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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   PAUL DWAYNE SHEROD, Appellant.

                             No. 1 CA-CR 16-0408
                              FILED 4-20-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-113946-001
          The Honorable Carolyn K. Passamonte, Commissioner

                                  AFFIRMED


                                   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. SHEROD
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Kent E. Cattani joined.


K E S S L E R, Judge:

¶1            Appellant Paul Dwayne Sherod was tried and convicted of
misconduct involving weapons, a class 4 felony, and sentenced to seven
years’ imprisonment. Counsel for Sherod filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530
(App. 1999). Finding no arguable issues to raise, counsel requests this Court
search the record for fundamental error. Sherod did not file a supplemental
pro per brief, but he requested his counsel raise several issues that we
address below. For the reasons that follow, we affirm Sherod’s conviction
and sentence.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Mesa Police Department (“MPD”) Detective BS executed a
search warrant for an apartment where Sherod was residing. The warrant
was served by a SWAT team who ordered Sherod and a female associate
out of the apartment. Detective BS, waiting outside while SWAT cleared the
property, did not observe anyone else leave the apartment.

¶3             Detective BS testified that a loaded .38 revolver was
discovered under bedsheets on the bed in the apartment. No photographs
were taken of the gun while it was on the bed. MPD forensic scientists
determined that the revolver was operable. Detective BS testified that the
gun was not tested for DNA or fingerprints because Sherod admitted
owning the gun. Sherod told Detective BS during his initial interview that
he received the gun from a man named Russell, who was never identified.
In contrast, at trial Sherod testified the gun belonged to Russell, although
he was aware it was in his apartment. Sherod asserted he had informed
Detective BS from the beginning that the gun was Russell’s. Sherod
stipulated at trial that he was a prohibited possessor.

¶4          During his interrogation, Sherod stated he lived in the
apartment with two other people. Sherod told the police the others slept on




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                             STATE v. SHEROD
                            Decision of the Court

couches downstairs. However, Sherod testified that he was the one sleeping
on a couch downstairs because navigating the stairs was too painful.

¶5             Both bedrooms were located on the second floor of the
apartment. Detective BS did not see a wheelchair in the apartment and
testified that Sherod was walking on his own. While Sherod claimed that,
at the time of the search, he had not been upstairs in either of the bedrooms
for over a week because it was too difficult for him to use the stairs, Sherod’s
Arizona identification was found in the room with the bed and the gun, as
were items of Sherod’s clothing.

¶6            Sherod was convicted after a jury trial and sentenced to seven
years’ imprisonment. Sherod timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016) and 13-
4033(A)(1) (2010).1

                               DISCUSSION

¶7              In an Anders appeal, this Court must review the entire record
for fundamental error. Error is fundamental when it affects the foundation
of the case, deprives the defendant of a right essential to his defense, or is
an error of such magnitude that the defendant could not possibly have had
a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (citation
omitted). To obtain reversal for fundamental error, the defendant bears the
burden to show the error was prejudicial. Id. at ¶ 20.

¶8            Sherod requested his appellate counsel raise the following:

       [(1)] the mishandling of evidence by Mesa P.D. i.e: [t]here was
       no photo evidence of where they claim they found the
       gun[and t]hey did not perform finger print tests or DNA tests
       and as a result did not provide any physical evidence that the
       gun was mine[; and (2)] there was another person present at
       the time of the search and this person was never questioned.
       . . . I believe my attorney should have interviewed them and
       presented them as witnesses.




1      We cite to the current version of statutes unless changes material to
this decision have occurred.



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                             STATE v. SHEROD
                            Decision of the Court

These arguments are essentially a challenge to the sufficiency of evidence
and a claim of ineffective assistance of counsel.

   I.     Sufficiency of Evidence

¶9              In reviewing the sufficiency of evidence at trial, we construe
the evidence in the light most favorable to sustaining the verdict, and
resolve all reasonable inferences against the defendant. State v. Gallegos, 178
Ariz. 1, 9, (1994) (citation omitted). “Reversible error based on insufficiency
of the evidence occurs only where there is a complete absence of probative
facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)).

¶10           A person commits misconduct involving weapons by
knowingly “[p]ossessing a deadly weapon or prohibited weapon if such
person is a prohibited possessor.” A.R.S. § 13-3102(A)(4) (2014). A
“prohibited possessor” is any person “[w]ho has been convicted within or
without this state of a felony . . . and whose civil right to possess or carry a
gun or firearm has not been restored.” A.R.S. § 13-3101(A)(7)(b) (2016).
“Deadly weapon” includes firearms. A.R.S. § 13-3101(A)(1).

¶11         Sherod stipulated that he was a prohibited possessor. The
weapon was loaded and certified by a forensic scientist as operational.

¶12           The gun was found in Sherod’s apartment, in the bed of a
bedroom containing his identification and clothes. Detective BS testified
that he observed Sherod walking without assistance. Sherod initially
admitted the gun was his and told Detective BS that he covered the gun
with a bedsheet to hide it. Even at trial, while asserting the gun belonged to
Russell, Sherod testified he knew the gun was in his apartment. We find
sufficient evidence supports the conclusion that Sherod knowingly
possessed a firearm.

¶13            Additionally, Sherod’s argument is based on the implication
that further investigation would have revealed his innocence. However, we
will not speculate on appeal about what could have happened and Sherod
has not established a reasonable likelihood that further investigation would
have affected the jury’s verdict. For this additional reason, we reject
Sherod’s claim. See, e.g., State v. Escalante-Orozco, 241 Ariz. 254, 280, ¶ 91
(2017) (citation and quotation omitted).




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                             STATE v. SHEROD
                            Decision of the Court

   II.    Ineffective Assistance of Counsel

¶14            Sherod’s ineffective assistance of counsel claim cannot be
raised in a direct appeal. Such claims may only be brought in proceedings
under Arizona Rule of Criminal Procedure 32, and this Court will not
address them on direct appeal, regardless of merit. State v. Spreitz, 202 Ariz.
1, 3, ¶ 9 (2002).

                               CONCLUSION

¶15           After careful review of the record, we find no meritorious
grounds for reversal of Sherod’s conviction or modification of the sentence
imposed. The evidence supports the verdict, the sentence imposed was
within the sentencing limits, and Sherod was represented at all stages of the
proceedings below and was allowed to address the court before sentencing.
Accordingly, we affirm Sherod’s conviction and sentence.

¶16            Upon the filing of this decision, counsel shall inform Sherod
of the status of the appeal and his options. Defense counsel has no further
obligations, unless, upon review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). Sherod shall have thirty days from
the date of this decision to proceed, if he so desires, with a pro per motion
for reconsideration or petition for review.




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




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