STATE v. COLLINS

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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: 9/10/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. GERALD VERNELL COLLINS, Appellant. 1 CA-CR 12-0807 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-147566-002 The Honorable Cynthia Bailey, Judge AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorney for Appellee Phoenix James Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorney for Appellant Phoenix Gerald V. Collins Appellant Tucson C A T T A N I, Judge ¶1 count Gerald Vernell Collins appeals his conviction of one of possession for sale of narcotic drugs, a Class 2 felony, and the resulting sentence. Collins s counsel filed a brief California, in accordance with Anders v. 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of the record, counsel found no arguable this question to law search that the was not frivolous. record for reversible Counsel asks error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). court of Collins was given an opportunity to file a supplemental brief and did so, arguing that the State did not present sufficient evidence to support his conviction. After reviewing the entire record, we affirm Collins s conviction and sentence. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 patrol Phoenix Police Officers Huptich and Elfritz were on when they observed what appeared to be illegal drug activity involving Collins and co-defendant Thomas McLean. The officers set up surveillance using a spotting scope on the top of a parking garage located approximately one city block away. During surveillance, Officer Huptich observed a woman with white hair walk up to McLean. The woman gave McLean some money, and McLean pointed to Collins. The woman approached and spoke with 1 We view the facts in the light most favorable to sustaining the jury s verdict. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 Collins, who removed a small white object from an Altoids tin and gave it to her. After the woman left, Collins took another white object from the Altoids tin, placed it in what Officer Huptich identified as a crack pipe, and smoked it. ¶3 Officer Huptich subsequently observed a male with a backpack walk up to Collins. and pointed to McLean. Collins said something to this man The man walked over to McLean, talked with him, and gave him money. The man then returned to Collins, who opened up the Altoids tin, picked out one of the white objects from the tin[,] and gave it to the subject. ¶4 After the man walked away, Officer Huptich radioed for other officers in the area to make contact with Collins and McLean. As Officer Huptich watched through his scope, he observed Collins quickly pick up the Altoids tin and place it in a black backpack as officers approached. Officer Huptich conveyed this information to the officers on the scene. ¶5 Officers arrived at the scene determine who owned the black backpack. and attempted to After Collins denied knowing to whom it belonged, Officer Fluty searched the backpack and found paperwork with Collins s name on it. Collins then admitted that the backpack belonged to him, gave the officers permission to look inside it, and told Officer Fluty there was an Altoids tin containing cocaine 3 in the side pocket. In addition to the Altoids tin from the backpack, officers also recovered a large amount of money from McLean s pockets. Officers arrested Collins, and he was read his Miranda 2 ¶6 rights at the South Mountain Precinct. understood his rights and agreed Collins stated that he to answer the officer s questions. Collins admitted (1) he was selling crack cocaine; (2) he had two rocks of cocaine in the Altoids tin; (3) he had given crack cocaine to the woman with the white hair and to the man with the backpack; and (4) he had placed crack cocaine in a pipe and smoked it. Collins was charged by indictment with one count for of possession sale of narcotic drugs, a Class 2 felony. ¶7 Collins subsequently asserted that the police did not read him his Miranda rights before questioning, but the superior court rejected this claim after conducting a pre-trial voluntariness hearing. ¶8 After a three-day trial, the jury found Collins guilty of possession for sale of narcotic drugs. Collins admitted to two historical prior felony convictions. The court sentenced Collins as a non-dangerous, repetitive offender to the supermitigated term of 10.5 years, with 462 incarceration credit. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 4 days presentence ¶9 Collins 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), 13-4031, and -4033. 3 DISCUSSION ¶10 Collins s We have reviewed supplemental reversible error. and brief, considered and the counsel s entire brief, record for See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. ¶11 Collins contends that the evidence is not sufficient to support his conviction because (1) the cocaine that the State found did not meet the threshold amount of 750 mg required for conviction of the charged offense; (2) the police did not find money or drugs on his person; (3) at trial, the State did not present customers to testify or bring the drugs purchased; and (4) Officer Huptich testified that he could not say for certain that he saw Collins selling drugs. ¶12 exceeding As to the the issue threshold of threshold amount is not amount, a meeting requirement conviction of possession for sale of narcotic drugs. or for See A.R.S. § 13-3408 (A)(2) ( A person shall not knowingly . . . [p]ossess a narcotic drug for sale. ); A.R.S. § 13-3408(D) (prohibiting 3 Absent material revisions after the relevant date, we cite a statute s current version. 5 suspension of sentence, probation, pardon, or release from confinement if amount of narcotic drugs involved in underlying offense meets or exceeds threshold amount). Although the record does not reflect the amount of cocaine recovered, the parties stipulated that the substance seized from inside the Altoids tin found in Collins s backpack contained cocaine base or hydrolyzed (crack) cocaine, a narcotic drug. ¶13 As to Collins s other arguments, sufficient evidence supports his conviction. money, presumably accomplice from McLean s drug sales, pockets. See was A.R.S. we conclude that A large amount of recovered § from 13-303. his Collins admitted owning the backpack in which drugs were found and even told officers where in the backpack to find the Altoids tin containing crack cocaine. means knowingly to have See A.R.S. § 13 105(34) ( Possess physical possession exercise dominion or control over property. ). not required to provide testimony produce the drugs Collins sold. from drug or otherwise to The State was customers or to As to uncertainty of testimony, Officer Huptich testified that Collins admitted to him that he was selling crack cocaine. Thus, a rational jury could have reasonably concluded that Collins possessed narcotic drugs for sale. ¶14 See A.R.S. § 13-3408(A)(2). Collins was present and represented by counsel at all stages of the proceeding. The record reflects that the superior 6 court afforded Collins all his rights under the constitution and our statutes, and that the proceedings were conducted accordance with the Arizona Rules of Criminal Procedure. in The court conducted appropriate pretrial hearings, and the evidence presented at trial and summarized support the jury s guilty verdict. above was sufficient to Collins s sentence falls within the range prescribed by law, with proper credit given for presentence incarceration. CONCLUSION ¶15 the We affirm Collins s conviction and sentence. filing of this decision, defense counsel s After obligations pertaining to Collins s representation in this appeal will end after informing Collins of the outcome of this appeal and his future options. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Collins shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review. /S/ KENT E. CATTANI, Judge CONCURRING: /S/ JON W. THOMPSON, Presiding Judge /S/ LAWRENCE F. WINTHROP, Judge 7

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