Opinion
1 CA-CR 12-0072
04-02-2013
STATE OF ARIZONA, Appellee, v. BRENT FITZGERALD DUKE, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee The Hopkins Law Office, PC By Cedric Martin Hopkins Attorneys for Appellant Brent Fitzgerald Duke Appellant in propria persona
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(Not for Publication -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
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-100810-001
The Honorable Robert L. Gottsfield, Judge (Retired)
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix The Hopkins Law Office, PC
By Cedric Martin Hopkins
Attorneys for Appellant
Tucson Brent Fitzgerald Duke
Appellant in propria persona
San Luis OROZCO, Judge ¶1 Brent Fitzgerald Duke (Appellant) appeals his convictions and the resulting sentences for burglary in the third degree, a class four felony, and trafficking in stolen property in the first degree, a class two felony. ¶2 Appellant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, he found no arguable question of law that was not frivolous. Appellant was afforded the opportunity to file a supplemental brief in propria persona, and he has done so. ¶3 Our obligation in this appeal is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). 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 (2003), 13-4031 (2010), and -4033.A.1 (2010). Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶4 On January 6, 2011, Appellant was arrested for burglary in the third degree and trafficking in stolen property. At trial, Ms. Juarez testified that on January 6, 2011, she observed Appellant crouched down in her neighbor's yard, pulling copper wire out of the ground and from the water heater. She stated that after making verbal contact with Appellant, she called the police and reported that Appellant was taking copper from her neighbor's water heater. Ms. Juarez testified that she stayed on the phone with police, watching Appellant until the police arrived. ¶5 Phoenix Police Officer M.W. (Officer M.W.) testified that on January 6, 2011, he was on patrol and received a call for a burglary in progress. He stated that when he arrived at the residence, he saw a bicycle leaning against the wall toward the back of the house. Officer M.W. testified that he walked toward the back yard of the house and saw Appellant facing away from him, bending down and holding piping that was attached to the back of the house. Officer M.W. stated that he announced "Phoenix Police" and that Appellant let go of the pipe and turned around to face him, at which point he took Appellant into custody. At this point Phoenix Police Officer B.W. (Officer B.W.) arrived at the scene. ¶6 Officer B.W. testified that when he arrived he saw Appellant with his hands cuffed behind his back and Officer M.W. taking some of Appellant's personal property and putting those items into a property bag. He also stated that he saw copper wire lying on the ground. Officer B.W. state that Officer M.W. walked across the street to talk to one of the neighbors, while he stayed with Appellant and read him his Miranda warnings. He stated that he took written notes of the conversation that he had with Appellant following the warnings. Officer B.W. testified that when he asked Appellant what he was doing at the house, he replied that he was "getting metal to scrap." He stated that Appellant conceded that he did not know the owners of the house and that he did not have permission to take the metal from the house. Appellant was arrested and charged with burglary in the third degree and trafficking in stolen property. ¶7 Appellant testified that he was on the property without permission but that he had stopped there to look at his bike that had become damaged while he was riding it. However, Officer B.W. testified that the bike was in good condition and he was able to walk it to his police vehicle. Appellant stated that there was copper already lying on the ground and that the water heater had already been damaged when he entered the yard. He also said that when Officer M.W. approached him from behind, he was bending over to fix his bike and had a cigarette in his hand, not copper wiring. Appellant also claimed that he never admitted to Officer B.W. that he was attempting to sell scrap metal, only that someone could sell that scrap metal. He did state that he talked to Officer B.W. willingly and did not feel threatened at any time. ¶8 Appellant was found guilty as charged. He was sentenced to twelve years incarceration for the burglary charge and twelve years incarceration for the trafficking charge, to be served concurrently. Appellant was given 383 days presentence incarceration credit. Appellant timely appealed.
DISCUSSION
¶9 Appellant raises numerous arguments for our review in his supplemental brief. We address the issues below.
Timing of the Complaint ¶10 Appellant makes reference to the original complaint filed against him and alleges that it may have not been issued within forty-eight hours of his arrest as required by law. ¶11 Because Appellant did not raise this issue in the trial court, we review for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (using fundamental error review when a defendant failed to object to alleged error). Arizona Rule of Criminal Procedure 4.1.b requires the State to file a complaint promptly after a person is arrested without a warrant and states that "[i]f a complaint is not filed within 48 hours from the time of [a defendant's] initial appearance before [a] magistrate, the defendant shall be released from jail." ¶12 Appellant was arrested on Thursday, January 6, 2011, and the formal complaint was filed on Monday, January 10, 2011. "In computing any period of time of more than 24 hours, . . . the day of the act or event from which the designated period of time begins to run is not to be included." Ariz. R. Crim. P. 1.3.a. Furthermore, "[t]he last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which case the period shall run until the end of the next day which is neither a Saturday, Sunday nor a legal holiday." Id.
Because Appellant was arrested on a Thursday, the complaint was not required to be filed until Monday, which it was. Therefore, we find that the complaint was timely filed.
Miranda Violation ¶13 Appellant appears to argue that there was a Miranda violation concerning the statements that he gave officers at the scene after he was in custody. ¶14 We review the trial court's ruling for a clear abuse of discretion, State v. Acinelli, 191 Ariz. 66, 69, 952 P.2d 304, 307 (App. 1997), considering only the evidence presented at the suppression hearing. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). We view this evidence in the light most favorable to sustaining the trial court's ruling. State v. Stanley, 167 Ariz. 519, 525, 809 P.2d 944, 950 (1991). However, we review de novo the court's legal conclusions. State v. Sanchez, 200 Ariz. 163, 165, ¶ 5, 24 P.3d 610, 612 (App. 2001). ¶15 Prior to trial, Appellant filed various motions seeking to suppress inculpatory statements he made to officers. After conducting a suppression hearing, the court found by a preponderance of the evidence that Appellant was properly advised of Miranda warnings before officers questioned him and his admissions were made freely and voluntarily. ¶16 The State "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda, 384 U.S. at 444. If Miranda warnings are given, then "[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible." Id. at 478. ¶17 Appellant does not provide any evidence that Officer B.W. did not first read him Miranda warnings before eliciting the alleged inculpatory statements. To the contrary, Officer B.W. testified at the suppression hearing that he read Appellant the Miranda warnings before he began asking Appellant questions. Officer B.W. also stated that Appellant said that he understood his rights and began to respond to his questions. He acknowledged that he did not threaten Appellant to answer his questions and affirmed that Appellant never asked for an attorney. ¶18 Because there is sufficient evidence to indicate Officer B.W. properly read Appellant his rights per Miranda, we find that the trial court did not err by admitting the testimony of Appellant's incriminating answers to Officer B.W.'s questions.
Sufficiency of the Evidence ¶19 Appellant argues that there was insufficient evidence to support the trafficking conviction because, at the time of his conversation with the officers, "the copper was no longer stolen or transfered [sic]." He contends that at the most he could be convicted of was attempted trafficking. ¶20 When considering the sufficiency of the evidence, "we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction." State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005). "'Substantial evidence' is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). "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. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976).
Burglary ¶21 A person commits burglary in the third degree by "[e]ntering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein." A.R.S. § 13-1506.A.1 (2010). In this case, to support the conviction of burglary in the third degree, the State must show that Appellant was unlawfully in the yard and attempting to remove copper wiring or piping from the premises. Appellant admitted to entering and remaining on the property without permission, and Officer M.W. testified that when he approached Appellant, Appellant was holding on some type of piping. ¶22 The testimony of Appellant and Officer M.W. is sufficient to support the jury's verdict of guilty on the of burglary charge. ¶23 A person is guilty of trafficking in stolen property in the first degree by knowingly initiating, organizing, planning, financing, directing, managing or supervising the theft and trafficking in the property of another that has been stolen. A.R.S. § 13-2307.B (2010). "Traffic" is defined as selling, transferring, distributing, dispensing, or otherwise disposing of stolen property to another person, or buying, receiving, possessing or obtaining control of stolen property, with the intention of selling, transferring, distributing, dispensing or otherwise disposing of the property to another person. A.R.S. § 13-2301.B.3 (2010). ¶24 Contrary to Appellant's arguments, for a conviction in trafficking, it is enough that Appellant had the intent to steal the copper and sell it, not that he actually sold the copper. Ms. Juarez testified that she saw Appellant attempting to remove copper from her neighbor's yard. Officer B.W. stated that when he asked Appellant what he was doing there, Appellant answered "getting metal to scrap." Thus, there was sufficient evidence supported the jury's verdict on the trafficking charge.
Other Arguments ¶25 Appellant makes numerous other arguments in his supplemental brief that are incomprehensible; therefore, it is difficult for this court to respond to those arguments. Opening briefs must present and address specific arguments, supported by authority and setting forth Appellant's position on the issue in question. State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). "The brief of the appellant shall concisely and clearly set forth . . . [a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." ARCAP 13(a)6. ¶26 Appellant's brief does not comply with the standards set forth in Rule 13. His arguments are neither clear nor concise nor relevant and do not allege any facts from the record that would support his legal theories. For example, in his supplemental brief, Appellant raises the issue of whether "the trial court ignored clear notice that the underlying subject matter jurisdiction of the action is under predatory lending complaints that appellees didn't control for initial Ex-part down-payment amounts, quasi jurisdictional household debt and victim(s) investing in Crummey strategy variables." In another argument, Appellant asserts "the trial court ignored clear notice that the underlying subject matter jurisdiction cant allow Ex-part to sign nondisclosure agreement baring them from opening out-of-state first class mail." Appellant's arguments are unclear as to how they relate to his convictions. ¶27 Because Appellant's remaining arguments are incomprehensible, we are unable to address them.
CONCLUSION
¶28 We have read and considered counsel's brief and have searched the entire record for reversible error but found none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. The record indicates Appellant was represented by counsel at all stages of the proceedings and that the trial court afforded Appellant all of his rights under the Constitution, Arizona statutes, and the Arizona Rules of Criminal Procedure. See Clark, 196 Ariz. at 541, ¶ 50, 2 P.3d at 100. The sentence imposed by the trial court was within the statutory limits. Id. ¶29 After the filing of this decision, counsel's obligations pertaining to Appellant's representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584, 684 P.2d 154, 156 (1984). Counsel need do no more than inform Appellant of the status of the appeal and Appellant's future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Id. at 585, 684 P.2d at 157. Defendant shall have thirty days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. ¶30 For the foregoing reasons, Appellant's convictions and sentences are affirmed.
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PATRICIA A. OROZCO, Judge
CONCURRING: _______________
MAURICE PORTLEY, Presiding Judge
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RANDALL M. HOWE, Judge
Miranda v. Arizona, 384 U.S. 436 (1966).