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State v. Weatherspoon

Court of Appeals of Arizona, First Division, Department A

June 20, 2013

STATE OF ARIZONA, Appellee,
v.
IVORIE PHILLIP WEATHERSPOON, Appellant.

Not for Publication - Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-006584-001 The Honorable Roger E. Brodman, Judge

Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant.

MEMORANDUM DECISION

PATRICIA A. OROZCO, Presiding Judge.

¶1 Ivorie Phillip Weatherspoon (Defendant) appeals his conviction and sentence for possession or use of marijuana. Defendant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, she found no arguable question of law that was not frivolous. Defendant was afforded the opportunity to file a supplemental brief in propria persona, but he has not done so.

¶2 Our obligation in this appeal is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, 30, 2 P.3d 89, 96 (App. 1999). Finding no reversible error, we affirm. However, we modify the trial court's sentencing order to reflect an additional thirteen days of presentence incarceration credit.

FACTS AND PROCEDURAL HISTORY

¶3 On December 11, 2010, at approximately 10:50 p.m., Arizona Department of Public Safety (DPS) Officer T. was patrolling I-10 in Phoenix when he observed a vehicle traveling at a high rate of speed. Officer T. paced the vehicle and determined that it was driving seventy-six miles per hour in a sixty-five mile per hour zone. While driving behind the vehicle, Officer T. also began to smell an odor of burning marijuana, and he proceeded to initiate a traffic stop.

¶4 After the vehicle stopped on the shoulder of the freeway, the driver, Defendant, began to exit the vehicle. Officer T. told Defendant to return to the vehicle and approached the passenger side. Because the passenger window had been taped shut, Officer T. asked the passenger to open the door. Officer T. testified that when the passenger opened the door, smoke that smelled like burning marijuana "billowed" from the interior of the car.

¶5 Because there were two occupants in the vehicle, Officer T. radioed for another unit. While he was waiting for the other unit to arrive, Officer T. spoke with Defendant and the passenger. Officer T. testified that at that time, Defendant told him they had been "baking" in the car. Officer T. stated that baking occurs when a person is "in a confined space with burning marijuana and inhaling the fumes that come off of that burning marijuana."

¶6 When the backup officer arrived, he and Officer T. arrested Defendant and the passenger. Officer T. subsequently searched the vehicle and found a plastic baggie that contained marijuana in the passenger door map pocket, as well as a package of papers consistent with those used to roll marijuana cigarettes in the center console. He also observed ashes around the center console.

¶7 Officer T. and the backup officer transported Defendant and the passenger to the DPS station. At the station, another officer, Officer K., drew Defendant's blood for testing. The test results revealed that Defendant's blood contained tetrahydrocannabinol (THC), which is the predominant psychoactive ingredient in marijuana, as well as carboxy tetrahydrocannabinol (carboxy-THC), which is a metabolite of THC.

¶8 The State charged Defendant with one count of possession or use of marijuana and one count of possession of drug paraphernalia, both class six felonies. The case proceeded to trial, and the jury found Defendant guilty on the count of possession or use of marijuana.[1] The trial ...


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