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State v. Merkhai

Court of Appeals of Arizona, First Division, Department C

October 10, 2013

STATE OF ARIZONA, Appellee,
v.
CARLOS OSHAN MERKHAI, Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2012-125811-001 The Honorable John R. Ditsworth, Judge.

William G. Montgomery, Maricopa County Attorney Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee.

James J. Haas, Maricopa Public Defender Christopher V. Johns, Deputy Public Defender Attorneys for Appellant.

MEMORANDUM DECISION

PATRICIA A. OROZCO, Judge.

¶1 Carlos Oshan Merkhai (Defendant) appeals his conviction for possession 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, he 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.

FACTS AND PROCEDURAL HISTORY

¶3 Defendant was a passenger in a maroon Cadillac traveling eastbound on Northern near 27th Avenue on the evening of May 16, 2012. At approximately 8:30 p.m., Phoenix Police Officers J. and R. conducted a traffic stop of the Cadillac after discovering the vehicle's license plate had been suspended. Officer J. initiated the stop by activating the patrol car's overhead lights and siren. He then illuminated both of the car's spotlights and directed the beams into the cabin of the Cadillac.

¶4 The Cadillac traveled for approximately half a block and then pulled into a parking lot. Aided by the spotlight, Officer J. testified at trial that Defendant "leaned to the left and appeared to lean downwards, towards the center area of the vehicle, in the passenger's compartment." Officer J. further testified he was "one hundred percent positive that [Defendant] leaned to the left."

¶5 The officers exited the patrol car and Officer J. made contact with the driver and asked for his driver's license and proof of insurance. The driver was unable to produce either and Officer J. arrested him and secured him in the patrol car.

¶6 After the driver was secured, Defendant was asked to step out of the Cadillac so Officer J. could search the vehicle. Defendant exited the vehicle leaving the front passenger door open, at which point Officer R. noticed a bag of a "green leafy substance" underneath the armrest located in the middle of the front seat. Officer R. indicated to Officer J. he observed what he believed to be marijuana in the vehicle.

¶7 Officer R. inspected the center console while Officer J. spoke with Defendant. He found two baggies of marijuana underneath the center console within Defendant's reach. Defendant indicated to the officers the marijuana was not his and that the Cadillac belonged to his mother. In addition, he admitted to driving the vehicle earlier in the evening.

¶8 A forensic scientist for the Phoenix Police department analyzed the contents of the two baggies and determined there were 1.8 grams and ...


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