0819 . . . . ..State v. Smith
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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. MICAH JAQUIM SMITH, Appellant. 1 CA-CR 09-0818 1 CA-CR 09-0819 (Consolidated) DIVISION ONE FILED: 11-30-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court Appeal from the Superior Court in Maricopa County Cause No. CR2008-143682-002 DT; CR2007-170490-001 DT The Honorable Kristin C. Hoffman, Judge AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce Peterson, Office of the Legal Advocate By Frances J. Gray, Deputy Legal Advocate Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 Micah Jaquim Smith appeals from his conviction and sentence for one count of misconduct involving weapons, a class four felony, sentence. and from Smith s the counsel resulting filed a probation brief in violation accordance and with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after searching the entire arguable ground for reversal. record on appeal, he finds no We granted Smith leave to file a supplemental brief in propria persona, but he did not do so. are required to search the record for reversible error. We Finding no such error, we affirm. Facts and Procedural Background 1 ¶2 In the early morning hours of July 12, 2008, the victims 2 in this case were in front of V1 s house drinking beer. At about 4:00 AM, Defendant Smith and approached V1 s house in a dark SUV. two other individuals According to Smith, he was interested in buying marijuana from the victims. In the course of his interaction with the victims, Smith and V3 got into a physical struggle and knocked into a window. The window broke and dark cut 1 them. Smith then returned to the SUV as V1 We view the facts in the light most favorable to sustaining the court s judgment and resolve all inferences against Smith. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998); State v. Moore, 183 Ariz. 183, 186, 901 P.2d 1213, 1216 (App. 1995). 2 There are three victims in this case. The first victim V1 lived in the house where the altercation occurred. The second victim V2 is V1 s nephew, and the third victim V3 is V1 s brother. 2 followed him. He fired the gun two or three times as he was getting into the vehicle. ¶3 Officer incident. Ramirez was near V1 s house during the He heard gunshots and saw muzzle flashes from the passenger-side window of a dark SUV. When the dark SUV passed him on 5th Avenue, he followed it and, after broadcasting the SUV s license plate number, turned on his lights to pull the vehicle over. The vehicle, however, did not stop until Officer Ramirez turned on his siren at the access road to I-17 near Jefferson. Once the vehicle stopped, Officer Ramirez drew his weapon and ordered the suspects to put their hands up and exit the vehicle. The suspects initially complied, but a moment after putting their hands up they drove away. ¶4 the Officer Reiff had heard the three gunshots from across street near the Elks Lodge night club. He also heard Officer Ramirez s reports over the radio requesting assistance in pursuit of the suspect vehicle. Officer Reiff caught sight of the suspect vehicle after it had driven away from Officer Ramirez s stop. continued He joined in pursuit of the vehicle as it northbound on I-17. The dark SUV exited I-17 at Indian School, turned east onto Indian School, and then north onto 35th Avenue. It finally stopped in the parking lot of an apartment complex at Indian School and 35th Avenue. 3 Officers Reiff and Ramirez took Smith, the other passenger, and the pursuing the driver into custody. ¶5 While Officers Reiff and Ramirez were dark SUV, Officer Cunningham and three other off-duty officers approached V1 s house. 3 As they were doing so, Officer Cunningham and the other officers stopped a white SUV that was accelerating down the street. Although the passengers of the white SUV spoke Spanish, and Officer Cunningham did not, he was able to determine that the passengers of the white SUV were victims and the gunshots had been fired by a male in a dark SUV. 4 Officer Cunningham briefly searched the area for shell casings and spoke with V1, remaining with him until a Spanish-speaking officer arrived. ¶6 After taking Smith and the other two individuals in the dark SUV into custody, Officer Ramirez 5 arrived to collect V1 for a one-on-one identification of the suspects. V1 identified Smith stating that s the one that had the gun and took my money. V1 also identified the other two individuals as the men 3 Officer Cunningham and the other off-duty officers were working as security at the Elks Lodge near V1 s house. They heard the gunshots and approached V1 s house on foot to respond. 4 The passengers did not identify Smith by name; however, Smith later admitted that he was the only one carrying a gun. 5 Officer Ramirez is a officer. 4 certified Spanish-speaking who had arrived with Smith in the dark SUV and were present while Smith demanded the money. He told the officer that Smith had taken between $50 and $80 from him. According to V1, Smith also took V2 s cell-phone and, when V3 refused to give Smith money, he and Smith struggled with one another. After this struggle, Smith ran to the SUV, got into the front passenger seat, and the three individuals drove away. V1 remembered that Smith fired the gun two or three times from the passenger window as they left. After the one-on-one, Officer Ramirez returned V1 to his house. 6 ¶7 Smith was charged with two counts of armed robbery, a class two dangerous felony; one count of aggravated assault, a class three dangerous felony; one count of misconduct involving weapons, a class four felony; and one count of unlawful discharge of a firearm, a class six dangerous felony. After a Donald hearing and a settlement conference, neither of which resolved the matter, Smith went to trial. See State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000) (requiring hearing to assess whether a defendant understands the terms of the State s plea offer). 6 Officer Ramirez attempted to locate the other two victims to get more complete statements from them, but he was unable to do so. 5 ¶8 At trial, V1, V2, and V3 testified that Smith was carrying a gun when he approached them and demanded their money. The parties stipulated that Smith was a prohibited possessor pursuant to Arizona 3101(a)(6)(b). 7 Revised Smith had Statutes been ( A.R.S. ) convicted of section a felony 13on January 16, 2008, and his civil right to possess a firearm had not been restored as of July 12, 2008. cross examination, Smith admitted that During both direct and he was a prohibited possessor due to the 2008 felony conviction, he knew he was not supposed to have a gun, and that he was carrying a gun the night of the incident. In addition to testifying that he was carrying the gun, Smith stated that the other two individuals in the SUV did not know he had a gun and that he fired the gun before getting back into the SUV. ¶9 The jury found Smith guilty on count four, misconduct involving weapons. The jury found Smith not guilty on count one 7 The court was not required to engage in a colloquy to ensure that Smith entered into the stipulation knowingly, voluntarily, and intelligently under Boykin v. Alabama, 395 U.S. 238 (1969), or Arizona Rule of Criminal Procedure 17. [S]tipulations to facts combined with not guilty pleas are simply not equivalent to a guilty plea for Boykin purposes, even if the stipulation is to all elements necessary to a conviction . . . . State v. Allen, 223 Ariz. 125, ___, ¶ 14, 220 P.3d 245, 247-48 (2009). And, a colloquy under Rule 17 is not required when a defendant stipulates to facts that constitute elements of a crime, as opposed to stipulating to a prior conviction. Id. at ___, ¶¶ 19-20, 220 P.3d at 249 (stating that reasoning of Morales relates solely to prior convictions and not evidentiary stipulations). 6 and did not return a verdict on counts two, three, and five. Following trial, Smith pled guilty to count two, armed robbery, a class two dangerous felony. The court accepted his plea, finding that it was knowingly, voluntarily, and intelligently made, and also found that Smith was in violation of his probation in CR2007-170490-001. ¶10 Smith was sentenced to a mitigated term of 8 years for count two and the presumptive term of 4.5 years for count four. Both sentences were set to run concurrently. Due to his conviction on count four, the court found that Smith violated his probation. The court sentenced him to the presumptive term of one year to run consecutively to count four. appealed resulting his conviction probation and sentence violation and on count Smith timely four and sentence. We the have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). Disposition ¶11 We have reviewed the entirety of the record and found no meritorious grounds for reversal of Smith s convictions or for modification of the sentences imposed. See Anders, 386 U.S. at 744; Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, counsel s obligations in this appeal have ended subject to the following. 7 Counsel need do no more than inform Smith of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Smith 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. /s/ _____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ___________________________________ DONN KESSLER, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 8
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