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
STATE OF ARIZONA,
DAVID LEE LAMB,
RUTH A. WILLINGHAM,
No. 1 CA-CR 09-0622
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-006230-001 DT
The Honorable Roland Steinle, Judge
The Honorable Julie P. Newell, Judge Pro Tempore
CONDITIONALLY AFFIRMED; SENTENCES MODIFIED; REMANDED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals and Capital Litigation Section
And Suzanne M. Nicholls, Assistant Attorney General
Attorneys for Appellee
James J. Haas, Maricopa County Public Defender
By Eleanor S. Terpstra, Deputy Public Defender
Attorneys for Appellant
B R O W N, Judge
sentences for one count of possession of marijuana and one count
of possession of a narcotic drug.
Lamb argues the trial court
erred in denying his motion to suppress drug evidence seized by
the police following his detention and arrest.
He also argues
he was eligible for mandatory probation and he is due additional
presentence incarceration credit.
For the reasons set forth
below, we conditionally affirm the convictions and sentences, as
modified herein, subject to the court’s ruling on Lamb’s motion
to suppress after an evidentiary hearing.
In April 2009, Lamb was indicted for possession of a
intimidating another by a street gang member.
Lamb filed a
timely motion to suppress, asserting the police officers lacked
State filed a response to the motion, and shortly thereafter,
both parties filed written “offers of proof.”
Attached to the
State’s “offer of proof” was a video recording of Lamb’s arrest.
The day before trial, the trial court denied the motion without
an evidentiary hearing, finding that the police had probable
The State has conceded on appeal that the duties of
identification imposed by Arizona Revised Statutes (“A.R.S.”)
section 13-2412 (2010) were not triggered under the facts of
The State contends that, though the trial court’s
A jury found Lamb guilty on the two drug charges, but
not guilty on the intimidation charge.
He was sentenced to
narcotic drug charge and 2.25 years on the possession or use of
Lamb timely appealed.
Motion to Suppress
The Fourth Amendment prohibits unreasonable searches
State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027,
Officers may conduct a weapons frisk if there is a
reasonable fear for safety.
Terry v. Ohio, 392 U.S. 1, 27
Reasonable suspicion is a mixed question of law and
Rogers, 186 Ariz. at 510, 924 P.2d at 1029.
It is a
lower standard than probable cause, and arises from “specific,
from those facts.”
State v. Ramsey, 223 Ariz. 480, 484, ¶ 17,
investigatory stop absent reasonable suspicion is “fruit of the
poisonous tree” and must be suppressed.
State v. Richcreek, 187
rationale for denying the suppression motion was incorrect, we
should nevertheless affirm because the court was correct on
Ariz. 501, 506, 930 P.2d 1304, 1309 (1997).
the denial of a motion to suppress, we review only the “evidence
submitted at the suppression hearing.”
State v. Box, 205 Ariz.
492, 493, ¶ 2, 73 P.3d 623, 624 (App. 2003).
The problem we
face here, however, is that the trial court did not conduct a
suppression hearing and thus we have no evidence to review. 2
In his motion to suppress, Lamb specifically requested
however, is silent as to why there was no hearing conducted or
why each party submitted an offer of proof.
By minute entry,
stating that “[a]ll motions must comply with Rule 35.1 including
Failure to file a sufficient motion may result in the motion
being denied without evidentiary hearing[.]”
But the court gave
no indication that Lamb’s motion was deficient; instead, the
court determined the outcome based on the merits.
In any event, to the extent the court may have relied
on Rule 35.1 when it ruled on the motion without a hearing, an
Arguably the video recording could be considered evidence;
however, the events depicted in the recording are irrelevant to
the issue of reasonable suspicion to effectuate an investigative
stop. See infra ¶ 10.
35.1(a) 3 requirements of alleging a prima facie case and the
Rodriguez v. Arellano, 194 Ariz. 211, 213 n.1, ¶ 3, 979 P.2d
539, 541 n.1 (App. 1999) (accepting special action jurisdiction
to correct a misinterpretation of Rule 16.2).
As explained in
Rodriguez, “It suffices under [Rule 35.1] for a defendant to
Arizona Rule of Criminal Procedure 35.1(a) reads:
Unless otherwise specified in these rules,
all motions shall be typewritten, doublespaced on 8.5 x 11 inch paper and shall
contain a short, concise statement of the
precise nature of the relief requested,
shall be accompanied by a brief memorandum
therefor and indicating the precise legal
points, statutes, and authorities relied
upon, and shall be served to all other
Arizona Rule of Criminal Procedure 16.2(b) provides as
The prosecutor shall have the burden of
proving, by a preponderance of the evidence,
the lawfulness in all respects of the
prosecutor will use at trial. However,
whenever the defense is entitled under Rule
15 to discover the circumstances surrounding
the taking of any evidence by confession,
identification or search and seizure, or
defense counsel was present at the taking,
or the evidence was obtained pursuant to a
burden of proof shall arise only after the
defendant has come forward with evidence of
specific circumstances which establish a
prima facie case that the evidence taken
should be suppressed.
defendant to suppression; the obligation to prove a prima facie
case for suppression is imposed by Rule 16.2 and attaches at the
hearing, not the motion, stage.
Id. (emphasis added).
This distinction is particularly important where, as
here, there is no evidence in the record that the investigatory
warrant, either for Lamb or for anyone else for whom he might
have been mistaken.
In State v. Hyde, 186 Ariz. 252, 270, 921
[I]f the challenged evidence was obtained
under authority of a warrant, defendant
bears the burden of going forward with some
evidence was illegally obtained.
challenged evidence was obtained without a
court stated, “this means that a defendant who establishes that
satisfied the burden of going forward under the rule and has
triggered the State’s burden of proving the lawfulness of the
acquisition of the challenged evidence.”
at 215, ¶ 12, 979 P.2d at 543.
Stated differently, a search
Rodriguez, 194 Ariz.
adequate justification by the State.
Id. at 214, ¶ 10, 979 P.2d
carries the day.”); Ariz. R. Crim. P. 16.2(b).
There were five items presented to the trial court:
(1) the defense motion, which included booking photos of the
mistaken for; (2) the State’s response; (3) the defense “offer
of proof”; (4) the State’s “offer of proof”; and (5) the video
The video is irrelevant to the issue of whether the
original stop was valid because it begins too late, with Lamb
prostrate on the ground, and the officers standing over him.
See Ramsey, 223 Ariz. at 484, ¶ 16, 224 P.3d at 981 (reasoning
None of the other items before the court constitute
Offers of proof are to be used in cases where evidence
has been excluded, to show the character of the evidence and
State v. Towery, 186 Ariz. 168, 179, 920 P.2d 290, 301
(1996); Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 129, 700 P.2d
819, 827 (1985).
Until offers of proof are substantiated by
evidence, they are merely argument and should not be considered
for substantive merit by a jury, for example.
See Ariz. R.
Evid. 103(c) (“[P]roceedings shall be conducted . . . to prevent
inadmissible evidence from being suggested to the jury by any
means, such as making statements or offers of proof or asking
questions in the hearing of the jury.”).
In short, if it was
resolution based on a stipulated record, it was incumbent on
them (or the trial court) to make that clear.
An offer of proof
Moreover, the offers of proof in this case are not entirely
consistent factually as to the circumstances and reasons for the
Because there was no evidentiary hearing conducted and
no evidence offered to provide a basis for the trial court’s
ruling, the court abused its discretion.
See State v. Grounds,
128 Ariz. 14, 15, 623 P.2d 803, 804 (1981) (explaining that
counsel’s argument is not evidence, but that sworn affidavits,
evidence in support of a motion); see also Grant v. Ariz. Pub.
Serv. Co., 133 Ariz. 434, 455-56, 652 P.2d 507, 528-29 (1982)
(noting that an abuse of discretion occurs when a discretionary
conclusion is reached without consideration of the evidence).
determine the merits of Lamb’s motion to suppress.
See State v.
cause); State v. Tillmon, 222 Ariz. 452, 456-57, ¶¶ 16, 20, 216
ruling on remand); State v. Zamora, 220 Ariz. 63, 71, ¶ 21, 202
defendant’s statements should have been suppressed).
Lamb argues he was eligible for mandatory probation
under Arizona Revised Statutes section 13-901.01 (2010). 5
hearing on prior convictions, the court found that the State had
proven the following convictions under state law:
to commit possession of narcotic drugs for sale; (2) resisting
court found that the State had proven a federal conviction for
felon in possession of a firearm.
Because Lamb did not object at sentencing, we review
for fundamental error only.
State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005).
It is Lamb’s burden to
establish first that a fundamental error exists, and also that
the error caused him prejudice.
Id. at ¶ 20.
Absent material revisions, we cite to the current version
of the statute.
convictions of possession of a controlled substance.
State v. Ossana, Lamb argues that attempted possession does not
count as a strike for purposes of Proposition 200.
In Ossana, the defendant had two prior convictions for
attempted possession of narcotic drugs.
P.3d at 1260.
Id. at 461, ¶ 9, 18
The court held that the purpose of Proposition
200 would not be served by including prepatory offenses in the
amount of strikes to impose incarceration.
P.3d at 1261.
Id. at 462, ¶ 11, 18
The court stated, “We agree with appellant that,
for a defendant to be excluded from the mandatory probation of
[§] 13-901.01, the prior convictions must be for possession or
use, not merely for attempted possession or use.”
in Raney v. Lindberg, 206 Ariz. 193, 76 P.3d 867 (App. 2003), a
different panel of this court disagreed with the Ossana court,
holding that a preparatory drug offense qualifies as a prior
conviction under § 13-901.01 and to construe it otherwise would
create absurd results.
Id. at 199, ¶ 20, 76 P.3d at 873.
offenses are both encompassed within the guarantee of probationeligible
statutory language to avoid the absurdity of incarceration for
less serious offenses than possession or use.
See, e.g., State
v. Estrada, 201 Ariz. 247, 252, ¶ 24, 34 P.3d 356, 361 (2001)
Stubblefield v. Trombino ex rel. Cnty. of Maricopa, 197 Ariz.
Proposition 200 applies to attempted personal possession of a
Therefore, Lamb was not eligible for
probation, and we find no error.
Presentence Incarceration Credit
Lamb also argues he is entitled to thirteen additional
days of presentence incarceration credit.
The State concedes
that the court erred, but contends that Lamb is only entitled to
an additional four days.
We agree with the State.
actually spent in custody.
A.R.S. § 13-712(B) (2010) (“All time
prisoner is sentenced to imprisonment for such offense shall be
credited against the term of imprisonment[.]”).
Lamb was charged for the instant offenses three times,
March 19, 2008 to March 31, 2008, for 13 days; CR 2008–
006381: November 17, 2008 to December 1, 2008, for 14 days; and
CR 2009–006230: April 3, 2009 to sentencing on July 24, 2009,
for 113 days, for a total of 140 days.
At sentencing, the court only calculated 113 days of
presentence incarceration credit.
Lamb argued that he should
receive an additional twenty-three days of credit for time spent
in custody in CR2008-006381, one of the cause numbers previously
filed and dismissed.
Lamb contended that in that cause number,
he was taken into custody on November 17, 2008, and “remained in
appears that Lamb miscalculated the time spent in custody in
CR2008-006381, and was granted additional “credit.”
See infra ¶
With no objection from the State, the court granted Lamb
the additional 23 days, for a total of 136 days of presentence
Though Lamb argues that he should receive the benefit
of the court’s miscalculation in addition to full credit for the
other dismissed action, we disagree.
Lamb is only entitled to
The superior court released Lamb on December 1, 2008 and
dismissed the case on December 8, 2008.
granted an “extra” ten days presentence incarceration credit on
the CR2008-006381 case due to a miscalculation, which in essence
Thus, we modify the presentence incarceration credit to reflect
an additional four days.
See Ariz. R. Crim. P. 31.17(b); State
v. Stevens, 173 Ariz. 494, 495-96, 844 P.2d 661, 662-63 (App.
1992) (correcting a miscalculation in credit by modifying the
sentence without remanding to the trial court).
remand, the trial court shall conduct an evidentiary hearing on
Lamb’s motion to suppress.
If the motion is granted, the court
is directed to set aside Lamb’s convictions and sentences.
MICHAEL J. BROWN, Judge
DANIEL A. BARKER, Presiding Judge
MARGARET H. DOWNIE, Judge