State v. Cuevas-Graciano

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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. ) ) MARGARITO CUEVAS-GRACIANO, ) ) Appellant. ) _________________________________ ) DIVISION ONE FILED: 06-08-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0856 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2008-162233-001 SE The Honorable Connie Contes, Judge AFFIRMED Terry Goddard, Attorney General By Kent Cattani, Chief Counsel Criminal Appeals Section Attorneys for Appellee Phoenix James J. Haas, Public Defender By Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 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). Counsel for Margarito Cuevas-Graciano (defendant) has advised us that, after searching the entire record, he has been unable to discover any arguable questions of law and has filed a brief requesting this court to conduct an Anders review of the record. Defendant has been afforded an opportunity to file a supplemental brief in propia persona, and he has not done so. At defendant s request, however, his counsel asks this court to search the record for error with regard to insufficiency of the evidence. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Defendant was charged by indictment with three counts of armed robbery, class 2 dangerous felonies and three counts of kidnapping, class 2 dangerous felonies. The following evidence was presented at trial. 1 ¶3 In October 2008, defendant and three other men robbed a Mesa pawn shop. Two of the victims, R.B. and M.C., were held at gun point and bound with zip ties during the robbery. Victim L.A. was held at gun point and ordered around the shop opening doors, registers, and jewelry cases for the robbers. Approximately $40,000 in cash and property were taken during the 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against defendant. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 robbery. A witness saw the four robbers leave the shop with items in their hands in a late model red Nissan Pathfinder. witness also testified that the vehicle had a The distinctive sticker resembling bullet holes on its rear as well as a license plate ending in M-A-X. police officer description ending in began given by Z-A-X . A few hours after the robbery, a surveillance of a the witness which The police vehicle had followed a the matching license the plate Pathfinder and observed a white Dodge Stratus following it. ¶4 Police initiated traffic stops with both vehicles and observed defendant s wife driving the Pathfinder and defendant driving the Stratus. Defendant consented to searches of both vehicles and his apartment. The search uncovered a ring in the Pathfinder which had a tag on it consistent with items from the pawn shop. The ring and tag number were also listed on the inventory of stolen goods from the shop. ¶5 Defendant told police that no one, other than himself, had access to the Pathfinder on the day of the robbery. Victim R.B. testified that the robbers spoke a style of Spanish that was common to the Sinaloa region of Mexico. police that he was born in Sinaloa, Mexico. Defendant told Surveillance video of the robbery was recovered and a detective testified that the appearance of one of the robbers matched that of defendant. 3 ¶6 Defendant moved for judgment of acquittal on the grounds that the state did not meet its burden of proof to allow the matter motion. to go forward to a jury. The court denied the A jury found the defendant not guilty on the three counts of kidnapping but convicted defendant of three counts of armed robbery, class 2 felonies. 2 The court sentenced defendant to concurrent terms of five years imprisonment on counts 1 and 2 with 350 days of presentence incarceration credit. As to count 3, the court suspended the imposition of sentence and placed defendant on supervised probation upon absolute discharge from imprisonment. sentence. of the (A.R.S.) Defendant timely appealed his conviction and We have jurisdiction pursuant to Article 6, Section 9 Arizona §§ Constitution 12-120.21(A)(1) and Arizona (2003), Revised 13-4031 and Statutes -4033(A)(1) (2010). Discussion ¶7 In Anders appeals, we review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Defendant asks, through counsel, that we review the record to determine whether the evidence presented at 2 trial was The jury offense. sufficient found that to sustain defendant 4 did a not conviction commit a of armed dangerous robbery. ¶8 We review the sufficiency of evidence presented at trial only to determine support the verdict. if substantial evidence exists to State v. Stroud, 209 Ariz. 410, 411, ¶6, 103 P.3d 912, 913 (2005). Evidence is sufficient when it is more than a scintilla and is such proof as a reasonable mind would employ Tison, 129 to Ariz. support 546, the 553, conclusion 633 P.2d reached. 355, 362 State (1981). v. If reasonable men may fairly differ as to whether certain evidence establishes a fact in issue, considered as substantial. ¶9 then such evidence must be Id. The state presented testimony and substantial evidence that defendant was present at the scene of the crime. First, a witness testified that a red Nissan Pathfinder with a license plate ending in A-X and adorned with a sticker of faux bullet holes was the getaway car for the perpetrators. Defendant s vehicle matched the description given by the witness. Second, defendant told police that he was the only person with access to the Pathfinder on the day of the robbery. Third, a stolen ring from the pawn shop was found inside the Pathfinder during a search of defendant s vehicle. Finally, one of the victims testified that the robbers spoke in a Spanish dialect common to a region of Mexico defendant is 5 from. For the foregoing reasons, we find that substantial evidence exists to support the jury s verdict. Conclusion ¶10 We have read and considered counsel=s brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. was adequately So far as the record reveals, defendant represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), defendant=s counsel=s obligations in this appeal are at an end. ¶11 We affirm the conviction and sentence. /s/ _____________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ MICHAEL J. BROWN, Presiding Judge /s/ ___________________________________ SHELDON H. WEISBERG, Judge 6

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