State v. Lebian ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ADRIAN DEWAYNE LEBIAN, Appellant.
No. 1 CA-CR 20-0542
FILED 6-24-2021
Appeal from the Superior Court in Yavapai County
No. P1300CR201900204
The Honorable Krista M. Carman, Judge
AFFIRMED
COUNSEL
Law Offices of Stephen L. Duncan, PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
Adrian Dewayne Lebian, El Paso, Texas
Appellant
STATE v. LEBIAN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Adrian Dewayne Lebian timely appealed in accordance with
Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969),
following his convictions for two counts of aggravated assault, and
resisting arrest. Lebian’s counsel has searched the record and found no
arguable question of law that is not frivolous. See Anders, 386 U.S. at 744; see
also State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Lebian filed a
supplemental brief, challenging his convictions on three grounds.
¶2 Our obligation is to review the entire record for reversible
error, id., viewing the evidence in the light most favorable to sustaining the
convictions and resolving all reasonable inferences against Lebian. See State
v. Guerra, 161 Ariz. 289, 293 (1989). After reviewing the record, we find no
error and reject the arguments raised in Lebian’s supplemental brief. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In December 2018, Officer Shook responded to a report of
Lebian blocking traffic and trying to open car doors. Shook found Lebian
walking in the middle of the road and instructed him to step out of the road.
Lebian acknowledged Shook’s request but did not comply. Shook then
informed Lebian he was under arrest, prompting Lebian to flee. Shook
eventually caught up with Lebian and they started scuffling. Lebian swung
his fist at Shook and then they started grappling on the ground. Three more
officers arrived to help Shook arrest Lebian, who continued to struggle and
wrestle with the officers. The State charged Lebian with two counts of
aggravated assault, a class 5 felony, and resisting arrest, a class 6 felony.
¶4 Lebian filed a pretrial motion for new appointed counsel,
which the superior court denied. Lebian also filed a pretrial motion to
exclude hearsay related to a 911 call, which the superior court granted in
part. The court ruled the 911 call could not be used to evidence Lebian’s
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STATE v. LEBIAN
Decision of the Court
mental state or potential wrongdoing, but the 911 call could be used to
explain why Shook responded to the scene.
¶5 Multiple officers testified at trial and each officer confirmed
that Lebian fought with Shook and Officer Kline. Kline also testified that
Lebian “clawed at” and twisted Kline’s fingers as the officers restrained
Lebian. Only Lebian testified in his defense.
¶6 During jury deliberations, Lebian’s counsel notified the court
that it omitted a limiting instruction related to the 911 call. The court then
recalled the jury to provide a limiting instruction consistent with its ruling
on Lebian’s motion. The jury found Lebian guilty of all charges. The court
sentenced Lebian to mitigated sentences of nine months’ imprisonment for
each count of aggravated assault and four months’ imprisonment for
resisting arrest. The court ordered Lebian’s sentences to run concurrently,
and he received 51 days of pre-incarceration credit.
DISCUSSION
¶7 The record reveals sufficient evidence from which the jury
could determine, beyond a reasonable doubt, that Lebian is guilty of the
charged offenses. The record also reflects that all proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure,
that Lebian was represented by counsel at all stages of the proceedings, and
that he was either present or waived his presence at all critical stages. See
State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel); see also State v.
Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). Lebian
had the opportunity to speak during sentencing and the court stated the
factors it considered before imposing sentences within the statutory limits.
A.R.S. §§ 13-704, -1105(D); see also Ariz. R. Crim. P. 26.9, 26.10.
¶8 Lebian’s supplemental brief challenges his sentence on three
grounds. First, Lebian claims the superior court erred by denying his right
to self-representation. Criminal defendants have “a constitutionally
protected right to proceed without counsel,” but “[i]n order to successfully
invoke this right, the accused must make an unequivocal request to
represent himself.” State v. Henry, 189 Ariz. 542, 548 (1997). In his
supplemental brief, Lebian claims to have based his motion for new counsel
“on the grounds of the public defender being overwhelmed with case load
and the obvious conflict of interest.” Lebian then claims to have requested
to represent himself. But nothing in the record reflects Lebian’s alleged
desire for self-representation. Lebian only offers his own handwritten and
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STATE v. LEBIAN
Decision of the Court
signed statement, as an appendix to his supplemental brief, to support this
claim. We thus find no error.
¶9 Second, Lebian appears to argue that inconsistencies in the
officer-witnesses’ testimonies taint his convictions. He broadly claims that
multiple officers’ statements are “elusive, inconsistent, and non-
corroborating.” He also cites potential factual inaccuracies. These
arguments are essentially an invitation to reweigh the evidence, which we
will not do. See Guerra, 161 Ariz. at 293.
¶10 Third, Lebian claims the superior court erred by permitting
references to the 911 call. He also argues this evidence contaminated the
jury “beyond reparation.” The court granted Lebian’s motion to preclude
hearsay related to the 911 call, but also ruled the call could be used to
explain why Shook responded to the scene. See Ariz. R. Evid. 801(c), 802–
804 (out of court statements are not hearsay if not offered to prove the truth
of the matter asserted). And the record shows the State followed the court’s
order when referencing the 911 call. The court did at first fail to provide the
jury with a limiting instruction before deliberations, but Lebian’s counsel
informed the court of this omission. The court then remedied the omission
by instructing the jury that the 911 call could only be used to explain why
Shook responded to the scene. See State v. Dann, 205 Ariz. 557, 571, ¶ 48
(2003) (we presume juries follow curative instructions). We therefore find
no error.
CONCLUSION
¶11 We have reviewed the entire record for arguable issues of law
and find none. We thus affirm Lebian’s convictions and sentences. See Leon,
104 Ariz. at 300–01.
¶12 Defense counsel’s obligations pertaining to Lebian’s
representation in this appeal have ended. Counsel must only inform Lebian
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 (1984). On the court’s own motion, Lebian has thirty days from the
date of this decision to proceed, if he wishes, with a pro per motion for
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STATE v. LEBIAN
Decision of the Court
reconsideration. Lebian also has thirty days from the date of this decision
to proceed, if he wishes, with a pro per petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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