Opinion
No. 1 CA-CR 12-0213
02-12-2013
STATE OF ARIZONA, Appellee, v. CHARLES EDWARD AGNEW, 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 Christopher V. Johns, 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);
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Arizona Rules of Civil Appellate
Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-141968-001
The Honorable Steven P. Lynch, Judge Pro Tem
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 Christopher V. Johns, Deputy Public Defender
Attorneys for Appellant
Phoenix DOWNIE, Judge ¶1 Charles Edward Agnew appeals his conviction for possession of marijuana in violation of Arizona Revised Statutes ("A.R.S.") section 13-3405. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Agnew did not file a supplemental brief in propria persona, despite being given the opportunity to do so. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982).
FACTS AND PROCEDURAL HISTORY
¶2 Officer O'Meara stopped a vehicle with a suspended license plate. Agnew was the driver and registered owner. When Agnew rolled down his window, the officer "smelled a strong odor" of unburned marijuana. He arrested Agnew. ¶3 In searching Agnew incident to arrest, the officer found "thin paper wraps used to roll tobacco or marijuana" in Agnew's pocket, but no tobacco. During an inventory search of the vehicle, the officer discovered a baggie of marijuana in the console between the driver and passenger seats. Agnew denied knowledge of the marijuana and stated "that a passenger could have put it there." ¶4 Agnew was charged with one count of possession or use of marijuana (count 1) and one count of possession of drug paraphernalia (count 2), both class 1 misdemeanors. During the ensuing bench trial, Officer O'Meara described the vehicle stop and testified that the odor of marijuana was strong enough that he "had no doubt" he would find marijuana in the car. Agnew denied any knowledge of the marijuana but testified he had driven his cousin and a friend to several bars the night before, and the cousin sat in the passenger seat beside the console. Agnew further testified that he purchased the cigarette papers for a neighbor and that he knew what marijuana smelled like but did not smell anything "strange or suspicious" in his vehicle the morning he was stopped. ¶5 The trial court found Agnew guilty of count 1 but acquitted him of count 2. Agnew was sentenced to nine months' unsupervised probation.
The parties stipulated that the substance was marijuana in a useable amount.
Although both counts were originally designated class 6 felonies, the State moved to designate them class 1 misdemeanors. The court found Agnew knowingly, intelligently, and voluntarily waived his right to a trial by jury and granted the motion.
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DISCUSSION
¶6 We have read and considered the brief submitted by counsel and have reviewed the entire record. Leon, 104 Ariz. at 300, 451 P.2d at 881. We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Defendant was present at all critical phases of the proceedings and was represented by counsel. ¶7 The State presented substantial evidence of guilt. It is illegal to knowingly possess marijuana. A.R.S. § 13-3405(A)(1). "'Possess' means knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(34); see also A.R.S. § 13-105(10)(b) ("'Knowingly' means . . . that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists."). "One who exercises dominion or control over property has constructive possession of it even if it is not in his physical possession." State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 13, 965 P.2d 94, 97 (App. 1998). ¶8 Agnew was the registered owner of the vehicle and was its only occupant when Officer O'Meara stopped it. The officer testified about the strong odor of marijuana emanating from the vehicle. Although Agnew denied knowing about the marijuana and testified he did not smell marijuana in his vehicle, the trial court was entitled to weigh the evidence and conclude otherwise. See State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) (the credibility of witnesses is for the trier of fact and not the appellate court).
CONCLUSION
¶9 We affirm Agnew's conviction and sentence. Counsel's obligations pertaining to Agnew's representation in this appeal have ended. Counsel need do nothing more than inform Agnew of the status of the appeal and his future options, unless counsel's review reveals 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). On the court's own motion, Agnew shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.
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MARGARET H. DOWNIE,
Presiding Judge
CONCURRING: ______________
MAURICE PORTLEY, Judge
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PHILIP HALL, Judge