STATE v. ENGLAND

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NOTE: 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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. DOUGLAS WAYNE ENGLAND, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 06/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0453 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006224-002DT The Honorable Janet E. Barton, Judge CONVICTION AND SENTENCE 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 Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Douglas Wayne England s conviction of second-degree trafficking in stolen property, a Class 3 felony. appeal and frivolous. England s counsel has searched the record on found no arguable question of law that is not See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). England was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. also raises three issues, which At England s request, counsel we address below. After reviewing the entire record, we affirm England s conviction and sentence. FACTS AND PROCEDURAL HISTORY ¶2 Two undercover police officers met with England s property one day to purchase a stolen car. 1 T.H. on Because the car was concealed in a locked garage to which England, but not T.H., had a key, T.H. phoned England to come and open the garage. When England arrived, he unlocked and opened the door to the garage, revealing the car inside. England then advised T.H. how to use the house key that was in the car s ignition to start the car. When an undercover detective asked England if 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against England. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 that [license] plate s going to be reported or anything, England suggested it might never be reported stolen. Then, in England s $200 presence, the detective paid T.H. only purchase the car, a price well below fair market value. to The car later was identified as having been stolen the previous day. ¶3 England was arrested and charged with one count of second-degree trafficking in stolen property. jury found him guilty as charged. The At trial, the court found two historical prior felony convictions and sentenced England to a mitigated term of nine years with 148 days We have presentence incarceration credit. ¶4 England timely appealed. jurisdiction 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 (West 2012). 2 DISCUSSION A. Issues Raised by England. 1. ¶5 Denial of motion for mistrial. England first argues the court erred by denying his request for a mistrial after the prosecutor asked a detective who was testifying whether he subsequent to the charged offense. 2 had contact England Because the detective had Absent material revision after the date offense, we cite a statute s current version. 3 with of an alleged testified to working undercover, investigating stolen property for four and one-half years, England argues, the question and the detective s affirmative answer necessarily and impermissibly suggested England was involved in other acts of trafficking or other illegal activity. ¶6 We review the superior court s denial of a motion for mistrial for an abuse of discretion. State v. Dann, 205 Ariz. 557, (2003). 570, ¶ defendant s 43, 74 other P.3d crimes 231, or 244 other bad Evidence acts of generally a is inadmissible under Arizona Rule of Evidence 404(b), but we will reverse a conviction for a violation of that rule of evidence only if there exists a reasonable probability that the verdict would have been different if the improper testimony had not been admitted. State v. Hoskins, 199 Ariz. 127, 142-43, ¶ 57, 14 P.3d 997, 1012-13 (2000) (quoting State v. Atwood, 171 Ariz. 576, 639, 832 P.2d 593, 656 (1992)). In deciding whether to grant a mistrial based on a witness s testimony, the trial court considers (1) whether the testimony called to the jury s attention matters that it would not have been justified in considering in reaching the verdict, and (2) the probability that the testimony influenced the jury. State v. Gulbrandson, 184 Ariz. 46, 62, 906 P.2d 579, 595 (1995). ¶7 Here, the detective s affirmative response to the question, Did you ever have contact with the Defendant again 4 after that date? could have referred to purely innocent contact between England and the detective. Even assuming the answer implied a subsequent illegal act in violation of Rule 404(b), the court effectively avoided potential prejudice by striking the question and answer and instructing the jury to disregard them. Additionally, further instructed with the the jury parties that agreement, the the subsequent court encounter between the Detective and [England] here was simply a casual encounter that had absolutely nothing to do with the Detective s undercover work. It just happened to be a happenstance encounter. Under the circumstances, we cannot conclude the prosecutor s question and the improperly influenced the jury. detective s by denying England s answer See, e.g., State v. Jones, 197 Ariz. 290, 305, ¶ 34, 4 P.3d 345, 360 (2000). err one-word motion for The court did not mistrial based on this testimony. 2. ¶8 Ineffective assistance of counsel. England next argues his counsel was ineffective because, even though England wanted to testify, his attorney told [him] it would be in the best of [his] interest not to take the stand. A claim of ineffective assistance of counsel may not be reviewed on direct appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) 5 (ineffective assistance of counsel claim must be raised under Arizona Rule of Criminal Procedure 32). We therefore do not address England s argument that his counsel was ineffective. 3. ¶9 Sufficiency of the evidence. Finally, England supported his conviction. a judgment motion. of argues insufficient evidence At trial, England s counsel moved for acquittal, and the superior court denied the A judgment of acquittal is appropriate only if there is no substantial evidence to warrant a conviction. Crim. P. 20(a). Ariz. R. Substantial evidence is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt. State v. Davolt, 207 Ariz. 191, 212, ¶ 87, 84 P.3d 456, 477 (2004). ¶10 The evidence recounted above was sufficient to support England s conviction. Although England argues it was [T.H.] who was trying to sell the car to the detectives, the evidence supported the conclusion trafficking the stolen car. that England participated in To the extent the evidence also tied T.H. to the sale of the stolen car, the jury was instructed on accomplice liability and England on that basis as well. ( accomplice defined), reasonably could have convicted See A.R.S. §§ 13-301 (West 2012) -303(A)(3) (West criminally liable for principal s conduct). 6 2012) (accomplice B. Fundamental Error Review. ¶11 was The record reflects England received a fair trial. represented by counsel at all stages of the proceedings against him and was present at all critical stages. held appropriate pretrial hearings. He The court Pursuant to Arizona Rule of Evidence 609, the court considered and sanitized England s prior felony convictions. The court did not conduct a voluntariness hearing; however, the record did not suggest a question about the voluntariness of England s statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶12 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members with one alternate. The court the properly charge, the instructed State s the burden jury of on proof and the elements the of necessity of a unanimous verdict. The jury returned a unanimous verdict, which was juror confirmed by polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed crime of which England was convicted. 7 a legal sentence for the CONCLUSION ¶13 We have reviewed error and find none. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881. ¶14 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to England s representation in this Defense counsel need do no more than inform England of the outcome of this appeal and his future options, 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, 15657 (1984). On the court s own motion, England has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. England has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ LAWRENCE F. WINTHROP, Chief Judge 8

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