State v. Ramos ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
MICHAEL RUDY RAMOS, Appellant.
No. 1 CA-CR 17-0604
FILED 9-27-2018
Appeal from the Superior Court in Mohave County
No. S8015CR201700229
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. RAMOS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.
C A M P B E L L, Judge:
¶1 Michael Rudy Ramos timely appeals his convictions and
sentences for possession of dangerous drugs for sale, possession of narcotic
drugs, misconduct involving weapons, possession of marijuana, and two
counts of possession of drug paraphernalia. He argues the jury had
insufficient evidence to find him guilty of the charges. For the reasons that
follow, we affirm.
BACKGROUND
¶2 Highway Patrol Detectives Cortez and Stopke were on patrol
when they saw a car swerve outside of its lane. Suspecting the driver was
under the influence, the detectives conducted a traffic stop.
¶3 Detective Cortez approached the car and asked Ramos, the
driver, if he had any contraband—such as guns, methamphetamine, or
marijuana—inside the car. Ramos appeared to be nervous, looking around
the interior of the car and towards the passenger before replying that there
were no drugs or guns in the car. Detective Cortez asked Ramos to exit the
car and began to issue him a warning for unsafe lane usage.
¶4 Meanwhile, Detective Stopke asked the passenger to exit the
car and asked her for identification. She stated she did not have her
identification, but explained she had her cousin’s identification in her
purse, which she provided to the Detective. He relayed this information to
Detective Cortez, who went over to the car to speak with her. As Detective
Cortez questioned the passenger, she asked if she could smoke a cigarette.
He allowed her to enter the car to retrieve a lighter. When she opened the
door, Detective Cortez smelled an odor of marijuana coming from inside
the car. Detective Cortez asked Ramos and the passenger if either of them
had a medical marijuana card. Ramos and the passenger both said they did
not, and Ramos stated there was no marijuana in the car. Based on the odor
of marijuana and Ramos’ and the passenger’s statements that they did not
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STATE v. RAMOS
Decision of the Court
have a medical marijuana card, Detective Cortez determined there was
probable cause to search the car.
¶5 In searching the car, Detective Cortez found a
methamphetamine pipe in the passenger seat-back pocket. He also found a
men’s personal hygiene bag under a pile of clothes on the backseat. Inside
the bag were men’s razors, deodorant, a prescription pill bottle with Ramos’
name on it, and a cardboard box that was held shut by a hair tie. When he
opened the cardboard box, Detective Cortez found what appeared to be an
ounce of methamphetamine, some marijuana, a small amount of cocaine, a
digital scale, and several sandwich bags, one of which had the corners cut
off. Detective Stopke also searched the car and found a gun wedged
between the driver’s seat and the center console.
¶6 Ramos was indicted on one count of possession of dangerous
drugs for sale (methamphetamine), one count of possession of narcotic
drugs for sale (cocaine), one count of possession of marijuana, one count of
misconduct involving weapons (possessing a deadly weapon during the
commission of a felony), and two counts of possession of drug
paraphernalia.1
¶7 At trial, Detectives Cortez and Stopke testified that they have
received training regarding the sale of drugs and items typically used in the
sale of drugs, including methamphetamine. Detective Stopke also testified
that possession of an ounce of methamphetamine is “indicative of someone
who is in the business of selling methamphetamine.” Detective Stopke
testified that in his experience, people who are in the business of selling
methamphetamine carry firearms to protect themselves. Detective Cortez
identified the pipe found in the car as a methamphetamine pipe and
testified that in drug sales cases, he occasionally finds pipes because
“sometimes people buy drugs and they want to use right there.” He also
said that people in the business of selling drugs typically use paraphernalia
such as scales and bags. He testified that when corners are cut off a plastic
bag, the plastic corners are typically used as additional containers for drug
1 Ramos was originally indicted on two counts of misconduct involving
weapons (counts 3 and 4). Prior to trial, the superior court severed count 3
and renumbered the remaining counts. At trial, the State moved to dismiss
the “for sale” allegation in the count of possession of narcotic drugs for sale,
without objection. The court granted the State’s oral motion and dismissed
the “for sale” allegation with prejudice.
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STATE v. RAMOS
Decision of the Court
sales. Finally, Detective Cortez testified that a primary indicator of a drug
sales verses a simple possession case is the quantity of drugs: the larger the
amount, the more likely that it is a sales case.
¶8 A forensic scientist tested the substances from Ramos’ car and
determined that the substances were .53 grams of marijuana, 5.02 grams of
cocaine, and 28.4 grams of methamphetamine.
¶9 A jury found Ramos guilty on all six counts. After sentencing,
he filed a timely notice of appeal.
DISCUSSION
¶10 As the sole issue on appeal, Ramos contends that his
convictions should be reversed because the jury lacked sufficient evidence
to find him guilty. We review claims of sufficiency of the evidence de novo.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). In reviewing the sufficiency of
the evidence, this court examines the evidence in the light most favorable
to sustaining the verdict and resolves all reasonable inferences against the
defendant. State v. Rienhardt, 190 Ariz. 579, 588-89 (1997).
¶11 Ramos first challenges his convictions for sufficiency of the
evidence for possession of narcotic drugs, possession of marijuana, and
possession of drug paraphernalia. Ramos focuses on the fact that the box
containing the drugs was held shut by a hair tie and was within reach of
both him and the passenger. Additionally, he cites the absence of
fingerprints on the box and any admissions regarding who the box
belonged to. In order to prove the defendant possessed drugs and
paraphernalia, the State must prove, among other things, “either actual
physical possession or constructive possession with actual knowledge of
the presence of the . . . substance.” State v. Teagle, 217 Ariz. 17, 27, ¶ 41 (App.
2007). “Constructive possession can be established by showing that the
accused exercised dominion and control over the drug itself, or the location
in which the substance was found.” Id. Exclusive, immediate, and personal
possession of drugs is not necessary to establish constructive possession.
State v. Carroll, 111 Ariz. 216, 218 (1974). Possession may be sole or joint and
two or more persons may have joint possession of drugs if they share actual
or constructive possession. See State v. Saiz, 106 Ariz. 352, 355 (1970). The
presence of the passenger and her belongings in Ramos’ car does not
diminish his guilt—exclusive possession of the drugs is not required. Thus,
there was sufficient evidence that Ramos constructively possessed the
drugs.
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STATE v. RAMOS
Decision of the Court
¶12 Ramos next challenges his conviction for possession of
dangerous drugs for sale, arguing there was insufficient evidence that he
possessed the methamphetamine found in the car with intent to sell. Ramos
contends, because the amount of methamphetamine in the car could have
been possessed for personal use, the evidence was insufficient to permit the
jury to find beyond a reasonable doubt that it was possessed for sale. We
disagree.
¶13 The State presented testimony from two officers
knowledgeable in drug sales. A police officer’s expert testimony concerning
whether drugs were possessed for sale is admissible. State v. Carreon, 151
Ariz. 615, 617 (App. 1986). Both officers testified that the quantity of and
paraphernalia found with the methamphetamine was indicative of
possession for sale. Thus, the officers’ testimony in this case was sufficient
to permit a finding that the methamphetamine was possessed for sale.
¶14 Finally, Ramos argues there was insufficient evidence to
support his conviction for misconduct involving weapons. A person
commits misconduct involving weapons if he knowingly uses or possesses
a deadly weapon during the commission of any felony drug offense. A.R.S.
§ 13-3102(A)(8). In addition to proving possession of the weapon, “[t]he
state must prove that the defendant intended to use or could have used the
weapon to further the felony drug offense underlying the weapons
misconduct charge.” State v. Petrak, 198 Ariz. 260, 266, ¶ 19 (App. 2000)
(emphasis added). Ramos contends that rather than be used in furtherance
of a drug offense, the gun could have been possessed “independently for
self-defense.” Factors tending to show a weapon could be used to facilitate
a drug offense include the proximity and accessibility of the weapon to the
defendant and to the site of the drug offense. Id. Here, Ramos’ gun was
within his immediate reach at the time he had methamphetamine, cocaine,
and marijuana in his car. Given this evidence, the jury could have
reasonably found that Ramos used, intended to use, or could have used the
gun to further the underlying drug offenses.
¶15 The evidence presented at trial was sufficient for the jury to
conclude that Ramos constructively possessed the 28 grams of
methamphetamine for sale, and that he possessed the marijuana, cocaine,
and paraphernalia found in his car. On this record, the jury also had
sufficient evidence to find Ramos guilty of misconduct involving weapons.
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STATE v. RAMOS
Decision of the Court
CONCLUSION
¶16 For the foregoing reasons, we affirm the convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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