                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  DARROL DEAN CLAYBORN, Appellant.

                             No. 1 CA-CR 15-0665
                               FILED 8-4-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-433944-001
                 The Honorable Bruce R. Cohen, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin, Spencer D. Heffel
Counsel for Appellant
                            STATE v. CLAYBORN
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.


O R O Z C O, Judge:

¶1              Darrol Dean Clayborn (Defendant) appeals his convictions
and the resulting sentences for aggravated assault, a class 3 repetitive
felony, and disorderly conduct, a class 1 misdemeanor. Pursuant to Anders
v. Cal., 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), Defendant’s
counsel has filed a brief indicating she searched the entire record, found no
arguable question of law, and asked this court to review the record for
fundamental error. Defendant was given the opportunity to file a
supplemental brief in propria persona, but he has not done so. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In July 2013, L.A. had her three children in her car and was
backing out of a driveway when she heard a woman screaming for help.
L.A. did not know the woman, but the woman was arguing with Defendant
and she jumped into L.A.’s car. Shortly thereafter, L.A. stopped to let the
woman out and Defendant reached through the window and hit the
woman in the face. Defendant then mimicked a gun with his fingers like
he was “going to shoot” L.A., took a “huge rock” and smashed the
windshield on the driver’s side of L.A.’s car.1 Police arrested Defendant
after a foot chase and struggle.

¶3            Defendant was indicted on four counts: aggravated assault, a
class 3 dangerous felony (Count 1); resisting arrest, a class 6 felony (Count
2); criminal damage, a class 1 misdemeanor (Count 3), and; disorderly
conduct, a class 1 misdemeanor (Count 4). A jury trial was held in July
2014.2 At trial, L.A. testified that when Defendant threw the rock into her


1      L.A. also described the size of the rock as “seven inches.”

2       In October 2013, the court found Defendant incompetent to proceed
to trial. The court reevaluated Defendant in December 2013, and found him
competent.


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                           STATE v. CLAYBORN
                            Decision of the Court

windshield, she was fearful, her legs started to shake, and her children were
screaming. L.A. further testified that she thought her kids were going to be
harmed, and after the incident, her daughter was “pretty [shaken] up” and
had nightmares. Officer Dominguez testified that L.A. was “upset” after
the incident.

¶4          The jury found Defendant guilty of Count 1 and Count 4. The
jury found Defendant not guilty of Count 3, and could not reach a
unanimous decision regarding Count 2. The jury did not find that Count 1
was a dangerous offense.

¶5             Prior to sentencing, Defendant acknowledged having four
prior felonies, but only stipulated to two. The court performed a colloquy
regarding the two prior felonies and accepted Defendant’s stipulation.
Defendant then stipulated to all four prior felonies, and the court accepted
that stipulation without an additional colloquy.

¶6            For Count 1, the court imposed the presumptive sentence of
11.25 years’ incarceration, and gave Defendant 406 days’ presentence
incarceration credit. For Count 4, the court imposed a six-month jail
sentence, but gave Defendant six months’ presentence incarceration credit.
In addition, the court ordered community supervision equal to one day for
every seven days of the sentence, to be served consecutively.

¶7             Defendant timely appealed.3 We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution (A.R.S.) sections
12-120.21.A.1, 13-4031, and -4033.A.1 (West 2016).4 Finding no reversible
error, we affirm.

                               DISCUSSION

¶8            We review the sufficiency of evidence “in the light most
favorable to sustaining the conviction.” State v. Tison, 129 Ariz. 546, 552
(1981). All reasonable inferences are resolved against the defendant. Id. A
reversal of a conviction based on insufficiency of the evidence requires a

3       The court sentenced Defendant on November 7, 2014, and Defendant
filed a notice of appeal on December 1, 2014. The court of appeals dismissed
the appeal as untimely. Defendant then filed a petition for post-conviction
relief and requested leave to file a delayed notice of appeal, which the court
granted. Thereafter, Defendant timely appealed.

4     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                           STATE v. CLAYBORN
                            Decision of the Court

clear showing that there was not sufficient evidence to support the jury’s
conclusion under any hypothesis whatsoever. State v. Williams, 209 Ariz.
228, 231, ¶ 6 (App. 2004) (noting that it is the jury’s function, not the court
of appeals, to weigh the evidence and determine credibility).

¶9              Under A.R.S. § 13-1203.A.2, “[a] person commits assault by
. . . intentionally placing another person in reasonable apprehension of
imminent physical injury.” A person commits aggravated assault “[i]f the
person uses a deadly weapon or dangerous instrument.”                    A.R.S.
§ 13-1204.A.2. The State presented sufficient evidence to support the jury’s
verdict. Defendant used a “huge rock” to smash the windshield on the
driver’s side of L.A.’s car and mimicked a gun with his fingers like he was
“going to shoot” her. L.A. testified that at the time of the incident, she was
fearful, her legs started to shake, and her daughter was “pretty [shaken]
up” and has had nightmares.

¶10            Under A.R.S. § 13-2904, “[a] person commits disorderly
conduct if, with intent to disturb the peace or quiet of a neighborhood,
family or person, or with knowledge of doing so, such person . . . [e]ngages
in fighting, violent or seriously disruptive behavior.” The State presented
sufficient evidence to support the jury’s verdict on the disorderly conduct
charge. Defendant knowingly disturbed the peace or quiet of L.A.’s family
by smashing her car’s windshield with a “huge rock.”

¶11              As previously stated, the court did not perform the Rule 17.6
colloquy after Appellant admitted the third and fourth prior felonies, as
required by the Arizona Rules of Criminal Procedure. The court’s failure
to perform the colloquy was fundamental error, but resentencing is only
required if prejudice occurred. See State v. Gonzales, 233 Ariz. 455, 458, ¶ 9
(App. 2013). Fundamental error review “applies when a defendant fails to
object to alleged trial error,” and the defendant has the burden to prove
both error and prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20
(2005). Fundamental error is “error going to the foundation of the case,
error that takes from the defendant a right essential to his defense, and error
of such magnitude that the defendant could not possibly have received a
fair trial.” Id. (citation omitted). “[P]rejudice generally must be established
by showing that the defendant would not have admitted the fact of the prior
conviction had the colloquy been given.” State v. Morales, 215 Ariz. 59, 62,
¶ 11 (2007). If the record contains sufficient evidence of prior convictions,
remand for a determination of prejudice is not necessary. See id. at 62, ¶ 13.

¶12            Defendant does not argue, and indeed cannot prove, that the
court’s failure to perform a proper Rule 17.6 colloquy caused him prejudice.


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                           STATE v. CLAYBORN
                            Decision of the Court

The presentence report notes four prior felony convictions, which were
detailed on the record by both the State and the court. Defendant never
sought to correct or rebut the presentence report, see Rule 26.7.b, nor did he
object to the report’s summary of his criminal history, see Rule 26.8.a, or the
recitation of the prior felonies on the record. Defendant’s failure to object
to the contents of the presentence report results in waiver of any objections
to the accuracy and completeness of the report. See State v. Walden, 126 Ariz.
333, 336 (App. 1980) (completeness); State v. Nichols, 24 Ariz. App. 329, 330
(1975) (accuracy).

¶13           At sentencing, the court did not expressly find any
aggravating or mitigating factors, and imposed the presumptive sentence
of 11.25 years’ imprisonment for Count 1. Because Defendant had four
historical prior felony convictions, the sentence was proper under A.R.S.
§ 13-703.C and J. The court also sentenced Defendant to six months’
incarceration for Count 4, which was proper under A.R.S. § 13-707.A. The
court granted Defendant 406 days’ presentence incarceration credit for
Count 1 and six months’ credit for Count 4. Because the record is
incomplete regarding the basis for the court’s determination of Defendant’s
presentence incarceration credit, we presume the court correctly credited
Defendant. See State v. Scott, 187 Ariz. 474, 476 (App. 1984) (“Even if a trial
record is incomplete, we must assume that it supports the judgment unless
there is ‘at least a credible and unmet allegation of reversible error.’”)
(citation omitted). The term of community supervision, imposed
consecutively, was appropriate under A.R.S. § 13-603.I.

                              CONCLUSION

¶14           We have read and considered counsel’s brief. We have
carefully searched the entire appellate record for reversible error and have
found none. See State v. Clark, 196 Ariz. 530, 541, ¶ 49 (App. 1999). We find
substantial evidence supported the jury’s guilty verdicts. Defendant was
represented by counsel at all critical stages of the proceedings. At
sentencing, Defendant and his counsel were given an opportunity to speak,
and the court imposed a legal sentence. For the foregoing reasons,
Defendant’s conviction and sentence are affirmed.

¶15            Counsel’s    obligations    pertaining      to     Defendant’s
representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582,
584 (1984). Counsel need do nothing more than inform Defendant of the
status of the appeal and his future options, unless counsel’s review reveals
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See id. at 585. Defendant shall have thirty days from


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                         STATE v. CLAYBORN
                          Decision of the Court

the date of this decision to proceed, if he so desires, with an in propria
persona motion for reconsideration or petition for review.

¶16           For the foregoing reasons, we affirm Defendant’s conviction
and sentence.




                                 :AA




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