                          NOTICE: NOT FOR PUBLICATION.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, Respondent,

                                        v.

                  QURIAN VERE ROBERSON, Petitioner.

                         No. 1 CA-CR 14-0160 PRPC
                           FILED 12-8-2015


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 2002-095105
                The Honorable Warren J. Granville, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Respondent

Qurian Vere Roberson, Buckeye
Petitioner
                           STATE v. ROBERSON
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Acting Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.


W I N T H R O P, Judge:

¶1            Petitioner, Qurian Vere Roberson (“Roberson”), petitions this
court for review of the dismissal of his petition for post-conviction
deoxyribonucleic acid (“DNA”) testing pursuant to Arizona Revised
Statutes (“A.R.S.”) section 13-4240 (2010).1 We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2              In December 2002, a jury convicted Roberson of misconduct
involving weapons, two counts of armed robbery, and three counts of
aggravated assault. This court affirmed his convictions and original
sentences on direct appeal. After a successful petition for post-conviction
relief, the trial court resentenced Roberson to an aggregate term of 31.5
years’ imprisonment, and this court again affirmed his sentences.

¶3            In his fourth post-conviction proceeding since resentencing,
Roberson sought post-conviction DNA testing of a ski mask, assault rifle,
and bullets used in the course of the robbery. Roberson argued DNA tests
on those items might reveal the presence of the DNA of another person and,
in turn, prove Roberson was not the person who robbed the victims. The
trial court denied the petition, and Roberson now seeks review. We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c) and
A.R.S. § 13-4239(C) (2010). We review the denial of post-conviction relief
for an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049,
1057 (1986).

¶4            Roberson sought DNA testing pursuant to A.R.S. § 13-4240(B)
and (C). Subsection (B) provides in pertinent part that a trial court “shall”
order DNA testing if the court finds “[a] reasonable probability exists that
the petitioner would not have been prosecuted or convicted if exculpatory
results had been obtained through [DNA] testing.” A.R.S. § 13-4240(B)(1).


1      Section 13-4240 is contained within the Article 29 Post-Conviction
Relief provisions of the Criminal Code.



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                           STATE v. ROBERSON
                           Decision of the Court

Subsection (C) provides in pertinent part that the trial court “may” order
DNA testing if the court finds a reasonable probability exists that “[t]he
petitioner’s verdict or sentence would have been more favorable if the
results of [DNA] testing had been available at the trial leading to the
judgment of conviction” or “[DNA] testing will produce exculpatory
evidence.” A.R.S. § 13-4240(C)(1)(a)-(b).2

¶5            We deny relief because there is no reasonable probability the
State would not have prosecuted Roberson or that a jury would not have
convicted Roberson even if testing of the items revealed the presence of
DNA from another person or the absence of Roberson’s DNA. Nor would
the verdicts or sentences have been more favorable if the results of
favorable DNA testing had been available at trial, and no reasonable
probability exists that DNA testing would produce exculpatory evidence.
The absence of Roberson’s DNA would not mean that Roberson did not
wear the mask or handle the rifle; likewise, the presence of someone else’s
DNA would not mean that Roberson did not wear the mask or handle the
rifle.

¶6            More importantly, the evidence of Roberson’s guilt was
overwhelming. Roberson robbed a family on the street at gunpoint and
took eighty-seven dollars from them. The victims could not see Roberson’s
face because he wore the ski mask. The husband, however, immediately
began to chase Roberson on foot as Roberson ran from the scene. Within
moments, and while Roberson was still in sight, the husband and wife
signaled a passing police car, told the officer they had just been robbed, and
pointed to the fleeing Roberson. The officer saw Roberson “running at full
speed” from the scene and pursued Roberson in his car. When the officer
caught Roberson a short distance later, he recognized Roberson as the
person running from the scene. The husband watched as the officer
pursued and apprehended Roberson and never lost sight of the officer or
Roberson. Despite the fact Roberson wore a mask, the victims identified
Roberson as the robber at the scene based on his clothing, shoes, height,
build, and ethnicity. Further, Roberson possessed eighty-seven dollars, the

2       The State did not file a response in the trial court or in this court.
Therefore, we assume arguendo that Roberson satisfied the other factors
necessary to either require or permit DNA testing. See A.R.S. § 13-
4240(B)(2)-(3), (C)(2)-(3) (requiring that the evidence must still exist, must
be in a condition to permit DNA testing, and must not have been previously
subjected to DNA testing in general or the specific DNA testing requested
if that specific test will resolve an issue not previously resolved by previous
testing).

                                      3
                            STATE v. ROBERSON
                            Decision of the Court

exact amount he took from the victims. Finally, Roberson attempted to
conceal his ski mask by lying on top of it when the police officer ordered
him to the ground. The officer found the mask under Roberson when
Roberson arose from the ground after his arrest. The victims identified the
mask as the mask worn by the robber. Police officers found the assault rifle
used in the robbery on the ground twenty to thirty feet from Roberson.
Based on this evidence, there is no reasonable probability the State would
not have prosecuted Roberson or a jury would not have convicted
Roberson, even if testing of the items revealed the presence of DNA from
another person or the absence of Roberson’s DNA.

¶7             Although the petition for review presents a number of
additional issues, Roberson did not raise those issues in the petition for
post-conviction relief he filed below. A petition for review may not present
issues not first presented to the trial court. See State v. Bortz, 169 Ariz. 575,
577, 821 P.2d 236, 238 (App. 1991); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d
1130, 1135 (App. 1988), approved as modified, 164 Ariz. 485, 493, 794 P.2d 118,
126 (1990); State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980);
Ariz. R. Crim. P. 32.9(c)(1)(ii). Further, Roberson could have raised those
issues in previous post-conviction relief proceedings. In general, any claim
a defendant could have raised in an earlier post-conviction relief
proceeding is precluded. Ariz. R. Crim. P. 32.2(a).

¶8            For the above reasons, we grant review and deny relief.




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