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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   LAMONT MOLNAR WEST, Appellant.

                             No. 1 CA-CR 15-0433
                               FILED 7-26-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-446784-001
                  The Honorable Daniel J. Kiley, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joseph L. Hermes
Counsel for Appellant
                             STATE v. WEST
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.


O R O Z C O, Judge:

¶1           Lamont Molnar West (Defendant) appeals his conviction and
sentence for one Count of possession or use of marijuana, a class one
misdemeanor. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In December 2012, Officer Steven Gilbert of the Gilbert Police
Department stopped a vehicle for a cracked windshield. Thereafter, Officer
Gilbert contacted the driver, Defendant, and smelled unburned marijuana
coming from the vehicle. Officer Gilbert also noted a vial sticking out of
Defendant’s pocket containing a green leafy substance. Defendant showed
no signs of impairment.

¶3            After exiting the vehicle, Defendant told Officer Gilbert that
no marijuana was in the vehicle, and that the vial in his pocket contained
spice. Defendant also stated that he does not smoke marijuana, but he does
smoke spice. Officer Gilbert did not ask whether Defendant had a medical
marijuana card. Based on the marijuana odor, Officer Gilbert placed
Defendant in his patrol car, without handcuffs, and searched Defendant’s
vehicle for marijuana. The search uncovered a baggie of marijuana under
the driver’s seat. Defendant was arrested and charged with one count of
possession or use of marijuana, a class 6 felony. The parties later agreed to
designate the charged offense as a class 1 misdemeanor.

¶4           Defendant filed a motion to suppress and at the hearing,
Defendant argued that Officer Gilbert did not have probable cause to search
Defendant’s vehicle. Defendant contended that after passage of the
Arizona Medical Marijuana Act (AMMA), the smell of marijuana alone
does not make the incriminating character of the marijuana immediately
apparent. Rather, Defendant argued that upon smelling marijuana, officers
must then establish whether a suspect is a cardholder under the AMMA.
Only after establishing that a suspect is not a cardholder would the
incriminating character of the marijuana be apparent, thereby furnishing



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                              STATE v. WEST
                            Decision of the Court

probable cause for a search. The trial court denied Defendant’s motion to
suppress, reasoning:

       I do not believe that the Medical Marijuana Act undoes well-
       established case law that when the police smell odor of
       marijuana emanating from a vehicle that establishes probable
       cause for a search. I think that probable cause is not negated
       by the possibility that there’s an innocent explanation for the
       facts known to the officer.

¶5            After a bench trial in May 2015, the trial court found
Defendant guilty of one count of possession or use of marijuana, a class 1
misdemeanor.1 The trial court suspended imposition of the sentence,
placed Defendant on unsupervised probation for one year, and imposed a
$750 fine. Defendant timely appealed and we have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031, and -4033.A.1 (West 2016).2

                               DISCUSSION

I.     Motion to Suppress

¶6             Defendant first contends that the trial court erred in denying
his motion to suppress because the only evidence supporting probable
cause for the search of his vehicle was the odor of marijuana. We review
the denial of a motion to suppress for abuse of discretion, State v. Manuel,
229 Ariz. 1, 4, ¶ 11 (2011), but review legal issues de novo. State v. Moody,
208 Ariz. 424, 445, ¶ 62 (2004). We consider only the evidence presented at
the suppression hearing and do so in the light most favorable to sustaining
the trial court’s ruling. See State v. Blackmore, 186 Ariz. 630, 631-32 (1996).

¶7           An officer may conduct a warrantless search and seizure of
contraband under the plain smell doctrine if (1) the officer is lawfully in a
position to smell the contraband; (2) the incriminating character of the
object is immediately apparent; and (3) the officer has a lawful right to
access the object. State v. Baggett, 232 Ariz. 424, 428, ¶ 16 (App. 2013).
Officer Gilbert was lawfully in a position to smell the marijuana in

1     The parties agreed that Officer Gilbert’s testimony at the suppression
hearing could be considered at the bench trial in lieu of him offering new
testimony on the same subjects.

2     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                               STATE v. WEST
                             Decision of the Court

Defendant’s vehicle, and had a lawful right of access. Additionally, the
smell of marijuana furnished sufficient probable cause to Officer Gilbert
that marijuana was present and thus, that a crime was being or had been
committed. See id. at 428, ¶ 18 (reasoning that smell of marijuana from
backpack made its incriminating character immediately apparent); State v.
Harrison, 111 Ariz. 508, 509 (1975) (finding that the odor of marijuana
furnished probable cause). Therefore, the trial court did not abuse its
discretion by denying Defendant’s motion to suppress.

¶8             Defendant argues that the AMMA now requires something
beyond plain smell to furnish probable cause for a warrantless search, but
the Arizona Supreme Court has recently rejected that theory. See State v.
Sisco, CR-15-0265-PR, slip op. at 9, ¶ 26 (Ariz. July 11, 2016) (the illegality of
marijuana “in Arizona and AMMA’s limited exceptions thereto support
finding probable cause based on the smell or sight of marijuana alone
unless, under the totality of the circumstances, other facts would suggest to
a reasonable person that the marijuana use or possession complies with the
AMMA”); see also State v. Cheatham, CR-15-0286-PR, slip op. at 4, ¶ 11 (Ariz.
July 11, 2016) (concluding that when an officer smells marijuana emanating
from a vehicle, the officer “ha[s] probable cause to believe the vehicle
contain[s] contraband or evidence of criminal activity”). “[A]n officer
would be required to consider any indicia of AMMA-compliant possession
or use, and such facts . . . might dispel probable cause that otherwise exists
based on odor alone.” Cheatham, CR-15-0286-PR, slip op. at 4, ¶ 12.
Defendant offered no evidence that he was a cardholder under the AMMA
at the time of his arrest. Therefore, the trial court did not err in denying the
motion to suppress.

II.    Sufficiency of the Evidence

¶9             Defendant also asserts that “the State failed to present
sufficient evidence as to the element of knowledge and thereby a rational
trier of fact could not reasonably conclude guilt.” A conviction must be
based on “substantial evidence.” See Ariz. R. Crim. P. 20.a; State v. Mathers,
165 Ariz. 64, 67 (1990). “[T]he question is whether there was sufficient
evidence so that a rational trier of fact could have found guilt beyond a
reasonable doubt.” State v. Reinhardt, 190 Ariz. 579, 588 (1997). On appeal,
we do not consider whether we would reach the same outcome as the trial
court; rather, we consider “only if there is a complete absence of probative
facts to support its conclusion.” State v. Carlisle, 198 Ariz. 203, 206 (App.
2000) (internal punctuation and citation omitted). Whether evidence is
sufficient to sustain a verdict is a question of law we review de novo. See
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We view the evidence in the


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                           Decision of the Court

“light most favorable to sustaining the verdict, and resolve all reasonable
inferences against the defendant.” Reinhardt, 190 Ariz. at 588-89.

¶10           Under A.R.S. § 13-3405.A.1, “[a] person shall not knowingly
[p]ossess or use marijuana.” “’Knowingly’ means, with respect to conduct
or to a circumstance described by a statute defining an offense, that a person
is aware or believes that the person’s conduct is of that nature or that the
circumstance exists.” A.R.S. § 13-105.10(b). “’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. Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013). The State can prove
constructive possession though direct or circumstantial evidence, as long as
the evidence shows by “specific facts or circumstances that the defendant
exercised dominion or control” over the property. State v. Villalobos Alvarez,
155 Ariz. 244, 245 (App. 1987). A person’s mere presence at the location
where an item is located is insufficient to prove dominion or control. State
v. Miramon, 27 Ariz. App. 451, 452 (1976).

¶11            Sufficient evidence supported the trial court’s verdict here.
Officer Gilbert testified that he found the marijuana under the driver’s seat
of the vehicle that Defendant was driving. The record contains no evidence
of other occupants in the vehicle. The odor of the marijuana was strong
enough that Officer Gilbert recognized it while standing beside the vehicle.
Based on this evidence, a reasonable inference arises that Defendant was
aware of the marijuana under his seat and that it was under Defendant’s
dominion or control. See Carroll v. State, 90 Ariz. 411, 413-14 (1962) (“There
must be a presentation of a specific fact from which the [factfinder] may
reasonably infer the defendant knew of the existence of the narcotic as
found in his immediate vicinity before he may be chargeable with its
possession.”). Because we resolve all reasonable inferences against
Defendant, see Reinhardt, 190 Ariz. at 588-89, there was sufficient evidence
that he knowingly possessed the marijuana at the time of his arrest.




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                             STATE v. WEST
                           Decision of the Court

                             CONCLUSION

¶12           For the foregoing reasons, we affirm the trial court’s verdict
and the resulting sentence.




                                  :AA




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