Opinion
No. 1 CA-CR 19-0312
06-30-2020
STATE OF ARIZONA, Appellee, v. DEVION DECONTAE IZEMAN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Robert W. Doyle Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2018-119215-001
The Honorable Geoffrey H. Fish, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen joined. HOWE, Judge:
Judge Johnsen was a sitting member of this court when the matter was assigned to this panel of the court. She retired effective February 28, 2020. In accordance with the authority granted by Article 6, Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief Justice of the Arizona Supreme Court has designated Judge Johnsen as a judge pro tempore in the Court of Appeals, Division One, for the purpose of participating in the resolution of cases assigned to this panel during her term in office.
¶1 Devion Decontae Izeman appeals his conviction and probation grant for misdemeanor possession of drug paraphernalia. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013). Avondale Police Officer Justin Iwen observed Izeman speeding and pulled him over. Officer Iwen discovered Izeman had an outstanding warrant and arrested him. Once arrested, Izeman told the officer that he was having a medical emergency and requested medical attention.
¶3 Officer Michael Unger then arrived at the scene to assist. The officers noticed an odor of fresh marijuana coming from inside Izeman's car. When the officers searched the car, they found a small plastic bag containing a "green leafy substance" in the center console and two glass jars under the passenger seat, one of which contained a similar substance.
¶4 Izeman was taken by ambulance to a nearby hospital, where Officer Unger gave him Miranda warnings and then questioned him in an audio-recorded interview. Izeman denied knowledge of the plastic bag and evaded answering inquiries about the two glass jars.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶5 The State charged Izeman with possession of marijuana and possession of drug paraphernalia, both class 6 felonies later re-designated as class 1 misdemeanors. Izeman moved to suppress his statements to Officer Unger, arguing that they were taken in violation of Miranda. At the suppression hearing, Officer Unger testified that he read Izeman his Miranda rights from a card and that Izeman responded "yes" to signify he understood. Two other police officers testified that they had arrested Izeman on prior occasions and that he had indicated during those arrests that he understood his Miranda rights. After reviewing the audio- recorded interview, the trial court denied Izeman's motion.
¶6 At trial, Officer Unger testified that, based on his training and experience, the jars found in Izeman's car were drug paraphernalia and that the substance in the baggie looked and smelled like marijuana. He also opined, without objection, that the material inside one of the two jars was a "usable quantity of marijuana." Officer Iwen testified similarly that he believed the substance in one of the jars was marijuana and that the substance in the baggie was also marijuana.
¶7 After the State rested, Izeman moved for a judgment of acquittal under Arizona Rule of Criminal Procedure 20 ("Rule 20"). He argued that the State offered no expert testimony that the green leafy substances were marijuana and that police officers are not capable of confirming beyond a reasonable doubt "what the substance is." The trial court denied Izeman's motion, noting that the State was under no obligation to call an expert. It then acquitted Izeman of the marijuana possession charge but found him guilty of possession of drug paraphernalia and placed him on six months' unsupervised probation. Izeman timely appealed.
DISCUSSION
1. Purported Miranda Violation
¶8 Izeman argues that the trial court erred by failing to suppress his statements to Officer Unger, maintaining that they were obtained in violation of Miranda. Specifically, he contends that he did not make a knowing and intelligent waiver of his right to remain silent because Officer Unger's recitation of his Miranda rights, in approximately ten seconds, was "overly rapid" and consequently "slurred beyond comprehension." We review a trial court's ruling on an alleged Miranda violation for an abuse of discretion. State v. Newell, 212 Ariz. 389, 396 ¶ 22 n.6 (2006). In reviewing a motion to suppress, "[w]e only consider the evidence presented at the suppression hearing" and "view that evidence in the light most favorable to upholding the trial court's ruling." State v. Estrada, 209 Ariz. 287, 288 ¶ 2 (App. 2004).
¶9 To be admissible, "statements obtained while an accused is subject to custodial interrogation require a prior waiver of Miranda rights." State v. Carter, 145 Ariz. 101, 105 (1985). Under Miranda, a suspect must be fully advised that "[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Florida v. Powell, 559 U.S. 50, 59-60 (2010). A suspect validly waives these rights only if, under the totality of circumstances, he waives them "voluntarily, knowingly and intelligently." Miranda, 384 U.S. at 444. Nevertheless, "answering questions, after the giving of a proper warning of constitutional rights, constitutes waiver by conduct." State v. Pineda, 110 Ariz. 342, 345 (1974).
¶10 The record supports the trial court's finding that Izeman's Miranda rights were not violated. The record reflects that at the outset of the taped interview Officer Unger clearly and audibly, albeit quickly, informed Izeman about all the procedural safeguards required by Miranda. The record also reflects that Izeman affirmatively acknowledged that he understood his rights. After the officer read the Miranda warnings and asked Izeman if he understood, Izeman answered "yes." Izeman did not ask for clarification, did not ask for counsel, and did not state that he did not understand the warnings. The officer then began questioning Izeman. Accordingly, the trial court did not abuse its discretion by denying the motion to suppress.
¶11 We note that the State acknowledged below that Officer Unger's reference to an attorney "to assist you prior to questioning and be with you during questioning if you so desire" sounded slurred. Even assuming that this portion of the third warning was not decipherable, however, the court's ruling remains correct because the remainder of Officer Unger's third and fourth warning sufficiently conveyed to Izeman that he had a right to have an attorney present and that if he could not afford an attorney, one would be appointed for him. See State v. Torres 121 Ariz. 110, 113 (App. 1978) (advice to remain silent followed by right to have attorney present held to be sufficient to convey to the accused that he is entitled to a government- furnished counsel here and now).
2. Denial of Rule 20 Motion
¶12 Izeman challenges the trial court's denial of his Rule 20 motion for judgment of acquittal. He argues that the State failed to prove beyond a reasonable doubt that the green leafy substance was marijuana. We review de novo a trial court's denial of a Rule 20 motion. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011). A Rule 20 motion must be granted only when "there is no substantial evidence to support a conviction." Ariz. R. Crim P. 20(a). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). We do not consider whether we would reach the same conclusion as the trier-of-fact, but only if "there is a complete absence of probative fact to support its conclusion." State v. Carlisle, 198 Ariz. 203, 206 ¶ 11 (App. 2000) (quoting State v. Mauro 159 Ariz. 186, 206 (1988)).
¶13 Izeman maintains that the evidence was insufficient because identification of the marijuana was based solely on the officers' testimony. This argument fails, however, because the identity of a controlled or contraband substance can be proven without chemical analysis or forensic expert testimony. See State v. Saez, 173 Ariz. 624, 630 (App. 1992); see also State v. Nightwine, 137 Ariz. 499, 503 (App. 1983) (upholding conviction for cocaine offenses despite the absence of chemical analysis).
CONCLUSION
¶14 For the foregoing reasons, we affirm.