State v. Amey ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JAVIER ORLANDO AMEY, Appellant.
No. 1 CA-CR 18-0828
FILED 10-15-2019
Appeal from the Superior Court in Maricopa County
No. CR2017-000344-001
The Honorable George H. Foster, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
STATE v. AMEY
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
J O N E S, Judge:
¶1 Javier Amey appeals his conviction and sentence for one
count of possession of the narcotic drug oxycodone. After searching the
entire record, Amey’s defense counsel identified no arguable question of
law that is not frivolous. Therefore, in accordance with Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel
asked this Court to search the record for fundamental error. Amey was
granted an opportunity to file a supplemental brief in propria persona and
did not do so. After reviewing the entire record, we find no error.
Accordingly, Amey’s conviction and sentence is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 On May 30, 2017, a Phoenix Police Department detective
initiated a routine traffic stop of a vehicle he observed making an illegal
turn.1 After a short pursuit of the fleeing vehicle, the passenger, later
identified as Amey, was lawfully arrested. During a search incident to
arrest, another detective found four pills in the coin pocket of the shorts
Amey was wearing underneath a pair of pants. Using a TruNarc Laser,2
the detectives’ preliminary investigation identified the pills as oxycodone.
1 “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).
2 The TruNarc laser works by sending a beam of light into a substance,
and analyzing the substance’s scattered spectrum of light. Every chemical
compound has a unique spectrum of light, and thus, the TruNarc matches
the substance’s light spectrum to a database of known drugs.
2
STATE v. AMEY
Decision of the Court
Subsequent testing3 confirmed the pills were “Oxycodone in a usable
condition”— a narcotic drug under Arizona law. A.R.S. §§ 13-3401(20)(ttt),
(21)(dd). Amey did not present any evidence suggesting he had a
prescription for this substance.
¶3 After Amey moved unsuccessfully for judgment of acquittal
pursuant to Arizona Rule of Criminal Procedure 20(a), the jury convicted
Amey of one count of possession of narcotic drugs. The trial court
suspended imposition of sentence and placed Amey on supervised
probation for a term of two years. Amey timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1),4 13-4031, and -4033(A)(1).
DISCUSSION
¶4 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). A person is guilty of narcotic drug possession under
A.R.S. § 13-3408(A)(1) if the individual “knowingly . . . possess[es] or
use[es] a narcotic drug.” The record contains sufficient evidence upon
which the jury could determine beyond a reasonable doubt that Amey was
guilty of the charged offense.
¶5 All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Amey
was present for and represented by counsel at all critical stages of the
proceedings. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at
critical stages) (citations omitted); State v. Bohn, 116 Ariz. 500, 503 (1977)
(right to be present at critical stages). The jury was properly comprised of
eight jurors, and the record shows no evidence of jury misconduct. See
A.R.S. § 21-102(B); Ariz. R. Crim. P. 18.1(a). The trial court properly
instructed the jury on the elements of the charged offenses, the State’s
burden of proof, and Amey’s presumption of innocence. At sentencing,
Amey was given an opportunity to speak, and the court stated upon the
record the evidence and materials it considered and the factors it found in
imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10. Additionally, the
3 The Phoenix Police Department’s Crime Laboratory’s used a Gas
Chromatograph mass spectrometer, a device that separates the components
of a chemical compound to determine the materials within the substance.
4 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
3
STATE v. AMEY
Decision of the Court
sentence imposed was within the statutory limits. See A.R.S. § 13-3408;
A.R.S. § 13-902.
CONCLUSION
¶6 Amey’s conviction and sentence are affirmed.
¶7 Defense counsel’s obligations pertaining to Amey’s
representation in this appeal have ended. Defense counsel need do no more
than inform Amey of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).
¶8 Amey has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.21. Upon the Court’s own motion, we also grant Amey thirty
days from the date of this decision to file an in propria persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.
AMY M. WOOD • Clerk of the Court
FILED: AA
4