State v. Smith

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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©; ARCAP 28©; Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) DONALD CHARLES SMITH, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN No. 1 CA-CR 10-0019 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-136858-001 DT The Honorable Michael W. Kemp, Judge AFFIRMED Terry Goddard, Arizona 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 Stephen R. Collins, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 Donald Smith ( defendant ) appeals his conviction for disorderly conduct, a class 6 felony in violation of Arizona Revised Statutes ( A.R.S. ) section 13-2904 (2010). 1 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 he has thoroughly searched the record and found no arguable question of law and fundamental error. 857 P.2d 388, requests that we review the record for See State v. Richardson, 175 Ariz. 336, 339, 391 (App. 1993). Defendant was given the opportunity to file a supplemental brief in propria persona, but he has not done so. On appeal, we view the evidence in the light most favorable to sustaining the conviction. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 State v. (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 On June 2, 2009, defendant went to an Auto Zone store with an old car battery. He set it down in the back of the store, where he took a new battery and left without paying. The store was manager, connecting the R.B., new went battery outside, to his 1 car. where He defendant asked We cite to the current version of statutes revisions material to this decision have occurred. 2 defendant when no whether he had paid for the battery. not and offered sorry, dude. to leave his Defendant replied he had identification, stating, I m I ll go get the money and I ll be back. . . . I just need a loaner. I ll be back. R.B. told him he could not do that and that he would need to pay. ¶3 A verbal altercation ensued. battery back into the store. asked to leave. the hell called I took the new Defendant followed him and was Defendant cursed and said, I can do whatever want. R.B. R.B. Defendant nothing but a retrieved bitch as his old he left battery the and store. Defendant was reconnecting his old battery to his car when R.B. went outside and demanded he leave the parking lot. From a few feet away, defendant snapped open a knife, which he pointed at R.B., threatening, police. Back off me, bitch. R.B. called the Responding officers found defendant with a knife in his pocket. ¶4 Defendant was assault, a 3 class historical priors, probation, that it charged dangerous that was the a with one felony. offense dangerous was count The of State committed felony, aggravated and alleged while on additional aggravators. ¶5 At the conclusion of the State s case, defendant moved for a judgment of acquittal pursuant to Arizona Rule of Criminal Procedure ( Rule ) 20, which was denied. 3 Defendant testified and admitted a prior felony conviction and being on probation at the time of this offense. He claimed he took out the knife to open the trunk because the trunk-release button was inoperable due to the dead battery. He denied pointing the knife at R.B. or threatening him with it. ¶6 The jury was instructed on aggravated assault and the lesser-included offenses of assault and disorderly conduct. It returned a guilty verdict as to disorderly conduct and found it to be a dangerous offense. Because a weapon was involved, and defendant had admitted a prior felony and being on probation, the court sentenced him to an aggravated term of three years imprisonment, credit. with 218 days of pre-sentence incarceration See Ariz. Rev. Stat. § 13-703(F), (K) (2010). DISCUSSION ¶7 We have considered the brief counsel and reviewed the entire record. error. the by defense We find no fundamental All of the proceedings were conducted in compliance with Arizona imposed submitted was Rules of within Criminal the Procedure, statutory range. and the There sentence were no irregularities in the deliberation process. ¶8 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. Crim. P. 20. Substantial evidence 4 is such Ariz. R. 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) (citations insufficiency of omitted). the Reversible evidence occurs error only where 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). ¶9 The State presented substantial evidence of guilt, including testimony from R.B., a store clerk, and the arresting officers. for it things Defendant admitted taking the battery without paying and to going R.B. back into the store When R.B. followed and him saying colorful outside, defendant admitted he snapped open a knife and told R.B. to back off from three to four feet away. CONCLUSION ¶10 We affirm defendant s conviction and sentence. 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 review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 5 156-57 (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, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 6

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