State v. Johnson ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 TODD JOHNSON, Appellant.
No. 1 CA-CR 18-0090
FILED 10-09-2018
Appeal from the Superior Court in Maricopa County
No. CR 2017-129320-001
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
Michael Todd Johnson, Winslow
Appellant
STATE v. JOHNSON
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge James P. Beene joined.
C A M P B E L L, Judge:
¶1 Michael Johnson timely appeals his convictions and
sentences for armed robbery and two counts of aggravated assault. After
searching the record on appeal and finding no arguable question of law that
was not frivolous, Johnson’s counsel filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
asking this court to search the record for reversible error. This court granted
counsel’s motion to allow Johnson to file a supplemental brief in propria
persona, and Johnson did so. We reject the arguments raised in Johnson’s
supplemental brief. After reviewing the entire record, we find no reversible
error and affirm Johnson’s convictions and sentences.
BACKGROUND1
¶2 In downtown Phoenix, Johnson approached the victim, an
84-year-old man, from behind and struck him in the back with a knife. The
victim fell to the ground and Johnson demanded that he surrender his ring.
The victim refused, and the two began to struggle. Johnson kicked the man
repeatedly, demanding the ring. When he continued to refuse, Johnson
pulled the victim’s bag out of his grasp and ran away.
¶3 A witness to the altercation chased after Johnson and
confronted him; he retrieved the bag and returned it to the victim. Law
enforcement arrived and searched the area, eventually locating Johnson
nearby in possession of a bloody folding knife. Two witnesses identified
Johnson as the assailant. The victim was transported to the hospital where
doctors confirmed that he had a laceration on the right side of his upper
back and neck near the spinal column. He also suffered a fractured vertebra
from the altercation with Johnson.
1We view the facts in the light most favorable to sustaining the jury’s verdict
and resolve all reasonable inferences against Johnson. State v. Guerra, 161
Ariz. 289, 293 (1989).
2
STATE v. JOHNSON
Decision of the Court
¶4 After trial, the jury found Johnson guilty of armed robbery,
aggravated assault with a deadly weapon, and aggravated assault by
causing a fracture to any body part. The superior court found that the first
two counts were inherently dangerous because both required use of a
weapon. See State v. Larin, 233 Ariz. 202, 213, ¶ 41 (App. 2013). Johnson
received the presumptive sentence for each count, to be served
concurrently: 10.5 years for armed robbery, 7.5 years for aggravated assault
with a deadly weapon, and 2.5 years for aggravated assault by causing a
fracture to any body part. The court awarded 212 days of presentence
incarceration credit.2
DISCUSSION
¶5 In his supplemental brief, Johnson repeats the arguments
raised in a motion in limine prior to trial. He argues that because the victim
has Alzheimer’s disease and did not testify at trial, any statements he made
to police are inadmissible hearsay. We need not comment on this argument
because none of the victim’s statements were admitted at trial. In fact, the
superior court granted the motion before trial began. We therefore find no
ground for reversal in Johnson’s supplemental brief.
¶6 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Johnson received a fair trial. He was
represented by counsel at all stages of the proceedings and was present at
all critical stages.
¶7 The evidence presented at trial was substantial and supports
the verdicts. The jury was properly comprised of 12 members and the court
properly instructed the jury on the elements of the charges, Johnson’s
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict. The superior court received and considered a
presentence report, Johnson was given an opportunity to speak at
sentencing, and his sentences were within the range of acceptable sentences
for his offenses.
2Johnson should have received only 211 days of presentence incarceration
credit. The superior court’s error is in Johnson’s favor and is, therefore, not
fundamental because it did not prejudice him. See State v. Henderson, 210
Ariz. 561, 567, ¶¶ 19-20 (2005) (explaining fundamental error is error that
goes to the foundation of the case and prejudices the defendant).
3
STATE v. JOHNSON
Decision of the Court
CONCLUSION
¶8 We affirm Johnson’s convictions and sentences. Unless
defense counsel finds an issue that may be appropriately submitted to the
Arizona Supreme Court, his obligations are fulfilled once he informs
Johnson of the outcome of this appeal and his future options. See State v.
Shattuck, 140 Ariz. 582, 584-85 (1984). Johnson has 30 days from the date of
this decision to proceed, if he wishes, with a pro per motion for
reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: JT
4