State v. Loff

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 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.

DARRICK MICHAEL LOFF, Appellant.

No. 1 CA-CR 13-0535
FILED 4-29-2014

Appeal from the Superior Court in Yavapai County
No. V1300CR201180595
The Honorable Michael R. Bluff, Judge

AFFIRMED AS CORRECTED

COUNSEL

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

Counsel for Appellee

C. Kenneth Ray II PC, Prescott
By C. Kenneth Ray, II

Counsel for Appellant

Darrick Michael Loff, Florence

Appellant
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Decision of the Court

MEMORANDUM DECISION

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

N O R R I S, Judge:

¶1 Darrick Michael Loff appeals from his convictions and
sentences for one count of offering to sell narcotic drugs (oxycodone), a
class 2 felony; one count of offering to sell marijuana (less than 2 pounds),
a class 3 felony; one count of possession of narcotic drugs (oxycodone), a
class 4 felony; and one count of possession of marijuana (less than 2
pounds), a class 6 felony. After searching the record on appeal and
finding no arguable question of law that was not frivolous, Loff’s counsel
filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), asking this court to search the record for fundamental error. This
court granted counsel’s motion to allow Loff to file a supplemental brief in
propria persona, and Loff did so. We reject the arguments raised by Loff in
his supplemental brief and, after reviewing the entire record, find no
fundamental error. Therefore, we affirm Loff’s convictions and sentences
as corrected to reflect the dismissal of a criminal trespass charge with
prejudice and a one-day increase in his presentence incarceration credit.

FACTS AND PROCEDURAL BACKGROUND 1

¶2 In 2006, Paul S. purchased a residence from Loff’s step-
father. Paul S. moved out of the residence in November 2011 because he
was unable to make the mortgage payments; however, he continued to
own the residence and left some of his belongings there.

¶3 On December 24, 2011, Loff approached Paul S. while Paul S.
was grocery shopping. Loff informed Paul S. he was living in the
residence and asked Paul S. if he wanted to buy marijuana or pain killers.
Paul S. called a Camp Verde Marshal’s Office deputy with whom he was
acquainted, Deputy Travis T. Deputy Travis T. and Sergeant Brian A.

1We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Loff. State
v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

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arrived at the grocery store, took Paul S.’s statement, and accompanied
Paul S. to the residence. Paul S. granted the marshals permission to enter
and search the residence. In one of the bedrooms, the marshals found a
bong containing marijuana residue and, in a duffel bag, found marijuana,
oxycodone pills, and other items of paraphernalia. Paul S. testified he had
never seen the duffel bag before.

¶4 Later that day, a man flagged down Deputy Travis T. while
he was on patrol. The deputy stopped, and the man essentially told him
he had gone into the house and discovered his drugs were missing and
also that he suspected the police had been in the house and were probably
looking for him. The deputy confirmed the man was Loff and arrested
him. Subsequently, a grand jury indicted Loff on charges relating to the
offer to sell the oxycodone and marijuana as well as possession of both
drugs and drug paraphernalia. 2

¶5 At trial, Loff acknowledged speaking with Paul S. at the
grocery store on December 24, 2011, but he denied offering to sell him any
drugs. In addition, he testified that although he had spent the night of
December 23, 2011 at the residence, neither the duffel bag nor its contents
belonged to him.

¶6 Loff also testified he had three prior felony convictions. The
jury acquitted Loff of possession of paraphernalia but found him guilty on
the remaining counts. The superior court sentenced Loff as a category
three repetitive offender, see Ariz. Rev. Stat. (“A.R.S.”) §§ 13-105(22)
(Supp. 2013), 13-703(C) (Supp. 2013), 3 and sentenced him to the
presumptive term of imprisonment on all counts, see A.R.S. § 13-703(J), to

2The grand jury also indicted Loff on one count of criminal
trespass. On the first day of trial, and on the State’s motion, the court
dismissed that charge with prejudice. The April 10, 2012 trial minute
entry and the June 4, 2012 sentencing minute entry state, however, that the
dismissal of the criminal trespass charge was without prejudice. Because
the trial transcript clearly reflects the dismissal was with prejudice, we
correct the trial and sentencing minute entries to reflect dismissal of the
criminal trespass charge with prejudice.

3Although the Arizona Legislature amended certain statutes
cited in this decision after the date of Loff’s offenses, the revisions are
immaterial. Thus, we cite to the current version of the statutes.

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be served concurrently, and granted him 162 days of presentence
incarceration credit. 4

DISCUSSION
I. Supplemental Brief

¶7 Loff essentially argues on appeal that the State presented
insufficient evidence at trial to sustain the guilty verdicts.

We review the sufficiency of the evidence by
determining whether substantial evidence
supports the jury’s finding, viewing the facts in
the light most favorable to sustaining the jury
verdict. Substantial evidence is proof that
reasonable persons could accept as
adequate . . . to support a conclusion of
defendant’s guilt beyond a reasonable doubt.

State v. Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d 192, 198 (2010) (alteration in
original) (citations omitted) (internal quotation marks omitted).

¶8 Here, as summarized above, supra ¶¶ 2-5, the State
presented sufficient evidence to permit the jury to convict Loff. Although

4We note that in sentencing Loff, the superior court did not
make an affirmative finding that he had two prior historical felony
convictions, nor did it state the specific statutory authority for the
repetitive category applicable to Loff. Although we could infer from the
record that the superior court sentenced Loff as a category three repetitive
offender, “[i]n order to facilitate appellate review, trial judges should
indicate on the record the specific statutory subsection under which a
criminal sentence is imposed.” State v. Anderson, 211 Ariz. 59, 60 n.1, 116
P.3d 1219, 1220 n.1 (2005). Pursuant to Arizona Code of Judicial
Administration § 3-402 (2014), which is the same now as it was in 2012, the
superior court destroyed the confidential criminal history report -- which
would have allowed us to review whether Loff’s prior felony convictions
were indeed historical for purposes of sentencing him as a category three
repetitive offender -- before the superior court transferred the record to
this court. We therefore remanded this matter to the superior court to
reconstruct the record. Upon review of the supplemented record, we find
no error.

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Loff disputed some of this evidence when he testified, “[t]he finder-of-
fact, not the appellate court, . . . determines the credibility of witnesses.”
State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995).

¶9 Loff also argues the State failed to present evidence to show
he had exclusive control of the drugs or the duffel bag in which they were
contained, and therefore, he could not have possessed them. “Possess”
means “knowingly to have physical possession or otherwise to exercise
dominion or control over property.” A.R.S. § 13-105(34). Exclusive
control, however, is not necessary to sustain a conviction for possession;
constructive possession will suffice. State v. Villavicencio, 108 Ariz. 518,
520, 502 P.2d 1337, 1339 (1972). When “the drug is not found on the
person of the defendant nor in his presence, but is found in a place under
his dominion and control and under circumstances from which it can be
reasonably inferred that the defendant had actual knowledge of the
existence of the [drugs],” a defendant has constructive possession of the
drugs. Id.

¶10 Here, Loff acknowledged spending the night at the
residence, and Deputy Travis T. testified to Loff’s admission the drugs
belonged to him. Thus, a jury could find Loff had exercised dominion and
control over the residence in which the drugs were found and reasonably
infer he had actual knowledge the drugs were there, thereby establishing
he constructively possessed the drugs.

¶11 Loff also argues the deputies should have obtained a search
warrant before entering the residence because it was owned by Loff’s
step-father and Paul S. had been evicted and, therefore, did not have the
authority to consent to a search of the residence. Paul S., however, and
not Loff’s step-father, was the legal owner of the residence at the time of
the search. Accordingly, Paul S. could consent to the search and the
deputies were not required to obtain a search warrant. See State v. Guillen,
223 Ariz. 314, 317, 223 P.3d 658, 661 (2010) (“One long recognized
exception to the warrant requirement is consent.” (citation omitted)).

¶12 Finally, Loff argues counsel should have moved to suppress
the statements he made to Paul S. and Deputy Travis T. because there was
no other evidence he committed a crime. This argument is, essentially, an
ineffective assistance of counsel argument and not properly before us on

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direct appeal. 5 See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527
(2002).
II. Anders Review

¶13 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Loff received a fair
trial, counsel represented him at all stages of the proceedings, and Loff
was present at all critical stages.

¶14 As discussed, supra ¶ 8, the State presented substantial
evidence at trial that supported the verdicts. The jury was properly
comprised of 12 members, and the court properly instructed the jury on
the elements of the charges, Loff’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 and gave Loff an
opportunity to speak at sentencing, and his sentences were within the
range of acceptable sentences for his offenses.

¶15 In our review of the record, we discovered an error in the
sentencing hearing and minute entry. At the sentencing hearing and in
the sentencing minute entry, the superior court awarded Loff 162 days of
presentence incarceration credit. The record reflects Loff was, in fact,
incarcerated for 163 days -- from December 24, 2011 to the date of the
sentencing hearing, June 4, 2012. 6 We therefore correct the sentence
imposed to reflect 163 days of presentence incarceration credit. See A.R.S.
§ 13-712(B) (2010) (“All time actually spent in custody pursuant to an
offense until the prisoner is sentenced to imprisonment for such offense
shall be credited against the term of imprisonment . . . .”).

CONCLUSION

¶16 We decline to order briefing and affirm Loff’s convictions
and sentences as corrected.

5Although Loff also argues the State committed
prosecutorial misconduct by knowingly presenting perjured testimony
and “deliberately suppress[ing] evidence which would have impeached
and refuted the testimony thus given against him by Deputy [Travis T.]
and Paul S[.],” we find nothing in the record to support these arguments.

6The record does not reflect Loff was ever released on bond.

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¶17 After the filing of this decision, defense counsel’s obligations
pertaining to Loff’s representation in this appeal have ended. Defense
counsel need do no more than inform Loff of the outcome of this appeal
and his future options, unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).

¶18 Loff has 30 days from the date of this decision to proceed, if
he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Loff 30 days from the date of this decision to
file an in propria persona motion for reconsideration.

:MJT

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