Opinion
1 CA-CR 11-0674 1 CA-CR 11-0676
08-02-2012
STATE OF ARIZONA, Appellee, v. GARY LOUIS BAROCSI, Appellant.
Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause Nos. CR2010-105667-001 & CR2010-131274-001
The Honorable Edward W. Bassett, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Spencer D. Heffel, Deputy Public Defender
Attorneys for Appellant
Phoenix GOULD , Judge ¶1 Gary Barocsi appeals from his convictions and sentences for sale of dangerous drugs and the resulting automatic probation violation. Barocsi's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after searching the entire record on appeal, he finds no arguable ground for reversal. Barocsi directed counsel to raise a number of issues for this court's consideration; Barocsi also filed a supplemental brief in propria persona arguing similar issues. We will address these arguments below. Having searched the record for reversible error and found none, we affirm.
Facts and Procedural Background
We view the facts in the light most favorable to sustaining the court's judgment and resolve all inferences against Barocsi. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998); State v. Moore, 183 Ariz. 183, 186, 901 P.2d 1213, 1216 (App. 1995).
¶2 Two undercover police officers were driving in the area of 11th Avenue and Hatcher on June 9, 2010. They pulled up alongside Barocsi and asked if he knew where they "could score some G." "G" or "glass" are common street slang references to methamphetamine. Barocsi responded that his girlfriend had some or could get some. Barocsi got into the back seat of the officers' car and directed them to a house at 10486 North 11th Avenue. He left the vehicle and walked inside the house; a few minutes later a woman, Kris Deibert, exited the house, approached the driver's window of the officers' car, and asked "what do you want?" The officer responded "40 of G" and gave Deibert forty dollars. Deibert went back into the house and came out a few minutes later carrying her purse; she walked westbound on North Lane. About fifteen minutes later Deibert returned and handed a cigarette box to the undercover officer. The cigarette box contained approximately 310 milligrams of methamphetamine. ¶3 Barocsi was arrested and charged as an accomplice with one count of sale or transportation of dangerous drugs. The State also alleged Barocsi was on probation when he committed the offense. Before trial, Barocsi underwent a Rule 11 evaluation and was found competent to stand trial. ¶4 At trial, Barocsi testified that he thought the officers asked him for weed or "reggie" instead of "G." He explained his intent was to give them weed because they had given him a ride to his house in the heat. Barocsi testified that when he went inside the house and his girlfriend was not home, he asked Deibert to go tell the officers that his girlfriend was not able to get them drugs. Barocsi testified that he never directed or intended Deibert to sell methamphetamine to the officers. Deibert also testified that Barocsi asked her to tell the officers that his girlfriend was not home, and that when she asked the officers what they wanted and they asked for "some G" she got it for them. ¶5 Both undercover officers testified that when they approached Barocsi and asked where they could "score some G" the street was not noisy and Barocsi did not appear to hesitate or misunderstand their meaning. They testified Barocsi directed them to the house, when they arrived he went inside, and a few minutes later Deibert came out to the car and asked what they wanted. The jury found Barocsi guilty and the court found him in automatic violation of probation. ¶6 At sentencing, Barocsi admitted to having a prior felony conviction for which he was on probation when he committed the current offense. Barocsi was sentenced to the presumptive term of 9.25 years' imprisonment for the sale of dangerous drugs and .3 years' imprisonment for the probation violation. He timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010).
Disposition
¶7 On appeal, Barocsi argues the evidence does not support his conviction. He claims the undercover officer's report was incorrect because it stated the officers purchased methamphetamine from a male and female but only Deibert actually sold the drugs to the officers. The "relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Montano, 204 Ariz. 413, 423, ¶ 43, 65 P.3d 61, 71 (2003) (quoting State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981)). ¶8 The evidence supports the jury's verdict that Barocsi, intending to facilitate Deibert's sale of methamphetamine to the officers, provided the opportunity by bringing the officers to Deibert's house. Barocsi was charged under a theory of accomplice liability, and as a result the State was not required to show that Barocsi actually sold drugs to the officers. The State was required to show that Barocsi, "with the intent to promote or facilitate" the sale, did any of the following: solicited or commanded Deibert to sell the drugs; aided, counseled, agreed to aid or attempted to aid Deibert in planning or committing the sale; or provided means or opportunity to Deibert to sell the drugs. See A.R.S. § 13-301 (2010). When the officers asked Barocsi where they could "score some G" he directed them to the house at 10486 North 11th Avenue where Deibert came out, took the officers' order, and delivered the methamphetamine to the car. As noted above, "G" or "glass" are common street slang references to methamphetamine and Barocsi did not indicate that he did not hear or understand the officers' request. ¶9 Barocsi also argues the jury did not follow the jury instructions and the jury was inadequately instructed on whether marijuana is a dangerous drug. Contrary to Barocsi's claim, the jury was properly instructed. During deliberations the court received a question from the jury asking why it was important whether Barocsi thought the officers were requesting "G" or "weed." A similar jury question about whether marijuana was a dangerous drug was asked during trial. To address the question, the court provided supplemental jury instructions stating the following: "Methamphetamine is a dangerous drug under Arizona law. Marijuana is not a dangerous drug under Arizona law." The court re-read the entire portion of jury instructions "having to do with the actual charged offense . . . so as not to give undue prominence" to the supplemental instruction distinguishing between methamphetamine and marijuana. ¶10 The opening brief raises a claim of ineffective assistance of counsel, however, such claims must 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. Sang Le, 221 Ariz. 580, 580, 212 P.3d 918, 919 (App. 2009) (quoting State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002)). ¶11 Finally, Barocsi objects to the presence of the State's case agent in the courtroom during the other undercover officer's testimony as a violation of the rule of exclusion of witnesses. See Rule 9.3, Arizona Rules of Criminal Procedure. However, if a witness, such as a case agent, is "a person whose presence is shown by a party to be essential to the presentation of the party's case," that witness is exempt from the rule. Ariz. R. Evid. 615(3); see also State v. Williams, 183 Ariz. 368, 380, 904 P.2d 437, 449 (1995) ("[T]he state is entitled to have one investigator present throughout trial, even though that person may testify."). ¶12 We have reviewed the entirety of the record and found no meritorious grounds for reversal of Barocsi's convictions or for modification of the sentences imposed. See Anders, 386 U.S. at 744; Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, counsel's obligations in this appeal have ended. Unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review, counsel need do no more than inform Barocsi of the status of the appeal and his future options. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Barocsi has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review.
Pursuant to Arizona Rule of Criminal Procedure 31.18.b, Barocsi or his counsel has fifteen days to file a motion for reconsideration. On the Court's own motion, we extend the time to file such a motion to thirty days from the date of this decision.
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__________________
ANDREW W. GOULD, Judge
CONCURRING: __________________
JOHN C. GEMMILL, Presiding Judge
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PETER B. SWANN, Judge