State v. Phillips

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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. ANDREW DWIGHT PHILLIPS, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 10-0037 DIVISION ONE FILED: 05/19/2011 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-104995-001DT The Honorable Kristin C. Hoffman, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Andre Phillips appeals from sentence for misconduct involving weapons. his conviction and Phillips s counsel filed a brief in compliance 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 and found no arguable question of law and requesting that this court examine the record for reversible error. Phillips was afforded the opportunity to file a supplemental brief in propria persona but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We view the in the light therefrom convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 In January 2009, Phillips was indicted on one count of misconduct involving weapons, a class trial commenced in December 2009. 4 felony. A five-day The following evidence was presented at Phillips s trial. ¶4 night On January 16, 2009, at 12:59 a.m., Sergeant H., a detective for the police department, priority one call in West Phoenix. reported a black male with inside the gas station. a responded to a The initial police call handgun, possibly from someone Sergeant H. was driving an unmarked vehicle and, though he was not wearing a police uniform, he wore his badge around his neck. He also carried a gun on his hip in 2 a holster. ¶5 Sergeant H. witnessed three black males step out of a silver sedan. The males were hanging outside of the vehicle in the parking lot of a gas station. Sergeant H. testified that his plan was to wait until more officers arrived at the scene before approaching the men. the men, the three men As Sergeant H. waited and observed started to walk toward his vehicle. Sergeant H. got out of his vehicle, pulled his weapon out of the holster and pointed it to the ground, and then he identified himself as a police officer and asked the men to stop. Two of the men stopped, but one male ran in the southwest direction away from the parking lot. At trial, the sergeant identified Phillips as the individual who ran from the scene. ¶6 Police Officer G., a police officer assigned to the Phoenix Department s Air Support Unit, testified that he and Officer D. responded to the incident at the gas station in a police helicopter. Officer G. witnessed a black male, dressed in a white T-shirt and jeans, running in a southwest direction away from the gas station. The officers followed the male with the helicopter s spotlight, and saw him run into some bushes and drop white papers on the ground. ¶7 Another Phoenix Police Officer, Officer H., responded to the incident in a fully-marked police vehicle. Officer H. identified Phillips as the male he saw running from the scene. 3 Officer H. testified that Phillips ran pretty much almost directly into [the] patrol car before turning and running on the sidewalk. Phillips s The possession officer as he witnessed ran, and papers the fall officer out also of saw Phillips throw a chrome object, which looked like a gun, into a bush. Officer H. followed Phillips and apprehended him. ¶8 Officer H., along with another officer on the scene, Officer B., went to the area where he believed Phillips had thrown a gun. The helicopter lit up the area, and the officers were able to locate a loaded chrome handgun in the bushes. officers also located the fallen paperwork, which The included Phillips s name on several of the documents. ¶9 A forensic scientist with the Phoenix Police Department Crime Laboratory performed a function test on the gun, and he testified that the gun showed evidence of damage, possibly from being dropped on a hard surface, and was capable of being fired. A fingerprint examiner, also with the Phoenix Crime Lab, testified that Phillips s fingerprints matched the fingerprints on two priors pen packs. ¶10 Phillips testified at trial. Although Phillips denied possessing a gun, he admitted that he had been convicted of four prior felonies and was prohibited from possessing a weapon. ¶11 The jury found Phillips guilty of misconduct involving weapons, and the court sentenced Phillips to the presumptive 4 sentence of 10 years imprisonment, with 361 days of presentence incarceration credit. ¶12 Phillips timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12 120.21(A)(1) (2003), 13 4031 (2010), and 4033(A)(1) (2010). DISCUSSION ¶13 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The sentence imposed falls within the range permitted by law, and the evidence presented supports the conviction. As far as the record reveals, Phillips was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶14 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Phillips of the disposition 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. Phillips has thirty days from the date of this decision in which to proceed, if he desires, with a pro se 5 motion for reconsideration or petition for review. CONCLUSION ¶15 The conviction and sentence are affirmed. ____/s/__________________________ JOHN C. GEMMILL, Judge CONCURRING: _____/s/___________________________ PATRICIA K. NORRIS, Presiding Judge _____/s/___________________________ PATRICIA A. OROZCO, Judge 6

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