STATE v. MOHR

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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. KELLY J. MOHR, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 09/11/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 11-0291 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-135089-001 DT The Honorable Arthur T. Anderson, Judge AFFIRMED Thomas C. Horne, 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 P O R T L E Y, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Kelly J. Mohr has advised us that, after searching the entire record, he has been unable to discover any arguable questions of law. Defendant, however, has asked counsel to raise a number of specific issues on appeal. For the following reasons, we affirm. FACTS 1 ¶2 early Police responded to a convenience store parking lot on July individuals 6, after receiving selling were 2010, items out of a complaint their that parked car. Defendant was sitting in the driver s seat and consented to the search of the car. The female, who was sitting in the passenger seat, produced a key to the trunk, 2 where the officers found computer parts identical wallets, bags Defendant admitted to subsequently and charged software, of jewelry, being with multiple a being and convicted a identical a purses, modified felon, prohibited rifle. and possessor was in possession of a prohibited weapon. 1 We review the facts the verdict. State 1185, 1189 (1989). 2 There was no key in had been manipulating Honda. in the light most favorable to sustaining v. Guerra, 161 Ariz. 289, 293, 778 P.2d the ignition; Defendant explained that he exposed wires in order to operate the 1994 2 ¶3 Defendant was tried in absentia and found guilty of two counts of misconduct involving weapons. that he had five felony convictions The jury also found in addition to the conviction used to prove that he was a prohibited possessor. Defendant was subsequently sentenced to eleven years in prison for each count, to run concurrently, and received credit for 282 days of presentence incarceration. ¶4 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (West 2012). DISCUSSION ¶5 Defendant raises the following issues on appeal: (1) the evidence was insufficient to sustain the convictions; (2) the court erred by determining that Defendant bore the burden to prove that his right to possess a firearm had been restored; (3) the court erred by refusing to recess the trial after Defendant was apprehended; (4) the court erred by overruling Defendant s objection to the State s prosecutorial misconduct. 3 rebuttal closing argument; and (5) We will address each in turn. 3 Defendant has also asked his appellate counsel to raise ineffective assistance of counsel on his behalf. Such claims, however, are to be brought in Rule 32 [post-conviction relief] proceedings. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Accordingly, we will not address the argument in this direct appeal. See id. 3 Sufficiency of the Evidence ¶6 At the close of the State s case, Defendant unsuccessfully moved for a judgment of acquittal pursuant to Arizona Rule of Criminal Procedure ( Rule ) 20. denial of a Rule 20 motion de novo. We review the State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (citation omitted). The motion must be denied if reasonable divergent inferences from the evidence. Ariz. 1, 4, 859 P.2d 111, 114 (1993). jurors can draw State v. Landrigan, 176 Thus, we will affirm the ruling unless no substantial evidence supports the conviction. State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005). Substantial evidence consists of circumstantial or direct proof that reasonable persons could accept as adequate and sufficient to support a conclusion guilt beyond a reasonable doubt. of [the] defendant s Id. (citation and internal quotation marks omitted). ¶7 Section 13-3102(A)(3) (West 2012) 4 states that it is unlawful to possess [a] rifle with a barrel length of less than sixteen inches . . . or any firearm that is made from a rifle or shotgun and that, as modified, has an overall length of less than twenty-six inches. (defining prohibited A.R.S. § 13-3101(A)(8)(iv) (West 2012) weapon ). 4 The State therefore had to We cite the current version of an applicable statute if no revisions material to this decision have occurred since the offense. 4 prove that Defendant knowingly possessed a weapon that satisfied at least one of the definitions. A.R.S. § 13-3102(A)(3). In addition, because the rifle was discovered in the trunk of the car, the State had to show that it was found in a place under the defendant's dominion or control and under circumstances from which it can be reasonably inferred that the defendant actual knowledge of the existence of the [rifle]. had State v. Cox, 214 Ariz. 518, 520, ¶ 10, 155 P.3d 357, 359 (App. 2007) (citation and internal quotation marks omitted), aff'd, 217 Ariz. 353, 174 P.3d 265 (2007); see also A.R.S. § 13-105(34) (West 2012) (defining constructive possession as dominion or control over an item); State v. Carroll, 111 Ariz. 216, 218, 526 P.2d 1238, possession is Defendant knew modifications, Ariz. 303, 1240 not (1974) exclusive that the however, 311-12, (citation ¶ and gun is 32, may was be P.2d Whether because State 37, (constructive shared). illegal irrelevant. 965 omitted) v. 45-46 of its Young, 192 (App. 1998) (knowledge that gun s specific length violates the law is not an element of the offense). ¶8 At trial, the rifle was admitted as an exhibit, and the officer who measured the rifle testified that the handle had been sawn off and that the twenty-one-inch gun had a ten-inch barrel. Consequently, there was sufficient evidence demonstrate that the confiscated rifle was a prohibited weapon. 5 to ¶9 The State also presented knowingly possessed the rifle. that Defendant admitted to owned selling the items evidence that Defendant The arresting officers testified car and at the was the parking driver; lot that before he they arrived; and that all of the merchandise was located in the trunk. As a result, there was evidence from which reasonable jurors could conclude that Defendant knew about and had access to the rifle in the trunk of his car. 5 Consequently, there was sufficient evidence to allow the case to go to the jury so that it could determine whether the State had proven its case beyond a reasonable doubt. ¶10 There was also sufficient evidence to allow reasonable jurors to conclude that Defendant was a prohibited possessor. See A.R.S. § 13-3102(A)(4) (West 2012). certified criminal history records and The State presented the testimony of the Arizona Department of Correction s records custodian 6 to show that he was a convicted felon who was prohibited from possessing 5 Both knowledge and possession may be established by circumstantial evidence, State v. Hull, 15 Ariz. App. 134, 135, 486 P.2d 814, 815 (1971) (citation omitted), which is the proof of a fact from which the existence of another fact may be inferred. See id.; see also State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993) ( Arizona law makes no distinction between circumstantial and direct evidence. ) (citation omitted). 6 The court granted Defendant s motion to sanitize the 1989 felony conviction. The court also precluded evidence of Defendant s other felony convictions and evidence demonstrating that he was ineligible even to apply for restoration at the time of the arrest. 6 any firearm. See A.R.S. § 13-3101(A)(7)(b) (West 2012). And, the arresting officers testified that Defendant admitted he was a convicted felon after they found the rifle. evidence supports jury s verdict. the denial of the Rule Consequently, the 20 motion and the Accordingly, we find no error. Restoration of the Right to Possess a Firearm ¶11 Defendant next argues that the court erred when it determined that the State was not required to prove that his right to possess a firearm had not been restored. ruling de novo because it involves statutory We review the interpretation. State v. Kelly, 210 Ariz. 460, 461, ¶ 3, 112 P.3d 682, 683 (App. 2005) (citation omitted). ¶12 Despite Defendant s argument, in Kelly we held that restoration of the right is not an element of the offense, but an exception or an affirmative defense. P.3d at 685. possessor] Accordingly, a defendant [who is a prohibited bears the burden of proving possess a firearm has been restored. at 684. Id. at 463, ¶ 11, 112 his or her right to Id. at 462, ¶ 6, 112 P.3d As a result, the court did not err. Right to be Present at Trial ¶13 advised At the that if final he pretrial did not conference, appear for jury Defendant was selection the following day, a warrant would be issued for his arrest and he could be tried in absentia. Defendant did not appear, a warrant 7 was issued, and the trial proceeded in his absence. Defendant was apprehended before the trial concluded. He unsuccessfully asked allow the court to continue the trial to him to be present. ¶14 Defendant argues that the court erred when it denied his request. discretion. We review the court s ruling for an abuse of State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App. 1996). ¶15 The right to attend and to be present at trial is not absolute, and may be waived. See State v. Levato, 186 Ariz. 441, 443-44, 924 P.2d 445, 447-48 (1996) (citations omitted) (right to be present protected under U.S. Const. amends. V, VI, XIV; Ariz. Const. art. II, § 24; and Ariz. R. Crim. P. Rule 19.2). In fact, Rule 9.1 allows a court to infer that a defendant [has] waive[d] the right to be present at trial if the defendant s absence is voluntary. ¶16 Here, Defendant had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward should he or she fail to appear. Id. in his or her absence Moreover, there was no information that Defendant s absence was involuntary that he did not attend the trial because he had been hospitalized or arrested. See State v. Bohn, 116 Ariz. 500, 503, 570 P.2d 187, 190 (1977) (citations omitted) (pursuant to Rule 9.1, court may 8 presume a defendant's absence is voluntary, and the burden is on the defendant to demonstrate otherwise ); State v. Fristoe, 135 Ariz. 25, 34, 658 P.2d 825, 834 (App. 1982) (due process does not require court to hold voluntariness of unless defendant rebuts Rule 9.1 inference). absence hearing Consequently, the court did not abuse its discretion by determining that Defendant had voluntarily absented himself from trial. ¶17 On the last day of trial, the defense advised the court off the record that Defendant had been apprehended and was in the county jail s intake system. Later that morning after the State and defense rested, the final instructions were read, and the jury was released for lunch the court Defendant s earlier request to be present for trial. addressed The court confirmed that Defendant had been apprehended the previous night after a barricade situation. The court also learned that he was hospitalized after being shot with a bean-bag pellet, that he was being processed in the jail s intake system, and that it would be twelve to sixteen hours before he could speak with his lawyer. As a result, the court determined that Defendant was not present and had not voluntarily returned to participate in the proceedings. Moreover, given the fact that the trial had been completed during his voluntary absence, the court did not abuse its discretion by denying the request for a mistrial or continuance. 9 Shifting Burden of Proof ¶18 Defendant argues that the court should have sustained his objection when the prosecutor improperly shifted the burden of proof to Defendant during his rebuttal closing argument. He complains that, in response to the defense argument that the evidence showed he did not know the weapon was in the trunk, the prosecutor argued that the jury ha[d] Defendant was unaware of the weapon. 7 ruling for an abuse of discretion. no evidence that We review the court s See Landrigan, 176 Ariz. at 4, 859 P.2d at 114 (citation omitted). ¶19 In overruling Defendant s objection, the court observed that the prosecutor was merely pointing out that some of the [defense counsel s] argument . . . was not reflected in any evidence that was presented in the record. And, as we have stated: When a prosecutor comments on a defendant's failure to present evidence to support his or her theory of the case, it is neither improper nor shifts the burden of proof to the defendant so long as such comments are not intended to direct the jury's attention to the defendant's failure to testify. State v. Sarullo, 219 Ariz. 431, 437, ¶ 24, 199 P.3d 686, 692 (App. 2008) intended to (citation rebut omitted). the argument 7 Here, that the the statements evidence were showed Defense counsel had asserted throughout his closing argument that [Defendant] did not know that gun was in the trunk of the car and [t]he evidence show[ed] he didn t. 10 Defendant did not know about the gun. did not err argument. when it denied the As a result, the court objection to the rebuttal See id. Prosecutorial Misconduct ¶20 Defendant reversible error remain silent. argues when he that the commented prosecutor Defendant s on committed right to A criminal defendant shall not be compelled to be a witness against himself . . . [and the] refusal to be a witness in his own behalf shall not in any manner prejudice him, or be used against him on the trial or proceedings. A.R.S. § 13-117(A)(B) (West 2012); accord Ariz. Const. art. II, § 10. We review whether the comments were likely to be perceived by the jury as a comment on Defendant s failure to testify. See State v. Cook, 170 Ariz. 40, 51, 821 P.2d 731, 742 (1991) (citations omitted). must be [T]o be calculated impermissible, to direct the the prosecutor's jurors' comments attention to defendant's exercise of his fifth amendment privilege. (citation and internal quotation marks omitted). the Id. We will not reverse unless the prosecutor s statements were improper and so infected the trial with unfairness as conviction[s] a denial of due process. Ariz. 72, 79, ¶ 26, 969 P.2d omitted). 11 1184, to make the resulting State v. Hughes, 193 1191 (1998) (citations ¶21 During the State s rebuttal argument, and to rebut the argument that there was evidence that Defendant lacked knowledge of the gun in the trunk, the prosecutor pointed out that [t]here s not one witness that came up here and testified that the defendant didn t know that weapon was there. The rebuttal argument therefore noted that no witness had testified about Defendant s knowledge of the gun, but the general reference to witnesses did not direct attention to Defendant s decision not to testify. P.2d 7, support See State v. Martinez, 130 Ariz. 80, 81-83, 634 8-10 of commented (App. 1981) defense s on (highlighting theory appellant s that right the not lack of evidence prosecutor to in improperly testify because statements were made in rebuttal to area opened by defense and did not draw jury s attention to defendant s failure to testify); compare State v. Fuller, 143 Ariz. 571, 574-75, 694 P.2d 1185, 1188-89 (1985) (statement that defense had presented no evidence, nothing positive did not violate Fifth Amendment, especially where defendant was not the only witness able to counter State s evidence) with State v. Rhodes, 110 Ariz. 237, 237-38, 517 statement P.2d that 507, 507-08 defendant did (1973) not (reversal explain away witness stand a key fact litigated at trial). find no error. 12 warranted off of by that Accordingly, we ¶22 Finally, Defendant challenges statements made by the prosecutor during defense counsel closing closing had argument. arguments engaged in Attorneys which improper have indicated conduct considerable that during his latitude in delivering closing arguments to comment on the evidence already introduced and to argue reasonable inferences therefrom. State v. Gonzales, 105 Ariz. 434, 436-37, 466 P.2d 388, 390-91 (1970) (citations omitted). To determine if a statement was improper, we consider whether the remark highlighted a matter that the jury was not permitted to consider during its deliberations, and whether the remarks, in fact, influenced the verdict. Id. at 437, 466 P.2d at 391 (citations and internal quotation marks omitted). ¶23 Here, the prosecutor made several references to the fact that the argument that Defendant did not know about the gun was improper support it. because there were no facts in the record to The defense was attempting to convince the jury that inferences drawn from the evidence suggested that Defendant did not know the gun was in the trunk. For example, why would Defendant, a convicted felon, consent to a search of the trunk if he knew a gun was inside? ¶24 Even though the State mischaracterized the defense argument, we cannot conclude that the remarks deprived Defendant of a fair trial and were so 13 objectionable as to cause a reversal of the case. Id. (citation and internal quotation marks omitted); accord State v. Tucker, 215 Ariz. 298, 319, ¶¶ 88-89, 160 P.3d 177, 198 (2007) (citations omitted) (reversal required only if improper comments are unduly prejudicial and likely affected verdicts). The jury was instructed at the outset of the trial and in the final instructions that closing remarks were not evidence, and only offered to help the jury understand the evidence. See State v. Newell, 212 Ariz. 389, 403, ¶¶ 68-69, 132 P.3d 833, 847 (2006) (citation omitted) (jury instructions may cure admission of improper statements). Despite the arguments of counsel, the jury had to determine the facts of the case, and there is no indication that the State s isolated comments resulted in the verdicts. See Tucker, 215 Ariz. at 319-20, ¶ 89, 160 P.3d at 198-99 (citation omitted) (convictions sustained based on curative jury instructions and substantial evidence in support of verdicts). Consequently, we find no reversible error. ¶25 Having addressed Defendant s arguments, we have also considered the opening brief and searched the entire record for reversible error. We find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. The record, as presented, reveals that all of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was represented by counsel at 14 all stages of the proceedings and the sentences imposed were within the statutory limits. ¶26 After obligation to this decision represent has Defendant been in filed, this appeal counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal review and reveals Arizona Supreme Shattuck, 140 Defendant s an issue Court Ariz. future options, appropriate for by petition 582, 585, 684 for P.2d unless counsel s submission review. 154, to State 157 the v. (1984). Defendant can, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. CONCLUSION ¶27 Accordingly, we affirm Defendant s convictions and sentences. /s/ __________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ _____________________________ ANN A. SCOTT TIMMER, Judge /s/ _____________________________ ANDREW W. GOULD, Judge 15

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