Opinion
No. 2 CA-CR 2013-0515
07-08-2014
THE STATE OF ARIZONA, Appellee, v. SEAN ALLEN MCCANN, Appellant.
Lori J. Lefferts, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20130985001
The Honorable Kenneth Lee, Judge
AFFIRMED
COUNSEL
Lori J. Lefferts, 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 Chief Judge Eckerstrom and Judge Kelly concurred.
ESPINOSA, Judge:
¶1 After a jury trial, appellant Sean McCann was convicted of possession of a dangerous drug (methamphetamine) and possession of drug paraphernalia. The trial court suspended the imposition of sentence and placed McCann on concurrent three-year terms of probation. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), asserting she has reviewed the record but found no arguable issue to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, 2 P.3d at 97, she has provided "a detailed factual and procedural history of the case with citations to the record" and asks this court to search the record for error. McCann has filed a supplemental brief arguing the arresting police officer's testimony at the evidentiary hearing on McCann's motion to dismiss was not credible, and that his trial counsel erroneously advised him to not testify at that hearing.
¶2 Viewing the evidence in the light most favorable to sustaining the verdict, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), we find sufficient evidence supports the jury's verdict. During a traffic stop, McCann consented to a search, and a police officer found methamphetamine in McCann's pocket, wrapped in a small baggie. See A.R.S. §§ 13-3401(6)(c)(xxxviii), 13-3407(A)(1), 13-3415. And we find no error in the trial court's imposition of probation. See A.R.S. §§ 13-603(B), 13-901(A).
¶3 In his supplemental brief, McCann argues the police officer's testimony at the suppression hearing was unreliable because the officer did not record their conversation before he searched McCann, and that his failure to do so was inconsistent with
his testimony about when he normally would use a recording device. McCann also suggests, without citation to supporting evidence in the record, that the officer falsely testified he had advised McCann of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and that McCann had committed a traffic violation and consented to the search.
¶4 The trial court is in the best position to evaluate the credibility of witnesses and McCann has identified no basis for us to disturb that evaluation on appeal. See State v. Moran, 232 Ariz. 528, ¶ 6, 307 P.3d 95, 98 (App. 2013). And McCann's claim that his trial counsel improperly advised him to forgo testifying at his suppression hearing cannot be raised on appeal and must be raised in a proceeding pursuant to Rule 32, Ariz. R. Crim. P. See State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002). Thus, we do not address this argument.
¶5 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, 694 P.2d 1185, 1189 (1985) (Anders requires court to search record for fundamental error). And we have rejected the arguments McCann raised in his supplemental brief. Accordingly, McCann's convictions and probation terms are affirmed.