Opinion
1 CA-CR 12-0341
02-07-2013
STATE OF ARIZONA, Appellee, v. JONATHAN CRAIG MCENTEE, Appellant.
Thomas C. Horne, Attorney General Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Terry Reid, 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(Not for Publication -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. CR2011-150359-002
The Honorable Christine E. Mulleneaux, Commissioner
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Terry Reid, Deputy Public Defender
Attorneys for Appellant
Phoenix
OROZCO, Judge ¶1 Jonathan Craig McEntee (Defendant) appeals his conviction and sentence for possession or use of marijuana, a class one misdemeanor. ¶2 Defendant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, he found no arguable question of law that was not frivolous. Defendant was afforded the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶3 Our obligation in this appeal is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010), and -4033.A.1 (2010). Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶4 Mesa Police Department Detective N.C. (Detective N.C.) testified that in the early morning hours of July 9, 2011, he was on active patrol and stopped for a red light when he observed Defendant's vehicle travelling eastbound in a westbound turn lane. Detective N.C. then observed Defendant's vehicle make a right turn, then a U-turn and return to the westbound lane. Detective N.C. initiated a traffic stop based on the traffic violation, his observance of Defendant's vehicle, and the high-crime nature of the area. Defendant did not immediately stop his vehicle and instead continued to drive approximately a quarter of a mile before stopping. ¶5 Detective N.C. testified that he made contact with Defendant and the passenger and asked whether there were any weapons or illegal substances in the vehicle. Detective N.C. stated that Defendant and the passenger did not respond, but looked away, which led him to ask "where the drugs were" located. Defendant told Detective N.C. that the drugs were "under his seat" while looking over at the passenger. ¶6 Detective N.C. searched under the passenger's seat and found a clear Tupperware-like container that contained a glass smoking pipe and a green leafy substance that he recognized to be marijuana. He testified that when he asked Defendant to whom the drugs belonged, Defendant responded that they belonged to both Defendant and the passenger. ¶7 Defendant was charged with possession or use of marijuana and possession or use of drug paraphernalia. ¶8 At a bench trial, Defendant admitted that he told Detective N.C. that the drugs belonged to him and his passenger but argued that he lied to Detective N.C. about the drugs belonging to him because he did not want his friend to be the only one to get in trouble. He further stated that he did not know the drugs were in the car until he was being pulled over. Defendant was found guilty of possession or use of marijuana. He was sentenced to one year of unsupervised probation. Defendant timely appealed.
At a preliminary hearing, the trial court found that there was not sufficient probable cause as to the charge of possession or use of drug paraphernalia and dismissed that count; therefore, this appeal only concerns the possession or use of marijuana charge.
Defendant was initially charged with possession or use of marijuana, a class 6 felony; however, the State moved to designate the charge as a misdemeanor and proceeded with a bench trial.
DISCUSSION
¶9 When considering the sufficiency of the evidence, "we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction." State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005). "'Substantial evidence' is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). "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. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976). ¶10 Possession or use of marijuana requires proof that the defendant knowingly possessed or used marijuana. A.R.S. § 13-3405.A.1 (Supp. 2012). Possession is defined as "a voluntary act if the defendant knowingly exercised dominion or control over property." A.R.S. § 13-105.35 (Supp. 2012). ¶11 To convict a defendant for possession of marijuana, the State must show that the defendant had knowledge of the drug's presence, that it was in fact marijuana, and that the defendant exercised some control over it. State v. Murphy, 117 Ariz. 57, 61, 570 P.2d 1070, 1074 (1977). Possession need not be physical but may be constructive. Id. "One who exercises dominion or control over property has constructive possession of it even if it is not in his physical possession." State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 13, 965 P.2d 94, 97 (App. 1998). ¶12 Defendant admitted that he was driving his vehicle when stopped by Detective N.C. He also testified that he told Detective N.C. that the marijuana under the passenger seat was both his and the passenger's. Detective N.C. further testified that when he asked Defendant where the drugs were in the car, Defendant stated "under his seat" while looking over at the passenger. The State's forensic expert stated that the green leafy substance found inside the Tupperware-like container was tested and found to be marijuana. Thus, based on the testimony of Defendant, Detective N.C., and the State's forensic expert, substantial evidence supported the trial court's verdict of guilty on the possession or use of marijuana charge.
Absent material revisions, we cite to the current version of applicable statutes.
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CONCLUSION
¶13 We have read and considered counsel's brief and have searched the entire record for reversible error but found none. See State v. Leon, 104 Ariz. at 300, 451 P.2d at 881. The record indicates Defendant was represented by counsel at all stages of the proceedings and that the trial court afforded Defendant all of his rights under the Constitution, Arizona statutes, and the Arizona Rules of Criminal Procedure. See Clark, 196 Ariz. at 541, ¶ 50, 2 P.3d at 100. The sentence imposed by the trial court was within the statutory limits. Id. ¶14 After the filing of this decision, counsel's obligations pertaining to Defendant's representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584, 684 P.2d 154, 156 (1984). Counsel need do no more than inform Defendant of the status of the appeal and Defendant's future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Id. at 585, 684 P.2d at 157. Defendant shall have thirty days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. ¶15 For the foregoing reasons, Defendant's conviction and sentence are affirmed.
__________________________
PATRICIA A. OROZCO, Judge
CONCURRING: _________________________________
MAURICE PORTLEY, Presiding Judge
_______________________
RANDALL M. HOWE, Judge