Opinion
No. 1 CA-CR 13-0101
01-28-2014
STATE OF ARIZONA, Appellee, v. TONY LAMAR REED, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Appellant Tony Lamar Reed, Tucson Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-120653-002
The Honorable Pamela Svoboda, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Paul J. Prato
Counsel for Appellant
Tony Lamar Reed, Tucson
Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Patricia K. Norris and Chief Judge Diane M. Johnsen joined. SWANN, Judge:
¶1 Defendant Tony Lamar Reed appeals his convictions and sentences for kidnapping, aggravated robbery, burglary in the second degree, and aggravated assault.
¶2 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal and found no arguable, nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant has filed a supplemental brief in propria persona in which he raises several issues for appeal.
¶3 We have searched the record and considered the issues raised by Defendant. We affirm his convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶4 In April 2012, Defendant was indicted for: (1) kidnapping, a class 2 felony under A.R.S. § 13-1304; (2) aggravated robbery, a class 3 felony under A.R.S. § 13-1903; (3) burglary in the second degree, a class 3 felony under A.R.S. § 13-1507; and (4) aggravated assault, a class 3 felony under A.R.S. § 13-1204. Defendant pled not guilty and the matter proceeded to trial before a 12-member jury.
¶5 At trial, the state presented evidence of the following facts. On the evening of April 13, 2012, D.G. entered his apartment holding groceries and left the front door open while he placed the groceries on a table. When D.G. turned to close the door, Defendant and a woman pushed through the door, ordered D.G. to back up, shut the door behind them, and demanded that D.G. surrender his money and cell phone. D.G. complied with these demands by giving Defendant the money in his wallet and his cell phone. Meanwhile, Defendant's companion entered the bathroom of the apartment and took loose change from the medicine cabinet. D.G. recognized both Defendant and his companion as acquaintances from the neighborhood.
¶6 After D.G. surrendered his money and cell phone, Defendant ordered D.G. to sit down. When D.G. refused and told Defendant that he should leave, Defendant hit D.G. on the head, causing him to fall onto a chair. When D.G. tried to rise from the chair, Defendant hit him again, and continued to beat him until he fell to the floor. Defendant and his companion then left the apartment and locked the door behind them. D.G. spent the rest of the evening and all of the next day on the floor, drifting in and out of consciousness and unable to move or call out for help. Two days after the attack, D.G. was finally able to alert his neighbors by banging a broom against the door. Police extricated D.G. from the apartment and he received medical care at a hospital.
¶7 At the hospital, D.G. viewed photo lineups prepared by police and immediately identified Defendant as the man who had entered his apartment. The next day, police approached Defendant after seeing him leave a different apartment in D.G.'s apartment complex. Defendant ran from the police but was quickly apprehended and arrested.
¶8 Over the next three months, D.G. received in-patient medical care that included surgery to fuse dislocated cervical vertebrae. At the time of trial, D.G. could not ambulate without a wheelchair or walker and was largely unable to use his right arm, on which he had received surgery shortly before the attack.
¶9 At the conclusion of the state's case-in-chief, Defendant moved for a judgment of acquittal on the kidnapping count. The court denied the motion and Defendant rested. After considering the evidence, the jury found Defendant guilty on all counts. The jury also found that the state had proven three aggravating factors: presence of an accomplice; commission for the receipt of pecuniary gain; and physical, emotional, or financial harm to the victim. The court then found that Defendant had five prior felony convictions. The court also found mitigating factors related to Defendant's personal history.
¶10 The court entered judgment on the jury's verdicts and sentenced Defendant to concurrent aggravated prison terms of 18 years for kidnapping and 15 years on the other counts, with credit for 285 days of presentence incarceration. The court also ordered that Defendant, along with his co-defendant, was jointly and severally liable for restitution for D.G.'s lost wages, and further ordered that restitution would remain open for future medical expenses incurred by D.G. Defendant timely appeals.
DISCUSSION
¶11 In his supplemental brief, Defendant makes several arguments related to the sufficiency of the evidence to support his convictions. First, Defendant contends that the state did not produce sufficient evidence to identify him as the person responsible for the crimes, because none of D.G.'s property was found in his possession and D.G.'s apartment was not tested for fingerprints or DNA. We disagree. D.G. was acquainted with Defendant and identified him as the perpetrator in a photo lineup and at trial. And though Defendant contends that D.G.'s identification was unreliable because he testified that he had ingested alcohol and painkillers on the day of the crimes, D.G.'s credibility was for the jury to decide. State v. Hickle, 129 Ariz. 330, 331-32, 631 P.2d 112, 113-14 (1981). The evidence was sufficient to support a finding that Defendant was D.G.'s attacker. Additional evidence was not necessary. Further, there is "no rule or case authority that requires the State to examine evidence for possible fingerprints" (or, by implication, DNA). State v. Chavez, 23 Ariz. App. 606, 608, 535 P.2d 26, 28 (1975).
¶12 Defendant also contends that D.G.'s testimony as a whole was unreliable because the description of the incident that he gave at trial differed in several respects from the description that he gave to police. But D.G. was cross-examined about these inconsistencies at trial, and, again, his credibility was for the jury to decide. Hickle, 129 Ariz. at 33132, 631 P.2d at 113-14. We conclude that D.G.'s testimony and the balance of the evidence presented by the state was sufficient to support Defendant's convictions for the charged offenses.
Defendant contends that his counsel's cross-examination was deficient. This is essentially a claim of ineffective assistance of counsel. We do not consider such claims on direct appeal; they must instead be raised in a petition for postconviction relief under Ariz. R. Crim. P. 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).
¶13 First, to support Defendant's conviction for aggravated robbery, the state was required to prove that Defendant took D.G.'s property from his person or immediate presence against his will, and in so doing threatened or used force against D.G. with the intent to coerce the surrender of property or prevent resistance, and was aided by an accomplice who was also present. A.R.S. §§ 13-1902(A), -1903(A). Second, to support Defendant's conviction for burglary in the second degree, the state was required to prove that Defendant entered or remained unlawfully in D.G.'s apartment with the intent to commit a theft or felony therein. A.R.S. § 13-1507(A). Third, to support Defendant's conviction for aggravated assault, the state was required to prove that Defendant intentionally, knowingly or recklessly caused serious physical injury to D.G. or assaulted D.G. using a deadly weapon or dangerous instrument. A.R.S. §§ 13-1203(A)(1), -1204(A)(2). Finally, to support Defendant's conviction for kidnapping, the state was required to prove that Defendant knowingly restrained D.G. with the intent of inflicting death, physical injury, or a sexual offense on him or to otherwise aid in the commission of a felony. A.R.S. § 13-1304(A)(3).
¶14 The state presented sufficient evidence on all of the charges. The state presented evidence that Defendant and a companion entered D.G.'s apartment without invitation and took D.G.'s money and cell phone, that Defendant hit D.G. when D.G. resisted an order, that Defendant eventually beat D.G. to the floor, and that Defendant and his companion left D.G. lying injured on the floor and locked the door behind them. To be sure, as Defendant suggests, "being in a fist fight not being able to moved" [sic] may not always constitute kidnapping. But here, the state presented evidence that Defendant severely beat D.G. until he was immobile and then locked him in his apartment, and we have no difficulty affirming Defendant's conviction for kidnapping. And contrary to Defendant's contention, medical testimony was not required to show that D.G.'s injuries rendered him unable to move -- D.G.'s testimony was sufficient.
¶15 Defendant finally contends that he is seriously mentally ill, and cites the "equitable tolling statute" and "Atkins." We take Defendant to be arguing that he was not competent to stand trial and that his sentences were prohibited under the Eighth Amendment and Atkins v. Virginia, 536 U.S. 304 (2002). Nothing in the record supports Defendant's arguments. Defendant was present and represented by counsel at all critical stages, and his competency was never disputed. His history of mental illness was properly considered as a mitigating factor at sentencing.
¶16 Our review of the record reveals no fundamental error. The evidence was sufficient to support Defendant's convictions, and it was also sufficient to support the jury's findings of aggravating factors. At sentencing, the state also presented sufficient evidence to show that Defendant had five prior felony convictions. Defendant was given the opportunity to speak at the sentencing hearing, and the court stated on the record the evidence and materials it considered and the factors it found in imposing sentence. The court properly found that Defendant was a category three repetitive offender, and acted within its discretion to impose slightly aggravated sentences. See A.R.S. §§ 13-105(22); -703(C), (J). Defendant did not object to the state's calculation of D.G.'s lost wages for purposes of restitution and agreed that such restitution would be properly assessed against Defendant were he guilty of the crimes.
The court erred by crediting Defendant with several extra days of presentence incarceration. But because the error favors Defendant and the state has not cross-appealed, we do not correct the error. State v. Dawson, 164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990).
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CONCLUSION
¶17 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We therefore affirm Defendant's convictions and sentences.
¶18 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and Defendant's future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.