Opinion
No. 1 CA-CR 15-0167
01-28-2016
STATE OF ARIZONA, Appellee, v. TRACY PAULINE DUNN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Charles R. Krull 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-124941-001
The Honorable Daniel J. Kiley, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Charles R. Krull
Counsel for Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined. THUMMA, 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 Tracy Pauline Dunn has advised the court that, after searching the entire record, he has found no arguable question of law and asks this court to conduct an Anders review of the record. Dunn was given the opportunity to file a supplemental brief pro se and has not done so. This court has reviewed the record and has found no reversible error. Accordingly, Dunn's convictions and resulting sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
¶2 During the summer of 2014, two police officers stopped a man on his bike. While speaking with him, Dunn walked up to the officers and the man and stopped, claiming she knew the man. After the officers decided to arrest the man, Dunn became upset, loudly asked why the man was being arrested and if she could take his property and told officers the man was supposed to give her water. One of the officers asked if she had drugs and asked if he could search her, to which she declined. That officer then repeatedly asked Dunn to leave, but she did not; that officer then gave her a third warning. When she again did not leave, the officer arrested Dunn. The officers searched her purse and, inside a closed coin purse, found a small amount of methamphetamine. Dunn admitted the purse and coin purse were hers, but claimed the methamphetamine was not.
¶3 Dunn was charged with one count of possession or use of a dangerous drug, a Class 4 felony. Dunn promptly moved to suppress the methamphetamine, arguing the police did not have authority to arrest her under Arizona Revised Statutes (A.R.S.) section 13-2402 (2016), the statute the officers wrote on the incident report. The State agreed that A.R.S. § 13-2402 does not apply, but argued the officers had probable cause to arrest Dunn under Phoenix City Code 23-18. The superior court held an evidentiary hearing, at which both officers testified, and took the matter under advisement. Later, the court found the arrest was lawful and denied Dunn's motion to suppress.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------
¶4 At trial, three officers and one forensic scientist testified for the State. After the State rested in its case in chief, Dunn elected to testify on her own behalf. During her testimony, Dunn claimed the man who was arrested had her purse on his handlebars when he saw police and rode his bike away from her. Dunn testified that the man who was arrested likely put the bag of methamphetamine in her coin purse contained in her purse so he would not be charged with distribution. After she testified, Dunn rested. The State called two police officers in rebuttal. After instructions and deliberation, the jury found Dunn guilty. At sentencing, the superior court suspended the imposition of a sentence and placed Dunn on probation for two years.
¶5 Dunn timely appealed her conviction and resulting sentence. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033.
DISCUSSION
¶6 This court has reviewed and considered counsel's brief and appellant's pro se supplemental brief and has searched the entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999). Searching the record and briefs reveals no reversible error. The record shows Dunn was represented by counsel at all stages of the proceedings and was present during all proceedings, aside from a few minutes at trial after the superior court excused her at her request. The evidence admitted at trial constitutes substantial evidence supporting Dunn's conviction. From the record, all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The sentence imposed was within the statutory limit and permissible range.
¶7 Dunn unsuccessfully moved to suppress the methamphetamine found in a search incident to her arrest. Dunn focused her argument on the issue of whether the officers had probable cause to arrest under A.R.S. § 13-2402 and whether the State could justify the arrest under the Phoenix City Code 23-18. Dunn's argument that the State must justify the arrest based on A.R.S. § 13-2402 (the statute the officers noted in their report) fails. See Devenpeck v Alford, 543 U.S. 146, 153 (2004) (holding there is no basis to be confined "to the known facts bearing upon the offense actually invoked at the time of arrest").
¶8 Dunn's other argument made to the superior court (that the officers did not have probable cause to arrest her) also was properly rejected by that court. The officer on the scene asked Dunn to leave multiple times, giving Dunn three warnings before he arrested her. These events occurred when the officers were effectuating the arrest of the man, and both officers testified that Dunn created a safety issue related to that arrest. Accordingly, the superior court did not err by concluding there was probable cause to arrest Dunn. See Phoenix City Code 23-18 ("Any person who shall knowingly or willfully obstruct, resist or oppose any policeman . . . in the performance of any official duty . . . shall be guilty of a misdemeanor.").
CONCLUSION
¶9 This court has read and considered counsel's brief and has searched the record provided for reversible error and has found none. Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537 ¶ 30. Accordingly, Dunn's convictions and resulting sentences are affirmed.
¶10 Upon filing of this decision, defense counsel is directed to inform Dunn of the status of her appeal and of her future options. Defense counsel has no further obligations unless, upon review, counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Dunn shall have 30 days from the date of this decision to proceed, if she desires, with a pro se motion for reconsideration or petition for review.