                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  JOSHUA EUGENE PATTON, Appellant.

                             No. 1 CA-CR 13-0056
                              FILED 4-15-2014


           Appeal from the Superior Court in Coconino County
                        No. S0300CR2011-00941
                 The Honorable Mark R. Moran, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant
                          STATE v. PATTON
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.


B R O W N, Judge:

¶1           Joshua Patton appeals his conviction and sentence for one
count of misconduct involving weapons. He challenges the sufficiency of
the evidence and asserts the State improperly relied on a duplicitous
charge. For the following reasons, we affirm.

                             BACKGROUND

¶2            In December 2011, Patton and Michael Calderon traveled to
Page, Arizona to attend Austin Joe’s high school graduation. After the
ceremony, Patton, Calderon and Joe returned to Joe’s house, where Joe’s
sister saw Patton and Calderon exchange a Glock .40 handgun (“the
gun”). Interested in buying marijuana, Patton, Calderon and Joe met with
“Cyrus,” one of Joe’s friends, who took them to “Sergio’s” trailer, but
Sergio refused to sell marijuana to Cyrus. Patton, Calderon and Joe then
decided to try to obtain the marijuana themselves.

¶3            As they approached Sergio’s trailer, Calderon heard Patton
declare that “if [Sergio] didn’t have weed, then [he] would have money,”
so Calderon handed Patton the gun because Calderon “didn’t feel like
robbing [Sergio].” When Sergio answered the door, Patton brandished the
gun and told Sergio to “get inside” the home. Patton pressed the gun
against Sergio’s stomach, telling him “don’t make me pull the trigger,”
and pushed him into the trailer. After Calderon and Joe entered the
trailer, Patton took a jar that contained eleven one-gram baggies of
marijuana and a “little over $400 in [currency].”

¶4            On their way back to Joe’s house, Patton gave Calderon
some of the cash and returned the gun to him. Over the next several
hours, they proceeded to smoke all the marijuana. When Calderon went
to retrieve something from a car parked outside Joe’s home, Sergio and his
cousin pulled up in a truck and opened fire on Calderon, who returned
fire with the gun. Calderon suffered a gunshot wound, but returned to
the trailer and told Patton and Joe he had been shot. Hearing sirens,



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                          STATE v. PATTON
                          Decision of the Court

Patton and Calderon “started running” and ended up at a nearby library,
where Calderon cleaned his gunshot wound in the bathroom. Calderon
testified that he didn’t remember what happened to the gun after he was
shot, he just knew “by the time we got to the library, it was gone.”

¶5            A short time later Patton and Calderon were taken into
custody, and a police officer discovered Patton’s shoe prints in an area
near the library where the gun was partially covered by dirt. There were
fifteen rounds in the magazine and one in the chamber. Subsequent
testing revealed that six Glock .40 shell casings were found near Joe’s
house, where Calderon had returned fire at Sergio and his cousin. DNA
testing on the gun revealed Patton’s DNA as being the “major
contributor” and Calderon’s, a “minor contributor.”

¶6            Patton, Calderon and Joe were each charged with one count
of burglary in the first degree, armed robbery, misdemeanor theft,
endangerment, and two counts of aggravated assault. Patton and
Calderon were also charged with a single count of misconduct involving
weapons. Additionally, the State filed an allegation of historical prior
felony convictions against Patton. Prior to trial, Calderon and Joe each
plead guilty to a reduced charge of aggravated robbery in exchange for
agreeing to testify against Patton.

¶7            Patton’s case proceeded to trial. He denied taking part in
the robbery or smoking the marijuana. At the close of the State’s case, the
trial court granted a judgment of acquittal on one of the aggravated
assault counts and the endangerment count. Patton then testified he had
never seen the gun prior to December 20, 2011. He admitted to three prior
felony convictions, that he was on probation at the time of the incident,
and he was legally prohibited from possessing a firearm.

¶8            The jury convicted Patton of misconduct involving weapons,
but was unable to reach a verdict on the theft charge. The jury found
Patton not guilty of burglary in the first degree, armed robbery, and
aggravated assault. The trial court sentenced Patton to a presumptive
term of ten years’ imprisonment. Patton timely appealed.

                               DISCUSSION

¶9            Patton challenges his conviction for misconduct involving
weapons on the basis that there was insufficient evidence to sustain his
conviction. “The question of sufficiency of the evidence is one of law,
subject to de novo review on appeal.” State v. West, 226 Ariz. 559, 562, ¶
15, 250 P.3d 1188, 1191 (2011). We review the trial record to determine


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                           STATE v. PATTON
                           Decision of the Court

whether substantial evidence supports the convictions and view the facts
in the light most favorable to sustaining the jury’s verdicts. State v. Cox,
217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 (2007) (internal quotations and
citations omitted). “Substantial evidence is evidence that ‘reasonable
persons could accept as sufficient to support a guilty verdict beyond a
reasonable doubt.’” Id. (citation omitted). The evidence may be direct or
circumstantial, and it is well established that each has equal probative
value. State v. Pettit, 194 Ariz. 192, 197, ¶ 23, 979 P.2d 5, 10 (App. 1998).

¶10           Patton was indicted for misconduct involving weapons
based on knowingly possessing a gun on or about December 20, 2011
while being a prohibited possessor. Thus, the State was required to prove
that Patton knowingly possessed a deadly weapon and that his right to
possess a weapon was prohibited at that time based on a prior felony
conviction. Ariz. Rev. Stat. (“A.R.S.”) § 13-3102(A)(4). Patton does not
dispute that he was a prohibited possessor or that the gun at issue was a
deadly weapon. Instead, he argues that because the jury acquitted him of
burglary, robbery, and aggravated assault, the jury necessarily concluded
that he “was not guilty of using a gun during the alleged robbery.” Thus,
Patton urges us to focus our attention only on whether he possessed the
gun at Joe’s house.

¶11           Our obligation, however, is to view all the evidence
presented at trial in the light most favorable to sustaining the conviction.
See Cox, 217 Ariz. at 357, ¶ 22, 174 P.3d at 269. That the jury acquitted
Patton of armed robbery does not mean it found he was not guilty of
every element of that offense. Furthermore, jurors are permitted to return
inconsistent verdicts. See State v. Zakhar, 105 Ariz. 31, 32, 459 P.2d 83, 84
(1969). As such, we generally “disregard an acquittal” because “in the
privacy of the jury room either ‘leniency or compromise’ may lead jurors
to acquit a defendant whom they believe to be guilty.’” State v. Williams,
233 Ariz. 271, 274, ¶ 10, 311 P.3d 1084, 1087 (App. 2013) (quoting Zakhar,
105 Ariz. at 32-33, 459 P.2d at 84-85); see also United States v. Powell, 469
U.S. 57, 68 (1984) (explaining a reviewing court will not assume what the
jury “really meant” by its acquittal when determining the sufficiency of
evidence supporting another charge). Therefore, we will not speculate as
to why the jury acquitted Patton on all charges except misconduct
involving weapons.

¶12          Arizona law defines “possess” as “knowingly [having]
physical possession or otherwise to exercise dominion or control over
property.” A.R.S. § 13–105(34). Consistent with this definition, the jury
was instructed as follows:


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                           STATE v. PATTON
                           Decision of the Court

      ‘Possess’ means knowingly to have physical possession or
      otherwise to exercise dominion or control over property.
      ‘Possession’ means a voluntary act if the defendant
      knowingly exercised dominion or control over property.
      The terms ‘dominion’ and ‘control’ carry their ordinary
      meaning, such that dominion means ‘absolute ownership’
      and control means to ‘have power over.’

¶13           At trial, Sergio testified that Patton was holding the gun
while robbing him and that no one else had possession of a handgun other
than Patton during the robbery. Calderon and Joe both corroborated
Sergio’s account that Patton had possession of the gun during the robbery.
Patton’s shoeprints led law enforcement to the location of the gun and the
State presented evidence that DNA found on the gun was consistent with
Patton’s DNA as being the “major contributor.” We conclude there was
substantial evidence supporting Patton’s conviction for misconduct
involving weapons.

¶14           Patton also argues that his due process rights were violated
during the State’s closing argument when the prosecutor suggested that
either of two separate acts constituted misconduct involving weapons:

      The defendant is charged with weapons misconduct because
      he’s a prohibited possessor; because he has those three [prior
      felony] convictions and never had his rights restored, he’s
      not allowed to have a gun at all, let alone use one in a
      robbery. His possession of a gun during that robbery means
      that he’s guilty of weapons misconduct. You have a jury
      instruction for it.

      And certainly—the robbery is certainly the more egregious
      incident of weapons misconduct, but his handling that
      weapon earlier in the day, as the other two people and [Joe’s
      sister] testified to, is also an incident of weapons misconduct for
      which he's guilty.

(Emphasis added.) Based on the prosecutor’s reference to Patton’s
handling the gun at Joe’s house prior to the alleged robbery, Patton asserts
that his right to a unanimous jury verdict and Sixth Amendment rights
were violated. Because Patton failed to raise these interrelated arguments
in the trial court, we review his claims for fundamental error only. State v.
Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005).
Fundamental error review involves a three-step analysis. First, the



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                            STATE v. PATTON
                            Decision of the Court

defendant “must prove error.” Id. at 568, ¶ 23, 115 P.3d at 608. Second,
the defendant must prove that the error is “fundamental”—“that error
goes to the foundation of his case, takes away a right that is essential to his
defense, and is of such magnitude that he could not have received a fair
trial.” Id. at ¶ 24. Third, the defendant must “demonstrate that the error
caused him prejudice.” Id. at ¶ 26.

¶15           “A duplicitous charge exists ‘[w]hen the text of an
indictment refers only to one criminal act, but multiple alleged criminal
acts are introduced to prove the charge.’” State v. Paredes-Solano, 223 Ariz.
284, 287, ¶ 4, 222 P.3d 900, 903 (App. 2009) (quoting State v. Klokic, 219
Ariz. 241, 244, ¶ 12, 196 P.3d 844, 847 (App. 2008)). “Depending upon the
context, [a duplicitous charge] can deprive the defendant of ‘adequate
notice of the charge to be defended,’ create the ‘hazard of a non-
unanimous jury verdict,’ or make it impossible to precisely plead ‘prior
jeopardy [ ] in the event of a later prosecution.’” Klokic, 219 Ariz. at 244,
¶ 12, 196 P.3d at 847 (quoting State v. Davis, 206 Ariz. 377, 389, ¶ 54, 79
P.3d 64, 76 (2003)); see also Ariz. Const. art. II, § 23 (“In all criminal cases
the unanimous consent of the jurors shall be necessary to render a
verdict.”). Multiple events are not duplicitous, however, if they are “part
of one and the same transaction, and as a whole constitute but one and the
same offense.” Klokic, 219 Ariz. at 245, ¶ 17, 196 P.3d at 848 (quoting State
v. Counterman, 8 Ariz.App. 526, 531, 448 P.2d 96, 101 (1968)).

¶16            We need not address whether the different events the
prosecutor referenced relating to Patton handling the gun were part of the
“same transaction” because any potential error was not fundamental or
prejudicial. See State v. Ramsey, 211 Ariz. 529, 533, ¶ 7, 124 P.3d 756, 760
(App. 2005) (affirming conviction because defendant failed to articulate
how his defense was impaired or how he was prejudiced by the
indictment); State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989)
(concluding that a defendant was not denied an “essential right to his
defense” when his defense was a denial that the alleged acts had
occurred). Patton’s defense was that he did not touch or handle the gun
on December 20, 2011. When a defendant presents an all-or-nothing
defense staked on witness credibility, the defendant is not prejudiced by
duplicitous charges. See e.g., Whitney, 159 Ariz. at 480, 768 P.2d at 642;
State v. Schroeder, 167 Ariz. 47, 53, 804 P.2d 776, 782 (App. 1990). Patton
presented an all-or-nothing defense and thus he was not adversely
affected by the State’s comment. Accordingly, Patton has not met his
burden of showing fundamental, prejudicial error.




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                        STATE v. PATTON
                        Decision of the Court

                            CONCLUSION

¶17         Based on the foregoing, we affirm Patton’s conviction and
sentence.




                                 :MJT




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