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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JOHNNY LEE JACKSON, JR., Appellant.

                              No. 1 CA-CR 17-0795
                                FILED 12-4-2018


            Appeal from the Superior Court in Maricopa County
                         No. CR 2015-117385-001
            The Honorable Lauren R. Guyton, Judge Pro Tempore
                     The Honorable Mark Brain, Judge

                                   AFFIRMED


                                    COUNSEL

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

Law Offices of Stephen L. Duncan, PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant

Johnny Lee Jackson, Jr., Eloy
Appellant
                            STATE v. JACKSON
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.


C A M P B E L L, Judge:

¶1             Johnny Lee Jackson Jr. timely appeals from his convictions
and sentences for possession of dangerous drugs for sale—cannabimimetic
XLR-11 (“spice”)—and possession of drug paraphernalia. After searching
the record on appeal and finding no arguable question of law that was not
frivolous, Jackson’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), asking
this court to search the record for reversible error. This court granted
counsel’s motion to allow Jackson to file a pro per supplemental brief, and
Jackson did so. We reject the arguments raised in Jackson’s supplemental
brief and, after reviewing the entire record, find no reversible error.
Therefore, we affirm Jackson’s convictions and sentences.

                              BACKGROUND1

¶2             While driving in a high crime area, a Phoenix police officer
observed Jackson—who had a known reputation as a drug dealer—
handing an object to another man. The man placed the object in a straw hat
and tucked the hat under his arm. Based on the men’s behavior and the
officer’s training, he believed he had witnessed a hand-to-hand drug
transaction. The officer and his partner approached the two men and asked
the man with the hat what Jackson had given him. The man did not answer
but held the hat closer to his body.

¶3             Concerned for their own safety and acting to preserve
evidence of a crime, the officers searched the hat. Inside they found a
drawstring bag containing what appeared to be spice, along with 20 spice
cigarettes. Testing later confirmed that the cigarettes contained
cannabimimetic substances common in spice, including XLR-11. See Ariz.
Rev. Stat. § 13-3401(6)(b)(vii). Police arrested and searched Jackson, finding


       1We  view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against Jackson. State v. Guerra,
161 Ariz. 289, 293 (1989).


                                       2
                           STATE v. JACKSON
                           Decision of the Court

a small vial of liquor, money, and his car keys. Police then searched his car
and found 242 cigar wraps, commonly used to wrap spice, and a notebook
containing a handwritten pay-and-owe ledger.

¶4            After trial, the jury found Jackson guilty of possession of
dangerous drugs for sale and possession of drug paraphernalia. Jackson
had admitted to a prior felony conviction at trial; accordingly, he received
the presumptive sentences for a person with a historical prior, 9.25 and 1.75
years respectively, to be served concurrently. The court awarded 47 days of
presentence incarceration credit.2

                               DISCUSSION

¶5             In his supplemental brief, Jackson asserts that the court erred
in denying his motion to suppress the cigar wraps found in his car. He
argues the police conducted an illegal search. The superior court addressed
Jackson’s motion at an evidentiary hearing. An officer testified that upon
arrest, Jackson asked the officer to give his belongings to a friend who stood
near his car. The officer testified that when he passed Jackson’s vehicle, he
saw cigar wraps in plain view in the backseat. The wraps were consistent
with the wraps surrounding the spice cigarettes found earlier. At that point,
the officer testified that he opened the door of the vehicle when Jackson
called out, consenting to the search and asking police not to impound his
car. After searching the car, he found additional cigar wraps and the ledger.
The court found the officer’s testimony credible and denied Jackson’s
motion, reasoning that the police’s discovery of the cigar wraps fell within
the plain view exception of the Fourth Amendment because the officer was
lawfully present and believed that the cigar wraps were connected to the
drug transaction he witnessed earlier.

¶6             In reviewing a motion to suppress, we review the trial court’s
factual findings for an abuse of discretion, considering only the evidence
presented at the suppression hearing. State v. Mendoza-Ruiz, 225 Ariz. 473,
474, ¶ 2 n.1 (App. 2010); State v. Valle, 196 Ariz. 324, 326, ¶ 6 (App. 2000).
We view those facts in the light most favorable to sustaining the superior
court’s ruling and will defer to the court’s determination of witnesses’


       2Jackson  should have received only 46 days of presentence
incarceration credit. The superior court’s error is in Jackson’s favor and is,
therefore, not fundamental because it did not prejudice him. See State v.
Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005) (explaining fundamental error
is error that goes to the foundation of the case and prejudices the
defendant).


                                      3
                             STATE v. JACKSON
                             Decision of the Court

credibility. Mendoza-Ruiz, 225 Ariz. at 474, ¶ 6. We then review de novo the
court’s legal conclusion of whether the search complied with the Fourth
Amendment. Valle, 196 Ariz. at 326, ¶ 6. In conducting our review, we will
uphold the court's ruling if it is legally correct for any reason. State v. Huez,
240 Ariz. 406, 412, ¶ 19 (App. 2016).

¶7             Evidence collected in violation of the constitutional
protections against unreasonable search and seizure is usually inadmissible
in a criminal trial. State v. Valenzuela, 239 Ariz. 299, 302, ¶ 10 (2016); see U.S.
Const. amend. IV; Ariz. Const. art. 2, § 8. Unless an exception applies, police
must obtain a warrant before conducting a search. State v. Peoples, 240 Ariz.
244, 247, ¶ 9 (2016). One such exception is the plain view doctrine, which
allows a police officer, who is lawfully present, to seize contraband within
plain view when the object’s evidentiary value is immediately apparent.
State v. DeCamp, 197 Ariz. 36, 39-40, ¶ 14 (App. 1999).

¶8             Jackson argues that the officer’s testimony at the suppression
hearing conflicted with a police report narrative suggesting the cigar wraps
were not in plain view, rendering the search illegal. We defer to the superior
court’s credibility determinations and here, the court found the police
officer’s testimony credible. The officer was lawfully present when he saw
the cigar wraps from outside Jackson’s car. The wraps, commonly used for
spice cigarettes, were directly related to the drug-dealing charge for which
Jackson had just been arrested, giving them evidentiary value.
Additionally, police testified that Jackson consented to the search of his
vehicle. Accordingly, the contraband seizure fell within the plain view
exception of the Fourth Amendment.

¶9              We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Jackson received a fair trial. He was
represented by counsel at all stages of the proceedings and was present at
all critical stages.

¶10            The evidence presented at trial was substantial and supports
the verdicts. The jury was properly comprised of 12 members and the court
properly instructed the jury on the elements of the charges, Jackson’s
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict. The superior court received and considered a
presentence report, Jackson was given an opportunity to speak at
sentencing, and his sentences were within the range of acceptable sentences
for his offenses.




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                           STATE v. JACKSON
                           Decision of the Court


                              CONCLUSION

¶11           We affirm Jackson’s convictions and sentences. Unless
defense counsel finds an issue that may be appropriately submitted to the
Arizona Supreme Court, his obligations are fulfilled once he informs
Jackson of the outcome of this appeal and his future options. See State v.
Shattuck, 140 Ariz. 582, 584-85 (1984). Jackson has 30 days from the date of
this decision to proceed, if he wishes, with a pro per motion for
reconsideration or petition for review.




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




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