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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      RION STEVEN PRICE, Appellant.

                             No. 1 CA-CR 15-0489
                              FILED 11-3-2016


           Appeal from the Superior Court in Maricopa County
                      No. CR2014-106600-001 DT
                  The Honorable Daniel J. Kiley, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                             STATE v. PRICE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Christopher T. Whitten1 joined.


W I N T H R O P, Judge:

¶1             Rion Steven Price (“Appellant”) appeals the trial court’s
denial of his motion to suppress and subsequent motion for
reconsideration. Appellant argues that the trial court erred in denying his
motion to suppress because the arresting officer lacked reasonable
suspicion to detain him. Appellant also argues that the trial court abused
its discretion in finding there was no good cause to reconsider his motion
to suppress. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On February 8, 2014, Officer Corey McDowell of the Mesa
Police Department was working the graveyard shift when he was
dispatched to the Plainsman Motel for a disturbance call. As he was
approaching the motel in his patrol car, Officer McDowell received an
update through his radio that one of the individuals involved in the
disturbance, a white male named Rion who was wearing a black t-shirt and
jeans, had left the motel. Shortly thereafter, Officer McDowell saw a man
squatting against the wall of a house who fit the description of the man
involved in the disturbance. Officer McDowell then activated the
emergency lights on his patrol car, exited the vehicle, and asked Appellant
his name.2 Appellant refused to state his name. Officer McDowell told
Appellant he was a Mesa police officer and Appellant was legally required
to identify himself, but Appellant still refused to state his name. Officer
McDowell then learned from Officer Brandon Lavin through his radio that
the altercation at the motel was verbal and there was no probable cause for

1       The Honorable Christopher T. Whitten, Judge of the Arizona
Superior Court, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.

2     Appellant later testified that Officer McDowell exited the vehicle
with his gun drawn and that Officer McDowell did not ask Appellant for
his name until two other officers had arrived.


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                             STATE v. PRICE
                           Decision of the Court

any criminal acts. After Appellant continued to refuse to state his name,
Officer McDowell arrested Appellant for failure to identify himself to a law
enforcement officer while legally detained.

¶3           Upon placing Appellant under arrest, Officer McDowell
noted that Appellant had a “marble size bump in his cheek and teeth.” The
bump eventually disappeared, however. Officer McDowell then conducted
a search of Appellant’s person and found two Ziploc style bags in
Appellant’s pocket that contained a white substance, which was later
determined to be methamphetamine.

¶4             As Officer McDowell took Appellant to the Mesa jail,
Appellant identified himself as Rion Price.3 Officer McDowell also noted
that Appellant was exhibiting “bizarre” behavior. After arriving at the jail,
Appellant’s erratic behavior continued and Officer McDowell took him to
the hospital, concerned that Appellant had ingested the object that caused
the bulge in his cheek.

¶5            At the hospital, Officer McDowell saw Appellant’s tattoos
and asked what each one meant to Appellant. Appellant declined to
discuss his tattoos and then stated he was going to “capitalize” Officer
McDowell. Officer McDowell interpreted this statement to mean that
Appellant was going to kill him.4

¶6            Appellant was charged with resisting arrest, a class six felony;
possession or use of dangerous drugs, a class four felony; refusing to
provide a truthful name when lawfully detained, a class two misdemeanor;
threatening or intimidating, a class six felony; and possession of drug
paraphernalia, a class six felony.5




3     While transporting Appellant to the jail, Officer McDowell
discovered an active warrant for Appellant’s arrest.

4      Appellant later contended at trial that he stated, “I’m going to
capitalize off of this,” meaning he was going to file a lawsuit.

5     After the February 2014 indictment, the parties stipulated to
dismissal of two counts and renumbering the remaining counts for
purposes of the jury trial.




                                      3
                              STATE v. PRICE
                            Decision of the Court

¶7           Before trial, Appellant moved to suppress the evidence
related to Officer McDowell’s search—including the methamphetamine
and drug paraphernalia—claiming a violation of his rights under the
Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution and Article II, sections 8 and 10, of the Arizona Constitution.

¶8             The trial court held an evidentiary hearing on the motion to
suppress and received testimony from Officer McDowell, Officer Lavin,
and Officer Hermes.6 Appellant did not testify.7 The court took the matter
under advisement and later denied Appellant’s motion to suppress, finding
that “the totality of the events presented clearly establishe[d] a basis for the
officers to detain [Appellant] following the reports they had received.”

¶9            In January 2015, through new counsel, Appellant filed a
motion to reconsider the denial of his motion to suppress, arguing that
Officer McDowell lacked reasonable suspicion to stop Appellant. The court
then held an evidentiary hearing, during which Appellant testified that
Officer McDowell did not ask Appellant his name until other officers were
on the scene. Appellant also stated he did not testify at the June 8, 2014
evidentiary hearing because he did not know he was able to. Although the
court found Appellant credible,8 it nevertheless denied Appellant’s motion
for reconsideration, finding that Appellant’s argument was “actually an
ineffective assistance of counsel claim” and did not provide a basis for
reconsideration.9




6       Officer Hermes, a gang detective, attempted to interview Appellant
at the hospital after Officer McDowell stated that Appellant had threatened
him.

7       Appellant contends that he “was unaware that he could have
testified at the June 18, 2014 evidentiary hearing” until his new lawyer took
over his case.

8     The court stated that although it was “quite possible” Appellant’s
testimony could have altered some of its findings at the initial suppression
hearing, it was “even more likely” that the court would have reached the
same conclusion.

9      The court noted that an ineffective assistance claim could be raised
in post-conviction proceedings.



                                       4
                              STATE v. PRICE
                            Decision of the Court

¶10          The case proceeded to trial, where the jury convicted
Appellant of possession or use of a dangerous drug, refusing to provide a
truthful name when lawfully detained, and possession of drug
paraphernalia.

¶11           Appellant filed a timely notice of appeal.          We have
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031
(2010), and 13-4033(A) (2010).

                                 ANALYSIS

       I.     Denial of the Motion to Suppress

¶12           We review a trial court’s ruling on a motion to suppress
evidence for an abuse of discretion if it involves a discretionary issue, but
review de novo constitutional and legal issues. State v. Moody, 208 Ariz. 424,
445, ¶ 62, 94 P.3d 1119, 1140 (2004). Whether an officer had reasonable
suspicion of criminal activity to justify conducting an investigatory stop is
a mixed question of law and fact, which we review de novo. State v. Rogers,
186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996). When considering the denial
of a motion to suppress, we review only the evidence submitted at the
suppression hearing and defer to the trial court’s factual findings unless
clearly erroneous. State v. Moore, 222 Ariz. 1, 7, ¶ 17, 213 P.3d 150, 156
(2009).

¶13           The Fourth Amendment prohibits unreasonable searches and
seizures, but investigatory stops are permitted when supported by an
officer’s reasonable suspicion that criminal activity is afoot. Rogers, 186
Ariz. at 510, 924 P.2d at 1029. Reasonable suspicion is a “commonsense,
nontechnical conception[],” Ornelas v. U.S., 517 U.S. 690, 695 (1996), and
must be based on specific, articulable facts and rational inferences that arise
from those facts. Terry v. Ohio, 392 U.S. 1, 21 (1968).

¶14            Here, Officer McDowell’s testimony established that there
was sufficient justification to conduct an investigatory stop because
Appellant was seen near the motel where the disturbance had occurred and
fit the description of one of the individuals involved. The record therefore
supports the trial court’s finding that Officer McDowell had a basis to
detain Appellant.

¶15           Because Appellant was lawfully detained and Officer
McDowell had reasonable suspicion that Appellant had engaged in
criminal activity at the motel, Appellant’s arrest for refusing to provide his


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                              STATE v. PRICE
                            Decision of the Court

name was valid. See Ariz. Rev. Stat. § 13-2412(A) (“It is unlawful for a
person, after being advised that the person’s refusal to answer is unlawful,
to fail or refuse to state the person’s true full name on request of a peace
officer who has lawfully detained the person based on reasonable suspicion
that the person has committed, is committing or is about to commit a
crime.”).10 Officer McDowell’s subsequent search of Appellant’s person
was therefore justified as a search incident to arrest.11 See Chimel v.
California, 395 U.S. 752, 762-63 (1969) (stating that it is reasonable for an
arresting officer to search the arrested person in order to remove any
weapons or seize any evidence on the arrestee’s person). Accordingly, the
trial court did not err in denying Appellant’s motion to suppress the
evidence found during the search.

       II.    Finding of No Good Cause for Reconsideration of the Motion to
              Suppress

¶16           Appellant also contends that the trial court abused its
discretion in finding no good cause for reconsideration of his motion to
suppress. Arizona Rule of Criminal Procedure (“Rule”) 16.1(d) provides
that, “[e]xcept for good cause, . . . an issue previously determined by the
court shall not be reconsidered.” We review a trial court’s decision to
reconsider an earlier ruling under Rule 16.1(d) for abuse of discretion. State
v. King, 180 Ariz. 268, 279, 883 P.2d 1024, 1035 (1994).

¶17            Generally, good cause for reconsideration can be shown
where the trial court relied on factually erroneous information, an incorrect
legal standard, or a recent change in the law. See State v. Baca, 172 Ariz. 1,
2, 832 P.2d 933, 934 (App. 1992) (holding good cause existed to grant a
motion to reconsider where the first trial judge’s decision relied on an
incorrect statute and factual misrepresentations by the State); State v.
Sinclair, 159 Ariz. 493, 494 n.1, 768 P.2d 655, 656 n.1 (App. 1988) (noting that
good cause existed for the State to point out the factual errors and incorrect
legal standard used by the trial court); State v. Davis, 137 Ariz. 551, 560, 672


10     Appellant’s briefs do not challenge the constitutionality of A.R.S.
§ 13-2412(A). Rather, his argument is limited to whether Officer McDowell
had reasonable suspicion to detain him.

11     Appellant cites authority that addresses the requirements necessary
for police officers to conduct Terry frisks. That authority is not relevant
here, however, because Officer McDowell did not search Appellant until
after Appellant was arrested. Therefore, Officer McDowell’s search of
Appellant’s person was a search incident to arrest, not a Terry frisk.


                                       6
                              STATE v. PRICE
                            Decision of the Court

P.2d 480, 489 (App. 1983) (stating that a recent appellate decision and
evidence later presented at trial were sufficient to establish good cause to
reconsider a prior evidentiary ruling).

¶18            Appellant argues two grounds to demonstrate good cause for
reconsideration of the trial court’s denial of his motion to suppress: (1) the
trial court’s finding at the hearing on the motion to reconsider that
Appellant’s testimony was credible, and (2) Appellant’s prior attorney’s
failure to inform him that he could have testified at the initial suppression
hearing.

¶19            The primary case Appellant relies on to support his first
argument is distinguishable. In State v. Davis, this court determined the trial
court did not abuse its discretion in finding good cause for reconsidering
its decision to exclude evidence of the defendant’s prior convictions. Id. at
560, 672 P.2d at 489. The trial court reconsidered its decision because of its
subsequent assessment of the “starkness of the issue of credibility.” Id. This
court affirmed, noting that the sole contested issue was the credibility of the
victim, and “the jury was entitled to have before it any information which
might have a bearing on the defendant’s credibility also.” Id. at 561, 672
P.2d at 490. Here, in contrast, the trial court did not exclude evidence at the
initial suppression hearing; thus, the concern in Davis relating to the
importance of providing relevant information to the jurors was not present.

¶20           Furthermore, Appellant’s primary argument is that there was
“new” evidence (his own testimony) that the court found to be generally
credible in a later hearing. But the court specifically observed that, even
had such testimony been presented at the first hearing, it likely would not
have changed the ultimate ruling in denying the motion to suppress.

¶21           Appellant’s second argument fails because any ineffective
assistance claims must be brought in Rule 32 proceedings. See State v.
Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (“[W]e reiterate that
ineffective assistance of counsel claims are to be brought in Rule 32
proceedings. Any such claims improvidently raised in a direct appeal,
henceforth, will not be addressed by appellate courts regardless of merit.”).

¶22           Accordingly, construing the record in the light most favorable
to affirming, see State v. Mendoza-Ruiz, 225 Ariz. 473, 474 n.1, ¶ 2, 240 P.3d
1235, 1236 n.1 (App. 2010), the trial court did not abuse its discretion in
denying Appellant’s motion for reconsideration of the denial of his motion
to suppress.




                                      7
                    STATE v. PRICE
                  Decision of the Court

                      CONCLUSION

¶23   Appellant’s convictions and sentences are affirmed.




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




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