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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      PATRICK B. YAZZIE, Appellant.

                             No. 1 CA-CR 16-0178
                               FILED 5-2-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2015-124544-001 DT
             The Honorable Jacki Ireland, 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 Lawrence Blieden
Counsel for Appellant
                            STATE v. YAZZIE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.


B E E N E, Judge:

¶1             This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969)
following Patrick Yazzie’s conviction for possession of dangerous drugs, a
Class 4 felony. Yazzie’s counsel searched the record on appeal and found
no arguable question of law that is not frivolous. State v. Clark, 196 Ariz.
530 (App. 1999). Yazzie was given the opportunity to file a supplemental
brief in propria persona and did so.1 Counsel now asks this Court to search
the record for fundamental error. Additionally, we review issues raised by
Yazzie in his supplemental brief for fundamental error. After reviewing the
entire record and Yazzie’s supplemental brief, we affirm Yazzie’s
conviction and sentence.

                FACTS AND PROCEDURAL HISTORY2

¶2             Unrelated to Yazzie’s arrest, officers surveilled a motel room
where Yazzie worked. Officers noticed Yazzie, stopped him, and asked for
his identification. After producing identification, officers asked Yazzie
whether he had anything illegal in his possession. Yazzie produced a
methamphetamine pipe from his pocket, and shortly thereafter, a small
plastic bag of methamphetamine from his other pocket.

¶3          A jury convicted Yazzie of possession of dangerous drugs, but
found him not guilty of possession of drug paraphernalia. Based on two



1     This Court issued a memorandum decision denying Yazzie relief.
However, this Court issued its memorandum decision before addressing
Yazzie’s supplemental brief.

2      We view the facts in the light most favorable to upholding the jury’s
verdict and resolve all inferences against Yazzie. See State v. Fontes, 195
Ariz. 229, 230, ¶ 2 (App. 1998).



                                     2
                              STATE v. YAZZIE
                             Decision of the Court

prior felonies, the superior court sentenced Yazzie to a slightly-aggravated
four-year prison sentence, with 42 days of presentence incarceration credit.

¶4            Yazzie timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2017), 13-4031 (2017) and 13-
4033(A)(1) (2017).3

                                DISCUSSION

¶5            The record reflects no fundamental error in pretrial
proceedings. Yazzie rejected the State’s plea offer after a Donald
advisement, and his case proceeded to trial. State v. Donald, 198 Ariz. 406
(App. 2000). The superior court held appropriate pretrial hearings,
including a hearing on Yazzie’s prior felony convictions and how they were
to be referred to at trial pursuant to Rule 609 of the Arizona Rules of
Evidence.

¶6             The record also reflects Yazzie received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages, except when he failed to appear for the first half
of voir dire. Although Yazzie was not present during this time, he was still
represented by counsel. See State v. Rose, 231 Ariz. 500, 504, ¶ 9 (2013).
Yazzie admitted to his prior felony convictions during trial. Ariz. R. Crim.
P. 17.6. The superior court did not conduct a voluntariness hearing;
however, voluntariness of Yazzie’s statements to police were not raised by
counsel nor did the evidence at trial suggest Yazzie’s statements were
involuntary. State v. Fassler, 103 Ariz. 511, 513 (1968).

¶7             The State presented direct and circumstantial evidence
sufficient for a reasonable jury to convict Yazzie. Yazzie, however,
contends that his conviction should be overturned because there was
reasonable doubt regarding his guilt, as evidenced by the jury acquitting
him of possession of drug paraphernalia but convicting him of possession
of methamphetamine. The sufficiency of the evidence supporting a
conviction is a question of law, which we review de novo. State v. Denson,
241 Ariz. 6, 10, ¶ 17 (App. 2016). We will overturn a conviction only if there
is no substantial evidence supporting the conviction. Id. Substantial
evidence is “such proof that reasonable persons could accept as adequate
and sufficient to support a conclusion of defendant’s guilt beyond a


3      Absent material revisions after the date of an alleged offense, we cite
a statute’s current version.


                                        3
                              STATE v. YAZZIE
                             Decision of the Court

reasonable doubt.” Id. (citation omitted). When reviewing a jury verdict,
this Court considers the “evidence and possible inferences therefrom in a
manner most favorable to upholding the verdict.” Id.

¶8            Although the jury acquitted Yazzie for possession of drug
paraphernalia, and convicted him of possession of a dangerous drug, there
is no fundamental error. There is sufficient evidence that Yazzie was in
possession of methamphetamine. Yazzie produced the narcotic from his
pocket when questioned by police. We do not reweigh the evidence. State
v. Guerra, 161 Ariz. 289, 293 (1989). Based on the elements of the offenses,
the jury could reasonably convict Yazzie of one of the charged offenses and
not the other. See State v. Zakhar, 105 Ariz. 31, 32-33 (1969); State v. Williams,
233 Ariz. 271, 274, ¶ 10 (App. 2013); State v. Barr, 183 Ariz. 434, 439 (App.
1995).

¶9             The jury was properly comprised of eight members with two
alternates. The superior court properly instructed the jury on the elements
of the charges. The key instructions concerning burden of proof,
presumption of innocence, reasonable doubt, and the necessity of a
unanimous verdict were also properly administered. The jury returned a
unanimous verdict. The superior court received a presentence report, and
properly sentenced Yazzie based on his two prior felony convictions, while
taking into account mitigating factors.

¶10             Yazzie’s supplemental brief raises three additional issues.
First, Yazzie asserts that his right to confront witnesses and a fair trial were
violated when neither his counsel, nor the State, subpoenaed witnesses on
his behalf. Yazzie’s claim does not raise issues of fundamental error. The
State is under no obligation to subpoena defense witnesses. See State v.
Stewart, 131 Ariz. 407, 409 (App. 1982). “The duty to present a defense
devolves upon the defendant who must plead and prove his own case and
is responsible for the production of witnesses in his behalf.” Id. The
decision to subpoena or call witnesses is a question of trial strategy, and
that decision rests with counsel. State v. Lee, 142 Ariz. 210, 215 (1984). Trial
strategy and tactics “require the skill, training, and experience” of counsel,
something that the criminal defendant generally does not possess. Id.
Because the decision to call witnesses is the purview of Yazzie’s defense
counsel, there is no fundamental error. Additionally, because ineffective
assistance of counsel claims must be brought through Rule 32 proceedings,
we do not address these arguments on direct appeal. See State v. Spreitz, 202
Ariz. 1, 3, ¶ 9 (2002).




                                        4
                            STATE v. YAZZIE
                           Decision of the Court

¶11            Second, Yazzie contends that his procedural due process
rights were violated when the State did not produce the police report of his
arrest. See Ariz. R. Crim. P. 15.1(a). However, Yazzie admits that his
attorney took possession of the police report, thus vitiating his argument
that the State hindered his ability to prepare an effective defense. Further,
Yazzie contends that there is fundamental error in his indictment because
there is no individualized police report. The police report is not part of the
record on appeal. There is no legal authority supporting Yazzie’s claim,
and there is no evidence that Yazzie was fundamentally prejudiced by a
police report that listed him with other defendants.

¶12           Third, Yazzie asserts that plea negotiations were held in
violation of U.S. v. Monroe, 580 F.3d 552 (7th Cir. 2009) because his counsel
and State conducted settlement negotiations without Yazzie’s or the court’s
presence. Yazzie’s reliance on U.S. v. Monroe is misplaced. Monroe involved
a defendant who pleaded guilty to his crime and sought modification of his
sentence. Here, Yazzie did not enter into a plea agreement. Further, a
review of the entire record does not reveal a settlement conference outside
the presence of the court. Regardless, neither the judge nor the criminal
defendant is required to be present at settlement discussions. See Ariz. R.
Crim. P. 17.4(a).

                              CONCLUSION

¶13           We reviewed the entire record for reversible error, including
the issues raised by Yazzie in his supplemental brief, and find none;
therefore, we affirm the conviction and resulting sentence. It is also ordered
denying Yazzie’s Motion for Reconsideration.

¶14           After the filing of this decision, defense counsel’s obligation
pertaining to Yazzie’s representation in this appeal will end. Defense
counsel need do no more than inform Yazzie 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). On the Court’s
own motion, Yazzie has 30 days from the date of this decision to proceed,
if he wishes, with a pro per petition for review.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA     5
