State v. Neal

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. FLEMON ERIK NEAL, Appellant. 1 CA-CR 08-1063 DIVISION ONE FILED: 04-22-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-169278-001 DT The Honorable Michael W. Kemp, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Adriana M. Rosenblum, Assistant Attorney General Attorneys for Appellee James Haas, Public Defender By Karen M. Noble, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 conviction Flemon and Erik Neal sentence for (defendant) one count appeals of from possession his of marijuana, a class six felony. For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 We view the facts verdict in light resolve all most favorable inferences to sustaining the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). and the against The facts relevant to the issue raised on appeal are as follows. ¶3 On October 19, 2007, I.H. called the police and reported that she had been robbed in her home by two armed men. After a few days of investigation, the detectives assigned to the case focused on defendant as a suspect. ¶4 On warrant on October 24, defendant s 2007, home. the police While executed searching a search defendant s bedroom closet for evidence related to the robbery, Detective D.J. found a baggie inside a pair of men s boots that contained a substance he identified as marijuana. After placing defendant under arrest and advising him of the Miranda1 warnings, Detective D.J. interviewed defendant. During their discussion, defendant admitted that he owned the boots, but he denied any knowledge of the marijuana. whom he shared Defendant also stated that his girlfriend, with the residence, could not marijuana in his boot. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 have placed the ¶5 The State charged defendant with one count of armed robbery, a class two felony; one count of kidnapping, a class two felony; and one count of possession of marijuana, a class six felony. The State also alleged that defendant had two historical prior felony convictions. ¶6 After the State s presentation of evidence, defense counsel requested a directed verdict on the marijuana count, which the trial court denied. possession of The jury found defendant not guilty of armed robbery and kidnapping and guilty of marijuana possession. a mitigated The trial court sentenced defendant to two-and-one-half years term of imprisonment. Defendant appealed, and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). DISCUSSION ¶7 Defendant contends that the State insufficient evidence to support his conviction. defendant argues that Detective substance seized from his home D.J. s was presented Specifically, testimony the without any evidence marijuana, that by scientific corroboration, was insufficient. ¶8 We determining finding, review whether viewing the sufficiency substantial the facts in 3 of evidence the light the supports most the jury s favorable to sustaining the jury verdict. 382, ¶ 24, omitted). 224 P.3d 192, Substantial State v. Kuhs, 223 Ariz. 376, 198 (2010) evidence is (internal proof quotation that reasonable persons could accept as adequate . . . to support a conclusion of defendant s guilt beyond a reasonable doubt. quotation omitted). insufficient We evidence only set aside when it a is Id. (internal jury clear verdict that for upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). To obtain a conviction in this to case, knowingly the State possessed was required marijuana. See prove A.R.S. that § defendant 13-3405(A)(1) (2010). ¶9 At trial, received training Detective on including marijuana. D.J. identifying testified certain that illegal he has substances, He also stated that he has worked numerous cases involving marijuana, both as a patrol officer and as a detective. He further testified that, based on his training and experience, he has specialized knowledge as to the appearance and odor of marijuana. He identified the substance seized from defendant s boot as marijuana, but acknowledged that he did not conduct a field test to provide scientific corroboration. baggie containing a green leafy substance seized defendant s boot was admitted into evidence at trial. 4 The from ¶10 Defendant contends that his conviction should be overturned because it is based on the fallible senses of a police officer. ¶11 of This claim is without merit. A witness may be qualified as an expert on the basis knowledge education. or experience, as well as by we or State v. Saez, 173 Ariz. 624, 629, 845 P.2d 1119, 1124 (App. 1992) (citing Ariz. R. Evid. 702). State, training have repeatedly held that an As noted by the individual who has considerable familiarity with a drug may be qualified to render expert opinion appearance. (holding a identifying See drug the Saez, 173 Ariz. abuser who had substance at used 630, a based 845 drug upon its at 1126 P.2d repeatedly was qualified to identify it based upon its appearance, packaging, and price); see also State v. Ampey, 125 Ariz. 281, 282, 609 P.2d 96, 97 (App. 1980) (holding officer s identification of a substance as marijuana based on its odor, in addition to the defendant s admissions, was sufficient to show that the substance was marijuana). ¶12 both Here, the State established that Detective D.J. had training in marijuana identification and considerable exposure to marijuana through his work, establishing sufficient familiarity with the drug to identify it based on its appearance and odor. D.J. s Thus, we conclude that the State, through Detective testimony and the admission 5 of the substance itself, presented sufficient evidence from which the jury could reasonably conclude that the substance seized from defendant s residence was indeed marijuana.2 CONCLUSION ¶13 Defendant s conviction and sentence are affirmed. /s/ PHILIP HALL, Judge CONCURRING: /s/ SHELDON H. WEISBERG, Presiding Judge /s/ JOHN C. GEMMILL, Judge 2 Defendant states in his opening brief that the boot in which the marijuana baggie was found was accessible to others. Because defendant provides no argument to support this claim, we do not address it. See ARCAP 13(a)(6) (requiring appellant to set forth issues, argument, and citations to authority in briefing). 6

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