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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     JASON ROBERT O’NEILL, Appellant.

                              No. 1 CA-CR 14-0514
                                FILED 4-16-2015


            Appeal from the Superior Court in Maricopa County
                         No. CR2013-449074-001
                    The Honorable Lisa Andrus, Judge

                                   AFFIRMED


                                    COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant

Jason Robert O’Neill, Florence
Appellant
                             STATE v. O'NEILL
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.


H O W E, Judge:

¶1            This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel
for Jason O’Neill asks this Court to search the record for fundamental error.
O’Neill has filed a supplemental brief in propria persona, which we have
considered. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining
O’Neill’s conviction and resolve all reasonable inferences against him. State
v. Fontes, 195 Ariz. 229, 230 ¶ 2, 986 P.2d 897, 898 (App. 1998).

¶3             Ruben L.1 returned home and saw that his front gate was
propped open with a suitcase. He heard sounds coming from his laundry
room. Ruben opened the door and saw O’Neill holding one of his blue bags.
O’Neill immediately threw the bag into the washing machine. Ruben asked
O’Neill why he was in his house, and O’Neill said that he thought it was an
empty apartment. Ruben then asked how it could be empty when stuff was
everywhere. After arguing, O’Neill walked away and grabbed the suitcase
at the gate, took a bottle out, and drank from it. Ruben called the police and
followed O’Neill into the street, updating the police operator as he walked.

¶4             Soon after, O’Neill sat at a bus stop, and police officers
approached him. Officer Chris Lentine arrived and took charge of the
investigation. He spoke to Ruben, who identified O’Neill as the man who
entered his home. He then spoke to O’Neill. O’Neill said that he needed to
go to urgent care. But Officer Lentine did not observe anything about
O’Neill that prompted the officer to get him medical attention. The officer
looked in O’Neill’s suitcase, but found no “[e]vidence of a crime,” so he
placed it in “safekeeping.”


       We use the victim’s first name to protect his privacy. State v.
       1

Maldonado, 206 Ariz. 339, 341 ¶ 2 n.1, 78 P.3d 1060, 1062 n.1 (App. 2003).


                                      2
                               STATE v. O'NEILL
                              Decision of the Court

¶5            While other officers detained O’Neill at the bus stop, Officer
Lentine drove to Ruben’s condo, which looked “like a residential structure,
like an adobe type style . . . . [with] several units connected together.” In the
laundry room, he saw a washer, dryer, shelves, and miscellaneous items.
Inside the washer was a blue bag that contained power tools and a battery
or charger. On the washer was a drill bit set.

¶6            After examining the scene, Officer Lentine returned to the bus
stop. He read O’Neill his Miranda2 rights, and O’Neill agreed to answer
questions. O’Neill told the officer that he came to Mesa the previous night
because he had a job interview that day. O’Neill explained that he was
going to take the bus, but he did not have money. When asked whether he
had gone into Ruben’s home, he said that he thought it was an urgent care
facility. Once he realized it was a residence, however, he decided to take
the tools. He was going to either pawn or sell them for money.

¶7             O’Neill was arrested and charged with one count of burglary
in the second degree. The State filed four sentencing enhancement
allegations. At trial, Ruben and Officer Lentine testified, and Ruben made
an in-court identification of O’Neill. After the State rested its case-in-chief,
defense counsel moved for judgment of acquittal pursuant to Arizona Rule
of Criminal Procedure 20, arguing that substantial evidence did not exist to
go to the jury. Finding otherwise, the court denied the motion. O’Neill did
not testify. The jury found O’Neill guilty as charged.

¶8           The trial court conducted the sentencing hearing in
compliance with O’Neill’s constitutional rights and Arizona Rule of
Criminal Procedure 26. The court found that the State had shown by clear
and convincing evidence that O’Neill had two allegeable prior convictions.
It sentenced O’Neill to the presumptive 11.25 years’ imprisonment, with
289 days of presentence incarceration credit. O’Neill timely appealed.

                                 DISCUSSION

¶9            Counsel for O’Neill has advised this Court that after a diligent
search of the entire record, he has found no arguable question of law. But
O’Neill has filed a supplemental brief raising 14 issues, which we have
considered. Because O’Neill failed to raise these issues at trial, we review
them only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567
¶¶ 19–20, 115 P.3d 601, 607 (2005).



       2   Miranda v. Arizona, 384 U.S. 436 (1966).


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                             STATE v. O'NEILL
                            Decision of the Court

¶10            O’Neill primarily argues that the evidence was insufficient to
support his conviction because the State presented no physical evidence
linking him to the offense, he did not enter a residence, and he did not have
the requisite intent when he entered. We review de novo the sufficiency of
evidence to support a conviction. State v. West, 226 Ariz. 559, 562 ¶ 15, 250
P.3d 1188, 1191 (2011). Contrary to O’Neill’s argument, the State did not
need to present “physical evidence” linking him to the theft. As the trial
court instructed the jury: “The State must prove guilt beyond a reasonable
doubt based on the evidence. . . . Evidence may be direct or circumstantial.
Direct evidence is the testimony of a witness. . . . Circumstantial evidence
is the proof of a fact or facts from which you may find another fact.”
“Arizona law makes no distinction between circumstantial and direct
evidence.” State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993).

¶11           Sufficient evidence supports O’Neill’s conviction. A person
commits burglary in the second degree by (1) “entering or remaining
unlawfully in or on a residential structure” and (2) “with the intent to
commit any theft or any felony therein.” A.R.S. § 13–1507(A). The record
shows that Ruben’s condo was a residential structure. It also shows that
when Ruben returned home, O’Neill was standing in his laundry room.
Ruben did not know O’Neill, nor did he give him permission to enter his
residence. The record further shows that although O’Neill first thought that
the home was an urgent care facility, after he realized it was a residence, he
decided to stay. Moreover, O’Neill decided to take Ruben’s tools and pawn
them for money—as he told Officer Lentine—thereby developing the
necessary intent. See State v. Altamirano, 166 Ariz. 432, 435, 803 P.2d 425, 428
(App. 1990) (“When a person’s intent in remaining on premises is for the
purpose of committing a theft or some felony therein, such individual is no
more welcome than one who initially entered with such intent.”).
Consequently, sufficient evidence supports O’Neill’s conviction.

¶12            O’Neill next contends that a prospective juror improperly
commented on his decision not to testify by answering defense counsel’s
questions during voir dire about a defendant’s decision not to testify. “To
be constitutionally proscribed, a comment must be adverse; that is, it must
support an unfavorable inference against the defendant and, therefore,
operate as a penalty imposed for exercising a constitutional privilege.” State
v. Ramos, 235 Ariz. 230, 235 ¶ 13, 330 P.3d 987, 992 (App. 2014) (quoting State
v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980)). Contrary to O’Neill’s
contention, the prospective juror did not comment on O’Neill’s decision not
to testify; instead, he was answering defense counsel’s questions about a
hypothetical defendant not testifying. At that point in the trial, the
prospective juror had no knowledge that O’Neill would not testify.


                                       4
                             STATE v. O'NEILL
                            Decision of the Court

¶13           O’Neill also argues that his voluntary intoxication should
have been considered in determining intent and that he was unable to
appreciate the wrongfulness of his action because of the side effects from
his medicines. The jurors in fact did consider his voluntary intoxication due
to alcohol and drugs in determining his mental state. The jury instruction
provided that the jurors “may take into consideration the fact that the
accused was intoxicated at the time [of committing the offense] in
determining the culpable mental state with which he committed the act.”
Intoxication is “any mental or physical incapacity resulting from use of
drugs, toxic vapors or intoxicating liquors.”

¶14            O’Neill further contends that he was prejudiced by admission
of Ruben’s alleged inconsistent statements and of Officer Lentine’s alleged
inconsistent statements and paraphrases of O’Neill’s statements. O’Neill
has not demonstrated how the statements prejudiced his case, however. See
State v. Parker, 22 Ariz. App. 111, 116, 524 P.2d 506, 511 (1974) (providing
that a mere claim of prejudice is not enough to meet a showing of prejudice
requiring reversal). Further, inconsistency and paraphrasing is not
necessarily false or perjured, and witness credibility is for jurors, not the
court, to determine. State v. Williams, 209 Ariz. 228, 231 ¶ 6, 99 P.3d 43, 46
(App. 2004).

¶15           O’Neill also argues that the State violated his rights under
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose exculpatory
evidence. But O’Neill has waived this argument because he does not
identify the evidence the State allegedly withheld, nor does the record
indicate that the State withheld evidence. See State v. Bolton, 182 Ariz. 290,
298, 896 P.2d 830, 838 (1995) (providing that insufficient argument on
appeal waives claim).

¶16            O’Neill next contends that his Miranda rights were violated
during his initial encounter with the officers. See Miranda, 384 U.S. at 436.
But this argument fails because O’Neill was in investigative detention,
which does not implicate Miranda. See Berkemer v. McCarty, 468 U.S. 420,
439–40 (1984) (“The comparatively nonthreatening character of detentions
of this sort explains the absence of any suggestion in our opinions that Terry
stops are subject to the dictates of Miranda.”); State v. Spreitz, 190 Ariz. 129,
143–44, 945 P.2d 1260, 1274–75 (1997) (relying in part on Berkemer to
conclude that investigative traffic stop not subject to Miranda).

¶17          O’Neill further argues that the State failed to introduce
evidence that would have proved him innocent, specifically, that he was
not a “homeless, penniless and a vagabond” and that his suitcase contained


                                       5
                             STATE v. O'NEILL
                            Decision of the Court

evidence to support his interview story. But the State has no obligation to
offer any particular type of evidence at trial. See, e.g., State v. Rhodes, 112
Ariz. 500, 504, 543 P.2d 1129, 1133 (1975) (explaining that the fact that the
“fingerprint people did not attempt to take fingerprints from certain areas
or items” constituted no error).

¶18           O’Neill contends finally that his prior felony convictions were
non-violent, that the trial court should have considered his interview story
in evaluating his pecuniary value, and that Ruben suffered no harm from
his action. We summarily reject these claims because they have no legal
basis or are based on a misapprehension of the applicable law.

¶19           We have read and considered counsel’s brief and fully
reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d
at 881. We find none. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure. So far as the record reveals,
counsel represented O’Neill at all stages of the proceedings, and the
sentences imposed was within the statutory limits. We decline to order
briefing, and we affirm O’Neill’s conviction and sentence.

¶20           Upon the filing of this decision, defense counsel shall inform
O’Neill of the status of his appeal and of his future options. Defense counsel
has no further obligations unless, upon review, counsel finds 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). O’Neill shall have 30 days from the date of this decision to proceed,
if he desires, with a pro per motion for reconsideration or petition for
review.

                              CONCLUSION

¶21           We affirm O’Neill’s conviction and sentence.




                                 :ama




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