STATE v. FELIX-RUIZ

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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: 05/02/2013 RUTH A. WILLINGHAM, CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. ANGEL FELIX-RUIZ, Appellant. 1 CA-CR 12-0113 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. S8015CR201100231 The Honorable Derek C. Carlisle, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Adriana M. Zick, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 of Angel Felix-Ruiz appeals his convictions of possession a dangerous drug for sale and possession of drug paraphernalia. He contends insufficient evidence supports his convictions and argues the superior court erred in instructing the jury. For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Police executed a search warrant at the home in which Felix-Ruiz lived with his wife and two teenage children. In a locked detached shed next to the house, officers discovered 31.4 grams of methamphetamine with a street value of $3,140 hidden in a spray paint can. plastic bags, In the same shed, officers also found small white crystalline residue on a small digital scale, a drug ledger and mail addressed to Felix-Ruiz and his wife. that The shed was equipped with a video surveillance system relayed live images of the driveway and entryway court denied to a television monitor inside the shed. ¶3 At trial, the superior Felix-Ruiz s motion for a judgment of acquittal under Rule 20 of the Arizona Rules of Criminal Procedure. Felix-Ruiz argued the evidence merely established his presence at the home and did not tie him to the drugs and paraphernalia in the shed. not testify and did not present any Felix-Ruiz did evidence. Over his objection, the court declined to expressly instruct the jury that, in deciding whether to convict Felix-Ruiz, it should not consider his decision not to testify. 2 ¶4 The possession Class 2 jury of found Felix-Ruiz dangerous felony, and drugs one for sale count paraphernalia, a Class 6 felony. mitigated terms of imprisonment. guilty of one count of (methamphetamine), of possession of a drug The court imposed concurrent We have jurisdiction of Felix- Ruiz s timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and 4033(A)(1) (West 2013). 1 DISCUSSION A. Sufficiency of Evidence. ¶5 Felix-Ruiz argues his convictions should be overturned because the evidence was insufficient to prove he possessed the methamphetamine Specifically, that he and he paraphernalia contends knowingly the exercised discovered evidence dominion failed and in to control the shed. demonstrate over the illicit materials. ¶6 We review a claim of insufficient evidence de novo. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). We determine only whether substantial evidence exists to support the verdict. 177 Ariz. Ariz. R. Crim. P. 20(a); see also State v. Scott, 131, 138, 865 P.2d 792, 1 799 (1993). Absent material revision after the date offense, we cite a statute s current version. 3 of Substantial an alleged evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quotation omitted). ¶7 We view the evidence sustaining the verdict. 1198. in a light most favorable to Bible, 175 Ariz. at 595, 858 P.2d at We will reverse a conviction only if there is a complete absence of probative facts supporting the conviction. State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976). In our review, we do not distinguish between the probative value of direct and circumstantial evidence. n.1, 858 P.2d at 1163. Bible, 175 Ariz. at 560 Moreover, the State does not have to negate every conceivable hypothesis of innocence when guilt has been established by circumstantial evidence. State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234 (1985). ¶8 doubt The State was required to prove beyond a reasonable that Felix-Ruiz paraphernalia discovered 3401(6)(b)(xxxiv) Possess means otherwise to (West possessed in 2013), knowingly exercise the to dominion A.R.S. § 13-105(34) (West 2013). power over ; Tyler, 149 dominion Ariz. 312, as 316, the shed. See A.R.S. -3407(A)(2) (West have or physical control 4 and §§ 2013). possession over 13- or property. Control is defined as have absolute 718 methamphetamine P.2d ownership. 214, 218 State (App. v. 1986) (quoting Webster's Third (Unabridged) 496, 672 (1981)). need not be exclusive or New International Dictionary Further, constructive possession personal. See State v. Chabolla- Hinojosa, 192 Ariz. 360, 365, ¶ 18, 965 P.2d 94, 99 (App. 1998). As our supreme court explained in State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972): Constructive possession is generally applied to those circumstances where the drug is not found on the person of the defendant nor in his presence, but is found in a place under his dominion and control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of the narcotics. Exclusive control of the place in which the narcotics are found is not necessary. ¶9 The establish circumstantial Felix-Ruiz s evidence constructive methamphetamine and paraphernalia. here is sufficient possession of to the The illicit items were in a locked shed next to the home in which he lived as one of the adult heads of the household. in the shed. Mail addressed to him was found Significantly, the shed was outfitted with a video surveillance system - including a camera visible on the outside of the shed - which an officer testified drug dealers typically use to protect their inventory from law enforcement or potential thieves. Considering these circumstances in the light most favorable to sustaining the verdicts, a reasonable juror could conclude Felix-Ruiz knew about the drugs and paraphernalia in 5 the shed and that items in the shed were under his dominion and control. ¶10 Notwithstanding Felix-Ruiz s argument to the contrary, whatever access other family members may have had to the shed does not eliminate his culpability. evidence supports his convictions. at 519-20, 502 P.2d at Accordingly, sufficient See Villavicencio, 108 Ariz. 1338-39 (defendant constructively possessed narcotics found in a cardboard box located on a porch accessible to others). B. Jury Instructions. ¶11 Felix-Ruiz also argues the superior court erred by failing to instruct the jury that he had a constitutional right not to testify. defendant We agree with Felix-Ruiz that when a criminal exercises his or her right not to testify, the superior court errs if it does not instruct the jury that the defendant has a constitutional right not to testify. However, considering the instructions the court gave here as a whole, we cannot conclude instruction in that this the case court s requires failure reversal to of give that Felix-Ruiz s convictions. ¶12 We review jury instructions as a whole to determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000). jury verdict because of an erroneous 6 We will not reverse a instruction unless the instructions taken together could reasonably mislead a jury. See State v. Gallegos, 178 Ariz. 1, 10, 870 P.2d 1097, 1106 (1994); see also State v. Norgard, 103 Ariz. 381, 383, 442 P.2d 544, 546 (1968) ( Instructions must be considered as a whole, and no case will be reversed because of some isolated paragraph or portion of an instruction which, standing alone, might be misleading. ). ¶13 Here, although the superior court did not specifically instruct the jury at the close of trial that Felix-Ruiz had a constitutional right to not testify at trial and that the jury should not consider his exercise of that right in determining his guilt, the court did give the following closing instructions: Evidence means the testimony of witnesses and the exhibits introduced in court. . . . The State must prove guilt beyond a reasonable doubt based on the evidence. The defendant is not required to produce evidence of any kind. The decision on whether to produce any evidence is left to the defendant, acting with the advice of an attorney. The defendant s decision not to produce any evidence is not evidence of guilt. . . . [T]he defendant is presumed by law to be innocent . . . . Moreover, although the court did not include the required instruction among the closing instructions, during voir dire it informed the jury venire of a defendant s right not to testify. At that time, the court told the venire, [A] [d]efendant in a 7 criminal case exercise of determining there has this guilt anyone [in the right right or not cannot to innocence. the venire] at trial. considered by the The be testify then who court does principles of law I have just stated? responded. We also note that during jury The in Is understand not asked, the None of the jurors closing arguments, the State did not assert that Felix-Ruiz s refusal to testify was evidence of his guilt. ¶14 Notwithstanding failing to instruct constitutional right that the to not the jury superior that testify court erred Felix-Ruiz and that it in had a could not consider his decision to exercise that right in deciding whether he was guilty, the court properly instructed the jury on the presumption of innocence and that the State had the burden to establish guilt beyond a reasonable doubt. For all of these reasons, considered as a whole, the court s instructions, its statements during voir dire and the inferences therefrom, accurately reflected the applicable law and did not mislead the jury. CONCLUSION ¶15 Sufficient evidence supports Felix-Ruiz s convictions. Moreover, the superior court s erroneous failure to instruct the jury that Felix-Ruiz had a constitutional right to not testify and that it could not consider his exercise of that right in 8 deciding whether to convict him does not require reversal of his convictions. We affirm the convictions and the resulting sentences. ______________/s/________________ DIANE M. JOHNSEN, Judge CONCURRING: ______________/s/__________________ SAMUEL A. THUMMA, Presiding Judge _______________/s/_________________ MICHAEL J. BROWN, Judge 9

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