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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   NIROBIA GOODE BRACY, Appellant.

                             No. 1 CA-CR 17-0024
                               FILED 2-6-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-450758-001
             The Honorable Alfred M. Fenzel, Judge, Retired

                        AFFIRMED AS MODIFIED


                                   COUNSEL

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

The Poster Law Firm, PLLC, Phoenix
By Rick Poster
Counsel for Appellant

Nirobia Goode Bracy, Globe,
Appellant
                            STATE v. BRACY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Chief Judge Samuel A. Thumma
joined.


B R O W N, Judge:

¶1            Nirobia G. Bracy appeals his conviction and sentence for
attempted misconduct involving weapons. Bracy’s counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), advising that after searching the record on appeal, he
found no meritorious grounds for reversal. Bracy was given the
opportunity to file a supplemental brief in propria persona, and he has done
so.

¶2              Our obligation is to review the entire record for reversible
error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the
facts in the light most favorable to sustaining the conviction and resolve all
reasonable inferences against Bracy. State v. Guerra, 161 Ariz. 289, 293
(1989). Finding no reversible error, we affirm the conviction and sentence,
as modified.

             FACTS AND PROCEDURAL BACKGROUND

¶3            In October 2013, Bracy was charged with misconduct
involving weapons, a class 4 felony, in violation of Arizona Revised Statutes
(“A.R.S.”) section 13-3102(A)(4). The following evidence was presented at
trial.

¶4             Bracy, a convicted felon who has not had his right to possess
a gun restored, entered a gun store along with two women, Kelly Woods
and Lorie Cheatham. Unbeknownst to them, Detective Fulton, an off-duty
officer, was also in the store that day.

¶5            As reflected in a surveillance video, the store manager
removed a handgun from the display case and set it on the counter in front
of Bracy and the two women. Bracy picked up a pistol for about 10 seconds
and asked Cheatham, “is this the gun?” The manager understood the gun
would be for Cheatham, and had her pick it up to ensure it was the right fit.
Bracy offered to buy the gun for Cheatham, but the manager informed


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                             STATE v. BRACY
                            Decision of the Court

Bracy that would be a “straw purchase” and therefore illegal. Bracy,
Cheatham, and Woods then left the store, suggesting they would “just go
to the bank and get the money.”

¶6            While outside the store, Bracy gave Cheatham the money and
told her to purchase the gun. Bracy also provided Cheatham with fake
identification to complete the sale. The two women re-entered the store,
indicating they now had the money to pay for the firearm. Cheatham
indicated she wanted to buy the gun and the assistant manager provided
her a purchase form. At that point, Detective Fulton notified other officers
he believed a “straw buy” was occurring.

¶7            In filling out the purchase form, Woods tried to assist
Cheatham even though the assistant manager told Woods several times she
was not allowed to help Cheatham fill out the form. Meanwhile, Bracy was
still outside the store, using binoculars to look down the street. He
eventually re-entered the store holding the binoculars, and used them to
look through the store’s front windows.

¶8            When Cheatham finished the form, she handed it to the
assistant manager, together with the fake identification, which did not
match her weight and height. The manager then alerted Detective Fulton
that a fake identification card was being used, and Fulton asked the
manager to delay the transaction. The manager told Bracy and the two
women the sale was delayed and the store would hold the gun until the
issue was resolved. The three left the store and were then detained by
police. When asked for identification, Cheatham provided the fake
identification card.

¶9             At trial, Bracy moved for a judgment of acquittal, arguing the
State had failed to present substantial evidence to support a finding of guilt.
The superior court denied the motion. Bracy also requested a jury
instruction that defined control and moved in limine to exclude evidence
that Bracy constructively possessed the gun with the manager of the gun
store. The court denied both requests, but granted Bracy’s subsequent
request to give the jury a lesser-included instruction on attempted
misconduct involving weapons.

¶10           The jury found Bracy guilty of attempted misconduct
involving weapons. Bracy moved for a new trial but withdrew the motion
before sentencing. After Bracy’s counsel stipulated to two historical felony
convictions, the superior court sentenced Bracy to prison for three years,
with 145 days of presentence incarceration credit. Bracy timely appealed.



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                               DISCUSSION

¶11           In his supplemental brief, Bracy first argues the superior court
erred in denying his motion in limine to preclude the State from arguing
Bracy was in constructive possession of the handgun together with the store
manager. This issue is irrelevant on appeal, as Bracy was convicted of
attempted misconduct involving weapons, meaning the jury never found
he was in possession of a firearm. Bracy similarly argues the court erred
as a matter of law by refusing to provide his requested jury instruction on
the definition of “control.” Again, we need not address this issue because
the question of control of the weapon is unrelated to attempted misconduct
involving weapons.

¶12           Bracy next argues the superior court erred by denying his
motion in limine to preclude the State from offering testimony concerning
straw purchases. Bracy argued such information violated Arizona Rules of
Evidence 401 and 403 because it was speculative and not relevant to
whether he possessed a firearm. “We review a trial court’s ruling on a
motion in limine for an abuse of discretion.” State v. Gamez, 227 Ariz. 445,
449, ¶ 25 (App. 2011). Evidence of an attempted straw purchase was
relevant to showBracy’s intent to possess a firearm, which was directly
related to the lesser-included offense of attempted misconduct involving
weapons because it was proof of intent to possess a firearm. Further, the
evidence was neither unfairly prejudicial nor misleading. Accordingly, the
court did not abuse its discretion by denying the motion in limine.

¶13           Bracy also argues the superior court erred by incorrectly
stating he was convicted of a class 4 felony instead of a class 5 felony. A
violation of A.R.S. § 13-3102(A)(4) constitutes a class 4 felony. A.R.S. § 13-
3102(M). Attempt of a class 4 felony, however, is a class 5 felony. A.R.S. §
13-1001(C)(4). Thus, we modify Bracy’s sentence to reflect that Bracy was
convicted of attempted misconduct involving weapons, a class 5 felony. See
A.R.S. § 13-4037(A).

¶14              Finally, we note that an error occurred when the superior
court accepted a stipulation from Bracy’s counsel regarding Bracy’s
historical felony convictions. When accepting a defendant’s stipulation to
a prior conviction, the superior court is required to conduct a colloquy to
ensure the stipulation is made intelligently and voluntarily. See Ariz. R.
Crim. P. 17.6; State v. Young, 230 Ariz. 265, 268, ¶ 8 (App. 2012). Here, at the
outset of the sentencing hearing the court asked whether the parties were
prepared to stipulate that Bracy has two historical felony convictions, as
listed in the criminal history. Bracy’s counsel answered affirmatively and


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                            Decision of the Court

then briefly described the convictions. The court asked Bracy if he wanted
to proceed without a hearing, at which the State would be required to call
witnesses to testify that Bracy committed both of the alleged historical
felony convictions his counsel referenced. Bracy confirmed that he was
waiving his right to a hearing and the court proceeded with sentencing.

¶15           Although the superior court confirmed that Bracy indicated
his desire to waive the right to a hearing, the court did not conduct the full
colloquy required under Rule 17.2. However, because Bracy failed to object
to the presentence report, which included his criminal history showing both
prior historical convictions, he cannot establish prejudice. See State v.
Gonzales, 233 Ariz. 455, 458, ¶ 11 (App. 2013) (holding that “an unobjected-
to presentence report showing a prior conviction to which the defendant
stipulated without the benefit of a Rule 17.6 colloquy conclusively
precludes prejudice and a remand under [State v. Morales, 215 Ariz. 59
(2007)].”). Thus, no reversible error occurred.

                              CONCLUSION

¶16           After a thorough review of the record, except for the
sentencing error, supra ¶ 13, we find no reversible error. Clark, 196 Ariz. at
541, ¶ 50. The record reflects Bracy was represented by counsel at all stages
of the proceedings against him. Bracy was present at all critical stages. The
evidence presented supports the conviction and the sentence imposed falls
within the range permitted by law.1 As far as the record reveals, these
proceedings were conducted in compliance with Bracy’s constitutional and
statutory rights and the Arizona Rules of Criminal Procedure. Therefore,
we affirm Bracy’s conviction and the resulting sentence as modified.

¶17            Defense counsel’s obligations pertaining to Bracy’s
representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582,
584 (1984). Counsel need do no more than inform Bracy 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. Id. at 584-85. On the court’s own motion, Bracy has 30


1     The court awarded Bracy 145 days of presentence incarceration credit
but he was entitled to only 144 days. The State did not cross-appeal the
court’s calculation and thus we have no authority to correct it. State v.
Dawson, 164 Ariz. 278, 286 (1990) (“In the absence of a timely appeal or
cross-appeal by the state seeking to correct an illegally lenient sentence, an
appellate court has no subject matter jurisdiction to consider that issue.”).



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                            STATE v. BRACY
                           Decision of the Court

days from the date of this decision to proceed, if he wishes, with a pro per
motion for reconsideration. Bracy 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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