SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-12-0462-PR
Appellant, )
) Court of Appeals
v. ) Division One
) Nos. 1 CA-CR 11-0592
KEVIN OTTAR and RUAN JUNIOR ) 1 CA-CR 11-0600
HAMILTON, ) (Consolidated)
)
Appellees. ) Maricopa County
) Superior Court
) Nos. CR2010-155798-001
) CR2010-155798-002
)
) O P I N I O N
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Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge
REVERSED
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Memorandum Decision of the Court of Appeals, Division One
Filed Oct. 9, 2012
AFFIRMED
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WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By E. Catherine Leisch, Deputy County Attorney
Attorneys for the State of Arizona
MEHRENS AND WILEMON PA Phoenix
By Craig Mehrens
Amy Wilemon
Attorneys for Kevin Ottar
KIMERER & DERRICK PC Phoenix
By Clark L. Derrick
Michael Alarid, III
Attorneys for Ruan Junior Hamilton
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P E L A N D E R, Justice
¶1 In a “reverse-sting” operation, undercover law
enforcement officers sell drugs or other contraband to
unsuspecting purchasers. 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 conclude that it is possible to commit the offense of
possessing drugs for sale under these circumstances.
I.
¶2 An undercover detective arranged to sell a large
quantity of marijuana to defendants Ruan Hamilton and Kevin
Ottar.1 The marijuana was in bales in a warehouse that
undercover law enforcement officers covertly monitored and
controlled. The defendants and the detective went to the
warehouse, where the defendants touched, smelled, and inspected
the marijuana bales, placing those they liked into separate
piles. The defendants agreed to buy 375 pounds, 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. § 13-
3405(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. The trial
court granted the motion in part, ruling that “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 We granted review because the question of possession
in a reverse-sting operation is of statewide importance and
3
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), it is unlawful to knowingly
possess marijuana for sale. 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: actual possession (“to
have physical possession”) and constructive possession (“or
otherwise to exercise dominion or control over property”).
¶6 The State claims that the defendants actually
possessed the marijuana; it does not advance a constructive
possession theory. Cf. State v. Villavicencio, 108 Ariz. 518,
520, 502 P.2d 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
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“dominion or control” over property, and that possession
occurred when the defendants merely touched and handled the
marijuana. We instead conclude, as indicated by 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 that “‘[p]ossession’ means a voluntary act if the
defendant knowingly exercised dominion or control over
property”); United States v. Adams, 625 F.3d 371, 383 (7th Cir.
2010) (“One actually possesses a thing when it is in his
physical custody and control.”); cf. State v. 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 “Dominion” is not alleged or at issue here. The
critical question, then, is whether the defendants
“exercise[d] . . . control” over the marijuana within the
meaning of § 13-105(34). 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 inspection of contraband. In the reverse-sting context,
control requires that the defendant “has taken custody of the
drugs or manifested an intent to do so.” Adams, 625 F.3d at
383. 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 Kitchen, the court reversed the
defendant’s conviction for possessing cocaine with intent to
distribute because the evidence showed only that he 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
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deal, otherwise agreed to complete the transaction, tendered any
purchase money, or intended to take or transport the drugs. Id.
at 522-23. Absent any such facts, possession was not
established because the defendant “neither controlled [the
drugs] nor had recognized authority over them.” Id. at 525.
“Lack of control,” the court concluded, was “dispositive under
both the doctrines of actual and constructive possession.” Id.
¶11 Conversely, in Adams, the court upheld the defendant’s
conviction for possessing marijuana with intent to distribute,
finding the evidence sufficient to establish actual and
constructive possession. 625 F.3d at 385-86. There, the
defendant paid for the marijuana, took the keys to a van
containing the drugs, and attempted to start the van, not
knowing that federal agents had disabled it. Id. at 376.
Distinguishing Kitchen, the court noted that “Adams
unequivocally manifested his assent to possession 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
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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 cases from other federal circuit courts
finding possession in reverse-sting 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 or inspecting them before a purchase is
consummated. 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 conduct is unequivocal enough to
establish possession.” Kitchen, 57 F.3d at 523.
¶13 Applying those principles, we conclude that in a
reverse-sting operation, a defendant may be found to 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. See Adams, 625 F.3d at 383; Kitchen, 57 F.3d
at 524-25. 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 they wanted to buy, repackaging those bundles
(using a product to mask the odor), and paying for their
intended purchase. Adams, 625 F.3d at 384. Those actions
sufficiently demonstrate the defendants’ intent to exercise
control over and possess the marijuana, notwithstanding the
police presence at the scene. The Arizona statutes do 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 ruled) that their conduct falls squarely within
A.R.S. § 13-1001, which defines the preparatory offense of
attempt, and the State is therefore precluded from charging them
with the completed offense under § 13-3405(A)(2). We disagree.
¶15 “An attempt is substantively 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, “a defendant cannot be held criminally
responsible for a completed crime when it is 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 Mejak, the defendants contend it was
impossible for them to commit the completed offense of
possession of marijuana for sale. But in that case, the
defendant “could not violate the criminal statute [A.R.S. § 13-
3554] 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. Nor is this case like State v. McElroy, in
which “the 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 have had an easier case to prove. But nothing
required the State to charge only attempt rather than the
completed crime, despite the defendants’ claim of impossibility.
See People v. Rizo, 996 P.2d 27, 30 (Cal. 2000) (“When
determining whether the commission of a crime is 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. 27 Ariz.
App. 451, 452, 555 P.2d 1139, 1140 (1976). The court of appeals
11
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.” Id.
at 453, 555 P.2d at 1141. But no such prerequisite to
possession is found in the statutes or cases. 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 the practical
difficulty of leaving the scene with it, given the police
presence in the reverse-sting operation. Because the 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 We thus reverse that ruling and affirm the court of
appeals’ 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. At that stage, unlike now, the
question will be whether 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 taken
custody of the drugs or manifested an intent to do so.” Adams,
625 F.3d at 383.
__________________________________
John Pelander, Justice
CONCURRING:
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Rebecca White Berch, Chief Justice
__________________________________
Scott Bales, Vice Chief Justice
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Robert M. Brutinel, Justice
__________________________________
Ann A. Scott Timmer, Justice
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