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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    BRIAN RAY ROBINSON, Appellant.

                             No. 1 CA-CR 14-0281
                               FILED 3-17-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-114034-001
                 The Honorable Hugh E. Hegyi, Judge

                                  AFFIRMED


                                   COUNSEL

Attorney General’s Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                           STATE v. ROBINSON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.


J O N E S, Judge:

¶1           Brian Robinson appeals from his convictions and sentences
for possession of a dangerous drug for sale, misconduct involving a
weapon, and possession of drug paraphernalia. He contends the trial court
erred when it denied: (1) his Rule 20 motion based upon corpus delicti, and
(2) his request to argue the affirmative defense of inoperability of the
weapon. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            The charges were brought against Robinson after narcotic
detectives executed a search warrant at Robinson’s residence. Before
entering the house, detectives disabled several security cameras located on
the outside of the house. Once inside the home, detectives located
Robinson’s girlfriend, Christina, in the living room, and Robinson’s baby in
the southwest bedroom. Upon the detectives’ entry, Robinson’s roommate,
Derek Hicks, attempted to flee out the back door, but retreated to a laundry
room structure that was detached from the house. After the detectives
removed Christina and the baby from the house and determined there were
no other persons present, the officers conducted a search of the home.

¶3            The three bedroom, two bath residence was described at trial
as a “[s]ingle story, single family residential house.” In the kitchen,
detectives found a digital scale and a number of micro-baggies. Detectives
found a glass pipe for smoking methamphetamine, as well as documents
and letters belonging to Hicks, in the northeast bedroom. The southeast
bedroom contained children’s clothing and toys that were later determined
to belong to two young boys who lived there but were not present at the
time of the search.



1      We view the evidence, and all reasonable inferences therefrom, in
the light most favorable to sustaining Robinson’s convictions. State v. Karr,
221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008).


                                     2
                            STATE v. ROBINSON
                            Decision of the Court

¶4            The southwest bedroom, where the baby was found,
contained men’s and women’s clothing, as well as clothes for “a small
child[].” In this bedroom’s closet, detectives located a plastic drill case that
contained 7.079 ounces of methamphetamine that had been separated into
multiple baggies, as well as a 9 mm Ruger handgun. In a dresser located
within this room, detectives found men’s socks, tee shirts and boxers, a
digital scale with white residue on it, micro-baggies, which a detective
explained at trial are routinely used to package methamphetamine for sale,
liquid dispensing cups containing white residue, and 9 mm bullets.
Detectives also discovered documents inside and on top of the dresser
bearing Christina’s and Robinson’s names and home address; among these
documents were a W-2G form and Robinson’s probation paperwork.
Detectives also located medicine bottles prescribed to Robinson.
Additionally, other drug paraphernalia items were scattered throughout
the room.

¶5            One of the detectives testified that, in his experience, seven
ounces was a considerable amount of methamphetamine that carried a
street value of approximately $5,000, which signified to him that it was
possessed for sale because most “street level users” generally possessed
“less than a half a gram.”

¶6             While the detectives were conducting their search, Christina
called Robinson, who returned home at her request. Once he arrived,
Robinson consented to an interview with police,2 in which he admitted he
lived at the house with Christina, three children, Hicks, and another person
named Raul Acosta, and that he shared the southwest bedroom with
Christina. He further admitted he sold methamphetamine a “half ounce at
a time” and “earned about $100 per half ounce.” Robinson also correctly
identified the gun found in his closet, and explained he kept it there for
protection because he had previously been robbed.

¶7            A jury found Robinson guilty on each count. For purposes of
sentencing, Robinson admitted he committed the offenses for pecuniary
gain, had two prior historical felony convictions, and was on probation at
the time the offenses were committed. The trial court sentenced Robinson
to the presumptive term of imprisonment on each count to be served
concurrently, with the longest sentence equaling 15.75 years. Robinson
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of



2      The interview was recorded and played at trial.



                                       3
                            STATE v. ROBINSON
                            Decision of the Court

the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections
12-120.21(A)(1),3 13-4031 and -4033(A)(1).

                               DISCUSSION

I.     The Trial Court Did Not Abuse its Discretion by Denying
       Robinson’s Rule 20 Motion.

¶8              Robinson argues that the trial court erred in denying his Rule
20 motion, which was premised upon his argument that there was no corpus
delicti for his admissions that he possessed the handgun and possessed the
drugs for sale. According to Robinson, his confessions provided the only
evidence of the crimes. “We review a ruling on the sufficiency of the
evidence of corpus delicti for abuse of discretion.” State v. Morris, 215 Ariz.
324, 333, ¶ 33, 160 P.3d 203, 212 (2007) (citations omitted) (italics added).4

¶9             “The corpus delicti doctrine ensures that a defendant’s
conviction is not based upon an uncorroborated confession or incriminating
statement.” Id. at ¶ 34 (italics added). Thus, “[a] defendant may not be
convicted of a crime based on an uncorroborated confession without
independent proof of the corpus delicti, or the ‘body of the crime.’” State v.
Morgan, 204 Ariz. 166, 170, ¶ 15, 61 P.3d 460, 464 (App. 2002) (citing State v.
Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983), and State v. Jones, 198
Ariz. 18, 23, ¶ 13, 6 P.3d 323, 328 (App. 2000)) (italics added). “[T]he State
must establish the corpus delicti by showing proof of a crime and that
someone is responsible for that crime.” Jones, 198 Ariz. at 22, ¶ 12, 6 P.3d at
327 (citations omitted). “‘[O]nly a reasonable inference of the corpus delicti
need exist’ before incriminating statements may be considered, and
circumstantial evidence can support such an inference.” Morris, 215 Ariz.
at 333, ¶ 34, 160 P.3d at 212 (quoting State v. Hall, 204 Ariz. 442, 453, ¶ 43,
65 P.3d 90, 101 (2003)). The State’s proof need only establish a reasonable
inference that the charged crime was committed. State v. Flores, 202 Ariz.
221, 222, ¶ 5, 42 P.3d 1186, 1187 (App. 2002). “The evidence need not be of


3     Absent material revisions from the relevant date, we cite a statute’s
current version.

4      The State urges us to hold the corpus delicti doctrine is no longer valid
in Arizona. Our supreme court still recognizes the validity of the doctrine,
Morris, 215 Ariz. at 333, ¶ 33, 160 P.3d at 212, and this Court has no authority
to overrule our supreme court. State v. Foster, 199 Ariz. 39, 41 n.1, ¶ 9, 13
P.3d 781, 783 n.1 (App. 2000) (citing Myers v. Reeb, 190 Ariz. 341, 342, 974
P.2d 915, 916 (App. 1997)).


                                       4
                            STATE v. ROBINSON
                            Decision of the Court

the quantum of proof beyond a reasonable doubt.” Jones, 198 Ariz. at 22,
¶ 12, 6 P.3d at 327 (citing State v. Gerlaugh, 134 Ariz. 164, 170, 654 P.2d 800,
806 (1982)).

¶10            While several formulations of the doctrine have been
recognized and applied, “Arizona cases have indicated that a corroborated
confession may be used to establish proof of an element of the crime.”
Morgan, 204 Ariz. at 171, ¶ 17, 61 P.3d at 465 (citing Flores, 202 Ariz. at 222,
¶ 5, 42 P.3d at 1187, and Jones, 198 Ariz. 22 n.6, ¶ 12, 6 P.3d at 327 n.6). The
corroborative approach “‘requires there be corroborative evidence,
independent of defendant’s confession, which tends to prove the
commission of the crime charged.’” Id. (quoting State v. Parker, 315 S.E.2d
487 (N.C. 1985), and citing John W. Strong et al., McCormick on Evidence
§ 145, at 525 (5th ed. 1999)).

¶11            Applying the corroborative approach, the trial court found
the State had provided sufficient evidence independent of Robinson’s
confession that Robinson engaged in the charged offenses. Specifically, the
court reasoned that the fact the paraphernalia was found in the drawer with
men’s underpants and documents pertaining to Robinson, coupled with the
detective’s testimony about the normal usage amount of methamphetamine
by street level users, was sufficient to sustain a finding that Robinson
possessed the methamphetamine in the case in his closet “for the purposes
of sale and not simply for personal consumption.” The court further found
there was sufficient connection between the paraphernalia and the contents
of the closet to defeat a Rule 20 motion. While the court expressed some
reservation with respect to the handgun, it nonetheless concluded there
was sufficient evidence Robinson lived at the house, and more importantly
in the same room where the handgun was recovered, for a jury to find he
possessed the handgun.

¶12             We agree with the trial court’s findings. Personal documents
and prescription medicine found in the bedroom support the inference that
Robinson occupied the room where a large quantity of methamphetamine,
and the drug paraphernalia for weighing and repackaging it, were located.
Furthermore, ammunition that fit the handgun found in the closet was also
located in the same dresser that contained Robinson’s documents. Given
this evidence, the State met its burden to establish a reasonable inference
that Robinson possessed the items in the southwest bedroom even if we
were to disregard Robinson’s admissions. Therefore, the trial court did not
abuse its discretion in denying Robinson’s Rule 20 motion based upon
corpus delicti.



                                       5
                            STATE v. ROBINSON
                            Decision of the Court

¶13           Robinson next argues, in the alternative, that there was
insufficient evidence to convict him of possession of a dangerous drug for
sale. Robinson maintains it was possible that even though he lived in the
residence, the crime of possession of a dangerous drug for sale could have
been committed while he was away from the house.

¶14             Sufficiency of the evidence is a question of law that we review
de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011)
(citing State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993)). We will
reverse a conviction based upon insufficient evidence “only if no
substantial evidence supports [it].” State v. Henry, 205 Ariz. 229, 232, ¶ 11,
68 P.3d 455, 458 (App. 2003) (citing State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17
P.3d 118, 121 (App. 2001)). “Substantial evidence, which may be either
circumstantial or direct, is evidence that a reasonable jury can accept as
sufficient to infer guilt beyond a reasonable doubt.” Id. (citations omitted).

¶15           Robinson’s argument is unavailing. As detailed above, the
State provided sufficient independent evidence of Robinson’s possession of
a dangerous drug for sale over and above his own statements. When taken
together, the evidence and Robinson’s corroborated admissions provide
substantial evidence to sustain the jury’s verdict.

II.    The Trial Court Did Not Abuse its Discretion by Precluding
       Argument on the Weapon’s Operability.

¶16            After final instructions were settled, the prosecutor asked the
trial court to preclude Robinson from arguing to the jury that the handgun
was inoperable. The prosecutor correctly noted that inoperability was an
“affirmative defense,” see State v. Rosthenhausler, 147 Ariz. 486, 493, 711 P.2d
625, 632 (App. 1985), and argued no evidence was presented that the
handgun was inoperable. Defense counsel countered that the burden was
on the State to present evidence the gun was operable and, since no report
of any test of the gun was presented at trial, she should be allowed to argue
inoperability. The trial court agreed with the prosecutor that no evidence
had been presented to support a finding that the gun was inoperable, and
granted his request to preclude the argument.

¶17            On appeal, Robinson argues the trial court abused its
discretion by failing to instruct the jury on the affirmative defense of the
inoperability of the handgun and simply allowing both parties to argue the
issue to the jury. The State maintains Robinson is only entitled to a
fundamental error review because Robinson neither specifically requested
the trial court give such an instruction nor objected to the final instructions



                                       6
                            STATE v. ROBINSON
                            Decision of the Court

given. Robinson responds that the issue was preserved by his disagreement
with the State over the allocation of the burden. Robinson also argues that,
in any case, a request for the instruction was rendered “formalistic” at best
by the trial court’s conclusion that no evidence supported giving the
instruction.

¶18            We review the trial court’s refusal to provide a jury
instruction for an abuse of discretion and resulting prejudice. See State v.
Ruggiero, 211 Ariz. 262, 264, ¶ 6, 120 P.3d 690, 692 (App. 2005) (citing State
v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995), and State v. Islas, 132
Ariz. 590, 591, 647 P.2d 1188, 1189 (App. 1982)). When a defendant does not
object to a trial court’s failure to give an instruction or to the instructions
actually given, we review only for fundamental error. See State v. Finch, 202
Ariz. 410, 415, ¶ 19, 46 P.3d 421, 426 (2002) (citing Ariz. R. Crim. P. 21.3(c),
and State v. Valenzuela, 194 Ariz. 404, 405, ¶ 2, 984 P.2d 12, 13 (1999)).
Regardless of which standard of review we apply, the trial court here did
not err by not providing the jury with the inoperability instruction.

¶19            A defendant “is entitled to an instruction on any theory of the
case reasonably supported by the evidence.” Bolton, 182 Ariz. at 309, 896
P.2d at 849 (citing State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932
(1983)). The entitlement arises where an instruction is supported by “‘the
slightest evidence.’” State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169
(App. 1997) (quoting State v. Dumaine, 162 Ariz. 392, 404, 783 P.2d 1184, 1196
(1989)). A trial court does not abuse its discretion by failing to give an
instruction that is unsupported by the facts. State v. Axley, 132 Ariz. 383,
393, 646 P.2d 268, 278 (1982) (“‘[I]nstructions must be predicated on some
theory of the case which may be found in the evidence, and, when not so
predicated, they should not be given, as their tendency would be to mislead
the jury.’”) (quoting State v. McIntyre, 106 Ariz. 439, 445, 477 P.2d 529, 535
(1970)).

¶20           For purposes of misconduct involving weapons, a firearm is
defined as “any loaded or unloaded . . . weapon that will expel, is designed
to expel or may readily be converted to expel a projectile by the action of an
explosive.” A.R.S. § 13-3101(A)(4); see also A.R.S. § 13-105(19) (defining
firearm similarly for purposes of the criminal code). An exception is made
for firearms in a permanently inoperable condition. A.R.S. § 13-3101(A)(4).
The sole trial evidence Robinson points to on appeal regarding
“inoperability” is one officer’s testimony that the weapon was not operable
when seized because it was not loaded. This argument is unavailing. First,
the statute specifically provides that an unloaded weapon is considered a
firearm. A.R.S. § 13-3101(A)(4). Second, the lack of ammunition, alone,


                                       7
                             STATE v. ROBINSON
                             Decision of the Court

merely renders a gun temporarily, rather than permanently, inoperable. See
State v. Young, 192 Ariz. 303, 307, ¶ 14, 965 P.2d 37, 41 (App. 1998) (finding
sufficient evidence for jury to conclude a disassembled shotgun was not
permanently inoperable where it could be reassembled through a simple
process); State v. Fisher, 126 Ariz. 50, 50, 612 P.2d 506, 506 (App. 1980)
(finding weapon that was missing only a replaceable firing pin was not
permanently inoperable).

¶21             At trial, one of the detectives, who was a certified firearms
instructor, testified he “cycle[d] the gun” and checked the firing
mechanism, and reported that he did not find anything “mechanically
wrong” with the weapon. He also testified that “for a gun to be completely
unfunctional,” it needed to be “welded shut, welded over the breech” or
“fill[ed] . . . with something like cement” so no bullets could go into the
weapon and be fired, or the barrel needed to be disabled; however, he did
not see “any of that on this weapon.” Given this evidence, there was simply
no basis for the trial court to have instructed the jury regarding the
inoperability defense. Axley, 132 Ariz. at 393, 646 P.2d at 278 (“It is not error
to refuse to give instructions which . . . do not fit the facts.”) (citing State v.
Reinhold, 123 Ariz. 50, 57 n.4, 597 P.2d 532, 539 n.4 (1979)). Moreover, the
trial court did not err, as Robinson suggests, by precluding him from
arguing inoperability during closing argument. See State v. Hughes, 193
Ariz. 72, 85, ¶ 59, 969 P.2d 1184, 1197 (1998) (“Counsel’s questioning and
argument . . . cannot make insinuations that are not supported by the
evidence.”) (citations omitted).

                                CONCLUSION

¶22          For the foregoing reasons, we affirm Robinson’s convictions
and sentences.




                                     :ama




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