State v. Stanislaw

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ) ROGER BRIAN STANISLAW, ) ) Appellant. ) ) ) DIVISION ONE FILED: 08-03-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-1010 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Navajo County Cause No. S-0900-CR-0020070838 The Honorable Robert B. Van Wyck, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Katia Mehu, Assistant Attorney General Attorneys for Appellee Taylor Law Office, P.C. by D. Shawn Taylor Attorneys for Appellant Phoenix Snowflake S W A N N, Judge ¶1 Roger sentence on Brian one Stanislaw count of appeals misconduct his conviction involving weapons, and a violation of A.R.S. § 13-3102(A)(4) (2010).1 For the reasons that follow, we find no error and affirm. Factual2 and Procedural History ¶2 A grand jury indicted Stanislaw on five counts of misconduct involving weapons after police executing a search warrant on his residence discovered two CO2 .22 caliber pellet guns, four hunting knives, a machete, and a crossbow. On the State s motion, the court dismissed the charges involving the CO2 guns before trial. At trial, Stanislaw stipulated that he was a convicted felon and that he had not had his right to possess a firearm restored. He also stipulated that he had written a letter to a justice of the peace dated July 6, 2007, in which he sought return of the items at issue on the ground that he needed them for the defense of his home. ¶3 Stanislaw testified that his civil rights had been restored before this incident, except for his right to possess a firearm. He also testified that he had purchased the crossbow in 2002, primarily to defend against coyotes in his yard, but he had not used it since 2002 because of a shoulder injury. He 1 We cite to the current version of the statute when no changes material to this decision have since occurred. 2 We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997) (citation omitted). 2 further testified that he used the knives in hunting and used the machete to cut trees on his property. His attorney argued that her client did not knowingly commit the offense, the items did not constitute deadly weapons under the law, and the legislature did not intend to prohibit possession of them. ¶4 The jury acquitted Stanislaw of the charges involving the machete and the hunting knives. The jury convicted him of one count of misconduct involving weapons for possession of the crossbow. The court suspended sentence and imposed a two-year term of probation. Stanislaw timely appealed. DISCUSSION I. PRECLUSION OF EVIDENCE ¶5 Stanislaw argues first that the trial court abused its discretion in precluding the introduction of evidence that all of his civil rights except his right to possess a firearm had been restored in 2001 pursuant to A.R.S. § 13-905. Stanislaw argues that the evidence was relevant to show that he had made a mistake of fact in believing that he could possess weapons other than firearms, and charged offenses. thus, he did not knowingly commit the The trial court has considerable discretion in determining the relevance and admissibility of evidence, and we will not disturb its ruling absent a clear abuse of that discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990). 3 ¶6 The court precluded any evidence or argument at trial relating to Stanislaw s claimed misunderstanding of the law. It reasoned that [t]he element of knowing in this case pertains only to whether or not the Defendant knowingly possessed the items that the statute defines as deadly weapons. . . . In this matter, the Defendant apparently misunderstood the law. However sympathetic that misinterpretation may be, it is not a defense of the charge. ¶7 We find no abuse of discretion in the court s refusal to admit records documenting the restoration of all of his civil rights except the right to possess a firearm. Stanislaw was charged with violating A.R.S. § 13-3102(A)(4), which provides that [a] knowingly person . . . commits misconduct [p]ossessing a deadly involving weapon weapons or weapon if such person is a prohibited possessor. by prohibited Prohibited possessor is defined in part as a person convicted of a felony whose civil right to possess a firearm has not been restored. A.R.S. 13-3101(A)(7)(b). Deadly weapon is defined as anything that is designed for lethal use . . . includ[ing] a firearm. A.R.S. 13-3101(A)(1). offense, the State was To convict required to Stanislaw prove of that the he charged knowingly possessed anything designed for lethal use, and that he was a convicted felon whose right to possess a firearm had not been restored. 4 ¶8 The State was not required to prove that Stanislaw knew that he was a prohibited possessor, or that he knew that a prohibited possessor could not possess deadly weapons. See State v. Harmon, 25 Ariz. App. 137, 139, 541 P.2d 600, 602 (1975) (holding that State was not required to prove that a defendant who possessed a weapon knew that he was acting illegally); State v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App. 1986) (holding that State was not required to prove defendant possessed weapon with criminal intent; it need prove only knowing possession). Ignorance or a mistaken belief as to a matter of fact relieves a person of criminal liability only if [i]t negates the culpable mental state required for commission of the offense. A.R.S. § 13-204(A)(1). Ignorance or mistake as to a matter of law does not relieve a person of criminal responsibility. A.R.S. § 13-204(B). See Harmon, 25 Ariz. App. at 139, 541 P.2d at 602 (holding that defendant s claim that he thought his full status as citizen had been restored was a mistake of law, and accordingly, not a cognizable defense to the crime of misconduct involving weapons); State v. Olvera, 191 Ariz. 75, 77, 952 P.3d 313, 315 (App. 1998)(same). The court did not abuse its discretion in precluding evidence at trial. II. DENIAL OF THE MOTION TO DISMISS FOR VAGUENESS ¶9 discretion Stanislaw next argues that the trial court abused its in denying his motion 5 to dismiss the charges of misconduct involving weapons on the ground that A.R.S. § 133101(A)(4) conflicts with A.R.S. § 13-905(C), rendering both unconstitutionally vague on their face and as applied to him. In support of his motion to dismiss on grounds of vagueness, Stanislaw argued that another judge restored all of his rights except the right to possess a firearm pursuant to A.R.S. § 13905(C), and that he had no notice or warning that he was prohibited under A.R.S. § 13-3102(A)(4) from possessing deadly weapons. The court denied the motion, holding that A.R.S. [§]§ 13-3101 and 13-3102 apply to this case. These statutes are not unconstitutionally vague on their face or as applied to the defendant. ¶10 We review de novo whether a statute is constitutional. State v. Mutschler, 204 Ariz. 520, 522, ¶ 4, 65 P.3d 469, 471 (App. 2003). must A party challenging a statute s constitutionality overcome a strong presumption that the statute is constitutional, and where possible, we will interpret a statute in such a way as to give it a constitutional construction. State v. Kaiser, 204 Ariz. 514, 517, ¶ 8, 65 P.3d 463, 466 (App. 2003). A person challenging the statute bears the burden of establishing its invalidity. ¶11 Id. A statute is unconstitutionally vague if it fails to give persons of average intelligence reasonable notice of what conduct is prohibited, or if 6 it allows for arbitrary and discriminatory enforcement. In re Dayvid S., 199 Ariz. 169, 172, ¶ 11, 15 P.3d 771, 774 (App. 2000). [T]he requirement of a necessitate fair and definite warning does not perfect notice or absolute precision of language. Kaiser, 204 Ariz. at 517, ¶ 9, 65 P.3d at 466 (quoting State v. Singer, 190 Ariz. 48, 50, 945 P.2d 359, 361 (App. 1997)). ¶12 Stanislaw s unconstitutionally contained in claim vague A.R.S. is §§ that without 13-905(C), 3101(A)(7)(b) is unambiguous. the statutes merit. The 13-3201(A)(4), are language and 13- Moreover, A.R.S. § 13-912, which provides for automatic restoration of civil rights for first time offenders, expressly states that this section does not apply to a person s right to possess weapons as defined in § 133101 unless the person applies to a court pursuant to section 13-905 or 13-906. intelligence identified would in the We conclude understand instant that the statutes, a person prohibited and the of ordinary conduct as language is sufficiently clear to avoid any real potential for arbitrary or discriminatory enforcement. ¶13 The gravamen of Stanislaw s complaint is that A.R.S. § 13-905(C) does not expressly notify a convicted felon, whose right to possess a firearm has not been restored, of the broader prohibition against possession of deadly weapons in A.R.S. § 13- 7 3102(A)(4), not that either statute is unclear. We do not find the statutes unconstitutionally vague on this ground. III. FAILURE TO USE CERTIFIED COURT REPORTER ¶14 Stanislaw next argues that the court fundamentally erred and denied him a fair trial when it failed to use a statecertified court reporter, and it abused its discretion denying his motion for new trial on this ground. in Stanislaw argues that the entire transcript is suspect because of the absence of certification. He specifically cites his recollection that one of the jurors said no when polled on the jury verdict, contrary to the transcript, although no objection was lodged at the time. The trial judge, however, personally certified the transcript on appeal after extensive review and an evidentiary hearing as substantially accurate and reliable as to all material aspects of this case and specifically found the record is accurate as to the polling of the jury. ¶15 on This issue first arose while this matter was pending appeal. Immediately after completion of the record on appeal, Stanislaw notified this court that he had discovered that Sue Baquet, the court reporter who prepared the transcripts for his two-day trial, was not then certified to act as a court reporter in Arizona courts. We remanded the matter for the purpose of permitting the trial court to certify the transcripts prepared and submitted by court reporter Sue Baquet in this 8 matter, and directed the superior court to rule on and certify the transcripts in furtherance of this appeal and transmit a certified copy of its written findings and/or any corrections to the clerk of this court. ¶16 On remand, Stanislaw filed a Motion to Vacate Judgment/Motion for New Trial in the trial court, arguing that the failure to provide a certified transcript prepared by a certified court reporter as dictated by Ariz. R. Crim. P. 31.8 required that the court vacate the judgment pursuant to Rule 24.2(a)(1)(2) and (3), and grant Stanislaw a new trial pursuant to Rule 24.1.3 Stanislaw contended that although the transcript submitted by Baquet showed that all jurors responded yes to the court s polling after the verdict was announced, Stanislaw distinctly recalls one of the jurors indicating that the juror did not support the guilty verdict as announced. He simultaneously filed a Rule 31.8(h) Motion for Correction or Modification of the Record, arguing that the court should correct this error and vacate judgment as the verdict was not unanimous. Stanislaw also identified three additional problems with the transcript: the absence of transcripts of two sidebar discussions, and an omission of specific statute number in transcription of another sidebar. 3 Stanislaw asked this court to stay his appeal to allow the trial court to hear his Motion to Vacate Judgment/Motion for New Trial. We deny the motion to stay as moot. 9 ¶17 The court found that the three sidebars were not germane to the issues, stated that it had not heard a juror say no during polling on the verdict, and found it inconceivable that the clerk would not have expressed a concern if this had happened, or that defense counsel would not have immediately objected. The court further advised Stanislaw s counsel that it was not sure that it had jurisdiction over the Motion to Vacate Judgment/Motion for New Trial. additional review of the The court subsequently ordered transcripts by the parties and by Baquet. ¶18 At the start of an evidentiary hearing on this matter, both the prosecutor and the court advised that each had reviewed the trial transcript and believed it to be accurate. Stanislaw s trial counsel testified that she recalled Stanislaw telling her during polling that one of the jurors had said no, although she did not herself hear the negative response, and she did not lodge an objection.4 Baquet testified that she had not had an opportunity to review her transcript, but would stand by its accuracy, and specifically its accuracy with respect to the polling of the jurors. She testified that she had been a court reporter for twenty-five years, and though her certification had 4 In an affidavit submitted after the hearing, she specifically identified only one additional ostensible error in the transcript, involving the judge s recollection on the second day of trial that he had struck certain testimony the previous day, a recollection not supported by the previous day s transcript. 10 lapsed through oversight in 2004, she passed the test to renew her certification but was denied certification in January 2009 for past infractions that had nothing to do with accuracy or timeliness. The court s clerk testified that she remembered that when the jury returned with a verdict in this case, Each juror answered affirmatively. ¶19 Yes. The court found that the trial transcript in this case is substantially accurate and reliable as to all material aspects of this case. In so finding, the Court specifically finds that the record is accurate as to the polling of the jury. This finding is based on all of the facts and circumstances, and, in particular, the testimony of the clerk. The court further found that the absence of a transcript of the sidebars was inconsequential, because the issues raised at the sidebars were already well briefed and had been ruled upon on the record. Accordingly, the court found that Stanislaw suffered no prejudice from the absence of a record of what was specifically said during the sidebars, and denied Stanislaw s Motion to lack of Vacate Judgment/Motion for New Trial. ¶20 Because Stanislaw failed to raise the certification issue below, we review his claim of denial of a fair trial for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Stanislaw accordingly bears the burden of 11 establishing that the trial court erred, that the error was fundamental, and that the error caused him prejudice. ¶21 Id. at 568, ¶ 22, 115 P.3d at 608. We will not overrule a trial court s certification of a record challenged on grounds of error or incompleteness if the record is of sufficient completeness for adequate consideration of the errors assigned. State v. Schackart, 175 Ariz. 494, 499, 858 P.2d 639, 644 (1993) (quoting State v. Moore, 108 Ariz. 532, 534, 502 P.2d 1351, 1353 (1972) (holding that record of trial reconstructed and certified by the court after original court reporter become unwilling or unable to transcribe his notes was adequate even though parts were garbled, but record of sentencing was inadequate to support death sentence); see Ariz. R. Crim. P. 31.8(h) ( If any controversy arises as to whether the record discloses what actually occurred in the trial court, the difference shall be submitted to and settled by the trial court. ). inadequate Nor will we reverse a conviction on the basis of an record unless appellant makes a showing of a credible and unmet allegation of reversible error. State v. Masters, 108 Ariz. 189, 192, 494 P.2d 1319, 1323 (1972). ¶22 Stanislaw has failed to meet his burden to show error, much less fundamental error. This is not a case like those on which Stanislaw relies, where relevant portions of the record were missing, forcing the reviewing court to rely on summary 12 findings of the trial court that were prepared months after the trial, or where there is no record whatsoever. ¶23 Not only was a verbatim transcript of the entire trial prepared by state an experienced certification had court reporter, lapsed, but albeit after one whose reviewing the transcript himself and conducting an evidentiary hearing, the trial judge certified that reliable in all respects. the transcript was accurate and The only portion of the record not transcribed were bench conferences that by all accounts simply reiterated the court s on-the-record admonishments to counsel. ruling in the form of The failure to transcribe these bench conferences was not fundamental error in these circumstances. See State v. Paxton, 186 Ariz. 580, 589, 925 P.2d 721, 730 (App. 1996) (holding that failure to record bench conferences was not fundamental, prejudicial error). We cannot say that the court erred in certifying the record on appeal and conclude that the record was fundamental adequate. error Accordingly, simply on the we basis decline of the to find absence of certification of the court reporter. ¶24 We further jurisdiction to conclude hear that the Stanislaw s Judgment/Motion for New Trial. jurisdiction the trial court in trial Motion This only court for court the to had no Vacate re-vested purpose of permitting the trial court to certify the transcripts prepared 13 and submitted by court reporter Sue Baquet in this matter. This limited jurisdiction did not allow the court to hear or rule on the Motion to Vacate Judgment/Motion for New Trial.5 IV. ACCEPTANCE OF STIPULATION ABSENT VALID WAIVER ¶25 Stanislaw finally argues that the court fundamentally erred in accepting his stipulation that he had a prior felony conviction and had not had the right to possess a firearm restored in the absence of a Rule 17-type6 colloquy ensuring the he had voluntarily stipulation. and intelligently entered into the Because he failed to raise this issue at trial, we review for fundamental error only. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. ¶26 We find no error in the court s acceptance of the stipulation absent a colloquy ensuring that his waiver of rights was voluntary, intelligent, and knowing. Our supreme court recently vacated the portion of this court s opinion in State v. Allen, 220 Ariz. 430, 207 P.3d 638 (App. 2008), on which 5 Moreover, Stanislaw filed the Motion to Vacate Judgment/Motion for New Trial more than five months after the jury verdict, and nearly four months after entry of judgment and sentence, exceeding the allowable time limit under the governing rules, Ariz. R. Crim. P. 24.2(a) and 24.1(b), thereby depriving him of the availability of these measures of relief. Stanislaw s failure to file the motion for new trial within the time limit deprived the court of jurisdiction to rule on it. State v. Hill, 85 Ariz. 49, 53-54, 330 P.2d 1088, 1090 (1958). 6 Rule 17 of the Ariz. R. Crim. P. governs acceptance of pleas of guilty and no contest. 14 Stanislaw relies. See State v. Allen, 223 Ariz. 125, 126, 129, ¶¶ 1, 22, 220 P.3d 245, 246, 249 (2009). Our supreme court held that due process does not require a full Rule 17 colloquy in the absence of a guilty plea, and specifically does not require it when the defendant stipulates to facts comprising elements of the offense. See id. at 128-29, ¶¶ 18-20, 220 P.3d at 248-49. Like the appellant in Allen, Stanislaw stipulated only to certain facts comprising one of the elements of the offense, and disputed the facts comprising another key element -- that the weapons he possessed were deadly weapons. Pursuant to Allen, we find no error. See id. CONCLUSION ¶27 For the foregoing reasons, we affirm Stanislaw s conviction and sentence. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ MARGARET H. DOWNIE, Presiding Judge /s/ ____________________________________ DONN KESSLER, Judge 15

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