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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     RAY EUGENE RIVERA, Appellant.

                             No. 1 CA-CR 13-0886
                               FILED 4-21-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-006669-001
                The Honorable John R. Ditsworth, Judge

                        AFFIRMED AS MODIFIED


                                   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. RIVERA
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Michael J. Brown joined.


T H U M M A, Judge:

¶1             This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for defendant
Ray Eugene Rivera has advised the court that, after searching the entire
record, she has found no arguable question of law and asks this court to
conduct an Anders review of the record. Rivera was given the opportunity
to file a supplemental brief pro se, and has done so. This court has reviewed
the record and has found no reversible error. Accordingly, Rivera’s
conviction and resulting sentence are affirmed as modified.

                 FACTS1 AND PROCEDURAL HISTORY

¶2           In March 2012, Rivera was charged by Indictment with first
degree murder, a Class 1 dangerous felony (Count 1) or in the alternative
second degree murder, a Class 1 dangerous felony (Count 2); attempted
robbery, a Class 5 felony (Count 3); burglary in the third degree, a Class 4
felony (Count 4) and theft, a Class 6 felony (Count 5).

¶3             At trial, the state presented testimony from 15 witnesses,
DNA evidence and exhibits. The evidence showed that Phoenix police
officers responded to a call at a store on the morning of June 9, 1998. When
officers arrived, they found a man, later identified as H.R., lying behind the
counter of the store.2 H.R. had bruises and abrasions on his body, had
suffered a fatal gunshot wound to the chest and had apparently been bitten
on his ear and shoulder. Police found the missing piece of the victim’s ear

1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588–89, 951 P.2d 454, 463–64 (1997) (citation
omitted).

2Initials are used to protect the victims’ and witness’ privacy. See State v.
Malonado, 206 Ariz. 339, 341 n.1 ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).



                                       2
                            STATE v. RIVERA
                           Decision of the Court

behind the counter. A bullet casing and a water bottle with a broken seal
were found in the area. Subsequent analysis showed the bullet casing could
have been fired from the type of gun that H.R. owned. No gun was found.

¶4            Although there were no witnesses, the police viewed a
surveillance video from security cameras at the store. The video showed a
man with a water bottle enter the store, interact with H.R. and then leave.
Several minutes later, the man returned, got behind the counter and fought
with H.R. (who possessed a gun). Officers who watched the video
commented on a round tattoo located above the man’s right hand.

¶5            The State’s witnesses testified that the use of DNA for
criminal investigation was in its infancy in 1998. Samples were, however,
collected from the scene to preserve possible DNA evidence. In May 2009,
a detective reviewing the case determined that further testing was
appropriate to see if any DNA could be found on the victim’s shirt, the
water bottle found at the scene and a swab taken from the victim’s ear. The
detective asked that any DNA profiles revealed from the testing be entered
into the national Combined DNA Index System (CODIS) database.
Testimony indicated that the partial DNA profile from the swab of the
victim’s ear matched the partial DNA profile from the water bottle.

¶6             In March 2012, the case was assigned to another detective
who learned that information from the CODIS database identified Rivera
as a possible suspect. This detective compared a July 18, 1998 photograph
of Rivera to the man in the surveillance footage and noted certain
similarities. In April 2012, two detectives went to California, where Rivera
was thought to be living. The detectives interviewed Rivera and testified to
several of Rivera’s distinguishing tattoos, one of which appeared visible on
the June 9, 1998 surveillance footage.

¶7            During the interview, Rivera admitted to using heroin and
shoplifting in order to buy drugs in the past. Although admitting to
working in Arizona at various times, Rivera denied being in Arizona in
early June 1998 and denied ever being at the market. The detectives
ultimately arrested Rivera in California on these Arizona charges and he
was then extradited to Arizona. Buccal swabs were later taken from Rivera
for DNA comparison purposes.

¶8             A series of photographs of Rivera were taken in September
2012, showing his tattoos were similar to those in the 1998 photos. During
trial, Rivera complied with a request to display a tattoo on his wrist for the
jury. A forensic scientist testified that the partial DNA taken from the water



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                             STATE v. RIVERA
                            Decision of the Court

bottle and H.R.’s ear matched Rivera’s DNA profile and gave statistics
regarding the “proximate incidence in this profile or this type of match.”

¶9              L.C., who had been in custody with Rivera leading up to the
trial, testified pursuant to a testimonial agreement. L.C. stated that Rivera
bragged to him about how he was going to beat the charges against him
because the surveillance footage was choppy. L.C. stated that Rivera
claimed to be “drug sick” from heroin withdrawal during the relevant time
in June 1998 and needed money. Rivera told L.C. that the victim was an
older “chump” who he thought would be an easy target. However, when
Rivera demanded money, H.R. insulted him and began to reach under the
counter; in response, Rivera jumped over the counter. L.C. testified that
Rivera said he was able to grab H.R.’s hand to keep him from firing a gun
and that he was able to turn the weapon toward H.R., squeeze H.R.’s hand
and fire the bullet that killed H.R. L.C. testified that Rivera told him he sold
the gun for drug money.

¶10             The jury found Rivera guilty on all charges; found the first
degree murder offense was a dangerous offense and made aggravating
factor findings on some of the other offenses. The superior court sentenced
Rivera to life in prison, with no possibility of release until 25 calendar years
were served, for first degree murder (Count 1) and dismissed the second
degree murder charge (Count 2). The court imposed prison terms for the
other convictions, concurrent to the sentence on Count 1.

¶11            After sentencing, by stipulation, Rivera’s convictions and
resulting sentences for all convictions other than first degree murder were
set aside because the statute of limitations for those convictions had expired
before trial. This court has jurisdiction over Rivera’s timely appeal from his
first degree murder conviction and resulting sentence pursuant to the
Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2015).3




3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       4
                              STATE v. RIVERA
                             Decision of the Court

                                DISCUSSION

¶12           This court has reviewed and considered counsel’s brief and
Rivera’s pro se supplemental brief, and has searched the entire record for
reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App.
1999). Searching the record and briefs reveals no reversible error. The
record shows that Rivera was represented by counsel at all stages of the
proceedings and counsel was present at all critical stages. The evidence
admitted at trial constitutes substantial evidence supporting Rivera’s
conviction for first degree murder. From the record, all proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure.
The sentence imposed was within the statutory limits and permissible
range. The court’s review of the record reveals three issues that merit
further discussion.

¶13            First, the photographs of Rivera admitted at trial without
objection showing his tattoos were taken while he was in jail clothes.
Identity was an important issue in this case and Rivera’s multiple tattoos
were key in identifying him as the suspect in the surveillance tape. Thus,
the photographs showing his tattoos (including where Rivera is wearing
jail clothing) were important to help the jury identify the suspect in the 1998
surveillance footage as being Rivera. Furthermore, given L.C.’s testimony,
the jury was aware that Rivera had been in custody for these charges and
thus it cannot be said the photographs were unfairly prejudicial. See State v.
Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995) (finding no prejudice where
jury learned defendants were arrested and spent time in custody before
trial). The photographs do not show Rivera in any restraints. Moreover, the
evidence was that these photographs were taken after Rivera was charged
with the current offense, and therefore did not suggest that he had been in
custody previously. Accordingly, the admission of these photographs was
not error, let alone fundamental error resulting in prejudice. See State v.
Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 115 P.3d 601, 607 (2005).

¶14            Second, Rivera’s pro se supplemental brief argues ineffective
assistance of trial counsel. Such a claim, however, can only be raised in post-
conviction proceedings and not on direct appeal. State ex rel Thomas v. Rayes,
214 Ariz. 411, 415 ¶ 20, 153 P.3d 1040, 1044 (2007).

¶15           Finally, Rivera was given 540 days of presentence
incarceration credit. However, he was arrested in California for the murder
charge here on April 4, 2012 and extradited to Arizona on April 19, 2012
and held in custody continuously. After being given a continuance, he was
sentenced on November 15, 2013. Therefore, Rivera is entitled to 590 days


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                              STATE v. RIVERA
                             Decision of the Court

of presentence incarceration credit, reflecting the time from his arrest in
California to his sentencing, and the judgment is modified accordingly. See
A.R.S. § 13-712(B).

                                CONCLUSION

¶16            This court has read and considered counsel’s brief and
Rivera’s pro se supplemental brief, and has searched the record provided
for reversible error and has found none. State v. Leon, 104 Ariz. 297, 300, 451
P.2d 878, 881 (1969); State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App.
1999). Accordingly, Rivera’s conviction and resulting sentence are affirmed
as modified.

¶17            Upon filing of this decision, defense counsel is directed to
inform Rivera of the status of his appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154,
156–57 (1984). Rivera shall have 30 days from the date of this decision to
proceed, if he desires, with a pro se motion for reconsideration or petition
for review.




                                   :ama




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