State v. Rodriguez

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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. FREDERICK DAVID RODRIGUEZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0325 1 CA-CR 11-0327 (Consolidated) DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-013256-001 DT and CR2010-0148889-001 DT (Consolidated) The Honorable Julie P. Newell, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix T I M M E R, Judge ¶1 Frederick David Rodriguez appeals his convictions and sentences after a jury convicted him of one count of possession of burglary tools and the trial court found that, in so doing, he violated the terms of his probation. Rodriguez 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 record on appeal, he found no arguable question of law that is not frivolous. This court granted Rodriguez an opportunity to file a supplemental brief in propria persona, but he has not done so. issues: burglary Through his counsel, however, Rodriguez presents two (1) whether tools, and sufficient (2) evidence whether proving his prior convictions. exists sufficient he possessed evidence exists For the following reasons, we affirm. BACKGROUND ¶2 In the early morning hours of September 10, 2010, K.S. looked out her living-room window and observed three young men in her neighborhood. After seeing one man attempt to open the doors on several cars parked at her neighbor s house, she called the police. ¶3 Two police shortly thereafter. officers arrived in the neighborhood One of the officer s vehicle headlights 2 shined on Rodriguez, who immediately ran from the scene. After a short while, Rodriguez stopped, pulled gloves off his hands, threw them on the ground, and sat down on a curb. The officers detained Rodriguez and, with his permission, searched him. his pockets, they found a screwdriver, a mallet In with a flashlight on one end and a window punch on the other end, and a plastic bag containing several earrings. The officers also discovered one of the nearby cars had a shattered driver s door window. G.T., the owner of the vehicle, had left several earrings in the car, which the officers determined were the same earrings they found in Rodriguez s possession. ¶4 The State charged Rodriguez with burglary in the third degree and possession of burglary tools in CR2010-148889-001. It also petitioned to revoke Rodriguez s probation imposed in CR2005-013256-001. ¶5 A guilty of jury found possession Rodriguez of burglary not guilty tools. of burglary The court but found Rodriguez had at least two prior historical felonies and used his criminal history as an aggravating factor. The court further found Rodriguez was on probation at the time of the incident for a previous assault conviction. Rodriguez to four years imprisonment The court sentenced with 215 days of presentence incarceration credit for the possession of burglary tools conviction. The court also found Rodriguez had violated 3 the terms of his probation, revoked probation, and sentenced him to one-and-a-half years imprisonment with 373 days of presentence incarceration credit, to be served consecutively to the first sentence. 1 Rodriguez appealed in both cases, and we consolidated the appeals. DISCUSSION ¶6 In reviewing the sufficiency of evidence, we review the facts in the light most favorable to upholding the verdict and resolve all conflicts in the evidence against the defendant. State v. (1983). Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 Evidence is sufficient when it is more than a mere scintilla and is such proof as could convince reasonable persons of the defendant s guilt beyond a reasonable doubt. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 State v. (1981). Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 1 To avoid duplication, the trial court should apply presentence incarceration credits to only one of a defendant s sentences if it imposes consecutive sentences. State v. Jackson, 170 Ariz. 89, 94, 821 P.2d 1374, 1379 (App. 1991). Rodriguez served 158 days in jail in connection with his assault conviction, and then served 215 days after his burglary-tools arrest. The trial court erred by effectively awarding Rodriguez the 215 days of presentence incarceration credit for his burglary-tools offense twice. The presentence incarceration credit for the assault conviction should have been 158 days, not 373 days. We do not correct this error, however, because it is in Rodriguez s favor and the State did not cross appeal. State v. Dawson, 164 Ariz. 278, 285-86, 792 P.2d 741, 748-49 (1990). 4 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). I. ¶7 Possession of burglary tools An individual commits possession of burglary tools by possessing any explosive, tool, instrument or other article adapted or commonly used for committing any form of burglary as defined in §§ 13-1506, 13-1507 and 13-1508 and intending to use or permit the burglary. 2012). 2 use of such an item in the commission of a Ariz. Rev. Stat. ( A.R.S. ) § 13-1505(A)(1) (West An individual commits burglary by entering or remaining unlawfully in a residential or nonresidential structure with the intent to commit theft or any felony. A.R.S. §§ 13-1506, -1507, -1508 (West 2012) (defining various degrees of burglary). motor vehicle qualifies burglary statutes. as a structure for purposes of A the State v. Hamblin, 217 Ariz. 481, 484, ¶¶ 10- 12, 176 P.3d 49, 52 (App. 2008). ¶8 Rodriguez Rodriguez Sufficient possessed possessed evidence permitted burglary gloves, a tools. screw the jury Officers driver, and an to find testified apparent window punch, which are commonly used to enter a structure. ¶9 There was also sufficient evidence for the jury to find that Rodriguez intended to use the tools in the commission 2 Absent material revision after the date of an alleged offense, we cite a statute's current version. 5 of a burglary. Rodriguez had G.T. s missing earrings. One of the officers testified the damage to the window was consistent with a window punch. K.S. described the person attempting to open the car doors as tall[] and on the heavier side and estimated his age as 15 up to 20s. at the time of the incident, An officer testified that, Rodriguez was six feet weighed 235 pounds, and was twenty-three years old. tall, It was a warm September morning, inferring Rodriguez was unlikely to be wearing the gloves for protection from the elements but perhaps to avoid leaving fingerprints on any burglarized vehicles. No other explanation was provided for Rodriguez s possession of the tools in a residential area so early in the morning. Furthermore, Rodriguez initially fled from the police officers allowing the jury to infer he was among the men spotted by K.S. II. ¶10 Prior convictions Rodriguez next argues there was insufficient evidence to support the trial court s finding he had prior convictions for purposes of sentence enhancement. ¶11 To prove a prior conviction, the State is required to submit evidence of a conviction and evidence demonstrating the defendant is the same person who committed the previous crime. State v. Cons, 208 Ariz. 409, 415, ¶ 16, 94 P.3d 609, 615 (App. 2004). The proper procedure to establish the prior conviction is for the state to offer in evidence a certified copy of the 6 conviction . . . and establish the defendant as the person to whom the document refers. State v. Lee, 114 Ariz. 101, 105-06, 559 P.2d 657, 661-62 (1976). ¶12 At the sentencing hearing, the State introduced a right thumbprint taken from Rodriguez, an Arizona Department of Corrections pen pack containing evidence of three prior historical felony convictions, and a 2005 judgment for one of those felony fingerprint. convictions, which contained a right index Kimberly Leske, a forensic investigator from the Glendale Police Rodriguez on Department, March 16, testified 2011 and she made the fingerprinted comparisons. Rodriguez s thumbprint matched the thumbprint from the pen pack, and the pen pack s right index fingerprint matched the right index fingerprint from the 2005 judgment. The court also found the picture in the pen pack matched Rodriguez. In light of this evidence, the trial court did not err by ruling that the State had proven the historical prior felony convictions. CONCLUSION ¶13 After obligations appeal have the pertaining ended. filing to of this Rodriguez s Counsel need do decision, counsel s representation no more than in this inform Rodriguez of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. 7 State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Rodriguez shall have thirty days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Maurice Portley, Presiding Judge /s/ Andrew W. Gould, Judge 8

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