State v. Gilder ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANDRE ARMONE GILDER, Appellant.
No. 1 CA-CR 20-0157
FILED 12-10-2020
Appeal from the Superior Court in Maricopa County
No. CR2019-122413-001
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Peg Green
Counsel for Appellant
STATE v. GILDER
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
G A S S, Judge:
¶1 Andre Armone Gilder filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969). Gilder’s counsel searched the record and identified no arguable,
non-frivolous question of law. Counsel, therefore, asks this court to review
the record for fundamental error. Gilder was given an opportunity to file a
supplemental brief in propria persona. He has not done so. Finding no error
in the record, we affirm Gilder’s convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to
sustaining the jury’s verdict and resolves all reasonable inferences against
Gilder. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 In May 2019, Gilder was a live-in caretaker for his mother and
father. One evening, he left the house to buy cigarettes and look for a friend
who occasionally worked as a prostitute. Gilder met T.C. while searching
for his friend. Gilder testified T.C. agreed to perform oral sex on him, so he
drove to an apartment complex and parked his vehicle. According to T.C.,
she got into Gilder’s vehicle after he agreed to give her a ride. T.C. said she
could not recall “what act was discussed,” but denied ever “perform[ing] a
sexual act on” Gilder.
¶4 While in the parking lot, Gilder pulled out a handgun. He
pointed the gun at T.C.’s head and told her to strip. As T.C. was undressing,
Gilder began looking through her bag. They were interrupted by the
headlights of another vehicle driving through the parking lot. T.C. opened
the vehicle door and ran toward the second vehicle screaming for help. A
man from the second vehicle gave T.C. his phone to call 9-1-1. Police arrived
approximately 22 minutes later and interviewed T.C. Based on this
interview, police identified Gilder as a suspect.
¶5 Police obtained a warrant and searched Gilder’s home.
During the search, police found T.C.’s identification and EBT cards, and her
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STATE v. GILDER
Decision of the Court
cell phone. Police also found a handgun matching the description T.C. gave.
Police arrested Gilder and the State brought four charges: armed robbery, a
class 2 dangerous felony; aggravated assault, a class 3 dangerous felony;
kidnapping, a class 2 dangerous felony; and misconduct involving
weapons, a class 4 felony. The State also alleged five aggravators:
threatened infliction of serious physical injury; threatened use of a deadly
weapon; committing the offence for pecuniary gain; causing physical,
emotional, or financial harm to the victim; and prior felony convictions.
¶6 Gilder successfully moved to sever the weapons charge. In
December 2019, after a four-day trial, the jury found Gilder not guilty. Trial
then began on Gilder’s remaining three charges. On the third day of trial,
during the State’s direct examination, T.C. unexpectedly said Gilder
admitted to killing a woman. Gilder immediately objected and moved for a
mistrial. The superior court declared a mistrial and, following a break for
the holidays, empaneled a new jury.
¶7 Following a seven-day trial, the new jury acquitted Gilder of
kidnapping but found him guilty of armed robbery and aggravated assault.
The jury also found the State proved the following aggravators: threatened
infliction of serious physical injury; threatened use of a deadly weapon; and
prior felony convictions. The superior court sentenced Gilder to slightly
aggravated terms of 16 years imprisonment for the armed robbery and 12
years imprisonment for the aggravated assault, to be served concurrently,
with presentence incarceration credit of 293 days.
¶8 Gilder timely appealed. This court has jurisdiction under
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031, and
-4033.A.1.
ANALYSIS
¶9 This court has read and considered counsel’s brief and fully
reviewed the record for reversible error, finding none. See Leon, 104 Ariz. at
300; State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
¶10 All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. The record shows Gilder was present
for, and represented by counsel at, all critical stages of the proceedings. See
State v. Bohn, 116 Ariz. 500, 503 (1977); State v. Conner, 163 Ariz. 97, 104
(1990). The jury was properly comprised of twelve jurors and two
alternates. See A.R.S. § 21-102.A. The record shows no evidence of jury
misconduct. The superior court properly instructed the jury on the elements
of the charged offenses, the State’s burden of proof, and Gilder’s presumed
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STATE v. GILDER
Decision of the Court
innocence. Additionally, Gilder was given an opportunity to speak at
sentencing, and the sentences imposed are within statutory guidelines. See
Ariz. R. Crim. P. 26.9, 26.10(b)(1); A.R.S. § 13-703.J.
CONCLUSION
¶11 Gilder’s convictions and sentences are affirmed.
¶12 Defense counsel’s obligations pertaining to Gilder’s
representation in this appeal have ended. Defense counsel need do no more
than inform Gilder 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. See State v. Shattuck, 140 Ariz. 582,
584–85 (1984).
¶13 Gilder has thirty days from the date of this decision to
proceed, if he wishes, with an in propia persona petition for review. See Ariz.
R. Crim. P. 31.21. This court, on its own motion, also grants Gilder thirty
days from the date of this decision to file an in propia persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.
AMY M. WOOD • Clerk of the Court
FILED: AA
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