THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

GEMMILL, Judge.

¶1 Joseph Ken Cotten appeals his convictions and sentences for possession of dangerous drugs, a class four felony, and possession of drug paraphernalia, a class six felony, on the grounds of insufficiency of evidence, an expert's lack of qualifications, and error in enhancing his sentences with a California conviction. For the reasons that follow, we find no reversible error and affirm.

¶2 Cotten argues that the evidence was insufficient to support his conviction for possession of dangerous drugs because it failed to show that the "residue" in his methamphetamine pipe was of a usable quality or of a "usable quantity," based upon the "known practices of addicts." We review de novo the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶15, 250 P.3d 1188, 1191 (2011). We view the facts in the light most favorable to upholding the jury's verdict, and resolve all conflicts in the evidence against defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).

¶3 The offense of possession of dangerous drugs requires proof that the defendant "knowingly" possess a dangerous drug. Arizona Revised Statute ("A.R.S.") section 13-3407(A)(1) (2010).1 Methamphetamine is a dangerous drug. A.R.S. § 13-3401(6)(b)(xiii) (2010). To sustain a conviction, the State is not required to show that the drugs were of a particular quality, such that they would produce an effect on the user. State v. Murray, 162 Ariz. 211, 213, 782 P.2d 329, 331 (1989). Nor is the State required to show that a defendant possessed a "usable quantity" of drugs. State v. Cheramie, 218 Ariz. 447, 450, 451, ¶¶ 17, 21, 189 P.3d 374, 377, 378 (2008). Possession of a "usable quantity," however, is evidence from which a fact finder may infer knowledge. Id. at 451, ¶ 21, 189 P.3d at 378. Proof of possession of a "usable quantity" accordingly "remains an effective way, in a case involving such a small amount that one might question whether the defendant knew of the presence of drugs, to show that the defendant `knowingly' committed the acts described in A.R.S. § 13-3407." Id.

¶4 The evidence at trial showed that a police officer found a methamphetamine pipe in Cotten's pocket when the officer searched him incident to an arrest for speeding. A Department of Public Safety ("DPS") criminalist testified that the pipe contained .19 grams of methamphetamine, many times the .002 grams she considered a threshold weight for a usable amount, and, in light of this and other criteria, she considered it a "usable quantity." She testified that she viewed the quantity she found in the pipe as "substantial," and explained that she had scraped a "considerable chunk" from inside the bowl. Cotten testified that he did not think there was any methamphetamine left in the pipe, because friends who had smoked methamphetamine in it earlier in the day had planned to throw it away in his kitchen trash can. He testified that he put the pipe in his pocket only because he preferred to dispose of it away from the house, and he had forgotten about it. He admitted, however, that he had used methamphetamine on and off his whole life, had snorted methamphetamine the day of his arrest, and had six prior felony convictions. It was for the jury, not us, to evaluate the witnesses' credibility. State v. Scott, 113 Ariz. 423, 425, 555 P.2d 1117, 1119 (1976); State v. Fierro, 220 Ariz. 337, 339, ¶9, 206 P.3d 786, 788 (App. 2008). This evidence, viewed in the light most favorable to supporting the conviction and resolving all conflicts against defendant, was sufficient to establish that Cotten knowingly possessed dangerous drugs.

¶5 Cotten next argues that the DPS criminalist was not qualified to render an opinion that the methamphetamine in the pipe was a "usable quantity" because she had no information or training on the "known practices of addicts," and the judge abused his discretion in allowing her to offer it. The judge allowed the criminalist to offer this opinion based on her testimony outside the presence of the jury that she followed an established DPS protocol for determining whether the drugs constituted a "usable quantity." We review a ruling on the admissibility of expert testimony for an abuse of discretion. State v. Snelling, 225 Ariz. 182, 187, ¶ 18, 236 P.3d 409, 414 (2010) (citing State v. Davolt, 207 Ariz. 191, 210, ¶ 69, 84 P.3d 456, 475 (2004)).

¶6 We find no such abuse of discretion. At the time of trial, Rule 702 of the Arizona Rules of Evidence provided that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."2 Ariz. R. Evid. 702. Our supreme court has interpreted this rule to set a relatively low threshold for qualification as an expert, directing that a person may be considered an expert if the fact finder "can receive help on a particular subject from the witness," and noting that "[t]he degree of qualification goes to the weight given the testimony, not its admissibility." Davolt, 207 Ariz. at 210, ¶ 70, 84 P.3d at 475 (citations omitted). The DPS criminalist testified that she had undergraduate and graduate degrees in chemistry, biology and integrated science and mathematics, had been employed as a criminalist by the DPS for three years, and during that time had performed more than a thousand scientific analyses of dangerous drugs. She testified that she followed a standard protocol established by the DPS for evaluating whether the drugs submitted for testing constituted a "usable quantity," specifically addressing the weight of the drug, its packaging, its form, its condition, and the common method of administration of the drug. Although she had testified at the evidentiary hearing that she had no knowledge of how users ingested the drug, at trial she testified that for this purpose, she relied on "[m]y training, my DPS protocol, and things I've heard from officers." Moreover, she testified that in this case the quantity of methamphetamine she found in the pipe was many times the minimum she would consider usable and, indeed, was "substantial." She also testified without objection that the "considerable chunk" of methamphetamine that she found in the bowl of the pipe "would just be reused." Cotten himself testified that whether the methamphetamine left in the pipe bowl would be reused "[d]epends." On this record, any actual or perceived deficiencies in the criminalist's qualifications went to the weight to be given to her testimony rather than its admissibility. We find no abuse of discretion in the trial court's admission of the criminalist's opinion that the amount of methamphetamine she scraped from the pipe found on Cotten constituted a "usable quantity."

¶7 Finally, Cotten argues that the trial court erred in concluding that his California conviction for attempted burglary qualified as a prior historic felony conviction for sentencing enhancement purposes. He argues that the felonious intent necessary to commit the underlying offense of burglary in California would necessarily differ from the felonious intent necessary to commit the parallel offense in Arizona, because "many offenses would qualify as felonies in California but not in Arizona, either because the class of offense is different (i.e.: a misdemeanor), or the elements are different."

¶8 We have previously held in an appeal brought by Cotten from his other criminal convictions and sentences that the California offense of attempted burglary would constitute a felony in Arizona. State v. Cotten, ___ Ariz. ___, ___, ¶¶ 18-22, ___ P.3d ___, ___ (App. 2011) (review denied April 24, 2012). In the prior case, a panel of this court reviewed Cotten's California conviction de novo, and found that it was a prior historical felony conviction. See id. We have reviewed State v. Cotten, particularly paragraphs 18 through 22; we agree with the analysis of our colleagues in that case and we reach the same conclusion here for the same reasons.

¶9 This court accordingly has already resolved the fundamental issue that Cotten attempts to raise in this appeal: Whether or not the California crime of attempted burglary would have been a felony under Arizona law. Although in that case, Cotten did not raise the specific issue he now raises on appeal, he had full opportunity and motive to litigate it, the fundamental issue was actually litigated, and resolution of that issue was essential to the decision reached by our court. See State v. Crawford, 214 Ariz. 129, 131, ¶ 7, 149 P.3d 753, 755 (2007) (requiring us to make the determination "by comparing the statutory elements of the foreign crime with those in the relevant Arizona statute"). Based on principles of issue preclusion and stare decisis, our prior decision is controlling and precludes Cotten from relitigating this issue.

¶10 For the foregoing reasons, we find no reversible error and we affirm Cotten's convictions and sentences.

PETER B. SWANN, Judge, ANDREW W. GOULD, Judge, concurring.