STATE v. SMITH

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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. TOM DEAN SMITH, Appellant. DIVISION ONE FILED: 8/15/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0058 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Navajo County Cause No. S0900CR201100301 The Honorable Robert B. Van Wyck, Judge Pro Tempore AFFIRMED AS MODIFIED Thomas C. Horne, Attorney General by Joseph T. Maziarz, Assistant Attorney General, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Roser Law Office PLLC by Samuel J. Roser Attorneys for Appellant St. Johns Tom Dean Smith, Appellant Florence P O R T L E Y, Judge ¶1 738 This is an appeal under Anders v. California, 386 U.S. (1967) (1969). and State v. Leon, 104 Ariz. 297, 451 P.2d 878 Counsel for Defendant Tom Dean Smith has advised us that after searching the entire record, he has been unable to discover any arguable questions of law and has filed a brief requesting us to conduct an Anders review of the record. Defendant has filed a supplemental brief. FACTS 1 ¶2 Defendant returned home to the trailer he shared with his wife, the victim, 2 on April 24, 2011. Upon entering the room they shared, he began pulling her hair, punching her in the face, and demanding oral sex. While threatening her, he pinned her arms down with his knees, and forced his penis into her mouth. After his discharge, Defendant left the room and the victim called 9-1-1. ¶3 was Defendant was located and arrested the next day. subsequently indicted for kidnapping/domestic violence, He a class two felony, aggravated assault/domestic violence, a class four felony, and sexual assault/domestic violence, a class two felony. 1 We view the facts in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997). 2 The victim has divorced the Defendant. 2 ¶4 The matter proceeded to trial. In addition to hearing from the victim and the police, the jury heard a recording of a threatening message Defendant left on the victim s cell phone just prior to the assault. Defendant was found guilty as charged. He was subsequently sentenced to prison for 6.25 years for sexual the assault and five years for kidnapping and aggravated assault, all concurrent sentences, and given 367 days of presentence incarceration credit. DISCUSSION ¶5 Defendant presents four arguments for our review. First, he argues that the court committed error by failing to provide him with all necessary documents. Specifically, he contends that the court failed to provide him with the portions of the namely, transcript that the selection, sentencing hearing, arguments, appeal. jury which had the prevented not been the reading opening him requested from of statements launching by counsel, charges, and an the closing effective He, however, had the requisite minute entries, and none demonstrate any legal issues that need to be reviewed on appeal. As a result, the argument does not present an issue that would lead to a new trial. ¶6 Next, Defendant argues that the court inappropriately instructed the jury about reasonable doubt. 3 Specifically, he contends that the court erred by using the term reasonably convinced instead of using firmly convinced. ¶7 Our supreme court, in State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), mandated that trial courts give the following reasonable doubt instruction, exactly as written and without modification, which, in pertinent part, states: [p]roof beyond a reasonable doubt is proof that convinced of the defendant s guilt. leaves you firmly Id. at 596, 898 P.2d at 974. See also State v. Sullivan, 205 Ariz. 285, 288, ¶ 15, 69 P.3d 1006, 1009 (App. 2003) (explaining that allowing modification by the trial court would be directly contrary to the fundamental instruction); purpose Revised of providing Arizona Jury a single, Instructions uniform ( RAJI ) Preliminary Criminal 19 (Presumption of Innocence and Burden of Proof) at 1 (3rd ed. 2010). the Portillo instruction, When a trial court deviates from however, we only examine instruction to determine if the error was harmless. 205 Ariz. at 289, ¶ 19, 69 P.3d at 1010. the Sullivan, Accordingly, we examine whether there was reasonable probability . . . that a verdict might committed. have been different had the error not been State v. Williams, 133 Ariz. 220, 225, 650 P.2d 1202, 1207 (1982) (quoting State v. Brady, 105 Ariz. 190, 196, 461 P.2d 488, 494 (1969)). 4 ¶8 Here, the jury was instructed that [p]roof beyond a reasonable doubt is proof that leaves you reasonably convinced of the defendant s instruction was guilt. improper Defendant because the argues standard Portillo uses the term firmly convinced. that set the forth in 182 Ariz. at 596, 898 P.2d at 974. Although the court deviated from the Portillo instruction it firmly when convinced, substituted the reasonably substitution did convinced for increase the not likelihood that the jury interpreted the instructions to find Defendant guilty by reasonable doubt. some standard other than proof beyond a See also Victor v. Nebraska, 511 U.S. 1, 22 (1994) (explaining that the inclusion of moral certainty in a reasonable doubt instruction did not increase the likelihood that jurors understood the reference to allow a conviction on factors other the government s evidence presented). The court s instructions clearly articulated the appropriate burden of proof and explained the consequences if the State failed to meet it. Consequently, we find that the instruction as read constituted harmless error, but does not entitle Defendant to relief. ¶9 sentences excessive. The third issue Defendant raises is that his prison for We sexual assault review the issue and for aggravated an abuse assault of are discretion because a trial court has broad discretion in sentencing and, if the sentence imposed is within the statutory limits, we will 5 not disturb the discretion. sentence unless there is a clear abuse of State v. Ward, 200 Ariz. 387, 389, ¶ 5, 26 P.3d 1158, 1160 (App. 2001); see also State v. Ferriera, 128 Ariz. 530, 532, 627 P.2d 681, 683 (1980). ¶10 At sentencing, the court ordered that Defendant was sentenced to the presumptive term of 2.5 years for aggravated assault/domestic violence, which is within statutory limits. See A.R.S. § 13-1406; A.R.S. § 13-701(E); A.R.S. § 13-702 (West 2013). The minute entry, however, reflects a five-year term. Because the court s oral pronouncement controls, we modify the sentence to reflect that Defendant was sentenced to 2.5 years for aggravated assault/domestic violence. See State v. Johnson, 108 Ariz. 116, 118, 493 P.2d 498, 500 (1972) (explaining that where there is a discrepancy between the oral sentence and the written judgment, controls). the oral pronouncement of the sentence See also Ariz. R. Crim. P. 24.4; State v. Hanson, 138 Ariz. 296, 304-05, 674 P.2d 850, 858-59 (App. 1983). ¶11 Defendant also claims that his 6.25 year sentence for sexual assault was improper. His argument has no merit. mitigated sentence is within the statutory limits. The See A.R.S. §§ 13-1406, -701(E). Although he contends that he should have only been sentenced to the five years recommended in the presentence report, it is only a recommendation and a judge has to determine what the appropriate sentence should be in light of 6 all relevant circumstances. 278, 594 P.2d 529, 532 State v. Toulouse, 122 Ariz. 275, (1979) (rejecting the same argument because a sentencing court is not bound by recommendations in the presentence report ). Defendant s argument is also misplaced because the recommended term of five years falls below the statutorily-defined minimum sentence. See A.R.S. § 13-1406; State v. Vargas-Burgos, 162 Ariz. 325, 326, 783 P.2d 264, 265 (App. 1989) (reasoning that where a sentence imposed was less than [the] statutory minimum, it is void ). Consequently, the sexual assault sentence stands. ¶12 Finally, Defendant asserts that the verdict forms were incorrectly authenticated. Specifically, he argues the substitution of the juror s number for his signed name on the signature line renders the verdict invalid and unenforceable. ¶13 In State v. McIntosh, 213 Ariz. 579, 580, ¶ 1, 146 P.3d 80, 81 (App. 2006), we addressed the issue of whether a juror number satisfies the foreman signature requirement. In McIntosh, the foreman signed the verdict form with his juror number, and we held that the presence of the juror number on the signature line signified that the jury foreman attested to the unanimous verdict as the verdict of the jury. Id. at 581-82, ¶¶ 4, 12, 146 P.3d at 82-83. ¶14 Like McIntosh, the presence of the juror s number on the signature line satisfied the foreman signature requirement 7 because it verdict. signifies the foreman s intent to attest to the Additionally, the presumption that the jury read and followed all relevant jury instructions is supported by the fact that the verdict was read in open court in the presence of the jury absent any objections from the foreman. See State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994) ( [A]bsent some evidence to the contrary, we presume that the jury read and followed the relevant instruction. ). Consequently, the signature of a verdict form with a juror number instead of a signed name does not invalidate the verdict. ¶15 Having addressed Defendant s supplemental we searched the entire record for reversible error. reversible error. All of the proceedings were arguments, We find no conducted compliance with the Arizona Rules of Criminal Procedure. in The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings. ¶16 After this decision is filed, counsel s obligation to represent Defendant in this appeal has ended. Counsel must only inform Defendant of the status of the appeal and Defendant s future options, unless counsel identifies an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant may, if desired, file a motion for 8 reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. CONCLUSION ¶17 Accordingly, we affirm Defendant s convictions and sentences but order the court to modify the sentence for count two to reflect the oral pronouncement of the sentence of 2.5 years. Ariz. R. Crim. P. 24.4 (stating that a court may correct [c]lerical mistakes in judgments, orders, or other parts of the record . . . at any time ). /s/ ___________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Presiding Judge /s/ ___________________________________ DIANE M. JOHNSEN, Chief Judge 9

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