Opinion
1 CA-CR 12-0095
02-14-2013
STATE OF ARIZONA, Appellee, v. DARREN VERNELL JACKSON, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Thomas K. Baird, Deputy Public Defender Attorneys for Appellant Darren Vernell Jackson, 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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. CR 2011-114059-001
The Honorable Barbara L. Spencer, Commissioner
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Thomas K. Baird, Deputy Public Defender
Attorneys for Appellant
Darren Vernell Jackson, Appellant
Phoenix
NORRIS, Judge ¶1 Darrell Vernell Jackson timely appeals from his conviction and sentence for resisting arrest, a class six felony. Ariz. Rev. Stat. ("A.R.S.") § 13-2508 (2012). After searching the record on appeal and finding no arguable question of law that was not frivolous, Jackson's 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 Jackson to file a supplemental brief in propria persona, and Jackson did so. We reject Jackson's arguments and, after reviewing the entire record, find no fundamental error. Therefore, we affirm Jackson's conviction and sentence.
Although the Arizona Legislature amended the resisting arrest statute after the date of Jackson's offense, the change is immaterial. Thus, we cite to the current version of the statute.
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 Jackson. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
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¶2 On March 19, 2011, Jackson was asleep inside a light rail car. A light rail officer approached Jackson to tell him he needed to leave the train so it could be taken to the end of the track for staging. Jackson refused. The light rail officer reported the situation to the light rail operation center, and the center contacted the Mesa police department. ¶3 A police officer ("first officer") arrived and tried speaking to Jackson, but he was unresponsive, so the first officer "shook" him awake. Once Jackson woke up, the first officer identified himself as a police officer, and told Jackson to leave or he would be arrested for trespassing. The first officer repeatedly instructed Jackson to leave the train, but Jackson seemed incoherent and remained seated. ¶4 The first officer tried to help Jackson stand up by lifting him up by his left arm. In response, Jackson used profanity and grabbed the handrail to prevent the officer from removing him from the train car. A second police officer ("second officer") arrived to assist and pried Jackson's hands from the handrail. The two officers led Jackson outside the car and onto the platform. ¶5 Once outside, Jackson broke free and took an "aggressive posture" towards the second officer. Jackson clenched his fists, tensed his body, and "puffed out" his chest. The first officer took Jackson to the ground and attempted to handcuff him, but Jackson struggled, reached up towards the first officer's face and neck, and violently jerked his bulletproof vest. The first officer hit Jackson in the face to force compliance, and eventually the officers were able to handcuff Jackson. ¶6 After the jury convicted Jackson of resisting arrest, the superior court held a "priors trial." The court found Jackson had two prior historical felony convictions for purposes of sentence enhancement, and sentenced him to the presumptive jail term of 3.75 years with 48 days of presentence incarceration credit. A.R.S. § 13-703(C), (J) (Supp. 2012).
DISCUSSION
I. Jackson's Supplemental Brief
¶7 First, Jackson argues the direct complaint was not timely filed. We disagree. Jackson committed the offense on March 19, 2011 and the State filed the direct complaint on March 22, 2011. Therefore, the complaint was timely. ¶8 Second, Jackson argues the superior court should not have denied his request for a Willits instruction, asserting the State failed to interview witnesses and preserve unbiased, potentially exculpatory evidence -- a video from inside the light rail car. A Willits instruction is appropriate when "police negligently fail to preserve potentially exculpatory evidence." State v. Fulimante, 193 Ariz. 485, 503, ¶ 62, 975 P.2d 75, 93 (1999). As the superior court found, nonretention of evidence does not automatically entitle a defendant to a Willits instruction. Jackson needed to show, first, the State failed to preserve material evidence that was accessible and might tend to exonerate him, and second, its failure to do so prejudiced him. See id. Because Jackson failed to show the evidence might tend to exonerate him, he was not entitled to a Willits instruction. ¶9 Third, Jackson argues the first officer's response to a juror question -- essentially asking when was Jackson placed under arrest -- "clearly exonerated" him. We disagree. The juror question was actually, "did you identify yourself before trying to assist the defendant up?" The first officer responded "[n]o." The State followed-up on the juror question, and the first officer explained he had identified himself as a police officer when Jackson "gained consciousness." Further, the first officer testified that when he was in the light rail car with Jackson, he told Jackson he would be arrested if he did not leave the train. ¶10 Fourth, Jackson argues there were "many discrepancies" in the witnesses' testimony. On the record before us, we disagree. Further, it was for the jury, as the finder of fact, to weigh the evidence and determine the credibility of witnesses. State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009). ¶11 Finally, Jackson argues he could not be guilty of resisting arrest because he was never told he was under arrest. As discussed above, the first officer told Jackson he would be arrested if he did not leave the train. When Jackson did not do so, the officers removed him and attempted to arrest him. Because the State presented ample evidence the police officers had informed Jackson he would be arrested if he failed to follow their instructions, we reject Jackson's argument.
II. Anders Review
¶12 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Jackson received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶13 The evidence presented at trial was substantial and supports the verdict. The jury was properly comprised of eight members and the court properly instructed the jury on the elements of the charges, Jackson's presumption of innocence, the State's burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Jackson was given an opportunity to speak at sentencing, and did speak, and his sentence was within the range of acceptable sentences for his offenses.
CONCLUSION
¶14 We decline to order briefing and affirm Jackson's conviction and sentence. ¶15 After the filing of this decision, defense counsel's obligations pertaining to Jackson's representation in this appeal have ended. Defense counsel need do no more than inform Jackson 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). ¶16 Jackson 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 Jackson 30 days from the date of this decision to file an in propria persona motion for reconsideration.
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PATRICIA K. NORRIS, Presiding Judge
CONCURRING: __________________________
DIANE M. JOHNSEN, Judge
_______________________
JON W. THOMPSON, Judge