State v. Osman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEQA GUREYE OSMAN,
Appellant.

No. 1 CA-CR 13-0355
FILED 4-7-2015

Appeal from the Superior Court in Maricopa County
No. CR2011-158563-001
The Honorable Pamela Gates, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Reid
Counsel for Appellant
 STATE v. OSMAN
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.

O R O Z C O, Judge:

¶1 Deqa Gureye Osman appeals her conviction and imposition
of probation for one count of possession of drug paraphernalia, a class six
felony. Osman’s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), advising that after
searching the entire appellate record, no arguable question of law was
found. Osman was granted the opportunity to file a supplemental brief in
propria persona, but she has not done so. Our obligation is to review “the
entire record for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999). Finding no reversible error, we affirm Osman’s conviction and
sentence.

FACTS AND PROCEDURAL HISTORY

¶2 On November 16, 2011, Officer Chadwick of the Phoenix
Police Department was performing surveillance on an apartment after
receiving information that khat1 was being sold there. Khat contains
cathinone and cathine, which are classified as dangerous drugs under
Arizona Revised Statutes (A.R.S.) sections 13-3401.6(b)(xii) and (xiv) (West
2015).2 Officer Chadwick observed several individuals go into the
apartment empty handed, stay for a few minutes and leave carrying white
plastic grocery bags.

¶3 Pursuant to Officer Chadwick’s request, Officer Fuerstenberg
followed one of the individual’s vehicles in an unmarked police car and
Officer Shipley stopped the vehicle after it made an illegal wide turn.

1 Khat is a plant predominately grown in East Africa and is also
referred to as grabba.

2 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

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Officer Shipley noticed a white plastic bag on the driver’s floorboard,
searched the vehicle and discovered the bag contained khat.

¶4 Officer Chadwick knocked on the apartment door and
performed a security sweep after a man inside opened the door. Osman
told Officer Chadwick she had been living at the apartment for about a
month. After obtaining a search warrant, Officer Chadwick discovered
twenty-six individual “sandwich baggies” each containing one to two
ounces of khat and $1,572 in cash in a purse that also contained Osman’s
identification. Thirteen pounds of khat were confiscated and the khat
sample tested contained “[seventy-six] grams of cathinon[e] in a usable
condition.”

¶5 Osman was charged3 and tried for possession of a dangerous
drug for sale and possession of drug paraphernalia. She was convicted of
the latter charge and was placed on probation for three years. Osman
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution and A.R.S. sections 12-120.21.A.1, 13-4031 and -
4033.A.1 (West 2015).

DISCUSSION

I. Count Two: Possession of Drug Paraphernalia

¶6 “We view the facts in the light most favorable to sustaining
the convictions.” State v. Fimbres, 222 Ariz. 293, 296, ¶ 2 (App. 2009)
(internal citation omitted). We will reverse a conviction only if there is no
substantial evidence to support it. State v. Allen, 235 Ariz. 72, 75, ¶ 6 (App.
2014). “Substantial evidence is proof that reasonable persons could accept
as adequate to support a conclusion of a defendant’s guilt beyond a
reasonable doubt.” Id. (internal punctuation and citation omitted).

¶7 To be convicted for possession of drug paraphernalia, a
person must:

[U]se, or . . . possess with intent to use, drug paraphernalia to
plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze,
pack, repack, store, contain, conceal, inject, ingest, inhale or

3 The trial court granted Osman’s motion to remand to the grand jury
for a redetermination of probable cause on the ground that a testifying
witness provided incorrect information to the grand jury about Osman’s
residence. Osman was also indicted by the grand jury on remand.

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otherwise introduce into the human body a drug in violation
of [Title 13, Chapter 34].

A.R.S. § 13-3415.A. (West 2015). In determining whether an object is drug
paraphernalia, a court shall consider the proximity of the object to drugs,
the existence of any drug residue on the object, and expert testimony
regarding its use. A.R.S. § 13-3415.E.4-5., 14.

¶8 Officer Chadwick testified that the twenty six “baggies”
found in the apartment each contained between one to two ounces of khat.
Moreover, the State offered evidence that the khat sample tested contained
seventy-six grams of cathinone. We conclude there was substantial
evidence that the bags containing the khat found in the apartment were
drug paraphernalia used to “store, contain, [and] conceal” cathinone. See
A.R.S. § 13-3415.A.

¶9 In its Notice of Disclosure, the State listed witness Jiber
Altunian as a “Drug Trafficking Expert.” At trial, Altunian testified that it
is common for those selling drugs to package them in “small Ziploc bags”
and that the bags of khat found in the apartment were packaged in such a
way as to suggested they were going to be sold. Thus, we affirm Osman’s
conviction for possession of drug paraphernalia.

II. Probation

¶10 The trial court sentenced Osman to three years of probation.
We will not alter the trial court’s sentencing determination absent an abuse
of discretion. State v. Fillmore, 187 Ariz. 174, 184 (App. 1996).

¶11 The presumptive sentence for a first time class 6 felony
offender is one year imprisonment. A.R.S. § 13-702.D. (West 2015).
However, any person convicted for possession of drug paraphernalia is
eligible for probation, and the court shall “suspend the imposition or
execution of sentence and place the person on probation.” A.R.S. § 13-
901.01.A. (West 2015). Thus, the trial court did not abuse its discretion by
placing Osman on probation.

CONCLUSION

¶12 We have read and considered counsel’s brief and carefully
searched the entire appellate record for reversible error and have found
none. See Clark, 196 Ariz. at 541, ¶ 49. The proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure, and we
conclude substantial evidence supported the jury’s verdict. Osman was

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represented by counsel at all critical stages of the proceedings. Osman and
her counsel were given an opportunity to speak at sentencing, and a legal
sentence was imposed.

¶13 Counsel’s obligations pertaining to Osman’s representation in
this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584 (1984).
Counsel need do nothing more than inform Osman of the status of this
appeal and any future options, unless Counsel’s review reveals an issue
appropriate for a petition for review to the Arizona Supreme Court. See id.
at 585. Osman has thirty days from the date of this decision to proceed, if
desired, with a pro per motion for reconsideration or petition for review.

¶14 Osman’s conviction and sentence are affirmed.

:ama

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