                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 JAMES STANLEY BUECHLER, Appellant.

                             No. 1 CA-CR 13-0440
                              FILED 05-27-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-159831-001
               The Honorable Karen L. O’Connor, Judge

                                  AFFIRMED


                                   COUNSEL

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

Ballecer & Segal, LLP, Phoenix
By Natalee E. Segal
Counsel for Appellant
                           STATE v. BUECHLER
                           Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.


J O N E S, Judge:

¶1            Defendant James Stanley Buechler timely appeals his
conviction and sentence for aggravated assault. Buechler’s defense
counsel attests to having searched the record on appeal and found no
arguable question of law that was not frivolous. In accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451
P.2d 878 (1969), defense counsel requests this Court search the record for
fundamental error. Buechler was given the opportunity to file a
supplemental brief, in propria persona, and has elected not to do so.
Although his defense counsel found no issue for appeal, Buechler has
requested his defense counsel raise several issues for our review. After
reviewing the record, we find no error and therefore affirm Buechler’s
conviction and sentence.

                                Background 1

¶2            The victim was a patron of a bar during the early morning
hours of July 30, 2011, when Buechler entered noticeably loud and
apparently irate. After placing his bicycle in the bar, Buechler yelled for a
beer. In an attempt to calm Buechler, the victim gave Buechler a beer
contained in a dark glass bottle. When the bartender expressed
disapproval of Buechler having the beer, Buechler attempted to go over
the bar, while the victim tried to retrieve the beer from Buechler. Another
patron intervened and physically escorted Buechler out of the bar, and
locked the door with Buechler still in possession of the bottle of beer.
Shortly thereafter, the victim unlocked the door and placed Buechler’s
bicycle outside. Several minutes later, the victim exited the bar to go

1We review the facts in the light most favorable to upholding Buechler’s
conviction and resolve all reasonable inferences against him. State v. Cox,
214 Ariz. 518, 519, ¶ 2, 155 P.3d 357, 358 (App. 2007) (citing State v. Stroud,
209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005)).



                                       2
                          STATE v. BUECHLER
                          Decision of the Court

home. As the victim walked home, he heard a loud crash and was struck
on the back of the head. He fell to the ground unconscious for what he
perceived to be several seconds. When the victim awoke, he saw Buechler
laughing on a bicycle underneath a street light. The victim continued
home, felt blood running down his neck from a head wound, and noticed
glass in his hair from what he perceived to be a beer bottle. Once home,
he called 911.

¶3            The Maricopa County Attorney’s Office charged Buechler
with aggravated assault, a class 3 dangerous felony, and alleged Buechler,
“using a beer bottle, a deadly weapon or dangerous instrument,
intentionally, knowingly or recklessly caused physical injury” to the
victim. Ariz. Rev. Stat. (A.R.S.) § 13-1204 (A)(2) (2014).

¶4            Following a six day trial, Buechler was convicted of the
charged offense. At the sentencing hearing, Buechler admitted he had two
prior felony convictions. Accordingly, Buechler received a slightly
aggravated sentence of eight years’ imprisonment, with presentence
incarceration credit of 28 days.

                                Discussion

¶5            After a diligent search of the entire record, Buechler’s
counsel has advised she found no arguable question of law. We have fully
reviewed the record for reversible error, and find none. See Leon, 108 Ariz.
at 300, 451 P.2d at 881. However, Buechler asks that we review ten issues
for fundamental error. The substance of Buechler’s issues on appeal
pertains to the sufficiency of the evidence necessary for a conviction of
aggravated assault.

¶6           Under the facts of this case, to convict Buechler of
aggravated assault, the State was required to prove he committed an
assault pursuant to A.R.S. § 13-1203, and that he did so using a deadly
weapon or dangerous instrument. A.R.S. § 13-1204(A)(2).

¶7            We construe several of Buechler’s issues on appeal to
challenge the sufficiency of the evidence required to illustrate the
elements of A.R.S. § 13-1203 and -1204(A)(2). In determining whether
sufficient evidence exists, we view the facts in the light most favorable to
sustaining the jury’s verdict. State v. Bearup, 221 Ariz. 163, 167, ¶ 16, 211
P.3d 684, 688 (2009). “We review the sufficiency of evidence presented at
trial only to determine if substantial evidence exists to support the jury
verdict.” State v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005).
Evidence is sufficient when it is greater “than a mere scintilla” and is such


                                     3
                           STATE v. BUECHLER
                           Decision of the Court

proof as could convince reasonable persons of a defendant’s guilt beyond
a reasonable doubt. Id. at 412-13, ¶ 6, 103 P.3d 912-13 (internal quotation
marks omitted).      The substantial evidence required to warrant a
conviction may be either direct or circumstantial. State v. Mosley, 119 Ariz.
393, 402, 581 P.2d 238, 247 (1978).

¶8             We conclude substantial evidence supports the jury’s verdict
finding Buechler guilty of aggravated assault. In this case, the victim
testified he had given Buechler a bottle of beer at the bar. A patron further
testified Buechler had a bottle of beer in his hand at the time he was
expelled from the bar. Both the victim and patron testified the bottle
containing the beer was dark in color. After the victim was assaulted and
regained consciousness, he identified Buechler as the person under the
street light. In addition to the shards of glass the victim found in his hair,
a photo of the crime scene admitted at trial showed several pieces of dark
colored glass located on the sidewalk where the victim was assaulted. As
circumstantial and direct evidence are intrinsically similar, we find
sufficient evidence existed to convict Buechler of aggravated assault. State
v. Borquez, 232 Ariz. 484, 487, ¶ 11, 307 P.3d 51, 54 (App. 2013) (“And in
reviewing the sufficiency of the evidence, we do not distinguish
circumstantial from direct evidence.”).

¶9             We next turn to Buechler’s contention a witness gave false
testimony “because [the witness] assaulted appellant and didn’t want to
be charged.” Issues related to witness credibility, however, are for the jury
and not for this Court to decide. State v. Canez, 202 Ariz. 133, 149, ¶ 39, 42
P.3d 564, 580 (2002) (“[T]he credibility of witnesses is a matter for the
jury.”). In addition, it is the jury’s “prerogative to assess the weight of
[the] evidence.” State v. Forde, 233 Ariz. 543, 561, 315 P.3d 1200, 1218
(2014). In the case under review, the jury determined Buechler guilty of
aggravated assault regardless of the measure of credibility the jury
attributed to the witness or the weight it ascribed to his testimony.

¶10           Buechler also asserts he was “forced to sit with the jury in
front of the courtroom before trial for two days.” We construe Buechler’s
contention to indicate fundamental error prejudiced the outcome of his
case and denied Buechler a fair trial. State v. Gendron, 168 Ariz. 153, 155,
812 P.2d 626, 628 (1991) (holding error qualifies as fundamental when it is
“clear, egregious and curable only via a new trial”). Upon review of the
record in this regard, we find insufficient evidence upon which a claim of
error might be based. The record indicates Buechler possibly waited in
the hallway outside the court as the jurors came to court the first day.
There is no indication in the record of communication occurring between


                                      4
                           STATE v. BUECHLER
                           Decision of the Court

Buechler and the jury panel members and, ultimately, no indication that
Buechler’s proximity to the jury panel members was in any fashion
negatively perceived by the jurors or reflected in their ultimate judgment.
Therefore, our review of the record finds no error occurred, fundamental
or otherwise, and that Buechler received a fair trial.

¶11             Lastly, Buechler challenges whether a witness who allegedly
refused to give a statement to a detective is permitted to testify at trial. It
is often the case that witnesses who are not listed in the police report later
testify at trial. It is not whether a witness gives a statement to police that
is significant, but whether the witness was disclosed to the defendant
prior to trial so he was thereby advised the witness would be testifying,
affording the defendant the opportunity to properly prepare. See Ariz. R.
Crim. P. 15.1(b)(1).

¶12           As Buechler has not presented any issue warranting further
appellate review, and our own review of the record finds sufficient
evidence upon which the jury could find Buechler guilty of aggravated
assault, we affirm Buechler’s conviction and sentence.

¶13            After the filing of this decision, defense counsel is no longer
obligated to represent Buechler in this appeal. Defense counsel need do
no more than inform Buechler of the outcome of this appeal and his future
options, unless upon review, defense counsel finds 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).

¶14          Buechler has thirty days from the date of this decision to
proceed with an in propria persona petition for review, if he so chooses. See
Ariz. R. Crim. P. 31.19(a). Upon our own motion, we also grant Buechler
thirty days from the date of this decision to file an in propria persona
motion for reconsideration.

                                 Conclusion

¶15           We affirm Buechler’s conviction and sentence.




                                     :gsh




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