State v. Madsen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
NELS LESLIE MADSEN, Appellant.
No. 1 CA-CR 15-0478
FILED 03-22-2016
Appeal from the Superior Court in Mohave County
No. S8015CR201400538
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. MADSEN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following Nels Leslie Madsen's convictions of possession of dangerous
drugs (methamphetamine), a Class 4 felony, and possession of drug
paraphernalia, a Class 6 felony. Madsen's counsel has searched the record
on appeal and found no arguable question of law that is not frivolous. See
Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196
Ariz. 530 (App. 1999). Madsen was given the opportunity to file a
supplemental brief but did not do so. Counsel now asks this court to search
the record for fundamental error. After reviewing the entire record, we
affirm Madsen's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 Officers responded at Madsen's residence after receiving a
domestic violence call from Madsen's daughter.1 After officers arrived,
Madsen's daughter gave them a bag of drugs she said she saw Madsen put
under his mattress. She also told officers she suspected there was drug
paraphernalia in the garage. After seeing the paraphernalia and speaking
further with Madsen's daughter, officers obtained and executed a search
warrant and seized a stone slab, a plastic bag with residue that tested
positive for methamphetamine, a pipe, foil, burnt pen tubes, a plastic gift
card with residue and a spoon with burnt residue.
¶3 A jury convicted Madsen of possession of dangerous drugs
(methamphetamine) and possession of drug paraphernalia
(methamphetamine). The superior court sentenced him to concurrent
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Madsen.
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
2
STATE v. MADSEN
Decision of the Court
sentences of incarceration, the longest of which is six years, with 99 days of
presentence incarceration credit.
¶4 Madsen timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1) (2016), 13-4031 (2016) and -4033(A)(1)
(2016).2
DISCUSSION
¶5 The record reflects Madsen received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.
Pursuant to Arizona Rule of Evidence 609, the court held a hearing on
Madsen's prior convictions and issued a proper order concerning how they
were to be referred to at trial. It did not conduct a voluntariness hearing;
however, the record did not suggest a question about the voluntariness of
Madsen's statements to police. See State v. Smith, 114 Ariz. 415, 419 (1977);
State v. Finn, 111 Ariz. 271, 275 (1974).
¶6 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members with one alternate. The court properly instructed the jury
on the elements of the charges. The key instructions concerning burden of
proof, presumption of innocence, reasonable doubt, and the necessity of a
unanimous verdict were properly given. The jury returned a unanimous
verdict. The court received and considered a presentence report, addressed
its contents during the sentencing hearing and imposed legal sentences for
the crimes of which Madsen was convicted.
CONCLUSION
¶7 We have reviewed the entire record for reversible error and
find none, and therefore affirm the convictions and resulting sentences. See
Leon, 104 Ariz. at 300.
¶8 After the filing of this decision, defense counsel's obligations
pertaining to Madsen's representation in this appeal have ended. Defense
counsel need do no more than inform Madsen of the outcome of this appeal
and his future options, unless, upon review, counsel finds "an issue
appropriate for submission" to the Arizona Supreme Court by petition for
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
3
STATE v. MADSEN
Decision of the Court
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the court's
own motion, Madsen has 30 days from the date of this decision to proceed,
if he wishes, with a pro per motion for reconsideration. Madsen has 30 days
from the date of this decision to proceed, if he wishes, with a pro per petition
for review.
:RT
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