STATE v. FARRINGTON

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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. DESMON FARRINGTON, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 08/28/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0445 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-005426-015 The Honorable Robert L. Gottsfield, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Tyrone Mitchell Attorney for Appellant Phoenix H A L L, Judge ¶1 Desmon Farrington (defendant) convictions and the sentences imposed. appeals from his For the reasons set forth below, we affirm. ¶2 Defendant's appellate counsel 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 a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has done, raising one issue. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). ¶4 On indictment felony January with offenses) one 25, count (Count 2010, defendant conspiracy 1), a class (to two was commit felony; charged 14 by separate one count assisting in a criminal street gang (Count 2), a class three felony; one count money laundering (Count 3), a class three felony; and one count possession of dangerous drugs for sale 2 (Count 58), a class two felony.1 trial court granted (conspiracy) renumbered and the the On the first day of trial, the State s 3 (money counts as motion to laundering). follows: dismiss The Count One - Counts court 1 then assisting a criminal street gang and Count 2 - possession of dangerous drugs for sale. ¶5 the The following evidence was presented at trial. early afternoon of September 28, 2009, while During conducting routine patrol, Officers Francisco Banuelos and Timothy Thiebaut of the Phoenix Police Department observed walking near the middle of the street. three individuals The individuals failed to move out of the street to allow the marked police unit to pass. The officers then attempted to make contact with the individuals. identified One as of the defendant, individuals, began to who run. subsequently Officer was Banuelos testified that he observed defendant extend his right arm, and it appeared that he was throwing something. The officers placed defendant under arrest and, while searching his person incident to the arrest, the officers found $510 and a pack of cigarettes. ¶6 Officers Banuelos and Thiebaut also directed other officers who had arrived at the scene to search the area that 1 The indictment contained numerous other counts against other individuals that are not relevant to the issues on appeal. 3 defendant was observed throwing something. The officers searching the area found three glass vials, with two of those vials containing a brown or yellowish transparent fluid. The officers also seized a glass pipe that was located in the same area. ¶7 At trial, a forensic scientist for the City of Phoenix Police Department testified that he tested the substance contained in the vials and determined that it was Phencyclidine (PCP). He also testified that it was a usable amount. Thiebaut brown explained cigarettes that PCP is like those typically found on smoked Officer using defendant s long person. Finally, the State presented evidence through the testimony of eight police officers that defendant has repeatedly been identified by the police as a gang member through several of the statutory criteria, including gang-related clothing, a tattoo identifying his gang allegiance ( WSC signifying West Side Crips), and a self-identified gang name (Dogman 1). ¶8 After a six-day trial, the jury found defendant guilty as charged. The jury further found two aggravating factors: defendant is a gang member and the offenses were committed with the intent to promote, further or assist criminal conduct by a street gang. At sentencing, defendant admitted that he had four prior felony convictions. The trial court sentenced defendant 4 to a term of 12.5 years imprisonment on Count 1 and a term of 15.5 years imprisonment on Count 2, to be served concurrently. ¶9 On appeal, defendant argues there was insufficient evidence to prove that he was assisting a criminal street gang. He likewise contends there was insufficient evidence to prove he possessed the PCP for sale, rather than personal use. ¶10 We review determining whether the sufficiency substantial of evidence the evidence supports the by jury s finding and we view the facts in the light most favorable to upholding the verdicts. ¶ 24, 224 P.3d 192, State v. Kuhs, 223 Ariz. 376, 382, 198 (2010). Substantial evidence is adequate proof that defendant was guilty beyond a reasonable doubt. Id. We will set aside a jury verdict for insufficiency of the evidence only when it is clear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). ¶11 street Defendant gang. A was person convicted commits of assisting the offense in of a criminal assisting a criminal street gang by committing any offense at the direction of or in association with any criminal street gang. Stat. § 13-2321(A)(1) (2010). Ariz. Rev. Use of a common name or common identifying sign or symbol is admissible to prove membership in a criminal street gang. A.R.S. § 13-2321(E). 5 Here, the State presented evidence from which the jury could reasonably have concluded that defendant was a assisting in a criminal street gang. gang member and was First, several officers testified that defendant had repeatedly been identified during previous encounters with the police as a gang member through his gang-related clothing, tattoo, and self-identified gang name. Second, at the time of his arrest, defendant was in the company of two other gang members and was in possession of drugs. ¶12 Defendant was also dangerous drugs for sale. convicted of possession of To prove this charge, the State was required to show that defendant possessed a narcotic drug for sale. A.R.S. § 13-3408(A)(2) (2010). There was sufficient evidence presented at trial to support the jury s conviction: (1) officers testified that they observed defendant throwing objects; (2) the subsequently retrieved objects were vials of PCP; (3) officers testified that the PCP, in combination with the $510 and the cigarettes, possessed the drug for sale. demonstrated that defendant We therefore conclude there was sufficient evidence to convict defendant of both counts. ¶13 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. We find none. See Leon, 104 All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to 6 speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offenses for which he was convicted. ¶14 After obligations appeal have the pertaining ended. filing to of this defendant's Counsel need decision, counsel s representation do no more than in this 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 review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant 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. Accordingly, defendant's convictions and sentences are affirmed. _/s/____________________________ PHILIP HALL, Judge CONCURRING: _/s/__________________________________ MAURICE PORTLEY, Presiding Judge _/s/__________________________________ DIANE M. JOHNSEN, Judge 7

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