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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  KILIAN SURRON WATSON, Appellant.

       Nos. 1 CA-CR 16-0494, 1 CA-CR 16-0495, 1 CA-CR 16-0615
                           (Consolidated)
                            FILED 8-10-2017


         Appeal from the Superior Court in Maricopa County
    Nos. CR2015-001985-001, CR2013-422967-001, CR2013-454220-001
          The Honorable James R. Rummage, Commissioner

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
                           STATE v. WATSON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Patricia A. Orozco1 joined.


J O N E S, Judge:

¶1             Kilian Watson appeals his conviction and sentence for one
count of sale or transportation of marijuana, a class two felony, and the
resulting revocation of two terms of probation imposed following separate
prior convictions for possession of drug paraphernalia and possession or
use of marijuana. After searching the entire record, Watson’s defense
counsel has identified no arguable question of law that is not frivolous.
Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this Court to search
the record for fundamental error. Watson was afforded an opportunity to
file a supplemental brief in propria persona but did not do so. For the
following reasons, we affirm Watson’s conviction and probation
revocations and affirm as modified his sentence and dispositions.

                FACTS2 AND PROCEDURAL HISTORY

¶2            In December 2013, Watson pleaded guilty to one count of
possession of drug paraphernalia and, in a separate case, to one count of
possession or use of marijuana. Watson was placed on concurrent terms of
three years’ probation. As part of his probation, Watson agreed he would
maintain a crime-free lifestyle and refrain from possessing or using illegal
drugs or controlled substances.

¶3           In May 2015, Watson was indicted on one count of transport
or sale of marijuana. At trial in May 2016, a trooper with the Arizona


1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Sections 3 and 20, of the Arizona Constitution.

2      “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).


                                      2
                           STATE v. WATSON
                           Decision of the Court

Department of Public Safety testified he initiated a traffic stop on the
evening of April 9, 2015, of a vehicle he observed exceeding the posted
speed limit on Interstate 17 by more than twenty miles per hour. While
speaking with the driver, later identified as Watson, through the open front
passenger window, the trooper smelled a “moderate odor” of marijuana
emanating from the vehicle. From outside the vehicle, the trooper could
see a green leafy substance he believed to be marijuana contained within
two plastic grocery bags on the floorboard beneath Watson’s legs.

¶4            At first, Watson told the trooper the smell came from incense
he had burned earlier. The trooper advised Watson he was being placed in
investigative detention, and Watson then admitted there was marijuana in
his vehicle. The trooper placed Watson under arrest and performed a
search incident to arrest. The trooper discovered $1,000 cash in Watson’s
pocket, bundled in $100 increments. Watson had only $3 in his wallet. The
trooper also found a third bag of marijuana beneath the driver’s seat of the
vehicle. Watson did not appear to be under the influence of marijuana,
however, and the trooper did not find any drug paraphernalia or other
evidence suggesting Watson used marijuana.

¶5           After being transported to the police station and advised of
his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 467-73 (1966),
Watson admitted he knew the bags contained marijuana, which he had
purchased a few hours earlier that evening for $500. He added he had
recently begun selling drugs and believed the total weight of the marijuana
was 2.7 pounds.

¶6             Subsequent testing confirmed the three bags contained a total
of 2.93 pounds of marijuana. A drug expert testified this was substantially
more than what is typically considered for personal use and its value was
substantially greater if broken down and sold by the ounce. Additionally,
because marijuana is organic and loses its potency over time, some portion
of that marijuana would become unusable before even a heavy marijuana
user could consume it all. The expert also testified the bundling of the
currency found in Watson’s possession was consistent with cash involved
in drug sales.

¶7            At the close of the State’s case-in-chief, Watson moved for
judgment of acquittal, arguing the State failed to prove Watson transported
the marijuana for sale, rather than possessed it for personal use. The trial
court denied the motion but agreed to instruct the jury regarding the lesser-
included offense of simple possession of marijuana. Nonetheless, the jury
found Watson guilty of sale or transport of marijuana and, as an


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                             STATE v. WATSON
                             Decision of the Court

aggravating factor, “the amount of marijuana the defendant possessed . . .
was [t]wo pounds or more.” During the aggravation phase, Watson’s
probation officer confirmed Watson was on probation at the time of the
offense. The jury then found Watson had committed the offense “while on
probation . . . for a conviction of the felony offense of [possession of] [d]rug
[p]araphernalia” and “as consideration for the receipt, or in the expectation
of the receipt, of anything of pecuniary value.” Based upon the
determination of guilt, the court found Watson had violated the conditions
of his probations. Watson later admitted one historical felony conviction.

¶8             At sentencing, the trial court considered both aggravating and
mitigating circumstances3 before sentencing Watson as a non-dangerous,
repetitive offender to a presumptive term of 9.25 years’ imprisonment, with
credit for thirty-four days of presentence incarceration, for his conviction
for sale or transportation of marijuana. The court also revoked both of
Watson’s probation grants and sentenced him to a mitigated term of four
months’ imprisonment for possession of drug paraphernalia, and a term of
thirty-one days’ imprisonment for possession of marijuana, with these
sentences to run consecutive to that for sale or transportation of marijuana.
The court gave Watson credit for forty-two days’ presentence incarceration
credit upon those terms, resulting in the immediate termination of Watson’s
sentence for possession of marijuana. We have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),4 13-4031, and
-4033(A)(1).

                                 DISCUSSION

¶9              Regarding Watson’s conviction and probation revocations,
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.”). Pursuant to A.R.S. § 13-3405(A)(4), “[a] person shall not knowingly
. . . [t]ransport for sale, import into this state or offer to transport for sale or
import into this state, sell, transfer or offer to sell or transfer marijuana.” If

3      Although the record does not contain a presentence report, it is
apparent from the record the trial court received and considered the report,
as well as Watson’s criminal history, the testimony of his friends, and other
mitigating factors. Under these circumstances, the absence of the
presentence report does not, alone, amount to fundamental error. See State
v. Maese, 27 Ariz. App. 379, 379-80 (1976).

4     Absent material changes from the relevant date, we cite a statute’s
current version.


                                         4
                            STATE v. WATSON
                            Decision of the Court

a person transports “an amount of marijuana having a weight of two
pounds or more,” he is guilty of a class 2 felony. A.R.S. § 13-3405(B)(11).
Sufficient evidence was presented upon which a jury could determine,
beyond a reasonable doubt: (1) Watson knew he had marijuana in the
vehicle he was driving on a public highway; (2) he intended to sell that
marijuana, which weighed more than two pounds; and (3) he was on
probation at the time of the offense. Additionally, the trial court was
authorized to revoke Watson’s probations following his conviction on
another offense. See Ariz. R. Crim. P. 27.8(c)(2), (e).

¶10              All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Watson
was represented by counsel at all stages of the proceedings and was present
at all critical stages including the entire trial, the verdict, and the violation
hearing. See Ariz. R. Crim. P. 27.8(b)(2) (right to be present at violation
hearing); 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(B); Ariz. R. Crim. P. 18.1(a). At sentencing and disposition, Watson
was given an opportunity to speak, and the trial 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. §§ 13-702(D),
-703(B), (I), -707(A)(1), -708(C).5

                               CONCLUSION

¶11           Watson’s conviction, sentence, probation revocations, and
dispositions are affirmed.

¶12          Defense counsel’s obligations pertaining to Watson’s
representation in this appeal have ended. Defense counsel need do no more
than inform Watson of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to




5       Although the record suggests Watson may have received more
presentence incarceration credit than he was entitled to receive, because
any error favors Watson and the State did not file a cross-appeal, we lack
jurisdiction to correct the error. See State v. Dawson, 164 Ariz. 278, 281-82
(1990).


                                       5
                            STATE v. WATSON
                            Decision of the Court

our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).

¶13            Watson has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Watson
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.




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




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