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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     JERMAINE T. YOUNG, Appellant.

                             No. 1 CA-CR 13-0736
                               FILED 2-19-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-139910-001
                    The Honorable Rosa Mroz, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined.


N O R R I S, Judge:

¶1              Jermaine T. Young appeals his conviction and sentence for
misconduct involving weapons. On appeal, Young argues the superior
court, first, should have suppressed evidence of the gun discovered by a
police detective when the detective illegally searched his car; second,
should not have admitted evidence at trial regarding the car’s registration;
and third, should have granted his motion for a new trial because it failed
to properly instruct the jury. As we explain, we disagree with the first and
third arguments, and do not address the second argument as Young failed
to preserve it for our review. We therefore affirm his conviction and
sentence.

                               DISCUSSSION1

I.     Suppression of the Gun

¶2             After conducting an evidentiary hearing, the superior court
denied Young’s motion to suppress the gun police found in his car. In so
doing, the court relied on the “plain view exception” to the Fourth
Amendment warrant requirement. The “plain view exception” allows a
police officer who is lawfully present at a place to seize an item in plain
view if its evidentiary value is immediately apparent. Horton v. California,
496 U.S. 128, 136, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112 (1990).

¶3             On appeal, Young argues the detective had “no authority or
justification under the ‘plain view’ exception for searching [the] car without
a warrant and without [his] permission.” Young also asserts the detective’s
stated purpose for returning to his car to test the window tint was
pretextual. Applying the applicable standards of review, we reject both
arguments. See State v. Gilstrap, 235 Ariz. 296, 297, ¶ 6, 332 P.3d 43, 44 (2014)

               1Although   the Arizona Legislature amended certain statutes
cited in this decision after the date of Young’s offense, the revisions are
immaterial to the resolution of this appeal. Thus, we cite to the current
version of these statutes.
                                State v. Young
                             Decision of the Court
(appellate court reviews for abuse of discretion trial court’s factual findings
on motion to suppress, but reviews de novo its ultimate legal determination
that search complied with Fourth Amendment); see also State v. Fornof, 218
Ariz. 74, 76, ¶ 8, 179 P.3d 954, 956 (App. 2008) (appellate court reviews
evidence presented at suppression hearing in light most favorable to
upholding trial court’s factual findings).

¶4           At the suppression hearing, the detective testified he and
another detective stopped Young’s car while patrolling an area in Phoenix
prone to gang violence.2 Before the stop, the detective saw Young “reach
over to the passenger side of the vehicle.” Subsequently, the detective
asked Young, who was by then sitting on the street curb, whether he had
any weapons in the car. Young responded, “No.”

¶5              The detective returned to the car to test the window tint. The
detective explained that to do this he had to view the window “from both
sides” through a “little box” that he had to place over the window. The
detective said he “believe[d]” the driver side door was closed when he
returned to the car, but the window was down. The detective also
explained the driver’s side door was open at some point so that Young
could get out of the car, but, thereafter, the door “probably” was closed or
left slightly ajar so as not to interfere with traffic. In any event, the detective
testified he “looked at the window” and noticed part of the gun handle
underneath the passenger seat.

¶6            Young disputed the detective’s testimony regarding how the
detective discovered the gun. Young testified he was sitting on the curb
behind his car when he saw the detective return to the driver’s side of the
car, open the door, crouch down, and peer under the passenger seat. Based
on his testimony, Young argued the plain view exception was inapplicable
because the detective had to open the car door to see the gun.

¶7            In denying the motion to suppress, the court made no express
findings as to whether the detective had opened the car door. The court
stated, however, that the detective “had authority to open the door of the
vehicle to test the tint of the driver’s window,” “[h]e was in a position to
see the gun located partially under the front passenger seat,” and that
“[t]his was an inadvertent discovery.” In light of the detective’s testimony
he was looking “at” the window instead of “through” it when he saw the
gun, we interpret the court’s statement as a finding that the detective
opened the driver’s side door to test the window tint. See Ariz. Rev. Stat.

                2Young   did not contest the validity of the traffic stop at the
suppression hearing.


                                        3
                               State v. Young
                            Decision of the Court
(“A.R.S.”) §§ 28-121 (Supp. 2014), -959.01(A)(1), (B) (2012) (specifications for
materials on motor vehicle windows and windshield, violation of which is
class two misdemeanor).

¶8            Because the detective was looking at the window to test the
tint when he saw the gun, he was lawfully in a position to see it. See United
States v. Bynum, 508 F.3d 1134, 1137 (8th Cir. 2007) (seizure of handgun from
vehicle held constitutional under plain view doctrine when police officer
“had a right to be in close proximity” to vehicle that he was authorized to
impound). Further, based on Young’s statement to the detective before the
detective tested the window tint — that he did not have any weapons in the
car — the gun’s “incriminating character” was “immediately apparent.” As
the detective explained at the suppression hearing: “He was hiding the fact
that he had a gun in the car or said he didn’t have a gun in the car.” See
A.R.S. § 13-3102(A)(1)(b), (M) (Supp. 2014) (inaccurately answering police
officer’s question regarding presence of concealed deadly weapon within
one’s immediate control in a means of transportation is class one
misdemeanor). Accordingly, assuming without deciding the detective
searched Young’s car when he opened the car door,3 the detective’s seizure
of the gun was lawful under the plain view exception to the warrant
requirement.

¶9             Finally, even though the detective’s intent in returning to the
car to test the window tint is irrelevant to determining whether a Fourth
Amendment violation occurred here, the superior court’s finding that the
detective inadvertently saw the gun in Young’s car precludes a conclusion
that the “search” was pretextual. See State v. Jeney, 163 Ariz. 293, 296, 787
P.2d 1089, 1092 (App. 1989) (“searches and seizures are to be examined
under a standard of objective reasonableness without regard to the good or
bad faith intention of a police officer, or to the underlying intent or motive
of the individual officer involved”). Thus, we affirm the superior court’s
denial of Young’s motion to suppress the gun evidence.4


               3The State argues on appeal “no search” occurred because
the detective saw the gun while looking at the window, but the State did
not raise this argument in the superior court. See Bynum, 508 F.3d at 1137
(“The act of looking through a car window is not a search for Fourth
Amendment purposes.”).

               4Young’s  reliance on State v. Gant, 216 Ariz. 1, 162 P.3d 640
(2007), aff’d, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), is
misplaced. Gant addressed a search of a vehicle incident to the occupant’s



                                       4
                               State v. Young
                            Decision of the Court
II.    Car Registration Evidence

¶10            Young argues the court abused its discretion in allowing the
other detective to testify at trial that the car was registered to Young because
the testimony was irrelevant “for any purpose.” The record, however,
reflects Young objected to the evidence based on hearsay, not relevancy.
Therefore, we normally would review this issue only for fundamental error.
State v. Lopez, 217 Ariz. 433, 434-35, ¶ 4, 175 P.3d 682, 683-84 (App. 2008)
(objection on one ground does not preserve objection on another ground;
appellate court then reviews other ground for fundamental error).

¶11            But on appeal Young does not argue the superior court
committed fundamental error in allowing the detective to testify about the
car’s registration. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22, 115
P.3d 601, 607-08 (2005) (defendant bears burden of establishing both
fundamental error occurrence and resulting prejudice). Accordingly,
Young has waived this issue on appeal and we will not address it. See State
v. Moreno-Medrano, 218 Ariz. 349, 354, ¶¶ 16-17, 185 P.3d 135, 140 (App.
2008) (defendant waives argument alleged error at trial constituted
fundamental error when he fails to argue issue on appeal); see also State v.
Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (failure to argue claim
usually constitutes abandonment and waiver of such claim) (citations
omitted).

III.   Motion for New Trial - Jury Instructions

¶12           The court instructed the jury, in relevant part, as follows:

              The crime of “Misconduct Involving Weapons”
              requires proof that:

              1. The defendant knowingly possessed a deadly
              weapon; and




arrest. Id. at 2, ¶ 1, 162 P.3d at 641. We also reject Young’s argument that
the detective was not justified in opening the car door because “there was
a less intrusive way to test the window” tint (i.e., the window was open).
The record does not support this argument. Although the detective
testified the car’s window was part way down and that, generally, a tint test
can be conducted on a car window as long as it is “rolled down,” he did not
testify the window was sufficiently “rolled down” to allow him to test the
tint “from both sides” without opening the car door.


                                       5
                              State v. Young
                           Decision of the Court
             2. The defendant was a prohibited possessor at
             the time of possession of the weapon.

             “Knowingly” or “knew” means that a person is
             aware or believes that his or her conduct is of
             that nature or that the circumstance exists. It
             does not require any knowledge of the
             unlawfulness of the act or omission.

             ....

             The law recognizes          different   types   of
             possession.

             “Actual possession” means the defendant
             knowingly had direct physical control over an
             object.

             “Constructive      possession”     means     the
             defendant, although not actually possessing an
             object, knowingly exercised dominion or
             control over it, either acting alone or through
             another person. “Dominion or control” means
             either actual ownership of the object or power
             over it. Constructive possession may be proven
             by direct or circumstantial evidence.

             Both actual and constructive possession may be
             sole or joint. “Sole possession” means the
             defendant, acting alone, had actual or
             constructive possession of an object. “Joint
             possession” means the defendant and one or
             more persons shared actual or constructive
             possession of an object.

             You may find that the element of possession, as
             the term is used in these instructions, is present
             if you find beyond a reasonable doubt that the
             defendant had actual or constructive
             possession, either acting alone or with another
             person.

¶13            During deliberations, the jury submitted two questions to the
court. First, the jury asked the court to, “Clarify [the] ‘knowingly or knew’
statement on page 6. Specifically, ‘or believes that his or her conduct is of


                                     6
                               State v. Young
                            Decision of the Court
that nature or that the circumstance exists.’” Second, the jury asked, “Does
‘dominion or control’ mean that contents within the vehicle are under the
‘dominion’ of this individual (whether it was known or not)?” Young
agreed with the court’s suggestion that it respond to the first question by
referring the jury to its instructions. Young suggested the court answer the
second question by informing the jury that “Mr. Young had to know what
he had control over . . . in order to be found in dominion or control over the
item.” The court rejected Young’s proposed response and informed the
jury: “This is a question of fact for the jury to decide. You should refer to
the jury instructions on the definition of ‘possession’ and ‘knowingly’ for
further guidance.”

¶14            On appeal, Young argues the court did not properly respond
to the jury’s second question and, because of this, should have granted his
motion for a new trial. Specifically, he argues the second question
(especially when viewed in combination with the first question) reflects the
jury was confused about an issue of law — whether “the law” required
Young to “know (or have cognizance) of the item which he is accused of
having dominion or control over.”

¶15            “When the jury appears to be confused about a legal issue,
and the resolution of the question is not apparent from an earlier
instruction, the trial judge has a responsibility to give the jury the required
guidance by a lucid statement of the relevant legal criteria.” State v. Ramirez,
178 Ariz. 116, 126, 871 P.2d 237, 247 (1994) (citations omitted) (internal
quotation marks omitted). Nevertheless, whether a court should further
instruct a jury on a matter is within its discretion. Id. In exercising its
discretion, a court may refuse to instruct on a matter that it has adequately
covered in other instructions. Id.

¶16           Here, the court did not abuse its discretion in refusing to
answer the jury’s question as Young suggested, and by referring the jury to
the instructions it had already been given regarding the definitions of
“possession” and “knowingly.” The court properly viewed the jury’s
question as raising a “question of fact” the jury had to decide, and further,
the court’s prior instructions on “possession” and “knowingly” adequately
and properly reflected Arizona law. See A.R.S. §§ 13-105(10)(b) (Supp.
2014) (definition of “knowingly”), -3102(A)(4) (misconduct involving
weapons by prohibited possessor).




                                       7
                           State v. Young
                        Decision of the Court
                           CONCLUSION

¶17         For the foregoing reasons, we affirm Young’s conviction and
sentence.




                                :ama




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