STATE OF ARIZONA v KEVIN OTTAR and RUAN JUNIOR HAMILTON

 Annotate this Case
Download PDF
SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellant, ) ) v. ) ) KEVIN OTTAR and RUAN JUNIOR ) HAMILTON, ) ) Appellees. ) ) ) ) ) ) __________________________________) Arizona Supreme Court No. CR-12-0462-PR Court of Appeals Division One Nos. 1 CA-CR 11-0592 1 CA-CR 11-0600 (Consolidated) Maricopa County Superior Court Nos. CR2010-155798-001 CR2010-155798-002 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Paul J. McMurdie, Judge REVERSED ________________________________________________________________ Memorandum Decision of the Court of Appeals, Division One Filed Oct. 9, 2012 AFFIRMED ________________________________________________________________ WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY By E. Catherine Leisch, Deputy County Attorney Attorneys for the State of Arizona Phoenix MEHRENS AND WILEMON PA By Craig Mehrens Amy Wilemon Attorneys for Kevin Ottar Phoenix KIMERER & DERRICK PC Phoenix By Clark L. Derrick Michael Alarid, III Attorneys for Ruan Junior Hamilton ________________________________________________________________ P E L A N D E R, Justice ¶1 In a enforcement reverse-sting officers sell unsuspecting purchasers. operation, drugs or undercover other law contraband to The issue here is whether purchasers who handle and pay for drugs in a reverse sting, but do not and would not have been allowed to take them away, can be said to possess drugs for sale. Contrary to the purchasers argument, we possible conclude that it is to commit the offense of possessing drugs for sale under these circumstances. I. ¶2 An undercover quantity of marijuana Ottar.1 The undercover to marijuana law controlled. detective defendants was enforcement The arranged defendants in Ruan bales officers and to sell Hamilton in a large and Kevin warehouse covertly the a detective monitored went to that and the warehouse, where the defendants touched, smelled, and inspected the marijuana piles. The bales, placing defendants those agreed to they buy liked 375 into pounds, separate left the warehouse, and met with undercover detectives at a house, where the defendants paid $180,000 in cash for the intended purchase. After returning to the warehouse, the defendants repackaged the                                                              1 We describe the facts as set forth in the defendants joint motion to dismiss, which indicated the facts were taken from law enforcement reports and the grand jury presentation and were undisputed for purposes of the motion. 2    marijuana using a product to mask the odor. They were arrested at a hotel before taking any marijuana from the warehouse. ¶3 The defendants were charged, among other counts, with possession of marijuana for sale, in violation of A.R.S. § 133405(A)(2). They jointly moved to dismiss that count under Arizona Rule of Criminal Procedure 16.6(b), arguing broadly that it is impossible to commit possession of marijuana for sale in a reverse sting operation, and more specifically that they did not possess the marijuana here because both the drugs and the warehouse were controlled by police at all times. court granted the motion in part, ruling that The trial the police officers were never going to allow [the defendants] to possess [the marijuana], but permitted the State to proceed instead on a charge of attempted possession. See A.R.S. § 13-1001(A). After the court dismissed the case without prejudice at the State s request, the court of appeals reversed, concluding that, given the legal definition of possess, it was not impossible for the defendants to have possessed the marijuana and committed the charged offense even though the police never intended to allow them to leave with the drugs. State v. Ottar, Nos. 1 CA- CR 11-0592, 1 CA-CR 11-0600, 2012 WL 4789834, at *2 ¶ 8 (Ariz. App. Oct. 9, 2012) (mem. decision). ¶4 in We granted review because the question of possession a reverse-sting operation is 3    of statewide importance and likely to recur. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶5 Under § 13-3405(A)(2), possess marijuana for sale. it is unlawful to knowingly Although that statute does not define possess, A.R.S. § 13-105(34) does: Possess means knowingly to have physical possession or otherwise to exercise dominion or control over property. The statutory definition thus recognizes two kinds of possession: have physical possession ) and actual possession ( to constructive possession ( or otherwise to exercise dominion or control over property ). ¶6 The possessed State the marijuana; possession theory. 520, 502 claims P.2d it that does the not defendants advance a actually constructive Cf. State v. Villavicencio, 108 Ariz. 518, 1337, 1339 (1972) (generally, constructive possession applies to circumstances where the drug is not found on the defendant s person or in his presence, but rather in a place under his dominion and control and when it can be reasonably inferred that the defendant had actual knowledge of the existence of the narcotics ). The defendants argue that they never actually possessed the marijuana and that it was impossible for them to do so. ¶7 As an initial matter, we reject the State s contentions that physical possession is distinct from having 4    dominion or occurred control when over the defendants We marijuana. instead property, merely and that touched conclude, as and possession handled indicated by the the definitional statute s use of the phrase otherwise to exercise dominion or control over property, that physical possession requires some exercise of dominion or control over property. A.R.S. § 13-105(34) (emphasis added); see also id. § 13-105(35) (stating defendant that [p]ossession knowingly means voluntary dominion exercised a or act if control the over property ); United States v. Adams, 625 F.3d 371, 383 (7th Cir. 2010) ( One physical actually custody and possesses a control. ); thing cf. when State it v. is in his Barreras, 112 Ariz. 421, 423, 542 P.2d 1120, 1122 (1975) (reversing conviction for possession of heroin when no evidence supported finding that the defendant had dominion and control, either actual or constructive, over the drugs). ¶8 critical Dominion question, is not then, exercise[d] . . . control meaning of § 13-105(34). alleged is over or at issue whether the the marijuana here. The defendants within the Because Arizona s criminal statutes do not define control, we give that word its ordinary meaning. A.R.S. § 1-213; see State v. Cox, 217 Ariz. 353, 356 ¶ 20, 174 P.3d 265, 268 (2007) (noting that control is not a technical term and has a commonly understood meaning ). 5    ¶9 Generally, control means to have power over. State v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App. 1986) (quoting Webster s Third New International Dictionary (Unabridged) 496 (1981)); see also Black s Law Dictionary 378 (9th ed. 2009) (defining control as [t]o exercise power or influence over ). Thus, control implies more than mere touching or contraband. inspection of In the reverse-sting context, control requires that the defendant has taken custody of the drugs or manifested an intent to do so. 383. Adams, 625 F.3d at This meaning comports with Arizona s broad definition of possess. State v. Cheramie, 218 Ariz. 447, 449 ¶ 11, 189 P.3d 374, 376 (2008). But it also differentiates the crime of possession from that of attempted possession. See United States v. Kitchen, 57 F.3d 516, 525 (7th Cir. 1995) ( [R]eading the element of control out of the equation . . . risk[s] confusing possession with attempted possession. ). ¶10 Kitchen and Adams, both reverse-sting cases decided by the Court of Appeals for the Seventh Circuit, aptly illustrate these principles. In defendant s conviction distribute because Kitchen, for the the possessing evidence court cocaine showed reversed with only intent that he the to had momentarily handled and inspected the cocaine after expressing an interest in buying some. Id. at 519, 524-25. No evidence showed that, before his arrest, the defendant had assented to a 6    deal, otherwise agreed to complete the transaction, tendered any purchase money, or intended to take or transport the drugs. Id. at not 522-23. Absent established because any the such facts, defendant possession neither was controlled drugs] nor had recognized authority over them. [the Id. at 525. Lack of control, the court concluded, was dispositive under both the doctrines of actual and constructive possession. ¶11 Id. Conversely, in Adams, the court upheld the defendant s conviction for possessing marijuana with intent to distribute, finding the constructive evidence sufficient possession. 625 defendant paid containing the knowing that Distinguishing unequivocally for the drugs, federal had the his establish actual and 385-86. There, the at took attempted agents manifested F.3d marijuana, and Kitchen, to the to start disabled to the to it. Id. noted court assent keys that possession a van van, not at 376. Adams of the marijuana, constructively possess[ing] it once he accepted the keys to the van, and actually possess[ing] it once he entered the van and attempted to start it. Id. at 385-86. Even though a defendant in a reverse-sting operation ha[s] no practical ability to leave the scene with the [drugs] because of the presence of law enforcement officers standing ready to arrest him, the Adams court reasoned that the defendant, by knowingly taking the drugs into his custody, has done all that 7    he can do, short of leaving the scene with them, to signal his desire and intention to accept control over the drugs. Id. at 383-84 (collecting finding possession cases in from other reverse-sting federal circuit courts operations with similar facts); cf. State v. Gasperino, 859 S.W.2d 719, 722 (Mo. Ct. App. 1993) (constructive possession charge not defeated by fact that defendant never would have had actual possession due to police policy, or that officers intervened with arrest before defendant could actually pick up the marijuana he thought he had purchased). ¶12 Like the court in Kitchen, we conclude that a defendant in a reverse-sting operation does not possess drugs merely by touching consummated. or inspecting them before a purchase is See 57 F.3d at 525 ( The intent to engage in a drug transaction, without more, cannot support a conviction for possession. ). But like the court in both Kitchen and Adams, we also conclude that possession is not rendered legally impossible merely because a defendant does not leave the scene with the drugs and has little practical ability to do so. See id. at 522, 524 (noting that many courts have reject[ed] the argument that a defendant cannot have possessed the controlled substance in light of the presence of federal agents, and that Kitchen s lack of control was not because the presence of federal agents would have ultimately prevented his success ); Adams, 625 F.3d 8    at 385 (the defendant s ability or opportunity to drive away [with the drugs] was not necessary to establish his possession of the marijuana ). Of necessity, the particulars of a given drug transaction will drive the determination that a certain aspect of the defendant s establish possession. ¶13 Applying reverse-sting conduct is unequivocal enough to Kitchen, 57 F.3d at 523. those principles, operation, a we defendant conclude may be that found in to a have possessed drugs within the meaning of Arizona s statutes if the defendant exerts some control over or manifests an intent to control the drugs. at 524-25. See Adams, 625 F.3d at 383; Kitchen, 57 F.3d On the facts alleged here, Ottar and Hamilton did so, signal[ing] [their] desire and intention to accept control over the drugs by not merely touching and smelling the marijuana, but by segregating and arranging in separate piles the portions (using a intended product purchase. sufficiently control police they over wanted to presence at buy, repackaging mask the odor), Adams, 625 F.3d demonstrate and to the possess the the and at defendants marijuana, scene. The those paying 384. bundles for their Those intent actions to exercise notwithstanding Arizona statutes do the not suggest that, to have physical possession, one s exercise of control must be exclusive of others or absolute. ¶14 The defendants, however, argue (and the trial court 9    essentially A.R.S. § ruled) 13-1001, that their which conduct defines the falls squarely preparatory within offense of attempt, and the State is therefore precluded from charging them with the completed offense under § 13-3405(A)(2). ¶15 An attempt is substantively We disagree. different from a completed crime and requires only that the defendant intend to engage in illegal conduct and that he take a step to further that conduct. Mejak v. Granville, 212 Ariz. 555, 559 ¶ 20, 136 P.3d 874, 878 (2006) (citing A.R.S. § 13-1001). The ultimate crime need not be completed, or even possible, for a defendant to be criminally responsible for an attempt to commit a crime. Id. Conversely, responsible for a a defendant completed cannot crime when be it held is criminally impossible to commit the offense, id. ¶ 21, that is, when the facts required for the commission of the completed offense are not present, even though the defendant may believe so, id. at 558 ¶ 15, 136 P.3d at 877. ¶16 Relying on impossible for them possession of Mejak, to marijuana the defendants commit for sale. the contend completed But in that it was offense of case, the defendant could not violate the criminal statute [A.R.S. § 133554] under which he was indicted because the person he lured for sexual exploitation was in fact neither a minor nor a peace officer posing as a minor, a statutory prerequisite for the 10    completed crime. Id. at 559 ¶ 21, 136 P.3d at 878. Here, in contrast, the practical improbability of the defendants taking marijuana from the warehouse does not render their possession of the drugs, and thus their commission of the completed offense, legally impossible. which the Nor is this case like State v. McElroy, in defendant could never have been convicted of possession of dangerous drugs when the material he possessed was not illegal, even though he thought it was. 128 Ariz. 315, 317, 625 P.2d 904, 906 (1981). ¶17 The State certainly could have charged Ottar and Hamilton with attempted possession of marijuana for sale, and it then would required have the had State an to easier charge case to only prove. attempt But rather nothing than the completed crime, despite the defendants claim of impossibility. See People determining v. Rizo, whether 996 the P.2d 27, commission of 30 a (Cal. 2000) crime is ( When factually impossible, we do not concern ourselves with the niceties of distinction between physical and legal impossibility, but rather focus on the elements of the crime and the intent of the defendant. (internal quotation marks omitted)). ¶18 Defendants also rely heavily on State v. Miramon, which, unlike this case, concerned whether the evidence at trial was sufficient to establish constructive possession. App. 451, 452, 555 P.2d 1139, 1140 (1976). 11    27 Ariz. The court of appeals in Miramon found insufficient evidence to support the defendant s conviction of possession of marijuana for sale in part because the state did not prove that [the defendant] had the right to control [the marijuana s] disposition or use. at 453, 555 P.2d at 1141. But no such prerequisite possession is found in the statutes or cases. Id. to See A.R.S. §§ 13- 105(34), -3405(A)(2); State v. Salinas, 181 Ariz. 104, 106, 887 P.2d 985, 987 (1994) (recognizing the elements of possession of narcotics for sale). It is not necessary for a defendant charged with actually possessing drugs to be found to have had a right, legal or otherwise, to control their disposition or use. We therefore reject the defendants effort to extend Miramon to this case. ¶19 Defendants also urge us to follow Skrivanek v. State, a reverse-sting case in which the trial court found dominion or control lacking and therefore dismissed possession charges against the defendant, who was convicted instead of attempted possession. 739 A.2d 12, 16-18 (Md. 1999). That case is inapposite, however, because the trial court s ruling on the possession charges was not at issue on appeal. Id. at 14. In addition, that ruling was colored by the trial court s reliance on an undercover officer s testimony that the defendant was in custody at all pertinent times. Id. at 17. Here, in contrast, the defendants were not in custody until they were arrested, 12    several hours after they had extensively handled, inspected, paid for, and repackaged the marijuana they wanted to buy. III. ¶20 We hold that it was not legally impossible for the defendants to possess the marijuana, despite difficulty of leaving the scene it, presence in the reverse-sting with operation. the given practical the Because the police facts alleged are not insufficient as a matter of law, the trial court erred in dismissing the possession-for-sale charge under Rule 16.6(b).2 appeals We thus reverse that ruling and affirm the court of decision. Like the court of appeals, however, we express no opinion whether the evidence to be presented at trial will suffice to sustain convictions on the possession charge. See Ariz. R. Crim. P. 20. question will be whether At that stage, unlike now, the there is evidence sufficient to                                                              2 At oral argument, the parties disagreed on some of the underlying facts. The defendants, for example, argued that they went to the warehouse only once, contrary to the undisputed facts set forth in their motion to dismiss. Such factual disputes, however, are immaterial at this stage of the proceedings. Motions to dismiss under Rule 16.6(b) are not a means for testing, before trial, whether the state has enough evidence to prove the elements of an offense. Compare Ariz. R. Crim. P. 16.6(b) (standard for dismissal is whether charge is insufficient as a matter of law ), with Ariz. R. Crim. P. 20 (standard for judgment of acquittal on charge is whether there is no substantial evidence to warrant a conviction ). If a defendant can admit to all the allegations charged in the indictment and still not have committed a crime, then the indictment is insufficient as a matter of law and subject to dismissal under Rule 16.6. Mejak, 212 Ariz. at 556 ¶ 4, 136 P.3d at 875. That is not so here. 13    establish [the] defendant s actual or constructive possession of [marijuana] once the defendant or his accomplice has custody of the drugs or manifested an intent to do so. 625 F.3d at 383. __________________________________ John Pelander, Justice CONCURRING: __________________________________ Rebecca White Berch, Chief Justice __________________________________ Scott Bales, Vice Chief Justice __________________________________ Robert M. Brutinel, Justice __________________________________ Ann A. Scott Timmer, Justice 14    taken Adams,

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.