State v. Wilenchik ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
SKYLAR IVAN WILENCHIK, Appellant.
No. 1 CA-CR 14-0455
FILED 7-14-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-006756-001
The Honorable Robert L. Gottsfield, Retired Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern, Chandler
Counsel for Appellant
Skylar Wilenchik, Florence
Appellant
STATE v. WILENCHIK
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Michael J. Brown joined.
T H U M M A, Judge:
This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for defendant
Skylar Ivan Wilenchik has advised the court that, after searching the entire
record, she has found no arguable question of law and asks this court to
conduct an Anders review of the record. Wilenchik was given the
opportunity to file a supplemental brief pro se, and has done so. This court
has reviewed the record and has found no reversible error. Accordingly,
Wilenchik’s convictions and resulting sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
On October 10, 2011, Wilenchik’s sister J.W.2 returned to her
condominium from a trip and discovered several items of jewelry were
missing. Wilenchik, who had been staying at the condominium, denied any
involvement. J.W., however, asked Wilenchik to move out, suspecting he
was involved. J.W. reported the missing jewelry to the police. The police
discovered the jewelry had been pawned. The tickets from the pawn shop
listed Wilenchik as the person who pawned the jewelry. In April 2012,
Wilenchik was charged by Indictment with seven counts of trafficking in
stolen property in the first degree, each a Class 2 felony, with dates of
offense on August 20, 2011 and various dates in October 2011.
Before trial, the State alleged aggravating circumstances and
that Wilenchik had six historical non-dangerous felony convictions. On the
State’s motion, the court held an Arizona Rule of Evidence 609 hearing and
1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588–89, 951 P.2d 454, 463–64 (1997) (citation
omitted).
2Initials are used to protect the victims’ privacy. State v. Maldonado, 206
Ariz. 339, 341 n.1 ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).
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STATE v. WILENCHIK
Decision of the Court
allowed the use of four of Wilenchik’s sanitized prior felony convictions for
impeachment if he elected to testify. Although the State offered Wilenchik
a plea agreement, after a proper advisement pursuant to State v. Donald, 198
Ariz. 406, 10 P.3d 1193 (App. 2000), Wilenchik rejected the plea.
On the second day of trial, Juror 10 told the bailiff she worked
with the judge’s wife and had not realized it during voir dire. The court
promptly addressed the issue with counsel and, in open court but outside
the presence of the other jurors, Juror 10 stated that the relationship would
have no bearing on her opinion in the case and would not prejudice her in
any way. After counsel was given an opportunity to ask her questions, the
parties had no objections to Juror 10 continuing and she was one of the
jurors that deliberated at the close of the evidence.
During the seven-day jury trial, the State called as witnesses
J.W., investigating officers, a pawnshop employee and the pawnshop
owner. After the State rested, Wilenchik unsuccessfully moved for a
judgment of acquittal, arguing a lack of substantial evidence. Wilenchik
then called as a witness J.K., a friend who was with Wilenchik during some
of October 2011. Wilenchik also elected to testify on his own behalf,
admitting during his testimony that he had four prior felony convictions.
Wilenchik did not dispute his signature on the pawn receipts,
the jewelry listed or dates in question. Nor did Wilenchik deny pawning
the jewelry. Instead, Wilenchik’s defense was that he did not know the
jewelry he pawned belonged to his sister. Wilenchik testified he believed
the jewelry belong to his girlfriend, K.M., who asked Wilenchik to sell the
jewelry because she lost her identification. Wilenchik also testified the
diamond that was the subject of Count 1 had been given to him by his father
and did not belong to J.W.
After the close of the evidence, the superior court properly
instructed the jury; the jury heard closing arguments and, after
deliberations, found Wilenchik guilty as charged. The jury was then
discharged without making any determination regarding the aggravating
circumstances alleged by the State.
At sentencing, based on his trial testimony, the court found
Wilenchik had two prior historical felony offenses and sentenced Wilenchik
as a repeat offender. After considering argument and information
provided, the court sentenced Wilenchik to a mitigated term of 12 years in
prison for each count, with each sentence to run concurrently. The court
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STATE v. WILENCHIK
Decision of the Court
also properly gave Wilenchik 806 days of presentence incarceration credit
and ordered him to pay $15,000 in stipulated restitution.
This court has jurisdiction over Wilenchik’s timely appeal
pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1)
(2015).3
DISCUSSION
This court has reviewed and considered counsel’s brief and
appellant’s pro se supplemental brief, and has searched the entire record
for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96
(App. 1999). Searching the record and briefs reveals no reversible error. The
record shows Wilenchik was represented by counsel at all stages of the
proceedings and counsel was present at all critical stages. The evidence
admitted at trial constitutes substantial evidence supporting Wilenchik’s
convictions. From the record, all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. The sentences
imposed were within the statutory limits and permissible ranges.
Wilenchik raises three categories of arguments in his pro se
supplemental brief that merit further discussion.
I. Sufficiency Of The Evidence.
Wilenchik challenges the sufficiency of the evidence, arguing
(1) he is not guilty because he did not know the jewelry was stolen; (2) the
diamond in Count 1 was given to him by his father; (3) the diamond was
not two carats; (4) the diamond could not have been removed without
special tools, which the pawn shop did not have; (5) the State did not prove
the diamond was removed from the engagement ring; (6) the State never
showed the stone alleged to have been replaced in the engagement ring was
fake; and (7) J.W. “was caught multiple times lying [and] fabricating
stories.”
This court will not reverse a conviction “for insufficiency of
the evidence unless there is no substantial evidence to support the jury’s
verdict.” State v. Scott, 187 Ariz. 474, 477, 930 P.2d 551, 554 (App. 1996)
(citing State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983)). Substantial
evidence is “‘[m]ore than a scintilla and is such proof as a reasonable mind
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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STATE v. WILENCHIK
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would employ to support the conclusion reached.’” State v. Guerra, 161 Ariz.
289, 293, 778 P.2d 1185, 1189 (1989) (citation omitted).
Wilenchik never denied selling the jewelry to the pawn shop.
The pawn shop receipts were admitted as evidence and showed Wilenchik
sold the jewelry to the pawn shop. Wilenchik, J.W. and the other witnesses
each testified at trial and were each subject to cross-examination. When the
evidence conflicted, the role of the jury was to resolve those conflicts by
weighing and assessing the evidence received, including the credibility of
the witnesses. This court does not re-weigh the evidence considered by the
jury. State v. Long, 121 Ariz. 280, 281, 589 P.2d 1312, 1313 (1979). Having
considered the evidentiary record in the light most favorable to sustaining
the jury’s verdict, Wilenchik has not shown the evidence was insufficient to
support his convictions. See State v. Rienhardt, 190 Ariz. 579, 588–89, 951 P.2d
454, 463–64 (1997).
II. Wilenchik’s Father As A Possible Trial Witness.
Wilenchik argues his father was “always in touch with my
lawyer” and that his father “said he would testify to him giving me the
diamond in Count 1.” Wilenchik, however, did not call his father as a
witness. Wilenchik could have invoked the court’s subpoena power to do
so, see A.R.S. § 13-4071, and Wilenchik does not claim he was prevented
from doing so. In a post-verdict letter to the court, Wilenchik’s father wrote
that, when Wilenchik “asked me about going to trial, I told him there were
facts that showed innocence. Those facts didn’t prevail.” Moreover,
Wilenchik’s claims about what his father may have said if called as a trial
witness do not involve charges other than Count 1 and would have been
cumulative to Wilenchik’s trial testimony as to Count 1. Finally, to the
extent this argument seeks to implicate the effectiveness of his trial counsel,
such a claim can only be raised in post-conviction proceedings, not on direct
appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415 ¶ 20, 153 P.3d 1040,
1044 (2007). Wilenchik has shown no reversible error regarding the
possibility of his father being called as a trial witness.
III. Testimony Wilenchik Had Seen J.W. Wearing The Jewelry.
Wilenchik argues J.W. lied in court by
tell[ing] the jury how I knew the jewelry was
hers because I had seen her wear it at family
functions. These family functions I couldn’t
have been at because I was incarcerated on a
prior case. We (my lawyer) couldn’t tell the jury
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STATE v. WILENCHIK
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the victim was lying because the jury was not
allowed to know I had been incarcerated before.
This issue arose at trial when J.W. was asked, during cross-examination,
when Wilenchik would have seen her wearing certain items of jewelry,
including when they “lived together” as well as at “family affairs” or
“family occasions” where Wilenchik and J.W. were present over a nearly
20-year period. The superior court discussed the matter with the parties
outside of the presence of the jury in significant detail and took appropriate
measures to allow cross-examination of J.W. to ensure the jury did not learn
of Wilenchik’s incarceration, including providing direction to J.W. herself.
The court allowed counsel to cross-examine J.W. about whether Wilenchik
attended certain family functions, and when she was again asked whether
he attended a specific event she had previously testified about, she said “I
don’t remember now. I can’t remember if he was there or not.” Wilenchik
has not shown how the superior court improperly handled the issue, or
how this answer resulted in reversible error.
CONCLUSION
This court has read and considered counsel’s brief and
Wilenchik’s pro se supplemental brief, and has searched the record
provided for reversible error and has found none. State v. Leon, 104 Ariz.
297, 300, 451 P.2d 878, 881 (1969); State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2
P.3d 89, 96 (App. 1999). Accordingly, Wilenchik’s convictions and resulting
sentences are affirmed.
Upon the filing of this decision, defense counsel is directed to
inform Wilenchik of the status of his appeal and of his future 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). Wilenchik shall have 30 days from the date of this decision
to proceed, if he desires, with a pro se motion for reconsideration or petition
for review.
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