State of Arizona v. Rock Kelly Ingram , 239 Ariz. 228 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
ROCK KELLY INGRAM,
Appellant.
No. 2 CA-CR 2015-0148
Filed February 11, 2016
Appeal from the Superior Court in Pinal County
No. S1100CR201300228
The Honorable Bradley M. Soos, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
STATE v. INGRAM
Opinion of the Court
OPINION
Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Eckerstrom and Judge Miller concurred.
V Á S Q U E Z, Presiding Judge:
¶1 Following a jury trial, Rock Ingram was convicted of
misconduct involving weapons. On appeal, he argues the trial court
erred in denying his request for a peremptory change of judge
pursuant to Rule 10.2, Ariz. R. Crim. P. In addressing this issue, we
first must determine whether the court’s ruling may be challenged
on direct appeal or must be reviewed in a special action. Ingram
also contends the state presented insufficient evidence to support his
conviction. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences
therefrom in the light most favorable to upholding Ingram’s
conviction. See State v. Almaguer, 232 Ariz. 190, ¶ 2, 303 P.3d 84, 86
(App. 2013). In August 2012, officers received information that
Ingram, who had an outstanding felony arrest warrant from
Wisconsin, was at a house in Maricopa. Because the U.S. Marshals
Service had warned that Ingram was possibly armed with a .40-
caliber pistol and “would use it to elude capture,” the officers called
for backup. They then entered the house, detained Ingram, and
found a .40-caliber bullet in his front left pocket.
¶3 N.H., who was renting the house, told the officers that
Ingram was staying there, along with N.B. and her children. N.B.
informed the officers that there was a gun in the house, and N.H.
consented to a search. With N.B.’s assistance, the officers found a
.40-caliber semi-automatic pistol in a briefcase, which was located in
an empty television box in the master-bedroom closet. The pistol
had seven rounds in the magazine and one loaded in the chamber.
The briefcase also contained a box of .40-caliber ammunition, a gun-
2
STATE v. INGRAM
Opinion of the Court
cleaning kit, and an empty prescription pill bottle belonging to
Ingram.
¶4 A grand jury indicted Ingram for one count of
misconduct involving weapons by knowingly possessing a deadly
weapon as a prohibited possessor. The week before trial, the case
was reassigned to the trial judge by an “immediately distributed”
order dated January 29, 2015. Ingram filed a notice of change of
judge as a matter of right pursuant to Rule 10.2 on February 2, 2015,
the day before trial. The court denied the notice as untimely.
¶5 Ingram was convicted as charged, and the trial court
sentenced him to a presumptive term of imprisonment of 2.5 years.1
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031,
and 13-4033(A)(1).
Change of Judge
¶6 Ingram contends the trial court erred by denying his
request for a peremptory change of judge pursuant to Rule 10.2. The
state responds that “this court lacks jurisdiction to consider
[Ingram’s] argument” because he should have challenged the court’s
ruling by special action.2 We conclude that Ingram’s challenge to
the court’s ruling is not reviewable on direct appeal.
¶7 Rule 10.2(a) provides: “In any criminal case, each side
is entitled as a matter of right to a change of judge.” To exercise this
right, a party must file a notice of change of judge signed by counsel,
avowing that the request is made in good faith. Ariz. R.
Crim. P. 10.2(b). The rule provides time frames for filing the notice
1 During trial, the parties stipulated that Ingram had been
convicted of a felony in Wisconsin in August 1989.
2“[T]he word ‘jurisdiction’ means different things in different
contexts.” Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23
(1996). Here, the state appears to use the word to mean our
“authority to do a particular thing,” not our statutory or
constitutional power to entertain a particular action. Id.
3
STATE v. INGRAM
Opinion of the Court
depending on the stage of the proceedings. 3 Ariz. R.
Crim. P. 10.2(c). The question presented here is whether a ruling on
a Rule 10.2 notice of change of judge must be challenged by special
action or can be reviewed on direct appeal from the final judgment
of conviction.
¶8 Our supreme court’s reasoning in Taliaferro v. Taliaferro,
186 Ariz. 221, 921 P.2d 21 (1996), guides our analysis here.4 There,
the court was faced with the same question in the context of a civil
action: whether a party could challenge by appeal the trial court’s
denial of his notice of peremptory change of judge filed pursuant to
Rule 42(f), Ariz. R. Civ. P., the civil analog to Rule 10.2. Taliaferro,
186 Ariz. at 222, 921 P.2d at 22. The court noted that errors
occurring when the trial court fails to honor the notice—for example,
when the court “rules that the notice is untimely, when it is indeed
timely”—“are not well suited to an appeal after final judgment.” Id.
at 223, 921 P.2d at 23. It explained that “there is no way a party
3The rule, as relevant here, provides:
[I]f a new judge is assigned to a case
fewer than ten (10) days before trial
(inclusive of the date of assignment), a
notice of change of judge shall be filed,
with appropriate actual notice to the other
party or parties, by 5:00 p.m. on the next
business day following actual receipt of
notice of the assignment, or by the start of
trial, whichever occurs sooner.
Ariz. R. Crim. P. 10.2(c).
4 Although neither party directly cited Taliaferro, two of the
cases relied upon by the state do. See State ex rel. Thomas v. Gordon,
213 Ariz. 499, ¶ 7, 144 P.3d 513, 515 (App. 2006); Bergeron ex rel. Perez
v. O’Neil, 205 Ariz. 640, ¶ 11, 74 P.3d 952, 957 (App. 2003). And, in
any event, our review is not limited to the authorities cited by the
parties. See State v. Zaman, 190 Ariz. 208, 211, 946 P.2d 459, 462
(1997) (court considering own research); State v. Emanuel, 159 Ariz.
464, 467, 768 P.2d 196, 199 (App. 1989) (same).
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STATE v. INGRAM
Opinion of the Court
could show prejudice from the error on appeal,” unlike when a for-
cause request for change of judge is denied. Id. The court reasoned
that a peremptory change of judge essentially is a “‘matter of grace’”
that could be converted to “a trump card which would later destroy
the validity of the entire proceeding.” Id., quoting Hickox v. Superior
Court, 19 Ariz. App. 195, 198, 505 P.2d 1086, 1089 (1973). The court
thus concluded that “a party must seek review by way of special
action.” Id.
¶9 The reasoning of Taliaferro applies equally to notices
filed under Rule 10.2 in criminal cases. See State ex rel. Thomas v.
Gordon, 213 Ariz. 499, ¶ 31, 144 P.3d 513, 518 (App. 2006) (“[O]ur
supreme court has held the rules of law pertaining to change of
judge are essentially the same in civil as in criminal cases.”).
Because Rule 10.2 permits a change of judge “merely upon request,”
without the need to show judicial bias or interest, it would be
difficult on appeal for a party to show any resulting prejudice from
that court’s denial of the notice. Anagnostos v. Truman, 25 Ariz. App.
190, 192, 541 P.2d 1174, 1175 (1975). Once a defendant has been
convicted and sentenced, “it is too late in the day to be worrying
about who tried the case, short of true challenges for cause.”
Taliaferro, 186 Ariz. at 223, 921 P.2d at 23.
¶10 A system providing a peremptory change of judge must
also afford prompt review—by way of special action—of a ruling on
such a request. See id. Although special-action review is
discretionary, “that is all a party is entitled to on a rule-driven
‘matter of grace.’” Id. at 223-24, 921 P.2d at 23-24, quoting Hickox, 19
Ariz. App. at 198, 505 P.2d at 1089. “The administration of justice,
already under great weight, needs no further burden.”5 Id. at 223,
921 P.2d at 23; see also People v. Hull, 820 P.2d 1036, 1040-41 (Cal.
5 Notably, after Taliaferro, challenges to the denial of a
Rule 10.2 notice of change of judge in criminal cases generally have
been reviewed by special action. See, e.g., Reed v. Burke, 219 Ariz.
447, ¶ 2, 199 P.3d 702, 703 (App. 2008); Bolding v. Hantman, 214 Ariz.
96, ¶ 1, 148 P.3d 1169, 1170 (App. 2006); Medders v. Conlogue, 208
Ariz. 75, ¶ 1, 90 P.3d 1241, 1242 (App. 2004); but see State v. Manuel,
229 Ariz. 1, ¶¶ 1, 5, 270 P.3d 828, 830 (2011).
5
STATE v. INGRAM
Opinion of the Court
1991) (immediate review of judicial disqualification orders “‘fosters
judicial economy by eliminating the waste of time and money which
inheres if the litigation is permitted to continue unabated’”), quoting
Guedalia v. Superior Court, 260 Cal. Rptr. 99, 103 (Ct. App. 1989).
¶11 Relying on State v. Keel, 137 Ariz. 532, 672 P.2d 197
(App. 1983), Ingram nevertheless maintains we may address on
appeal whether the trial court erred in denying his notice of change
of judge. He asserts that a special action is an appropriate avenue
for raising such a challenge but it is not “the exclusive . . . way.”
¶12 In Keel, this court set aside the defendant’s conviction
for attempted theft because the trial court had “failed to honor” his
notice of peremptory change of judge. 137 Ariz. at 532-33, 672 P.2d
at 197-98. The state argued that “the error [was] not properly
reviewable on appeal” and should have been brought by special
action. Id. at 533, 672 P.2d at 198. We rejected this argument,
reasoning that “relief could have been granted by special action,”
but it was not required. Id. Without explanation, we concluded the
situation was “inapposite” to a challenge to grand-jury proceedings,
which must be brought by special action. Id.; see Bashir v. Pineda, 226
Ariz. 351, ¶¶ 4-6, 248 P.3d 199, 201 (App. 2011). We also pointed to
cases in which our supreme court had addressed Rule 10.2
arguments on appeal. Keel, 137 Ariz. at 533, 672 P.2d at 198.
¶13 But Keel was decided prior to our supreme court’s
decision in Taliaferro. See State v. Dugan, 149 Ariz. 357, 361, 718 P.2d
1010, 1014 (App. 1985) (previous decisions of this court considered
persuasive unless clearly erroneous or conditions have changed).
Moreover, in Taliaferro, while acknowledging that the analogy
between a grand-jury proceeding and a peremptory change of judge
“is not exact,” the court found it sufficiently similar to extend the
special-action requirement to the latter. 186 Ariz. at 223, 921 P.2d at
23. Thus, the Arizona Supreme Court in Taliaferro rejected this
court’s reasoning in Keel.
¶14 We acknowledge that Taliaferro did not explicitly
overrule Keel and that a defendant like Ingram may have believed,
based on Keel, that he could bring this issue by appeal. However,
even if this were a special action, Ingram would not be entitled to
6
STATE v. INGRAM
Opinion of the Court
relief. When a new judge is assigned less than ten days before trial,
Rule 10.2(c) requires a notice of change of judge to be filed “on the
next business day following actual receipt of notice of the
assignment.” Ingram acknowledges that his attorney’s office
received the reassignment order on January 29, 2015, but maintains
that he had until February 2, 2015, to file his notice of change of
judge because his attorney was out of the office and did not actually
see the reassignment order until January 30, 2015. In Lee v. State, 218
Ariz. 235, ¶ 10, 182 P.3d 1169, 1171 (2008), our supreme court stated
“that an ‘actual receipt’ requirement . . . is compatible with the mail
delivery rule,” which is based on “the long-held understanding that
mail properly sent will reach its destination.” Thus, under that rule,
“proof of the fact of mailing will, absent any contrary evidence,
establish that delivery occurred.” Id. ¶ 8. All Rule 10.2(c) requires is
“actual receipt,” which occurred here on January 29. See Receipt,
Black’s Law Dictionary 1459 (10th ed. 2014) (“The act of receiving
something, esp. by taking physical possession.”). The trial court
therefore did not err in denying the notice as untimely. See State v.
Poland, 144 Ariz. 388, 394, 698 P.2d 183, 189 (1985).
¶15 Ingram also asserts that “it was impossible for counsel
to file a special action” because the denial of his Rule 10.2 request
occurred the first day of trial. Although filing a petition for special
action may have been difficult under the circumstances, it was not
impossible. See Ariz. R. P. Spec. Actions 7(c) (allowing for stay of
trial court proceedings if appellate court cannot address issue raised
in special action “immediately”); cf. State v. Mincey, 130 Ariz. 389,
409, 636 P.2d 637, 657 (1981) (state filed special action in middle of
trial; this court stayed trial while it resolved issue raised in special
action).
¶16 In sum, we conclude that a challenge to the denial of a
notice of peremptory change of judge filed pursuant to Rule 10.2
must be brought by special action. A defendant cannot challenge
the trial court’s denial of his request for a peremptory change of
judge on direct appeal. Cf. State v. Just, 138 Ariz. 534, 542, 675 P.3d
1353, 1361 (App. 1983) (defendant cannot challenge grand-jury
proceedings on appeal).
7
STATE v. INGRAM
Opinion of the Court
Sufficiency of the Evidence
¶17 Ingram also argues the trial court erred in denying his
motion for a judgment of acquittal pursuant to Rule 20, Ariz. R.
Crim. P., because the state presented insufficient evidence to support
his conviction. “The sufficiency of the evidence is a question of law
we review de novo.” State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656,
658 (App. 2013). “‘[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. West, 226 Ariz. 559, ¶ 16,
250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 66,
796 P.2d 866, 868 (1990). We will reverse only if no substantial
evidence supports the conviction. State v. Sharma, 216 Ariz. 292, ¶ 7,
165 P.3d 693, 695 (App. 2007). “Substantial evidence is such proof
that ‘reasonable persons could accept as adequate and sufficient to
support a conclusion of [a] defendant’s guilt beyond a reasonable
doubt.’” Id., quoting Mathers, 165 Ariz. at 67, 796 P.2d at 869.
¶18 A person commits misconduct involving weapons by
knowingly “[p]ossessing a deadly weapon . . . if such person is a
prohibited possessor.” A.R.S. § 13-3102(A)(4). A prohibited
possessor is any person “[w]ho has been convicted within or
without this state of a felony . . . and whose civil right to possess or
carry a gun or firearm has not been restored.” A.R.S. § 13-
3101(A)(7)(b).
¶19 The parties stipulated that Ingram had been convicted
of a felony in Wisconsin in August 1989. An officer also testified
that Ingram told him during his post-arrest interrogation that “he’s
not allowed to touch a gun or have a gun.” The state thus presented
sufficient evidence that Ingram was a prohibited possessor, see
Sharma, 216 Ariz. 292, ¶ 7, 165 P.3d at 695, and Ingram does not
argue to the contrary on appeal.
¶20 However, Ingram contends the state “did not present
sufficient evidence to prove that [he] ‘possessed’ the gun.”
“‘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.
8
STATE v. INGRAM
Opinion of the Court
Gonsalves, 231 Ariz. 521, ¶ 9, 297 P.3d 927, 929 (App. 2013). Because
the pistol was not found on Ingram’s person, our inquiry turns to
whether the evidence was sufficient to establish constructive
possession.
¶21 “Constructive possession exists when the prohibited
property ‘is 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].’” State v. Cox, 214 Ariz. 518, ¶ 10, 155 P.3d 357, 359
(App. 2007), quoting State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d
1337, 1339 (1972) (alterations in Cox). “The terms ‘dominion’ and
‘control’ carry their ordinary meaning, such that dominion means
‘absolute ownership’ and control means to ‘have power over.’” Id.
¶ 9, quoting State v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App.
1986).
¶22 The state may use direct or circumstantial evidence to
prove constructive possession. State v. Donovan, 116 Ariz. 209, 213,
568 P.2d 1107, 1111 (App. 1977). “[U]nder a theory of constructive
possession, two or more persons may jointly possess a prohibited
object; possession need not be ‘[e]xclusive, immediate and
personal.’” Gonsalves, 231 Ariz. 521, ¶ 9, 297 P.3d at 929, quoting
State v. Carroll, 111 Ariz. 216, 218, 526 P.2d 1238, 1240 (1974) (second
alteration in Gonsalves); see also Villavicencio, 108 Ariz. at 520, 502
P.2d at 1339. “However, a person’s mere presence at a location
where a prohibited item is located is insufficient to show that he or
she knowingly exercised dominion or control over it.” Gonsalves,
231 Ariz. 521, ¶ 10, 297 P.3d at 929.
¶23 Here, the officers had been informed by the U.S.
Marshals Service that Ingram was possibly armed with a .40-caliber
pistol.6 Ingram was staying at the house where he was arrested, and
6Although this appears to be hearsay, Ingram did not object
on that basis at trial. See State v. McGann, 132 Ariz. 296, 299, 645 P.2d
811, 814 (1982) (“[I]f hearsay evidence is admitted without objection,
it becomes competent evidence admissible for all purposes.”).
Instead, he argued the testimony lacked proper foundation. See
State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) (“[A]n
9
STATE v. INGRAM
Opinion of the Court
the officers found a loaded .40-caliber semi-automatic pistol in a
briefcase in the master-bedroom closet. When asked if the briefcase
looked familiar, Ingram responded, “I have one like it, but I don’t
know if that one is mine.” The officers never told Ingram where
they had found the briefcase, but he stated that his was “in the
closet.”
¶24 In the briefcase, along with the pistol, officers found a
box of .40-caliber ammunition and a prescription pill bottle with
Ingram’s name on the label. The label was dated less than two
months prior to the date of Ingram’s arrest. In addition, Ingram had
a .40-caliber bullet in his front left pocket. Although Ingram
contends the bullet “is not relevant” because “it was not placed into
evidence,” he did not object when the officers testified they had
found it on his person when they searched him after his arrest.
Contrary to Ingram’s assertion, the bullet is circumstantial evidence
linking the .40-caliber pistol to him.7
¶25 Moreover, the outside of the briefcase had a “tag,”
which included a reference to Racine, Wisconsin. Ingram’s prior
felony was from Wisconsin, and he was born there. Nothing in the
briefcase indicated someone else owned it. As for the pistol, Ingram
admitted “touch[ing] a gun like that.” Viewed collectively, there
was sufficient evidence to establish that Ingram had constructive
possession of the pistol. See Sharma, 216 Ariz. 292, ¶ 7, 165 P.3d at
695. Accordingly, the trial court did not err in denying Ingram’s
motion for a judgment of acquittal. See Snider, 233 Ariz. 243, ¶ 4, 311
P.3d at 658.
Disposition
¶26 For the foregoing reasons, we affirm Ingram’s
conviction and sentence.
objection on one ground does not preserve the issue on another
ground.”).
7One of the officers testified that the bullet could have been
placed in the box of ammunition recovered from the briefcase when
the evidence was impounded.
10