STATE v. WEATHERSPOON

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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. ) ) IVORIE PHILLIP WEATHERSPOON, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 06/20/2013 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CR 12-0159 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-006584-001 The Honorable Roger E. Brodman, Judge AFFIRMED AS MODIFIED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Ivorie Phillip Weatherspoon (Defendant) appeals his conviction and sentence for possession or use of marijuana. Defendant s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, she found no arguable question of law that was not frivolous. Defendant was afforded the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶2 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). error, we sentencing affirm. order However, to reflect we an Finding no reversible modify the additional trial thirteen court s days of presentence incarceration credit. FACTS AND PROCEDURAL HISTORY ¶3 Arizona On December Department 11, of 2010, Public at approximately Safety (DPS) 10:50 Officer T. p.m., was patrolling I-10 in Phoenix when he observed a vehicle traveling at a high rate of speed. Officer T. paced the vehicle and determined that it was driving seventy-six miles per hour in a sixty-five vehicle, mile Officer per T. hour also zone. began While to driving behind smell an of odor marijuana, and he proceeded to initiate a traffic stop. 2 the burning ¶4 After freeway, the Officer T. the vehicle driver, told stopped Defendant, Defendant to approached the passenger side. on began the to return shoulder exit to the the of the vehicle. vehicle and Because the passenger window had been taped shut, Officer T. asked the passenger to open the door. Officer T. testified that when the passenger opened the door, smoke that smelled like burning marijuana billowed from the interior of the car. ¶5 Because there were two occupants Officer T. radioed for another unit. in the vehicle, While he was waiting for the other unit to arrive, Officer T. spoke with Defendant and the passenger. Officer T. testified that at that Defendant told him they had been baking in the car. time, Officer T. stated that baking occurs when a person is in a confined space with burning marijuana and inhaling the fumes that come off of that burning marijuana. ¶6 When the backup officer arrived, he and Officer T. arrested Defendant and the passenger. Officer T. subsequently searched the vehicle and found a plastic baggie that contained marijuana in the passenger door map pocket, as well as a package of papers consistent with those cigarettes in the center console. the center console. 3 used to roll marijuana He also observed ashes around ¶7 Officer T. and the backup officer Defendant and the passenger to the DPS station. transported At the station, another officer, Officer K., drew Defendant s blood for testing. The test results revealed tetrahydrocannabinol psychoactive (THC), ingredient tetrahydrocannabinol that in Defendant s which is marijuana, (carboxy-THC), blood contained the as which predominant well as is a carboxy metabolite of THC. ¶8 The State charged Defendant with one count of possession or use of marijuana and one count of possession of drug paraphernalia, both class six felonies. The case proceeded to trial, and the jury found Defendant guilty on the count of possession or use of marijuana.1 The trial court subsequently sentenced Defendant to 3.75 years in prison. ¶9 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010), and -4033.A.1 (2010). DISCUSSION Sufficiency of the Evidence ¶10 When reviewing the sufficiency 1 of the evidence, we The jury acquitted Defendant on the count of possession of drug paraphernalia. 4 view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). We do not reweigh the evidence and will affirm if substantial evidence Substantial supports evidence is the jury s evidence that verdict. reasonable Id. persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt. State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). ¶11 Possession or use of marijuana requires proof that the defendant knowingly possessed or used marijuana. 3405.A.1 (Supp. 2012).2 A.R.S. § 13- Knowingly means that a person is aware or believes that the person s conduct is of that nature or that the circumstances exist. ¶12 A.R.S. § 13-105.10(b) (Supp. 2012). During the trial, Officer T. identified Defendant as the driver of the vehicle. He testified that after he pulled over the vehicle, Defendant stated that he and the passenger were baking. ¶13 tested Additionally, the revealed sample that predominant of a criminalist Defendant s Defendant s psychoactive blood for blood. contained ingredient the in Crime The test THC, which marijuana, carboxy-THC, which is a metabolite of THC. 2 DPS as Lab results is the well as The criminalist Absent material revisions, we cite to the current version of applicable statutes. 5 testified that when a detectable amount of THC is present in a person s blood, it is typically indicative of someone using [marijuana] within [approximately] the last . . . four to six hours. He also stated that based on the amount of THC present in Defendant s blood, he believed Defendant was smoking, rather than just passively inhaling, or baking. ¶14 We find that substantial evidence was presented by the State to support the jury s verdict that Defendant was guilty of possession or use of marijuana. Sentencing Order Correction ¶15 that During the sentencing hearing, the trial court stated Defendant was entitled incarceration credit. to thirteen days of presentence However, in the sentencing minute entry, Defendant was not awarded any presentence incarceration credit. Where there is a discrepancy between the oral sentence and the written judgment, the oral pronouncement of sentence controls. State v. Hanson, 138 Ariz. 296, 304-05, 674 P.2d 850, 858-59 (App. 1983). Therefore, we correct the trial court s March 15, 2012 sentencing minute entry to reflect an additional thirteen days of presentence incarceration credit. See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992) (modifying sentencing minute entry to correct credit). 6 presentence incarceration CONCLUSION ¶16 We have read and considered counsel s brief and have searched the entire record for reversible error and have found none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. indicates stages that of Defendant Defendant the all was proceedings, of his rights represented and under the by counsel trial the The record court at afforded Constitution, Arizona statutes, and the Arizona Rules of Criminal Procedure. Clark, 196 Ariz. at 541, ¶ 50, 2 P.3d at 100. After obligations the filing pertaining appeal have ended. to of this Defendant s See The sentence imposed by the trial court was within the statutory limits. ¶17 all decision, representation Id. counsel s in this See State v. Shattuck, 140 Ariz. 582, 584, 684 P.2d 154, 156 (1984). Counsel need do no more than inform Defendant of the status of the appeal and Defendant s future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Id. at 585, 684 P.2d at 157. Defendant shall have thirty days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. ¶18 For the foregoing reasons, Defendant s conviction and sentence are affirmed, with a modification to the calculation of 7 presentence incarceration credit. /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ___________________________________ PETER B. SWANN, Judge /S/ ___________________________________ LAWRENCE F. WINTHROP, Judge 8

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