State v. Vrizuela
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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. JESSE JOE VRIZUELA, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/20/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 11-0127 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-104445-001 DT The Honorable Susan M. Brnovich, Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Jesse Joe Vrizuela has advised us that, after searching the entire record, he has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant did not submit a supplemental brief but requested that counsel raise two issues: the denial of his pretrial motion to suppress evidence and the sufficiency of the evidence at trial. FACTS 1 ¶2 Phoenix police detectives executed a search warrant on Defendant s residence on January 25, 2010. They found him alone in the house and, in a bedroom with a sign that read, Jesse s room, found a loaded .22 caliber rifle, a loaded handgun, ammunition, drug paraphernalia, and approximately 36 grams of heroin, 5.3 marijuana. grams of methamphetamine, and 1.3 grams of Detectives also discovered a stolen Yamaha Grizzly Quad, or ATV, in the backyard. ¶3 Defendant Miranda 2 warnings. was arrested During his 1 and subsequently given his interview, Defendant told the We review the facts in the light most favorable to sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (citation omitted). 2 Miranda v. Arizona, 384 U.S. 436 (1966). 2 detective that: he had rented the house for about six months; he was a prohibited possessor and his right to possess firearms had not been restored; 3 he used methamphetamines; and he sold and traded heroin for various pieces of property. When asked whether the ATV was stolen, Defendant said he purchased it from another man and it was most likely stolen. Defendant was subsequently charged with possession of narcotic drugs for sale, a class two prohibited felony; possession possessor, a class of a four firearm felony; while being possession of a a firearm during the commission of a felony, a class four felony; possession or use of dangerous drugs, a class four felony; possession or use of marijuana, a class six felony; and theft of means of transportation, a class three felony. ¶4 motion Prior to his trial, Defendant filed an unsuccessful to suppress search warrant. the evidence discovered pursuant to the After a hearing, his motion for reconsideration was also denied. He did not appear for his trial and was tried in absentia in September 2010. The jury found him guilty as charged. ¶5 2010, and Defendant was arrested on a bench warrant in December his sentencing hearing was held in February 2011. After he admitted to three historical prior felony convictions, 3 Defendant also said that he had recently purchased the rifle for his nephew, and that he owned the handgun for protection because he had been robbed before. 3 he was sentenced to fourteen years for possession of narcotic drugs for sale; eight years for possession of a firearm while being a prohibited possessor; eight years for possession of a firearm during the commission of a felony; eight years for possession or use of dangerous drugs; three years for possession or use of marijuana; and ten years for theft of a means of transportation. The sentences were ordered to run concurrently and Defendant was given sixty days of presentence incarceration credit. ¶6 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 13-4031 (West 2012), and 13-4033(A)(1) (West 2012). DISCUSSION I. ¶7 Motion to Suppress We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004) (citations omitted). We consider only the evidence produced at the hearing on the motion, and we view that evidence in the light most favorable to upholding the trial court s ruling. State v. Gay, 214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007) (citations omitted). 4 ¶8 In Defendant s motion to suppress, he challenged the truthfulness of the statements in the affidavit underlying the search warrant. Specifically, Defendant pointed to statements in the synopsis portion of the affidavit that characterized his house as a place of ongoing criminal activity, including trafficking in stolen property and sales of narcotic drugs. He argued that pursuant to Franks v. Delaware, when the court considers the excised, the residence. all with the recklessly affidavit the support that affidavit does not contain issuance of a search 438 U.S. 154, 156 (1978). of the physical and false statements probable warrant for cause to Defendant s As a result, he argued testimonial evidence obtained should have been suppressed. ¶9 At the hearing, no evidence was presented and both parties argued about the sufficiency of the affidavit. The trial court rejected Defendant s argument that the police had no evidence to connect him to any illegal activity. After the court identified significant facts in the affidavit to support the warrant (police observed different vehicles that were suspected of being involved in burglaries visiting Defendant s residence over a period of time; a suspect interviewed by police alleged Defendant traded in stolen property and illegal drugs from his house; Defendant s address and telephone number were listed in an advertisement for a suspected stolen table saw; and 5 police observed many different people enter and leave the house with backpacks), the court noted that the synopsis was just a summary and didn t list any underlying facts. The court read the affidavit without considering the synopsis, and found there were sufficient facts in the affidavit to establish probable cause to believe that some illegal activity was taking place at Defendant s address. Accordingly, the court found that the search warrant was properly granted. ¶10 During the subsequent hearing on Defendant s motion for reconsideration, the trial court, after considering Franks, affirmed its earlier decision because Defendant had not demonstrated a prima facie case that would require the State to produce evidence to support the legality of the warrant. upon the record, we find no abuse of discretion. court properly determined analyzed that the the issue affidavit and provided did not Based The trial err probable when it cause for review the issuance of the search warrant. II. ¶11 Sufficiency of the Evidence As our supreme court has stated, [w]e sufficiency of evidence presented at trial only to determine if substantial evidence exists to support the jury verdict. State v. Stroud, 209 Ariz. 410, 411-12, ¶ 6, 103 P.3d 912, 913-14 (2005) (citation omitted). Substantial 6 evidence is evidence that a reasonable individual could rely finding of guilt beyond a reasonable doubt. ¶12 The against the sufficiency statutorily of the required upon to justify a Id. evidence elements must of be the tested offense. State v. Pena, 209 Ariz. 503, 505, ¶ 8, 104 P.3d 873, 875 (App. 2005). Defendant was convicted of six felony offenses; we will address each one in turn. Drug Possession Charges ¶13 Defendant was convicted of possession of narcotic drugs for sale, possession of dangerous drugs, and possession of marijuana. The elements of possession of a narcotic for sale are: (1) exercise of dominion and control over the substance; (2) knowledge that the substance is present; (3) knowledge that the substance is a narcotic; and (4) possession of the substance for the purpose of sale. State v. Salinas, 181 Ariz. 104, 106, 887 P.2d 985, 987 (1994) (citations omitted); A.R.S. § 13-3408 (West 2012). 4 ¶14 Detectives testified that when they executed the search warrant they found approximately 36 grams of heroin in Defendant s bedroom. And, Defendant stipulated that the search revealed 36 grams of heroin, 5.3 grams of methamphetamine, and 1.3 grams of marijuana. Additionally, 4 the detective who Unless indicated otherwise, we cite to the current version of a statute if it has not undergone a material change since the criminal offense occurred. 7 interviewed Defendant told the jury that Defendant admitted that he lived alone, sold and traded heroin, and used the funds from the heroin sales to buy more heroin. Thus, there was sufficient trial evidence to allow a reasonable jury to conclude beyond a reasonable doubt that Defendant possessed and sold heroin. ¶15 Similarly, possessed or used there was trial dangerous evidence drugs. that Defendant Methamphetamines are included in the definition of dangerous drugs in A.R.S. § 133401(b)(6) (West 2012). grams of Not only did the detectives find 5.3 methamphetamine, Defendant told the detective interviewed him that he had been using methamphetamine. who As a result, there was sufficient evidence for the jury to conclude that the State had proven the elements of possession or use of dangerous drugs beyond a reasonable doubt. ¶16 Finally, Defendant requires the possessed only that trial evidence marijuana. the also demonstrated Possession defendant exercise of control that marijuana over the drug, have knowledge of the drug's presence, and know that the substance is in fact marijuana. 382, ¶ 8, 956 P.2d 507, 509 State v. Cota, 191 Ariz. 380, (1998) A.R.S. § 13-3405(A) (West 2012). room marked by a sign that (citation omitted); see Here, marijuana was found in a read, marijuana was admitted as evidence. Jesse s room and the Because Defendant told the police that he lived alone in the house there was sufficient 8 evidence for the jury to conclude beyond a reasonable doubt that he was guilty of possession of marijuana. Firearms Charges ¶17 Defendant was also convicted of possessing a firearm during the commission of a felony and while being a prohibited possessor in violation (West 2012). 5 of A.R.S. § 13-3102(A)(4) and (A)(8) The jury heard the detectives testify that they found a .22 caliber rifle and a handgun in Defendant s bedroom, and the firearms were admitted into evidence. The jury also heard that Defendant admitted to the detective who interviewed him that Defendant knew he was a prohibited possessor, and the jury saw the certified public record that showed Defendant s right to possess firearms had not been restored. totality 5 of the evidence, the jury could Based on the have reasonably This section provides, in part: A. A person commits weapons by knowingly: misconduct involving . . . 4. Possessing a deadly weapon or prohibited weapon if such person is a prohibited possessor; or . . . 8. Using or possessing a deadly weapon during the commission of any felony offense . . . . 9 concluded beyond a reasonable doubt that Defendant was guilty of possession of a firearm while being a prohibited possessor. ¶18 Additionally, because there was evidence that Defendant had heroin for sale and possessed methamphetamine and marijuana, the jury had sufficient evidence to find Defendant guilty beyond a reasonable doubt of possession of a firearm during the commission of a felony. Theft of Means of Transportation ¶19 Finally, Defendant was convicted of theft of means of transportation, in violation 2012). of a Theft another person's of vehicle means of A.R.S. occurs § if a transportation reason to know that the property is stolen. ¶20 13-1814(A)(5) person knowing (West [c]ontrols or having Id. Detectives found a stolen ATV in Defendant s backyard. When questioned, Defendant told detectives he had bought it from someone Based but on he the knew trial that the evidence, ATV the was most likely jury could have stolen. reasonably concluded beyond a reasonable doubt that Defendant was guilty because he controlled another person s ATV knowing that it had been stolen. ¶21 compliance We find that all of the proceedings were conducted in Defendant with was the Arizona represented by Rules counsel 10 of at Criminal all Procedure. stages of the proceedings, and the sentences imposed were within the statutory limits. ¶22 We have also searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. CONCLUSION ¶23 Accordingly, sentences. obligation After to we affirm Defendant s this decision has represent Defendant in been this convictions filed, appeal and counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal review and reveals Arizona Supreme Shattuck, 140 Defendant s an issue Court Ariz. by 582, future options, appropriate for petition 585, 684 for P.2d unless counsel s submission review. 154, to State 157 the v. (1984). Defendant can, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. /s/ _____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ________________________________ JON W. THOMPSON, Presiding Judge /s/ ________________________________ JOHN C. GEMMILL, Judge 11
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