STATE v. FLORES

Annotate this Case

Download PDF

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. FABIAN ANDRES FLORES, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 7/23/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0513 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-008760-001 The Honorable William L. Brotherton, Judge AFFIRMED AS MODIFIED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix K E S S L E R, Judge ¶1 Fabian Andres Flores appeals from his conviction of possession of dangerous drugs, a class 4 felony. See Ariz. Rev. Stat. ( A.R.S. ) §§ 13-3401(6) (Supp. 2012), -3407(A)(1), (B)(1) (Supp. 2012). 1 requested that Finding no arguable issues to raise, counsel this Court search the record for fundamental error pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). ¶2 Flores filed a pro per supplemental brief asking this Court to determine whether placing his photograph in front of the jury during the trial violated his due process rights and was fundamental error. Because the record does not reveal any fundamental error, we affirm Flores conviction, but modify his sentence to reflect an increase to his presentence incarceration credit. FACTUAL AND PROCEDURAL HISTORY ¶3 In August 2007, Officers C and R saw a car run a red light near 47th Avenue and turn into a gas station parking lot. They followed this car into the parking lot and observed Flores exit the car and go into the store. Flores then exited the store and began to return to the car, but turned towards a Suburban in the opposite direction when he noticed the patrol 1 We cite to the current version because no revisions material to occurred. 2 of the applicable statute this decision have since car. Officer C saw Flores reach into his pocket, pull out a small white object (later identified as a baggie), and throw it towards the Suburban s front tire. When a man in the Suburban drove away, another white object (also a baggie) became visible where its front tire had been. The officers seized the baggies, drove Flores to the police station, and turned the baggies in for processing. The bags tested positive for methamphetamine. ¶4 the After jury convicted Flores of possession of dangerous drugs, the jury also found that Flores had committed the offense while on community supervision release from a prior felony. Flores timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), -4033(A)(1) (2010). DISCUSSION ¶5 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). In order to obtain a reversal, the defendant must also demonstrate that the error 3 caused prejudice. Id. at ¶ 20. On review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). I. Sufficiency of the Evidence ¶6 There is evidence in the record to support Flores conviction. To obtain a conviction of possession of dangerous drugs, State the must prove possessed a dangerous drug. that the defendant knowingly A.R.S. § 13-3407(A)(1); see A.R.S. § 13-3401(6) (defining dangerous drug). ¶7 Officer C testified that he saw Flores throw the first white baggie under the Suburban, and Officer R testified that he saw Flores throwing motion. Suburban if he knew interaction with him. Officer R asked the driver of the Flores, but did not have any further The officers did not record the driver s information, nor did they search the Suburban or run its license plate, so no testimony was presented to establish the origin of the second baggie. Regardless of the second baggie, there is sufficient to evidence support a jury finding that Flores knowingly possessed the first baggie containing methamphetamine. ¶8 The substance in the baggies was methamphetamine. This was established by a forensic scientist at trial, and the officers established a proper chain of custody for both baggies. Methamphetamine is defined as a dangerous drug in A.R.S. § 134 3401(6)(b)(xvii). 2 II. The Photograph of the Defendant Presented to the Jury ¶9 Flores has asked us to addres whether his due process rights were violated, and if fundamental error occurred when the trial court permitted the State to place Flores photograph in front of the jury during the State s witnesses testimony. ¶10 The superior court found that Flores voluntarily absented himself from trial, so it was conducted in absentia. The court provided a photograph of Flores, admitted as Exhibit 1, to the jury throughout the trial. The State first entered Flores photograph into evidence when examining Officer C to verify that the man he came into contact with and arrested on the night in question was Flores. the jury s objected. sight throughout Flores counsel the This photograph remained in trial, argued that and the Flores counsel photograph was prejudicial because it highlighted Flores absence to the jury, it constituted a due process violation, and it tainted the jury to such an extent that it was grounds for a mistrial. ¶11 The superior court overruled the motion for mistrial, finding that it was not prejudicial to provide the jury with a human face in light of Flores absence. 2 This subsection has been twice renumbered since 2005, however there are no material differences thus we cite the 2012 pocket part. 5 ¶11¶12 The There was nothing incriminating about the photograph. court instructed the jury that the defendant need not testify and that his absence at trial is not to be considered as evidence. The court had previously given essentially these same instructions during voir dire. Flores has not presented any evidence that the jury was prejudiced by viewing his photograph throughout the trial. Accordingly, we find no error, much less fundamental error. III. Presentence Incarceration Credit ¶12¶13 spent Presentence in custody incarceration beginning the credit day of is given booking, for State time v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993), and ending the day before sentencing, State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987). Flores served ninety- nine days in custody prior to sentencing, yet he only received ninety-three sentence to days of reflect credit. six Therefore, additional we days modify of Flores presentence incarceration credit. CONCLUSION ¶13¶14 Accordingly, we affirm Flores conviction but modify his sentence by granting him ninety-nine days of presentence incarceration credit. Upon the filing of this decision, counsel shall inform Flores of the status of the appeal and his options. Defense counsel has no further obligations, unless, upon review, 6 counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). shall have proceed, if thirty he days so from the desires, date with a of pro this per reconsideration or petition for review. /s/ DONN KESSLER, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ SAMUEL A. THUMMA, Judge 7 Flores decision to motion for

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.