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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       AARON C. WILSON, Appellant.

                             No. 1 CA-CR 16-0349
                               FILED 4-25-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-127183-001
             The Honorable Jerry Bernstein, Commissioner

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                             STATE v. WILSON
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.


J O N E S, Judge:

¶1           Aaron Wilson appeals his convictions and sentences for one
count each of possession of dangerous drugs and possession of drug
paraphernalia. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           Wilson was charged with one count possession of dangerous
drugs and one count possession of drug paraphernalia arising from events
occurring on June 12, 2015. Wilson waived his right to a jury trial and the
facts adduced at the bench trial are as follows.

¶3            At approximately 6:40 p.m. on June 12, 2015, a Phoenix police
officer investigating a report of trespassing discovered Wilson sleeping,
with his head resting on a backpack, in a narrow space between a storage
container and a retaining wall near 7th Avenue and Hatcher Road. After
waking Wilson, who appeared dirty and unkempt, the officer obtained his
identification and arrested him on two outstanding warrants.

¶4            Wilson then stated the backpack, and both a BMX bicycle and
BMX bicycle frame nearby, belonged to him. Wilson admitted there were
two syringes in the side pocket of the backpack that he had found in the
area between the storage container and the retaining wall. The officer
recovered two syringes, one of which he believed to contain
methamphetamine, and the other, heroin. Subsequent testing confirmed
that one of the syringes contained 0.10 milliliters of methamphetamine.

¶5          At trial, Wilson denied making statements regarding
ownership of the items or the circumstances surrounding the syringes to

1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).



                                      2
                             STATE v. WILSON
                            Decision of the Court

the officer. Wilson explained he was taking a shortcut through a dirt lot to
the bus stop at 7th Avenue and Hatcher Road; there, he planned to take the
106 or 80 bus west to 35th Avenue, transfer to the 35 bus north to Metro
Center and then to Bell Road, and then bike the final mile to his job near
39th Avenue and Deer Valley Road in time for his 8 p.m. shift.2 Wilson
testified he noticed the backpack and other items behind the storage
container and had stopped to investigate the contents of the backpack. But,
he did not get the chance to look in the backpack because the officer arrived
immediately thereafter. According to Wilson, when the officer asked if
there was anything in the backpack that would “stick him,” Wilson
responded, “I don’t know; it’s not mine.” Wilson testified the officer
promised to release him if he admitted ownership of the drugs and
paraphernalia, but he “still didn’t admit to it because it wasn’t [his].”

¶6             The trial court determined Wilson’s explanation was not
credible and found him guilty of the charged offenses. The court also found
Wilson was on parole at the time of the offenses, determined he had two
prior historical felony convictions, and sentenced him to a total of ten years’
imprisonment. Wilson filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1),3 13-
4031, and 13-4033(A).

                               DISCUSSION

¶7            Wilson argues the trial court violated his due process rights
by considering evidence outside the record when it “improperly took
informal judicial notice concerning the court’s own inaccurate knowledge
of bus schedules” in finding Wilson’s testimony less credible than the
officer’s before pronouncing him guilty. Wilson’s argument is premised
upon the court’s discussion of some of the information it considered in
evaluating Wilson’s credibility. Specifically, the court noted:

       Also [Wilson] was saying he was going to go to work, had to
       be there by 8 o’clock. This stop was made . . . about 6:35, 6:40


2       Wilson requests we take judicial notice, on appeal, of the bus
schedules he has attached as appendices to his opening brief. See State v.
Rojers, 216 Ariz. 555, 560-61, ¶¶ 25-26 (App. 2007). However, he concedes
the schedules are not current as of June 12, 2015, the date of the incident,
and therefore, they are not relevant to our consideration.
3     Absent material changes from the relevant date, we cite a statute’s
current version.


                                      3
                             STATE v. WILSON
                            Decision of the Court

       in the evening. Hoping to catch a bus on Hatcher, or if not
       going to take the other bus, then taking the bus 35, which you
       take up 35th Avenue to Bell, after stopping at Metro Center
       and hoping to get another bus, it’s very, very iffy. And the
       idea at that time of night getting all those buses and matching
       within that period of time, I suppose there’s no evidence
       about bus schedules, but that’s an issue because then, once he
       finally gets off the bus, he would have to ride his bike from —
       another mile from Bell Road to Deer Valley Road.

Wilson did not object to this argument when made in the State’s closing
argument. We accordingly review his claim for fundamental error only. See
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (“Fundamental error
review . . . applies when a defendant fails to object to alleged trial error.”)
(citing State v. Bible, 175 Ariz. 549, 572 (1993)). On fundamental error
review, the defendant has the burden of proving the court erred, the error
was fundamental in nature, and he was prejudiced thereby. Id. at ¶ 20
(citations omitted).

¶8             The record does not support Wilson’s claim that the trial court
took “informal judicial notice” of any fact. Under Arizona Rule of Evidence
201(b), a court “may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Here, however, the
court did not accept as fact any actual bus schedules. Rather, it relied upon
common sense to find Wilson’s story about a complicated bus and bicycle
commute on a tight schedule was suspect.

¶9             In doing so, the judge fulfilled his role, as the fact finder in a
bench trial, to evaluate the witnesses’ credibility based upon the evidence
at trial and determine what reasonable inferences are to be drawn
therefrom. See FL Receivables Tr. 2002-A v. Ariz. Mills, L.L.C., 230 Ariz. 160,
168, ¶ 34 (App. 2012) (“The fact finder is the sole judge of the facts and the
credibility of the witnesses.”) (citing Walsh v. Advanced Cardiac Specialists
Chartered, 227 Ariz. 354, 361, ¶¶ 23-24 (App. 2011)). Although a trial judge
is not permitted to rely upon his specialized personal knowledge of facts
not in evidence, see United States v. Berber-Tinoco, 510 F.3d 1083, 1091 (9th
Cir. 2007) (“It is . . . plainly accepted that the judge is not to use from the
bench, under the guise of judicial knowledge, that which he knows only as
an individual observer outside of court.”) (quotation and citation omitted),
none of the cases cited by Wilson hold that the judge is not permitted to use
common sense in evaluating a witness’s credibility, or they are otherwise


                                       4
                              STATE v. WILSON
                             Decision of the Court

distinguishable, see id. (concluding the trial court erred in making findings
regarding the location of signage on, and the condition of, a roadway with
which the judge was personally familiar); United States v. Sorrells, 714 F.2d
1522, 1527 n.6 (11th Cir. 1983) (rejecting the argument that the trial court
judge’s conclusion that an informant was reliable, based upon his prior
experience with the informant, could cure an otherwise defective search
warrant affidavit); Commonwealth v. Howlett, 328 S.W.3d 191, 192-93 (Ky.
2010) (concluding the trial court improperly took judicial notice of the
operating instructions for a breathalyzer machine where the information
was gained by the judge through his prior experience as a prosecutor); State
v. Vejvoda, 438 N.W.2d 461, 473 (Neb. 1989) (concluding “the locational
inference necessary for venue was not an adjudicative fact” appropriate for
judicial notice); O’Neill v. Dep’t of Revenue, 739 P.2d 456, 459-60 (Mont. 1987)
(concluding the trial court “went far beyond the record” when its
observations regarding a motel’s generation of business compared to other
motels in the area could only be verified by thorough research of facts not
in the record); Guyton v. Monteau, 332 S.W.3d 687, 692 (Tex. Ct. App. 2011)
(finding an abuse of discretion where trial court took judicial notice of “all
documents and testimony in the twelve-year history of the case” because
the court may not take judicial notice of the truth of the information
contained in the record and prior trial testimony is subject to different
interpretations and “lacks the high degree of indisputability required to
justify taking judicial notice”); In re C.L., 304 S.W.3d 512, 515-16 (Tex. Ct.
App. 2009) (concluding the trial court did not take proper judicial notice of
the materials it relied upon because it failed to notify the parties of its action
or provide them the opportunity to be heard); City of Beaver Dam v.
Cromheecke, 587 N.W.2d 923, 926 n.3 (Wis. Ct. App. 1998) (concluding the
trial judge’s personal observations regarding a property’s availability to
public “do not, in themselves, establish that [the fact] was generally known
in the jurisdiction”); see also Rev. Ariz. Jury Instr. Preliminary Crim. 10 (4th
ed. 2016) (directing the jury, in evaluating the credibility of witnesses, to
“[c]onsider all of the evidence in light of reason, common sense, and
experience”).

¶10           Here, the trial court specifically noted that no evidence of any
bus schedules had been introduced. The court then referenced Wilson’s
testimony regarding his commute, a matter on which the court had
questioned him extensively, and, given the complicated nature of the plan
and the testimony that Wilson was sleeping when the officer made contact,
expressed its skepticism that Wilson was being truthful in his version of
events. The court also found Wilson’s credibility suspect because Wilson
claimed the route over the dirt lot was a shortcut to the bus stop when a
map of the area indicated there were shorter routes over paved areas, and


                                        5
                           STATE v. WILSON
                          Decision of the Court

Wilson’s detour through a “very, very narrow” area behind the storage
container would make no sense if “he was just going down to the bus stop.”
The court further found it too coincidental that Wilson, who was riding a
BMX bicycle, had stumbled upon an abandoned BMX frame. Viewing the
record and the court’s findings regarding Wilson’s credibility as a whole,
the remark regarding the “iffy” nature of the tight itinerary described by
Wilson appears on its face to be a common-sense credibility determination
based upon reasonable inferences drawn from the evidence, rather than any
personal knowledge of bus schedules. Wilson has failed to demonstrate
error, much less fundamental, prejudicial error.

                              CONCLUSION

¶11          Wilson’s convictions and sentences are affirmed.




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




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