STATE v. AVERY

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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. SHANE DOUGLAS AVERY, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 11/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 12-0107 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. S8015CR2011-00303 The Honorable Derek C. Carlisle, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender by Jill L. Evans Attorneys for Appellant Kingman H A L L, Judge ¶1 Shane Douglas Avery (defendant) conviction and the sentence imposed. appeals from his For the reasons set forth below, we affirm. ¶2 Defendant's appellate 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 that, after a diligent search of the record, she was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has not done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). ¶4 On March 15, 2011, defendant was charged by indictment with one count of shoplifting as a third offense, a class four felony. ¶5 The following evidence was presented at trial. On the afternoon of March 15, 2011, Debbie Cayedito, a loss-prevention 2 officer at Walmart, observed a suspicious person1 enter the store wearing baggy shirt and jeans, [and] a cap. followed defendant through the store to Ms. Cayedito the automotive department, where she observed him sticking something in his pants. Defendant then exited the store. Ms. Cayedito followed defendant out of the store and asked him to stop. Cayedito identified herself, defendant kept eventually began running, from Ms. Cayedito. Although Ms. walking, and Ms. Cayedito and another Walmart employee, Drew VanHoose, chased defendant and notified police that defendant was running through a wash. ¶6 Kingman Police Officer Scott Horton responded to a call regarding a shoplifter [] running from Walmart. Officer Horton observed running across a dirt a person field matching behind the that description Walmart. Officer Horton activated his emergency lights and siren on his motorcycle, and continued following defendant until he stopped running. The officer explained to defendant that he was being detained for an investigation, and handcuffed him. identification Douglas Avery. card Ms. on defendant, Cayedito and Officer Horton found an identifying Mr. VanHoose him as arrived Shane soon thereafter and identified defendant as the man they had been chasing. 1 The person was subsequently identified as defendant. 3 ¶7 Kingman Police Officer Gabriel Brown responded to the location where Officer Horton was holding defendant. Officer Brown conducted a thorough search of defendant, but he did not find any property from Walmart on his person. ¶8 After being read his Miranda2 rights, defendant told Officer Brown that he had run away from Ms. Cayedito because he had been in trouble for shoplifting before and he was scared that he was going to get in trouble again. ¶9 Officer Brown reviewed the surveillance footage and testified that he observe[d] what appeared to be a pair of pants over [defendant s] shoulder. Officer Brown also stated that Ms. Cayedito showed him a pair of black jeans with store tags on them that she had found on a bush along the route where defendant had been running. ¶10 Defendant testified that although he had been walking through the Walmart with a pair of dark colored jeans over his shoulder, he eventually set them down in one of the aisles. Defendant stated that he did not put anything in his pants, but rather adjusted his pants and belt because [his] pants were loose and falling. Defendant further testified that when a Walmart employee said something to him, he did not speak with her and continued to walk away because he did not want to get in 2 Miranda v. Arizona, 384 U.S. 436 (1966). 4 trouble. Defendant admitted that he had prior convictions for shoplifting. ¶11 as After a two-day trial, the jury found defendant guilty charged. defendant The had state three alleged, prior and the shoplifting court found, convictions within past five years, which subjected him to a felony charge. trial court sentence of sentenced one defendant year in to prison a substantially with that the The mitigated twenty-six days of presentence incarceration credit. ¶12 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offense for which he was convicted. ¶13 After obligations appeal have the pertaining ended. filing to of this defendant's Counsel need do decision, counsel s representation no more than in this inform defendant 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. 5 See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant 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. Accordingly, defendant's conviction and sentence are affirmed. _/s/____________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/__________________________________ PETER B. SWANN, Judge _/s/__________________________________ SAMUEL A. THUMMA, Judge 6

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