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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 JAMES MARTIN JORGENSEN, Appellant.

                             No. 1 CA-CR 16-0117
                               FILED 4-18-2017

           Appeal from the Superior Court in Coconino County
                         No. S0300CR201400399
                 The Honorable Mark R. Moran, Judge

                                  AFFIRMED


                                   COUNSEL

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

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                           STATE v. JORGENSEN
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Margaret H. Downie, and Kent E. Cattani joined.


K E S S L E R, Judge:

¶1            James Martin Jorgensen (“Jorgensen”) was tried and
convicted of Second Degree Murder, a class 1 felony. Counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark,
196 Ariz. 530 (App. 1999). Finding no arguable issues to raise, counsel
requests that this Court search the record for fundamental error. See State
v. Richardson, 175 Ariz. 336, 339 (App. 1993). Jorgensen was given the
opportunity to, but did not file a supplemental brief.1 After reviewing the
entire record, we affirm Jorgensen’s conviction and sentence.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Jorgensen and the victim, J.W. (“Victim”), were cousins from
a very close family. The Victim made a comment to Jorgensen’s girlfriend
about having kids with her. This made the girlfriend uncomfortable and
Jorgensen angry. Jorgensen and the girlfriend left after the comment was
made. Jorgensen continued to be angry about the comment in the weeks
following.

¶3            Several weeks later, members of the large extended family
gathered to play softball at a local park. Both Jorgensen and the Victim were
at the gathering and got along without issue. Jorgensen’s girlfriend was not
present at the gathering. That night or early the next morning, while
Jorgensen was parked in front of his grandmother’s house, the Victim
pulled up in another car. Jorgensen and the Victim got out of their
respective cars and began a conversation. Jorgensen asked the Victim to
apologize to the girlfriend for the comment that was made a few weeks


1       Jorgensen did file a notice concerning whether his attorney on
appeal had a conflict of interest based on a conversation over a possible plea
offer. We interpret the notice as raising an issue of ineffective assistance of
counsel. Claims of ineffective assistance of counsel cannot be considered
on direct appeal, but only through a Rule 32 petition for post-conviction
relief. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).


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                          STATE v. JORGENSEN
                           Decision of the Court

prior. The Victim refused and a physical altercation erupted. The fight was
broken up by other family members and the Victim was instructed to leave
and Jorgensen was told to go inside and sleep it off. The Victim left and
drove to his aunt’s home. Just before arriving at the aunt’s house, the Victim
noticed that Jorgensen was following him. When the cars arrived at the
aunt’s house, both men got out of their respective vehicles and began
physically fighting again. The fight was once again broken up by family
members and Jorgensen left.

¶4            Jorgensen then drove back to his grandmother’s home, got a
knife, and returned to the aunt’s house where the Victim was sitting
outside. Jorgensen got out of his car, approached the Victim, and stabbed
him four times. Jorgensen and the Victim continued to verbally fight until
the family told Jorgensen to leave, which he did. Shortly after Jorgensen left
the Victim collapsed. He was taken to the hospital by family members
where he later died due to the stab wounds.

¶5           Jorgensen was apprehended the following morning.
Jorgensen was found sleeping in the back of his car. The knife used to kill
the Victim was found in the car, and the shirt Jorgensen was wearing was
covered in blood. Both the knife and the shirt were found to have the
Victim’s DNA on them.

¶6            Jorgensen was indicted for First Degree Murder. After a
seven-day trial, the jury found Jorgensen guilty of the lesser included
offense of Second Degree Murder. Jorgensen then waived his right to have
the jury decide the aggravating factor of emotional harm to the victim’s
family. The court sentenced Jorgensen to an aggravated term of twenty
years with 631 days’ presentence incarceration credit. Jorgensen timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) sections 13-
4031 (2010) and -4033(A)(1) (2010).2

                               DISCUSSION

¶7            In an Anders appeal, because no issues were preserved below,
this Court reviews the entire record for fundamental error. State v. Flores,
227 Ariz. 509, 512, ¶ 12 (App. 2011) (citation omitted). Error is fundamental
when it affects the foundation of the case, deprives the defendant of a right
essential to his defense, or is an error of such weight that the defendant


2      We cite to the current version of statutes unless changes material to
the decision have since occurred.


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                          STATE v. JORGENSEN
                           Decision of the Court

could not possibly have had a fair trial. State v. Henderson, 210 Ariz. 561,
567, ¶ 19 (2005) (citations and quotations omitted). A defendant must also
show the error prejudiced him. Id. at ¶ 20.

I.     Sufficiency of the Evidence

¶8            On review, this Court views the facts in the light most
favorable to sustaining the jury’s verdict and resolves all inferences against
the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998) (citation
and quotation omitted). “Reversible error based on insufficiency of the
evidence occurs only where there is a complete absence of probative facts
to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)).

       A.     Second Degree Murder

¶9            A person commits second degree murder if, without
premeditation, the person (1) intentionally causes the death of another
person; (2) causes the death of another person, knowing that the person’s
conduct will cause death or serious physical injury; or (3) recklessly engages
in conduct that creates a grave risk of death and thereby causes the death
of another person, under circumstances manifesting extreme indifference
to human life. A.R.S. § 13-1104(A)(1)-(3) (2009).

¶10            Here it is unclear whether Jorgensen intended to murder the
Victim. However, evidence shows that he at least wanted to cause serious
physical injury or was extremely indifferent to the Victim’s life. Multiple
witnesses testified that after Jorgensen and the Victim had engaged in two
separate fist fights, Jorgensen drove to the home he was staying at, got a
knife, drove back to where the Victim was, and stabbed him four times.
Additionally, the county medical examiner testified that the Victim died of
multiple stab wounds. The State also admitted photographs from the
autopsy that showed the various stab wounds.

¶11            The arresting officer testified that when they arrested
Jorgensen he had a lot of blood on him, including his skin and clothes. The
officer also testified to finding a knife in the back of Jorgensen’s car when
he was arrested. Photographs of the knife were introduced into evidence.
Additionally, a criminalist from the Arizona Department of Public Safety
Crime Lab testified to testing the knife and clothing for DNA and finding
DNA from the Victim on both items.




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                          STATE v. JORGENSEN
                           Decision of the Court

II.    Sentencing

¶12           Jorgensen was sentenced to an aggravated term of twenty
years’ imprisonment. Jorgensen admitted to the aggravating factor of
emotional harm to the victim’s family. The superior court found the
following aggravating factors: infliction of serious physical injury over and
above that which caused the victim’s death; use of a deadly weapon or
dangerous instrument; that the defendant took the victim by surprise with
little or no provocation by the victim; the offense was committed in the
presence of a minor; and the offense or acts caused great emotional harm to
the victim’s family. Each of these factors individually can support an
aggravated sentence.

¶13           Jorgensen was arrested on May 21, 2014 and was never
released. He was sentenced on February 11, 2016 and received 631 days of
presentence incarceration credit. Calculations show that Jorgensen was
actually incarcerated for 630 days, so he received an additional day of
presentence incarceration credit. Presentence incarceration credit is given
for time spent in custody beginning on the day of booking, State v. Carnegie,
174 Ariz. 452, 453-54 (App. 1993) (citation omitted), and ending on the day
before sentencing, State v. Hamilton, 153 Ariz. 244, 245 (App. 1987).

¶14            However, we will not correct an “illegally lenient sentence in
the absence of proper appeals or cross-appeals by the state.” State v. Dawson,
164 Ariz. 278, 281-82 (1990). We therefore do not need to correct the
mistake and Jorgensen is entitled to the 631 days credit he was awarded at
sentencing.

                              CONCLUSION

¶15           After careful review of the record, we find no grounds for
reversal of Jorgensen’s conviction or sentence. The proceedings complied
with the Arizona Rules of Criminal Procedure, Jorgensen and his attorney
were present at all critical stages of trial, and Jorgensen was given an
opportunity to speak at sentencing. Further, the evidence supports the
verdict and sentence. We therefore affirm Jorgensen’s conviction and
sentence.




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                          STATE v. JORGENSEN
                           Decision of the Court

¶16           Upon the filing of this decision, counsel shall inform
Jorgensen of the status of the appeal and his 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 (1984). Jorgensen shall
have thirty days from the date of this decision to proceed, if he so desires,
with a pro per motion for reconsideration or petition for review.




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




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