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State v. Bautista

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-CR 13-0448 (Ariz. Ct. App. Jun. 26, 2014)

Opinion

No. 1 CA-CR 13-0448

06-26-2014

STATE OF ARIZONA, Appellee, v. GEORGE EMMANUEL BAUTISTA, Appellant.

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Mohave County Office of the Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant


NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.


Appeal from the Superior Court in Mohave County

No. S8015CR201200914

The Honorable Steven F. Conn, Judge


AFFIRMED


COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Mohave County Office of the Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.

SWANN, Judge:

¶1 Defendant George Emmanuel Bautista appeals from his convictions and sentences for possession of dangerous drugs for sale, possession of drug paraphernalia, and theft. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal and found no arguable, nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona, but did not do so.

¶2 We have searched the record for fundamental error and find none. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3 Based on suspected drug activity, police executed a search warrant at a residence that Defendant shared with five other adults and a minor child. Defendant initially told police that he did not use or sell drugs and that there were no drugs in his room. However, the search of Defendant's bedroom revealed multiple digital scales with white powder residue consistent with methamphetamine, used and unused baggies commonly used for packaging methamphetamine, a bag of methamphetamine later determined to weigh 1.97 grams, pipes and bongs with residue consistent with methamphetamine use, $945 in cash, and a 55-inch flat-screen television that had been reported stolen three days earlier. Police also recovered a suspected drug-sale ledger in the room where they first apprehended Defendant, and a bong consistent with marijuana use in a shared bathroom across the hall from Defendant's bedroom.

¶4 Police arrested Defendant and conducted a recorded interview. During the interview, Defendant admitted to smoking methamphetamine and to making "a couple deals here and there." He

acknowledged that he had a large amount of cash, which he stated he had saved up to help his roommate retrieve an impounded truck. When police confronted Defendant with the fact that the truck had not been impounded until the day before the search, he stated instead that he had been saving money to move to an apartment. Defendant further told the interviewing officers that he worked as a dishwasher making $7.85 an hour plus tips, but that he had not been working for almost a week. At the end of the interview, Defendant insisted that the $945 the police found in his bedroom did not belong to him and that he kept his money in a pair of pants. However, the search of Defendant's room revealed no other cash. The recorded interview was later admitted into evidence and played for the jury.

¶5 The state indicted Defendant on one count of possession of dangerous drugs for sale (methamphetamine), one count of possession of drug paraphernalia (methamphetamine), one count of possession of drug paraphernalia (marijuana), and one count of theft. Defendant pled not guilty and was tried by a jury.

¶6 At trial, the state called the case officer in the investigation against Defendant. Based on his experience and training as a narcotics detective, the case officer testified that common indicators of methamphetamine sale include: digital scales with white residue on them, packaging material such as small jewelry bags, drug-sale ledgers with names and dollar amounts or weights scribbled next to them, and a large amount of money found together with a small quantity of methamphetamine or vice versa. The case officer further testified that .1 grams of methamphetamine is a usable quantity, and that he was not familiar with any individual personally using a gram or more a day. The case officer also testified that it is very common for electronics to be traded for methamphetamine.

¶7 On cross-examination, the case officer acknowledged that the drug-sale ledger might not have belonged to Defendant and that the pipes, baggies and scales found in his bedroom were not sent to a crime lab for testing. The case officer explained, however, that the scales tested positive for methamphetamine using a field test and that the drug paraphernalia was otherwise consistent with methamphetamine use. On redirect, the case officer testified that although he had not sent the paraphernalia to the crime lab, he had submitted the bag suspected of containing methamphetamine, and the lab results confirmed that it was in fact methamphetamine.

¶8 The case officer opined that the television recovered from Defendant's bedroom would typically be worth more than $1,000, based on his own research and experience in purchasing a television of the same size. Additional testimony established that fingerprints from the residence where the television was stolen matched one of the persons residing with Defendant.

¶9 Defendant moved for judgment of acquittal on the theft charge, which the court denied. The jury acquitted Defendant of possession of drug paraphernalia (marijuana) but otherwise found him guilty as charged. The court entered judgment on the jury's verdicts and, after finding only mitigating circumstances, sentenced Defendant to prison for five years on the charge of possession of dangerous drugs for sale; 291 days on the charge of possession of drug paraphernalia (methamphetamine), to be served concurrently with the first sentence; and six months on the charge of theft, to be served consecutively with the first sentence. The court granted Defendant 291 days of presentence incarceration credit toward the first and second concurrent sentences. Defendant timely appeals.

DISCUSSION

¶10 The record reveals no fundamental error. Defendant was present and represented at all critical stages. The record shows no evidence of jury misconduct, and the jury was properly comprised of eight jurors. See A.R.S. § 21-102(B); Ariz. R. Crim. P. 18.1(a).

¶11 The evidence that the state presented at trial was properly admissible and was sufficient to support Defendant's convictions. The crime of possession of dangerous drugs for sale requires proof that a person knowingly possessed a dangerous drug for the purpose of selling it. A.R.S. § 13-3407(A)(2). Methamphetamine is statutorily defined as a dangerous drug. A.R.S. § 13-3401(6)(c)(xxxviii). The crime of possession of drug paraphernalia (methamphetamine) requires proof that a person used, or possessed with intent to use, "equipment, products [or] materials of any kind intended for use or designed for use in . . . packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing [methamphetamine] into the human body." See A.R.S. § 13-3415(A), (F)(2). "Possession" may be either actual, meaning physical custody of the item, or constructive, meaning dominion and control of the item. State v. Riley, 12 Ariz. App. 336, 337, 470 P.2d 484, 485 (1970). "Drug paraphernalia" may include:

[s]cales and balances used, intended for use or designed for use in weighing or measuring drugs[;] . . . containers used, intended for use or designed for use in packaging small quantities of drugs[;] . . . [c]ontainers and other objects used, intended for use or designed for use in storing or concealing drugs[; and] . . . [o]bjects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing . . . [methamphetamine] into the human body, such as . . . pipes . . . [and b]ongs.

A.R.S. § 13-3415(F)(2)(e), (i), (j), (l)(i), (l)(xii). Lastly, the crime of theft requires proof that a person, knowingly and without lawful authority, "[c]ontrols property of another knowing or having reason to know that the property was stolen." A.R.S. § 13-1802(A)(5). Theft of property valued at $1,000 or more but less than $2,000 is punishable as a class 6 felony. A.R.S. § 13-1802(G). Here, the state presented ample evidence that Defendant possessed a usable quantity of methamphetamine and various drug paraphernalia consistent with methamphetamine use and sale. In addition, the state presented evidence that Defendant possessed a television worth more than $1,000 in his bedroom that had been reported stolen three days earlier, that fingerprints from the place it was stolen matched a person with whom Defendant resided, and that it is very common to trade electronics for methamphetamine.

¶12 At sentencing, Defendant was given an opportunity to speak and the court stated on the record the evidence and materials it considered and the factors it found in imposing sentence. The court imposed legal sentences for the offenses, see A.R.S. §§ 13-702(A), (D), - 1802(G), -3407(E), -3415(A), and correctly calculated Defendant's presentence incarceration credit under A.R.S. § 13-712(B).

CONCLUSION

¶13 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We therefore affirm Defendant's convictions and sentences.

¶14 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and Defendant's future options. Id. Defendant has 30 days from the date of this decision to

file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.


Summaries of

State v. Bautista

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-CR 13-0448 (Ariz. Ct. App. Jun. 26, 2014)
Case details for

State v. Bautista

Case Details

Full title:STATE OF ARIZONA, Appellee, v. GEORGE EMMANUEL BAUTISTA, Appellant.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 26, 2014

Citations

No. 1 CA-CR 13-0448 (Ariz. Ct. App. Jun. 26, 2014)