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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               LAWRENCE JAMAAL WATSON, Appellant.

                             No. 1 CA-CR 13-0821
                              FILED 5-26-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-152876-001
               The Honorable Sherry K. Stephens, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
                            STATE v. WATSON
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Donn Kessler joined.


T H U M M A, Judge:

¶1             Lawrence Jamaal Watson appeals from his convictions and
resulting sentences for possession of narcotic drugs, resisting arrest and
aggravated assault, arguing his constitutional rights were violated when a
police officer opened an opaque film canister that contained crack cocaine
during a consensual search. Because Watson has shown no reversible error,
his convictions and resulting sentences are affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2             In 2012, Watson was charged with possession or use of
narcotic drugs, a Class 4 felony (Count 1); resisting arrest, a Class 6 felony
(Count 2); aggravated assault, a Class 5 felony (Count 3) and aggravated
assault of a peace officer, a Class 3 felony (Count 4). Watson was on release
leading up to, and at, trial. After Watson failed to appear for trial, the court
issued a bench warrant. Because Watson had been advised of the trial date
in open court, the court found Watson “knowingly, intelligently and
voluntarily chose to absent himself from these proceedings” and proceeded
with the June 2013 trial in absentia.

¶3           The trial evidence showed Officers Montoya and Siljander
were providing off-duty security at an apartment complex in West Phoenix.
While patrolling, Officer Montoya encountered Watson but did not
recognize him as a tenant. Officer Montoya asked Watson if he would
accompany her to the apartment office to determine whether the friend he
was allegedly visiting was a tenant. Watson agreed and walked back
towards the office with her. During the walk to the apartment office, Officer




1On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).



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                           STATE v. WATSON
                           Decision of the Court

Montoya testified Watson appeared nervous, was fidgeting, sweating
profusely and constantly looking back and forth.

¶4           Once in the office, Officer Montoya asked Watson, “you don’t
have anything we need to worry about, you don’t have guns, drugs, knives,
grenades, anything like that on you?” Watson answered “no, let me show
you.” Watson then handed her a variety of items, including a lighter, some
paper, and a small, opaque white film canister that made a rattling sound.
Officer Montoya testified that the container was the sort often used to hold
drugs.

¶5              Officer Montoya shook the canister and examined it. Watson
said nothing but began walking toward the door. Officer Montoya then
opened the container, saw rocks of crack cocaine and commented “you got
a little crack there.” Watson then ran toward the door. Officer Montoya told
Officer Siljander, who had just walked into the office, to restrain Watson.
Officer Montoya managed to slam the office door shut before Watson could
escape. Watson threw a wild punch at Officer Montoya, but missed.

¶6             By this time, Officer Siljander had grabbed Watson from
behind in a bear hug. During a subsequent struggle, Officer Siljander and
Watson fell to the floor. Ultimately, Officer Montoya used Officer
Siljander’s flashlight to strike Watson. One strike hit Watson in the head but
Watson continued to struggle. After about a minute of struggling, Officer
Siljander testified that he felt Watson tugging on his holster, so he alerted
Officer Montoya that Watson was “going for [his] gun.” Officer Montoya
drew her gun and placed it to Watson’s head. Watson then stopped
struggling, said “I’m done” and was taken into custody.

¶7            After being read his rights under Miranda v. Arizona, 384 U.S.
436 (1966), Watson agreed to speak with police officers. Watson said he
found the drugs in an alley and had been rolling pieces of the crack rocks
into cigarettes to smoke. Watson admitted that he was under the influence
of the drug when he assaulted the officers.

¶8            The jury found Watson guilty on Counts 1–3 and not guilty
on Count 4. On August 8, 2013, officers arrested Watson in Illinois and he
was transported to Arizona. The superior court sentenced Watson to 4.5
years in prison for the possession conviction; 2 years in prison for resisting
arrest and 3 years in prison for aggravated assault, all imposed concurrently
and with credit for 130 days of presentence incarceration. Watson filed a
timely appeal from his convictions and resulting sentences.




                                      3
                            STATE v. WATSON
                            Decision of the Court

                                DISCUSSION

I.     This Court Has Jurisdiction Over This Appeal.

¶9             The State contends this court lacks jurisdiction based on
Watson’s absconding and the resulting delay in sentencing. “A defendant
may not appeal” a “final judgment of conviction . . . if the defendant’s
absence prevents sentencing from occurring within ninety days after
conviction and the defendant fails to prove by clear and convincing
evidence at the time of sentencing that the absence was involuntary.” Ariz.
Rev. Stat. (A.R.S.) § 13-4033(C) (2015).2 Watson failed to appear at trial and,
as a result of his absconding, sentencing did not occur until 141 days after
his conviction. There is no indication in the record or on appeal that
Watson’s absence was involuntary.

¶10            A criminal defendant’s constitutional “right to appeal in all
cases,” Ariz. Const. art. 2, § 24, is subject to forfeiture, including by waiver,
see A.R.S. § 13-4033(C). Such waiver, however, must be knowing, voluntary
and intelligent, with such an inference properly drawn “only if the
defendant has been informed he could forfeit the right to appeal if he
voluntarily delays his sentencing for more than ninety days.” State v.
Bolding, 227 Ariz. 82, 88 ¶ 20, 253 P.3d 279, 285 (App. 2011). As applied,
there is no indication Watson was told about the possible waiver of his right
to appeal if he failed to attend trial. Accordingly, the record does not
support a finding that Watson properly waived his right to appeal by
absconding, meaning this court has jurisdiction over his timely appeal
pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-
120.21(A)(1), 13-4031 and -4033(A)(1).

II.    Watson’s Fourth Amendment Rights Were Not Violated.

¶11            Watson argues Officer Montoya violated his constitutional
rights by opening the film canister Watson had given her. Watson admits
that he did not raise his Fourth Amendment challenge with the superior
court, meaning review on appeal is limited to fundamental error. See Ariz.
R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 115 P.3d
601, 607 (2005). “Accordingly, [defendant] ‘bears the burden to establish
that “(1) error exists, (2) the error is fundamental, and (3) the error caused




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


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                            STATE v. WATSON
                            Decision of the Court

him prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185
(App. 2013) (citations omitted).

¶12            The Fourth Amendment prohibits unreasonable searches and
seizures by the government. See U.S. Const. amend. IV; Florida v. Jimeno, 500
U.S. 248, 250 (1991). A warrantless search is reasonable, and thus
constitutional, if the suspect consented to the search. Jimeno, 500 U.S. at 251.
“It is well established that ‘the scope of a consent search is limited by the
breadth of the actual consent.’” State v. Swanson, 172 Ariz. 579, 583, 838 P.2d
1340, 1344 (App. 1992) (citation omitted). The scope of consent is an
objective test determined by asking what the typical reasonable person
would have understood by the exchange between the officer and the
suspect. Jimeno, 500 U.S. at 251; State v. Ahumada, 225 Ariz. 544, 546 ¶ 7, 241
P.3d 908, 910 (App. 2010).

¶13           Here, when he was not in police custody, Watson voluntarily
accompanied Officer Montoya to the apartment office. Once in the office,
Officer Montoya asked Watson “you don’t have guns, drugs, knives,
grenades, anything like that on you?” Thus, the scope of the consent search
would be “limited by the items about which the officer inquired as a
predicate to the search.” Swanson, 172 Ariz. at 583, 838 P.2d at 1344. In
response, Watson answered “no, let me show you” and voluntarily handed
Officer Montoya a variety of items, including the film canister holding the
crack cocaine.

¶14           Watson’s verbal response, accompanied by the physical act of
handing the items to the officer, was “clear and positive evidence” of
consent “in unequivocal words” and deeds. See State v. Lynch, 120 Ariz. 584,
586, 587 P.2d 770, 772 (App. 1978) (holding defendant’s answer that his
driver’s license was in glove compartment gave consent for officers to
search there); State v. Ballesteros, 23 Ariz. App. 211, 214, 531 P.2d 1149, 1152
(1975) (finding partially opening a trunk in response to an officer’s request
constituted consent to search the trunk). Officer Montoya could reasonably
have interpreted Watson’s statements and actions in response to her
question about drug possession as giving consent for her to open the
canister. Furthermore, Watson did not object during the few seconds that
passed when Officer Montoya examined and shook the canister, providing
additional evidence of consent. See Lynch, 120 Ariz. at 586, 587 P.2d at 772.
Accordingly, Watson has not shown error or a violation of his constitutional
rights.




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                           STATE v. WATSON
                           Decision of the Court

¶15            Even if the evidence was obtained and admitted in error,
which it was not, Watson has not shown that the error was fundamental or
that it resulted in prejudice. After being read his Miranda rights, testimony
during trial showed Watson admitted to possessing and using the drugs
the day of the incident. Accordingly, Watson has not shown fundamental
error or resulting prejudice from the admission of the evidence obtained
from the film canister.

                              CONCLUSION

¶16          Because Watson has shown no reversible error, his
convictions and resulting sentences are affirmed.




                                 :ama




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