State v. Jones

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

TERRELL JONES, Appellant.

No. 1 CA-CR 19-0321
FILED 6-18-2020

Appeal from the Superior Court in Maricopa County
No. CR 2013-444153-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant

Terrell Jones, San Luis
Appellant
 STATE v. JONES
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Terrell Jones appeals from his convictions and sentences for
multiple drug and weapon offenses. After searching the record on appeal
and finding no arguable question of law, Jones’ counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), asking this court to search the record for reversible
error. Jones was given the opportunity to file a supplemental brief and has
done so. Having reviewed the entire record and considered the
supplemental brief, see State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999),
we find no reversible error and affirm.

BACKGROUND

¶2 An officer went to Jones’ apartment in search of another man,
Frank Mosley. While knocking and announcing his presence at the door,
the officer noticed a “strong odor of marijuana” emanating from Jones’
apartment. After approximately ten minutes, Jones opened the door and
the marijuana smell became much stronger.

¶3 During a subsequent search of Jones’ apartment, the officer
found more than $5,000 cash inside a jacket pocket, a baggie containing a
green, leafy substance inside a pair of shoes, and three handguns and
numerous baggies containing a green, leafy substance inside a nylon bag
wedged behind a refrigerator. The officer also found a cellular phone. After
Jones provided the passcode, the officer scanned the photographs stored on
the phone and found several pictures of Jones with the firearms found in
the apartment.

¶4 When questioned,1 Jones admitted possessing the marijuana
and guns. He also admitted selling marijuana and acknowledged that as a
convicted felon, he knew he could not lawfully possess a handgun.

1 Before questioning Jones, at both his apartment and a police station,
officers advised him of his Miranda rights.

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Decision of the Court

¶5 The State charged Jones with possession of marijuana for sale,
possession of drug paraphernalia, and three counts of misconduct
involving weapons. The State also alleged aggravating circumstances and
that Jones had historical prior felony convictions.

¶6 At a bifurcated trial (phase 1 - drug charges; phase 2 -
weapons charges), the parties stipulated that the green, leafy substance
seized from multiple containers inside Jones’ apartment amounted to
183.02 grams of marijuana. Based on the packaging and amount of drugs
seized, the presence of large quantities of cash and multiple firearms, and
the content of numerous drug-related text messages retrieved from Jones’
phone, a detective opined that Jones possessed the drugs for sale. In
addition, a fingerprint analyst testified that Jones’ fingerprints matched
those contained on conviction records from California and Arizona.

¶7 After a four-day trial, a jury found Jones guilty as charged.
The jury also found two aggravating factors for the drug offenses. At
sentencing,2 Jones admitted having four prior felony convictions and the
superior court sentenced him as a category-three offender to concurrent
terms of imprisonment (totaling 11.5 years), with 180 days of presentence
incarceration credit.3 Jones timely appealed.

¶8 In his pro per supplemental brief, Jones contends that the
search of his apartment was unconstitutional and therefore the evidence
seized during the search was inadmissible. Specifically, Jones asserts that:
(1) law enforcement officers lacked legal authority to enter his home once
Mosley was taken into custody; (2) Mosley did not reside at his apartment;
(3) the limited exceptions to the warrant requirement for protective sweeps
and searches incident to arrest (Mosley) did not authorize a full search of
his apartment; (4) the odor of marijuana does not provide a legal
justification for searching the home of a registered medical marijuana user;
and (5) he never consented to a search of his cellular phone.

¶9 During a settlement conference, the superior court asked the
prosecutor to explain the legal basis for the police search of Jones’
apartment. The prosecutor responded that about a month before the search,
Mosley informed his probation officer that he resided at Jones’ apartment.
When the probation officer, accompanied by a police officer, went to Jones’

2 Because Jones absconded after the second day of trial, sentencing
was delayed approximately three years.
3 At the same time, the superior court also sentenced Jones for two
unrelated offenses under a separate cause number.

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 STATE v. JONES
Decision of the Court

apartment to check on Mosley, they smelled marijuana and conducted a
“probation search” on that basis. Given the strong marijuana smell, the
prosecutor also argued the search was lawful, independent of the probation
check. In response, Jones denied that Mosley resided at his apartment. He
also asserted that he had a medical marijuana card that prevented a search
of his apartment based solely on the odor of marijuana.

¶10 Although he challenged the validity of the police search at the
settlement conference, Jones did not move to suppress the evidence seized
from his apartment or otherwise object to its admissibility at trial. By failing
to do so, Jones waived all but fundamental error review. See State v. Newell, 212 Ariz. 389, 398, ¶ 34 (2006); State v. Tison, 129 Ariz. 526, 535 (1981)
(“Issues concerning the suppression of evidence which were not raised in
the trial court are waived on appeal.”).

¶11 Fundamental error is error going to the foundation of the case,
error that takes from the defendant a right essential to his or her defense, or
error of such magnitude that the defendant could not possibly have
received a fair trial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). Under
fundamental error review, the defendant bears the burden of
demonstrating both error and resulting prejudice. State v. Henderson, 210
Ariz. 561, 567, ¶ 20 (2005).

¶12 Because Jones never moved to suppress the evidence, the
State never presented evidence to prove the search and seizure were legal.
Instead, at trial, the police officer simply testified that he conducted a
“lawful search” and explained that Jones gave him the passcode for the
cellular phone. In response to Jones’ challenge at the settlement hearing, the
prosecutor stated he would respond to a motion to suppress by having
Mosley’s probation officer testify that Mosley identified Jones’ apartment
as his residence. At this stage, it is unknown what additional evidence the
State may have presented to prove the legality of the search had Jones filed
a motion to suppress. On this record, Jones has not shown that the superior
court erred, much less committed fundamental, prejudicial error, by
admitting the evidence seized from his apartment.

¶13 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Jones was represented
by counsel at all critical stages of the proceedings against him. The evidence
presented supports the convictions, and the sentences imposed fall within
the range permitted by law. As far as the record reveals, these proceedings
were conducted in compliance with the Arizona Rules of Criminal

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Decision of the Court

Procedure and Jones’ constitutional and statutory rights. Therefore, we
affirm Jones’ convictions and sentences.

¶14 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, his obligations are
fulfilled once he informs Jones of the outcome of this appeal and his future
options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Jones 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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