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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BENNY ORTEGA, Appellant.

No. 1 CA-CR 18-0119 

Appeal from the Superior Court in Maricopa County

No. CR2017-129987-001

The Honorable James R. Rummage, Judge Pro Tempore

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

Benny Ortega, San Luis

Appellant

FILED 10-30-2018
STATE v. ORTEGA

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.

J O H N S E N, Judge:

¶1 Benny Ortega timely filed this appeal in accordance with 

Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 

(1969), following his conviction of possession of a dangerous drug, a Class 

4 felony. Ortega's counsel has searched the record on appeal but found no 

arguable question of law that is not frivolous, and asks this court to search 

the record for fundamental error. See Smith v. Robbins, 528 U.S. 259, 284

(2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537 (App. 1999). 

Ortega has filed a supplemental brief, which we address below. After 

reviewing the entire record, we affirm Ortega's conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

¶2 Phoenix police officers came upon Ortega as he was walking 

alone on the sidewalk during the early morning hours.

1 When the officers 

shined a spotlight on Ortega, they saw him throw a crumpled piece of paper 

over a nearby fence. They stopped Ortega and retrieved the crumpled 

paper, which contained a white crystal-like substance that lab personnel

later identified as methamphetamine.

¶3 The State charged Ortega with one count of possession of a 

dangerous drug. See Ariz. Rev. Stat. ("A.R.S.") § 13-3407(A)(1) (2018).2 An

eight-person jury found him guilty. After finding that Ortega had five

historical prior felony convictions, the superior court sentenced him as a 

category-three repetitive offender to a mitigated term of six years' 

 

1 Upon review, we view the facts in the light most favorable to 

sustaining the jury's verdict and resolve all inferences against Ortega. State 

v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

2 Absent material revision after the date of an alleged offense, we cite 

the current version of a statute or rule.
STATE v. ORTEGA

Decision of the Court

3

imprisonment, with two days' presentence incarceration credit. See A.R.S. 

§ 13-703(C), (J) (2018).

3

¶4 Ortega timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-

120.21(A)(1) (2018), 13-4031 (2018) and -4033(A)(1) (2018).

DISCUSSION

A. Due Process Review.

¶5 The record reflects Ortega received a fair trial. He was 

represented by counsel at all stages of the proceedings against him and was 

present at all critical stages. The State presented both direct and 

circumstantial evidence sufficient to allow the jury to convict. The jury was 

properly comprised of eight members. The court properly instructed the 

jury on the elements of the charges, the State's burden of proof, the 

presumption of innocence and the necessity of a unanimous verdict. The 

jury returned a unanimous verdict, which was confirmed by juror polling. 

The court received and considered a presentence report, addressed its 

contents during the sentencing hearing and imposed a legal sentence for 

the crime of which Ortega was convicted.

B. The Supplemental Brief.

¶6 Ortega filed a motion in limine seeking to preclude statements

he made to police that he had used methamphetamine earlier on the day of 

his arrest. The court granted the motion and precluded the State from 

offering Ortega's statements in its case-in-chief, but ruled the State could 

offer the statements if Ortega put his knowledge of methamphetamine at 

issue. In his supplemental brief, Ortega seems to challenge the superior 

court's ruling on this matter, but does not explain the basis for his challenge. 

We see no issue with the superior court's ruling. Cf. State v. Torres, 162 Ariz. 

70, 72-73 (App. 1989) (court erred by admitting defendant's prior drug use 

because there was "simply nothing in the case" that brought "into play any 

issue of motive, knowledge, intent, absence of mistake, or accident"). In any 

event, Ortega did not testify at trial, and the State did not offer his

statements in evidence.

¶7 Ortega also contends "the state's prosecutor abdicated her role 

by shifting the burden of proof to the defense [sic] version of events," but 

 

3 The superior court mistakenly cited A.R.S. § 13-702 (2018) instead of 

§ 13-703 in the sentencing order.
STATE v. ORTEGA

Decision of the Court

4

does not cite any record support for that assertion. The record does not 

support Ortega's contention. The prosecutor did not impermissibly 

comment on Ortega's silence, nor did the prosecutor vouch for the evidence 

or express any personal belief in Ortega's guilt. Ortega's supplemental brief

also refers to jury instructions but does not challenge any particular 

instruction. We have reviewed all the instructions the superior court gave 

the jury, and have identified no error. Finally, Ortega mentions an alibi, but 

he did not offer an alibi at trial.

CONCLUSION

¶8 We have reviewed the entire record for reversible error and 

find none, and therefore affirm Ortega's conviction and resulting sentence. 

See Leon, 104 Ariz. at 300.

¶9 Defense counsel's obligations pertaining to Ortega's

representation in this appeal have ended. Counsel need do no more than 

inform Ortega 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. See State v. Shattuck, 140 

Ariz. 582, 584-85 (1984). Ortega has 30 days from the date of this decision 

to proceed, if he wishes, with a pro per petition for review. On the court's 

own motion, Ortega has 30 days to proceed, if he wishes, with a pro per 

motion for reconsideration.