State v. Monyer ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL NICHOLAS MONYER, Appellant.
No. 1 CA-CR 17-0729
FILED 9-27-2018
Appeal from the Superior Court in Yavapai County
No. P1300CR201601064
The Honorable Patricia A. Trebesch, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Nicole Countryman, Phoenix
Counsel for Appellant
Michael Monyer, Florence
Appellant
STATE v. MONYER
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
P E R K I N S, Judge:
¶1 Michael Monyer appeals his convictions and sentences for
five felony counts: (1) armed robbery; (2) aggravated assault with a deadly
weapon; (3) aggravated assault with a deadly weapon against a minor
under fifteen years of age; (4) stalking; and (5) criminal property damage.
After searching the entire record, Monyer’s counsel identified no arguable,
non-frivolous questions of law. In accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), counsel advised the
Court that she has found no arguable question of law, and requested this
Court search the record for fundamental error. Monyer filed a
supplemental brief in propria persona. We have reviewed the record and
briefs and found no error. Accordingly, Monyer’s convictions and resulting
sentences are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In the summer of 2016, Monyer and his wife, S., experienced
marital problems. S. left the family home and Monyer began repeatedly
texting and calling her. While S. was in Las Vegas with several family
members, Monyer began texting the family members accompanying S.
Monyer also threatened to burn some of S.’s possessions if she did not
contact him. Monyer then sent S. images showing her wedding dress and
some family heirlooms on fire. After S.’s sister, T., returned to Arizona,
Monyer contacted the police to report S. as missing.
¶3 Next, Monyer drove to T.’s home in an effort to find S. On
arriving, Monyer exited his vehicle and pointed a gun at T., who was sitting
on her porch with her minor daughter, A., and talking to S. on a cell phone.
Monyer approached the pair, placed his gun near T.’s head, and demanded
T. hand over her cell phone. T. pleaded with Monyer to leave. Monyer took
possession of T.’s phone and T. fled into her home with A. Monyer then
used T.’s phone to contact S. and threatened to kill S.’s family, including T.,
if S. did not comply with his demands. After a short discussion with S. and
T., Monyer left, leaving T.’s cell phone behind.
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STATE v. MONYER
Decision of the Court
¶4 T. and S. both contacted the local police, who quickly began
looking for Monyer, but could not locate him. Over the next several days,
Monyer sent more messages to S. threatening to kill her and her family. At
one point, Monyer traveled to Phoenix and, uninvited, entered S.’s aunt’s
house where several of her relatives lived. Monyer asked to speak with
them but left when they told him they had to go to work.
¶5 The State charged Monyer with five felony counts, identified
above. During Monyer’s trial, S. testified about numerous text messages
and calls from Monyer that included images of burned property, death
threats, and threats to harm S.’s family members. T. testified about the
morning confrontation at her home. T.’s children, A. and L., also testified
about the confrontation. In particular, A. testified that Monyer threatened
T., pointed a gun at T., and took T.’s phone. L., who was inside the home at
the time of the incident, testified that he heard Monyer threaten T. and that
T. was scared. Finally, S. testified that she heard T. screaming and that she,
S., was afraid for her sister and niece’s lives.
¶6 With the exception of the criminal damage charge, the jury
found Monyer guilty on each count, as charged. For the criminal damage
charge, the jury found that the property damaged was worth $1,000 to
$2,000 dollars rather than more than $2,000, as originally charged. The State
alleged nine aggravating factors and the jury found each beyond a
reasonable doubt at a separate phase of the trial. The court sentenced
Monyer to concurrent terms of imprisonment for counts 1, 2, 4, and 5, the
longest of which was eleven years. The court sentenced Monyer to an
additional 17.5 years’ imprisonment, to be served consecutively, for count
3, aggravated assault with a deadly weapon against A., who was age 4 at
the time of the incident.
DISCUSSION
¶7 On appeal, we view the facts, as reflected in the record, in the
light most favorable to sustaining the convictions. State v. Harm, 236 Ariz.
402, 404 n.2, ¶ 3 (App. 2015). Our review reveals no reversible error. See
Leon, 104 Ariz. at 300–01 (describing our Anders review process). An
individual is guilty of armed robbery if, as relevant here, the individual: (1)
takes any property of another; (2) from his person or immediate presence;
(3) against his will; (4) by threat or use of force; (5) with intent to coerce
surrender of property; and (6) while armed with a deadly weapon. See Ariz.
Rev. Stat. (“A.R.S.”) § 13-1902, -1904 (2018). An individual is guilty of
aggravated assault with a deadly weapon if, as relevant here, the
individual: (1) intentionally places another person in reasonable
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STATE v. MONYER
Decision of the Court
apprehension of imminent physical injury (2) using a deadly weapon. A.R.S
§§ 13-1203(A)(2), -1204(A)(2) (2018). If the victim of an aggravated assault
involving a deadly weapon is under fifteen years of age, the aggravated
assault is classified as a dangerous crime against children under A.R.S. §
13-705(Q)(1)(b) (2018). Under A.R.S. § 13-2923(A)(2)(a) an individual is
guilty of stalking if, as relevant here, the individual: (1) intentionally
engages in a course of conduct directed toward another that; (2) causes the
victim to reasonably fear that the victim’s family member will be killed.
Under A.R.S. § 13-1602(A)(1) and (B)(4), an individual is guilty of criminal
damage if, as relevant here, the individual: (1) recklessly damages the
property of another; (2) in amount of one thousand dollars or more but less
than two thousand dollars.
¶8 Monyer was charged with a total of five felonies, detailed
above. The record reveals sufficient evidence upon which the jury could
determine, beyond a reasonable doubt, that Monyer is guilty of the charged
offenses. The record further reflects that all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure, that Monyer
was represented by counsel at all stages of the proceedings, and that
Monyer was present at all critical stages, including the entire trial and
verdict. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel); State
v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). The
jury was properly composed of twelve jurors, and the record shows no
evidence of jury misconduct. See A.R.S. § 21-201 (2018); Ariz. R. Crim. P.
18.1(a). The court properly instructed the jury on the elements of the
charged offense, the State’s burden of proof, and Monyer’s presumption of
innocence. At sentencing, Monyer had the opportunity to speak and the
court stated, on the record, the factors it considered in imposing the
sentences. Ariz. R. Crim. P. 26.9, 26.10. The sentences imposed were within
the statutory limits. See A.R.S. §§ 13-701 to -709.
¶9 Monyer, in his supplemental brief, argues that his trial
counsel was ineffective, some of the jurors were biased based on their
answers during voir dire, that the judge was biased, and insufficient
evidence was presented at trial. First, we do not address claims of
ineffective assistance of counsel on direct appeal. State v. Spreitz, 202 Ariz.
1, 3 ¶ 9 (2002). Second, Monyer’s claims of bias as to the judge and the jurors
are without merit. Monyer points to the fact that several jurors indicated
they had prior experience with similar crimes or with law enforcement,
however, each empaneled juror indicated they would not allow prior life
experiences to influence their verdict in Monyer’s case. Similarly, nothing
in the record indicates any bias by the trial judge. Finally, for the reasons
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STATE v. MONYER
Decision of the Court
discussed supra, there was ample evidence presented at trial upon which
the jury could determine Monyer’s guilt.
CONCLUSION
¶10 This Court has read and considered counsel’s brief and
Monyer’s supplemental brief, searched the record provided for reversible
error, and has found no arguable issue. State v. Clark, 196 Ariz. 530, 538, ¶
36 (App. 1999) (in an Anders appeal, “the court itself reviews the record for
reversible error”). Accordingly, Monyer’s convictions and resulting
sentences are affirmed.
¶11 Upon filing of this decision, defense counsel is directed to
inform Monyer of the status of the appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).
Monyer shall have 30 days from the date of this decision to proceed, if he
desires, with an in propria persona motion for reconsideration or petition for
review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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