Opinion
No. 1 CA-CR 15-0468
10-04-2016
STATE OF ARIZONA, Appellee, v. MICHAEL RYAN JACKSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Cima Law Group, Phoenix By Victoria E. Washington, Ayensa I. Millan Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-158041-002
The Honorable Richard L. Nothwehr, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Cima Law Group, Phoenix
By Victoria E. Washington, Ayensa I. Millan
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
CATTANI, Judge:
¶1 Michael Ryan Jackson appeals his convictions and sentences for fraudulent schemes and artifices, forgery, and taking the identity of another. Jackson's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, she found no arguable question of law that was not frivolous. Jackson was given the opportunity to file a supplemental brief, but did not do so. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we affirm Jackson's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 In late 2012, Jackson and his co-defendant, Edward Bermel, made several visits to a bank, attempting to access an account purportedly held by Jackson's sister ("Sister"). Jackson and Bermel had old bank statements and a signed form granting Bermel power of attorney for Sister. The bank account was for someone who had the same first and last name as Sister but a different middle name. Jackson told the banker that they needed to withdraw money to hire a lawyer on her behalf because she was incarcerated in Florida. Although the account listed on the bank statements had been closed, the banker informed the two that there was an active credit card linked to the account. After the bank's fraud department approved the power of attorney, Bermel had a credit card overnighted to Jackson's home. The two returned to the bank, and the banker approved the maximum allowable cash advance, $14,000, which the cashier split into two envelopes and gave to the two men.
¶3 The day after the cash advance, the victim, who lives in California, had her credit card declined. She learned that the address on her credit card had been changed to Arizona and that Bermel had power of attorney for her, both of which had been done without her permission. The victim had previously dealt with similar fraudulent activity involving
Sister, and she immediately contacted the bank's fraud department. Several days later, when Bermel returned to the bank and attempted to withdraw more money, he was arrested. At the officer's request, Bermel contacted Jackson, who agreed to meet with detectives. Jackson allowed the detectives to search his car, where they found the power of attorney and bank statements.
¶4 Subsequent investigation and review of recorded phone calls between Jackson and Sister (in a Florida jail) revealed that Jackson needed money and that he asked Sister to mail him the power of attorney and bank statements. Although Sister had the power of attorney executed in Jackson's name, Jackson later altered it to Bermel.
¶5 Jackson was charged with fraudulent schemes and artifices, forgery, and taking the identity of another. The jury found Jackson guilty as charged and that he was on community supervision at the time of the offense. The jury also found three aggravating factors: pecuniary gain, harm to the victim, and presence of an accomplice. Jackson did not appear for the verdict and aggravation hearing, and after the court issued a bench warrant, Jackson was arrested five months later in Nebraska. The court sentenced him as a category three repetitive offender to concurrent terms of imprisonment, the longest of which is 20 years, with credit for 131 days of presentence incarceration. Jackson timely appealed.
DISCUSSION
¶6 Jackson's counsel asks us to review the superior court's ruling that his phone calls with Sister were admissible under Arizona Rules of Evidence 901 and 902. Where, as here, a defendant objects to the admission of evidence, we review for an abuse of discretion. State v. King, 213 Ariz. 632, 635, ¶ 7 (App. 2006).
¶7 Under Rule 901, the proponent of evidence "must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Ariz. R. Evid. 901(a). A public record satisfies this requirement if the record "is from the office where items of this kind are kept." Ariz. R. Evid. 901(b)(7)(B). As relevant here, public records are considered self-authenticating when the document is signed by an employee of a county department or agency and a notary signs under seal "that the signer has official capacity and that the signature is genuine." Ariz. R. Evid. 902(2); see State v. Solis, 236 Ariz. 242, 245-46, ¶¶ 6, 9-10 (App. 2014).
¶8 The certification that came with the paper records and audio recording of the jail calls was signed by the custodian of records for the jail
where Sister was incarcerated, and a notary public acknowledged that the custodian had sworn and signed the certification.
¶9 Jackson argued at trial that such documentation was insufficient because the certification was not on letterhead, lacked an official seal, and did not contain any note of what records were certified by the custodian. But the rules do not require that the certification be on official letterhead, and although under Rule 902(1) the document must bear a seal, this is not necessary under Rule 902(4). Nor is there a requirement that an itemized list be included. The court took evidence that a detective spoke with the Florida detective who mailed the documents, and that he received an unopened envelope containing the certification paper clipped to the jail call logs. The only other item in the envelope was the CD that contained the audio recording of the phone calls. Under these circumstances, the court could conclude that the records were what they claimed to be, and thus the court did not err by admitting the jail calls.
¶10 Jackson's counsel also asks us to consider the superior court's ruling that certain of Bermel's out-of-court statements were admissible as non-hearsay. During trial, several bank-employee witnesses testified about Bermel's statements when attempting to access the victim's account, and the State played for the jury audio recordings of Bermel's phone calls with bank employees. The court denied Jackson's hearsay objection to admission of Bermel's out-of-court statements, ruling that the relevant statements were non-hearsay because they were made by Bermel as Jackson's coconspirator, or as Jackson's agent and with his authorization. See Ariz. R. Evid. 801(d)(2)(C)-(E). We review this evidentiary ruling for an abuse of discretion. See State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).
¶11 We discern no error. A statement of a party opponent—including a statement by that party's coconspirator during and in furtherance of the conspiracy—is not hearsay. Ariz. R. Evid. 801(d)(2)(E). Conspiracy need not be formally charged as long as the evidence shows the existence of a conspiracy involving the defendant and the declarant. State v. Baumann, 125 Ariz. 404, 411 (1980). Here, ample evidence supports the court's conclusion that Jackson and Bermel were parties to a conspiracy to use a forged power of attorney to withdraw funds from the victim's account. Jackson began discussing the scheme with Sister several months before approaching the bank, and "revamped" the power of attorney Sister provided to name Bermel. Jackson accompanied Bermel to the bank to explain the power of attorney by establishing an apparent relationship between Sister, Jackson, and Bermel. And the relevant statements addressed validating the power of attorney and securing funds from the
victim's account, and thus operated in furtherance of the conspiracy. See State v. Dunlap, 187 Ariz. 441, 458 (App. 1996) (describing statements in furtherance of a conspiracy as those intended to advance the conspiracy's goals). Accordingly, the superior court did not err by concluding that Bermel's statements were admissible as statements of Jackson's coconspirator.
¶12 We have read and considered counsel's brief and have reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find none.
¶13 Jackson was represented by counsel at all stages of the proceedings against him. With the exception of the verdict and aggravation phase, which Jackson chose not to attend, Jackson was present for the entire trial. The record reflects that the superior court afforded Jackson all his constitutional and statutory rights, and that the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The court conducted appropriate pretrial hearings, and the evidence presented at trial and summarized above was sufficient to support the jury's verdicts. Jackson's sentences fall within the range prescribed by law, with proper credit given for presentence incarceration.
CONCLUSION
¶14 Jackson's convictions and sentences are affirmed. After the filing of this decision, defense counsel's obligations pertaining to Jackson's representation in this appeal will end after informing him of the outcome of this 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 State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Jackson shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.