State v. McAlpin

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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 DIVISION ONE FILED: 05/15/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JEFFREY JAMES MCALPIN, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0643 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-125039-001 The Honorable Janet E. Barton, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Thomas K. Baird, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Jeffrey McAlpin appeals from his convictions and sentences for one count of possession or use of narcotic drugs heroin (a class 4 felony), one count of possession or use of dangerous drugs methamphetamine (a class 4 felony), and one count of possession or use of marijuana (a class 6 felony). McAlpin s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. McAlpin was afforded the opportunity to file a pro se supplemental brief but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We therefrom view the in the light convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 On May 14, 2010, Phoenix Police officers narcotics search warrant on McAlpin s residence. served a The search warrant was based on information about Bryan W. s drug dealing activity from the McAlpin home. search warrant was served. McAlpin was at home when the After being advised of his Miranda 1 rights, McAlpin agreed to speak to Detective K. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 ¶4 According to Detective K. s testimony, admitted the following during questioning: the residence; he was a user of McAlpin he was the owner of heroin and occasionally methamphetamine; he bought his drugs from his roommate Bryan W.; he admitted to owning a house safe located in a common area of the home; he provided the combination of the safe to the officers; and he stated that the officers would find some heroin and some methamphetamine inside the safe. ¶5 black After opening the safe, the officers found a small container inside floor with of a the baggie safe, of the marijuana officers inside. found On one the syringe containing a dark brown fluid believed to be heroin; two types of scales; and a zip-lock baggie in one of the scales containing a substance believed to be methamphetamine. ¶6 The officers also found other objects inside the safe including keys to a BMW that fit the vehicle located in the driveway of the home and found to be McAlpin s mother s car, along with a set of wrist watches. ¶7 Erica B., a forensic scientist for the Phoenix Police Department, baggies. amount tested She of the contents concluded heroin. She that of the further the syringe syringe and contained concluded that the two a usable one baggie contained marijuana and the other contained a usable quantity of methamphetamine. 3 ¶8 McAlpin testified at trial in his defense. He stated that he shared the safe with his roommate Bryan W. He testified that he used heroin; it was his drug of choice. McAlpin also stated that he acquired the heroin from his roommate Bryan W. He further stated that he purchased the safe for the home to protect the cash he restaurant industry. use the bottom made from tips while working in the Eventually, McAlpin allowed Bryan W. to portion of the safe while he used the compartmentalized and lockable top portion. ¶9 McAlpin testified about the conversation he had with Detective K. on the day of his arrest. K. s version of events, McAlpin Contrary to Detective averred that he told the detective that he could find heroin, cocaine, speed, marijuana, and pills, the drugs that [he] knew Bryan [W.] was selling. (Emphasis added). McAlpin clarified that he told the detective that he might or could and not that he was going to find drugs in the safe. ¶10 After all evidence and argument was jury found McAlpin guilty of all three charges. presented, the The trial judge sentenced McAlpin to presumptive concurrent terms of 2.5 years for the possession of heroin and methamphetamine, and 1 year for the possession of marijuana. ¶11 McAlpin pursuant to timely Arizona appeals, Constitution 4 and we Article have 6, jurisdiction Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). 2 DISCUSSION ¶12 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. convictions and the permitted by law. The evidence presented supports the sentences imposed fall within the range As far as the record reveals, McAlpin was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶13 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform McAlpin of the disposition of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. McAlpin has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review. 2 We cite to the current versions of statutes when no revisions material to this decision have occurred since the date of the alleged offenses. 5 CONCLUSION ¶14 The convictions and sentences are affirmed. ____/s/______________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/____________________________ PATRICIA A. OROZCO, Presiding Judge ____/s/____________________________ PHILIP HALL, Judge 6

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