Opinion
No. 2 CA-CR 2017-0319
08-07-2018
THE STATE OF ARIZONA, Appellee, v. LEE ERIC HEISER, Appellant.
COUNSEL Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20162025001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 After a jury trial in 2017, Lee Heiser was convicted of two counts of possession of a dangerous drug for sale, possession of a narcotic drug for sale, possession of marijuana, possession of a dangerous drug, possession of a deadly weapon during the commission of a felony drug offense, possession of drug paraphernalia, and weapons misconduct. The trial court found Heiser had two historical prior felony convictions and sentenced him to concurrent prison terms, the longest of which are twelve years. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting she has reviewed the record but found no "arguably meritorious issue to raise on appeal." Counsel has provided a factual and procedural history of the case with general citations to the record and asks this court to search the record for error. Heiser has filed a supplemental brief.
Pursuant to Heiser's motion to sever the weapons misconduct charge, the trial court bifurcated the trial. After the jury rendered its verdicts on the other counts, Heiser waived his right to a jury trial on the weapons charge and the court found him guilty.
¶2 Viewed in the light most favorable to sustaining the verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999), the evidence was sufficient to support the jury's verdicts. See A.R.S. §§ 13-3102(A)(4),(8); 13-3401(6)(a)(xx); 13-3401(6)(c)(xxxviii); 13-3401(6)(d)(ii); 13-3401(19); 13-3401(20)(ttt); 13-3401(21)(m); 13-3405(A)(1); 13-3407(A)(1),(2); 13-3408(a)(2); 13-3415(A). In April 2016, officers arrested Heiser at a residence in Tucson for a matter unrelated to this case. During a search pursuant to his arrest, the officers found approximately $790 in cash on his person, and during a subsequent search of a bedroom in the house, conducted pursuant to a search warrant, officers found a gun, men's clothing matching Heiser's size, "Ziploc" bags, and a safe containing a baggie with alprazolam pills, marijuana, wrapped balls of heroin, LSD, and methamphetamine. The methamphetamine, alprazolam, and heroin were packaged for sale, and the cups, measuring tools, scales, and "baggies," also found in the house, were indicative of sales. Officers found a note written to Heiser in the bedroom where the above-described items were discovered, and in a different bedroom a traffic citation issued to Heiser. And DNA subsequently discovered on some of the heroin packaging matched that of Heiser. Finally, sufficient evidence supported the trial court's determination that Heiser had two historical prior felony convictions. His sentences are within the statutory range and were lawfully imposed. See A.R.S. § 13-703(J).
We cite to the current version of the statutes when no material changes have been made to the subsections at issue since the offenses were committed.
The parties stipulated to the substances found and their weights. --------
¶3 In his supplemental brief, Heiser first argues the trial court improperly found inadmissible the affidavit of inmate Jason Craven, who apparently had stayed at the house where Heiser was arrested. On the first day of trial, on the advice of his attorney, Craven refused to testify, invoking the Fifth Amendment right against self-incrimination. Over the state's objection, the court found Craven's affidavit statement that he had lived at the house admissible as a statement against interest under Rule 804(b)(3), Ariz. R. Evid. However, the court reversed itself the following day, relying on Williamson v. United States, 512 U.S. 594, 600-01 (1994) ("the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory"). Noting that nothing in Craven's affidavit was inculpatory, subjecting him to any kind of penal sanction, the court found the affidavit inadmissible under Rule 804(b)(3).
¶4 We find unavailing Heiser's attempts to distinguish Williamson on the ground Craven's statement is written rather than "recounted by an officer[,] as in Williamson." We also find unpersuasive Heiser's claim that Craven's affidavit statement that he lived in the house somehow established Craven's culpability, a finding the trial court expressly and repeatedly rejected. We review a trial court's decision on the admissibility of evidence for an abuse of discretion. See State v. McCurdy, 216 Ariz. 567, ¶ 6 (App. 2007). Heiser has not established any such abuse here.
¶5 Heiser also criticizes the prosecutor's presentation and characterization of certain evidence, including: the presence of a dog in the house and whether it came out of the room associated with Heiser; the fact that a pillowcase was "swabbed"; the presence of multiple cell phones at the house; the state's comment on the discovery of "no fold top baggies" in the house; and, comments on the use of the word "stress" and the handwriting on various notes found in the house. To the extent these claims constitute arguments, it does not appear that Heiser raised them below, nor has he argued any error was fundamental, and except for his claim that the trial court improperly asked a question about the dog, he has not argued that these errors prejudiced him. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005) (claims not raised in trial court reviewed only for fundamental, prejudicial error). Thus, Heiser has waived these arguments on appeal. See State v. Moreno-Medrano, 218 Ariz. 349, ¶¶ 16-17 (App. 2008).
¶6 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none. See State v. Fuller, 143 Ariz. 571, 575 (1985) (Anders requires court to search record for fundamental error). And we have rejected the arguments in Heiser's supplemental brief. Accordingly, Heiser's convictions and sentences are affirmed.