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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                PAUL CURTIS WILLIAMSON, JR., Appellant.

                              No. 1 CA-CR 19-0421
                                FILED 8-4-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR 2017-143919-001
          The Honorable Annielaurie Van Wie, Judge Pro Tempore

                         AFFIRMED AS MODIFIED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By, Joseph T. Maziarz, Michael T. O’Toole, Alice M. Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
                         STATE v. WILLIAMSON
                           Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.


P E R K I N S, Judge:

¶1           Paul Curtis Williamson, Jr. appeals his conviction for
possession of drug paraphernalia. For the following reasons, we affirm as
modified.

              FACTUAL AND PROCEDURAL HISTORY

¶2            Mid-morning in late March 2017, a Mesa law enforcement
officer knocked on a hotel room door attempting to serve an arrest warrant.
A woman—not the subject of the warrant—answered the door. From the
doorway, the officer saw a long counter to the left with a bag containing a
white crystalline substance. He also saw Williamson asleep on a bed to the
right.

¶3             The woman who answered the door invited the officer into
the hotel room and claimed she was only there visiting a friend. The officer
then identified a straw and a glass pipe located near the bag of the
crystalline substance. The officer woke Williamson and questioned him.
Williamson said that the bag of the crystalline substance and the straw was
his for ingesting methamphetamine, and a forensic scientist later confirmed
the substance was methamphetamine. Williamson claimed that the glass
pipe belonged to a friend who used it to ingest methamphetamine, though
he did not identify that friend. Williamson also stated that a friend had
registered for him to use the room. Police then arrested Williamson.

¶4           The State charged Williamson with one count of possession of
dangerous drugs and two counts of possession of drug paraphernalia (one
count for possession of the straw and another count for the pipe). At the
close of evidence, Williamson moved for judgment of acquittal under
Arizona Rule of Criminal Procedure 20, which the court denied. A jury
found Williamson guilty on all three counts.

¶5          Williamson timely appealed his conviction of possession of
drug paraphernalia pertaining to the pipe.



                                     2
                          STATE v. WILLIAMSON
                            Decision of the Court

                                DISCUSSION

¶6           Williamson argues the trial court erred in denying his Rule 20
motion for acquittal because it lacked sufficient evidence at trial that he
possessed the pipe. We review sufficiency of evidence for a Rule 20 motion
for judgment of acquittal de novo. State v. West, 226 Ariz. 559, 562, ¶ 15
(2011).

¶7               “[T]he court must enter a judgment of acquittal on any offense
charged . . . if there is no substantial evidence to support a conviction.” Ariz.
R. Crim. P. 20(a). “Substantial evidence . . . is such proof that reasonable
persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” West, 226 Ariz. at 562, ¶ 16
(quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). “[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.” Id. (quoting Mathers, 165
Ariz. at 66). “Both direct and circumstantial evidence should be considered”
to determine whether substantial evidence supports a conviction when
reviewing a ruling on a Rule 20 motion. Id.

¶8             Williamson claims insufficient evidence showed that he
possessed, with intent to use, the glass pipe. See A.R.S. § 13-3415(A). In
support, Williamson says that he did not use the pipe and it belonged to a
friend. To “possess” is to “knowingly . . . 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). Constructive
possession means the possessor either exercised dominion and control over
the object or the “location in which the substance was found.” State v. Teagle,
217 Ariz. 17, 27, ¶ 41 (App. 2007). Constructive possession need not be
exclusive. Gonsalves, 231 Ariz. at 523, ¶ 9.

¶9             In viewing the evidence in the light most favorable toward
affirming the conviction, West, 226 Ariz. at 562, ¶ 15, a reasonable fact finder
could determine Williamson guilty of possession of the pipe. We reject
Williamson’s suggestion that he did not possess the pipe because it
belonged to his friend. Williamson occupied the hotel room when the
officer found him. While Williamson did not register the room in his name,
he admitted that someone else registered the room for his use. Given that
the officer found the pipe in the hotel room, a reasonable fact finder could
have concluded that Williamson constructively possessed the pipe through
his dominion and control over the room.




                                       3
                          STATE v. WILLIAMSON
                            Decision of the Court

¶10            Williamson also claims that he did not use the pipe and
therefore should not have been convicted of possession of the pipe. But
Williamson need not have used the pipe to have possessed the pipe for a
conviction under A.R.S. § 13-3415(A). State v. Gill, 248 Ariz. 274, 278, ¶ 11
(App. 2020) (upholding a conviction for possession with intent to use a
measuring scale). Williamson’s knowledge of the pipe’s existence and use
combined with his constructive control of the room was sufficient evidence
for the jury to find him guilty of possession with intent to use the pipe. See
A.R.S. § 13-3415(A); Teagle, 217 Ariz. at 27, ¶ 41.

¶11             The State charged Williamson separately for both the pipe
and the straw. In State v. Soza, we held “that the act of possessing drug
paraphernalia best reflects the unit of prosecution under A.R.S. § 13-
3415(A) . . . .” 249 Ariz. 13, 18, ¶ 23 (App. 2020). We invited supplemental
briefing on the application of Soza to this case, but the State did not timely
file a supplemental brief. After the deadline, the State filed a notice of
concession of error in lieu of a supplemental brief, which we now accept.
Under Soza, the State may not charge an individual with separate counts of
possession of drug paraphernalia for simultaneously possessed objects. Id.
This ruling applies retroactively. State v. Slemmer, 170 Ariz. 174, 181–82
(1991) (Arizona applies federal retroactivity jurisprudence); Schriro v.
Summerlin, 542 U.S. 348, 351 (2004) (applying a “new rule” interpreting a
criminal statute retroactively). Williamson’s two paraphernalia convictions
arose from his possession of both a pipe and a straw, but Williamson only
committed one “act” of possession, by possessing both objects at the same
time. Under Soza, Williamson cannot be convicted on two separate counts
for the straw and pipe. The appropriate remedy for a duplicative sentence
is merger. Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 14 n.4 (App. 2004). Accordingly,
we vacate Williamson’s conviction on count three for possession of drug
paraphernalia and merge that sentence into count two to reflect a single
sentence.

                              CONCLUSION

¶12          The evidence at trial was sufficient for a reasonable jury to
find Williamson guilty of one count of possession of dangerous drugs and
one count of possession of drug paraphernalia. We affirm Williamson’s
convictions on count one and two, but vacate his conviction on count three




                                      4
                STATE v. WILLIAMSON
                  Decision of the Court

¶13   and merge the two sentences into one.




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




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