STATE v. FLORES

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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 DIVISION ONE FILED: 2/12/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) TONY FLORES, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 12-0314 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-142416-001 The Honorable Christine E. Mulleneaux, Judge Pro Tem AFFIRMED Thomas C. Horne, Arizona 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 Charles R. Krull, Deputy Public Defender Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Tony Flores timely appeals his convictions for criminal damage and disorderly conduct in violation of Arizona Revised Statutes ( A.R.S. ) sections 13-1602 and -2904. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, asked that we review the record for fundamental error. and See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Despite being given the opportunity, Flores did not file a supplemental brief in propria persona. evidence in convictions. the light most On appeal, we view the favorable to sustaining the State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 Flores contract with girlfriend, Southwest Impala as collateral. Diane Financial, Jimenez, using her entered into a 2000 Chevrolet Southwest Financial made a title loan to Jimenez, basing the loan amount on her equity in the vehicle. After Jimenez defaulted on the loan payments, the Impala was repossessed. Auto Recovery, a company that contracts with Southwest Financial, repossessed the Impala and stored it in a garage in the same building housing Southwest Financial. ¶3 Jimenez contacted Tammie Fischer at Southwest Financial to advise that Flores would be picking up her personal 2 property from the Impala. Fischer explained that Jimenez needed to authorize the release of property to Flores and that Flores would have property. Recovery, to show identification before retrieving the Fischer gave Jimenez contact information for Auto and later that day, Jimenez and Flores arrived to collect the personal property. ¶4 Two employees of Auto Recovery, Casey Hinderer Westley Wheeler, were working in the garage area. his own vehicle into the garage area where the and Flores drove Impala was stored. Flores was asked to remove his vehicle because it was against company complied. Flores policy; Flores used some profanity, but Hinderer then asked Flores for identification, which refused to provide. Wheeler also asked Flores for identification before accessing the Impala, but Hinderer advised Wheeler to back off because he could tell the situation was getting out of hand really quickly. ¶5 Flores began removing property from the Impala. Flores was told that he could take anything not bolted to the vehicle. Both employees heard stuff breaking, banging, and cracking, as items were removed. Flores was seen grabbing the dash, trying to pull the stereo out. Flores removed stereo equipment and speakers, paperwork, and other personal property. Flores was agitated and aggressive. 3 At one point, he took a T-ball bat from the car and held it in his hand while retrieving other items. ¶6 Flores behavior prompted the employees Fischer, who immediately came to the garage area. to call Fischer saw Flores in the Impala, yanking up on the center console and ripping the glove compartment. Fischer please quit destroying the property. asked Flores to Flores turned to Fischer and said, [W]hy don t you make yourself useful, bitch, and get me a screwdriver. know what safety. and left, [Flores] Fischer called 9-1-1 because she didn t was capable of and fear[ed] for [her] Flores then ripped the license plate off the Impala stating: You better hope this because I m going to burn this place down. place is insured By the time police arrived, Flores was gone. ¶7 The Impala sustained damage center console, and the rear deck lid. were missing. to the glove box, the The stereo and speakers It was later discovered that the ignition was blocked, which a locksmith determined was due to superglue in the ignition. ¶8 Flores was charged with one count of criminal damage, a class five felony, and one count of disorderly conduct, a class one misdemeanor. A three-day bench trial ensued after the State moved to designate the criminal damage charge a class one misdemeanor. Hinderer, Wheeler, and Fischer each testified to 4 feeling threatened vehicle. by Flores, and about the damage to the A service technician testified about a repair estimate for the damaged Impala. A locksmith explained the damage to the ignition and the repairs he performed. ¶9 On the third day of trial, pursuant to Arizona Rules of Criminal Procedure ( Rule ) 13.5(b), the State moved to amend the indictment to add Jimenez as a victim. This was the result of Fischer s testimony that Jimenez was still the legal owner of the Impala when the damage occurred. The superior court granted the motion. ¶10 At the conclusion of the State s case in chief, Flores moved for a judgment of acquittal pursuant to Rule 20. motion was denied. Jimenez testified in Flores The defense, stating that he was acting [n]ormal that day and that she did not see him with a bat. Flores testified that the stereo he removed had not yet been installed, and he denied having a bat or threatening anyone. ¶11 Flores The superior court found Flores guilty on both counts. waived a presentence report and was sentenced to 18 months unsupervised probation for each count, with the terms to run concurrently. DISCUSSION ¶12 We have read and considered the brief submitted by defense counsel and have reviewed the entire record. 5 Leon, 104 Ariz. at 300, 451 P.2d at 881. We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentences imposed were within the statutory range. critical phases of the Defendant was present at all proceedings and was represented by counsel. ¶13 Viewing the evidence in the light most favorable to sustaining the verdict, and resolving all reasonable inferences against the defendant, State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984), the superior court had a factual and legal basis for its verdicts. The court obviously believed the testimony of the employees present during the encounter with Flores and not the testimony of Jimenez and Flores. See State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) (the credibility of witnesses is for the trier of fact and not the appellate court). CONCLUSION ¶14 We Counsel s this obligations appeal inform affirm have Flores of Flores pertaining ended. the convictions to Counsel status of and Flores need the do sentences. representation nothing appeal and more his in than future options, unless counsel s review reveals 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, 6 156-57 (1984). On the court s own motion, Flores shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration petition for review. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ MAURICE PORTLEY, Judge /s/ PHILIP HALL, Judge 7 or

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