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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    DAMEON JAMES SMITH, Appellant.

                             No. 1 CA-CR 18-0393
                               FILED 3-5-2019


          Appeal from the Superior Court in Maricopa County
                       No. CR2015-147672-001
         The Honorable William R. Wingard, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

KBunited, LLC, Phoenix
By Kerrie M. Droban
Counsel for Appellant
                             STATE v. SMITH
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

¶1            Dameon James Smith appeals his conviction for one count of
possession or use of dangerous drugs, a class 4 felony, and the resulting
sentence. Smith’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
certifying that, after a diligent search of the record, she found no arguable
question of law that was not frivolous. Smith was given the opportunity to
file a supplemental brief but did not do so. Counsel asks this court to search
the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we
affirm Smith’s conviction and sentence.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On March 26, 2015, several police officers were around Alma
School Road and Main Street in Mesa. An officer saw Smith and recognized
him as having an outstanding warrant. Four officers approached Smith and
ordered him to put his hands in the air. Smith refused the officers’
commands and was tasered twice, causing him to fall. Smith was then
arrested. After the arrest, an officer searched Smith and found a digital scale
and a clear bag containing a white crystal-like substance which the officer
recognized as methamphetamine. Smith also identified the substance as
methamphetamine and told the officer he possessed the scale to avoid
getting “ripped off” when buying drugs.

¶3            The State charged Smith with one count each of possession or
use of dangerous drugs, a class 4 felony, (“Count One”) and possession of
drug paraphernalia, a class 6 felony (“Count Two”). Based on the officers’
use of force against Smith, he moved to suppress the statements he made
following his arrest and requested a voluntariness hearing. He also
separately moved to suppress the evidence obtained from the search.

¶4           The superior court held an evidentiary hearing on the motion
to suppress the evidence and denied the motion. The motion to suppress


                                       2
                             STATE v. SMITH
                            Decision of the Court

Smith’s statements was not a subject of the evidentiary hearing, and the
court did not rule on the motion. The court permitted the arresting officer
to testify about Smith’s statements about the drugs and the scale and thus
implicitly denied the motion to suppress the statements. See State v.
Paris-Sheldon, 214 Ariz. 500, 507, ¶ 22 (App. 2007) (superior court implicitly
denied the defendant’s motion to dismiss by allowing the trial to proceed).
We also note Smith failed to object to the officer’s testimony and has
therefore waived the issue on appeal absent fundamental error. See State v.
Hughes, 193 Ariz. 72, 85, ¶ 58 (1998). Moreover, the record does not support
a finding that Smith was prejudiced by the superior court allowing the
officer to testify to Smith’s statements. See State v. Escalante, 245 Ariz. 135,
142, ¶ 21 (2018) (to prevail under fundamental error review the defendant
must show prejudice).

¶5             A one-day jury trial was held. In addition to the arresting
officer’s testimony, a City of Mesa forensic scientist testified that laboratory
test results confirmed the substance taken from Smith after his arrest was
1.5 grams of methamphetamine. Smith moved for acquittal after the State’s
presentation of evidence, and the superior court denied the motion.

¶6            Smith did not present any evidence or testimony. The jury
convicted Smith on Count One and acquitted him on Count Two. The State
alleged as an aggravating circumstance that Smith committed the charged
offenses while on community supervision, but the jury was unable to reach
a unanimous verdict. At sentencing, the superior court found Smith had at
least two prior historical felony convictions and sentenced him to term of
nine years imprisonment with 799 days’ presentence incarceration credit.
Smith timely appealed.

                               DISCUSSION

¶7           We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We
find none.

¶8            Smith was present for jury selection but was not present for
the remainder of the trial or the aggravation phase. He was previously
warned the trial would proceed without him, and the court found he
voluntarily absented himself from trial. Smith was otherwise present or
represented by counsel at all stages of the proceedings against him. The
record reflects the superior court afforded Smith all his constitutional and
statutory rights, and the proceedings were conducted in accordance with
the Arizona Rules of Criminal Procedure. The court conducted appropriate


                                       3
                             STATE v. SMITH
                            Decision of the Court

pretrial hearings, and the evidence presented at trial and summarized
above was sufficient to support the jury’s verdict. Smith’s sentence falls
within the range prescribed by law, with proper credit given for
presentence incarceration.

                               CONCLUSION

¶9             Smith’s conviction and sentence are affirmed. After the filing
of this decision, defense counsel’s obligations about Smith’s representation
in this appeal will end after informing Smith of the outcome of this appeal
and his future options, unless counsel’s review reveals an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584–85 (1984).




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




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