions, version of the applicable statute. 4 we cite to the current purse. The jurors could also have reasonably inferred that the driver was unlikely to hand an innocent stranger a black bag containing approximately $1,560 cash. in We $5,440 worth accordingly of find methamphetamine that the evidence and was sufficient to establish that Vanheemskerck knew at a minimum about the methamphetamine in the black bag and thus, to convict her of the charged offense. Prosecutorial Misconduct ¶7 Vanheemskerck also argues that the prosecutor engaged in misconduct by: 1) arguing, in the absence of any supporting evidence, that the driver was unlikely to give a ride to anyone who did not know about the thousands of dollars worth of methamphetamine inside the truck; 2) misstating the evidence by arguing that Vanheemskerck s story did not make sense because she had accepted a ride to Laughlin not knowing how she s going to get back in order to meet up with her ride to California; and 3) arguing that her story did not make sense because since 9/11, the last 10 years, you don t take bags from other people, a comment unsupported by any evidence and submitted to the jury solely for the purpose of arousing the jurors[ ] passions or prejudices. ¶8 closing Prosecutors arguments to are the given wide jury: latitude excessive in presenting and emotional language is the bread and butter weapon of counsel's forensic 5 arsenal, limited by the principle that attorneys are not permitted to introduce or comment upon evidence which has not previously been offered and placed before the jury. Jones, 197 Ariz. 290, (citation omitted). 305, ¶ 37, 4 P.3d 345, State v. 360 (2000) To determine whether a prosecutor s remarks are improper, we consider whether the remarks called to the attention of jurors matters they would not be justified in considering and the probability that the jurors were influenced by the remarks. To require pronounced Jones, 197 Ariz. at 305, ¶ 37, 4 P.3d at 360. reversal, and prosecutorial persistent atmosphere of the trial. that it misconduct must permeates be the so entire State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citation omitted). We focus on whether the prosecutor s statements in closing arguments affected the proceedings in such a way as to deny Vanheemskerck a fair trial. See State v. Hughes, 193 Ariz. 72, 80, ¶ 32, 969 P.2d 1184, 1192 (1998). ¶9 We find no prosecutorial misconduct, much less misconduct so egregious and persistent that it permeated the entire atmosphere of the trial or deprived Vanheemskerck of a fair trial. First, the argument that a driver transporting more than $5,000 worth of methamphetamine would normally not give rides to strangers was simply an argument relying on common sense. See United States v. Quilca-Carpio, 118 F.3d 719, 722 6 (11th Cir. 1997) ( A reasonable jury could infer from the quantity of drugs seized that a prudent smuggler is not likely to entrust such valuable cargo to an innocent person without that person s knowledge. ). Second, the argument that Vanheemskerck s story did not make sense did not misstate the evidence, but rather was a fair interpretation of the inconsistency in her conduct in accepting a ride from a person she described as a non-English-speaking stranger, in light of her testimony about her plans that day. Finally, the argument that after 9/11 people do not just accept bags from strangers was a fair response to defense counsel s argument that our instincts are to take something that somebody s giving us. See State v. Alvarez, 145 Ariz. 370, 373, 701 P.2d 1178, 1181 (1985) ( Prosecutorial comments which are a fair rebuttal to areas opened by the defense are proper. ). Moreover, we find that the reference to to 9/11 was not offered appeal to the jury s passions or prejudices, but rather to appeal to its common sense about a normal person s reaction in this era of heightened security to a stranger handing them a bag of unknown contents. On this record, we find no prosecutorial misconduct, much less misconduct so egregious that it requires reversal. 7 ¶10 For the foregoing reasons, we affirm Vanheemskerck s convictions and sentences. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ MAURICE PORTLEY, Presiding Judge /S/ ____________________________________ RANDALL M. HOWE, Judge 8

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