State v. Brown ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KYMBAL LE'MITRE BROWN, Appellant.
No. 1 CA-CR 17-0548
FILED 6-7-2018
Appeal from the Superior Court in Mohave County
No. S8015CR201501564
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. BROWN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Kymbal Le'Mitre Brown timely filed this appeal in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969), following his conviction of robbery, a Class 4 felony. Brown's
counsel has searched the record on appeal and found no arguable question
of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders,
386 U.S. at 744; State v. Clark, 196 Ariz. 530 (App. 1999). Brown 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 Brown's conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 Close to midnight on December 17, 2015, Brown entered a
department store in Bullhead City.1 He headed to the electronics
department, took a laptop computer from the shelf and placed it on the
bottom rack of his shopping cart. Brown then went to the women's
department, where a store employee noticed the laptop in the cart with a
security device still attached. The store had a policy that at that time of
night, customers were required to pay for all electronics in the electronics
department. Because the computer box still bore a security device, the
employee knew the item had not been paid for.
¶3 Brown then proceeded through an area of closed registers and
headed to the front door. The employee ran after Brown, grabbed the
shopping cart and asked him if he had a receipt for the computer. Brown
yanked the shopping cart, causing the laptop to slide out the front door of
the store, where the employee picked it up. Brown then punched the
employee in the shoulder, grabbed the laptop and ran to an SUV driven by
his fiancée. Some customers and two other store employees gave chase, but
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Brown. See
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
2
STATE v. BROWN
Decision of the Court
as Brown got into the vehicle, he pulled out a knife and told everyone to
"get back," and he and his fiancée drove away. A Bullhead City police
officer stopped the SUV a short time later and arrested Brown. In the SUV,
officers found the laptop and a plastic knife matching descriptions given by
the witnesses.
¶4 After a two-day trial at which Brown was not present, a jury
convicted him of robbery. The State did not allege any aggravating factors
or prior convictions. At sentencing, the court found the offense non-
dangerous and non-repetitive, and sentenced Brown to a mitigated
sentence of 1.75 years, with 58 days' presentence incarceration credit.
¶5 Brown timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1) (2018), 13-4031 (2018) and -4033 (2018).2
DISCUSSION
¶6 The record reflects Brown received a fair trial. He was
represented by counsel at all stages of the proceedings against him.
¶7 The court did not err in finding Brown was voluntarily absent
from trial and proceeding without him. "The court may infer that a
defendant's absence is voluntary if the defendant had actual notice of the
date and time of the proceeding, notice of the right to be present, and notice
that the proceeding would go forward in the defendant's absence." Ariz. R.
Crim. P. 9.1. Brown's attorney had advised him of the trial date and time,
and the court had admonished him to be present at all proceedings and had
warned him that if he failed to appear, the trial could proceed in his
absence.
¶8 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members. The court properly instructed the jury on the elements of
the charges, the State's burden of proof and the necessity of a unanimous
verdict. The jury returned a unanimous verdict.
¶9 The court received and considered a presentence report,
addressed its contents during the sentencing hearing and imposed a legal
sentence for the crime of which Brown was convicted.
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
3
STATE v. BROWN
Decision of the Court
CONCLUSION
¶10 We have reviewed the entire record for an arguable issue and
find none, and therefore affirm the conviction and resulting sentence. See
Leon, 104 Ariz. at 300.
¶11 Defense counsel's obligations pertaining to Brown's
representation in this appeal have ended. Counsel need do no more than
inform Brown 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, Brown has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Brown has 30 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
4