STATE v. GAULDIN

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 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. SHON DERAY GAULDIN Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 6/4/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0500 DEPARTMENT D MEMORANDUM DECISION (Not for PublicationRule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2011-146172-001 DT The Honorable Bruce R. Cohen, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Shon Deray Gauldin (defendant), after searching the entire record, has been unable to discover any arguable questions of law and has filed a brief requesting this court conduct an Anders review of the record. Defendant has been afforded an opportunity to file a supplemental brief in propria persona, and he has done so. ¶2 In 2011, a police officer witnessed defendant and another man engaged in what appeared to be a hand-to-hand drug transaction. As the officer approached, he noticed that defendant clenched his left fist as if holding a small object. A second officer defendant. pocket. arrived Defendant put at the scene the clenched and fist walked into toward his pants When he removed his hand, it was in a natural, open position. The rectangular officer object and performed two a pat-down small, and pebble-like felt one objects. Defendant claimed that the pocket held only his cell phone. The officer reached into defendant s pocket and discovered a cell phone and two rocks of crack cocaine. ¶3 The state charged defendant with one count possession or use of narcotic drugs, a class 4 felony. of At trial, defendant testified that he had borrowed the pants from a friend earlier that day. He claimed that he had no knowledge of the cocaine in his pocket when stopped by the officers and that it did not belong to him. 2 ¶4 A jury admitted to convicted three defendant prior felony category 3 repetitive offender. 13-703(C) (2010). The as charged. convictions, Defendant making him a See Ariz. Rev. Stat. (A.R.S.) § court sentenced defendant to a presumptive term of 10 years in prison with credit for 278 days of presentence incarceration. ¶5 Defendant timely appealed. Defendant makes three arguments in his supplemental brief. First, he claims he received ineffective assistance of counsel during trial proceedings. We do not consider such claims on direct appeal and thus do not consider this argument. See State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007) (ineffective assistance of counsel claims only appropriate Second, defendant structural error in Rule 32 argues when that it post-conviction the omitted trial proceedings). court the committed definition intentionally from the final jury instructions. of A reasonable doubt instruction that erroneously states the burden of proof is structural error. (1993). Sullivan v. Louisiana, 508 U.S. 275, 281-82 However, the offense with which defendant was charged here requires that the he knowingly . . . possess or use a narcotic drug. 1 A.R.S. § 13-3408(A) 1 (2010). Because the The trial court correctly instructed the jury on the definition of knowingly as required by the statute. 3 offense does not require that the act be intentional, we find no error in the trial court s instruction. ¶6 Finally, defendant asserts that the trial court erred in denying his motion to suppress drug evidence, which he argues was obtained in violation of the Fourth Amendment to the United States Constitution and Article 2, Section 8 of the Arizona Constitution. Defendant testified at trial that he consented to the pat-down. The United States Supreme Court held in Minnesota v. Dickerson that an officer may lawfully seize contraband during a pat-down if its contour or mass makes its identity immediately officer apparent. testified 508 that U.S. based 366, on 375-76 his (1993). training The and the circumstances, he knew during the pat-down that the pebbles in defendant s pocket were rocks of crack cocaine. Accordingly, we find no error in the trial court s denial of defendant s motion to suppress evidence. ¶7 We defendant s have brief read and and have considered searched counsel s the entire brief and record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We All find none. of the proceedings were conducted compliance with the Arizona Rules of Criminal Procedure. in So far as the record reveals, defendant was adequately represented by counsel at all stages of the proceedings, imposed was within the statutory limits. 4 and the sentence Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), defendant s counsel s obligations in this appeal are at an end. Defendant has thirty days from the date of this decision in which to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. ¶8 We affirm the conviction and sentence. /s/ ________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ___________________________________ DONN KESSLER, Judge 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.