State v. Bader

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.S See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 05/15/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. EDWARD JOSEPH BADER, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0427 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-137017-001 The Honorable Barbara L. Spencer, Commissioner AFFIRMED AS MODIFIED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix Phoenix K E S S L E R, Judge ¶1 Edward Joseph Bader ( Appellant ) filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following his conviction of theft of a credit card or obtaining a credit card by fraudulent means, a class 5 felony under Arizona Revised Statutes ( A.R.S. ) section 13-2102 (2010). 1 ¶2 Finding counsel no requested fundamental error. arguable that issues this Court affirm raise, search Appellant s the record for Appellant was given the opportunity to, but did not submit a supplemental brief. we to Appellant s conviction For the following reasons, and modify his sentence to reflect an increase to his presentence incarceration credit. FACTUAL AND PROCEDURAL HISTORY ¶3 In April, 2010, J. ( J or the victim ) entered the emissions testing center at the Department of Motor Vehicles in Phoenix, Arizona. After the inspection was completed by Appellant, J handed him her debit/credit card as a method of payment. After running the card twice, Appellant told J that the card was not going through and the victim wrote him a check instead. Appellant wrote down the victim s credit information without the victim s knowledge or permission. hours later, Appellant s supervisor ( MR ) was card A few reviewing security tapes and stumbled across this event. MR immediately called the private investigation firm that is employed by the 1 We cite the current version of the applicable statute when no revisions material to this decision have since occurred. 2 emissions center and spoke to an internal affairs manager. MR called Appellant to her office and asked him to clean out the content of his pockets, talked to him briefly and asked him to return to his station. Through this search, MR found a yellow Post-it with the victim s credit card information. ¶4 At confronted an interview, Appellant about the internal writing the affairs victim s manager credit card information on a Post-it, and Appellant admitted to doing so. During the interview, Appellant also admitted he had written down credit card information before. At the end of the interview, the internal affairs manager terminated Appellant s employment. At that point, police escorted Appellant off the premises and into the backseat of the police car. Appellant, after being read his Miranda 2 rights, elected to continue talking to the officer. The police officer asked Appellant why he had a Post-it in his pocket with the victim s credit card information on it. Appellant responded with I was stupid or I made a mistake. Appellant admitted to writing the information down on the Post-it. The police officer asked Appellant about any other occasion where he might have done the same thing. Appellant responded that he had done this before but in every occasion he thought better of it and threw the information away. The officer released Appellant and took into evidence the Post-it 2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 and the check. ¶5 In April 2011, a jury convicted Appellant of theft of a credit card or obtaining a credit card by fraudulent means, a class 5 felony. The court considered that Appellant had prior offenses on record, but considered it a mitigating fact that they were over twenty years old. ¶6 The court sentenced Appellant to a probation term of three period years. in Appellant jail, was starting also sentenced November 15, to 2011, a four-month 100 hours of community restitution and substance abuse treatment. STANDARD OF REVIEW ¶7 This Court fundamental error. must review the entire record for See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). We will not reverse unless the defendant can show the fundamental error caused prejudice. at ¶ 20. favorable On to review, sustaining we view the the jury s 4 facts in verdict the and Id. light most resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). DISCUSSION ¶8 This Court fundamental error. has reviewed the entire record for After careful review of the record, we find no meritorious grounds for reversal of Appellant s conviction. The record reflects Appellant had a fair trial, and was present and represented by counsel at all critical stages of trial. Appellant was given the opportunity to speak at sentencing, and the trial was conducted in accordance with the Arizona Rules of Criminal Procedure. verdict and sentence for the The evidence is sufficient to sustain the trial court Appellant s imposed offenses, a lawfully except for authorized presentence incarceration credit. I. ¶9 a SUFFICIENCY OF THE EVIDENCE Substantial evidence has been described as more than mere accept scintilla as and is that sufficient to support reasonable doubt. which a reasonable guilty persons verdict could beyond a State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468 (1997) (internal quotation marks omitted). 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, 200, 928 P.2d 5 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶10 For the jury to find Appellant guilty of theft of a credit card or obtaining a credit card by fraudulent means, it had to find Appellant: (1) controlled a credit card without the cardholder s or issuer s consent through theft or theft by extortion; (2) sold, transferred or conveyed a credit card with the intent to defraud; or (3) with the intent to defraud, obtained possession, care, custody or control over a credit card as security for debt. ¶11 A.R.S. § 13-2102. Theft of a credit card includes controlling a credit card without the cardholder s consent and converting property of another for an unauthorized use. and -2102(A)(1). A.R.S. §§ 13-1802(A)(2)(2010) While Appellant returned the credit card to the victim, he copied down the identifying information for a use not authorized by the victim. A credit card is defined to include the number that is assigned to the card . . . even if the physical card . . . is not used or presented. A.R.S. § 13- 2101(3)(d)(2010). ¶12 The State presented sufficient evidence to support the jury s verdict. Based on the testimony presented at trial the jury could reasonably have found that Appellant copied down the victim s credit card information onto a Post-it and inserted it into his pocket without the victim s consent. 6 ¶13 The record contains sufficient evidence to support Appellant s conviction for theft of a credit card or obtaining a credit card by fraudulent means. II. ¶14 PRESENTENCE INCARCERATION CREDIT Presentence incarceration credit given for time spent in custody begins on the day of booking and ends the day before sentencing. See State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993). Appellant was in custody from the day of his conviction on April 11, 2011 until his sentencing on May 26, 2011. While sentencing was incarceration Appellant s 44 days, credit. total he We, did time not therefore, incarcerated receive modify any the prior to presentence sentence to reflect this correction. CONCLUSION ¶15 For the foregoing reasons, we affirm Appellant s conviction and sentence but modify his sentence to grant him 44 days of presentence incarceration credit. Upon the filing of this decision, counsel shall inform Appellant of the status of his appeal and his future appellate options. Defense counsel has no further obligations, 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, 156-57 (1984). 7 ¶16 Upon the Court s own motion, Appellant shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /S/ DONN KESSLER, Judge CONCURRING: /S/ DIANE M. JOHNSEN, Presiding Judge /S/ LARRY F. WINTHROP, Judge 8

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