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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     KYLE LANCE MILLER, Appellant.

                             No. 1 CA-CR 19-0315
                               FILED 7-30-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-141688-001
           The Honorable William Wingard, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Scott L. Boncoskey
Counsel for Appellant
                            STATE v. MILLER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.


M c M U R D I E, Judge:

¶1           Kyle Miller appeals his conviction and sentence for
misconduct involving weapons. For the following reasons, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2             In September 2017, officer Jeffrey Middleton stopped Miller
for changing lanes without signaling, having an inadequate muffler, and
driving with excessively high handlebars. Detective Geoff Francetic arrived
at the scene while Miller was still on his motorcycle, and his body camera
captured his interactions with Miller. The officers received reports of “loud
sounds” and “some type of banging” in the area at the time of the stop. The
noises continued while Miller was still on his bike. Rather than a driver’s
license, Miller gave Middleton an identification card. So, the officer ordered
Miller off the motorcycle. Middleton then told Miller he was going to
conduct a pat-down for weapons.

¶3           During the pat-down, Middleton felt something in Miller’s
pocket. When asked what it was, Miller told the officer it was a paper towel.
Middleton asked if he could remove it, and Miller said, “Go ahead.”
Middleton discovered a marijuana joint inside the paper towel and arrested
Miller. Another officer who arrived at the scene following the initial stop
searched Miller’s backpack after the arrest. In the backpack, the officer
found a loaded firearm.

¶4           Grand jurors indicted Miller for misconduct involving
weapons (“Count One”) and possession of marijuana (“Count Two”). The
State designated Count Two as a misdemeanor, and the parties agreed to
sever the counts, holding a jury trial for Count One, to be followed by a


1     We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).



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                             STATE v. MILLER
                            Decision of the Court

bench trial for Count Two. At no time did Miller move to suppress the
evidence related to the marijuana or firearm.

¶5            Jurors found Miller guilty as charged on Count One, and the
superior court found Miller guilty as charged on Count Two. The court
suspended the imposition of Miller’s sentence for both counts and placed
him on two years’ supervised probation. Miller appealed his conviction and
sentence for Count One, and we have jurisdiction under Article 6, Section
9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

¶6             Miller contends the officers’ discovery of the firearm violated
the Fourth Amendment of the United States Constitution because it was
derivative of a pat-down unsupported by reasonable suspicion that he was
armed and dangerous. See State v. Primous, 242 Ariz. 221, 223, ¶ 11 (2017)
(“[T]he Fourth Amendment prohibits any search of an individual unless the
police have a reasonable belief that crime is afoot and the individual is
armed and dangerous.”). Consequently, Miller asserts the court committed
fundamental error by admitting his firearm in evidence at the trial. He
argues that State v. Newell, 212 Ariz. 389, 398, ¶ 34 (2006), which held that
an appellate court may review suppression arguments first raised on
appeal for fundamental error, controls our review of this issue. Accord State
v. Canez, 202 Ariz. 133, 151, ¶ 51 (2002) (reviewing suppression issue first
raised on appeal for fundamental error), superseded by rule on other
grounds as stated in State v. Valenzuela, 239 Ariz. 299, 303, ¶ 11, n.1 (2016).
Further, he argues that our supreme court’s subsequent decision in State v.
Bush, 244 Ariz. 575, 588, ¶ 51 (2018), which held that a defendant forfeited
the right to challenge the admissibility of a confession if it was not raised in
the superior court, does not control our decision because it preceded State
v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (describing fundamental-error
analysis), and is distinguishable from the facts here because “the rules upon
which its holding was based” have since changed. Miller also argues the
record is sufficiently developed to review his suppression argument for
fundamental error. We disagree.

¶7            Generally, “[i]ssues concerning the suppression of evidence
which were not raised in the trial court are waived on appeal.” State v. Tison,
129 Ariz. 526, 535 (1981); see also State v. West, 176 Ariz. 432, 440 (1993) (“In
fact-intensive inquiries on motions to suppress, th[is] court is not obliged to
consider new theories . . . .”), overruled in part on other grounds by State v.
Rodriguez, 192 Ariz. 58, 64, n.7 (1998). But our supreme court has stated that


                                       3
                              STATE v. MILLER
                             Decision of the Court

we may “review a suppression argument that is raised for the first time on
appeal for fundamental error.” Newell, 212 Ariz. at 398, ¶ 34. In this case,
however, a fundamental-error review is made impossible by Miller’s failure
to move for suppression below.

¶8              Before a finding of fundamental error can be made, it must be
apparent that the superior court committed error in some aspect of the
proceedings. State v. Thomas, 130 Ariz. 432, 436 (1981). “If it is determined
that error occurred, the prejudicial nature of the unobjected-to error must
[then] be evaluated in light of the entire record.” Id. Enforcement of our
waiver standards is especially appropriate in the context of a motion to
suppress because, in such cases, our review for error is limited to the record
presented at the hearing on that motion. State v. Lietzau, 248 Ariz. 576, 579,
¶ 8 (2020) (“[W]e consider only the evidence presented at the suppression
hearing . . . .”); State v. Peoples, 240 Ariz. 244, 247, ¶ 7 (2016); State v.
Rojo-Valenzuela, 237 Ariz. 448, 452, ¶ 15, n.2 (2015) (“We reiterate that
review of a ruling on a motion to suppress is limited to the evidence
presented at the suppression hearing.”); State v. Moore, 222 Ariz. 1, 7, ¶ 17
(2009) (“A trial court ruling on a motion to suppress is reviewed based
solely on the evidence presented at the suppression hearing.”); State v.
Estrella, 230 Ariz. 401, 404, ¶ 9, n.1 (App. 2012).

¶9             Likewise, we will not speculate what evidence might have
been presented at a hearing on a motion to suppress. State v. Brita, 158 Ariz.
121, 124 (1988) (refusing to address suppression ruling on an alternative
basis not litigated in superior court because hearing “might well have taken
a decidedly different twist”); see also Estrella, 230 Ariz. at 404, ¶ 9, n.1 (in the
absence of suppression hearing ability to review issue is limited); State v.
Johnson, 1 CA-CR 18-0735, 2020 WL 639192, at *4, ¶ 21 (Ariz. App. Feb. 11,
2020) (mem. decision); State v. Smith, 2 CA-CR 2016-0107, 2017 WL 1376354,
at *3, ¶¶ 9–13 (Ariz. App. Apr. 17, 2017) (mem. decision). As noted by our
supreme court:

       We disagree with the court of appeals’ conclusion that an
       appellate court is freer to reverse on issues raised for the first
       time on appeal than it would be on issues presented and
       litigated in the trial court. It is particularly inappropriate to
       consider an issue for the first time on appeal where the issue
       is a fact-intensive one.

Brita, 158 Ariz. at 124.




                                         4
                             STATE v. MILLER
                            Decision of the Court

¶10           Miller’s reliance on Newell and Canez is misplaced. In both of
those cases, the defendants moved to suppress evidence, and the superior
court held a suppression hearing. Newell, 212 Ariz. at 398, ¶ 34; Canez, 202
Ariz. at 151, ¶ 53. In both cases, our supreme court found the record
sufficiently developed to determine that no error had occurred in rejecting
the fundamental-error claim. Newell, 212 Ariz. at 398, ¶¶ 33–35; Canez, 202
Ariz. at 150–52, ¶¶ 50–57; see State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005) (“burden of persuasion” shifts to a defendant in fundamental-error
review to discourage him “from ‘tak[ing] his chances on a favorable verdict,
reserving the “hole card” of a later appeal on [a] matter that was curable at
trial, and then seek[ing] appellate reversal.’” (alterations in original)
(quoting State v. Valdez, 160 Ariz. 9, 13–14 (1989), abrogated on other grounds
by Krone v. Hotham, 181 Ariz. 364, 366–67 (1995))); cf. State v. Smith, 114 Ariz.
415, 419 (1977) (trial court not required to determine the voluntariness of
confession sua sponte).

¶11           Here, because Miller did not move to suppress the evidence,
there is no suppression hearing, and the court made no findings of fact
related to the pat-down and subsequent arrest; and very few facts on that
point were adduced at trial. We are therefore left with little or no evidence
about the officer’s mental state for requesting a pat-down.2 And we cannot
say with any certainty what evidence might have been adduced at a hearing
on a motion to suppress. Indeed, such a hearing might take “a decidedly
different twist” from the trial testimony currently before us. Brita, 158 Ariz.
at 124. To the extent we have the discretion to review a suppression issue
in a case where there was not a suppression hearing, we decline to exercise
that discretion here.




2       Although the officer was asked at the bench trial, “Why did you do
the pat-down?” and the State produced body-camera footage, the State was
not addressing a suppression issue. Because Miller did not move to
suppress the evidence, the State did not have an opportunity to elicit
answers to meaningful follow-up questions. Likewise, the video footage
did not capture the mental state of the officer and therefore does not allow
us to review the reasonableness of his beliefs regarding whether Miller was
armed and dangerous.



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                   STATE v. MILLER
                  Decision of the Court

                     CONCLUSION

¶12   We affirm Miller’s conviction and sentence.




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




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