In a recent appellate case based on an Arizona drug crime prosecution, an Arizona Court of Appeals considered a conviction for possession of a dangerous drug. A police officer had been conducting surveillance on a residence when a blue car approached. The car’s passenger entered the home and then went back to the car two times. Each time, he was carrying something in his hands. Another officer followed him after he left the home, and he stopped the car for a traffic violation.
The officer got identification from the driver of the car and a passenger. He checked for warrants, and there were none. Other officers came to the scene, and one of the officer’s drug detection dogs conducted a sniff of the outside of the car.
The officers asked the driver and the passenger to get out of the car. The officer asked the passenger if he had weapons. When the officer conducted a pat-down of the passenger’s waist to make sure he didn’t have weapons, the passenger ran away. He took off his jacket and dropped it while running. The officer followed and arrested him.
An officer looked through the discarded jacket and found a plastic bag in it. The bag contained a white substance, which was 1.31 grams of methamphetamine. The defendant was charged with possession of a dangerous drug under Ariz. Rev. Stat. §§ 13-3401(6)(c)(xxxviii), 13-3407(A)(1), which is a class 4 felony. There was a three-day jury trial for possession of a dangerous drug, but the defendant didn’t submit any evidence. Instead, he argued that the prosecutors didn’t meet their burden of proof to prove the case against him beyond a reasonable doubt.
The prosecution and the defense disagreed about a proposed flight jury instruction. The prosecution wanted the court to instruct the jury that in deciding about whether guilt was proven beyond a reasonable doubt, the jury could consider evidence of the defendant running away or concealing evidence. The defendant asked for the court to add on optional language that would tell the juries they could consider his reasons for running away, concealing evidence, or hiding. The court gave the prosecutor’s request instruction, since the defendant hadn’t presented evidence about why he ran away.
The jury convicted the defendant, and he was sentenced to a mitigated six-year term of imprisonment. He appealed. On appeal, he argued it was a mistake for the court to give the flight instruction without providing the additional language.
The appellate court explained that since he didn’t submit evidence about why he fled, the additional language wasn’t necessary. It explained a flight instruction would only be appropriate if evidence about how the defendant left the scene revealed consciousness of guilt. The added language needed to be supported by the evidence presented. The defendant argued that he should have gotten the added language because an officer testified he was nervous during the traffic stop.
The appellate court pointed out that the officer had actually testified that nervousness when confronted with the police is common, running away is not common, and the defendant didn’t provide any contrary evidence.
The conviction and sentence were affirmed.
If you are charged with any type of drug crime, contact criminal defense attorney James Novak at (480) 413-1499 in Tempe, Arizona.
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