State v. Ronk

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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©; ARCAP 28©; Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JAMIE NICOLE RONK, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 11-23-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 10-0363 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause Nos. CR 2009-160842-001 DT The Honorable Edward O. Burke, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce F. Peterson, Maricopa County Legal Advocate, By Frances J. Gray, Deputy Legal Advocate Attorney for Appellant Phoenix Jamie Nicole Ronk, Appellant Goodyear D O W N I E, Judge ¶1 Jamie convictions for Nicole Ronk possession of ( defendant ) a dangerous appeals drug for her sale, misconduct involving paraphernalia. weapons, and possession of drug Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has advised that she has thoroughly searched the record and found no arguable question of law and requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant filed a supplemental brief in propria persona. On appeal, we view the evidence in the light most favorable to sustaining the convictions. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). FACTS AND PROCEDURAL HISTORY ¶2 Police officers received an anonymous complaint suspected drug activity at a home defendant owned. surveillance traffic. of the Officers house stopped and a observed bicyclist foot of They began and away riding vehicular from the house; he had a small baggie with methamphetamine in his hand. When officers returned the bicycle to the house, defendant answered the door, gave the officers Arizona identification, and took the bicycle. leaving the A vehicle was stopped and searched after residence, and officers found a plastic bag containing methamphetamine under the driver s floor mat. ¶3 defendant When officers served a search warrant at the house, answered the door. Two 2 female adults, three male adults, and a child were present. Officers searched Stephanie W. of and found a small approximately $15-20. baggie methamphetamine worth In the bedroom, officers saw a mirror with names and small amounts of money written on it, including an entry for Steph, $20, that officers believed to be a ledger used to record amounts owed by customers to whom drugs had been fronted. In the top drawer of the bedroom dresser, officers found a black pouch with 2.7 grams of methamphetamine, and a box containing methamphetamine, a a scale, baggie and two of 320 little milligrams spoons. When of an officer told defendant they found her box, she replied that it was for personal use. Defendant s identification card was found on top of the bedroom dresser, and a .22 caliber handgun was found in the second drawer with 61 rounds of ammunition. Another .22 caliber handgun was found on a shelf in the bedroom loaded with plastic projectiles. Meth pipes and another baggie of methamphetamine were found in an outside laundry room. ¶4 Defendant was charged with possession of dangerous drugs for sale, a class 2 felony, misconduct involving weapons, a class 4 felony, and possession of drug paraphernalia, a class 6 felony. A jury trial ensued. At the conclusion of the State s case, the court denied defendant s motion for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Procedure ( Rule ), on the possession for sale charge. 3 Criminal ¶5 The jury convicted defendant of all three counts. The court denied her motion for new trial and sentenced her to 5 years on count 1, 1.5 years on count 2, and 6 months on count 3, all mitigated sentences to run concurrently. Defendant received 40 days presentence incarceration credit. DISCUSSION ¶6 We have read and considered the brief submitted by defense counsel and have reviewed the entire record. Ariz. at 300, 451 P.2d at 881. Leon, 104 We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Defendant was present at all critical phases of the proceedings and represented by counsel. The jury was properly impaneled and instructed. The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process. ¶7 In her supplemental brief, defendant does not clearly articulate any legal legal authority. Briefs must issues for our review or cite relevant Merely mentioning an argument is insufficient. present significant arguments, supported by authority, setting forth the appellant s position on the issues raised. The failure to so argue a claim usually constitutes abandonment and a waiver of that claim. 4 State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004). However, in our discretion we address the following issues. A. Insufficiency of Evidence ¶8 Defendant argues there was insufficient evidence to support her conviction for possession of a dangerous drug for sale. occurs Reversible only if error there is based a on insufficiency complete absence evidence to support the conviction. of of evidence substantial State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996). Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (citation omitted). ¶9 Pursuant to A.R.S. § 13-3407 (2010), the State was required to prove that defendant knowingly possessed a dangerous drug and that possession was for purposes of sale. The State presented substantial evidence regarding these elements. When officers arrived with the search warrant, defendant opened the door. She admitted at trial that she owned the house and was living there. dresser where officers Defendant s the opined drugs, that identification the scale, and amount was spoons of consistent with a street-level dealer. drugs found were on the found, and recovered was The officers observed traffic coming and leaving the house in a manner consistent with 5 drug trafficking, and both people stopped leaving the house were found with methamphetamine. ¶10 Defendant contends that because circumstantial, it was insufficient. the evidence was However, [t]he probative value of evidence is not reduced because it is circumstantial. State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995). The lack of direct evidence of guilt does not preclude a conviction which may rest solely upon proof of a circumstantial nature. Tison, 129 Ariz. at 554-55, 633 P.2d at 363-64. ¶11 Based on the evidence presented, the jury could have reasonably concluded that dangerous drug for sale. for that of the jury. defendant knowingly possessed a We will not substitute our judgment State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004). B. Weighing Evidence ¶12 Defendant argues that the mirror was not used as a drug ledger, that she never said the box containing the scale, drugs, and spoons was for her personal use, and that people were coming to the house because she had advertised items for sale. Defendant availed herself of the opportunity to testify and present her version of the facts to the jury. The jury was free to accept or reject defendant s version of events. No rule the is witnesses better and established the weight than and that value 6 the to credibility be given to of their testimony are questions exclusively for the jury. State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974); see also State v. Lehr, 201 Ariz. 509, 517, ¶ 24, 38 P.3d 1172, 1180 (2002). A reasonable jury could have found the State s evidence to be more credible. C. Ineffective Assistance of Counsel ¶13 Defendant also mentions that she advised her attorney that she did not want to testify but that her attorney did not give her an option. Ineffective assistance of counsel claims are properly raised in Rule 32 proceedings. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). improvidently raised in a direct appeal . Any such claims . . will addressed by appellate courts regardless of merit. not Id. be We therefore do not address what amounts to defendant s ineffective assistance of counsel claim. D. Other Occupants ¶14 filed Defendant also asserts error because no charges were against construing this other claim occupants as record does not support it. prosecution, an accused one of for the house. selective Liberally prosecution, the To prevail on a claim of selective must show: (1) other similarly situated people were not charged with the crime he is accused of; and (2) the decision to charge him with that crime was made based on an impermissible ground, such as race or religion. 7 State v. Montano, 204 Ariz. 413, 428, ¶ 78, 65 P.3d 61, 76 (2003). No such evidence exists in this record. CONCLUSION ¶15 We affirm defendant s convictions and sentences. Counsel s obligations pertaining to defendant s representation in this appeal have ended. Counsel need do nothing more than inform defendant of the status of the appeal and her future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, defendant shall have thirty days from the date of this decision to proceed, if she so desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 8

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