                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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.

                  DARREN MARC GROSSMAN, Appellant.

                              No. 1 CA-CR 13-0071
                               FILED 03/11/2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-155131-001
                The Honorable Peter C. Reinstein, Judge

                                    AFFIRMED


                                    COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Reid
Counsel for Appellant

Darren Marc Grossman, Winslow
Appellant
                           STATE v. GROSSMAN
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the
Court, in which Judge Margaret H. Downie and Judge Jon W. Thompson
joined.


W I N T H R O P, Judge:

¶1            Darren Marc Grossman (“Appellant”) appeals his conviction
on count one, trafficking in stolen property, second degree, a class three
felony, in violation of Arizona Revised Statutes (“A.R.S.”) section 13-
2307(A) (West 2014) 1 and count two, theft of means of transportation, a
class three felony, in violation of A.R.S. § 13-1814(A)(5). Appellant also
challenges his stipulated restitution of $1,380.

¶2             Appellant’s counsel has filed a brief in accordance with
Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738
(1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he
has searched the record on appeal and found no arguable question of law
that is not frivolous. Appellant’s counsel therefore requests that we
review the record for reversible error. See State v. Clark, 196 Ariz. 530, 537,
¶ 30, 2 P.3d 89, 96 (App. 1999). In addition, this court has allowed
Appellant to file a supplemental brief in propria persona, and he has done
so, raising several issues that we address in turn.

¶3           We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1), 13-4031,
and 13-4033(A). Finding no reversible error, we affirm.




1      We cite the current Westlaw version of the applicable constitutional
provisions, statutes, and rules, because no revisions material to this
decision have since occurred.




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                          STATE v. GROSSMAN
                           Decision of the Court

                FACTS AND PROCEDURAL HISTORY 2

¶4            In mid-October 2011, Appellant’s former business partner,
Aaron Chapin, contacted Detective Chris Mensay of the Phoenix Police
Department to report that Appellant was seeking Chapin’s assistance to
sell a car that Chapin suspected was a rental. On October 20, Detective
Mensay conducted surveillance of Appellant and observed Appellant
speeding. At Detective Mensay’s direction, a uniformed officer conducted
an investigatory traffic stop with Appellant predicated on the traffic
violation, and determined that the car was a rental. In the meantime,
Chapin posted an advertisement with photographs of the rental car on
Craigslist and told the police how to find it. The advertisement included
Appellant’s phone number.

¶5             On October 24, an undercover officer contacted Appellant
through the phone number on the advertisement and set up a meeting
regarding the sale of the car. On October 25, the undercover officer,
posing as a potential buyer, and another undercover officer, posing as her
mechanic, met with Appellant to arrange the sale of the car. Appellant
discussed a purchase price with the undercover officer, but Appellant
refused to take a cash down payment when the undercover officer
explained she needed to secure a bank loan for the rest of the purchase
price of the car. Appellant was arrested following this meeting.

¶6            At the May 25, 2012 settlement conference, the trial court, the
State, defense counsel, and Appellant discussed the plea deal offered by
the State: five years on count one, trafficking in stolen property. The
parties also discussed how, if Appellant was found guilty, the three out-
of-state prior convictions alleged by the State could negatively impact
Appellant’s sentence. Appellant rejected this plea deal.

¶7           Following Appellant’s motion to suppress evidence from the
investigatory stop, the trial court held an evidentiary hearing on June 11.
At the hearing, Detective Mensay discussed how he determined Appellant
was speeding by comparing Appellant’s observed speed to Detective
Mensay’s speedometer, in light of the posted speed limit. Detective
Mensay testified that he was not sure if the speedometer in his vehicle was
calibrated. The uniformed officer that conducted the traffic stop also

2      We review the facts in the light most favorable to sustaining the
verdict and resolve all reasonable inferences against Appellant. See State
v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).



                                     3
                          STATE v. GROSSMAN
                           Decision of the Court

testified about her interaction with Appellant. The trial court denied the
motion to suppress evidence from the traffic stop, concluding that
Detective Mensay had reasonable suspicion that the traffic violation
occurred.

¶8             Because the State alleged prior convictions that exposed
Appellant to greater than 30 years of incarceration, the trial court
impaneled a twelve-person jury with two alternates. At trial, Chapin,
Detective Mensay, and other officers involved in the investigation testified
regarding the above facts. The State introduced evidence through the
rental company’s representative that Appellant was not authorized to
drive or sell the vehicle. The rental company representative testified that
there was an outstanding balance of $1,380.03 related to the rental of the
car. The State also introduced videorecorded evidence of the undercover
officers’ meeting with Appellant in which Appellant offered to sell the
rental car. Appellant testified on his own behalf, claiming he never
intended to sell the car. Instead, Appellant testified that he fabricated a
story about selling the car as a ruse to keep Chapin from demanding
payment from previous business transactions. The twelve-person jury
returned a verdict of guilty on each count.

¶9             At the January 11, 2013 sentencing hearing, the State did not
seek to use Appellant’s out-of-state felony convictions because, in the
State’s determination, the out-of-state information packets lacked enough
information to properly connect those convictions to Appellant. Thus, the
trial court did not use those prior convictions as a sentence enhancement.
After review of a presentence investigative report, arguments from
counsel, and a statement from Appellant, the court sentenced Appellant to
the presumptive three-and-a-half years of incarceration on count one,
concurrent with three-and-a-half years of incarceration on count two; the
court also accepted Appellant’s stipulated amount of restitution to the
rental company. Appellant also received 374 days of pre-sentence
incarceration credit. Appellant filed a timely notice of appeal.

                                ANALYSIS

             I.     Challenge to Investigatory Stop

¶10            Appellant challenges the validity of the investigatory traffic
stop. Under the Fourth Amendment to the United States Constitution:
“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated
. . . .” U.S. Const. amend. IV. In Richcreek, the Arizona Supreme Court


                                     4
                           STATE v. GROSSMAN
                            Decision of the Court

summarized the “cases discussing the police power to stop vehicles,
detain, and question persons” to “require[] reasonable suspicion in
connection with a crime that was about to be committed, . . . or was being
committed at the moment of the stop, . . . or had already been committed.”
State v. Richcreek, 187 Ariz. 501, 504-05, 930 P.2d 1304, 1307-08 (1997)
(citations omitted).

¶11            The trial court held an evidentiary hearing to determine
whether the investigatory traffic stop violated the Fourth Amendment. At
the hearing, Detective Mensay testified that, although he did not know if
his car speedometer was calibrated, he determined Appellant was
speeding based on his observations, his speedometer, and the posted
speed limit. The trial court concluded that the traffic stop was permissible
because Detective Mensay had reasonable suspicion that Appellant was
speeding. When reviewing a trial court’s ruling following an evidentiary
hearing, we defer to the judgment of the trial court with respect to its
determinations of the witness’s credibility and the resolution of any
conflicts in the evidence. See State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444,
446 (App. 1988). On this record, we find no error, fundamental or
otherwise, in admitting evidence of the investigatory traffic stop.

              II.    Impaneling a Twelve-Person Jury

¶12           Appellant contends that, because the State could not prove
certain prior felony convictions, the jury panel in this case should have
been less than the twelve actually seated. Under Article 2, Section 23 of
the Arizona Constitution,

       The right of trial by jury shall remain inviolate. Juries in
       criminal cases in which a sentence of death or imprisonment
       for thirty years or more is authorized by law shall consist of
       twelve persons. In all criminal cases the unanimous consent
       of the jurors shall be necessary to render a verdict. In all
       other cases, the number of jurors, not less than six, and the
       number required to render a verdict, shall be specified by
       law.

Nothing in the Constitution or our case law suggests that a defendant is
prejudiced by having too many jurors. As Article 2, Section 23 makes
clear, a twelve-person jury is a benefit to a defendant because of the
additional protection afforded by requiring unanimity of a larger group of
jurors. Accordingly, we find no error, let alone fundamental error, by the




                                       5
                           STATE v. GROSSMAN
                            Decision of the Court

trial court relative to this issue. See State v. Henderson, 210 Ariz. 561, 567-
68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005).

              III.   Use of Prior Out-of-State Convictions for Impeachment

¶13            Appellant argues the State’s disclosed intent to use his out-
of-state convictions for impeachment purposes at trial improperly induced
Appellant to admit the prior convictions during direct examination, thus
eliminating the need for the State to formally prove the existence of such
convictions. Under Arizona Rule of Evidence 609(a), the State may attack
a defendant-witness’s “character for truthfulness” by introducing
evidence of a criminal conviction “for a crime that, in the convicting
jurisdiction, was punishable . . . by imprisonment for more than one year,”
provided “the probative value of the evidence outweighs its prejudicial
effect to that defendant.” “[A] defendant who preemptively introduces
evidence of a prior conviction on direct examination may not on appeal
claim that the admission of such evidence was error.” Ohler v. United
States, 529 U.S. 753, 760 (2000).

¶14         During direct examination of the Appellant, the following
exchange took place:

       Q: Now, Darren, this is not the first time that you have been
       in a courtroom, is it?

       A: No, it’s not.

       Q: In fact, you have pled guilty a couple of times to felonies?

       A: Correct.

The State did not ask Appellant about his prior convictions during cross-
examination. Appellant’s argument on appeal fails because he introduced
evidence of his prior convictions on direct examination and cannot claim
fundamental error on appeal. 3



3      We note that the trial court also gave an appropriate jury
instruction to cure any potential prejudice stemming from Appellant’s
admission:

       You have heard evidence that the defendant has previously
       been convicted of a criminal offense. You may consider that



                                      6
                           STATE v. GROSSMAN
                            Decision of the Court

              IV.    Credibility of Witnesses

¶15           Appellant argues that Detective Mensay’s testimony was not
credible because of alleged discrepancies between his testimony at the
evidentiary hearing and at trial. This argument is unavailing on appeal
because “[t]he finder-of-fact, not the appellate court, weighs the evidence
and determines the credibility of witnesses.” State v. Cid, 181 Ariz. 496,
500, 892 P.2d 216, 220 (App. 1995).

¶16            Appellant similarly argues that his attorneys below
provided ineffective assistance of counsel by failing to challenge the
officer’s credibility as a strategic decision. This court will not consider
claims of ineffective assistance of counsel on direct appeal. State v. Spreitz,
202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).

              V.     Refusal to Ask Jury Question

¶17           Appellant argues that the trial court improperly excluded
one of several questions from the jury during Appellant’s testimony.
Appellant contends that his answer to the proffered jury question would
have buttressed his claim that he lacked the proper intent to commit the
crimes. At trial, the court and both counsel screened the subject question,
and considered the question irrelevant. Arizona Rule of Evidence 401
provides the measure for relevant evidence. Under this legal framework,
to the extent that the question can be understood as asking about
Appellant’s intent, the court did not abuse its discretion, much less
commit fundamental error, in refusing to ask the question because
Appellant had already extensively testified regarding his intent during
direct and cross examination.

              VI.    Sufficiency of the Evidence

¶18           Appellant next argues that insufficient evidence supports his
convictions. Appellant maintains that the State failed to prove the
requisite intent for trafficking in stolen goods, and that a judgment of
acquittal should have been entered after the State rested its case.

       evidence only as it may affect the defendant’s believability
       as a witness. You must not consider a prior conviction as
       evidence of guilt of the crime for which the defendant is now
       on trial.




                                       7
                           STATE v. GROSSMAN
                            Decision of the Court

¶19            “On motion of a defendant or on its own initiative, the court
shall enter a judgment of acquittal . . . if there is no substantial evidence to
warrant a conviction.” Ariz. R. Crim. P. 20(a). “We review a trial court’s
denial of a motion for judgment of acquittal for an abuse of discretion and
will reverse only if no substantial evidence supports the conviction.” State
v. Guadagni, 218 Ariz. 1, 3, ¶ 8, 178 P.3d 473, 475 (App. 2008). Substantial
evidence “is proof that reasonable persons could accept as convincing
beyond a reasonable doubt.” State v. Windsor, 224 Ariz. 103, 104, ¶ 4, 227
P.3d 864, 865 (App. 2010).

¶20           In this case, substantial evidence supports Appellant’s
conviction. Appellant was charged with one count of trafficking in stolen
property, second degree, a class three felony, in violation of A.R.S. § 13-
2307(A). Under § 13-2307(A), “A person who recklessly traffics in the
property of another that has been stolen is guilty of trafficking in stolen
property in the second degree.” Appellant also was charged with one
count of theft of means of transportation, a class three felony, in violation
of A.R.S. § 13-1814(A)(5). Under § 13-1814(A)(5), “A person commits theft
of means of transportation if, without lawful authority, the person
knowingly . . . [c]ontrols another person’s means of transportation
knowing or having reason to know that the property is stolen.”

¶21           The testimony elicited at trial indicates that Appellant had
been in control of the rental car during the meeting with the undercover
officer immediately before his arrest. The State offered evidence that the
rental car was not rented by Appellant, that Appellant was not an
authorized driver, that the Appellant had not paid for the use of the car at
the time of his arrest, and that Appellant did not have authority from the
rental car company to sell the car. The State also presented evidence that
Appellant expressed an interest in selling the car and that Appellant set
up a meeting with a buyer (an undercover officer) for the purposes of
selling the rental car. In any event, it was for the jury to determine the
credibility of the witnesses, including Appellant, and to weigh the
evidence. See Cid, 181 Ariz. at 500, 892 P.2d at 220. Because substantial
direct and circumstantial evidence supports the verdict, the trial court did
not abuse its discretion, much less commit fundamental error, in denying
Appellant’s motion for judgment of acquittal.

              VII.   Jury “Misconduct” or “Bias”

¶22           Appellant also argues that the jury potentially held a
“grudge” against him because one of the jurors could not start jury
deliberations until 10:30 a.m. On the fourth day of trial, as the jurors set


                                       8
                            STATE v. GROSSMAN
                             Decision of the Court

their deliberations schedule, a juror advised the court that the other
members of the jury wanted to begin at 8:00 a.m., but that the juror had
class until 9:40 a.m. and could not get to the courthouse until 10:30 a.m.
The court determined that the juror did not need to be excused with an
alternate to take her place, and that the rest of the jury would simply need
to wait to begin deliberations until she arrived. Nothing in the record
supports Appellant’s contention that the other jurors improperly blamed
him for the later start time, and we find no fundamental error in the trial
court’s decision not to replace the juror with an alternate. See Henderson,
210 Ariz. at 567-68, ¶¶ 19-20, 115 P.3d at 607-08.

              VIII. Jury Instructions

¶23             Appellant argues that the trial court erred by failing to give a
lesser included offense instruction to the jury, such as an instruction
regarding attempt to commit the offense charged. “[I]t is fundamental
error for the trial court to fail to give a lesser-included offense instruction
if one is supported by the evidence.” State v. Andriano, 215 Ariz. 497, 504, ¶ 32,
161 P.3d 540, 547 (2007) (emphasis added). Under Arizona Rule of
Criminal Procedure 23.3, “[f]orms of verdicts shall be submitted to the
jury for all offenses necessarily included in the offense charged, an
attempt to commit the offense charged or an offense necessarily included
therein, if such attempt is an offense.” As discussed above, the State
presented direct and circumstantial evidence that Appellant intended to
sell the rental car; Appellant testified that he had no such intent to sell.
Thus, the lack of an instruction on the lesser-included charge of attempt
on either count was not fundamental error because the instruction was not
supported by the facts as presented by the State or Appellant’s own
defense.

              IX.     Stipulated Restitution

¶24           Appellant challenges his stipulated restitution of $1,380
owed to the rental company as a result of Appellant’s unauthorized and
unpaid use of the rental car, claiming that the restitution is excessive.
Appellant’s argument fails because “[n]o restitution can be imposed
beyond that established by the conviction and factually supported by the
record, unless defendant otherwise agrees.” State v. West, 173 Ariz. 602, 609,
845 P.2d 1097, 1104 (App. 1992) (emphasis added). The testimony at trial
supports the amount of restitution; in any event, the defense stipulated to
the amount of restitution. Although Appellant argues that his attorneys
provided ineffective assistance of counsel in this regard, this court will not




                                        9
                          STATE v. GROSSMAN
                           Decision of the Court

consider claims of ineffective assistance of counsel on direct appeal.
Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527.

             X.     Sentencing, Prosecutorial Vindictiveness, and the Plea
                    Deal

¶25            Appellant argues the State should have reinstated “a plea
deal in accordance with a first time offender” because the State ultimately
chose not to present evidence of Appellant’s out-of-state convictions at
sentencing. “Discretion over plea bargaining is a core prosecutorial
power, but not one without constraints. It is well established, for
example, that the courts may intervene to reinstate a plea offer that the
State has withdrawn for vindictive reasons.” State v. Donald, 198 Ariz. 406,
417, ¶ 39, 10 P.3d 1193, 1204 (App. 2000).

¶26            At sentencing, the State did not use Appellant’s out-of-state
felony convictions because it determined that the out-of-state information
packets inadequately connected Appellant to the prior convictions;
nothing in the record suggests prosecutorial vindictiveness led to the
State’s reliance on those out-of-state convictions in formulating or in
considering revisions to its plea offer. Absent such a showing, the trial
court was not required to reinstate the initial plea offer with modifications
more favorable to Appellant. We find no error, let alone fundamental
error, in this regard. See Henderson, 210 Ariz. at 567-68, ¶¶ 19-20, 115 P.3d
at 607-08.

             XI.    Other Issues

¶27            We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at
537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and
supports the verdict, and the sentencing proceedings followed the
statutory requirements. Appellant was represented by counsel at critical
stages of the proceedings and was given the opportunity to speak at
sentencing. The proceedings were conducted in compliance with his
constitutional and statutory rights and the Arizona Rules of Criminal
Procedure.

¶28          After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the
appeal and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See
State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).


                                     10
                         STATE v. GROSSMAN
                          Decision of the Court

Appellant has thirty days from the date of this decision to proceed, if he
desires, with a pro per motion for reconsideration or petition for review.

                            CONCLUSION

¶29          Appellant’s conviction and sentence are affirmed.




                                 :gsh




                                   11
