State v. Terry

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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. ) ) DAMIEN DONTE TERRY, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 03/23/2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0640 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-111509-001 DT The Honorable Julie P. Newell, Judge Pro Tem AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 conviction Damien Donte Terry ( defendant ) timely appeals his for possession or use of marijuana, a class 1 misdemeanor, pursuant to Arizona Revised Statutes sections 13-702(G) and -3405 (Supp. 2009). ( A.R.S. ) Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has record and found no arguable question of law. searched the Counsel requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona, but he did not do so. On appeal, we view the to evidence conviction. in the light most favorable sustaining the State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 Officer At approximately A.B. and his 5:00 partner a.m. were on on February routine 13, patrol 2009, in an industrial area and saw a group of men standing near a parked vehicle with smoke surrounding them. As they drove past, Officer A.B. smelled marijuana through the slightly cracked windows of the patrol parked approximately car. The officers twenty feet away. turned As around Officer and A.B. approached a man later identified as defendant, the smell of marijuana grew stronger. On the hood of the parked car, Officer A.B. saw a pamphlet with a green, leafy substance sitting on it that he suspected to be marijuana. 2 Officer A.B. made eye contact with defendant and watched him grab the pamphlet, turn his arm to the side, and dump the substance on the ground. Officer A.B. saw the substance fall from the pamphlet to the ground; he retrieved a clump of the green, leafy substance on the ground. It smelled like . . . marijuana, and the officer impounded it. ¶3 Defendant was charged marijuana, a class 6 felony.1 with possession or use of The trial court later granted the State s motion to designate the charge a class 1 misdemeanor.2 The court also granted defendant s motion to preclude evidence of a prior conviction, but denied his request that it take judicial notice of the time of sunrise on February 13, 2009. ¶4 Defendant waived a jury trial, and a one-day bench trial was held. The State presented three witnesses; defendant cross-examined each. acquittal pursuant Defendant then moved for a judgment of to Arizona Rule of Criminal Procedure ( Rule ) 20, asserting the State failed to prove possession of the green, leafy substance from the hood to what was recovered. The motion 1 At dismissed. was denied. defendant s The defense arraignment, 2 two called other one witness; charges were The motion also requested a bench trial due to the nature of the charge. See Derendal v. Griffith, 209 Ariz. 416, 422, ¶ 21, 104 P.3d 147, 153 (2005) (finding a rebuttable presumption that no jury trial is necessary for a misdemeanor offense punishable by no more than six months of incarceration). Defendant did not file a response. 3 defendant did not testify. At defendant s The court found defendant guilty. request, imposed the a court six-month moved term immediately of to sentencing and unsupervised probation. See Ariz. R. Crim. P. ( Rule ) 26.3(a)(1) (allowing a defendant to request that his sentence be pronounced earlier). DISCUSSION ¶5 We have read and considered the briefs submitted by defendant and his counsel and have reviewed the entire record. State v. Leon, 104 Ariz. at 300, 451 P.2d at 881. fundamental error. We find no All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. present at all critical phases of the Defendant was proceedings and represented by counsel. ¶6 The trial court properly denied defendant s Rule 20 motion. A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. Substantial evidence is such proof that reasonable Rule 20. persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (citation omitted). evidence Reversible occurs only error where based there 4 on is insufficiency a complete of absence the of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). ¶7 The State presented substantial evidence of guilt. Officer A.B. testified he smelled marijuana as the patrol car passed by defendant and that he saw defendant throw a green, leafy substance on the ground. of the substance, which Officer A.B. retrieved a clump testing revealed to be marijuana. Defendant s Rule 20 motion was based on his belief that the lighting conditions at the time prevented actually see[ing] what he says he saw. Officer A.B. from Officer A.B., however, testified it was light . . . I could see well enough to not use my flashlight and not use my spotlight. A defense witness also testified there were four utility poles with lights that would illuminate the area. On these facts, the trier of fact could have found Officer A.B. s testimony to be credible. ¶8 Even assuming that defendant had a right to a jury trial on the misdemeanor charge, the trial court obtained an appropriate waiver.3 Before accepting a jury waiver, the court shall address the defendant personally, advise the defendant of the right to a jury trial and ascertain that the waiver is knowing, voluntary, and intelligent. 3 Rule 18.1(b)(1). Whether Acknowledging it s kind of a strange definition of when you re eligible for a trial or not eligible for a trial, the court engaged in a colloquy to ensure it was totally covered on this. 5 a waiver is made knowingly circumstances of each case. will depend on the unique State v. Butrick, 113 Ariz. 563, 566, 558 P.2d 908, 911 (1976) (citation omitted). The pivotal consideration is the requirement that the defendant understand that the facts of the case will be determined by a judge and not a jury. (1991) State v. Conroy, 168 Ariz. 373, 376, 814 P.2d 330, 333 (citations understands defendant the omitted). right personally To waived, and ensure the receive that a court must address an defendant affirmative the response. Butrick, 113 Ariz. at 566, 558 P.2d at 911. ¶9 Defendant was represented by counsel. The judge directly questioned defendant, and he answered each question. The court determined that defendant had signed a written waiver, discussed it with his attorney, understood the form, and had no additional questions. threatened or coerced promises made. Defendant him to stated sign the no one waiver, had nor forced, were any Only then did the court find the waiver was voluntarily, knowingly, and intelligently made. ¶10 Finally, the trial court properly refused to take judicial notice of the time of sunrise on February 13, 2009. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination 6 by resort to sources whose accuracy 201(b). cannot reasonably be questioned. Ariz. Evid. A court shall take judicial notice if requested by a party and supplied with the necessary information. ¶11 R. Id. 201(d). Defendant asked the court to take judicial notice of documents from the U.S. Naval Observatory showing that civil twilight was artificial at 6:49 a.m. illumination on is February normally 13, 2009, required outdoor activities occurring before that time. meaning on ordinary The proffered document was not certified and came from an internet website. The State objected because a printout from a website might not be what it purports to be, and the document was not selfauthenticating. questionable, the Because the authenticity of the documents was trial court appropriately declined to take judicial notice.4 CONCLUSION ¶12 We affirm defendant s conviction and sentence. Counsel s obligations pertaining to defendant s representation in this appeal have ended. Counsel need do nothing more than inform defendant of the status 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 4 Over the State s objection, the court allowed Officer A.B. to read the sunrise data and description of civil twilight into the record. Defendant then cross-examined Officer A.B. about the lighting conditions that morning. 7 review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 8

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