                          NOTICE: NOT FOR PUBLICATION.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.

                          PORTER DERON LAND,
                               Appellant.

                             No. 1 CA-CR 14-0654
                               FILED 8-4-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-427476-001
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Stephen L. Crawford, PLLC, Phoenix
By Stephen L. Crawford
Counsel for Appellant
                             STATE v. LAND
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Porter Deron Land appeals his conviction and sentence for
one count of possession of narcotic drugs, a class 4 felony. For the following
reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            In June 2013, City of Phoenix Police Officer Michael
Meelhuysen was driving an unmarked police vehicle on 19th Avenue. After
entering a turn lane, Officer Meelhuysen observed a Yukon leaving a Circle
K parking lot and that the passenger, later identified as Land, was drinking
beer from “about a [twenty-four] ounce size can.” Officer Meelhuysen
activated his vehicle’s lights, followed the Yukon into an apartment
complex parking lot, and positioned his vehicle “a little beyond the rear” of
the Yukon after it pulled into a parking space.

¶3            Shortly thereafter, Land exited the Yukon and began running
on the sidewalk. Meelhuysen identified himself as a police officer and
ordered Land to stop running. Land raised his hands and threw two smalls
bags “up vertically” from his left hand. The bags landed in a grassy area
within two feet of Land’s left shoulder. Officer Meelhuysen arrested Land,
and the Phoenix Department Crime Laboratory later identified powder in
the bags as cocaine.

¶4             After the State rested at trial, Land’s counsel requested a pre-
verdict Arizona Rule of Criminal Procedure 20 motion for acquittal, which
the trial court denied. The trial court also denied Land’s objection to a jury
instruction on flight or concealment. The instruction provided:




1      We review the evidence in the light most favorable to sustaining the
conviction and resolve all reasonable inferences in favor of the State. State
v. Acree, 121 Ariz. 94, 96 (1978).


                                      2
                             STATE v. LAND
                            Decision of the Court

       In determining whether the State has proved the Defendant
       guilty beyond a reasonable doubt, you may consider any
       evidence of the Defendant’s running away, hiding, or
       concealing evidence, together with all other evidence in the
       case. Running away, hiding, or concealing evidence after a
       crime has been committed does not by itself prove guilt.

¶5            Land was convicted of possession or use of narcotic drugs,
and the jury determined Land committed the offense while on probation.
The trial court subsequently sentenced Land to a presumptive term of four
and a half years’ imprisonment. Land timely appealed, and we have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031 and -
4033.A.1 (West 2015).2

                               DISCUSSION

I.     Rule 20 Motion

¶6             Land argues the trial court erred by denying his Rule 20
motion because the State failed to present substantial evidence supporting
his conviction. We review the denial of a Rule 20 motion de novo. State v.
Bon, 236 Ariz. 249, 251, ¶ 5 (App. 2014). ”The relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶
36 (App. 2013) (punctuation and citation omitted).

¶7             Under A.R.S. § 13-3408.A.1, “A person shall not knowingly []
[p]ossess or use a narcotic drug.” Land argues it is “unclear” whether the
State proved the possession element because there was conflicting
testimony about how many bags Land had and as to how they left his
possession. While the record reflects that two police officers provided
slightly different accounts of the events at trial, the jury was tasked with
determining each witness’s credibility and reliability. See State v. Roberts,
139 Ariz. 117, 121 (App. 1983). We do not reweigh evidence on appeal. State
v. Rodriquez, 205 Ariz. 392, 397, ¶ 18 (App. 2003). Thus, Officer
Meelhuysen’s testimony that he observed Land throw the two bags of



2     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.



                                      3
                             STATE v. LAND
                            Decision of the Court

cocaine from his left hand was sufficient to establish the possession
element.

¶8            Next, Land argues that “the State presented no direct
evidence that [Land] knowingly possessed cocaine.” However, direct
evidence of Land’s knowledge was not required. The Arizona Supreme
Court has determined that a crime’s mens rea element may be proven by
circumstantial evidence. See State v. Speer, 221 Ariz. 449, 460, ¶ 57 (2009)
(holding defendant’s knowledge could be established by circumstantial
evidence). The circumstantial evidence “must link the defendant to the
[controlled substance] in a manner and to an extent that a reasonable
inference arises that [] the accused [knew] of the [controlled substance’s]
existence.” State v. Cunningham, 17 Ariz. App. 314, 315 (App. 1972).

¶9             The State presented evidence that Land immediately
disposed of the cocaine after Meelhuysen identified himself as an officer
and ordered Land to stop running. This conduct would naturally give rise
to an inference that Land was attempting to conceal the bags from
Meelhuysen because he knew they contained an illegal substance. “The
substantial evidence required for conviction may be either circumstantial
or direct, and the probative value of the evidence is not reduced simply
because it is circumstantial.” State v. Anaya, 165 Ariz. 535, 543 (App. 1990).
Thus, we find sufficient evidence supported Land’s conviction.

II.    Flight or Concealment Instruction

¶10           Land next argues the trial court committed fundamental error
by issuing the jury instruction on flight or concealment. We review the trial
court’s decision to give a requested jury instruction for an abuse of
discretion. State ex. rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8 (2005).

¶11           Land asserts the instruction was improper because the
evidence presented about his knowledge that he possessed a narcotic was
“circumstantial” and “insubstantial” and “[w]hat little evidence there was
of flight does not show consciousness of guilt of the crime charged.”
However, the instruction simply permitted the jury to draw an inference
from Land’s conduct. See State v. Weible, 142 Ariz. 113, 116 (1984) (“Flight
instructions point out to jurors that they may consider the defendant’s
behavior at or near the scene of the crime as bearing on guilt or innocence.”).
Thus, direct evidence of Land’s knowledge was not a prerequisite for giving
the instruction. Cf. supra ¶¶ 8-9. In determining whether to give a flight or
concealment instruction:




                                      4
                            STATE v. LAND
                           Decision of the Court

      [T]he court must determine [] whether there is evidence from
      which it can be reasonably inferred that the defendant
      engaged in some “eluding” conduct that either was an
      attempt to prevent apprehension, or was an attempt to
      postpone apprehension in order to dispose of or conceal
      evidence that could tie him to the crime . . . The key inquiry is
      whether the defendant engaged in some type of eluding
      behavior designed to camouflage his participation in a crime,
      thus manifesting a consciousness of guilt.

State v. Cutright, 196 Ariz. 567, 570, ¶ 12 (App. 1999) (citation omitted),
disapproved on other grounds by State v. Miranda, 200 Ariz. 67 (2001).

¶12            On this record, sufficient evidence supported the instruction.
Officer Meelhuysen testified that he activated his vehicle’s lights and that
after parking behind the Yukon, Land exited the vehicle and began to run.
Moreover, after Meelhuysen identified himself as an officer and ordered
Land to stop, Land “tossed the bags.” This is the type of “eluding” conduct
that permits an inference that Land was attempting to prevent
apprehension and conceal the cocaine. Thus, the trial court did not abuse
its discretion by giving the flight or concealment instruction.

                              CONCLUSION

¶13          For the foregoing reasons, Land’s conviction and sentence are
affirmed.




                                    :RT




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