STATE v. FLORES

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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. RICARDO GONZALEZ FLORES, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 10/15/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0535 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2006-123440-001 The Honorable John R. Ditsworth, Judge AFFIRMED IN PART; VACATED IN PART Thomas C. By and Attorneys Horne, Arizona Attorney General Phoenix Joseph T. Maziarz, Chief Counsel Criminal Appeals Jana Zinman, Assistant Attorney General for Appellee James J. Haas, Maricopa County Public Defender By Mikel P. Steinfeld, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Ricardo Gonzalez Flores appeals his convictions for possession of marijuana for sale and transportation of marijuana for sale. Ariz. Rev. Stat. ( A.R.S. ) § 13-3405(A)(2), (4) (Supp. 2012). 1 On appeal, he argues, first, the superior court should not have denied his motion for acquittal under Rule 20 of the Arizona failed Rules to of present convictions; and Criminal Procedure; sufficient third, the evidence State second, to engaged the State support in his prosecutorial misconduct during closing argument. ¶2 We conviction sale. disagree and with sentence Flores s for arguments transportation and of affirm his marijuana for We vacate his conviction and sentence for possession of marijuana for sale because, under the circumstances presented here, that offense was a lesser-included offense of transportation of marijuana for sale and, as a matter of law, he could not be convicted and sentenced for both offenses. FACTS AND PROCEDURAL BACKGROUND 2 ¶3 On surveilled a April house 28, 2006, suspected of two being narcotics a stash detectives house for marijuana and saw packaging bundles in the garage . . . which matched descriptions of packaging from previous investigations which had been known to show marijuana. At 5:15 P.M., a man, 1 Although the Arizona Legislature amended parts of A.R.S. § 13-3405 after the date of Flores s offense, it did not amend subsection (A)(2) or (A)(4). Thus, we cite to the current version of the statute. 2 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Flores. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 who the detectives believed owned the house, drove a black car out of the garage and parked it in front of the house. Shortly thereafter, a woman, who the detectives believed to be the driver s wife or girlfriend, came out of the house, entered the car, and drove away. At around the same time, a purple sports utility vehicle ( SUV ) drove up to and entered the garage, and the garage door closed. drove out of the garage. Approximately 15 minutes later, the SUV The detectives saw that the bundles were no longer in the garage. ¶4 Subsequently, police stopped the SUV and detained its occupants, including Flores, the front-seat passenger. Police found 260 pounds of marijuana, rows of clear cellophane wrap, and a digital scale in the SUV. After a detective read Flores his Miranda rights, Flores admitted he knew marijuana was in the SUV, and it was illegal to possess marijuana in Arizona. DISCUSSION 3 I. Sufficiency of the Evidence ¶5 Flores argues the superior court should have granted his Rule 20 motion because the State did not present substantial evidence supporting his conviction. 3 He further argues the Because we vacate the conviction and sentence for possession of marijuana for sale, we limit our discussion of the issues on appeal to only the transportation of marijuana for sale offense. 3 evidence did not support the jury s verdict. 4 makes these arguments separately, we Although Flores address them together because our analysis under each argument is the same. Ariz. R. Crim. P. 20(a); State v. West, 226 Ariz. 559, 562, ¶¶ 15 16, 250 P.3d 1188, 1191 (2011) (inquiry under Rule 20 is whether State presented substantial evidence, that is, such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt ) (citation omitted); State v. Sharma, 216 Ariz. 292, 294, ¶ 7, 165 P.3d 693, 695 (App. 2007) (review of sufficiency of the evidence supports is limited to whether substantial Based on our novo verdicts). de review evidence of the evidence, the State presented substantial evidence of his guilt. West, 226 Ariz. at 562, ¶ 15, 250 P.3d at 1191 (sufficiency of evidence is issue of law subject to de novo review on appeal). ¶6 At trial, the State introduced what amounted to expert testimony from the narcotics detectives who had surveilled the house They and who were essentially also experienced testified about the in drug modus investigations. operandi of drug trafficking and explained how the circumstances suggested Flores was knowingly involved in an ongoing 4 marijuana trafficking To convict Flores on the transportation of marijuana for sale charge, the State was required to prove he knowingly transported marijuana for sale. A.R.S. § 13-3405(A)(4); Rev. Ariz. Jury Instr. Stand. Crim. 34.0541. 4 operation and not merely present in the SUV when it was stopped by police. P.3d 328 See generally State v. Gonzalez, 229 Ariz. 550, 278 (App. operation of defendant s 2012) drug trial (modus operandi trafficking for evidence organization transportation of regarding admissible dangerous drugs at for sale). ¶7 As one detective explained, the departure of the woman before the SUV s arrival signaled something was going to happen, because drug dealers usually have family members leave the area before engaging in a drug transaction. also noted the back passenger seat was The detective folded forward to create more storage room so the marijuana would not stick above the windows and the quantity of marijuana found, 260 pounds, was an amount for sale rather than for personal use. And, of critical importance here, the detectives testified that because of the large amount of marijuana involved and the dangerous nature of the narcotics business, drug dealers would not have allowed outsiders to tag along for a ride, and passengers in a vehicle carrying the amount of drugs police found in the SUV would very likely not be just catching a ride, but would have to be trustworthy, and know what is going on, be the owners of the drugs, or work for the owners. ¶8 The detectives further explained that passengers in a drug-trafficking vehicle are generally participants in the crime 5 to some degree: they usually facilitate the driver in countersurveillance where and as lookouts, who they are and to may possess contact. information Additionally, of they explained Flores, the front-seat passenger, could absolutely see and smell the marijuana, which was only [a]n elbow length from him and had a strong, distinct odor. The detectives also testified the wrapping materials and the digital scale in the SUV further indicated Flores was en route to meet buyers to sell the marijuana. ¶9 This evidence, when combined with Flores s statements to police he was aware of the marijuana and its illegality, constituted substantial evidence from which a reasonable jury could conclude marijuana for Flores sale. was transporting Sufficient evidence the 260 thus pounds supported of the superior court s denial of Flores s Rule 20 motion and the jury verdict. II. Prosecutorial Misconduct ¶10 Flores constitutional introduced argues right facts not to in the a prosecutor fair evidence trial and when violated he encouraged his improperly the jury to consider his race, character, and decision not to testify at trial in deciding his guilt or innocence by, in closing rebuttal argument, asking the jury to look at him to determine whether he was involved in a drug sale. 6 ¶11 In rebuttal closing argument, the prosecutor argued as follows: [Prosecutor:] Firmly convinced is all you have to be, not beyond any doubt, just beyond a reasonable doubt. Does reasonable doubt really exist in this case? What would a not guilty verdict mean? It means you think that two people carrying a large quantity of drugs picked up a hitchhiker and let him tag along to their drug sale. [Defense counsel]: Objection, facts not in evidence. Your Honor, [Prosecutor]: It also means that the defendant just happened to be in a car going to a drug sale. With that much drugs, that much money at stake, he happened to be merely present. He happened to know what was going on but wasn t involved somehow. It makes no sense, it makes zero sense that they would allow something like that to happen. You don't let someone in the fold unless they know what was going on, unless they re part of the organization, unless they re part of the deal. That is the evidence you have to consider. That is the evidence that shows this is beyond a reasonable doubt. There is no question, ladies and gentlemen, that the defendant was involved. You can look at him for yourselves and make that determination this is a guy who s along for experience and knowledge. This is not a guy along for the muscle.[5] 5 The court did not rule on defense counsel s objection. On appeal, the State argues we should apply fundamental error review to Flores s prosecutorial misconduct argument because he did not, as he has done on appeal, argue the prosecutor's reference to his appearance violated his constitutional rights and instead raised a facts not in evidence objection. Although the issue might be debatable, we apply a harmless error standard because, at bottom, Flores s core argument on appeal -- 7 ¶12 We agree the prosecutor should not have commented on Flores s appearance. In State v. Payne, 232 Ariz. 360, 386, ¶ 131, 306 P.3d 17, 43 (2013), our supreme court recognized a prosecutor s comment on a defendant s affect at trial could, depending on implicate a the circumstances, defendant s right have not to dubious testify, relevance, and call jury s attention to evidence not presented at trial. the Although the court did not hold such statements are always improper, it recognized such a determination would depend on the totality of the circumstances. ¶13 Because Id. the circumstances presented here contain no suggestion Flores s appearance or behavior during the trial was in any way testimonial - by gesture, display of emotion, or word -- the prosecutor s argument to the jury that it should look at Flores to decide whether he was involved in a drug sale was improper, as he was asking the jury to assess guilt or innocence based introduced into on facts evidence. - Flores s See generally appearance United - States not v. Mendoza, 522 F.3d 482 (5th Cir. 2008) (cited in Payne, 232 Ariz. at 386, ¶¶ 130-131, 306 P.3d at 43); Bryant v. State, 741 A.2d 495 (Md. App. 1999); Bowser v. State, 816 S.W.2d 518 (Tex. Ct. App. 1991); see also Perez v. Territory, 12 Ariz. 16, 94 P. 1097 that the prosecutor s statement to the jury that it should look at him to decide guilt -- is grounded on facts not in evidence. 8 (Ariz. Terr. 1908) (prosecutor s characterization of defendants in opening statement as having crime stamped on their faces was reversible error). ¶14 Reviewing error, we will the not prosecutor s reverse argument Flores s for conviction harmless unless the comment was so prejudicial that it effectively deprived him of due process and a fair trial. State v. Gallardo, 225 Ariz. 560, 568, ¶¶ 34-35, 242 P.3d 159, 167 (2010). here. That did not happen The prosecutor s remark was an isolated incident, and did not permeate[] the entire atmosphere of the trial. 568, ¶ 34, 242 P.3d at 167 (citation omitted). prosecutor evidence prefaced that, as the he comment argued, by Further, the emphasizing demonstrated Id. at the [y]ou trial don t let someone in the fold unless they know what was going on, unless they re part of the organization, unless they re part of the deal. ¶15 cases Additionally, unlike the inflammatory remarks in the Flores Flores s abusive States relies courtroom manner v. to Schuler, on, the demeanor incite 813 prosecutor or the F.2d did appearance jury 978 against (9th Cir. not in a characterize demeaning or him. Cf. United 1987) (prosecutor implied defendant s laughter indicated lack of remorse); United States v. Carroll, 678 F.2d 1208 (4th Cir. 1982) (prosecutor 9 stated defendant s courtroom behavior showed he knew more than his lawyer because he was at the crime scene). ¶16 Finally, we do not view the prosecutor s comment as a deliberate attempt to direct the jury s attention to Flores s race, argues character, on or his decision not to The comment was directed appeal. testify at as he the also trial evidence demonstrating Flores s involvement in a drug sale, not at his race, character, or decision not to testify. See, e.g., State v. McCutcheon, 159 Ariz. 44, 45, 764 P.2d 1103, 1104 (1988) (to constitute constitutional error, prosecutor s comment must be calculated to direct the jurors attention to defendant s failure to take the stand). III. Possession of Marijuana for Sale Conviction ¶17 After this case was fully briefed and thus at issue, we requested supplemental briefing on whether the possession of marijuana for sale charge was incidental to the transportation of marijuana for sale charge such that the former charge was a lesser-included offense of the latter charge Flores from being convicted of both offenses. thus preventing See generally State v. Chabolla-Hinojosa, 192 Ariz. 360, 965 P.2d 94 (App. 1998); see also State v. Cheramie, 218 Ariz. 447, 189 P.3d 374 (2008) (citing Chabolla-Hinojosa with approval). We note Flores did not raise this issue in the superior court; thus, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, 10 ¶ 19, 115 P.3d 601, 607 (2005); State v. Musgrove, 223 Ariz. 164, 167, ¶ 10, 221 P.3d 43, 46 (App. 2009) (double jeopardy violations are fundamental error). ¶18 In its supplemental brief, the State conceded error, and we agree with its concession. The possession offense was incidental offense, to the transportation therefore offense, because transported the marijuana without marijuana. See Chabolla-Hinojosa, 192 Ariz. at 363, ¶ 13, 965 at 97. Therefore, double could necessarily jeopardy not a lesser-included P.2d Flores and possessing protects have the [Flores] against further prosecution for the possession of marijuana for sale offense. vacate the Id. at 362-63, ¶ 10, 965 P.2d at 96-97. possession of marijuana sentence. 11 for sale Thus, we conviction and CONCLUSION ¶19 For the foregoing reasons, we affirm Flores s conviction and sentence for transportation of marijuana for sale and vacate his conviction and sentence for possession marijuana for sale. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ ANDREW W. GOULD, Judge 12 of

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