                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                        ROBERT MILLER, Appellant.

                             No. 1 CA-CR 14-0255
                                FILED 4-7-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-432803-003
          The Honorable Virginia L. Richter, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                             STATE v. MILLER
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.


J O N E S, Judge:

¶1            Robert Miller appeals his convictions and sentences for one
count of burglary in the third degree and one count of possession of
burglary tools. After searching the entire record, Miller’s defense counsel
has identified no arguable question of law that is not frivolous. Therefore,
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), defense counsel asks this Court to search
the record for fundamental error. Miller was afforded the opportunity to
file a supplemental brief in propria persona, which he elected not to do. After
reviewing the record, we find no error. Accordingly, we affirm Miller’s
convictions and sentences.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            In the early morning of July 13, 2013, police officers
responded to a report of suspicious activity and found three males standing
between the back of an open U-Haul truck and a dumpster. Miller told the
officers he and the other two men, later identified as Jason Martinez and
Vernon Nelson, were taking metal out of the dumpster.

¶3           The officers did not observe any metal in the dumpster, which
contained mostly discarded shingles and other roofing supplies. However,
inside the U-Haul, the officers observed two metal fence posts that
appeared to match those missing from the chain-link fence surrounding the
adjoining property, a pair of bolt cutters, a crowbar, and a bag and toolbox,
each containing a variety of hand tools.




1      “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdicts.” State v. Miles, 211
Ariz. 475, 476, ¶ 2, 123 P.3d 669, 670 (App. 2005).



                                       2
                            STATE v. MILLER
                           Decision of the Court

¶4            Within the adjoining property’s fenced area, officers
discovered a large air conditioning unit that had been pried open and
propped up on a dolly. The unit’s exposed copper piping and electrical
wires had been cut, causing fluid to leak from the unit and pool onto the
ground. Two additional tool bags were found near the unit and inside the
fence, one of which contained a bottle of medication prescribed to Vernon
Nelson.

¶5             At trial, officers testified that air conditioning units were
frequently targeted as sources of copper, which can be stripped and sold as
scrap. Although the tools used to commit a burglary differ based upon the
target, the officers noted that bolt cutters, wire cutters and crowbars are
common tools used to strip air conditioning units. Additionally, an officer
testified that burglars will often cut the power and drain the fluids from an
air conditioning unit as a safety precaution prior to removing the copper.

¶6            The owner of the property testified, consistently with the
reports of the law enforcement officers, that the property was under
construction and completely surrounded by fencing, with the exception of
a single gate at the front. The owner further stated he intended to reinstall
the air conditioning unit, which he described as “essentially new” and in
good working condition, once the roof repairs were completed.
Coincidentally, the owner took photographs of the air conditioning unit the
afternoon prior to this incident that showed the unit was undamaged. The
owner denied knowing Miller, Martinez, or Nelson or giving them
permission to enter the premises.

¶7            Before the case was submitted to the jury, Miller’s counsel
made an unsuccessful Rule 20 motion. Thereafter, the jury found Miller
guilty on both counts. The jury further determined the State had proven
four aggravating factors: (1) the offense was committed in the presence of
an accomplice; (2) the offense was committed for pecuniary gain; (3) the
offense caused financial harm to the victim; and (4) the offense was
committed while Miller was on community supervision. Miller admitted
having four prior felony convictions, and was sentenced to presumptive
terms of imprisonment of 10 years for burglary in the third degree and 3.75
years for possession of burglary tools, with the sentences set to run
concurrently.




                                     3
                            STATE v. MILLER
                           Decision of the Court

                               DISCUSSION

¶8           After reviewing the entire record for reversible error, we find
none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Reasonable evidence was
presented to support the jury’s verdict that Miller unlawfully entered the
fenced commercial yard with the intent to commit a theft, or aided Nelson
and/or Martinez in doing so, and that Miller possessed the tools used to
commit the burglary.

¶9            All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Miller
was represented by counsel at all stages of the proceedings. Miller did not
appear for the final pretrial management conference or trial, and does not
suggest any error in the decision to proceed in absentia. We likewise find
no error, as Miller was advised of the trial date and warned the State could
go forward if he failed to appear. See State v. Muniz-Caudillo, 185 Ariz. 261,
262, 914 P.2d 1353, 1354 (App. 1996) (citing State v. Tudgay, 128 Ariz. 1, 2,
623 P.2d 360, 361 (1981), and Ariz. R. Crim. P. 9.1).

¶10           The jury was properly comprised of eight jurors, and the
record shows no evidence of jury misconduct. See Ariz. Rev. Stat. § 21-
102(B) (2015); Ariz. R. Crim. P. 18.1(a). At sentencing, Miller was given an
opportunity to speak, and the trial court stated on the record the evidence
and materials it considered and the factors it found in imposing sentence.
The record reflects Miller’s admission to the prior felony convictions was
knowing, intelligent, and voluntary, and in compliance with Arizona Rule
of Criminal Procedure 17.6. Additionally, the sentence imposed was within
the statutory limits.

                              CONCLUSION

¶11            Miller’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Miller’s
representation in this appeal have ended. Defense counsel need do no more
than inform Miller of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85, 684 P.2d 154, 156-57 (1984).




                                      4
                             STATE v. MILLER
                            Decision of the Court

¶12            Miller has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Miller
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.




                                    :ama




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