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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GABRIEL GUTIERREZ CRUZ, Appellant.

No. 1 CA-CR 17-0060

Appeal from the Superior Court in Maricopa County

No. CR2015-102497-001

The Honorable Gregory Como, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael Valenzuela

Counsel for Appellee

Ballecer & Segal, LLP, Phoenix

By Natalee E. Segal

Counsel for Appellant

FILED 2-15-2018
STATE v. CRUZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

C A T T A N I, Judge:

Gabriel Gutierrez Cruz appeals his conviction and sentence 

for misconduct involving weapons. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

In January 2015, police were monitoring a hotel in Phoenix 

when a detective saw a man later identified as Fernando Sepulveda place a 

duffle bag in the trunk of a white car, and then leave in a different car. 

About 10 minutes later, Cruz and a woman walked up to the white car, 

placed multiple bags in the trunk, then got in the car, with Cruz sitting in 

the driver’s seat. Police approached the car and arrested Cruz, who had 

been linked to a December 2014 armed robbery.

After obtaining a warrant to search the car, officers saw a .40 

caliber handgun in plain view on the passenger side of the backseat. In the 

trunk, they found an empty holster for the same model handgun and a 

magazine for a different model handgun, both in plain view. Cruz told 

police that the car belonged to Sepulveda, but he also admitted that he had 

been driving the car the whole day before being arrested. Cruz was a 

prohibited possessor at the time of the arrest.

The State charged Cruz with nine counts, eight stemming 

from the December 2014 armed robbery, and one for misconduct involving 

weapons stemming from the January 2015 arrest. Following a jury trial, he

was convicted of the misconduct involving weapons charge, but was 

acquitted of all other charges. The superior court sentenced Cruz to 8.5 

years in prison, and he timely appealed his conviction and sentence. We 

have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-4033.
STATE v. CRUZ

Decision of the Court

3

DISCUSSION

I. Improper Testimony.

Cruz first contends that he is entitled to a new trial because 

the superior court failed to sua sponte strike—and/or instruct the jurors to 

ignore—testimony relating to a holster he was allegedly wearing when he 

was arrested. This claim fails because, although two holsters were admitted 

in evidence, one was withdrawn, and during closing argument, the 

prosecutor made clear that the misconduct involving weapons charge was 

based on the gun in the backseat and the holster in the trunk of the car Cruz 

admitted he had been driving. Cruz did not request that the limited 

testimony at issue be stricken, and he has not established fundamental, 

reversible error.

Shortly after Cruz’s arrest, a detective prepared a report 

noting that Cruz was found with an empty holster on his hip and a single 

.40 caliber bullet in his pocket, but the report did not name the officer who 

found those items on Cruz. During his opening statement, the prosecutor

told the jury that Cruz had a holster on his hip and a .40 caliber bullet in his 

pocket when he was arrested. The State’s forensic expert, Heather Balsley, 

subsequently testified that she tested two holsters and determined that one 

of them contained a trace amount of blood. Ms. Balsley referred to each 

holster only by its seven-digit item number, and did not testify where either 

holster was found. The court admitted both holsters into evidence without 

objection.

Before presenting any further testimony relating to the 

holsters, the prosecutor notified the court that the State could not establish 

the necessary foundation for admitting in evidence the holster Cruz had 

been wearing and the bullet found in his pocket. When the court asked the 

parties how to proceed, Cruz’s counsel did not request that Ms. Balsley’s 

testimony be stricken, and instead simply pointed out that Ms. Balsley had 

not testified where either holster was found. Several days later, without 

objection or argument from the parties, the court withdrew one of the 

holsters from evidence and instructed the State not to mention it again. The 

court did not address whether to strike Ms. Balsley’s testimony, which at 

that point was the only evidence of a holster other than the one officers 

found in the trunk of the car.

Because Cruz did not ask the court to strike Ms. Balsley’s 

testimony or to instruct the jury to disregard any evidence of a second 

holster, he is not entitled to relief unless he demonstrates fundamental 
STATE v. CRUZ

Decision of the Court

4

error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). “Fundamental 

error is error going to the foundation of the case, error that takes from the 

defendant a right essential to his defense, and error of such magnitude that 

the defendant could not possibly have received a fair trial.” State v. Bible, 

175 Ariz. 549, 572 (1993) (quotation omitted); see State v. Gendron, 168 Ariz. 

153, 155 (1991) (“To qualify as ‘fundamental error,’ . . . the error must be 

clear, egregious, and curable only via a new trial.”). To prevail under

fundamental error review, the appellant must prove that (1) an error exists, 

(2) the error was fundamental, and (3) the error resulted in prejudice. 

Henderson, 210 Ariz. at 567, ¶ 20.

Here, any arguable error was not fundamental. The court 

correctly withdrew the second holster from evidence after the prosecutor 

indicated the State did not have a witness who could establish that Cruz 

was wearing the holster when he was arrested. The other holster, which 

was found in the trunk and was designed for the same make and model as 

the gun found in the car, correctly remained in evidence. The jury heard 

only twice about the existence of two holsters—first, during the State’s 

opening statement that police found one holster on Cruz’s hip and another 

in the car’s trunk, and again during Ms. Balsley’s testimony describing 

testing done on the two holsters.

The prosecutor’s reference to the second holster did not result 

in fundamental error primarily because a party’s opening statement is not 

evidence. State v. Bowie, 119 Ariz. 336, 339–40 (1978). The jurors were

instructed to that effect, and we thus presume they did not rely on the 

prosecutor’s statement that Cruz was found wearing a holster. See State v. 

LeBlanc, 186 Ariz. 437, 439 (1996). Although the jurors may have been 

anticipating testimony and other evidence about two holsters, the only 

testimony Ms. Balsley offered was that one holster—identified by its sevendigit item number—contained traces of blood, and that another holster—

again identified by a seven-digit item number—did not contain blood. Ms. 

Balsley did not testify where either holster was found, and following her 

testimony, the only holster mentioned to the jury was the one found in the 

trunk.

Further, the court gave both parties several days to suggest 

how to undo the effects of the wrongfully admitted holster, after which 

neither party offered any remedial measures beyond withdrawing the 

holster from evidence and agreeing not to mention it again. As noted, the 

State did not reference the second holster during closing or rebuttal 

argument, and in fact specifically referenced only the holster found in the 

trunk, noting that “you have the defendant two weeks later found in the car 
STATE v. CRUZ

Decision of the Court

5

with the .40-caliber handgun, with a holster in the trunk that matched the 

handgun,” and “[t]aking into account what’s in the trunk and what wasn’t 

put there by Mr. Sepulveda was the holster that went with that gun.” Thus, 

the theory underlying the weapons charge was properly argued as relating 

to the gun and the properly admitted holster, and Cruz has not established 

fundamental error based on the superior court’s failure to sua sponte strike 

Ms. Balsley’s testimony or to instruct the jury to disregard evidence of a 

second holster. Moreover, defense counsel’s failure to request that the court 

strike the testimony or instruct the jury to disregard the evidence could well 

have been a strategic decision that doing so would simply have called the 

jury’s attention to the second holster. Given these considerations, the court 

did not err by not striking the testimony or further instructing the jury 

absent a request by counsel to do so.

Finally, even assuming error, any confusion regarding the 

two holsters was of marginal significance, and given the prosecutor’s 

emphasis in closing argument on the holster found in the trunk, Cruz has 

not shown prejudice warranting reversal of his conviction.

II. Sufficiency of the Evidence.

Cruz also contends that there was insufficient evidence to 

support the jury’s finding that he knowingly possessed the gun found on 

the backseat of the car. We review a claim of insufficient evidence de novo. 

State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We will uphold the conviction 

if substantial evidence—that which is sufficient to support a reasonable 

juror’s finding of guilt beyond a reasonable doubt—supports it. State v. 

Scott, 177 Ariz. 131, 138 (1993).

The State may prove misconduct involving weapons by 

showing that the defendant knowingly possessed a deadly weapon, and 

that he was a prohibited possessor at the time of the charged possession. 

A.R.S. § 13-3102(A)(4). Because Cruz stipulated that he was a prohibited 

possessor, the only issue before the jury was whether he knowingly 

possessed the gun.

“Possession may be actual or constructive.” State v. Gonsalves, 

231 Ariz. 521, 523, ¶ 9 (App. 2013). While actual possession requires a 

defendant to have direct physical control over an object, the defendant can 

have constructive possession if he exercises dominion or control over it, 

even if it is not in his actual physical possession. State v. Cox, 214 Ariz. 518, 

520, ¶¶ 9–10 (App. 2007) (defining dominion as “absolute ownership,” and 

control as “to have power over”). Although constructive possession may 
STATE v. CRUZ

Decision of the Court

6

be proven by circumstantial evidence, the State must show more than the 

defendant’s mere presence where the prohibited item was found. 

Gonsalves, 231 Ariz. at 523, ¶ 10.

Here, police officers approached Cruz after he got in the 

driver’s seat of the car and closed the door. The black and silver handgun 

was in plain view on the cream-colored backseat. Because it was placed on 

the passenger side of the backseat, the gun was not only clearly visible to 

Cruz as he entered and sat down in the car, but also was easily accessible 

to him. Additionally, Cruz had been driving the car for a full day, and he 

had used the car’s trunk, where officers found a matching holster and a 

handgun’s magazine in plain view. Thus, there was substantial evidence

from which the jury could infer that Cruz knowingly possessed the 

weapon.

Although Cruz did not own the car and there was evidence 

that the car’s owner, Sepulveda, accessed the trunk shortly before Cruz was 

arrested, there was no evidence that Sepulveda entered the passenger 

compartment or placed the gun in the backseat without Cruz’s knowledge.

And even if the gun belonged to Sepulveda, Cruz could nevertheless 

constructively possess it by keeping it in the car while he was in control of 

the car. See State v. Teagle, 217 Ariz. 17, 27, ¶ 41 (App. 2007); see also 

Gonsalves, 231 Ariz. at 523, ¶ 9 (two people may have simultaneous

constructive possession of the same prohibited object). Accordingly, 

reasonable jurors could have concluded that Cruz knew of, and had control 

over, the handgun in plain view on the backseat of the car he had been 

driving for the past day.

CONCLUSION

We therefore affirm Cruz’s conviction and sentence.