State v. Jimenez ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
MARIANO ERNESTO JIMENEZ, Appellant.
No. 1 CA-CR 13-0937
FILED 12-11-2014
Appeal from the Superior Court in Maricopa County
No. CR2013-418261-001
The Honorable Jeanne Garcia, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maurice Portley and Judge Andrew W. Gould joined.
STATE v. JIMENEZ
Decision of the Court
W I N T H R O P, Presiding Judge:
¶1 Mariano Ernesto Jimenez (“Appellant”)1 appeals his
convictions and sentences for theft, fraudulent schemes and artifices, and
trafficking in stolen property. Appellant’s counsel has filed a brief in
accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California,
386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969),
stating that he has searched the record on appeal and found no question of
law that is not frivolous. Appellant’s counsel therefore requests that we
review the record for fundamental error. See State v. Clark, 196 Ariz. 530,
537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire
record for reversible error). Although this court allowed Appellant to file a
supplemental brief in propria persona, he has not done so.
¶2 We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1) (West 2014),2 13-4031, and 13-4033(A). Finding no
reversible error, we affirm.
I. FACTS AND PROCEDURAL HISTORY3
¶3 On May 9, 2013, a grand jury issued an indictment, charging
Appellant with Count I, theft, a class three felony, in violation of A.R.S.
§ 13-1802(A), (G); Count II, fraudulent schemes and artifices, a class two
felony, in violation of A.R.S. § 13-2310(A); and Count III, trafficking in
stolen property, a class two felony, in violation of A.R.S. § 13-2307(B).
Before trial, the State alleged Appellant had ten historical prior felony
convictions, and further alleged the existence of aggravating circumstances
other than prior convictions.
¶4 At trial, the State presented the following evidence: In the
spring of 2013, the owner of a local flower shop alerted the Scottsdale Police
1 Appellant is also known as Ernesto Mariano Jimenez and Ernie
Tafoya Jimenez.
2 We cite the current version of the applicable statutes because no
revisions material to this decision have occurred since the date of the
offenses.
3 We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).
2
STATE v. JIMENEZ
Decision of the Court
Department that Appellant, a flower shop employee, might be involved in
the fraudulent use of a gasoline credit card owned by the shop. Police
officers began surveillance of Appellant on April 24, 2013.
¶5 That day, police officers observed Appellant drive the flower
shop’s van to a convenience store gas station in Phoenix. Appellant filled
the van with gasoline, made some cell phone calls, and waited by the gas
pump. Shortly thereafter, two vehicles, driven by Alva Vasquez and her
husband, Hugo Hernandez Diaz, pulled up to the gas pumps beside
Appellant. Appellant greeted and spoke with the drivers before filling both
of their vehicles with gasoline using a credit card. An exchange and further
conversation occurred between the drivers and Appellant.4
¶6 After the drivers of the other vehicles and Appellant each
drove away from the station, all three vehicles were separately pulled over
by the police. Appellant was placed under arrest and searched, and police
discovered on his person the cell phone, a receipt, a gasoline fleet credit
card belonging to the flower shop, and $270 in currency.5 After his arrest,
Appellant spontaneously asked the arresting officer what the officer would
do if he (the officer) hadn’t had a pay raise in five years.
¶7 At trial, Alva Vasquez testified that, on April 24, 2013, she met
a man who had previously sold gasoline to her at a reduced rate, and he
offered to do so again. She accepted and followed him to the gas station,
where she called her husband, who soon arrived. The man who offered her
the gasoline did not work at the gas station; nonetheless, he filled up her
car with approximately seventy or eighty dollars’ worth of gasoline, and
she paid him approximately thirty or forty dollars in currency. Vasquez
testified she had previously met and purchased gasoline from the same
man, but claimed she was unable to identify the man from whom she had
purchased the gas.
¶8 Hugo Hernandez Diaz testified that, on April 24, 2013, he
went to the gas station because his wife had met someone who offered to
sell gasoline to them at a reduced rate. Diaz paid the man who pumped the
gasoline forty dollars for approximately eighty dollars’ worth of gasoline.
4 Police videotaped Appellant at the gas station, and the videotape
was played to the jury at trial.
5 Appellant had two one hundred dollar bills and seventy dollars in
other currency.
3
STATE v. JIMENEZ
Decision of the Court
¶9 The owner of the flower shop testified that the shop had fleet
credit cards used by employees to buy gasoline, and he had received
information about theft regarding the shop’s credit cards. The flower shop
tracked activity on its credit cards, as well as who had checked out vehicles
and credit cards. The shop also produced “trip status” reports that tracked
deliveries by the date, time, store, and driver. After receiving information
about the possible theft of gasoline, the owner went through the shop’s
records and found numerous instances in which a shop credit card had
been used multiple times at the same gas station within minutes of each
use. The owner also discovered Appellant was tied to numerous dates in
which a credit card had been used multiple times within a few minutes. For
example, on October 6, 2012, within less than four minutes, Appellant had
used the credit card to make separate gasoline purchases of twenty-seven,
twenty-four, nineteen, and twenty-four gallons.6 Similar transactions
occurred numerous times between October 6, 2012, and April 24, 2013, and
accounted for more than $5,000 in fraudulent gas purchases by Appellant.
¶10 Appellant chose not to testify at trial. The jury found
Appellant guilty as charged and that the crimes were committed with the
expectation of pecuniary gain. On the day of sentencing, the trial court
found Appellant had at least three historical prior felony convictions. The
court sentenced Appellant to concurrent, fully mitigated terms of 7.5 years’
imprisonment in the Arizona Department of Corrections for Count I, and
10.5 years’ imprisonment each for Counts II and III, with credit for 228 days
of presentence incarceration. Appellant filed a timely notice of appeal.
II. ANALYSIS
¶11 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537,
¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and
supports the verdicts, and the sentences were within the statutory limits.
Appellant was represented by counsel at all stages of the proceedings and
was given the opportunity to speak at sentencing. The proceedings were
conducted in compliance with his constitutional and statutory rights and
the Arizona Rules of Criminal Procedure.
¶12 After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
6 Also, Appellant had purchased as much as 35.117 gallons in a single
purchase, despite the fact that the delivery van’s tank capacity was only 31
gallons.
4
STATE v. JIMENEZ
Decision of the Court
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant 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.
III. CONCLUSION
¶13 Appellant’s convictions and sentences are affirmed.
:gsh
5