State v. Robinson
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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. PATRICK LAYTON ROBINSON, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0267 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-158785-001 DT The Honorable Christopher T. Whitten, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Patrick Layton Robinson appeals his convictions and sentences for possession of marijuana for sale, possession of marijuana, and possession of drug paraphernalia. Counsel for Robinson 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 that after searching the record on appeal, she was Robinson unable was to find granted any the arguable opportunity brief in propria persona. grounds to file for a reversal. supplemental Although he did file a supplemental brief, it was not timely. 1 Through counsel, however, Robinson has raised several issues. ¶2 Our obligation reversible error. is to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to We view the facts in the light most sustaining the conviction and resolve all reasonable inferences against Robinson. State v. Guerra, 161 Ariz. (1989). 289, 293, 778 P.2d 1185, 1189 Finding no Count 1, reversible error, we affirm. BACKGROUND ¶3 Robinson was charged by indictment of possession of marijuana for sale ( Count 1 ), a class 2 felony, 1 An order was issued on March 8, 2010 granting Robinson the opportunity to file a supplemental brief on or before April 19, 2010. His supplemental brief was filed on June 10, 2010; therefore, we do not consider it. 2 in violation of Arizona Revised Statutes ( A.R.S. ) section 133405(A)(2),(B)(6) (2010); possession of marijuana ( Count 2 ), a class 6 felony, in violation of A.R.S. § 13-3405(A)(1),(B)(1) (2010); and possession of drug paraphernalia ( Count 3 ), a class 6 felony, in violation of A.R.S. § 13-3415(A) (2010). ¶4 The following evidence was presented at trial. In September 2008, Officer J.G. observed a Honda Ridgeline truck suspiciously dump some trash into a commercial bin behind a business. He followed the vehicle to an address on Toronto Way in Tolleson, Arizona. As the vehicle stopped, J.G. wrote down the license plate number. He then returned to the trash bin. When bin he jumped into the he could smell the odor of marijuana and found several hefty style trash bags, empty cellophane wrap containers. Robinson boxes, Some written of on empty the dryer-sheet empty boxes, and grease had the name Based them. boxes Patrick on his training and experience, he believed these items were generally associated with drug trafficking. the registered owner J.G. also discovered that Robinson was of the Honda Ridgeline address on Echo Lane in Peoria, Arizona. truck, with an The next morning, he requested a surveillance team be assigned to watch Robinson. ¶5 Two days later, J.G. obtained a search warrant for the Toronto Way house. When he entered the house, J.G. noticed the odor of marijuana. He also observed that the house was sparsely 3 furnished, police with few found a personal digital items inside. scale, In several the kitchen, cellophane-wrap containers, boxes of hefty style trash bags, a small baggie of marijuana, and some industrial cellophane spools. found a utility Robinson. bill for the Toronto Way home They also addressed to In the master bedroom closet, they found nine bales of marijuana. In the meantime, other police officers located Robinson driving his vehicle, conducted a traffic stop and took him into custody. ¶6 Later that day, a search warrant was executed on the Echo Lane home. lived in. including Police observed that the home appeared to be There were personal belongings throughout the home, children s toys. Police also found a baggie containing 5.6 grams of marijuana underneath one of the cushions of the sofa. Additionally, they found several money order receipts, wire transfer receipts, and utility receipts addressed to Robinson and another individual. ¶7 A jury found Robinson guilty of all three counts. The trial court sentenced him to the presumptive term of five years imprisonment on Count 1, with a concurrent imprisonment for both Counts 2 and 3. days of presentence incarceration appealed. 4 one-year term of He was also given 201 credit. Robinson timely DISCUSSION ¶8 Through counsel, Robinson raises five issues, which we address in turn. He first challenges the sufficiency of the State s and evidence determining whether asserts his sufficient actual evidence innocence. 2 exists to In support a conviction, we view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the jury s verdict. State v. Haight-Gyuro, 218 Ariz. 356, 357, ¶ 2, 186 P.3d 33, 34 (App. 2008). We will affirm if there is substantial evidence to support the verdict. P.2d at 1189. Guerra, 161 Ariz. at 293, 778 The substantial evidence required to warrant a conviction may be either circumstantial or direct. State v. Mosley, 119 Ariz. 393, 402, 581 P.2d 238, 247 (1978). ¶9 The pursuant to crime A.R.S. knowingly possessed marijuana, and the of § possession 13-3405, marijuana, possession of marijuana requires the was proof the sale, that Robinson was in fact purpose of sale. substance for for Here, the State introduced sufficient evidence to prove Robinson knowingly possessed marijuana for sale. 2 At trial, Officer J.G. To the extent that Robinson requests that we review the record for fundamental error with respect to actual innocence, we construe it as a challenge to the sufficiency of the evidence and address the two issues together. If, however, Robinson intended to challenge his conviction based on actual innocence as contemplated in Arizona Rule of Criminal Procedure 32.1(h), he must do so in a petition for post-conviction relief. See Ariz. R. Crim. P. 32.2(b). 5 testified that upon entering the smell the odor of marijuana. Toronto Way home, he could There was testimony that Robinson was seen entering the Toronto Way home using a key, and there were invoices for the home s utility services in his name. Further, the parties stipulated that the substance found in the master bedroom was marijuana, and testimony at trial revealed it had a weight of approximately one-hundred eighty pounds, an pursuant to amount not typical for personal use. ¶10 A.R.S. The § crime of 13-3405, possession requires of proof marijuana, that Robinson knowingly possessed marijuana, and the substance was in fact marijuana. At trial, Officer J.G. testified to seeing Robinson enter and leave the Echo Lane home. The State also presented evidence establishing that Robinson registered his vehicle using the Echo Lane address and there were several utility invoices for the Echo Lane address in Robinson s name. Additionally, the parties stipulated that the substance found in the baggie under the sofa cushion at the Echo Lane home was a usable amount of marijuana. ¶11 The crime of possession of drug paraphernalia, pursuant to A.R.S. § 13-3415, requires proof that Robinson used, or possessed with the intent to use, drug paraphernalia to pack, repack, store, presented sheets, contain, evidence trash that bags, and or conceal industrial cellophane 6 marijuana. cellophane, wrap were The State grease, dryer found at the Toronto Way address. Officer J.G. testified that drug traffickers are known to package their marijuana in cellophane wrap and use grease and dryer sheets to conceal the odor of the marijuana. Based on the evidence presented at trial, we find that substantial evidence supports the jury s verdicts. ¶12 Robinson next argues that he was not provided with a copy of the search warrant relied upon to find and collect the evidence offered at trial. contention. The record does not support his The State s disclosure expressly lists the search warrant and indicates it was available to Robinson in accordance with Rule 15.1(b). We therefore find no error on this basis. ¶13 further denying Robinson his motion for argues a that judge after mistrial the the erred in prosecutor introduced evidence that had previously been ordered excluded. A declaration of mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted. State v. Dann, 205 Ariz. 557, 570, ¶ 43, 74 P.3d 231, 244 (2003) (citation omitted). In determining whether to grant a mistrial, a judge should consider: (1) whether the testimony called the jurors attention to matters that they would not be justified in probability considering in under circumstances the influenced the jurors. reaching a verdict; that and the (2) the testimony State v. Bailey, 160 Ariz. 277, 279, 772 7 P.2d 1130, 1132 (1989). We review a trial court s denial of a motion for mistrial for abuse of discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000). The trial judge s discretion is broad . . . because he is in the best position to determine whether the evidence will actually affect the outcome of the trial. ¶14 Here, prior to jury selection, the court heard oral motions in limine. arrest, morning. Id. (citations omitted). Robinson Defense counsel argued that upon Robinson s said I already know I already called my lawyer. what happened this Counsel argued that the second part of the statement was an invocation of his client s right to counsel and that any statements made by [Robinson] once he was taken into custody at that point should not be used against him. He also argued that when combined with the first part of the statement, the combined statement tended to show some indicia of potential guilt on Robinson s part and thus was unfairly prejudicial. The trial judge initially ruled that the first statement was admissible but the second statement was to be excluded. The judge later amended his ruling to allow the entire statement to be used when he learned that immediately following the second lawyer Robinson said statement I have What s all this explained his modified ruling as follows: 8 already about? called The my court Before trial in a motion in limine . . . there were two statements that I knew about from the defendant. One was the defendant s saying I know what happened this morning, and the other was I already called my lawyer. Those were the only two I was aware of before trial. There was a third one that I heard about during defendant s opening statement [] which followed I have already called my lawyer. . . . During opening statements defense counsel first brought up that third one, and since then has implied that the third one casts some doubt on what the defendant meant when he said what s this all about? [The third statement.] . . . Therefore, once that first statement was called into question or what it meant was called into question, the probative value of the second statement went way up in my opinion, and at that point its probative value was no longer substantially outweighed by the danger of unfair prejudice or . . . improper use by the jury. . . . That s why I admitted it. I offered counsel during our bench conference the opportunity to have some limiting instruction given. None has been suggested. Notwithstanding the trial judge s explanation, defense counsel reiterated his objection. ¶15 Even assuming the trial court erred in admitting the entire statement, we find the error to be harmless. Error is harmless if we can say, beyond a reasonable doubt, that the 9 error did not contribute to or affect the verdict. State v. Anthony, 218 Ariz. 439, 446, ¶ 39, 189 P.3d 366, 373 (2008) (quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)). The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Id. State has the burden harmless. Id. of convincing us that any The error was We can determine that an error is harmless when the evidence against a defendant is so overwhelming that any reasonable jury could only have reached on conclusion. Id. at ¶ 41. ¶16 Here, Robinson was observed dumping trash into a commercial bin, where police soon after discovered several large trash bags containing cellophane wrap boxes, dry-sheet boxes, and grease containers; all of which had the odor of marijuana and some of which had Robinson s name on them. that these items were generally Police testified associated with drug trafficking. Immediately after discarding the trash, Robinson was to followed a house on Toronto Way where police later discovered nine bales of marijuana, a digital scale, several cellophane wrap containers, boxes of trash bags, and a utility bill for the property bearing Robinson s name. In addition, the vehicle Robinson was driving was registered to him at an address 10 on Echo Lane where police later found a baggie containing 5.6 grams of marijuana, several money order receipts, wire transfer receipts, and utility receipts. Based on the overwhelming evidence presented against Robinson at trial, we find that the admission of the defendant s statement about his lawyer did not contribute to or affect the jury s verdict. 3 CONCLUSION ¶17 have We have read and considered counsel s brief, and we reviewed the entire record for fundamental Leon, 104 Ariz. at 300, 451 P.2d at 881. error. We find none. See All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Robinson was represented As far as the record reveals, by counsel at all stages of the proceedings, Robinson was given the opportunity to speak before sentencing, limits. and the sentences imposed were within statutory Accordingly, we affirm Robinson s convictions and the corresponding sentences. ¶18 Upon the filing of this decision, counsel shall inform Robinson of the status of the appeal and his options. 3 Defense Additionally, at no time after the statement was introduced did the prosecutor refer to it again; nor was the general information about Robinson s pre-arrest contact with his attorney included in any of the prosecutor s arguments to the jury. See State v. Palenkas, 188 Ariz. 201, 213, 933 P.2d 1269, 1281 (1996) (declining to find harmless error based in part on prosecution s repeated references and comments to defendant s invocation of right to counsel). 11 counsel has no further obligations, unless, upon review, 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). Robinson has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ PATRICK IRVINE, Presiding Judge /s/ ______________________________ DONN KESSLER, Judge 12
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