State v. Miles

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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, v. MELVIN MILES, JR., ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) DIVISION ONE FILED: 01-05-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0072 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-146295-001 DT The Honorable Rosa Mroz, Judge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 Margaret M. Green, Deputy Public Defender Attorneys for Appellant Phoenix Melvin Miles, Jr. Appellant Walsenburg, CO W I N T H R O P, Judge ¶1 Melvin Miles, Jr. ( Appellant ) appeals his convictions and sentences for attempted robbery 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 she 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 12-4033(A) (Supp. 2008). Finding no reversible error, we affirm Appellant s convictions and sentences. FACTS AND PROCEDURAL HISTORY1 ¶3 On July 23, 2008, around 7:30 p.m., police officers patrolling the area of 19th Street and Van Buren, in Phoenix, noticed an illegally parked car. The officers drove up behind the car and watched as a woman emerged from the car, pulling a 1 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 rolling suitcase. The driver of the car sat alone in the front seat, and a person in the back seat was moving his head back and forth violently, as if head-banging, to rock music. ¶4 The car slowly began moving, and the officers followed as it turned onto Van Buren and then into a convenience store parking lot. Officer Ayala, the officer driving the police car, activated his overhead lights, at which point the rear passenger got out of the car and jogged into the convenience store. ¶5 Officer Ayala approached the driver of the car, while Officer Hughes went into the store to find the man who left the car. as The driver, the victim, appeared nervous and was shaking he fumbled for his driver s license. Eventually, he acknowledged that he was in the area to pick up a particular prostitute. ¶6 At trial, the victim testified that he had been in the area searching for a prostitute named Cookie. While driving around with his window open, Appellant approached the car and offered to take care of him. Appellant brought Cookie to the victim s car, the victim invited Cookie to sit in the front passenger seat, and Appellant opened the back door and sat, uninvited, behind the driver s seat. The victim asked Appellant to get out of the car, but Appellant refused and demanded money. When the victim refused to comply, Appellant began choking him from the back seat. He stopped choking the victim when the 3 police drove by, at which point he instructed the victim to drive into the parking lot of the convenience store. ¶7 When questioned, Appellant told police that Cookie had invited him into the car and that the victim was giving him a ride to the convenience store. ¶8 Appellant was indicted and charged with one count of attempted robbery, a class five felony, in violation of A.R.S. §§ 13-1001 (2001) and 13-1902 (2001), and one count of burglary, a class four felony, in violation of A.R.S. § 13-1506 (Supp. 2008).2 The State alleged aggravating factors and prior felony convictions. An eight-member jury found Appellant guilty as charged, and the State withdrew the allegation of aggravating factors. Before sentencing, Appellant admitted to six prior felony convictions and the court sentenced him to concurrent sentences of six years for the attempted robbery conviction and eleven years for the burglary conviction. Appellant filed a timely notice of appeal. ANALYSIS ¶9 Appellant filed a supplemental issues, which we address in turn. brief raising five We review questions of law and whether a jury instruction properly states the law de novo, State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997) 2 We cite the current version of statutes in which revisions material to this decision have since occurred. 4 no (jury instructions); Arizona Water Co. v. Arizona Corp. Comm n, 217 Ariz. 652, 655-56, ¶ 10, 177 P.3d 1224, 1227-28 (App. 2008) (questions of law), and we review evidentiary issues for an abuse of discretion. State v. Blakley, 204 Ariz. 429, 437, ¶ 34, 65 P.3d 77, 85 (2003). A. ¶10 Denial of Motion for Acquittal Appellant argues that the trial court erred in denying his motion for judgment of acquittal, since the state produced no evidence of intent as required on the burglary charge. Ariz. R. Crim. P. 20. only when there conviction. is Id. See A judgment of acquittal is appropriate no substantial evidence to warrant a Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (citation omitted). ¶11 The crime of burglary in the third degree requires proof of two elements: (1) the Appellant entered or remained unlawfully in or on a nonresidential structure; and (2) the Appellant did so with the intent to commit any theft therein. A.R.S. § 13-1506. Failure to prove either element negates a conviction, and the existence of intent is a question of fact for the jury. See State v. Salcido, 12 Ariz. App. 275, 276, 469 P.2d 841, 842 (1970). 5 ¶12 In this case, the victim testified that Appellant entered the victim s vehicle,3 demanded money from him, and began choking him when he did not comply. testimony of the police This testimony and the officers who were on the scene constitute substantial evidence from which a jury could infer that Appellant entered the victim s car with an intent to steal. We therefore find no reversible error with regard to the trial court s denial of Appellant s Motion for Judgment of Acquittal. B. ¶13 Jury Instruction on Intent Element of Burglary Appellant further argues that the jury instructions failed to impress upon the jury that, for Appellant to be found guilty of requisite attempted intent burglary, prior to he or had to simultaneous have to formed the entering the nonresidential structure in question, and were therefore vague and improper. ¶14 The jury instructions defined with the intent to as meaning that a person s objective is to cause that result or to engage in that conduct. This definition corresponds with the definition of intentionally or with intent to in the Revised Arizona Jury Although the Instructions fact that ( RAJI ) this is a Standard RAJI Criminal definition is 3. not determinative, it is persuasive. 3 A vehicle qualifies as a nonresidential structure under Arizona law. See State v. Harris, 134 Ariz. 287, 288, 655 P.2d 1339, 1340 (App. 1982). 6 ¶15 More important, though, read together, the definition of with intent to and A.R.S. § 13-1506,4 lead to the logical conclusion that, for a burglary to occur, the Appellant had to have been in the process or already formed the intent to commit a theft within the structure. See Bentley v. Building Our Future, 217 Ariz. 265, 270, ¶ 13, 172 P.3d 860, 865 (App. 2007) (when statutory language language without interpretation). is resorting unambiguous, to other we apply methods the of plain statutory Stated differently, the instructions required the jury to find that Appellant entered the victim s car with the intent to commit a theft. The clear implication of this language is that the Appellant had already formed his intent to steal or was simultaneously forming his intent. As discussed above, whether intent existed, then, is a jury determination. ¶16 We find no reversible error with respect to the intent definition of the jury instructions and its application to the burglary charge. C. ¶17 Court s Response to Juror Question Next, Appellant argues that the trial court erred when it instructed the jury to continue deliberations after the jury submitted a question asking, What do we do if we cannot agree? 4 The jury instruction for burglary in the third degree corresponds with A.R.S. § 13-1506 and required the jury to find two things: (1) the Appellant entered or remained unlawfully in or on a nonresidential structure; and (2) the Appellant did so with the intent to commit any theft therein. 7 Appellant asserts that the jury s question was an indication that they had made their own decisions, and they did not know how to apply it on a verdict form that only gave two options[.] We disagree. The jury s question simply asked what the jury was to do in the event they were unable to unanimously agree. question did not indicate that the jury was Their finished deliberating or that they had failed to reach an agreement. Thus, it was not fundamental error for the court, after conferring with counsel for both parties, to respond with the impasse instruction that it did and to refer them to the instruction regarding how to treat separate counts. D. ¶18 Prosecutorial Misconduct Appellant argues that prosecutorial misconduct during the State s closing rebuttal denied Appellant a fair trial. have reviewed the prosecutor s closing statements in We their entirety and in context and find no prosecutorial misconduct, let alone fundamental error. E. ¶19 Perjured Testimony Finally, Appellant argues that inconsistencies in the victim s statements to police and at trial constituted perjured testimony that prejudiced Appellant, denying him a fair trial. Our review of the record reveals no evidence of perjury or that the prosecutor inconsistencies knew in of the any potential victim s 8 perjury. testimony presented Any a credibility determination for the jury. The jury, as trier of fact, is responsible for assessing the credibility of witnesses, and we defer to the jury s credibility determination because of its presence in the courtroom and proximity to the witnesses. State v. Uriarte, 194 Ariz. 275, 283, ¶¶ 41-44, 981 P.2d 575, 583 (App. 1998). F. ¶20 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. ¶21 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). 9 Appellant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. CONCLUSION ¶22 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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