368 P.3d 936
Ariz. Ct. App.2016Background
- In August 2012 police entered a Maricopa house to arrest Rock Kelly Ingram on a Wisconsin felony warrant; officers found a .40-caliber bullet in his front pocket.
- A loaded .40-caliber semi-automatic pistol was later recovered inside a briefcase in the master-bedroom closet; the briefcase contained .40-caliber ammunition and an empty prescription bottle bearing Ingram’s name.
- The State charged Ingram with misconduct involving weapons as a prohibited possessor (felony conviction in Wisconsin stipulated).
- The case was reassigned to a new trial judge by an "immediately distributed" order on January 29, 2015; Ingram filed a Rule 10.2 peremptory change-of-judge notice the next business day (Feb. 2), which the trial court denied as untimely.
- Ingram was convicted after jury trial and sentenced to the presumptive 2.5-year term; he appealed, arguing (1) the court erred by denying his Rule 10.2 request and (2) the evidence was insufficient to prove possession of the gun.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a Rule 10.2 peremptory change of judge can be reviewed on direct appeal | State: challenge should be by special action; direct appeal lacks meaningful prejudice review | Ingram: may be raised on direct appeal (relies on Keel) | Court: Must be raised by special action; denial of peremptory change is not reviewable on direct appeal (Taliaferro rationale applies) |
| Whether evidence was sufficient to prove Ingram constructively possessed the pistol | State: circumstantial and direct evidence (briefcase contents, prescription bottle, bullet on person, Ingram’s statements) establish constructive possession | Ingram: pistol not on person; evidence insufficient to show dominion/control | Court: Evidence sufficient for constructive possession; denied Rule 20 motion for acquittal |
Key Cases Cited
- Taliaferro v. Taliaferro, 186 Ariz. 221 (1996) (peremptory change-of-judge denials must be reviewed by special action because prejudice cannot be shown on appeal)
- Keel v. State, 137 Ariz. 532 (App. 1983) (trial court failed to honor peremptory change of judge; court previously allowed appellate review)
- State ex rel. Thomas v. Gordon, 213 Ariz. 499 (App. 2006) (rules on change of judge in civil and criminal cases are essentially the same)
- Lee v. State, 218 Ariz. 235 (2008) ("actual receipt" requirement and mail-delivery rule discussed for notice receipt)
- State v. Gonsalves, 231 Ariz. 521 (App. 2013) (constructive possession may be proven by circumstantial evidence; possession can be joint/nonexclusive)
- State v. Snider, 233 Ariz. 243 (App. 2013) (standard of review for sufficiency of the evidence is de novo)