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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appellee

,

v.

AARON C. WILSON

, Appellant

.

No. 1 CA

- CR 16

- 0349

Appeal from the Superior Court in Maricopa County

No. CR 2015

- 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 C ounsel for AppellantSTATE 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 dangero us drugs and possession of drug paraphernalia. For the following reasons, we affirm.

FACTS 1 AND PROCEDURAL HISTORY

¶2 Wilson was charged with one count possession of dangerous drugs and one count possession of drug paraphernalia arising from events occurri ng 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 7 th A venue and Hatcher Road

. After waking Wilson , who appeared dirty and unkempt, the officer obtained his identificat ion and arrested him on two outstanding warrant s

.
¶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

a rea 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 t esting confirmed that one of the syringes contained 0 .10 millil i ters 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 verdict s an d 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 Hatch er Road ; there, he planned to take the 106 or 80 bus west to 35 th Avenue , transfer to the 35 bus north to Metro Center and then t o 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 Wils on 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 be cause 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 t he drugs and

parap hernalia, 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, de termined 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 di scussion 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 1 2, 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 even ing. H oping to catch a bus on Hatcher, or if not going to take the other bus, then taking the bus 35, which you take up 35 th 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 rid e 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, 56 7 , ¶ 19 (2005) (“Fundamental error review . . . app lies 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 T he record does not support Wilson’s claim that the trial court took “ informal judicial notice ” of an y 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 deter mined from sources whose accuracy cannot reasonably be questioned.” Here, however, t he court did not accept as fact any actual bus schedules . Rather, it relied up on common sense to find Wilson’s story about a complicated bus and bicycle

commute on a tigh t 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 up on 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 up on his specialized personal knowledge of facts

not in evidence, see United States v. Berber

- Tinoco , 510 F.3d 1083, 1091 (9 th 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 sen se in evaluating a witness’s credibility , or they are otherwiseSTATE v. WILSON
Decision of the Court

5 distinguishable, s ee 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 defec tive search warrant affidavit ); Com monwealth 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 th rough 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 adj udicat ive 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 noti ce” ); 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 , t he trial cour t specifically noted that no evidence of any bus schedules had been introduced

. T h e court then re ferenc ed 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 offi c er made contact, expressed its skepticism that Wilson was being truthful in his versio n of

events

. The court also found Wilson’s credibility suspect because Wilson claimed the route over the dirt lo t w as a shortcut to the bus stop when a map of the area indicated there were shorter routes over paved areas, andSTATE 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 j ust 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 appear s on its face to be a common

- sense credibility determination based up on reasonable inferences drawn from the evidence

, rather than any personal knowledge of bus schedules. Wilson has fail ed to demonstrate error, much less fundamental, prejudicial error.

CONCLUSION

¶11 Wilson’s convictions and sentences are affirmed

.