State v. Duran
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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. ) ) MARK DURAN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 07/14/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0572 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-136973-001 DT The Honorable Barbara L. Spencer, Judge Pro Tempore 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 Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix Mark Duran Appellant Buckeye B R O W N, Judge ¶1 Mark Duran appeals his conviction and sentence for one count of theft of means of transportation. Counsel for Duran 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 that after searching the record on appeal, she was unable to find any arguable grounds for reversal. Duran was granted the opportunity to file a supplemental brief in propria persona, and he has done so. ¶2 Our obligation reversible error. is to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to We view the facts in the light most sustaining the conviction reasonable inferences against Duran. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm. BACKGROUND ¶3 In June 2010, Duran was indicted for one count of theft of means of transportation, a class 3 felony, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1814 (2010). 1 The following evidence was presented at trial. ¶4 In June 2009, the victim s stolen from his place of employment. 1 Chevrolet was The victim s boss alerted Absent material revision after the date offense, we cite the statute s current version. 2 Suburban of the alleged the victim to the theft after he saw the vehicle being driven off the business property by a person wearing a light-colored baseball hat. The victim borrowed his boss s truck to chase after his vehicle while his boss called 9-1-1 to report the theft. ¶5 a Officer Stockton received an emergency broadcast that gray Chevrolet stolen. Suburban with a lifted suspension had been He saw a truck matching that description parked at a gas station and confirmed it was the vehicle he was looking for. After waiting a few minutes, Officer Stockton observed a man wearing a white baseball hat approach the vehicle to pump gas into it. At that time, Officer Stockton drew his weapon and, with help the of two undercover officers, arrested Duran. Officer Stockton read Duran his Miranda 2 rights and asked Duran if he was driving the truck. Duran responded stupid and just wanted to cruise around. that he was When asked if he had permission to borrow the truck on that day, Duran answered in the negative. Stockton asked Duran if he had the keys to the vehicle, and he said no, I [hot-wired] it. ¶6 Meanwhile, other officers located the victim and took him to the gas station, where he identified the vehicle as his. The victim also found that his ignition and tilt steering had 2 Miranda v. Arizona, 384 U.S. 436. (1966). 3 been internally broken where previously there had been no damage to these areas. At trial, the victim testified that he did not give Duran permission to borrow his vehicle nor had he ever given him permission. ¶7 The jury transportation. found Duran guilty of theft of means of The trial court found that the State met its burden of proving that Duran had one prior historical felony conviction mitigated and the term of court six sentenced years Duran imprisonment presentence incarceration credit. to with a slightly 181 days of This timely appeal followed. DISCUSSION ¶8 Through eight issues. brief. counsel, Duran requested consideration of Additionally, Duran filed a one-page supplemental Each of the matters discussed in the supplemental brief fall within one or more of the eight issues raised by counsel; thus, we need not separately address the supplemental brief. ¶9 Duran asserts that his counsel was ineffective by failing: (1) to represent him to the full extent at trial; (2) to investigate the claim that he waived a constitutional right; (3) to use the closing statement he submitted; and (4) to inform him when he could testify at trial. not properly before us. However, these issues are State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (recognizing that claims of ineffective assistance of counsel are not 4 considered on direct appeal regardless of merit). Such claims must be first presented to the trial court in a petition for post-conviction relief. ¶10 Duran next argues that his Fifth Id. Amendment right against self incrimination was violated because police failed to read him his Miranda rights. As a result, Duran asserts that the court should have suppressed all incriminating statements. We review the trial court s ruling admitting a defendant s statements over his objection for an abuse of discretion. State v. Ellison, 213 Ariz. 116, 126, ¶ 25, 140 P.3d 899, 909 (2006). ¶11 At the voluntariness hearing, Officer Stockton testified that he read Duran his Miranda rights from a standard card after handcuffing Duran and before questioning him. on this testimony, the court concluded that Duran Based received proper Miranda warnings. Although Duran attempted to refute this to testimony, determination. we defer the trial court s credibility See State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) (finding that the credibility of a witness is for the trier of fact). ¶12 Miranda Duran further contends that even if he received the warnings, rights, which he police never only asked waived. if To he understood satisfy those Miranda, the State must show that [the defendant] understood his rights and intelligently and knowingly relinquished custodial interrogation began. those rights before State v. Tapia, 159 Ariz. 284, 5 286-87, 767 P.2d 5, 7-8 (1988). A defendant does not even have to expressly state that he will waive his rights, so long as he answers the questions freely and does not attempt to terminate the interrogation. State v. Stabler, 162 Ariz. 370, 376, 783 P.2d 816, 822 (App. 1989). ¶13 Here, administering questions Officer the and Stockton Miranda never testified warning, invoked his Duran right to that responded remain after to his silent or otherwise requested that the interrogation cease. The officer observed that no signs of impairment and appeared to understand his questions. indication answer any that Duran questions. was testified Moreover, there is no coerced, threatened, To extent the Duran or Duran s forced to testimony contradicted these facts, we defer to the trial court s decision to give more weight to the officer s testimony. 169 Ariz. at 203, 818 P.2d at 188. 3 See Gallagher, Based on this record, we find no error in the trial court s finding that Duran was read 3 Although the trial court excluded one inculpatory statement made by Duran before he received the Miranda warning, the trial court determined that the post-Miranda statements were admissible because the police did not act deliberately to undermine Miranda, the post-Miranda statements were uncoerced, and Duran s waiver was valid. See State v. Zamora, 220 Ariz. 63, 70, ¶ 18, 202 P.3d 528, 535 (App. 2009) (finding that a trial court must decide deliberateness in undermining Miranda, absent any such deliberateness, uncoerced post-Miranda statements are admissible). 6 his Miranda warnings, waived his rights, and that his confessions were freely and voluntarily made. ¶14 mere Duran presence next at argues the gas that the station prosecution and never only proved presented direct evidence identifying Duran with the Suburban. We review the sufficiency of the evidence presented at trial only to determine if substantial evidence exists to support the verdict. State v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005). Evidence is sufficient when it is more than a [mere] scintilla and is such proof as could convince reasonable persons of a defendant s guilt beyond a reasonable doubt. State v. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 (1981). The substantial evidence may required to warrant circumstantial or direct. a conviction be either State v. Mosley, 119 Ariz. 393, 402, 581 P.2d 238, 247 (1978). ¶15 Here, based on the testimony of the victim and the officers, we find substantial evidence in the record to support the jury s verdict. that had been Duran was at the gas station with a vehicle stolen approximately ten minutes prior and he matched the description of the person who stole the vehicle. Furthermore, Duran admitted that he did not have permission to use the vehicle, wired it. and informed Officer Stockton that he had Under these circumstances, a reasonable jury could 7 conclude that Duran was guilty of theft of means of transportation. ¶16 Duran also challenges the credibility of the victim s testimony. He argues that the victim was untruthful when he testified that he saw an officer place Duran s items into a baseball hat. the weight questions However, the credibility of the witnesses and and value exclusively to for be given to the jury. their State testimony are Clemons, 110 v. Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974). reweigh this evidence on appeal. We do not Tison, 129 Ariz. at 552, 633 P.2d at 361. ¶17 Lastly, Duran claims that his fiancée overheard the prosecutor coach a witness on what needed to be said, and his attorney failed to address this issue. reveals no support this assertion. were support in the record for Our review of the record Furthermore, even if there Duran s assertion, it would necessarily implicate whether counsel was ineffective at trial, which we cannot address here. Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527. ¶18 We have searched error and find none. the entire record for fundamental All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows that Duran was present and represented by counsel at all pertinent stages of the proceedings, was afforded the 8 opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Accordingly, we affirm Duran s conviction and sentence. CONCLUSION ¶19 Duran Upon the filing of this decision, counsel shall inform of the status of the appeal and his options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Duran 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/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ___________________________________ DONN KESSLER, Judge 9
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