Opinion
No. 1 CA-CR 14-0671
07-28-2015
STATE OF ARIZONA, Appellee, v. CARLEE ELISE KELLY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Spencer D. Heffel 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-146761-001
The Honorable Jo Lynn Gentry, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined. KESSLER, Judge:
¶1 Carlee Elise Kelly was tried and convicted of: taking the identity of another, a class 4 felony (Count 1); forgery, a class 4 felony (Count 2); possession or use of a dangerous drug, a class 4 felony (Count 3); and possession of drug paraphernalia, a class 6 felony (Count 4). Counsel for Kelly filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Kelly was given the opportunity to but did not file a supplemental brief. After reviewing the entire record we affirm Kelly's convictions and sentences, and modify the sentencing minute entry to reflect that Kelly is a repetitive offender.
FACTUAL AND PROCEDURAL HISTORY
¶2 Kelly walked into a Home Depot and attempted to purchase an electronic tool and $400 gift card with a forged check and driver's license belonging to S.B. When the supervisor was called to approve the transaction she immediately noticed that the photograph on the driver's license did not match Kelly. She also noticed that a security feature normally found on checks was missing. The supervisor called the bank listed on the check. After speaking with the bank the police were contacted. When Kelly left the building she was confronted by a police officer.
¶3 Shortly thereafter the officer arrested Kelly, and gave Kelly her Miranda warning. Incident to arrest the officer searched Kelly and her purse and found a white crystalline substance that was later determined to be methamphetamine, and a digital scale with drug residue on it. The officer also found blank checks with the name S.B. on them along with S.B.'s driver's license.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶4 Upon finding these items Kelly told the officer that she had found the driver's license, knew the checks were forged, and admitted that the methamphetamine was hers.
¶5 The jury found Kelly guilty of all four charges. Kelly then admitted to the aggravating circumstance of committing "the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value," Arizona Revised Statutes ("A.R.S.") section 13-701(D)(7) (Supp. 2014).
¶6 On the day of sentencing the court held a priors trial at which a forensic scientist testified. The court found that Kelly had 10 prior felony convictions, and was therefore a category 3 offender pursuant to A.R.S. § 13-703(C) (Supp. 2014).
¶7 Kelly was sentenced as a repetitive offender to aggravated concurrent terms of 12 years' imprisonment for Counts 1, 2, and 3 pursuant to A.R.S. § 13-703(J). The court also sentenced Kelly to a term of 3 years' probation for Count 4, possession of drug paraphernalia, a class 6 repetitive felony, to be served consecutive to the other counts.
Although the sentencing minute entry lists the convictions as non-repetitive offenses, at sentencing, the superior court stated it was sentencing Kelly for repetitive offenses on Counts 1, 2, and 3. The State agreed to dismiss the priors as to Count 4 in order for Kelly to receive probation. When a discrepancy exists between the oral pronouncement of sentence and the corresponding minute entry, the "[o]ral pronouncement in open court controls over the minute entry," State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989). Accordingly, this Court relies upon the oral pronouncement that Counts 1, 2, and 3 are repetitive offenses and modifies the sentencing minute entry to reflect that Kelly was sentenced as a category three repetitive offender.
¶8 Kelly timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 (2010) and -4033(A)(1) (2010).
DISCUSSION
¶9 In an Anders appeal, because no issues were preserved, this Court must review the entire record for fundamental error. State v. Flores, 227 Ariz. 509, 512, ¶ 12, 260 P.3d 309, 312 (App. 2011). Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to her defense, or is an error of such weight that the defendant could not possibly have had a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶10 On review, this Court views the facts in the light most favorable to sustaining the jury's verdicts and resolves all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). "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. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). I. The Evidence is Sufficient to Support Kelly's Conviction for Taking the Identity of Another
¶11 There is sufficient evidence to prove Kelly committed taking the identity of another. "A person commits taking the identity of another . . . if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information . . . without the consent of that other person . . . with the intent to obtain or use the other person's . . . identity for any unlawful purpose . . . ." A.R.S. § 13-2008(A) (Supp. 2014). The State presented testimony from the supervisor of Home Depot that Kelly presented S.B.'s driver's license in order to purchase goods with a check. S.B. testified that Kelly did not have permission to use the driver's license. The State also offered the testimony of the arresting officer that S.B.'s driver's license was found on Kelly, and that Kelly admitted that she found the license a few weeks earlier. The State corroborated that testimony by presenting S.B.'s driver's license as evidence. Thus, the evidence is sufficient to support Kelly's conviction for Count 1. II. The Evidence is Sufficient to Support Kelly's Conviction for Forgery
¶12 There is sufficient evidence to prove Kelly committed the crime of forgery. "A person commits forgery if, with intent to defraud, the person . . . [k]nowingly possesses a forged instrument; or . . . [o]ffers or presents a forged instrument or one that contains false information." A.R.S. § 13-2002(A)(1), (3) (Supp. 2014). The State presented testimony from the supervisor of Home Depot that Kelly presented a check with S.B.'s name on it, and that the check was missing certain security features. The check was entered into evidence. The State further offered the testimony of the arresting officer that upon searching Kelly he found blank checks with S.B.'s name on them, and that Kelly admitted to knowing the checks were forged. In addition, the State offered testimony from S.B. that she did not bank at the bank listed on the checks, that the signature on the used check was not hers, and that the account number on the checks was not hers. As such, the evidence is sufficient to support Kelly's conviction for Count 2. III. The Evidence is Sufficient to Support Kelly's Conviction for Possession or Use of a Dangerous Drug
¶13 There is sufficient evidence to prove Kelly committed the crime of possession or use of a dangerous drug. This crime is proven when a person knowingly possesses or uses a dangerous drug. A.R.S. § 13-3407(A)(1) (Supp. 2014). Methamphetamine is a dangerous drug pursuant to A.R.S. § 13-3401(6)(c)(xxxviii) (Supp. 2014). The State offered the testimony of the arresting officer that he searched Kelly and found a container with a crystalline substance in it. He further testified that Kelly admitted the substance was hers. Additionally, the impounded container of the crystalline substance was admitted into evidence. The State also offered the testimony of a forensic scientist who testified that she performed the requisite tests on the crystalline substance and determined it to be methamphetamine. Therefore, there is sufficient evidence to support Kelly's conviction for Count 3. IV. The Evidence is Sufficient to Support Kelly's Conviction for Possession of Drug Paraphernalia
¶14 There is sufficient evidence to prove Kelly possessed drug paraphernalia. Consistent with A.R.S. § 13-3415(A) (2010), the jury was instructed that possession of drug paraphernalia requires proof the defendant used or possessed with the intent to use drug paraphernalia to analyze methamphetamine and the item was drug paraphernalia. Consistent with A.R.S. § 13-3415(F)(2) (2010), the court defined drug paraphernalia as all equipment used, intended for use or designed for use in analyzing methamphetamine. The State offered testimony of the arresting officer that incident to arrest he searched Kelly and found a digital scale covered with a residue similar to the crystalline substance found in the container. The officer additionally testified that digital scales like the one found on Kelly are frequently used to weigh quantities of drugs either for sale or personal use. The digital scale was admitted into evidence. Given this evidence, there is sufficient evidence to support Kelly's conviction for Count 4.
CONCLUSION
¶15 After careful review of the record, we find no meritorious grounds for reversal of Kelly's convictions or sentences. The proceedings complied with the Arizona Rules of Criminal Procedure, Kelly and her attorney were present at all critical stages of trial, and Kelly was given an opportunity to speak at sentencing. Further, the evidence supports the verdicts, and the sentences are within the range permitted by law. We therefore affirm Kelly's convictions and sentences, and modify the sentencing minute entry to reflect that Kelly is a category 3 repetitive offender.
It is unclear whether Kelly was entitled to probation for Count 4. Although Kelly may not be eligible for probation due to the offense involving methamphetamine, see A.R.S. § 13-901.01(H)(4) (2010), because the State did not appeal we will not review the sentence for error. See State v. Dawson, 164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990). --------
¶16 Upon the filing of this decision, counsel shall inform Kelly of the status of the appeal and her options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Kelly shall have thirty days from the date of this decision to proceed, if she so desires, with a pro per motion for reconsideration or petition for review.