State v. Miller ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
HARRY JONATHAN MILLER, Appellant.
No. 1 CA-CR 15-0700
FILED 6-30-2016
Appeal from the Superior Court in Mohave County
No. S8015CR201500377
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. MILLER
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined.
J O N E S, Judge:
¶1 Harry Miller appeals his convictions and sentences for two
counts of fraudulently obtaining utility service, both class six felonies. After
searching the entire record, Miller’s defense counsel has identified no
arguable question of law that is not frivolous. 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. Miller was afforded an opportunity to file a supplemental brief in
propria persona but declined to do so. After reviewing the record, we find
no error. Accordingly, Miller’s convictions and sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 In September 2014, a Mohave County Sheriff’s officer
responded to a call reporting a fire in the backyard of Miller’s residence in
Kingman. An employee from UniSource Energy — the electric utility
provider for the area — also responded to monitor the electric lines above
the area. After being advised that the residence’s main electricity breaker
had been shut off, the UniSource employee noticed Miller’s porch light was
still on. Upon further investigation, the UniSource employee discovered
the electric lines servicing Miller’s house had been modified so as to
completely bypass the meter.
¶3 When questioned, Miller told the officer he did not have
electricity running to his house and did not know about the bypass. The
officer informed Miller he had regularly seen lights on in Miller’s house
after dark, and Miller said he used a generator for electricity.
1 “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).
2
STATE v. MILLER
Decision of the Court
¶4 Miller was subsequently charged with two counts of
fraudulently obtaining utility service in violation of Arizona Revised
Statutes (A.R.S.) section 13-3724(A)(3) and (4).2 At trial, the UniSource
employee testified Miller’s electricity was not being supplied by a generator
because the wires from his house were not connected to a generator, but
rather, were connected directly to the overhead electric lines.
¶5 At the close of the State’s evidence, Miller’s counsel made an
unsuccessful motion for judgment of acquittal pursuant to Arizona Rule of
Criminal Procedure 20(a). Miller then testified on his own behalf, stating
he had a generator providing electricity for his house, and provided
pictures of a generator and solar panels in his yard. Miller also admitted to
one prior felony conviction.
¶6 The jury found Miller guilty as charged. The trial court
sentenced Miller as a non-dangerous, non-repetitive offender to slightly
mitigated terms of imprisonment of six months for each count to run
concurrently. The court also credited Miller for thirty days of presentence
incarceration. Finally, the court ordered Miller pay restitution in the
amount of $99.38. Miller timely appealed, and we have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶7 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). A person is guilty of fraudulently obtaining utility
service if he “intentionally . . . [t]amper[s] with property that is owned or
used by a utility.” A.R.S. § 13-3724(A)(3). Within this section, “tamper”
means “to rearrange, damage, alter, interfere with or otherwise prevent the
performance of a normal or customary function,” and includes:
Connecting any wire, conduit or device to any service,
distribution or transmission line that is owned or used by a
utility[,] . . . [d]efacing, puncturing, removing, reversing or
altering any meter or any connection to secure unauthorized
or unmeasured utility service[,] . . . [or] [k]nowingly taking,
receiving, using or converting to personal use or the use of
another person any utility service without authorization or
consent.
2 Absent material changes from the relevant date, we cite a statute’s
current version.
3
STATE v. MILLER
Decision of the Court
A.R.S. § 13-3724(E)(4)(a)-(b), (d). A person is separately guilty of
fraudulently obtaining utility service if he “[u]se[s], receive[s] or otherwise
divert[s] utility services without the authorization or consent of the utility
if the customer or person knows or has reason to know of the unlawful
diversion, tampering or connection.” A.R.S. § 13-3724(A)(4). Based upon
the record before us, sufficient evidence was presented upon which a jury
could determine beyond a reasonable doubt Miller was guilty of the
charged offenses.
¶8 All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. Miller was represented by counsel
at all stages of the proceedings and was present at all critical stages except
for the morning of one day of trial, for which his presence was knowingly
and voluntarily waived. The jury was properly comprised of eight jurors,
and the record shows no evidence of jury misconduct. See A.R.S. § 21-
102(B); Ariz. R. Crim. P. 18.1(a). At sentencing, Miller was given an
opportunity to speak, and the trial court stated on the record the evidence
and materials it considered as well as the factors it found in imposing
sentences. See Ariz. R. Crim. P. 26.9, 26.10(b). Additionally, the sentences
imposed were within the statutory limits. See A.R.S. § 13-703(H).
CONCLUSION
¶9 Miller’s convictions and sentences are affirmed. Defense
counsel’s obligations pertaining to Miller’s representation in this appeal
have ended. Defense counsel need do no more than inform Miller of the
outcome of this appeal and his future options, unless, upon review, counsel
finds an issue appropriate for submission to our supreme court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶10 Miller has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Miller
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.
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