State v. Smith

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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. TINA MARIE SMITH, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 10/18/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-1007 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-048845-001 SE The Honorable Susanna C. Pineda, Judge 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 Cory Engle, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Tina Marie Smith s conviction of one count of aggravated taking the identity of another, a Class 3 felony. Smith s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Smith was given the supplemental brief, but did not do so. court to search the record for opportunity to file a Counsel now asks this fundamental error. After reviewing the entire record, we affirm Smith s conviction and sentence. FACTS AND PROCEDURAL HISTORY ¶2 Police executed a search warrant in an apartment where Smith was staying. 1 applications and In the apartment, officers found rental other similar documents containing personal identifying information of more than 40 individuals. recovered notebooks personal containing identifying credit information. They card numbers also Officers and recovered other Smith s backpack, which contained identification cards and credit cards belonging to others. The apartment also contained three computers, one of which was running a check-making program, as 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Smith. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 well as check stock and a printed check. Additionally, officers found multiple cassette tapes, five of which were admitted as evidence at trial, conversations in that contained which recorded individuals gave quality their control credit card numbers and other identifying information while making purchases over the phone. Smith told officers that someone had given her the credit cards found in her wallet and that she was holding the cassette tapes for a friend. some of the cassette tapes Smith admitted she listened to and wrote down in the notebooks information she heard on the tapes. ¶3 Smith was charged with aggravated taking the identity of another. At trial, the jury found Smith guilty. The court found Smith had four historical prior felony convictions and imposed the presumptive sentence of 11.25 years in prison. ¶4 to Smith timely appealed. Article Arizona 6, Section Revised 9, Statutes We have jurisdiction pursuant of the ( A.R.S. ) Arizona Constitution, sections and 12-120.21(A)(1) (2011), 13-4031 (2011) and -4033(A)(1) (2011). 2 DISCUSSION ¶5 The record reflects Smith received a fair trial. She was represented by counsel at all hearings prior to trial and at all times during the trial. Smith s 2 counsel Absent material revisions after the date offense, we cite a statute s current version. 3 waived Smith s of alleged an presence for the Comprehensive Pretrial Conference and the Trial Setting Hearing. Otherwise, Smith was present at all critical pretrial stages and was present for the entire trial, including the verdict. ¶6 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members with two alternates. The court the properly instructed the jury on the elements of charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was juror confirmed considered a by presentence polling. report The court and addressed its oral received its and contents during the sentencing hearing. ¶7 When the court made pronouncement at sentencing, it stated Smith had been found guilty of taking the identity of another. The minute entry, however, reflects the correct charge on which Smith was indicted and found guilty, aggravated taking the identity of another. Upon finding a discrepancy between the oral pronouncement of sentence and a minute entry, a reviewing court must try to ascertain the trial court s intent by reference to the record. State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). There is ample evidence in the record that the crime of which Smith was convicted was aggravated taking the identity of another. 4 The court imposed a legal sentence for the crime of which Smith was convicted. CONCLUSION ¶8 We have reviewed the entire record for reversible error and find none. ¶9 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations in this appeal have ended. Defense counsel need do no more than inform Smith of the outcome of this appeal and her future options, unless, upon review, counsel finds an issue appropriate for submission petition for review. to the Arizona Supreme Court by See State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Smith has 30 days from the date of this decision to proceed, if she wishes, with a pro per motion for reconsideration. Smith has 30 days from the date of this decision to proceed, if she wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MARGARET H. DOWNIE, Judge /s/ JON W. THOMPSON, Judge 5

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