                          NOTICE: NOT FOR PUBLICATION.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, Appellee,

                                        v.

                      OVID D. BLACKWELL, Appellant.

                             No. 1 CA-CR 15-0503
                               FILED 8-16-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-430194-001
                 The Honorable Danielle J. Viola, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
                          STATE v. BLACKWELL
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1            Ovid D. Blackwell appeals his convictions and sentences for
misconduct involving weapons, armed robbery, and aggravated assault.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104
Ariz. 297 (1969), defense counsel has searched the record, found no
arguable question of law, and asked this Court to review the record for
reversible error. See State v. Richardson, 175 Ariz. 336, 339 (App. 1993).
Blackwell was given an opportunity to submit a supplemental brief, but he
did not do so. For the following reasons, we affirm Blackwell’s convictions
and sentences.

                 FACTS AND PROCEDURAL HISTORY

¶2           Blackwell was indicted as follows for offenses stemming from
a Circle K convenience store robbery: count 1 — armed robbery, a class 2
dangerous felony; count 2 — misconduct involving weapons, a class 4
felony; count 3 — misconduct involving weapons, a class 4 felony; and
count 4 — aggravated assault, a class 3 dangerous felony.

¶3              After a nine-day trial, a jury found Blackwell guilty of counts
1, 2, and 4 as charged in the indictment.1 The jury thereafter considered the
State’s allegations of dangerousness and aggravators. As to the armed
robbery and aggravated assault offenses, the jury found one aggravating
circumstance: threatened infliction of serious physical injury. Jurors further
found that the State had proven the allegation of dangerousness as to the
armed robbery and aggravated assault offenses.




1       At Blackwell’s request, the trial court severed count 3, and it was not
presented to the jury. At trial, count 4 of the indictment was presented as
count 3. After trial, Blackwell entered into a plea agreement whereby he
pleaded guilty to the original count 3: misconduct involving weapons, a
class 4 felony.


                                      2
                         STATE v. BLACKWELL
                          Decision of the Court

¶4           The trial court sentenced Blackwell to the following
concurrent terms of imprisonment: count 1 — 9 years; count 2 — 2 years;
count 3 — 2 years; and count 4 — 6.5 years. He received 445 days of
presentence incarceration credit. After the trial court authorized a delayed
appeal pursuant to Arizona Rule of Criminal Procedure 32.1(f), Blackwell
timely appealed to this Court.

                              DISCUSSION

¶5            We have read and considered the brief submitted by defense
counsel, as well as the entire record. See Leon, 104 Ariz. at 300. We find no
reversible error. All of the proceedings were conducted in compliance with
the Rules of Criminal Procedure, and the sentences imposed were within
the statutory ranges. Blackwell was present at all critical phases of the
proceedings and was represented by counsel. The jury was properly
impaneled and instructed. The record suggests no irregularity in the
deliberation process.

¶6            Before trial, Blackwell moved to suppress Circle K clerk J.B.’s
out-of-court identification of him and to preclude J.B. from identifying him
in court. The trial court conducted an evidentiary hearing pursuant to State
v. Dessureault, 104 Ariz. 380 (1969), and subsequently denied Blackwell’s
motion, stating:

      Even if the show up were unduly suggestive, under the
      totality of the circumstances, the identification was otherwise
      reliable and, thus, admissible. The witness had an excellent
      opportunity to observe the suspect at the time of the crime.
      The witness had been warned of a possible problem before
      the suspect entered the Circle K, so the witness was on alert
      and focused. The witness got a very good view of the suspect
      during the crime as they were facing each other in “really
      good” lighting. The witness’ original description of the
      suspect was accurate, except for the suspect’s shirt and the
      absence of a doo rag (both of which could have been
      removed). While the witness initially said he thought that the
      man at the show up was the robber, he then said that he was
      certain the suspect was the robber. And, although there was
      no evidence as to the exact amount of time between the crime
      and the identification, both happened the same night.




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                          STATE v. BLACKWELL
                           Decision of the Court

The record supports the ruling regarding J.B.’s pretrial identification. And
after that identification, J.B. suffered head trauma in a car accident and was
unable to identify Blackwell at trial.

¶7             The State presented substantial evidence of guilt as to the
three charges submitted to the jury.2 See State v. Burns, 237 Ariz. 1, 20-21, ¶
72 (2015) (“Substantial evidence to support a conviction exists when
reasonable persons could accept it as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.”). At trial, J.B.
recalled “being robbed” and remembered a silver handgun being pointed
at him and a man taking money. Additionally, the State played J.B.’s 9-1-1
call for the jury. J.B. told the 9-1-1 operator that he had just been robbed
and described the suspect. J.B. advised that the man had a sawed-off
shotgun and had stolen cigarettes, money from the cash register, and lottery
tickets, which he placed in a black bag.

¶8              W.D., a frequent customer of the convenience store, also
testified at trial. He described seeing a man wearing a striped shirt and
light colored “dew rag” standing outside the store with a backpack. W.D.
went inside the store, and when he left, the man was still outside. W.D.
left, but testified that “something just told me not really to walk that far
off.” When he returned to the store, the man was no longer outside. W.D.
looked inside and “saw the clerk with his hands up and he was shaking.”
W.D. saw another man with “the same light colored dew rag.” W.D.
flagged down a firetruck. W.D. did not identify Blackwell at trial, testifying
that the lighting was “[n]ot really that great for me.”

¶9            Wayne Perch was one of the firefighters W.D. flagged down.
He testified that he saw a man wearing a red and white shirt and darker
pants exit the Circle K with a bag or backpack. The man pulled a bicycle
out of a nearby dumpster and rode off.

¶10           Police helicopter pilot Scott Hopkins received a call about an
armed robbery. He located a man on a bicycle who generally matched the
description provided. The man had a black bag or backpack. Officer
Hopkins lost sight of the bicycle when it passed under a tree; when he saw
it again, the man no longer had the bag. The man rode the bicycle into a
garage. After ground units arrived, he fled. Officers gave chase, and the
man — Blackwell — was taken into custody. Officers retrieved the black


2      Blackwell may not appeal the misconduct involving weapons
conviction that was the subject of his plea agreement. See Ariz. R. Crim. P.
17.1(e). We therefore do not address that offense.


                                      4
                          STATE v. BLACKWELL
                           Decision of the Court

backpack from the location described by the air unit; it contained cash,
cigarettes, lottery tickets, and a sawed-off shotgun.

¶11            The State also introduced video surveillance footage of the
robbery. Although Blackwell testified at trial and denied robbing the store,
“[n]o rule is better established than that the credibility of the witnesses and
the weight and value to be given to their testimony are questions
exclusively for the jury.” State v. Clemons, 110 Ariz. 555, 556–57 (1974).

                               CONCLUSION

¶12            We affirm Blackwell’s convictions and sentences. Defense
counsel’s obligations in this appeal have ended. Counsel need do nothing
more than inform Blackwell 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. See State
v. Shattuck, 140 Ariz. 582, 584–85 (1984). On this Court’s own motion, and
if he so desires, Blackwell may proceed with an in propria persona motion for
reconsideration or petition for review within 30 days of this decision.




                          Amy M. Wood • Clerk of the court
                          FILED: AA




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