State v. Nash

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AUBREY ERNEST NASH, Appellant.

No. 1 CA-CR 18-0377
FILED 10-24-2019

Appeal from the Superior Court in Yavapai County
No. P1300CR201600796
The Honorable Tina R. Ainley, Judge

AFFIRMED AS MODIFIED

COUNSEL

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

Stephen L. Duncan, Scottsdale
Counsel for Appellant

Aubrey E. Nash, Yuma
Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.

T H U M M A, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Aubrey Ernest
Nash has advised the court that, after searching the entire record, he has
found no arguable question of law and asks this court to conduct an Anders
review of the record. Nash was given the opportunity to file a supplemental
brief pro se and has done so. This court has reviewed the record and the
briefs and has found no reversible error. Accordingly, Nash’s convictions
and resulting sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 In June 2016, Nash and two accomplices were stopped by a
Yavapai County Sherriff’s Deputy on Interstate 40. Based on that
interaction, Nash was charged by indictment (and later convicted of) four
felony offenses: (1) sale or transportation of dangerous drugs, a Class 2
felony; (2) sale or transportation of marijuana, a Class 4 felony and (3) two
counts of possession of drug paraphernalia, Class 6 felonies. The State
alleged various aggravating circumstances, including that Nash had six
prior felony convictions, tracing back to 1995.

¶3 The superior court proceedings lasted nearly two years and
involved various hearings. The State extended plea offers to Nash, which
were not accepted. On several occasions, the court granted Nash’s request
for different court-appointed counsel.

¶4 In January 2017, Nash joined a motion to suppress filed by a
co-defendant. In February 2017, Nash filed a motion to suppress,
challenging the warrantless seizure and search of the car he drove in June
2016 and all statements he made to law enforcement. After an evidentiary
hearing, the court denied the motions to suppress and later denied Nash’s
motion to reconsider.

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¶5 In April 2018, Nash waived his right to a jury trial, in a writing
filed with the court, which was then accepted in open court. The parties
submitted evidence and argument, and after affording the parties the
opportunity to make supplemental filings, the court found Nash guilty as
charged. After a colloquy, the court found Nash had two historical prior
felony convictions, making him a Category 3 repeat offender. The court
then sentenced Nash to mitigated, concurrent prison terms, the longest of
which was for 12 years,1 and awarded him 702 days of presentence
incarceration credit. This court has jurisdiction over Nash’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A)
(2019).2

DISCUSSION

¶6 The record shows Nash was represented by counsel at all
relevant stages of the proceedings and counsel was present at all critical
stages. The record provided contains substantial evidence supporting his
convictions and resulting sentences. From the record, all proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure,
and the resulting sentences imposed were within statutory limits and the
permissible ranges.

¶7 Nash’s pro se brief on appeal, filed July 3, 2019, presses four
arguments: (1) the court abused its discretion in denying the motions to
suppress; (2) the State violated its disclosure obligations under Brady v.
Maryland, 397 U.S. 753 (1970), “by not investigating into the video evidence
in police agencies possession and then stating on record no video exist[s];”
(3) these claimed errors should be assessed cumulatively and (4) the State

1 The Judgment of Guilt and Sentence states the sentences were for
“NONREPETITIVE” offenses, elsewhere stating that each were “with two
historical prior Felony convictions.” Given the sentences imposed,
however, Nash was sentenced as a repetitive offender. Accordingly, the
“NONREPETITIVE” portion of the Judgment is stricken, so that the
modified Judgment reflects he was sentenced as a Category 3 repetitive
offender. See State v. Ovante, 231 Ariz. 180, 188 ¶ 38 (2013) (allowing
sentencing minute entry to be corrected on appeal when record clearly
identifies intended sentence).

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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violated “28 United States Code (U.S.C.) § 5303(a) along with Supreme
Court rule 42 E.R. 3.8.”

¶8 This court “review[s] a trial court’s ruling on a motion to
suppress for abuse of discretion, considering only the evidence presented
at the suppression hearing and viewing the facts in a light most favorable
to sustaining the trial court’s ruling.” State v. Adair, 241 Ariz. 58, 60 ¶ 9
(2016) (citing State v. Butler, 232 Ariz. 84, 87 ¶ 8 (2013)). Evidence is not
reweighed on appeal; this court defers to the superior court’s factual
findings, “including findings on credibility and the reasonableness of the
inferences drawn by the officer.” State v. Teagle, 217 Ariz. 17, 22 ¶ 19 (App.
2007) (citing cases). Questions of law and legal conclusions are reviewed de
novo. State v. Sweeney, 224 Ariz. 107, 111 ¶ 12 (App. 2010) (citing cases).

¶9 At the evidentiary hearing on the motions to suppress, a
defense investigator and the deputy testified. The deputy recounted that
Nash was driving “in the evening” after sunset when it was getting dark
with the lights off; “I believe’d it was unsafe for the vehicle to be traveling
without any headlights or taillights.” After also seeing an air freshener was
obstructing the view through the windshield, the deputy stopped the car.
The deputy first spoke with the driver (Nash) and obtained the names and
birth dates for the two passengers. He then told Nash he would be receiving
a warning for the moving traffic violation and asked to speak with Nash,
who consented to do so. The deputy testified that Nash showed “a
heightened level of nervousness” during the interaction.

¶10 Nash told the deputy that the car was a rental. The deputy
then discovered that Nash’s license “wasn’t valid,” which he later testified
was an “arrestable offense” (although he told Nash he would not be
arrested for that offense) and that one of the passengers with a valid license
would need to drive. The deputy asked Nash if “there was anything illegal
inside the vehicle” and Nash said “they had some water.” The deputy also
“detected the aroma of marijuana” from the car.

¶11 When the deputy questioned the occupants separately, Nash
and the two passengers provided inconsistent answers, including the
purpose and duration of the trip. The deputy then received consent from
all three to search the car. During the search, the deputy found no luggage
and a significant number of air fresheners, which he testified was unusual
for a rental car, noting that air fresheners “are often used to cover up the
odor of narcotics or controlled substances.” The occupants consented to the
deputy opening packages in the car. When one of the packages contained
material consistent with drug packaging (a package, inside a box, inside

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another box), and after one of the individuals withdrew her consent for
further searching, the search stopped.

¶12 Based on the deputy’s belief that criminal activity was afoot
(including “the odors of marijuana” and “there was reason to believe there
was drugs inside the packaging”), he detained all three individuals. The
deputy called for a canine unit and requested criminal histories for all three.
When the canine unit arrived 90 minutes later, the dog alerted and,
ultimately, law enforcement found approximately five and a half pounds
of methamphetamine and a pound and a half of marijuana in the packages.
The deputy then arrested all three individuals, advised them of their
Miranda rights and they consented to speak with the deputy, each giving
additional inconsistent responses.

¶13 Having considered the evidence provided and after weighing
credibility, the superior court denied the motions to suppress, finding
“there was in fact a basis for the officer to stop the vehicle. Once the vehicle
was stopped, the question becomes whether the contact is consensual or
detention.” The court found “the encounter was consensual up until the
point that” the passenger “withdrew consent. By then, the officer had seen
at least part of this package.” The “view of that packaging, the way it was
wrapped and the smell of what could have been marijuana, . . . I believe
those two facts alone provide a basis for calling the canine and for the
detention.” Although the detention was lengthy, the court noted the officer
called as soon as possible to get a canine and made additional calls to secure
a canine, and as soon as the dog arrived, it alerted, meaning “there’s not
been a due-process violation in terms of the delay to get the canine. So based
on that, I don’t believe there’s a basis for granting the motions to suppress;
I will deny them at this time.”

¶14 In challenging the denial of his motion to suppress on appeal,
Nash “asserts when reasonable suspicion is in question all video/audio
recordings become relevant material evidence which needed to be
investigated by State prosecutors and defense attorney, to ensure
petitioner’s right to due process and equal protection are respected.” To the
extent that Nash suggests the State’s investigation was inadequate, he has
cited no authority supporting such an argument. Nor has Nash shown how
Ariz. R. Crim. P. 16.1(d) or 16.2(b) — which he cites on appeal — furthers
his argument. To the extent Nash suggests any inadequacy by his trial
counsel, such a claim cannot be raised on direct appeal. See Ariz. R. Crim.
P. 32.1.

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¶15 Many of Nash’s claims are based on the unsupported
proposition that relevant video recordings were not captured and disclosed
by the State. For example, Nash speculates that the State incorrectly
“disclaimed the existence of any video recordings that obviated the need
for petitioner to conduct an independent investigation.” But as Nash
concedes, the superior court ordered the disclosure of any such videos.
Other than baldly asserting that order “was ignored by the State,” Nash has
not shown that any videotaped evidence was not properly captured and
disclosed by the State. Indeed, his argument is based on speculation that
“if” such material was “in the prosecutor’s possession,” it should have been
disclosed. But there was no showing that such material existed but was not
disclosed. Moreover, there was no testimony at the suppression hearing
that any video was taken of the interactions with Nash. For this same reason
— assuming evidence existed that should have been disclosed, as opposed
to showing such evidence existed but was not disclosed — Nash’s reliance
on Milke v. Mroz, 236 Ariz. 276, 283 ¶ 18 (App. 2014) is misplaced.

¶16 This lack of supporting evidence is particularly telling given
this court granting Nash’s motions for extension of time to file an opening
brief, so he could secure such evidence, trailing back to May 2019.3

¶17 For these same reasons, Nash’s argument that the State
“violated Brady by doing no investigation into the production of video
evidence and stating on the record that no video exist[ed]” fails. This
argument is based on the unsupported assumption that videotapes that
should have been preserved were not preserved and were destroyed. And
because Nash has shown no error, his argument that all errors should be
assessed cumulatively similarly fails. In addition, to the extent that Nash
argues the superior court improperly assessed credibility of the witnesses
at the suppression hearing or trial, this court does not make credibility
determinations (or reweigh the superior court’s credibility determinations)
on appeal. See Teagle, 217 Ariz. at 22 ¶ 19.

3Because the record on appeal was complete as of early September 2018,
given extensions Nash requested, he was allowed to file his supplemental
pro se brief in July 2019. Given the passage of time, the filing of his opening
brief and the lack of supporting authority, Nash’s July 22, 2019 motions to
compel and for extension of time, and his September 3, 2019 motion for
extension, are denied.

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¶18 Finally, although Nash claims the prosecutor violated 28
U.S.C. § 530B(a), he has not shown how that statute (which governs conduct
by certain lawyers employed by the United States) would provide any basis
for a claim in this proceeding. See 28 C.F.R. § 77.2(a) (2019) (“attorney for
the government” is defined as including various positions and individuals
working for the United States and excluding even U.S. Department of
Justice employees “who are not authorized to represent the United States
in criminal or civil law enforcement litigation or to supervise such
proceedings”). Moreover, even if applicable, those standards “are not
intended to, do not, and may not be relied upon to create a right or benefit,
substantive or procedural, enforceable at law by a party to litigation with
the United States, including criminal defendants . . . and shall not be a basis
for dismissing criminal . . . charges or proceedings.” 28 C.F.R. § 77.5 (2019).

CONCLUSION

¶19 This court has read and considered counsel’s brief and Nash’s
pro se supplemental brief and has searched the record provided for
reversible error and has found none. Leon, 104 Ariz. at 300; State v. Clark,
196 Ariz. 530, 537 ¶ 30 (App. 1999). Accordingly, Nash’s convictions and
resulting sentences are affirmed.

¶20 Upon the filing of this decision, defense counsel is directed to
inform Nash of the status of the appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85, (1984). Nash
shall have 30 days from the date of this decision to proceed, if he desires,
with a pro se motion for reconsideration or petition for review.

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

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