Opinion
No. 1 CA-CR 14-0008
02-26-2015
STATE OF ARIZONA, Appellee, v. STEVEN TOAGER SFERA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Tennie B. Martin 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2013-030029-001
The Honorable Cynthia Bailey, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Kent E. Cattani joined. KESSLER, Judge:
¶1 Appellant Steven Toager Sfera ("Sfera") was tried and convicted of possession of marijuana, a class 1 misdemeanor, and possession of drug paraphernalia, a class 1 misdemeanor. Counsel for Sfera filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Sfera was given the opportunity to file a supplemental brief in propria persona, but did not do so. Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. For the reasons that follow, we affirm Sfera's conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶2 On December 20, 2011, Officer MB received a call from her dispatcher to perform a welfare check on a white male, approximately thirty years old, wearing light-colored clothing. The dispatcher stated that this individual may be on bath salt.
The term "bath salt" refers to products containing synthetic derivatives of cathinone, a central nervous stimulant. Drugs of Abuse, at 74, Drug Enforcement Admin. (2011), http://www.dea.gov/pr/multimedia-library/publications/drug_of_abuse.pdf (last visited Feb. 13, 2015).
¶3 When Officer MB arrived, Sfera was yelling and talking to himself and said something about someone being shot. Officer MB parked her patrol car, got out of the vehicle, and approached Sfera. She asked Sfera if he was ok and questioned Sfera regarding his statements about someone being shot. She quickly determined that there was nothing to those statements.
¶4 While Officer MB and Sfera were talking, Sfera was eating something he identified as bath salt. Additionally, he was carrying two tubes in his hand, which he indicated contained bath salt. Officer MB testified that she thought bath salt had just become illegal prior to the time of the incident.
¶5 When another officer, Officer GL, arrived at the scene, the officers asked Sfera if they could test the contents of the tubes. Sfera said yes and handed Officer GL the tubes. After performing a flash test on the white substance, the officers told Sfera that the white substance tested positive for cocaine and began to take Sfera into custody. Officer GL performed a search incident to arrest and found three baggies of green substance in Sfera's pockets. Although Sfera identified the green substance as spice, later testing revealed that the green substance was marijuana.
¶6 Sfera was indicted for one count of possession of marijuana and one count of possession of drug paraphernalia. Sfera pled not guilty to all charges and knowingly, intelligently, and voluntarily waived his right to a jury trial.
¶7 After a one-day bench trial, the court found Sfera guilty on both counts. The court suspended sentencing and placed Sfera on unsupervised probation for 18 months. The court also ordered Sfera to pay $65 per month to cover the probation service fee, a $1380 fine, a $20 probation surcharge, and a $20 time payment fee.
Technically, the $20 is an assessment. State v. Pelaez, 235 Ariz. 264, 265, ¶ 4, 330 P.3d 1021, 1022 (App. 2014).
¶8 The superior court orally pronounced the sentence on December 13, 2013. Sfera filed his notice of appeal on January 2, 2014. Thus, the appeal was timely filed within 20 days of sentence pursuant to Rule 31.3, Arizona Rules of Criminal Procedure.
The twenty-day time limit for filing a notice of appeal begins to run on the date of oral pronouncement of sentence. State v. Whitman, 234 Ariz. 565, 568, ¶ 20, 324 P.3d 851, 854 (2014).
DISCUSSION
¶9 In an Anders appeal, this Court reviews the entire record for fundamental error. Error is fundamental when it affects the foundation of the case, deprives a defendant of a right essential to his defense, or is an error of such magnitude that the defendant could not possibly have had a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991).
¶10 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)).
¶11 The crime of possession of marijuana requires proof that a person knowingly possessed marijuana. Ariz. Rev. Stat. ("A.R.S.") § 13-3405(A)(1) (Supp. 2014). Here, the State presented the testimony of the Arizona Department of Public Safety crime lab criminalist who tested the green substance found on Sfera. The criminalist testified that after testing the green substance, she concluded it was, in fact, marijuana.
We cite to the current versions of statutes when no changes material to this decision have since occurred.
¶12 Further, the State presented evidence to support a finding that Sfera knowingly possessed the marijuana. Although the State presented no direct evidence that Sfera knew he possessed marijuana, "both knowledge and possession may be shown by circumstantial evidence." State v. Hull, 15 Ariz.App. 134, 135, 486 P.2d 814, 815 (1971). Requisite knowledge can be proved by showing that a defendant "was aware of the high probability that the packages contained [the] narcotic drug . . . and that he acted with a conscious purpose to avoid learning the true contents of the packages." State v. Fierro, 220 Ariz. 337, 339, ¶ 6, 206 P.3d 786, 788 (App. 2008) (citing State v. Diaz, 166 Ariz. 442, 445, 803 P.2d 435, 438 (App. 1990)). The "issue of whether defendant acted knowingly and intentionally [is] a judgment of his credibility." Id. (citing State v. Haas, 138 Ariz. 413, 420, 675 P.2d 673, 680 (1983)). Credibility determinations are for the fact finder, not this Court. See State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996), abrogated on other grounds as recognized by State v. Hardy, 2130 Ariz. 281, 291, ¶ 49, 283 P.3d 12, 22 (2012).
¶13 Although Sfera said that he did not believe he had purchased marijuana at the time of the incident, the court could have inferred Sfera's knowledge based on the evidence presented. First, Sfera purchased the bags from a man standing in front of the same "deli slash smoke shop" where Sfera purchased the bath salt. The man had been standing in front of the shop for several hours, did not identify himself as an employee of the shop, and was not wearing any clothing to indicate that he worked at the shop. When asked whether Sfera knew the man, Sfera said they "might have met once before, [they] might not have." Second, the man told Sfera that the substance was something he could not keep in the shop. Third, Sfera said that although he thought the green leafy substance was "[s]pice or some sort of hybrid," he ultimately "wasn't sure what [it was]" and was not sure it was legal. When asked if he believed the green leafy substance was marijuana, Sfera said, "No—no—possibly. I was told it was sprayed with something that wouldn't allow it to go into the store." Fourth, Sfera had seen marijuana before and had looked at the bags before putting them in his pockets. Finally, the trial judge did not find Sfera credible as a witness regarding the circumstances.
¶14 The crime of possession of drug paraphernalia requires proof that a person used drug paraphernalia to store or contain an illegal drug. A.R.S. § 13-3415(A) (2010). "Drug paraphernalia" includes containers and other objects used, intended for use, or designed for use in storing drugs. A.R.S. § 13-3415(F)(2)(j). Paraphernalia like plastic bags are not "unlawful per se," but are only unlawful to "the extent that they are used or intended to be used in conjunction with a controlled substance." State v. Estrada, 197 Ariz. 383, 387, ¶ 21, 4 P.3d 438, 442 (App. 2000). In determining whether an item is "drug paraphernalia," a court shall consider a list of fourteen factors, in addition to other logically relevant factors. A.R.S. § 13-3415(E). These factors include the proximity of the object to drugs. A.R.S. § 13-3415(E)(4). The State presented sufficient evidence to show that Sfera used the bags to store drugs. Sfera had three bags containing marijuana in his pockets, and Sfera said the bags were his.
CONCLUSION
¶15 After careful review of the record, we find no meritorious grounds for reversal of Sfera's convictions or modification of the sentence imposed. The evidence supports the verdict, the proceedings complied with the Arizona Rules of Criminal Procedure, the sentence imposed was within the sentencing limits, and Sfera was present and represented at all stages of the proceedings below. Accordingly, we affirm Sfera's convictions and sentence.
See A.R.S. §§ 13-901.01(A) and (D) (probation for persons convicted of possession or use of controlled substances or drug paraphernalia); 13-901(A) (monthly probation service fee); 13-802(A) (fines for class 1 misdemeanor); 12-114.01(A) (probation surcharge); 12-116 (time payment fee).
¶16 Upon the filing of this decision, counsel shall inform Sfera of the status of the appeal and his 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, 584-85, 684 P.2d 154, 156-57 (1984). Sfera 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.