State v. Butler
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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. COREY ALAN BUTLER, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 08/04/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0592 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-136484-001Dt The Honorable Joseph C. Welty, 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 Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Butler appeals from his convictions for burglary in the second degree and threatening or intimidating. Butler 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. Butler 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 In June 2009, Butler was indicted on count one, burglary in the second degree, a class 3 felony, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1507 (2010), 1 and count two, threatening or intimidating, a class 1 misdemeanor, in violation of A.R.S. § 13-1202 (2010). ¶3 Butler moved for a Rule 11 competency evaluation. Ariz. R. Crim. P. 11. Rule 11 competency See In September 2009, the court conducted a hearing and conduct a competency evaluation. appointed three experts to After reviewing the experts reports, the court found Butler to be competent to stand trial. ¶4 Butler hearing, to filed sever, to several motions: dismiss, for an for order a that Dessureault the State cross-reference DNA results through DNA index systems, and for release. The court denied the motion to sever in February 2010. 1 We cite to the current version of the applicable statute because no revisions material to this decision have since occurred. 2 In May denied 2010, the the court motion conducted to preclude defendant by the victim. a the Dessureault hearing identification of and the The court also heard arguments on the other pending motions and then denied the motion for release, motion to dismiss, and motion for order that the State crossreference the DNA results. ¶5 A four-day trial commenced in May 2010. We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 State v. Powers, 200 (App. 2001). The following evidence was presented at Butler s trial. ¶6 On June 1, 2009, at around 11:00 a.m., the victim saw two young men walking down the street near her home. She locked her front door, left to run errands, and returned approximately fifteen minutes later. When she returned home, she got out of her car and immediately saw a soda can in the front porch area. The victim also noticed screen door were open. that the front wooden door and the She walked into the house and saw that things were thrown out of the closet and in the living room and [t]here was a mess. The victim ran outside and saw two men, one carrying a pillowcase, running out of the side door of the house. The victim recognized the two men as the men she saw earlier on her street. She chased after Butler, but unable to reach him, she returned home and called the police. 3 The police arrived at the home and interviewed the victim. She described the first suspect, Butler, as being tall and thin, with brown hair, and wearing a white shirt and dark pants; she described the second suspect as being shorter than Butler, chubbier, and wearing dark clothes. The victim discovered that jewelry, a jewelry box, and speakers were missing. After the officers left the victim s home, they returned approximately thirty minutes later and notified her that they had located an individual that matched her description. The officers drove the victim to a nearby intersection where she identified an individual, standing on the street next to police officers, as one of the males who ran out of her house earlier that day. At trial, the victim identified Butler as the person she saw running out of her home and the person she identified on the street with police. ¶7 Phoenix Police Officer S. responded to the victim s home the day of the burglary. victim described the first Officer S. testified that the suspect as a white male, slender build, 5 7 to 6 in height, with sandy blonde to brown hair, and wearing a white t-shirt and dark pants. The victim also described the second suspect as a white male, but shorter in height than the first suspect, wearing dark clothes, and with a chunky build. Officer S. relayed the description to the other officers in the area and left the victim s home. Approximately forty to forty-five minutes after the initial 911 call, Officer 4 S. returned to the victim s home, and picked her up, because he had been notified that officers had located a possible suspect. Officer S. testified that he generally instructed crime victims, as he did the victim in this case, that: the person or persons that you are going to look at may or may not be involved with what has happened. As far as like this crime, with your residence today, it s especially important to keep people who are innocent out of jail as it is to put the guilty that are in jail. So you need to be positive on your identification, and take your time, to ascertain an identification. ¶8 Phoenix Police Officer L. also testified. She was on duty the day of the burglary, and located the suspect after receiving a call reporting a suspicious person on a bike. Officer L. testified that, during the one-on-one identification of Butler by the victim, Butler stated, The old lady with the sunglasses can t see shit. The officer believed this to be odd because she could not make out what anybody even in the vehicle would look like. Officer L. further testified, later that same day, Butler stated I recognize the old lady. will go visit her again. Maybe I Butler also stated that people like her will burn in hell. ¶9 On the third day of trial, at the close of the State s case-in-chief, Butler moved for a directed verdict, which the court denied. ¶10 The jury found Butler guilty on both counts. 5 Butler agreed to waive a jury determination of aggravating circumstances, and he agreed to stipulate to the aggravating factor that the victim was over 65 years of age at the time of the offense. The court also found the aggravating factor that an accomplice was present at least for the burglary and the crime was committed for pecuniary gain. imposition of sentence and placed The court suspended Butler on three years probation for count one and three years probation for count two, to be served concurrently. As a condition of Butler s probation, the court imposed a deferred jail sentence of twelve months, with zero days of presentence incarceration credit, but the court stated that eliminated completely, The further court it if could Butler ordered Butler be deferred behaved while to pay the further, on or probation. victim $1,360, payable in $70 minimum per month installments. ¶11 Butler timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21 (2003), 13-4031 (2010), and 13-4033 (2010). DISCUSSION ¶12 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 sentences imposed fall within the range permitted by law, and the evidence presented supports 6 the convictions. As far as the record reveals, Butler 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. ¶13 684 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 Butler 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. Butler has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶14 The conviction and sentence are affirmed. ____/s/______________________ JOHN C. GEMMILL, Judge CONCURRING: __/s/____________________________ PATRICK IRVINE, Presiding Judge __/s/____________________________ PHILIP HALL, Judge 7
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