THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

JOHNSEN, Judge.

¶1 Charles Gregory Watkins appeals his convictions for possession of cocaine base for sale and possession with intent to use drug paraphernalia, and the resulting sentences. He For the following reasons, we affirm the convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 Phoenix Police Officer Michael Hayes called a cell-phone number at 9:53 p.m. and 10:09 p.m. one evening to arrange a drug buy.1 He had acquired the number from a reliable source. Calling from a restricted number at the precinct, Hayes agreed with the female who answered the phone to meet in a restaurant parking lot on Roosevelt Street to purchase "a 40 of hard," drug slang for $40-worth of crack cocaine.

¶3 After arranging the meeting, Hayes contacted two other officers, who agreed to observe the restaurant and its parking lot from a discrete location. While the restaurant's walk-up window remained open, the officers observed that the restaurant appeared deserted. Soon after 10 p.m., the officers saw a red SUV turn into the parking lot. Both officers watched as the SUV slowly circled the lot multiple times, then moved to the Roosevelt Street exit. After the SUV exited the parking lot, the officers followed it a few blocks, then pulled it over for a traffic violation.

¶4 After the officers stopped the SUV, the driver identified herself as Stephanie Hardy. Hardy admitted that "she was the one who was talking to [Hayes]" on the phone to arrange the drug buy. Officers found in Hardy's purse a "cylindrical four-inch glass pipe . . . commonly used to indulge in crack cocaine." An officer initially arrested Hardy but later released her at the scene.2 The cylindrical glass crack pipe was destroyed before trial.

¶5 An officer approached the passenger side of the SUV, where Watkins was seated in the front seat. With his flashlight illuminating the backseat area of the SUV, the officer observed on the floorboard a "clear cylindrical pipe" and, partially visible from within a crumpled gum wrapper, a "white rock-like substance" consistent with crack cocaine. The officer recovered the pipe — an implement commonly used to smoke crack cocaine — and the white substance. Tests determined the substance to be 570 mg of cocaine base with a street value of approximately $40.

¶6 Upon searching Watkins incident to his arrest, the officer recovered $1,686 in cash from Watkins's front pockets, a black cell phone that had received calls from a restricted number at 9:53 p.m. and 10:09 p.m. that evening and, in Watkins's right-front coin pocket, a sliver of a white rock-like substance later determined to be 9.3 mg of cocaine base with a street value of approximately 62 to 95 cents.

¶7 Watkins was indicted on one count of possession for sale of a narcotic drug (cocaine base), a Class 2 felony, and one count of possession with intent to use drug paraphernalia, a Class 6 felony. After a four-day trial, the jury convicted him on both counts. Later, having found five historical prior felony convictions, the court sentenced Watkins to mitigated concurrent terms of incarceration, the greater of which is 14 years.

¶8 Watkins timely appealed. 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) (2011), 13-4031 (2011) and -4033(A)(1) (2011).3

DISCUSSION

¶9 On Watkins's challenge to the superior court's denial of his motion for judgment of acquittal, the only issue is whether the State presented sufficient evidence he constructively possessed the 570 mg of cocaine base and the crack pipe. We review de novo the question of sufficiency of the evidence. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011).

¶10 A judgment of acquittal is appropriate only "if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). "Substantial evidence is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Davolt, 207 Ariz. 191, 212, ¶ 87, 84 P.3d 456, 477 (2004). Such evidence may be direct or circumstantial. See West, 226 Ariz. at 562, ¶ 16, 250 P.3d at 1191. We will affirm unless, viewing the evidence in the light most favorable to sustaining the jury verdict, "there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted); see State v. Teagle, 217 Ariz. 17, 27, ¶ 39, 170 P.3d 266, 276 (App. 2007).

¶11 To find Watkins guilty, the jury was required to find that he "possess[ed]" the cocaine and the pipe. See A.R.S. §§ 13-3408(A)(2), -3415(A) (2011). Possession may be either physical possession or constructive possession, defined to mean an "exercise [of] dominion or control over property." A.R.S. § 13-105(34)-(35) (2011); see also Teagle, 217 Ariz. at 27-28, ¶ 41, 170 P.3d at 276-77. While the "mere presence" of a defendant where narcotics are found does not establish constructive possession, exercise of dominion and control over the drug "or the location in which [it] was found" will establish possession. Teagle, 217 Ariz. at 27-28, ¶ 41, 170 P.3d at 276-77.

¶12 Watkins relies on State v. Miramon, 27 Ariz.App. 451, 555 P.2d 1139 (1976), in which this court reversed a conviction of possession of marijuana for sale due to insufficient evidence of constructive possession. Id. at 452-53, 555 P.2d at 1140-41. The marijuana in that case was found on the floor of a car in a brown paper bag "protruding about four inches underneath the right front passenger seat." Id. at 452, 555 P.2d at 1140. As here, the defendant was sitting in the right-front passenger seat of the car. Id. Two marijuana cigarettes were found in his sock. Id. We held that because no evidence linked the marijuana in the defendant's sock with the marijuana in the bag on the floor, the defendant's mere proximity to the bag showed at most that he may have known of the marijuana but not that he had dominion and control over it. Id. at 453, 555 P.2d at 1141.

¶13 Here, however, the State presented evidence of more than mere proximity to support the jury's finding that Watkins constructively possessed the contraband. The glass pipe and 570 mg quantity of crack cocaine were found on the floor of the car immediately behind Watkins's seat. Another crack pipe was found in Hardy's purse, from which the jury reasonably could infer that the crack pipe on the floor belonged to the only other person in the car: Watkins. Watkins was carrying $1,686 in cash, consistent with drug sales; he also was carrying the cell phone used to arrange the would-be sale, as indicated by the two calls received from a restricted number at 9:53 p.m. and 10:09 p.m., precisely the times Hayes placed his calls. Hardy admitted she was the female on the phone who arranged the sale with Hayes. The large piece of crack cocaine found behind Watkins's seat in the car was worth $40, the amount Hayes requested when arranging the drug buy. The jury reasonably could link the flake of crack cocaine found in Watkins's pocket with the cocaine behind his seat by concluding, as the State argued in closing, that the most likely explanation for the small sliver was that it broke away from the larger piece as Watkins removed the gum wrapper of crack cocaine from his pocket as police approached.

¶14 To the extent the evidence we have recounted also ties Hardy to the sale of the crack cocaine, the jury was instructed on accomplice liability and reasonably could have convicted Watkins on that basis as well. See A.R.S. §§ 13-301 (2011) ("accomplice" defined), -303(A)(3) (2011) (accomplice criminally liable for principal's conduct).

¶15 Because substantial evidence supported the jury's guilty verdicts, the superior court did not err by denying the Rule 20 motion for judgment of acquittal.

CONCLUSION

¶16 We affirm Watkins's convictions and sentences.

PATRICIA K. OROZCO, Judge, PETER B. SWANN, Judge, concurring.