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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      MORGAN JAY FOARD, Appellant.

                              No. 1 CA-CR 17-0781
                                FILED 7-5-2018


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201601357
                  The Honorable Richard Weiss, Judge

                                   AFFIRMED


                                    COUNSEL

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

The Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
                             STATE v. FOARD
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.


J O H N S E N, Judge:

¶1            Morgan Jay Foard timely filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), following his conviction of reckless child abuse, a Class 5 felony.
Foard'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. at 744; State v. Clark, 196 Ariz. 530 (App. 1999).
Foard was given the opportunity to file a supplemental brief but did not do
so. Counsel now asks this court to search the record for fundamental error.
After reviewing the entire record, we affirm Foard's conviction and
probation.

             FACTS AND PROCEDURAL BACKGROUND

¶2            School officials gave Foard's third-grade daughter a
disciplinary report to take home to her parents.1 Foard picked her up from
school that day and was angry to see the report. When they arrived home,
Foard slapped his daughter across the face, causing bruising around her
eye.

¶3              The victim stayed home from school the next day, and when
she returned to school the day after, her teacher noticed the bruise. The
teacher alerted school administrators, and the victim was sent to the office
of the school health attendant. The attendant saw bruises on the victim's
face. When the attendant asked the victim how her eye became bruised,
she at first said she was injured playing with her cat, but later admitted that
Foard had hit her in the face.

¶4            Police interviewed the victim and photographed her face and
leg, which also was bruised. When police questioned Foard, he admitted


1      Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Foard. State
v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                            STATE v. FOARD
                           Decision of the Court

"spanking" his daughter in the face one time. He was arrested and later
released.

¶5            During a two-day trial, the victim testified Foard slapped her
face but denied he kicked her leg. The jury convicted Foard of one count of
child abuse in connection with the bruise on the victim's face, but acquitted
him on a second charge related to leg bruise. The court suspended sentence
and imposed a three-year term of probation with one day in jail.

¶6            Foard timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and -4033
(2018).2

                              DISCUSSION

¶7             The record reflects Foard received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages.

¶8            The court did not conduct a voluntariness hearing; however,
the record did not suggest a question about the voluntariness of Foard's
statements to police. See State v. Smith, 114 Ariz. 415, 419 (1977); State v.
Finn, 111 Ariz. 271, 275 (1974). Over Foard's objection, the court granted a
motion by the State to allow the school health attendant to testify. Because
the victim testified, the attendant's testimony recounting the victim's
statement that Foard slapped her face did not violate the Confrontation
Clause. See Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Nevertheless,
the testimony arguably was inadmissible hearsay under Arizona Rule of
Evidence 803(4) because there was no evidence that the victim sought
treatment from the medical attendant. See State v. Sullivan, 187 Ariz. 599,
601 (App. 1996). But Foard was not prejudiced by the statement because (1)
the victim testified that he had slapped her, causing a bruise on her face,
and (2) he himself acknowledged he had slapped her face once.

¶9             The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members. 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, which was confirmed by

2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.



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                            STATE v. FOARD
                           Decision of the Court

juror polling. The court received and considered a presentence report,
addressed its contents during the sentencing hearing and imposed a
permissible term of probation.3

                              CONCLUSION

¶10          We have reviewed the entire record for reversible error and
find none, and therefore affirm the conviction and resulting imposition of
probation. See Leon, 104 Ariz. at 300.

¶11           Defense counsel's obligations pertaining to Foard's
representation in this appeal have ended. Counsel need do no more than
inform Foard 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 the court's own motion, Foard has 30 days from
the date of this decision to proceed, if he wishes, with a pro per motion for
reconsideration. Foard has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.




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




3      We note that Foard was jailed for two days after his arrest, but the
court credited him with only one day of presentence incarceration.


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