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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      MARIO J. MARTINEZ, Appellant.

                             No. 1 CA-CR 16-0362
                               FILED 3-21-2017


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201400702
                 The Honorable Ralph E. Hatch, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

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

Emery K. La Barge, Attorney at Law, Snowflake
By Emery K. La Barge
Counsel for Appellant

Mario J. Martinez, Douglas
Appellant
                           STATE v. MARTINEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Chief Judge Michael J. Brown joined.


W I N T H R O P, Judge:

¶1              Mario J. Martinez (“Appellant”) appeals his convictions for
possession of dangerous drugs for sale, transportation of dangerous drugs
for sale, and possession of drug paraphernalia. Appellant’s counsel filed a
brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v.
California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), stating she searched the record for error but found no arguable
question of law. Appellant’s counsel therefore requested that we review
the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30,
2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record
for reversible error). This court allowed Appellant to file a supplemental
brief in propia persona, and Appellant has done so, raising several issues that
we address.

¶2            We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1) (2016), 13-4031 (2010), and 13-4033(A) (2010).1 We
affirm the convictions and sentences as modified.

                 FACTS AND PROCEDURAL HISTORY

¶3           In September 2014, Appellant, along with two codefendants,
was indicted for possession of dangerous drugs for sale, a class 2 felony
(Count One); transportation of dangerous drugs for sale, a class 2 felony
(Count Two); possession of dangerous drugs, a class 4 felony (Count Three);
and possession of drug paraphernalia, a class 6 felony (Count Four).2



1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

2     Appellant and his codefendants were also indicted for another
paraphernalia charge involving a rolled dollar bill (Count Five), but that
charge was dropped as to Appellant.


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                          STATE v. MARTINEZ
                          Decision of the Court

¶4            At trial, the State presented evidence that, around 7:00 p.m.
on September 10, 2014, Arizona Department of Public Safety Trooper
Nathan Solomon (“Trooper Solomon”) was monitoring traffic on Interstate
40. Trooper Solomon observed a gray vehicle with contact damage on the
driver’s side. When Trooper Solomon began to follow the vehicle, he
noticed the vehicle’s speed fluctuated and several times the vehicle drifted
slowly toward the left lane before jerking back to the fog line on the right.

¶5            Based on these observations, Trooper Solomon pulled over
the vehicle to conduct an investigatory stop. Appellant was seated in the
back of the vehicle, and his two codefendants were in the driver’s seat and
front passenger seat. After requesting the occupants’ identification,
Trooper Solomon asked the driver to accompany him back to his patrol car.
There, the driver explained to Trooper Solomon that the group had traveled
to Phoenix from Iowa, and they had spent about a day in Phoenix. During
the conversation, Trooper Solomon noted the driver’s nervous demeanor
and requested consent to search the vehicle. When the driver refused,
Trooper Solomon detained all three individuals and contacted his
dispatcher to request a K-9 unit.

¶6            After the K-9 alerted, Trooper Solomon searched the vehicle
and found a small baggie containing white crystals and white powder, later
determined to be methamphetamine, in the “map pocket” on the back of
the front passenger seat, directly in front of where Appellant was seated.
In the trunk, Trooper Solomon found a black garbage bag underneath the
spare tire that contained four individually wrapped packages of
methamphetamine, totaling 6.5 pounds.

¶7           At trial, the jury convicted Appellant of possession of
dangerous drugs for sale (Count One); transportation of dangerous drugs
for sale (Count Two); and possession of drug paraphernalia (Count Four).
The jury acquitted Appellant of possession of dangerous drugs (Count
Three).

¶8             The trial court sentenced Appellant to the presumptive terms
of ten years in prison for Count One; ten years in prison for Count Two; and
one year in prison for Count Four, with all sentences to run concurrently.
The court also imposed a fine of $274,500. Appellant filed a timely notice
of appeal.




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                            STATE v. MARTINEZ
                            Decision of the Court

                              ANALYSIS

       I.     Appellant’s Conviction for Possession of Dangerous Drugs for Sale
              is a Lesser-Included Offense

¶9            After reviewing the record for fundamental error, we ordered
briefing pursuant to Penson v. Ohio, 488 U.S. 75 (1988) on whether
Appellant’s conviction for possession of dangerous drugs for sale was
incidental to his conviction for transportation of dangerous drugs for sale,
making the former a lesser-included offense. See State v. Chabolla-Hinojosa,
192 Ariz. 360, 965 P.2d 94 (App. 1998). Defense counsel and the State filed
supplemental briefs, asserting that Appellant’s conviction for possession
was incidental to his conviction for transportation because both were based
on the same 6.5 pounds of methamphetamine found in the trunk of the car.
Because we conclude the same, we vacate Appellant’s conviction for
possession of dangerous drugs.

       II.    Appellant’s Arguments

¶10            Appellant raises several arguments in his supplemental brief.
As an initial matter, we do not address Appellant’s claims that he received
ineffective assistance of counsel because such claims must be raised in
petitions for post-conviction relief, not on direct appeal. See State v. Spreitz,
202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). We address Appellant’s other
arguments in turn.

¶11          Appellant argues the State presented insufficient evidence to
convict him because he “didn’t know [the drugs] were in the car.”3 A
conviction must be supported by substantial evidence of guilt. 4 State v.
Mathers, 165 Ariz. 64, 66-67, 796 P.2d 866, 868-69 (1990). Here, the State
presented evidence that on September 8, 2014, Appellant and three women
drove from Iowa to Phoenix. The trip was arranged by two men in Iowa,
who had the car serviced before the trip and determined which routes the
group would take. After driving about twenty hours, the group spent the


3     Because we vacate Appellant’s conviction for Count One, we only
address his arguments as they pertain to his convictions for Counts Two
and Four.

4      To sustain his conviction under A.R.S. § 13-3407(A)(7) (Supp. 2016),
the State must show that Appellant knowingly transported a dangerous
drug for sale.



                                       4
                           STATE v. MARTINEZ
                           Decision of the Court

night in Phoenix. The next morning, one of the women took the car for
several hours before returning it to the motel for Appellant and the two
other women to make the trip back to Iowa.

¶12          Appellant’s codefendant, DeShane Buffalo, testified that she
knew the purpose of the trip was to bring drugs back to Iowa. Buffalo
stated that Appellant was present during conversations she had with their
other codefendant about how much they were being paid for making the
trip.

¶13           Trooper Solomon testified that he found a small bag of
methamphetamine and a straw containing a white powder residue in the
“map pocket” on the back of the front passenger seat, directly in front of
where Appellant was sitting. Further, on the day of the arrest, Appellant
was wearing a bracelet with an image of Jesus Malverde, who, according to
the State’s expert, is a “drug patron saint” commonly embraced by drug
traffickers. Accordingly, on this record, the evidence was sufficient to
permit a reasonable jury to conclude Appellant knew there were drugs in
the car.

¶14            Appellant next argues the trial court erred by permitting the
State’s expert to testify about the significance of Jesus Malverde in relation
to drug cartels. Relying on State v. Lee, 191 Ariz. 542, 959 P.2d 799 (1998),
Appellant contends the expert’s testimony was inadmissible profiling
evidence. But unlike the evidence in State v. Lee, the testimony here was not
offered as substantive proof of guilt. See Lee, 191 Ariz. at 547, 959 P.2d at
804. Rather, the court instructed the jury only to consider the expert’s
testimony relating to Jesus Malverde “as it may affect impeaching any
statement” Appellant made regarding his lack of knowledge about the
drugs in the car. Further, as the trial court noted, the evidence in State v.
Lee—that the defendant took the last flight out of a drug source city, flew to
a high demand area, and carried a hard-sided suitcase—is distinguishable
from the evidence here, which established that Appellant was in possession
of a physical object depicting a person whom drug traffickers recognize and
often glorify. Accordingly, we conclude the trial court did not abuse its
discretion in permitting the expert testimony. See State v. Rodriguez, 186
Ariz. 240, 250, 921 P.2d 643, 653 (1996) (“Absent a clear abuse of discretion,
we will not second-guess a trial court’s ruling on the admissibility or
relevance of evidence.”) (internal citations omitted).




                                      5
                           STATE v. MARTINEZ
                           Decision of the Court

¶15           Finally, we reject Appellant’s contention the trial court erred
by sentencing him to the presumptive term.5 Generally, a defendant “shall
receive a specific term of imprisonment”—the presumptive—that “may be
either increased or reduced based upon findings of specific aggravating or
mitigating circumstances.” State v. Fell, 210 Ariz. 554, 558, ¶ 13, 115 P.3d
594, 598 (2005) (internal citations and quotations omitted). The trial court
has considerable discretion in evaluating the mitigating factors. State v.
Olmstead, 213 Ariz. 534, 535, ¶ 6, 145 P.3d 631, 632 (App. 2006). Here, the
trial court was well within its discretion to consider the mitigating factors
presented by Appellant and nevertheless determine the presumptive term
was appropriate. Therefore, the court did not abuse its discretion in
sentencing Appellant to the presumptive term.

¶16            After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-67 (1984). Appellant has
thirty days from the date of this decision to proceed, if he desires, with a pro
per motion for reconsideration or petition for review.

                               CONCLUSION

¶17          Appellant’s convictions and sentences for transportation of
dangerous drugs for sale (Count Two) and possession of drug
paraphernalia (Count Four) are affirmed, and his conviction for possession
of dangerous drugs for sale (Count One) is vacated.




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



5      Appellant also argues the fine imposed by the trial court was
“excessive.” Because Appellant does not develop this argument or present
any authority to support this claim, it is waived. See State v. King, 226 Ariz.
253, 257, ¶ 11, 245 P.3d 938, 942 (App. 2011).


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