STATE v. ABDIN

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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. ) ) SAMER ABDIN, ) ) Appellant. ) ) ) ) __________________________________) 1 CA-CR 11-0425 DIVISION ONE FILED: 08/09/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-122647-001DT The Honorable Robert L. Gottsfield, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce Peterson, Maricopa County Legal Advocate By Keri L. Chamberlin, Deputy Legal Advocate Attorneys for Appellant Phoenix Samer Abdin Appellant in propria persona Kingman O R O Z C O, Judge ¶1 Samer Wahib Abdin (Defendant) appeals his convictions and sentences for one count of theft of means of transportation, a class 3 felony, and one count of misconduct involving weapons, a class 4 felony. ¶2 Defendant s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) advising this court that after a search of the entire appellate record, counsel found no arguable question of law that was not frivolous. Defendant was afforded the opportunity to file a supplemental brief in propria persona, which he did, raising several issues on appeal. ¶3 In Defendant, addition our to considering obligation in this entire record for reversible error. the appeal issues is to raised review by the State v. Clark, 196 Ariz. 530, 537, ¶30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona (2003), Revised 13-4031 Statutes (2010) and (A.R.S.) sections -4033.A.1 (2010). 12-120.21.A.1 Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY1 ¶4 On March 20, 2010, a thirty-six-foot 2005 Wells Cargo trailer that had been reported stolen by the victim (M.D.) was found by M.D., who subsequently alerted police. 1 Defendant was We view the evidence presented at trial in the light most favorable to sustaining the verdicts. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). 2 the registered trailer. been owner of the license plate affixed to the Because the vehicle identification number (VIN) had etched off, police were initially unable to determine ownership of the trailer. ¶5 When first contacted by police, Defendant initially cooperated by answering questions but eventually ended discussions, stating that further questions should be directed to his attorney, Bob Storrs. Police then communicated with Defendant through Storrs, indicating they suspected the trailer was stolen and requesting it be made available for inspection. ¶6 On April 8, 2010, Defendant s truck to a tow yard. a police officer followed After the truck arrived at the tow yard, the trailer was hitched to Defendant s truck. After leaving the tow yard, the truck and trailer were involved in an accident. Police Thereafter, the trailer was towed to the Scottsdale Department s secure yard, where police trailer as the one reported stolen by M.D. identified the Police then executed a search warrant at a residence owned by Defendant s mother, where they found three knives and an ax in a fifth-wheel camper located in the backyard of the residence. ¶7 At trial, the State presented evidence that Defendant had been in unlawful possession of M.D. s trailer and that he illegally possessed convicted felon. deadly weapons due to his status as a Specifically, M.D. testified he had never met 3 Defendant and did not give Defendant permission to control or possess the trailer. charge, a police Regarding the misconduct involving weapons officer testified Defendant s mother police that Defendant lived in the fifth-wheel camper. told Police officers also testified that the knives found in the camper were designed for lethal use and Defendant admitted ownership of the knives during a telephone conversation. A custodian of records relating rights to Defendant the was restoration a convicted possessing deadly weapons. of civil felon and that prohibited was testified from Defendant s prior criminal record was certified through fingerprint analysis. ¶8 Defendant also presented witnesses in his defense. Defendant s mother and brother testified that Defendant lived in the house, not in the fifth-wheel camper, and that the camper was used for storage. A witness for Defendant also testified that Defendant purchased the trailer from a third party seller but was unable to accept delivery of title because he was unable to contact the seller after the initial transaction. ¶9 While specifically offense preparing asked instruction transportation jury Defendant to charge. be if instructions, he given Defense wanted on the counsel a the lesser theft shook of court included means his of head, indicating that he did not want the instruction to be given, and 4 the court confirmed, stating, Okay. No, do not want a lesser included. ¶10 The jury returned guilty verdicts on both counts. court found clear and convincing evidence that The Defendant s priors could be used as aggravators and sentenced Defendant to an eight-year transportation mitigated and an term eight-year for theft minimum term of means of for misconduct involving weapons, to be served concurrently, with 259 days of presentence incarceration credit. Defendant timely appealed. DISCUSSION ¶11 In his supplemental brief, Defendant argues the trial court erred in not giving a lesser included offense instruction and in giving an incomplete instruction on theft of means of transportation. We address each in turn. Jury Instructions ¶12 Because Defendant did not object to the jury instructions at trial, we review the given instructions only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984) (citation omitted). To prevail under this standard 5 of review, error a defendant prejudice. establish both that fundamental and exists must the error his case caused that in him Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607 (citation omitted). ¶13 a Defendant alleges the trial court erred by not giving lesser included transportation. informed the offense At court instruction trial, that he on however, did not theft Defendant want a discretionary instructions Defendant is not error. 66, ¶ 9, 30 P.3d 631, means of specifically lesser offense instruction to be given to the jury. include of included The failure to specifically rejected by See State v. Logan, 200 Ariz. 564, 565632 33 (2001) ( [W]e will not find reversible error when the party complaining of it invited the error. ); see also State v. Vickers, 129 Ariz. 506, 512-13, 633 P.2d 315, 321-22 (1981) (noting that Arizona Rule of Criminal Procedure 21.3(c) provides that a party may not assign as error the failure to give an instruction unless he objects before the jury retires ). ¶14 Defendant also argues the trial court erred in giving an incomplete instruction on theft of means of transportation. Theft of means of transportation is codified in A.R.S. § 131814.A (2010), which defines the crime as any of five separate forms of conduct that support a conviction. are each independently sufficient to In the instant case, the trial court 6 instructed the jury solely on the relevant definition of theft of means, from A.R.S. § 13-1814.A.5. Defendant argues the court s omissions of A.R.S. § 13-1814.A.1-4 was error. ¶15 In support of his argument, Defendant cites State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991) for the proposition that failure to instruct the jury on a disputed element of a charged offense constitutes misinterprets Gendron. fundamental error. Defendant In that case, our supreme court held that the trial court had not committed fundamental error in failing to give a jury instruction on a justification defense when the defendant specifically did disclaimed not request reliance on Id. at 154-55, 812 P.2d at 627-28. a the instruction justification and defense. Accordingly, Gendron does not support Defendant s position. ¶16 It was not error for the trial court to instruct the jury solely on A.R.S. § 13-1814.A.5 and not on any of the four alternative courses of conduct that constitute theft of means of transportation. Furthermore, Defendant cannot establish prejudice as any possible error regarding this issue redounded to his benefit. fundamental error. Accordingly, Defendant has failed to prove See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. 7 Sufficiency of the Evidence ¶17 Defendant evidence to also support challenges his the convictions. sufficiency the reviewing When of the sufficiency of the evidence, an appellate court does not reweigh the evidence to decide if it would reach the same conclusions as the trier of fact. State v. Barger, 167 Ariz. 563, 568, 810 P.2d 191, 196 (App. 1990) (citation omitted). affirm the conviction if there support the guilty verdict. is Rather, we will substantial evidence to State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (quoting State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981)). Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). exists, we In view determining the facts whether in the substantial light most evidence favorable to sustaining the jury verdict and resolve all inferences against [the defendant]. State v. Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005) (citation omitted). ¶18 To support a conviction for theft of means of transportation, the State must prove the defendant controlled another person s means of transportation 8 without lawful authority and knowing or having reason to know that the property was stolen. A.R.S. § 13-1814.A.5. Here, M.D. testified that his trailer was stolen and that he had never met Defendant nor given him permission to control the trailer. The State also presented evidence that Defendant s truck was used to pick up the trailer from a tow yard and that Defendant told police he paid $735 to retrieve the trailer from the tow yard. In addition, Storrs testified on behalf of Defendant and stated that he communicated to Defendant trailer was stolen property.2 that police suspected the The State therefore presented substantial evidence to support a conviction for theft of means of transportation. ¶19 To support a conviction for misconduct involving weapons, the State must prove the defendant knowingly possessed a deadly possessor weapon and that at time of (Supp. 2011). as a result the the defendant possession. was A.R.S. a § prohibited 13-3102.A.4 In this case, the State presented evidence that, of Defendant s felony 2 criminal record, he was Assuming Storrs s testimony might come within the purview of statements protected by the attorney-client privilege, Defendant waived the right to assert the privilege because Storrs testified on Defendant s behalf and made the relevant statements during direct examination. See A.R.S. § 13-4062.2 (2010); State v. Sucharew, 205 Ariz. 16, 21, ¶ 10, 66 P.3d 59, 64 (App. 2003) (the attorney-client privilege belongs to the client ); Ulibarri v. Superior Court, 184 Ariz. 382, 385, 909 P.2d 449, 452 (App. 1995) (client may waive the attorney-client privilege). 9 prohibited from possessing testified that deadly residence and Defendant deadly weapons weapons. were admitted seized ownership Officers from of also Defendant s the weapons. Accordingly, the State presented substantial evidence at trial to support a conviction for misconduct involving weapons. CONCLUSION ¶20 We have read and considered the briefs submitted by counsel and Defendant, and carefully searched the entire record for reversible error and found none. 541, ¶ 49, 2 P.3d at 100. See Clark, 196 Ariz. at All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and substantial evidence supported the jury s verdicts. Defendant was present and represented by counsel at all critical stages of the proceedings. Defendant and his attorney were given an opportunity to speak and present witnesses at sentencing, and the court imposed legal sentences. ¶21 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, 10 with an in propria persona motion for reconsideration or petition for review. ¶22 For the foregoing reasons, Defendant s convictions and sentences are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ___________________________________ JON W. THOMPSON, Judge /S/ ___________________________________ SAMUEL A. THUMMA, Judge 11

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