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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JESSE GONZALES, JR., Appellant.

                             No. 1 CA-CR 18-0741
                               FILED 9-24-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-156549-001
                  The Honorable Dewain D. Fox, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
                          STATE v. GONZALES
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Samuel A. Thumma joined.


C R U Z, Judge:

¶1            Jesse Gonzales, Jr., (“Gonzales”) was convicted of knowingly
possessing a firearm while being a prohibited possessor. Gonzales appeals
the superior court’s denial of his requested “mere presence” jury
instruction. We affirm the superior court’s denial of the instruction.

              FACTUAL AND PROCEDURAL HISTORY

¶2             Acting on an informant tip, officers from Chandler Police
Department set up surveillance at a motel where Ray Arvizo (“Arvizo”)
was staying, hoping to apprehend Arvizo on two outstanding warrants.
Officers saw Arvizo leave a motel room with Gonzales, who was carrying
a black duffle bag. The two men walked to Gonzales’ vehicle in the parking
lot, then got in and drove off.

¶3            Officers executed a traffic stop and arrested Arvizo pursuant
to the outstanding warrants. Gonzales consented to a search of the vehicle.

¶4            During the search, officers found Gonzales’ black duffle bag
on the back seat of the vehicle. Officers searched the bag and found two
bags of protein powder. Inside the bags of protein powder, officers found
two plastic bags that contained a firearm and ammunition. Officers
arrested Gonzales because they knew he was a prohibited possessor of
deadly weapons.

¶5            Officers took Gonzales in for questioning and issued Miranda
warnings. Miranda v. Arizona, 384 U.S. 436 (1966). Gonzales initially denied
the firearm was his but later admitted having had it for weeks, that he knew
he was a prohibited possessor, and that he understood the potential
consequences for having a firearm included years in prison. Gonzales also
identified the contents of the bag.

¶6              The State charged Gonzales with knowingly possessing a
deadly weapon while being a prohibited possessor. Gonzales did not
testify at trial. The defense theory was that Gonzales did not know the


                                     2
                           STATE v. GONZALES
                            Decision of the Court

firearm was inside his bag. Counsel asserted that Arvizo was aware of the
firearm, and that Gonzales was merely present while Arvizo, also a
prohibited possessor, possessed the firearm in violation of the law. Based
on the theory that Gonzales did not know the firearm was in the bag,
Gonzales requested a “mere presence” jury instruction. The State objected,
arguing that the facts did not warrant the instruction. The superior court
held that such an instruction only applies to accomplice liability cases and
therefore declined to provide the requested instruction because Gonzales
was not charged as an accomplice.

¶7            The parties agreed on the remaining instructions, including
the definitions of “knowingly” and “possess.” The superior court
instructed the jury that “knowingly” means “that a defendant acted with
awareness of, or in belief in, the existence of conduct or circumstances
constituting the offense.” It further instructed that “possess” means
“knowingly to have physical possession or otherwise exercise dominion or
control over the property.”

¶8           The jury found Gonzales guilty as charged and found the fact
that he was on community supervision to be an aggravating circumstance.
Gonzales also admitted to five prior felony convictions, and the court
sentenced him to a presumptive ten-year prison term.

¶9           Gonzales filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 120.21(A)(1).

                               DISCUSSION

I.     Standard of Review

¶10           We review the superior court’s “denial of a requested jury
instruction for an abuse of discretion.” State v. Wall, 212 Ariz. 1, 3, ¶ 12
(2006). “A party is entitled to an instruction on any theory reasonably
supported by evidence.” State v. LaGrand, 152 Ariz. 483, 487 (1987). Despite
the superior court’s reasoning, we will affirm the superior court’s denial of
a jury instruction “if the result was legally correct for any reason.” State v.
Perez, 141 Ariz. 459, 464 (1984).

II.    “Mere Presence” Instruction and Accomplice Liability

¶11          Gonzales argues—and the State concedes—that the superior
court erred when it held that the “mere presence” instruction only applies
in accomplice liability cases. We agree.



                                      3
                           STATE v. GONZALES
                            Decision of the Court

¶12           The “mere presence” instruction is of particular importance
in accomplice liability cases. Indeed, we have held that “in a prosecution
for accomplice liability based on actual presence, the trial judge must, if
requested, give a mere presence instruction.” State v. Noriega, 187 Ariz. 282,
286 (App. 1996). But accomplice liability cases are not the only type of cases
in which such an instruction may be given. See id. The proper standard is
whether a requested instruction is “reasonably supported by evidence.”
LaGrand, 152 Ariz. at 487; see also Doerr, 193 Ariz. at 65, ¶ 36 (evidence did
not support “mere presence” instruction in murder case); see also State v.
Martinez, 175 Ariz. 114, 118 (App. 1993) (“mere presence” instruction not
warranted in obstruction of justice case).

¶13           Accordingly, the superior court erred when it held that the
“mere presence” instruction only applies if a defendant is charged as an
accomplice. Nevertheless, we will affirm the court’s holding if it is “legally
correct for any reason,” Perez, 141 Ariz. at 464, and here, the requested
instruction was not warranted based on the evidence presented.

III.   Inadequate Evidence Supporting “Mere Presence” Instruction

¶14            Gonzales argues the evidence supported his defense theory
that he did not know that the firearm was in the bag and therefore he was
entitled to a “mere presence” instruction. We disagree.

¶15          The “mere presence” instruction provides in part that “[g]uilt
cannot be established by the defendant’s mere presence at a crime scene,
mere association with another person at a crime scene or mere knowledge
that a crime is being committed.” Revised Arizona Jury Instructions
Standard Criminal 31 (4th ed. 2018). “One who is merely present is a
passive observer who lacked criminal intent and did not participate in the
crime.” Id.

¶16           In this case, the evidence presented established that Gonzales
was more than merely present during the commission of a crime or a
passive observer. Officers saw Gonzales leave the hotel with a bag, that
same bag was found in the back seat of the car accessible by Gonzales, and
it contained a firearm. Gonzales confirmed that the bag was his and
identified its contents. Additionally, while Gonzales initially denied
owning the firearm, he eventually admitted that he had been in possession
of it for “maybe weeks.” Gonzales also admitted he understood the
consequences of possessing a firearm, a possible explanation to its
concealed location and manner. Gonzales’ video-recorded admission was
played to the jury and, though Gonzales’ counsel argued to the contrary, no



                                      4
                          STATE v. GONZALES
                           Decision of the Court

contradicting evidence was ever admitted at trial. See State v. Goudeau, 239
Ariz. 421, 466, ¶ 199 (2016) (statements and arguments by counsel are not
evidence). Accordingly, under the unique facts of this case, there was no
evidentiary support for a “mere presence” instruction, and the court did
not err by denying Gonzales’ requested instruction.

                              CONCLUSION

¶17          For the forgoing reasons, we affirm.




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




                                       5
