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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 GABRIEL GUTIERREZ CRUZ, Appellant.

                             No. 1 CA-CR 17-0060
                               FILED 2-15-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-102497-001
                  The Honorable Gregory Como, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Ballecer & Segal, LLP, Phoenix
By Natalee E. Segal
Counsel for Appellant
                             STATE v. CRUZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


C A T T A N I, Judge:

            Gabriel Gutierrez Cruz appeals his conviction and sentence
for misconduct involving weapons. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

              In January 2015, police were monitoring a hotel in Phoenix
when a detective saw a man later identified as Fernando Sepulveda place a
duffle bag in the trunk of a white car, and then leave in a different car.
About 10 minutes later, Cruz and a woman walked up to the white car,
placed multiple bags in the trunk, then got in the car, with Cruz sitting in
the driver’s seat. Police approached the car and arrested Cruz, who had
been linked to a December 2014 armed robbery.

              After obtaining a warrant to search the car, officers saw a .40
caliber handgun in plain view on the passenger side of the backseat. In the
trunk, they found an empty holster for the same model handgun and a
magazine for a different model handgun, both in plain view. Cruz told
police that the car belonged to Sepulveda, but he also admitted that he had
been driving the car the whole day before being arrested. Cruz was a
prohibited possessor at the time of the arrest.

              The State charged Cruz with nine counts, eight stemming
from the December 2014 armed robbery, and one for misconduct involving
weapons stemming from the January 2015 arrest. Following a jury trial, he
was convicted of the misconduct involving weapons charge, but was
acquitted of all other charges. The superior court sentenced Cruz to 8.5
years in prison, and he timely appealed his conviction and sentence. We
have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-4033.




                                     2
                              STATE v. CRUZ
                            Decision of the Court

                               DISCUSSION

I.     Improper Testimony.

              Cruz first contends that he is entitled to a new trial because
the superior court failed to sua sponte strike—and/or instruct the jurors to
ignore—testimony relating to a holster he was allegedly wearing when he
was arrested. This claim fails because, although two holsters were admitted
in evidence, one was withdrawn, and during closing argument, the
prosecutor made clear that the misconduct involving weapons charge was
based on the gun in the backseat and the holster in the trunk of the car Cruz
admitted he had been driving. Cruz did not request that the limited
testimony at issue be stricken, and he has not established fundamental,
reversible error.

               Shortly after Cruz’s arrest, a detective prepared a report
noting that Cruz was found with an empty holster on his hip and a single
.40 caliber bullet in his pocket, but the report did not name the officer who
found those items on Cruz. During his opening statement, the prosecutor
told the jury that Cruz had a holster on his hip and a .40 caliber bullet in his
pocket when he was arrested. The State’s forensic expert, Heather Balsley,
subsequently testified that she tested two holsters and determined that one
of them contained a trace amount of blood. Ms. Balsley referred to each
holster only by its seven-digit item number, and did not testify where either
holster was found. The court admitted both holsters into evidence without
objection.

               Before presenting any further testimony relating to the
holsters, the prosecutor notified the court that the State could not establish
the necessary foundation for admitting in evidence the holster Cruz had
been wearing and the bullet found in his pocket. When the court asked the
parties how to proceed, Cruz’s counsel did not request that Ms. Balsley’s
testimony be stricken, and instead simply pointed out that Ms. Balsley had
not testified where either holster was found. Several days later, without
objection or argument from the parties, the court withdrew one of the
holsters from evidence and instructed the State not to mention it again. The
court did not address whether to strike Ms. Balsley’s testimony, which at
that point was the only evidence of a holster other than the one officers
found in the trunk of the car.

              Because Cruz did not ask the court to strike Ms. Balsley’s
testimony or to instruct the jury to disregard any evidence of a second
holster, he is not entitled to relief unless he demonstrates fundamental



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                             STATE v. CRUZ
                           Decision of the Court

error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). “Fundamental
error is error going to the foundation of the case, error that takes from the
defendant a right essential to his defense, and error of such magnitude that
the defendant could not possibly have received a fair trial.” State v. Bible,
175 Ariz. 549, 572 (1993) (quotation omitted); see State v. Gendron, 168 Ariz.
153, 155 (1991) (“To qualify as ‘fundamental error,’ . . . the error must be
clear, egregious, and curable only via a new trial.”). To prevail under
fundamental error review, the appellant must prove that (1) an error exists,
(2) the error was fundamental, and (3) the error resulted in prejudice.
Henderson, 210 Ariz. at 567, ¶ 20.

              Here, any arguable error was not fundamental. The court
correctly withdrew the second holster from evidence after the prosecutor
indicated the State did not have a witness who could establish that Cruz
was wearing the holster when he was arrested. The other holster, which
was found in the trunk and was designed for the same make and model as
the gun found in the car, correctly remained in evidence. The jury heard
only twice about the existence of two holsters—first, during the State’s
opening statement that police found one holster on Cruz’s hip and another
in the car’s trunk, and again during Ms. Balsley’s testimony describing
testing done on the two holsters.

              The prosecutor’s reference to the second holster did not result
in fundamental error primarily because a party’s opening statement is not
evidence. State v. Bowie, 119 Ariz. 336, 339–40 (1978). The jurors were
instructed to that effect, and we thus presume they did not rely on the
prosecutor’s statement that Cruz was found wearing a holster. See State v.
LeBlanc, 186 Ariz. 437, 439 (1996). Although the jurors may have been
anticipating testimony and other evidence about two holsters, the only
testimony Ms. Balsley offered was that one holster—identified by its seven-
digit item number—contained traces of blood, and that another holster—
again identified by a seven-digit item number—did not contain blood. Ms.
Balsley did not testify where either holster was found, and following her
testimony, the only holster mentioned to the jury was the one found in the
trunk.

              Further, the court gave both parties several days to suggest
how to undo the effects of the wrongfully admitted holster, after which
neither party offered any remedial measures beyond withdrawing the
holster from evidence and agreeing not to mention it again. As noted, the
State did not reference the second holster during closing or rebuttal
argument, and in fact specifically referenced only the holster found in the
trunk, noting that “you have the defendant two weeks later found in the car


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                              STATE v. CRUZ
                            Decision of the Court

with the .40-caliber handgun, with a holster in the trunk that matched the
handgun,” and “[t]aking into account what’s in the trunk and what wasn’t
put there by Mr. Sepulveda was the holster that went with that gun.” Thus,
the theory underlying the weapons charge was properly argued as relating
to the gun and the properly admitted holster, and Cruz has not established
fundamental error based on the superior court’s failure to sua sponte strike
Ms. Balsley’s testimony or to instruct the jury to disregard evidence of a
second holster. Moreover, defense counsel’s failure to request that the court
strike the testimony or instruct the jury to disregard the evidence could well
have been a strategic decision that doing so would simply have called the
jury’s attention to the second holster. Given these considerations, the court
did not err by not striking the testimony or further instructing the jury
absent a request by counsel to do so.

             Finally, even assuming error, any confusion regarding the
two holsters was of marginal significance, and given the prosecutor’s
emphasis in closing argument on the holster found in the trunk, Cruz has
not shown prejudice warranting reversal of his conviction.

II.    Sufficiency of the Evidence.

               Cruz also contends that there was insufficient evidence to
support the jury’s finding that he knowingly possessed the gun found on
the backseat of the car. We review a claim of insufficient evidence de novo.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We will uphold the conviction
if substantial evidence—that which is sufficient to support a reasonable
juror’s finding of guilt beyond a reasonable doubt—supports it. State v.
Scott, 177 Ariz. 131, 138 (1993).

              The State may prove misconduct involving weapons by
showing that the defendant knowingly possessed a deadly weapon, and
that he was a prohibited possessor at the time of the charged possession.
A.R.S. § 13-3102(A)(4). Because Cruz stipulated that he was a prohibited
possessor, the only issue before the jury was whether he knowingly
possessed the gun.

                “Possession may be actual or constructive.” State v. Gonsalves,
231 Ariz. 521, 523, ¶ 9 (App. 2013). While actual possession requires a
defendant to have direct physical control over an object, the defendant can
have constructive possession if he exercises dominion or control over it,
even if it is not in his actual physical possession. State v. Cox, 214 Ariz. 518,
520, ¶¶ 9–10 (App. 2007) (defining dominion as “absolute ownership,” and
control as “to have power over”). Although constructive possession may



                                       5
                             STATE v. CRUZ
                           Decision of the Court

be proven by circumstantial evidence, the State must show more than the
defendant’s mere presence where the prohibited item was found.
Gonsalves, 231 Ariz. at 523, ¶ 10.

               Here, police officers approached Cruz after he got in the
driver’s seat of the car and closed the door. The black and silver handgun
was in plain view on the cream-colored backseat. Because it was placed on
the passenger side of the backseat, the gun was not only clearly visible to
Cruz as he entered and sat down in the car, but also was easily accessible
to him. Additionally, Cruz had been driving the car for a full day, and he
had used the car’s trunk, where officers found a matching holster and a
handgun’s magazine in plain view. Thus, there was substantial evidence
from which the jury could infer that Cruz knowingly possessed the
weapon.

               Although Cruz did not own the car and there was evidence
that the car’s owner, Sepulveda, accessed the trunk shortly before Cruz was
arrested, there was no evidence that Sepulveda entered the passenger
compartment or placed the gun in the backseat without Cruz’s knowledge.
And even if the gun belonged to Sepulveda, Cruz could nevertheless
constructively possess it by keeping it in the car while he was in control of
the car. See State v. Teagle, 217 Ariz. 17, 27, ¶ 41 (App. 2007); see also
Gonsalves, 231 Ariz. at 523, ¶ 9 (two people may have simultaneous
constructive possession of the same prohibited object). Accordingly,
reasonable jurors could have concluded that Cruz knew of, and had control
over, the handgun in plain view on the backseat of the car he had been
driving for the past day.

                              CONCLUSION

             We therefore affirm Cruz’s conviction and sentence.




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




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