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State v. Johansen

ARIZONA COURT OF APPEALS DIVISION ONE
Nov 17, 2015
No. 1 CA-CR 14-0727 (Ariz. Ct. App. Nov. 17, 2015)

Opinion

No. 1 CA-CR 14-0727

11-17-2015

STATE OF ARIZONA, Appellee, v. MICHAEL J. JOHANSEN, Appellant.

COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Mohave County Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CR201300732
The Honorable Steven F. Conn, Judge

REVERSED AND REMANDED

COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Peter B. Swann joined. Judge Samuel A. Thumma dissented. JONES, Judge:

¶1 Michael Johansen appeals his conviction and sentence for one count of possession of a dangerous drug. We conclude the State failed to present evidence from which a jury could properly find each element of the charged offense beyond a reasonable doubt, and therefore, the trial court erred in denying Johansen's motion for judgment of acquittal. Accordingly, we reverse the conviction and remand for entry of a judgment of acquittal.

FACTS AND PROCEDURAL HISTORY

We view the facts in the light most favorable to upholding the jury's verdict and resolve all reasonable inferences against the defendant. State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).

¶2 On March 26, 2013 at 10:20 p.m., a Mohave County Sheriff's deputy in Kingman, Arizona began following a motorcycle operated by Johansen. The deputy observed Johansen, who was then driving on a suspended license, turn into the driveway of a residence on Leroy Avenue. The residence appeared vacant as there were no interior or exterior lights, no vehicles in the driveway, and no personal belongings apparent on the property. After Johansen knocked on the door of the residence, the deputy rolled down his window and asked Johansen if he lived there. Johansen stated he did not, but his girlfriend did.

¶3 When no one answered the door, Johansen began to pace on the sidewalk while making calls on his cell phone. The deputy exited his vehicle and approached Johansen, who reiterated that his girlfriend, Danielle, lived at the residence. The deputy returned to his vehicle and attempted to verify ownership of the property through dispatch but was unable to find any record of anyone named Danielle owning or occupying the property.

¶4 When the deputy looked up from his research, Johansen was no longer at the front door. The deputy walked to the rear of the residence looking for Johansen and, as he did, observed through the windows that the home was empty save for broken cabinets in the master bedroom and trash on the floor. The deputy ultimately encountered Johansen in the backyard where he was "seeing if the back door was open." When the deputy asked Johansen if he knew the owner of the residence, Johansen responded by asking, "Do you?" and then stated his girlfriend was on her way over and would provide an answer.

¶5 The deputy then asked Johansen for identification. When Johansen refused, he was detained. After the deputy called for backup, Johansen provided his identification. A routine search revealed Johansen's driver's license suspension, and he was arrested. A search incident to arrest also revealed four loose pills in Johansen's pants pocket. Subsequent analysis indicated the pills were Alprazolam, also known as Xanax, established by statute to be a dangerous drug. Ariz. Rev. Stat. (A.R.S.) § 13-3401(6)(d)(ii). Johansen was subsequently indicted on one count of possession of dangerous drugs, in violation of A.R.S. § 13-3407, and one count of possession of drug paraphernalia, in violation of A.R.S. § 13-3415.

Absent material changes from the relevant date, we cite a statute's current version.

¶6 Following the close of the State's evidence, Johansen's counsel made a motion pursuant to Rule 20, Arizona Rules of Criminal Procedure, arguing the State had failed to present any evidence Johansen knew the pills were in his pocket or knew the pills constituted a dangerous drug. The trial court denied the motion, agreeing with the State that the jury could reasonably infer that Johansen knew the contents of his pockets.

¶7 The defense then called Danielle, Johansen's girlfriend at the time of the arrest and wife by the time of trial, who testified she left the loose pills on Johansen's bathroom counter on the day of his arrest and asked him to return them to her when they met later in the day. According to her testimony, she did not tell him the pills were Xanax, and he did not ask. On cross-examination, Danielle admitted she had never lived at the Leroy Avenue address and had no intention of meeting Johansen at that residence on the evening of his arrest. Johansen did not testify.

¶8 Johansen's counsel renewed his Rule 20 motion. The trial court again denied the motion, noting there was no evidence Johansen was not aware the pills constituted a dangerous drug and that his irrational behavior demonstrated a "consciousness of guilt." The jury found Johansen guilty of possession of a dangerous drug and acquitted him of possession of drug paraphernalia. The trial court sentenced Johansen to three years' probation. Johansen timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶9 Johansen argues the State presented insufficient evidence to permit a reasonable jury to find he knew the pills constituted a dangerous drug, and the trial court therefore erred in denying his Rule 20 motions. We review the denial of a motion for judgment of acquittal de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011) (citing State v. Bible, 175 Ariz. 549, 595 (1993)). Evidence upon which a reasonable jury can convict is sufficient if it is of "such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. at ¶ 16 (citations and quotations omitted). Because the State must prove every element of the offense, State v. Seyrafi, 201 Ariz. 147, 150, ¶ 7 (App. 2001) (citing State v. Klausner, 194 Ariz. 169, 171, ¶¶ 9-11 (App. 1998)), acquittal is appropriate if there is insufficient evidence to support any one element.

¶10 We test the sufficiency of the evidence "against the statutorily required elements of the offense." State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App. 2005). Pursuant to A.R.S. § 13-3407(A), "[a] person shall not knowingly . . . [p]ossess or use a dangerous drug." Here, Johansen argues the State failed to prove he had knowledge that the pills contained a dangerous drug. See State v. Arce, 107 Ariz. 156, 160 (1971) (noting crime of unlawful possession of narcotics includes evidence that defendant had knowledge that the substance was a narcotic) (citing People v. Kortopates, 264 Cal. App. 2d 176, 179 (1968)). Evidence of knowledge may "of course" be circumstantial, because "the defendant's mental state will rarely be provable by direct evidence." State v. Noriega, 187 Ariz. 282, 286 (App. 1996) (noting instead that "the jury will usually have to infer [a defendant's mental state] from his behaviors and other circumstances surrounding the event"). However, "guilty knowledge cannot rest on mere supposition, and the evidence must show it beyond a reasonable doubt." State v. Hull, 60 Ariz. 124, 128 (1942) (citations omitted); see also State v. Tellez, 6 Ariz. App. 251, 258 (1967).

¶11 Here, the State presented evidence that late one evening, while Johansen was being followed by law enforcement, he turned into the driveway of a vacant home and, when confronted by the deputy, was curt and uncooperative; he lied about his purpose for turning into the driveway, paced nervously during the encounter, and refused to provide identification when requested. We agree this erratic, dishonest, and uncooperative behavior evidences a consciousness of guilt, which, in turn, may create an inference of knowledge, see State v. Cotton, 197 Ariz. 584, 590, ¶ 22 (App. 2000) (noting a defendant's "attempted deception reflects a consciousness of guilt"), the weight and significance of which, if any, are questions for the jury. State v. Kountz, 108 Ariz. 459, 463 (1972). However, "a circumstance tending to prove a consciousness of guilt . . . is not sufficient of itself to prove guilt." Id. (approving the use of a jury instruction to this effect where it is supported by the evidence) (citing State v. Vann, 11 Ariz. App. 180, 182 (1970), and Cal. Jury Instr. Crim. 2.03 (3d ed.)); State v. Hinkle, 26 Ariz. App. 561, 567 (1976) (same); accord Rev. Ariz. Jury Instr. Stand. Crim. 9 (5th ed. 2013), instructing jury that a defendant's flight or concealment may evidence a guilty conscience but specifying "[r]unning away, hiding, or concealing evidence after a crime has been committed does not by itself prove guilt"); State v. Van Alcorn, 136 Ariz. 215, 218 (App. 1983) (approving an instruction to the jury that a defendant's attempt to suppress evidence against himself could show a consciousness of guilt but was "not sufficient in itself to prove guilt"); United States v. Glenn, 312 F.3d 58, 69 (2d Cir. 2002) (noting that although circumstantial evidence of consciousness of guilt "may strengthen inferences supplied by other pieces of evidence, they do not alone prove guilt") (citations omitted); Commonwealth v. Tu Trinh, 940 N.E.2d 871, 877 (Mass. 2011) ("[E]vidence of actions suggesting consciousness of guilt alone are not sufficient to convict . . . .").

The problem with allowing an inference of guilt, on any charge, based solely upon a defendant's apparent consciousness of guilt is illustrated here — where Johansen's actions could just as easily have been a reflection of his knowledge that he was driving on a suspended license while, at the same time, having no knowledge that the pills in his pocket constituted a dangerous drug.

¶12 Our dissenting colleague suggests that the availability of competing inferences means that the question should be entrusted to the jury. See infra ¶¶ 22, 25 (relying on State v. Fierro, 220 Ariz. 337 (App. 2008)). While often true, that principle simply has no application when the only evidence is consciousness of otherwise unattributable guilt. If the rule proposed by the dissent were the law, then any inchoate feelings of guilt in the mind of a defendant could be used to justify convictions of the innocent. To the contrary, when the State's case consists only of evidence upon which a guilty conscience may be inferred, the evidence is insufficient, as a matter of law, for submission to the jury.

¶13 The State argues the "something more" necessary to support the conviction is the "biased and self-serving testimony" of Danielle, which "strained credulity to the point where it cast doubt on the defense." We disagree. While the jury is free to discredit testimony, "discredited testimony is not [alone] considered a sufficient basis for drawing a contrary conclusion." Dombey v. Phx. Newspapers, Inc., 150 Ariz. 476, 487-88 (1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)) (internal quotations omitted). There must be "other objective evidence on the record which buttresses the fact finder's drawing of the opposite inference." United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975) (citing United States v. Chase, 503 F.2d 571, 573 n.4 (9th Cir. 1974)); see also United States v. Cordova Barajas, 360 F.3d 1037, 1042 (9th Cir. 2004) (holding "a rational juror could infer, based on the observations of the arresting officers, the inferences that can be drawn from the totality of the circumstances, and [the defendant]'s implausible testimony" that he was guilty of the crime charged) (emphasis added). "Where the only basis for a finding contrary to the testimony of a witness is his demeanor, . . . a conviction will not be sustained." United States v. Price, 623 F.2d 587, 591 (9th Cir. 1980), overruled on other grounds by United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984); see also United States v. Reed, 297 F.3d 787, 789 (8th Cir. 2002) (noting the jury may draw inference of guilt from its disbelief of a defendant's denials when other corroborative evidence of guilt exists).

¶14 Although not raised by the State, the dissent argues a "good deal more evidence," is offered "that [Johansen] possessed four Xanax pills that he placed in his pants pocket earlier in the day at the request of his significant other." See infra ¶ 23. We agree the location of the pills is relevant to Johansen's knowledge that the pills existed within his pocket, and this fact is not in dispute. However, no reasonable inference of Johansen's knowledge of the pill's status as a dangerous drug can be drawn from a mere proximity to four non-readily-identifiable pills where there is no other supporting evidence and Johansen did not speak to the issue; a jury cannot discount a defendant's version of events where none is given. See State v. Carrillo, 156 Ariz. 125, 129 (1988) (reiterating that no inference may be drawn from a defendant's decision not to speak) (citing Doyle v. Ohio, 426 U.S. 610, 618-19 (1976)).

The record reflects the State actively and successfully fought to exclude statements Johansen made immediately after the pills were discovered acknowledging the pills were Xanax and claiming they belonged to his girlfriend. This information was not presented to the jury and is therefore immaterial to our review of whether the jury had sufficient evidence to convict Johansen.

¶15 Indeed, review of the record reveals no evidence was presented to the jury, either circumstantial or direct, that Johansen knew or should have known the pills contained a dangerous drug, or that Danielle had told him the pills were Xanax. There is no indication Johansen attempted to conceal the pills, either before or after his arrest or tried to "toss" them when he left the deputy's view and walked around to the back of the house. See State v. Curiel, 130 Ariz. 176, 184 (App. 1981) (affirming conviction supported by "evidence of [the defendant's] attempt to hide the canister" containing heroin); State v. Miramon, 27 Ariz. App. 451, 453 (1976) (considering the fact that defendant "did not appear to be hiding anything" in analyzing whether he "possessed" marijuana found in his vehicle); State v. Grijalva, 8 Ariz. App. 205, 208 (1968) (finding sufficient evidence of knowledge of stolen character of goods based on evidence of the "unusual hiding place of the goods, together with the furtive manner in which they were placed there"). The State did not introduce any false or contradictory statements by Johansen regarding the pills or where he obtained them. See Hull, 60 Ariz. at 128 (noting evidence of "false, evasive or contradictory statements by the accused" would be sufficient to infer knowledge that property was stolen) (citations omitted); State v. Gerry, 15 Ariz. App. 441, 443-44 (1971) (finding evidence sufficient to sustain a conviction of knowing possession where objective evidence was "add[ed] to . . . defendant's wholly unbelievable and inadequate explanation"). The location of the pills in his pants pocket, although somewhat unusual, was not inherently suspect, and there was no suggestion he acquired the pills in an illicit fashion or was under the influence of Xanax at the time of his arrest. See Hull, 60 Ariz. at 128 (noting the unusual acquisition and concealment of the property "is pertinent to the question" of whether a defendant had knowledge that it was stolen) (citing Wood v. State, 94 So. 256, 257 (1922)). Johansen was not in possession of any other illicit substance, see id. ("Evidence of possession of other stolen property is also admissible on the question of knowledge.") (citing Wertheimer & Goldberg v. State, 169 N.E. 40, 44 (1929)), and there is no evidence he actively avoided learning the true nature of the pills, State v. Diaz, 166 Ariz. 442, 445 (App. 1990) (noting knowledge could be proven by evidence that defendant was aware of the high probability that the substance was illegal and "acted with a conscious purpose" to avoid learning its true nature), vacated in part on other grounds, 168 Ariz. 363 (1991).

For these reasons, we find this matter distinguishable from Fierro. There, after forty-nine bales of marijuana totaling 629 pounds were discovered in the back of his pick-up truck, the defendant admitted he had been paid $1,000 to transport "drugs" from one gas station to another. Id. at 338, ¶¶ 2-3. Under those circumstances, sufficient evidence was presented to establish knowledge by "showing defendant was aware of the high probability that the package[s] contained marijuana, and that he acted with conscious purpose to avoid learning the true contents of the packages." Id. at 339, ¶¶ 5, 9 (citing State v. Diaz, 166 Ariz. 442) (App. 1990)).

¶16 While it is true that the courts in the cases cited herein unanimously conclude, under their specific facts and circumstances, that sufficient evidence was presented to support the convictions, careful review reveals that each case presents the "something more" the State's case against Johansen lacks. Based upon this review and an exhaustive search, we assume the State is hesitant to prosecute, and a jury is hesitant to convict, where the "something more" is lacking — and understandably so. In the absence of such evidence, the jury could not reasonably draw an inference of knowledge that the pills contained a dangerous drug based solely upon Johansen's demeanor during his interactions with law enforcement and disbelief of Danielle's testimony. Because the State presented no evidence to bolster the inference of a guilty conscience, we hold the evidence is insufficient to support Johansen's conviction for possession of a dangerous drug, and the trial court erred in denying his Rule 20 motion.

CONCLUSION

¶17 We reverse Johansen's conviction and sentence for possession of a dangerous drug and remand for entry of a judgment of acquittal. See State v. Sowards, 147 Ariz. 156, 158 (1985) (citing Greene v. Massey, 473 U.S. 19, 24 (1978)). THUMMA, Judge, dissenting:

¶18 The trial evidence the State presented was thin. The question, however, is whether that evidence was so thin that the jury could not have properly returned a guilty verdict because the jury could not have properly been asked to determine whether Johansen was guilty. Because the evidence presented is not that thin, I respectfully dissent.

¶19 Johansen makes no challenge to the jury instructions given. Nor does he claim, as the Majority suggests at ¶ 14, that an inference was drawn from his "decision not to speak" (i.e., not to testify at trial). Moreover, the issue is whether the evidence was sufficient to allow the jury to decide the charge, not whether the reasons provided by the superior court in denying the motion for judgment of acquittal were correct. State v. Perez, 141 Ariz. 459, 464 (1984) ("We are obliged to affirm the trial court's ruling if the result was legally correct for any reason.") (citations omitted).

¶20 The State was required to prove that Johansen: (1) knowingly possessed a dangerous drug; (2) knowing that the substance was a dangerous drug. See A.R.S. § 13-3407(A). The trial evidence clearly proves the first element, including by showing Johansen knowingly placed four pills (which turned out to be Xanax) in his pants pocket at the request of his significant other. Given that Xanax is a dangerous drug, the question is whether the State offered enough evidence for the jury to consider and then decide the second element: that Johansen knew the pills were Xanax, a dangerous drug. Resolving this issue turns on the evidence admitted at trial, viewed through an extremely deferential lens.

For reasons not clear from the record, the State did not seek to introduce at trial Johansen's statements to police officers, immediately after the pills were removed from his pocket, "that they were Xannex [sic] and they were his girlfriends . . . [Johansen] advised his girlfriend has a prescription for those." For reasons also not clear from the record, Johansen claims on appeal that the superior court erred in excluding those statements at trial, an issue that need not be resolved given the Majority's conclusion.

¶21 This court must view the evidence in a light most favorable to sustaining the conviction, resolving all reasonable inferences against defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008). If reasonable minds could differ on the inferences to be drawn from the evidence, "the case must be submitted to the jury." State v. Landrigan, 176 Ariz. 1, 4 (1993) (citation omitted). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316 (1987) (citation omitted). The State is not required to disprove every hypothesis of innocence. See State v. Bullock, 26 Ariz. App. 149, 153 (1976).

¶22 The inferences to be drawn are especially fact-intensive, given that the dispositive issue here is Johansen's mental state (i.e., what he knew). Knowingly means "that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission." A.R.S. § 13-105(10)(b). Evidence of knowledge may be circumstantial; in fact, knowledge "rarely can be proved by any other means." State v. Ramirez, 190 Ariz. 65, 69 (App. 1997).

¶23 Applying these directives, the trial evidence shows that Johansen placed four pills in his pocket that his significant other indicated were important enough that he needed to bring them to her when they were to meet later that day. Johansen demonstrated erratic, uncooperative and dishonest behavior when interacting with law enforcement that the jury properly could consider as evidence of consciousness of guilt (i.e., that he knew the pills were Xanax, a dangerous drug). The Majority at ¶ 11 acknowledges this behavior but, quoting State v. Kountz, 108 Ariz. 459, 463 (1972), states evidence of consciousness of guilt "is not sufficient of itself to prove guilt." Kountz, however, affirmed a first degree murder conviction, rejecting a challenge to a jury instruction stating that evidence of defendant's out of court "false or contradictory statements concerning the charge against him which now is being tried may be considered by the jury as a circumstance tending to prove a consciousness of guilt, that it is not sufficient of itself to prove guilt." 108 Ariz. at 463. What the jury considered in this case includes a good deal more evidence -- what the State calls "substantial additional evidence" -- than Johansen's false or contradictory statements showing a consciousness of guilt. That evidence includes his erratic and uncooperative behavior and that he possessed four Xanax pills that he placed in his pants pocket earlier in the day at the request of his significant other. Simply put, I do not agree with the Majority's conclusion at ¶ 11 that, on this record, "the only evidence is consciousness of otherwise unattributable guilt."

¶24 Kountz directed that, in considering false and contradictory statements as evidence of consciousness of guilt, "[t]he weight to be given to such a circumstance, [and] the significance, if any, to be attached to it, are matters for the Jury to determine." Id. (quoting, and approving, a jury instruction given at trial). That, I would submit, is what the jury properly was asked to do in this case. Kountz also crisply rejected a sufficiency of the evidence claim: "We have read the entire transcript and we believe the state of the record is ample from which the jury could find the defendant guilty of murder in the first degree by torture." Id. at 464. Indeed, the other cases cited by the Majority at ¶¶ 11 and 15 for the proposition that the State did not offer sufficient evidence similarly reject sufficiency of the evidence challenges and affirm convictions. State v. Vann, 11 Ariz. App. 180, 182 (1970) (affirming attempted robbery conviction; rejecting sufficiency of evidence claim regarding intent to rob; "Intent, being a state of mind, proof of intent generally must be circumstantial in nature. What the defendant does or fails to do and what he says may be evidence of what is going on in his mind."); State v. Hinkle, 26 Ariz. App. 561, 567 (1976) (affirming kidnapping conviction; noting "Appellant's last contention is that the court erred in instructing the jury that his contradictory statements, if any, might be considered as tending to prove consciousness of guilt, but were insufficient alone to prove guilt. We rejected this same contention in State v. Travis, 26 Ariz. App. 24, 545 P.2d 986 (1976), and approved this instruction."); State v. Gerry, 15 Ariz. App. 441, 443-44 (1971) (affirming possession of marijuana conviction; "Under the totality of these circumstances, we find the trial court properly submitted to the jury the question of defendant's knowing possession of marijuana found in his car.").

Other cases relied upon by the Majority at ¶ 10 similarly reject sufficiency of the evidence challenges. See, e.g., State v. Arce, 107 Ariz. 156, 160-62 (1971) (rejecting double jeopardy claim; "[i]t was the function of the jury to decide what reasonable inferences could be drawn from the evidence;" concluding "there is ample evidence in the record to support defendant's conviction on the charge of possession of heroin for sale under A.R.S. § 36-1002.01 [(1969)], and the conviction on that charge is accordingly affirmed"); State v. Hull, 60 Ariz. 124, 128 (1942) (affirming receipt of stolen goods conviction; "[w]hile it is true that guilty knowledge cannot rest on mere supposition and the evidence must show it beyond a reasonable doubt, nevertheless this fact may be established by circumstantial as well as by direct evidence;" concluding "it is a question for the jury as to whether [defendant] had guilty knowledge when he admittedly received the stolen property"). State v. Tellez, the one Arizona case relied upon by the Majority at ¶ 10 that vacated a conviction (for receipt of stolen property) because of insufficient evidence, is distinguishable because "there was no proof given to the jury that the [defendant] . . . knew he had the goods at all," unlike here, where Johansen admitted putting the four pills in his pocket. 6 Ariz. App. 251, 258 (1967) (2-1 decision). --------

¶25 The Majority at ¶ 11 n.3 posits that:

The problem with allowing an inference of guilt, on any charge, based solely upon a defendant's apparent consciousness of guilt is illustrated here — where Johansen's actions could just as easily have been a reflection of his knowledge that he was driving on a suspended license while, at the same time, having no knowledge that the pills in his pocket constituted a dangerous drug.
But "[w]here the evidence discloses facts from which the jury could legitimately deduce either of two conclusions, it is sufficient to overcome a motion for acquittal." State v. Garcia, 138 Ariz. 211, 214-15 (App. 1983) (citation omitted). Indeed, the Arizona Supreme Court has mandated that, "[w]hen reasonable minds may differ on inferences 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. 608, 615 (1997) (citing Landrigan, 176 Ariz. at 4). Thus, that there were two explanations for Johansen's actions supports having the jury decide the issue, not taking the issue away from the jury.

¶26 The Majority at ¶¶ 13 and 15 also appears to adopt a requirement that the State offer "objective evidence" of Johansen's mental state and, at ¶ 16, reverses "[b]ecause the State presented no evidence to bolster the inference of a guilty conscience." Johansen, however, does not argue that "objective evidence" was required. Moreover, the Majority does not define any such requirement and State v. Gerry, 15 Ariz. App. 441, 443-44 (1971), the only Arizona authority cited for such a requirement, at ¶ 15, does not discuss or mention the phrase. In this case, and particularly given that knowledge seldom can be proven by direct evidence, Ramirez, 190 Ariz. at 69, I do not agree with an "objective evidence" requirement.

¶27 Johansen argues the State failed to provide adequate evidence that he knew the four pills he placed in his pocket were Xanax, a dangerous drug. In this sense, Johansen's argument is similar to defendant's position in State v. Fierro, 220 Ariz. 337 (App. 2008). In Fierro, the defendant was convicted of knowingly transporting marijuana for sale under A.R.S. § 13-3405(A)(4), for driving a truck containing marijuana. 220 Ariz. at 338 ¶¶ 1-2. In Fierro, as in this case, the State "presented no direct evidence that Fierro actually knew he was transporting marijuana rather than some other drug. Although Fierro told the detective who interviewed him that he knew there were drugs in the bed of the truck, he stated he did not know what type of drugs he was transporting." Id. at 239 ¶ 5. In affirming the conviction, Fierro rejected defendant's objections to the jury instructions, adding they correctly told "the jury that Fierro's claim that he lacked the requisite knowledge for the commission of the offense entailed a credibility determination for the jury to make. By its verdict, the jury resolved this issue against Fierro, and it is not the role of this court to second-guess that assessment." Id. at 239 ¶ 9.

¶28 In denying Johansen's motion for judgment of acquittal, the superior court considered the evidence of his false and contradictory statements to police, his erratic and uncooperative behavior, the fact that the pills he placed in his pants pocket at the request of his significant other were Xanax, a dangerous drug, and observed "the average jury would assume that one generally knows what's in their pants; and in their pants pockets." The superior court also had an opportunity to weigh and assess witness credibility in addressing and denying Johansen's motions for judgment of acquittal. Considering that same evidentiary record, and having weighed and assessed witness credibility, the jury then found Johansen guilty of possession of a dangerous drug. Conceding the trial evidence the State presented was thin, particularly given the ways in which this court must view the evidence, Johansen has not shown the superior court erred in denying his motions for judgment of acquittal. Accordingly, I respectfully dissent.


Summaries of

State v. Johansen

ARIZONA COURT OF APPEALS DIVISION ONE
Nov 17, 2015
No. 1 CA-CR 14-0727 (Ariz. Ct. App. Nov. 17, 2015)
Case details for

State v. Johansen

Case Details

Full title:STATE OF ARIZONA, Appellee, v. MICHAEL J. JOHANSEN, Appellant.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Nov 17, 2015

Citations

No. 1 CA-CR 14-0727 (Ariz. Ct. App. Nov. 17, 2015)

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