State v. Emerson ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANTHONY ERIC EMERSON, Appellant.
Nos. 1 CA-CR 14-0230, 1 CA-CR 14-0231 (Consolidated)
FILED 08-13-2015
Appeal from the Superior Court in Maricopa County
Nos. CR2010-138001-001 and CR2010-139292-001
The Honorable Karen L. O’Conner, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
Anthony Eric Emerson, Tucson
Appellant
STATE v. EMERSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Donn Kessler joined.
W I N T H R O P, Judge:
¶1 In this consolidated appeal, Anthony Eric Emerson
(“Appellant”) appeals his convictions and sentences in two cases, tried
separately. In the first case, CR2010-139292-001, Appellant was charged by
information with armed robbery. The jury found Appellant guilty and he
was sentenced to an aggravated term of twenty-eight years in prison. In
the second case, CR2010-138001-001, Appellant was charged by
information with robbery (Count 1), possession or use of narcotic drugs
(Count 2), unlawful use of means of transportation (Count 3), and
possession of drug paraphernalia (Count 4). Appellant was convicted of
robbery and possession or use of narcotic drugs (Counts 1 and 2) and
sentenced to ten years’ imprisonment on each count, to be served
concurrently. Appellant’s counsel 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), indicating he searched the
record on appeal and, finding no arguable question of law that was not
frivolous, requested this court to review the entire 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).
Appellant has also filed a supplemental brief in propria persona.
¶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),1 13–4031, and 13–4033(A). Finding no reversible
error, we affirm.
1 We cite the current version of the applicable statutes unless revisions
material to this decision have occurred since the date of the offense.
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STATE v. EMERSON
Decision of the Court
FACTS2 AND PROCEDURAL HISTORY
¶3 Throughout the duration of both cases and on appeal,
Appellant alleges that he is “not a legal fiction” and that he did not accept
the jurisdiction of the trial court. He repeatedly requested to represent
himself, and for a short period of time Appellant was acting pro per and
ultimately the court denied his request to proceed without counsel.
Appellant elected not to participate in most of the proceedings in both
cases; either tacitly by his inappropriate behavior, or by affirmatively
requesting to be excused. Although Appellant was originally charged in
mid-2010, the cases were not taken to trial until almost three and a half years
later because Appellant’s competency was being evaluated in the interim.
The issue of competency in both cases was determined in consolidated Rule
11 proceedings and Appellant was ultimately deemed competent to aid in
his defense.
¶4 The armed robbery charge was tried first. At trial, the State
presented the following evidence: On July 20, 2010, Appellant entered a
Walgreens store. Appellant was described by an eyewitness as wearing a
low hat and having dreadlocks. A Walgreens employee assisted Appellant
with locating a pack of gum at his request, and Appellant approached the
register with cash to presumably pay for the item. When the cash drawer
opened to provide change for the transaction, Appellant reached into the
register and attempted to take the cash drawer. The Walgreens employee
held onto the drawer, and after a brief tug-of-war with the drawer, the
Walgreens employee was able to gain control and attempted to flee the area.
As the employee was running away, she turned and saw Appellant
brandishing what appeared to be a gun. The employee threw the cash
drawer into one of the store aisles in an attempt to redirect Appellant, and
ran into a back area of the store. Appellant was observed on surveillance
video as leaving the scene in a gold four-door sedan.
¶5 Video and still photos from the Walgreens surveillance
camera captured the incident and were submitted at trial. Appellant was
seen wearing a black hat and sunglasses and had dreadlocks. Two
eyewitnesses identified Appellant as the perpetrator from a six-person
photo lineup. A black hat, dreadlock wig, and toy gun were found in a car
known to be used by Appellant during the robbery and submitted as
2 In our review, we consider the facts in the light most favorable to
upholding the jury’s verdict. State v. Mitchell, 204 Ariz. 216, 217, ¶ 3, 62 P.3d
616, 617 (App. 2003).
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STATE v. EMERSON
Decision of the Court
evidence. Appellant was found guilty of armed robbery, and the jury also
found three aggravating factors.
¶6 In the other case, the State presented evidence that Appellant
had robbed a different Walgreens store on July 19, 2010. A Walgreens
manager testified that, while he was counting out cash from a register, he
set some of the money aside. Appellant was present in the store and
reached across the counter, grabbing the money. Appellant ran out of the
store, and the manager followed, observing Appellant get in a gold four-
door sedan to escape the scene. A surveillance video of the incident and
still frames showed Appellant wearing a black hat, dreadlocks, and
sunglasses - the same items later located in the vehicle used by Appellant.
The Walgreens manager identified Appellant from a six-person photo
lineup. Appellant was carrying a substance later identified as crack cocaine
at the time of his arrest. He was found guilty of robbery and possession or
use of drugs.
¶7 Appellant was sentenced in both cases in March 2014. As to
the armed robbery, the court found three aggravating factors - emotional
harm, pecuniary gain, and threatened infliction of serious physical injury -
as well as Appellant’s prior felony convictions. The court further found
these factors outweighed the mitigation evidence presented, and sentenced
Appellant to twenty-eight years with 1,346 days of presentence
incarceration credit. The court ordered the presumptive sentence of ten
years for Appellant’s robbery and drug possession convictions to run
concurrently to one another and consecutive to his sentence for armed
robbery.
ANALYSIS
¶8 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 sentences were within the statutory limits. Appellant
was represented by counsel at trial and spoke at sentencing. The
proceedings were conducted in compliance with his constitutional and
statutory rights and the Arizona Rules of Criminal Procedure. Further,
substantial evidence supported the jury’s verdicts, including video of both
events and eyewitness identification.
¶9 In his brief, Appellant requests this court to prove that the
trial court had “jurisdiction over the private flesh and blood man,” but
provides no argument or applicable facts supporting a colorable
jurisdictional issue. In any event, A.R.S. § 13-108 unequivocally confers
jurisdiction to the trial court over Appellant in both cases.
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STATE v. EMERSON
Decision of the Court
¶10 After the filing of this decision and notification to Appellant
of the status of the appeal and of his future options, defense counsel’s
obligations pertaining to representation of Appellant have ended. See Clark,
196 Ariz. at 536, ¶ 30, 2 P.3d at 95; 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.
CONCLUSION
¶11 We affirm both of the trial court’s convictions and sentences.
:RT
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