State v. Jackson

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. MICHAEL RYAN JACKSON, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/29/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-1108 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-006701-001 DT The Honorable John R. Hannah, Jr., Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender by Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix I R V I N E, Judge ¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Michael Ryan Jackson ( Jackson ) asks this court to search the record for fundamental error. Jackson was given an opportunity to file a supplemental brief in propria persona, he has not done so. After reviewing the record, we affirm Jackson s conviction and sentence for misconduct involving weapons. FACTS AND PROCEDURAL HISTORY ¶2 The State charged Jackson with misconduct involving weapons, a class four felony. At the close of the evidence, the trial court properly instructed the jury on the elements of the offense. Jackson was convicted as charged. ¶3 The trial court conducted the sentencing hearing in compliance with Jackson s constitutional rights and Rule 26 of the Arizona sentenced Rules Criminal to Jackson of 4.5 Procedure. years The imprisonment trial in court Arizona Department of Corrections with credit for 144 days presentence incarceration. DISCUSSION ¶4 Section Statutes We 9, exercise of the section conviction and jurisdiction Arizona Constitution 12-120.21(A)(1) sentence for pursuant and (2003). We fundamental to Article Arizona review error. See Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). 2 6, Revised Jackson s State v. ¶5 We first address the issues raised by Jackson through his counsel. Jackson raises two issues relating to the grand jury proceeding. At the onset we note that we will not consider Jackson s claims concerning the grand jury on appeal after his conviction. State v. Agnew, 132 Ariz. 567, 573, 647 P.2d 1165, 1171 (App. 1982). Jackson filed a special action seeking relief from the trial court s denial of his motion for a new finding of probable cause. Relief was denied. Grand jury issues are now moot because the trial jury found Jackson guilty beyond a reasonable doubt. ¶6 Jackson also argues that the trial court erred in not allowing his prohibited statements possessor that while he was allowing unaware that statements he was a demonstrating that he had such knowledge. We review the trial court s ruling on the relevance and admissibility of evidence for an abuse of discretion. See State v. Aguilar, 209 Ariz. 40, 49, ¶ 29, 97 P.3d 865, 874 (2004); State v. Jeffrey, 203 Ariz. 111, 114, ¶ 13, 50 P.3d 861, 864 (App. 2002). At trial, Jackson s counsel argued that it was highly relevant whether or not Jackson knew that he should have had a gun or not. Nevertheless, the trial court granted statements that possessor. We the State s he was find no not motion aware error. To to that preclude he support was a a Jackson s prohibited conviction for misconduct involving weapons, the statute merely requires that a 3 defendant knowingly possess. State v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App. 1986). The statute does not require that Jackson know that he was a prohibited possessor. ¶7 Further, Jackson argues that Officer R.D. s testimony, which included a description of his unit-assignments, violated the court s Prosecutorial order and constituted misconduct occurs prosecutorial where the misconduct. prosecutor s statements call to the jury s attention matters it should not consider in reaching its decision, where the prosecutor places the prestige of the government behind its evidence, or where the prosecutor suggests that information not presented to the jury supports the evidence. State v. Newell, 212 Ariz. 389, 402, ¶¶ 60, 62, 132 P.3d 833, 846 (2006) (citations omitted). To prove prosecutorial misconduct, an appellant must show: (1) the state s actions were improper; and (2) a reasonable likelihood exists that the verdict, thereby Montano, 204 (citation misconduct denying Ariz. omitted). 413, We could defendant 427, will ¶ have a 70, affected fair 65 reverse trial. P.3d based the on 61, jury s State 75 v. (2003) prosecutorial misconduct if the conduct is so pronounced and persistent that it permeates the entire atmosphere of the trial. State v. Rosas-Hernandez, 202 Ariz. 212, 218-19, ¶ 23, 42 P.3d 1177, 1183-84 (App. 2002) (citation omitted). 4 ¶8 Here, the State engaged in none of the above behavior. In response to being asked to explain his current duties with the police assigned department, to the Officer violent R.D. crimes responded bureau, that robberies he is unit. We investigate kidnappings, robberies, home invasions, carjackings, stuff like that. Jackson s trial counsel never objected and did not ask for a bench conference out of the jury s presence to discuss the comments in light of the trial court s prior ruling. On appeal, Jackson argues for the first time that the State committed prosecutorial misconduct. Therefore, Jackson s argument is without merit. ¶9 a Counsel for Jackson has advised this court that after diligent search of the entire record, she has found no arguable question of law. The court has read and considered counsel s brief and fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Jackson was represented by counsel at all stages of the proceedings and the sentence imposed was within the statutory limits. We decline to order briefing and we affirm Jackson s conviction and sentence. ¶10 Upon the filing of this decision, defense counsel shall inform Jackson of the status of his appeal and of his 5 future unless, options. upon Defense review, counsel counsel has finds no an further issue obligations appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Jackson shall have thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. On the court s own motion, we extend the time for Jackson to file a pro per motion for reconsideration to thirty days from the date of this decision. CONCLUSION ¶11 Jackson s sentence and conviction is affirmed. /s/ __________________________________ PATRICK IRVINE, Judge CONCURRING: /s/ _____________________________________ JOHN C. GEMMILL, Presiding Judge /s/ __________________________________ JON W. THOMPSON, Judge 6

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