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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARK HODGE, Appellant.
No. 1 CA-CR 20-0295
FILED 3-30-2021
Appeal from the Superior Court in Maricopa County
No. CR 2019-114052-001
The Honorable Dewain D. Fox, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By David R. Cole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
STATE v. HODGE
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.
B R O W N, Judge:
Mark Hodge appeals from his conviction and sentence for
misconduct involving weapons, challenging the sufficiency of the evidence.
Because substantial evidence supports the conviction, we affirm.
BACKGROUND
We view the evidence in the light most favorable to sustaining
the verdict, resolving all inferences against Hodge. State v. Davolt, 207 Ariz.
191, 212, ¶ 87 (2004).
White was searching for his missing girlfriend and went to an
apartment where he had once seen her. He knocked on the door, and a
man—later identified as Hodge—answered. Hodge yelled at White to go
away, and the two men continued arguing as White began walking away.
White turned back to see Hodge standing in the doorway, holding a gun by
his right side. White said Hodge “made sure” the gun was visible.
Sheehan, Hodge’s fiancée at the time, testified at trial
pursuant to an immunity agreement. At the time of the incident, Hodge
had lived with Sheehan for a couple of months. She said she heard a knock
at the door and asked the person to identify himself, but when no one
answered, Hodge opened the door. White asked if his girlfriend was there,
but Hodge told him she did not live there. White became angry and tried
to barge into the door, but Hodge was able to close it. Shortly thereafter
Hodge opened the door again to ensure White had left.
White called the police and told them about the gun. Officers
arrived within five minutes and knocked on Sheehan’s door. Sheehan gave
them permission to search the apartment and told them the gun was
underneath stuffed animals behind the bed. The police found the gun there
and took it as evidence.
Sheehan gave an audiotaped interview to police at the scene,
explaining that after closing the door on White, Hodge grabbed a gun
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STATE v. HODGE
Decision of the Court
because he was afraid Sheehan was being threatened. Hodge had a gun
when he came to the door the second time, but he held it behind the door
when opening it, so White did not see the gun. Sheehan said Hodge cut his
hand when he racked the gun at the door. In her interview with defense
counsel, however, she said Hodge was cleaning the gun at their apartment
earlier that morning. He racked the gun, cutting himself, then put it away
underneath the stuffed animals.
Hodge testified he heard a knock at the door and asked who
it was, but after receiving no response he opened it enough to recognize the
man at the door. Hodge told him to leave, but White tried to force his way
in. Hodge claimed he cut his hand during the scuffle and that as Sheehan
came near the door, he grabbed the gun she was holding and set it down.
But Hodge had earlier told police he never held or touched the gun at any
point.
Officer Jerry testified that Hodge’s left palm was bleeding
when they arrived, and Hodge had blood on his shirt. Officer Vidrio added
that Hodge was the only party with an injury, and the gun had fresh blood
on it. Officer Vidrio explained that in her experience, cuts to the inside palm
are a common injury from racking a gun.
A jury found Hodge guilty, and the court sentenced him to
ten years in prison. This timely appeal followed.
DISCUSSION
We review de novo whether sufficient evidence supports the
jury’s verdict. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We look to
“whether the record contains substantial evidence to warrant a conviction.”
Id. at ¶ 14 (quotation omitted). Substantial evidence is that which
“reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” Id. at ¶ 16
(quotation omitted). “Both direct and circumstantial evidence should be
considered.” Id.
The State had the burden to prove beyond a reasonable doubt
that Hodge “knowingly possess[ed] a deadly weapon” and that he was a
“prohibited possessor” at the time. A.R.S. § 13-3102(A)(4). Hodge
challenges only the first prong, asserting that reasonable inferences drawn
from conflicting evidence do not support a finding that he possessed the
gun found in Sheehan’s apartment. See A.R.S. §§ 13-105(10)(b) (defining
“knowingly”), -105(34) (defining “possess” as to “have physical possession
or otherwise to exercise dominion or control over property”).
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STATE v. HODGE
Decision of the Court
The record includes substantial evidence that Hodge
knowingly possessed a gun. White testified he saw Hodge holding a gun,
which was why he called police. Although Sheehan’s narrative of the
incident was inconsistent at different points, two of her statements involved
Hodge possessing a gun. She told police that Hodge grabbed the gun
during the incident, and she told defense counsel that Hodge was cleaning
the gun earlier in the day before hiding it. There was fresh blood on the
gun when police found it and Hodge was the only person who had been
bleeding. Moreover, police found the gun exactly where Sheehan said
Hodge had hidden it. Ample evidence supports the conviction and thus
we reject Hodge’s contention that because conflicting testimony was
presented at trial, the jury could only speculate as to which testimony was
credible. See State v. Lee, 189 Ariz. 608, 615 (1997) (appellate courts do not
reweigh the evidence on appeal).
CONCLUSION
We affirm Hodge’s conviction and sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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