State v. Dugan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

KENNETH MIKEAL DUGAN, JR., Appellant.

No. 1 CA-CR 15-0190
FILED 3-31-2016

Appeal from the Superior Court in Mohave County
No. S8015CR201400665
The Honorable Steven F. Conn, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.

D O W N I E, Judge:

¶1 Kenneth Mikeal Dugan Jr. appeals his convictions and
sentences for possession of dangerous drugs for sale, possession of drug
paraphernalia, and misconduct involving weapons. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Dugan and eight other persons were indicted after police
officers found drugs, money, and weapons while executing a search
warrant at residential properties believed to be used for drug trafficking.
At the time of the warrant’s execution, Dugan was living in a travel trailer
parked behind the main residence at one of the properties; his girlfriend,
co-defendant Ellen Ruth Dickey, stayed there occasionally. In the trailer,
officers found three firearms, a glass pipe, plastic baggies, 6.8 grams of
methamphetamine, and a monitor with a live feed from surveillance
cameras mounted on the roof.

¶3 The court denied Dugan’s motion to suppress, wherein he
argued that the search warrant did not specifically mention his trailer or
him. The court also denied Dugan’s pretrial motion to sever his trial from
Dickey’s.

¶4 At trial, Dugan admitted that the items seized from the trailer
were his, but testified the methamphetamine was for his own personal use.
The jury convicted him of the charged offenses, and the court sentenced
him to concurrent terms in prison, the longest of which is seven years.
Dugan timely appealed.

DISCUSSION

A. Severance

¶5 Dugan contends the court erred by denying his pretrial
motion to sever, which posited that he and Dickey would blame each other
at trial and that he would be prejudiced by evidence of Dickey’s prior drug

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conviction and history of drug use. The court denied the motion, reasoning
that Dugan’s defense of mere presence and/or that he did not possess the
drugs for sale was not antagonistic to Dickey’s announced defense of mere
presence, and that a jury instruction would cure any potential “rub-off”
effect as to the evidence about Dickey.

¶6 We ordinarily review a trial court’s refusal to sever for a clear
abuse of discretion. See State v. Murray, 184 Ariz. 9, 25 (1995). However,
Arizona Rule of Criminal Procedure 13.4(c) states that a motion to sever
must be made at least 20 days prior to trial and, “if denied, renewed during
trial at or before the close of the evidence.” “Severance is waived if a proper
motion is not timely made and renewed.” State v. Flythe, 219 Ariz. 117, 119,
¶ 5 (App. 2008). “By limiting appellate review . . . Rule 13.4(c) prevents a
defendant from strategically refraining from renewing his motion, allowing
a joint trial to proceed, then, if he is dissatisfied with the final outcome,
arguing on appeal that severance was necessary.” Id. at 120, ¶ 9. Because
Dugan did not renew his pretrial severance motion during trial, we review
only for fundamental error.1 See State v. Laird, 186 Ariz. 203, 206 (1996).

¶7 We discern no error — fundamental or otherwise. As relevant
here, the court must sever the trial of codefendants only when “necessary
to promote a fair determination of the guilt or innocence of any defendant
of any offense.” Ariz. R. Crim. P. 13.4(a). The court should grant a timely
severance request when it detects aspects of the case that might prejudice
the moving defendant, such as when “evidence admitted against one
defendant has a harmful rub-off effect on the other defendant . . . or . . .
co-defendants present antagonistic, mutually exclusive defenses or a
defense that is harmful to the co-defendant.” Murray, 184 Ariz. at 25. To
require severance based on antagonistic defenses, the “defenses must be
irreconcilable; they must be antagonistic to the point of being mutually
exclusive,” such that they cannot both be believed. State v. Cruz, 137 Ariz.
541, 544–45 (1983).

¶8 Dugan’s pretrial argument was that the defenses were
mutually antagonistic because he would present evidence that the drugs
belonged to Dickey, and he believed Dickey would claim the drugs
belonged to him. Dickey’s counsel, however, informed the court that her
defense would “tend to be with mere presence. . . . This was Mr. Dugan’s
trailer. Ms. Dickey was an overnight guest there. . . . [O]ur defense would
be that we’re not necessarily trying to blame Mr. Dugan, but simply saying

1 The portion of the record cited in the opening brief does not support
Dugan’s assertion that the motion to sever was “renewed prior to trial, but
denied again.”

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what was in there wasn’t Ms. Dickey’s because she wasn’t living there, or
had not been there for that long.” Under these circumstances, the court did
not err in concluding that the defenses were not established to be mutually
antagonistic “at this time.” Nor did the court abuse its discretion in
concluding that any rub-off effect from Dickey’s prior conviction could be
cured by a jury instruction. Severance on such a basis is rare and is required
only if the jury is unable to “keep separate the evidence that is relevant to
each defendant and render a fair and impartial verdict as to him.” State v.
Grannis, 183 Ariz. 52, 59 (1995) (quoting State v. Lawson, 144 Ariz. 547, 556
(1985)). Here, it was reasonable to believe that jurors would be able to
separate the evidence against each defendant.

¶9 Dugan also contends the court should have ordered
severance after Dickey’s mini-opening statement, where she purportedly
blamed Dugan for the contraband found in the trailer, and also after her
counsel focused negative attention on him while cross-examining
witnesses. We disagree. The actual defenses presented at trial were
consistent, not antagonistic. Dugan’s defense was that he possessed the
drugs for personal use, not sale, and Dickey’s defense was that she was
merely present at the residence where the drugs were found. Dickey’s
cross-examination sought to elicit testimony supporting Dugan’s defense
that he lived on the premises in exchange for repairing vehicles (an activity
with which Dickey assisted), and that he possessed the methamphetamine
for his own personal use. Dickey’s closing argument reiterated her
assertion that she was merely present and helping Dugan with his car-
repair business. No evidence was presented that Dickey had a prior drug
conviction — only that she had been convicted of a felony. Nor has Dugan
cited any trial evidence disclosing that Dickey had a history of drug use.
Finally, the court instructed the jury that it must consider the charges
against each defendant separately.

¶10 On this record, the superior court did not err by failing to
sever Dugan’s trial from Dickey’s trial.

B. Motion to Suppress

¶11 Dugan contends the court erroneously denied his motion to
suppress because the affidavit supporting the warrant failed to identify him
as a target of the search or his trailer as one of the structures to be searched.
He also argues that officers executing the warrant lacked a reasonable,
good-faith belief that the search of his trailer was proper.

¶12 After conducting a hearing, the superior court ruled that the
search was proper, and alternatively, that the officers acted in good faith.

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In reviewing that ruling, we limit our review to the evidence before the
superior court at the time of the suppression hearing, State v. Blackmore, 186
Ariz. 630, 631 (1996), and we consider the evidence in the light most
favorable to affirming the ruling. State v. Hyde, 186 Ariz. 252, 265 (App.
1996). We review the court’s ultimate legal determination de novo. State v.
Olm, 223 Ariz. 429, 432, ¶ 7 (App. 2010).

¶13 The search warrant identified the properties to be searched as
991 S. Red Rock Road and an adjacent lot at 1001 S. Red Rock Road, “[t]o
include any and all structures, both movable and stationary located within
the curtilage of the property.” In his affidavit, Detective Frances outlined a
two-year investigation involving surveillance, controlled drug buys,
interrogation of suspects, and tips from informants, which revealed that
Roddy Joe Gomez sold and distributed for sale large quantities of
methamphetamine and heroin from the properties in and around 991 and
1001 S. Red Rock Road, and three properties nearby. Law enforcement
learned that Gomez lived in a trailer at the front of the property at 991 S.
Red Rock Road, and James Pinkerton was living in a trailer on the rear of
the property and selling $3,000 to $6,000 in drugs each day from that trailer.
Surveillance revealed numerous instances of short-term foot and vehicular
traffic at the properties that were indicative of drug sales.

¶14 The warrant was requested after police arrested Kenneth
Jones upon finding him passed out in his vehicle, blocking the road. Jones
told the officers that Gomez supplied him with a pound of heroin and a
pound of methamphetamine every other week (an amount officers
subsequently found in Jones’s vehicle), and that Gomez was “moving” at
least one kilogram (2.2 pounds) of both methamphetamine and heroin each
week. Officers also noted that Jones made the following statements:

Gomez hides his illegal drug supply, money, and weapons in
various locations on his property (991 Red Rock Rd).
Additionally Gomez uses the property located adjacent to his
(1001 Red Rock Rd.) which is also under his control to hide
drugs, money and weapons to include the trailer that
Gomez’s mother lives in near the front of the property. Jones
further stated that he had been at both locations [within] the
last couple of days.

Detective Frances obtained the search warrant that same day, and the
Mohave Area General Narcotics Enforcement Team executed the warrant
that afternoon.

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¶15 Detective Frances testified that Dugan’s name did not come
up during the investigation of Gomez’s drug-trafficking organization,
“[b]ut there were a lot of people there we couldn’t identify.” Nor did
officers know before executing the warrant that Dugan’s trailer was parked
behind the main residence on the 1001 S. Red Rock lot. Detective Frances
estimated, though, that at any given time, between 40 and 50 trailers and
vehicles were located on the two properties, and “there were so many
movements of vehicles and motor homes and trailers, that we didn’t have
a specific name or specific trailer associated with who was attached to either
one.” Moreover, law enforcement had information that whomever was on
the property was assisting Gomez in the drug sales and that Gomez would
“use the different locations and different vehicles on the property, and his
mother’s motor home, to hide weapons, drugs and money.”

¶16 Search warrants are governed by the Fourth Amendment,
which protects the “right of the people to be secure . . . against unreasonable
searches and seizures.” U.S. Const. amend. IV. A magistrate may issue a
search warrant only based on a showing of “probable cause, supported by
affidavit, naming or describing the person and particularly describing the
property to be seized and the place to be searched.” Ariz. Rev. Stat.
(“A.R.S.”) § 13-3913. Although a warrant for a multiple-occupancy
structure is generally invalid if it does not describe the subunit to be
searched, where the entire premises is under suspicion of illegal activity, a
warrant authorizing a search of all structures on the premises may be valid.
See State v. Burns, 163 Ariz. 44, 46 (App. 1989).

¶17 The warrant at issue here permitted a search of “any and all
structures, both movable and stationary located within the curtilage of the
property,” based on probable cause to believe that Gomez controlled what
occurred at the premises, used the entire premises for drug trafficking, and
was hiding drugs, money and weapons in vehicles and other structures
located on the property. Under these circumstances, the warrant was not
overbroad by authorizing a search of the entire premises, including
Dugan’s trailer. See United States v. Alexander, 761 F.2d 1294, 1300–01 (9th
Cir. 1985) (warrant authorizing search of entire 40-acre ranch for drugs was
not overbroad due to failure to mention small trailer in which defendant
was found).

¶18 The superior court did not err in denying the motion to
suppress.

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C. Jury Deliberations

¶19 Finally, Dugan argues the court violated Arizona Rule of
Criminal Procedure 22.1(c) “by ordering the jurors to remain beyond
normal work hours without first consulting the jury and parties.” We
disagree.

¶20 The court prescreened the jury for four days of trial, seating
12 jurors and one alternate. Counsel, though, did not complete closing
arguments until 4:30 p.m. on the fourth day of trial — a Friday. Before the
jury retired to deliberate, the court stated:

I’m going to give you a couple of options. One of them is to
just recognize the hour that it is, and maybe go home and
come back next week; but I need to see if that’s going to be an
issue. The other one is to start deliberating, with the idea that
I would not let you deliberate any later than seven o’clock
tonight, because that’s the hour beyond which we are not
going to be here [anymore].

When the court inquired if anyone could not return the following week,
two jurors stated that they could not. The court responded:

Well, that may have made up our minds, then. So, the clerk,
at this time, will draw the name of one of – and counsel, if it
were just one person that could not be here next week, I
would be saying we will designate that person as the
alternate. My thought is, we will just pick the alternate in the
usual random manner; and what I would normally say about
stopping at seven o’clock, that is not going to be the case,
because we are going to finish this case. So, hopefully, that’s
agreeable to everyone.

No objection was raised, and the jury retired to deliberate.

¶21 The court later commented, “So, counsel, I don’t feel real good
about having suggested to the [jurors] that they are going to stay here until
they make a decision, but I don’t think we had any other options under the
circumstances.” As an alternative, the court suggested that (1) “if the jury
were to reach a verdict on Ms. Dickey’s cases, we could actually excuse
more alternates, because it is only because of Ms. Dickey that we even have
a 12-person jury;” or (2) “[i]f you all want to agree at some point . . . that she
would not get over 30 years in prison, maybe we could designate some
more of these people as alternates, like the people who can’t be here next

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week, and the jury would be able to go home.” The court responded to a
request for clarification from Dickey’s counsel as to whether the “seven
o’clock rule” had been lifted, stating that the court would not “just
arbitrarily tell [the jurors] that they cannot deliberate past seven o’clock.”
No further record was made on the issue, and the jury reached verdicts on
all charges at 7:03 p.m.

¶22 Because Dugan did not object to the court’s handling of the
jury deliberation issue, he bears the burden of demonstrating that the court
erred, that the error was fundamental, and that he was prejudiced. See State
v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20 (2005). He has not carried this
burden.

¶23 Rule 22.1(c) states: “The court shall not require a jury to
deliberate after normal work hours unless the judge, after consultation with
the jury and the parties, determines that evening or weekend deliberations
are necessary in the interest of justice and will not impose an undue
hardship upon the jurors.” Here, the court consulted with the jury by
discussing available options. After learning that two jurors could not
return the following week, the court implicitly concluded it was “necessary
in the interest of justice” to direct the jury to continue deliberating Friday
evening. The court also could have reasonably determined that the
deliberations would not impose an undue hardship on jurors when no one
spoke up after the remark, “So, hopefully, that’s agreeable to everyone.”
Additionally, the court consulted with the parties by discussing alternative
measures that would permit the two jurors who could not deliberate the
following week to be excused.

¶24 Finally, Dugan has not demonstrated the requisite prejudice
under fundamental error review. His speculation that the jury might have
felt rushed to reach a verdict is insufficient. See State v. Munninger, 213 Ariz.
393, 397, ¶ 14 (App. 2006). Nothing in the record suggests that was the case,
and after the verdicts were read, the court individually polled the jurors,
and each affirmed the verdicts.

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CONCLUSION

¶25 For the foregoing reasons, we affirm Dugan’s convictions and
sentences.

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