State v. Cotten

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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: 07/12/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JOSEPH KEN COTTEN, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0523 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2009-1244 The Honorable Rick A. Williams, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman D O W N I E, Judge ¶1 Joseph Ken Cotten ( defendant ) appeals his conviction for promoting prison contraband, a class 5 felony, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-2505. 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 searched the record, found no arguable question of law, and 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 the opportunity to file a supplemental brief in propria persona, but he has not done so. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). FACTS AND PROCEDURAL HISTORY ¶2 a On November 18, 2009, defendant was standing trial in Mohave County defendant s corrections defendant girlfriend officer instead corrections courtroom. threw told he had a court something defendant clenched officer During his to at spit teeth and swallowed it. recess, after defendant, the jaw. object He After out; told the a the officer walked away, defendant removed the object from his mouth and tried to shove it down his pants. ¶3 Corrections nothing. at. officers searched defendant, but found Deputy Morrison asked defendant where the item was Defendant responded that he didn t have it and that he ditched it. After court ended for the day, officers again 2 searched defendant, but found nothing. They placed defendant in a solitary dry cell, where he could not flush any contraband down the toilet. Deputy Director Brown testified defendant sprinkle a substance in the toilet. he saw When officers returned to the cell, they found tobacco in the toilet. ¶4 prison Defendant contraband, was a indicted class 5 for one felony. count A jury of promoting trial ensued. After the State s case-in-chief, defendant moved for a directed verdict pursuant Procedure. The defendant guilty. having two prior to court Rule 20, denied Arizona the Rules motion. of The Criminal jury found Before sentencing, defendant stipulated to felony convictions. The court sentenced defendant to a slightly mitigated consecutive sentence of 4.5 years. This timely appeal followed. DISCUSSION ¶5 We have read and considered the brief submitted by defense counsel and have reviewed the entire record. Ariz. at 300, 451 P.2d at 881. Leon, 104 We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Defendant was represented by counsel at all critical phases of the proceedings. properly impaneled and instructed. 3 The jury was The jury instructions were consistent with the offense charged. The record reflects no irregularity in the deliberation process. ¶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. Crim. P. 20. Substantial evidence is such Ariz. R. proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. (1990) State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (citations insufficiency of omitted). the Reversible evidence occurs only error where based there is on a complete absence 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, including eyewitnesses to the offense, video of the incident, photographs of the tobacco, and incriminating statements made by defendant. Although the officers did not test, smell, or collect the substance, Officer Kitchen testified it was very, very obvious it was tobacco, based on his experience with loose leaf tobacco at the jail. Evidence was presented that tobacco is prohibited at the jail and is considered contraband because it can be used as a commodity to strong arm other inmates. 4 Based on the evidence presented at trial, a reasonable jury could have found defendant guilty of the charged offense. CONCLUSION ¶8 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 review. to the Arizona Supreme Court by petition for 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/ DIANE M. JOHNSEN, Presiding Judge /s/ JON W. THOMPSON, Judge 5

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