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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AARON C. WILSON, Appellant.

No. 1 CA-CR 16-0349

Appeal from the Superior Court in Maricopa County

No. CR2015-127183-001

The Honorable Jerry Bernstein, Commissioner

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Gracynthia Claw

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Kevin D. Heade

Counsel for Appellant
STATE v. WILSON

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in 

which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.

J O N E S, Judge:

¶1 Aaron Wilson appeals his convictions and sentences for one 

count each of possession of dangerous drugs and possession of drug 

paraphernalia. For the following reasons, we affirm. 

FACTS1 AND PROCEDURAL HISTORY

¶2 Wilson was charged with one count possession of dangerous 

drugs and one count possession of drug paraphernalia arising from events 

occurring on June 12, 2015. Wilson waived his right to a jury trial and the 

facts adduced at the bench trial are as follows. 

¶3 At approximately 6:40 p.m. on June 12, 2015, a Phoenix police 

officer investigating a report of trespassing discovered Wilson sleeping, 

with his head resting on a backpack, in a narrow space between a storage 

container and a retaining wall near 7th Avenue and Hatcher Road. After 

waking Wilson, who appeared dirty and unkempt, the officer obtained his 

identification and arrested him on two outstanding warrants. 

¶4 Wilson then stated the backpack, and both a BMX bicycle and 

BMX bicycle frame nearby, belonged to him. Wilson admitted there were 

two syringes in the side pocket of the backpack that he had found in the 

area between the storage container and the retaining wall. The officer 

recovered two syringes, one of which he believed to contain 

methamphetamine, and the other, heroin. Subsequent testing confirmed 

that one of the syringes contained 0.10 milliliters of methamphetamine.

¶5 At trial, Wilson denied making statements regarding 

ownership of the items or the circumstances surrounding the syringes to 

 

1 We view the facts in the light most favorable to upholding the 

verdicts and resolve all reasonable inferences against the defendant. State 

v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 

Ariz. 493, 495 (App. 1996)).
STATE v. WILSON

Decision of the Court

3

the officer. Wilson explained he was taking a shortcut through a dirt lot to 

the bus stop at 7th Avenue and Hatcher Road; there, he planned to take the 

106 or 80 bus west to 35th Avenue, transfer to the 35 bus north to Metro 

Center and then to Bell Road, and then bike the final mile to his job near 

39th Avenue and Deer Valley Road in time for his 8 p.m. shift.

2 Wilson 

testified he noticed the backpack and other items behind the storage 

container and had stopped to investigate the contents of the backpack. But, 

he did not get the chance to look in the backpack because the officer arrived

immediately thereafter. According to Wilson, when the officer asked if 

there was anything in the backpack that would “stick him,” Wilson

responded, “I don’t know; it’s not mine.” Wilson testified the officer

promised to release him if he admitted ownership of the drugs and 

paraphernalia, but he “still didn’t admit to it because it wasn’t [his].” 

¶6 The trial court determined Wilson’s explanation was not 

credible and found him guilty of the charged offenses. The court also found 

Wilson was on parole at the time of the offenses, determined he had two 

prior historical felony convictions, and sentenced him to a total of ten years’ 

imprisonment. Wilson filed a timely notice of appeal. We have jurisdiction 

pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1),3 13-

4031, and 13-4033(A).

DISCUSSION

¶7 Wilson argues the trial court violated his due process rights 

by considering evidence outside the record when it “improperly took 

informal judicial notice concerning the court’s own inaccurate knowledge 

of bus schedules” in finding Wilson’s testimony less credible than the 

officer’s before pronouncing him guilty. Wilson’s argument is premised 

upon the court’s discussion of some of the information it considered in

evaluating Wilson’s credibility. Specifically, the court noted:

Also [Wilson] was saying he was going to go to work, had to 

be there by 8 o’clock. This stop was made . . . about 6:35, 6:40 

 

2 Wilson requests we take judicial notice, on appeal, of the bus 

schedules he has attached as appendices to his opening brief. See State v. 

Rojers, 216 Ariz. 555, 560-61, ¶¶ 25-26 (App. 2007). However, he concedes 

the schedules are not current as of June 12, 2015, the date of the incident, 

and therefore, they are not relevant to our consideration.

3 Absent material changes from the relevant date, we cite a statute’s 

current version.
STATE v. WILSON

Decision of the Court

4

in the evening. Hoping to catch a bus on Hatcher, or if not 

going to take the other bus, then taking the bus 35, which you 

take up 35th Avenue to Bell, after stopping at Metro Center 

and hoping to get another bus, it’s very, very iffy. And the 

idea at that time of night getting all those buses and matching 

within that period of time, I suppose there’s no evidence 

about bus schedules, but that’s an issue because then, once he 

finally gets off the bus, he would have to ride his bike from —

another mile from Bell Road to Deer Valley Road.

Wilson did not object to this argument when made in the State’s closing

argument. We accordingly review his claim for fundamental error only. See 

State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (“Fundamental error 

review . . . applies when a defendant fails to object to alleged trial error.”) 

(citing State v. Bible, 175 Ariz. 549, 572 (1993)). On fundamental error 

review, the defendant has the burden of proving the court erred, the error 

was fundamental in nature, and he was prejudiced thereby. Id. at ¶ 20 

(citations omitted).

¶8 The record does not support Wilson’s claim that the trial court 

took “informal judicial notice” of any fact. Under Arizona Rule of Evidence 

201(b), a court “may judicially notice a fact that is not subject to reasonable 

dispute because it: (1) is generally known within the trial court’s territorial 

jurisdiction; or (2) can be accurately and readily determined from sources 

whose accuracy cannot reasonably be questioned.” Here, however, the 

court did not accept as fact any actual bus schedules. Rather, it relied upon 

common sense to find Wilson’s story about a complicated bus and bicycle

commute on a tight schedule was suspect. 

¶9 In doing so, the judge fulfilled his role, as the fact finder in a 

bench trial, to evaluate the witnesses’ credibility based upon the evidence 

at trial and determine what reasonable inferences are to be drawn 

therefrom. See FL Receivables Tr. 2002-A v. Ariz. Mills, L.L.C., 230 Ariz. 160, 

168, ¶ 34 (App. 2012) (“The fact finder is the sole judge of the facts and the 

credibility of the witnesses.”) (citing Walsh v. Advanced Cardiac Specialists 

Chartered, 227 Ariz. 354, 361, ¶¶ 23-24 (App. 2011)). Although a trial judge 

is not permitted to rely upon his specialized personal knowledge of facts 

not in evidence, see United States v. Berber-Tinoco, 510 F.3d 1083, 1091 (9th

Cir. 2007) (“It is . . . plainly accepted that the judge is not to use from the 

bench, under the guise of judicial knowledge, that which he knows only as 

an individual observer outside of court.”) (quotation and citation omitted), 

none of the cases cited by Wilson hold that the judge is not permitted to use 

common sense in evaluating a witness’s credibility, or they are otherwise 
STATE v. WILSON

Decision of the Court

5

distinguishable, see id. (concluding the trial court erred in making findings 

regarding the location of signage on, and the condition of, a roadway with 

which the judge was personally familiar); United States v. Sorrells, 714 F.2d 

1522, 1527 n.6 (11th Cir. 1983) (rejecting the argument that the trial court 

judge’s conclusion that an informant was reliable, based upon his prior 

experience with the informant, could cure an otherwise defective search 

warrant affidavit); Commonwealth v. Howlett, 328 S.W.3d 191, 192-93 (Ky. 

2010) (concluding the trial court improperly took judicial notice of the 

operating instructions for a breathalyzer machine where the information 

was gained by the judge through his prior experience as a prosecutor); State 

v. Vejvoda, 438 N.W.2d 461, 473 (Neb. 1989) (concluding “the locational 

inference necessary for venue was not an adjudicative fact” appropriate for 

judicial notice); O’Neill v. Dep’t of Revenue, 739 P.2d 456, 459-60 (Mont. 1987)

(concluding the trial court “went far beyond the record” when its 

observations regarding a motel’s generation of business compared to other 

motels in the area could only be verified by thorough research of facts not 

in the record); Guyton v. Monteau, 332 S.W.3d 687, 692 (Tex. Ct. App. 2011)

(finding an abuse of discretion where trial court took judicial notice of “all 

documents and testimony in the twelve-year history of the case” because 

the court may not take judicial notice of the truth of the information 

contained in the record and prior trial testimony is subject to different 

interpretations and “lacks the high degree of indisputability required to 

justify taking judicial notice”); In re C.L., 304 S.W.3d 512, 515-16 (Tex. Ct. 

App. 2009) (concluding the trial court did not take proper judicial notice of 

the materials it relied upon because it failed to notify the parties of its action 

or provide them the opportunity to be heard); City of Beaver Dam v. 

Cromheecke, 587 N.W.2d 923, 926 n.3 (Wis. Ct. App. 1998) (concluding the 

trial judge’s personal observations regarding a property’s availability to 

public “do not, in themselves, establish that [the fact] was generally known 

in the jurisdiction”); see also Rev. Ariz. Jury Instr. Preliminary Crim. 10 (4th 

ed. 2016) (directing the jury, in evaluating the credibility of witnesses, to 

“[c]onsider all of the evidence in light of reason, common sense, and 

experience”).

¶10 Here, the trial court specifically noted that no evidence of any 

bus schedules had been introduced. The court then referenced Wilson’s 

testimony regarding his commute, a matter on which the court had 

questioned him extensively, and, given the complicated nature of the plan 

and the testimony that Wilson was sleeping when the officer made contact,

expressed its skepticism that Wilson was being truthful in his version of 

events. The court also found Wilson’s credibility suspect because Wilson 

claimed the route over the dirt lot was a shortcut to the bus stop when a 

map of the area indicated there were shorter routes over paved areas, and 
STATE v. WILSON

Decision of the Court

6

Wilson’s detour through a “very, very narrow” area behind the storage 

container would make no sense if “he was just going down to the bus stop.”

The court further found it too coincidental that Wilson, who was riding a

BMX bicycle, had stumbled upon an abandoned BMX frame. Viewing the 

record and the court’s findings regarding Wilson’s credibility as a whole,

the remark regarding the “iffy” nature of the tight itinerary described by 

Wilson appears on its face to be a common-sense credibility determination 

based upon reasonable inferences drawn from the evidence, rather than any 

personal knowledge of bus schedules. Wilson has failed to demonstrate 

error, much less fundamental, prejudicial error. 

CONCLUSION

¶11 Wilson’s convictions and sentences are affirmed.