State v. Gittings

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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. ) ) SARAH LEANNE GITTINGS, ) ) Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 04/29/10 PHILIP G. URRY,CLERK BY: JT No. 1 CA-CR 09-0548 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-006555-003 DT The Honorable Sally Schneider Duncan, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Jeremy D. Mussman, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Sarah Leanne Gittings ( Defendant ) appeals from the superior court s judgment of guilt and its imposition of sentence for forgery, a class four felony pursuant to A.R.S. § 13-2002. ¶2 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant s appellate counsel has searched the record on appeal and finds no arguable question of law that is not frivolous. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona, but did not do so. Counsel now asks this court to independently review the record for fundamental error. error. We have done so, and find no fundamental Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY1 ¶3 In June 2008, the State filed a complaint charging Defendant with one count of forgery pursuant to A.R.S. § 13-2002 (2010)2 and one count of aggravated another pursuant to A.R.S. § 13-2009. taking the identity of In August 2008, Defendant 1 We view the evidence in the light most favorable to sustaining the verdict[] and resolve all inferences against [Defendant]. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997) (citation omitted). 2 We cite to the current versions of statutes revisions material to our decision have since occurred. 2 when no was indicted for the offenses set forth in the complaint. was arraigned and entered a not guilty plea. She She rejected the State s plea offer, and the case proceeded to a jury trial. ¶4 At trial, the State presented evidence that on May 29, 2008, Defendant used another person s driver s license and attempted to cash a check which the parties stipulated was forged at a check-cashing and convenience store. ¶5 The store owner testified that Defendant and another woman exited a car and asked him to cash their paychecks, which were from the same employer. The other woman presented her check first, and then Defendant presented her check. The store owner called police because he recognized that the checks were forgeries. Police responded, took Defendant into custody, and interviewed her. The detective who conducted the interview testified that Defendant told him she had traveled to the store by car Before with several Defendant friends, exited the including car, Sam a man gave her called the Sam. driver s license and the forged check and told her to cash the check. Defendant admitted to the detective that a few days before her arrest, she had cashed a check for Sam and he allowed her to keep a portion of the cash. ¶6 Defendant testified on her own behalf. She testified that when Sam told her to cash the check on May 29, she was surprised and told Sam that she 3 would not comply with his instruction. In response, Sam reiterated the instruction. Defendant felt intimidated and frightened, but again told Sam that she would not comply. He told her to do as he said or she would regret it or would be sorry. ¶7 Defendant entered the store, got a drink, and went to the counter where her friend was already attempting to cash her forged check. The friend asked Defendant whether she was going to cash her check. Defendant felt ganged up on and tried to cash her check, knowing that it was forged. ¶8 After hearing closing arguments and considering the evidence, the jury found Defendant guilty of forgery. The jury was unable to reach a unanimous verdict regarding aggravated taking the identity of another. ¶9 In the aggravation phase of the trial, the jury found three aggravating factors: (1) the offense involved the presence of an accomplice; (2) Defendant committed the offense as consideration for the receipt or in the expectation of the receipt of anything of pecuniary value; committed the offense while on probation. and (3) Defendant While testifying, Defendant had admitted to the prior felony conviction for which probation had been imposed. ¶10 At sentencing, the State withdrew its allegation that Defendant had committed the offense while on probation. court imposed a super-mitigated 4 sentence of 2.25 years The of imprisonment, with credit for 119 days of presentence incarceration. ¶11 Defendant timely appeals. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and 13- 4033(A)(1). DISCUSSION ¶12 The record reveals no fundamental error. Defendant was present and represented by counsel at all critical stages. The record of voir dire does not demonstrate the empanelment of any biased jurors, and the jury was properly comprised of eight jurors and one alternate. ¶13 See A.R.S. § 21-102(B) (2002). The evidence that the State presented at trial was properly admissible and was sufficient to allow the jury to find Defendant guilty of the charged offense. instructed regarding the offense and The jury was properly Defendant s affirmative defense of duress. ¶14 After the jury returned its verdict, received and considered a presentence report. the court At the sentencing hearing, Defendant was given the opportunity to speak, and the court stated on the record the considered in imposing sentence. evidence and materials it The court then imposed a legal sentence for the offense, and correctly calculated Defendant s presentence incarceration credit. 5 CONCLUSION ¶15 find We have reviewed the record for fundamental error and none. Accordingly, Defense See we affirm counsel s come to an end. 684 P.2d 154, Leon, 104 Ariz. Defendant s obligations at 300, 451 conviction pertaining to P.2d and this at 881. sentence. appeal have See State v. Shattuck, 140 Ariz. 582, 584-85, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and her future options. has thirty days from the date of this petition for review in propria persona. 31.19(a). Id. decision Defendant to file a See Ariz. R. Crim. P. Upon the court s own motion, Defendant has thirty days from the date of this decision in which to file a motion for reconsideration. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ____________________________________ DANIEL A. BARKER, Judge 6

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