STATE of Arizona, Appellee,
v.
Richard Vershoun JACKSON, Appellant.
Court of Appeals of Arizona, Division 1, Department A.
*214 Rоbert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Criminal Div., Gary A. Fadell, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.
EUBANK, Judge.
Appellant, Richard Vershoun Jackson, was charged and convicted of possession of a dangerous drug, a class 4 felony, in violation of A.R.S. § 13-3404. An allegation of a prior felоny conviction was alleged and admitted by appellant, and he was subject to the enhanced punishment provision of A.R.S. § 13-604. Appellant was sentenced to the presumptive term of six yeаrs imprisonment.
The issues on appeal are:
1. Whether the trial court erred by allowing the prosecution to impeach the appellant with a prior unspecified felony conviction;
2. Whether the trial court erred in dеnying appellant's motion for a judgment of acquittal;
*215 3. Whether the trial court committed reversible error by failing to reinstruct the jury at the end of the trial on the state's burden of proof.
On April 7, 1982, Phoenix police officers David Sodduck and Ray Dunlap were on a routine patrol in the area of 902 South 10th Avenue in Phoenix. The officers pulled into a parking lot adjacent to an apаrtment complex and observed appellant and Clarence Blacknell standing together near the southwest end of the lot, drinking from open beer cans. Upon observing the officers, аppellant tucked an object into his pants, turned around and briskly walked away from the area toward the apartment complex. The officers drove their vehicle onto the sidewalk and followed appellant. When the officers arrived at the center of the apartment complex, Officer Dunlap got out of the vehicle and followed appellant оn foot. Phoenix police officer Thomas Hernandez, who had previously been called to the scene, observed appellant throw, from waist level, a glass jar onto the grass in front of one of the apartments. Officer Hernandez retrieved the glass container and observed that it contained cigarettes wrapped in foil which Officer Hernandez believed cоntained PCP, a dangerous drug.
At trial, appellant denied possessing the PCP laced cigarettes. Appellant testified that he observed the police officers pull into the parking lot of the apartment complex while he and a friend, Clarence Blacknell, were drinking beer. Appellant testified that he left the vicinity after observing the officers. According to appellant, he threw down a glass beer bottle while being followed by the police. Clarence Blacknell testified that appellant had been drinking a bottle of beer. Blacknell stated that he never observed appellant in the possession of a glass jar containing cigarettes wrapped in foil.
IMPEACHMENT
Before the trial, appellant filed a motion in limine to preclude the state from using a prior possession of dangerous drugs conviсtion for impeachment purposes. The trial judge ruled that the state could impeach the appellant with the prior conviction, but could not elicit the specific nature of the felony. The appellant argues that the trial court obviously found the prior conviction unduly prejudicial and that therefore the trial court erred in permitting him to be impeached at аll, even without the mention of the nature of the prior felony conviction. We do not agree.
In State v. Watkins,
MOTION FOR JUDGMENT OF ACQUITTAL
The appellant argues that the trial court erred in failing to grant his motion for acquittаl made at the close of the state's evidence. Appellant contends that insufficient evidence of the usability of the dangerous drug was presented at trial, as the state did not offer tеstimony that the quantity and quality of the drug submitted into evidence could be effectively used by a *216 dangerous drug user. In support of his contention, appellant cites State v. Moreno,
[w]here the amount of a narcоtic is so small as to require a chemical analysis to detect its presence, the quantity is sufficient if usable under the known practices of narcotic addicts. We hold that only in those cases where the amount is incapable of being put to any effective use will the evidence be insufficient to support a conviction.
REASONABLE DOUBT INSTRUCTION
The trial court gave the jury preliminary instructions as authorized by Rule 18.6(c), Arizona Rules of Criminal Procedure. These instructions included both an instruction that it was the state's burden to prove each element of the crime charged beyond a reasonable doubt and a definition of reasonable doubt. The trial lasted one day and the judge charged the jury the next morning. The judge's charge includеd an instruction setting forth the elements of the crime of possession of dangerous drugs. The judge did not reinstruct the jury on the state's burden of proving that appellant committed each element оf the crime beyond a reasonable doubt. However, the jury did receive a copy of the preliminary instructions on reasonable doubt to take with them to the jury room.
Appellant argues, for the first time on appeal, that the trial judge's failure to again charge the jury at the close of the evidence on the state's burden of proof constituted fundamental reversible error. Appellant relies upon this court's opinion in State v. Marquez,
The state contends that the trial judge's failure to charge the jury on the state's burden of proof cannot be deemed fundamental error requiring reversal since the defendant in the instant case, unlike the defendant in Marquez, failed to request that the jury be so instructed, and did not object to the trial judge's failure to do so.
We agree with the state. In Marquez, counsel specifically requested that the jury be instructed again, at the end of the trial on the state's burden of proof, and emphatically voiced his disagreement with the trial judge's refusal to do so. We held that the triаl judge erred in not honoring counsel's request. Here there was no such request *217 for the instruction. This fact, coupled with the fact that the jury was instructed on the state's burden of proof at the beginning of thе trial, and the fact that the jury was given a copy of the preliminary instructions to take with them to the jury room, removes the case from the Marquez ambit. While it is error not to reinstruct the jury at the end of the triаl on the state's burden of proof, it was not reversible error under the circumstances of this case.
The judgment and sentence are affirmed.
GRANT, P.J., and HAIRE, J., concur.
ORDER
GRANT, Presiding Judge.
The subject matter of this order has been considered by the court, Presiding Judge Grant, and Judges Haire and Eubank participating. On the court's own motion,
IT IS ORDERED redesignating this court's memorandum decision filed in this matter on November 29, 1983, as an opinion, to be published accordingly pursuant to Rule 48, Rules of the Arizona Supreme Court.
IT IS FURTHER ORDERED directing the clerk of this court to distribute the redesignated memorandum decision accordingly.