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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                MARQUISE TYERONE JOINER, Appellant.

                             No. 1 CA-CR 18-0157
                               FILED 1-10-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-123281-001
                The Honorable Michael J. Herrod, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Vineet Mehta Shaw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
                             STATE v. JOINER
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.


C A T T A N I, Judge:

¶1           Marquise Tyerone Joiner appeals his conviction and sentence
for possession or use of dangerous drugs. For reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Joiner was arrested in connection with an unrelated matter
and was transported to a police station and placed in a holding cell by
himself. Meanwhile, an officer inspected the room in the station where
Joiner would be searched for items of contraband not allowed in the jail.
After determining the room was empty, the officer escorted Joiner into the
room to begin the search. During the search, the officer found a plastic bag
containing methamphetamine next to Joiner’s foot.

¶3          A jury found Joiner guilty of possession of dangerous drugs,
and the court sentenced him to 10 years’ imprisonment. Joiner timely
appealed his conviction and sentence, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) § 13-4033(A).

                               DISCUSSION

¶4             To find Joiner guilty of possession of dangerous drugs, the
State was required to prove that he knowingly possessed
methamphetamine. A.R.S. §§ 13-3407(A)(1), -3401(6). Joiner argues that the
State failed to present sufficient evidence to establish the elements of
possession and knowledge. We review the sufficiency of evidence de novo,
assessing whether the record shows substantial evidence from which a
reasonable trier of fact could have found guilt beyond a reasonable doubt.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011); State v. Routhier, 137 Ariz. 90,
99 (1983).

¶5            Under A.R.S. § 13-105(34), “possess” is defined as physically
possessing or otherwise exercising dominion or control over, as relevant
here, a drug. And here, substantial evidence showed that Joiner physically


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                             STATE v. JOINER
                            Decision of the Court

possessed the methamphetamine. Before he entered the room to be
searched, the officer confirmed the room was empty. The drugs were
discovered next to Joiner, and other than the officer, Joiner was the only
person in the area. Although the officer did not see Joiner drop the plastic
bag, the location of the drugs next to Joiner’s foot, the lack of other potential
possessors, and the discovery of the drugs in a room that was initially
empty provided substantial circumstantial evidence that Joiner possessed
the methamphetamine.

¶6             Joiner argues that his case resembles other Arizona cases in
which the evidence was insufficient to link the defendants to the drugs. In
all of those cases, however, the drugs were found in places accessible to
third parties or the public. State v. Carr, 8 Ariz. App. 300, 302 (App. 1968)
(drugs found outside an apartment); Carroll v. State, 90 Ariz. 411, 413 (1962)
(drugs found behind a bench outside Sky Harbor airport); State v. Miramon,
27 Ariz. App. 451, 452 (App. 1976) (drugs found under the passenger seat
of a car containing three people). In contrast, here, the drugs were found in
a locked room, inaccessible to third parties or the public, to which only
police officers and police assistants had the badges necessary to access the
room. And an officer confirmed that the room was empty immediately
before Joiner’s search.

¶7           Joiner also argues the evidence was insufficient to prove that
he knew about the methamphetamine. But knowledge can be proven by
circumstantial evidence. See State v. Henry, 205 Ariz. 229, 232, ¶ 11 (App.
2003). As described above, substantial evidence indicates that Joiner had
the drugs in his possession when he entered the room, and a reasonable
jury could have inferred he had actual knowledge of the items in his
physical possession.

¶8            Finally, Joiner contends that the State unconstitutionally
shifted the burden of proof because its argument presumed a finding of
possession based wholly on mere presence. Mere presence in a location
where drugs are found is insufficient for a conviction. State v. Hunt, 91 Ariz.
149, 153 (1962). But here, the State did not base its argument solely on
Joiner’s proximity to the drugs. In its closing argument, the State argued
Joiner could be found guilty because—among other factors—the room
where the drugs were found had been searched (and found to be empty)
immediately before Joiner was brought into the room, and the drugs in
question were found near Joiner in the room after he removed his shoes and
socks. The prosecutor thus argued that the evidence suggested that the
drugs were in Joiner’s possession when he entered the room. Accordingly,
the State did not unconstitutionally shift the burden of proof.


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                   STATE v. JOINER
                  Decision of the Court

                     CONCLUSION

¶9   Joiner’s conviction and sentence are affirmed.




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




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