State v. West ( 2016 )


Menu:
  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    LAMONT MOLNAR WEST, Appellant.
    No. 1 CA-CR 15-0433
    FILED 7-26-2016
    Appeal from the Superior Court in Maricopa County
    No. CR 2013-446784-001
    The Honorable Daniel J. Kiley, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Myles A. Braccio
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Joseph L. Hermes
    Counsel for Appellant
    STATE v. WEST
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
    which Judge Peter B. Swann and Judge Jon W. Thompson joined.
    O R O Z C O, Judge:
    ¶1           Lamont Molnar West (Defendant) appeals his conviction and
    sentence for one Count of possession or use of marijuana, a class one
    misdemeanor. For the following reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2            In December 2012, Officer Steven Gilbert of the Gilbert Police
    Department stopped a vehicle for a cracked windshield. Thereafter, Officer
    Gilbert contacted the driver, Defendant, and smelled unburned marijuana
    coming from the vehicle. Officer Gilbert also noted a vial sticking out of
    Defendant’s pocket containing a green leafy substance. Defendant showed
    no signs of impairment.
    ¶3            After exiting the vehicle, Defendant told Officer Gilbert that
    no marijuana was in the vehicle, and that the vial in his pocket contained
    spice. Defendant also stated that he does not smoke marijuana, but he does
    smoke spice. Officer Gilbert did not ask whether Defendant had a medical
    marijuana card. Based on the marijuana odor, Officer Gilbert placed
    Defendant in his patrol car, without handcuffs, and searched Defendant’s
    vehicle for marijuana. The search uncovered a baggie of marijuana under
    the driver’s seat. Defendant was arrested and charged with one count of
    possession or use of marijuana, a class 6 felony. The parties later agreed to
    designate the charged offense as a class 1 misdemeanor.
    ¶4           Defendant filed a motion to suppress and at the hearing,
    Defendant argued that Officer Gilbert did not have probable cause to search
    Defendant’s vehicle. Defendant contended that after passage of the
    Arizona Medical Marijuana Act (AMMA), the smell of marijuana alone
    does not make the incriminating character of the marijuana immediately
    apparent. Rather, Defendant argued that upon smelling marijuana, officers
    must then establish whether a suspect is a cardholder under the AMMA.
    Only after establishing that a suspect is not a cardholder would the
    incriminating character of the marijuana be apparent, thereby furnishing
    2
    STATE v. WEST
    Decision of the Court
    probable cause for a search. The trial court denied Defendant’s motion to
    suppress, reasoning:
    I do not believe that the Medical Marijuana Act undoes well-
    established case law that when the police smell odor of
    marijuana emanating from a vehicle that establishes probable
    cause for a search. I think that probable cause is not negated
    by the possibility that there’s an innocent explanation for the
    facts known to the officer.
    ¶5            After a bench trial in May 2015, the trial court found
    Defendant guilty of one count of possession or use of marijuana, a class 1
    misdemeanor.1 The trial court suspended imposition of the sentence,
    placed Defendant on unsupervised probation for one year, and imposed a
    $750 fine. Defendant timely appealed and we have jurisdiction pursuant to
    Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
    Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031, and -4033.A.1 (West 2016).2
    DISCUSSION
    I.     Motion to Suppress
    ¶6             Defendant first contends that the trial court erred in denying
    his motion to suppress because the only evidence supporting probable
    cause for the search of his vehicle was the odor of marijuana. We review
    the denial of a motion to suppress for abuse of discretion, State v. Manuel,
    
    229 Ariz. 1
    , 4, ¶ 11 (2011), but review legal issues de novo. State v. Moody,
    
    208 Ariz. 424
    , 445, ¶ 62 (2004). We consider only the evidence presented at
    the suppression hearing and do so in the light most favorable to sustaining
    the trial court’s ruling. See State v. Blackmore, 
    186 Ariz. 630
    , 631-32 (1996).
    ¶7           An officer may conduct a warrantless search and seizure of
    contraband under the plain smell doctrine if (1) the officer is lawfully in a
    position to smell the contraband; (2) the incriminating character of the
    object is immediately apparent; and (3) the officer has a lawful right to
    access the object. State v. Baggett, 
    232 Ariz. 424
    , 428, ¶ 16 (App. 2013).
    Officer Gilbert was lawfully in a position to smell the marijuana in
    1     The parties agreed that Officer Gilbert’s testimony at the suppression
    hearing could be considered at the bench trial in lieu of him offering new
    testimony on the same subjects.
    2     We cite the current version of applicable statutes when no revisions
    material to this decision have since occurred.
    3
    STATE v. WEST
    Decision of the Court
    Defendant’s vehicle, and had a lawful right of access. Additionally, the
    smell of marijuana furnished sufficient probable cause to Officer Gilbert
    that marijuana was present and thus, that a crime was being or had been
    committed. See 
    id. at 428,
    ¶ 18 (reasoning that smell of marijuana from
    backpack made its incriminating character immediately apparent); State v.
    Harrison, 
    111 Ariz. 508
    , 509 (1975) (finding that the odor of marijuana
    furnished probable cause). Therefore, the trial court did not abuse its
    discretion by denying Defendant’s motion to suppress.
    ¶8             Defendant argues that the AMMA now requires something
    beyond plain smell to furnish probable cause for a warrantless search, but
    the Arizona Supreme Court has recently rejected that theory. See State v.
    Sisco, CR-15-0265-PR, slip op. at 9, ¶ 26 (Ariz. July 11, 2016) (the illegality of
    marijuana “in Arizona and AMMA’s limited exceptions thereto support
    finding probable cause based on the smell or sight of marijuana alone
    unless, under the totality of the circumstances, other facts would suggest to
    a reasonable person that the marijuana use or possession complies with the
    AMMA”); see also State v. Cheatham, CR-15-0286-PR, slip op. at 4, ¶ 11 (Ariz.
    July 11, 2016) (concluding that when an officer smells marijuana emanating
    from a vehicle, the officer “ha[s] probable cause to believe the vehicle
    contain[s] contraband or evidence of criminal activity”). “[A]n officer
    would be required to consider any indicia of AMMA-compliant possession
    or use, and such facts . . . might dispel probable cause that otherwise exists
    based on odor alone.” Cheatham, CR-15-0286-PR, slip op. at 4, ¶ 12.
    Defendant offered no evidence that he was a cardholder under the AMMA
    at the time of his arrest. Therefore, the trial court did not err in denying the
    motion to suppress.
    II.    Sufficiency of the Evidence
    ¶9             Defendant also asserts that “the State failed to present
    sufficient evidence as to the element of knowledge and thereby a rational
    trier of fact could not reasonably conclude guilt.” A conviction must be
    based on “substantial evidence.” See Ariz. R. Crim. P. 20.a; State v. Mathers,
    
    165 Ariz. 64
    , 67 (1990). “[T]he question is whether there was sufficient
    evidence so that a rational trier of fact could have found guilt beyond a
    reasonable doubt.” State v. Reinhardt, 
    190 Ariz. 579
    , 588 (1997). On appeal,
    we do not consider whether we would reach the same outcome as the trial
    court; rather, we consider “only if there is a complete absence of probative
    facts to support its conclusion.” State v. Carlisle, 
    198 Ariz. 203
    , 206 (App.
    2000) (internal punctuation and citation omitted). Whether evidence is
    sufficient to sustain a verdict is a question of law we review de novo. See
    State v. West, 
    226 Ariz. 559
    , 562, ¶ 15 (2011). We view the evidence in the
    4
    STATE v. WEST
    Decision of the Court
    “light most favorable to sustaining the verdict, and resolve all reasonable
    inferences against the defendant.” 
    Reinhardt, 190 Ariz. at 588-89
    .
    ¶10           Under A.R.S. § 13-3405.A.1, “[a] person shall not knowingly
    [p]ossess or use marijuana.” “’Knowingly’ means, with respect to conduct
    or to a circumstance described by a statute defining an offense, that a person
    is aware or believes that the person’s conduct is of that nature or that the
    circumstance exists.” A.R.S. § 13-105.10(b). “’Possess’ means knowingly to
    have physical possession or otherwise to exercise dominion or control over
    property.” A.R.S. § 13-105.34. Possession may be actual or constructive.
    State v. Gonsalves, 
    231 Ariz. 521
    , 523, ¶ 9 (App. 2013). The State can prove
    constructive possession though direct or circumstantial evidence, as long as
    the evidence shows by “specific facts or circumstances that the defendant
    exercised dominion or control” over the property. State v. Villalobos Alvarez,
    
    155 Ariz. 244
    , 245 (App. 1987). A person’s mere presence at the location
    where an item is located is insufficient to prove dominion or control. State
    v. Miramon, 
    27 Ariz. App. 451
    , 452 (1976).
    ¶11            Sufficient evidence supported the trial court’s verdict here.
    Officer Gilbert testified that he found the marijuana under the driver’s seat
    of the vehicle that Defendant was driving. The record contains no evidence
    of other occupants in the vehicle. The odor of the marijuana was strong
    enough that Officer Gilbert recognized it while standing beside the vehicle.
    Based on this evidence, a reasonable inference arises that Defendant was
    aware of the marijuana under his seat and that it was under Defendant’s
    dominion or control. See Carroll v. State, 
    90 Ariz. 411
    , 413-14 (1962) (“There
    must be a presentation of a specific fact from which the [factfinder] may
    reasonably infer the defendant knew of the existence of the narcotic as
    found in his immediate vicinity before he may be chargeable with its
    possession.”). Because we resolve all reasonable inferences against
    Defendant, see 
    Reinhardt, 190 Ariz. at 588-89
    , there was sufficient evidence
    that he knowingly possessed the marijuana at the time of his arrest.
    5
    STATE v. WEST
    Decision of the Court
    CONCLUSION
    ¶12           For the foregoing reasons, we affirm the trial court’s verdict
    and the resulting sentence.
    :AA
    6