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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                JOHN WILLIS MOTHERSHEAD, Appellant.

         Nos. 1 CA-CR 15-0437, 1 CA-CR 15-0513 (Consolidated)
                           FILED 9-15-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-004409-001
               The Honorable Joseph C. Kreamer, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant in 1 CA-CR 15-0437

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant in 1 CA-CR 15-0513
                        STATE v. MOTHERSHEAD
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in
which Judge Lawrence F. Winthrop and Judge Donn Kessler joined.


S W A N N, Judge:

¶1            These appeals1 come to us under Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). John Willis
Mothershead (“Defendant”) appeals his convictions and sentences for
arson of a structure or property and for theft, and he appeals the court’s
order requiring him to pay restitution. Defendant was given the
opportunity to file supplemental briefs in propria persona, but he did not do
so. We have reviewed the record for fundamental error. See Anders, 386
U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530
(App. 1999).

¶2             At trial, the state presented evidence of the following facts.
In April 2013, Defendant was employed by a produce-delivery company
in downtown Phoenix. The owners regularly stored the company’s cash
intake in a locked safe within an on-premises computer-server room. The
safe usually contained a significant amount of cash, a fact that one of the
owners had told Defendant. Defendant did not have a key to the server
room door, nor did he have a key or the combination to the safe. He did,
however, have a key to the building’s west exterior door and one of its
tool rooms, and he had access to the company’s list of its employees’ door
passcodes.

¶3            On the night of April 27, 2013, a person entered the west
door of the closed building. The person caused no damage to the
building, and used the door passcode of an employee other than
Defendant. The person retrieved a pry bar, forced open the server room
door, pried open the safe and took the many tens of thousands of dollars
of cash within, and used gasoline to light a fire beneath the computer-
system equipment. One of the owners discovered the aftermath the next
morning, and another employee discovered that a pry bar was missing
from the tool rooms.

1      Appeals 1 CA-CR 15-0437 and 1 CA-CR 15-0513 are hereby
consolidated, with 1 CA-CR 15-0437 designated as the primary number.



                                      2
                       STATE v. MOTHERSHEAD
                         Decision of the Court
¶4            Numerous employees who reviewed the company’s
surveillance video, which survived the computer-system fire,
independently identified the perpetrator as Defendant based on his gait
and mannerisms.        Defendant denied responsibility and told law
enforcement that on the night in question he had visited a mall to eat
dinner and view a movie. But surveillance video from the mall showed
that though Defendant had purchased a movie ticket, he never entered the
theater or the restaurant.

¶5            The foregoing evidence was sufficient to support
Defendant’s class 4 felony conviction for arson and class 2 felony
convictions for theft. A person commits arson of a structure or property, a
class 4 felony, “by knowingly and unlawfully damaging a structure or
property by knowingly causing a fire or explosion,” A.R.S. § 13-1703, and
commits class-2-felony theft “if, without lawful authority, [he]
knowingly . . . [c]ontrols property of another with the intent to deprive the
other person of such property” and the property is worth at least $25,000,
A.R.S. § 13-1802(A)(1), (G).

¶6            Before sentencing, Defendant stipulated to one historical
prior felony conviction, and to the fact that he was on probation in April
2013. Further, at sentencing, the state provided sufficient evidence to
show that Defendant had two or more historical prior felony convictions.
Under A.R.S. §§ 13-703(C), (J) and -708(C), the court properly sentenced
Defendant as a category 3 repetitive offender and imposed legal
concurrent prison sentences of 17 years for the theft and 12 years for the
arson.    The court properly credited Defendant with 237 days of
presentence incarceration under A.R.S. § 13-712(B).

¶7             We discern no fundamental error in Defendant’s convictions
and sentences. Defendant was present and represented by counsel at all
critical stages; the jury was properly comprised and instructed; and there
is no evidence of any juror misconduct or bias. Defendant was permitted
to speak at sentencing, and the court stated on the record the materials it
considered and the factors it found in imposing sentence.

¶8            Further, we discern no fundamental error in the court’s
order that he pay restitution to the produce company’s insurer in the
amount of $86,450.58 and to the produce company’s owners in the amount
of $173,000. The evidence established that the insurer paid at least
$86,450.58 to the company for its losses, and that, in accordance with
policy limits, only $25,000 of that recovery was for the stolen cash. The
evidence further established that though the owners could not be certain
of the amount of cash in the safe at the time of the theft, their estimate of


                                     3
                       STATE v. MOTHERSHEAD
                         Decision of the Court
$173,000 (after offsetting the $25,000 in insurance proceeds) was
conservative and consistent with historical records.

¶9             We affirm Defendant’s convictions and sentences, and we
affirm the restitution order. Defense counsel’s obligations pertaining to
this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85
(1984). Unless, upon review, counsel discovers an issue appropriate for
petition for review to the Arizona Supreme Court, counsel must only
inform Defendant of the status of this appeal and his future options. Id.
Defendant has 30 days from the date of this decision to file a petition for
review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court’s
own motion, Defendant has 30 days from the date of this decision in
which to file a motion for reconsideration.




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




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