STATE v. GONSALVES

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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 DIVISION ONE FILED: 07/17/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ANTHONY JAMES GONSALVES, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0257 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-135326-001DT The Honorable Lisa Daniel Flores, 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 Cory Engle, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 for Anthony James Gonsalves timely appeals his conviction burglary in the second degree in violation Revised Statutes ( A.R.S. ) section 13-1507. of Arizona Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Despite being afforded the opportunity to do so, Gonsalves did not file a supplemental brief in propria persona. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 J.W. noticed a truck with its tailgate down parked in the driveway of his home. exit the front door. As he approached, he saw Gonsalves J.W. asked what Gonsalves ran to the truck and drove off. he was doing, but J.W. wrote down the license plate number and called the police. ¶3 J.W. discovered his dishwasher about three feet from the front door. The dishwasher hose had been cut, and there was a water trail from the kitchen to the front door. found the shattered. cook top had been removed and a basement He also window Detective Holyk matched the license plate number 2 J.W. provided to a truck owned by Superior Home Maintenance. The company s owner, C.S., told the detective that the truck was assigned to Gonsalves on the day in question and that Gonsalves did not work any jobs that day. Detective Holyk prepared a photo lineup; J.W. identified Gonsalves as the man at his home. When the detective questioned Gonsalves, he admitted driving the work truck on the day in question. ¶4 Gonsalves was indicted degree, a class 3 felony. for burglary in the second J.W., Detective Holyk, and C.S., among others, testified for the prosecution. At the conclusion of the State s case-in-chief, Gonsalves moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure ( Rule ). The motion was denied. in his own defense. The jury found him guilty as charged. ¶5 Gonsalves testified At sentencing, the trial court found that Gonsalves had 12 prior felony convictions and was on parole at the time of this offense. He was sentenced to 11.25 years imprisonment, with 88 days of presentence incarceration credit. Gonsalves timely appealed. DISCUSSION ¶6 We have read and considered the brief submitted by defense counsel and have reviewed the entire record. Ariz. at 300, 451 P.2d at 881. Leon, 104 We find no fundamental error. All of the proceedings were conducted in compliance with the 3 Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. critical phases counsel. of the Gonsalves was present at all proceedings and was represented by The jury was properly impaneled and instructed. The jury instructions were consistent with the charged offense. The record reflects no irregularity in the deliberation process. ¶7 The trial court properly denied Gonsalves s Rule 20 motion. A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. Crim. P. 20. Substantial evidence is such Ariz. R. proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. (1990) State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (citations insufficiency of omitted). the Reversible evidence occurs only error where based there on is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). ¶8 The Gonsalves State presented enter[ed] or substantial remain[ed] unlawfully evidence in or that on a residential structure with the intent to commit any theft or any felony § therein. -1802(A)(5) ( A Ariz. person Rev. Stat. commits § 13-507; theft if, see also without id. lawful authority, the person knowingly . . . [c]ontrols property of 4 another knowing or having reason to know that the property was stolen . . . . ). J.W. testified that a few hours before the incident, his house was locked and in perfect condition. J.W. testified that Gonsalves left the house, saw him, ran to his truck, and drove away without explanation. J.W. found dishwasher had been removed and was near the front door. the The cook top had also been removed, and a basement window had been shattered. Gonsalves admitted he was at J.W. s home on the date in question and did not have permission to be at or inside the house. ¶9 Based on the State s evidence, reasonable jurors could conclude that Gonsalves unlawfully entered J.W. s home with the intent to commit a theft. CONCLUSION ¶10 Defense We affirm counsel s Gonsalves s obligations in conviction this and appeal sentence. have ended. Counsel need do nothing more than inform Gonsalves of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission Supreme Court by petition for review. to the Arizona State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Gonsalves shall have 30 days from the date of this 5 decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MICHAEL J. BROWN, Presiding Judge /s/ RANDALL M. HOWE, Judge 6

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