State v. Acree

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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. ) ) JULIE A. ACREE, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 12/16/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CR 09-0867 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-118574-001 SE The Honorable Michael W. Kemp, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Katia Mehu, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Edith M. Lucero, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Julie A. Acree appeals from her convictions and sentences for possession of marijuana and possession of drug paraphernalia, both class one misdemeanors. For the following reasons, we affirm the convictions and sentences. ¶2 On appeal, we view the favorable to sustaining the verdict. facts in the light most See State v. Haight-Gyuro, 218 Ariz. 356, 357, ¶ 2, 186 P.3d 33, 34 (App. 2008). On July 29, 2008, Acree s vehicle was parked on the side of a road near Laveen and the Gila River Indian Reservation. Police Officer Duran saw her vehicle parked in a no trespassing zone, and stopped to investigate. several vehicle. or large boulders As he approached the vehicle, he saw and sticks in the back seat of the Concerned that she may have been violating reservation federal law by removing items from reservation land, he questioned Acree, called for a ranger to come and look at the items, and asked for permission to search Acree s vehicle, to which she agreed. ¶3 The search revealed two bags of mushrooms that Duran suspected to be hallucinogenic. Acree then asked if she could smoke and reached for her purse. Duran replied that he needed to search the purse to make sure there s nothing in your purse that s going to hurt me or [the ranger] that s [e]n route. Inside the purse, Duran found a crumpled tissue with green leafy flaking on it that he believed to be marijuana. 1 1 At trial, a criminalist confirmed that the substance was .68 grams of marijuana, a usable amount. 2 ¶4 Acree was charged with possession or use of marijuana and possession of drug paraphernalia, both class six felonies. The State later moved to amend the charges as class one misdemeanors, and the case proceeded to a bench trial. ¶5 At the close of the State s evidence, Acree moved for judgment of acquittal based on an insufficiency of evidence showing intent to possess; the trial court denied the motion. At the conclusion of the trial, the court ruled as follows: All right. [sic] Based upon the testimony that I ve heard, the testimony of Officer Duran, I do find the testimony is credible. Defendant was alone. She was the only one that had access to this vehicle, at least at this point in time. The purse was hers. The marijuana was found on top of the purse. I do find that there is sufficient evidence that she knew that the marijuana was in her purse. I do find her guilty of Count 1, possession of marijuana. Marijuana was in a tissue, which technically drug paraphernalia. So I find her guilty as well of Count 2. is do I find the State has met its burden beyond a reasonable doubt. Defendant is guilty of both Counts 1 and 2. ¶6 probation Acree was and this sentenced timely to appeal one year followed. of unsupervised Acree s sole argument on appeal is that the trial court erred by applying the wrong legal standard to the burden of proof. 3 ¶7 at Because Acree did not object to the standard of proof trial, we review only for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail establish under that: this standard (1) error of review, occurred; a defendant (2) the error must is fundamental; and (3) the error caused the defendant prejudice. Id. at 568, ¶¶ 23-26, 115 P.3d at 608. Error is fundamental if it goes to the foundation of [the] case, takes away a right that is essential to [the] defense, and is of such magnitude that [the defendant] could not have received a fair trial. at ¶ 24. We find no error here, much less fundamental error. ¶8 Judges Id. are presumed to know and follow the law. Fuentes v. Fuentes, 209 Ariz. 51, 58, ¶ 32, 97 P.3d 876, 883 (App. 2004). We do not evaluate a judge s single sentence out of context, but consider court comments as a whole. See State v. Webb, 164 Ariz. 348, 357, 793 P.2d 105, 114 (App. 1990) (finding that challenged jury instructions must be read in the context of the entire collection of instructions). ¶9 Acree s contention, based on the trial court s use of the word sufficient, is unfounded. defines sufficient as follows: Black s Law Dictionary Adequate; of such quality, number, force, or value as is necessary for a given purpose. Black s Law Dictionary 1474 (8th ed. 2004). In other words, sufficient is an adjective of measurement as compared to a 4 certain standard; it is not the standard itself. Indeed, our supreme court has used similar language in describing the type of evidence required to support a criminal conviction. See, e.g., State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 (2007) ( Substantial evidence is evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt. ) (emphasis added) (internal quotations omitted). ¶10 Accordingly, we affirm Acree s convictions and sentences. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ _________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ _________________________________ JOHN C. GEMMILL, Judge 5

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