STATE v. THOMPSON

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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. ) ) RAYSHALL THOMPSON, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 2/5/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 11-0906 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-158172-001 The Honorable Steven P. Lynch, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Catani, Chief Counsel Criminal Appeals/Capital Litigation Section Barbara A. bailey, Assistant Attorney General Attorneys for Appellee DeBrigida Law Offices, PLLC By Ronald M. DeBrigida, Jr. Attorneys for Appellant J O H N S E N, Judge Phoenix Glendale ¶1 Rayshall Thompson appeals from his convictions of possession of dangerous drugs, a Class 4 felony; possession of drug paraphernalia, a Class 6 felony; and resisting arrest, a Class 6 felony. For reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 A uniformed police officer saw Thompson walking along the street at about midnight and noticed that, when Thompson saw the marked patrol car slow, he looked down and then began to run. The officer stopped the car and chased Thompson on foot down an alley, telling Thompson he was a police officer and to stop. Just before the officer caught up with Thompson, he saw Thompson throw a baggie of some substance over a fence. The officer attempted to detain and handcuff Thompson while he was on the ground, but Thompson lay with his arms and hands beneath him, then stood up and continued running dragging the officer in the process. down the alley, Eventually, the officer overpowered Thompson and took him into custody. Another officer found substance a small plastic bag containing a white near where the first officer saw Thompson toss a small plastic bag. The substance was determined to be 6.6 grams of crack cocaine. ¶3 Thompson timely appealed his convictions. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 2 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A)(1) (West 2013). 1 DISCUSSION A. Sufficiency of Evidence. ¶4 Thompson argues the superior court erred in denying his motion for judgment of acquittal and his motion for new trial because convictions. the evidence was insufficient to support his We review claims of insufficient evidence de novo. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). ¶5 A judgment of acquittal is appropriate if there is no substantial evidence to warrant a conviction. P. 20(a). Substantial evidence is Ariz. R. Crim. proof that reasonable persons could accept as sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶6 The officer who arrested Thompson testified at trial to the events described above. Thompson argues the officer s testimony was not credible and therefore the elements of the 1 Absent material revisions after the date offense, we cite a statute s current version. 3 of an alleged charged offenses were not established. No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury. 556 57, 521 P.2d 987, State v. Clemons, 110 Ariz. 555, 988 89 (1974). In reviewing the sufficiency of the evidence, we do not reweigh the evidence to decide if we would reach the same conclusion as the jury, but instead view upholding the the evidence verdict, against the defendant. in the resolving light all most favorable reasonable to inferences State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997). ¶7 The evidence at trial was more than sufficient to permit the jury to find that all three charged offenses were proved beyond a reasonable doubt. First, the evidence clearly established that Thompson possessed a narcotic drug, cocaine. See A.R.S. §§ 13-3408(A)(1) (West 2013) (knowing possession of a narcotic drug), -3401(5),(20)(z) (West 2013) (defining cocaine as a narcotic drug). To prove possession of drug paraphernalia, the State was required to show Thompson used or possessed with the intent to use, drug paraphernalia to . . . pack, repack, store, [or] contain . . . a drug. 2013). A.R.S. § 13-3415(A) (West The small plastic bag was discovered near where Thompson threw it, and it was being used to store or contain the cocaine. Finally, the charge of resisting arrest required proof 4 pursuant to A.R.S. § 13-2508(A)(1) (West 2013) that Thompson intentionally prevented or attempted to prevent a peace officer from effecting an arrest by . . . [u]sing or threatening to use physical force against the peace officer. The State presented evidence that Thompson lay on his arms and hands to prevent the officer from handcuffing him and used physical force by dragging the officer with him as he tried to run away down the alley. Thus, the court did not err in denying Thompson s motions for judgment of acquittal or for new trial based on sufficiency of the evidence. B. Motion for Mistrial. ¶8 Thompson also contends the superior court erred by denying his motion for mistrial based on his argument that the State improperly presented testimony that cocaine for sale rather than personal use. he possessed the The court has broad discretion in ruling on a motion for mistrial, and its ruling will be reversed only if it is palpably improper and clearly injurious. State v. Walton, 159 Ariz. 571, 581, 769 P.2d 1017, 1027 (1989). ¶9 Thompson moved for a mistrial after a police officer testified that the six grams of cocaine in the small plastic bag was a pretty good size amount and was more than a useable amount . . . as far as personal use. Thompson argued this testimony violated a pretrial ruling precluding the State from 5 presenting testimony that he possessed the cocaine with intent to sell. The court denied Thompson s motion, ruling that the testimony in question did not require a mistrial. The following trial day, Thompson renewed his motion for mistrial, which the court again denied. ¶10 Declaring a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted. State v. Dann, 205 Ariz. 557, 570, ¶ 43, 74 P.3d 231, 244 (2003) (quotation omitted). The trial judge is in the best position to determine whether a particular incident calls for a mistrial because the trial judge is aware of the atmosphere incident of and the the trial, possible the circumstances effect on the surrounding trial. the State v. Williams, 209 Ariz. 228, 239, ¶ 47, 99 P.3d 43, 54 (App. 2004). ¶11 Here, the officer s testimony merely emphasized the large amount of cocaine in the bag found near the arrest site and was relevant to rebut Thompson s argument that someone else had dropped the bag. Given that the incident occurred in a neighborhood of high drug use, the fact that the cocaine in the bag was a large amount made it unlikely that it would have remained on the ground for a long period of time, supporting a finding that Thompson had tossed the bag aside just before he was arrested. 6 ¶12 The court stated it was willing to grant a motion to strike and reinforce direct that the to disregard the testimony to amount the jury of drugs not relevant in is determining whether or not [Thompson] possessed it. however, declined that option. court reasonably could Thompson, Under these circumstances, the conclude the testimony regarding the amount of cocaine was not improper and did not deprive Thompson of a fair trial. Accordingly, the court did not abuse its discretion in denying the motion for mistrial. C. Alleged Prosecutorial Misconduct. ¶13 Finally, citing the same testimony elicited by the prosecutor on which he based his motion for mistrial, Thompson argues his convictions should be reversed due to prosecutorial misconduct. To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). ¶14 its Our conclusion that the superior court did not abuse discretion likewise in disposes denying of his Thompson s argument questioning denied him due process. 7 motion that the for mistrial prosecutor s CONCLUSION ¶15 For the foregoing reasons, we affirm Thompson s convictions and sentences. /s/ _________________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/ ___________________________________ SAMUEL A. THUMMA, Presiding Judge /s/ ___________________________________ MICHAEL J. BROWN, Judge 8

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