State v. Jones ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SEAN DONTE JONES, Appellant.
No. 1 CA-CR 18-0504
FILED 3-12-2019
Appeal from the Superior Court in Maricopa County
No. CR2017-001874-001
The Honorable Kathleen H. Mead, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
STATE v. JONES
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.
W I N T H R O P, Judge:
¶1 Sean Donte Jones (“Appellant”) appeals his convictions and
sentences for one count of possession of a dangerous drug and one count of
possession of drug paraphernalia. Appellant’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967); and State v. Leon,
104 Ariz. 297 (1969), stating that she searched the record on appeal and
found “no legal error requiring reversal.” Appellant’s counsel therefore
requested that we review the record for fundamental error. See State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999) (stating that this court reviews
the entire record for reversible error). This court granted counsel’s motion
to allow Appellant to file a supplemental brief in propria persona, and
Appellant did so, raising three issues that we address below.
¶2 We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes sections 12-
120.21(A)(1), 13-4031, and 13-4033(A).
FACTS AND PROCEDURAL HISTORY1
¶3 On September 1, 2016, the Avondale Police Department
executed a search warrant on a suspected drug house. Appellant arrived at
the house moments before the police, stopping at the carport. As the
officers approached, they announced their presence, and Appellant began
running into the backyard of the house. Two detectives chased Appellant
through the backyard. Another detective was stationed at an empty lot next
to the house and saw Appellant run through the backyard. As Appellant
fled, the three detectives observed him put his hand in his pocket and
remove multiple items. He then jumped over the fence and continued
running down the street. One detective eventually caught Appellant and
arrested him. Another detective later found three items near the fence: a
1 We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Appellant. See State
v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
2
STATE v. JONES
Decision of the Court
pipe, a plastic bag, and a wallet. The detective inspected the wallet and
found Appellant’s identification card along with credit cards displaying his
name.
¶4 A grand jury charged Appellant by indictment on May 3,
2017. The charges included one count of possession of a dangerous drug, a
class four felony, and one count of possession of drug paraphernalia, a class
six felony.
¶5 The three detectives present on the date of Appellant’s arrest
testified that they witnessed Appellant reach into his pocket and discard
items as he fled from the house. One detective testified he immediately
identified the items falling from Appellant’s pocket as a pipe, a plastic bag,
and a wallet. Additionally, a forensic scientist testified that the plastic bag
contained 2.52 grams of methamphetamines in a “usable quantity and
condition.” After the State presented its case, Appellant’s counsel did not
call any witnesses or present any additional evidence. Instead, counsel
made an oral motion for a directed verdict pursuant to Arizona Rule of
Criminal Procedure 20, asserting the State failed to present “any substantial
evidence of defendant’s guilt.” The court denied the motion, and the jury
subsequently found Appellant guilty on both counts.
¶6 After finding that Appellant had at least two historical prior
felony convictions and weighing the mitigating factors, the trial court
sentenced Appellant to “the absolute mitigated sentence” of six years’
imprisonment for count one and two and one quarter years’ imprisonment
for count two. The court ordered the sentences to run concurrently and
credited Appellant for forty days of presentence incarceration. Appellant
filed a timely notice of appeal.
ANALYSIS
I. Probable Cause
¶7 Appellant argues the police lacked probable cause to “search,
seize and arrest” him pursuant to Article 2, Section 8 of the Arizona
Constitution and the Fourth Amendment of the United States Constitution.
He asserts that because his name was not on the search warrant, the police
had no reason to believe he was committing a crime.
¶8 Both Article 2, Section 8 and the Fourth Amendment limit the
ability of law enforcement officers to stop, search, and seize individuals.
The Arizona Supreme Court has recognized that Article 2, Section 8 affords
greater protection than the Fourth Amendment in certain contexts. See State
3
STATE v. JONES
Decision of the Court
v. Hausner, 230 Ariz. 60, 74, ¶ 41 (2012) (stating the Arizona Constitution
affords individuals greater protection than the United States Constitution
when officers attempt to physically intrude into a home). However, when
determining the sufficiency of facts supporting an officer’s belief that an
individual is committing a crime, the Arizona Supreme Court follows
federal jurisprudence. See e.g., State v. Primous, 242 Ariz. 221 (2017); State v.
Ochoa, 112 Ariz. 582 (1976).
¶9 Although an individual’s presence in an area suspected of
criminal activity, standing alone, is not enough to support an officer’s
suspicion of the individual’s criminal activity, an individual’s “unprovoked
flight upon noticing the police” when in such an area can support an
officer’s suspicion of criminal activity. See Illinois v. Wardlow, 528 U.S. 119,
124 (2000) (“[O]fficers are not required to ignore the relevant characteristics
of a location in determining whether the circumstances are sufficiently
suspicious to warrant further investigation.”). Once an officer possesses
reasonable suspicion to believe criminal activity is occurring, he or she may
pursue an individual to stop and briefly question or “frisk” the individual.
Terry v. Ohio, 392 U.S. 1, 30 (1968).
¶10 Once an officer elevates an encounter from a brief stop to an
arrest without an arrest warrant, the officer must possess probable cause.
See United States v. Watson, 423 U.S. 411, 417-18 (1976). The Arizona
Supreme Court has explained, “[p]robable cause derives from reasonably
trustworthy information and circumstances that would lead a person of
reasonable caution to believe that a suspect has committed an offense.”
State v. Keener, 206 Ariz. 29, 32, ¶ 15 (2003) (internal quotation omitted).
“Further, whether probable cause exists depends on all of the facts and
circumstances known at the time of the arrest, and . . . those facts may
include the collective knowledge of all of the officers involved in the case.”
Id.¶11 Here, Appellant encountered the police while they were in
the process of executing a search warrant on a suspected drug house.
Appellant did not live in the home, and the police had no prior information
concerning Appellant or his suspected involvement in drug activities at the
home. However, once Appellant fled, this action along with his presence
at a suspected drug house gave the detectives reasonable suspicion to
believe Appellant was committing a crime. That suspicion elevated to
probable cause once one detective witnessed Appellant throw down a pipe,
which the detective knew is commonly used to ingest drugs. These facts
taken as a whole support the detectives’ belief that Appellant was engaged
in illegal activity, and his arrest was therefore lawful. Id.4
STATE v. JONES
Decision of the Court
II. Jury Selection
¶12 Appellant next argues that he was not convicted by a jury of
his peers because the jury comprised all “white” members. At trial,
Appellant’s counsel moved to challenge the State’s peremptory strike of a
juror pursuant to Batson, and the motion was denied. Batson v. Kentucky,
476 U.S. 79, 85 (1986).
¶13 Although defendants have a constitutional right to be tried
“by a jury whose members are selected pursuant to nondiscriminatory
criteria,” a defendant does not have a right to a jury “composed in whole or
in part of persons of his own race.” Id. (internal citation omitted). We
review the trial court’s denial of a Batson challenge de novo and will reverse
only where the court’s ruling is clearly erroneous. State v. Newell, 212 Ariz.
389, 400-01, ¶ 52 (2006).
¶14 Appellant is an African-American man, and the record shows
the jury pool included two African-American individuals. During voir dire,
one of the African-American jurors stated she lives in a community where
she feels the police unfairly target individuals, and she indicated she would
have a difficult time believing the testimony of a law enforcement officer.
The juror subsequently stated she would be able to set her past experiences
aside and be a “fair and impartial” juror. The State moved to strike the juror
for cause, but the court denied the motion after determining the juror was
sufficiently rehabilitated.
¶15 The State then preemptively struck the juror, and Appellant’s
counsel challenged the strike pursuant to Batson. The State indicated the
juror’s feelings toward the police—not her race—caused the strike, and
Appellant’s counsel argued the juror’s rehabilitation should nonetheless
prevent the use of a preemptive strike. The court determined the State
struck the juror based on a race-neutral reason.
¶16 Under a Batson challenge, if the striking party provides a race-
neutral explanation for the strike, the burden shifts to the objecting party to
show purposeful discrimination. Newell, 212 Ariz. at 401, ¶ 53. Here, the
court acted within its discretion when it accepted the State’s explanation
and determined Appellant’s counsel failed to show any purposeful
discrimination. Id. at 400-01, ¶ 52. We therefore conclude the jury selection
process was conducted in accordance with Appellant’s constitutional
rights.
5
STATE v. JONES
Decision of the Court
III. Sufficiency of the Evidence
¶17 Finally, Appellant argues the State failed to meet its burden
of proof because the only evidence provided was the three detectives’
testimony and the forensic scientist’s testimony. Appellant asserts the State
was required to present “some type of scientific forensic evidence, such as
DNA or fingerprints,” linking him to the contraband. However, it is well-
settled in Arizona that testimony alone may provide sufficient proof to
support a conviction. See e.g., State v. Hall, 204 Ariz. 442, 454, ¶ 49 (2003)
(“[P]hysical evidence is not required to sustain a conviction if the totality of
the circumstances demonstrates guilt beyond a reasonable doubt.” (internal
citation omitted)); State v. Montano, 121 Ariz. 147, 149 (App. 1978) (“[O]ne
witness, if relevant and credible, is sufficient to support a conviction.”)
(internal citation omitted).
¶18 Here, three detectives who witnessed Appellant fleeing on
the date at issue testified that they saw Appellant remove and discard items
from his pocket, and the forensic scientist confirmed the substance in the
plastic bag was 2.52 grams of methamphetamine. This evidence constituted
substantial evidence and permitted a reasonable jury to conclude Appellant
knowingly possessed the drugs and paraphernalia. See State v. Windsor, 224
Ariz. 103, 104, ¶ 4 (App. 2010) (“We will not reverse a conviction unless the
state has failed to present substantial evidence of guilt.”).
¶19 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Appellant was present and
represented by counsel at all stages of the proceedings and was given the
opportunity to speak at sentencing. The proceedings were conducted in
compliance with Appellant’s constitutional and statutory rights and the
Arizona Rules of Criminal Procedure.
¶20 The State presented evidence sufficient to allow the jury to
convict Appellant, and the jury was properly comprised of twelve
members. The court properly instructed the jury on the elements of the
charges, the State’s burden of proof, and the necessity of a unanimous
verdict. The jury returned a unanimous verdict, which was confirmed by
juror polling. The court ultimately imposed legal sentences for the crimes
of which Appellant was convicted.
¶21 After the filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
6
STATE v. JONES
Decision of the Court
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant has thirty days from the
date of this decision to proceed, if he desires, with a motion for
reconsideration or petition for review.
CONCLUSION
¶22 Appellant’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
7