Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2007-008760-001 The Honorable William L. Brotherton, Judge
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee
James J. Haas, Maricopa County Public Defender, Terry J. Adams, Deputy Public Defender Attorneys for Appellant
DONN KESSLER, Judge
¶1 Fabian Andres Flores appeals from his conviction of possession of dangerous drugs, a class 4 felony. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-3401(6) (Supp. 2012), -3407(A)(1), (B)(1) (Supp. 2012). Finding no arguable issues to raise, counsel requested that this Court search the record for fundamental error pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999).
¶2 Flores filed a pro per supplemental brief asking this Court to determine whether placing his photograph in front of the jury during the trial violated his due process rights and was fundamental error. Because the record does not reveal any fundamental error, we affirm Flores' conviction, but modify his sentence to reflect an increase to his presentence incarceration credit.
FACTUAL AND PROCEDURAL HISTORY
¶3 In August 2007, Officers C and R saw a car run a red light near 47th Avenue and turn into a gas station parking lot. They followed this car into the parking lot and observed Flores exit the car and go into the store. Flores then exited the store and began to return to the car, but turned towards a Suburban in the opposite direction when he noticed the patrol car. Officer C saw Flores reach into his pocket, pull out a small white object (later identified as a baggie), and throw it towards the Suburban's front tire. When a man in the Suburban drove away, another white object (also a baggie) became visible where its front tire had been. The officers seized the baggies, drove Flores to the police station, and turned the baggies in for processing. The bags tested positive for methamphetamine.
¶4 After the jury convicted Flores of possession of dangerous drugs, the jury also found that Flores had committed the offense while on community supervision release from a prior felony. Flores timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), -4033(A)(1) (2010).
¶5 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993) . Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). In order to obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20. On review, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
I. Sufficiency of the Evidence
¶6 There is evidence in the record to support Flores' conviction. To obtain a conviction of possession of dangerous drugs, the State must prove that the defendant knowingly possessed a dangerous drug. A.R.S. § 13-3407(A) (1); see ...