State v. Pina

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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. Supreme Court 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, ) ) ) ) ) ) Appellant. ) ) v. DANIEL S. PINA, DIVISION ONE FILED: 01/19/2010 PHILIP G. URRY,CLERK BY: RWillingham 1 CA-CR 09-0068 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-170470-001 SE The Honorable Connie Contes, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix Daniel S. Pina Appellant Florence W I N T H R O P, Judge ¶1 and Daniel S. Pina ( Appellant ) appeals his convictions sentences for criminal trespass, aggravated assault, and burglary in the third degree. Appellant s counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on appeal and found no arguable question of law. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). This court afforded Appellant the opportunity to file a supplemental brief in propia persona, and he has done so. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (Supp. 2009).1 Finding no reversible error, we affirm Appellant s convictions and sentences. FACTS AND PROCEDURAL HISTORY2 ¶3 Appellant met J.A. in 2001. The two of them had a fling that resulted in the birth of a daughter. After the child was born, J.A. married another man and Appellant saw J.A. 1 We cite the current version of statutes in which revisions material to this decision have since occurred. 2 no We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 only [n]ow and again, when he gave her money for their daughter. ¶4 On October 30, 2007, J.A. lived in a Chandler home with her four children her daughter with Appellant and three children from her now-dissolved marriage. Appellant did not have keys to her home. October 30 and the morning of According to J.A., Between the evening of October 31, J.A. and a new boyfriend, A.G., encountered Appellant three times, resulting in the charges in this case. ¶5 J.A. s Between house 7:00 and and entered 8:00 p.m., uninvited. Appellant J.A. arrived stopped him at from entering her bedroom and called police, at which point Appellant left. p.m. and midnight, Appellant returned to J.A. s home with a friend. He entered Later her that night, bedroom however, while she and between A.G. 10:00 were sleeping shouted, I caught you, I caught you, you cheated. and Appellant had a jack pole in his hands, which he swung around and used to threaten J.A. and A.G. J.A. managed to call the police, and Appellant and his friend left. ¶6 After Appellant left, J.A. noticed that, although A.G. s car was still in the driveway, his car keys were missing. A Mazda that had been parked next to A.G. s car in the driveway was also missing. A.G. s glove compartment was open and his trumpet and backpack were gone. 3 ¶7 3:00 Appellant returned to J.A. s house between 2:00 and a.m., Officer apologized McClain, who to had A.G., and responded returned to the his car earlier keys. call and spoken with Appellant by phone, responded to another telephone call from the house. When he arrived at the house, Appellant was sitting in his employer s tow truck, shaking hands with A.G. Officer McClain initiated a stop. When he searched the car, Officer McClain found a pole for a jack, at which point he arrested Appellant. Police found the missing Mazda in Tempe and A.G. recovered his missing personal items. ¶8 At trial, Appellant claimed that he and J.A. were engaged to be married, but that he suspected she was cheating on him. He went to her home on October 30, hoping to catch her in the act. keys, While leaving her home, he accidentally took A.G. s which he was returning when police stopped him. He testified that he never entered A.G. s car or took anything from it and did not use a jack pole to threaten either J.A. or A.G. ¶9 Appellant was indicted and charged with two counts of burglary in the second degree (Counts 1 and 2), class 3 felonies and domestic violence offenses; one count of aggravated assault (Count 3), also a class 3 felony and domestic violence offense; aggravated assault (Count 4), a class 3 dangerous felony; unlawful use of means of transportation (Count 5), a class 5 felony; and burglary in the third degree (Count 6), a class 4 4 felony. See A.R.S. §§ 13-1203 (2001), -1204 (Supp. 2009), -1506 (Supp. 2009), -1507 (2001), & -1803 (2001). The State alleged aggravating factors and prior felony convictions. On Count 2, the twelve-member jury found Appellant guilty of the lesserincluded offense of criminal trespass. (Supp. 2009). See A.R.S. § 13-1504 The jury also convicted Appellant of both counts of aggravated assault (Counts 3 and 4), and of burglary in the third degree (Count 6). The court found that Appellant had two prior felony offenses and sentenced Appellant to the presumptive term on all four counts - concurrent sentences of 3.75 years for criminal trespass, 11.25 for each aggravated assault conviction, and 10 years for burglary in the third degree, with 435 days of presentence incarceration credit. Appellant filed a timely notice of appeal. ANALYSIS ¶10 Appellant filed a supplemental brief raising several issues, which we address in turn. We review questions of law de novo, Arizona Water Co. v. Arizona Corp. Comm n, 217 Ariz. 652, 656, ¶ 10, evidentiary 177 P.3d issues 1224, for an 1228 abuse (App. of 2008), and discretion. we review State v. Blakley, 204 Ariz. 429, 437, ¶ 34, 65 P.3d 77, 85 (2003). A. ¶11 the Incomplete Police Report Appellant argues that the State s failure to provide defense with a complete police 5 report and mandatory discovery in timely disclosure . . . deprived the Appellant . . . [of] effective assistance of counsel and due process. Regardless of merit, ineffective assistance of trial counsel claims cannot be raised on direct appeal; such claims may only be raised in a Rule 32 proceeding. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). to address Appellant s ineffective Therefore, we decline assistance of counsel argument. ¶12 Appellant further argues that the State s failure to provide the defense with a complete police report deprived him of his due process constitutions. rights under the federal and state During an interview with the county attorney and defense attorney, Officer McClain noticed that a supplement to his police report was missing. Due to computer system glitches at the Chandler Police Department, the supplement was lost. He was able to recover the supplement from his computer system, but the result was delayed disclosure. The court held a hearing on the matter after defense counsel filed a Motion for Sanctions Pursuant to Rule 15.7, counsel acknowledged but that denied this the late motion when disclosure defense was not something intentionally done by the prosecution or the officer. The trial court was willing to grant the defense additional time, if needed, but Appellant was not interested in waiving time towards the last day in which to resolve this matter[.] 6 ¶13 We find no reversible error or deprivation of Appellant s due process rights in the trial court s handling of the State s inadvertent late disclosure. B. ¶14 Miranda Violation Appellant next argues that the trial court erred in admitting statements he made to police prior to receiving his Miranda warnings. Although the trial court did not hold a formal voluntariness hearing, the statements Appellant made to Officer McClain before his arrest were not made in the course of a custodial interrogation, as required by Miranda v. Arizona, 384 U.S. 436, Appellant s telephone. 444 (1966). conversations Appellant Prior to with Officer initiated one his arrest, of the of took place by phone McClain both calls by calling the non-emergency number for the City of Chandler, which patched him through to Officer McClain. Since Appellant was not in the custody of the police officer when he spoke with him by phone and, in fact, voluntarily initiated one of the telephone calls, we do not find reversible error in the trial court s admission of Appellant s pre-Miranda statements to police. C. ¶15 Jury Instructions and Lesser-Included Offenses Finally, Appellant seems to argue that the jury s finding of guilty on the aggravated assault charges (Counts 3 and 4) are inconsistent with its finding of not guilty of a dangerous offense. Further, he seems to argue that the jury 7 should have been instructed to consider simple assault as a lesser-included offense of aggravated assault. ¶16 At trial, during instructions and counsel opportunity the verdict the forms, finalization to the request court of the offered lesser-included jury defense offenses. Defense counsel s failure to request a lesser-included offense instruction or object to the jury instructions related to the aggravated assault charges constitutes a waiver of the argument. See Andrade v. Superior Court, 183 Ariz. 113, 116 n.4, 901 P.2d 461, 464 n.4 (App. 1995). ¶17 As for the separate dangerous offense finding, a finding of guilt as to the aggravated assault charge alone does not include a finding that the offense involved the use of a dangerous (2001) instrument provides for or a deadly additional weapon. penalties Section if the 13-604(P) dangerous nature of the felony is . . . found by the trier of fact. Therefore, [t]he fact that the proof showed the use of a weapon does not satisfy the statutory requirement that the element of the dangerous nature of the felony be charged and be found to exist by the trier of fact. State v. Parker, 128 Ariz. 97, 99, 624 P.2d 294, 296 (1981). As trier of fact, the statutory scheme requires the jury to make a separate finding of dangerousness with respect to the aggravated assault charges. We therefore find no reversible error or inconsistency in the 8 instructions to the jury requiring a separate dangerousness finding on the aggravated assault charges. D. ¶18 We have Remaining Analysis reviewed error and find none. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the sentences were within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the filing of this Arizona Rules of Criminal Procedure. ¶19 After obligations appeal have pertaining ended. to decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a reconsideration or petition for review. 9 pro per motion for CONCLUSION ¶20 Appellant s convictions and sentences are affirmed. ___________/S/_______________ LAWRENCE F. WINTHROP, Judge CONCURRING: _______________/S/_______________ PETER B. SWANN, Presiding Judge ______________/S/________________ MICHAEL J. BROWN, Judge 10

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