State v. Woods

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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. VERNON EARL WOODS, ) Appellee, ) ) ) ) ) ) Appellant. ) ) ) DIVISION ONE FILED: 01/05/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0254 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-157571-001 SE The Honorable Silvia R. Arellano, 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 Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Judge ¶1 and Vernon Earl Woods ( Appellant ) appeals his conviction sentence for misconduct involving weapons. 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). Although this court granted Appellant the opportunity to file a supplemental brief in propia persona, he has not 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 conviction and sentence. FACTS AND PROCEDURAL HISTORY1 ¶3 On September 13, 2008, Mesa Police Officer Connolly followed Appellant s car because it was similar in description 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 to a vehicle involved in an armed robbery. the silver Dodge truck to an address The officer followed in Mesa. When the vehicle s five occupants exited the car, the officer asked them to sit on the curb so he could speak with them. While the occupants complied, Officer Connolly looked through the rolled up windows of the vehicle and saw a handgun on the floorboard partially underneath the driver s seat. He asked the vehicle s occupants who the gun belonged to, and Appellant, who was also the vehicle s driver, claimed the weapon. Appellant further acknowledged that he had previously been arrested and charged with a felony. Appellant gave the officer permission to retrieve the loaded gun, a .38 caliber Bensa handgun. ¶4 When questioned, after Officer Connolly read him his Miranda rights, Appellant claimed to be the owner of the gun and to have obtained location. ¶5 it from an unknown person at an unknown At that point, the officer arrested Appellant. Later, Officer Dunleavy, a detective, questioned Appellant and learned that he obtained the gun from a guy named Jay[,] and that the gun was more than likely stolen. ¶6 At trial, Appellant s parole officer testified that Appellant was on felony parole on September 13, 2008, and that he was not permitted to possess a firearm at that time. Appellant s father testified that the gun actually belonged to 3 him; he purchased it for eighty dollars from a man at a gas station who was asking for money to feed his family. Appellant also took the stand and testified that, when officers asked, he claimed the weapon as his own because he thought it belonged to his younger brother, a new father. He did not want his brother to get in trouble. ¶7 Appellant was charged by direct complaint, followed by indictment, with misconduct involving weapons, a class 4 felony, in violation of A.R.S. § 13-3102 (Supp. 2008),2 and theft, a class 6 felony, in violation of A.R.S. § 13-1802 (Supp. 2008). The State conviction. alleged aggravating factors and a prior felony An eight-member jury convicted Appellant of the weapons charge, but acquitted him of theft. The State proved the prior felony conviction at trial and did not elect to hold a hearing on additional aggravators. The court sentenced Appellant to the presumptive term of 4.5 years, with 141 days of presentence incarceration credit. Appellant filed a timely notice of appeal. ANALYSIS ¶8 Although Appellant did not file a supplemental brief, he requested that counsel raise three issues on his behalf. We 2 no We cite the current version of statutes in which revisions material to this decision have since occurred. 4 review questions of law de novo, Arizona Water Co. v. Arizona Corp. Comm n, 217 Ariz. 652, 655-56, ¶ 10, 177 P.3d 1224, 122728 (App. 2008), 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. ¶9 Search and Seizure of the Gun Appellant questions whether the search of the truck and seizure of the gun was wrongful once the Mesa officers realized that the truck and none of the occupants were involved in whatever caused the Tempe police alert. ¶10 Officer Connolly testified that once the five occupants of the truck had exited the vehicle, he checked the truck for additional occupants. While looking through the rolled up windows of the truck, he noticed the gun. In the interest Officer of officer safety, it was reasonable for Connolly to peer through the windows of the vehicle to ensure that all of the occupants had exited. See Terry v. Ohio, 392 U.S. 1, 23-24 (1968); State v. Garcia Garcia, 169 Ariz. 530, 531-32, 821 P.2d 191, 192-93 (App. 1991) ( any reasonable fear for safety is enough to warrant a search under Terry ). In peering through the windows of the truck, the officer saw, in plain view, the weapon at issue in this case. A police officer is not required to close his eyes to evidence which is 5 in plain view[,] so long as the officer has prior justification to be in a position to view the evidence, the discovery of the object was inadvertent, and its evidentiary value is immediately apparent to the officer. State v. Kelly, 130 Ariz. 375, 378, 636 P.2d 153, 156 (App. 1981) (citations omitted). ¶11 After viewing the weapon, Officer Connolly questioned the group to determine who the gun belonged to and retrieved it with Appellant s consent. ¶12 We find no reversible error with respect to the search of the truck and seizure of the weapon. B. ¶13 Appellant Father s Testimony next conviction for knowingly argues that there could be no possessing the gun because his father . . . testified under oath that he was the one who put and left the gun in the truck, that he did not tell anyone in the family that the gun was there and had forgotten about it. ¶14 While it is true that Appellant s father testified as Appellant asserts, Appellant made statements to police that were at odds with his father s testimony. Appellant told police that the gun belonged to him and that he had acquired the gun himself from a man named Jay. Inconsistent witness statements present a credibility determination for the jury. The jury, as trier of fact, is responsible for assessing the credibility of witnesses, 6 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). C. ¶15 Appellant s Telephone Call from Jail Finally, Appellant expresses concern about the propriety of [the State] using his telephone call from jail, in which he never affirmatively states, agrees or admits that he carried or possessed a weapon[.] ¶16 The conversation During the call at between portion issue was Appellant, of the his call that a three-way brother, the telephone and court a woman. admitted as Exhibit 7, Appellant discussed his arrest and the weapon with the woman. She asked how it happened, to which Appellant said, [I]t ain t like I called the police and said come over here and check the damn truck, I have a big pistol. She also asked whether he had learned his lesson and was planning to carry again, to which Appellant responded, [H]ell no. ¶17 Appellant The when telephone he took call the was stand properly in his used own to impeach defense. The recording constituted a party admission under Arizona Rule of Evidence 801(d)(2)(A). Party admissions require no external indicia of reliability and we find no abuse of discretion or 7 reversible error in its admission. See State v. Garza, 216 Ariz. 56, 66, ¶ 41, 163 P.3d 1006, 1016 (2007). 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. 8 pro per motion for CONCLUSION ¶20 Appellant s conviction and sentence is affirmed. ___________/S/_______________ LAWRENCE F. WINTHROP, Judge CONCURRING: _______________/S/_______________ PETER B. SWANN, Presiding Judge ______________/S/________________ MICHAEL J. BROWN, Judge 9

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