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.
)
)
DAVID LEE LAMB,
)
)
Appellant. )
__________________________________)
DIVISION ONE
FILED: 08/16/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
No. 1 CA-CR 09-0622
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the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
Phoenix
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
Phoenix
B R O W N, Judge
¶1
David
Lee
Lamb
appeals
from
his
convictions
and
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.
BACKGROUND
¶2
In April 2009, Lamb was indicted for possession of a
narcotic
drug,
possession
of
marijuana,
and
threatening
intimidating another by a street gang member.
or
Lamb filed a
timely motion to suppress, asserting the police officers lacked
reasonable
suspicion
to
conduct
an
investigatory
stop.
The
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
cause
to
arrest
the
defendant
because
he
failed
to
identify
himself. 1
1
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
this case.
The State contends that, though the trial court’s
2
¶3
A jury found Lamb guilty on the two drug charges, but
not guilty on the intimidation charge.
concurrent
terms
of
12
years
on
the
He was sentenced to
possession
or
use
of
narcotic drug charge and 2.25 years on the possession or use of
marijuana charge.
Lamb timely appealed.
DISCUSSION
A.
¶4
and
Motion to Suppress
The Fourth Amendment prohibits unreasonable searches
seizures,
but
investigatory
officer’s
stop
reasonable
is
permissible
suspicion
of
when
supported
by
activity.
State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027,
1029 (1996).
an
an
criminal
Officers may conduct a weapons frisk if there is a
reasonable fear for safety.
Terry v. Ohio, 392 U.S. 1, 27
(1968).
¶5
fact.
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,
articulable
facts,
from those facts.”
224
P.3d
977,
981
along
with
rational
inferences
that
arise
State v. Ramsey, 223 Ariz. 480, 484, ¶ 17,
(App.
2010).
Evidence
gained
from
an
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
other grounds.
3
Ariz. 501, 506, 930 P.2d 1304, 1309 (1997).
When considering
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
¶6
that
In his motion to suppress, Lamb specifically requested
the
court
conduct
an
evidentiary
hearing.
The
record,
however, is silent as to why there was no hearing conducted or
why each party submitted an offer of proof.
the
court
established
its
requirements
for
By minute entry,
pretrial
motions,
stating that “[a]ll motions must comply with Rule 35.1 including
setting
forth
a
sufficient
factual
basis
for
the
motion.
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.
¶7
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
important
distinction
exists
2
between
the
Rule
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.
4
35.1(a) 3 requirements of alleging a prima facie case and the
necessity
to
prove
a
prima
facie
case
under
Rule
16.2(b). 4
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
3
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
stating
the
specific
factual
grounds
therefor and indicating the precise legal
points, statutes, and authorities relied
upon, and shall be served to all other
parties.
4
Arizona Rule of Criminal Procedure 16.2(b) provides as
follows:
The prosecutor shall have the burden of
proving, by a preponderance of the evidence,
the lawfulness in all respects of the
acquisition
of
all
evidence
which
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
valid
search
warrant,
the
prosecutor’s
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.
5
make
allegations
of
fact
that,
if
proved,
would
entitle
the
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.
¶8
Id. (emphasis added).
This distinction is particularly important where, as
here, there is no evidence in the record that the investigatory
stop
or
the
subsequent
arrest
and
seizure
were
based
on
a
warrant, either for Lamb or for anyone else for whom he might
have been mistaken.
P.2d
655,
673
In State v. Hyde, 186 Ariz. 252, 270, 921
(1996),
our
supreme
court
explained
the
warrant/warrantless dichotomy:
[I]f the challenged evidence was obtained
under authority of a warrant, defendant
bears the burden of going forward with some
evidence
to
show
that
the
challenged
evidence was illegally obtained.
If the
challenged evidence was obtained without a
warrant,
the
state
carries
the
entire
evidentiary burden.
¶9
Applying
the
dichotomy
to
Rule
16.2,
the
Rodriguez
court stated, “this means that a defendant who establishes that
evidence
was
seized
pursuant
to
a
warrantless
search
has
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.
without
a
warrant
is
Stated differently, a search
presumptively
6
Rodriguez, 194 Ariz.
unreasonable
and
requires
adequate justification by the State.
at
542
(“[A]n
unrebutted
Id. at 214, ¶ 10, 979 P.2d
presumption
[of
unreasonableness]
carries the day.”); Ariz. R. Crim. P. 16.2(b).
¶10
There were five items presented to the trial court:
(1) the defense motion, which included booking photos of the
defendant
and
another
man
whom
the
defendant
alleged
he
was
mistaken for; (2) the State’s response; (3) the defense “offer
of proof”; (4) the State’s “offer of proof”; and (5) the video
recording.
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
that
seizure
authority).
begins
when
the
defendant
yields
to
police
None of the other items before the court constitute
evidence.
¶11
Offers of proof are to be used in cases where evidence
has been excluded, to show the character of the evidence and
allow
for
review.
reconsideration
by
the
trial
court
and
appellate
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
7
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.”).
the
parties’
intent
to
submit
the
In short, if it was
suppression
motion
for
resolution based on a stipulated record, it was incumbent on
them (or the trial court) to make that clear.
is
not
synonymous
with
submission
on
a
An offer of proof
stipulated
record.
Moreover, the offers of proof in this case are not entirely
consistent factually as to the circumstances and reasons for the
investigatory stop.
¶12
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,
stipulated
facts,
depositions,
and
oral
testimony
are
proper
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).
Thus,
we
remand
this
matter
for
an
evidentiary
determine the merits of Lamb’s motion to suppress.
Enriquez,
reverse
106
Ariz.
conviction,
304,
but
475
P.2d
remanding,
8
486
(1970)
based
on
hearing
to
See State v.
(declining
trial
to
court’s
failure
to
hold
evidentiary
hearing
on
question
of
probable
cause); State v. Tillmon, 222 Ariz. 452, 456-57, ¶¶ 16, 20, 216
P.3d
1198,
defendant’s
1202-03
(App.
2009)
convictions
and
sentences
(conditionally
subject
to
affirming
the
court’s
ruling on remand); State v. Zamora, 220 Ariz. 63, 71, ¶ 21, 202
P.3d
528,
536
(App.
2009)
(remanding
to
determine
whether
defendant’s statements should have been suppressed).
B.
¶13
Mandatory Probation
Lamb argues he was eligible for mandatory probation
under Arizona Revised Statutes section 13-901.01 (2010). 5
At a
hearing on prior convictions, the court found that the State had
proven the following convictions under state law:
(1) attempt
to commit possession of narcotic drugs for sale; (2) resisting
arrest;
and
(3)
possession
of
marijuana.
Additionally,
the
court found that the State had proven a federal conviction for
felon in possession of a firearm.
¶14
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.
5
Absent material revisions, we cite to the current version
of the statute.
9
¶15
Proposition
requires
a
sentence
200,
of
codified
probation
as
for
A.R.S.
the
§
first
13-901.01,
and
convictions of possession of a controlled substance.
second
Relying on
State v. Ossana, Lamb argues that attempted possession does not
count as a strike for purposes of Proposition 200.
459,
461-62,
¶
11,
18
P.3d
1258,
1260-61
(App.
199 Ariz.
2001).
We
disagree.
¶16
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.”
Id.
However,
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.
¶17
We
agree
Id. at 199, ¶ 20, 76 P.3d at 873.
with
the
Raney
court
that
preparatory
offenses are both encompassed within the guarantee of probationeligible
offenses,
and
are
also
10
within
the
later
statutory
language
removing
third-time
offenders
eligibility.
Compare
A.R.S.
§
901.01(H)(1).
In
context
of
consistently
included
the
offenses
not
from
13-901.01(A)
§
probation
with
13-901.01(A),
explicitly
§
we
covered
by
13have
the
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)
(mandating
probation
for
possession
of
drug
paraphernalia);
Stubblefield v. Trombino ex rel. Cnty. of Maricopa, 197 Ariz.
382,
383,
¶
2,
4
P.3d
437,
438
(App.
2000)
(holding
that
Proposition 200 applies to attempted personal possession of a
controlled substance).
Therefore, Lamb was not eligible for
probation, and we find no error.
C.
¶18
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.
¶19
By
statute,
We agree with the State.
defendants
actually spent in custody.
actually
spent
in
custody
receive
credit
for
time
A.R.S. § 13-712(B) (2010) (“All time
pursuant
to
an
offense
until
the
prisoner is sentenced to imprisonment for such offense shall be
credited against the term of imprisonment[.]”).
11
¶20
Lamb was charged for the instant offenses three times,
resulting
117665:
in
the
following
periods
of
detention:
CR
2008–
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.
¶21
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
custody
for
23
days,”
before
being
released. 6
However,
it
appears that Lamb miscalculated the time spent in custody in
CR2008-006381, and was granted additional “credit.”
22.
See infra ¶
With no objection from the State, the court granted Lamb
the additional 23 days, for a total of 136 days of presentence
incarceration credit.
¶22
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.
credit
for
time
actually
served
6
Lamb is only entitled to
under
the
statute.
He
was
The superior court released Lamb on December 1, 2008 and
dismissed the case on December 8, 2008.
12
granted an “extra” ten days presentence incarceration credit on
the CR2008-006381 case due to a miscalculation, which in essence
gives
him
ten
days
credit
towards
the
CR2008-117665
matter.
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).
CONCLUSION
¶23
Lamb’s
For
the
convictions
foregoing
and
reasons,
sentences,
as
we
conditionally
modified
affirm
herein.
On
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.
/s/
_________________________________
MICHAEL J. BROWN, Judge
CONCURRING:
/s/
_________________________________
DANIEL A. BARKER, Presiding Judge
/s/
_________________________________
MARGARET H. DOWNIE, Judge
13
