                    SUPREME COURT OF ARIZONA
                             En Banc

STATE OF ARIZONA,                 )   Arizona Supreme Court
                                  )   No. CR-12-0462-PR
                       Appellant, )
                                  )   Court of Appeals
                 v.               )   Division One
                                  )   Nos. 1 CA-CR 11-0592
KEVIN OTTAR and RUAN JUNIOR       )        1 CA-CR 11-0600
HAMILTON,                         )         (Consolidated)
                                  )
                       Appellees. )   Maricopa County
                                  )   Superior Court
                                  )   Nos. CR2010-155798-001
                                  )        CR2010-155798-002
                                  )
                                  )   O P I N I O N
__________________________________)


        Appeal from the Superior Court in Maricopa County
              The Honorable Paul J. McMurdie, Judge

                            REVERSED
________________________________________________________________

    Memorandum Decision of the Court of Appeals, Division One
                        Filed Oct. 9, 2012

                            AFFIRMED
________________________________________________________________

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY              Phoenix
     By   E. Catherine Leisch, Deputy County Attorney
Attorneys for the State of Arizona

MEHRENS AND WILEMON PA                                       Phoenix
     By   Craig Mehrens
          Amy Wilemon
Attorneys for Kevin Ottar

KIMERER & DERRICK PC                                     Phoenix
     By   Clark L. Derrick
          Michael Alarid, III
Attorneys for Ruan Junior Hamilton
________________________________________________________________
P E L A N D E R, Justice

¶1                           In            a          “reverse-sting”                operation,          undercover             law

enforcement                             officers               sell       drugs       or      other       contraband            to

unsuspecting purchasers.                                             The issue here is whether purchasers

who handle and pay for drugs in a reverse sting, but do not and

would not have been allowed to take them away, can be said to

“possess” drugs for sale.                                            Contrary to the purchasers’ argument,

we         conclude                     that              it   is    possible        to     commit       the    offense         of

possessing drugs for sale under these circumstances.

                                                                           I.

¶2                           An          undercover                 detective        arranged       to     sell       a    large

quantity                    of         marijuana               to    defendants            Ruan    Hamilton       and      Kevin

Ottar.1                        The            marijuana             was    in     bales       in    a     warehouse            that

undercover                         law             enforcement            officers         covertly       monitored            and

controlled.                                The           defendants        and       the    detective          went       to   the

warehouse, where the defendants touched, smelled, and inspected

the           marijuana                      bales,            placing     those       they       liked    into       separate

piles.                      The           defendants                agreed      to    buy    375     pounds,      left         the

warehouse, and met with undercover detectives at a house, where

the defendants paid $180,000 in cash for the intended purchase.

After returning to the warehouse, the defendants repackaged the
                                                            
1
     We describe the facts as set forth in the defendants’ joint
motion to dismiss, which indicated the facts were taken from law
enforcement reports and the grand jury presentation and were
“undisputed” for purposes of the motion.
                                                                           2 
 
marijuana using a product to mask the odor.                 They were arrested

at a hotel before taking any marijuana from the warehouse.

¶3          The defendants were charged, among other counts, with

possession of marijuana for sale, in violation of A.R.S. § 13-

3405(A)(2).        They jointly moved to dismiss that count under

Arizona Rule of Criminal Procedure 16.6(b), arguing broadly that

“it is impossible to commit possession of marijuana for sale in

a reverse sting operation,” and more specifically that they did

not possess the marijuana here because both the drugs and the

warehouse were controlled by police at all times.                    The trial

court    granted    the   motion   in   part,      ruling   that   “the   police

officers were never going to allow [the defendants] to possess

[the marijuana],” but permitted the State to proceed instead on

a charge of attempted possession.                 See   A.R.S. § 13-1001(A).

After the court dismissed the case without prejudice at the

State’s request, the court of appeals reversed, concluding that,

given the legal definition of “possess,” it was not impossible

for the defendants to have possessed the marijuana and committed

the charged offense even though the police never intended to

allow them to leave with the drugs.               State v. Ottar, Nos. 1 CA-

CR 11-0592, 1 CA-CR 11-0600, 2012 WL 4789834, at *2 ¶ 8 (Ariz.

App. Oct. 9, 2012) (mem. decision).

¶4          We granted review because the question of possession

in   a   reverse-sting    operation     is   of    statewide   importance    and

                                        3 
 
likely to recur.           We have jurisdiction under Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

                                            II.

¶5            Under    §    13-3405(A)(2),            it   is    unlawful      to    knowingly

possess marijuana for sale.                     Although that statute does not

define “possess,” A.R.S. § 13-105(34) does:                            “‘Possess’ means

knowingly to have physical possession or otherwise to exercise

dominion or control over property.”                           The statutory definition

thus recognizes two kinds of possession:                         actual possession (“to

have    physical      possession”)         and        constructive        possession     (“or

otherwise to exercise dominion or control over property”).

¶6            The     State       claims        that       the    defendants          actually

possessed     the     marijuana;      it    does        not     advance    a    constructive

possession theory.            Cf. State v. Villavicencio, 108 Ariz. 518,

520,    502    P.2d       1337,    1339    (1972)          (generally,         “constructive

possession” applies to circumstances where the drug is not found

on the defendant’s person or in his presence, but rather in a

place   “under      his    dominion       and        control”    and   when     “it    can   be

reasonably inferred that the defendant had actual knowledge of

the existence of the narcotics”).                          The defendants argue that

they never actually possessed the marijuana and that it was

impossible for them to do so.

¶7            As    an      initial       matter,          we     reject       the     State’s

contentions that “physical possession” is distinct from having

                                                4 
 
“dominion     or    control”         over     property,                 and     that     possession

occurred    when    the     defendants        merely          touched          and      handled    the

marijuana.          We    instead           conclude,              as     indicated           by    the

definitional statute’s use of the phrase “otherwise to exercise

dominion or control over property,” that “physical possession”

requires some exercise of dominion or control over property.

A.R.S. § 13-105(34) (emphasis added); see also id. § 13-105(35)

(stating    that    “‘[p]ossession’            means          a     voluntary           act   if   the

defendant     knowingly         exercised           dominion              or       control         over

property”); United States v. Adams, 625 F.3d 371, 383 (7th Cir.

2010)    (“One     actually     possesses           a    thing          when       it   is    in   his

physical    custody      and    control.”);             cf.       State       v.   Barreras,        112

Ariz. 421, 423, 542 P.2d 1120, 1122 (1975) (reversing conviction

for possession of heroin when no evidence supported finding that

the     defendant    “had      dominion       and       control,              either     actual     or

constructive,” over the drugs).

¶8           “Dominion”        is    not    alleged           or    at        issue     here.      The

critical      question,             then,      is        whether               the       defendants

“exercise[d] . . . control”                 over        the        marijuana            within     the

meaning of § 13-105(34).              Because Arizona’s criminal statutes do

not define “control,” we give that word its ordinary meaning.

A.R.S. § 1-213; see State v. Cox, 217 Ariz. 353, 356 ¶ 20, 174

P.3d 265, 268 (2007) (noting that “control is not a technical

term” and “has a commonly understood meaning”).

                                              5 
 
¶9           Generally, control means to “have power over.”                       State

v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App. 1986)

(quoting      Webster’s      Third      New        International           Dictionary

(Unabridged) 496 (1981)); see also Black’s Law Dictionary 378

(9th ed. 2009) (defining “control” as “[t]o exercise power or

influence over”).        Thus, control implies more than mere touching

or    inspection    of   contraband.         In   the    reverse-sting       context,

control requires that the defendant “has taken custody of the

drugs or manifested an intent to do so.”                    Adams, 625 F.3d at

383.    This meaning comports with “Arizona’s broad definition of

‘possess.’”        State v. Cheramie, 218 Ariz. 447, 449 ¶ 11, 189

P.3d 374, 376 (2008).         But it also differentiates the crime of

possession from that of attempted possession.                 See United States

v. Kitchen, 57 F.3d 516, 525 (7th Cir. 1995) (“[R]eading the

element of control out of the equation . . . risk[s] confusing

possession with attempted possession.”).

¶10          Kitchen and Adams, both reverse-sting cases decided by

the Court of Appeals for the Seventh Circuit, aptly illustrate

these    principles.         In     Kitchen,       the     court    reversed        the

defendant’s    conviction     for    possessing         cocaine    with    intent   to

distribute     because     the    evidence        showed    only    that     he     had

momentarily handled and inspected the cocaine after expressing

an interest in buying some.            Id. at 519, 524-25.                No evidence

showed that, before his arrest, the defendant had assented to a

                                        6 
 
deal, otherwise agreed to complete the transaction, tendered any

purchase money, or intended to take or transport the drugs.                                     Id.

at    522-23.         Absent     any     such        facts,          possession       was      not

established       because      the     defendant          “neither          controlled        [the

drugs] nor had recognized authority over them.”                                 Id. at 525.

“Lack of control,” the court concluded, was “dispositive under

both the doctrines of actual and constructive possession.”                                    Id.

¶11          Conversely, in Adams, the court upheld the defendant’s

conviction for possessing marijuana with intent to distribute,

finding     the    evidence        sufficient             to    establish          actual      and

constructive      possession.           625        F.3d    at       385-86.        There,      the

defendant    paid      for   the     marijuana,           took       the    keys    to    a    van

containing      the    drugs,    and     attempted             to   start     the    van,      not

knowing   that     federal      agents       had     disabled         it.      Id.       at   376.

Distinguishing          Kitchen,        the         court           noted     that        “Adams

unequivocally         manifested       his     assent          to     possession         of    the

marijuana,” “constructively possess[ing]” it “once he accepted

the keys to the van,” and “actually possess[ing] it once he

entered the van and attempted to start it.”                                  Id. at 385-86.

Even though a defendant in a reverse-sting operation “ha[s] no

practical ability to leave the scene with the [drugs]” because

of “the presence of law enforcement officers standing ready to

arrest him,” the Adams court reasoned that “the defendant, by

knowingly taking the drugs into his custody, has done all that

                                              7 
 
he can do, short of leaving the scene with them, to signal his

desire and intention to accept control over the drugs.”                           Id. at

383-84    (collecting        cases   from        other    federal     circuit     courts

finding    possession        in   reverse-sting          operations       with   similar

facts); cf. State v. Gasperino, 859 S.W.2d 719, 722 (Mo. Ct.

App. 1993) (constructive possession charge not defeated by fact

that defendant “never would have had actual possession due to

police policy,” or that officers intervened with arrest before

defendant “could actually pick up the marijuana” he thought he

had purchased).

¶12            Like    the   court   in      Kitchen,       we   conclude        that   a

defendant in a reverse-sting operation does not possess drugs

merely    by    touching     or   inspecting       them    before     a    purchase     is

consummated.          See 57 F.3d at 525 (“The intent to engage in a

drug transaction, without more, cannot support a conviction for

possession.”).         But like the court in both Kitchen and Adams, we

also conclude that possession is not rendered legally impossible

merely because a defendant does not leave the scene with the

drugs and has little practical ability to do so.                            See id. at

522, 524 (noting that many courts have “reject[ed] the argument

that a defendant cannot have possessed the controlled substance

in light of the presence of federal agents,” and that Kitchen’s

lack of control was “not because the presence of federal agents

would have ultimately prevented his success”); Adams, 625 F.3d

                                            8 
 
at 385 (the defendant’s ability or opportunity “to drive away

[with the drugs] was not necessary to establish his possession

of the marijuana”).                “Of necessity, the particulars of a given

drug transaction will drive the determination that a certain

aspect    of     the    defendant’s            conduct         is    unequivocal          enough      to

establish possession.”              Kitchen, 57 F.3d at 523.

¶13            Applying       those       principles,           we        conclude    that       in     a

reverse-sting          operation,         a    defendant            may    be     found    to        have

possessed drugs within the meaning of Arizona’s statutes if the

defendant exerts some control over or manifests an intent to

control the drugs.            See Adams, 625 F.3d at 383; Kitchen, 57 F.3d

at 524-25.        On the facts alleged here, Ottar and Hamilton did

so, “signal[ing] [their] desire and intention to accept control

over     the    drugs”     by       not       merely       touching         and    smelling           the

marijuana, but by segregating and arranging in separate piles

the    portions     they       wanted         to    buy,       repackaging         those    bundles

(using    a     product       to    mask       the       odor),      and     paying       for    their

intended       purchase.           Adams,      625       F.3d   at    384.         Those     actions

sufficiently       demonstrate            the       defendants’           intent     to    exercise

control    over     and       possess         the    marijuana,            notwithstanding           the

police    presence       at    the    scene.             The    Arizona         statutes        do   not

suggest that, to have physical possession, one’s exercise of

control must be exclusive of others’ or absolute.

¶14            The defendants, however, argue (and the trial court

                                                    9 
 
essentially    ruled)       that      their    conduct        falls      squarely    within

A.R.S.   §   13-1001,       which       defines      the    preparatory         offense     of

attempt, and the State is therefore precluded from charging them

with the completed offense under § 13-3405(A)(2).                            We disagree.

¶15          “An     attempt       is       substantively          different        from     a

completed crime” and “requires only that the defendant intend to

engage in illegal conduct and that he take a step to further

that conduct.”       Mejak v. Granville, 212 Ariz. 555, 559 ¶ 20, 136

P.3d 874, 878 (2006) (citing A.R.S. § 13-1001).                              “The ultimate

crime need not be completed, or even possible, for a defendant

to be criminally responsible for an attempt to commit a crime.”

Id.      Conversely,        “a     defendant         cannot       be     held    criminally

responsible    for     a    completed        crime     when       it    is   impossible     to

commit the offense,” id. ¶ 21, that is, “when the facts required

for the commission of the completed offense are not present,

even though the defendant may believe so,” id. at 558 ¶ 15, 136

P.3d at 877.

¶16          Relying       on    Mejak,      the     defendants          contend    it     was

impossible     for     them      to      commit       the     completed         offense     of

possession    of     marijuana        for     sale.         But    in    that    case,     the

defendant “could not violate the criminal statute [A.R.S. § 13-

3554] under which he was indicted” because the person he lured

for sexual exploitation was in fact neither a minor nor a peace

officer posing as a minor, a statutory prerequisite for the

                                             10 
 
completed crime.         Id. at 559 ¶ 21, 136 P.3d at 878.                             Here, in

contrast, the practical improbability of the defendants taking

marijuana from the warehouse does not render their possession of

the drugs, and thus their commission of the completed offense,

legally impossible.           Nor is this case like State v. McElroy, in

which     “the    defendant         could       never       have      been     convicted      of

possession of dangerous drugs” when the material he possessed

was not illegal, even though he thought it was.                               128 Ariz. 315,

317, 625 P.2d 904, 906 (1981).

¶17         The    State      certainly          could      have       charged      Ottar    and

Hamilton with attempted possession of marijuana for sale, and it

then    would    have   had     an    easier      case      to       prove.      But    nothing

required    the    State      to     charge      only       attempt      rather       than   the

completed crime, despite the defendants’ claim of impossibility.

See     People    v.    Rizo,      996    P.2d        27,     30      (Cal.    2000)     (“When

determining      whether      the     commission         of      a    crime    is     factually

impossible, we do not concern ourselves with the niceties of

distinction       between       physical        and     legal         impossibility,”        but

rather “focus on the elements of the crime and the intent of the

defendant.” (internal quotation marks omitted)).

¶18         Defendants        also       rely    heavily         on    State     v.    Miramon,

which, unlike this case, concerned whether the evidence at trial

was sufficient to establish constructive possession.                                   27 Ariz.

App. 451, 452, 555 P.2d 1139, 1140 (1976).                            The court of appeals

                                            11 
 
in     Miramon       found       insufficient          evidence         to      support          the

defendant’s conviction of possession of marijuana for sale in

part because “the state did not prove that [the defendant] had

the right to control [the marijuana’s] disposition or use.”                                      Id.

at    453,     555   P.2d    at     1141.            But    no   such     prerequisite           to

possession is found in the statutes or cases.                           See A.R.S. §§ 13-

105(34), -3405(A)(2); State v. Salinas, 181 Ariz. 104, 106, 887

P.2d 985, 987 (1994) (recognizing the elements of possession of

narcotics      for    sale).        It    is    not        necessary      for    a     defendant

charged with actually possessing drugs to be found to have had a

“right,” legal or otherwise, to control their disposition or

use.      We    therefore        reject   the        defendants’        effort       to    extend

Miramon to this case.

¶19            Defendants also urge us to follow Skrivanek v. State,

a reverse-sting case in which the trial court found dominion or

control      lacking       and     therefore         dismissed      possession            charges

against the defendant, who was convicted instead of attempted

possession.          739    A.2d    12,   16-18        (Md.      1999).         That      case   is

inapposite, however, because the trial court’s ruling on the

possession charges was not at issue on appeal.                               Id. at 14.           In

addition, that ruling was colored by the trial court’s reliance

on an undercover officer’s testimony that the defendant “was in

custody” at all pertinent times.                     Id. at 17.        Here, in contrast,

the defendants were not in custody until they were arrested,

                                               12 
 
several                  hours               after             they    had    extensively       handled,     inspected,

paid for, and repackaged the marijuana they wanted to buy.

                                                                         III.

¶20                          We hold that it was not legally impossible for the

defendants                         to          possess           the     marijuana,          despite   the    practical

difficulty                         of         leaving            the    scene      with      it,   given     the    police

presence                    in         the           reverse-sting            operation.           Because    the   facts

alleged are not insufficient as a matter of law, the trial court

erred in dismissing the possession-for-sale charge under Rule

16.6(b).2                        We thus reverse that ruling and affirm the court of

appeals’                    decision.                          Like    the    court     of    appeals,     however,     we

express no opinion whether the evidence to be presented at trial

will suffice to sustain convictions on the possession charge.

See          Ariz. R. Crim. P. 20.                                           At that stage, unlike now, the

question                     will              be         whether       there      is   “evidence      sufficient      to
                                                            
2
     At oral argument, the parties disagreed on some of the
underlying facts. The defendants, for example, argued that they
went to the warehouse only once, contrary to the “undisputed”
facts set forth in their motion to dismiss.       Such factual
disputes, however, are immaterial at this stage of the
proceedings.   Motions to dismiss under Rule 16.6(b) are not a
means for testing, before trial, whether the state has enough
evidence to prove the elements of an offense. Compare Ariz. R.
Crim. P. 16.6(b) (standard for dismissal is whether charge “is
insufficient as a matter of law”), with Ariz. R. Crim. P. 20
(standard for judgment of acquittal on charge is whether “there
is no substantial evidence to warrant a conviction”).     “If a
defendant can admit to all the allegations charged in the
indictment and still not have committed a crime, then the
indictment is insufficient as a matter of law” and subject to
dismissal under Rule 16.6.   Mejak, 212 Ariz. at 556 ¶ 4, 136
P.3d at 875. That is not so here.
                                                                             13 
 
establish [the] defendant’s actual or constructive possession of

[marijuana]   once   the   defendant    or   his   accomplice   has   taken

custody of the drugs or manifested an intent to do so.”               Adams,

625 F.3d at 383.



                            __________________________________
                            John Pelander, Justice


CONCURRING:


__________________________________
Rebecca White Berch, Chief Justice


__________________________________
Scott Bales, Vice Chief Justice


__________________________________
Robert M. Brutinel, Justice


__________________________________
Ann A. Scott Timmer, Justice




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