STATE v. WINSTON

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NOTE: 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. MARKEISE FERNANDEZ WINSTON, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07/24/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0378 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006318-005 DT The Honorable Paul J. McMurdie, Judge CONVICTION AND SENTENCE 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 Eleanor S. Terpstra, Deputy Public Defender Attorney 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 Markeise Fernandez Winston s conviction of trafficking degree, a Class 3 felony. in stolen property in the second Winston 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). Winston was given the supplemental brief but did not do so. opportunity to file a Counsel now asks this court to search the record for fundamental error. In addition, Winston requested his counsel raise whether there was sufficient evidence to support his conviction. After reviewing the entire record, we affirm Winston s conviction and sentence. FACTS AND PROCEDURAL HISTORY ¶2 After an undercover police detective received a phone call from a person offering to sell some stolen property, the detective and his partner arranged to meet the person in the parking lot of a local bar. 1 Both detectives wore hidden cameras that recorded the meeting, and the videos were played for the jury at trial while the detectives explained what occurred. ¶3 When the detectives arrived in the parking lot, a 1994 Oldsmobile pulled up and three people got out, including Winston 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Winston. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 and a woman who went by the name Budget. The detectives negotiated the sale of the car primarily with Budget, who openly admitted to them that the car was stolen. At one point during the meeting, Winston approached and told Budget, I just want my cut, and she transaction. detectives responded Winston that the that had car he would the keys to would get the start. $50 car After from and the the assured sale was complete, the detectives left in the car. ¶4 The jury found Winston guilty of trafficking in stolen property in stipulated to the one second degree. historical prior At sentencing, felony conviction being on probation at the time of the offense. Winston and to Because Winston was on probation at the time of the offense, he was ineligible for a term less than the presumptive sentence. ( A.R.S. ) § 13-708(C) 2012). 2 (West The Ariz. Rev. Stat. superior court sentenced him to the presumptive sentence of 6.5 years with 118 days presentence incarceration credit. ¶5 Winston timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033 (West 2012). 2 Absent material revision after the date offense, we cite a statute s current version. 3 of the alleged DISCUSSION A. Sufficiency of the Evidence. ¶6 his Winston conviction. argues At that trial, insufficient Winston s evidence counsel supported moved for a judgment of acquittal, and the superior court denied the motion. ¶7 Under Arizona Rule of Criminal Procedure 20, the court may grant a judgment of acquittal before the verdict if there is no substantial evidence to warrant a conviction. Crim. P. 20(a). 20 motion for Ariz. R. We review the superior court s denial of a Rule abuse of discretion and will reverse only if there is a complete absence of substantial evidence to support the charges. State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, 121 (App. 2001). ¶8 Winston was charged with trafficking in stolen property in the second degree, which requires proof that the defendant recklessly trafficked in the stolen another. See A.R.S. § 13-2307(A) (West 2012). property of In a pro per letter to the superior court, Winston argued that he did not know the car was stolen. The statute does not require that a defendant know the property is stolen, only that he consciously disregard that likelihood. A person acts recklessly when, with respect to a result or to a circumstance described by a statute defining an offense, the person is aware of and consciously disregards a substantial and unjustifiable risk that the result 4 will occur or that the circumstance exists. A.R.S. § 13- 105(10)(c) (West 2012). ¶9 At trial, the owner of the car identified the stolen car and testified that when the car was stolen, she had the only key to the car s ignition. When the car was returned to her, it was altered so the ignition could be turned on without a key. The detectives testified that the steering column was damaged and that the car had a punched ignition. Although there was no indication Winston was involved in the theft of the car, Budget acknowledged to detectives that the car was stolen. At the meeting in the parking lot, Winston possessed the keys to the doors and trunk of the car, assured detectives that the car would start, negotiation. of the and at one point became involved in the price It also was clear Winston was being paid as part transaction. Presented with this evidence, the jury reasonably could have found that Winston consciously disregarded a substantial and unjustifiable risk that the car was stolen when he participated in selling the car to the detectives. Sufficient evidence supports his conviction of trafficking in stolen property. B. ¶10 was Fundamental Error Review. The record reflects Winston received a fair trial. represented by counsel at all stages of the against him and was present at all critical stages. 5 He proceedings The court held appropriate pretrial hearings. It did not conduct a voluntariness hearing; however, the record did not suggest a question police. about the voluntariness of Winston s statements to See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶11 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 charge, the instructed State s the burden jury of on proof the and elements the of necessity of a unanimous verdict. The jury returned a unanimous verdict, which was juror confirmed by polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed a legal sentence for the crime of which Winston was convicted. CONCLUSION ¶12 We have reviewed error and find none. ¶13 the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Winston s representation in this Defense counsel need do no more than inform Winston of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for 6 submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). On the court s own motion, Winston has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Winston has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PHILIP HALL, Judge 7

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