State v. Neal ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SKY NEAL, Appellant.
No. 1 CA-CR 15-0318
FILED 4-19-2016
Appeal from the Superior Court in Maricopa County
No. CR2014-132260-001
The Honorable Jose S. Padilla, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
STATE v. NEAL
Decision of the Court
G E M M I L L, Judge:
¶1 Sky L. Neal appeals from his convictions and sentences for
one count of aggravated assault, one count of unlawful discharge of a
firearm, and one count of misconduct involving weapons. Neal’s counsel
filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), stating that he has searched the record
and found no arguable question of law and requesting that this court
examine the record for reversible error. Neal was afforded the opportunity
to file a pro se supplemental brief but did not do so. See State v. Clark, 196
Ariz. 530, 537, ¶ 30 (App. 1999). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001). Neal resided at an apartment complex in
Phoenix, with his cousin, M.W. On July 6, 2014, Neal and M.W. were
involved in a disagreement in the apartment. Another cousin, E.W., was in
another room watching a movie with M.W.’s daughter, A.W. During the
disagreement between M.W. and Neal, M.W. was shot in her left thigh.
M.W. ran out of the apartment screaming, “[h]e shot me, he shot me.” E.W.
observed Neal holding a gun at this time.
¶3 Neal felt that M.W. and her boyfriend, T., were plotting
against him. Neal and M.W. had been arguing for a few days prior to Neal
confronting her with a gun in the apartment. M.W. told the 911 dispatcher,
law enforcement officers, and a doctor at St. Joseph’s Hospital that her
cousin shot her. She never mentioned a struggle over the gun until trial,
except in discussions with family members.
¶4 Prior to trial, M.W. drafted an affidavit averring that the
statements she made to law enforcement were inaccurate and that she did
not wish to prosecute Neal. M.W. had illegally purchased the gun involved
in the shooting, and at trial, she invoked her Fifth Amendment right to
remain silent. After the State granted her immunity as to the illegal gun
purchase, she testified that the incident began when she approached Neal,
there was a “tussling back and forth” over the gun; and then the gun went
off, with the bullet penetrating her left thigh. She further testified that her
statements saying Neal had shot her were made out of anger from Neal not
trusting her. Neal’s mother, S.J., who was also M.W.’s employer, testified
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STATE v. NEAL
Decision of the Court
that she never told M.W. to change her story. E.W. testified that M.W. never
told him about a struggle over the gun and that he heard M.W. say “[h]e
shot me” after the gunshot.
¶5 Detective Anthony Winter testified that because fingerprint,
DNA, and gunshot residue (GSR) testing were not requested until one
month prior to trial, the testing was not done. Both Detective Winter and
forensic scientist Kyle Mueller testified that GSR testing would have not
been helpful in this case.
¶6 The eight-member jury convicted Neal of one count of
aggravated assault, a class 3 felony, one count of unlawful discharge of a
weapon, a class 6 felony, and one count of misconduct involving weapons,
a class 4 felony. After a colloquy with the court, Neal stipulated to the
following aggravating factors: the offense involved the infliction of serious
physical injury; the offense caused emotional harm to the victim; the offense
was a domestic violence offense because Neal was residing with the victim
and the offense occurred in the presence of a child; and Neal was on felony
probation at the time of the offense. Additionally, both parties agreed that
a finding of dangerousness was inherent in the jury’s verdict. Neal was
sentenced to three concurrent, presumptive terms in prison, the longest of
which was 7.5 years. Neal was credited for 317 days served in jail.
¶7 Neal timely appealed, and this court has jurisdiction under
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and 13-4033.
DISCUSSION
¶8 Having considered defense counsel’s brief and examined the
record for reversible error, see Leon, 104 Ariz. at 300, we find none. The
evidence presented supports the convictions and the sentences imposed fall
within the ranges permitted by law. As far as the record reveals, Neal was
represented by counsel at all stages of the proceedings, which were
conducted in compliance with his constitutional and statutory rights and
the Arizona Rules of Criminal Procedure.
¶9 Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85 (1984),
counsel’s obligations in this appeal have ended. Counsel need do no more
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STATE v. NEAL
Decision of the Court
than inform Neal of the disposition of the appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. Neal has thirty days from
the date of this decision in which to proceed, if he desires, with a pro se
motion for reconsideration or petition for review.
CONCLUSION
¶10 Neal’s convictions and sentences are affirmed.
:ama
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