State v. Thomas ( 2016 )

NOTICE: NOT FOR PUBLICATION.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.
LENNIE THOMAS,
Appellant.
No. 1 CA-CR 15-0045
FILED 4-7-2016
Appeal from the Superior Court in Maricopa County
No. CR 2013-030204-001
The Honorable Richard L. Nothwehr, Commissioner
AFFIRMED
COUNSEL
Arizona Attorney General’s Office
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant
STATE v. THOMAS
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.
O R O Z C O, Judge:
¶1 Lennie Thomas (Defendant) appeals his conviction and
sentence for burglary in the third degree, a class four felony, with two prior
historical felony convictions. Pursuant to Anders v. California, 386 U.S. 738(1967) and State v. Leon, 104 Ariz. 297 (1969), Defendant’s counsel has filed
a brief indicating he searched the entire record, found no arguable question
of law, and asked this court to review the record for fundamental error.
Defendant was given the opportunity to file a supplemental brief in propria
persona, but did not. For the following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 Late in the evening, Officer Tunis of the Mesa Police
Department responded to a burglary alarm call at a business complex.
While patrolling near the burglarized building, Officer Tunis observed
Defendant standing alone at a well-lit bus stop at a time the buses do not
run. Officer Tunis testified Defendant’s all black attire, black backpack, and
black sun glasses caught his attention. After questioning Defendant at the
bus stop, Officer Tunis arrested Defendant and took him in for booking.
¶3 Officer Tunis then returned to the burglary scene to resume
canvasing of the area for other suspicious persons, vehicles, or evidence.
Inside the ransacked building Officer Tunis discovered a shoe print on a
large desk calendar and broken glass at the front door.
¶4 Later, Officer Tunis visited Defendant in the holding facility.
Defendant was lying in his cell with his feet towards the door. Officer Tunis
noticed the size of Defendant’s shoe was similar to the print found at the
scene. After taking the shoes away from Defendant, Officer Tunis
perceived a fresh shard of glass embedded in the bottom of the shoes and
lacerations in the rubber soles.
1 We view the facts in the light most favorable to sustaining the trial
court’s verdict. State v. Flores, 201 Ariz. 239, 240 ¶ 2, 33 (App. 2001).
2
STATE v. THOMAS
Decision of the Court
¶5 Rebecca Winger, crime scene specialist, photographed
damage to the door and collected small pinkish/red rubber pieces in the
broken glass around the door. Ms. Winger opined that Defendant’s shoes
had a pinkish/red colored rubber in the detail of the sole similar to the
rubber found at the crime scene. Similarly, Officer Tunis testified that the
sole of Defendant’s shoe matched the shoe print found at the scene.
¶6 The jury found Defendant guilty of burglary in the third
degree. The trial court sentenced Defendant to ten years’ imprisonment
with credit for 3912 days of presentence incarceration. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (A.R.S.) section 12-120.21.A.1 (West 2016).3 Finding no
reversible error, we affirm.
DISCUSSION
¶7 When evidence is challenged on appeal, it is viewed “in the
light most favorable to sustaining the conviction.” State v. Tison, 129 Ariz.
546, 552 (1981). All reasonable inferences are resolved against Defendant.
Id. A reversal of a conviction based on insufficiency of evidence requires a
clear showing that there was insufficient evidence to support the jury’s
conclusion under any hypothesis whatsoever. State v. Williams, 209 Ariz.
228, 231, ¶ 6 (App. 2004).
¶8 Under A.R.S. § 13-1506.A.1,“[a] person commits burglary in
the third degree by . . . [e]ntering or remaining unlawfully in or on a
nonresidential structure or in a fenced commercial or residential yard with
the intent to commit any theft or any felony therein.” Evidence of an
unauthorized entry made by force is sufficient to form the requisite intent.
State v. Malloy, 131 Ariz. 126, 130 (1981). The State presented sufficient
evidence at trial to support the jury’s verdict. Defendant’s location near the
break in, attire, the shards of glass in the sole of his shoe, remnants of red
shoe rubber at the point of entry, and the shoe print match provided
sufficient circumstantial evidence to support the jury’s verdict.
2 The record on appeal is devoid of sufficient evidence to confirm that
the court properly calculated Defendant’s presentence incarceration credit,
so we do not address it.
3 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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STATE v. THOMAS
Decision of the Court
¶9 Defendant admitted to four prior felony convictions, two of
which are historical priors as defined under A.R.S. § 13-105.D. Defendant’s
presumptive sentence was ten years with a maximum aggravated term of
fifteen years. A.R.S. 13-703.J. Defendant’s sentence was within the
permitted range. The trial court credited Defendant with 391 days of
presentence incarceration. Because the jury properly found Defendant
guilty under A.R.S. § 13-105, the sentence was legal.
CONCLUSION
¶10 We have read and considered counsel’s brief. We have
carefully searched the entire appellate record for reversible error and have
found none. See State v. Clark, 196 Ariz. 530, 541, ¶ 49 (App. 1999). All of
the proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. We find substantial evidence supported the jury’s
guilty verdict. Defendant was represented by counsel at all critical stages
of the proceedings. At sentencing, Defendant and his counsel were given
an opportunity to speak and the court imposed a legal sentence. For the
foregoing reasons, Defendant’s conviction and sentence are affirmed.
¶11 Counsel’s obligations pertaining to Defendant’s
representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582,
584 (1984). Counsel need do nothing more than inform Defendant of the
status 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. See Id. at 585. Defendant has thirty days from the date
of this decision to proceed, if he so desires, with an in propria persona
motion for reconsideration or petition for review.
¶12 For the foregoing reasons, Defendant’s conviction and
sentence is affirmed.
:ama
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