Opinion
No. 1 CA-CR 13-0102
02-27-2014
STATE OF ARIZONA, Appellee, v. MIKHAEL NICHOLAS BROWN, Appellant.
Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-006867-001
The Honorable Brian Kaiser, Judge Pro Tempore
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Paul J. Prato
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined. KESSLER, Judge:
¶1 Appellant Mikhael Brown ("Brown") was convicted of taking the identity of another and forgery, both class 4 felonies. The superior court sentenced him to concurrent terms of four-and-one-half years' imprisonment. Counsel for Brown filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to raise, counsel requested that this Court search the record for fundamental error. Brown was given the opportunity to but did not file a pro per supplemental brief. Upon examination of the record, we requested simultaneous supplemental briefs pursuant to Penson v. Ohio, 488 U.S. 75 (1988), addressing the empanelment of a potentially partial juror. For the reasons that follow, after reviewing the record and the parties' supplemental briefs, we affirm Brown's convictions and sentences as modified.
FACTUAL AND PROCEDURAL HISTORY
¶2 R.B. contacted the Arizona Department of Transportation ("ADOT") in October 2011 to inquire about a ticket that was in his name. ADOT informed R.B. that, in addition to the ticket, he also had an Arizona driver's license in his name. R.B., however, had never resided in Arizona.
¶3 Detective C.O. began investigating the matter. He found that the photographs on licenses issued in the names of Brown and R.B. depicted the same man. Although the licenses depicted the same man and similar handwriting and signatures, the applications corresponding to each license contained different dates of birth and social security numbers and had been submitted at different times, one in 2008 and one in 2010. Based on his review of the 2008 and 2010 license application documents, Detective C.O. concluded that Brown completed both applications, using his own identity in 2008 and R.B.'s identity in 2010.
Detective C.O. works for the Office of the Inspector General within ADOT.
¶4 Detective C.O. eventually located Brown at the Maricopa County jail, where Brown had been booked under R.B.'s name and date of birth. When first approached by Detective C.O., Brown identified himself as R.B., but later admitted that he was Brown.
¶5 Brown was charged with taking the identity of another and forgery. He pled not guilty to the charges. An eight-person jury convicted Brown of both charges. As a result, the superior court revoked Brown's probation in a previous matter and sentenced him to a presumptive term of two and one half years, to be served consecutive to his sentences resulting from the current case. He was awarded 549 days of presentence incarceration credit toward his sentence in the previous case. As for the current case, the superior court sentenced Brown to presumptive terms of four-and-one-half years' imprisonment for each count, as required by Arizona Revised Statutes ("A.R.S.") section 13-708(C) (Supp. 2013), to be served concurrently. The superior court awarded Brown 279 days of presentence incarceration credit to apply to these sentences.
We cite the current versions of statutes when no revisions material to this decision have since occurred.
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¶6 Brown timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A) (2010).
STANDARD OF REVIEW
¶7 In an Anders appeal, we review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to his defense, or is an "error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (internal quotation marks and citation omitted). We will only reverse if the defendant can also show he was prejudiced by the error. Id. at ¶ 20.
DISCUSSION
¶8 After careful review of the record, we find no meritorious grounds for reversal of Brown's convictions, but we do find grounds to modify his sentences by giving him one more day of presentence incarceration credit. The record reflects that Brown had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Brown was represented by counsel at all stages of trial, was given the opportunity to speak at sentencing, and the sentences imposed were within the range for Brown's offenses.
I. Voir Dire
¶9 Arizona Rule of Criminal Procedure 18.4(b) governs challenges for cause during jury selection and provides:
When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict, the court, on its own initiative, or on motion of any party, shall excuse the juror from service in the case. A challenge for cause may be made at any time, but may be denied for failure of the party making it to exercise due diligence.(Emphases added.) "A prospective juror should be struck for cause when a juror's answers demonstrate that he has serious misgivings about his ability to be a fair and impartial juror." State v. Smith, 182 Ariz. 113, 115, 893 P.2d 764, 766 (App. 1995) (emphasis added) (internal quotation marks and citation omitted). Here, in response to a question by the superior court about whether any prospective jurors or a close family member had been involved in a case similar to the one at issue, Juror 17 explained that his deceased mother's social security number was stolen and used fraudulently. When the court asked if that experience would make it difficult for Juror 17 to be fair and impartial, he responded "[t]o a certain degree, yes." Neither the State, defense counsel, nor the court inquired further. Later, when the court asked if any prospective juror or close family member or friend had ever been arrested, charged, or convicted of a crime, Juror 17 explained that a good friend of his had been convicted of transporting undocumented persons in Texas. The court asked if that experience would make it difficult to be fair and impartial in this case, and Juror 17 responded "[t]o a certain extent, yes." Again, neither the court nor the parties inquired further. Nevertheless, Juror 17 was later empanelled.
¶10 Consequently, we requested the parties file simultaneous supplemental briefs addressing whether, notwithstanding the duties of counsel, the failure of the superior court to (1) sua sponte conduct further inquiry into whether and to what extent Juror 17 could be fair and impartial, and (2) in the absence of further inquiry, to sua sponte strike Juror 17 for cause constitutes fundamental error. Brown argues that the empanelment of Juror 17, despite his doubts about being fair and impartial, constitutes structural error. The State, meanwhile, contends that the record does not demonstrate cause to strike the juror, and that in any event the empanelment of Juror 17 was not prejudicial because Brown failed to conduct further inquiry or to take curative measures by striking the juror peremptorily. After reviewing the supplemental briefs, we find no error.
¶11 We disagree with Brown that the empanelment of Juror 17 constitutes structural error. "Absent a challenge for cause we will not consider upon appeal the failure of the erior court, on its own motion, to dismiss a juror for cause unless it is such an abuse of discretion as to constitute fundamental error." State v. Clayton, 109 Ariz. 587, 592, 514 P.2d 720, 725 (1973) (emphasis added). Further, "excusing jurors is committed to the sound discretion of the trial court and, absent clear and prejudicial abuse of that discretion, its determination will not be disturbed on appeal." State v. Milke, 177 Ariz. 118, 122, 865 P.2d 779, 783 (1993); see also State v. Ring, 204 Ariz. 534, 552-53, ¶¶ 45-46, 65 P.3d 915, 933-34 (2003) (listing the "few instances" a court should regard as structural error).
¶12 On this record, we cannot say that the superior court abused its discretion by not striking Juror 17 for cause. "[U]nless the record affirmatively shows that [the] defendant was not tried by a fair and impartial jury, then there is no error." State v. Thomas, 133 Ariz. 533, 537, 652 P.2d 1380, 1384 (1982). Although Juror 17 indicated that "to a certain degree" or "to a certain extent" his experiences might make it difficult to be fair and impartial, such equivocation does not rise to the level of a serious misgiving. See Smith, 182 Ariz. at 115, 893 P.2d at 766 (noting that juror's equivocation as it appears in the transcript is susceptible to different interpretations, and superior court is in better position to determine juror's true meaning from his demeanor and intonation). Further, Juror 17's demeanor, tone, and other characteristics might have persuaded the superior court that he could be fair and impartial. The superior court is in the best position "to assess whether prospective jurors should be allowed to sit," State v. Blackman, 201 Ariz. 527, 533, ¶ 13, 38 P.3d 1192, 1198 (App. 2002), because "[o]nly the trial judge has the opportunity to observe the juror's demeanor and the tenor of his or her answers first hand," State v. Cook, 170 Ariz. 40, 54, 821 P.2d 731, 745 (1991). Accordingly, we find no error.
II. Sufficiency of the Evidence
¶13 There is sufficient evidence in the record to support Brown's convictions. In reviewing the sufficiency of the evidence at trial, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)).
¶14 A defendant takes the identity of another if he: (1) "knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information . . . of another person," (2) "without the consent of that other person," (3) "with the intent to obtain or use the other person's . . . identity for any unlawful purpose or to cause loss to a person . . . whether or not the person . . . actually suffers any economic loss as a result of the offense, or with the intent to obtain or continue employment." A.R.S. § 13-2008(A) (2010).
¶15 Here, Detective C.O. testified regarding two separate driver's license applications, one from 2008 bearing Brown's name, date of birth, and social security number, and one from 2010 bearing R.B.'s name, date of birth, and social security number. R.B. testified he did not fill out the driver's license application with his name, date of birth, and social security number. Although the license applications contained different personal identifying information, the individual depicted on each of the licenses issued was the same and identified as Brown. Further, R.B. testified that Brown had asked for permission to use R.B.'s identity on several occasions, but that R.B. never gave Brown permission to do so.
¶16 Given this testimony, the jury reasonably could conclude that Brown knowingly took or used R.B.'s personal identifying information without R.B.'s consent. Further, the jury reasonably could conclude that Brown acted with the intent to obtain or use R.B.'s identity for an unlawful purpose or to cause loss to R.B. because Brown used R.B.'s personal identifying information for traffic tickets, to be booked into jail, and to deal with law enforcement officers such as Detective C.O.
¶17 A defendant commits forgery if, with the intent to defraud, he: (1) "[f]alsely makes, completes or alters a written instrument," or (2) "[k]nowingly possesses a forged instrument," or (3) "[o]ffers or presents, whether accepted or not, a forged instrument or one that contains false information." A.R.S. § 13-2002(A) (Supp. 2013). Given the previously mentioned testimony of Detective C.O and R.B., the jury reasonably could conclude that Brown, with intent to defraud, falsely made, completed or altered a driver's license application, or knowingly possessed a forged driver's license, or presented a forged driver's license to law enforcement upon being booked at the Maricopa County jail.
¶18 Accordingly, we conclude that there is sufficient evidence to support both of Brown's convictions.
III. Presentence Incarceration Credit
¶19 Presentence incarceration credit is given for time spent in custody beginning on the day of booking, State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993), and ending on the day before sentencing, State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987). Between his previous and current cases, Brown was in custody from May 15, 2009 to August 1, 2009, from June 9, 2010 to June 13, 2010, from October 15, 2010 to July 23, 2011, and from November 2, 2011 to February 7, 2013, the day of his sentencing. The superior court applied 549 days of presentence incarceration credit to the sentence in the previous case. The superior court then applied 279 days of presentence incarceration credit to Brown's sentence in the current case. Thus, although Brown's total time incarcerated prior to sentencing, not including the day of sentencing, was 829 days, he only received a credit of 828 days. We, therefore, modify Brown's sentence in the current case to reflect an additional day for a total of 280 days of presentence incarceration credit.
CONCLUSION
¶20 For the foregoing reasons, we affirm Brown's convictions but modify his sentences. Upon the filing of this decision, counsel shall inform Brown of the status of the appeal and his options. Defense 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, 684 P.2d 154, 156-57 (1984). Brown has thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.