State v. Tharp

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TERRANCE THARP, Appellant.

No. 1 CA-CR 19-0204
FILED 1-9-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-147220-001
The Honorable Kathleen H. Mead, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Chief Judge Peter B. Swann joined.

C R U Z, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Terrance
Tharp has advised this court that counsel found no arguable questions of
law and asks us to search the record for fundamental error. Tharp was
convicted of one count of possession or use of marijuana, a Class 1
misdemeanor, and one count of possession of drug paraphernalia, a Class
1 misdemeanor. Tharp was given an opportunity to file a supplemental
brief in propria persona; he has not done so. After reviewing the record, we
affirm Tharp’s convictions and sentence.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
verdict and resolve all reasonable inferences against Tharp. See State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3 While traveling eastbound on the State Route 202 on the
morning of September 22, 2017, Department of Public Safety (“DPS”)
Detective Bunch noticed a red sedan traveling “well over the flow of
traffic.” Detective Bunch changed lanes to drive behind the red sedan and
noted the speedometer on his vehicle read more than 95 miles per hour in
a 65 mile-per-hour zone. The detective activated his vehicle’s emergency
lights; the sedan did not immediately yield, and Detective Bunch requested
additional officers to assist with the traffic stop. The sedan then exited at
Priest Drive; Detective Bunch activated his sirens, and the sedan stopped.

¶4 Upon approaching the vehicle, Detective Bunch “noted the
distinct odor of unburnt marijuana.” Detective Bunch asked the driver to
leave the vehicle and then identified the driver as Tharp, who provided the
detective with a driver’s license. When Detective Bunch and Tharp
returned to the vehicle, the detective “immediately noted the stronger odor
of unburnt marijuana.” Detective Bunch looked into the door handle area
of the open driver’s side door and saw “a loose green leafy substance.” The

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Decision of the Court

detective then spotted a “small decorative Ziploc baggie” containing a
similar green leafy substance in the floorboard area of the driver’s side.
Detective Bunch testified he could see these items in “plain view” without
touching the vehicle because the driver’s door remained open while Tharp
sat in the front seat, looking for his registration and insurance information.

¶5 DPS Trooper Armold responded to the detective’s request for
assistance; as he approached the vehicle, he detected an odor of marijuana.
He conducted a search of the vehicle and located: a clear plastic baggie with
dollar symbols containing a green leafy substance on the driver’s side
floorboard, burnt paper material behind the passenger seat, stems and
seeds in the center console cup holder, a green leafy substance in the
driver’s side door handle, and plastic containers each containing plastic
baggies with a green leafy substance in the center console and the passenger
side door.

¶6 The State charged Tharp with one count of possession or use
of marijuana, a Class 6 felony, and one count of possession of drug
paraphernalia, a Class 6 felony. At the initial appearance, the court
appointed a public defender to represent Tharp. Later, during a
preliminary hearing, Tharp acknowledged an offered plea agreement, told
the court he was rejecting the offer, and confirmed he understood the
possible penalties he faced at trial. The State informed the court that Tharp
did not have prior felony convictions “or drug strikes.”

¶7 At a second preliminary hearing, Trooper Armold testified
that he found marijuana and Ziploc baggies containing marijuana during
his search of the vehicle and that the DPS Crime Lab confirmed the
substance was marijuana. The court found probable cause existed as to
both charges and entered a plea of not guilty for Tharp.

¶8 During a pretrial conference, the parties agreed to amend the
complaint to reclassify both counts as Class 1 misdemeanors, and the court
set the matter for a bench trial. The court instructed Tharp to appear at trial
and warned Tharp of the potential consequences should he not do so.

¶9 On the date of trial, Tharp did not appear at the time set for
trial and the court proceeded in absentia over objection of Tharp’s counsel.
Tharp arrived approximately forty minutes after the scheduled time for
trial during the direct examination of Detective Bunch. Detective Bunch
testified that during the traffic stop, he noticed an odor of marijuana coming
from the vehicle driven by Tharp and saw marijuana in the vehicle. Trooper
Armold testified that he noted an odor of marijuana coming from the

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vehicle, conducted a search of the vehicle, and found marijuana and
paraphernalia during his search. Trooper Armold identified Tharp as the
driver of the vehicle and identified the exhibits consisting of the marijuana
and paraphernalia evidence he found during his search of the vehicle. A
forensic scientist from the DPS Crime Lab testified that he tested one of the
exhibits and determined it contained a usable amount of marijuana.

¶10 Tharp testified at trial and did not dispute that DPS officers
found marijuana and paraphernalia in the car he was driving. He testified
that he had a medical cannabis card but had lost his wallet and could not
produce the card for the officers; he testified that he showed them a photo
of the card on his phone. The court noted that Tharp had not produced
evidence that he had a valid medical cannabis card at the time of the traffic
stop. Tharp testified that he had a card issued in November 2018 that was
valid through November 2019. Trooper Armold then testified that Tharp
had not shown him a photo of a medical cannabis card, but that Tharp told
him that “he was a medical marijuana card holder from 2015 through 2017.”
Trooper Armold then testified that without a “QP ID number” dispatch is
unable to look up a person’s “medical marijuana active status.” According
to Trooper Armold’s testimony, Tharp had opportunity to provide his
qualified patient number or his medical cannabis card but never did so.
Even as of the day of trial, Tharp did not argue or offer any evidence that
on the day of the charged offenses he was a medical marijuana cardholder.

¶11 The court determined that the State met its burden of proof
and found Tharp guilty on both counts. During sentencing, the court took
note of Tharp’s current valid medical cannabis card and placed Tharp on
unsupervised probation for one year, instituted eight hours of drug
education, fined Tharp $1,372.50, and imposed a Criminal Penalty
Assessment of $13 and a Victim Rights Enforcement Assessment of $2. The
court informed Tharp that he would be off probation once he paid the
mandatory fines and completed the drug education course; the court noted
that if Tharp did so before May 1, 2019, he would not be responsible for a
probation service fee and a “time payment” probation assessment.

DISCUSSION

¶12 We review Tharp’s convictions and sentence for fundamental
error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011). Counsel for
Tharp has advised the court that after a diligent search of the entire record,
counsel has found no arguable question of law. We have read and
considered the counsel’s brief and fully reviewed the record for reversible
error, see Leon, 104 Ariz. at 300, and find none. All of the proceedings were

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conducted in compliance with the Arizona Rules of Criminal Procedure. So
far as the record reveals, counsel represented Tharp at all stages of the
proceedings, and the sentence imposed was within the statutory guidelines.
We decline to order briefing and affirm Tharp’s convictions and sentence.

¶13 Upon the filing of this decision, defense counsel shall inform
Tharp of the status of the appeal and of his future options. Counsel has no
further obligations unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Tharp shall have thirty days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.

CONCLUSION

¶14 For the foregoing reasons, we affirm Tharp’s convictions and
sentence.

AMY M. WOOD • Clerk of the Court
FILED: AA

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