Opinion
No. 1 CA-CR 15-0240
02-25-2016
STATE OF ARIZONA, Appellee, v. JAVON CHRISTOPHER GERMANY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee The Heath Law Firm, PLLC, Mesa By Mark Heath Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-137842-001 DT
The Honorable John R. Ditsworth, Judge
The Honorable Virginia L. Richter, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee The Heath Law Firm, PLLC, Mesa
By Mark Heath
Counsel for Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined. THUMMA, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Javon Christopher Germany has advised the court that, after searching the entire record, he has found no arguable question of law and asks this court to conduct an Anders review of the record. Germany was given the opportunity to file a supplemental brief pro se, but has not done so. This court has reviewed the record and has found no reversible error. Accordingly, Germany's convictions and resulting sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
¶2 At about one o'clock one morning in July 2012, T.R. dropped off her fiancé, T.L., at their Phoenix home and went to pick up their two small children. T.L. walked into his dark home and was confronted with a man pointing a gun at him, telling him to be silent, and threatening him. Two men, Germany and his co-defendant, Hearn, brought T.L. upstairs and bound his ankles and wrists with duct tape. The two men took about $2,300 in cash from T.L.
Initials are used to protect the victims' privacy. State v. Maldonado, 206 Ariz. 339, 341 n.1 ¶ 2 (App. 2003).
¶3 Soon after, T.R. returned to the home with their two children. A man held a gun to her head, telling her to be quiet and go upstairs. When one of the children began to cry after seeing T.L. bound, T.R. brought both children into a bedroom, one of the men got the children milk and the children eventually fell asleep. At one point in the six-hour encounter, Germany and Hearn wrapped T.L.'s face in saran wrap, eventually poked a whole in it for him to breathe and gave T.L. medication he needed.
¶4 Germany and Hearn told T.L. that he needed to get them a large amount of illegal drugs and threatened to kill his family if he did not do so. Hearn and T.L. then left the home and began to drive away. Because a tire was flat, T.L. stopped at a tire shop and whispered to the attendant that he and his family were being kidnapped and to call the police. The attendant called the police and reported the license plate number of the vehicle T.L. was driving.
¶5 A police officer went to T.L. and T.R.'s home. Germany told T.R. to answer the door and tell the officer everything was alright. T.R. told the officer that everything was alright, but mouthed that a man was in the home. After more officers arrived, Germany and T.R. went outside and the police arrested Germany. After his arrest, police found $2,380 in Hearn's sock.
¶6 The State indicted Germany with one count of burglary in the first degree, a Class 2 felony and a dangerous offense; two counts of kidnapping, a Class 2 felony and a dangerous offense; two counts of kidnapping, a Class 2 felony, a dangerous offense and a dangerous crime against children, and two counts of attempted armed robbery, a Class 3 felony and a dangerous offense. The State alleged seven aggravating circumstances.
¶7 After several continuances, Germany and Hearn were tried together in a trial lasting 6 days, beginning in March 2014. The State called as witnesses T.R., T.L., the tire-shop attendant, a sheriff's posse member and five police officers. After instructions and argument, the jury deliberated and found Germany guilty as charged. At an aggravation hearing, T.R. provided further testimony and Germany elected to testify. After further instruction and deliberation, the jury found all aggravators proven on all counts, except for the kidnapping counts with the children as victims. For those, the jury found at least three aggravators for each count, but were not unanimous as to whether the State proved they were dangerous crimes against children.
¶8 After substantial motion practice, and attempts at appellate review on the dangerous crimes against children allegations, the State re-tried Germany on those allegations. The jury unanimously found the State did not prove the kidnapping charges were dangerous crimes against children. After reviewing the presentence report and hearing from counsel and Germany, the superior court sentenced him to aggravated sentences of imprisonment for 21 years for the burglary and kidnapping convictions and 15 years for each of the attempted armed robbery convictions, to be served concurrently, with 993 days presentence incarceration credit.
Although the record suggests that the proper presentence incarceration credit may have been less than 993 days, there is no challenge on appeal that the credit he was given was excessive.
¶9 Germany timely appealed from his convictions and resulting sentences. This court has jurisdiction pursuant to Arizona Revised Statues (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033 (2016).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------
DISCUSSION
¶10 This court has reviewed and considered counsel's brief and has searched the entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999). Searching the record and briefs reveals no reversible error. The record shows Germany was represented by counsel at all relevant stages of the proceedings. The evidence admitted at trial constitutes substantial evidence supporting Germany's convictions. From the record, all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The sentences imposed were within the statutory limits and permissible ranges.
¶11 One issue at trial merits discussion. During the investigation, after police informed him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Germany made admissions to a detective. The State therefore requested a jury instruction on the voluntariness of defendant's statements, and after Germany agreed, the superior court gave a preliminary jury instruction addressing the issue. The court, however, did not give the same instruction during final instructions. Germany made no objection and never requested the instruction. See State v. Porter, 122 Ariz. 453 (1979) (holding it is reversible error to omit an instruction on voluntariness if "the defendant specifically requested" it). Nor did Germany cross-examine the detective on the issue or argue his statements were involuntary during closing arguments. Accordingly, the omission of the instruction from the final jury instructions is not fundamental error resulting in prejudice. See State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013); Ariz. R. Crim. P. 21.3(c).
CONCLUSION
¶12 This court has read and considered counsel's brief and has searched the record provided for reversible error and has found none. Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537 ¶ 30. Accordingly, Germany's convictions and resulting sentences are affirmed.
¶13 Upon filing of this decision, defense counsel is directed to inform Germany of the status of his appeal and of his future options. Defense counsel has no further obligations unless, upon review, counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Germany shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.