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

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

KELLY, Presiding Judge.

¶1 Jose Hinojosa appeals from his conviction and sentence for sale of a narcotic drug. He argues the evidence was insufficient to support his conviction. We affirm his conviction and sentence, but vacate the criminal restitution order (CRO) entered at sentencing.

¶2 "We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, ¶ 12, 967 P.2d 106, 111-12 (1998). On July 1, 2010, an undercover police officer spoke with an unknown person via telephone and arranged to purchase heroin. Pursuant to that arrangement, the officer met Hinojosa and Jose Estrella-Grijalva near a food vendor cart. The two arrived in a pickup truck, with Estrella-Grijalva driving. Hinojosa got out of the truck, shook the officer's hand, and invited him "to go in" the truck. After doing so, the officer purchased heroin from Estrella-Grijalva while Hinojosa stood a short distance away.

¶3 On July 27, 2010, the officer arranged another heroin transaction by telephone with the same individual. He again met Hinojosa and Estrella-Grijalva at the food cart. When the officer arrived, Hinojosa and Estrella-Grijalva were seated in a green BMW registered in Hinojosa's name. Hinojosa was in the driver's seat, with Estrella-Grijalva in the passenger's seat. The officer got in the back seat of the BMW and purchased heroin from Estrella-Grijalva by passing money and the heroin "between the two seats just over the center console." The heroin was packaged in "a clear baggie so you could actually see the . . . narcotics." Hinojosa remained in the car throughout the transaction.

¶4 Hinojosa was charged with two counts of sale of a narcotic drug. He testified that, on both occasions in July, he had gone to "get something to eat" with Estrella-Grijalva at the food cart, claiming he had lunch with him "maybe two or three" times. He denied seeing the officer before being charged and denied being present for or being aware of any heroin transactions. He also testified that Estrella-Grijalva had purchased the green BMW from him but that he had been keeping the title in his name until Estrella-Grijalva finished paying him for the car.

¶5 The trial court granted Hinojosa's motion for judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P., on the count based on the July 1 transaction, but denied the motion as to the July 27 transaction. The jury found Hinojosa guilty of that count, and the court sentenced him to a mitigated, three-year prison term. This appeal followed.

¶6 Hinojosa argues there was insufficient evidence to convict him as Estrella-Grijalva's accomplice in the drug transaction, claiming he was merely present during that transaction and there was "no evidence" that he acted "as protection or [as a] lookout[]." "Th[e] question of sufficiency of the evidence is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). "`[T]he 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.'" Id. ¶ 16 (emphasis omitted), quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). Thus, "[w]hen reasonable minds may differ on inferences drawn from the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal." State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997). Sufficient evidence supports Hinojosa's conviction if a jury could conclude that he acted as Estrella-Grijalva's accomplice, that is, "with the intent to promote or facilitate the commission of" sale of a narcotic drug, either aided, counseled, agreed to aid, or attempted to aid "another person in planning or committing" the offense; or "[p]rovide[d] means or opportunity to another person to commit" the offense. A.R.S. §§ 13-301, 13-303(A)(3), 13-3408(A)(7).

¶7 The jury readily could conclude that Hinojosa was Estrella-Grijalva's accomplice. First, it was entitled to reject his version of events. See State v. Lowery, 230 Ariz. 536, ¶ 6, 287 P.3d 830, 833 (App. 2012) (jury free to discredit defendant's testimony); see also State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974) ("No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury."). Hinojosa's mere presence is, of course, insufficient to support a finding of guilt. State v. Noriega, 187 Ariz. 282, 284-85, 928 P.2d 706, 708-09 (App. 1996). But the jury was not required to conclude Hinojosa was merely present. There was no suggestion that Hinojosa showed any surprise or had any reaction whatsoever to an obvious drug transaction occurring in plain view inches away from him. Hinojosa's lack of reaction strongly supports an inference that he was aware beforehand that a drug transaction would occur. See Laye v. State, 720 S.E.2d 233, 239 (Ga. Ct. App. 2011) (defendant's failure to "disapprove or oppose the commission of the offense" permits inference of aiding and abetting).

¶8 Moreover, in light of the officer's testimony that drug sellers commonly bring a second person to a transaction to serve as a lookout for law enforcement, Hinojosa's apparent knowledge of the impending transaction permits the inference that he was no mere bystander. See United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991) ("[I]t runs counter to human experience to suppose that criminal conspirators would welcome innocent nonparticipants as witnesses to their crimes."); cf. State v. Gonzalez, 229 Ariz. 550, ¶ 16, 278 P.3d 328, 332 (App. 2012) (testimony limited to general practices of drug organizations proper); United States v. Beltran-Rios, 878 F.2d 1208, 1212-13 (9th Cir. 1989) (drug courier profile testimony may be proper rebuttal when defense opens door to line of inquiry). Indeed, the jury could infer Hinojosa had overtly acted as a lookout during the first transaction, standing a short distance away from the truck after inviting the officer into the truck. Based on the totality of the evidence, the jury could conclude beyond a reasonable doubt that Hinojosa intended to aid in the commission of sale of a narcotic drug by driving Estrella-Grijalva to the second transaction and/or acting as a lookout.

¶9 Hinojosa cites two non-Arizona cases for the proposition that merely driving a car "that is involved in a principal's offense" is insufficient to create accomplice liability. Those cases do not suggest the evidence here was insufficient to support Hinojosa's accomplice liability. In neither case was there evidence the driver had previous knowledge the charged crime was to be committed, or was even aware the offense was being committed. See People v. Dennis, 692 N.E.2d 325, 327-29, 332 (Ill. 1998) (driver not accomplice to armed robbery when no evidence he was aware robbery had occurred and fled with perpetrator because he believed "drug bust" had occurred); People v. Parke, 595 N.Y.S.2d 162, 162 (N.Y. App. Div. 1993) (no evidence supporting accomplice liability when defendant dropped passenger off at apartment building, wherein drug transaction occurred, and picked up individual minutes later).

¶10 Although Hinojosa has not raised the issue on appeal, we find the CRO entered at sentencing constitutes fundamental error because it reduces "all fines, fees, and/or assessments" to a CRO "with no interest, penalties or collection fees to accrue while the defendant is in the Department of Corrections." Entry of such a CRO before a defendant's sentence has expired "`constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009).

¶11 The CRO entered at sentencing is vacated. Hinojosa's conviction and sentence for sale of a narcotic drug are otherwise affirmed.

PETER J. ECKERSTROM, Judge and PHILIP G. ESPINOSA, Judge, concurring.