State v. Burgess ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JEREMIAH MICHAEL BURGESS, Appellant.
No. 1 CA-CR 18-0811
FILED 12-31-2019
Appeal from the Superior Court in Mohave County
No. S8015CR201800673
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Gracynthia Claw
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. BURGESS
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined.
M O R S E, Judge:
¶1 Jeremiah Michael Burgess appeals his convictions and
sentences for possession of dangerous drugs for sale and possession of drug
paraphernalia. For the reasons that follow, we affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 On April 21, 2018, law enforcement lawfully stopped a truck
Burgess was driving. A passenger, J.R., was seated in the front passenger
seat, and there was a dog in the back seat. Burgess was not the registered
owner of the truck. Because neither occupant possessed a valid Arizona
driving license, and Burgess's California driving privileges were
suspended, the officer informed Burgess that the truck would be towed and
impounded and the officer would perform an inventory search.
¶3 Following a delay after Burgess locked the keys in the truck,
the officer performed an inventory search of the vehicle and discovered two
bags under the front passenger seat, one in "plain view," that contained
white crystalline substances. A criminalist confirmed that the substances
were methamphetamine, a dangerous drug, and weighed approximately
7.63 ounces (216.1 grams). The bag that was in plain view contained
approximately two ounces (55.5 grams) of methamphetamine, and the
other bag held approximately 5.7 ounces (160.6 grams). At trial, a detective
specializing in drug trafficking investigations testified that an ounce of
methamphetamine would sell for around $250 and each ounce could bring
in around $700 if sold by the gram. The detective told the jury that an
amount of this weight and value, especially in a "local [Mohave County]
case," was relatively large and indicated possession for sale, as opposed to
possession for personal use. The detective further testified that the average
1 We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Burgess. State v.
Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
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STATE v. BURGESS
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methamphetamine user would typically ingest 0.1 grams per single dose,
at a cost of between five and ten dollars, and the most commonly sold
amount for personal use in Mohave County was twenty dollars.
¶4 The State charged Burgess with one count of possession of
dangerous drugs for sale, a class 2 felony, and one count of possession of
drug paraphernalia, a class 6 felony. Following a two-day trial, a jury
convicted Burgess as charged. The superior court sentenced Burgess to an
aggregate term of fifteen years' imprisonment, and he timely appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).2
DISCUSSION
I. Burgess's Motion to Continue.
¶5 Burgess argues that the superior court improperly denied his
motion to continue trial so that he could retain private counsel. We review
the superior court's denial of a motion to continue for an abuse of discretion.
State v. Forde, 233 Ariz. 543, 555, ¶ 18 (2014) (citations omitted). We review
constitutional and legal determinations de novo. State v. Davolt, 207 Ariz.
191, 201, ¶ 21 (2004).
¶6 The superior court conducted Burgess's arraignment on May
10, 2018, at which he was represented by the Mohave County Public
Defender's Office. The Mohave County Legal Defender's Office entered its
appearance on behalf of Burgess on June 15, 2018. Following Burgess's
invocation of his right to a speedy trial at a hearing on June 26, 2018, the
superior court scheduled trial for August 6, 2018, in compliance with
procedural timelines. During a final management conference on July 18,
2018, Burgess moved to continue trial for two weeks. Although Burgess
did not provide a reason for the request, the superior court granted his
motion and rescheduled trial for August 20, 2018. At that time, Burgess did
not request new counsel or inform the court that he desired to retain private
counsel.
¶7 Burgess failed to attend a subsequent final management
conference on August 1, 2018, where the court affirmed the scheduled trial
date of August 20, 2018. On August 7, 2018, Burgess moved to continue
trial again (specifically, his motion asked the court to vacate the jury trial
2 Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.
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STATE v. BURGESS
Decision of the Court
and set a status conference) and asserted only that he "wants to hire a
private counsel." The superior court denied the motion.
¶8 The Sixth Amendment guarantees criminal defendants the
right to representation by counsel. U.S. Const. amend. VI; see also Ariz.
Const. art. 2, § 24; Ariz. R. Crim. P. 6.1. A defendant also has a constitutional
right "to choose representation by non-publicly funded private counsel[.]"
Robinson v. Hotham, 211 Ariz. 165, 169, ¶ 16 (App. 2005). But the right is not
absolute, and the superior court maintains discretion, in the interest of
sound judicial administration, regarding whether to grant a motion to
continue to obtain private counsel. State v. Ramos, 239 Ariz. 501, 505, ¶ 16
(App. 2016). Thus, "[t]rial courts retain 'wide latitude' in balancing the right
to counsel of choice against the needs of the criminal justice system to
fairness, court efficiency, and high ethical standards." State v. Coghill, 216
Ariz. 578, 588, ¶ 40 (App. 2007) (quoting United States v. Gonzalez-Lopez, 548
U.S. 140, 152 (2006)).
¶9 In weighing these competing interests, courts must consider:
whether other continuances were granted; whether the
defendant had other competent counsel prepared to try the
case; the convenience or inconvenience to the litigants,
counsel, witnesses, and the court; the length of the requested
delay; the complexity of the case; and whether the requested
delay was for legitimate reasons or was merely dilatory.
State v. Hein, 138 Ariz. 360, 369 (1983) (citations omitted). Relying on State
v. Aragon, 221 Ariz. 88 (App. 2009), Burgess argues the Hein factors require
a remand for a new trial.3 We disagree.
¶10 The Hein factors support the superior court's decision.
Burgess had recently received a continuance. Burgess's counsel affirmed to
the court he was prepared for trial. The case was not complex. The length
of the delay was unknown. The superior court noted an inconvenience
from a delay, specifically that a jury had been summoned. Significantly, the
late timing of the motion and Burgess's failure to attend the previous court
3 In his reply brief, Burgess asserts without authority that the error is
structural and bars a retrial. However, only the "erroneous deprivation of
the right to counsel of choice" qualifies as structural error. Gonzalez-Lopez,
548 U.S. at 150. Furthermore, the remedy for such error would be a new
trial. See Aragon, 221 Ariz. at 91, ¶ 9-10 (finding erroneous deprivation of
the right to counsel of choice and remanding for a new trial).
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STATE v. BURGESS
Decision of the Court
hearing provided reasonable cause for the superior court to conclude that
Burgess had not been diligent and the motion was filed for the purpose of
delay. Finally, the motion did not supply any details concerning whether
Burgess had any contact with potential private counsel about
representation. Therefore, the superior court did not abuse its discretion by
denying the motion.
¶11 In Aragon, the defendant filed an initial motion to continue to
allow a named private lawyer to appear in the case "and have enough time
to prepare for trial." 221 Ariz. at 89, ¶ 2. In finding that the superior court
erred in denying the continuance, this court noted the defendant had not
sought nor been granted prior continuances, id. at 90, ¶ 6; it was undisputed
the defendant had legitimate reasons for his request, id.; and the court erred
by relying on Arizona Rule of Criminal Procedure 8, a rule intended to
guarantee defendants a speedy trial, when the rule expressly excludes
"[d]elays occasioned by or on behalf of the defendant," id. at 91, ¶ 7 (quoting
Ariz. R. Crim. P. 8.4(a)).
¶12 Here, unlike Aragon, Burgess did not name a lawyer he
intended to retain, and no new lawyer ever appeared, before, during, or
after trial, to represent him. Instead, when he sought the second
continuance, Burgess only stated he "wants to hire a private counsel."
Burgess offered no indication that he had a particular attorney in mind, that
he had the funds to hire such an attorney, or that an attorney was willing
to represent him. As a result, at most he was only looking for the
opportunity to explore hiring another lawyer. Although the superior court
denied Burgess's requested second continuance, the court did not foreclose
his right to hire a lawyer and nothing in the record suggests how the
superior court would have ruled if new counsel had appeared and sought
a brief continuance. See Ramos, 239 Ariz. at 507, ¶ 20 (noting that denial of
continuance did not prevent private attorney from representing defendant).
Finally, the superior court did not improperly rely on the time requirements
of Rule 8 in making its decision to deny the continuance.
¶13 Nor are we persuaded by Burgess's contention that the
superior court erred by not conducting a formal hearing before denying his
motion. Citing State v. Torres, 208 Ariz. 340 (2004), Burgess argues that a
trial judge is required to hold a hearing on a defendant's request for
substitution of counsel. But Torres involved a request to substitute court-
appointed counsel, and even in that situation, a formal hearing is only
required if the defendant provides a sufficient basis for the request. 208
Ariz. at 343, ¶ 8. In this case, the superior court only denied Burgess's
request for a continuance and did not rule on any attempted substitution of
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STATE v. BURGESS
Decision of the Court
counsel. As Burgess concedes, the right to retain private counsel is
independent of a defendant's ability to request alternative appointed
counsel. See Robinson, 211 Ariz. at 168, ¶ 11 (finding right to representation
by private counsel is separate from right to publicly funded counsel); cf.
State v. Hampton, 208 Ariz. 241, 243, ¶ 6 (2004) (holding an indigent
defendant has no right to a particular appointed attorney). Although when
a defendant requests a continuance to retain private counsel "persuasive
authority suggests that . . . the onus is on the court to create a record of its
reasons for [a] denial," Aragon, 221 Ariz. at 91, n.3, nothing requires the
court to first hold a formal hearing. Here, the court issued a written ruling
denying the request and the record, supra ¶ 10, provides ample support for
the superior court's decision. Therefore, the superior court did not abuse
its discretion by denying the motion without holding a formal hearing.
II. Sufficiency of the Evidence.
¶14 At the conclusion of the State's case, Burgess moved for a
judgment of acquittal on both counts4 pursuant to Rule 20 of the Arizona
Rules of Criminal Procedure, arguing the State had failed to produce
substantial evidence of possession. The superior court denied the motion.
Burgess argues on appeal that the State's evidence was insufficient to
establish that he knowingly possessed methamphetamine. Burgess also
maintains the State failed to prove that the drugs were possessed for the
purpose of sale.
¶15 We review a claim of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (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." Id. at ¶ 16 (citation and emphasis
omitted). We will reverse a conviction for insufficient evidence only if no
4 Burgess does not present significant argument challenging the
sufficiency of the evidence for the possession of drug paraphernalia
conviction and, consequently, might have thereby otherwise waived and
abandoned that argument. See State v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9
(2004) ("[O]pening briefs must present significant arguments, supported by
authority, setting forth an appellant's position on the issues raised. Failure
to argue a claim usually constitutes abandonment and waiver of that
claim.") (citation omitted). However, because the facts concerning the two
convictions are the same and Burgess's Rule 20 motion included argument
addressing the drug paraphernalia charge, we exercise our discretion to
address the issue on the merits.
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STATE v. BURGESS
Decision of the Court
"substantial evidence exists to support the jury verdict." State v. Stroud, 209
Ariz. 410, 411, ¶ 6 (2005). Substantial evidence is "such proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant's guilt beyond a reasonable doubt." West, 226 Ariz.
at 562, ¶ 15. In reviewing the sufficiency of the evidence, we neither
reweigh conflicting evidence nor assess the credibility of witnesses. State v.
Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013). Sufficient evidence
may be direct or circumstantial. West, 226 Ariz. at 562, ¶ 16. "Reversible
error based on insufficiency of the evidence occurs only where there is a
complete absence of probative facts to support the conviction." State v. Soto-
Fong, 187 Ariz. 186, 200 (1996) (citation omitted).
¶16 As the superior court properly instructed the jury, the crime
of possession of dangerous drugs for sale under A.R.S. § 13-3407(A)(2)
requires proof that the defendant knowingly possessed a dangerous drug
(here, methamphetamine) for the purpose of sale. The court further
instructed that the crime of possession of drug paraphernalia under A.R.S.
§ 13-3415 requires proof that the defendant used, or possessed with the
intent to use, an item of drug paraphernalia. Also, as the court instructed,
"possess" means "knowingly to have physical possession or otherwise to
exercise dominion or control over property." A.R.S. § 13-105(34).
¶17 "Possession may be actual or constructive." State v. Gonsalves,
231 Ariz. 521, 523, ¶ 9 (App. 2013). A jury properly may find a defendant
maintained constructive possession of an object "found in a place under [the
defendant's] dominion [or] control and under circumstances from which it
can be reasonably inferred that the defendant had actual knowledge of the
existence of the [property]," all of which may be proven by direct or
circumstantial evidence. State v. Cox, 214 Ariz. 518, 520, ¶ 10 (App. 2007)
(quoting State v. Villavicencio, 108 Ariz. 518, 520 (1972)). Constructive
possession exists when the defendant exercises dominion and control over
the object itself or over the location where the object is found. State v. Teagle,
217 Ariz. 17, 27, ¶ 41 (App. 2007). A person's "mere presence at a location
where narcotics are found is insufficient to establish knowledgeable
possession or dominion and control over narcotics." Id. at 27-28, ¶ 41
(quoting State v. Jung, 19 Ariz. App. 257, 261 (1973)). "[I]t is not necessary
to show that a defendant exercised exclusive possession or control over the
substance itself or the place in which the illegal substance was found;
control or right to control is sufficient." State v. Curtis, 114 Ariz. 527, 528
(App. 1977). "Criminal intent, being a state of mind, is shown by
circumstantial evidence. Defendant's conduct and comments are evidence
of his state of mind." State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009) (quoting
State v. Routhier, 137 Ariz. 90, 99 (1983)).
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STATE v. BURGESS
Decision of the Court
¶18 Burgess contends the State presented insufficient evidence
that he exercised dominion or control over the methamphetamine found in
the truck (and therefore, the drug paraphernalia: the bags in which the
drugs were packed and concealed). The undisputed evidence showed that
the investigating officer seized approximately 216 grams of
methamphetamine, and testimony established that 216 grams was a
substantial amount in weight and value. The methamphetamine was in
two bags (one of which was in plain view) under the passenger seat of a
vehicle that Burgess was driving. After learning that the officer was going
to tow and search the vehicle, Burgess rolled up the windows and locked
the keys inside, then blamed the dog (by then locked inside the truck) for
doing so. Without a request from the officer, Burgess called the truck's
registered owner to bring a key to open the truck before the search and tow.
Upon arrival, the truck's owner attempted to walk up to the truck, but the
officer stopped her and asked her to just unlock the door.
¶19 Burgess's "conduct and comments," particularly in
conjunction with the large amount of methamphetamine recovered,
reasonably provided the jury with circumstantial evidence that he knew the
methamphetamine was in the truck. Furthermore, the superior court
instructed jurors on mere presence, informing them that they could not find
Burgess guilty based upon his mere presence at the scene, mere association
with another person there, or mere knowledge that a crime was being
committed. On that issue, despite the presence of J.R. in the truck, Burgess
was driving the truck in which the methamphetamine was found, one of
the bags of methamphetamine was in plain view, and Burgess locked the
keys in the truck and blamed the dog after he learned that the truck was
about to be searched. This evidence was sufficient to allow a jury to find
Burgess's constructive possession of the methamphetamine and the bags
and reject his mere-presence defense. See Villavicencio, 108 Ariz. at 520
(noting that evidence of constructive possession is sufficient when narcotics
are found in a location "under the dominion and control of the defendant
and under circumstances from which the jury could find that he knew of
the existence of the narcotics").
¶20 As noted, to prove that the methamphetamine was possessed
for sale, the State called a detective with extensive training and experience
in drug investigations, who testified that weight distinguishes possession
for sale from possession for personal use and that an amount of one ounce
or more of methamphetamine is consistent with possession for sale. When
sold by the gram, the detective testified that a single ounce of
methamphetamine could have a street value of around $700. The detective
further testified that possession of multiple ounces reflects an amount and
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STATE v. BURGESS
Decision of the Court
value consistent with a dealer who is a "level above" a street-level dealer in
the relevant local area.
¶21 The detective's testimony also addressed the absence of other
indicia of sale such as scales, individual small plastic bags, money, and
separate packaging. The detective explained that weight remains the
"number one" factor in determining whether methamphetamine is
possessed for sale. He also explained that although other items serve as
circumstantial indicators, they are not found in every "drug sales
investigation" because those items are used at different points throughout
the "supply chain," similar to the manner in which a retail store operates.
As the superior court instructed, the jury was free to accept or reject the
detective's testimony. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App.
2004) (discussing that the function of the jury is to weigh evidence and
determine credibility). The jury chose to accept the detective's testimony,
and the evidence was sufficient to support the verdict.
CONCLUSION
¶22 We affirm Burgess's convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: RB
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