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State v. Pena

Court of Appeals of Arizona, First Division, Department D

October 29, 2013

STATE OF ARIZONA, Appellee,
v.
JULIAN PENA, Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-132936-002 The Honorable Daniel G. Martin, Judge

Thomas C. Horne, Arizona Attorney General Phoenix By Andrew Reilly, Assistant Attorney General Attorneys for Appellee

Marty Lieberman, Maricopa County Office Phoenix of the Legal Defender By Cynthia D. Beck, Deputy Legal Defender Attorneys for Appellant

MEMORANDUM DECISION

BROWN, Judge

¶1 Julian Pena appeals from his conviction and sentence for misconduct involving weapons. He argues the trial court erred in denying his motion for judgment of acquittal because the only evidence the State presented at trial that Pena possessed a firearm was his uncorroborated confession. For the following reasons, we affirm.

BACKGROUND[1]

¶2 On the night of June 27, 2011, a police officer responded to an emergency call of "shots-fired" at a residence. When the officer arrived, he conducted a protective sweep of the scene. There were numerous people in the vicinity; the officer also noticed a vehicle parked in front of the residence. Using his flashlight, he looked in the vehicle and saw a rifle on the rear passenger seat. He also noticed there were pizza boxes partially covering the rifle.

¶3 While speaking with Antonio Gonzales, [2] who was in the front yard of the residence, the officer learned that Gonzales had been a passenger in the vehicle with Pena. The officer asked Gonzales whether he had a felony conviction, which Gonzales admitted. The officer then gave Gonzales his Miranda[3]warning. Gonzales acknowledged the warning and admitted he knew there was a rifle inside the vehicle, and because he had touched it, his DNA and fingerprints could possibly be on the rifle. Gonzales also admitted he knew he was a "prohibited possessor" and that "he could not be around guns." Gonzales added that Pena had been in the front passenger seat of the car that evening.

¶4 While speaking with Pena, the officer asked Pena if he had a felony conviction, and Pena admitted he had prior felony convictions. The officer also read Pena the Miranda warning, and Pena acknowledged he understood and agreed to proceed with the conversation. Pena admitted he had been in the front passenger seat of the car and that prior to the officer arriving on scene he tried to conceal the rifle by moving it. He also said that the rifle belonged to someone else who fled from the scene. Finally, Pena stated that he knew the rifle was in the car and that as a convicted felon he could not be around guns.

¶5 Pena was indicted for misconduct involving weapons for knowingly possessing a deadly weapon, while being a prohibited possessor in violation of Arizona Revised Statutes ("A.R.S.") section 13-3102(4). Neither Pena nor Gonzales appeared for trial and were tried in absentia. The State's primary evidence against Pena consisted of the officers' testimony and the proof of Pena's prior felony convictions. Testimony was also given that a latent fingerprint taken from the rifle could not be matched to Pena.

¶6 After the state rested, Pena moved for a judgment of acquittal, arguing there was insufficient evidence that Pena had exercised dominion and control over the rifle to establish possession and that the only evidence of his presence near the weapon were his statements made to the police. The trial court denied Pena's motion. The jury found Pena guilty as charged and he was sentenced to a presumptive term of ten years imprisonment. Pena timely appealed.

DISCUSSION

¶7 Pena argues that the trial court abused its discretion in denying his motion for judgment of acquittal because the only evidence presented at trial that he possessed a firearm was his confession without ...


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