Opinion
1 CA-CR 11-0793
08-07-2012
STATE OF ARIZONA, Appellee, v. VIRGIL GEROME HARRIS, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Bruce Peterson, Maricopa County Legal Advocate By Kerri L. Chamberlin, Deputy Legal Advocate Attorneys for Appellant Virgil Gerome Harris, 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(Not for Publication - Rule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 Arizona
Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-164050-001
The Honorable Robert E. Miles, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section Attorneys for Appellee
Phoenix Bruce Peterson, Maricopa County Legal Advocate
By Kerri L. Chamberlin, Deputy Legal Advocate
Attorneys for Appellant
Phoenix Virgil Gerome Harris, Appellant
Tucson NORRIS , Judge ¶1 Virgil Gerome Harris timely appeals from his convictions and sentences for three counts of trafficking in stolen property in the second degree, class 3 felonies. After searching the record on appeal and finding no arguable question of law that was not frivolous, Harris' counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Harris to file a supplemental brief in propria persona, and Harris did so. We reject the arguments raised in Harris' supplemental brief and, after reviewing the entire record, find no fundamental error. Therefore, we affirm Harris' convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Harris. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 In November 2010, H.K., the president of a Phoenix metal distributing company, reported to police that someone had broken into the company's yard and most of its "structural and architectural aluminum" was missing. Soon after, an employee at a nearby metal recycling center reported to a Phoenix patrol officer the center was holding, as required by law, a large amount of "very unusual . . . industrial" aluminum that did not look like scrap metal. Police then contacted H.K., who visited the recycling center and identified the aluminum as the aluminum that had been stolen from her company's yard. ¶3 The recycling center employee gave police the center's records and receipts regarding the aluminum H.K. identified. These records -- which included copies of Harris' driver's license and signature -- showed he had sold the aluminum to the recycling center on three separate dates: November 27, 29, and 30, 2010. ¶4 Police located and questioned Harris, who admitted he had taken cash from the recycling center in exchange for the aluminum, but insisted he had simply turned the aluminum in for a stranger named "Nate," who had asked to use Harris' driver's license. Harris also insisted to police he had not stolen the aluminum and thought Nate had picked it up from a residential backyard, although he admitted he "didn't question too much" and thought it might have been stolen when he turned it in because "it was solid."
Harris softened his testimony at trial, saying he simply cashed recycling center "tickets" for Nate and never actually saw the aluminum Nate turned in. It was up to the jury to assess his testimony.
DISCUSSION
I. Harris' Supplemental Brief
A. Harris' State of Mind at the Time of the Offenses ¶5 Harris first seems to argue that because he underwent pretrial examinations pursuant to Arizona Rule of Criminal Procedure 11.2(a) (party may request "examination to determine whether a defendant is competent to stand trial"), this raised questions about his state of mind at the time of the offenses and the superior court should have "inform[ed] the jury" about his "mental and medical condition." We disagree. The parties agreed to accept the evaluations of two mental health professionals, who found Harris competent to stand trial but noted he should continue taking medication for depression or a mood disorder. Nothing in these reports or the record suggested Harris' depression or mood disorder affected his mental state at the time of the offenses, nor did he present any arguments or evidence at trial to that effect. Thus, there was no reason for the court to instruct the jury on his "mental and medical condition," and we see no error. See State v. Belcher, 146 Ariz. 380, 382, 706 P.2d 392, 394 (App. 1985) (citation omitted) (superior court not obligated to instruct on theory that finds no support in the evidence).
B. Jury Selection ¶6 Harris next argues the superior court deprived him of a fair trial because "[t]here were no jurors of [his] race on the jury." See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (Equal Protection Clause prohibits discrimination in jury selection on the basis of race). Harris did not, however, object to the composition of the jury at trial, and has waived this argument on appeal. State v. Garza, 216 Ariz. 56, 65, ¶ 31, 163 P.3d 1006, 1015 (2007) (defendant waives Batson challenges by failing to object at trial). ¶7 Harris also argues he did not receive a fair trial because "most of the jurors['] family background[s were] of criminal justice, military police, law enforcement, and victims of home and business burglary." Again, Harris did not object before the superior court impaneled the jury or excused the venire members and, thus, has waived any error. State v. Harris, 175 Ariz. 64, 66-67, 852 P.2d 1248, 1250-51 (App. 1993) (party waives error in jury composition by failing to object before judge impanels jury and excuses venire).
Harris also seems to argue his trial was unfair because "one of the jury [members] was sleeping" for 10 to 20 minutes during his trial. There is absolutely no evidence of this in the record. See generally State v. Prince, 226 Ariz. 516, 533, ¶ 57, 250 P.3d 1145, 1162 (2011) (quotation and citation omitted) (reversal not required "when, as here, no evidence shows that the sleeping juror missed large portions of
C. Evidence at Trial ¶8 Harris next makes various arguments regarding what he alleges are inconsistencies in the testimony of the State's witnesses. "Absent a showing that the prosecution was aware of any false testimony, the credibility of witnesses [was] for the jury to determine." State v. Rivera, 210 Ariz. 188, 194, ¶ 28, 109 P.3d 83, 89 (2005) (citation omitted). Accordingly, because substantial evidence supported the jury's verdicts, we will not disturb its decision on appeal. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) (citations omitted).
D. Lesser-Included Offense Instruction ¶9 Harris next argues the superior court improperly denied his counsel's request it instruct the jury on the "lesser-included offense" of theft. We disagree. As relevant here, theft requires the State to prove a defendant "knowingly . . . [controlled the] property of another knowing or having reason to know that the property was stolen." Ariz. Rev. Stat. ("A.R.S.") § 13-1802(A)(5) (2010) (emphasis added). Trafficking in stolen property in the second degree, however, only requires the State to prove a defendant "recklessly traffic[ked] in the property of another that [had] been stolen." A.R.S. § 13-2307 (2010) (emphasis added). Accordingly, theft requires proof of a the trial or that the portions missed were particularly critical"). higher culpable mental state than trafficking in stolen property in the second degree and is not a "lesser-included offense." See State v. Morgan, 128 Ariz. 362, 367-68, 625 P.2d 951, 956-57 (App. 1981) (threatening and intimidation requires proof of specific intent and is not, therefore, lesser-included offense of aggravated assault, which only requires proof of general intent). Thus, the superior court did not abuse its discretion in refusing to instruct the jury on theft. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006) (citation omitted) (appellate court reviews denial of requested jury instruction for abuse of discretion). II. Anders Review
Knowingly means "with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists." A.R.S. § 13-105(10)(b) (2010). In contrast, recklessly means "with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." A.R.S. § 13-105(10)(c).
A. Voluntariness of Harris' Statements to Police ¶10 At trial, Harris testified he felt scared during his interview with police and thought if he "didn't tell them what they wanted to hear," the detectives interviewing him "would probably jump [him]." The superior court did not conduct a hearing to determine whether Harris' statements to police were voluntary and admissible. See State v. Simoneau, 98 Ariz. 2, 7, 401 P.2d 404, 408 (1965) (superior court must hold hearing outside jury's presence and rule upon voluntariness when evidence presents "slight suggestion" confession not voluntary). Because Harris did not request a voluntariness hearing, however, we review only for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). ¶11 First, Harris' testimony came only after the State, in its case-in-chief, questioned the interviewing detective and played the audio recording of the interview. The detective's testimony and audio recording, on their own, did not suggest any voluntariness issue. Thus, at the time the State introduced into evidence Harris' statements to police, nothing would have alerted the superior court to the necessity of a voluntariness hearing. Indeed, Harris' own answer to a juror's question undercuts his testimony he was "scared" during his interview with police. ¶12 Assuming the court should nevertheless have held a voluntariness hearing after Harris testified he had been scared, its failure to do so was not prejudicial. Even absent Harris' statements to police, overwhelming evidence supported his convictions -- including the recycling center employee's testimony Harris had sold the 842 pounds of aluminum to the center over the course of three days and had presented his driver's license each time. Thus, the failure to hold a voluntariness hearing was not fundamental, prejudicial error in this case.
The exchange was as follows:
[Juror Question]: Mr. Harris, you told [the interviewing detective] that you understood your Miranda rights. So if you were scared to be in the room, why didn't you ask for an attorney to be present with you?
[Harris]: I wasn't too sure about what was taking place. He asked me my Miranda rights. I felt I was still free.
B. Other Matters ¶13 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Harris received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶14 The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of 12 members and the court properly instructed the jury on the elements of the charges, Harris' presumption of innocence, the State's burden of proof, and the necessity of unanimous verdicts. The superior court received and considered a presentence report, Harris spoke at sentencing, and his sentences were within the range of acceptable sentences for his offenses. A.R.S. § 13-703 (C), (J) (2010).
CONCLUSION
¶15 We decline to order briefing and affirm Harris' convictions and sentences. ¶16 After the filing of this decision, defense counsel's obligations pertaining to Harris' representation in this appeal have ended. Defense counsel need do no more than inform Harris of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). ¶17 Harris has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court's own motion, we also grant Harris 30 days from the date of this decision to file an in propria persona motion for reconsideration.
__________________
PATRICIA K. NORRIS, Judge
CONCURRING: __________________
ANN A. SCOTT TIMMER, Presiding Judge
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DONN KESSLER, Judge