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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 10-24-2019
STATE v. NASH

Decision of the Court

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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.
STATE v. NASH

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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). 

2 Absent 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 
STATE v. NASH

Decision of the Court

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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.
STATE v. NASH

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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.

 

3 Because 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.
STATE v. NASH

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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.