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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              BONIFACIO ESCARENO SEGURA, Appellant.

                             No. 1 CA-CR 17-0754
                               FILED 10-11-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-102674-001
                The Honorable Michael J. Herrod, Judge

                                  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. SEGURA
                             Decision of the Court



                        MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Lawrence F. Winthrop joined.


C A T T A N I, Judge:

¶1             Bonifacio Escareno Segura appeals his conviction of burglary
in the third degree and the resulting sentence. Segura’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), certifying that, after a diligent search of the record, he
found no arguable question of law that was not frivolous. Segura was given
the opportunity to file a supplemental brief, but did not do so. Counsel asks
this court to search the record for reversible error. See State v. Clark, 196
Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we affirm
Segura’s conviction and sentence.

              FACTS AND PROCEDURAL BACKGROUND

¶2            In January 2016, Segura and an accomplice entered a
convenience store and took approximately $300 in goods, including
cigarettes and lottery tickets. After they left, the store clerk called the police.
A nearby officer noticed a car coming eastbound from the direction of the
store, and he began following it. The officer lost sight of the car for a few
minutes, but eventually found it abandoned at a trailer park; the officer
found cigarettes and lottery tickets in and around the car. Police found
Segura at the trailer park, and he made several incriminating statements
about the burglary. The State charged Segura with burglary in the third
degree, a class 4 felony. See Ariz. Rev. Stat. (“A.R.S.”) § 13-1506.

¶3             Segura requested a jury trial. The first trial, however, ended
in a mistrial after jurors improperly discussed the case before the close of
evidence. At the second trial, the store clerk testified that Segura was one
of the men who entered an area behind the counter and took items without
paying for them, and the clerk’s testimony was corroborated by
surveillance footage from the store.

¶4          The jury found Segura guilty as charged, and after he
admitted two prior felony convictions, the superior court sentenced him as




                                        2
                             STATE v. SEGURA
                            Decision of the Court

a category 3 repetitive offender to the presumptive 10-year term, with credit
for 519 days of presentence incarceration. Segura timely appealed.

                               DISCUSSION

¶5           We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.

¶6              Segura was present and represented by counsel at all stages
of the proceedings against him. The record reflects that the superior court
afforded Segura all his constitutional and statutory rights, and that the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdict. Under A.R.S. § 13-1506(A)(1), a person
commits burglary in the third degree by “[e]ntering or remaining
unlawfully in or on a nonresidential structure . . . with the intent to commit
any theft or any felony therein.” Under A.R.S. § 13-1501(2), however,
entering or remaining unlawfully, as applied to premises where
merchandise is displayed for sale during normal business hours, is limited
to entry in an unauthorized area of the premises. Here, although jurors
were not specifically instructed regarding unauthorized areas, Segura did
not raise this issue at trial, and his defense was based primarily on identity.
There was video surveillance footage of the crime, and the evidence was
undisputed that the perpetrators took the items from an unauthorized area:
behind the counter. Under these circumstances, any deficiency in the
instructions was not reversible error. See Neder v. United States, 527 U.S. 1,
18–20 (1999) (finding harmless error when jury instructions omitted an
element of the offense, but the “omitted element is supported by
uncontroverted evidence”); State v. Dickinson, 233 Ariz. 527, 530–31, 533, ¶¶
10–12, 22 (App. 2013) (finding no reversible error where jury instruction
misstated an element of the offense but defendant failed to show prejudice
in light of facts and defense theory). Finally, Segura’s sentence falls within
the range prescribed by law, with sufficient credit given for presentence
incarceration.

                              CONCLUSION

¶7             Segura’s conviction and sentence are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Segura’s
representation in this appeal will end after informing Segura of the outcome
of this appeal and his future options, unless counsel’s review reveals an



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                             STATE v. SEGURA
                            Decision of the Court

issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s
own motion, Segura has 30 days from the date of this decision to proceed,
if he desires, with a pro se motion for reconsideration or petition for review.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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