Opinion
No. 1 CA-CR 18-0070
01-24-2019
STATE OF ARIZONA, Appellee, v. JOEY F. MONTOYA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Scott L. Boncoskey 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2016-002337-001
The Honorable Julie Ann Mata, Judge Pro Tempore
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 Scott L. Boncoskey
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kenton D. Jones and Judge David D. Weinzweig joined. SWANN, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), from Joey F. Montoya's conviction and sentence for robbery. At Montoya's request, his counsel identifies several issues for appeal. Montoya also filed a supplemental pro per brief. We discern no reversible error. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).
¶2 Montoya was indicted and tried by jury for armed robbery. At trial, the state presented evidence of the following facts.
¶3 On the evening of April 29, 2013, a man entered a convenience store in Tempe and wandered the aisles before approaching the cashier and engaging him in conversation about current deals at the store. Soon thereafter, the man began cursing and making aggressive gestures close to the cashier's person. The man demanded that the cashier remove money from the register, and he threatened to pull out a weapon and shoot the cashier upon noncompliance. As the man spoke, the cashier noticed a toothpick fall from his mouth to the ground. The cashier, following his training and not wanting to take a chance in case the man was armed, complied with the demand. The man then ran from the store, and the cashier called the police.
¶4 Police responded to the scene, interviewed the cashier, and collected the toothpick. Police also interviewed a witness who had seen the perpetrator enter and exit the store. Police were unable to locate a suspect that day.
¶5 Years later, police obtained a "hit" for Montoya based on DNA extracted from the toothpick. Police then prepared a photographic lineup and showed it to the cashier and the witness. Neither positively identified Montoya, but the cashier stated that Montoya's photograph looked most like the perpetrator and the witness initially selected Montoya's photograph before stating that he could not be certain without seeing the suspect in person. The witness was able to identify Montoya in person at trial.
¶6 The court denied Montoya's motion for a judgment of acquittal, and the defense rested without presenting evidence. The jury found Montoya not guilty of armed robbery but guilty of the lesser-included offense of robbery. The jury further found that the state had proven two aggravating circumstances, and Montoya stipulated to multiple prior felony convictions. The court entered judgment on the verdict and sentenced Montoya, as a category three repetitive offender, to a slightly mitigated prison term of nine years.
¶7 We first address the issues identified by Montoya. As an initial matter, Montoya contends that he was over-charged. He contends that the state "knew from the outset that [it] had no evidence that [he] either possessed a weapon or had simulated possession of one," as required for armed robbery under A.R.S. § 13-1904. But the fact that the jury declined to find Montoya guilty of armed robbery does not compel a finding of prosecutorial misconduct. The record shows that the state presented sufficient evidence to support the armed-robbery charge—the cashier testified that the perpetrator threatened to pull out a weapon and shoot, and surveillance video showed the perpetrator moving his arms about during that conversation.
¶8 Second, Montoya contends that all evidence related to the toothpick was inadmissible because the state failed to present testimony from the technician who collected that item at the scene. Ariz. R. Evid. 901(a) requires that a party authenticate evidence by presenting "evidence sufficient to support a finding that the item is what the proponent claims it is." "A party seeking to authenticate evidence based on a chain of custody 'must show continuity of possession, but it need not disprove every remote possibility of tampering.' Furthermore, '[a party] need not call every person who had an opportunity to come into contact with the evidence sought to be admitted.'" State v. McCray, 218 Ariz. 252, 256, ¶ 9 (2008) (citations omitted). Here, the state presented sufficient evidence to authenticate the toothpick. The cashier testified that he saw the toothpick drop from the perpetrator's mouth, directed police to it, and observed police collect it. Though none of the police officers who testified at trial recalled having spoken to the cashier about the toothpick, and none of them personally collected it from the ground, one officer testified that a police technician handed him the toothpick in a sealed envelope based on its identification as an item of interest. And thereafter, the chain of custody for the toothpick was documented.
Montoya further contends that trial counsel was ineffective because he failed to move to preclude the evidence. We do not consider that argument because claims for ineffective assistance of counsel must be raised in a petition for post-conviction relief under Ariz. R. Crim. P. 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).
We further note that, even setting aside the identification evidence obtained from the toothpick, the witness was able to positively identify Montoya at trial. --------
¶9 Third, Montoya challenges the credibility of the cashier and the witness. Credibility issues, however, were for the jury to decide. State v. Cox, 217 Ariz. 353, 357, ¶ 27 (2007).
¶10 We therefore discern no error with respect to the issues raised by Montoya. Further, our independent review of the record reveals that Montoya was present and represented at all critical stages, that the jury was properly comprised and instructed, and that the jury's verdict was supported by sufficient evidence. "A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property." A.R.S. § 13-1902(A). For purposes of robbery, a "'[t]hreat' means a verbal or physical menace of imminent physical injury to a person" and "'[f]orce' means any physical act directed against a person as a means of gaining control of property." A.R.S. § 13-1901(4), (2). The state's evidence established that Montoya took money from the cashier's immediate presence by means of both threat and force.
¶11 Montoya admitted to three historical prior felonies, and the court imposed a lawful mitigated prison sentence. See A.R.S. §§ 13-1902(B), -105(22)(b)-(d), -703(C) & (J). To the extent the record indicates that the superior court miscalculated Montoya's presentence incarceration, any error was in Montoya's favor and the state has not cross-appealed. See State v. Dawson, 164 Ariz. 278, 281-82 (1990). We do, however, discern error in the portion of the sentencing order that requires Montoya to "pay costs associated with DNA testing required pursuant to A.R.S. § 13-610." See State v. Reyes, 232 Ariz. 468, 471-72, ¶¶ 8-14 (App. 2013).
¶12 We affirm Montoya's conviction and sentence, but we vacate the portion of the sentencing order requiring him to pay for DNA testing. Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Montoya of the status of this appeal and his future options. Id. Montoya has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.21(b)(2)(A). Upon the court's own motion, Montoya has 30 days from the date of this decision in which to file a motion for reconsideration. See Ariz. R. Crim. P. 31.20(c).