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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  RENE LEONEL RODRIGUEZ, Appellant.

                             No. 1 CA-CR 17-0194
                               FILED 8-7-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-147281-001
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Edward F. McGee
Counsel for Appellant
                           STATE v. RODRIGUEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            Rene Leonel Rodriguez appeals his conviction of disorderly
conduct and the resulting sentence. Rodriguez’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), certifying that, after a diligent search of the record, he
found no arguable question of law that was not frivolous. Rodriguez did
not file a supplemental brief, but asked counsel to suggest that this court
review the record for prosecutorial misconduct. Counsel asks this court to
search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537,
¶ 30 (App. 1999). After reviewing the record, we affirm Rodriguez’s
conviction and sentence.

             FACTS AND PROCEDURAL BACKGROUND

¶2            U.O. and M.N. were driving to the supermarket one day in
October 2015 when Rodriguez pulled out of a parking lot right in front of
them, nearly causing an accident. U.O. honked once and continued driving
toward the supermarket. Rodriguez followed and pulled up alongside
them at a red light, and he pointed a semi-automatic rifle at U.O. and M.N.
while mouthing “what[’s] up.”

¶3           Rodriguez put the rifle on his dashboard, and both cars
turned left when the light turned green. Rodriguez matched his speed to
stay level with U.O. as they drove down the road, and U.O. called the
police.

¶4           Rodriguez stopped next to U.O. and M.N. at another red light,
where he pulled a silver handgun from a brown holster. U.O. did not recall
that Rodriguez pointed the handgun at them, but M.N. testified that he did.

¶5            Phoenix police officers arrived while Rodriguez was stopped
at the intersection, and an officer saw Rodriguez put the handgun into a
holster and place it on the dashboard. Rodriguez was arrested at the scene.
Police found a loaded AK-47 rifle and a loaded semi-automatic handgun in
a brown holster, both on the dashboard of Rodriguez’s truck.


                                       2
                           STATE v. RODRIGUEZ
                            Decision of the Court

¶6             The State charged Rodriguez with two counts of aggravated
assault, class 3 felonies, and one count of disorderly conduct for reckless
display of a firearm, a class 6 felony, all dangerous offenses. At trial,
Rodriguez testified, claiming that U.O. and M.N. had almost run into him
because they were speeding, and that they had then started to follow him,
honking and flashing their lights. Rodriguez denied brandishing or
pointing his firearms at U.O. and M.N., and he explained that he kept the
weapons on his dashboard to keep them visible because he did not have a
permit for concealed weapons.

¶7             The jury acquitted Rodriguez of both counts of aggravated
assault, but found him guilty of disorderly conduct and found that it was a
dangerous offense. The court sentenced Rodriguez to the minimum term
of 1.5 years’ imprisonment with 73 days of presentence incarceration credit.
Rodriguez timely appealed.

                               DISCUSSION

¶8           We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.

¶9               Rodriguez’s opening brief filed by counsel presents
Rodriguez’s assertion that he was innocent of the offense and that the
prosecutor lied to the jury and improperly impugned his character.
Prosecutorial misconduct warrants reversal only if “(1) misconduct is
indeed present[,] and (2) a reasonable likelihood exists that the misconduct
could have affected the jury’s verdict, thereby denying defendant a fair
trial.” State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004) (citation omitted). The
misconduct must be “so pronounced and persistent that it permeates the
entire atmosphere of the trial,” rendering “the resulting conviction a denial
of due process.” State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (citations
omitted). Here, Rodriguez suggests that the prosecutor lied to the jury, but
he does not specify any purportedly false statements or false evidence
presented to the jury, and our review of the record shows none. Moreover,
Rodriguez’s counsel had an opportunity to cross-examine the State’s
witnesses to point out and question any purportedly false or misleading
testimony, and Rodriguez testified on his own behalf to present his version
of events directly to the jury. At most, the record reflects a dispute of fact
for the jury to resolve. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App.
2004).      Accordingly, Rodriguez has failed to show prosecutorial
misconduct, much less pronounced and persistent misconduct warranting
reversal.


                                       3
                         STATE v. RODRIGUEZ
                          Decision of the Court

¶10            Rodriguez was present and represented by counsel at all
stages of the proceedings against him. The record reflects that the superior
court afforded Rodriguez all his constitutional and statutory rights, and
that the proceedings were conducted in accordance with the Arizona Rules
of Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial was sufficient to support the jury’s
verdict. Rodriguez’s sentence falls within the range prescribed by law, with
sufficient credit given for presentence incarceration.

                             CONCLUSION

¶11           Rodriguez’s conviction and sentence are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to
Rodriguez’s representation in this appeal will end after informing
Rodriguez of the outcome of this appeal and his future options, unless
counsel’s review reveals 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, Rodriguez has 30 days from the
date of this decision to proceed, if he desires, with a pro se motion for
reconsideration or petition for review.




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




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