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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                BURL LAWRENCE ROBINSON, Appellant.

                             No. 1 CA-CR 14-0783
                               FILED 10-01-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-112393-001
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Legal Advocate’s Office, Phoenix
By Colin F. Stearns
Counsel for Appellant
                            STATE v. ROBINSON
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.


P O R T L E Y, 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
Burl Lawrence Robinson has advised us that after searching the entire
record he has been unable to discover any arguable questions of law, and
has filed a brief requesting us to conduct an Anders review of the record.
Robinson did not take the opportunity to file a supplemental brief.

                                   FACTS1

¶2           Two women were standing in a front yard on March 2, 2012,
when they saw a gold-colored pickup truck driving slowly down the street.
One, A.T., noticed that the driver’s head was tilted forward and his eyes
were closed. She watched the truck crash into her husband’s parked pickup
truck. Fearing that the driver, who was later identified as Robinson, had
experienced a heart attack, the two witnesses went to help. The two
women, with others, approached the truck and someone opened the door
and tried to wake Robinson, who appeared to be sleeping. When he did
not respond, someone called 9-1-1.

¶3           When Robinson finally woke up, he stood next to the driver’s
door, was unresponsive, and stared into the distance for several minutes.
He then began acting erratically, jumping in and out of the bed of the
pickup truck, and running around. He pointed at vehicles driving by
saying, “I got you,” or “You guys can’t catch me,” before trying to run
away.

¶4            When the Phoenix Fire Department arrived, Robinson ran in
front of the fire truck, attempting to stop it. He was uncooperative and
unwilling to allow emergency personnel to assess him for injuries. Fearing

1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).


                                       2
                           STATE v. ROBINSON
                           Decision of the Court

that Robinson would get injured in traffic, Captain Caskey submitted an
emergency request for police assistance. Officers Miller and Francetic
responded, and were able to identify Robinson when he provided his
Arizona identification card. A subsequent records check revealed that
Robinson’s driver’s license had been suspended.

¶5             Officer Francetic noticed that Robinson had a glazed look on
his face, his eyes were bloodshot, and that he was experiencing extreme
mood changes. Robinson, however, told Officer Miller that he had not been
driving the truck, and refused to submit to a field sobriety test. After being
taken to and admitted into the hospital, Robinson’s blood was drawn and
given to the police for testing. The laboratory results revealed that his blood
tested positive for Phencyclidine (“PCP”), a prohibited drug as defined in
Arizona Revised Statutes (“A.R.S.”) section 13-3401 (2014).2

¶6            Robinson was indicted for aggravated driving or actual
physical control of a vehicle while under the influence of alcohol or any
drug while his privilege of driving was suspended, cancelled or revoked, a
class 4 felony, and with aggravated driving or actual physical control of a
vehicle while there was any drug defined in Arizona law in his body while
his driver’s license or privilege to drive was suspended, cancelled, or
revoked, a class four felony. He pled not guilty, and subsequently was
evaluated pursuant to Arizona Rule of Criminal Procedure (“Rule”) 11 to
determine whether he was competent to stand trial. After he was
determined to be competent, the case proceeded to trial.

¶7             In addition to Captain Caskey, the police officers, and the two
witnesses to the slow-speed accident, the jury heard from Gayle Swanson,
a forensic scientist, about the results of Robinson’s blood test and the impact
of PCP on the body, including impairing the mental process, speech, and
vision, and causing delusions and hallucinations. The jury also heard
testimony from an investigator from the Motor Vehicle Department that
Robinson’s driving privileges had been suspended and had not been
reinstated by the time of the accident. After the State rested, Robinson
unsuccessfully moved for a Rule 20 judgment of acquittal.

¶8           After the defense rested, the jury was instructed and heard
closing arguments, and found Robinson guilty on both counts. The case
moved to an aggravation hearing, and after the presentation of evidence


2We cite the current version of the applicable statutes unless otherwise
noted.


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                            STATE v. ROBINSON
                            Decision of the Court

and arguments, the jury found that Robinson had been on pretrial release
in CR 2011-006914 at the time of the offense.

¶9             Before sentencing, Robinson asked for a Rule 26.5 mental
health examination. The court granted the request, and Dr. Drake
evaluated Robinson and provided the court with a mental health evaluation
to assist with sentencing. At sentencing, the court considered Robinson’s
five historical felony convictions, the mental health evaluation, and the fact
that he had been on a pretrial services release when he committed the
offenses. The court also considered Robinson’s expressed remorse for his
actions and that his family needed his support. Robinson was then
sentenced to prison for twelve years, and was given credit for 461 days of
presentence incarceration on both counts.

¶10           We have jurisdiction over this appeal pursuant to Article 6,
Section 9, of the Arizona Constitution, and A.R.S §§ 12-120.21(A)(1), 13-
4031, and -4033(A)(1).

                                DISCUSSION

¶11            We have read and considered counsel’s brief and have
searched the entire record for reversible error. We find none. See Leon, 104
Ariz. at 300, 451 P.2d at 881.

¶12          We note, however, that during the closing rebuttal argument,
the prosecutor stated:

              Now, you’ve been told in the jury instructions,
              and Miss Cheatham has pointed out to you, and
              I would wholeheartedly agree, the defendant
              has no obligation to produce testimony, but
              when something has been presented to you
              there has to — and there’s an alternative
              explanation, if I was a defendant, I’d try to explain
              why I was there.

(Emphasis added.) Defense counsel immediately objected to the statement,
but the court overruled the objection.

¶13           Both the United States Constitution and the Arizona
Constitution prohibit a prosecutor from stating or implying that a
defendant’s failure to testify “supports an inference of guilt.” U.S. Const.



                                       4
                             STATE v. ROBINSON
                             Decision of the Court

amend. V; Ariz. Const. art. 2, § 10; see A.R.S. § 13–117(B). Because the
defense objected to the prosecutor’s argument, we review for harmless
error. See State v. Valverde, 220 Ariz. 582, 585, ¶ 11, 208 P.3d 233, 236 (2009)
(citing State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005)).
As a result, our “inquiry . . . is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely unattributable
to the error.” State v. Anthony, 218 Ariz. 439, 446, ¶ 39, 189 P.3d 366, 373
(2008) (quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)).
Moreover, we review the statement in its context and whether the jury
would naturally and necessarily perceive it to be a comment on the
defendant’s failure to testify. See, e.g., State v. Ramos, 235 Ariz. 230, 235,
¶ 13, 330 P.3d 987, 992 (App. 2014).

¶14            Even if we assume that the court erred by failing to sustain
the objection and give an appropriate limiting instruction (the defense is
not required to produce any evidence because the burden of proof never
shifts from the State to prove its case beyond a reasonable doubt, as well as
the fact that the defendant does not have to testify), the error was harmless
because there was overwhelming evidence of Robinson’s guilt. See Bible,
175 Ariz. at 588, 858 P.2d at 1191 (“Error, be it constitutional or otherwise,
is harmless if we can say beyond, a reasonable doubt, that the error did not
contribute to or affect the verdict.”); see also State v. Scarborough, 110 Ariz. 1,
5, 514 P.2d 997, 1001 (1973) (noting that a prosecutor’s reference to the
defendant’s failure to exculpate himself was harmless error because the
State had provided overwhelming evidence of the defendant’s guilt).

¶15           The State presented unequivocal evidence that Robinson was
guilty of both counts beyond a reasonable doubt, independent of the
prosecutor’s statement during his closing rebuttal argument. In addition to
the two witnesses who watched Robinson’s slow-speed accident and placed
him behind the wheel and in control of the vehicle, the jury heard from
Captain Caskey and the police officers who observed Robinson’s conduct
at the scene, and from the forensic scientist who discovered PCP in
Robinson’s blood and explained the impact of PCP on the human body.
The evidence, as a result, supports the guilty verdicts beyond a reasonable
doubt. Consequently, the errant statement by the prosecutor, though
inappropriate, was harmless.

¶16           We have read and considered the opening brief and have
searched the entire record for reversible error. We find none. See Leon, 104
Ariz. at 300, 451 P.2d at 881. Robinson was represented by counsel at all



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                           STATE v. ROBINSON
                           Decision of the Court

stages of the proceedings, and the concurrent sentences imposed were
within the statutory limits.

¶17           After this decision is filed, counsel’s obligation to represent
Robinson in this appeal has ended. Counsel must only inform Robinson of
the status of the appeal and Robinson’s future options, unless counsel
identifies an issue appropriate for submission to the Arizona Supreme
Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684
P.2d 154, 156-57 (1984). Robinson may, if desired, file a motion for
reconsideration or petition for review pursuant to the Arizona Rules of
Criminal Procedure.

                              CONCLUSION

¶18           Accordingly,    we    affirm   Robinson’s   convictions    and
sentences.




                                   :ama




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