State v. Amina ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
EDWARD ISSAC PONI AMINA, JR., Appellant.
No. 1 CA-CR 14-0107
FILED 8-25-2015
Appeal from the Superior Court in Maricopa County
No. CR2011-162422-001
The Honorable John R. Ditsworth, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
Edward Issac Poni Amina, Jr., Kingman
Appellant
STATE v. AMINA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kent E. Cattani joined.
N O R R I S, Judge:
¶1 Appellant Edward Issac Poni Amina, Jr. timely appeals from
his conviction and sentence for aggravated assault, a class 3 dangerous
felony, in violation of Arizona Revised Statutes (“A.R.S.”) section 13-1204
(Supp. 2014).1 After searching the record on appeal and finding no arguable
question of law that was not frivolous, Amina’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.
2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking
this court to search the record for fundamental error. This court granted
counsel’s motion to allow Amina to file a supplemental brief in propria
persona, and Amina did so. We reject the argument raised in Amina’s
supplemental brief and, after reviewing the entire record, we find no
fundamental error. Therefore, we affirm Amina’s conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND2
¶2 On December 8, 2011, R.D. called a Mesa City Police officer
and reported that Amina and his girlfriend, V.P., had assaulted her in the
parking lot of an apartment complex and had threatened to kill her. Before
the assault, the State had listed R.D. as a witness in an unrelated criminal
case against Amina. A Maricopa County grand jury indicted Amina for
aggravated assault with a deadly weapon and tampering with a witness.
¶3 At trial, a number of witnesses, including Amina, testified he
was at the apartment complex on December 8, 2011. R.D. testified that as
she was walking to her car she saw Amina and V.P. coming towards her.
1Although the Arizona Legislature amended the statutes cited
in this decision after the date of Amina’s offense, the revisions are
immaterial to our resolution of this appeal. Thus, we cite to the current
version of the statutes.
2We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Amina. See
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
2
STATE v. AMINA
Decision of the Court
V.P. began yelling they were going to kill her, and Amina pulled out a
hunting knife. V.P. grabbed the car door, and as R.D. drove away, Amina
threw the knife, hitting the car’s rear windshield. R.D. also testified Amina
had a gun in his waistband.
¶4 V.P. testified for the State. She admitted she was “in on
[Anima’s] plan” and had helped him attack R.D. She testified Amina had
been looking for R.D. and earlier that morning had said he “wanted to go
and find her and kill her.” V.P. also testified that she believed that if R.D.’s
car door had not been locked as she drove away, Amina would have
stabbed R.D.
¶5 The apartment manager—who did not know anyone
involved—witnessed the attack. The manager testified, consistent with
R.D.’s and V.P.’s testimony, that Amina threatened to kill R.D. and threw a
knife at the car.
¶6 The jury found Amina guilty of aggravated assault, a
dangerous offense, but not guilty of tampering with a witness. The jury
also found the State had proven beyond a reasonable doubt an aggravating
factor—that “[t]he offense[] involved the presence of an accomplice.” The
superior court sentenced Amina to an aggravated term of 10 years based on
the jury’s finding of the aggravating factor and Amina’s criminal history.
See A.R.S. § 13-704(A), (H) (Supp. 2014). The court correctly calculated and
awarded Amina 790 days of presentence incarceration credit.
DISCUSSION
¶7 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Amina received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.
¶8 The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of 12 members and the court
properly instructed the jury on the elements of the charge, Amina’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, Amina was given an opportunity to speak at
sentencing, and did so, and his sentence was within the range of acceptable
sentences for his offense.
3
STATE v. AMINA
Decision of the Court
¶9 In his supplemental brief,3 Amina argues the superior court
violated his constitutional rights when it held “trial proceedings” outside
his presence without his waiver or consent. Specifically, he argues, “the
jury was shown a video-tape, or some other medium of evidence presented
by the government, in their case in chief. Amina was not allowed to attend
this part of the trial in front of the jury, and was in custody.”
¶10 The record reflects that on the second day of trial and as part
of the State’s case-in-chief, the court admitted into evidence a video of an
interview between Amina and a detective. The State then played the video
for the jury. Amina was present in court and did not object to the admission
of the video. The jury requested to see the video during deliberations. The
video was set up and displayed to the jury in the courtroom, outside the
presence of the court, counsel, and court staff. When the jury finished
watching the video, it returned to the jury room and continued deliberating.
¶11 A defendant does not have a right to be present in the jury
room when, pursuant to Arizona Rule of Criminal Procedure 22.2, a court
allows a jury to take tangible or documentary evidence into the jury room
during its deliberations. See State v. Jovenal, 117 Ariz. 441, 443-44, 573 P.2d
515, 517-18 (App. 1977); see also State v. Lichon, 163 Ariz. 186, 193, 786 P.2d
1037, 1044 (App. 1989) (deliberating jury had right to review videotapes
properly admitted into evidence). Here, the jury simply used the
courtroom as their “jury room” to view properly admitted evidence.
Indeed, the superior court informed the jury, “so we’re going to go off the
record. This will be your jury room.” Accordingly, we reject Amina’s
argument that the superior court violated his constitutional rights,
including his right to be present, in allowing the jury to review the video.4
CONCLUSION
¶12 We decline to order briefing and affirm Amina’s conviction
and sentence.
¶13 After the filing of this decision, defense counsel’s obligations
pertaining to Amina’s representation in this appeal have ended. Defense
counsel need do no more than inform Amina of the outcome of this appeal
3Withthe court’s permission, Amina filed two virtually
identical supplemental briefs.
4Amina
was not present when the jury asked to watch the
video. Although unclear, the record suggests defense counsel waived
Amina’s presence.
4
STATE v. AMINA
Decision of the Court
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, 684 P.2d 154, 156-57
(1984).
¶14 Amina has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Amina 30 days from the date of this decision to
file an in propria persona motion for reconsideration.
:ama
5