Court of Appeals of Arizona, Second Division, Division A
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CR201100683 Honorable Wallace R. Hoggatt, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and David A. Sullivan Tucson Attorneys for Appellee
Lorona Mead, PLC By Jess A. Lorona Phoenix Attorneys for Appellant
JOSEPH W. HOWARD, Chief Judge
¶1 After a jury trial, appellant James Flores was convicted of possession of a dangerous drug for sale and possession of drug paraphernalia. On appeal, Flores argues the state improperly influenced a defense witness's decision to testify. He also claims that insufficient evidence supported his conviction for possession of drug paraphernalia and the trial court erred in denying his motion for a judgment of acquittal. Because we find no error, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). In August 2011, Officer Thiess observed a car driving erratically through an alleyway in Huachuca City. Thiess followed the car and, after the car stopped on its own, made contact with Flores. After running a status check on Flores's identification and discovering "issues, " Thiess placed Flores under arrest. He then requested a border patrol agent to conduct a canine sniff of the vehicle. The canine alerted to the presence of drugs and Thiess searched the car, removing a purse from the vehicle. Inside the purse he found a mirror with methamphetamine residue on it and a purple Crown Royal bag containing a smoking device, a digital scale, and a plastic bag with methamphetamine. Flores admitted that the Crown Royal bag was his and that he had placed it inside the purse.
¶3 Flores was charged with and convicted of possession of a dangerous drug for sale and possession of drug paraphernalia. He was sentenced to concurrent prison terms, the longest of which was ten years. Flores appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
¶4 Flores first argues the state impermissibly interfered with a defense witness's decision to testify, thereby violating Flores's due process rights. He did not raise this argument below; instead Flores decided not to call the witness, specifically declining to state the reasons for his decision. Flores has therefore forfeited the right to seek relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). In his opening brief, however, Flores does not argue that the error is fundamental or prejudicial. He attempted to cure this deficiency in his reply brief, but we will not consider arguments first raised in a reply brief See State v. Cannon, 148 Ariz. 72, 79, 713 P.2d 273, 280 (1985). Because he did not adequately argue this issue on appeal, and because we find no error that can be characterized as fundamental, the argument is waived. State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (failure to argue alleged error fundamental waives issue on appeal); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it finds it).
Sufficiency of the Evidence
¶5 Flores next argues the trial court erred in denying his motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P., because insufficient evidence supported his conviction for possession of drug paraphernalia. He claims the state did not adduce any evidence connecting him to the mirror as charged in the indictment. Whether the evidence presented at trial was sufficient to support a defendant's conviction is a legal question we review de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). "'[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
¶6 Section 13-105(34), A.R.S., defines "[p]ossess" as "knowingly to have physical possession or otherwise to exercise dominion or control over property." In interpreting the statute, we have said that "[o]ne who exercises dominion or control over property has constructive possession of it even if it is not in his physical possession." State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 13, 965 P.2d 94, 97 (App. 1998). Additionally, "[p]ossession may be actual or constructive." State v. Gonsalves, 231 Ariz. 521, ¶ 9, 297 P.3d 927, 929 (App. 2013). The state may prove constructive possession through direct or circumstantial evidence, so long as the evidence shows by "specific facts or circumstances that the defendant ...