Opinion
No. 1 CA-CR 19-0544
06-30-2020
STATE OF ARIZONA, Appellee, v. ROBERT LEECROFT STEWART, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee The Law Office of Kyle T. Green P.L.L.C., Tempe By Kyle Green Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2014-115608-001
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee The Law Office of Kyle T. Green P.L.L.C., Tempe
By Kyle Green
Counsel for Appellant
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined. GASS, Judge:
¶1 Robert Leecroft Stewart filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Stewart's counsel searched the record and identified no arguable, non-frivolous question of law. Counsel, therefore, asks this court to review the record for fundamental error. Stewart was given an opportunity to file a supplemental brief in propria persona. He has not done so. Finding no error in the record, this court affirms Stewart's conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court reviews the facts in the light most favorable to sustaining the jury's verdict, resolving all reasonable inferences against Stewart. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015). This court does not weigh the evidence or assess witness credibility, because those are jury functions. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004); State v. Salman, 182 Ariz. 359, 361 (App. 1994).
¶3 In April 2014, officers with the Glendale Police Department's Special Investigations Unit began surveillance of a residence where they suspected narcotics were being sold. During the investigation, officers observed Stewart purchase several unassembled cardboard boxes. Later that evening, officers conducted a traffic stop on Stewart and found a handgun and two cellphones. After additional surveillance, officers obtained a search warrant for a residence on 70th Drive in Glendale. In the master bedroom, officers found a suitcase containing traffic tickets belonging to Stewart and more than forty pounds of marijuana. Officers also found packing material consistent with shipping marijuana via the U.S. Postal Service.
¶4 The State charged Stewart with possession of more than four pounds of marijuana for sale, a class 2 felony. See A.R.S. § 13-3405. The State also alleged two aggravating factors. In October 2016, Stewart entered into a plea agreement with State. The following February, before acceptance of the plea and sentencing, Stewart withdrew from the plea agreement.
¶5 Before trial, the State moved to admit other-acts evidence under Rule 404(b) and drug-trafficking expert testimony. The State also sought to introduce the traffic tickets officers found next to the boxes of marijuana, as well as statements by Stewart and the surveillance officers. Stewart filed two motions in limine seeking to preclude the drug-trafficking expert testimony and discussion of the handgun. The superior court held a consolidated evidentiary hearing on the motions.
¶6 The superior court denied Stewart's motion regarding the drug-trafficking expert testimony but specifically noted the ruling was without prejudice, allowing Stewart to "object at trial to specific items of evidence." The superior court also denied Stewart's motion to exclude evidence concerning the handgun but held "testimony regarding guns from a drug expert is not allowed and the Court will provide the jury with a limiting instruction in regard to the gun." Stewart did not object to the State introducing his traffic tickets, statements, or the surveillance officers' hearsay statements about their actual observations as simultaneously recorded in the surveillance log.
¶7 Following a nine-day trial, the jury convicted Stewart of the lesser-included offense of possession of marijuana, more than four pounds. The jury also found the State proved one aggravating factor—the presence of an accomplice.
¶8 Consistent with Prop 200, the superior court suspended imposition of sentence and placed Stewart on three years' supervised probation with a total fine of $1,372.50.
Proposition 200 is the voter approved initiative formally entitled "The Drug Medicalization, Prevention, and Control Act of 1996" that is codified in part as § 13-901.01. --------
ANALYSIS
¶9 This court has read and considered counsel's brief and fully reviewed the record for reversible error, finding none. See Leon, 104 Ariz. at 300; State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
¶10 All the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record shows Stewart was present for, and represented by counsel at, all critical stages of the proceedings. See State v. Bohn, 116 Ariz. 500, 503 (1977); State v. Conner, 163 Ariz. 97, 104 (1990). The jury was properly comprised of eight jurors and two alternates. See A.R.S. § 21-102.B. The record shows no evidence of jury misconduct. The superior court properly instructed the jury on the elements of the charged offenses, the State's burden of proof, and Stewart's presumed innocence. Additionally, Stewart was given an opportunity to speak at sentencing, and the sentence imposed was within the statutory guidelines. See Ariz. R. Crim. P. 26.9, 26.10(b)(1); A.R.S. §§ 13-3405.A.1, 13-702.D, 13-901.01.
CONCLUSION
¶11 Stewart's conviction and sentence are affirmed.
¶12 Defense counsel's obligations pertaining to Stewart's representation in this appeal have ended. Defense counsel need do no more than inform Stewart of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to our supreme court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶13 Stewart has thirty days from the date of this decision to proceed, if he wishes, with an in propia persona petition for review. See Ariz. R. Crim. P. 31.21. This court, on its own motion, also grants Stewart thirty days from the date of this decision to file an in propia persona motion for reconsideration. See Ariz. R. Crim. P. 31.20.