STATE v. BLAYLOCK

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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: 07/24/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) MICHAEL RAY BLAYLOCK, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0542 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-121207-001 The Honorable James T. Blomo, Judge Pro Tempore 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 Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix G O U L D, Judge ¶1 resulting Michael Blaylock sentences of appeals burglary possession of burglary tools. from in his the convictions third degree and and ¶2 Blaylock s counsel 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), advising this Court that after a search of the entire appellate record, she found no arguable question of law that was not frivolous. Blaylock was afforded the opportunity to file a supplemental brief in propria persona, but he has not done so. Instead he directed counsel to raise three issues on his behalf; we address these issues below. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have 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), 13-4031 and -4033(A)(1) (2010).1 Finding no reversible error, we affirm. Facts and Procedural History2 ¶4 In the early morning of April 22, 2010, John W. ( Witness ) observed two individuals driving a truck down the utility easement to a commercial lot on 53rd Avenue and Madison. 1 Unless otherwise specified, we cite to the current version of the applicable statutes because no revisions material to this decision have occurred. 2 We view the evidence in the light most favorable to sustaining the convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 From his vehicle, Witness watched as Blaylock got out of the passenger side of the truck and approached the chain link fence carrying Witness a pair could of not twenty-four actually see inch yellow Blaylock bolt cutting cutters. the fence; however, after Blaylock paused at the fence for a few moments, Witness saw Blaylock walking inside of the fenced area. later inspection, police observed fresh cut marks on Upon the otherwise weathered chain link fence. ¶5 When Blaylock saw Witness returned to the truck to leave. observing him, Blaylock Witness drove up to the two individuals and asked them what they were doing at the lot. The individuals replied that interested in who owned it. they saw some pipe and were When they admitted the pipe did not belong to them, Witness directed them to leave. As they drove away, Witness followed their truck and called 9-1-1. Witness continued to follow the truck until police arrived and took Blaylock and the other individual into custody. Witness remained at the scene to identify Blaylock as the individual he had seen carrying the bolt cutters and entering the commercial lot. ¶6 After being detained, Blaylock was searched by Officer Whitlock; the search produced two pairs of pliers in Blaylock s pockets. Officer Whitlock also searched the truck and found a large pair of yellow bolt cutters. 3 Blaylock was arrested and charged with one count of burglary in the third degree and one count of possession of burglary tools. At trial, he was convicted of both counts and sentenced to concurrent sentences at the department of corrections - a mitigated term of one-anda-half years for burglary in the third degree and the presumptive term of one year for possession of burglary tools. Blaylock timely appealed. Conclusion ¶7 We have read and considered counsel s brief, carefully searched the entire record for reversible error and found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the finding of counsel at guilt. all Blaylock critical was stages present of and the represented proceedings. by At sentencing, Blaylock and his counsel were given an opportunity to speak and the court imposed a legal sentence. ¶8 On appeal, Blaylock challenges the sufficiency of the evidence and the reliability of Witness s identification of him. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State and draw all reasonable inferences against Blaylock. State v. French, 104 Ariz. (1969). 359, 362, 453 P.2d 505, 508 We leave determinations of the credibility of a witness s identification 4 of the defendant to the jury. State v. Nieto, 118 Ariz. 603, 606, 578 P.2d 1032, 1035 (App. 1978). ¶9 The evidence supports the jury s verdicts. At trial, Witness testified he saw Blaylock exit the truck carrying a large pair of yellow bolt cutters. Officer Whitlock also testified a pair of yellow bolt cutters was recovered from the truck at Officer the time Whitlock of Blaylock s identified arrest. Blaylock encountered on April 22, 2010. as Both the Witness individual and they Although Witness saw Blaylock cut through the fence from a distance, he had the opportunity to observe Blaylock at close range when he confronted Blaylock about his reason for remaining on the property. ¶10 Blaylock also argues there was insufficient evidence of theft because the alleged stolen property was not admitted into evidence. Blaylock was not charged with theft. In order to prove Blaylock committed burglary in the third degree, the State only needed to show beyond a reasonable doubt that Blaylock entered or remained unlawfully on the fenced commercial yard with the intent to commit a theft. A.R.S. § 13-1506. The evidence supports this verdict. ¶11 Counsel s representation in obligations this appeal pertaining have ended. to Blaylock s Counsel need do nothing more than inform Blaylock of the status of the appeal and his future options, unless counsel s review reveals an issue 5 appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Blaylock shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.3 /S/ ___________________________________ ANDREW W. GOULD, Judge CONCURRING: /S/ ____________________________________ MAURICE PORTLEY, Presiding Judge /S/ ____________________________________ ANN A. SCOTT TIMMER, Judge 3 Pursuant to Arizona Rule of Criminal Blaylock or his counsel has fifteen days to reconsideration. On the Court s own motion, to file such a motion to thirty days from decision. 6 Procedure 31.18.b, file a motion for we extend the time the date of this

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