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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        BRIAN JAMEL MATTHEWS,
                                Appellant.

                             No. 1 CA-CV 14-0698
                               FILED 10-8-2015

           Appeal from the Superior Court in Maricopa County
                        No. CR2013-004768-001
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                           STATE v. MATTHEWS
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined.


O R O Z C O, Judge:

¶1             Brian Jamel Matthews appeals his conviction for one count of
theft, a class one misdemeanor, and the resulting sentence. Matthews’s
counsel filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000);
Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297
(1969), indicating he has searched the entire record on appeal and has found
no arguable question of law that was not frivolous, and has requested this
court review the entire record for fundamental error. See State v. Clark, 196
Ariz. 530, 537, ¶ 30 (App. 1999). Matthews was afforded the opportunity to
file a supplemental brief in propria persona, but did not do so.

¶2           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 and 13-4031 and -4033.A.1 Finding no reversible error, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶3            In September 2013, I.J., the victim, encountered Matthews
near a pawn shop where I.J. had gone to reclaim his laptop. I.J. invited
Matthews to come to his apartment because Matthews said his phone was
dead and needed a charge. While at the apartment, I.J. let Matthews take a
shower and shave in his bathroom. I.J. also let Matthews use his laptop to
play games. Matthews stayed in I.J.’s apartment for about three hours and
left around 4:00 p.m.

¶4           I.J. went to work around 9:30 p.m. that day. He returned
home around 3:00 a.m. and found the bathroom window open, footprints
in the bathtub, and his laptop, debit card, brother’s cell phone, motor
scooter, backpack, lamp, and a case of CDs missing. He called the police
and they came to his apartment. I.J. told the police that he suspected it was
Matthews who had broken into his apartment.


1     We cite the current version of the applicable statutes unless revisions
material to this decision have occurred since the date of the offense.


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                            STATE v. MATTHEWS
                             Decision of the Court

¶5            Approximately one month later, police came into contact with
Matthews, who had a laptop, cell phone, and backpack on his person.
During the search of the laptop, police discovered I.J.’s W-2. Based on the
information in the W-2, police ran I.J.’s name through the police database
and discovered I.J. had been the victim of a residential burglary. Although
officers took photos of the seized items, they did not take a picture of I.J.’s
W-2 before they returned the laptop to him.

¶6             The police called I.J. to the station and he identified the items
as his property. I.J. did not recall if he powered up the laptop at the station
or at home, but when he did, he recognized his W-2, some pictures and
music. Although I.J. initially reported that the stolen laptop was a Dell, the
laptop was actually a Hewlett-Packard. I.J. also noticed new items saved
on the laptop including pictures, music and a different screen saver. At
least one of those pictures was of Matthews. I.J. was shown a photo lineup
and asked if he recognized anyone as the person who he believed stole his
property, and I.J. identified Matthews, saying he was “a hundred percent
sure” it was Matthews.

¶7           Matthews was charged with one count of burglary in the
second degree, a class three felony, and one count of theft, a class one
misdemeanor.2 The trial court held evidentiary hearings on Matthews’s
motion to suppress the search of the laptop and denied the motion.

¶8             On the first day of trial, Matthews’s counsel filed a motion
asking the trial court to either dismiss the charges against Matthews or give
the jury a Willits3 instruction based on the State having released the laptop
to I.J. The laptop contained I.J.’s W-2, and neither the laptop nor the W-2
were available for trial. After hearing counsels’ arguments, the court
denied the motion to dismiss, found no showing of bad faith on the part of
the police, but agreed a Willits instruction was appropriate.

¶9         The jury acquitted Matthews on count one (Burglary) and
found him guilty on the amended count two (Theft). The trial court
sentenced Matthews to 180 days’ incarceration, with a presentence



2      Matthews was originally charged with a class six felony; however,
during trial, the court granted the State’s oral motion to amend the
Indictment to reflect the true value of the stolen property as being less than
$1,000.00, making the offense a misdemeanor.

3      See State v. Willits, 96 Ariz. 184 (1964).


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                           STATE v. MATTHEWS
                            Decision of the Court

incarceration credit of 330 days. The trial court retained jurisdiction over
the issue of restitution for sixty days.

                               DISCUSSION

¶10           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.
We will reverse a conviction based on sufficiency of evidence when there is
clearly insufficient 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 to determine credibility).

¶11          Matthews was convicted of misdemeanor theft. A person
may be found guilty of theft if the state presents evidence that the person,
without lawful authority, knowingly controlled the property of another and
knew or had reason to know that the property was stolen. A.R.S. § 13-
1802.A.5. (West 2015). Sufficient evidence supported Matthews’s theft
conviction.

¶12              The jury was presented with evidence that Matthews had
visited I.J.’s residence and had used I.J.’s laptop the day before the burglary.
The jury was also presented with evidence that police seized a laptop on
Matthews’s person, which contained I.J.’s W-2. Because the police did not
preserve the laptop nor the W-2 for trial, the trial court properly gave a
Willits instruction to the jury. See Willits, 96 Ariz. at 191; see also State v.
Murray, 184 Ariz. 9, 33 (1995) (“A Willits instruction is appropriate when
the State destroys or loses evidence potentially helpful to the defendant.”)

¶13            The jury heard evidence that I.J. reported missing items from
the burglary that were identical to those items seized from Matthews, and
that I.J. was able to identify the seized items that belonged to him. Finally,
I.J. identified Matthews in a photo lineup with “a hundred percent”
certainty that Matthews was the same person who visited his residence the
day before the burglary. Thus, we find sufficient evidence supported the
jury’s verdict.

¶14           The trial court sentenced Matthews to 180 days incarceration,
with presentence incarceration credit of 330 days, which resulted in a
sentence of time served.

¶15          “The trial court shall retain jurisdiction of [a] case for
purposes of ordering, modifying and enforcing the manner in which court-


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                            STATE v. MATTHEWS
                             Decision of the Court

ordered payments are made until paid in full or until the defendant's
sentence expires.” A.R.S. § 13-805.A. (West 2015). Further, “a trial court
may impose a reasonable deadline within which restitution claims must be
filed.” In re Alton D., 196 Ariz. 195, 196, ¶ 6 (2000); see also State v. Zaputil,
220 Ariz. 425, 429 n. 2 (App. 2008) (observing that “both the trial court and
the State have a concurrent obligation to see that restitution claims are not
only preserved but adjudicated in a timely fashion”). Although the trial
court did not order restitution at the time of sentencing, the trial court
properly retained jurisdiction consistent with its obligation to ensure that
timely restitution claims were preserved.

                                CONCLUSION

¶16          We have read and considered counsel’s brief and carefully
searched the entire record for reversible error and have found none. See
Clark, 196 Ariz. at 541, ¶ 49. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure and substantial
evidence supported the jury’s finding of guilt. Matthews was present and
represented by counsel at all critical stages of the proceedings. At
sentencing, Matthews and his counsel were given an opportunity to speak
and the court imposed a legal sentence.




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                          STATE v. MATTHEWS
                           Decision of the Court



¶17           Counsel’s      obligations     pertaining    to    Matthews’s
representation in this appeal have ended. Counsel need do nothing more
than inform Matthews 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. State v. Shattuck, 140 Ariz.
582, 584–85 (1984). Matthews shall have thirty days from the date of this
decision to proceed, if he so desires, with an in propria persona motion for
reconsideration or petition for review.

¶18           For the foregoing reasons, Matthews’s conviction and
sentence are affirmed.




                                   :ama




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