State v. Buggs ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
WILLIE EVERETTE BUGGS, Appellant.
No. 1 CA-CR 13-0660
FILED 07-24-2014
Appeal from the Superior Court in Maricopa County
No. CR 2012-164686-001
The Honorable Richard L. Nothwehr, Commissioner
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant
STATE v. BUGGS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
N O R R I S, Judge:
¶1 Willie Everette Buggs timely appeals from his conviction
and sentence for assault, a class 1 misdemeanor. See Ariz. Rev. Stat.
(“A.R.S.”) § 13-1203(A)(1), (B) (2010). After searching the record on appeal
and finding no arguable question of law that was not frivolous, Buggs’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 Buggs to file a
supplemental brief in propria persona, but Buggs did not do so. After
reviewing the entire record, we find no fundamental error and therefore
affirm Buggs’s conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On December 21, 2012, Buggs and his roommate, R.G., were
drinking alcohol and playing cards when they began to argue. Both men
were swearing and yelling at each other, and the argument escalated into
a physical altercation. Although Buggs testified R.G. “took a swing at me”
and he only hit R.G. with his fist four times defending himself, another
witness testified R.G. had never attempted to hit Buggs, but rather Buggs
had attacked R.G. and hit him with the blunt end of a box cutter as many
as ten or 12 times. After the incident, R.G. went to the hospital and
received staples and stitches in various parts of his head and face.
¶3 A grand jury indicted Buggs for felony aggravated assault
under A.R.S. § 13-1204(A)(2) (Supp. 2013) (assault with a deadly weapon
or dangerous instrument). A jury convicted Buggs of the lesser included
offense of assault under A.R.S. § 13-1203(A)(1) (causing any physical
1We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Buggs.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
2
STATE v. BUGGS
Decision of the Court
injury to another person), a misdemeanor. The superior court sentenced
Buggs to 180 days incarceration, see A.R.S. § 13-707(A) (2010), with 180
days presentence incarceration credit.
DISCUSSION
¶4 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Buggs received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.2
¶5 The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of eight members; and the
court properly instructed the jury on the elements of the charge, Buggs’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, Buggs was given an opportunity to speak at
sentencing and did so, and his sentence was within the range of
acceptable sentences for his offense.
¶6 We note, however, that in closing argument, but without any
objection by defense counsel, the prosecutor improperly relied on matters
that were not introduced in evidence. First, in discussing the trial
evidence concerning blood splattering, the prosecutor referred to “basic
physics” even though no evidence was presented to the jury about “basic
physics.” Second, the prosecutor argued that electricians use box cutters
in lieu of wire strippers to strip off the first inch or so of “Romex wire.”
Yet, no evidence was presented to the jury about using box cutters in lieu
of wire strippers or, for that matter, “Romex wire.” Third, the prosecutor
asserted a particular witness, who had been a friend of Buggs, gave Buggs
“a little nod” after his testimony. No evidence was presented to the jury,
however, about this alleged nod.
¶7 The prosecutor’s reliance on these matters was improper.
See generally State v. Newell, 212 Ariz. 389, 402, ¶ 62, 132 P.3d 833, 846
(2006) (impermissible prosecutorial vouching exists when prosecutor
suggests information not presented to the jury supports the evidence).
2Buggs waived his presence at a July 11, 2013 pretrial
hearing. At the hearing, the court entered scheduling orders for the
submission of trial exhibits and proposed jury instructions and affirmed
the prior custody orders and the trial date.
3
STATE v. BUGGS
Decision of the Court
Although improper, based on our review of the record, the statements did
not amount to fundamental, prejudicial error. State v. Henderson, 210 Ariz.
561, 568-69, ¶¶ 22-26, 115 P.3d 601, 608-09 (2005).
CONCLUSION
¶8 We decline to order briefing and affirm Buggs’s conviction
and sentence.
¶9 After the filing of this decision, defense counsel’s obligations
pertaining to Buggs’s representation in this appeal have ended. Defense
counsel need do no more than inform Buggs 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶10 Buggs 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 Buggs 30 days from the date of this decision to
file an in propria persona motion for reconsideration.
:gsh
4