Opinion
2 CA-CR 2013-0130
10-31-2013
THE STATE OF ARIZONA, Appellee, v. JONATHAN EDWARD PYLE, Appellant.
Harriette P. Levitt Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. S1100CR201101807
Honorable Joseph R. Georgini, Judge
AFFIRMED
Harriette P. Levitt Tucson
Attorney for Appellant
HOWARD, Chief Judge.
¶1 Jonathan Pyle was convicted after a jury trial of organized retail theft and sentenced to a 3.5-year prison term. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), asserting she has reviewed the record but found no arguable issue to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, 2 P.3d at 97, she has provided "a detailed factual and procedural history of the case with citations to the record" and asks this court to search the record for error. Pyle has filed a supplemental brief claiming there was insufficient evidence to support his conviction and he instead is guilty only of misdemeanor shoplifting. He also asserts that a store security employee was required to advise him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), but failed to do so, and that the state improperly "overcharged" him.
¶2 Despite Pyle's argument to the contrary, the evidence clearly supported the jury's finding of guilt. See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999) (evidence viewed in light most favorable to sustaining verdicts). Pyle entered a retail store with a backpack and placed several packages of energy drinks into the backpack before proceeding past the cash registers toward the store exit; when confronted, he admitted to a store security employee that he had stolen the energy drinks and intended to resell them. See A.R.S. § 13-1819(A)(1).
¶3 Pyle is incorrect that the state was required to prove he had previous shoplifting convictions to sustain a conviction for organized retail theft. He apparently relies on A.R.S. § 13-1805(I), which renders shoplifting a class four felony?like organized retail theft?when a person "commits shoplifting and who has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, organized retail theft or theft." But Pyle was charged and convicted pursuant to subsection one of the organized retail theft statute?§ 13-1819. Thus, the state was required to prove only that he had "[r]emove[d] merchandise from a retail establishment without paying the purchase price with the intent to resell or trade the merchandise for money or for other value." § 13-1819(A)(1).
¶4 Nor does the lack of a video recording or other physical evidence render the evidence insufficient. "Physical evidence is not required to sustain a conviction where the totality of the circumstances demonstrates guilt beyond a reasonable doubt." State v. Cañez, 202 Ariz. 133, ¶ 42, 42 P.3d 564, 580 (2002). And the evidence supporting a guilty verdict can be either direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App. 2005). Despite Pyle's claim that the testimony of the employee was untrue, it was the jury's role to evaluate the credibility of witnesses. See State v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App. 2004). Whatever inconsistencies in the evidence Pyle believes may exist were for the jury to resolve. See id.
There apparently was a video recording that was lost and thus not presented to the jury, although it was referred to in testimony. The trial court instructed the jury pursuant to State v. Willits, 96 Ariz. 184, 393 P.3d 274 (1964).
¶5 Pyle is incorrect that the store employee was required to advise him of his rights pursuant to Miranda. We rejected a similar claim in Woods v. City Court, 128 Ariz. 477, 626 P.2d 1109 (App. 1981). Absent "wilful participation . . . in joint activity with the state," "private security guards need not give Miranda warnings before questioning detained suspects." Id. at 478, 626 P.2d at 1110. Like in Woods, there is no suggestion of joint activity?Pyle made his admissions before law enforcement personnel arrived.
¶6 Finally, we reject Pyle's argument that the state "overcharged" him. "It is within the sound discretion of the prosecutor to determine whether to file criminal charges and which charges to file." See State v. Tsosie, 171 Ariz. 683, 685, 832 P.2d 700, 702 (App. 1992). A claim of prosecutorial vindictiveness exists only where a prosecutor's charging decisions are in retaliation "for invoking legally protected rights." Id. There is nothing in the record supporting such a claim.
¶7 Pyle's sentence did not exceed the legal statutory limit and was imposed properly. A.R.S. §§ 13-105(22); 13-703(B), (I); 13-1819(B). Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (Anders requires court to search record for fundamental error). And we have rejected the arguments raised in Pyle's supplemental brief.
¶8 For the reasons stated, Pyle's conviction and sentence are affirmed.
______________________
JOSEPH W. HOWARD, Chief Judge
CONCURRING: ______________________
GARYE L. VÁSQUEZ, Presiding Judge
______________________
J. WILLIAM BRAMMER, JR., Judge*
*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Administrative Order No. 2012-101 filed December 12, 2012.