State v. Fulton ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TERRY JACK FULTON, Appellant.
No. 1 CA-CR 18-0195
FILED 3-12-2019
Appeal from the Superior Court in Maricopa County
No. CR2015-148901-001
The Honorable Mark H. Brain, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Michael J. Dew, Phoenix
Counsel for Appellant
STATE v. FULTON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.
P E R K I N S, Judge:
¶1 Terry Jack Fulton appeals his convictions and sentences for
one count of possession of a dangerous drug for sale, one count of
possession of marijuana, and one count of possession of drug
paraphernalia. After searching the entire record, Fulton’s counsel identified
no arguable, non-frivolous questions of law. In accordance with Anders v.
California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), Fulton’s
counsel advised this Court that he has found no arguable question of law
and requested that we search the record for fundamental error. Fulton was
given an opportunity to file a supplemental brief in propria persona, but has
not done so. We have reviewed the record and found no reversible error.
Accordingly, Fulton’s convictions and sentences are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On October 20, 2015, Mesa Police served a search warrant on
Fulton’s trailer. While searching the trailer, officers found a small bag that
contained 3.1 grams of methamphetamine, a marijuana water pipe, and a
lock box.
¶3 Police pried open the lock box and found three baggies
containing a total of 80.9 grams of methamphetamine and three bags
containing a “leafy substance,” one of which later tested positive as five
grams of marijuana. Police also found a digital scale with drug residue,
multiple small clear bags which officers later testified are typically used to
split up large quantities of drugs into 100-200 milligram portions, multiple
glass pipes, and $11,900 in cash. Finally, officers found several items inside
the lock box that identified Fulton, including four cashier’s checks made
payable to “Jack Fulton,” a W-2 form for casino winnings made out to
Fulton, and an Arizona Department of Transportation registration form in
the name of Terry Jack Fulton for a vehicle with a license plate number that
matched the number on Fulton’s trailer.
¶4 During the search of the trailer, a detective saw Fulton pulling
into the trailer park in his truck. The detective arrested Fulton and officers
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STATE v. FULTON
Decision of the Court
transported him to a holding facility. Officers discovered a key to the lock
box in Fulton’s possession when he was arrested.
¶5 The State charged Fulton with possession of dangerous drugs
for sale, a class 2 felony, possession of marijuana, a class 6 felony, and
possession of drug paraphernalia, a class 6 felony. The State additionally
charged Fulton with another drug-related charge, but that charge was
dismissed and is not subject to this appeal. During Fulton’s four-day trial,
the State presented testimony and evidence showing that Fulton lived in
and owned the trailer, controlled the lock box within the trailer, owned and
intended to sell the drugs within the lock box, and used or intended to use
the digital measuring scale within the lock box to package or repackage
drugs for sale. The jury found Fulton guilty on each count and separately
found two aggravating circumstances. The court sentenced Fulton to
concurrent terms of imprisonment within the statutory range for each
count, the longest of which was twelve years.
DISCUSSION
¶6 On appeal, we view the facts, as reflected in the record, in the
light most favorable to sustaining the convictions. State v. Harm, 236 Ariz.
402, 404 n.2 (App. 2015). Our review reveals no fundamental error. See Leon,
104 Ariz. at 299–300 (describing our Anders review process). An individual
is guilty of possession of a dangerous drug for sale if: (1) he knowingly
possessed a dangerous drug; (2) the substance was, in fact, a dangerous
drug; and (3) the possession was for purposes of sale. Ariz. Rev. Stat.
(“A.R.S.”) § 13-3407(A)(2). An individual is guilty of possession of
marijuana if he knowingly possessed marijuana and the substance was, in
fact, marijuana. A.R.S. § 13-3405(A)(1). An individual is guilty of possession
of drug paraphernalia if he used, or possessed with the intent to use, drug
paraphernalia, including “scales and balances” and other equipment used
or intended to be used to pack or repack a dangerous drug. A.R.S.
§ 13-3415(A), (F)(2). Our review of the record reveals sufficient evidence
which would allow a jury to determine, beyond a reasonable doubt, that
Fulton is guilty of the charged offenses.
¶7 The record reflects that all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure, that Fulton 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); State v. Bohn, 116 Ariz.
500, 503 (1977) (right to be present at critical stages). The jury was properly
composed of twelve jurors, and the record shows no evidence of jury
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STATE v. FULTON
Decision of the Court
misconduct. A.R.S. § 21-102; Ariz. R. Crim. P. 18.1(a). The court properly
instructed the jury on the elements of the charged offense, the State’s
burden of proof, and Fulton’s presumption of innocence. At sentencing,
Fulton had the opportunity to speak, and the court stated on the record the
factors it found in imposing the sentences. Ariz. R. Crim. P. 26.9, 26.10. The
sentences imposed were within the statutory limits. See A.R.S. § 13-701 to
-709.
CONCLUSION
¶8 This Court has read and considered counsel’s brief and has
searched the provided record for fundamental error and has found none.
Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537, ¶ 30. Accordingly, Fulton’s
convictions and resulting sentences are affirmed.
¶9 Upon filing of this decision, defense counsel is directed to
inform Fulton of the status of the appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Fulton
shall have 30 days from the date of this decision to proceed, if he desires,
with motion for reconsideration or petition for review in propria persona.
AMY M. WOOD • Clerk of the Court
FILED: AA
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