Opinion
1 CA-CR 12-0498
02-21-2013
STATE OF ARIZONA, Appellee, v. STEPHANIE RAY MURPHY, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Michael A. Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorneys for 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(Not for Publication -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 Yuma County
Cause No. S1400CR201101545
The Honorable Lawrence C. Kenworthy, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix Michael A. Breeze, Yuma County Public Defender
By Edward F. McGee, Deputy Public Defender
Attorneys for Appellant
Yuma KESSLER, Judge ¶1 Stephanie Ray Murphy ("Murphy") filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following her conviction of organized retail theft, a class 4 felony, under Arizona Revised Statutes ("A.R.S.") section 13-1819(A)(1) (2010). ¶2 Finding no arguable issues to raise, Murphy's counsel requested that this Court search the record for fundamental error. Murphy was given the opportunity to, but did not submit a pro per supplemental brief. For the reasons that follow, we affirm Murphy's conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶3 On December 14, 2011, Murphy set off alarms when leaving a Wal-Mart in Yuma. Concealed in her cart were eighteen DVDs for which she had not paid. The store's loss prevention team intervened and took her to a separate holding area. Murphy admitted to taking those DVDs as well as DVDs from a second Wal-Mart earlier that morning. ¶4 Officers C. and P. were called to the scene, and Murphy received her Miranda warnings. During her interview with Officer P., Murphy stated that she was planning on selling the DVDs for cash so her husband would not find out that she had been fired from her job earlier that day. ¶5 On June 27, 2012, a jury convicted Murphy of organized retail theft. After modifications, Murphy was sentenced to thirty-six months of supervised probation and three consecutive weekends in jail. Murphy was also ordered to pay $750 in attorneys' fees and $111.92 in restitution. ¶6 Murphy filed a timely appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, as well as A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
Miranda v. Arizona, 384 U.S. 436 (1966).
Murphy spent five days in jail following her arrest. Murphy will be entitled to receive presentence incarceration credit for those five days if her probation is later revoked and she is incarcerated. See A.R.S. § 13-712(B) (2010). In addition, she would also be entitled to the time served as a condition of her probation. See A.R.S. §§ 13-901(F) (Supp. 2012), -903(F) (2010).
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STANDARD OF REVIEW
¶7 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20. On review, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
DISCUSSION
¶8 After careful review of the record, we find no grounds for reversal of Murphy's conviction or modification of her sentence. The record reflects Murphy had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Murphy was represented at all critical stages of trial, was given the opportunity to speak at sentencing, and the sentence imposed was within the range for Murphy's offense. ¶9 In reviewing the sufficiency of the evidence, we review the "evidence presented at trial only to determine if substantial evidence exists to support the jury verdict." State v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005). Substantial evidence has been described as "more than a mere scintilla and is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468 (1997) (internal quotation marks omitted). "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)). ¶10 There is evidence in the record to support the jury's conviction of Murphy for the crime of organized retail theft. "A person commits organized retail theft if the person acting alone or in conjunction with another person . . . [r]emoves merchandise from a retail establishment without paying the purchase price with the intent to resell or trade the merchandise for money or for other value." A.R.S. § 13-1819(A)(1). ¶11 The State presented evidence that Murphy had shoplifted the DVDs, and the defense conceded to all of the factual allegations except the intent to resell the merchandise. However, that element of the crime is corroborated by Officer P.'s testimony, that Murphy twice told Officer P. that she was planning on selling the DVDs for cash so her husband would not find out that she had been fired from her job earlier that day. ¶12 In comparing the evidence in the record to the elements listed in the statute, we find there was sufficient evidence to support the jury's conviction of Murphy for organized retail theft.
CONCLUSION
¶13 For the foregoing reasons, we affirm Murphy's conviction and sentence. Upon the filing of this decision, defense counsel shall inform Murphy of the status of her appeal and her future appellate 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). Upon the Court's own motion, Murphy 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.
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DONN KESSLER, Judge
CONCURRING: _________________________________
JOHN C. GEMMILL, Presiding Judge
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JON W. THOMPSON, Judge