State v. Armstrong ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RONALD VOYT ARMSTRONG, JR., Appellant.
No. 1 CA-CR 14-0120
FILED 5-12-2015
Appeal from the Superior Court in Maricopa County
No. CR2013-111977-001
The Honorable Brian Kaiser, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
STATE v. ARMSTRONG
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Ronald Voyt Armstrong, Jr., (“Defendant”) appeals from his
convictions and sentences for theft, possession or use of dangerous drugs,
and theft of a credit card or obtaining a credit card by fraudulent means.
Defendant’s counsel filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), advising this Court
that after a search of the entire appellate record, no arguable ground exists
for reversal. Defendant was granted leave to file a supplemental brief in
propria persona, and did so.
¶2 Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30 (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), 13-4031 and 13-4033(A)(1) (West 2015).1 Finding no reversible
error, we affirm.
Facts and Procedural History2
¶3 Sergeant Maiocco responded to a call in the 5200 block of
West Indian School Road where he arrested Defendant. During a search
incident to arrest, Maiocco found a substance that he believed to be drugs
in Defendant’s rear left pocket. Officer Rowan was called to the scene and,
1 Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have
occurred.
2 We view the evidence in the light most favorable to sustaining the
convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293
(1989).
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STATE v. ARMSTRONG
Decision of the Court
based on his training and experience, concluded the substance was
methamphetamine.
¶4 Rowan transported Defendant to Maryvale Precinct. Rowan
advised Defendant of his Miranda rights and interviewed Defendant.
Defendant made statements to Rowan indicating he knew the substance
was methamphetamine.
¶5 Defendant was indicted for one count of theft, a class one
misdemeanor; one count of possession or use of dangerous drugs, a class
four felony; one count of possession of drug paraphernalia, a class six
felony; and one count of theft of credit card or obtaining a credit card by
fraudulent means, a class five felony. The trial court granted Defendant’s
motion to sever the drug charges from the theft charges, and the case
proceeded to trial solely on the drug charges.
¶6 During trial, Matthew Schubach, a forensic expert with the
Phoenix Crime Lab, stated that he performed testing on the substance
found in Defendant’s possession, including confirmatory testing, and
determined it was methamphetamine.
¶7 The jury found Defendant guilty of one count of possession
or use of dangerous drugs; and one count of possession of drug
paraphernalia.3
¶8 Following trial, Defendant pled guilty to the remaining
charges of theft, a class one misdemeanor, and one count of theft of credit
card or obtaining a credit card by fraudulent means, a class five felony, with
two historical prior felony convictions. The trial court sentenced Defendant
as follows: (1) eighty-six days jail with credit for eighty-six days’ time
served for the theft charge; (2) five years’ imprisonment in the Arizona
Department of Corrections with credit for eighty-six days’ served for the
theft of a credit card or obtaining a credit card by fraudulent means charge;
and (3) nine years’ imprisonment in the Arizona Department of Corrections
with credit for eighty-six days’ time served for the possession or use of
3 The State dismissed Defendant’s charge for possession of drug
paraphernalia prior to sentencing.
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STATE v. ARMSTRONG
Decision of the Court
dangerous drugs conviction.4 All sentences were ordered to run concurrent
with each other.
Discussion
¶9 Defendant filed a supplemental brief challenging the trial
court and State’s jurisdiction on the grounds the evidence does not show he
possessed methamphetamine. We disagree. The substance taken from
Defendant’s possession was identified by a trained officer as
methamphetamine and tested in a lab by a forensic expert where the
substance was confirmed as methamphetamine.
¶10 Defendant also asserts that the trial court erred by admitting
Schubach’s lab report into evidence, and then precluding defense counsel
from cross examining Schubach about whether the methamphetamine was
tested for its purity. “[W]e review the trial court’s determination of the
relevancy and admissibility of evidence for abuse of discretion.” State v.
Rutledge, 205 Ariz. 7, 10, ¶ 15 (2003). Defendant’s argument is without
merit.
¶11 The methamphetamine was properly tested with a gas
chromatograph/mass spectrometer and determined to be
methamphetamine. Gas chromatograph/mass spectrometer results are
widely admitted by courts. State v. Lucero, 207 Ariz. 301, 303, ¶ 10 (App.
2004). Moreover, discussion regarding testing of the methamphetamine’s
purity was not relevant because such a test is not required to establish
usability, unless the amount is so small as to be incapable of being put to
any effective use. State v. Ybarra, 156 Ariz. 275, 276 (App. 1987). Here,
Schubach testified that the 370 milligrams of methamphetamine was a
usable amount. We find no error.
¶12 Defendant contends that his right to an unbiased and
impartial jury trial was violated when the trial court failed to strike juror
number two for cause. We disagree.
¶13 Defendant has a right to unbiased, impartial jurors. State v.
Eddington, 228 Ariz. 361, 363, ¶ 6 (2011). The trial court found juror number
two was impartial and without bias. In any case, juror number two did not
4 In his Opening Brief, defense counsel asserts that the trial court made
two clerical errors in its sentencing minute entry. See Opening Brief, pgs.
10–11 n. 4. These errors are more properly addressed by the trial court upon
the filing of a motion to correct clerical errors pursuant to Ariz. R. Crim. P.
24.4.
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STATE v. ARMSTRONG
Decision of the Court
prejudice Defendant because he did not participate in deliberations. See id.
at ¶¶ 4, 19 (affirming the court’s finding that no prejudice occurred to
Defendant because biased juror had not participated in deciding the case).
¶14 Defendant also alleges that the State committed prosecutorial
misconduct when it failed to notify the court or defense counsel that Rowan
knew juror number two, and when the State objected to Defendant’s cross
examination of Schubach regarding the testing of the methamphetamine’s
purity. “To prevail on a claim of prosecutorial misconduct, a defendant
must demonstrate that the prosecutor’s misconduct ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due
process.’” State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)).
¶15 No misconduct occurred here because the State was made
aware of the casual connection between Rowan and juror number two at
the same time as the court and defense counsel. It also was not a denial of
due process for the State to object to questioning by Defense counsel
regarding irrelevant evidence.
¶16 Defendant argues that the trial court erred by failing to
consider and weigh all of the mitigating factors on the record. We disagree.
¶17 To impose an aggravated or mitigated sentence, the trial court
must, at a minimum, articulate at sentencing the factors considered to be
aggravating or mitigating and explain how these factors led to the sentence
imposed. A.R.S. § 13-701(C); State v. Harrison, 195 Ariz. 1, 4, ¶ 12 (1999).
Here, the trial court stated the circumstances it found to be mitigating and
aggravating, and explained how these factors led to Defendant’s slightly
mitigated sentence. We find no error.
¶18 Finally, the Defendant contends that the trial court erred in
consideration of Defendant’s motion for acquittal under Arizona Rule of
Criminal Procedure 20 when it shifted the burden to Defendant to prove
the substance was not methamphetamine. This contention misstates the
record. The trial court, when evaluating the merits of Defendant’s Rule 20
motion, properly determined that, viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found Defendant
guilty beyond a reasonable doubt. State v. West, 226 Ariz. 559, 562, ¶ 16
(2011) (citation omitted). Maiocco testified that he located the
methamphetamine in Defendant’s rear left pocket. Rowan stated that
Defendant acknowledged that the substance was probably
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STATE v. ARMSTRONG
Decision of the Court
methamphetamine. And Schubach tested and confirmed the substance was
methamphetamine.
¶19 We have read and considered counsel’s brief, carefully
searched the entire record for reversible error and found none. Clark, 196
Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure and substantial evidence
supported the finding of guilt. Defendant was present and represented by
counsel at all critical stages of the proceedings. At sentencing, Defendant
and his counsel were given an opportunity to speak and the court imposed
a legal sentence.
¶20 Counsel’s obligations pertaining to Defendant’s
representation in this appeal have ended. Counsel need do nothing more
than inform Defendant of the status of the appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz.
582, 584–85 (1984). Defendant shall have thirty days from the date of this
decision to proceed, if he so desires, with an in propria persona motion for
reconsideration or petition for review.
CONCLUSION
¶21 For the foregoing reasons, Defendant’s convictions and
sentences are affirmed.
:ama
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