State v. Hitchcock ( 2021 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    RICHARD HITCHCOCK, Appellant.
    No. 1 CA-CR 20-0355
    FILED 8-26-2021
    Appeal from the Superior Court in Maricopa County
    No. CR2019-101127-001
    The Honorable Scott Sebastian Minder, Judge
    AFFIRMED
    COUNSEL
    Maricopa County Attorney’s Office, Phoenix
    By Linley Wilson
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Lawrence S. Matthew
    Counsel for Appellant
    STATE v. HITCHCOCK
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge D. Steven Williams delivered the decision of the Court, in
    which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
    W I L L I A M S, Judge:
    ¶1             Richard Thadeus Hitchcock appeals his convictions and
    sentences for theft of means of transportation, unlawful flight from a law
    enforcement vehicle, and criminal trespass. Hitchcock’s counsel filed a brief
    per Anders v. California, 
    386 U.S. 738
     (1967) and State v. Leon, 
    104 Ariz. 297
    (1969) advising us there are no meritorious grounds for reversal. Hitchcock
    was granted an opportunity to file a supplemental brief in propria persona
    but did not do so. Our obligation is to review the entire record for reversible
    error, State v. Clark, 
    196 Ariz. 530
    , 537, ¶ 30 (App. 1999), viewing the
    evidence in the light most favorable to sustaining the conviction and
    resolving all reasonable inferences against Hitchcock, see State v. Guerra, 
    161 Ariz. 289
    , 293 (1989). After reviewing the record, we affirm.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2           In January 2019, B.R. reported to law enforcement that his red
    Nissan Frontier had been stolen from his driveway.
    ¶3           The next day, a Scottsdale Police Officer noticed a red truck
    driving southbound on Scottsdale Road. The truck had no license plate, an
    obscured temporary tag in the back window, and a large amount of
    unsecured wood sticking out of the bed of the truck. The officer activated
    the patrol vehicle’s emergency lights and attempted to conduct a traffic
    stop. The truck “accelerated quickly,” went off the road, and hit a large
    boulder. The driver ran from the vehicle heading west.
    ¶4             A second officer was dispatched to the area and discovered
    the ignition of the truck had been “punched out,” which allowed the vehicle
    to be operated without a key. Police ran the vehicle’s identification number,
    discovered the vehicle was reported stolen, and learned that B.R. was the
    registered owner.
    ¶5         K.O. was at his home—just a couple houses west of the
    accident—when he observed a male in his fenced backyard attempting to
    2
    STATE v. HITCHCOCK
    Decision of the Court
    climb over a wall which separated the backyard from another fenced yard
    on K.O.’s property. Not recognizing the man, K.O. called the police.
    ¶6            A third officer, with his K-9, found Hitchcock hiding in the
    brush in the second fenced yard on K.O.’s property. The first officer
    identified Hitchcock as the driver of the red truck.
    ¶7             Once notified that his truck had been found, B.R. informed
    police that, although Hitchcock was a friend of B.R.’s son, Hitchcock did
    not have permission to use the vehicle, nor did B.R.’s son have permission
    to let anyone else use the vehicle.
    ¶8             Hitchcock was charged with theft of means of transportation,
    a Class three felony (“Count One”); unlawful flight from a law enforcement
    vehicle, a Class five felony (“Count Two”); and criminal trespass in the first
    degree, a Class one misdemeanor (“Count Three”).
    ¶9            At trial, Hitchcock moved unsuccessfully for an acquittal
    under Arizona Rule of Criminal Procedure 20, and the jury convicted
    Hitchcock as charged. After an aggravation hearing, the jury found the
    State had proved beyond a reasonable doubt that Hitchcock was on felony
    probation at the time of the commission of Counts One and Two.
    ¶10          The trial court found Hitchcock had committed two prior
    non-dangerous felony offenses and sentenced him to the presumptive term
    of 11.25 years’ imprisonment for Count One; the presumptive term of 5
    years’ imprisonment for Count Two; and 6 months in county jail for Count
    Three, all running concurrently, with presentence credit for 197 days
    served. We have jurisdiction under Article 6, Section 9, of the Arizona
    Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
    DISCUSSION
    ¶11             All proceedings were conducted in compliance with the
    Arizona Rules of Criminal Procedure. So far as the record reveals,
    Hitchcock was at all times represented by counsel. See State v. Conner, 
    163 Ariz. 97
    , 104 (1990) (right to counsel at critical stages). Hitchcock absconded
    prior to trial and was not present for the proceedings. See Ariz. R. Crim. P.
    9.1 (“[A] defendant’s voluntary absence waives the right to be present at
    any proceeding.”). The trial court record of jury selection does not
    demonstrate the empanelment of any biased jurors. The jury was properly
    comprised of twelve jurors, and the record shows no evidence of juror
    misconduct. See A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a). The trial court
    properly instructed the jury on the elements of the charged offenses, the
    3
    STATE v. HITCHCOCK
    Decision of the Court
    State’s burden of proof, and Hitchcock’s presumption of innocence.
    Hitchcock was present and in custody for sentencing. See Ariz. R. Crim. P.
    26.9. At sentencing, Hitchcock was given an opportunity to speak, and the
    court stated on the record the evidence and materials it considered and the
    factors it found in imposing the sentences. See Ariz. R. Crim. P. 26.10.
    Additionally, the sentences imposed were within the statutory limits. See
    A.R.S. §§ 13-701 to -709 (as applicable).
    ¶12           Our review reveals no fundamental error. See Leon, 
    104 Ariz. at 300
     (“An exhaustive search of the record has failed to produce any
    prejudicial error.”).
    CONCLUSION
    ¶13           We have reviewed the entire record for reversible error and
    find none; therefore, we affirm Hitchcock’s convictions and sentences.
    ¶14           Defense counsel’s obligations pertaining to Hitchcock’s
    representation in this appeal have ended. Counsel need do no more than
    inform Hitchcock of the outcome of this appeal and his future options,
    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 (1984). On this Court’s motion, Hitchcock has 30 days from
    the date of this decision to proceed, if he wishes, with an in propria persona
    motion for reconsideration or petition for review.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    4