Opinion
1 CA-CR 11-0886
04-25-2013
STATE OF ARIZONA, Appellee, v. RICARDO ROBERT MATTHEWS, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Cory Engle, 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);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-165628-001
The Honorable Lisa Daniel Flores, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Acting Chief Counsel
Criminal Appeals Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Cory Engle, Deputy Public Defender
Attorneys for Appellant
Phoenix KESSLER, Judge ¶1 Ricardo Robert Matthews ("Matthews") filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following his convictions of conspiracy to commit possession of marijuana for sale, money laundering in the second degree, and misconduct involving weapons. ¶2 Finding no arguable issues to raise, Matthews' counsel requested that this Court search the record for fundamental error. Matthews was given the opportunity to, but did not submit a pro per supplemental brief. For the reasons that follow, we affirm Matthews' convictions and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶3 In December 2010, the Chandler Police Department instigated a drug sting using a reversal. Juan Castillo Lopez, a middleman in drug deals ("Broker"), contacted L.V., a confidential informant, to negotiate the purchase of forty pounds of marijuana for interested buyers. However, because the buyers did not have their money ready at that time, the transaction was stalled. ¶4 Broker contacted the informant again a week later and indicated that he now had a buyer for sixty pounds of marijuana. Broker and another man arrived at the police warehouse to inspect the marijuana and take a sample for the buyers. When Broker next contacted the informant, he stated the buyers decided to buy 100 pounds of marijuana and wanted to meet with him in a nearby parking lot. ¶5 The informant arrived at the parking lot and met with Broker, Broker's girlfriend, Matthews, and Yarou Linwood ("Linwood"). Linwood showed the informant the money and stated they wanted the marijuana delivered to their home. The informant hesitated but finally agreed after Matthews stated that they had so many buyers lined up the informant would not need to look for any more business. Broker and his girlfriend got in the informant's car and they followed Matthews to the house. The informant then left, stating he was going to arrange the delivery. ¶6 After the informant left, he met with his police contact. Eventually, the informant called Broker to get the community gate code and asked him to open the garage for the load vehicle. The police then arrived at the house, broke down the door, and arrested Matthews, Linwood, and Broker. Inside the house police officers found $18,530 in cash, scales, mailing labels, bubble wrap, shrink wrap, and boxes. During a search of the house, Matthews admitted to having two guns. ¶7 Matthews was charged with conspiracy to commit possession of marijuana for sale, money laundering in the second degree, misconduct involving weapons, and possession of drug paraphernalia. At trial, Matthews testified that he is not a drug dealer, does not live at the house where he was arrested, and was only there that day because he was visiting his sister. ¶8 A jury convicted Matthews of conspiracy to commit possession of marijuana for sale, money laundering in the second degree, and misconduct involving weapons. Matthews was found not guilty of possession of drug paraphernalia. Matthews was sentenced to two-and-a-half years' imprisonment followed by four years of supervised probation, and received 81 days of presentence incarceration credit. ¶9 Matthews timely appealed. See Ariz. R. Crim. P. Rule 31.3. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, as well as Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
In a traditional drug sting operation, police officers act as drug users or buyers. In a reversal, the police act as drug vendors. In drug transactions there are typically three main roles, the drug supplier, the drug buyer, and the middleman or broker who brings the two together to conduct a transaction.
The informant and Broker testified that when the buyers arrived, Matthews was the driver of the vehicle.
Police also found receipts for packages that had already been shipped and they were able to intercept one package before it was delivered in South Carolina. That package was found to contain marijuana.
Matthews received four years of supervised probation for Count 1, conspiracy to commit possession of marijuana for sale; two-and-a-half years' imprisonment for Count 2, money laundering in the second degree; and two-and-a-half years' imprisonment for Count 3, misconduct involving weapons. The sentences for Counts 2 and 3 were ordered to be served concurrently "because they essentially were single acts committed the same day giving rise to multiple offenses." The court then ordered that Matthews would serve his probation for Count 1 following the term of incarceration for Counts 2 and 3.
STANDARD OF REVIEW
¶10 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20.
DISCUSSION
¶11 After careful review of the record, we find no grounds for reversal of Matthews' conviction or sentence. The record reflects Matthews had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Matthews was present and represented by counsel at all critical stages of trial, was given the opportunity to speak at sentencing, and the sentence imposed was within the range for Matthews' offenses. ¶12 In reviewing the sufficiency of evidence at trial, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶13 First, there is evidence in the record to support the jury's conviction of Matthews for the crime of conspiracy to commit possession of marijuana for sale. "A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense . . . ." A.R.S. § 13-1003(A) (2010). To commit possession of marijuana for sale the person must knowingly possess marijuana for the purpose of sale. A.R.S. § 13-3405(A)(2) (Supp. 2012); see also A.R.S. § 13-3401(32) (Supp. 2012). ¶14 In this case, both the informant and Broker testified that Matthews was one of the buyers negotiating the purchase of 100 pounds of marijuana. The State played an audio recording obtained from a wire the informant was wearing during the investigation. The informant identified Matthews as the person who stated "I'll take a hundred right now," and testified that there was no doubt in his mind that Matthews was one of the buyers. In addition, the informant also testified that Matthews stated they had so many buyers lined up the informant would not need to look for any more business. After making the agreement, Matthews led the informant and Broker back to the house where the transaction was to occur, and Broker testified that Matthews went inside and began counting money. ¶15 Second, there is evidence in the record to support the jury's conviction of Matthews for the crime of money laundering in the second degree. A person commits money laundering in the second degree if he "[c]onducts a transaction knowing or having reason to know that the property involved is the proceeds of an offense and with the intent to conceal or disguise the nature, location, source, ownership or control of the property or the intent to facilitate racketeering." A.R.S. § 13-2317(B)(3) (2010). ¶16 Here, Broker testified that once inside the house Matthews began counting money, and police officers testified that $18,530 in cash was found inside the house. Police testified that Linwood had no employment that they could find, and Matthews testified that he makes a total of $2200 a month after taxes. In addition, Broker testified that he had done business at the house a couple of times in the past. Based on Linwood and Matthews' income, the jury could have inferred that the cash found at the house was the profit of an offense. In addition, based on the informant's and Broker's testimony and the quantity of marijuana to be purchased, see supra ¶¶ 4, 14, there was also evidence that Matthews was committing the offense, conspiracy to commit possession of marijuana for sale, for financial gain. ¶17 Finally, there is evidence in the record to support the jury's conviction of Matthews for the crime of misconduct involving weapons. Misconduct involving weapons requires proof "that the defendant intended to use or could have used the weapon to further the felony drug offense underlying the weapons misconduct charge." State v. Petrak, 198 Ariz. 260, 266, ¶ 19, 8 P.3d 1174, 1180 (App. 2000); see A.R.S. § 13-3102(A)(i)(a) (Supp. 2012). "Factors tending to show that the weapon was or could be used in this way for a drug offense include spatial proximity and accessibility of the weapon to the defendant and to the site of the drug offense." Petrak, 198 Ariz, at 266, ¶ 19, 8 P.3d at 1180. ¶18 Here, there is evidence in the record to support the jury's conviction of Matthews for a felony, conspiracy to commit possession of marijuana for sale. See supra ¶ 14. In addition, even though Matthews denied being involved, he admitted to bringing two firearms to the house. As a result, the jury had sufficient evidence to find that Matthews had a gun during the commission of a felony drug offense. ¶19 In comparing the evidence in the record to the evidence listed in the statutes, we find there was sufficient evidence to support the jury's conviction of Matthews on all three counts.
"The overt act which is necessary for conspiracy is required as a method of showing that some step has been taken toward executing the illicit agreement. Any action that will corroborate the existence of the agreement and will show that it is being put into effect is sufficient to support the conspiracy charge." State v. Gessler, 142 Ariz. 379, 383, 690 P.2d 98, 102 (App. 1984).
We cite the most current version of the applicable statutes when no revisions material to this decision have since occurred.
"'Racketeering' means any act [committed for financial gain], including any preparatory or completed offense, that is chargeable or indictable under the laws of the state or country in which the act occurred and . . . would be punishable by imprisonment for more than one year . . ." and involves "[p]rohibited drugs, marijuana or other prohibited chemicals or substances." A.R.S. § 13-2301(D)(4)(b)(xi) (2010).
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CONCLUSION
¶20 For the foregoing reasons, we affirm Matthews' convictions and sentence. Upon the filing of this decision, defense counsel shall inform Matthews of the status of his appeal and his future appellate options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 58485, 684 P.2d 154, 156-57 (1984). Upon the Court's own motion, Matthews shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.
______________________
DONN KESSLER, Judge
CONCURRING: ______________________
MICHAEL J. BROWN, Presiding Judge
______________________
ANDREW W. GOULD, Judge