State v. Becker

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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. ) ) MICHAEL ROBERT BECKER, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05-20-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0465 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-164700-002 DT The Honorable Lisa M. Roberts, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce F. Peterson, Maricopa County Legal Advocate By Kerri L. Chamberlin, Deputy Legal Advocate Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Michael Robert Becker ( defendant ) timely appeals his convictions for burglary, possession of burglary tools, and possession or use of dangerous drugs, in violation of Arizona Revised Statutes ( A.R.S. ) (2010), and -3407 (2010). 1 sections 13-1507 (2010), -1505 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 advised that she has thoroughly searched the record and found no arguable question of law and requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given the opportunity to file supplemental brief in propria persona but has not done so. a On appeal, we view the evidence in the light most favorable to sustaining the convictions. 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 On October 16, 2008, K.M. saw a man peering into the window of neighbor S.A. s house. parked in waiting. front of another The man walked back to a car house, where a young They drove down the street very slowly. S.A. at work to tell her what she had seen. woman was K.M. called S.A said she was not expecting anyone at her home and to call the police if they returned. window. backyard. K.M. went over to S.A. s house and looked through a She saw the same car, which was now parked in S.A. s K.M. called 9-1-1. 1 We cite to the current version of statutes revisions material to this decision have occurred. 2 when no ¶3 Defendant was inside S.A. s house when police arrived. Through a window, Officer M.H. saw a woman running through the house and into the backyard. Officers entered the backyard from the as alley and arrested her she tried to scale a wall. Defendant exited the rear door of the house. Officer T.C. drew his weapon and ordered him to the ground. Before complying, defendant emptied his pockets of a pair of black gloves, a TV remote, and a large screwdriver. ¶4 and After found a substance. Defendant baggie baggie arrest, containing a Officer M.H. crystalline, searched him white-powdery Officers administered Miranda warnings to defendant. told committing defendant s a Officer burglary. was M.H. his name Defendant methamphetamine, and admitted he was said the substance in the which lab tests confirmed. Defendant described to Officer J.H. how he picked S.A s house after driving accomplice. through the neighborhood with the female He made sure nobody was at home, went around to the back of the house, and broke in through the rear door. he wore gloves to avoid leaving fingerprints. He said He stated he was out of work and had a drug habit. ¶5 Defendant was indicted for burglary in the second degree, a class 3 felony; possession of burglary tools, a class 6 felony; and possession of methamphetamine, a dangerous drug, a class 4 felony. The State alleged five historical priors, as 3 well as aggravating circumstances. for trial; the court found he Defendant failed to appear was voluntarily absent and proceeded with a jury trial in absentia. ¶6 After the State rested, defense counsel moved for a judgment of Procedure acquittal ( Rule ) 20. pursuant The to court defense presented no witnesses. Arizona denied Rule the of Criminal motion. The After closing arguments, an aggravation hearing was held before the jury. S.A. testified about property damage, loss of work, and emotional harm she and her family suffered as a result of the burglary. ¶7 The jury deliberated and returned a verdict of guilty on all counts. including the In addition, it found three aggravating factors, presence of an accomplice, commission of the offense for pecuniary gain, and emotional or financial harm to the victim. sentencing abuse as Defendant admitted two prior felony convictions for purposes. a mitigating After considering factor, the defendant s trial court aggravated prison term of eighteen years on count 1. substance imposed an Defendant received a concurrent, aggravated prison term of four years for count 2, and a presumptive term of eleven years for count 3. 2 2 Defendant also received a concurrent ten-year prison sentence in CR 2009-122234 for forgery. That offense is unrelated to this appeal. 4 DISCUSSION ¶8 We have read and considered the brief submitted by defense counsel and reviewed the entire record. at 300, 451 P.2d at 881. Leon, 104 Ariz. We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. ¶9 The trial court properly denied defendant s Rule 20 motion. A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. Ariz. R. Crim. P. 20. Substantial evidence 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. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (citation insufficiency of omitted). the Reversible error occurs where evidence only based there on is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶10 The State presented substantial evidence of guilt, including testimony by K.M., the victims, and police officers. The victims testified they did not know defendant or give him permission to be in their home. Officers testified defendant confessed after receiving Miranda warnings. 5 that Based on the evidence presented, a reasonable jury could have found defendant guilty of the charged offenses. CONCLUSION ¶11 We affirm defendant s convictions and sentences. Counsel s obligations pertaining to defendant s representation in this appeal have ended. Counsel need do nothing more than inform defendant 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, defendant 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. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 6

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