State v. Robinson ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JAMES ROBINSON, Appellant.
No. 1 CA-CR 17-0805
FILED 9-27-2018
Appeal from the Superior Court in Maricopa County
No. CR 2016-002571-001
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Appellant
James Robinson, San Luis
Appellant
STATE v. ROBINSON
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge James P. Beene joined.
C A M P B E L L, Judge:
¶1 James Robinson appeals his conviction and sentence for one
count of sale or transportation of narcotic drugs. After searching the entire
record, Robinson’s defense counsel identified no arguable question of law
that is not frivolous. Therefore, in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asked
this Court to search the record for fundamental error. Robinson was
granted an opportunity to file a supplemental brief in propria persona and
did so. After reviewing the entire record, we reject the arguments raised in
Robinson’s supplemental brief and find no error. Accordingly, Robinson’s
conviction and sentence are affirmed.
BACKGROUND
¶2 In the afternoon of October 14, 2015, an undercover detective
with the Phoenix Police Department stopped his unmarked vehicle at the
corner of 13th Avenue and Pima Street in Phoenix and waved to a group of
males standing nearby.1 An older African-American man wearing black-
and-white checkered shorts approached the vehicle. The detective stated he
“was looking for some rock,” or crack cocaine. When the man asked how
much, the detective said he “wanted a dub,” or $20 worth. The man in the
checkered shorts walked over to an individual, retrieved an item, and
returned to the vehicle with an off-white-colored rock the detective
recognized as crack cocaine. The detective paid the man $20, denied the
man’s request for “a hit,” and left the area. A second detective passing by
shortly thereafter also saw an older African-American man wearing black-
and-white plaid or checkered shorts on the corner.
1“We view the facts in the light most favorable to sustaining the convictions
with all reasonable inferences resolved against the defendant.” State v.
Valencia, 186 Ariz. 493, 495 (App. 1996).
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STATE v. ROBINSON
Decision of the Court
¶3 Fifteen minutes later, a uniformed officer canvassed the area
attempting to locate and identify the man who completed the drug
transaction. The officer contacted an older African-American man in black-
and-white plaid shorts walking in the street nearby. The man gave his name
as James Robinson. Both the officer and the undercover detective confirmed
the man they contacted was the same man depicted in Robinson’s driver’s
license photo.
¶4 Robinson was indicted on one count of sale or transportation
of narcotic drugs. At trial, a forensic scientist confirmed the substance the
detective purchased was 191.6 milligrams of cocaine base, or crack cocaine,
which the parties stipulated is a narcotic drug.
¶5 Following an unsuccessful motion for judgment of acquittal,
the jury convicted Robinson as charged. At a separate trial on prior
convictions, the State presented certified records and fingerprint evidence
to verify Robinson’s prior felony convictions. The superior court then
sentenced Robinson as a non-dangerous, repetitive offender to the
minimum sentence of 10.5 years’ imprisonment and credited him with 239
days of presentence incarceration.
DISCUSSION
¶6 Within his supplemental brief, Robinson argues insufficient
evidence supports his conviction and, therefore, his sentence is excessive
and illegal.2 When reviewing the sufficiency of the evidence, “[t]he relevant
question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” State v. Cox, 217 Ariz.
353, 357, ¶ 22 (2007) (citation omitted). Therefore, we will affirm a
conviction so long as “substantial evidence supports the jury’s verdict,
viewing the facts in the light most favorable to sustaining the jury verdict.”
Id. (citation omitted). Substantial evidence may exist even where conflicting
evidence is presented. See State v. Flowers, 110 Ariz. 566, 567 (1974).
¶7 A person is guilty of sale or transport of a narcotic drug if he
“knowingly . . . [t]ransport[s] for sale, . . . offer[s] to transport for sale . . . ,
sell[s], transfer[s], or offer[s] to sell or transfer a narcotic drug.” A.R.S. § 13-
3408(A)(7). Crack cocaine is a narcotic drug. A.R.S. § 13-3401(20)(bb)
(defining “narcotic drug” to include “any substance neither chemically nor
2We have received Robinson’s motion for substitution of counsel and to
proceed in propria persona. It is ordered denying the motion.
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STATE v. ROBINSON
Decision of the Court
physically distinguishable from . . . coca leaves,” whether “of natural or
synthetic origin”). The record contains sufficient evidence upon which the
jury could determine beyond a reasonable doubt that Robinson knowingly
sold the undercover detective $20 worth of crack cocaine and was therefore
guilty of sale or transport of a narcotic drug. Additionally, Robinson’s
sentence was within the statutory range.3 A.R.S. § 13-703(C), (J).
Accordingly, we find no error in the conviction or sentence.
¶8 Robinson argues the indictment was insufficient to apprise
him of the nature and cause of the accusations against him. An indictment
is “a plain, concise statement of the facts sufficiently definite to inform the
defendant of a charged offense.” Ariz. R. Crim. P. 13.1(a); accord State v.
Schwartz, 188 Ariz. 313, 319 (App. 1996). “Each count of an indictment or
information must state the official or customary citation of the statute . . .
the defendant allegedly violated.” Ariz. R. Crim. P. 13.1(d). The purpose of
the indictment is simply to provide notice of the charges, however, and it
need not detail the prosecution’s theory of the case. Schwartz, 188 Ariz. at
319-20. The indictment here accuses Robinson of knowingly selling or
transporting the narcotic drug crack cocaine in violation of A.R.S. § 13-3408
on or about October 14, 2015. Nothing more was required, and we find no
error.
¶9 Robinson argues the statutory definition of “narcotic drug”
is unconstitutionally vague and does not include crack cocaine. We
disagree. Coca leaves are a narcotic drug and include “cocaine, its optical
isomers and any compound, manufacture, salt, derivative, mixture or
preparation of coca leaves.” A.R.S. § 13-3401(5), (20)(bb). This definition
plainly includes crack cocaine, see United States v. Pierce, 893 F.2d 669, 676
(5th Cir. 1990) (“Cocaine base is merely an isomer of cocaine.”)—a fact
Robinson stipulated to at trial.
¶10 Finally, Robinson argues he was not tried before “a properly
constituted jury” because the pool of seventy potential jurors contained
only two African-American individuals and did not accurately represent
3 The record reflects Robinson was arrested and incarcerated on April 7,
2017, and held until sentencing on December 1, 2017, for a total of 238 days
of presentence incarceration. Although the trial court erroneously gave
Robinson credit for 239 days of presentence incarceration, the error is in
Robinson’s favor and is, therefore, not fundamental because it did not
prejudice him. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20 (2005)
(explaining fundamental error is error that both goes to the foundation of
the case and prejudices the defendant).
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STATE v. ROBINSON
Decision of the Court
the racial makeup of his community. We will not reverse a conviction based
upon irregularities in the selection of a jury, however, if a fair and impartial
jury was ultimately secured. See Ariz. R. Crim. P. 18.4(a) (noting “[a] party
may challenge the panel on the ground that its selection involved a material
departure from the requirements of law,” but “must be in writing, specify
the factual basis for the challenge, and make a showing of prejudice to the
party”); State v. Thomas, 133 Ariz. 533, 537 (1982) (“[A]bsent some showing
of abuse and resulting prejudice, Rule 18.4(a) does not require reversal so
long as a party’s right to an impartial jury is not impaired.”). Robinson does
not allege, let alone demonstrate, that the jurors ultimately selected could
not or did not render a fair and impartial verdict, and we find no error.
¶11 Further review reveals no fundamental error. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). All the proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure. So far as the record reveals,
Robinson was represented by counsel at all stages of the proceedings and
was present at all critical stages including the entire trial and the verdict.
See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages)
(citations omitted); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be
present at critical stages). The jury was properly comprised of twelve jurors,
and the record shows no evidence of jury misconduct. See Ariz. Const. art.
2, § 23; A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a). The superior court
properly instructed the jury on the elements of the charged offenses, the
State’s burden of proof, and Robinson’s presumption of innocence. At
sentencing, Robinson was given an opportunity to speak, and the court
stated on the record the evidence and materials it considered and the factors
it found in imposing the sentences.4 See Ariz. R. Crim. P. 26.9, 26.10.
CONCLUSION
¶12 Robinson’s convictions and sentences are affirmed.
4 Although the record does not contain a presentence report, it is apparent
the superior court ordered the report and that both the court and the parties
received and considered the report, as well as the mitigation report
submitted by Robinson, in advance of the sentencing hearing. Under these
circumstances, the absence of the presentence report in the appellate record
does not amount to fundamental error. See State v. Maese, 27 Ariz. App. 379,
379-80 (1976); see also Ariz. R. Crim. P. 26.4(c) (requiring the presentence
report to be “delivered to the sentencing judge and to all counsel” but not
filed).
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STATE v. ROBINSON
Decision of the Court
¶13 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, his obligations are
fulfilled once he informs Robinson of the outcome of this appeal and his
future options. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Robinson
has 30 days from the date of this decision to proceed, if he wishes, with a
pro per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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