State v. Almas

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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 DIVISION ONE FILED: 12/02/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ATHAR ALMAS, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 10-0130 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-179796-001DT The Honorable Janet E. Barton, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Almas appeals the Motion to Vacate Judgment. Superior Court s denial of her Almas counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Almas was afforded the opportunity to file supplemental brief in propria persona but did not do so. a See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 therefrom We view the in the light convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 Almas was charged with one count of aggravated assault, a class three dangerous felony. ¶4 According to the evidence presented at trial by the State, the victim, J.S., was eating breakfast at Tumbleweed, a homeless shelter, when Almas asked him to charge her cell phone. J.S. plugged the phone in and went outside to talk to a friend. When Almas returned, she could not find her phone. furious and accused J.S. of stealing her phone. Tiny also questioned J.S. about the phone. Almas was Almas friend The three of them argued for approximately twenty to thirty minutes. ¶5 J.S. then walked outside and felt a sharp pain in his 2 back. He turned around and saw Almas holding a knife, asking, Where s my phone? J.S. testified that Almas then forced him to get on a bus with her to go to another homeless shelter. While on the bus, J.S. saw Almas put the knife in her backpack. J.S. then decided to take the backpack. The two struggled over possession of the backpack, but J.S. eventually gained control over it. J.S. then got off the bus and ran to the State Capitol Building where he explained what had happened to the security guard. Unbeknownst to J.S., Almas followed him into the building, grabbed her backpack, and ran out. ¶6 Shortly afterward, the Capitol Police Department and the Phoenix Fire Department arrived and saw a six-inch cut on J.S. back. One of the officers saw Almas in the area and J.S. positively identified her as his attacker. ¶7 trial. Almas offered conflicting testimony in her defense at She testified that she loaned her phone to J.S. at nine o clock in the morning because he wanted to use it to take a picture. She stated that at seven o clock the next morning she met J.S. in the library, but he did not have her phone so she contacted the police. find her phone. The police searched J.S., but could not Almas and J.S. went with the police back to Tumbleweed to search for her phone, but it was not found there. ¶8 After the police left, Almas took the bus alone to another homeless shelter. She got off that bus and met up with 3 two of her friends, T.P. and K.G. boarded another bus. The three of them then Almas stated that after they got off the bus T.P. and K.G. walked a different way to get food. Almas said that J.S. was not on the bus with them. ¶9 Almas also testified that shortly after T.P. and K.G. left, someone came up behind her and took her backpack. She ran after the suspect and followed him into the Capitol building where she realized it was J.S. Almas maintained that she did not stab J.S. ¶10 A three-day jury trial began on August 26, 2009. jury found Almas guilty of the charged offense. sentenced Almas to a mitigated five-year The Judge Barton prison term and credited her with fifty-three days of pre-sentence incarceration time. Almas filed an appeal. In a memorandum decision filed June 3, 2010, this court affirmed the conviction and sentence of the trial court. State v. Almas, 1 CA-CR 09-0859 (Ariz. App. June 3, 2010) (mem. decision). ¶11 Vacate Meanwhile, after sentencing, Almas filed a Motion to Judgment, citing newly discovered evidence. In an affidavit from K.G., K.G. stated that Almas called her to say that her phone was stolen and that she was at Tumbleweed with J.S. K.G. also stated that on the day in question, October 28, 2008, she boarded the DASH bus at central station with T.P and Almas, coming from the ASU library. 4 She did not see J.S. on the bus. before K.G. stated that she got off the bus with T.P. one stop Almas, shelter. and the two of them walked toward the CASS K.G. was never contacted by either State or defense counsel, and only spoke with defense counsel on September 21, 2009 after being contacted by Almas friend Pierre. ¶12 Judge Barton denied the motion and Almas filed a timely appeal. DISCUSSION ¶13 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. Whether to grant a new trial is a decision within the sound discretion of the trial judge, and we will not reverse that decision unless the appellant can affirmatively show that the trial judge abused his discretion. State v. Mann, 117 Ariz. 517, 520, 573 P.2d 917, 920 (App. 1977) (citing State v. Scott, 113 Ariz. 423, 426, 555 P.2d 1117, 1120 (1976)). We find no abuse of discretion by Judge Barton in denying the motion. ¶14 According to Arizona Rule of Criminal Procedure 24.2(a)(2), a defendant is entitled to relief on the basis of newly discovered material facts. Newly discovered material facts exist if, (1) the newly discovered material facts probably would have changed the verdict or sentence, (2) the newly discovered material facts were discovered after the trial, (3) 5 the defendant exercised due diligence in securing the newly discovered material facts, and (4) the newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines critical testimony and probably would have changed the verdict. Ariz. R. Crim. P. 32.1(e). Almas failed to prove these elements by a preponderance of the evidence. Ariz. 487, defendant 489, has preponderance ¶ the of 7, 4 P.3d burden the See State v. Saenz, 197 1030, 1032 of proving the for post-conviction evidence all (App. 2000) allegations (the by a relief claims). ¶15 The newly discovered evidence at issue in this case is the testimony of K.G. Almas states that she had no means of finding K.G before trial because she did not know her last name or where she lived, and therefore, she was unable to locate K.G. However, K.G. s affidavit states that on the day in question Almas called K.G. to tell her that her phone had been stolen. Approximately three weeks after the trial, Almas friend Pierre was able to locate K.G. Based on the foregoing, we find that the trial court did not abuse its discretion in finding that Defendant did testimony. not exercise due diligence in securing K.G. s [W]here a defendant knows of the existence and identity of a witness before trial and makes no effort to obtain the witness testimony, such testimony 6 will not ordinarily justify a new trial. (citations omitted). Id. at 491, ¶ 14, 4 P.3d at 1034 Therefore, we affirm the denial of Almas Motion to Vacate Judgment.1 ¶16 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Almas of the disposition of the appeal and her future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Almas has thirty days from the date of this decision in which to proceed, if she desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶17 The denial of Almas Motion to Vacate Judgment is affirmed. ___/s/____________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: __/s/____________________________ PATRICIA K. NORRIS, Judge __/s/____________________________ MAURICE PORTLEY, Judge 1 Because we are affirming the trial court s ruling regarding lack of diligence in obtaining the newly discovered evidence, we need not address the trial court s rulings on the other elements required to vacate judgment. 7

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