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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    SIMON SERGIO GARCIA, Appellant.

                             No. 1 CA-CR 18-0024
                               FILED 12-6-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2016-109912-001
         The Honorable William R. Wingard, 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 Mark E. Dwyer
Counsel for Appellant

Simon S. Garcia, Buckeye
Appellant
                             STATE v. GARCIA
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            Simon Sergio Garcia timely filed this appeal in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), following his conviction of theft of a means of transportation, a Class
3 felony. Garcia's counsel has searched the record on appeal and found no
arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S.
259 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530 (App. 1999).
Counsel now asks this court to search the record for fundamental error.
Garcia filed a supplemental brief, which we address below. After
reviewing the entire record, we affirm Garcia's conviction and sentence.

             FACTS AND PROCEDURAL BACKGROUND

¶2             While investigating a reported break-in at a home, two
Phoenix police officers saw a vehicle driving toward the home.1 As the
officers approached the vehicle, it came to a stop. When one of the officers
asked Garcia, the driver, for identification, he responded that he did not
have any. The officer then asked Garcia to turn off the vehicle's engine, and
Garcia sped off. Officers found Garcia a short distance away and arrested
him after they learned the vehicle he was driving had been stolen. A grand
jury later indicted Garcia on theft of a means of transportation.

¶3            Before trial, Garcia moved to suppress all evidence obtained
from his initial contact with police, arguing the interaction was an
unconstitutional seizure under the Fourth Amendment. The court held a
hearing, at which the two officers testified that the home they were
investigating was a boarded-up "drug house" into which no one was
allowed. The officers said they were on the street outside their squad cars
waiting for backup when they saw a woman approach on foot. The officers
testified they knew the woman used to live in the home, that she was a


1      Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Garcia. State
v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                            STATE v. GARCIA
                           Decision of the Court

known drug user and that she was barred from entering the home. An
officer testified Garcia's vehicle was closely following the woman and,
because "it was apparent that [the woman] was with" the driver, they
decided to contact both her and the driver.

¶4             One of the officers testified that when he approached the
vehicle, Garcia pulled to a stop without the officer asking. Once the vehicle
stopped, the officer stood along the driver's side and began asking Garcia
some questions. The officers testified that there was no physical barrier in
front of the vehicle that prevented Garcia from driving off. An officer
testified he asked Garcia what he was doing in the area, and, as recounted
above, whether Garcia had any identification – to which Garcia said no –
and then asked Garcia to turn off the engine. At that, Garcia sped off.
According to the officer, the entire interaction lasted less than a minute.

¶5           At the close of the hearing, the superior court denied the
motion, ruling that the officers' interaction with Garcia was a "consensual
encounter," not a forced stop. The court found that Garcia "was in a vehicle,
he was driving, the car [remained on] and he was actually able to leave."
Additionally, the officers were "not holding the door, [or] anything of that
nature."

¶6            At the subsequent trial, a witness testified he owned the
vehicle and it had been stolen. The court also admitted a stolen-vehicle
report documenting the theft, and the two officers also testified about their
encounter with Garcia. The jury convicted Garcia of theft of a means of
transportation under Arizona Revised Statutes ("A.R.S.") section 13-
1814(A)(5), (2018).2 Before sentencing, Garcia admitted he had prior felony
convictions, after which the court sentenced him as a category-three
offender to a presumptive sentence of 11.25 years. See A.R.S. § 13-703(C),
(J) (2018).

¶7            Garcia timely appealed. Garcia filed a supplemental brief in
propria persona raising three issues, discussed below. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§
12-120.21(A)(1) (2018), 13-4031 (2018) and -4033 (2018).




2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


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                            STATE v. GARCIA
                           Decision of the Court

                              DISCUSSION

A.    Due Process Review.

¶8             The record reflects Garcia received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.
The State presented both direct and circumstantial evidence sufficient to
allow the jury to convict. The jury was properly comprised of eight
members. The court properly instructed the jury on the elements of the
charges, the State's burden of proof and the necessity of a unanimous
verdict. The jury returned a unanimous verdict, which was confirmed by
juror polling.

¶9           At a hearing following his conviction, Garcia's counsel stated
Garcia would admit his prior felony convictions. The following exchange
then ensued:

      The Court: Mr. Garcia, do you understand what your attorney
      just told me?

      The Defendant: Yeah.

      The Court: And is that what you want to do, is waive your
      right to a trial in the matter and just admit to having these
      priors on your record?

      The Defendant: Yeah.

      The Court: Has anybody forced you or threatened you, in any
      way, to do that?

      The Defendant: No.

      The Court: Has anybody promised you anything?

      The Defendant: No.

      The Court: In the past 24 hours have you consumed any
      alcohol, drugs or medications affecting your ability to make
      an intelligent decision?

      The Defendant: No.

      The Court: All right. Thank you.


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                             STATE v. GARCIA
                            Decision of the Court

¶10            The court's colloquy with Garcia was insufficient under
Arizona Rule of Criminal Procedure 17.6 because the court did not fully
inform him of the consequences his admissions would have on the
sentencing range applicable to his conviction and the constitutional rights
he was foregoing, including the right to counsel at a trial on his prior
convictions. See Ariz. R. Crim. P. 17.2; State v. Osborn, 220 Ariz. 174, 176-77,
¶¶ 5-7 (App. 2009) (when defendant admits a prior felony conviction,
court's colloquy must contain all items stated in Rule 17.2). The court's
error, however, did not prejudice Garcia because the court also admitted in
evidence a certified copy of an Arizona Department of Corrections "pen
pack" listing the prior convictions to which Garcia had admitted. See State
v. Morales, 215 Ariz. 59, 61-62, ¶¶ 10-11, 13 (2007) (absence of colloquy not
prejudicial if convictions may be proved by other uncontested evidence in
the record); State v. Gonzalez, 233 Ariz. 455, 458-59, ¶¶ 11-12 (App. 2013); see
also State v. Henderson, 210 Ariz. 561, 568, ¶ 26 (2005).

¶11          Finally, the superior court received and considered a
presentence report, addressed its contents during the sentencing hearing
and imposed a legal sentence for the crime of which Garcia was convicted.

B.     Issues Raised in Garcia's Supplemental Brief.

       1.     Evidence that someone else owned the vehicle.

¶12            In his supplemental brief, Garcia argues the State offered
insufficient evidence to prove the vehicle he was driving was owned by
someone else. Garcia argues that the witness who testified the vehicle
belonged to him was not its registered owner and that the State did not offer
a copy of the vehicle's title to prove ownership. "Reversible error based on
insufficiency of the evidence occurs only where there is a complete absence
of probative facts to support the conviction." State v. Scott, 113 Ariz. 423,
424-25 (1976).

¶13            Garcia was convicted of violating § 13-1814(A)(5). "A person
commits theft of means of transportation if, without lawful authority, the
person knowingly . . . [c]ontrols another person's means of transportation
knowing or having reason to know that the property is stolen." A.R.S. § 13-
1814(A)(5). The witness testified that (1) he owned the vehicle, (2) someone
stole the vehicle from him and (3) he reported the vehicle stolen and
provided the police with information on the vehicle. The witness also
testified he informed the police that, even though his name was not on the
car's registration, he held the title and showed police the title when he
reported the theft. Moreover, the witness testified he never gave Garcia or



                                       5
                              STATE v. GARCIA
                             Decision of the Court

any person other than the witness's cousin permission to drive the vehicle.
All this evidence was sufficient to allow the jury to find that the witness
owned the vehicle, even though it did not see a copy of the title. "The
credibility of witnesses is an issue to be resolved by the jury; as long as there
is substantial supporting evidence, we will not disturb their determination."
Scott, 113 Ariz. at 425.

       2.     The State's purported failure to disclose the bodycam
              footage.

¶14            Garcia also argues that, despite a request by his former
counsel, the State failed to disclose police bodycam footage capturing his
initial conversation with the officers at the scene. Garcia's counsel objected
to the State's failure to disclose the video before trial and orally asked the
court to sanction the State by preventing it from using the footage at trial.
According to the record, the court directed Garcia's counsel to make a
written request for the video; the State did not object to producing the
footage and agreed to look into why it had not been produced.

¶15           Garcia cites nothing in the record to support his contention on
appeal that the State ultimately failed to disclose the footage. In any event,
a defendant who asserts a disclosure violation may not prevail on appeal
absent proof he was prejudiced by the nondisclosure. See Ariz. R. Crim. P.
15.1 (governing State's disclosure obligations); State v. Jessen, 130 Ariz. 1, 4-
5 (1981) (defendant must prove he was prejudiced by a court's "choice of
sanction or the choice of no sanction for a violation"). Garcia does not say
how the State's nondisclosure prejudiced him; thus, he has not shown
reversible error. See Henderson, 210 Ariz. at 568, ¶ 26 (2005).

       3.     Whether the officers' initial contact was an unconstitutional
              Terry stop.

¶16            Last, Garcia argues that the superior court erred by denying
his motion to suppress and finding the officers' initial contact with him was
not an illegal investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968). We
review the superior court's ruling on a motion to suppress for abuse of
discretion and consider only the evidence presented at the suppression
hearing, viewing it in the light most favorable to sustaining the court's
ruling. State v. Primous, 242 Ariz. 221, 223, ¶ 10 (2017). We defer to the
superior court's factual findings if they are reasonably supported by the
evidence but review its ultimate legal determination de novo. State v. Adair,
241 Ariz. 58, 60, ¶ 9 (2016); see also State v. Wyman, 197 Ariz. 10, 13, ¶ 7 (App.




                                        6
                             STATE v. GARCIA
                            Decision of the Court

2000) ("Whether a person has been seized by police is a mixed question of
law and fact.").

¶17            The Fourth Amendment protects citizens against
"unreasonable searches and seizures." U.S. Const. amend. IV. An
investigatory stop – a seizure – occurs when, in light of all the
circumstances, a person reasonably believes he is not free to leave. State v.
Rogers, 186 Ariz. 508, 510 (1996). Such a stop occurs when a person submits
to an officer's use of physical force or show of authority. See id. at 511.

¶18             The evidence supported the superior court's finding that the
officers' initial contact with Garcia was a consensual encounter, so that no
Fourth Amendment protections attached. As one of the officers testified,
when he approached the side of the vehicle as it drove up, Garcia
voluntarily stopped, without the officer asking him to. Further, the officer
spoke to Garcia from the driver's side of the vehicle and did not try to
restrain him. The entire interaction lasted less than a minute. Indeed,
Garcia had not turned off the ignition before he sped away.

¶19             Based on this evidence, we cannot say the superior court
abused its discretion by finding that Garcia voluntarily stopped his car to
engage with the officers without any show of authority or force by the
officers and that the officers accordingly did not detain him for purposes of
the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434 (1991)
("[O]fficers do not [seize a person] by merely approaching an individual on
the street or in another public place, by asking him if he is willing to answer
some questions, [or] by putting questions to him if the person is willing to
listen.").

¶20          Garcia also argues that the bodycam footage would have
proven the officers used a show of force to stop the vehicle, but as noted
above, his contention is mere speculation without proof of the contents of
the footage.

                              CONCLUSION

¶21           We have reviewed the entire record for reversible error and
find none, and therefore affirm the conviction and resulting sentence. See
Leon, 104 Ariz. at 300.

¶22           Defense counsel's obligations pertaining to Garcia's
representation have ended. Counsel need do no more than inform Garcia
of the outcome of this appeal and his future options, unless, upon review,
counsel finds "an issue appropriate for submission" to the Arizona Supreme


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                            STATE v. GARCIA
                           Decision of the Court

Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85
(1984). On the court's own motion, Garcia has 30 days from the date of this
decision to proceed, if he wishes, with a pro per motion for reconsideration.
Garcia has 30 days from the date of this decision to proceed, if he wishes,
with a pro per petition for review.




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




                                        8
