State v. Smith ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DAVID ALLEN SMITH, Appellant.
No. 1 CA-CR 13-0546
FILED 05-27-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-109719-001
The Honorable Roger E. Brodman, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
STATE v. SMITH
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.
J O N E S, Judge:
¶1 Defendant David Allen Smith timely appeals his conviction
and sentence for possession or use of dangerous drugs, and possession of
drug paraphernalia. Smith’s defense counsel has searched the record on
appeal and asserts having found no arguable question of law that was not
frivolous. In accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel asks this
Court to search the record for fundamental error. Smith was given the
opportunity to file a supplemental brief in propria persona, and has elected
not to do so. After reviewing the record, we find no error and therefore
affirm Smith’s conviction and sentence.
Background 1
¶2 The facts of this case began as an undercover investigation of
stolen go-carts (carts) conducted by the City of Glendale. On the morning
of November 28, 2011, a used car business reported a break-in and theft of
two carts to police. An undercover investigation conducted by the
Glendale Police Department (GPD) followed. On February 10, 2012, the
GPD observed Smith driving what looked to be one of the stolen carts.
The GPD took photos of Smith driving the cart, initiated a conversation
with Smith to gather information about the vehicle, and expressed interest
in purchasing the cart. After Smith indicated he wanted to sell the cart to
the undercover officer, the GPD then emailed the owner of the cart the
photo to ascertain if the cart was one of those reported stolen. When the
owner reported to the GPD he was almost certain the cart was the stolen
item, the GPD planned an operation to purchase the cart from Smith. An
undercover officer then approached Smith to purchase the cart. Smith
1 We review the facts in the light most favorable to upholding Smith’s
conviction and resolve all reasonable inferences against Smith. State v.
Cox, 214 Ariz. 518, 519, ¶ 2, 155 P.3d 357, 358 (App. 2007) (citing State v.
Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005)).
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STATE v. SMITH
Decision of the Court
sold the cart to the detective at which time a team of officers took Smith
into custody.
¶3 Once Smith was in police custody, the GPD conducted an
inventory search of Smith’s wallet and found a clear plastic bag with a
crystal like substance located in the credit card portion of the wallet. The
GPD then field tested the substance which indicated the substance was
methamphetamine. Smith admitted to the GPD, and later during trial, the
methamphetamine belonged to him.
¶4 The Maricopa County Attorney’s Office charged Smith with
trafficking in stolen property in the second degree, a class 3 felony;
possession or use of a dangerous drug, a class 4 felony; and possession of
drug paraphernalia, a class 6 felony. After a six-day trial, the jury found
Smith not guilty of trafficking in stolen property, but guilty of possession
or use of dangerous drugs and possession of drug paraphernalia. See
Ariz. Rev. Stat. (A.R.S.) §§ 13-3407(A)(1) (2014), -3415 (2014). At
sentencing, Smith admitted he had four prior felony convictions. Due to
mitigating factors, the trial court sentenced Smith to 6 years’
imprisonment for the possession of a dangerous drug and 2.25 years’
imprisonment for possession of drug paraphernalia; the sentences were
ordered to be served concurrently. Smith received 81 days of presentence
incarceration credit.
Discussion
¶5 After diligent search of the entire record, Smith’s defense
counsel has advised this Court that he has found no arguable question of
law. We have fully reviewed the record for reversible error, and we find
none. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶6 Substantial evidence exists to support Smith’s conviction
and sentence. Substantial evidence is “such proof that ‘reasonable persons
could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.’” State v. Mathers, 165 Ariz.
64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419,
610 P.2d 51, 53 (1980)). In determining whether sufficient evidence exists
to support a conviction, we view the evidence and all reasonable
inferences in the light most favorable to sustaining the jury’s verdict. State
v. Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005). “We review the
sufficiency of evidence presented at trial only to determine if substantial
evidence exists to support the jury verdict.” Id. at 411, ¶ 6, 103 P.3d at 913.
We find sufficient evidence supports the trial court’s convictions. Law
enforcement officials found methamphetamine in Smith’s possession, and
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STATE v. SMITH
Decision of the Court
Smith admitted to law enforcement officers the substance belonged to
him. Moreover, Smith testified during trial he was in possession of the
methamphetamine acquired by law enforcement officials. Therefore, we
affirm Smith’s conviction and sentence.
¶7 After the filing of this decision, defense counsel is no longer
obligated to represent Smith in this appeal. Defense counsel need do no
more than inform Smith of the outcome of this appeal and his future
options, unless upon review defense counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶8 Smith has thirty days from the date of this decision to
proceed with an in propria persona petition for review, if he so chooses. See
Ariz. R. Crim. P. 31.19(a). Upon our own motion, we also grant Smith
thirty days from the date of this decision to file an in propria persona
motion for reconsideration.
Conclusion
¶9 We affirm Smith’s conviction and sentence.
:gsh
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