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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                LAWRENCE ANDREW TRACY, Appellant.

                             No. 1 CA-CR 16-0370
                               FILED 5-11-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-150215-001
              The Honorable Christopher A. Coury, Judge

                                  AFFIRMED


                                   COUNSEL

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

Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
                            STATE v. TRACY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.


B E E N E, Judge:

¶1            This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969)
following Lawrence Andrew Tracy Jr.’s (“Tracy”) conviction for third-
degree burglary. Tracy’s counsel searched the record on appeal and
found no arguable question of law that is not frivolous. State v. Clark, 196
Ariz. 530 (App. 1999). Tracy was given the opportunity to file a
supplemental brief in propria persona but did not do so. Counsel now asks
this Court to search the record for fundamental error. After reviewing the
entire record, we affirm Tracy’s conviction and sentence.

                FACTS AND PROCEDURAL HISTORY1

¶2            On October 29, 2015, Tracy entered a convenience store with
a black tote bag. Tracy went behind the cash register and stole
approximately $260 worth of cigarettes and alcohol, placing the stolen
items in the tote bag. Tracy exited the convenience store and sprinted to a
van, which sped away from the convenience store. Police officers
observed Tracy and followed the van. Police stopped the van, and
detained Tracy.

¶3            Several minutes after detaining Tracy, officers received a 9-1-
1 dispatch informing them of a crime at the convenience store. Police
emptied the contents of the tote bag and found the stolen cigarettes and
alcohol. Police detained Tracy until another officer arrived with a witness,
who positively identified Tracy as the perpetrator in a one-on-one
identification. Police arrested Tracy, and he was subsequently charged
with third-degree burglary.



1      We view the facts in the light most favorable to upholding the
jury’s verdict and resolve all inferences against Tracy. See State v. Fontes,
195 Ariz. 229, 230, ¶ 2 (App. 1998).



                                     2
                           STATE v. TRACY
                          Decision of the Court

¶4            Tracy proceeded to trial, and was found guilty. Based on
historical priors, Tracy was sentenced to eight years’ incarceration with
204 days of presentence incarceration credit. Tracy timely appealed his
conviction. We have jurisdiction pursuant to Article 6, Section 9 of the
Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) sections
12–120.21(A)(1) (2017), 13–4031 (2017) and 13–4033(A)(1) (2017).2

                             DISCUSSION

¶5            The record reflects no fundamental error in pretrial
proceedings.     Tracy rejected the State’s plea offer after a Donald
advisement, and his case proceeded to trial. State v. Donald, 198 Ariz. 406
(App. 2000). The superior court held an appropriate pretrial hearing on
Tracy’s prior felony convictions and how they were to be referred to at
trial pursuant to Rule 609 of the Arizona Rules of Evidence.

¶6           The record also reflects Tracy received a fair trial. He was
represented by counsel at all stages of the proceeding against him and was
present at all critical stages. The superior court did not conduct a
voluntariness hearing; however, voluntariness of Tracy’s statements to
police were not raised by counsel nor did the evidence at trial suggest
Tracy’s statements were involuntary. State v. Fassler, 103 Ariz. 511, 513
(1968).

¶7             The State presented direct and circumstantial evidence
sufficient for a reasonable jury to convict Tracy. Tracy’s counsel admitted
that Tracy stole the items from the convenience store, only arguing that
Tracy is guilty of shoplifting, not third-degree burglary. However, the
State presented testimony and evidence showing Tracy entered the area
behind the cash register, an area he was not authorized to enter. A.R.S. §
13-1506(A)(1) (2017).

¶8           The jury was properly comprised of eight members with two
alternates.3  The superior court properly instructed the jury on the
elements of the charge. The key instructions concerning burden of proof,


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

3    Juror 3 was excused on the last day of trial because of an
emergency, and the trial proceeded with one alternate juror.




                                    3
                            STATE v. TRACY
                           Decision of the Court

presumption of innocence, reasonable doubt, and the necessity of a
unanimous verdict were also properly administered. The jury returned a
unanimous verdict. The superior court received a presentence report,
accounted for mitigating factors, and properly sentenced Tracy to a
mitigated term of eight years in prison.

                               CONCLUSION

¶9           We reviewed the entire record for reversible error and find
none; therefore, we affirm the conviction and resulting sentence.

¶10            After the filing of this decision, defense counsel’s obligation
pertaining to Tracy’s representation in this appeal will end. Defense
counsel need do no more than inform Tracy of the outcome of this appeal
and his future options, 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 (1984). On the Court’s
own motion, Tracy has 30 days from the date of this decision to proceed, if
he wishes, with a pro per motion for reconsideration. Further, Tracy 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




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