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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    PABLO JOSE MARQUEZ, Appellant.

                             No. 1 CA-CR 16-0622
                               FILED 8-22-2017


            Appeal from the Superior Court in Apache County
                         No. S0100CR201500271
            The Honorable C. Allan Perkins, Judge Pro Tempore

                      REVERSED AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

The Rigg Law Firm, P.L.L.C., Pinetop
By Brett R. Rigg
Counsel for Appellant
                           STATE v. MARQUEZ
                           Decision of the Court


                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia A. Orozco1 joined.


C R U Z, Judge:

¶1            Appellant Pablo Jose Marquez appeals the superior court’s
finding of a probation violation. Marquez argues the court erred when it
found that a lighter constituted “drug paraphernalia,” that he had
possession of the lighter, and that he used or intended to use the lighter in
conjunction with illegal drugs. For the reasons listed below, we reverse and
remand.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In October 2015, Marquez was convicted of possession of
drug paraphernalia and was placed on probation. Four months later,
Detective Bishop stopped a car in which Marquez was a passenger. A
woman was driving the car; Marquez and another woman were in the back
seat. As the detective approached, all three lit cigarettes with a single torch
lighter. At Detective Bishop’s request, the driver exited the car and walked
with him to the patrol vehicle. While speaking with the driver, Detective
Bishop observed the woman in the back seat repeatedly reach toward the
front center console of the car.

¶3            Meanwhile, a second officer and his police dog arrived, and
the police dog alerted to the presence of contraband in the car. A search
uncovered a purse in the front center console area. The purse contained a
meth pipe with white residue, small rectangular pieces of tinfoil with burn
residue, two short straws with residue, and a pocket scale.2 A torch lighter
was discovered in the back seat.



1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2      Marquez does not challenge the legality of the stop or subsequent
search.



                                      2
                            STATE v. MARQUEZ
                            Decision of the Court

¶4            Marquez’ probation officer filed a petition to revoke his
probation. The superior court declined to find Marquez possessed any of
the drug paraphernalia in the purse, but found he was in constructive
possession of the lighter. Based on the evidence that the occupants of the
car used the lighter to ignite their cigarettes, and its finding that Marquez
had “knowledge of the illegal activity within the car,” the court concluded
that Marquez’ possession of the lighter constituted possession of drug
paraphernalia.

¶5            Marquez timely appealed. This Court has jurisdiction
pursuant to Arizona Constitution Article 6, Section 9, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A).3

                                DISCUSSION

¶6            A probation violation must be established by a
preponderance of the evidence, Ariz. R. Crim. P. 27.8(b)(3), and the superior
court’s finding of a violation will be upheld “unless the finding is arbitrary
or unsupported by any theory of evidence.” State v. Thomas, 196 Ariz. 312,
313, ¶ 3, 996 P.2d 113, 114 (App. 1999). On review, this Court views the
evidence in the light most favorable to sustaining the superior court’s
finding. State v. Tatlow, 231 Ariz. 34, 39-40, ¶ 15, 290 P.3d 228, 233-34 (App.
2012).

¶7            Marquez argues the lighter found in the back seat was not
drug paraphernalia, he did not possess it, and even if he did possess it, he
did not do so in connection with a controlled substance.

¶8              Possession of an item, without evidence of use or an intent to
use the item in conjunction with drugs, is insufficient to show a violation.
See State v. Estrada, 197 Ariz. 383, 387-88, ¶ 21, 4 P.3d 438, 442-43 (App. 2000)
(“The instruments and devices that amount to paraphernalia are not
unlawful per se . . . [they] may constitute drug paraphernalia, but only to
the extent that they are used or intended to be used in conjunction with a
controlled substance–that is, an unlawful drug.”).

¶9            To establish that Marquez violated the terms of his probation
by possessing drug paraphernalia, as alleged, the State was required to
demonstrate, by a preponderance of the evidence, that Marquez possessed
the torch lighter with the intent that it be used to “inject, ingest, inhale, or
otherwise introduce into the human body a drug . . . .” A.R.S. § 13-3415(A).

3      We cite the current version of statutes unless revisions material to
this decision have since occurred.


                                       3
                           STATE v. MARQUEZ
                           Decision of the Court

The superior court found Marquez constructively possessed the torch
lighter, as evidenced by his lighting of a cigarette with it.

¶10           In determining whether a torch lighter constitutes “drug
paraphernalia,” the superior court must consider relevant factors including,
but not limited to, the proximity of the lighter to the drugs and direct or
circumstantial evidence of Marquez’ intent to use the lighter to facilitate the
consumption of an illicit substance. A.R.S. § 13-3415(E).

¶11            The superior court found there was no testimony that
Marquez had any connection to the other items of contraband found within
the vehicle, all of which were inside the purse. The court found that it was
the “knowledge of the illegal activity within the car, that constitute[d]
possession of paraphernalia.” But Marquez’ knowledge of the other
women’s use or intent to use the lighter in conjunction with drugs does not
establish intent on the part of Marquez to do the same. Marquez’ use or
intent to use the lighter as drug paraphernalia must be independently
shown. The superior court’s finding that the contraband found within the
purse was not possessed by Marquez negates the inference that he used or
intended to use the lighter as drug paraphernalia.

                               CONCLUSION

¶12           Because the superior court did not find evidence of Marquez’
knowledge of the existence of illegal contraband within the vehicle,
ongoing illegal activity involving Marquez, or his use or intent to use the
lighter in any way other than to light a cigarette, a finding that the torch
lighter was drug paraphernalia as to Marquez is unsupported.

¶13            For the foregoing reasons, we reverse the superior court’s
finding of violation of probation and remand for further proceedings.




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




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