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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  CHRISTOPHER LEE LERKE, Appellant.

                             No. 1 CA-CR 16-0199
                               FILED 4-4-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR 2015-117430-001
                The Honorable Alfred M. Fenzel, 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 Joel M. Glynn
Counsel for Appellant
                             STATE v. LERKE
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1             Christopher Lee Lerke appeals his conviction for possession
of marijuana for sale, a class 2 felony in violation of Arizona Revised
Statutes (“A.R.S.”) section 13-3405. Pursuant to Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel has
searched the record, found no arguable question of law, and asked that we
review the record for reversible error. See State v. Richardson, 175 Ariz. 336,
339 (App. 1993). Lerke was given the opportunity to file a supplemental
brief in propria persona, but he has not done so. For the following reasons,
we affirm Lerke’s conviction and sentence, as modified.

                 FACTS AND PROCEDURAL HISTORY

¶2            Detective Vanderwood was profiling parcels at a Phoenix
post office. Lerke entered with a large brown box the detective suspected
contained drugs.1 When Lerke reached the counter, Detective Vanderwood
asked to speak with him, and he agreed.

¶3            Lerke offered conflicting stories and nonsensical answers to
some of the detective’s questions. For example, Lerke stated he was mailing
the package for his boss, but he could not recall his boss’s name and then
stated he did not work. When asked what was in the box, Lerke took a step
backward, stared at the box “for around 30 seconds,” and then said he
thought it contained “supplies.” Asked again for his boss’s name, Lerke
responded, “Steve.” Lerke also gave strange responses about how he got
to the post office, where he was staying, and how he was planning to pay
for shipping. Detective Vanderwood had a canine sniff the box, and the
dog alerted to the presence of drugs.




1      Detective Vanderwood testified about how drug trafficking
organizations package drugs for mailing and stated Lerke’s parcel met
several of those criteria.


                                      2
                            STATE v. LERKE
                           Decision of the Court

¶4            Detective Vanderwood arrested Lerke and searched him.
Lerke had in his possession a small notepad containing the names of cities
and packaging materials frequently used by drug traffickers, a driver’s
license issued out of Bloomfield, New Mexico, and keys to post office boxes.
After receiving Miranda warnings, Lerke agreed to speak with the detective
and offered yet another version of events. This time, Lerke stated he was
walking down the road when a stranger pulled over and gave him a ride.
The detective obtained a search warrant and discovered that the parcel
Lerke was attempting to mail contained an inner box with a bubble-
wrapped bale of marijuana weighing 30.8 pounds.2

¶5             At trial, Lerke admitted giving Detective Vanderwood “four
different stories,” but maintained he was trying to hitch a ride when a
stranger picked him up and asked him to mail a package. He denied that
the notepad was his, even though his hometown of Bloomfield was written
in it, and the notepad included a list of packing materials that were used to
wrap the parcel he was attempting to mail.

¶6           The jury found Lerke guilty as charged. The superior court
sentenced him to the presumptive term of five years’ imprisonment and
credited him with 51 days of presentence incarceration. See A.R.S.
§ 13-702(D). This Court has jurisdiction over Lerke’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S.
§ 13-4033(A)(1).

                              DISCUSSION

¶7            We have read and considered the brief submitted by Lerke’s
counsel and reviewed the entire record. See Leon, 104 Ariz. at 300. We find
no reversible error. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure, and the sentence imposed
was within the statutory range. Lerke was present at all critical phases of
the proceedings and was represented by counsel. The jury was properly
impaneled and instructed. The jury instructions were consistent with the
offense charged. The record reflects no irregularity in the deliberation
process.

¶8          Substantial evidence supports Lerke’s conviction. The State
was required to prove beyond a reasonable doubt that Lerke knowingly
possessed marijuana for sale and that the marijuana weighed more than


2      The parties stipulated that the core sample taken from the bale tested
positive for marijuana.


                                     3
                            STATE v. LERKE
                           Decision of the Court

four pounds. A.R.S. § 13-3405(A)(2), (B)(6). The evidence produced at trial,
recounted supra, satisfied those statutory elements.

¶9            We do, however, correct the court’s award of presentence
incarceration credit. Lerke was arrested on April 16, 2015, and he was
released on bond on April 20, which equates to five days’ presentence
incarceration credit. Lerke remained released until the jury verdict on
January 15, 2016. He was sentenced on March 3, 2016, warranting an
additional 48 days’ credit. Because the superior court awarded only 51 days
of credit, we modify the sentence to reflect Lerke’s entitlement to a total of
53 days’ presentence incarceration credit.

                               CONCLUSION

¶10            We affirm Lerke’s conviction and sentence, as modified.
Counsel’s obligations pertaining to Lerke’s representation in this appeal
have ended. Counsel need do nothing more than inform Lerke of the status
of the appeal and his future options, unless counsel’s review reveals an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s
own motion, Lerke shall have 30 days from the date of this decision to
proceed, if he desires, with an in propria persona motion for reconsideration
or petition for review.




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




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