                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                RICHARD LOUIS LAAKMANN, Appellant.

                             No. 1 CA-CR 13-0402
                              FILED 12-11-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-145979-002
              The Honorable William L. Brotherton, Judge

                         AFFIRMED AS MODIFIED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant

Richard Louis Laakmann
Appellant
                          STATE v. LAAKMANN
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined.


T H U M M A, Judge:

¶1            This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for defendant
Richard Louis Laakmann has advised the court that, after searching the
entire record, he has found no arguable question of law and asks this court
to conduct an Anders review of the record. Laakmann was given the
opportunity to file a supplemental brief pro se, and has done so. This court
has reviewed the record and has found no reversible error. Accordingly,
Laakmann’s conviction and resulting sentence are affirmed as modified.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            After dark in early September 2011, a Phoenix police officer
stopped a pickup truck for not having a valid license plate. Three people
were in the pickup: the driver, another passenger and Laakmann. The
officer noticed a blue bank bag at Laakmann’s feet.

¶3            Other Phoenix police officers arrived at the scene and the
driver was taken into custody. One officer discovered a small baggie of
methamphetamine on the other passenger after a pat down search
unchallenged here. The officers arranged to have the pickup towed,
resulting in an inventory search. One officer opened the blue bank bag that
had been at Laakmann’s feet and found baggies containing nearly a pound
of methamphetamine, as well as two receipts with Laakmann’s name and
address and a hunting brochure. The officers arrested Laakmann.
Laakmann’s fingerprints were later identified on the baggies in the blue
bank bag.



1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588–89, 951 P.2d 454, 463–64 (1997) (citation
omitted).



                                       2
                         STATE v. LAAKMANN
                          Decision of the Court

¶4            Laakmann was charged by Indictment with possession of
dangerous drugs for sale, a Class 2 felony. Laakmann moved to suppress
the blue bank bag and its contents, arguing they were improperly seized
without a warrant. Following an evidentiary hearing, the superior court
found Laakmann lacked standing to contest the seizure and that the search
of the pickup and its contents was lawful. Although the State extended plea
offers to Laakmann, after being informed of his rights and potential
consequences pursuant to State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (2000),
he rejected them.

¶5             At a three-day jury trial, two investigating police officers
testified and identified Laakmann. A detective testified that, in his
experience, the amount of methamphetamine found in the blue bank bag
“would only be possessed for sale.” A fingerprint examiner testified
Laakmann’s fingerprints were identified on baggies containing the
methamphetamine found in the blue bank bag, and Laakmann stipulated
that fact was true. At the close of the State’s case in chief, Laakmann moved
for a judgment of acquittal arguing there was no substantial evidence to
support a conviction, which the superior court denied.

¶6            Laakmann elected to testify in his own defense. Among other
things, Laakmann testified that the blue bank bag was not his, that he had
never seen it before and that he did not have a bank account because he
could not read or write. He testified that he may have touched the blue bank
bag’s contents while getting in the cramped pickup or when moving things
around inside it. He also testified that the receipts found in the blue bank
bag must have stuck to the hunting flyer he pulled out of his pocket and
gave to the passenger.

¶7            After Laakmann rested, he again moved for a judgment of
acquittal arguing there was no substantial evidence to support a conviction,
which the superior court denied. After final instructions and closing
arguments, the jury deliberated and found Laakmann guilty as charged.
The jury also found the amount of methamphetamine in Laakmann’s
possession to be greater than the statutory threshold of nine grams. See
Ariz. Rev. Stat. (A.R.S.) § 13-3407(E); A.R.S. § 13-3401(36)(e) (2014).2
Laakmann was then taken into custody pending sentencing.




2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                     3
                          STATE v. LAAKMANN
                           Decision of the Court

¶8            At sentencing, the superior court heard mitigating testimony
from Laakmann, his daughter and a friend, considered records of his
medical disabilities and heard argument. The superior court sentenced
Laakmann to the presumptive term of 10 years flat time in prison, and
properly gave him 65 days of presentence incarceration credit. This court
has jurisdiction over Laakmann’s timely appeal pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031 and -4033(A)(1).

                               DISCUSSION

¶9            This court has reviewed and considered counsel’s brief and
appellant’s pro se supplemental brief, and has searched the entire record
for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96
(App. 1999). Searching the record and briefs reveals no reversible error. The
record shows that Laakmann was represented by counsel at all stages of the
proceedings and counsel was present at all critical stages. The evidence
admitted at trial constitutes substantial evidence supporting Laakmann’s
conviction. From the record, all proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure. The sentence imposed was
within the statutory limit and permissible range.

¶10          Although finding no issues “not wholly frivolous,” at
Laakmann’s request, his counsel lists four potential issues for this court’s
consideration, none of which were raised before the superior court.
Laakmann also addressed these issues in his pro se supplemental brief.

¶11            First, Laakmann argues his confrontation rights were denied
“when the driver and passenger of the truck he was riding with were not at
the trial so that he could confront his accuser(s).” Neither the State nor
Laakmann called the driver or the other passenger as a trial witness. Nor
were their statements admitted at trial, other than testimony without
objection by a police officer that the passenger admitted the baggie of
methamphetamine found on her “was hers.” Laakmann, however, has not
shown how such an admission violated his confrontation rights. Moreover,
Laakmann has not shown how he has a right to confront the driver or other
passenger by having them present at trial absent their statements being
received at trial.

¶12          Second, although Laakmann argues he was precluded from
offering evidence of his medical disabilities at trial, the record does not
show Laakmann attempted to offer such evidence at trial or that the
superior court precluded such evidence. And at sentencing, the superior
court considered the medical records Laakmann offered.



                                       4
                           STATE v. LAAKMANN
                            Decision of the Court

¶13           Third, Laakmann argues he was precluded from showing
there was insufficient evidence of his fingerprints on the baggie of
methamphetamine found in the blue bank bag because his fingerprint
expert did not testify at trial. Four business days before trial began, the State
moved to preclude Laakmann’s fingerprint expert as a disclosure sanction.
The record does not indicate that motion was brought to the attention of the
superior court or ruled upon. Accordingly, the motion was deemed denied
and no court order precluded Laakmann from calling his fingerprint expert.
See State v. Mendoza-Tapia, 229 Ariz. 224, 231 ¶ 22, 273 P.3d 676, 683 (App.
2012). Moreover, Laakmann failed to call that witness, meaning he “never
invoked the powers of the court to compel [his expert’s] testimony, and the
court did not deny him the right to compulsory process.” State v. Russell,
175 Ariz. 529, 535, 858 P.2d 674, 680 (App. 1993).3

¶14           Fourth, although Laakmann argues ineffective assistance of
trial counsel, such a claim can only be raised in post-conviction
proceedings, not on direct appeal. State ex rel Thomas v. Rayes, 214 Ariz. 411,
415 ¶ 20, 153 P.3d 1040, 1044 (2007).

¶15            In his pro se supplemental brief, Laakmann also argues the
State failed to disclose the other passenger’s plea agreement. The other
passenger, however, did not testify and Laakmann has not shown any
prejudice from this alleged lack of disclosure. See State v. Tucker, 157 Ariz.
433, 439, 759 P.2d 579, 585 (1988). Similarly, Laakmann’s argument that the
State was required to disclose evidence of potential differences or
similarities between the methamphetamine found in the blue bank bag and
the methamphetamine found on the other passenger, and whether they
could have been mixed during lab processing, fails. Laakmann has not
demonstrated any disclosure violation or how such a violation would have
prejudiced him. See id.

¶16           Finally, the superior court ordered Laakmann to “pay the
applicable fee for the cost of” DNA testing. In State v. Reyes, 232 Ariz. 468,
472 ¶ 14, 307 P.3d 35, 39 (App. 2013), this court held that A.R.S. § 13–610
does not authorize the court to impose a DNA testing fee on a convicted
defendant. Accordingly, pursuant to Reyes, which was issued after
Laakmann was sentenced, the superior court erred by imposing the DNA

3 To the extent Laakmann argues he was denied the right to compulsory
process regarding the driver and other passenger in the pickup, such an
argument fails because the record does not show that Laakmann ever
attempted to compel or call either of them as a trial witness. See State v.
Russell, 175 Ariz. 529, 535, 858 P.2d 674, 680 (App. 1993).


                                       5
                          STATE v. LAAKMANN
                           Decision of the Court

testing fee. Therefore, the sentence is modified to omit the requirement that
Laakmann pay for the cost of DNA testing.

                              CONCLUSION

¶17           This court has read and considered counsel’s brief and
Laakmann’s pro se supplemental brief, and has searched the provided
record for reversible error and has found none. Leon, 104 Ariz. at 300, 451
P.2d at 881; Clark, 196 Ariz. at 537 ¶ 30, 2 P.3d at 96. Accordingly,
Laakmann’s conviction is affirmed, and his resulting sentence is affirmed
as modified to omit the requirement that he pay for the cost of DNA testing.

¶18           Upon filing of this decision, defense counsel is directed to
inform Laakmann of the status of his appeal and of his future options.
Defense counsel has no further obligations unless, upon review, counsel
identifies an issue appropriate for submission to the Arizona Supreme
Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85, 684
P.2d 154, 156–57 (1984). Laakmann shall have thirty days from the date of
this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.




                                  :gsh




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