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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BERIZA C. PADILLA, Appellant.

No. 1 CA-CR 22-0069 

Appeal from the Superior Court in Yuma County

No. S1400CR202000812

The Honorable Roger A. Nelson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Rebecca Jones

Counsel for Appellee

Yuma County Public Defender’s Office, Yuma

By Robert J. Trebilcock

Counsel for Appellant

FILED 9-27-2022
STATE v. PADILLA

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in 

which Judge James B. Morse Jr. and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Beriza C. Padilla appeals her convictions and sentences for 

possession of a dangerous drug for sale, possession of a narcotic drug for 

sale, possession of drug paraphernalia involving methamphetamine, and 

misconduct involving weapons. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the 

verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). At approximately

12:30 a.m., police officers responded to an emergency call regarding a 

possible sexual assault near a black vehicle at a motel. Officer Carey arrived 

at the scene and found a man and woman standing near the open passenger 

door of a dark-colored BMW. When the subjects saw Carey approaching 

them on foot, one of them closed the BMW’s door, and they began walking 

toward the motel. Recognizing the male subject as a known convicted felon,

Carey told the couple to “hold up.” The male stopped, but the female—later 

identified as Padilla—“picked up her speed” and continued to the motel. 

Meanwhile, Officer Robinson peered into the BMW and noticed a handgun 

on the rear passenger side floor. 

¶3 Officers then spoke with Padilla, and she denied any 

knowledge of a possible sexual assault. Padilla explained that she was 

unemployed and bought the BMW a few days before. Padilla also told the 

officers that she and the male used the vehicle to go from “hotel to hotel” 

where they lived, and he was the primary driver. Indeed, Padilla explained 

that “she was the passenger when they arrived that evening[.]” 

¶4 Apparently based on the gun observed in the BMW and the 

male’s status as a prohibited possessor, police officers obtained a warrant, 

and searched the BMW. See A.R.S. §§ 13-3101(A)(7)(b), -3102(A)(4). In

addition to the loaded handgun, they found a covered plastic cup in the 

front center console containing 426 fentanyl pills. Next to the cup, officers 

found two bullets in a small bag. Under the front passenger seat, officers 
STATE v. PADILLA

Decision of the Court

3

located over 7.5 grams of methamphetamine in a tissue box. A small digital 

scale and several small plastic baggies “consistent with the sale of drugs” 

were also found in the vehicle. Police did not find any items commonly 

associated with drug use. 

¶5 Alleging both direct and accomplice liability, the State 

charged Padilla with possession of a dangerous drug for sale

(methamphetamine), a class two felony; possession of a narcotic drug for 

sale (fentanyl), a class two felony; possession of drug paraphernalia 

involving methamphetamine, a class six felony; and two counts of 

misconduct involving weapons (MIW), class four felonies. One of the MIW 

counts referred to the handgun found in the BMW and alleged Padilla used 

or possessed it “during the commission of any felony [drug] offense[.]” The 

other MIW count charged Padilla as a prohibited possessor, and was 

ultimately dismissed after being severed from the remaining charges before 

trial. Regarding the narcotic drug charge, the State alleged Padilla 

possessed $1,000 or more of fentanyl. See A.R.S. § 13-3401(36)(j). 

¶6 After a two-day trial, the jury rejected Padilla’s mere presence 

defense and found her guilty of the four offenses. The trial court imposed 

concurrent prison sentences, the longest being seven years for possession 

of a dangerous drug for sale. Padilla timely appealed, and we have 

jurisdiction. See Ariz. Const. art. 6, § 9; A.R.S. §§ 13-4031, -4033(A)(1).

DISCUSSION

I. Sufficiency of Evidence

¶7 Padilla challenges the sufficiency of evidence supporting her 

convictions, arguing the State failed to prove she possessed the drugs, 

paraphernalia, and handgun located in the BMW. Specifically, Padilla 

asserts the State presented no direct evidence showing she exercised 

dominion or control over the contraband or that she had exclusive 

ownership of the BMW. Padilla claims instead that the evidence only shows

she was near the vehicle, and her mere presence was insufficient to establish 

her guilt. 

¶8 We review claims of insufficient evidence de novo, State v. 

Bible, 175 Ariz. 549, 595 (1993), and our review is limited to determining 

whether substantial evidence exists to support the verdict. State v. Scott, 177 

Ariz. 131, 138 (1993); see Ariz. R. Crim. P. 20(a) (directing courts to enter 

judgment of acquittal “if there is no substantial evidence to warrant a 

conviction”). Substantial evidence is such proof that “reasonable persons 

could accept as adequate and sufficient to support a conclusion of 
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defendant’s guilt beyond a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 

67 (1990) (quoting State v. Jones, 125 Ariz. 417, 419 (1980)). In evaluating the 

sufficiency of the evidence, we test the evidence “against the statutorily 

required elements of the offense,” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App. 

2005), and “do not reweigh the evidence to decide if we would reach the 

same conclusions as the trier of fact.” State v. Borquez, 232 Ariz. 484, 487, ¶ 

9 (App. 2013) (internal quotation marks and citation omitted).

¶9 To convict, the State had to prove beyond a reasonable doubt 

that Padilla possessed the drugs, handgun, and paraphernalia (scale and 

baggies) that police officers seized from the BMW. See A.R.S. §§ 13-

3102(A)(8); 3407(A)(2); -3408(A)(2); -3415(A). “Possession may be actual or 

constructive.” State v. Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013). 

“Constructive possession” is the exercise of dominion or control over an 

object in the absence of actual physical possession. State v. Cox, 214 Ariz. 

518, 520, ¶ 10 (App. 2007). Constructive possession exists when the object 

“is found in a place under [the defendant’s] dominion [or] control and 

under circumstances from which it can be reasonably inferred that the 

defendant had actual knowledge of the existence of the [property].” Id. 

(quoting State v. Villavicencio, 108 Ariz. 518, 520 (1972)). Circumstantial 

evidence alone may establish constructive possession. State v. Teagle, 217 

Ariz. 17, 27, ¶ 40 (App. 2007); Cox, 214 Ariz. at 520, ¶ 10. And “it is not 

necessary to show that a defendant exercised exclusive possession or 

control over the substance itself or the place in which the illegal substance 

was found; control or right to control is sufficient.” State v. Curtis, 114 Ariz. 

527, 528 (App. 1977). 

¶10 Here, the jury could reasonably conclude from the 

circumstantial evidence that Padilla knowingly possessed the drugs, 

handgun, and paraphernalia found in the BMW. As the vehicle’s owner, 

Padilla generally had dominion and control over the BMW and its contents. 

See State v. Murphy, 117 Ariz. 57, 61 (1977) (“[I]f contraband is found in an 

arrestee’s home in an unsecluded or obvious place it is sufficient to sustain 

a verdict for possession.”). She was a passenger in the BMW on the way to

the motel, and she was standing next to the BMW’s open passenger door

when officers arrived. The fentanyl was in the center console, an area 

commonly used by a front-seat passenger, and the methamphetamine and 

handgun were under and directly behind the passenger seat. See State v. 

Petrak, 198 Ariz. 260, 266, ¶ 19 (App. 2000) (requiring the state to establish 

the defendant “could have used the weapon to further the felony drug 

offense” such as by “the spatial proximity and accessibility of the weapon 

to the defendant and to the site of the drug offense.”).
STATE v. PADILLA

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¶11 The evidence showed that Padilla continued walking away 

from Officer Carey after he commanded her to “hold up.” The jury 

therefore could reasonably infer Padilla’s consciousness of guilt. See State v.

Cota, 229 Ariz. 136, 142, ¶ 11 (2012) (“Evidence of flight is admissible to 

show consciousness of guilt when the defendant flees in a manner which 

obviously invites suspicion or announces guilt.”) (citation omitted). 

¶12 Because officers did not find evidence consistent with drug 

use in the BMW, the jury could reasonably infer that the fentanyl and 

methamphetamine were not for personal use. The jury was entitled to infer 

from these circumstances, including Padilla’s unemployment, that the 

couple sold the drugs to support themselves. Based on the foregoing, the 

jury could reasonably surmise that Padilla knew the drugs, paraphernalia, 

and gun were in the BMW. Substantial evidence therefore supported

Padilla’s convictions under either theory of direct or accomplice liability. 

¶13 Padilla also argues that a notebook found in the BMW alone 

was insufficient to establish her possession of the drugs. But we need not 

evaluate the evidentiary value of the notebook because, as explained,

evidence other than the notebook established Padilla’s unlawful 

possession. Because substantial evidence supported Padilla’s convictions, 

we need not separately address her argument that the trial court erred by 

denying her motion for a judgment of acquittal under Arizona Rule of 

Criminal Procedure 20. See Ariz. R. Crim. P. 20(a)(1) (providing that a

judgment of acquittal is only appropriate if there is “no substantial evidence 

to support a conviction”). 

II. Misconduct Involving Weapons

¶14 Padilla asserts that the statute prohibiting the use of a deadly 

weapon while committing a felony drug offense is unconstitutionally 

vague. See State v. Western, 168 Ariz. 169, 171 (1991) (“The due process 

clause of the fourteenth amendment does not permit the state to deprive a 

person of liberty for violating a statute whose terms are so vague, indefinite 

and uncertain that their meaning cannot be reasonably ascertained.”)

(citation omitted).

¶15 We review de novo whether a statute passes constitutional 

muster. State v. McMahon, 201 Ariz. 548, 550, ¶ 5 (App. 2002). A statute is 

presumptively constitutional, and the party challenging its validity bears

the “heavy” burden of demonstrating otherwise. Id. “A statute is 

unconstitutionally vague if it fails to provide ‘person[s] of ordinary 

intelligence a reasonable opportunity to know what is prohibited’ and fails 
STATE v. PADILLA

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to contain explicit standards of application to prevent arbitrary and 

discriminatory enforcement.” State v. Poshka, 210 Ariz. 218, 220, ¶ 5 (App. 

2005) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972)); State 

v. Brown, 207 Ariz. 231, 237, ¶ 16 (App. 2004). A statute need not be drafted 

with absolute precision to satisfy due process. State v. Lefevre, 193 Ariz. 385, 

390, ¶ 18 (App. 1998).

¶16 A person commits MIW by “knowingly . . . [u]sing or 

possessing a deadly weapon during the commission of any felony [drug] 

offense[.]” A.R.S. § 13-3102(A)(8). In State v. Petrak, this court addressed a 

vagueness challenge to § 13-3102(A)(8) and construed the statute’s plain 

language as requiring proof “that the defendant intended to use or could 

have used the weapon to further the felony drug offense underlying the weapons 

misconduct charge.” 198 Ariz. at 264, 266, ¶¶ 13, 19 (emphasis added). We 

reversed Petrak’s MIW conviction under § 13-3102(A)(8) because the trial 

court’s jury instructions failed to inform the jurors of this required nexus 

between the weapon and the underlying charge of possession of marijuana 

for sale. Id. at 266, 268, ¶¶ 20, 30.

¶17 Here, the superior court instructed the jury as follows:

The crime of misconduct involving weapons during the 

commission of a felony offense requires proof that the 

defendant committed the offense of possession of the 

dangerous drug for sale, [or] possession of a narcotic drug for 

sale . . . and[,] during the commission of such offense[,] 

knowingly possessed a deadly weapon that the defendant 

used, intended to use, or could have used to further the offense. 

(Emphasis added.) See Revised Arizona Jury Instructions (“RAJI”) Standard 

Criminal 31.028 (5th ed. 2019).

¶18 Padilla’s vagueness claim focuses on the phrase “could have 

used” in the jury instruction. She argues: “[B]y including the possibility of 

. . . [a] conviction for a weapon that ‘could’ have been used still left the 

statute unconstitutionally vague. . . . Whatever events that transpire in the 

future that ‘could’ cause the person to use or intend to use the deadly 

weapon are speculative.” But Padilla’s argument ignores the phrase “to 

further the offense,” which—according to Petrak’s reasoning—properly 

limited the weapon’s illegal use to that which facilitated the underlying 

drug offenses at the time Padilla was possessing the drugs for sale. We find 

that § 13-3102(A)(8) is not unconstitutionally vague.
STATE v. PADILLA

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¶19 Alternatively, Padilla contends § 13-3102(A)(8) “allows a 

conviction with no guilty state of mind by the accused,” and therefore it

“violates established Arizona statutes assessing criminal liability.” This 

argument fails. The statute expressly prohibits a person from knowingly

using or possessing a deadly weapon while committing a felony drug 

offense. 

CONCLUSION

¶20 We affirm Padilla’s convictions and sentences.