State v. Kavoka

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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. RYAN MICHAEL KAVOKA, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-29-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0516 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-030870-001 SE The Honorable Glenn M. Davis, Judge CONVICTION AND SENTENCE AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Sharmila Roy Attorney for Appellant Laveen J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following conviction of aggravated assault. Ryan Michael Kavoka s Kavoka s counsel has searched the record and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Kavoka was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Kavoka s conviction and sentence. FACTUAL AND PROCEDURAL HISTORY ¶2 At about 6 p.m. on October 28, 2006, the victim, S.P., was walking from his apartment to his sister s apartment in the same complex.1 He and his brother got into an altercation with some other individuals in the apartment complex. The exact circumstances of the fight are unclear, but the record suggests that S.P. s brother threw a beer bottle and injured one of the other individuals. After the fight, S.P. returned to his apartment. ¶3 for About 11:00 p.m. the same evening, S.P. again set out his sister s apartment. While entering her apartment through the patio door, he heard a voice yell at him, heard gun 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Kavoka. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 shots and then he felt pain in his stomach. S.P. had sustained graze wounds to his stomach and his finger. ¶4 Police apartment next apartment. patio of found door shell and casings bullet on strikes the in patio S.P. s of the sister s A gun was found in an overturned barbecue on the a nearby apartment. On December 2, 2006, Officer Dailey interviewed Kavoka, who was in custody on an unrelated charge. Kavoka admitted to shooting S.P. When asked why he had shot S.P., Kavoka stated he was intoxicated and was angry at the guys that busted the beer bottle over [his] homie s head. ¶5 The State charged Kavoka with one count of aggravated assault, a dangerous offense. jury found Kavoka guilty. After a five-day jury trial, the The superior court sentenced Kavoka to a five-year prison term, the minimum sentence for a Class 3 dangerous felony. ¶6 to Kavoka timely appealed. Article 6, Section 9, of We have jurisdiction pursuant the Arizona Revised Statutes sections Arizona Constitution, and 12-120.21(A)(1) (2003), 13- 4031 (2010) and -4033 (2010). DISCUSSION ¶7 In his opening brief, Kavoka suggests the superior court erred by determining he was competent for trial. His lawyer asserts Kavoka did not remember any details about the 3 alleged offense and appeared unable to assist counsel in his trial. the However, prior to trial, the parties agreed to accept competency opinion of Dr. Gary Freitas, and, examination, Freitas concluded Kavoka was competent. after an In support of that conclusion, Freitas noted that Kavoka perfectly answered questions on case history and validity, as well as nearly 90 percent of the legal questions. ¶8 his Kavoka s counsel also questions the voluntariness of statements transcript of during the misrepresentations matters his police interview to relating discloses Kavoka to interview. about the Although that their police investigation crime, an a made and interrogator s misrepresentations to a suspect about the investigation do not render the suspect s subsequent confession involuntary. See State v. Winters, 27 Ariz. App. 508, 511, 556 P.2d 809, 812 (1976) ( deception inadmissible ). alone does not render a statement In the absence of threats, violence or other evidence tending to show Kavoka s will had been overborne, the totality of voluntarily. ¶9 the circumstances indicate his confession was See id. Additionally, the detective who questioned Kavoka did not promise leniency or offer any benefit to him. See State v. Walton, 159 Ariz. 571, 578-79, 769 P.2d 1017, 1025-26 (1989) 4 (confession voluntary despite interrogator s urging suspect to [g]ive yourself a chance and assuring him [i]t s nothing that can t be worked out ); State v. McVay, 127 Ariz. 18, 20, 617 P.2d 1134, 1136 (1980) (statements of opinion or about a mere possibility are insufficient to render a confession involuntary). ¶10 The record reflects Kavoka received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. held appropriate pretrial hearings. The court The court held a Donald hearing and a voluntariness hearing. ¶11 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. properly comprised of eight members. The The jury was court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was confirmed by juror polling. The court received and considered a presentence report and addressed its contents during the sentencing hearing and imposed a legal sentence on the charges crimes of which Kavoka was convicted. 5 arising out of the CONCLUSION ¶12 We have reviewed the entire record for reversible error and find none. ¶13 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations pertaining to Kavoka s representation in this appeal have ended. Defense counsel need do no more than inform Kavoka of the outcome of this appeal and his future options, 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). On the court s own motion, Kavoka has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Kavoka has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/____________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/________________________________ PATRICIA A. OROZCO, Presiding Judge /s/________________________________ JON W. THOMPSON, Judge 6

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