State v. Busby

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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. ) ) MAGNUS JOEL BUSBY, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 12/27/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 11-0368 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-125734-001 DT The Honorable Barbara L. Spencer, Judge Pro Tem 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 Stephen R. Collins, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 attempted Magnus Joel Busby timely appeals his conviction for acquisition or administration of narcotic drugs in violation of Arizona 13-3408(A)(6). Revised Statutes ( A.R.S. ) section Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel question of has law, and fundamental error. 857 P.2d 388, searched the asked that record, we in conviction. review the no arguable record for See State v. Richardson, 175 Ariz. 336, 339, 391 (App. 1993). supplemental brief in propria persona. evidence found the light most Busby did not file a On appeal, we view the favorable to sustaining the State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 In February prescription 2009, allegedly hydrocodone pills. Busby signed by attempted Dr. to Brett fill Beloud a for The pharmacist, Guadalupe Castillo, found the prescription suspicious. It prescribed over 100 pills, was dated that same day (a Saturday), and did not have a watermark. Castillo told Busby he would have to wait while Castillo called Dr. Beloud to verify the prescription. Dr. Beloud advised Castillo that he did not authorize the prescription. ¶3 When Busby returned, Castillo instructed a technician to call the police. store. Before officers arrived, Busby left the Officers got Busby s name and description and obtained a copy of the pharmacy s surveillance video. 2 A few weeks later, Castillo identified Busby in a photo lineup. Castillo also identified Busby in the surveillance video. ¶4 Busby was indicted for attempted acquisition administration of narcotic drugs, a class 4 felony. released on his own recognizance. or He was When he failed to appear for his arraignment, the court issued a bench warrant. Busby was arrested and was ultimately released under the supervision of pre-trial services. Although Busby had notice hearing and trial dates, he failed to appear. of pre-trial The court issued another bench warrant, found Busby s absence to be voluntary, and permitted a jury trial in absentia. ¶5 Castillo, testified. At Dr. the Beloud, conclusion and the the State s of police officers case-in-chief, defense counsel moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules motion was denied. Busby was imprisonment, Criminal Procedure ( Rule ). The The jury found Busby guilty as charged. sentenced with of 126 to a mitigated days of term pre-sentence of 8 years incarceration credit. 1 1 Busby was in custody from October 10, 2009, to December 1, 2009, and April 12, 2010, to June 23, 2010 -- the day he was sentenced, totaling 125 days. The court credited him with 126 days. Because the State has not appealed, we will not disturb the calculation. See State v. Lee, 160 Ariz. 323, 324, 772 P.2d 1176, 1177 (App. 1989) (failure by State to appeal an incorrect pre-sentence incarceration credit waives the error). 3 DISCUSSION ¶6 We have read and considered the briefs submitted by counsel and have reviewed the entire record. 300, 451 P.2d at 881. Leon, 104 Ariz. at We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Busby had notice of all court dates and was represented by counsel. instructed. The offenses charged. jury The jury was properly impaneled and instructions were consistent with the The record reflects no irregularity in the deliberation process. ¶7 The trial court properly denied the Rule 20 motion. judgment of acquittal is appropriate only when substantial evidence to warrant a conviction. P. 20. Substantial evidence is such proof there is A no Ariz. R. Crim. 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 omitted). Reversible error based on insufficiency of the evidence occurs only where there 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). ¶8 The State presented substantial evidence of guilt. A person commits acquisition or administration of a narcotic drug 4 when he knowingly administration of . . a . [o]btain[s] narcotic drug misrepresentation or subterfuge. § 13-3408(A)(6). Hydrocodone or by procure[s] fraud, the deceit, Ariz. Rev. Stat. ( A.R.S. ) is a narcotic drug. A.R.S. § 13-3401(20)(iii), (21)(n). An attempt occurs when a person [i]ntentionally . does . . anything which, under the circumstances as such person believes them to be, is any step in a course of conduct planned to culminate in commission of an offense. ¶9 A.R.S. § 13-1001(A)(2). Castillo testified that Busby attempted to fill a prescription for hydrocodone allegedly authorized by Dr. Beloud. The prescription slip contained Dr. Beloud s name and his forged signature. Dr. Beloud testified that he never authorized such a prescription pharmacy s for Busby. surveillance Castillo video and identified in a Busby the lineup photo on as the person who presented the fraudulent prescription. The evidence presented was sufficient to support the jury s verdict. CONCLUSION ¶10 We affirm Busby s conviction and sentence. Counsel s obligations pertaining to Busby s representation in this appeal have ended. the status Counsel need do nothing more than inform Busby of 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. 5 State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Busby shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or review. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PETER B. SWANN, Judge /s/ DONN KESSLER, Judge 6 petition for

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