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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 TERRANCE TRACY TONYAN, Appellant.

                             No. 1 CA-CR 14-0528
                              FILED 9-1-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-100076-001
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
                            STATE v. TONYAN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.


J O N E S, Judge:

¶1            Terrance Tonyan appeals his conviction and sentence for one
count of burglary in the third degree. After searching the entire record,
Tonyan’s defense counsel has identified no arguable question of law that is
not frivolous. Therefore, in accordance with Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this
Court to search the record for fundamental error. Tonyan was afforded the
opportunity to file a supplemental brief in propria persona, which he elected
not to do. After reviewing the record, we find no error. Accordingly,
Tonyan’s conviction and sentence are affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            Tonyan was charged with one count of burglary in the third
degree arising out of events that occurred on January 1, 2013. At trial, the
State presented the following evidence: On January 1, 2013, an officer with
the Phoenix Police Department responded to a 9-1-1 call reporting a
possible burglary in progress at a vacant commercial building in the area of
19th Avenue and Buckeye Road in Phoenix, Arizona. The caller, D.S.,
described the perpetrator as a skinny white male in his 40s or 50s wearing
dark clothing.

¶3             Upon arrival, the officer used the spotlight on his patrol
vehicle to illuminate the side of the building. He immediately observed a
man matching the description he had been given exiting a broken window
with a BMX-style bicycle. The man, later identified as Tonyan, looked at
the officer, ignored his direction to turn around and place his hands on his
head, and started to ride away.


1      We view the facts in the light most favorable to sustaining the jury’s
verdict, with all reasonable inferences resolved against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).



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                            STATE v. TONYAN
                            Decision of the Court
¶4             After a short pursuit, Tonyan collided with another patrol
vehicle and was taken into custody. The officer performed a search incident
to arrest, locating several hex keys, a box cutter, a flashlight, and a link of
chain. He also noted Tonyan was wearing a pair of leather work gloves.

¶5             Upon returning to the building, the responding officer found
a backpack, a duffel bag, and a stack of metal secured with twine that
appeared out of place. The backpack contained more pieces of metal
secured with twine, a bicycle pump, a crowbar, a hammer, a file, several
sets of pliers, other tools, and smaller metal objects. The duffel bag
contained chains, more metal objects, and a set of gloves. The officer
testified the tools could be used to take “scrap metal” from a building,
which could then be sold to salvage yards and metal recyclers nearby for
cash. A representative of the owner of the building identified some of the
metal items as having been removed from inside.

¶6             After being advised of his rights pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966), Tonyan denied entering the building, stating
he was “just out for a nightly bike ride.” However, just inside the window
Tonyan had exited was a dusty desk upon which were footprints matching
the shoes Tonyan was wearing at the time of his arrest and prints from a
bicycle tire tread.

¶7            D.S. was subpoenaed to testify by the State but failed to
appear for trial. The trial court found D.S. in contempt, and a warrant was
issued for his arrest. Tonyan’s counsel moved for a mistrial, arguing
Tonyan was prejudiced by D.S.’s absence. Specifically, he argued defense
counsel’s credibility with the jury was impermissibly impaired because he
referenced D.S.’s prior felony convictions in his opening statement — facts
that were never ultimately admitted into evidence. The trial court denied
the motion for mistrial, noting the jury was instructed that the opening
statement was not evidence and if “parties want to talk about things that
they in good faith believe will be evidence . . . they do so at their own risk,
understanding that certain witnesses and otherwise may not ever appear.”

¶8           Tonyan’s counsel then moved for a judgment of acquittal
under Arizona Rule of Criminal Procedure 20, arguing the State failed to
present substantial evidence a burglary was committed because there was
no evidence connecting Tonyan to the bags outside of the vacant building.
The motion was denied.

¶9            Tonyan testified in his own defense, admitting he was riding
his bicycle past the vacant building on January 1, 2013. While there, he
observed D.S., whom he had met on several prior occasions, and two other


                                      3
                             STATE v. TONYAN
                             Decision of the Court
men dragging bags out of the broken window. According to Tonyan, D.S.
asked him to help move “some stuff” from the building to his home.
Tonyan entered the window intending to assist D.S. in removing the items
but ultimately decided not to participate. According to Tonyan, when he
exited the window, the other men were gone; the police arrived shortly
thereafter.

¶10           The jury found Tonyan guilty as charged. Tonyan admitted
two prior felony convictions and was sentenced to the presumptive prison
term of ten years. Tonyan timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1),2 13-
4031, and -4033(A)(1).

                                DISCUSSION

¶11            Tonyan’s counsel asks the Court to consider two issues on
appeal. First, he questions the sufficiency of the evidence to convict Tonyan
of burglary. As relevant here, 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.”
A.R.S. § 13-1506(A)(1). On review, we will find reversible error on the basis
of insufficient evidence only where there is a complete absence of probative
facts to support the conviction. State v. Milton, 85 Ariz. 69, 73 (1958) (citing
Lavender v. Kurn, 327 U.S. 645, 653 (1946)).

¶12           Having reviewed the entire record, we conclude reasonable
evidence was presented to support the jury’s verdict that Tonyan entered a
nonresidential building with the intent to commit a theft. Indeed, Tonyan
candidly admitted under oath during the course of his testimony he had
entered a vacant commercial building with the intent to remove property.
The evidence is likewise sufficient to allow a reasonable jury to conclude
Tonyan actually removed items from the building. Accordingly, we find
no error on this basis.

¶13           Second, Tonyan’s counsel suggests the trial court erred in
denying the motion for mistrial based upon the inability to procure D.S.’s
attendance. We review the denial of a motion for mistrial for an abuse of
discretion. State v. Miller, 234 Ariz. 31, 40, ¶ 23 (2013) (citing State v. Roque,
213 Ariz. 193, 224, ¶ 131 (2006)). A mistrial should be granted “only if the




2     Absent material revisions from the relevant date, we cite a statute’s
current version.


                                        4
                            STATE v. TONYAN
                            Decision of the Court
interests of justice will be thwarted otherwise.” Roque, 213 Ariz. at 224,
¶ 131 (citing State v. Moody, 208 Ariz. 424, 456, ¶ 126 (2004)).

¶14            Although Tonyan alleged D.S. was a “material” and
“necessary” witness, the record does not identify any testimony Tonyan
anticipated would be elicited from D.S. beyond his three prior felony
convictions and apparent reporting of the burglary. However, D.S. was
identified to the jury as the reporting party through other testimony. See
State v. Lacquey, 117 Ariz. 231, 235 (1977) (affirming the denial of a motion
for mistrial where testimony of witness who failed to appear at trial was
cumulative). And D.S.’s prior convictions were only admissible to impeach
his credibility; where D.S. did not testify, his credibility was not at stake,
and his past criminal history was irrelevant and inadmissible. See Ariz. R.
Evid. 609.

¶15            Moreover, Tonyan’s counsel’s opening remarks regarding
D.S. were brief and made with a good faith belief that the corresponding
evidence would be admitted during the course of trial. The jury was
instructed, prior to the opening statements, that “[w]hat is said in an
opening is not evidence, nor is it argument.” The failure to ultimately prove
a non-testifying witness’s prior convictions does not warrant a mistrial,
particularly where the reference to the unproven facts was brief and the
jury did not ask any questions about D.S. or otherwise comment on his
absence. See State v. Green, 200 Ariz. 496, 501, ¶ 22 (2001) (considering the
nature and extent of questions from the jury in determining whether certain
information affected its decision); State v. Bowie, 119 Ariz. 336, 339-40 (1978)
(affirming denial of a motion for mistrial where the prosecutor briefly
referred to unproven prior bad acts in the opening statement and never
again during trial). Under these circumstances, the trial court acted within
its discretion in denying the motion for mistrial.

¶16            Further review reveals no fundamental error. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure. So far as the record reveals,
Tonyan was represented by counsel at all stages of the proceedings and was
present at all critical stages. The jury was properly comprised of eight
jurors, and the record shows no evidence of jury misconduct. See A.R.S.
§ 21-102(B); Ariz. R. Crim. P. 18.1(a). At sentencing, Tonyan was given an
opportunity to speak, and the trial court stated on the record the evidence
and materials it considered and the factors it found in imposing sentence.




                                       5
                            STATE v. TONYAN
                            Decision of the Court
Additionally, the sentence imposed was within the statutory limits.3 See
A.R.S. § 13-704(A).

                               CONCLUSION

¶17             Tonyan’s conviction and sentence are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Tonyan’s
representation in this appeal have ended. Defense counsel need do no more
than inform Tonyan of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).

¶18            Tonyan has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.19(a). Upon the Court’s own motion, we grant Tonyan thirty
days from the date of this decision to file an in propria persona motion for
reconsideration.




                                    :ama




3     The trial court issued an order nunc pro tunc in June 2015 awarding
Tonyan 567 days of presentence incarceration credit, properly reflecting the
time served between the date of arrest, January 1, 2013, and the date of
sentencing, July 22, 2014.


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