State v. Stewart

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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. MICHAEL EARL STEWART, JR., Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0960 DEPARTMENT B DIVISION ONE FILED: 07/07/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-180081-001 SE The Honorable Randall H. Warner, Judge 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 Thomas Baird, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Michael Earl Stewart, Jr., timely appeals from his conviction and sentence for third-degree burglary, a class four felony. Ariz. Rev. Stat. ( A.R.S. ) § 13-1506(A)(1), (B) (Supp. 2009). After searching the record on appeal and finding no arguable question of law that was not frivolous, Stewart s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel s motion to allow Stewart to file a supplemental brief in propria persona, but Stewart chose not to do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Stewart s conviction and sentence. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 On October 2, 2009, around 5:15 a.m., a resident in an apartment complex saw two people squatting behind a blue PT Cruiser. behind One of the individuals had his hand on a big box the car. The resident yelled, asked what they were doing, and they immediately turned around and hopped the block wall behind the car. The resident called the police, and after arriving at the scene, police observed the back window of the PT Cruiser had been smashed out and three items were on the ground behind the car -- one large black carpeted speaker box with subwoofers, one empty Pyle View stereo box, and a legal box with miscellaneous papers and items. A crime scene specialist dusted 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Stewart. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 the interior and exterior of the car for fingerprints, as well as the boxes outside the car, and lifted the fingerprints from the Pyle View stereo box. print examiner matched the three only viable A forensic latent viable fingerprints to Stewart s prints. ¶3 After receiving the detective spoke with Stewart. of October complex. 1, 2009, with print examiner s report, a Stewart stated he spent the night his girlfriend at the apartment He denied touching or being near the PT Cruiser but when the detective showed him the print examiner s report, he became upset. At trial, Stewart s girlfriend testified he stayed with her that entire night along with Stewart s friend and brother, but conceded she was a deep sleeper and would not know if Stewart had left the apartment during the night. The victim the testified her car s back window was intact and speaker box with subwoofers was in the car when she parked it around 8 p.m. on October 1, 2009. She denied knowing Stewart, but stated she had seen him around the apartment complex with his girlfriend. ¶4 A jury degree burglary. unanimously found Stewart guilty of third- After a hearing at which the State presented, over defense counsel s objection, a Department of Corrections pen pack, the superior court found Stewart had one historical prior felony conviction. Finding no aggravating or mitigating 3 factors, the superior court sentenced Stewart to the presumptive 4.5-year term for a class four non-dangerous felony with one historical prior felony conviction and awarded Stewart 79 days of presentence incarceration credit. A.R.S. § 13-703(I) (Supp. 2009). DISCUSSION ¶5 We have reviewed error and find none. 881. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at Stewart received a fair trial. 2 He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶6 The evidence presented at trial was substantial and supports the verdict. members and the The jury was properly comprised of eight court properly instructed the jury on the elements of the charge, Stewart s presumption of innocence, the State s burden verdict. The of proof, superior and the court necessity received and of a unanimous considered a presentence report, Stewart was given an opportunity to speak at 2 During rebuttal closing argument, the prosecutor improperly expressed his personal belief in Stewart s guilt by stating, I submit to you the defendant is guilty. I m asking you to go back and review all the evidence, review all of the evidence, look at all of it, then I want you to come back with a -- a verdict of guilty on this count. Defense counsel, however, did not object, and on this record, these statements were not unduly prejudicial and did not deprive Stewart of a fair trial. See State v. Duzan, 176 Ariz. 463, 467, 862 P.2d 223, 227 (App. 1993). 4 sentencing, and his sentence was within the range of acceptable sentences for his offense. CONCLUSION ¶7 We decline to order briefing and affirm Stewart s conviction and sentence. ¶8 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Stewart s representation in this Defense counsel need do no more than inform Stewart of the outcome of this appeal and his future options, unless, upon review, counsel finds 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). 5 ¶9 Stewart has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. days On the court s own motion, we also grant Stewart 30 from the date of this decision to file an in propria persona motion for reconsideration. _______/s/________________________ PATRICIA K. NORRIS, Judge CONCURRING: ___/s/_________________________________ PETER B. SWANN, Presiding Judge ___/s/_________________________________ DANIEL A. BARKER, Judge 6

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