STATE v. DAWOOD

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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: 8/29/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) STEF BORIS DAWOOD, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 12-0656 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-030533-001 The Honorable Hugh E. Hegyi, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Charles R. Krull, Deputy Public Defender Attorneys for Appellant Phoenix Stef Boris Dawood Appellant San Luis D O W N I E, Judge ¶1 two Stef Boris Dawood timely appeals his convictions for counts of armed robbery in violation of Arizona Statutes ( A.R.S. ) sections 13-1902 and -1904. Revised Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Dawood filed a supplemental brief in propria persona. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 D.B. worked the night shift at a convenience store in Mesa, along with her daughter, S.H. Around 7:30 p.m., a man entered the store wearing a white hoodie with the hood pulled over his head, blue jeans, and a green bandana covering most of his face. D.B. heard a clicking sound and looked up to see the man pointing a gun at her. the register. grabbed pocket. $160 The man demanded the money in D.B. put the money on the counter. in bills and stuck them in the The man hoodie s front He then turned to S.H., pointed the gun at her, and told her to open her register. S.H. responded that the register was broken and that she did not have a key to open it. 2 ¶3 The man turned Newport cigarettes. the gun back to D.B. and demanded D.B. set four packs on the counter. The man put the cigarettes in the hoodie pocket and left the store. Outside, he turned right toward newspaper stands in front of the store. ¶4 D.B. called 9-1-1 and described the man as Hispanic, with dark hair, in his 20s, approximately 5 9 to 5 10 tall, and weighing approximately 150 pounds. the scene. Officers responded to En route, Officer Kirkpatrick saw two men fitting the description near the store; one wore a white hoodie. The officer stopped the men, but determined they were likely not involved in the robbery and continued to the convenience store. ¶5 At the store, D.B. and S.H. described the suspect as a Hispanic male in his 20s who was approximately 5 8 tall, weighing about 150 pounds, with brown eyes and short black hair. D.B. described the gun as a silver semi-automatic .32 or .38 with a black grip. Officers found an unopened box of Newport cigarettes a few yards from the front entrance of the store and a newspaper stand that was knocked over as though somebody had ran by it and knocked it over in the process. A crime scene specialist collected two fingerprints from the cigarette box, one of which was matched to Dawood. ¶6 Dawood was indicted on two counts of armed robbery, both class 2 dangerous felonies. 3 A jury trial ensued. At the conclusion judgment of of the State s acquittal case-in-chief, pursuant Criminal Procedure ( Rule ). ¶7 Dawood testified to Rule Dawood 20, moved Arizona for Rules a of The motion was denied. he did not remember anything that happened in November 2011 because it was too long ago, but he denied committing the robbery. Newport cigarettes, but Newport brand at sold testified that cigarette box his He preferred testified Newport the convenience fingerprint could because the store gave that he 100[s] store. have him over the He further up ended the smoked on the type of wrong Newport cigarettes and he gave them back. ¶8 The jury found Dawood guilty of both counts. It found two aggravators for sentencing purposes: that the offense was committed for pecuniary gain and it emotional, or financial harm to that the caused victims. physical, Dawood was sentenced to a presumptive, concurrent term of 10.5 years on each count, with 263 days pre-sentence incarceration credit. DISCUSSION ¶9 We have read and considered the briefs submitted by Dawood and his counsel and have reviewed Leon, 104 Ariz. at 300, 451 P.2d at 881. error. the the entire record. We find no fundamental All of the proceedings were conducted in compliance with Arizona Rules of Criminal Procedure, imposed was within the statutory range. 4 and the sentence Defendant was present at all critical phases of the proceedings and represented by counsel. The jury was properly impaneled and instructed. The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process. ¶10 In his supplemental brief, Dawood contends the trial court erred by allowing two witnesses to give expert opinion testimony and by denying his Rule 20 motion. I. Expert Witness ¶11 Dawood court to print examiners qualify witnesses. ¶12 suggests the Kevin for State Biggs the Mesa and was required Maralena Police ask Schreel, Department, as the latent expert We disagree. A witness may qualify as an expert skill, experience, training, or education. The to State made pretrial disclosures of by knowledge, Ariz. R. Evid. 702. Biggs and Schreel as expert witnesses, and both testified at trial regarding their experience, training, and knowledge without objection. 1 could during have challenged trial, permitted to but these failed cross-examine individuals to do both so. Biggs expertise Defense and Dawood before counsel Schreel. To or was the extent Dawood challenges the reliability or credibility of the 1 The disclosure statement lists Mesa Police Department Fingerprint Analyst, Kevin Griggs #0908 as the State s expert witness. The joint pretrial statement includes Kevin Biggs of the Mesa Police Department as a witness. 5 officers testimony, it is the jury s function to weigh the evidence as a whole, to resolve any inconsistencies therein, and then to determine whether or not a reasonable doubt exists. State v. Money, 110 Ariz. 18, 25, 514 P.2d 1014, 1021 (1973). II. Rule 20 Motion ¶13 Dawood also generally asserts that the State failed to present substantial evidence of his guilt. After reviewing the evidence presented in the light most favorable to the jury, including any reasonable inferences from the testimony, the trial court found sufficient evidence to send the case to the jury. Dawood claims the trial court s statement reflects that it applied an incorrect standard to his Rule 20 motion. We conclude otherwise. ¶14 The Arizona Supreme Court has articulated the standards that trial courts should apply in ruling on motions under Rule 20(a) or (b), stating: On all such motions, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Substantial evidence, Rule 20 s lynchpin phrase, is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. West, 226 Ariz. 559, 562, ¶ 16, 250 P.3d 1188, 1191 (2011) (internal citation and footnote omitted). 6 If reasonable minds can differ on inferences to be drawn from evidence, the trial court must submit the case to the jury. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993). ¶15 guilt. The State presented substantial evidence of Dawood s See State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) ( Reversible error based on insufficiency of the evidence occurs probative only facts to where there support is the a complete absence conviction. ). of Section 13-1902(A) provides that a person commits robbery if: [I]n the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property. Armed robbery occurs when a person uses or threatens to use a deadly weapon while committing a robbery. store pointed A.R.S. § 13-1904(A)(2). ¶16 The man who robbed the a gun demanded money and cigarettes, which the victims provided. and S.H. testified that the man did not wear gloves. himself admitted that he preferred Newport and D.B. Dawood cigarettes. An unopened box of Newport cigarettes was found a short distance from the store, in the direction where the robber ran. fingerprint was found on the cigarette box. 7 Dawood s D.B. testified she was scared and shaking when the man pointed the gun at her, and S.H. testified she was scared during the robbery. ¶17 Based could conclude convenience on the that store at evidence Dawood presented, was gunpoint, the that reasonable person he did who so jurors robbed for the pecuniary gain, and that the incident caused harm to the victims. CONCLUSION ¶18 We affirm Dawood s convictions and sentences. Counsel s obligations pertaining to Dawood s representation in this appeal inform have Dawood of ended. the Counsel status of need the do nothing appeal and more his than future options, unless counsel s review reveals an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Dawood shall have 30 days from the date of this decision to proceed, if he desires, 8 with an in propria persona motion for reconsideration petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ ANDREW W. GOULD, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 9 or

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