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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        BENNY ORTEGA, Appellant.

                             No. 1 CA-CR 18-0119
                              FILED 10-30-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-129987-001
          The Honorable James R. Rummage, Judge Pro Tempore

                                  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

Benny Ortega, San Luis
Appellant
                            STATE v. ORTEGA
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.


J O H N S E N, Judge:

¶1            Benny Ortega timely filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), following his conviction of possession of a dangerous drug, a Class
4 felony. Ortega's counsel has searched the record on appeal but found no
arguable question of law that is not frivolous, and asks this court to search
the record for fundamental error. See Smith v. Robbins, 528 U.S. 259, 284
(2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537 (App. 1999).
Ortega has filed a supplemental brief, which we address below. After
reviewing the entire record, we affirm Ortega's conviction and sentence.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Phoenix police officers came upon Ortega as he was walking
alone on the sidewalk during the early morning hours.1 When the officers
shined a spotlight on Ortega, they saw him throw a crumpled piece of paper
over a nearby fence. They stopped Ortega and retrieved the crumpled
paper, which contained a white crystal-like substance that lab personnel
later identified as methamphetamine.

¶3            The State charged Ortega with one count of possession of a
dangerous drug. See Ariz. Rev. Stat. ("A.R.S.") § 13-3407(A)(1) (2018).2 An
eight-person jury found him guilty. After finding that Ortega had five
historical prior felony convictions, the superior court sentenced him as a
category-three repetitive offender to a mitigated term of six years'



1      Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Ortega. State
v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

2      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.



                                       2
                            STATE v. ORTEGA
                            Decision of the Court

imprisonment, with two days' presentence incarceration credit. See A.R.S.
§ 13-703(C), (J) (2018).3

¶4            Ortega timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2018), 13-4031 (2018) and -4033(A)(1) (2018).

                               DISCUSSION

A.     Due Process Review.

¶5            The record reflects Ortega received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The State presented both direct and
circumstantial evidence sufficient to allow the jury to convict. The jury was
properly comprised of eight members. The court properly instructed the
jury on the elements of the charges, the State's burden of proof, the
presumption of innocence and the necessity of a unanimous verdict. The
jury returned a unanimous verdict, which was confirmed by juror polling.
The court received and considered a presentence report, addressed its
contents during the sentencing hearing and imposed a legal sentence for
the crime of which Ortega was convicted.

B.     The Supplemental Brief.

¶6             Ortega filed a motion in limine seeking to preclude statements
he made to police that he had used methamphetamine earlier on the day of
his arrest. The court granted the motion and precluded the State from
offering Ortega's statements in its case-in-chief, but ruled the State could
offer the statements if Ortega put his knowledge of methamphetamine at
issue. In his supplemental brief, Ortega seems to challenge the superior
court's ruling on this matter, but does not explain the basis for his challenge.
We see no issue with the superior court's ruling. Cf. State v. Torres, 162 Ariz.
70, 72-73 (App. 1989) (court erred by admitting defendant's prior drug use
because there was "simply nothing in the case" that brought "into play any
issue of motive, knowledge, intent, absence of mistake, or accident"). In any
event, Ortega did not testify at trial, and the State did not offer his
statements in evidence.

¶7            Ortega also contends "the state's prosecutor abdicated her role
by shifting the burden of proof to the defense [sic] version of events," but

3      The superior court mistakenly cited A.R.S. § 13-702 (2018) instead of
§ 13-703 in the sentencing order.


                                       3
                            STATE v. ORTEGA
                            Decision of the Court

does not cite any record support for that assertion. The record does not
support Ortega's contention. The prosecutor did not impermissibly
comment on Ortega's silence, nor did the prosecutor vouch for the evidence
or express any personal belief in Ortega's guilt. Ortega's supplemental brief
also refers to jury instructions but does not challenge any particular
instruction. We have reviewed all the instructions the superior court gave
the jury, and have identified no error. Finally, Ortega mentions an alibi, but
he did not offer an alibi at trial.

                               CONCLUSION

¶8            We have reviewed the entire record for reversible error and
find none, and therefore affirm Ortega's conviction and resulting sentence.
See Leon, 104 Ariz. at 300.

¶9            Defense counsel's obligations pertaining to Ortega's
representation in this appeal have ended. Counsel need do no more than
inform Ortega of the outcome of this appeal and his future options, unless,
upon review, counsel finds "an issue appropriate for submission" to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). Ortega has 30 days from the date of this decision
to proceed, if he wishes, with a pro per petition for review. On the court's
own motion, Ortega has 30 days to proceed, if he wishes, with a pro per
motion for reconsideration.




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




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