State v. Mosoianu
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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. ) ) LUCIAN CORNEL MOSOIANU, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 07/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0465 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-152519-001DT The Honorable Carolyn K. Passamonte, Judge Pro Tempore AFFIRMED Thomas C. Horne, 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 Louise Stark, Deputy Public Defender Attorney for Appellant Phoenix O R O Z C O, Judge ¶1 Lucian Cornel Mosoianu (Defendant) timely appeals his conviction and term of probation for count one, unlawful flight from a law enforcement vehicle, a class five felony. Defendant s 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 this Court that after a search of the entire appellate record, she found no arguable question of law that was not frivolous. Defendant was afforded the opportunity to file a supplemental brief in propria persona, but he did not do so. ¶2 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) (2003), 13-4031, and -4033.A.1 (2010).1 sections 12-120.21.A.1 Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶3 When reviewing the record, we view the evidence in the light most favorable to supporting the verdict. State v. Torres-Soto, 187 Ariz. 144, 145, 927 P.2d 804, 805 (App. 1996). Defendant was charged with two counts: (1) unlawful flight from a law enforcement vehicle; and (2) possession or use of cocaine, a narcotic drug. He moved to sever count one from count two 1 We cite to the current version of the applicable statutes when no revisions material to this decision have since occurred. 2 arguing the unrelated. ¶4 offenses occurred on different dates and were The court granted Defendant s motion to sever. Defendant identification. moved to preclude Detective B. s The court denied the motion finding clear and convincing evidence that Detective B. had an opportunity to view the defendant clearly. ¶5 Detective B. testified that he is trained in facial recognition. On the night of the incident, he noticed that there were two vehicles that seemed to be having some type of situation happening between them. He described the situation: I observed a silver Nissan Sentra suddenly cut into a middle lane and went around a Jeep Cherokee that was traveling maybe a little slower than traffic. It immediately cut in front of the Jeep Cherokee and slammed on its brakes causing the Jeep Cherokee to slam on its brakes so the two vehicles wouldn t collide. * * * Once the Nissan Sentra cut into the center lane it drew my attention so I was focused on what those two vehicles were doing to see what was going on. ¶6 Detective B. turned his car around and saw the Nissan Sentra stopped in the roadway. He could see that the window for the driver s window was down, [and] the driver was actually looking out. Detective B. testified that [a]t that point they were doing what I would call a brake stand where they re on the 3 brake with the gas, has the tires spinning and the driver was honking the horn and yelling something out of the window. ¶7 Detective B. also testified that he absolutely had a clear view of the driver s face. He stated: I actually drove within maybe three to four feet past the vehicle . . . so both of our driver s windows were right next to each other. I was able to look directly at the driver and I observed that he was a white male, that he appeared maybe little taller, he was skinny and also I was able to observe the acne on his face that s how close that we were to each other. Detective B. identified Defendant as the driver of the Nissan Sentra. ¶8 Detective B. testified that he activated the siren and lights on his unmarked vehicle, at which point the now moving Nissan Sentra slowed down and appeared like it might stop, but it did not. Detective B. then called for backup and two fully marked police vehicles responded with their lights and emergency sirens activated. However, Defendant still did not stop. The Nissan Sentra then got onto the freeway and went at a high rate of speed on the ramp, got onto the immediately over into the HOV lane. I-10 and got For safety reasons, the police vehicles were called off the pursuit. 4 freeway A police aircraft was able to continue with its spotlight on the Nissan Sentra; however, it, too, was eventually called off the pursuit.2 ¶9 check Detective the computer license terminal B. used plate his number provided onboard computer for Nissan two the names, terminal Sentra. including to The that of Defendant, along with his age, height, weight, address, hair color, and eye color. Upon returning to the precinct, Detective B. pulled up [Defendant s] driver s license photo. When asked how sure he was that Defendant was the driver of the Nissan Sentra Detective B. responded, 100 percent sure. ¶10 night Roxana G. testified that Defendant was with her on the of the incident and that she picked him up. She emphasized that Defendant was not driving his car that night. Defendant also testified that Roxana G. picked him up, that he spent the evening with her, and that he left the keys to his Nissan Sentra at his apartment where other people lived. Nevertheless, the jury found Defendant guilty of count one.3 The court suspended imposition of sentence and placed Defendant on probation for eighteen months. 2 Officers S. and B.B. corroborated Detective B. s accounting of the pursuit. 3 Defendant waived his right to a jury trial and entered a plea of guilty for count two, which was reduced to possession of drug paraphernalia, a class six undesignated felony. The court imposed an eighteen month term of probation to run concurrently with count one. 5 DISCUSSION ¶11 There was sufficient evidence to support the court s verdict of guilty on count one. Evidence is sufficient when it is more than a [mere] scintilla and is such proof as could convince reasonable persons of Defendant's guilt beyond a reasonable doubt. State v. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 (1981). To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) (citation omitted). If conflicts in evidence exist, the appellate court must resolve such conflicts in favor of sustaining the verdict and against the defendant. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). ¶12 A person is guilty of unlawful flight from a law enforcement vehicle if he willfully flees or attempts to elude a pursuing operated official with appropriately law the marked. enforcement lights and A.R.S. vehicle siren §§ that is activated 28-622.01 (2004), being and is -624.C (2004). ¶13 driver pursuit In this case, Detective B. identified Defendant as the of the stopped Nissan from Sentra, fleeing. which at no Detective point B. during the initiated the pursuit and was joined by two other vehicles, both of which were 6 fully marked, and all three had engaged their emergency lights and sirens. A police aircraft, utilizing a spotlight, also joined in the pursuit. support the jury s Thus, there is sufficient evidence to verdict that Defendant willfully fled pursuing law enforcement vehicles. CONCLUSION ¶14 We have read and considered counsel s brief, carefully searched the entire record for reversible error, and we have found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the jury s finding represented by proceedings. of guilt. counsel At at Defendant all sentencing, critical Defendant and was present stages his and of the counsel were given an opportunity to speak and the court imposed a legal term of probation. ¶15 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision to proceed, if he so desires, with an in 7 propria persona motion for reconsideration or petition for review.4 ¶16 For the foregoing reasons, Defendant s conviction and term of probation are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ___________________________________ DONN KESSLER, Judge /S/ ___________________________________ MICHAEL J. BROWN, Judge 4 Pursuant to Rule 31.18.b, Defendant or his counsel have fifteen days to file a motion for reconsideration. On the Court s own motion, we extend the time to file such a motion to thirty days from the date of this decision. 8
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