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State v. Flores

Court of Appeals of Arizona, First Division, Department B

October 15, 2013

STATE OF ARIZONA, Appellee,
v.
RICARDO GONZALEZ FLORES, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court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

Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals and Jana Zinman, Assistant Attorney General Attorneys for Appellee

James J. Haas, Maricopa County Public Defender Phoenix By Mikel P. Steinfeld, Deputy Public Defender Attorneys for Appellant

MEMORANDUM DECISION

PATRICIA K. NORRIS, 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 Rules of Criminal Procedure; second, the State failed to present sufficient evidence to support his convictions; and third, the State engaged in prosecutorial misconduct during closing argument.

¶2 We disagree with Flores's arguments and affirm his conviction and sentence for transportation of marijuana for sale. 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 April 28, 2006, two narcotics detectives surveilled a house suspected of being a "stash 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, 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. Approximately 15 minutes later, the SUV drove out of the garage. 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. He further argues the evidence did not support the jury's verdict.[4] Although Flores makes these arguments separately, we 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 is limited to whether substantial evidence supports verdicts). Based on our de novo review 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 and who were also experienced in drug investigations. They essentially testified about the modus operandi of drug trafficking and explained how the circumstances suggested Flores was knowingly involved in an ongoing marijuana trafficking operation and not merely present in the SUV when it was stopped by police. See generally State v. Gonzalez, 229 Ariz. 550, 278 P.3d 328 (App. 2012) (modus operandi evidence ...


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