STATE v. FULKS

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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. ) ) LARRY DAVID FULKS, ) ) Appellant. ) __________________________________) DIVISION ONE FILED: 6/27/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 12-0346 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CR2011-048138-002 The Honorable Brian Kaiser, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General By Joe Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Larry David Fulks s conviction of unlawful flight from a law enforcement vehicle, a Class 5 felony. Fulks s counsel has searched the record on appeal no and frivolous. found arguable question of law that is not See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Fulks was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Fulks s conviction and suspended sentence. FACTS AND PROCEDURAL HISTORY ¶2 pickup In April 2011, a deputy encountered Fulks driving a truck interaction that with the Fulks outstanding warrants. 1 deputy and recognized Fulks s from a girlfriend, previous who had The deputy turned on his lights and siren and proceeded after Fulks, maintaining a distance no greater than one car length. Fulks did not pull over but continued to drive to his carport, approximately 853 feet away. Fulks then ran from the vehicle to his residence, where he stopped and told the deputy that it was illegal for him to be at the house. According to the deputy, Fulks was screaming profanities at him and refusing to comply with his orders. 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Fulks. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 ¶3 The State charged Fulks with violating Arizona Revised Statutes ( A.R.S. ) section 28-622.01 (West 2013), which prohibits wilfully fleeing or attempting to elude a pursuing law enforcement vehicle equipment. 2 lights but being operated with proper emergency At trial, Fulks acknowledged he saw the deputy s asserted he did not hear a siren. He further testified that he did not stop when he first saw the deputy because the areas next to the road frequently used by young children. that he could residence. have stopped in an were either gated or Fulks admitted, however, area 200 feet before his Fulks also denied telling the deputy that it was illegal for the deputy to be at his house. Fulks additionally testified that he did not want to elude anyone, but only wanted to get his car to his home. ¶4 The jury found Fulks guilty. The court suspended imposition of sentence and placed Fulks on supervised probation for one year. We have jurisdiction of Fulks s timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A)(1) (West 2013). DISCUSSION 2 Absent material revision after the date offense, we cite a statute s current version. 3 of the alleged ¶5 was The record reflects Fulks received a fair trial. represented against him by and counsel was at present all at stages all of the critical He proceedings stages. The superior court did not conduct a voluntariness hearing; however, neither Fulks nor the evidence raised a question about voluntariness of Fulks s statements to law enforcement. the See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶6 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. properly court comprised properly charge, the of ten instructed State s unanimous verdict. report the burden with jury of two alternates. The the elements the on proof and the of necessity of a The jury returned a unanimous verdict; Fulks declined to poll the jury. presentence members The jury was and The court received and considered a addressed its contents during the sentencing hearing and had the legal authority to impose the terms of probation it ordered. CONCLUSION ¶7 We have reviewed the entire record for reversible error and find none. ¶8 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations pertaining to Fulks s representation in this appeal have ended. Defense counsel need do no more than inform Fulks 4 of the outcome of this appeal and his future options, unless, upon review, counsel finds 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, 156-57 (1984). On the court s own motion, Fulks has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for reconsideration. Fulks has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. _______________/s/________________ DIANE M. JOHNSEN, Judge CONCURRING: ______________/s/__________________ SAMUEL A. THUMMA, Presiding Judge _____________/s/___________________ MICHAEL J. BROWN, Judge 5

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