                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                 JESSICA LYNNETTE DRESSIG, Appellant.

                             No. 1 CA-CR 18-0443
                               FILED 2-13-2020


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201601655
             The Honorable Richard Weiss, Judge (retired)

                  REMANDED WITH INSTRUCTIONS


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                            STATE v. DRESSIG
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

¶1           Jessica Lynette Dressig appeals her convictions and sentences
for one count each of possession of dangerous drugs for sale, possession of
narcotic drugs for sale, possession of marijuana for sale, and possession of
drug paraphernalia. Because the record is silent concerning whether
Dressig voluntarily waived her right to be present at trial, we remand to the
superior court with instructions to hold a hearing to determine if Dressig’s
absence from the trial constituted a knowing, intelligent, and voluntary
waiver of that right.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2            On December 2, 2016, based on information gathered from an
informant who alleged Dressig was involved in the sale of illegal drugs, law
enforcement officers executed a search warrant on the home where they
believed she lived. The officers knocked on the door to the house, and an
individual later identified as Dressig’s co-tenant opened the door and was
immediately detained. The officers then attempted to do a protective sweep
of each room of the home. When they reached the door to the master
bedroom, however, they found it locked, but could hear someone yelling
on the other side of the door. The officers realized the individual behind the
door was not going to unlock it, so one of the officers broke through the
door and entered the room. Inside the room, the officers found Dressig
lying on the bed holding a small dog. The officers attempted to detain
Dressig, but she refused to follow their commands and resisted. The officers
eventually succeeded in placing Dressig in handcuffs, removed her from
the room, and searched the home.




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Dressig. State v.
Burgess, 245 Ariz. 275, 277, ¶ 3 (App. 2018).



                                      2
                           STATE v. DRESSIG
                          Decision of the Court

¶3            During the search of Dressig’s bedroom, the officers
discovered large quantities of marijuana, methamphetamine, and heroin
stashed in various areas, including on the nightstand by the bed, in a tote
bag resting on the bedroom floor, and in the bedroom’s closet. The officers
also discovered syringes, baggies, scales, marijuana grinders, and
methamphetamine and marijuana pipes in the bedroom and master
bathroom connected to it. The officers arrested Dressig and took her to the
Bullhead City police station, where she agreed to an interview and to waive
her Miranda 2 rights. During the interview, Dressig admitted to possessing
marijuana and a small amount of the heroin but denied possessing the large
amounts of methamphetamine and heroin found in the master bedroom.
She likewise denied that she sold drugs.

¶4           That same day, an initial appearance and arraignment
hearing was held before the Bullhead City Justice Court, in which Dressig
appeared via video. After the proceeding, the justice court entered a
Determination of Release Conditions and Release Order (the “Release
Order”), setting a $25,000 appearance bond. The Release Order also
contained the following warning:

      CONSEQUENCES OF VIOLATING THIS ORDER: You
      have the right to be present at your trial and at all other
      proceedings in your case. If you fail to appear the court may
      issue a warrant for your arrest and/or hold the trial or
      proceeding in your absence. IF CONVICTED, YOU WILL BE
      REQUIRED TO APPEAR FOR SENTENCING. IF YOU
      FAIL TO APPEAR, YOU MAY LOSE YOUR RIGHT TO A
      DIRECT APPEAL.

Below this warning, the Release Order contained a signature block for the
defendant to acknowledge she understood the information in the form and
the consequences if she violated its conditions. Dressig, however, did not
sign the Release Order.

¶5           A grand jury issued a supervening indictment charging
Dressig with the crimes noted above. Dressig was arraigned again before
the superior court, which affirmed her release conditions, including the
$25,000 appearance bond. Unable or unwilling to post a bond for that
amount, Dressig remained in custody.




2     Miranda v. Arizona, 384 U.S. 436 (1966).


                                     3
                             STATE v. DRESSIG
                            Decision of the Court

¶6             In March 2017, following several attempts to persuade the
court to modify Dressig’s release conditions, Dressig’s counsel and the State
stipulated to releasing her on her own recognizance, and the court accepted
the stipulation. After her release, Dressig’s attendance at pretrial
proceedings became sporadic. She failed to appear at the final management
conference shortly before the trial, and the court issued a bench warrant for
her arrest. Dressig remained absent during the trial.

¶7             From October 30 to November 1, 2017, the court conducted a
three-day jury trial. At the beginning of each day of Dressig’s trial, her
counsel noted her absence and moved for a continuance, citing his lack of
contact with Dressig and uncertainty that he or his office had told Dressig
of the trial date. The State objected to each motion, arguing that Dressig’s
lack of contact and absence were voluntary. After hearing the parties’
arguments, the court denied the motions, finding that it was Dressig’s
obligation to maintain contact with her counsel and that “[i]t appears from
the file that she was previously advised that the trial could take place
without her being present.” Each day of the trial went forward without
Dressig, and at the trial’s conclusion, the jury found Dressig guilty as
charged.

¶8            On March 24, 2018, the police arrested Dressig in Bullhead
City pursuant to the bench warrant. At the sentencing hearing, Dressig’s
counsel explained to the court that because Dressig’s absence had delayed
sentencing for more than 90 days, he believed Dressig had forfeited her
right to a direct appeal under Arizona Revised Statutes (“A.R.S.”)
section 13-4033(C). The court agreed with Dressig’s counsel that the plain
language of the statute appeared to bar Dressig’s right to appeal. The court
then sentenced Dressig to concurrent prison terms for each count totaling
10 years’ imprisonment, with 183 days’ presentence incarceration credit. In
an apparent change of heart, Dressig’s counsel filed a notice of appeal
shortly thereafter.

¶9            Dressig’s appellate counsel filed a brief per Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
certifying that, after a diligent search of the record, she found no arguable
question of law that was not frivolous. Counsel asked this court to search
the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Dressig filed a pro se
supplemental brief. In her supplemental brief, Dressig argued that there
was insufficient evidence to support her convictions for possession of
dangerous drugs for sale and narcotic drugs for sale because it was not
shown that she possessed the methamphetamine and heroin found in the


                                       4
                             STATE v. DRESSIG
                            Decision of the Court

bedroom. After reviewing the record, we issued a Penson order requesting
that the parties brief two additional issues: (1) whether the Release Order
constituted adequate notice to Dressig that the trial could proceed in her
absence if she failed to appear; and (2) whether that same form constituted
adequate notice to Dressig that she would lose her right to appeal if she
voluntarily delayed sentencing by more than 90 days. Our review of the
record identified no other arguable issues.

                               DISCUSSION

¶10            At the outset, we address the second issue raised in our
Penson order: whether Dressig lost her right to appeal her convictions and
sentences under A.R.S. § 13-4033(C). Dressig’s absence caused sentencing
to be delayed by more than 90 days, which ordinarily would forfeit her right
to appeal, A.R.S. § 13-4033(C). However, on the record before us, we are
unable to determine whether Dressig had been informed that she forfeited
her right to appeal because Dressig did not sign the document in the record
that contained such a warning—the Release Order. See State v. Bolding, 227
Ariz. 82, 88, ¶ 20 (App. 2011) (concluding A.R.S. § 13-4033(C) can only be
applied constitutionally if a defendant is informed of the consequences of
delaying sentencing). In their respective Penson briefs, Dressig argues, and
the State concedes, that the record fails to show Dressig received adequate
notice that her right to appeal could be forfeited. Consequently, we accept
the State’s concession and conclude A.R.S. § 13-4033(C) “cannot be applied
to [Dressig] in a constitutional manner.” Bolding, 227 Ariz. at 88, ¶ 20. Thus,
we have jurisdiction over Dressig’s appeal under A.R.S. §§ 13-4031
and -4033(A) and turn to address the substantive issues raised by Dressig
and identified in our Penson order.

A.     Sufficient Evidence Supports Dressig’s Convictions for
       Possession of Dangerous Drugs for Sale and Narcotic Drugs for
       Sale.

¶11            In her supplemental brief, Dressig argues there was
insufficient evidence to support her convictions for possession of
dangerous drugs for sale and possession of narcotic drugs for sale because
the state failed to prove she knowingly possessed the methamphetamine or
heroin.

¶12           We review de novo whether substantial evidence was
presented to support a conviction. State v. Burns, 237 Ariz. 1, 20, ¶ 72 (2015).
“‘Substantial evidence’ to support a conviction exists when ‘reasonable
persons could accept [it] as adequate and sufficient to support a conclusion



                                       5
                             STATE v. DRESSIG
                            Decision of the Court

of [a] defendant’s guilt beyond a reasonable doubt.’” Id. at 20–21, ¶ 72 (first
alteration in original) (quoting State v. West, 226 Ariz. 559, 562, ¶ 16 (2011)).
In reviewing the sufficiency of the evidence, “the 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.” West, 226 Ariz. at 562,
¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). “Both direct and
circumstantial evidence should be considered in determining whether
substantial evidence supports a conviction.” Id. “Criminal intent, being a
state of mind, is shown by circumstantial evidence. [A] [d]efendant’s
conduct and comments are evidence of [her] state of mind.” State v. Bearup,
221 Ariz. 163, 167, ¶ 16 (2009) (quoting State v. Routhier, 137 Ariz. 90, 99
(1983)).

¶13           “The sufficiency of the evidence must be tested against the
statutorily required elements of the offense.” State v. Pena, 209 Ariz. 503,
505, ¶ 8 (App. 2005). Under A.R.S. § 13-3407(A)(2), a person is guilty of
possession of dangerous drugs for sale if it is shown that the defendant
(1) knowingly possessed, (2) a dangerous drug (here, methamphetamine),
(3) for sale. The same elements apply to prove a defendant guilty of
possession of narcotic drugs for sale, except that the drug in question must
be a narcotic drug (here, heroin). A.R.S. § 13-3408(A)(2). Because Dressig
only challenges whether the State produced sufficient evidence for a jury to
conclude beyond a reasonable doubt that she knowingly possessed a
dangerous or narcotic drug—and because sufficient evidence was
presented concerning the other elements—we only address that element.

¶14            “Possess” in this context means “knowingly to have physical
possession or otherwise exercised dominion or control over property.”
A.R.S. § 13-105(34). “Possession may be actual or constructive.” State v.
Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013). “Constructive possession can
be established by showing that the accused exercised dominion and control
over the drug itself, or the location in which the substance was found.” State
v. Teagle, 217 Ariz. 17, 27, ¶ 41 (App. 2007). A person’s “mere presence at a
location where [drugs] are found is insufficient to establish knowledgeable
possession or dominion and control over [the drugs].” Id. at 27–28, ¶ 41
(quoting State v. Jung, 19 Ariz. App. 257, 261 (1973)). But “it 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).




                                       6
                           STATE v. DRESSIG
                          Decision of the Court

¶15            Here, the State presented overwhelming evidence at the trial
for the jury to reasonably conclude Dressig exercised dominion and control
over the bedroom and knew that methamphetamine and heroin were
located there. The testimony of several officers involved in searching
Dressig’s residence established that: (1) Dressig was found in the bedroom
where the methamphetamine and heroin were found; (2) the door to the
bedroom was locked and had to be broken down to allow the officers’ entry;
and (3) Dressig refused to comply with commands and had to be forcibly
removed from the bedroom. The testimony of the officers concerning the
subsequent search of the bedroom, supported by photographs of the scene,
showed that large quantities of methamphetamine and heroin were found
scattered and hidden around Dressig’s room, including on a nightstand by
her bed, in a tote bag resting on the bedroom floor, and in the bedroom
closet. Testimony established that the amount of each drug seized was
substantial in both weight and value.

¶16            Dressig acknowledged the bedroom was hers, and the
testimony of the other resident living in the home confirmed Dressig was
renting the bedroom where the methamphetamine and heroin were found.
Finally, regarding possession of the heroin found in the bedroom
specifically, Dressig admitted in her interview that she possessed heroin
but claimed she did not own the amount alleged by the interviewing officer.

¶17            Taken together, Dressig’s conduct and statements during the
search of the home and after her arrest, the large amounts of both
substances found in her bedroom, and the evidence presented concerning
her dominion and control of the bedroom, provided overwhelming support
for a jury to find Dressig constructively possessed the methamphetamine
and heroin found there. Accordingly, sufficient evidence supports Dressig’s
convictions for possession of dangerous and narcotic drugs for sale.

B.    Because it is Unclear Whether Dressig was Informed of Her Right
      to Attend the Trial and that the Trial Could Proceed in Her
      Absence, Remand for a Hearing on this Issue is Necessary.

¶18           Dressig argues she never received adequate notice of the
consequences of her failure to appear at trial because the Release Order is
unsigned and “[t]here is no other evidence that, at any other point going
forward, reference was made to [the Release Order] or similar warnings.”
In response, the State implicitly concedes the unsigned Release Order is
insufficient but claims other evidence within the record demonstrates
Dressig received notice of her right to attend the trial and that the trial
would proceed in her absence.


                                    7
                             STATE v. DRESSIG
                            Decision of the Court

¶19            A defendant’s “right to be present at trial is protected both by
the Sixth Amendment to the federal constitution as incorporated and
applied to the states through the Fourteenth Amendment, and by article II,
section 24 of the Arizona Constitution.” State v. Levato, 186 Ariz. 441, 443
(1996). This right is further protected by rule in Arizona. See Ariz. R. Crim.
P. 19.2 (“A defendant in a felony or misdemeanor trial has the right to be
present at every stage of the trial . . . .”). Like many of the constitutional
protections afforded to criminal defendants, however, the right to attend
the trial may be waived. State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 9
(1998). The critical inquiry in this context is whether the defendant’s
absence is voluntary, as “a valid waiver depends upon voluntariness.” Id.

¶20             Under Arizona Rule of Criminal Procedure (“Rule”) 9.1, a
court may infer that a defendant’s absence is voluntary, and thus a valid
waiver of the right to be present, “if the defendant had actual notice of the
date and time of the proceeding, notice of the right to be present, and notice
that the proceeding would go forward in the defendant’s absence.” If these
requirements are met, the defendant bears the burden of rebutting the
presumption that his or her absence was voluntary. State v. Bohn, 116 Ariz.
500, 503 (1977). Because the superior court’s “finding of voluntary absence,
and, therefore, the existence of a waiver of the right to be present, is
basically a question of fact[,] [w]e will not upset a . . . finding of voluntary
absence . . . absent an abuse of discretion.” State v. Bishop, 139 Ariz. 567, 569
(1984) (citation omitted) (quotation omitted). However, “in any proceeding
involving the surrender of Constitutional rights, it must appear from the
record that the waiver was knowingly, intelligently and voluntarily made.”
State v. Avila, 127 Ariz. 21, 25 (1980).

¶21            Here, Rule 9.1’s first requirement was met. The minute entry
from a settlement conference Dressig attended approximately a month
before trial indicates the superior court affirmed the actual date and time of
the trial after the proceeding. Thus, Dressig received “actual notice of the
date and time” of the trial. Ariz. R. Crim. P. 9.1. However, there is nothing
in the record before us that provides a basis on which this court can
determine whether Dressig received the other two predicate warnings
necessary to justify the superior court’s determination that her absence
constituted a knowing, intelligent, and voluntary waiver of her right to
attend the trial.

¶22          The Release Order, which contained both notices required by
Rule 9.1, is unsigned. Without Dressig’s signature, this court cannot
presume Dressig received the warnings listed in the Release Order at the



                                       8
                             STATE v. DRESSIG
                            Decision of the Court

time it was issued. 3 Acknowledging the Release Order is unsigned, the State
nevertheless asserts two portions of the record demonstrate Dressig was
informed of her right to attend the trial and of the consequences if she failed
to appear. First, the State points to the minute entry from Dressig’s
arraignment in the superior court, which states:

       The Court admonishes the Defendant and advises her of the
       disclosure process and advises her that her failure to appear
       at any further hearing will result in the issuance of a bench
       warrant.

                                *      *       *
       Discussion ensues regarding release conditions; the Court
       finds that the Defendant is being held on a $25,000.00 bond.

       IT IS ORDERED affirming prior release conditions.

Second, the State claims the superior court’s finding that it appeared from
the court file that Dressig had been “previously advised that the trial could
take place without her being present” is evidence that Dressig was
informed that the trial could proceed in her absence.

¶23            But the cited evidence is at best ambiguous. First, concerning
the arraignment minute entry, the reference to discussions surrounding the
consequences of failing to appear and of release conditions certainly could
have included notice to Dressig of her right to be present and a warning
that the trial could proceed in her absence. But the minute entry does not
refer to either, and without a transcript of the arraignment, which was not
provided to this court, we cannot determine whether such a notice or
warning was given. Second, the superior court’s finding that “it appear[ed]
from the file” that Dressig had received notice that trial could proceed in
her absence, offers no support for the State’s position because we cannot
determine on what portion of the record the court based that finding. The

3      When forms like the Release Order are signed, they are typically
considered adequate notice to justify the inference contemplated by
Rule 9.1. See, e.g., State v. Tudgay, 128 Ariz. 1, 3 (1981) (finding requirements
of Rule 9.1 satisfied by defendant’s signature of release order containing
notice of right to attend and warning that proceedings could begin in
defendant’s absence); Bohn, 116 Ariz. at 503 (same); State v. Pena, 25 Ariz.
App. 80, 80–81 (1975) (same); see also Ariz. R. Crim. P. Form 6 (release order
containing warnings required by Rule 9.1).



                                       9
                              STATE v. DRESSIG
                             Decision of the Court

court could have found this finding on some part of the file that was not
included in the record on appeal, or it could have erroneously based its
conclusion on the unsigned Release Order. The balance of the record is
likewise vague. Although there is another minute entry that references
Dressig being “admonished,” it offers no greater detail than the
arraignment minute entry.

¶24             Thus, without more, this court is left with the functional
equivalent of a silent record, as nothing in the record before us today
provides this court a basis on which it can determine whether Dressig
received the notices required by Rule 9.1. See State v. Baker, 217 Ariz. 118,
121, ¶ 15 (App. 2007) (minute entry stating the defendant waived the right
to a jury trial, without more, was insufficient as evidence of waiver). Given
these ambiguities, and because the waiver of a constitutional right cannot
be found or presumed from a silent record, we cannot conclude the superior
court’s inference of voluntariness was justified. See Avila, 127 Ariz. at 25
(“[I]n any proceeding involving the surrender of Constitutional rights, it
must appear from the record that the waiver was knowingly, intelligently
and voluntarily made. Such condition of mind, moreover, will not be
presumed from a silent record.”).

¶25            Under these circumstances, a remand is appropriate for a
hearing to determine whether Dressig was adequately informed of her right
to be present and that the trial could proceed in her absence if she failed to
appear. See, e.g., State v. Perez, 115 Ariz. 30, 32 (1977) (when the record
provided an insufficient basis to determine whether a defendant was
advised of rights articulated in Rule 9.1, a remand for an evidentiary
hearing was necessary); State v. Cook, 115 Ariz. 146, 150 (App. 1977)
(remanding for hearing to determine circumstances surrounding
defendant’s absence), supplemented, 118 Ariz. 154 (App. 1978), overruled in
part on other grounds by State v. Fettis, 136 Ariz. 58, 59 (1983). If the superior
court determines Dressig received adequate notice of her right to be present
and the consequences of failing to appear before absconding, Dressig’s
convictions and sentences are affirmed. However, if the superior court
concludes Dressig did not receive such notice and that her absence was,
therefore, involuntary, her convictions and sentences must be set aside.
Whatever the result of the hearing, the party adversely affected by the
ruling may then appeal. A.R.S. § 13-4032(4) (the State may take an appeal
from “[a]n order made after judgment affecting the substantial rights of the
state”); A.R.S. § 13-4033(A)(3) (same but for appeal taken by the defendant).




                                       10
                          STATE v. DRESSIG
                         Decision of the Court

                             CONCLUSION

¶26           The case is remanded to the superior court for proceedings
consistent with this decision.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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