State v. Olsen ( 2015 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    ROY OLSEN, JR., Appellant.
    No. 1 CA-CR 14-0550
    FILED 7-28-2015
    Appeal from the Superior Court in Maricopa County
    CR2013-112244-001
    The Honorable Margaret R. Mahoney, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Droban & Company, P.C., Anthem
    By Kerrie M. Droban
    Counsel for Appellant
    MEMORANDUM DECISION
    Presiding Judge John C. Gemmill delivered the decision of the Court, in
    which Judge Kenton D. Jones and Judge Donn Kessler joined.
    STATE v. OLSEN
    Decision of the Court
    G E M M I L L, Judge:
    ¶1             Roy Olsen, Jr. appeals from his convictions and sentences for
    one count of possession of dangerous drugs for sale, a class 2 felony, and
    one count of possession of drug paraphernalia, a class 6 felony. Olsen’s
    counsel filed a brief in compliance with Anders v. California, 
    386 U.S. 738
    (1967), and State v. Leon, 
    104 Ariz. 297
    (1969), stating that she has searched
    the record and found no arguable question of law and requesting that this
    court examine the record for reversible error. Olsen was afforded the
    opportunity to file a pro se supplemental brief, and he has done so. See State
    v. Clark, 
    196 Ariz. 530
    , 537, ¶ 30 (App. 1999). For the following reasons, we
    affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2            “We view the facts and all reasonable inferences therefrom in
    the light most favorable to sustaining the convictions.” State v. Powers, 
    200 Ariz. 123
    , 124, ¶ 2 (App. 2001).
    ¶3             On March 14, 2013, around 11:15 p.m., a Phoenix police officer
    attempted to pull over Olsen because he was driving a vehicle with an
    expired license plate. The officer pursued Olsen for multiple blocks, first
    initiating the lights on the patrol vehicle and then the siren because Olsen
    failed to stop. When the vehicle stopped, the officer placed Olsen under
    arrest for failure to stop. Upon searching Olsen, the officer discovered a
    small baggie containing methamphetamine. Later, during an inventory
    search of the vehicle, officers discovered three more baggies containing
    methamphetamine, two small scales, and hypodermic needles. The total
    weight of the four bags of methamphetamine was 101.43 grams.
    ¶4            In May 2014, a jury found Olsen guilty of possession of
    dangerous drugs for sale, a class 2 felony, and possession of drug
    paraphernalia, a class 6 felony. The trial court then conducted a hearing on
    aggravating circumstances. The jury found as an aggravating circumstance
    beyond a reasonable doubt that Olsen committed the offenses as
    consideration for the receipt, or in the expectation of the receipt, of anything
    of pecuniary value. Additionally, Olsen admitted to having nine prior
    felony convictions, and as a result the court found that he was a category
    three repeat offender.
    ¶5           At the sentencing hearing, the court weighed the aggravating
    circumstance and various mitigating circumstances. Olsen was sentenced
    2
    STATE v. OLSEN
    Decision of the Court
    to a mitigated term of thirteen years for the possession of drugs for sale
    conviction and three years for the drug paraphernalia conviction, and the
    court ordered the terms to be served concurrently. The court gave Olsen
    credit for 87 days of presentence incarceration. Olsen filed a timely notice
    of appeal. We have jurisdiction under 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.
    DISCUSSION
    ¶6             In his supplemental brief, Olsen cites the portions of the
    record where he made a Rule 20 motion and six objections during the trial.
    See Ariz. R. Crim. P. 20. Olsen does not make any specific argument in
    regard to the trial court’s rulings on these matters nor does he cite any law
    that would indicate the court abused its discretion, and this may constitute
    a waiver of any argument on these rulings. See Ariz. R. Crim. P.
    31.13(c)(1)(vi) (“[A]ppellant's brief shall include . . . [a]n argument which
    shall contain the contentions of the appellant with respect to the issues
    presented, and the reasons therefor, with citations to the authorities,
    statutes and parts of the record relied on.”); see also State v. Carver, 
    160 Ariz. 167
    , 175 (1989) (“Failure to argue a claim usually constitutes abandonment
    and waiver of that claim.”) (citations omitted). Even setting potential
    waiver aside, this court has reviewed the record and determined that the
    trial court did not abuse its discretion when it ruled on Olsen’s objections.
    See State v. Hampton, 
    213 Ariz. 167
    , 178, ¶ 45 (2006) (trial court’s decision to
    admit evidence will not be disturbed on appeal absent abuse of discretion).
    Additionally, substantial evidence was presented to support the jury’s
    verdict on each count, and thus the court’s denial of Olsen’s Rule 20 motion
    was proper. See State v. Fulminante, 
    193 Ariz. 485
    , 493, ¶ 24 (1999) (directed
    verdict of acquittal warranted only in absence of substantial evidence).
    ¶7            Having considered defense counsel’s brief and examined the
    record for reversible error, see 
    Leon, 104 Ariz. at 300
    , we find none. The
    evidence presented supports the convictions and the sentences imposed fall
    within the range permitted by law. As far as the record reveals, Olsen was
    represented by counsel at all stages of the proceedings, and these
    proceedings were conducted in compliance with his constitutional and
    statutory rights and the Arizona Rules of Criminal Procedure.
    ¶8            Pursuant to State v. Shattuck, 
    140 Ariz. 582
    , 584–85 (1984),
    counsel’s obligations in this appeal have ended. Counsel need do no more
    than inform Olsen of the disposition of the appeal and his future options,
    3
    STATE v. OLSEN
    Decision of the Court
    unless counsel’s review reveals an issue appropriate for submission to the
    Arizona Supreme Court by petition for review. Olsen has thirty days from
    the date of this decision in which to proceed, if he desires, with a pro se
    motion for reconsideration or petition for review.
    CONCLUSION
    ¶9           The convictions and sentences are affirmed.
    :ama
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