State v. Smedema

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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, ) ) v. ) ) THOMAS JOHN SMEDEMA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 01/14/2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0083 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-132352-001 DT The Honorable John R. Hannah, Jr., Judge AFFIRMED Terry Goddard, Arizona 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 Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Thomas John Smedema ( defendant ) timely appeals his conviction for criminal trespass in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1504 (2009).1 Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has advised that he has thoroughly searched question of law. Court to the record and found no arguable On behalf of his client, counsel asks this consider whether there was sufficient evidence of defendant s guilt and of an historical prior felony conviction.2 We also review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona, but he has not done so. On appeal, we view the to evidence conviction. in the light most favorable sustaining the State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). 1 We cite to the current version of the applicable statute because no revisions material to this decision have occurred. 2 Although defense counsel also mentions proceedings regarding a suppression motion, he assigns no error to the court s ruling, and we find no fundamental error. Similarly, counsel mentions the prosecutor s use of a peremptory strike to remove a minority juror from the venire, but develops no argument on that point. The record shows the trial judge considered Defendant s objection, but found the defense had failed to make a prima facie showing of discrimination. See State v. Canez, 202 Ariz. 133, 146, ¶ 23, 42 P.3d 564, 577 (2002). That determination is supported by the record. 2 FACTS AND PROCEDURAL BACKGROUND ¶2 On May 23, 2008, a house in Phoenix stood vacant with a sign indicating it was for sale. The owner had not given permission for defendant to be on the property. Officer M.P. received a call that a suspicious person was at the house. Officer M.P. and his partner arrived and found a person, later identified as defendant, inside the house. Officer M.P. twice announced himself as an officer and ordered defendant outside. Officer M.P. cuffed defendant and patted him down for weapons, then sat him near the back of the house while other officers checked the house. Defendant Officer M.P. did not read Miranda warnings. voluntarily told Officer M.P. he was in the neighborhood, saw a vacant house and entered to see what he could find. Defendant also said he did not know the owner or have permission to be on the premises. ¶3 After rested. Officer M.P. testified at trial, the State Defendant moved for a judgment of acquittal pursuant to Arizona Rule of Criminal Procedure ( Rule ) 20. The motion was denied. ¶4 The defense presented two witnesses, including defendant. Defendant testified he was stopped by two people on the who street conversation, asked one of for the a cigarette. persons 3 During allegedly the pointed ensuing down the street at the house, said they were moving, and gave defendant permission go inside and take anything left there. ¶5 After defendant s testimony, the defense rested and renewed its request for a judgment of acquittal. was denied. The jury found defendant The request guilty trespass in the first degree, a class 6 felony. of criminal Defendant was found to have one historical prior, and he was sentenced to a slightly mitigated term of 1.25 years, with two days presentence incarceration credit. DISCUSSION ¶6 We have considered the brief submitted counsel and have reviewed the entire record. Ariz. at 300, 451 P.2d at 881. by defense See Leon, 104 We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Defendant was present at all critical phases of the proceedings and represented by counsel. The jury was properly impaneled and instructed. At the conclusion of trial, the jury instructions were consistent with the charged offense. The record reflects no irregularity in the deliberation process. 1. ¶7 motion. Evidence of Guilt The trial court properly denied defendant s Rule 20 A judgment of acquittal is appropriate only when there 4 is no substantial evidence to warrant a conviction. Crim. P. 20. Substantial evidence is such Ariz. R. 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 insufficiency of omitted). the Reversible error occurs where evidence only based there on is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶8 The State presented substantial Officer M.P. saw defendant in the house. given defendant permission to be there. evidence of guilt. The owner had not According to Officer M.P., defendant said he entered the property to see what he could find permission and to that be he did not there. know Although the owner defendant or have testified differently at trial, a reasonable juror could have found him guilty based on the State s evidence. 2. ¶9 Prior Felony Convictions The convictions.3 State alleged defendant had three prior felony Immediately prior to sentencing, the court held a 3 CR 99-91315, possession of dangerous drugs, a class 4 felony, committed September 26, 1997, for which defendant was convicted May 26, 1999; CR 99-90445, possession of dangerous drugs, a class 4 felony, committed May 29, 1998, for which 5 trial regarding the priors. At that proceeding, defendant argued: (1) the fingerprint-identification method used to link him to the prior convictions deviated from accepted scientific procedures, (2) it was inappropriate for the trial court to take judicial notice of an uncertified minute entry,4 and (3) the 1997 minute entry was inadmissible hearsay because it was not certified. a. Fingerprint Process ¶10 A trial court s decision regarding the admission of evidence will not be overturned absent discretion and resulting prejudice. a clear abuse of Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 37, 800 P.2d 20, 24 (App. 1990) (citation omitted). Generally, a trial court abuses its discretion where an error of law is committed in reaching its defendant was convicted May 26, 1999; and CR 97-94638, endangerment, a class 6 felony, committed October 21, 1997, for which defendant was convicted November 11, 1997. We note a minor discrepancy between the minute entry from the trial on priors and the oral pronouncement regarding prior convictions. When such a discrepancy is found, a reviewing court must try to ascertain the trial court s intent by reference to the record. State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992) (citation omitted). The minute entry states the date of conviction in CR 99-90455 is 05/26/98 . During trial, however, the date of conviction was stated as May 26, 1999. The certified minute entry admitted at trial lists a conviction date of May 26, 1999. The minute entry from the trial on priors should therefore be corrected. 4 At trial, defendant also objected to the 1999 minute entries, asserting they were not certified copies. The State, however, demonstrated those minute entries were certified, but admitted the 1997 minute entry was not. 6 decision or the record fails to provide substantial support for the court s decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3, 82 P.3d 369, 370 (App. 2004) (citation omitted). ¶11 According to Defendant, the fingerprint identification method was tainted by suggestibility because it allowed a fingerprint technician to make a tentative identification before passing it along to a scientist for corroboration. The State presented extensive evidence regarding the process used and the identifying scientist s experience and training with fingerprints, including twenty-five years gathering fingerprints and seven defendant s years identifying assertion that them. the The process was expert refuted tainted, stating: [I]f I make a mistake and misidentify someone, I m basically out the door, my career is shot. someone else said. So I don t really care what I review the entire comparison in my own mind to make my own decision on it, and that he had refused on prior occasions to verify fingerprints. The record provides substantial acceptance support for the court s of the fingerprint evidence. b. ¶12 Admissibility of Minute Entries Two of the minute convictions were certified. entries establishing two prior Defendant objected when the trial court took judicial notice of an uncertified, but signed, minute 7 entry from the Maricopa County Superior Court that established a third prior felony conviction. ¶13 The superior court may properly take judicial notice of its own records. State v. Camino, 118 Ariz. 89, 90, 574 P.2d 1308, 1309 (App. 1977). conclusively established. shall instruct the judicially noticed. ) Any fact judicially noticed is See Ariz. R. Evid. 201(g) ( The court jury to accept as conclusive any fact Because it was proper for the court to take judicial notice of the uncertified minute entry, and the State s witnesses tied the fingerprint on that minute entry to defendant, defendant the was third felony properly conviction sentenced with was established, an historical and prior felony. CONCLUSION ¶14 We affirm defendant s conviction and sentence. Counsel s obligations pertaining to defendant s representation in this appeal have ended. Counsel need do nothing more than inform defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, defendant shall have 8 thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ SHELDON W. WEISBERG, Judge 9

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