State v. Twine
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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.
CHRISTOPHOER JERRY TWINE,
Appellant.
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DIVISION ONE
FILED: 09/29/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 11-0110
DEPARTMENT B
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-106724-002 SE
The Honorable Daniel G. Martin, 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
Paul J. Prato, Deputy Public Defender
Attorneys for Appellant
Phoenix
B A R K E R, Judge
¶1
Christopher
Jerry
Twine
appeals
from
his
conviction
and sentence for shoplifting with artifice or device, a class 4
felony.
Twine was sentenced on January 20, 2011, and timely
filed a notice of appeal on February 8, 2011.
In accordance
with Anders v. California, 386 U.S. 738 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), counsel for Twine
searched the entire record on appeal and filed a brief advising
this court that he found no arguable ground for reversal.
He
requested this court search the record for fundamental error.
¶2
Although stating no error occurred, counsel noted the
absence of a colloquy as to priors between the trial court and
Twine at the time of the sentencing.
In addition to this issue,
counsel for Twine raised two issues on Twine’s behalf.
First,
the issue of whether the verdict was supported by the evidence,
given that it was his accomplice, rather than Twine, that placed
the items of clothing on the separate clothing racks prior to
removing them from the store.
Second, the issue of a wrongful
conviction because the City of Tempe considers shoplifting a
felony when the value of items removed exceeds $1000.
argues
that
misdemeanor,
anything
a
charge
below
to
$1000
which
he
should
was
be
Twine
considered
entitled.
Twine
a
was
granted leave to file a supplemental brief in propria persona on
or before August 1, 2011, however, Twine did not do so.
2
¶3
of
We have jurisdiction pursuant to Article 6, Section 9
the
Arizona
Constitution
and
Arizona
Revised
Statutes
(“A.R.S”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and
12-4033(A) (2010).
reversible error.
We are required to search the record for
Finding no such error, we affirm.
Facts and Procedural History
¶4
We review the facts in the light most favorable to
sustaining
the
jury’s
verdict
inferences against Twine.
and
resolve
all
reasonable
State v. Fontes, 195 Ariz. 229, 230,
¶ 2, 986 P.2d 897, 898 (App. 1998).
¶5
David
On October 3, 2009, just after 5 p.m., George P. and
B.
were
working
prevention officers.
the camera room.
the
same
shift
as
Neiman
Marcus
loss
George P. was monitoring the cameras from
Shortly after 5 p.m., he observed two males
enter the store and subsequently meet up inside.
They selected
items of clothing, placed them on a separate rack, and combined
the
items
each
had
selected
with
the
other’s
selections.
Thereafter, one of the males removed a “black trash bag” from
his pocket, placed the bag on the floor, and both males began to
place the selected items of clothing into the bag.
picked up the bag with the items in it.
store through the mall exit.
Twine then
Both males left the
Twine was then observed holding
the bag outside the store.
3
¶6
George P. and David B. went around to the mall exit
and confronted the two males.
themselves
as
store
George P. and David B. identified
security.
One
of
the
males
immediately
surrendered, while Twine dropped the bag and ran.
David B.
pursued Twine, while George P. took inventory of the items in
the discarded bag and observed that the items were Neiman Marcus
merchandise.
¶7
Officer Kyle T. was dispatched to Neiman Marcus at
5:20 p.m. on October 3, 2009, in response to a shoplifting call.
Upon
arriving
at
the
scene,
Officer
Kyle
T.
examined
the
contents of the bag outside the store and aided George P. in
inventorying the items, concluding that the value of the items
“prior to tax” was $930.
Officer Moser J. was dispatched to the
same call and, while en route, was advised of a foot pursuit.
When
Officer
detained
by
Moser
David
J.
arrived,
B.,
into
he
took
custody.
Twine,
who
Because
had
he
been
began
complaining of chest pain, Twine was transported to Tempe St.
Luke’s Hospital.
arrested.
At the hospital, Twine was read his rights and
The State charged him with one count of shoplifting
with artifice or device, a class 4 felony.
¶8
At trial, the video recording of the entire ordeal,
which shows Twine and the other male picking out the items and
“exiting the store with the unpaid merchandise,” along with the
still images taken from the video, were entered into evidence
4
and published to the jury.
When asked about the use of the bag
on the witness stand, Officer Moser J. testified that, in his
experience, he commonly came across individuals using bags to
carry a larger number of items than would otherwise be possible.
¶9
After Officer Moser J. testified, both the State and
the defense rested, and the defense made a Rule 20 motion, which
the
court
denied.
verdict.
Twine
absconded
apprehended
jury
read
the
and
charged
Prior to sentencing, Twine was
with
departure from the court.
“968 matter”)
two
the
The court proceeded to the aggravation phase, which
was completed without Twine.
¶10
after
an
offense
arising
from
his
(CR 2010-159968-001 DT, hereafter
He entered a plea as to that matter.
At the sentencing phase, because Twine had admitted
prior
felony
convictions
to
the
trial
court
in
the
968
matter, the State was of the opinion that clear and convincing
evidence of their existence was available in this case.
Defense
counsel stated that he “discussed it with Mr. Twine” and that
“[Mr. Twine] doesn’t desire to have a trial on his priors.”
The
court replied that since Twine “admitted to the two prior felony
convictions in connection with the [CR 2010-]159968 matter, that
priors
are
established
for
purposes
of
the
[CR
2010-]106724
matter by clear and convincing evidence.”
The trial court gave
the
this
defense
an
opportunity
to
discuss
issue
however, the defense consented, stating it had no issues.
5
further;
Disposition
¶11
We examine the two issues raised by Twine through his
counsel
first,
followed
by
the
issue
of
colloquy
at
the
sentencing phase.
1.
Sufficiency of the Evidence and Improper Charge
¶12
Twine claims that the verdict was not supported by the
evidence.
Evidence
is
sufficient
if
“there
evidence to support the guilty verdict.”
is
substantial
State v. Mincey, 141
Ariz. 425, 432, 687 P.2d 1180, 1187 (1984).
To satisfy this, a
“rational trier of fact” must be able to find guilt beyond a
reasonable
doubt.
Id.
“In
reviewing
sufficiency
of
the
evidence, we examine the evidence in the light most favorable to
sustaining the verdict, and resolve all reasonable inferences
against the defendant.”
State v. Reinhardt, 190 Ariz. 579, 588-
89, 951 P.2d 454, 463-64 (1997).
¶13
Twine was convicted of shoplifting with artifice or a
device under A.R.S. § 13-1805 (2010). 1
The trial judge read the
instruction as to this charge as follows:
The crime of shoplifting with artifice or device
requires the State to prove that the defendant: One.
Was in an establishment in which merchandise was
displayed
for
sale;
and
Two.
While
in
the
establishment, knowingly obtained goods of another
with the intent to deprive the other person of such
1
We cite the current version of the applicable statute
because no revisions material to this decision have since
occurred.
6
goods by: A. Removing any of the goods from the
immediate display or from any other place within the
establishment without paying the purchase price, or B.
Concealment; and Three. While in the course of
shoplifting, used an artifice, instrument, container,
device, or other article with the intent to facilitate
shoplifting.
The instruction accurately stated the law.
The video evidence
and related evidence presented by the State established these
elements.
Twine’s claim that it was merely his accomplice who
removed the clothing items from the racks is contradicted by the
testimony of the loss prevention officer.
Accordingly, the jury
had sufficient evidence to convict Twine.
¶14
Next, Twine claims that he should have been charged
with a misdemeanor.
ordinarily
a
Shoplifting of an amount below $1000 is
misdemeanor
in
Arizona.
A.R.S.
§
13-1805(H).
However, when the act of shoplifting is accompanied by either
two or more prior felonies, or by the use of an artifice or
device, the shoplifting is elevated to a class 4 felony.
§
13-1805(I).
Thus,
Twine
was
appropriately
charged
A.R.S.
by
the
State.
2.
Absence of the Colloquy
¶15
Procedure
With certain exceptions, the Arizona Rules of Criminal
require
the
court
to
address
the
defendant
and
determine that the decision to forego his constitutional right
to trial on the prior convictions is voluntary and intelligent,
and to advise the defendant of the consequences of his actions.
7
Ariz. R. Crim. P. 17.2 and 17.3.
This colloquy “serves to
ensure that a defendant voluntarily and intelligently waives the
right to a trial on the issue of the prior conviction.”
State
v. Morales, 215 Ariz. 59, 62, ¶ 11, 157 P.3d 479, 482 (2007).
The complete absence of a colloquy is fundamental error.
61, ¶ 10, 157 P.3d at 481.
Id. at
However, the absence of a colloquy
does not automatically entitle the defendant to resentencing:
“[P]rejudice generally must be established by showing that the
defendant
would
not
have
admitted
the
conviction had the colloquy been given.”
fact
of
the
prior
Id. at 62, ¶ 11, 157
P.3d at 482.
¶16
In
Morales,
the
defendant’s
prior
convictions
stipulated to by the State and the defense attorney.
61, ¶ 4, 157 P.3d at 480-81.
were
Id. at 60-
Despite there being no colloquy at
sentencing, the Arizona Supreme Court held that the error was
inconsequential as the evidence of the prior convictions was
already
in
the
authenticity.
record,
and
neither
party
challenged
Id. at 62, ¶ 13, 157 P.3d at 482.
its
Because the
prior convictions of the defendant were already present in the
record prior to the sentencing phase, there would have been no
reason
for
an
order
of
resentencing
only
to
convictions admitted into the record once again.
¶17
have
the
same
Id.
Similar to the prior convictions in Morales, there was
evidence before the court of the priors here.
8
Twine accepted a
plea offer in the 968 matter in which he expressly admitted the
priors.
Although not admitted into evidence in this case, the
parties and the trial court were aware of it, and the trial
court essentially took judicial notice of it.
Thus, the lack of
a colloquy did not prejudice Twine.
Conclusion
¶18
We have reviewed this matter for fundamental error.
See Anders, 386 U.S. at 744; Leon, 104 Ariz. at 300, 451 P.2d at
881.
Twine
was
present
and
represented
by
counsel
at
all
critical stages of the proceedings, except those from which he
voluntarily
absented
himself.
All
proceedings
were
appropriately conducted in accordance with the Arizona Rules of
Criminal Procedure.
Accordingly, we affirm.
9
¶19
After
the
filing
of
this
decision,
counsel’s
obligations in this appeal have ended subject to the following.
Counsel need do no more than inform Twine of the status 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.
State v. Shattuck, 140 Ariz. 582, 584-
85, 684 P.2d 154, 156-57 (1984).
Twine has thirty days from the
date of this decision to proceed, if he desires, with a pro per
motion for reconsideration or petition for review.
/s/
____________________________
DANIEL A. BARKER, Judge
CONCURRING:
/s/
____________________________________
PETER B. SWANN, Presiding Judge
/s/
____________________________________
PATRICIA K. NORRIS, Judge
10
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