State v. Johnson ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DARRYL D. JOHNSON, Appellant.
No. 1 CA-CR 13-0738
FILED 4-21-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-116636-001
The Honorable Brian Kaiser, 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. JOHNSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Defendant Darryl D. Johnson (“Johnson”) appeals from his
conviction and sentence for one count of possession of a dangerous drug
for sale in an amount over the statutory threshold, a class two felony.
Johnson’s counsel filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), advising this Court
that after a search of the entire appellate record, no arguable ground exists
for reversal. Johnson was granted leave to file a supplemental brief in
propria persona, and did so on February 19, 2015.
¶2 Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031 and 13-4033(A)(1) (West 2015).1 Finding no reversible
error, we affirm.
Facts and Procedural History2
¶3 On March 26, 2012, Johnson, accompanied by his girlfriend,
arrived at the drive-thru window of a Walgreens Pharmacy and presented
a prescription, written for his girlfriend, for 120, thirty-milligram
Oxycodone pills. Suspecting the prescription was fraudulent, the
pharmacist took the prescription, and instructed Johnson to return in half
1 Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have
occurred.
2 We view the evidence in the light most favorable to sustaining the
convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293
(1989).
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STATE v. JOHNSON
Decision of the Court
an hour. The pharmacist verified the prescription was fraudulent with the
prescribing doctor and alerted police.
¶4 When Johnson arrived back at the Walgreens, two police
officers made contact with Johnson and his girlfriend. After separately
interviewing Johnson and his girlfriend about the fraudulent prescription,
the officers placed both Johnson and his girlfriend under arrest. An officer
searched Johnson’s vehicle and discovered a large amount of
methamphetamine in a pink bag in the trunk. Johnson was then
transported to the jail for further questioning.
¶5 At the jail, Johnson was interviewed by Detective Dersa about
the false prescription and the methamphetamine. During the interview,
Johnson told Detective Dersa about his involvement in the trafficking of
drugs from Mexico into various states throughout the country. Johnson
also explained that he had been fronted the methamphetamine and could
give Detective Dersa information about a very large drug deal occurring
the next morning. Based on the detail of Johnson’s account, Detective Dersa
believed he was relaying accurate information; however, because Johnson
refused to give any specifics about the drug deal occurring the next
morning without being released, Detective Dersa ended the interview and
left Johnson in jail.
¶6 On April 2, 2012, a Maricopa County Grand Jury indicted
Johnson, charging him with one count of illegally conducting an enterprise,
a class three felony; one count of attempted illegally obtaining or procuring
administration of narcotic drugs, a class four felony; and one count of
possession of a dangerous drug for sale in an amount over the statutory
threshold, a class two felony.
¶7 At trial, Johnson was convicted of one count of possession of
a dangerous drug for sale in an amount over the statutory threshold, a class
two felony. He was sentenced to eight years flat time in prison with 162
days credit for time served prior to sentencing.
Discussion
¶8 We have read and considered counsel’s brief, carefully
searched the entire record for reversible error and found none. Clark, 196
Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure and substantial evidence
supported the finding of guilt. Johnson was present and represented by
counsel at all critical stages of the proceedings. At sentencing, Johnson and
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STATE v. JOHNSON
Decision of the Court
his counsel were given an opportunity to speak and the court imposed a
legal sentence.
¶9 In his pro per brief, Johnson claims that the clerk’s
audio/visual (“AV”) recordings of the proceedings and the transcript on
appeal have been altered. Specifically, Johnson claims that the clerk’s AV
recording and the transcript of the jury polling should reflect the fact that
Juror No. 5 was questioned twice but never answered. Thus, although there
were eight jurors present, only seven jurors gave a guilty verdict when
polled. Johnson contends that the transcript and AV recording in the
record, which shows that eight jurors were polled and all eight agreed on
their guilty verdict, is a false, “tampered” version of the original, true
record. Johnson further claims he had a forensic analysis performed on the
clerk’s AV recording that showed the recording was altered.
¶10 Based on his claim of the “altered” record, Johnson asserts
that the trial court erred in entering a judgment of guilt because the record
does not show there was a unanimous verdict from eight jurors. Ariz.
Const., art. 2, § 23 (providing that in Arizona, an eight-person jury is
required for all criminal cases in which the sentence authorized by law is
less than thirty years); A.R.S. § 21-102(B) (same); State v. Thorne, 193 Ariz.
137, 138 (App. 1997) (same).
¶11 On appeal, our review is limited to the record before us. City
of Tucson v. Ruelas, 19 Ariz. App. 530, 531 (1973). We can only consider those
matters which are presented to us. McKinley v. Greyhound Park, 5 Ariz. App.
93, 94 (1967). It is an appellant’s duty to include any portions of the record
he believes is necessary to resolve his appeal. Rancho Pescado, Inc. v. Nw.
Mut. Life Ins. Co., 140 Ariz. 174, 189 (App. 1984). “[W]here an incomplete
record is presented to an appellate court, the missing portions of that record
are to be presumed to support the action of the trial court.” Cullison v. City
of Peoria, 120 Ariz. 165, 168 n.2 (1978).
¶12 Johnson fails to include an “unaltered” version of the AV
recordings in the record on appeal, even though he admits his defense
counsel had access to an “unaltered” copy of the recording on his iPad.
Johnson also fails to include the forensic report allegedly finding that the
original AV recording had been altered.
¶13 Moreover, in the only records available to us on appeal, both
the clerk’s AV recording and the transcript show that eight jurors were
polled and the guilty verdict was unanimous as to all eight. Initially, ten
jurors were seated. Juror No. 1 was dismissed at the beginning of the first
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STATE v. JOHNSON
Decision of the Court
day of trial, and Juror No. 5 was designated the alternate. After reaching
and delivering their verdict, the record shows that Jurors No. 2, 3, 4, 6, 7, 8,
9, and 10 were polled, and each juror affirmed their guilty verdict.
¶14 Accordingly, Johnson received a unanimous verdict from
eight jurors, and the trial court did not err in entering its judgment of guilt.
Therefore, we affirm Johnson’s conviction and sentence.
¶15 Counsel’s obligations pertaining to Johnson’s representation
in this appeal have ended. Counsel need do nothing more than inform
Johnson 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. State v. Shattuck, 140 Ariz. 582, 584–85 (1984).
Johnson 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.
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