State Kingston ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LISA MAE KINGSTON, Appellant.
No. 1 CA-CR 20-0178
FILED 1-21-2021
Appeal from the Superior Court in Yavapai County
No. P1300CR201900874
The Honorable Christopher L. Kottke, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
STATE v. KINGSTON
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
H O W E, Judge:
¶1 Lisa Mae Kingston appeals her convictions of the sale or
transportation of dangerous drugs and the sale or transportation of narcotic
drugs. She argues the superior court erred in denying her motion for
judgment of acquittal under Rule 20 of the Arizona Rules of Criminal
Procedure for those two charges. Because substantial evidence supports the
convictions, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013). Arizona State Trooper
Williams pulled Kingston over on I-17 between Sedona and Phoenix
around 10:00 a.m. in July of 2019. Kingston was driving a rental car, had
three air fresheners hanging on the car’s rearview mirror, appeared
nervous, and could not stand still. While issuing her a traffic warning,
Trooper Williams asked Kingston about her travels. Kingston said that she
and her passenger had made a “day trip” to Sedona and were returning to
Phoenix. Trooper Williams found the travel pattern strange, considering it
was only 10:00 a.m. and they were returning from Sedona, so he spoke to
the passenger, who gave an inconsistent account of the travels. The
passenger also admitted to having a partially smoked “joint.”
¶3 Because of Kingston’s behavior and the passenger’s
marijuana cigarette, Trooper Williams believed he had probable cause to
search Kingston’s vehicle and called Trooper Huijkman for K-9 backup to
help search the vehicle. In the trunk of Kingston’s vehicle, the troopers
found $13,000 in cash, 9.55 grams of methamphetamine, 21 pills of fentanyl,
and four pills of oxycodone. Kingston stated that everything in the vehicle
belonged to her. The State subsequently charged Kingston with the sale or
transportation of dangerous drugs, the sale or transportation of narcotic
drugs, and two counts of possession of drug paraphernalia.
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STATE v. KINGSTON
Decision of the Court
¶4 At trial, Trooper Huijkman testified that the cash smelled of
drugs. An Arizona Department of Public Safety forensic scientist testified
that she tested three items of evidence and found them to be
methamphetamine, oxycodone, and fentanyl. Detective Winfrey with the
Partners Against Narcotic Trafficking Task Force testified that a normal
dosage of methamphetamine was about .1 to .2 grams, an average
methamphetamine user generally used 1-1.5 grams a day, and a user
normally possessed only a couple days of supply. He further testified that
the current cost for a gram of methamphetamine was $40, an oxycodone pill
was $10 - $20, and a fentanyl pill was $15 - $20.
¶5 After the State rested, Kingston moved for a directed verdict
of acquittal under Rule 20 of the Arizona Rules of Criminal Procedure on
the sale or transportation of dangerous drugs and the sale or transportation
of narcotic drugs. The court denied the motion, and the jury, after
deliberating, found Kingston guilty of all charges. The trial court sentenced
her to concurrent terms of 6 years’ imprisonment each on the convictions
for the sale or transportation of narcotic drugs and sale or transportation of
dangerous drugs convictions, and concurrent 1-year terms for each of the
possession of drug paraphernalia convictions, with 226 days of
presentence-incarceration credit for each count. Kingston timely appealed.
This Court has jurisdiction under Arizona Constitution article VI, Section 9,
and Arizona Revised Statutes §§ 12–120.21(A)(1), 13–4031, and 13–4033(A).
DISCUSSION
¶6 Kingston argues that the court erred in denying her Rule 20
motion for acquittal. The trial court’s ruling is a question of law reviewed
de novo, considering all facts and resolving all evidentiary conflicts in the
light most favorable to sustaining the conviction. See State v. Pena, 235 Ariz.
277, 279 ¶ 5 (2014); see also State v. West, 226 Ariz. 559, 562 ¶ 15 (2011).
¶7 A trial court may enter a directed verdict of acquittal only if
no substantial evidence supports the conviction. See State v. Davolt, 207 Ariz.
191, 212 ¶ 87 (2004). Substantial evidence is “evidence that reasonable
persons could accept as sufficient to support a guilty verdict beyond a
reasonable doubt. See Pena, 235 Ariz. at 279 ¶ 5 (quoting State v. Hausner,
230 Ariz. 60, 75 ¶ 50 (2012)). “When reasonable minds may differ on
inferences drawn from the facts, the case must be submitted to the jury, and
the trial judge has no discretion to enter a judgment of acquittal.” West, 226
Ariz. at 563 ¶ 18. Direct and circumstantial evidence are equally probative,
State v. Bible, 175 Ariz. 549, 560 n.1 (1993), and wholly circumstantial
evidence can support differing, yet reasonable inferences, State v. Anaya,
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STATE v. KINGSTON
Decision of the Court
165 Ariz. 535, 543 (App. 1990); see also State v. Olivas, 119 Ariz. 22, 23 (App.
1978).
¶8 A person is guilty of transportation of dangerous drugs for
sale if the person (1) knowingly, (2) transported for sale, (3) dangerous
drugs. See A.R.S. § 13–3407(A)(7). Methamphetamine is a dangerous drug.
See A.R.S. § 13–3401(6)(b)(xxxviii). A person is guilty of transportation or
sale of narcotic drugs if the person (1) knowingly, (2) transported for sale,
(3) narcotic drugs. See A.R.S. § 13–3408(A)(7). Oxycodone and fentanyl are
narcotic drugs. See A.R.S. § 13–3401(20)(ww), (ttt), and (21)(dd).
¶9 The court correctly denied Kingston’s motion. Trooper
Williams testified that Kingston knowingly possessed both narcotic and
dangerous drugs and was transporting them in her trunk along with
$13,000 of drug-contaminated cash. See Beijer v. Adams, 196 Ariz. 79, 84 ¶ 25
(App. 1999) (“[T]he presence of the drugs in the trunk of the car the
Defendant was driving was sufficient, in and of itself, to support a
conclusion beyond a reasonable doubt that [s]he was knowingly
transporting the drugs.”).
¶10 Detective Winfrey testified that Kingston had almost 100
doses of methamphetamine and at least 21 doses and four doses of fentanyl
and oxycodone respectively. In the absence of pipes, lighters, and snort
tubes indicating personal use, a reasonable jury could reasonably infer that
the drugs were being transported “for sale.” Finding the drugs in the trunk
along with an unusual amount of drug-contaminated cash further supports
this inference.
¶11 Kingston nonetheless argues that the state failed to provide
substantial evidence that the drugs were “for sale.” She argues that while
the state’s expert testified to the normal usable amount of a
methamphetamine user, it did not do so for oxycodone or fentanyl and
therefore failed to establish sufficient evidence for a jury to infer that she
transported the narcotic drugs for sale. She also argues that the state failed
to provide evidence of small plastic baggies, ledgers, or scales indicative of
drug sales. While such evidence would independently support a finding of
substantial evidence, see State v. Martinez, 226 Ariz. 221, 224 ¶ 14-15 (App.
2011) (small plastic baggies, ledger, or scales), it is not required, id. at 15
(evidence “is not insubstantial simply because reasonable persons might
have drawn a different conclusion from the evidence.”). The contaminated
cash alongside the amount of drugs and lack of personal use evidence and
testimony provided sufficient circumstantial evidence for a jury to find that
Kingston transported the drugs with the intent to sell.
4
STATE v. KINGSTON
Decision of the Court
CONCLUSION
¶12 The State provided sufficient evidence for a jury to find that
Kingston transported dangerous and narcotics drugs for the purpose of
selling those drugs beyond a reasonable doubt, and we, therefore, affirm
the convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
5