State v. Artishon

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EVAN ANDREW ARTISHON, Appellant.

No. 1 CA-CR 19-0538
FILED 10-8-2020

Appeal from the Superior Court in Maricopa County
No. CR2019-002525-001
The Honorable Warren J. Granville, Judge (Retired)

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Paul J. McMurdie1 joined.

C A M P B E L L, Judge:

¶1 Evan Artishon appeals his conviction and sentence for
possession of marijuana. After searching the record on appeal and finding
no arguable question of law, Artishon’s 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 fundamental error.
Artishon was given the opportunity to file a supplemental brief but did not
do so. Having reviewed the entire record, see State v. Clark, 196 Ariz. 530,
537, ¶ 30 (App. 1999), we find no reversible error and affirm.

BACKGROUND2

¶2 Responding to a reported domestic violence incident, patrol
officers separated Artishon and his two roommates, speaking to them
individually. Based on their individual accounts, the officers concluded that
Artishon was one of two aggressors in a physical altercation and arrested
him for assault. During a search of his person incident to the arrest, a patrol
officer discovered a green, leafy substance in Artishon’s left hand. Although
Artishon told the officers the substance was “CBD,” subsequent testing
revealed the substance was 1.90 grams of marijuana.

¶3 The State charged Artishon with possession or use of
marijuana, a class six felony. Before trial, the State moved to designate the
offense a class one misdemeanor and requested a bench trial. The superior
court granted the State’s motion, noting both parties agreed to the
misdemeanor designation, and the case proceeded to a bench trial. See
Stoudamire v. Simon, 213 Ariz. 296, 298-99, ¶¶ 6-13 (App. 2006) (explaining

1 Judge Paul J. McMurdie replaces the Honorable Kenton D. Jones, who
was originally assigned to this panel.
2 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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Decision of the Court

a defendant is not entitled to a jury trial for a misdemeanor possession of
marijuana charge).

¶4 At trial, Artishon testified on his own behalf, stating he
believed the green, leafy substance found in his hand was CBD that he had
purchased from a smoke shop to help alleviate his anxiety. Although he
acknowledged smoking marijuana in the past, Artishon stated that he had
not done so for years. He also admitted having two prior felony convictions
and acknowledged that he was on probation for those offenses.

¶5 The superior court found Artishon guilty of possession of
marijuana, a class one misdemeanor, and found he was on probation at the
time the instant offense was committed. At sentencing, the court placed
Artishon on supervised probation for a period of two years. Artishon timely
appealed.

DISCUSSION

¶6 A person is guilty of possession of marijuana if he “knowingly
[p]ossess[es]” marijuana. A.R.S. § 13-3405(A)(1). To knowingly possess
marijuana, a person must believe or otherwise be aware that he has either
“physical possession” or exercise “dominion or control” over the substance.
A.R.S. § 13-105(10)(b), (34).

¶7 We will uphold a superior court’s “finding of guilt if it is
supported by substantial evidence, which may be either circumstantial or
direct.” State v. Garza, 196 Ariz. 210, 211, ¶ 3 (App. 1999). “Substantial
evidence is more than a mere scintilla and is such proof that reasonable
persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilty beyond a reasonable doubt.” Id. (internal quotations
omitted). To set aside a verdict for insufficient evidence, “it must clearly
appear that upon no hypothesis . . . is there sufficient evidence to support”
a finding of guilt. State v. Arredondo, 155 Ariz. 314, 316 (1987).

¶8 In this case, it is undisputed that Artishon was found holding
1.90 grams of marijuana in his hand. Although he told police, at the time of
his arrest, that the green, leafy substance was CBD, and testified
consistently at trial, the superior court, as the fact-finder, was in the best
position to weigh the evidence and determine witness credibility. State v.
Fimbres, 222 Ariz. 293, 297 ¶ 4 (App. 2009). Accordingly, we defer to the
court’s factual findings.

¶9 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects that Artishon was

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Decision of the Court

represented by counsel at all critical stages of the proceedings against him.
The evidence presented supports the conviction, and the sentence imposed
falls within the range permitted by law. As far as the record reveals, these
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure and Artishon’s constitutional and statutory rights.
Therefore, we affirm Artishon’s conviction and sentence.

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