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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     TELL JONAS WAGNER, Appellant.

                             No. 1 CA-CR 14-0575
                               FILED 3-8-2016


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201300767
                The Honorable Maria Elena Cruz, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Tucson
By Diane L. Hunt
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
                           STATE v. WAGNER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.


T H O M P S O N, Judge

¶1           Tell Jonas Wagner (defendant) appeals from his convictions
and sentences for one count of possession of dangerous drugs for sale
(methamphetamine), five counts of misconduct involving weapons, and
one count of possession of drug paraphernalia. For the following reasons,
we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Defendant and R.Y. checked into a hotel room around 9:00
p.m. and paid for a one-night stay. At approximately 1:00 the following
afternoon, one hour after check-out time, a hotel employee opened the
locked door of the room to ascertain whether defendant and R.Y. had left
without checking out. Not seeing anyone in the room, the employee
entered and observed “a lot of stuff” including two methamphetamine
pipes, a bulletproof vest, and a torch lighter. The employee reported the
discovery and the police were called.

¶3             Responding officers knocked on the room’s door multiple
times and heard “a lot of movement” and “shuffling” sounds inside.
Defendant eventually answered the door, and police asked if they could
enter. Defendant declined the request, but hotel staff allowed the officers
to enter because, as staff explained, guests are not normally allowed to stay
past the check-out time, and if they do so without paying, staff considers
the room “then belong[s] to [the hotel] again[”. Upon entering, the officers
observed clothes, luggage and “other various items” strewn about the
room. The officers also observed in plain sight a bag of marijuana, ten
tactical vests, a butane lighter, and methamphetamine pipes. The officers
arrested defendant and R.Y. before obtaining a warrant to search the room
and its contents.

¶4          During the search, officers discovered glass pipes used for
smoking methamphetamine, numerous knives, cell phones, ammunition,
an assortment of jewelry and watches, a video camera facing out a back



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                            STATE v. WAGNER
                            Decision of the Court

window, thumb drives, a stun gun, old coins, CB radios, pepper spray, a
computer hard drive and keyboard, multiple computers, a digital scale, a
syringe, multiple pairs of sunglasses, electronic brass knuckles, and
packages containing a total of 23.37 grams of methamphetamine. Police
also located at least seven handguns in the room.1 During his interview
with a detective, defendant admitted he had a prior felony conviction and
was prohibited from lawfully possessing firearms.

¶5             The state charged defendant with one count of possessing a
dangerous drug for sale (methamphetamine), a class 2 felony (count 1); five
counts of misconduct involving weapons, a class 4 felony (counts 2-6); and
one count of possessing drug paraphernalia, a class 6 felony (count 7).
Defendant challenged the charges at trial by arguing he was merely present
in the hotel room.

¶6              The jury found defendant guilty as charged, and defendant
unsuccessfully moved for a new trial, arguing, among other things, that the
court erred in overruling his objection to the officers’ testimony regarding
his refusal to consent to a search of the hotel room. The trial court sentenced
defendant to concurrent aggravated prison terms, and defendant timely
appealed his convictions and sentences. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) §§ 12-120.21(A)(1) (2003), 13-4031, -4033(A) (2010).

                               DISCUSSION

¶7            Defendant raises three issues on appeal: 1) whether the trial
court erred in permitting the responding officers to testify that defendant
refused to consent to a search of the room; 2) whether the indictment’s
incorrect identification of the weapon in count 3 resulted in insufficient
evidence supporting the conviction on that count; and 3) whether count 4
is duplicitous.




1     The state’s expert witness testified that many methamphetamine
users will not use cash to purchase the drug; instead, they will barter
personal items such as cell phones and firearms.



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                             STATE v. WAGNER
                             Decision of the Court

       A.     Comment on Refusal to Consent to Search

¶8            As he did in his motion for new trial, defendant contends the
court erred in allowing testimony regarding his refusal to consent to
officers’ request to enter the hotel room. We find no error.2

¶9             To convict defendant of the charged offenses, the state was
required to prove defendant exercised dominion and control over the
drugs, firearms, and paraphernalia found in the hotel room. See State v.
Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972) (“Constructive
possession is generally applied to those circumstances where the [illicit
item] is not found on the person of the defendant nor in his presence, but is
found in a place under his dominion and control and under circumstances
from which it can be reasonably inferred that the defendant had actual
knowledge of the existence of the narcotics.”); State v. Riley, 12 Ariz. App.
336, 337, 470 P.2d 484, 485 (1970) (noting “possession” may be either actual,
meaning physical custody of the item, or constructive, meaning dominion
and control of the item).

¶10            Although the state may not comment on a defendant’s refusal
to consent to a search as substantively evidencing guilt, State v. Palenkas, 188
Ariz. 201, 212, 933 P.2d 1269, 1280 (App. 1996), as amended (Dec. 19, 1996),
when a defendant charged with unlawful possession of items found in a
residence raises a “mere presence” defense, the state is permitted to present
evidence that the defendant refused to consent to a search of the premises.
State v. Stevens, 228 Ariz. 411, 417, ¶ 15, n. 7, 267 P.3d 1203, 1209 (App. 2012).
Such evidence, as the state argued at trial, is relevant to establish
defendant’s dominion and control over the room, as opposed to his merely
being a temporary guest.3 See United States v. Dozal, 173 F.3d 787, 794 (10th
Cir. 1999) (defendant’s decision about whether to allow search of property
constitutes evidence of dominion and control). Because defendant raised a
“mere presence” defense, the trial court did not err in permitting the officers

2      The parties disagree as to the applicable standard of review.
Regardless of the proper standard, we must first find error. Because we
find none, we need not decide whether we review for abuse of discretion or
fundamental error. See State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342,
(1991) (“Before we may engage in a fundamental error analysis, however,
we must first find that the trial court committed some error.”).

3       We thus reject defendant’s contention that error occurred as a result
of the state making this argument to the jury.



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                           STATE v. WAGNER
                           Decision of the Court

to testify that defendant refused to consent to a search of the room.
Accordingly, the court did not err in denying defendant’s motion for new
trial on this basis.

      B.     Count 3: Sufficiency of Evidence

¶11            The state entered into evidence seven handguns to support
the five charges of misconduct involving weapons. Counts 2 and 3 are the
only charges that relate to handguns manufactured by Phoenix Arms. At
trial, the only weapon entered into evidence that was manufactured by
Phoenix Arms is a .22 caliber LR pistol, which matches the description in
count 2 of the indictment. Based on the absence of a second Phoenix Arms
handgun that matched the indictment’s description of the weapon in count
3, Defendant contends insufficient evidence supports his conviction on that
count. We disagree.

¶12            In count 3, the state charged defendant with unlawfully
possessing a firearm described in the indictment as a “PHOENIX ARMS .22
MAGNUM.” At trial, the state introduced into evidence exhibit 7, which is
a North American Arms .22 magnum revolver. Pursuant to Arizona Rule
of Criminal Procedure, 13.5(b), the technical defect in the indictment’s
description of the weapon’s manufacturer in count 3 was deemed amended
to conform to this evidence. See Ariz. R. Crim. P. 13.5(b) (“[A] charge [in
the indictment] may be amended only to correct mistakes of fact or remedy
formal or technical defects, unless the defendant consents to the
amendment. The charging document shall be deemed amended to conform
to the evidence adduced at any court proceeding.”). Defendant does not
argue that such an amendment changed the nature of the charged offense,
nor does he argue the amendment prejudiced him. See State v. Fimbres, 222
Ariz. 293, 303, ¶ 38, 213 P.3d 1020, 1030 (App. 2009) (amendment to
indictment is permissible if it does not change the nature of the offense or
create prejudice). Exhibit 7 supports defendant’s conviction on count 3;
thus, his claim of insufficient evidence fails.

      C.     Duplicitous Charges

¶13          Count 4 charged defendant with unlawfully possessing a
“NORTH AMERICAN ARMS .22 MAGNUM.” At trial, the state
introduced into evidence exhibits 3 and 7, which are two almost identical
.22 magnum handguns manufactured by North American Arms.
Defendant argues the introduction of these firearms rendered count 4
duplicitous.




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                            STATE v. WAGNER
                            Decision of the Court

¶14            We reject this argument. As we have concluded, exhibit 7
pertains to count 3. Because exhibit 3 relates to count 4, each exhibit
independently forms the factual basis for a separately charged offense, and
each count refers to a separate criminal act. Consequently, count 4 is not a
duplicitous charge. See State v. Klokic, 219 Ariz. 241, 244, ¶ 12, 196 P.3d 844,
847 (App. 2008) (stating, “[w]hen the text of an indictment refers only to one
criminal act, but multiple alleged criminal acts are introduced to prove the
charge, our supreme court has sometimes referred to this problem in
shorthand as a duplicitous charge rather than a duplicitous indictment. It
has further noted, however, that such a flaw potentially presents the same
problems as a duplicitous indictment.”).

                               CONCLUSION

¶15          Because we find no error, we affirm defendant’s convictions
and sentences.




                                   :ama




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