State v. Pino

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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. NAHUM JOSUE PINO, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 11/03/2011 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CR 10-0887 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-155388-001 DT The Honorable Samuel A. Thumma, Judge AFFIRMED Thomas C. Horne, 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 Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Nahum Josue Pino (defendant) conviction and the sentence imposed. appeals from his For the reasons set forth below, we affirm. ¶2 Defendant's appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, she was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has not done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). ¶4 Defendant was charged by information with one count of criminal trespass in the first degree, a class six felony, in violation of Arizona Revised Statutes section 13-1504(A)(1), (B) (Supp. 2010). 2 ¶5 The following evidence was presented at trial. On the morning of July 10, 2009, E.W., a paraplegic, and her nine-yearold son left their home to run several errands. When they returned home a few hours later, E.W. noticed that the side gate of her home was open. When she went around back, she also noticed that the back door was open. E.W. attempted to call 9-1-1 on her cellular phone, but was unsuccessful. ¶6 Remaining outside the gate, but leaning in, E.W. then asked [I]s anybody there[?] Hearing no response, E.W. decided to go into the house to grab the house phone. While attempting to reach the landline, E.W. heard movement from her computer chair, looked up, and saw defendant. She asked [W]hat [] are you doing in my house? Don t move. Defendant responded I m looking for Benjamin. E.W. Benjamin here. Don t move. told defendant [t]here is no As she rolled back to grab the landline, defendant shoved, punched, and pushed her to make his way out of the house and then fled. ¶7 this At trial, E.W. testified that, several weeks before event, house. Benjamin. ¶8 she had observed defendant walking around her Defendant also came to the front door and asked for E.W. reported the matter to the police. On August 13, 2009, G.W., E.W. s husband, observed defendant walking down at the end of [his] cul-de-sac and recognized him as the same individual who had come to his front 3 door asking for Benjamin. followed G.W. defendant, then entered, knocked and and on when G.W. immediately got in his van, watched the front defendant Benjamin, I found you. him walk door opened into of the the another home door, home. defendant G.W. said Defendant shut the front door and ran out his side door and down the street. G.W. called 9-1-1 and then continued following defendant until the police arrived and placed him under arrest. ¶9 On August 19, 2009, Detective Michael Ross, of the Phoenix Police Department, went to E.W. s home and presented her with a photo line-up. Almost immediately, E.W. picked out defendant from the line-up. ¶10 After a guilty as charged. historical prior three-day trial, the jury found defendant The trial court found that defendant had two felony convictions and sentenced him to a slightly aggravated term of 4.25 years in prison with 426 days of presentence incarceration credit. ¶11 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. Defendant was given an opportunity to speak before sentencing, and the sentence imposed were within statutory limits. Furthermore, 4 based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offense for which he was convicted. ¶12 After obligations appeal have the pertaining ended. filing to of this defendant's Counsel need decision, counsel s representation do no more than in this 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's conviction and sentence are affirmed. _/s/_____________________________ PHILIP HALL, Judge CONCURRING: _/s/_________________________________ MICHAEL J. BROWN, Presiding Judge _/s/_________________________________ PATRICIA K. NORRIS, Judge 5

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