Opinion
No. 1 CA-CR 14-0172
05-21-2015
STATE OF ARIZONA, Appellee, v. ZERA P. SUMMERS, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Charles R. Krull Counsel for Appellant Zera P. Summers, Jr. 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-156220-001
The Honorable William L. Brotherton, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Charles R. Krull
Counsel for Appellant
Zera P. Summers, Jr.
Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined. OROZCO, Judge:
¶1 Zera P. Summers, Jr. appeals his conviction and sentence for one count of second degree burglary, a class three felony. Summers's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), advising that after searching the entire appellate record, no arguable question of law was found. Summers was afforded the opportunity to file a supplemental brief pro per, which he has done and we have considered. Our obligation is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Finding no reversible error, we affirm Summers's conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 After leaving his apartment to do laundry, I.M. returned to find Summers "hunched over" in front of his apartment door. I.M. noticed the door was "slightly open," and he quickly went inside to see if anything was missing. I.M. called the police and started following Summers. Although he lost sight of Summers, I.M. provided a description of Summers to police. I.M. returned to his apartment and there he recalled that "it sounded like [Summers] had something heavy" in a bag Summers had with him. After checking the freezer, I.M. noticed a package of pork was missing.
¶3 Summers was pursued and apprehended by police. During the pursuit, at least one officer saw Summers take off a black backpack. A package of frozen pork was discovered in the backpack. I.M. identified the package as being the same pork that was in his freezer. I.M. also identified Summers after he was apprehended. At trial, Summers testified that he had taken the pork from his girlfriend's apartment and planned to sell it along with some bottles of liquor.
¶4 A jury convicted Summers of one count of second degree burglary. The jury also found the aggravating factor that the offense was committed "as consideration for receipt, or in the expectation of the receipt, of anything of pecuniary value." Summers admitted five prior felony convictions, and the trial court sentenced him to the presumptive term of 11.25 years' imprisonment, with 396 days of presentence incarceration credit. This timely appeal followed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031, and -4033.A.1 (West 2015).
We cite the current version of applicable statutes when no revisions material to this decision have since occurred.
DISCUSSION
¶5 Summers contends that the trial court erred in denying his motion for a directed verdict of acquittal and that the State failed to present sufficient evidence supporting his conviction. We view the evidence presented in the light most favorable to upholding the jury's verdict. State v. Schurz, 176 Ariz. 46, 52 (1993). To withstand a motion for a directed verdict of acquittal, "the [S]tate must produce enough evidence that a reasonable person could conclude the defendant is guilty beyond a reasonable doubt." Id. We will reverse the denial of a motion for a directed verdict of acquittal only "[w]here there is a complete absence of probative facts to support a conviction." State v. Mathers, 165 Ariz. 64, 66 (1990). In reviewing the sufficiency of evidence for a conviction, we determine whether substantial evidence supports the verdict, and "[w]e resolve any conflicting evidence in favor of sustaining the verdict." State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009) (internal punctuation and citations omitted). "Substantial evidence . . . is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Mathers, 165 Ariz. at 67 (internal quotations and citation omitted).
¶6 Here, the State presented sufficient evidence to withstand the motion for a directed verdict of acquittal and to sustain the jury's verdict. Under A.R.S. § 13-1507.A., "A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." Although no direct evidence linked Summers to the burglary, I.M. testified that he saw Summers just outside his unlocked apartment door, that his apartment door was slightly open and the pork recovered from the backpack Summers was seen carrying was the same pork that I.M. purchased and placed in his apartment freezer. This testimony was sufficient for the jury to infer that Summers entered I.M's apartment unlawfully and stole the pork from the apartment freezer. See State v. Tison, 129 Ariz. 546, 554 (1981) (noting that a conviction may rest solely on circumstantial evidence). And although Summers's testimony gave a different explanation for why he possessed the pork, the jury, as the fact-finder, was free to accept I.M.'s version of the events over Summers's. See State v. Harrison, 111 Ariz. 508, 509 (1975) (noting that the credibility of witnesses is a jury determination). Accordingly, because substantial evidence supports the jury's verdicts, we will not disturb it on appeal.
CONCLUSION
¶7 We have read and considered counsel's brief and Summers's supplemental brief and carefully searched the entire appellate record for reversible error and have found none. See Clark, 196 Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Appellant was represented by counsel at all critical stages of the proceedings. At sentencing, Appellant and his counsel were given an opportunity to speak, the court imposed a legal sentence, and Summers received the correct amount of presentence incarceration credit.
¶8 Counsel's obligations pertaining to Appellant's representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584 (1984). Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless Counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See id. at 585. Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.
¶9 For the foregoing reasons, we affirm Summers's conviction and sentence.