State v. Benally ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ERIK GABRIEL BENALLY, Appellant.
No. 1 CA-CR 15-0022
FILED 10-29-2015
Appeal from the Superior Court in Coconino County
No. S0300CR201400037
The Honorable Dan R. Slayton, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Coconino County Public Defender's Office, Flagstaff
By Brad Bransky
Counsel for Appellant
Eric Gabriel Benally, Douglas
Appellant
STATE v. BENALLY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following Erik Gabriel Benally's conviction of aggravated assault, a Class 3
felony; shoplifting, a Class 1 misdemeanor; and refusal to provide name, a
Class 2 misdemeanor. Benally's counsel has searched the record on appeal
and found no arguable question of law that is not frivolous. See Smith v.
Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530
(App. 1999). Benally has filed a supplemental brief identifying various
issues, which we address below. After reviewing the entire record, we
affirm Benally's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 Benally entered a department store, selected a pair of
sweatpants and two sweatshirts and removed their price tags.1 He
continued to another area of the store, where he took two energy drinks and
concealed them in the sweatshirt he had picked up. Without paying for the
items, Benally then walked to the store exit, where he was stopped by store
asset protection employees. The employees asked Benally if he had paid
for the items, and Benally offered to give the items back. Benally then
accompanied the employees to an office at the back of the store. While the
employees were questioning Benally, he suddenly stood and rushed
toward the door, where one of them was standing. After a brief physical
altercation, Benally pulled out a knife, flipped it open and moved toward
the employee standing at the door. The employee felt the tip of the knife
against his abdomen, but was not injured. He moved aside and Benally
exited the office and the store and ran toward a nearby hotel.
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Benally.
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
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STATE v. BENALLY
Decision of the Court
¶3 Two police officers who were called to the scene apprehended
Benally, handcuffed him and placed him under arrest. One officer
repeatedly asked Benally for his name, but Benally refused to respond.
¶4 A jury convicted Benally of aggravated assault, shoplifting,
and refusal to give name. The jury also found the aggravated assault to be
a dangerous offense. After finding Benally was convicted of two prior
felonies, the superior court sentenced him to an aggravated term of nine
years' incarceration for aggravated assault and time served for the other
convictions. The court granted Benally 325 days of presentence
incarceration credit.
¶5 Benally timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1) (2015), 13-4031 (2015) and -4033(A)(1)
(2015).2
DISCUSSION
A. Issues Raised in Supplemental Brief.
¶6 Benally challenges the sufficiency of the evidence, arguing the
State failed to prove each element of the offenses beyond a reasonable
doubt. The record contains sufficient evidence, recounted above, to
support Benally's convictions. The State presented the testimony of both
asset protection employees who observed Benally remove the merchandise
and proceed to the exit without paying for them. The employees also
testified that Benally pulled out a knife and thrust it at one of them. The
jury also saw video evidence of the altercation, which largely corroborated
the employees' testimony. The jury also heard evidence he refused the
police officer's request to give his name.
¶7 Benally further argues the prosecutor improperly vouched for
a law enforcement witness when a detective sitting at the prosecution's
counsel table shook the witness's hand in the presence of the jury. Although
the prosecution may not impermissibly vouch for its witnesses, the conduct
at issue here did not constitute error, let alone fundamental error. See
United States v. Rude, 88 F.3d 1538, 1549 (9th Cir. 1996) (prosecutor's shaking
of witness's hand in front of the jury did not constitute impermissible
vouching or reversible error).
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. BENALLY
Decision of the Court
B. Due Process Review.
¶8 The record reflects Benally received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.
It did not conduct a voluntariness hearing; however, the record did not
suggest a question about the voluntariness of Benally's statements to police.
See State v. Smith, 114 Ariz. 415, 419 (1977); State v. Finn, 111 Ariz. 271, 275
(1974).
¶9 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members with one alternate. The court properly instructed the jury
on the elements of the charges, the State's burden of proof and the necessity
of a unanimous verdict. The jury returned a unanimous verdict, although
neither side requested the jury to be polled. The court received and
considered a presentence report, addressed its contents during the
sentencing hearing and imposed legal sentences for the crimes of which
Benally was convicted.
CONCLUSION
¶10 We have reviewed the entire record for reversible error and
find none, and therefore affirm the convictions and resulting sentences. See
Leon, 104 Ariz. at 300.
¶11 After the filing of this decision, defense counsel's obligations
pertaining to this appeal have ended. Defense counsel need do no more
than inform Benally of the outcome of this appeal and his future options,
unless, upon review, counsel finds "an issue appropriate for submission" to
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STATE v. BENALLY
Decision of the Court
the Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). On the court's own motion, Benally has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Benally has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
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