Background
In March 2020, a narcotics task force executed a search warrant at Christopher Ramirez’s residence in Yuma County shortly after midnight. As officers entered the backyard, they encountered a second individual attempting to leave who had a glass pipe in his pocket. When officers located Ramirez standing in his doorway, a deputy sheriff observed him holding something in a clenched fist, and a sergeant saw him holding what appeared to be a shopping bag. When instructed to step outside, Ramirez initially complied but then reversed course; officers physically pulled him out of the room.
During the ensuing struggle, officers observed Ramirez lunging toward a backyard cesspool filled with human waste. Ramirez wrapped his arms around a pole and submerged both clenched hands into the cesspool. After handcuffing him, officers discovered a plastic bindle containing methamphetamine directly beside the cesspool and a ziplock bag containing a white crystalline substance inside the cesspool. A glass pipe and a straw, both testing positive for methamphetamine, were also recovered from Ramirez’s room. Ramirez’s sister testified at trial that she had seen the other individual — not Ramirez — throw something into the cesspool.
Before trial, Ramirez had submitted a proposed mere-presence jury instruction. During the final jury instruction conference, however, he withdrew his objection to removing that instruction, stating that “based on where some of the evidence was found at the crime scene” he was “not objecting to removing” it. The jury convicted Ramirez of possessing a dangerous drug and possessing drug paraphernalia, but acquitted him of tampering with physical evidence. The Yuma County Superior Court sentenced him to six years on the possession count and 2.25 years on the paraphernalia count, to run concurrently.
The Court’s Holding
The Court of Appeals affirmed on both issues raised. On the mere-presence instruction, the court held that Ramirez had invited any error by affirmatively agreeing at trial to remove the instruction, reasoning that his trial-court statement — that the evidence did not support giving it — was inconsistent with his appellate argument that the court wrongly denied him the instruction. Under the invited-error doctrine, a defendant who injects error into the record cannot obtain appellate relief even if the error is fundamental and prejudicial. The court therefore declined to reach whether fundamental error occurred.
Alternatively, the court held that even absent invited error, Ramirez could not establish prejudicial fundamental error because the court’s third-party culpability instruction and voluntary-act instruction adequately covered the substance of a mere-presence defense. The third-party culpability instruction told the jury to acquit if it had reasonable doubt whether Ramirez — rather than another person — committed the crimes, and the voluntary-act instruction required the State to prove Ramirez consciously performed the charged conduct. Together, those instructions ensured the jury could not convict on proximity alone.
On sufficiency of the evidence, the court held that the record contained substantial evidence of actual or constructive possession. Officer testimony that Ramirez held an object in his clenched hands, lunged toward the cesspool, and submerged both hands into it — followed by the immediate discovery of methamphetamine-containing bags at the cesspool — permitted the jury to infer that Ramirez possessed and discarded the drugs during the altercation. The jury was entitled to credit the officers’ account over Ramirez’s sister’s testimony identifying the other individual as the person who threw something into the cesspool.
Key Takeaways
- A defendant who expressly agrees at trial to remove a proposed jury instruction invites any error arising from its omission and forfeits appellate review, even under the fundamental-error standard.
- A mere-presence instruction may be omitted without reversible error when other instructions — such as third-party culpability and voluntary-act instructions — adequately protect the defendant’s ability to argue he did not commit the charged conduct.
- Drug possession may be established by circumstantial evidence; a jury may infer that a defendant possessed and discarded contraband based on pre-arrest conduct, physical struggle with officers, and the immediate proximity of drugs discovered after the struggle.
- Credibility determinations, including weighing defense-witness testimony against law enforcement accounts, are exclusively within the jury’s province and will not be disturbed on sufficiency review.
Why It Matters
This decision reinforces the breadth of Arizona’s invited-error doctrine in the jury-instruction context. Defense counsel who make tactical concessions at trial — even arguably reasonable ones — risk permanently closing the door to appellate review of the conceded issue, including under the otherwise protective fundamental-error standard. The case is a practical reminder that proposed instructions should not be withdrawn or affirmatively abandoned without careful consideration of the appellate consequences.
The sufficiency holding also illustrates how courts assess constructive and actual possession where drugs are found near, rather than on, a defendant. The combination of officer observations of pre-disposal conduct and the spatial relationship between the defendant and the recovered contraband was enough to carry the State’s burden, notwithstanding the absence of direct evidence of a throw or drop and the presence of a competing defense witness account.