                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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.

                 RUSSELL EUGENE SHIELDS, II, Appellant.

                              No. 1 CA-CR 13-0133
                               FILED 03/13/2014


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201100954
           The Honorable Derek C. Carlisle, Judge Pro Tempore

                                    AFFIRMED


                                    COUNSEL

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

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. SHIELDS
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.


P O R T LE Y, Judge:

¶1              Defendant Russell Eugene Shields, II, appeals his conviction
and sentence for possession of dangerous drugs, a class 4 felony. He
argues that: (1) there was insufficient evidence to support his conviction;
(2) the trial court committed reversible error by failing to instruct the jury
on his right not to testify at trial; and (3) the court abused its discretion in
imposing the sentence in this case. Because we find no legal error, we
affirm.

                 FACTS 1 AND PROCEDURAL HISTORY

¶2          A multi-law enforcement agency narcotics task force called
the Mohave Area General Narcotics Enforcement Team executed a search
warrant on Shields’ Kingman home and discovered a .15 gram “shard of
methamphetamine” on the inside molding above the door to the master
bedroom. They also discovered a digital scale on a kitchen counter and a
number of “smaller plastic baggies” inside a kitchen drawer.

¶3           Shields was subsequently indicted for possession of
dangerous drugs (methamphetamine) and possession of drug
paraphernalia. The State also filed allegations that Shields had prior
felony convictions and was on felony release.

¶4           The case proceeded to trial. After the State rested its case,
the court granted Shields’ motion pursuant to Arizona Rule of Criminal
Procedure (“Rule”) 20 in part and dismissed the possession of drug
paraphernalia charge. The jury subsequently found Shields guilty of



1       We view the facts in the light most favorable to sustaining the
jury’s verdict and resolve all reasonable inferences against defendant.
State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).




                                       2
                             STATE v. SHIELDS
                             Decision of the Court

possession of dangerous drugs, and that he committed the offense while
on release.

¶5           At the sentencing hearing, the trial court found that Shields
had one historical prior felony. He was then sentenced to prison for five
years.

                                DISCUSSION

    I.   Sufficiency of the Evidence

¶6            Shields argues that the trial court erred by denying his Rule
20 motion to dismiss the possession of dangerous drug charge. He
contends that there was insufficient evidence that he possessed the
methamphetamine found on top of the molding in his bedroom. We
review the question of whether the evidence was sufficient to withstand
the Rule 20 motion de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250
P.3d 1188, 1191 (2011).

¶7             In reviewing the record, the key question is “whether the
record contains substantial evidence to warrant a conviction.” Id. at ¶ 14
(internal quotation marks omitted). Substantial evidence “is such proof
that reasonable persons could accept as adequate and sufficient to support
a conclusion of defendant’s guilt beyond a reasonable doubt.” Id. at ¶ 16
(quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990))
(internal quotation marks omitted). “Both direct and circumstantial
evidence should be considered in determining whether substantial
evidence supports a conviction.” Id. If reasonable minds may differ on
the inferences to be drawn from the facts, the case must be submitted to
the jury and the trial judge has no discretion to enter a judgment of
acquittal. Id. at 563, ¶ 18, 250 P.3d at 1192.

¶8           Here, the trial court was faced with the question of whether
Shields was in actual or constructive possession of the drugs found on top
of the bedroom molding. 2 The court concluded that the jury had to decide

2       To “possess” is defined as “knowingly to have physical possession
or otherwise to exercise dominion or control over property.” Ariz. Rev.
Stat. (“A.R.S.”) § 13-105(34) (West 2014). Constructive possession exists
when an item of property is found in a place under a defendant’s
dominion or control “and under circumstances from which it can be
reasonably inferred that the defendant had actual knowledge of the
existence of the [property].” State v. Cox, 214 Ariz. 518, 520, ¶ 10, 155 P.3d



                                       3
                            STATE v. SHIELDS
                            Decision of the Court

the issue because the jury must determine whether Shields had actual or
constructive possession of the “shard” discovered on the molding; a
decision it would have to make in determining whether the State met its
burden of proof beyond a reasonable doubt.

¶9           The trial court did not err. The undisputed trial evidence
established that the only drugs found in the house were in the master
bedroom and that only Shields and his girlfriend used the master
bedroom. Neither the court nor the jury heard any evidence that
suggested that Shields’ friend, Joshua, was in the master bedroom at any
time.

¶10          The testimony also established that the shard was on top of
the door molding some seven feet off the master bedroom floor. The court
and jury heard that Shields was “five-seven to five-eight” and his
girlfriend was “five-two.” The jury, as a result, had to decide whether in
the shared space it would be easier for Shields to reach the top of the
doorway; whether it was more likely that his girlfriend placed the drugs
there; or whether someone else placed the shard where it was found. The
testimony required the jury, not the judge, to determine the facts and who,
if anyone, was responsible for the drugs on the molding.

¶11          Because the jury had to decide the facts, the trial court did
not err by denying the Rule 20 motion. See id. And, based on our
independent review of the trial evidence and the resulting reasonable
inferences, as well as the jury instructions on actual possession,
constructive possession and mere presence, we find that substantial
evidence supports the guilty verdict. See id. at 562, ¶ 14, 250 P.3d at 1191.

   II.   Failure to Instruct on Defendant’s Right Not to Testify

¶12           At the close of the case, the trial court reviewed the final jury
instructions with counsel. The trial court stated that it would not give the

357, 359 (App. 2007). Furthermore, it is not necessary to show that a
defendant exercised exclusive possession or control over the drugs or the
place in which the drugs were found; “control or right to control is
sufficient.” State v. Curtis, 114 Ariz. 527, 528, 562 P.2d 407, 408 (App.
1977); see State v. Miramon, 27 Ariz. App. 451, 452, 555 P.2d 1139, 1140
(1976) (noting that possession of narcotic drugs may be sole or joint, and
two or more persons may have joint possession thereof).




                                       4
                           STATE v. SHIELDS
                           Decision of the Court

standard instruction that a defendant is not required to testify on his own
behalf. Instead, the court stated that it would tell the jury that: “The State
must prove [guilt] beyond a reasonable doubt, based on the evidence. The
Defendant is not required to produce evidence of any kind.” The court
noted that its proposed instruction would essentially be applicable
whether Shields or other witnesses testified or did not testify.

¶13           Defense counsel objected to the proposed instruction
because “it [didn’t] specifically talk about the Defendant testifying.” She
stated that she preferred to have the court give the jury instruction that
stated, “The Defendant is not required to testify, and it would be acting on
his attorney’s advice,” along with the instruction that specified, “If the
defendant did not testify, they’re not to hold that against him.”

¶14           The trial court overruled the objection by reasoning:

              Well, the instruction that is left says: "The
              Defendant is not required to produce evidence
              of any kind. The decision on whether to
              produce any evidence is left to the Defendant,
              acting with the advice of an attorney. The
              Defendant's decision not to produce any
              evidence is not evidence of guilt." The one that
              was taken out is: "You must not conclude the
              Defendant is likely to be guilty because the
              Defendant did not testify. The Defendant [is]
              not required to testify, acting with the advice
              of an attorney. You must not let this choice
              affect your deliberations in any way."

              And the only difference is one says he's not
              required to produce evidence of any kind; the
              other says he's not required to testify. That's
              the primary difference. And evidence, as they
              learned on the first page, means the testimony
              of witnesses and the exhibits introduced into
              court, so not required to produce evidence of
              any kind means he's not required to produce
              any testimony, and that would include his own
              testimony. So I think it is covered by the
              instruction which the Court plans to give, and
              it would be redundant to include it twice.




                                      5
                            STATE v. SHIELDS
                            Decision of the Court

              And the instruction that I am giving is more
              encompassing because he's not producing any
              evidence in this case, including his own
              testimony.

              So having considered your request, Ms. Dees, I
              am not going to give the Defendant need not
              testify instruction.

Accordingly, the trial court instructed the jury:

              The State must prove guilt beyond a
              reasonable doubt based on the evidence. The
              Defendant is not required to produce evidence
              of any kind. The decision whether to produce
              any evidence is left to the Defendant acting
              with the advice of an attorney.           The
              Defendant’s decision not to produce any
              evidence is not evidence of guilt.

¶15           Here, Shields argues that the trial court committed reversible
error by failing to give the standard jury instruction when a defendant
does not testify. He argues that the failure of the court to include the
specific language that the jury was not to “draw any negative inference”
from his failure to testify deprived him of a fair trial by possibly “tilt[ing]
the scales toward conviction.”

¶16            Generally, we review the refusal to give a jury instruction for
an abuse of discretion. State v. Moody, 208 Ariz. 424, 467, ¶ 197, 94 P.3d
1119, 1162 (2004). When assessing the adequacy of jury instructions on
appeal, we view the instructions in their entirety to determine whether
they adequately reflect the law. State v. Ovante, 231 Ariz. 180, 188, ¶ 35,
291 P.3d 974, 982 (2013). “A court is not required to give a separate
instruction if its substance has already been covered by other instructions,
and a conviction will not be reversed based on the instructions unless,
taken as a whole, they misled the jurors.” Id. (citation omitted) (quoting
State v. Zaragoza, 221 Ariz. 49, 53, ¶ 15, 209 P.3d 629, 633 (2009)) (internal
quotation marks omitted).

¶17           There are, however, certain instructions that fall outside of
the general rule of review. For example, trial courts must give the Portillo
reasonable doubt instruction. State v. Portillo, 182 Ariz. 592, 596, 898 P.2d
970, 974 (1995) (“Pursuant to our supervisory authority . . . we instruct
that in every criminal case trial courts shall give the reasonable doubt


                                      6
                            STATE v. SHIELDS
                            Decision of the Court

instruction that we set forth below.”); State v. Sullivan, 205 Ariz. 285, 287-
88, ¶¶ 12-16, 69 P.3d 1006, 1008-09 (App. 2003) (“[T]here is no question
that the trial court erred by removing a portion of the mandated Portillo
instruction and replacing it with language of its own choosing.”).

¶18            A trial court must also, upon request, instruct the jury that a
defendant is not required to testify; the decision on whether to testify is
left to the defendant, acting with the advice of his attorney; they must not
conclude that the defendant is likely to be guilty because he does not
testify; and they must not discuss this fact or let it affect their deliberations
in any way. State v. Piper, 113 Ariz. 390, 392-93, 555 P.2d 636, 638-39 (1976)
(“The trial court is required . . . to give this instruction upon request of a
defendant.”). 3 In that case, Piper was tried and convicted of robbery. Id.
at 391, 555 P.2d at 637. He was tried with three co-defendants, who were

3      In Piper, the instruction was found in Recommended Arizona Jury
Instructions Standard Criminal 8, which stated:

              The state must prove all of its case against the
              defendant with evidence that the state itself
              gathers.      Therefore the defendant is not
              required to testify. The decision on whether to
              testify is left to the defendant, acting with the
              advice of his attorney. You must not conclude
              that the defendant is likely to be guilty because
              he does not testify. You must not discuss this
              fact or let it affect your deliberations in any
              way.

Piper, 113 Ariz. at 392, 555 P.2d at 638. The instruction is now found at
Revised Arizona Jury Instructions (“RAJI”) Standard Criminal 15
(defendant need not testify), which provides that:

              The State must prove guilt beyond a
              reasonable doubt based on the evidence. You
              must not conclude that the defendant is likely
              to be guilty because the defendant did not
              testify. The defendant is not required to
              testify. The decision on whether or not to
              testify is left to the defendant acting with the
              advice of an attorney. You must not let this
              choice affect your deliberations in any way.



                                       7
                            STATE v. SHIELDS
                            Decision of the Court

later granted new trials, id., but argued that the trial court erred when the
court gave the instruction about his right not to testify over counsel’s
objection. Id. at 393, 555 P.2d at 639. Although our supreme court found
that the court did not err by giving the instruction over the objection, the
court started the discussion by stating that the instruction should be given
when requested. Id.

¶19           Here, although the trial court was attempting to streamline
the instructions, Piper required the court to give the instruction once it was
requested. Consequently, the court erred by refusing to give the
requested instruction that Shields did not have to testify and that his
silence could not be held against him.

¶20           We now turn to whether the error is harmless error.
Sullivan, 205 Ariz. at 288-89, ¶¶ 16, 19, 69 P.3d at 1009-10 (stating that
when the error is clear “[t]he trial court’s error is subject to a harmless
error analysis”). Specifically, we review whether the failure to give the
requested instruction influenced the verdict, given the instructions that
the court read to the jury. Id. at 289, ¶ 21, 69 P.3d at 1010; State v. McKeon,
201 Ariz. 571, 573, ¶ 9, 38 P.3d 1236, 1238 (App. 2002).

¶21            During the voir dire, which occurred on day one of the trial,
the trial court told all the prospective jurors that:

              The defendant is presumed by law to be
              innocent. This means the defendant is not
              required to produce any evidence or to prove
              innocence.

              Also, a defendant in a criminal case has a right
              to not testify at trial. The exercise of this right
              cannot be considered by the jury in
              determining guilt or innocence.

              Is there anyone who does not understand the
              principles of law I have just stated? The record
              should reflect there are no hands shown.

              Is there anyone who does not agree with these
              things or does not believe they should be the
              law? The record should reflect there are no
              hands shown.




                                      8
                              STATE v. SHIELDS
                              Decision of the Court

¶22           All the venire persons were told that they were not to
consider Shields’ exercise of his right not to testify as any evidence of his
guilt. There is no indication in the record that the jurors who were
ultimately empanelled did not understand that the instructions were the
law or that they were unwilling or unable to follow the instructions.

¶23           Once selected, the jurors were preliminarily instructed by
the court. The court stated a number of times that the State must prove
the defendant guilty. First, after telling the jurors that Shields had pled
not guilty, the court told them that “[t]his means that the State must prove
the defendant guilty beyond a reasonable doubt.” After describing the
burden of proof, the court stated that the “State must meet its burden of
proof with its own evidence [and] [t]he defendant is not required to
testify. The decision whether to testify is left to the defendant, acting with
the advice of his attorney.”

¶24            At the conclusion of the trial, which was the second day of
the trial, the court gave its instruction. Although the court erred by not
giving the requested instruction, there is nothing in the record that
indicates that the failure to give the specific instruction caused prejudice.
The jurors heard the correct instruction on day one of the trial during voir
dire and later again in the preliminary instructions. On day two, they
heard the evidence and were instructed after all the evidence had been
presented. As a result, we are satisfied beyond a reasonable doubt in this
short, two-day case that the court’s failure to give RAJI Criminal Standard
15 concerning Shield’s right not to testify and that his silence could not be
used against him did not affect the verdict.

    III.   Sentencing Error

¶25           Shields was sentenced to the minimum prison term of three
years for the possession conviction (with one historical felony) plus two
years for having committed the offense on release. 4 He now argues that
the court did not impose a “mitigated sentence” plus two years for a class
4 felony with one historical prior. Shields did not raise the argument
before the trial court and therefore has waived appellate relief unless he
can prove that fundamental error exists and that the error caused him
prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601,
607 (2005).      “[T]he imposition of an illegal sentence constitutes


4     Although the trial court found that Shields had a historical felony
conviction, the State did not allege any aggravating factors.



                                       9
                           STATE v. SHIELDS
                           Decision of the Court

fundamental error.” State v. Martinez, 226 Ariz. 221, 224, ¶ 17, 245 P.3d
906, 909 (App. 2011). However, a sentence within statutory limits is
within the trial court’s discretion, and we will not modify an otherwise
lawful sentence unless it constitutes an abuse of discretion. State v. Stotts,
144 Ariz. 72, 87, 695 P.2d 1110, 1125 (1985) (stating that an abuse of
discretion would be “characterized by arbitrariness, capriciousness, or
failure to conduct an adequate investigation into the facts relevant to
sentencing”).

¶26            The range of sentence for a class 4 felony with one prior
historical felony conviction is 2.25 years (mitigated), 3 years (minimum),
4.5 years (presumptive), 6 years (maximum), 7.5 years (aggravated). Ariz.
Rev. Stat. § 13-703(B)(2), (F), (I) (West 2014). The statutory maximum
sentence for a case with no aggravating or mitigating factors is the
presumptive sentence. See State v. Martinez, 210 Ariz. 578, 583, ¶ 17, 115
P.3d 618, 623 (2005). Anything less than the “presumptive” sentence is
considered a “mitigated” sentence because the actual sentence is lessened
or made less severe.

¶27            Shields claims that because the trial court used the word
“mitigated” to describe the term of years it intended to impose prior to
adding the 2-year enhancement, it actually intended to impose a base
sentence of 2.25 years and not the 3 years imposed. As a result, Shields
asks that we either reduce his total sentence to 4.5 years or remand the
case to the trial court for further “clarification.”

¶28           A trial court is presumed to know and follow the law. State
v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996). Here, defense
counsel requested “a mitigating sentence” — not a super mitigated
sentence, or the lowest sentence possible, or even a sentence of 2.25 years.
The court specifically stated that it was going to impose a 3-year term,
which is a mitigated sentence within the lawful statutory range of
sentence for the offense. There is no indication in the record that the court
was confused about either the sentencing range or the various options
available to it within that range. There is no indication that the court’s
sentencing decision was characterized by “arbitrariness, capriciousness, or
failure to conduct an adequate investigation into the facts relevant to
sentencing.” Stotts, 144 Ariz. at 87, 695 P.2d at 1125. Consequently, we
find no error, let alone fundamental error.




                                     10
                        STATE v. SHIELDS
                        Decision of the Court

                           CONCLUSION

¶29         For the foregoing reasons, we affirm Shields’ conviction and
sentence.




                                :gsh




                                  11
