State v. Thomas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DIANNA RENE THOMAS, Appellant.

No. 1 CA-CR 20-0055
FILED 9-15-2020

Appeal from the Superior Court in Yuma County
No. S1400CR201900260
The Honorable David M. Haws, Judge

AFFIRMED

COUNSEL

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

Yuma County Public Defender’s Office, Yuma
By Robert Trebilcock
Counsel for Appellant
 STATE v. THOMAS
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Samuel A. Thumma1 joined.

W I L L I A M S, Judge:

¶1 Dianna Thomas appeals her convictions and sentences for
transportation of dangerous drugs for sale, a Class two felony, and
possession of drug paraphernalia involving methamphetamine, a Class six
felony. Thomas’ counsel filed a brief per Anders v. California, 386 U.S. 738
(1967) and State v. Leon, 104 Ariz. 297 (1969) advising us there are no
meritorious grounds for reversal. Thomas was granted an opportunity to
file a supplemental brief in propria persona and did not do so. After
reviewing the entire record, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In March 2019, Thomas was a passenger in a rental vehicle
driven and rented by James Knowlton. The two, characterized as boyfriend
and girlfriend, came upon a Border Patrol inspection station while driving
northbound on U.S. Highway 95 from Yuma to Lake Havasu City. After a
Border Patrol K-9 alerted to the vehicle, Border Patrol agents requested that
the K-9 be allowed to conduct an interior search of the vehicle. Knowlton
consented.

¶3 Knowlton and Thomas exited the vehicle with Thomas
holding a fast food bag. When agents instructed her to leave the bag in the
vehicle, she placed it on the passenger side floorboard. The K-9 sniffed the
interior of the vehicle and, as relevant here, alerted to the fast food bag. The
bag contained a digital scale and separately packaged amounts of
methamphetamine totaling approximately one-half pound.

1Judge Samuel A. Thumma replaces the Honorable Kenton D. Jones, who
was originally assigned to this panel. Judge Thumma has read the briefs
and reviewed the record.

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Decision of the Court

¶4 At trial, the superior court denied Thomas’ Rule 20 motion, as
well as a request for a Willits2 instruction after Border Patrol agents failed
to preserve a surveillance video showing the search of the vehicle. Thomas
argued the video could have confirmed that Knowlton handed her the fast
food bag, suggesting that Knowlton, not Thomas, knew of the illegal
contents within. The court did, however, inform Thomas that “[y]ou are
free to argue any reasonable inferences from the facts.”

¶5 Thomas also objected at trial when a DPS officer testified that
he “read [Thomas] her rights, but she didn’t want to speak to me.” The court
sustained the objection and immediately instructed the jury: “Ladies [and]
gentlemen, it is improper to inquire or comment on a defendant’s
invocation of the right to remain silent. That question shouldn’t have been
asked. It shouldn’t have been answered. I’m ordering that it be stricken, and
you are not to consider that in any way.” After a jury convicted Thomas,
she filed a motion for a new trial based upon the DPS officer’s testimonial
statement. The court denied the motion noting that “the way the court dealt
with it during the trial was appropriate.” See, e.g., State v. Villalobos, 6 Ariz.
App. 144, 147 (1967); State v. Anderson, 110 Ariz. 238, 240-241 (1973).

¶6 The superior court sentenced Thomas as a non-dangerous,
non-repetitive offender to the minimum term of five years’ imprisonment
for transportation of dangerous drugs for sale, and the minimum term of
six months imprisonment for possession of drug paraphernalia involving
methamphetamine. Both sentences were ordered to run concurrently with
Thomas receiving credit for 72 days of presentence incarceration. Thomas
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A)(1).

DISCUSSION

¶7 Our obligation is to review the entire record for reversible
error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing the
evidence in the light most favorable to sustaining the convictions and
resolving all reasonable inferences against Thomas, State v. Guerra, 161 Ariz.
289, 293 (1989).

¶8 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). The record contains sufficient evidence upon which the

2 State v. Willits, 96 Ariz. 184 (1964).

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Decision of the Court

jury could determine, beyond a reasonable doubt, Thomas was guilty of the
charged offenses.

¶9 All proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Thomas
was represented by counsel at all stages of the proceedings and was present
at all critical stages including the entire trial and the verdict. See State v.
Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages) (citations
omitted); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical
stages). The jury was properly comprised of eight jurors, and the record
shows no evidence of jury misconduct. See A.R.S. § 21-102; Ariz. R. Crim. P.
18.1(a). The superior court properly instructed the jury on the elements of
the charged offenses, the State’s burden of proof, and Thomas’ presumption
of innocence. The court properly considered and resolved all pre-trial, trial
and post-trial motions. At sentencing, Thomas was given an opportunity to
speak, and the court stated on the record the evidence and materials it
considered and the factors it found in imposing the sentences. See Ariz. R.
Crim. P. 26.9, 26.10. Additionally, the sentences imposed were within the
statutory limits. See A.R.S. §§ 13-701 to 13-709 (as applicable).

¶10 As for the DPS officer’s unsolicited statement that “[Thomas]
didn’t want to speak to me,” such isolated trial incidents concerning post-
arrest, post Miranda3 silence, followed by both an immediate objection
sustained by the superior court and curative instruction, does not violate a
defendant’s due process. See Greer v. Miller, 483 U.S. 756, 764-765 (1987); see,
e.g., U.S. v. Weinstock, 153 F.3d 272, 279-281 (6th Cir. 1998) (testimony of
government witness during cross-examination by defense counsel that
during investigation defendant “wouldn’t talk to us” did not violate
defendant’s due process rights because the statement was isolated, was
made in response to defense counsel’s question, and was not exploited by
the government); U.S. v. Sands, 968 F.2d 1058, 1063 (10th Cir. 1992)
(prosecutor’s reference to post-arrest, post-Miranda silence was not
reversible error because trial exchange was brief, defense promptly
objected, and defense counsel did not request curative instructions). The
superior court promptly and appropriately cured any error.

3 Miranda v. Arizona, 384 U.S. 436 (1966).

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 STATE v. THOMAS
Decision of the Court

CONCLUSION

¶11 We have reviewed the entire record for reversible error and
find none; therefore, we affirm Thomas’ convictions and sentences.

¶12 After this decision’s filing, defense counsel’s obligations
pertaining to Thomas’ representation in this appeal will end. Defense
counsel need do no more than inform Thomas of this appeal’s outcome and
her future options, unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. State
v. Shattuck, 140 Ariz. 582, 584-585 (1984). On the Court’s own motion,
Thomas has 30 days from the date of this decision to proceed, if she wishes,
with an in propria persona motion for reconsideration or petition for review.

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

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