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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        GREGORY DEAN, Appellant.

                             No. 1 CA-CR 18-0608
                               FILED 3-19-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-147951-003
                 The Honorable Danielle J. Viola, Judge

                                  AFFIRMED


                                   COUNSEL

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

Paul J. Prato, Phoenix
By Maricopa County Public Defender’s Office
Counsel for Appellant
                             STATE v. DEAN
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

¶1             Gregory Dean appeals his conviction of three counts of
aggravated assault, one count of shoplifting, and one count of resisting
arrest and the resulting sentences. Dean’s counsel filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), certifying that, after a diligent search of the record, he found no
arguable question of law that was not frivolous. Dean was given the
opportunity to file a supplemental brief but did not do so. Counsel asks this
court to search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75
(1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing
the record, we affirm Dean’s convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On October 17, 2017, Dean and his girlfriend went to a
Walmart in Phoenix. A Walmart loss prevention associate testified store
surveillance video showed Dean leaving the store without paying for his
beer. The employee testified Dean took the beer to a self-checkout machine,
pretended to scan the beer, placed it in a shopping bag, and walked out of
the store without paying.

¶3             Officer Alireza Davarzan was working off-duty at Walmart
that night. Davarzan approached Dean in the store parking lot after
Walmart employees told him that Dean was suspected of shoplifting.
Davarzan told Dean he was a police officer investigating a shoplifting
incident and that Dean needed to accompany him to the store’s loss
prevention office. Dean refused, and Davarzan tried to grab his arm. Dean
pulled away from the officer and hit the officer in the face with the beer
bottle, which was still inside the shopping bag. The State also presented
store surveillance video appearing to show Dean hitting Davarzan with the
bag.

¶4          Dean then ran from the parking lot into a nearby amusement
park. Davarzan followed Dean into the amusement park, eventually caught


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                             STATE v. DEAN
                            Decision of the Court

up to him, and attempted to handcuff him. Dean struggled with Davarzan
and the officer was unable to handcuff him. Eventually, another officer
arrived, and Dean was handcuffed and arrested.

¶5             After Davarzan followed Dean into the amusement park,
Officers Zachary Alex and Jeffrey Fisher separately responded to the
incident. By the time Fisher and Alex arrived, Dean was in handcuffs but
not in a patrol car. Dean refused to comply with officers’ requests to stand
up, and eventually Alex and other officers carried Dean to a police Tahoe
and placed him inside the car. They subsequently took Dean out of the car
so that the fire department could check his vitals. After the fire department
examined Dean, he again refused officers’ requests to walk back to the
patrol car. Alex, Fisher, and a third officer picked Dean up and tried to place
him back inside the car. As Alex and Fisher were placing Dean into the car,
Dean kicked both officers. He then head-butted Alex in the chest. Alex
reacted and punched Dean in the face. The officers were then able to get
Dean fully inside the car and he was taken to the police station

¶6           The State charged Dean with one count of aggravated assault,
a class 2 dangerous felony, relating to Dean’s conduct toward Davarzan
(“Count One”); two counts of aggravated assault, a class 5 felony, relating
to Dean’s conduct against Fisher and Alex (“Count Two” and “Count
Three”); one count of shoplifting, a class 1 misdemeanor (“Count Four”);
and one count of resisting arrest, a class 6 felony, again relating to Dean’s
conduct toward Davarzan (“Count Five”).

¶7             A six-day trial was held. Davarzan, Fisher, Alex, two
additional officers who responded, and the Walmart loss prevention
associate testified for the State. At the close of the State’s case, Dean moved
for a judgment of acquittal, which the court denied. Dean’s girlfriend
testified for the defense and stated she went to Walmart that evening with
Dean and witnessed the officers’ interactions with Dean outside the
amusement park. She testified Dean walked peacefully with the officers out
of the amusement park but that after the fire department evaluated Dean,
officers pinned him down and put a zip tie around his ankles. She testified
the officers then picked Dean up, carried him to the police car, and “threw
him on the floor [and] [l]iterally he fell between the passenger seat and the
backseat.” Dean did not present any other witnesses or testimony.

¶8            During closing arguments, Dean moved to strike Juror
Number 12 after another juror told the court Juror Number 12 commented
on the evidence before deliberations began. The court questioned each juror
on the issue. Most jurors denied hearing any comments by another juror


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                            STATE v. DEAN
                           Decision of the Court

about the evidence, but every juror told the court he or she could be fair and
impartial even if they had heard a comment. The court declined to release
Juror Number 12. Ultimately Juror Number 12 was chosen as an alternate
and did not deliberate in this case.

¶9            The jury convicted Dean on all counts. For Count One, the
jury also found the State proved beyond a reasonable doubt that Davarzan
was a peace officer engaged in official duties. After trial but before
sentencing, a juror left a voicemail with the superior court claiming other
jurors made “stipulations about black males in general.” In response, Dean
moved for an extension of time to file a motion for new trial to investigate
the claim of juror misconduct. The superior court deemed the motion a
timely motion for a new trial, and ordered Dean to file additional briefing
“regarding the issue of juror misconduct, if any.” The deadline for filing
additional briefing passed without Dean filing any further briefing, and we
presume the court denied the motion. See State v. Paris-Sheldon, 214 Ariz.
500, 507, ¶ 22 (App. 2007). Dean did not raise the issue on appeal, and we
note that any claims of ineffective assistance of counsel may be raised in a
petition for post-conviction relief under Arizona Rule of Criminal
Procedure 32.1. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).

¶10           At sentencing, Dean admitted to one prior historical felony
conviction. The superior court sentenced Dean to presumptive, concurrent
terms of 10.5 years’ imprisonment on Count One, 2.25 years’ imprisonment
on Counts Two and Three, 302 days’ imprisonment on Count Four, and 1.75
years’ imprisonment on Count 5. In addition to other fees and assessments,
the court ordered Dean to pay restitution in the amount of $2.58 for the
shoplifting charge. The court awarded Dean 302 days’ presentence
incarceration credit. He timely appealed.

                               DISCUSSION

¶11          We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We
find none.

¶12           Dean was present and represented by counsel at all stages of
the proceedings against him. The record reflects the superior court afforded
Dean all his constitutional and statutory rights, and the proceedings were
conducted in accordance with the Arizona Rules of Criminal Procedure.
The court held appropriate pretrial hearings, and the evidence presented at
trial and summarized above was sufficient to support the jury’s verdicts.




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                            STATE v. DEAN
                           Decision of the Court

Dean’s sentences fall within the range prescribed by law, with proper credit
given for presentence incarceration.

                              CONCLUSION

¶13           Dean’s convictions and sentences are affirmed. After the filing
of this decision, defense counsel’s obligations pertaining to Dean’s
representation in this appeal will end after informing Dean of the outcome
of this 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).




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




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