Opinion
No. 1 CA-CR 11-0794
02-19-2013
STATE OF ARIZONA, Appellee, v. RICHARD SHEMBERGER, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James Haas, Maricopa County Public Defender By Spencer D. Heffel, 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(Not for Publication -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)
(AMENDED PER ORDER FILED 2/26/13)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-154526-001 DT
The Honorable Samuel A. Thumma, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James Haas, Maricopa County Public Defender
By Spencer D. Heffel, Deputy Public Defender
Attorneys for Appellant
Phoenix BROWN, Judge ¶1 Richard Shemberger appeals his conviction and sentence for leaving the scene of an injury accident. Counsel for Shemberger filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, he was unable to find any arguable grounds for reversal. Shemberger was granted the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶2 Our obligation is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We view the facts in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Shemberger. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm. ¶3 In October 2010, the State charged Shemberger with one count of leaving the scene of an injury accident, a class 5 felony in violation of Arizona Revised Statutes ("A.R.S.") sections 28-661 and -663 (2011), which require the driver of a vehicle involved in an accident resulting in an injury to immediately stop the vehicle at the scene and remain there until the driver has: (1) provided his name and address as well as the registration number of his vehicle; (2) on request, exhibit his driver's license to the person injured; and (3) render reasonable assistance. The following evidence was presented at trial. ¶4 On the evening of October 1, 2010, Shemberger was driving his car southbound on 44th Street. Shemberger approached the intersection at Thunderbird Road and entered the left turn lane. When the light at the intersection turned green, Shemberger focused on northbound traffic, waiting for a sufficient break to allow him to safely turn. At the same time, E.J. entered the crosswalk on Thunderbird and proceeded southbound across 44th Street. While making the left turn, Shemberger struck E.J. with his car. The force of the impact knocked E.J. down and she struggled to reach the curb. E.J was crying and noticed her finger was bent and bleeding and that she had road rash on her thigh and hip. Shemberger immediately pulled over and approached E.J., but he refused her request to call an ambulance, expressing fear he would lose his job. Shortly thereafter, Shemberger left the scene without giving additional assistance or providing his name, address, or registration. Witnesses at the scene attended to E.J. and called 9-1-1. Emergency personnel transported E.J. to the hospital, where she was diagnosed with a broken finger, hip abrasions, and a soft tissue back injury. ¶5 Witnesses to the accident gave police officers Shemberger's license plate number and a description of the car. The witnesses also told the officers there was a pizza delivery sign on top of the car. Officer Cassidy went to the pizza restaurant to locate the driver. Cassidy spoke with the manager and asked to speak with the person making deliveries at the time of the accident. The manager told Cassidy that Shemberger had been making deliveries at that time, but had gone home for the evening. The manager then called Shemberger, who returned at the manager's request. Shemberger told Cassidy that while making deliveries, he witnessed a woman trip and fall at the intersection of 44th Street and Thunderbird. He stopped to render aid, but left to make his delivery on time. Cassidy asked to see Shemberger's car to check for any visible damage. Shemberger said that the car he returned in was the one he drove for work that evening, but it did not match the witnesses' description. Without additional evidence linking Shemberger to the accident, Cassidy did not arrest Shemberger at that time. ¶6 After further investigation, Cassidy discovered that a vehicle matching the witnesses' description was registered to Shemberger. On October 8, Cassidy returned to the pizza restaurant to speak with Shemberger and noticed that Shemberger was using a vehicle matching the witnesses' description. Shemberger was arrested, and after receiving Miranda warnings, he admitted that on the night of October 1, he struck a woman with his vehicle at the intersection of 44th Street and Thunderbird and left the scene because he was afraid of losing his job. ¶7 A jury found Shemberger guilty on the single count of leaving the scene of an injury accident. The court placed Shemberger on supervised probation for three years, with a condition to serve 45 days of jail time. This timely appeal followed. ¶8 We have searched the entire record for reversible error and find none. All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows Shemberger was present and represented by counsel at all pertinent stages of the proceedings, was afforded the opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Based on the foregoing, we affirm Shemberger's conviction and sentence. ¶9 Upon the filing of this decision, counsel shall inform Shemberger of the status of the appeal and his 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). Shemberger shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.
Absent material revisions after the relevant date, we cite a statute's current version.
Miranda v. Arizona, 384 U.S. 436 (1966).
At trial, the State conceded it could not prove Shemberger was required to exhibit his driver's license to the person injured. The record contains substantial evidence, however, that Shemberger (1) did not provide his personal and vehicle information to E.J., and (2) he failed to give her reasonable assistance. See A.R.S. § 28-663(a)(2).
--------
_____________
MICHAEL J. BROWN, Presiding Judge
CONCURRING: _____________
ANDREW W. GOULD, Judge
_____________
DONN KESSLER, Judge