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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               CHARLES RAYMOND JOHNSON, Appellant.

                             No. 1 CA-CR 17-0151
                               FILED 5-24-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-100680-001
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
                            STATE v. JOHNSON
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Randall M. Howe and Judge Maria Elena Cruz joined.


S W A N N, Judge:

¶1            This is an appeal under Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), from Charles Raymond
Johnson’s conviction for possession or use of marijuana and possession of
drug paraphernalia. Neither Johnson nor his counsel identify any issues on
appeal. We have reviewed the record for fundamental error and we find
none. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We therefore affirm.

¶2            Johnson was charged with possession or use of marijuana and
possession of drug paraphernalia, both class six felonies. Johnson entered
a plea of not guilty. The state filed a motion to amend the counts to class
one misdemeanors in accordance with A.R.S. § 13-604(B)(1), which the
court granted. The matter proceeded to a bench trial.

¶3            The state presented the following evidence at trial. On
December 1, 2015, Officer Brandon Monnens went to Johnson’s residence
to execute an outstanding arrest warrant. Once at the location, officers
knocked on the door. Johnson answered, and was placed under arrest.
Officers then permitted Johnson to retrieve some clothes. Upon following
Johnson into his home, Officer Monnens observed “in plain view” a mason
jar with a “green, leafy substance” that he believed was marijuana, and a
“multicolored glass pipe that is very commonly used to smoke marijuana.”
The glass pipe was inside of a pill bottle bearing Johnson’s name. Officer
Monnens seized and impounded the items.

¶4            Johnson admitted to officers that the marijuana was his, and
he stated that he had a medical marijuana card. Johnson was unable to
provide the card to officers. Instead, Johnson showed officers an
“application signed by a doctor” qualifying him to receive the card. Officer
Monnens read Johnson his Miranda1 rights, and charged him with
possession or use of marijuana and drug paraphernalia. Officer Monnens


1      Miranda v. Arizona, 384 U.S. 436 (1966).


                                      2
                            STATE v. JOHNSON
                            Decision of the Court

also testified that when he was leaving with Johnson, Johnson’s girlfriend
said that the pipe belonged to her. Ashleigh Vincent, a forensic scientist,
tested the green leafy substance and found that it was marijuana.

¶5             Johnson moved under Ariz. R. Crim. P. 20 for a judgment of
acquittal, which the court denied. Johnson testified that he did not have a
valid medical marijuana card at the time of the arrest and that when the
card arrived in the mail, it was effective as of December 7, 2015 — six days
after the date of arrest. He also argued that the Arizona Medical Marijuana
Act (“AMMA”) is ambiguous and that he should be granted immunity from
prosecution. The court disagreed, reasoning that under the AMMA,
marijuana cannot lawfully be dispensed to an individual unless he has a
valid card in his possession.

¶6           The court found Johnson guilty of misdemeanor possession
or use of marijuana and drug paraphernalia, and imposed six months of
unsupervised probation. Johnson appeals.

¶7            We find no fundamental error. Johnson was present and
represented at all critical stages. He was properly afforded a bench trial.
See Derendal v. Griffith, 209 Ariz. 416, 425, ¶ 37 (2005); A.R.S. §§ 13-3405(A),
-3415(A), -604(B)(1), -707(A)(1). And the evidence was sufficient to support
his convictions. A person illegally possesses marijuana under A.R.S. § 13-
3405(A) if he or she knowingly “possess[es] . . . marijuana.” The crime of
possession requires “either actual physical possession or constructive
possession.” State v. Curtis, 114 Ariz. 527, 528 (App. 1997).

¶8             The AMMA affords qualified immunity for the possession of
marijuana under A.R.S. § 36-2811(B), which protects “registered qualifying
patient[s]” under certain circumstances. A “qualifying patient” is one who
“has been diagnosed by a physician as having a debilitating medical
condition.” A.R.S. § 36-2801(13). The AMMA provides a presumption that
a qualifying patient is engaged in medical use of marijuana only if he or she
“[i]s in possession of a registry identification card.” A.R.S. § 36-
2811(A)(1)(a). Additionally, a person is guilty of possessing drug
paraphernalia under A.R.S. § 13-3415(A) if he or she “possess[es] with
intent to use, drug paraphernalia to . . . inhale or otherwise introduce into
the human body a drug in violation of [Chapter 34 of Title 13].” “In
determining whether an object is drug paraphernalia, a court . . . shall
consider” factors including the proximity of the object to drugs and
descriptive materials accompanying the object which explain or depict its
use. A.R.S. § 13-3415(E)(4), (8).




                                       3
                            STATE v. JOHNSON
                            Decision of the Court

¶9              The state presented substantial evidence that Johnson
knowingly possessed marijuana and that he did not have a valid medical
marijuana card at the time. The marijuana was found in Johnson’s home
and he stated that it belonged to him. Johnson’s letter from his doctor and
the mailed medical marijuana card designating him as a qualifying patient
were insufficient to provide a presumption that his possession of marijuana
was legal. Even if Johnson possessed a medical marijuana card at the time
of the arrest, the card would have been ineffective to show legal use because
of its effective date. And while Johnson’s girlfriend claimed ownership of
the pipe, the other evidence was sufficient to warrant a different conclusion.
Officers found the pipe in a pill bottle inscribed with Johnson’s name
alongside a jar containing marijuana.

¶10            We affirm Johnson’s convictions. We also affirm the
probation term, which was proper under A.R.S. §§ 13-901.01(A), -902(A)(5).
Defense counsel’s obligations pertaining to this appeal have come to an
end. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Unless, upon review,
counsel discovers an issue appropriate for petition for review to the
Arizona Supreme Court, counsel must only inform Johnson of the status of
this appeal and his future options. Id. Johnson has 30 days from the date
of this decision to file a petition for review in propria persona. See Ariz. R.
Crim. P. 31.21(b)(2)(A). Upon the court’s own motion, Johnson has 30 days
from the date of this decision in which to file a motion for reconsideration.




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




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