State v. Stroble ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TIMOTHY WARREN STROBLE, Appellant.
No. 1 CA-CR 15-0221
FILED 2-25-2016
Appeal from the Superior Court in Maricopa County
No. CR2012-008428-001
The Honorable Rosa Mroz, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
Timothy Warren Stroble, Tucson
Appellant
STATE v. STROBLE
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 John C. Gemmill joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), by
Timothy Stroble following his conviction of robbery, a Class 4 felony.
Stroble'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. 738; State v. Clark, 196 Ariz. 530 (App. 1999). Stroble
filed a supplemental brief identifying various issues, which we address
below. After reviewing the entire record, we affirm Stroble's conviction and
sentence.
FACTS AND PROCEDURAL HISTORY
¶2 Stroble entered the victim's pet grooming shop and
demanded money from her.1 After the victim initially refused, Stroble
became agitated, used profanity and slammed the counter with his hand.
One of the victim's customers came into the shop and left $40 on the counter
in payment. Stroble again demanded money of the victim, took the $40
from the counter and eventually left the shop.
¶3 A jury convicted Stroble of robbery and found two
aggravating circumstances. After finding Stroble had several prior felony
convictions, the superior court sentenced him to an aggravated sentence of
13 years' incarceration with 741 days of presentence incarceration credit.
Stroble timely appealed. We have jurisdiction pursuant to Article 6, Section
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Stroble. See
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
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STATE v. STROBLE
Decision of the Court
9, of the Arizona Constitution, and Arizona Revised Statutes sections 12-
120.21(A)(1) (2016), 13-4031 (2016) and -4033 (2016).2
DISCUSSION
A. Issues Raised in Supplemental Brief.
1. Sufficiency of the evidence.
¶4 Stroble challenges the sufficiency of the evidence, arguing the
State failed to offer evidence aside from the victim's testimony. Stroble
provides no legal authority, however, to support his argument that a
victim's testimony may not be sufficient evidence, by itself, to support a
conviction. "[A] conviction may be based on the uncorroborated testimony
of the victim unless the story is physically impossible or so incredible that
no reasonable person could believe it." State v. Munoz, 114 Ariz. 466, 469
(App. 1976). The record here contains sufficient evidence, recounted above,
to support Stroble's conviction. The State presented the testimony of the
victim, who recounted Stroble's threatening behavior. The victim testified
she told Stroble she had no money to give him and testified she felt
threatened when his behavior became increasingly aggressive. No
evidence before the jury contradicted the victim's version of events. On
appeal, we will not reweigh the evidence. State v. Tison, 129 Ariz. 546, 552
(1981). To warrant reversal, there must be a complete lack of probative
evidence supporting the verdict. State v. Williams, 209 Ariz. 228, 231, ¶ 6
(App. 2004). The record plainly contains sufficient evidence to support
Stroble's conviction.
¶5 Stroble also argues the superior court erred when it failed to
grant his Rule 20 motion for a judgment of acquittal. In this argument,
Stroble essentially re-argues his contention that the State offered
insufficient evidence to support the conviction. For the reasons stated
above, the court did not err by denying Stroble's Rule 20 motion.
2. Ineffective assistance of counsel.
¶6 Stroble also argues his trial counsel was ineffective. In a direct
appeal, this court will not consider a claim of ineffective assistance of
counsel; that is an issue only for a Rule 32 post-conviction proceeding. State
ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007).
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. STROBLE
Decision of the Court
3. Grand jury proceedings.
¶7 Stroble also argues there was exculpatory evidence that
should have been presented to the grand jury that indicted him. Pursuant
to Arizona Rule of Criminal Procedure 12.9, however, challenges to grand
jury proceedings must be brought within 25 days after arraignment or after
the certified transcript and minutes are filed. Ariz. R. Crim. P. 12.9(b).
Accordingly, Stroble's challenge to the grand jury proceedings is untimely
and will not be considered. See State v. Smith, 123 Ariz. 243, 248 (1979) ("A
defendant waives his objections to the grand jury proceeding by failing to
comply with the timeliness requirement.").
4. Timeliness of the complaint.
¶8 Finally, Stroble argues that pursuant to Arizona Rule of
Criminal Procedure 4.1(b), he should have been released from custody after
the State failed to file a complaint within 48 hours of his initial appearance.
As Stroble raises this issue for the first time on appeal, we review it for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).
¶9 Rule 4.1(b) provides, "If a complaint is not filed within 48
hours from the time of the initial appearance . . . the defendant shall be
released[.]" Ariz. R. Crim. P. 4.1(b). Stroble was charged by grand jury
indictment. Pursuant to Arizona Rule of Criminal Procedure 2.2(a), a
felony action may be commenced "[b]y indictment, which may or may not
be preceded by a complaint[.]" As the comments to the rule make clear,
"[t]he filing of a complaint is neither a condition precedent to the return of
an indictment, nor a bar to proceeding by indictment thereafter." Ariz. R.
Crim. P. 2.2 cmt. Rule 2.2(a). Despite Stroble's argument to the contrary,
given the indictment, there was no requirement that a complaint be filed.
Moreover, Rule 4.1(b), which applies to defendants who are arrested
without a warrant, contemplates the absence of a charging document. Not
only did the superior court issue a warrant for Stroble's arrest, but there
was a valid charging document in the form of an indictment at the time of
his initial appearance. Furthermore, Stroble does not demonstrate how any
purported procedural defect might constitute fundamental error.
B. Due Process Review.
¶10 The record reflects Stroble received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.
Pursuant to Arizona Rule of Evidence 609, the court held a hearing on
Stroble's prior convictions and sanitized his prior felony convictions. It did
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STATE v. STROBLE
Decision of the Court
not conduct a voluntariness hearing; however, the record did not suggest a
question about the voluntariness of Stroble's statements to police. See State
v. Smith, 114 Ariz. 415, 419 (1977); State v. Finn, 111 Ariz. 271, 275 (1974).
¶11 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
12 members with two alternates. The court properly instructed the jury on
the elements of the charge, the State's burden of proof, the presumption of
innocence, reasonable doubt and the necessity of a unanimous verdict. The
jury returned a unanimous verdict, which was confirmed by juror polling.
The court received and considered a presentence report and imposed a
legal sentence for the crime of which Stroble was convicted.
CONCLUSION
¶12 We have reviewed the entire record for reversible error and
find none, and therefore affirm the conviction and resulting sentence. See
Leon, 104 Ariz. at 300.
¶13 After the filing of this decision, defense counsel's obligations
pertaining to Stroble's representation in this appeal have ended. Defense
counsel need do no more than inform Stroble 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, Stroble has 30 days from the date of this decision to proceed,
if he wishes, with a pro per motion for reconsideration. Stroble has 30 days
from the date of this decision to proceed, if he wishes, with a pro per petition
for review.
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