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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JESUS RIOS FRANKO, Appellant.

No. 1 CA-CR 19-0445 

Appeal from the Superior Court in Maricopa County

No. CR 2018-137105-001

The Honorable Annielaurie Van Wie, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Nicholas Chapman-Hushek

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Carlos D. Carrion

Counsel for Appellant

FILED 10-15-2020
STATE v. FRANKO

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.

B R O W N, Judge:

¶1 Jesus Rios Franko appeals his conviction and sentence for 

possession or use of dangerous drugs. He argues the superior court erred 

in denying his motion for judgment of acquittal. Because substantial 

evidence supports the conviction, we affirm.

BACKGROUND

¶2 Police officers arrested Franko for an unrelated incident and

searched him, checking his pants pockets, pant legs, waistline, and other 

areas where a weapon or object may have been concealed. The officer

conducting the search explained he did not check the inside of Franko’s 

socks or remove his shoes because he did not see anything “sticking out 

from the socks,” and a “more detailed search” would be conducted later at 

a holding facility. No contraband was found and, after handcuffing Franko 

with his hands behind his back, the officers placed him in the backseat of 

Officer Kultala’s patrol car, a sport utility vehicle. 

¶3 Kultala drove Franko to a detention facility and turned him 

over to the detention staff. When Kultala returned to his patrol car, he 

inspected the back cage of the car and found a small plastic bag on the floor 

containing a “white powdery crystal substance” he believed was 

methamphetamine (“meth”). He also noticed the “same substance had 

been scratched” into the “small pores” of the floor. A short time later, 

another officer assisted Kultala in collecting the evidence. Both officers 

used their body cameras to record what they found, which included meth 

crystals and a small partially chewed lollipop stick that was referred to at 

trial as a “popsicle stick.” The video footage, which was admitted by 

stipulation at trial, confirms that it was in fact a lollipop stick.

¶4 Franko was subsequently charged with possession or use of 

dangerous drugs and possession of drug paraphernalia. At trial, the parties 

stipulated that the substance found in the patrol car was meth, a dangerous

drug. See A.R.S. § 13-3401(6)(c)(xxxviii). The jury found him guilty of the 
STATE v. FRANKO

Decision of the Court

3

dangerous drug charge, but not guilty of possessing paraphernalia, and the

superior court sentenced him to ten years’ imprisonment. This timely 

appeal followed. 

DISCUSSION

¶5 We review de novo the denial of a motion made under 

Arizona Rule of Criminal Procedure (“Rule”) 20. State v. West, 226 Ariz. 

559, 562, ¶ 15 (2011). “[T]he court must enter a judgment of acquittal . . . if 

there is no substantial evidence to support a conviction.” Rule 20(a)(1). 

Viewing the evidence in the light most favorable to the State, substantial 

evidence means “such proof that reasonable persons could accept as 

adequate and sufficient to support a conclusion of defendant’s guilt beyond 

a reasonable doubt.” West, 226 Ariz. at 562, ¶ 16 (quotations omitted).

“Both direct and circumstantial evidence should be considered in 

determining whether substantial evidence supports a conviction.” Id.

When the evidence allows reasonable minds to differ as to the inferences 

drawn from the facts, the trial judge has no discretion to enter a judgment 

of acquittal. Id. at 563, ¶ 18.

¶6 To convict Franko of possession or use of dangerous drugs, 

the State had to prove beyond a reasonable doubt that he knowingly 

possessed meth. See A.R.S. § 13-3407(A)(1), -3401(6)(c)(xxxviii). Franko 

argues the State failed to provide sufficient evidence to establish the 

elements of possession and knowledge and thus the superior court erred in 

denying his Rule 20 motion. 

¶7 The law defines “possess” as physically possessing or 

otherwise exercising dominion or control over, as relevant here, a drug. 

A.R.S. § 13-105(34). To prove constructive possession, the State needed to 

establish, by specific facts or circumstances, that Franko exercised dominion 

or control over the meth, even though it was not found in his presence. See

State v. Villalobos Alvarez, 155 Ariz. 244, 245 (App. 1987). Constructive 

possession may be proven with circumstantial evidence. State v. Donovan,

116 Ariz. 209, 213 (App. 1977). Thus, the question here is whether 

substantial evidence shows Franko constructively possessed the meth 

found on the floor of the patrol car.

¶8 Kultala testified that at the start of his shift, before the arrest, 

he inspected the back cage of the patrol car. Kultala explained that the 

purpose of the inspection, normally done at the beginning of each shift, is 

to look “for any sort of contraband or anything else that shouldn’t be back 

there.” Kultala found orange traffic cones in the back cage and moved them 
STATE v. FRANKO

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to the rear of the car but did not notice any “crystalline substance” or any 

“baggies” on the floor. He also testified no one else was transported in the 

backseat of the car between the initial inspection and Franko’s arrest, and 

he did not see the meth on the floor of the backseat until after he transported 

Franko to the detention center. This circumstantial evidence was sufficient

to permit the jury to reasonably conclude Franko possessed the meth when 

he was placed into the patrol car. See Carroll v. State, 90 Ariz. 411, 414 (1962) 

(explaining that “the circumstances must be such that they are at least 

consistent with a reasonable inference that defendant knew of the existence 

of the narcotic which was found, before he may be found guilty of 

‘possession’”); see also State v. Harvill, 106 Ariz. 386, 391 (1970) (direct and 

circumstantial evidence have intrinsically similar probative value).

¶9 Franko contends Kultala must not have done a thorough 

search of the car before he left the station because he missed the lollipop

stick. The jury heard that evidence but its verdict shows it was not 

persuaded by Franko’s argument that if Kultala overlooked the lollipop

stick when he inspected the car at the start of his shift, he also might have 

overlooked the meth on the floor of the car. Jurors were informed that 

during their deliberations they could review the body camera footage of the 

officers collecting the evidence from the patrol car, including meth crystals 

that were on the backseat floor, and the lollipop stick, located on the floor 

near the rear passenger side door. Evaluating the significance of that 

evidence was within the province of the jury. See State v. Clifton, 134 Ariz. 

345, 348 (App. 1982) (In deciding whether substantial evidence exists to 

warrant a conviction, we “giv[e] full credence to the right of the jury to 

determine credibility, weigh the evidence, and draw justifiable inference[s]

therefrom.”).

¶10 A person’s “mere presence” near an unlawful item is 

insufficient to establish that the person knowingly exercised dominion or 

control over that item. See State v. Curtis, 114 Ariz. 527, 528, 530 (App. 1977). 

In this case, however, the State presented evidence of more than mere 

proximity to support the jury’s implicit finding that Franko constructively 

possessed the meth. Although the officers did not see Franko with the 

meth, its location on the floor where Franko was seated, the lack of other 

potential possessors, and the lack of any contraband when the car was 

inspected cumulatively provided substantial circumstantial evidence that 

Franko possessed the meth. Cf. Carroll, 90 Ariz. at 412–14 (finding evidence 

insufficient where drugs were found near a bench outside of an airport, in 

a place clearly accessible to the public); State v. Miramon, 27 Ariz. App. 451, 

452–53 (1976) (finding evidence insufficient where drugs were found under 

the passenger seat of a vehicle with multiple occupants).
STATE v. FRANKO

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¶11 Franko also argues the evidence was insufficient to prove he 

knew about the meth. “‘Knowingly’ means, with respect to . . . a

circumstance described by a statute defining an offense, that a person is 

aware or believes that . . . the circumstance exists.” A.R.S. § 13-105(10)(b). 

Like possession, knowledge can be proven by circumstantial evidence. See

State v. Henry, 205 Ariz. 229, 232, ¶ 11 (App. 2003) (“[A] trial court must 

submit a case to the jury if reasonable minds can differ on the inferences to 

be drawn from the evidence,” which may be either direct or 

circumstantial.). When the evidentiary chain links a defendant to an illicit 

drug, the trier of fact may fairly draw an inference he knew of its existence 

and presence. See Carroll, 90 Ariz. at 413. “[T]he circumstances must be such 

that they are at least consistent with a reasonable inference that defendant 

knew of the existence of the narcotic, which was found, before he may be 

found guilty of ‘possession.’” See id. Given the officers’ testimony, location 

of the meth, and the video evidence, the circumstances here provide a 

reasonable inference that Franko was aware of the meth that must have 

been in his possession when he entered the patrol car. The State therefore 

presented substantial evidence from which a jury could find Franko 

knowingly possessed meth.

¶12 Finally, Franko argues that because the jury acquitted him on 

the charge of possession of drug paraphernalia for the small plastic bag

found in the patrol car, the evidence was insufficient to support a conviction 

for possession of the meth. It is well established, however, that an appellate 

court’s review of the sufficiency of the evidence “‘should be independent 

of the jury’s determination that evidence on another count was insufficient’ 

and ‘should not be confused with the problems caused by inconsistent 

verdicts.’” State v. Williams, 233 Ariz. 271, 274, ¶ 10 (App. 2013) (citation 

omitted). The reason is “we recognize that, ‘in the privacy of the jury room,’ 

either ‘leniency or compromise’ may lead jurors to acquit a defendant 

whom they believe to be guilty.” Id. Accordingly, Franko’s acquittal on the 

paraphernalia charge is irrelevant to determining the sufficiency of the 

evidence supporting his drug possession conviction.
STATE v. FRANKO

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CONCLUSION

¶13 We affirm Franko’s conviction and sentence.