State v. Anderson

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.S 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. TRAVIS JOHN ANDERSON, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/19/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0291 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-169717-001 DT The Honorable Arthur T. Anderson, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Peg Green, Deputy Public Defender Attorney for Appellant Phoenix K E S S L E R, Judge ¶1 Defendant-Appellant Travis John Anderson appeals his conviction of Count 1: Aggravated Assault and Count 3: Assault. 1 Counsel for Anderson filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). counsel requests that fundamental error. Finding no arguable issues to raise, this Court search the record for Although we granted Anderson leave to file a supplemental brief in propria persona, he has declined to do so. For the reasons that follow, we affirm Anderson s conviction and sentence. FACTUAL AND PROCEDURAL HISTORY ¶2 counts In November 2008, the State charged Anderson with two of assault. aggravated assault and one count of misdemeanor The superior court dismissed one of the aggravated assault charges at the preliminary hearing and the defendant pled not guilty to the other two counts. The State filed an allegation alleging of aggravating offenses were domestic presence of child. aggravated a assault circumstances violence On count the was offenses State s misdemeanor. 1 Count 2 of the complaint was dismissed. 2 committed motion, designated that as the a in the the remaining class one ¶3 Evidence at trial revealed responded to a domestic disturbance. officer to arrive on the scene. that Phoenix police Officer M. was the first Upon arrival, the officer noticed that one victim, L., had red marks on her face and a scratch on her nose. The officer saw the other alleged victims but did not observe any injuries. ¶4 L. testified that she and her immediate family had been living with Anderson, her brother, for approximately five months prior to the incident. On the night of the incident, Anderson argued with L. and told her she had to move out within two weeks. L. told Anderson that she would stop making financial contributions to the household because she would have to leave. Anderson then insisted that L. leave immediately. L. attempted to call her husband on the defendant s telephone, but Anderson cut the telephone cord. L. s son, A., brought L. another phone, and Anderson began hitting L. during a struggle for that phone. A. attempted to intervene, and Anderson turned and repeatedly struck A. in the head. L. testified that her injuries included a scratch to the face, ringing in her ears, and bruising on her arms. A. was injured in the head and needed ice to treat it. ¶5 Anderson presented a justification defense based on his reasonable use of force to protect his property. Anderson testified incident that he leases the 3 property where the occurred. Anderson presented testimony that L. had no contract or lease agreement allowing her to be in his home. Anderson asked the victims repeatedly to leave his home and they refused. Anderson then used force to remove the victims. ¶6 The superior court found Anderson guilty and sentenced him to one year of unsupervised probation and domestic violence classes. Anderson timely filed a notice of appeal twenty days after the superior court sentenced him, which is within the time limit of Arizona Rule of Criminal Procedure 31.3. This Court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1)(2003) and 13-4033(A)(1)(Supp. 2009). ANALYSIS ¶7 This Court fundamental error. has reviewed the entire record for After careful review of the record, we find no meritorious grounds for reversal of Anderson s conviction or modification of the sentence imposed. The evidence supports the verdict, Anderson was present and represented by counsel at all stages of the trial, and the trial was conducted in accordance with the Arizona Rules of Criminal Procedure. ¶8 We find that trial to the bench rather than a jury was proper because Anderson did not have the right to a jury trial for two misdemeanors. jury trial for Defendants do not have the right to a misdemeanor assault 4 charges. Phoenix City Prosecutor s Office v. Klausner, 211 Ariz. 177, 179, ¶¶ 7-8, 118 P.3d 1141, 1143 (App. 2005). The fact that Anderson was charged with two separate counts which could have resulted in over six months total incarceration if consecutive sentences imposed does not entitle him to a jury trial. had been Bruce v. State, 126 Ariz. 271, 272-73, 614 P.2d 813, 814-15 (1980). The penalty resulting from the State s decision to charge this case as a domestic violence offense does not create a right to a jury trial. State v. Willis, 218 Ariz. 8, 12, ¶ 16, 178 P.3d 480, 484 (App. 2008). ¶9 At sentencing, the superior court stated on the record the materials considered in sentencing, permitted Anderson to speak, and imposed a sentence which was within the statutory limit. A.R.S. § 13-902(A)(5) (Supp. 2009). Accordingly, we affirm Anderson s conviction and sentence. ¶10 Upon the filing of this decision, counsel shall inform Anderson of the status of the appeal and his options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue 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, 156-57 (1984). Upon the Court s own motion, Anderson shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. 5 CONCLUSION ¶11 For the foregoing reasons, we affirm conviction and sentence. /s/ DONN KESSLER, Judge CONCURRING: /s/ PHILIP HALL, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 6 Anderson s

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