State v. Waters

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KENNETH CHARLES WATERS, Appellant.
No. 1 CA-CR 20-0527
FILED 9-23-2021
Appeal from the Superior Court in Maricopa County
No. CR2016-119672-001
The Honorable Joseph P. Mikitish, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Rena Glitsos
Counsel for Appellant
Kenneth Charles Waters, Globe
Appellant
STATE v. WATERS
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Lawrence F. Winthrop1
joined.
B A I L E Y, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738(1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant
Kenneth Charles Waters filed a brief advising the court that, after searching
the entire record, he is unable to discover any arguable questions of law and
requesting that this court conduct an Anders review. Waters filed a
supplemental brief pro se. For following reasons, we vacate one of Waters’
convictions and sentences for possession of drug paraphernalia. We affirm
his other convictions and sentences.
FACTS AND PROCEDURAL HISTORY 2
¶2 In April 2016, Mesa police officers executed a search warrant
on Waters’ residence. During the search, officers recovered 41 grams of
methamphetamine, glass pipes, a scale, a large amount of cash, and a
sawed-off shotgun.
¶3 Waters admitted to police that he owned the residence and
the methamphetamine found inside, that he sold methamphetamine, and
that his fingerprints were on the shotgun. The state indicted Waters on one
1Judge Lawrence F. Winthrop was a sitting member of this court when the
matter was assigned to this panel of the court. He retired effective June 30,
2021. In accordance with the authority granted by Article 6, Section 3, of the
Arizona Constitution and under Arizona Revised Statutes (“A.R.S.”)
section 12-145, the Chief Justice of the Arizona Supreme Court has
designated Judge Winthrop as a judge pro tempore in the Court of Appeals,
Division One, to participate in resolving cases assigned to this panel during
his term in office.
2On appeal, we view the evidence in the light most favorable to sustaining
the conviction and resolve all reasonable inferences against Waters. See
State v. Karr, 221 Ariz. 319, 320, ¶ 2 (App. 2008).
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STATE v. WATERS
Decision of the Court
count of possession of dangerous drugs for sale, a Class 2 felony (count 1);
one count of misconduct involving weapons, a Class 4 felony (count 2); and
two counts of possession of drug paraphernalia, Class 6 felonies (counts 3
and 4).
¶4 Following a five-day trial in May 2018, the jury convicted
Waters on all counts. Waters, who was released on bond, absconded before
the jury returned its verdict. He was arrested in October 2018, just over four
months after he was convicted, and the trial court sentenced him to 7.5
years’ imprisonment on count one and placed him on probation for the
remaining counts.
DISCUSSION
I. Jurisdiction
¶5 We have an independent obligation “to determine whether
we have jurisdiction over matters on appeal.” State v. Raffaele, 249 Ariz. 474,
478, ¶ 9 (App. 2020). “Our jurisdiction is prescribed by statute and we have
no authority to entertain an appeal over which we do not have jurisdiction.”
State v. Limon, 229 Ariz. 22, 23, ¶ 3 (App. 2011).
¶6 Criminal defendants have a constitutional right to appeal in
all cases. Ariz. Const. art. 2, § 24; accord Raffaele, 249 Ariz. at 478, ¶ 10; State
v. Bolding, 227 Ariz. 82, 87, ¶ 16 (App. 2011). This constitutional right has
been codified by A.R.S. § 13-4033. But a defendant is barred from appealing
a final judgment of conviction “if the defendant’s absence prevents
sentencing from occurring within ninety days after conviction and the
defendant fails to prove by clear and convincing evidence at the time of
sentencing that the absence was involuntary.” A.R.S. § 13-4033(C). The
statute “essentially permit[s] an implied waiver of a non-pleading
defendant’s right to a direct appeal.” Bolding, 227 Ariz. at 87, ¶ 16.
¶7 Before finding a defendant has waived his right to appeal,
“there must first be a finding that the waiver was knowing, voluntary, and
intelligent.” Raffaele, 249 Ariz. at 478, ¶ 12. At a pretrial hearing, the
superior court advised Waters that if his absence prevented the court from
sentencing him within 90 days of his conviction, he may lose his right to
appeal. The record shows that Waters acknowledged his absence was
voluntary when he apologized to the court at his sentencing hearing: “I’m
sorry for taking up the Court’s time, and I’m sorry I didn’t make it back for
deliberations. My lawyer informed me that I might lose, I got scared and
ran.”
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STATE v. WATERS
Decision of the Court
¶8 But it was the state’s burden to show Waters’ absence was
knowing, voluntary and intelligent. See id. at 479, ¶ 13. The state did not
raise the issue at sentencing, and the superior court did not make findings
that Waters waived his right to appeal. See id. at ¶ 14. “A court can infer that
the ‘absence [of a defendant] is voluntary if the defendant had personal
notice of the time of the proceeding, the right to be present at it, and a
warning that the proceeding would go forward in his . . . absence should he
. . . fail to appear.’” Bolding, 227 Ariz. at 88, ¶ 19 (alteration in original)
(quoting Ariz. R. Crim. P. 9.1). We have determined, however, such an
inference is not ours to make for the first time on appeal, “and that the
superior court must make such a finding at the time of sentencing.” Raffaele,
249 Ariz. at 479, ¶ 15. Because the court made no such findings, we
conclude that we have jurisdiction under A.R.S. § 13-4033(A)(1).
II. Waters’ Supplemental Brief
¶9 On appeal, Waters argues the superior court abused its
discretion and the prosecutor withheld exculpatory evidence. 3 We address
his arguments in turn.
¶10 To present his third-party culpability defense, Waters
intended to call J.W. 4 to testify about living in the home with Waters. Waters
argues the superior court erred when it allowed J.W. to invoke the Fifth
Amendment right against self-incrimination outside the presence of the
jury. We review the “court’s decision to excuse a witness asserting the
privilege against self-incrimination for abuse of discretion.” State v. Rosas-
Hernandez, 202 Ariz. 212, 216, ¶ 10 (App. 2002).
¶11 Here, the court held a hearing outside the jury’s presence to
determine the basis and extent of J.W.’s invocation of the Fifth Amendment.
See State v. Maldonado, 181 Ariz. 208, 210 (App. 1994). Waters does not
dispute J.W. validly asserted the Fifth Amendment, but argues that the
3 Waters argues both his trial and appellate counsel were ineffective. We
do not address these claims because “ineffective assistance of counsel
claims are to be brought in Rule 32 proceedings,” and “[a]ny such claims
improvidently raised in a direct appeal . . . will not be addressed by
appellate courts regardless of merit.” State v. Spreitz, 202 Ariz. 1, 3, ¶ 9
(2002). We note “[t]here will be no preclusive effect under Rule 32 by the
mere raising of such issues.” Id.
4Initials are used to protect the victims’ privacy. State v. Maldonado, 206
Ariz. 339, 341, ¶ 2 n.1 (App. 2003).
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STATE v. WATERS
Decision of the Court
invocation should have been communicated to the jury. On this record, the
decision to preclude J.W.’s testimony was not an abuse of discretion. See id.
at 211 n.1 (noting that once the court determines a witness may validly
assert the Fifth Amendment privilege, “that witness may be totally excused
without violating an individual’s Sixth Amendment right[s]”). We also find
no error, let alone fundamental error, in the court’s failure to instruct the
jury that J.W. invoked the Fifth Amendment privilege. See State v. Escalante,
245 Ariz. 135, 138, ¶ 1 (2018) (setting the standard of review when a
defendant fails to object to trial error).
¶12 Waters next contends the superior court erred in denying his
motion for new counsel. But the record on appeal does not include the trial
court’s oral or written ruling on Waters’ motion. “When an incomplete
record is presented to an appellate court, [we] must assume that any
testimony or evidence not included in the record on appeal supported the
action taken by the trial court.” State v. Villalobos, 114 Ariz. 392, 394 (1977).
¶13 Waters further argues the superior court abused its discretion
when it precluded some jury questions and evidence related to the search
warrant. “The trial court is invested with considerable discretion to
determine whether evidence is admissible,” and “[w]e will not disturb a
court’s determination absent an abuse of discretion.” State v. Mills, 196 Ariz.
269, 273, ¶ 18 (App. 1999) (internal quotation marks and citation omitted).
Waters has not shown the court abused its discretion in ruling on the jury
questions and precluding evidence about law enforcement’s basis for
obtaining the search warrant. Furthermore, we find these arguments to be
invited error. During trial, Waters objected to jury questions, including
those about the search warrant. “We will not reverse, even for allegedly
fundamental error, if the defendant invited the error.” State v. Musgrove, 223
Ariz. 164, 167, ¶ 8 (App. 2009).
¶14 Finally, Waters argues the prosecutor withheld exculpatory
evidence. The record contradicts Waters’ argument. The search warrant
that Waters complains was withheld from him, was unsealed and available
to him following the prosecution’s motion. Waters’ claim that J.W. was
given leniency in exchange for providing information which led to the
search warrant is unsupported by the record. As to the remaining evidence
Waters claims was withheld, the record reveals a witness at trial testified to
much of it. Accordingly, Waters has not shown any error.
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STATE v. WATERS
Decision of the Court
III. Convictions for Possession of Drug Paraphernalia
¶15 Waters was convicted of two counts of possession of drug
paraphernalia, count three for a pipe and count four for a scale, both of
which were found in Waters’ home when the warrant was executed. We
recently held that a defendant who simultaneously possesses multiple
objects of paraphernalia commits only one violation of A.R.S. § 13-3415(A).
State v. Soza, 249 Ariz. 13, 18, ¶ 23 (App. 2020); see State v. Slemmer, 170 Ariz.
174, 180 (1991) (stating new law applies retroactively to cases pending on
direct appeal). Even if ordered to run concurrently, multiple sentences
imposed for the same offense is fundamental error. Soza, 249 Ariz. at 14, 18,
¶¶ 6, 23. Accordingly, we vacate one of Waters’ convictions and sentences
for possession of drug paraphernalia and modify the judgment to reflect a
single conviction under A.R.S. § 13-3415(A). See Soza, 249 Ariz. at 19, ¶ 27.
CONCLUSION
¶16 We vacate one of Waters’ convictions and sentences for
possession of drug paraphernalia and modify the judgment to reflect a
single conviction for that offense. We affirm his other convictions and
sentences. We found no other error after searching the record and
reviewing the briefs. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999)
(providing guidelines for briefs when counsel has determined no arguable
issues to appeal). The record shows Waters was represented by counsel at
all stages of the proceedings and counsel was present at all critical stages.
All proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The sentences imposed were within statutory limits.
¶17 Upon the filing of this decision, defense counsel is directed to
inform Waters of the status of his appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel finds an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Waters shall
have 30 days from the date of this decision to proceed, if he desires, with a
pro se motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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