STATE v. BARROW

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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. ERWIN BARROW, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 12/27/2012 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0179 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-119355-001 The Honorable Patricia A. Starr, Commissioner AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce F. Peterson, Office of the Legal Advocate by Frances J. Gray Attorneys for Appellant Phoenix H A L L, Judge ¶1 Erwin Barrow (defendant) appeals from his convictions and the sentences imposed. 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, counsel was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has 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 April 26, 2011, defendant was charged by indictment with: Count 1, possession or use of dangerous drugs, a class four felony; Count 2, possession or use of marijuana, having a weight of less than two pounds, a class six felony; and Count 3, aggravated assault, a class four felony. 2 ¶5 The following evidence was presented at trial. On the morning of April 17, 2011, the victim testified that she woke up to find that her live-in boyfriend, defendant, had taken her vehicle without her permission. Defendant returned later that same day, and the victim confronted defendant about taking her vehicle. They both subsequently got into the victim s vehicle, and, while the victim was driving, defendant struck her in the abdomen area from his position in the backseat. Defendant also struck the victim in the face multiple times, and hit her a total of approximately twenty times. defendant grabbed said, the [s]hut victim by appli[ed] pressure. going to die. did not up the bitch neck The victim testified that and with drive. Defendant both his of hands The victim thought, Oh, my God. then and I m She saw blackness and was disoriented, but completely loose consciousness. The victim further stated that she had urinated on herself while defendant was applying pressure to her neck. Defendant hit the victim several more times after strangling her. The victim testified that she then approached a stop light, put her car in park, and exited the vehicle. When defendant also exited the vehicle, the victim quickly re-entered the vehicle, called 9-1-1, and drove to a nearby police station. ¶6 Officer Katrina Morales Randy Johnson responded to the victim s 9-1-1 domestic fight call. Officer 3 and Officer Morales testified that when she first saw the victim, the victim was hysterical, visibly shaking, hyperventilat[ing,] and very, very upset. Officer Morales observed redness on the victim s chest, bruising, swelling, and abrasions on the right side of her face, scratches on her neck, and bruising on her lower neck area. Officer Morales also testified that she noticed finger marks on the victim s throat. ¶7 also Officer Michael Kero of the Phoenix Police Department responded to the 9-1-1 call. He was advised through dispatch that a subject involved in a fight, later identified as defendant, was walking northbound on 59th Avenue. approached arrest. defendant and subsequently placed Officer Kero defendant under After a thorough search of defendant s person, Officer Kero found two bags of what he believed to be marijuana and one bag of crystal methamphetamine in his left front pants pocket. ¶8 Anthony Gennuso of the Phoenix Crime Lab testified that defendant had 410 milligrams of marijuana and 3.4 grams of methamphetamine. ¶9 Defendant testified that his relationship with the victim was rough at the time the domestic-violence incident occurred. Defendant stated that on April 17, 2011, he had been sitting in the backseat of the victim s vehicle and the victim began hitting him and threw a rearview mirror at him, while she was driving, because she was angry defendant had impregnated 4 her. Defendant threatened to said ingest that the the drugs victim in showed order to him kill drugs the and fetus. Defendant elaborated that he attempted to take the drugs from the victim and the two wrestled. vehicle with the drugs. strangling the victim. [his] hands on her. Defendant then exited the Defendant denied hitting, punching, or He did, however, later admit to putting He acknowledged that he failed to tell the police his story about the unborn baby prior to testifying. ¶10 After a five-day trial, the jury found defendant guilty as charged on Counts 1 and 2, and guilty on the lesser included class 1 misdemeanor offense of assault on Count 3. Defendant admitted, and the court found, that defendant had five prior felony convictions. The trial court sentenced defendant to a minimum sentence of eight years for Count 1, with 210 days of presentence-incarceration credit; a minimum term of three years for Count 2, with 210 days of presentence-incarceration credit; and 180 days for the assault conviction, with credit for 180 days presentence incarceration. DISCUSSION ¶11 Defendant argues in his supplemental brief that the prosecutor committed prosecutorial misconduct by allowing the victim to testify, despite having a history of being untruthful. A prosecutor is permitted to call witnesses that have made prior inconsistent statements. See State v. Ferrari, 112 Ariz. 324, 5 334, 541 P.2d 921, 931 (1975). Contradictions and changes in a witness s testimony alone do not constitute perjury and do not create an inference, let alone prove, that knowingly presented perjured testimony. F.2d 1554, 1563 (10th Cir. 1991). the prosecution Tapia v. Tansy, 926 Absent a showing that the prosecutor was aware of the witness giving false testimony, the credibility of witnesses is for the jury to determine. See State v. Rivera, 210 Ariz. 188, 194, ¶ 28, 109 P.3d 83, 89 (2005). Defendant s argument that the prosecutor committed misconduct by permitting the victim to testify is without merit and not supported by the record. We therefore discern no error, let alone fundamental error. ¶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 6 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. 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 convictions and sentences are affirmed. _/s/_____________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/__________________________________ PETER B. SWANN, Judge _/s/__________________________________ SAMUEL A. THUMMA, Judge 7

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