State v. Cryer ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DALE DEAN CRYER, Appellant.
No. 1 CA-CR 16-0431
FILED 6-15-2017
Appeal from the Superior Court in Maricopa County
No. CR 2015-112211-001
The Honorable John Christian Rea, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence H. Blieden
Counsel for Appellant
STATE v. CRYER
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Kent E. Cattani joined.
K E S S L E R, Judge:
¶1 Dale Dean Cryer (“Cryer”) was tried and convicted of
possession or use of a dangerous drug, a class 4 felony, and possession of
drug paraphernalia, a class 6 felony. Counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967) and State v. Clark, 196 Ariz. 530(App. 1999). Finding no arguable issues to raise, counsel requests that this
Court search the record for fundamental error. See State v. Richardson, 175
Ariz. 336, 339 (App. 1993). Cryer filed a pro per supplemental brief, and
requests this Court review the issues discussed below. For the following
reasons, we affirm Cryer’s convictions, but modify his sentences to grant
him the correct amount of presentence incarceration credit.
FACTUAL AND PROCEDURAL HISTORY
¶2 On March 15, 2015, around 11:50pm Cryer was pulled over by
a Phoenix police officer for expired registration on his license plates. Upon
contact with Cryer, the officer learned that the vehicle did not belong to
Cryer, but that he did have permission to drive it. Due to Cryer’s behavior
and vague answers to the officer’s questions, the officer became suspicious
of Cryer and asked if he could search the car and Cryer. Cryer gave him
permission to do so, and upon searching the car the officer found a cigarette
pack that contained what he believed to be methamphetamine. The officer
then arrested Cryer and gave him a Miranda warning.1
¶3 The officer then questioned Cryer and he admitted that the
cigarette pack and methamphetamine were his and that he had just
purchased the drugs for $35. The substance was later tested by a forensic
scientist and determined to be methamphetamine.
¶4 After a two-day jury trial, Cryer was found guilty of
possession or use of a dangerous drug, a class 4 felony, and possession of
drug paraphernalia, a class 6 felony. The court sentenced Cryer to a
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. CRYER
Decision of the Court
concurrent term of seven years’ imprisonment for possession or use of a
dangerous drug, and 3.75 years for possession of drug paraphernalia. Cryer
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) sections
13-4031 (2017) and 13-4033(A)(1) (2008).2
DISCUSSION
¶5 In an Anders appeal, because no issues were preserved below,
this Court reviews the entire record for fundamental error. State v. Flores,
227 Ariz. 509, 512, ¶ 12 (App. 2011) (citation omitted). Error is fundamental
when it affects the foundation of the case, deprives the defendant of a right
essential to his defense, or is an error of such weight that the defendant
could not possibly have had a fair trial. State v. Henderson, 210 Ariz. 561, 567,
¶ 19 (2005) (citations and quotations omitted). A defendant must also show
the error prejudiced him. Id. at ¶ 20 (citations omitted).
I. Sufficiency of the Evidence
¶6 On review, this Court views the facts in the light most
favorable to sustaining the jury’s verdict and resolves all inferences against
the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998) (citation
and quotation omitted). “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 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)).
A. Possession or Use of a Dangerous Drug
¶7 There was sufficient evidence to prove Cryer committed the
crime of possession or use of a dangerous drug. This crime is proven when
a person knowingly possesses or uses a dangerous drug. A.R.S. § 13-
3407(A)(1) (2011). Methamphetamine is a dangerous drug pursuant to
A.R.S. § 13-3401(6)(a)(xxxviii) (2014). The State offered the testimony of the
arresting officer that upon searching the vehicle he found a paper
containing a substance he believed to be methamphetamine. The officer
also testified that Cryer admitted the methamphetamine was his and that
he had just purchased the drugs for $35. Additionally, a forensic scientist
testified that he performed the requisite tests on the substance and
determined that it was in fact methamphetamine.
2 We cite to the current version of statutes unless changes material to
the decision have since occurred.
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STATE v. CRYER
Decision of the Court
B. Possession of Drug Paraphernalia
¶8 There was also sufficient evidence to prove Cryer was in
possession of drug paraphernalia. Under A.R.S. § 13-3415(A) “[i]t is
unlawful for any person to use, or to possess with the intent to use, drug
paraphernalia to . . . pack, repack, store, contain, [or] conceal . . . a drug.”
A.R.S. § 13-3415(A) (2017). The State offered the testimony of the arresting
officer that during the search of the car he found a cigarette pack that
contained a substance that was later determined to be methamphetamine.
The officer also testified that Cryer admitted the cigarette pack was his. The
court also admitted into evidence the cigarette pack the drugs were stored
in.
II. Cryer’s Issues for Review
¶9 Cryer raised three issues for this Court to review in his pro
per supplemental brief. First, Cryer argues he was denied a fair trial because
of juror bias. Specifically, he points to the bias of “at least [seven]” jurors
who have connections to either law enforcement or members of the legal
community. However, each of the jurors Cryer takes issue with answered
“no” when asked if their connections to law enforcement or the legal
community would make it difficult for them to be unbiased. See State v.
Blackman, 201 Ariz. 527, 533, ¶ 12 (App. 2002) (holding a court “need not
remove jurors who ultimately assure the trial court that they can be fair and
impartial.”). In addition, Cryer contends that one of the jurors knew the trial
judge because their daughters played soccer together. The exchange
between the two was as follows:
The Court: I think you do know me, at some point. It’s been
a long time, though. Obviously, I didn’t make
an impression. I was pretty quiet on the
sidelines.
Juror: I wasn’t.
The Court: You were not. All right.
The transcript shows that although the judge recognized the juror, the juror
did not recognize the judge. Additionally, a juror who knows a person
involved in a case is not automatically barred from serving on a jury. State
v. Hill, 174 Ariz. 313, 319 (1993) (citations omitted); see State v. Brosie, 24 Ariz.
App. 517, 520-21 (1975) (finding trial judge did not abuse discretion by
refusing to strike for cause a highway patrolman who knew the prosecutor
by sight). Thus, there was no error in not striking the juror.
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STATE v. CRYER
Decision of the Court
¶10 Second, Cryer believes the State’s motions for a Rule 609
hearing to impeach Cryer’s possible testimony by showing prior felony
convictions, as well as the motion in limine to prevent evidence regarding
Cryer’s mental health, were prejudicial in nature. Additionally, Cryer
complains these motions were made without “defense’s objection or
contestation.”
¶11 Arizona law holds impeachment evidence of prior felony
convictions is not only proper and constitutional, but does not
unreasonably impinge on a defendant’s right to testify. State v. Harding, 141
Ariz. 492, 498-99 (1984) (citations omitted). In any event, Cryer chose not to
testify at trial and therefore “waive[d] his right to challenge the trial court’s
ruling on the admissibility of a prior conviction.” State v. Lee, 189 Ariz. 608,
617 (1997) (citations omitted).
¶12 As to the motion in limine, there is no evidence that the court
ever made a ruling on the motion, nor did the defense attempt to introduce
evidence of Cryer’s mental health. As such, we do not address this issue.
See Reid v. Van Winkle, 31 Ariz. 267, 270-71 (1927) (finding a party is deemed
to have abandoned issue when trial court did not rule on motion; issue
waived on appeal).
¶13 Additionally, Cryer argues that both the Rule 609 motion and
motion in limine were made without his counsel’s objection. We view that
argument as an ineffective assistance of counsel claim. Claims of ineffective
assistance of counsel cannot be considered on direct appeal, but only
through a Rule 32 petition for post-conviction relief. State v. Spreitz, 202
Ariz. 1, 3, ¶ 9 (2002).
¶14 Finally, Cryer argues that the court’s use of his historical
felony priors for sentencing purposes was incorrect, and he therefore was
sentenced to a longer period than he should have been. As discussed infra,
we find that Cryer’s sentencing was appropriate and statutorily correct.
III. Sentencing
¶15 Cryer received the following mitigated and presumptive
concurrent sentences: seven years’ imprisonment for Count 1, possession
or use of dangerous drugs, a class 4 non-dangerous repetitive felony; and
3.75 years’ imprisonment for Count 2, possession of drug paraphernalia, a
class 6 non-dangerous repetitive felony. The court found that Cryer had
more than two prior felony convictions, placing him as a category three
repetitive offender. A.R.S. § 13-703(C) (2016). Under A.R.S. § 13-703(J) the
presumptive sentence for a class 4 felony is ten years, and a mitigated
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STATE v. CRYER
Decision of the Court
sentence is six years. Additionally, a sentence for a class 6 felony has a
presumptive 3.75 years.
¶16 Cryer argues that the historical priors the State used to
enhance his sentence were not historical priors under A.R.S. §§ 13-
105(22)(a)(i) (2015) and 13-3401(36)(e). However, a historical prior felony
conviction is “[a]ny felony conviction that is a third or more prior felony
conviction.” A.R.S. § 13-105(22)(d). Cryer had seven prior felony
convictions, and he admitted to those priors. As such, there was no error in
his sentences.
¶17 The court gave Cryer sixty-nine days of presentence
incarceration credit. Cryer was arrested on March 15, 2015 and was released
on bail the following day. Cryer’s release was revoked on January 15, 2016
for failure to comply with pretrial services. He was released on bail later
that same day. Cryer was taken into custody after the jury found him guilty
on March 31, 2016. His sentencing hearing was held June 8, 2016. The
number of days between the guilty verdict and his sentencing was sixty-
nine days. However, a defendant is entitled to a full day of presentence
incarceration credit for any partial day spent in custody. State v. Carnegie,
174 Ariz. 452, 454 (App. 1993). As such, Cryer is entitled to an additional
three days of presentence incarceration credit for the three partial days he
spent in jail prior to trial. Therefore, pursuant to A.R.S. § 13-4037 (2017), this
Court modifies Cryer’s sentences to reflect a total of seventy-two days of
presentence incarceration credit. See State v. Stevens, 173 Ariz. 494, 496 (App.
1992).
CONCLUSION
¶18 For the foregoing reasons, we affirm Cryer’s convictions, but
modify his sentence to reflect seventy-two days of presentence
incarceration credit.
AMY M. WOOD • Clerk of the Court
FILED: AA
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