State v. Jokic
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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, v. NEDJO JOKIC, ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) ) 1 CA-CR 09-0646 DIVISION ONE FILED: 07/21/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-148643-001 DT The Honorable John R. Hannah, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee DeBrigida Law Offices, P.L.L.C. By Ronald M. DeBrigida, Jr. Attorneys for Appellant Nedjo Jokic Appellant W I N T H R O P, Judge Phoenix Glendale Tucson ¶1 Nedjo Jokic ( Appellant ) appeals from his conviction for one count of sexual conduct with a minor (under the age of fifteen) and sentence of twenty flat years imprisonment. Appellant s counsel has 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), stating that he has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). This court has also allowed Appellant to file a supplemental brief in propria persona. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). Finding no reversible error, we affirm Appellant s conviction and sentence. PROCEDURAL HISTORY AND FACTS 1 ¶3 On July 26, 2007, a 14-year-old child ( M.A. ) who had been exercising at an L.A. Fitness Center approached one of the 1 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 employees and stated that he had been sexually molested by a man in the wet sauna. M.A. identified Appellant as the person who had molested him, and the Appellant was detained by the staff of L.A. Fitness. Appellant When and took the him police to the arrived, station they for handcuffed questioning. A subsequent search of L.A. Fitness revealed neither DNA nor other physical evidence of the crime. ¶4 Once Appellant arrived at the police station, it was determined that he could only speak Serbian. Officer Armin Borovac, a Serbian translator certified by the Phoenix Police Department, was then called to the police station to assist in the interrogation. Once Officer Borovac arrived, he read Appellant his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and began questioning him. Officer Borovac, who is of Bosnian descent, gave Appellant a false Serbian name and also falsely stated that he was Serbian so that Appellant would trust him. Although Appellant gave differing accounts as to his actions that day, he steadfastly denied the allegations against him. The police also swabbed Appellant s mouth and genitals for DNA samples. After being told that these samples were going to be collected, Appellant was recorded on video wiping out the inside of his mouth. ¶5 On May 22, 2008, Appellant was indicted on two counts of knowingly or intentionally engaging in sexual intercourse or 3 oral sexual contact with a minor under the age of fifteen, a Class 2 felony and a dangerous crime against children. A.R.S §§ 13-1401 (2010) and 13-1405 (2010). 2 See Count 1 accused Appellant of performing oral sex on M.A., and Count 2 accused Appellant of placing his penis into M.A. s mouth. Appellant was arrested and taken into custody on May 26, 2008. ¶6 A twelve-member jury panel was selected and the case proceeded to trial on June 16, 2009. Appellant was represented at trial, was provided with a court-appointed interpreter, and was present for all portions of the trial. ¶7 On the first day of trial, M.A. testified that on July 26, 2007, he entered the dry sauna in L.A. Fitness where he encountered both Appellant and a second unidentified man. stated that Appellant individual left the sauna. began masturbating and the M.A. other When M.A. attempted to leave the dry sauna, Appellant grabbed him and ordered him to enter the wet sauna. M.A. testified that upon Appellant performed oral sex on him. entering the wet sauna, Appellant then forced M.A. to perform oral sex on him until he ejaculated. After this occurred, M.A. left the wet sauna, and after some time, alerted the staff of L.A. Fitness to what had occurred. The police later interviewed M.A. and swabbed DNA samples from his mouth 2 We cite the current version of the applicable statute because no revisions material to this decision have occurred. 4 and genitals. Several L.A. Fitness employees were called to corroborate M.A. s testimony. ¶8 Various investigation police and officers subsequent testified interrogation regarding Appellant. of the At trial, Officer Borovac admitted that while he was translating, he paraphrased both the detective s questions and Appellant s answers, failed Appellant, and to translate noted that certain there transcript of the interrogation. 3 were responses various made errors by in the The State also presented DNA analysts who had tested the DNA samples collected from both M.A. and Appellant. The analysts found one single sperm cell in the oral sample taken from M.A. and both non-nucleated and nucleated material in all the remaining samples. Although neither the additional DNA nor the sperm cell on M.A. s samples directly matched Appellant s, vice versa. it was consistent with Appellant s, and It was also revealed that one of the analysts had inadvertently contaminated one of M.A. s samples with her own DNA. ¶9 The defense presented one character witness who saw Appellant on the day of the testified on his own behalf. was sitting in the dry incident, and Appellant also Appellant testified that when he sauna, 3 M.A., and not he, began to As a result of Officer Borovac s testimony, Appellant s counsel raised a Brady issue that was considered and rejected by the court. 5 masturbate. Appellant stated that M.A. then approached him, grabbed his crotch, and unsuccessfully attempted to perform oral sex on him. He stated that he had not visited the wet sauna that day and did not approach the L.A. Fitness staff regarding the incident because he could not speak English. Appellant explained that he did not tell the police about these events because he realized Officer Borovac was not Serbian and did not trust him to give an accurate translation. He also explained that he had wiped out his mouth before he was swabbed for DNA because his dentures had become loose. ¶10 On July 8, 2009, the jury found Appellant not-guilty on Count 1 and guilty on Count 2. was sentenced to the On August 14, 2009, Appellant presumptive flat term of twenty years imprisonment and was awarded 452 days of pre-sentence credit. At the sentencing hearing, Appellant made a statement to the court on his own behalf. No historical priors were alleged and no aggravating factors were requested. Counsel for Appellant filed a timely notice of appeal. ANALYSIS ¶11 both In the his evidence supplemental and brief, testimony Appellant presented by contends the State that were either unreliable or untrustworthy and the jury erred in relying on it to convict him. He also argues that his counsel should have allowed him to take a lie detector test per his request. 6 Finally, Officer Appellant Borovac, argues should that have his Serbian translated for friend, him when and not he was interrogated by the police. ¶12 Addressing Appellant s first argument, we affirm the principle that it is the role of the jury, and not the appellate court, to weigh the evidence and determine the credibility of witness testimony. State v. Lewis, 224 Ariz. 512, 516, ¶ 21, 233 P.3d 625, 629 (App. 2010) (noting further that we view the evidence in the light most favorable to sustaining the verdict ); see also State v. Bronson, 204 Ariz. 321, 328, ¶ 34, 63 P.3d 1058, 1065 (App. 2003) (reiterating that a jury is free to give credit or discredit to witness testimony and that the appellate court cannot guess what the jury relied on to reach its decision (citation omitted)). the record to suggest that the We do not find anything in jury erred in reaching its verdict. ¶13 Appellant s second argument, that his counsel erred by failing to arrange for a lie detector test, is essentially an argument of ineffective assistance of counsel. To the extent that assistance his argument constitutes an ineffective of counsel claim, that is a claim we do not address on direct appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (precluding the review of ineffective assistance of counsel claims on direct appeal). 7 Instead, Appellant s claims as related to his trial counsel must be raised in a petition for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. Id.; see also State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984) (stating that the power to decide questions of trial strategy and tactics rests with counsel ). ¶14 Finally, Appellant points to no authority, nor have we found any, that require the police to furnish or utilize an unqualified interpreter defendant s request. during an interrogation at the Further, Officer Borovac was certified by the Phoenix Police Department to act as a Serbian translator, whereas Appellant s friend had no such certification. Appellant himself admitted that Officer Borovac s translation and police report was generally accurate. translation, which were Outside of the flaws in the addressed in court, nothing in the record suggests that the police erred in letting Officer Borovac translate the interrogation. Accordingly, the use of Officer Borovac as a translator during Appellant s interrogation did not constitute reversible error. ¶15 We have reviewed error and find none. 4 the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 4 From our review of the record, however, it appears that the trial court erred in calculating Appellant s pre-sentence incarceration credit. Appellant should have received credit for only 445 days, rather than the 452 days he actually received. 8 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the sentence statutory imposed was limits. Appellant was presumptive and represented within the by counsel and assisted by an interpreter at all stages of the proceedings and exercised his sentencing. right to speak, both at trial and during The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶16 After the filing of this decision, defense counsel s obligations appeal have pertaining ended. to Appellant s Counsel need do representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant 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. Relying on State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990) (stating that absent a timely cross-appeal, this court cannot correct an illegally lenient sentence that favors an appellant), we do not correct this error. 9 CONCLUSION ¶17 Appellant s conviction and sentence is affirmed. ______________/S/____________________ LAWRENCE F. WINTHROP, Judge CONCURRING: _____________/S/___________________ PHILIP HALL, Presiding Judge ____________/S/____________________ JON W. THOMPSON, Judge 10
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