State v. Thompson ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JUSTIN WAYNE THOMPSON,
Appellant.
No. 1 CA-CR 21-0409
FILED 7-28-2022
Appeal from the Superior Court in Mohave County
No. S8015CR202001408
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
STATE v. THOMPSON
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.
M O R S E, Judge:
¶1 Justin Wayne Thompson appeals his conviction and sentence
for criminal trespass in the first degree, a class 6 felony. After searching the
entire record, Thompson's defense counsel identified no non-frivolous
arguable questions of law. Therefore, in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense
counsel asks this Court to search the record for fundamental error.
Thompson was given an opportunity to file a supplemental brief in propria
persona but has not done so. Finding no reversible error, we affirm
Thompson's conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On December 14, 2020, a Mohave County Sheriff's Office
deputy saw Thompson crawling out of the window of a home in the Dolan
Springs area of Mohave County. The deputy spoke with Thompson, who
denied burglarizing the home. Thompson claimed he was looking for
someplace to sleep and heard that his nephew had burglarized the home.
After arresting Thompson, the deputy saw that the window was broken
and that shattered glass was inside the home. The homeowner stated that
the house was a vacation home and he did not know Thompson or give him
permission to be in the home.
¶3 Thompson was indicted on December 23, 2020, for one count
of criminal trespass in the first degree, a class 6 felony, under A.R.S. § 13-
1504.
¶4 On July 23, 2021, Thompson's counsel filed a motion to
suppress Thompson's statements. The superior court heard argument and
determined that the motion was untimely. In denying the motion, the
1 "We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant."
State v. Valencia, 186 Ariz. 493, 495 (App. 1996).
2
STATE v. THOMPSON
Decision of the Court
superior court relied on Ariz. R. Crim. P. 16.1(b) and noted that the
challenged statements had been disclosed to defense for "quite a long time
. . . ."
¶5 The superior court conducted a jury trial on August 3, 2021,
during which the deputy and homeowner testified. The State also
introduced video and audio recordings taken from the deputy's body
camera and a transcript of Thompson's statements. The video recording
showed the defendant crawling out of the home. The superior court denied
Thompson's motion under Ariz. R. Crim. P. 20 and the jury convicted
Thompson as charged.
¶6 After a hearing on August 31, 2021, the superior court found
that the State had proved Thompson's prior felony convictions and that
Thompson was a category three repetitive offender. On September 3, 2021,
the superior court sentenced Thompson to a slightly aggravated term of 4
years in the Department of Corrections. Thompson timely appealed and
we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A)(1).
DISCUSSION
¶7 Our review of the record reveals no fundamental error. See
Leon, 104 Ariz. at 300. The superior court complied with the Arizona Rules
of Criminal Procedure and the record reveals that Thompson was
represented by counsel and present (or his presence was properly waived)
at all stages of the proceedings. Ariz. R. Crim. P. 19.2. The superior court
had discretion to deny Thompson's suppression motion as untimely. See
Ariz. R. Crim. P. 16.1; State v. Alvarado, 121 Ariz. 485, 487-88 (1979)
(affirming 20-day pretrial deadline to file voluntariness motions and noting
that "[i]n light of [Supreme Court precedent], we conclude that although it
is the defendant who must move for a voluntariness hearing, it is not
mandated that he be allowed to so move at all stages of the proceedings");
see also State v. Bush, 244 Ariz. 575, 590, ¶ 61 (2018) (disavowing statements
in other cases "inconsistent" with Alvarado).
¶8 At trial, the State presented sufficient evidence from which
the jury could determine, beyond a reasonable doubt, that Thompson is
guilty of the charged offense. See State v. West, 226 Ariz. 559, 562, ¶ 16
(2011). The jury was comprised of eight members. See A.R.S. § 21-102(B).
The superior court properly instructed the jury on the presumption of
innocence, the burden of proof, and the elements of the charged offense.
The court received a presentence report. Ariz. R. Crim. P. 26.4. At
3
STATE v. THOMPSON
Decision of the Court
sentencing, Thompson was given an opportunity to speak, and the court
stated on the record the evidence and factors it considered in imposing the
sentences. See Ariz. R. Crim. P. 26.9, 26.10. The superior court imposed
sentences within the statutory limits. See A.R.S. §§ 13-701, -703.
CONCLUSION
¶9 For the foregoing reasons, we affirm Thompson's conviction
and sentence. Upon receiving this decision, defense counsel shall inform
Thompson of the status of the appeal and of his future options. Counsel
has no further obligations 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). Thompson shall
have thirty days from the date of this decision to proceed, if he desires, with
a pro per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: JT
4