Opinion
No. 1 CA-CR 17-0025
12-14-2017
STATE OF ARIZONA, Appellee, v. PAUL SIMON GAFFNEY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Edward F. McGee 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2015-122214-001
The Honorable Justin Beresky, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Edward F. McGee
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Jon W. Thompson and Chief Judge Samuel A. Thumma joined. JONES, Judge:
¶1 Paul Gaffney appeals his convictions and sentences for one count each of possession of a dangerous drug, sale or transportation of marijuana, and possession of drug paraphernalia. After searching the entire record, Gaffney's defense counsel identified no arguable question of law that is not frivolous. Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asked this Court to search the record for fundamental error. Gaffney then filed a supplemental brief in propria persona. After reviewing the entire record, we reject the arguments raised within Gaffney's supplemental brief and find no error. Accordingly, Gaffney's convictions and sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
"We view the facts in the light most favorable to sustaining the convictions with all reasonable inferences resolved against the defendant." State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).
¶2 In May 2015, a Phoenix Police officer observed a truck arrive at a house belonging to Wade W. that the officer was surveilling for suspected drug activity. The driver parked his truck, entered the residence, and left shortly thereafter. When the driver made an improper turn into the curb lane, Sergeant A.G. initiated a traffic stop. When he shined his flashlight through the window of the truck, Sergeant A.G. saw a pipe near the center console, which he recognized through his training and experience as one used to smoke marijuana. The driver of the vehicle, and only occupant, identified himself as Paul Gaffney. Gaffney was arrested for driving on a suspended license.
¶3 After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), Gaffney confirmed he was not a registered medical marijuana user and admitted there was marijuana and methamphetamine underneath the front seat of the vehicle. During a search of the vehicle, Sergeant A.G. found: (1) a pipe; (2) a bag that contained a crystal-like substance believed to be methamphetamine; (3) four small packages of a loose leafy substance believed to be marijuana; (4) a mason jar with a loose leafy substance believed to be marijuana; and (5) an envelope containing six $100 bills, eleven $50 bills, and two $20 bills, for a total of $1190. Numbers were written on the outside of the envelope in a ledger-like format. Subsequent testing confirmed one of the bags of the loose leafy substance contained 3.27 grams of marijuana and the white crystalline substance was 2.82 grams of methamphetamine. Gaffney initially told officers Wade had placed the marijuana in the vehicle, and he received the cash as compensation for remodeling and odd jobs.
¶4 At trial, Gaffney testified in his defense. Gaffney admitted the mason jar of marijuana belonged to him, but claimed a person he referred to as "Ten Speed" tossed a bag containing the smaller packages of marijuana into the vehicle, and that he could not see or smell what was in the bag. Gaffney denied any knowledge of methamphetamine in the vehicle. He testified his friend, Nick, called him prior to the traffic stop and left a message saying, "I left $50 to $60 of stuff in your truck." Gaffney believed Nick was talking about his roofing tools until the officer showed him the methamphetamine. When an officer held up the bag of methamphetamine asking its value he responded, "about 50 bucks," based on his experience using meth fifteen years ago. Nancy S. also testified that she hired Gaffney to replace the windows at a property she owned and paid him $1200 in cash to purchase the windows on the date of the traffic stop.
¶5 At the close of the State's evidence, Gaffney's counsel moved, unsuccessfully, for a directed verdict pursuant to Arizona Rule of Criminal Procedure 20. The jury then convicted Gaffney as charged. Gaffney admitted three prior historical felony convictions, and the trial court sentenced him as a non-dangerous, repetitive offender to concurrent mitigated terms of three years' imprisonment for possession of dangerous drugs and four years' imprisonment for sale or transportation of marijuana. He was sentenced as a non-dangerous, non-repetitive offender to a concurrent presumptive term of one year of imprisonment for possession of drug paraphernalia. The court also credited him with thirty-six days of presentence incarceration. Gaffney timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
Absent material changes from the relevant date, we cite a statute's current version. --------
DISCUSSION
I. Sufficiency of Evidence
¶6 Our obligation is to review the entire record for reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), and we begin our review analyzing whether sufficient evidence supports the jury's verdicts. "The sufficiency of evidence supporting a conviction is a question of law, subject to de novo review." State v. Denson, 241 Ariz. 6, 10, ¶ 17 (App. 2016) (citing State v. West, 226 Ariz. 559, 562, ¶ 15 (2011)). "We will reverse a conviction 'only if no substantial evidence supports the conviction.'" Id. (quoting State v. Pena, 209 Ariz. 503, 505, ¶ 7 (App. 2005)).
A. Conflicting Evidence
¶7 Gaffney argues the evidence was insufficient, generally, because the courtroom testimony of the officers contradicted the account of events in their police reports. However, the resolution of conflicting evidence is solely the responsibility of the jury, and we do not second-guess its resolutions of conflict on appeal. See State v. Linden, 136 Ariz. 129, 134 (1983) ("[T]he forum for resolving conflicts in the evidence is the trial court.") (citing State v. Rhymes, 129 Ariz. 56, 57 (1981)). Additionally, Gaffney fails to cite any specific instances of contradiction in the officers' testimony and the police report. Moreover, the police report was not admitted into evidence, but only used to refresh an officers' memory in the course of his testimony. The burden is on the defendant to prove fundamental error. See State v. Valverde, 220 Ariz. 582, 585, ¶ 12 (2009) (citing State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005)). Gaffney has not done so here.
B. Possession of Dangerous Drugs
¶8 A person is guilty of possessing dangerous drugs if he "knowingly . . . possess[es] . . . a dangerous drug," including methamphetamine. A.R.S. §§ 13-3401(6)(c)(xxxviii), -3407(A)(1). During the stop and arrest, Gaffney admitted having methamphetamine in the vehicle he was driving, in which he was the only occupant, and told officers where it was located. On this evidence, the jury could reasonably conclude Gaffney knowingly possessed methamphetamine.
C. Transporting Marijuana for Sale
¶9 A person is guilty of sale or transportation of marijuana if he "knowingly . . . possess[es] marijuana for sale." A.R.S. § 13-3405(A)(2). The offense is a class 4 felony if the marijuana weighs "less than two pounds." A.R.S. § 13-3405(B)(4).
¶10 Gaffney argues the evidence is insufficient to prove he possessed marijuana for sale because it is unclear whether the marijuana tested by the State came from the mason jar or one of the four smaller packages. However, the scientific testing, coupled with the testimony of the officer that the jar and packages all contained a green leafy substance he identified through his training and experience to be marijuana, provide sufficient circumstantial evidence from which the jury could conclude all packages found contained marijuana and the total weight of the marijuana was less than two pounds. Moreover, the manner in which the drugs are packaged, whether individually wrapped or in a mason jar, is not conclusive as to whether it is available for sale, and the presence of the cash and ledger suggest the marijuana was for sale. On this evidence, the jury could reasonably conclude Gaffney knowingly possessed marijuana for sale.
D. Possession of Drug Paraphernalia
¶11 "[I]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to . . . ingest, inhale or otherwise introduce into the human body a drug." A.R.S. § 13-3415(A). A pipe used to smoke marijuana was found in the vehicle Gaffney was using and occupying. At trial, Gaffney admitted to possessing marijuana. The record contains sufficient evidence upon which the jury could find beyond a reasonable doubt Gaffney was guilty of the charged offense.
II. Police Misconduct
¶12 Gaffney makes several other arguments concerning police conduct and testimony. First, Gaffney argues the evidence offered against him was the product of an illegal search and seizure. However, Gaffney provided probable cause for the search when he admitted the vehicle contained illegal substances. See State v. Sardo, 112 Ariz. 509, 516 (1975) ("[T]he warrantless search of a motor vehicle based upon probable cause to believe it contains contraband is legal and the contraband seized is admissible in evidence.") (citing State v. McCullar, 110 Ariz. 427, 429 (1974)).
¶13 Second, Gaffney argues his Miranda rights were violated because the police did not advise him of his rights immediately upon arrest. Gaffney does not identify any incriminating statements made in violation of this right. Compliance with Miranda is only required where the State seeks to admit statements the person may make while in custody and in response to questioning. See State v. Zamora, 220 Ariz. 63, 67, ¶ 10 (2009) (citing Miranda, 384 U.S. at 444).
¶14 Finally, Gaffney argues the police failed to follow through on a promise to assist him in exchange for his cooperation. Although "[p]olice may offer to tell the prosecutor about the defendant's cooperation and suggest that such cooperation may increase the likelihood of a more lenient sentence," State v. Strayhand, 184 Ariz. 571, 579 (App. 1995) (citations omitted), they are not required to do so, and no evidence in the record suggests any such promise was made here. We find no fundamental error.
III. Ineffective Assistance of Counsel
¶15 Gaffney argues his trial lawyer provided ineffective assistance of counsel when he failed to call the witnesses Gaffney requested and did not retrieve the case file from Gaffney's previous attorney. This claim must be first presented to the trial court in a petition for post-conviction relief. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) ("[I]neffective assistance of counsel claims are to be brought in Rule 32 proceedings . . . [and] will not be addressed by appellate courts regardless of merit."). We therefore express no opinion as to the merits of this contention.
IV. Malicious Prosecution
¶16 Gaffney argues he is a victim of malicious prosecution because he was forced to trial after rejecting what he believes were unreasonable plea offers. It is well-established that a criminal defendant does not have an inherent right to a plea bargain, State v. Morse, 127 Ariz. 25, 31 (1980), but that the prosecutor holds the discretion to make and determine the contents of a plea offer, see State v. Donald, 198 Ariz. 406, 417, ¶ 39 (App. 2000). Accordingly, Gaffney cannot prove error on this basis.
V. Prosecutorial Misconduct
¶17 Gaffney argues the prosecutor committed misconduct by suggesting within his closing argument that his only witness, Nancy, was his "partner in free-enterprising." When reviewing prosecutorial misconduct, we focus on whether the prosecutor's conduct affected the proceedings in such a way as to deny the defendant a fair trial. See State v. Ramos, 235 Ariz. 230, 237, ¶ 22 (App. 2014). "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial." Id. (quoting State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004)).
¶18 Our supreme court has found that counsel may "comment on the evidence and argue all reasonable inferences therefrom." State v. Buccheri-Bianca, 233 Ariz. 324, 329, ¶ 15 (App. 2013) (quoting State v. Hill, 174 Ariz. 313, 322 (1993)). The prosecutor, when he identified inconsistencies between Nancy's statements and those of the investigating officers and suggested Nancy may have motives to protect Gaffney, was making reasonable inferences as to why witnesses might be lying or contradicting police. Gaffney fails to prove misconduct.
VI. Motion for Mistrial
¶19 At trial, Sergeant A.G. testified Gaffney was driving on a suspended license at the time of the stop after having been instructed not to reveal this information pursuant to Arizona Rule of Evidence 404(b) (barring evidence of other bad acts). Gaffney moved for a mistrial; the trial court denied the motion and gave a curative instruction striking the testimony from the record. The jury was further instructed not to consider this testimony. Gaffney argues the disclosure was prejudicial and the trial court erred in not granting his mistrial request.
¶20 We disagree that the testimony regarding the suspended license was unduly prejudicial. Considering the nature of the charges — possession of dangerous drugs and marijuana for sale — and the testimony presented by both Gaffney and the officers, we cannot find that the mere fact of a suspended license was an "error of such magnitude that the defendant could not have possibly received a fair trial." Henderson, 210 Ariz. at 567, ¶ 19 (citing State v. Hunter, 142 Ariz. 88, 90 (1984), and then State v. Gendron, 168 Ariz. 153, 155 (1991)). Additionally, the court struck the testimony and directed the jury to disregard it, and the jury was instructed to disregard stricken testimony. We presume the jury followed those instructions, see State v. Peraza, 239 Ariz. 140, 146, ¶ 23 (App. 2016) (citing State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006)), and find no prejudicial error.
VII. Admission to Prior Historical Felonies
¶21 Gaffney argues the trial court erred when it failed to conduct a full plea-type colloquy warning him of the consequences of admitting to prior convictions. See Ariz. R. Crim. P. 17.2, 17.3, 17.6; State v. Morales, 215 Ariz. 59, 61, ¶ 9 (2007). However, when a defendant does not object to prior convictions in a presentence report and subsequently stipulates to priors, he is bound by his admission even if the Rule 17.6 colloquy is deficient. See State v. Gonzales, 233 Ariz. 455, 458, ¶ 11 (App. 2013). Here, although the trial court should have conducted the Rule 17.6 colloquy, Gaffney's failure to object to the priors listed within the presentence report "conclusively precludes prejudice." Id.
VIII. Sentencing
¶22 Gaffney argues his total sentence of four years' imprisonment is "wildly disproportionate to the gravity of his offenses," considering the quantity of drugs found within his possession and the number of years since his prior convictions. He also argues, without citation to any legal authority, that the trial court did not properly take into account his troubled emotional state caused by the death of his mother just forty-eight hours prior to the offenses in question.
¶23 The record reflects Gaffney was properly sentenced to either a presumptive or mitigated sentence for each count in accordance with A.R.S. §§ 13-702(D) and -703(I). Where a defendant's sentence is within the range identified by the legislature, he cannot prove fundamental error. See State v. Martinez, 209 Ariz. 280, 281, ¶ 1 (App. 2004), aff'd, 210 Ariz. 578 (2005).
¶24 Our review reveals Gaffney erroneously received credit for two days of presentence incarceration he did not serve. Because this error inures to the benefit of the defendant, and the State did not cross-appeal, the error does not cause Gaffney prejudice and is therefore not fundamental. See Henderson, 210 Ariz. at 567, ¶ 20.
IX. Fundamental Error
¶25 Further review reveals no fundamental error. See Leon, 104 Ariz. at 300 ("An exhaustive search of the record has failed to produce any prejudicial error."). The proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Gaffney was represented by counsel at all stages of the proceedings and was present at all critical stages including the entire trial and verdict. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages) (citations omitted); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). The jury was properly comprised of twelve jurors, and two alternates, and the record shows no evidence of jury misconduct. See A.R.S. § 21-102; Ariz. R. Crim. P. 18.1(a). The trial court properly instructed the jury on the elements of the charged offenses, the State's burden of proof, and Gaffney's presumption of innocence. At sentencing, Gaffney 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 the sentences. See Ariz. R. Crim. P. 26.9, 26.10. Additionally, the sentences imposed were within the statutory limits. See A.R.S. §§ 13-702(D), -703(I).
CONCLUSION
¶26 Gaffney's convictions and sentences are affirmed. Defense counsel's obligations pertaining to Gaffney's representation in this appeal have ended. Defense counsel need do no more than inform Gaffney 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. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶27 Gaffney has thirty days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. See Ariz. R. Crim. P. 31.19(a). Upon the Court's own motion, we also grant Gaffney thirty days from the date of this decision to file an in propria persona motion for reconsideration.