State v. Brown

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DOMINIQUE DISHAWN BROWN, Appellant.

No. 1 CA-CR 22-0472
FILED 03-28-2024

Appeal from the Superior Court in Maricopa County
No. CR2021-001216-001
The Honorable Geoffrey H. Fish, Judge

AFFIRMED

COUNSEL

Arizona Attorney’s Office, Tucson
By Amy M. Thorson
Counsel for Appellee

Dominique Dishawn Brown, Yuma
Appellant

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
 STATE v. BROWN
Decision of the Court

C R U Z, Judge:

¶1 Dominique Dishawn Brown appeals his convictions and
sentences for one count of possession of dangerous drugs and one count of
possession of drug paraphernalia. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 On February 12, 2021, Brown was walking near Baseline Road
in Buckeye when a Buckeye police officer noticed him. The officer
recognized Brown because he had previous contact with Brown and knew
that Brown had an active warrant for his arrest. Before approaching Brown,
the officer verified Brown had an active warrant, called for a backup police
unit to assist with the arrest, and called his supervisor to receive approval
for the arrest.

¶3 The officer did not activate his body camera until he began to
search Brown. Before the officer handcuffed Brown, the backup police unit
arrived with an active body camera. About one minute of the officer’s
interaction with Brown was not recorded by a body camera. While
conducting a search incident to arrest, the officers found methamphetamine
and drug paraphernalia on Brown. Brown was charged with possession of
a dangerous drug (count 1) and possession of drug paraphernalia (count 2).

¶4 Brown represented himself at various points throughout the
pre-trial proceedings but was represented by counsel at trial. Before trial,
Brown filed several pro per motions, including a motion to suppress
evidence and a motion to dismiss for violation of speedy trial time limits.
The motion to suppress evidence was denied and no ruling on the motion
to dismiss for violation of speedy trial time limits appears to be in the
record.

¶5 After a three-day trial, a jury found Brown guilty. Brown
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶6 “We will not disturb a trial court’s ruling on a motion to
suppress evidence absent a clear abuse of discretion.” State v. Crowley, 202
Ariz. 80, 83, ¶ 7 (App. 2002). Arguments made for the first time on appeal
are waived absent both fundamental and prejudicial error. State v.
Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). The “question of the sufficiency of

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evidence is one of law, subject to de novo review on appeal.” State v. West,
226 Ariz. 559, 562, ¶ 15 (2011).

I. Motion to Suppress

¶7 Brown argues the superior court erred when it denied his
motion to suppress the methamphetamine and paraphernalia. Specifically,
Brown argues the officer violated Brown’s reasonable expectation of
privacy under the Fourth Amendment to the United States Constitution
when he used the law enforcement database to determine whether there
was an active warrant for Brown’s arrest.

¶8 The Fourth Amendment provides for “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . .” U.S. Const. amend. IV. “A ’search’
under the Fourth Amendment occurs when an individual’s reasonable
expectation of privacy is infringed.” State v. Peltz, 242 Ariz. 23, 30, ¶ 25
(App. 2017). Individuals do not have privacy interests in the information
contained in criminal history databases. See Eagle v. Morgan, 88 F.3d 620,
627-28 (8th Cir. 1996).

¶9 The officer used a law enforcement database to search for
Brown’s name. Brown does not have a reasonable expectation of privacy
in law enforcement databases. See id. The superior court did not abuse its
discretion when it denied the motion to suppress.

¶10 Brown further argues that “[i]t was unfair for Brown not to
have received an evidentiary hearing” on the admissibility of the evidence.
But Brown had to first make a prima facie case for suppression before being
entitled to a hearing. See Ariz. R. Crim. P. 16.2(b)(2); State v. Peterson, 228
Ariz. 405, 408, ¶ 9 (App. 2011). To make a prima facie case, “a defendant
need only make allegations which, if proved, would entitle him or her to
suppression.” Id. In his motion, Brown did not make a prima facie case for
suppression because he only disputed whether the officer had violated his
Fourth Amendment rights when he searched for Brown’s name in the law
enforcement database. The superior court did not abuse its discretion when
it did not hold an evidentiary hearing on Brown’s motion to suppress.

¶11 Brown also argues the search of his person “exceeded that
which is permitted by Terry v. Ohio.” Because Brown makes this argument
for the first time on appeal, it is waived absent fundamental and prejudicial
error. See Escalante, 245 Ariz. at 140, ¶ 12. Brown has not shown error
because the search conducted during his arrest was not a pat-down search
as authorized by Terry v. Ohio, 392 U.S. 1 (1968). The search was a search

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incident to a lawful arrest. “[I]incident to an arrest, a police officer may
search the arrestee and the area within his immediate control in order to
ensure the absence of weapons and prevent the destruction or concealment
of evidence.” State v. Lopez, 198 Ariz. 420, 422, ¶ 10 (App. 2000). Brown was
arrested pursuant to a valid warrant and the search of his person was
performed incident to his arrest.

II. Body Camera Footage

¶12 For the first time on appeal, Brown argues the officer’s failure
to turn on his body camera immediately resulted in a due process violation.
Absent fundamental and prejudicial error, Brown has waived this
argument. See Escalante, 245 Ariz. at 140, ¶ 12.

¶13 If a defendant cannot show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial
of due process of law.” State v. Turner, 251 Ariz. 217, 221, ¶ 11 (App. 2021)
(citations and internal quotation marks omitted). “Absent bad faith on the
part of the officers, due process is violated only when the evidence
possessed an obvious exculpatory value and is of such a nature that the
defendant would not be able to obtain comparable evidence by other
reasonable means.” Id.

¶14 Brown fails to show the officer was acting in bad faith. The
only evidence presented was that the officer forgot to turn on his body
camera, and a short time passed before he turned it on. “[B]rief and
inadvertent failures [to turn on body cameras are] at worse negligent, not
rising to the level of bad faith.” Id. at 222, ¶ 17.

¶15 Brown also fails to show that the footage had an obvious
exculpatory value. Brown only speculates the body camera footage “would
have proved or disproved if the officer did or didn’t” plant the drugs and
paraphernalia. Speculation is insufficient to support the argument the
missing footage had an obvious exculpatory value. See id.

III. Right to Speedy Trial

¶16 Brown argues the superior court erred when it denied his
motion to dismiss for an Arizona Rule of Criminal Procedure (“Rule”) 8
violation. No ruling on the motion appears to be in the record, but “when
a court fails to expressly rule on a motion, we deem it denied.” State v.
Mendoza-Tapia, 229 Ariz. 224, 231, ¶ 22 (App. 2012).

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¶17 Brown argues the violation occurred when he was
representing himself, during a June 2021 hearing, at which he did not
appear. Brown alleges his trial date was moved to November 2021 during
the June hearing, violating his right to a speedy trial. But the State and
Brown filed an initial pretrial statement on May 6, 2021, waiving Brown’s
Rule 8 time limits. The statement noted Brown had three cases pending and
agreed “to align all last days to the case listed above with the latest last day
and align all hearing dates.” The pretrial statement also stated, “Defendant
agrees to waive Rule 8 time on all pending cases (to the extent necessary) to
allow for last days to be aligned.” Brown’s attorney at the time signed this
pretrial statement.

¶18 Brown waived his Rule 8 time limits prior to the June 2021
hearing. See State v. Zuck, 134 Ariz. 509, 515 (1982)(“Rule 8.2 does not grant
[a defendant] any fundamental right which cannot be waived by his
counsel.”). The superior court did not abuse its discretion when it denied
Brown’s motion to dismiss for a Rule 8 violation.

IV. Fair Trial

¶19 For the first time on appeal, Brown argues his right to a fair
trial was violated because he could not answer a juror’s question about
whether he had been read his Miranda rights. Brown contends he was not
read his Miranda rights and the jury was told about statements he made
during his arrest.

¶20 Brown has waived this argument absent fundamental and
prejudicial error. See Escalante, 245 Ariz. at 140, ¶ 12. After Brown testified,
the jury submitted a question asking if Brown had been read his Miranda
rights. The superior court did not ask the question after a discussion with
the prosecutor and defense counsel. During the discussion, the prosecutor
stated Brown had been read his rights but did not want Brown to say that
he had invoked his right to remain silent. Defense counsel agreed not to
ask the question, stating he did not want to invite error. Through trial
counsel, Brown waived any objection and has, therefore, not shown
fundamental error.

V. Insufficient Evidence

¶21 Brown was charged with violating A.R.S. § 13-3407(A)(1).
The statute states, “[a] person shall not knowingly [p]ossess or use a
dangerous drug.” Section 13-3401(6)(c)(xxxviii) defines “dangerous drug”
to include methamphetamine. Brown argues insufficient evidence was
presented because the State did not show there was a usable quantity. But,

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“[a] ‘usable quantity’ is neither an element of the possession offense nor
necessary to sustain a conviction for it.” State v. Cheramie, 218 Ariz. 447, 451,
¶ 21 (2008).

¶22 The jury was instructed the crime of possession of a
dangerous drug requires proof that:

1. The defendant knowingly possessed a dangerous drug
and

2. The substance was in fact a dangerous drug to wit:
methamphetamine.

The arresting officer testified to finding methamphetamine on Brown’s
person and that Brown squirmed away from him during the search. Body
camera footage was submitted showing the incident. A forensic scientist
testified that the item found on Brown was methamphetamine. It is the role
of the jury to judge witness credibility and weigh evidence. State v.
Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004). “To set aside a jury verdict for
insufficient evidence it must clearly appear that upon no hypothesis . . . is
there sufficient evidence to support the conclusion reached by the jury.”
State v. Arredondo, 155 Ariz. 314, 316 (1987). Brown has failed to show the
evidence was insufficient to support the verdict.

VI. Jury Selection Violation

¶23 Brown argues the jury selection process denied him a “trial
before an impartial jury drawn from a representative cross-section of the
community.” Because Brown did not make this challenge to the panel as a
whole before the examination of any individual prospective juror, this
argument is waived absent fundamental error. See Ariz. R. Crim. P. 18.4(a);
State v. Stokley, 182 Ariz. 505, 514 (1995). Brown fails to show error because
using voter registration lists and driver’s license records to create the list of
potential jurors does not result in the exclusion of cognizable groups from
the jury venire. See State v. Dogan, 150 Ariz. 595, 599 (App. 1986).

CONCLUSION

¶24 We affirm.

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