State v. Romero
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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. ) ) ANTHONY ROMERO, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0306 DIVISION ONE FILED: 01/6/11 RUTH WILLINGHAM, ACTING CLERK BY: DN DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. No. CR2009-165077-001 DT The Honorable Julie P. Newell, Judge Pro Tem AFFIRMED Thomas 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 Terry J. Adams, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 Anthony for burglary. Romero ( defendant ) appeals his conviction 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 searched the record, found no arguable question of law, and requests that we review the record for fundamental error. 857 P.2d 388, 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 has not done so. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). FACTS AND PROCEDURAL HISTORY ¶2 On October 8, 2009, Victim parked her truck outside her house in the driveway, locked the doors, and closed the windows. At approximately 3:00 a.m., a security guard working at a construction site across the street from Victim s house noticed defendant walking up and down the street suspiciously. The security guard saw defendant throw something at a window of the truck and heard glass shatter. 1 Defendant ran off after the window broke, but returned a couple of minutes later and entered the truck for a minute and a half. As defendant walked away, the security guard called police and watched defendant until officers made contact with him. Police alerted Victim that the window of the truck had been broken and the radio stolen. 1 The Victim found a rock larger than a baseball in the cab of her truck. 2 security guard identified defendant in a one-on-one show up shortly after the incident. ¶3 Defendant degree, a class conclusion of was charged 4 felony. the State s A with burglary jury trial case-in-chief, in the ensued. the third At court the denied defendant s motion for judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure found defendant guilty as charged. stipulated to two prior felony ( Rule ). The jury At sentencing, defendant convictions probation at the time of the offense. and to being on The trial court sentenced defendant to the presumptive term of 4.5 years, with 173 days presentence incarceration credit. DISCUSSION ¶4 We have read and considered the brief submitted by defense counsel and have reviewed the entire record. Ariz. at 300, 451 P.2d at 881. Leon, 104 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. Defendant was represented by counsel at all critical phases of the proceedings. properly impaneled and instructed. The jury instructions were consistent with the offense charged. irregularity in the deliberation process. 3 The jury was The record reflects no ¶5 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 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. (1990) State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (citations insufficiency of omitted). the Reversible evidence occurs only error 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) (citation omitted). ¶6 including The an State presented eyewitness to substantial the crime. evidence The of guilt, security guard testified that he saw defendant break the window of the truck and then return and enter the truck. Victim testified she did not give anyone permission to enter her truck, and the radio was missing when she inspected the vehicle with the police. The security guard stated that he got a clear view of defendant and identified him shortly after the incident. CONCLUSION ¶7 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 4 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 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, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 5
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